PLJ 1991 Judgments

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 351 Present MUHAMMAD MUNIR KHAN, J ABDUL KARIM-Petitioncr Versus MUHAMMAD SIDDIQUE-Respondent Criminal Revision No.310 of 1982, dismissed on 23.4.1991 . (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S.43 ( )~Charge under Section 302 PPC-Conviction under Section 304 Part II PPC-Prayer for enhancement of sentence and for conviction under Section 302 PPC--Respondcnt was charged under Section 302 PPC, but was convicted under Section 304 Part II PPC meaning thereby that he was acquitted of charge under Section 302 PPC-Held: High Court, in exercise of revisional powers, cannot convert conviction in minor offence to conviction in major offence—Petition dismissed. ... [P.352JB (ii) Revision— —Criminal revision--Whether can be dismissed for non-prosecution-Queslion of~Held: After having been admitted, criminal revision cannot be dismissed for non-proscculion. [P.352]A Nemo for Petitioner. Mr. Aziz Ahmad Ch., Advocate for State. Date of hearing: 23.4.1991. judgment Muhammad Siddiq, respondent, alongwith two others were tried under Sections 302/307/34 PPC for the murder of Abdul Majid and injuries to Muhammad Sharif, Muhammad Aslam and Muhammad Bashir. On the conclusion of the trial, Muhammad Siddiq, respondent, was convicted under Section 304 Part-II PPC and sentenced to eight years' R.I. and a fine of Rs.3,000/, or in default thereof six months' R.I. He has not filed any appeal against his conviction and sentence. However, Abdul Karim, complainant, has filed the present revision application against the acquittal of the charge under Section 302 PPC. 2. Mr.Iflikhar Ali Sheikh, Advocate, learned counsel for the petitioner, has not appeared. Since the revision, after having been admitted, cannot be dismissed for non-prosecution, so I have examined the case with the assistance of the learned counsel for the State. 3. I find that in this revision petition, it has been requested that the conviction of the respondent under Section 304 Part-II P.P.C. be converted into conviction under Section 302 P.P.C. I am afraid that the High Court in exercise of the revisional powers cannot convert conviction in minor offence to conviction in major offence. The respondent was charged under Section 302 P.P.C. However, he was convicted under Section 304 Part-II P.P.C. which means that he was acquitted of the charge under Section 302 P.P.C. So it is not possible for this Court to grant the prayer made in this revision application. Dismissed accordingly. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 353 Present: MUHAMMAD MUNIRKllAN, J. MUHAMMAD ISHAQ-Petitioner versus THE STATE-Respondent Criminal Revision No.39 of 1983, accepted on 4.3.1991. Pure Food Ordinance, 1960 (W.P.Ord. VII of 1960)-- —S.6/23/1—Adulterated milk—Offence of—Conviction for—Challenge to— There was a delay of 13 days in sending sample of milk for analysis-There is no evidence to show that petitioner knew or had reasons to believe that milk was of sub-standard quality-Witnesses in whose presence sample was taken, were not produced—Conviction set aside. [P.353]A&B Ch. Muhammad Anwar Blunder, Advocate for Petitioner. Mr. Allafur Rehman, Advocate for State. Date of hearing: 4.3.1991. judgment The petitioner stands convicted under Section 6/23/l(a) of the West Pakistan Pure Food Ordinance, 1960, and sentenced to eight months' R.I. and a fine of Rs.3,000/- in default thereof four months' R.I. 2. After hearing the learned counsel for the parties, I feel inclined to set aside the conviction and sentence of the petitioner for the reasons that there was a delay of thirteen days in sending the sample of milk for analysis; that from the evidence, it appears that the milk was purchased by the petitioner from others and there is nothing in evidence to show that he knew or had reasons to believe that the milk was of substandard quality and the witnesses, in whose presence the sample was taken were not produced. 3. For what has been said above, the revision is accepted. The conviction and sentence of the petitioner is set aside. He is acquitted of the charge. He is on bail. He stands discharged of his bail bond. (MBC) (Approved for reporting) Petition accepted

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 354 Present: muhammad mumr kuan, J MUHAMMAD IFTIKHAR-Appcllant versus THE STATE-Respondent Criminal Appeal No.994 of 1980, dismissed on 24.4.1991. Offences Against Property (Enforcement of Hudood) Ordinance, 1979 ( VI of 1979)-- —-S.20 read with Constitution of Pakistan, 1973, Article 203-DD-Offence against properly—Conviction for—Challenge to—Whether appeal is maintainable in High Court—Question of—Appeal against orders passed by Sessions Judges, Additional Sessions Judge in Hudood Ordinance cases lies before Federal Shariat Court-Held: This appeal is not entcrtainable by High Court. |P.355]A Nemo for Appellant. Kh. Hafeezullah, Advocate for State. Date of hearing 24.4.1991. judgment Muhammad Iftikhar appellant, was tried by the learned Addl.Sessions Judge, Sargodha . under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He was convicted under this section and sentenced to ten years' R.I. and a fine of Rs.500/- or in default thereof six months' R.I. on 12-7-19SO. Feeling aggreived thereby he has filed the present appeal. 2. I am afraid, under Article 203 (DD) of the Constitution of Islamic Republic of Pakistan, 1973,after 27lh May, 1980, the appeal against the orders passed by the learned Addl. Sessions Judges/Sessions Judges in Hudood Ordinance cases lies before the Federal Shariat Court and not before this Court. So the present appeal, which was filed on 26-8-1980 against an order passed in Hudood case on 12-7-1980 is not cntertainable by this Court. It is, therefore, disposed ot as not "maintainable." 3. The appellant has been released on bail by this Court. The trial Court will issue warrants for the arrest of Muhammed Iftikhar appellant and will send him to jail to serve the remaining sentence. (MBC) (Approved for reporting) Appeal dimissed.

PLJ 1991 Cr PLJ 1991 Cr.C (Quetta) 355 Present: MUNAWAR AHMAD MlRZA, J AINUDDIN ALIAS TOORAN-Petitioner versus THE STATE-Respondent Crl. Bail Application No.44 of 1991, dismissed on 6.3.1991. Prohibition (Enforcement of Hadd) Order, 1979 (PO 4 of 1979)-- —-An.3 4--55 K.G. Chams-Rccovery of-Grant of bail-Prayer for-Record indicates transportation of huge quantity of intoxicants by petitioner, for which imprisonment of 5 years and whipping is prescribed by Article 3--Grant or refusal of bail rests with sole discretion of court and accused is not entitled to bail as of right—Held: Relaxed view in granting bail in cases under Prohibition (Enforcement of Hadd) Order lends to promote illegal traficking and anti­ social activities-Bail refused. [P.356JA Mr. U'..\'.Kohli, Advocate for Petitioner. Mr. Sulahuddin Mcngal, A.A.G. for State. Date of hearing: 6.3.1991. judgment Facts according to prosecution briefly slated are, thai petitioner on i'.i.l. ! ''M while driving Car No.2357 I.D.C. from Pishin to Ouetla was intercepted near Grid Station Surkhab Road by Special Gusht parly of Pishin Police and on search secured 55 killos of Charas lying concealed in said Motor Vehicle. In persuance thereof F.I.R. 1298/90 was lodged with Pishin Police Station under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 and section 8/14 D.D.Act. 2. After completion of investigation challan No.30 of 1990 has been submitted in the court of Sessions Judge, Quetta . Petitioner moved an application before trial Court seeking his release on bail which was rejected. As such he has approached this Court. 3. Mr.W.N.Kohli, learned counsel for petitioner contended that primarily allegation suggests mere possession of Charas, which under section 4 of rohibition Order, is bailable. However alternately even if from stated circumstances offence under section 3 of Prohibition Order is made out, the maximum punishment prescribed would be 5 years, which does not fall within prohibitory clause of section 497 Cr.P.C. To supplement his submissions, reliance has been placed on (i) Abdullah versus State (1986 P.Cr.LJ.1969) and (ii) Bashir Ahmed and others versus Stale (1987 P.Cr.L.J.750). Mr.Salah-Uddin Mengal learned Assistant Advocate General emphatically opposing the application argued that material available on record sufficiently proves transportation of huge quantity of Charas by petitioner, which obviously was intended to be used for nefarious purposes constituting an offence under section 3 of Prohibition Order. I have perused record of the case, which indicates transportation of huge quantity of intoxicanls/c/itfra^ by the petitioner. It may be seen that import, export, transport, manufacture or processing of any intoxicant has been made punishable under section 3 of Prohibition Oder, prescribing imprisonment for 5 years and whipping. Undisputedly in non-bailable Offences grant or refusal of bail rests with sole discretion of Court, which has to be based on sound judicial consideration irrespective of prohibitory clause contained in section 497 Cr.P.C. However in such matters accused is not entitled to bail as of right. It cannot be conveniently overlooked that use of intoxicants is considerably increasing, and fast extending its adverse affects towards youth of the country. Apparently relaxed view in granting bail for offences resulting in violation of Probitition (Enforcement of Hadd) Order tender to promote illegal trallikmg, and antisocial activities. Keeping in view legal and factual aspects with utmost respect I am not inclined to follow the conclusion of aforequoted judgments. In similar circumstances this Court (Chief Justice Abdul Oadeer Choudhary) in bail application No.lOO/1989/liWH/ Razak VsState decided on 4.6.1989 refused bail in the following term: "The punishment extends to five years with whipping. As the applicant is involved in a serious offence and huge quantity of Charas was recovered from the co-accused who were engaged by the applicant, he is not entitled to grant of bail. As such his bail application is rejected." For the afforesaid discussion and observation of unrcported judgment reporduced above, 1 do not find it a fit case for exercising discretion in favour of petitioner. Bail application, accordingly stands rejected. (MBC) (Approved for reporting) Bail refused.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 357 Present: MUHAMMAD MUNIR KHAN, J GHULAM HUSSAIN-Petitioner versus THE STATE-Respondent Criminal Revision No.657 of 1989, accepted on 27.3.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S.325 read with Section 323-Trial under Section 325 PPC-Conviction under Section 323 PPC--Challenge to-Trial of petitioner under Section 325 PPC but his con\iction under Section 323 PPC means that he was acquitted of charge under Section 325 PPC—Held: Appellate court had no authority to convert an order of acquittal on a particular charge into conviction under that charge- Petition accepted but retrial not ordered. [Pp.357&358]A&B Mi: Saleem Shad and Malik Abdus Sattar Chughtai, Advocates for Petitioner. Mr. Ahafur Rehman, Advocate for State. Date of'hearing: 27.3.1991. judgment Ghularn Hussain petitioner was tried under section 325 P.P.C. for causing erievous injury with blunt weapon to Ashiq Hussain P.W. On the conclusion of the trial he was convicted under section 323 P.P.C. Feeling aggrieved, he filed appeal which was entrusted to learned Additional Sessions Judge, Bhakkar, who while dismissing the appeal converted the conviction of the petitioner from section 323 to 325 P.P.C., hence this revision. 2. No one has appeared for the pettioner. Since revision cannot be dismissed for non appearance, so I have examined the case with assistance of the learned consel for the State. I find that the order of learned Additional Sessions Judge is quite illegal, inasmuch as, he is an appellate Court and even a revisional Court has no authority to convert conviction in minor offence to one under the major offence. The petitioner was charged under section 325 P.P.C. However, he was convicted under section 323 P.P.C. This means that he was deemed to have been acquitted of the charge under section 325 P.P.C. The Appellate Court had no authority to convert an order of acquittal on a particular charge into conviction under that charge, For what has been said above, the revision is accepted. 3. Now the question arises as to whether or not the case should be sent back to the Appellate Court for re-hearing of the appeal. I feel that the occurrence took place in the year 1986. The petitioner was sent to jail twice. He was convicted by the trial Court for causing hurt. After the rejection of his appeal by the learned Additional Sessions Judge, he remained in jail for about two weeks before his sentence could be suspended by this Court. In thses circumstances, 1 feel that it would not be proper to remand the case for fresh decision of appeal. Order accordingly. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 358 Present: muhammad munir khan, J MUHAMMAD ABBAS and another-Petitioners versus THE STATE-Respondent Criminal Revision No.700 of 1982, decided on 3.4.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —S.307/34-Murderous assault-'Offence of-Conviction for-Challenge to~ None of injuries was found dangerous to life or grievous—All injuries were declared simple—Most of injuries are on non-vital parts of body—Held: Conviction of petitioners under Section 307/34 PPC was not justified— Conviction altered to Section 324/34 and 323/34 P.P.C. [P.359]A&B Mr. Muhammad Hussain Chacher, Advocate for Petitioner. Nemo for State. Date of hearing: 3.4.1991. JUDGMENT Muhammad Abbas and Muhammad Hanif, petitioners, alongwith three others were tried for murderous assault on Muhammad Zubair PW. 2. The prosecution produced six witnesses. Muhammad Zubair PW-2 stated that at the eventful time, Muhammad Abbas armed with hatchet and Muhammad Hanif armed with Sola alongwith their companions launched attack on Muhammad Zubair. On the Lalkara raised by the three companions, Muhammad Abbas inflicted hatchet blow and Muhammad Hanif gave Sola blows to Muhammad Zuabir PW. Liaqat Ali PW.l and Sikandar PW.3 supported the statement made by Muhammad Zubair PW. Dr.Muhammad Rashid PW.5 medically examined Muhammad Zuabir and found nine injuries on his person. One was caused by sharp edged weapon and the others with blunt weapon. 3. When examined under Section 342 Cr.P.C., the petitioners denied all the incriminating circumstances. They produced Syed Gazanfar Ali DW.l and Muhammad Amir DW.2. 4. The trial Court convicted the petitioners under Section 307/34 PPC and sentenced them to three years' R.I. and a fine of Rs.1,000/- each or in default thereof two months' R.I. The appeal filed by the petitioners against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Okara, on 5.10.1982. 5. The learned counsel for the petitioners submitted that since the injuries have not been declared dangerous to life, so the petitioners could not have been convicted under Section 307/34 P.P.C. No one has appeared for the State. 6. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that none of the injuries of Muhammad Zubair PW was found dangerous to life or grievous. All the injuries have been declared simple. Most of the injuries were on the non-vital parts of the body, so the conviction of the petitioners under Section 307/34 P.P.C. was not justified and the same is hereby set aside, instead they are convicted under Sections 324/34 and 323/34 P.P.C. 7. This brings me to the question of sentence. I find that the occurrence took place in the year 1981; that the petitioners were sent to Jail thrice and that they remained in Jail for two and a half months be/ore they could be released on bail by this Court. After their conviction by the learned trial Court, they were not released on bail by the learned trial Court. In these circumstances, I feel that the agony of trial coupled with the imprisonment suffered by them as under-trial prisoners and convicts would meet the case. Order accordingly. (MBC) (Approved for reporting) Conviction altered.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 359 Present: MUHAMMAD MUNIR KHAN, J JAVED alias JAIDI-Petitioner versus THE STATE-Respondent Criminal Revision Nol82 of 1990, partly accepted on 30.3.1991. Pakistan Penal Code, 1860 (XLV of I860)- -—S.307--Murderous assault-Offence of-Conviction for-Challenge to-Held: As doctor has not stated that injuries or one of injuries on person of injured were/was dangerous to life or grievous, petitioner could not be convicted under Section 307 of PPC-Conviction altered to that under Section 324 PPC and sentence of two years R.I. awarded. [P.360]A&B Mr. Ahmad Saeed Kinnani, Advocate for Petitioner Mr. M.Iqbal, Advocate for State. Date of hearing: 30.3.1991. judgment Javed alias Jaidi petitioner stands convicted under Section 307 P.P.C. for murderous assault on Zubair Ahmad P.W. and sentenced to 4 years R.I. and a fine of Rs.1000/-, in default thereof 3 months R.I. 2. Admitting the criminal liability of the petitioner for the injuries found on the person of Zubair Ahmad P.W., the learned counsel for the petitioner has challenged the nature of the offence on the ground that since neither the doctor had declared any of the injuries found on the person of Zuabir Ahmad P.W. dangerous to life nor the same were declared grievous, so the petitioner cannot be convicted under Section 307 P.P.C. Learned counsel for the State has opposed this application on the ground that the petitioner had inflicted as many as 12 injuries on the person of the victim with sharp-edged weapon. 3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that since the doctor has not stated that the injuries or one of the injuries found on the person of the injured were/was dangerous to life or grievous, so, the petitioner could not have been convicted under Section 307 P.P.C. on the basis of the number of the injuries, i.e. 12. So, the conviction of the petitioner under Section 307 P.P.C. is set-aside. Instead, he is convicted under Section 324 P.P.C. 4. This brings'me to the question of sentence. I have considered this question with utmost care. I find that the petitioner was arrested on 17.1.1986 and was released on bail on 16.7.1986 by the trial Court. He was convicted on 26.8.1987 and was taken into custody. The sentence was not suspended by the Appellate Court. The appeal was dismissed on 20.1.1990, and thereafter, he was released on bail by this Court in this revision on 4.8.1990 and as such he remained for about one year and two months in jail. The petitioner had suffered 12 injuries out of which 10 injuries were caused by sharp-edged weapon. Some of the injuries were on the vital part of his body. In these circumstances, I feel that the sentence of two years R.I. would meet the case.He will get benefit of the provisions of Section 382-B, Cr.P.C, The .fine imposed by the trial Court and the sentence in lieu thereof is maintained. The petitioner will surrender himself before the trial Court within two weeks. On his failure, the trial Court shall issue warrants for his arrest. On his arrest he will be sent to jail to serve out the sentence. (MBC) (Approved for reporting) Conviction altered

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 360 Present: MUHAMMAD MUNIR KHAN J. MUHAMMAD RAMZAN-Petitioner versus THE STATE-Respondent Criminal Revision No.4 of 1983, accepted on 2.3.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —S.304-A-Death in accident-Drivers of both buses which collided, were acquitted-Conviction of conductor-Challenge to-It is a matter of common experience that people do occupy foot board of buses against wishes of conductors-Held: Failure of duty for safety of passengers does not constitute an offence punishable under Section 304-A of PPC-Petitioner acquitted. [P.361]A&B Ch. Abdur Rehman Cheeina, Advocate for Petitioner. Begum Naseem Gulsher, Advocate for State. Date of hearing: 2.3.1991. judgment Muhammad Ramzan, petitioner, Muhammad Shafi and Khushi Muhammad were tried under Section 304-A PPC for causing the death of Tariq Mehmood by rash and negligent driving. 2. The petitioner was a conductor of a bus. Muhammad Shafi and Khushi Muhammad were drivers of two different buses. At the time of accident, Tari% Mehmood was standing on the foot board of the bus of which the petitioner was the conductor. There was collision of the two buses driven by the two co-accused as a result whereof Tariq Mehmood lost his life. On the conclusion of the trial, the petitioner and the two drivers were convicted under Section 304-A PPC and sentenced to four years' R.I. and a fine of Rs.5,000/- each or in default thereof six months' R.I. each. On appeal, the learned Additional Sessions Judge acquitted the two drivers but maintained the conviction of the petitioner under Section 304-A PPC and reduced the sentence to one years R.I. and a fine of Rs.5,000/- or in default thereof six months' R.I. The learned Appellate Court was of the view that the petitioner being the conductor of the bus was responsible for the safety of the passengers and he fully knew that the passengers standing on the foot board could meet tlio accident at any time, so he failed to perform his duty and did not take proper care and caution before giving signal to Muhammad Shafi driver for moving the bus. 3. The learned counsel for the petitioner submitted that the petitioner was not the driver of the bus, so he could not be convicted for causing the death of Tariq Mehmood by rash and negligent driving. The learned counsel for the State has opposed him. 4. I have considered the matter carefully. I find that it is a matter of common experience that the people do occupy the foot board against the wishes of the conductors and they are not prepared to listen any one. Furthermore, failure of duty for the safety of the passengers does not constitute an offence punishable under Section 304-A PPC. The drivers of the buses, which had collided, have been acquitted, instead the conductor has been convicted and £ sentenced, as stated above. 5. For what has been said above, this revision is accepted. The conviction and sentence of the petitioner is set aside and he is acquitted of the charge. He is on bail. He stands discharged of his bail bond. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 361 Present: MUHAMMAD MUNIR KHAN, J. GHULAM RASUL and another-Petitioners versus THE STATE-Respondent Criminal Revision No.47 of 1983, accepted on 27.2.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —S.411-Stolen ornaments-Recovery of-Conviction for--Challenge to- Recovery witnesses were not believed quo acquitted co-actused-Rule of prudence did require independent corroboration of their statements qua petitioners, which is not available in this case—Held: Prosecution has not been able to prove its case against petitioners beyond reasonable doubts- Petitioners acquitted. [P.362]A Rana Abdur Rahim and C/i. Muhammad Ismail, Advocates for Petitioners. Mr. Maqsood Ahmad KJian, Advocate for State. Date of hearing: 27.2.1991. judgment Ghulam Rasul son of Gul Baig, Ghulam Rasul son of Muhammad Nawaz petitioners alongwith Misri Khan and Mumtaz were tried under Sections 457/380/411 P.P.C. 2. The charge against them was that golden and silver ornaments were stolen away from the house of Sher Muhammad P.W. on the night between 8/9.1.1978. Muhammad Ashiq, S.I. P.W.7 had recovered the ornaments Ex.P.l to P.21 from the petitioners and the co-aceused under Section 550 Cr.P.C. as suspected stolen property. Prosecution produced 7 witnesses. On the conclusion of the trial, all the accused were convicted under Section 411 P.P.C. and sentenced to 3 years R.I. each. On appeal, the learned Sessions Judge, acquitted Misri Khan and Mumtaz but upheld the conviction and sentence of the petitioners. 3. Learned counsel for the petitioners submits that the recovery witnesses namely Muhammad Hussain P.W.4 and Mala P.W.6, who have been believed for convicting the petitioners were also witnesses of the incriminating recoveries from the acquitted accused and that there was no independent corroboration of their statements against the petitioners. Learned counsel for the State has supported the judgment of the Appellate Court. 4. I have considered the matter carefully. I find that Muhammad Hussain P.W.4, Mala P.W.6 and Muhammad Ashiq, S.I. P.W.7 were the recovery witnesses. They stated that in their presence the ornaments were also recovered from Misri Khan and Mumtaz. Their statements have not been acted upon against the two acquitted accused. So, the rule of prudence did require independent corroboration of their statements qua the petitioners, which is not available in this case. For these reasons, I feel that the prosecution has not been able to prove its case against the petitioners beyond reasonable doubts. So, the revision is accepted. The conviction and sentence of the petitioners is set-aside and they are acquitted of the. charge. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 362 Present: MUHAMMAD MUNIRKlIAN J. KHIZAR HAYAT alias KHIZRO-Petitioner Versus THE STATE-Respondent Criminal Revision Nos. 627 and 628 of 1982, accepted on 6.3.1991. Pakistan Penal Code, 1860 (XLVof 1860)-- —S.411-Stolen mares-Recovery of-Conviction for-Challenge to--Two mares were recovered by Police under Section 550 Cr.P.C during Naqabandi--He\d: Since no case with regared to theft of mares, which allegedly were recovered from petitioner, was registered, it cannot be said that petitioner was keeping same dishonestly knowing same to be stolen property-Petitioner acquitted. [P.363JA&B Nemo for Petitioner Ch. Imtiaz Ahmad, Advocate for State. Date of hearing: 6.3.1991. judgment Khizar Hayat petitioner was tried separately in two cases under Section 411 PPC on the charge of keeping the stolen mares, which were allegedly recovered from him by Haq Nawaz ASI on 13.5.1980. The trial Court convicted him in both the cases and sentenced him to one year's R.I. in each case. Feeling aggrieved, he filed two separate appeals, which were dismissed by the learned Additional Sessions Judge, on 2.10.1982. I propose to dispose of these two revisions through this single judgment. 2. No one has appeared for the petitioner. Since the revision, after having been admitted, cannot be dismissed for non-prosecution, so I have examined the case with the assistance of the learned counsel for the State. I find that in these cases, it was during a Nakabandi that Haq Nawaz ASI recovered two mares from the petitioner as suspected stolen property under Section 550 of the Cr.P.C. In a case giving rise (to) Cr.R.No.627 of 1982, Bahsir Ahmad PW approached the police after some days of the alleged recovery and stated that one year back, his mare was stolen. He identified one of the two mares allegedly recovered from the petitioner as his mare. In a case giving rise (to) Cr.R.No.628 of 1982, Gul Sher PW appeared before the police and stated that five months back, his mare was stolen from his house. He identified the other mare allegedly recovered from the petitioner as his stolen mare. Furthermore, no person from the public was produced to prove the recovery of mares from the petitioner. Since no case with regard to the theft of the mares, which allegedly were recovered from the petitioner on 13.5.1980, was registered, therefore, it cannot be said that the petitioner was keeping the two mares dishonestly knowing the same to be stolen property. 3. Pursuant to the above discussion, the revisions are accepted and the conviction and sentence of the petitioner is set aside. He is acquitted of the charge. He is on bail. He stands discharged of his bail bonds. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 364 Present: muhammad munir Kl IAN J. ASIF MAHMOOD alias ASIF JAVED, alias ACHHA-Petitioner versus THE STATE-Respondeat Criminal Revision No.796 of 1982, accepted on 24.2.1991. Arms Ordinance, 1965 (W.P.Ord. XX of 1965)-- —S.13-C/i/rwn~Recovery of-Conviction for-Challenge to--There is no legal evidence that blade of Chhuri recovered from petitioner, was 4" or more than that-Held: ReccWery memo being not a substantive piece of evidence, cannot be read in aid of statements of recovery witnesses-Petitioner acquitted. [P.364]A Mr. Abdul Aziz Qureshi, Advocate for Petitioner. Mr. Abdul Moeed, Advocate for State. Date of hearing: 24.2,1991. judgment Asif Mehmood petitioner stands convicted under Section 13 of the Arms Ordinance, 1965 on the charge of keeping unlicensed churri, and sentenced to one year R.I. 2. Prosecution produced two witnesses. Muhammad Yousaf P.W.I and Muhammad Hussain P.W.2 supported the recovery of churri from the petitioner. When examined under Section 342 Cr.P.C., he did not admit the recovery of churri from him. He did not produce any witness in defence. 3. Learned counsel for the petitioner submits that the prosecution has failed to prove that the blade of the churri was 4" or more than that. Learned counsel for the State has supported the judgment of the Appellate Court. 4. I have considered the matter. I agree with the learned counsel for the petitioner. I find that there is no legal evidence that the blade of the churri recovered fiom the petitioner was 4" or more than that. The recovery memo being not a substantive piece of evidence cannot be read in aid of the statements of the recovery witnesses. For these reasons, I feel that the prosecution .has failed to prove its case beyond reasonable doubt. For what has been said above, the revision is accepted. The conviction and sentence of the petitioner is set-aside and he is acquitted of the charge. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 365 Present: MUHAMMAD MUNIR KHAN J. MUHAMMAD SARWAR-Petitioner Versus THE STATE-Respondent Criminal Revision No.475 of 1982, accepted on 2.4.1991. Arms Ordinance, 1965 (W.P. Ord XX of 1965)-- —S.13--Carbine-Recovery of-Conviction for--Challenge to-Recovery was not effected by Police or by Magistrate—It was allegedly effected by private persons—Prosecution evidence also suffers from discrepancies—It is very easy to concoct such like story and it may be very difficult to rebut same—Held: Prosecution has not been able to prove its case beyond reasonable doubt- Petitioner acquitted, , [P.366]A&B Note: Name of Advocate for Petitioner is not decipherable. Nemo for State. Date of hearing: 2.4.1991. judgment Muhammad Sarwar petitioner stands convicted under Section 13 of the Arms Ordinance, 1965 on the charge of keeping unlicensed carbine on the night between 8.10.1980 and sentenced him to one year R.I. 2. The prosecution case is that 3 days before the occurrence bullock of Nazar P.W. was stolen. Three days thereafter, he alongwith Haqnawaz and Noor Muhammad saw three persons taking away the stolen bullock, so they rushed towards them. On seeing them 2 out of the 3 persons ran away but the petitioner was apprehended and on his search carbine and two cartridges were recovered. Thereafter, he alongwilh bullock, carbine and two cartridges was produced before the police. He denied the recovery of carbine and raised pica of false implication. He produced two witnesses in defence. The learned Magistrate convicted him under Section 13 of the Arms Ordinance and seritenced him to one year R.I. The appeal filed by him was dismissed by the learned Additional Sessions Judge, Jhang on 1.8.1982. 3. Learned counsel for the petitioner submits that the petitioner was apprehended by Nazar complaint and others and the carbine was planted on him, and that the prosecution evidence suffers from contradictions. No one has appeared for the State. 4. I have considered the matter carefully. I find that the recovery was not effected by the police or by the Magistrate. The recovery allegedly was effected by the private persons. It is very easy to concoct such like story and it may be very difficult to rebut the same. The prosecution evidence also suffers from discrepancies. Nazar Muhammad P.W.I stated that the petitioner was holding bullock by one hand and was carrying two cartridges in the other hand whereas the other witnesses have not supported him. Pursuant to the above discussion, I feel that the prosecution has not been able to prove its case beyond reasonable doubt. The possibility of the carbine and cartridges having been planted on the petitioner by the complainant party cannot be excluded. So, the revision is accepted and the petitioner is acquitted of the charge. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 367 Present: MUHAMMAD MUNIR KHAN J. KHIAL DIN--Petitioner versus THE STATE-Respondent Criminal Revision No.478 of 1983, accepted on 18.2.1991 . Arms Ordinance, 1965 (W.P.Ord. XX of 1965)-- —-S.13-Firc-arm--Recovery of--Conviction for--Challenge to--Fire-arm was allegedly recovered from petitioner at Bus Stand where normally public men are always available-Despite this, I.O. did not associate any person from public—Held: No implicit reliance can be placed on statements of two police officials-Petitioner acquitted. [P.367]A&B Mi: Af-al KJian Niazi, Advocate for Petitioner. Mr. Khalid Mahmood Famoqi, Advocate for State. Date of hearing: 18.2.1991. judgment Khial Din, petitioner, stands convicted under Section 13 of the Arms Ordinance. 1965. and sentenced to six months' R.I. He was an army official. The charge against him was that he was keeping 12-bore gun and cartridges without any license, on 7.8.1980. which were recovered from (him) by Muhammad Rashid ASI. He was convicted by the Irial Court and sentenced to six months' R.I. (on) 13.1i..l9>C. The appeal filed by him was dismissed by the learned Additional Scions Judge. Mianwali, on 18.8.1983. 2. The learned counsel for the petitioner submits that only two police ol7icLl> ha\c been produced and no independent witness was associated with the recovery of Fire Arm from the petitioner. The learned counsel for the State has supported the impugned judgment. 3. I have considered the matter carefully. I find that the Fire Arm was alleged!} recovered from the petitioner at a Bus Stand where normally the public men are always available. Despite this, Muhammad Rashid ASI did not associate any person from the public. This being the position, I feel that no implicit reliance can be placed on the statements of two police officials. 4. For what has been said above, the revision is accepted and the conviction and sentence of the petitioner is set aside. He is acquitted of the charge. He is on bail. He stands discharged of his bail bond. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 368 Present: MUHAMMAD MUNIR KHAN J. Subedar (Retd) FATEH KAHN and another-Petitioner versus THE STATE-Respondent Criminal Revision No.530 of 1983, accepted on 26.3.1991. Criminal Procedure Code, 1898 (V of 1898)-- —S.514-Surety-Confiscation of-Challenge to-Sureties had not given any undertaking to the effect that accused will appear before Military Court-Held: Assistant Commissioner had no authority to forfeit bail bonds-Petition accepted. [P.368JA Rana Abdul Majid Klian, Advocate for Petitioners. Sheikh A.Bari, Advocate for State. Date of hearing: 26.3.1991. judgment This criminal revision arises from the judgment of learned Sub Divisional Magistrate/Assistant Commissioner, Gujrat, whereby he, on 13.4.1981, forfeited the bail bonds furnished by the petitioners to the extent of Rs.15,000/- each. The appeal filed by the petitioners against the order of the Assistant Commissioner was dismissed by the learned District Magistrate, Gujrat, on 23.7.1983. 2. The learned counsel for the petitioners submits that since the bail was not granted by the Assistant Commissioner and in the bail bonds neither the accused nor the petitioners/sureties had given any undertaking to the effect that in case of the failure of the accused to appear before the Military Court, they will pay the penalty of Rs.25,000/, therefore, the entire proceedings under Section 514 of the Cr.P.C. were illegal. The learned counsel for the State is not in a position to controvert him. 3. I have considered the matter carefully. I agree with the learned counsel for the petitioners. I find that since the sureties had not given any undertaking to the effect that the accused will appear before the Military Court, so the Assistant Commissioner had no authority to forfeit the bail bonds. This being the position, the revision petition is accepted and the impugned order is set aside. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 370 (DB) Prcsnet: muhammad munir khan and muhammad amir malik, JJ KHADIM HUSSAIN-Appcllant versus THE STATE-Respondent Criminal Appeal No.297 of 1%8, accepted on 25.2.1991. Pakistan Penal Code, I860 (XLV of 1860)-- —Ss.392/397—Robbery—Offence of—Conviction for-Challenge to--Evidence- Appreciation of-It is obvious from documentary evidence that I.O. had a motive to involve appellant in cases-It docs not stand to reason that instead of leaving documents (which was of no use to appellant) in car, he took them to his house to keep them safely to facilitate recovery of same—Solitary witness of robbery (complainant) docs not appear to be an absolutely dependable witness—He being a taxi driver, influence of S.H.O./Inspector on him is quite understandable—Held: There being no satisfactory basis to uphold conviction, . appeal is accepted. [Pp.371&372]A&B Mr. N'adeem Saqlain, Advocate for Appellant. Mian Najamuzzman. A.A.G. and Mr. Altaf Muhammad Klian, Advocate for State. Date of hearing: 25.2.1991. judgment Muhammad Munir Khan, J.--This Criminal Appeal No.297-1988 arises from the judgment of Judge , Punjab Special Court No.IX, Gujranwala, whereby he on 10.3.1988 convicted Khadim Hussain aged 26 years under section 392 read with section 397 PPC and sentenced him to 10 years R.I. and a fine of Rs.50,000/-, or in default thereof to further R.I. for 2 and a half years with the directions that the fine, if realised half of it be paid to Akbar Ali as compensation. 2. The charge against the appellant was that he alongwith another person robbed Car No.RlD-4900 from Akbar Ali PW2........ on rifle point, on 29.8.1987, at about 5.45 a.m in the area of village Atto wala at a distance of 10 miles from Police Station Kharian. The FIR Ex-PB was lodged on the same day at 8.30 a.m by Akbar Ali PW2 and was recorded by Muhammad Safdar, SHO/Inspector, PW3. 3. The appellant denied the charge and claimed to be tried. 4. To prove its case the prosecution produced three witnesses. Akbar Ali, PW2 was/is a Taxi Driver. He stated that on the eventful day, Khadim Hussain, appellant, came to the Taxi Stand, Attu-Wala and hired his taxi for village Dinga. He was accompanied by another man who was carrying 7 M.M rifle. On reaching Dinga, Khadim Hussain went out of taxi saying that he was going to see Mian Aziz, Ex-Chairman of Town Committee Dinga. However, he returned after half an hour and sat in the taxi and asked him to drive car back to village Attu-wala. At some distance, Khadim Hussain asked him to stop the car.When he stopped the car then both the appellants on rifle and carbine point, forcibly took away his taxi car. The Registration book, transfer letter and his pension book were in the car at that time. 5. On 30.8.1987, Haji Gul Jahan Khan, Inspector, Police Station, Bhalwal, found the stolen car of Akbar Ali on a road side, so, he took it into possession as suspected stolen property under section 550 Cr.P.C. vide memo Ex.PA, which was attested by Rabnawaz, ASI. and Amjad Ali, Head Constable (both not produced). Muhammad Safdar P.W.3 recorded the FIR Ex.PB. On receiving telephonic message about the recovery of the car. he went to Police Station Bhalwal and took the stolen car in his possession. Khadim Hussain was arrested on 14.11.1987. On 18.11.1987, he led to the recovery of registration book Ex.Pl, Transfer Letter Ex.P2 and Pension Book Ex.P3 from his house, which were taken into possession vide memo Ex.PC attested by Akbar Ali P.W.I and Basharat Ahmad, Constable (not produced). The recovery memo was prepared by Muhammad Safdar, Inspector, P.W.3. 6. When examined under section 342 Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity with Muhammad Safdar SHO/P.W.3. He stated that he and his father had made complaints against Muhammad Safdar, SHO and his father had also filed two writ petitions against him in the Lahore High Court, Lahore, so he was annoyed and has falsely involved him in many cases. In defence he tendered photo stat copies of the writ petitions Ex.DA and DB, photo copy of the contempt application Ex.DC and photo copies of the applications sent against Muhammad Safdar SHO and copies of the FIRs. He made statement on oath in disproof of charge against him. 7. While believing the prosecution evidence and rejecting the plea of false implication raised by the appellant, the trial Court has convicted and sentenced him as stated above. Learned counsel for the appellant contended that Muhammad Safdar SHO/Inspector PW3 was annoyed with the appellant; that he involved him in many criminal cases; that Akbar Ali being a taxi driver is under the influence of the police and that the recovery of registration book, pension book and transfer letter from the house of the Appellant after about four months of the occurrence is highly improbable. Conversely the learned A.A.G. and the counsel for the Slate have supported the judgment of the trial Court. 8. We have carefully attended to the arguments addressed by the counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant under Section 340 and 342 Cr.P.C. and the documents tendered by him in defence. We feel pursuaded to agree with the learned counsel for the appellant. From the documents including the copies of the writ petitions tendered by the appellant in his defence, it is very much obvious that Muhammad Safdar, SHO/Inspector had a motive to involve the appellant in cases. The alleged stolen car was left by the culprits at some distance from the place of occurrence and was taken into possession by Haji Gul Jahan Khan, Inspector, PW.l on 30.8.1987. It does not appeal to the reason that instead of leaving the documents i.e. registration book, transfer letter and pension papers (which were of no use to the appellant) in the car as they were, he took them to his house to keep them safely, in order to make the recovery thereof possible. Since the recovery of these documents could furnish weighty evidence of his involvement in the robbery of the car, so there was no fun to keep the documents in the house. It seems to us that the recovery of these documents has been planted on the appellant by Muhammad Safdar, SHO/Inspector with the connivance of the attesting witness namely Akbar AH, complainant. As far robbery of the car, there is a solitary witness namely Akbar All, P.W.2. He does not appear to be an absolutely dependable witness. If he could falsely depose about the recovery of the documents from the house of the appellant and be a party to the plantation of these documents on the appellant, there was no legal certainty and judicial guarantee of his being truthful on the charge of robbery of his car, against the appellant. He being a taxi driver, the influence of the SHO/Inspector on him is quite understandable. We feel that the rule of prudence does require independent corroboration of the statements of Akbar All and Safdar SHO, P.W.3, which is not available in the case. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant, the appeal is accepted and while giving him the benefit of doubt, he is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 411 Present: muhammad munir khan, J MUHAMMAD LATIF-Pedtioner versus JAVID IQBAL and others-Respondents Criminal Revision No.477 of 1986, dismissed on 29.1.1991 Acquittal- -—Charge under Sections 307, 326, 148 & 149 PPC~Acquittal of respondents- Challenge to-Trend of statements of eye-witnesses shows that evidence is given with a motive other than that of stating truth-Trial court applied its conscious mind to evidence on record and has given sound reasons for disbelieving prosecution case-Held: Once an accused person is acquitted by a court of competent jurisdiction, then strong and exceptional grounds would be required for interference with judgment of acquittal which are not available in this case-Revision dismissed. [Pp.413&414JA Mr.SJ-f.Latif'Khan KJiosa, Advocate for Petitioner. Mr.S..\f..\ T azim, Advocate for Respondents. Date of hearing: 29.1.1991. judgment This Criminal revision arises from the judgment of learned Addl. Sessions Judge, Sialkot, whereby he, on 11.5.1986 acquitted Javid Iqbal, Muhammad Nawaz, Muhammad Iqbal, Zafar Iqbal and Muhammad Bashir, respondents, of the charges under Sections 307, 326,148/149 of the P.P.C. 2. The allegations against the respondents were that they formed an unlawful assembly, and, in furtherance of their common object of the said unlawful assembly, they launched murderous assault on Muhammad Latif, on the night between 14/15th January, 1985, in the area of Jinnah Colony, within the limits of Police Station City Sialkot. They denied the charges and claimed to be tried. 3. To prove its case, the prosecution produced six witnesses. Muhammad Latif, PW-3 was an employee in the Stainless Steel Factory of Javaid Iqbal respondent/accused. He stated that at the eventful time he went to the hand pump,., installed in the factory of Muhammad Nawaz for washing his face. avid Iqbal came there and asked him to work more, on which he replied that he was tired and could not work anymore. On this Javaid Iqbal abused him and he returned the abuses. At that time the co-accused Zafar Iqbal, Nawaz and Muhammad Bashir were present there. Iqbal and Zafar got hold of him, Javid picked up a Toka and Iqbal picked up an iron rod which were lying in the factory. Muhammad Bashir raised 'lalkara' that he (Muhammad Latif) be taught lesson. Whereon Javaid Iqbal gave injuries on the different parts of his body, with his Toka. The occurrence was also seen by Jarar Hussain and Tariq Mehmood. Jarar Hussain PW-4, supported the statement of Latif PW-3. Dr.Muhammad Nasrullah PW-1 examined Muhammad Latif, PW-3 on 15.1.1988. He found as many as 25 injuries caused by sharp and blunt weapon on his person. One of the injuries was grievous. The rest of the evidence is more or less of formal nature. 4. When examined under Section 342 Cr JP.C. respondents other than Javed Iqbal and Nawaz, denied their participation in the occurrence and raised plea of false implication. Javed and Nawaz pleaded self defence. Muhammad Nawaz stated that:- "My factory of satainless steel is situated in Jinnah Colony. Adjoining to my factory there is factory of my brother Javed Iqbal co-accused. This factory is also of stainless steel. Muhammad Latif PW was working in my factory since last six months before this occurrence. This occurrence took ' place on 15.1.1985, at about 3.00 a.m. I had placed a cheque valuing about Rs.35,000/- and cash valuing about Rs.10,000/- in the drawer of my table in the presence of Latif PW. Latif PW, Muhammad Nawaz, worker, Noor ; Muhammad and Anwar worked till 10/10.30 p.m. At about 11/11.30 p.m.. I went to my bed which was lying in the verandah of my facotry. Nawaz worker, Noor Muhammad and Anwar went to the factory of , Javaid Iqbal my co-accused for sleeping there. At about 3.00 p.m. I felt that some body has inserted his hand into my pocket. I woked up and saw Muhammad Latif PW standing there. He was armed with a toka. Latif PW inflicted toka blow on right side of my cheek and demanded keys from me. I raised hue and cry which attracted Noor Muhammed, Anwar and Nawaz worker and Javed Iqbal my co-accused. The remaining part of my answer is the same as that of my co-accused Javaid Iqbal in answer to c question No.16". It may be noted here that Javed in question No.18 had further stated that on hearing the cries of his brother Muhammad Nawaz, he went to the factory of Muhammad Nawaz and saw Muhammad Latif inflicting injuries on the person of his brother. When he intervened Muhammad Latif gave Toka blow from his wrong side (on) his head. He raised alarm which attracted Anwar, Noor Muhammad and Muhammad Nawaz worker, who in order to save them inflicted injuries to Latif and Jarar Hussain PW. Dr. Nasrullah PW was produced to prove the injuries of the accused party. 5. On the report of the accused party, a case under Section 17 of Offence against Property (Enforcement of Hadood) Ordinance, 1979 and under Section 307 P.P.C. was registered against Muhammad Latif injured PW and others, on the following day of the occurrence. The present case was registered against the respondents after 7 days of the occurrence. Both the cases were challaned. Since in the counter case lodged by the accused party challan was submitted against the complainant party under Hadood Ordinance in the Court of Session, so the present case was sent up for trial before the same Court. 6. Disbelieving the prosecution case, the trial Court acquitted the respondents on 11.5.1986. Feeling aggrieved thereby, Muhammad Latif, Complainant, has filed this revision. The order dated 12.1.1987 of this Court shows that this revision was admitted to the extent of Javed Iqbal and Muhammad Nawaz, respondents. 7. Learned counsel for the petitioner submitted that the prosecution has proved its case against Javaid Iqbal and Muhammad Nawaz; that the prosecution evidence has been rejected without justification, that Latif (petitioner) (and) Jarar Hussain PW-4 are reliable witnesses and their statements are supported by the medical evidence; that the defence version was false; and that the learned trial Court has not appreciated the evidence properly. The learned counsel for the respondents has supported the judgment of the trial Court. 8. I have considered the submissions made by the learned counsel for the parties with care. I do not feel persuaded to agree with the learned counsel for the petitioner. I find that both the parties had received injuries during the occurrence; the accused party also received sharp edged injuries which have not been properly explained. The explanation given by the prosecution witnesses that the accused/respondents had received injuries at the hand of their companion on its face seems to be ridiculous. Muhammad Nawaz although armed with iron rod yet he did not cause any injury as stated by the prosecution. According to the prosecution, 25 injuries found on the person of Latif were caused by Javed Iqbal alone. Whereas according to the defence version injuries were caused by three persons in self defence. The trend of the statements of the eye-witnesses shows that they have given evidence with a motive other than of stating the truth. The learned trial Court has applied its conscious mind to the evidence on record and while appreciating the evidence in accordance with the well settled rules has given sound reasons for disbelieving the prosecution case. The judgment of the acquittal is neither perverse nor illegal. It is well settled that once an accused person is acquitted by a Court of competent jurisdiction then strong and exceptional grounds would be required for interference with the judgment of acquittal which I do not see in the case in hand. The submissions made by the learned counsel for the petitioner are devoid of force and substance. 9. Pursuant to the above discussion, there being no merit the revision application is dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 414 (DB) Present: muhammad MuNiR khan and muhammad amir malik, JJ MUHAMMAD BINYAMIN alias BUNCO and 7 others-Appellants versus THE STATE-Respondent Criminal Appeal No.1020 of 1988 (also Cr A.No.1102 of 1988 and Crl.Revision No.622 of 1988) decided on 27.2.1991 (i) Benefit of doubt— —Dacoity-Offence of~Acquittal from charge of-Challenge to~Although appellants were not previously known to complainant and eye-witnesses, yet no identification parade was held-There is no judicial guarantee that appellants and none else had committed dacoity in house of complainant—Held: If there is only one circumstance which creates a reasonable doubt in a reasonable and prudent mind about identity of accused, that may be sufficient for his acquittal- -Held further: No exception can be taken to acquittal of appellants, of charge under Sections 395 & 397 of PPC. [P.417]A (ii) Pakistan Penal Code, 1860 (XLV of 1860)- —S.411—Stolen property—Recovery of—Conviction for—Challenge to—FIR does not show which ornaments were taken away by offenders at time of dacoity- Story of recovery of ornaments of complainant is not in consonance with probabilities-Ornaments were allegedly taken away on 15.9.1987 whereas recovery was effected on 31.12.1987, i.e. after 3 anC a half months—Held: Prosecution has failed to prove recovery of stolen property from appellants beyond reasonable doubts-Appellants acquitted. [Pp.417&418]B,C&D Mr.Noor Muhammad Awan, and ChMuhammad Farooq, Advocates for Appellants. Sh.Ehsan Ahmad, Advocate for State. Date of hearing: 27.2.1991. judgment Muhammad Munir Khan, J.-Criminal Appeal No.1020 of 1988 filed by Muhammad Binyamin and seven others, appellants, Criminal Appeal No.1102 of 1988 filed by the State against the acquittal of Muhammad Binyamin and others, appellants, of the charges under Sections 395/397 PPC and Criminal Revision No.622 of 1988 filed by the complainant against the acquittal of the aforesaid appellants of the charges under Sections 395/397 PPC, arise from the judgment of learned Judge, Special Court for Speedy Trials, Faisalabad, whereby he on 26.9.1988, while acquitting the appellants of the charges under Sections 395/397 PPC, convicted them under Section 411 PPC and sentenced them to three years' R.I. each and a fine of Rs.15,000/- each, in default thereof nine months' R.I. each. We propose to dispose of the appeals and criminal revision through this single judgment. 2. The allegations against the appellants were that they on the night between 14/15th September, 1987, at about 1-0 a.m. in Mohalla Pughlanwala, Kamalia City, committed robbery in the house of Muhammad Nazir, caused injuries to Mst. Fatima and Fateh Muhammad and forcibly took away cash of Rs. 10,000/-, gold ornaments worth Rs.2,00,000/-, one 12-bore gun, one 32-bore revolver (licensed) of Muhammad Nazir PW. The stolen property (ornaments and Fire Arms) were recovered from their possession on 31-12-1987 at Bus Adda in Chak No.717/GB of Police Station Pir Mahal, District Toba Tek Singh. They denied the charges and claimed to be tried. 3. To prove its case, the prosecution produced seven witnesses. Muhammad Nazir PW-2 and Mst. Fatima PW-4 are the eye-witnesses of the occurrence. They stated that on 15-9-1987, the appellants entered their house duly armed, beat Mst. Fatima and forcibly took away cash and ornaments, which were subsequently recovered from them. Khalid Mahmood PW-6 is a Goldsmith. He had prepared the ornaments of Muhammad Nazir. He stated that the ornaments recovered from the appellants were prepared by him for Muhammad Nazir PW. Dr. Khalid Mahmood PW-1, medically examined Mst. Fatima and Fateh Muhammad PWs. He found four simple injuries caused with blunt weapon on the person of Fateh Muhammad PW and five simple injuries caused with blunt weapon on the person of Mst. Fatima PW. It may be noted that Fateh Muhammad, eye-witness of the occurrence has not been produced. Bashir Ahmad PW-3 and Muhammad Hanif Inspector (PW-7) are the witnesses of the recovery of the stolen ornaments and Fire Arms from the appellants. Muhammad Nazir PW-2 is also a witness of the recovery of the stolen ornaments from Ali Muhammad appellant. P.W.7 stated that, on 31-12-1987, he in the presence of Bashir Ahmad PW-3 had arrested the appellants from Chak No. 717/GB and recovered hand Purse P.23, gold Tikkas P.24 and P.25 gold ear-rings P.26/1-2, and P.27/1-2, gold Locket P.28 and gold ring P.29 from Binyamin, which were taken into possession vide memo Ex.P.G. On the same day, he recovered 12- bore stolen gun of Muhammad Nazir P.21 and five live cartridges P.22/1-5 from the possession of Muhammad Binyamin appellant, vide memo ExJP.F. On the same day, he recovered ten video cassettes P.I to P.IO, wrist watches P.ll and P.12 and gold ring P.13 from the possession of Ali Muhammad appellant and prepared recovery memo Ex.P.D. On the same day, he recovered video cassettes P.14 to P.18, wrist watch P.19 and gold ring P.20 from Muhammad Iqbal appellant and prepared recovery memo Ex.P.E. On the same day, he recovered, gold locket P.44, ear rings P.45/1-2, gold ring P.46, tune Piece P.47 and five video cassettes P.48/1-5 from Muhammad Arshad appellant and prepard recovery memo ExP.L. On the same day, he recovered taperecorder P.40, leather bag P.4L gold ring P.42, ear rings P.43/1-2 and parker pen P.53 from the possession of Meraj Din and prepared recovery memo Ex.P.K. On the same day, he recovered Camera P.49, wrist watch P.50, ring P.51 and gold ear rings P.52/1-2 from Nazir Ahmad appellant and prepared recovery memo Ex.P.M. On the same day, he recovered gold locket P.32, gold ear rings P.33/1-2, gold ring P.34, and Parker pens P35 and P.36 from Maqbool Ahmad appellant, vide memo Ex.P.I. He also recovered stolen licensed revolver P.30 of Muhammad Nazir and bullets P.31/1-5 from Maqbool Ahmad and prepared recovery memo. Ex.P.H. On the same day, he recovered gold ear rings Ex.P. 37/1-2, P.38/1-2 and Camera P.39 from the possession of Bashir Ahmad appellant, vide recovery memo Ex.P.J. All the Memoranda except memo Ex.P.D. were attested by Bashir Ahmad PW-3 and Muhammad Aslam (not produced). The recovery memo Ex.P.D. was. attested by Muhammad Nazir PW-2, Bashir Ahmad PW-3 and Muhammad Aslam (not produced). Muhammad Tufail ASI (PW-5) had drawn up formal F.I.R. Ex.P.C/1 on 15- 9-1987 at 5/6-0 a.m. at Police Station Kamalia on the basis of the written report Ex.P.C. of Muhammad Nazir PW-2. The distance between the Police Station Kamalia City and the place of occurrence is two kilometers. 4. When examined under section 342 Cr.P.C. the appellants denied all the incriminating circumstances. They did not produce any evidence in defence. 5. The learned trial Court was of the view that the prosecution had failed to prove the charge of dacoity against the appellants, but had successfully proved the charge of retaining the stolen property of Muhammad Nazir PW, against the appellants, so it acquitted the appellants of the charge under Sections 395/397 PPC and convicted and sentenced them, as stated above. 6. The learned counsel for the appellants submitted that the detail of the stolen property was not mentioned in the F.I.R.; that Bashir Muhammad PW is the brother of Muhammad Nazir complainant; that although Bashir Muhammad PW was present at the time of recovery and some of the stolen property was recovered from Ali Muhammad, in the presence of Muhammad Nazir complainant, yet the stolen property was taken into possession by Muhammad Hanif Inspector as a uspected stolen property under section 550 Cr.P.C; that the appellants were not previously known to Muhammad Nazir PW or toMst. Fatima PW. yet no identification parade was held; and that the prosecution has not been able to prove its case under Section 411 PPC beyond reasonable doubt. Conversely, the learned counsel for the State submitted that Muhammad Nazir and Sfst. Fatima PWs had no enmity to involve the appellants falsely in this cas£: that at the time of occurrence, there was sufficient electric light, so there was no difficulty in the identification of the culprits; that Bashir Muhammad PW and Muhammad Hanif. Inspector, had no motive to plant the recovery of the valuable ornaments on the appellants. 8. We have carefully considered the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements of the accused/appellants recorded under section 342 Cr.P.C. and the attending circumstances. As far the main crime of dacoity in the house of Muhammad Nazir PW, we feel that no exception can be taken to the acquittal of the appellants of the charge under sections 395/397 PPC for the reasons that although the appellants were not previously known to the complainant and the eye-witnesses and their names were not mentioned in the F.I.R., yet no parade for their identification was held in this case. So it cannot be said with judicial guarantee that the appellants and none-else had committed the dacoity in the house of Muhamamd Nazir PW. In order to give benefit of doubt to an accused person, it is not necessary that there should be more than one reasons circumstances. If there is one circumstance, which creates a reasonable doubt in a reasonable and prudent mind about the identity of the accused, that may be sufficient for his acquittal. 9. Adverting to the conviction of the appellants under section 411 PPC, we feel that the same is not sustainable inasmuch as the F.I.R. does not show which ornaments were taken away by the offenders at the time of dacoity. No doubt, Muhanimad Nazir, Bashir Muhammad, and Muhammad Hanif Inspector, had no animus against the appellants to involve them falsely in the case or to plant recovery of valuable ornaments on them, but the fact remains that want of interest or abs-ence of enmity does not stamp the statement of a witness with truth and it has to be seen by the Court as to whether or not the statement of a witness is in consonance with the probabilities, materially fits in the circumstances of the case and inspires confidence of truth in a reasonable mind. In the instant case, we find that the story of the recovery of ornaments of Muhammad Nazir complainant at the time of the arrest of eight appellants from their persons is not in consonance with the probabilities. The ornaments were allegedly taken away on 15-9-1987 whereas the recovery was effected on 31-12-1987 /.rafter three and a half months of the occurrence. So, it is not probable that all the appellants would be keeping the ornaments of their share with them and waiting at Bus Adda for their arrest by Muhammad Hanif, Inspector (P.W.7) to effect the recoveries from them. The culprits, whoever they were, would have distributed the looted property immediately after the occurrence and they would not have kept the same with them for three months in the ordinary course of events. The manner in which the alleged stolen ornaments and fire-arm have been recovered from the eight offenders simultaneously and from one and the same place runs counter to the natural probabilities and on the face of it appears to be concocted version. It is well settled that when the evidence of the recovery of stolen property is under scrutiny Court has to examine the evidence in the light of the following alternative hypothesis:- (1) "The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons. (2) The police might have obtained property similar to the stolen property from the complainant or someone else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another person. (4) The property might have (been) recovered from a third party and used by the police in one of the impugned recoveries". The ridiculous manner of the recoveries of stolen articles of one robbery from eight persons simultaneously does not exclude the aforesaid hypothesis and the possibility that the complainant might have been induced by the police at the time of recording the FIR to state, that fire-arms, were also taken away by the culprits, the possibility that the police might have obtained the alleged recovered ornaments from the complainant and used it for the purpose of fabricating recoveries against the appellants; the possibility that the police might have recovered the ornaments from one accused and utilized it in inventing recoveries from all the eight appellants, are very much there. For all these reasons we are of the view that prosecution has failed to prove the recovery of stolen property from the appellants beyond reasonable doubts. Pursuant to the above discussion, there being no satisfactory basis to uphold the conviction and sentence of the appellants under section 411 P.P.C., the appeal filed by them is accepted and they are acquitted of the charge. They shall be released forthwith, if not required to be detained in some other case. Consequently, the State appeal and revision filed by the complainant are dismissed. (MBC) (Approved for reporting) Appellants acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 419 Present: MUHAMMAD MUNIR KHAN, J MUHAMMAD ASHRAF alias ACHHU-Petitioner versus THE STATE-Respondent Criminal Revision No.25 of 1983, accepted on 26.2.1991 (i) Criminal Trespass- —Criminal trespass-Conviction for~Challenge to~Petitioner was not seen scaling over wall of house or entering into house or going on roof of house through stairs-Held: Climbing on roof is not a criminal trespass punishable under Section 448 or 451 PPC and petitioner could not be convicted under Section 451 PPC. [P.420JA&B (ii) Pakistan Penal Code, 1860 (XLVof 1860)-- —S.354--Outraging modesty of woman-Offence of-Conviction for-Challenge to-No independent witness has been produced to corroborate statement of prosecutrix-Only witness is her brother who admittedly did not make any statement before police-There was a delay of 8 days in lodging FIR-Held: Prosecution has not been able to prove its case beyond reasonable doubt- Petitioner acquitted. [P.420JC&D Mr.Muhammad Nasrullah Warraich, Advocate for Petitioner. Nemo for State. Date of hearing: 26.2.1991. judgment Muhammad Ashraf, petitioner, stands convicted under sections 451/354 PPC for criminal house trespass and for outraging the modesty of Mtf.Parveen PW-1 and sentenced to one year's R.I. on each count. 2. At the eventful time, .Mtf.Parveen PW was sleeping on the roof of her house. The allegations against the petitioner are that he went on the roof of the house and outraged her modesty. 3. To prove its case, the prosecution produced six witnesses. Mtf.Parveen PW-1 stated that on the night of occurrence, she was sleeping on the roof of her house. It was at 3-0 a.m. that she found the petitioner on the roof. The petitioner caught hold (of) her arms. On this, she raised alarm and the petitioner jumped into the adjoining house of Muhammad Iqbal PW. Muhammad Akbar PW-2 and Muhammad Iqbal PW 4 have supported the statement made by Mrf.Parveen. The rest of the evidence is of formal nature. 4. When examined under Section 342 Cr.P.C., the petitioner denied all the incriminating circumstances. He produced Muhammad Rashid DW-1 and Muhammad Yaqoob DW-2. 5. The learned counsel for the petitioner submitted that there was a delay of eight days in lodging the F.I.R; that the petitioner has falsely been involved in the case and that the prosecution has failed to prove its case beyond reasonable doubt. No one has appeared for the State. 6. I have considered the matter carefully. According to the prosecution version, the petitioner was not seen scaling over the wall of the house or entering into the house or going on the roof through stairs. He was simply found standing on the roof. I feel that the act of climbing on the roof is not a criminal house trespass punishable under sections 448 or 451 PPC. The relevant provisions of PPC may be produced conveniently:- "S.441.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". The words "enter into" or upon property of another are of great significance. This will show that the act of being present on the roof is neither entering into nor B entering upon the property, so the petitioner could not have been convicted under Section 451 PPC. 7. As far the conviction of the petitioner under Section 354 PPC, I find that no independent witness has been produced to corroborate the statement of Mst .Parveen. The only eye-witness is the brother of Mrt.Parveen, who admittedly had not made any statement before the police. Furthermore, there was a delay of eight days in lodging the F.I.R. This being the position, the prosecution has not been able to prove its case beyond reasonable doubt. 8. For what has been said above, the revision is accepted. The conviction and sentence of the petitioner is set aside and he is acquitted of the charge. He is on bail. He stands discharged of his bail bond. (MBC) (Approved for reporting) Petitioner acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C ( Lahore ) 420 Present: MUHAMMAD MUNIR KHAN, J Mst. BASHIRAN-AppeUant versus MUHAMMAD ABBAS -Respondents Criminal P.S.LA. No.7 of 1988, dismissed on 7.5.1991 Criminal Procedure Code, 1898 (V of 1898)- —S.203 read with Section 417—Complaint-dismissal of-Challenge to~ Whether appeal lies against order dismissing complaint-Question of-Order of dismissal of complaint under Section 203 Cr.P.C. is not an order of acquittal of charge-Held: No petition for special leave to appeal lies against such order- -Appeal dismissed. [P.421JA&B Nemo for Appellant. Ch.Inayatullah Cheema, Advocate for Respondents. Date of hearing: 7.5.1991. order Case called. Neither the appellant nor her learned counsel has appeared. Since the appeal cannot be dismissed for non-prosecution, so I have examined the case with the assistance of the learned counsel for the respondents. 2. The facts leading to this appeal, briefly, are that Mst. Bashiran petitioner filed a complaint under sections 307/148/149 PPC against Muhammad Abbas and four others respondents No.l to 5, in the Court of Magistrate Section-30, Sargodha. After making preliminary inquiry, the learned Judicial Magistrate dismissed the complaint under section 203 Cr.P.C. Feeling aggrieved thereby, Myf.Bashiran filed petition for special leave to appeal under Section 417 Cr.P.C. The leave was granted and the petition was converted into the present appeal. 3. The learned counsel for the respondents contended that no appeal lies against the impugned order whereby the complaint of the appellant was dismissed under Section 203 Cr.P.C. in as much as this order does not amount to an order of acquittal of the charge. 4. I feel persuaded to agree with him. There can be no two opinions that the order of the dismissal of complaint under Section 203 Cr.P.C. is not an order of acquittal of charge and, as such, no petition fdr special leave to appeal or appeal lies against this order. The present appeal is dismissed as being misconceived. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 421 Present: MUHAMMAD MUNIR KHAN, J IBRAHIM-Petitioner versus THE STATE-Respondent Criminal Revision No. 320 of 1988, dismissed on 3.4.1991 Pakistan Penal Code, 1860 (XLV of 1860)-- —S.420-Cheating--Offence of-Acquittal of respondent-Challenge to~Failure on part of respondent No.l to get land back to complainant or to return amount, does ot fall within purview of Section 420 PPC~Judgment of cquittal of respondent No.l is neither perverse nor illegal—Held: There are no strong grounds requisite for nterference with acquittal by court of competent jurisdiction-Petition dismissed. [Pp.422&423]A&B Mr.Ghulam Muhammad Sayed, Advocate for Petitioner. Mr.Maqsood Ahmad KJian, Advocate for State. Date of hearing: 3.4.1991. judgment Maqbool Ahmad, respondent, was tried under Section 420 PPC on the charge that in the year 1983, he received Rs.14,000/- from Ibrahim, petitioner/complainant, with the promise that he would get the land returned to him. He neither got the land returned to him nor did he return the money to him. The trial Court convicted him under Section 420 PPC and sentenced him to two years and 9-months R.I and a fine of Rs. 4000/- or in default thereof three months RI. Feeling aggrieved thereby, the respondent filed appeal against conviction and Ibrahim, petitioner/complainant, filed revision for the enhancement of sentence. The learned Additional Sessions Judge, Bhakkar, vide his judgment dated 10.9.1987, acquitted the respondent/accused and dismissed the revision of the complainant. Hence this revision by the complainant for setting aside the order of acquittal of the respondent. Learned counsel for the petitioner submitted that the prosecution has proved its case against the respondent beyond reasonable doubt; that the learned Appellate Court has not given any sound and cogent reason for setting-aside the judgment of conviction and that the case was not of the civil nature. Learned counsel for the State has supported the learned counsel for the petitioner. 2. I have considered the submissions made by the learned counsel for the parties. I find that the learned Appellate Court has applied its conscious mind to the facts and circumstances of the case and has acquitted the respondent for the reasons that there was a delay of two years in making report against the respondent; that the complainant has been changing his version from time to time; that the repondent being a canal Patwari was not in a position to get the mutation sanctioned or land returned to the complainant; that the allegations that the respondent received money with promise that he will get the land back to the complainant, do not constitute cheating as defined in Section 415 PPC and that the case seems to be of civil nature. The aforesaid reasons given by the learned Appellate Court find support from the evidence on record. On my independent assessment, I feel that the failure on the part of the respondent No.l to get the land back to the complainant or to return the amount which he (the respondent No.l) had received with the promise to get the land returned to him does not fall within the purview of Section 420 PPC. The judgment of acquittal of respondent No.l is neither perverse nor illegal. It is well settled that once an accused person is aquirted of the charge by a Court of competent jurisdiction, then strong and cogent grounds would be required for interference with the same, which I do not see in the case in hand. 3. Pursuant to the above discussion, I do not see any justification to interfere in exercise of the revisional powers of this Court with the well reasoned judgment of acquittal. The petition is, therefore, dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C. (Peshawar) 423 Present: ABDUL KARIM KHAN KUNDI, J ZIARAT KHAN-Petitioner versus KHADIM HUSSAIN-Respondent Criminal Misc. Application No.16 of 1991, dismissed on 13.4.1991 Self-defence- -—AggressoT-Qatl-i-Amad of—Whether right of self-defence was available-­ Question of-Court is to be guided by Injunctions of Islam in interpretation of "Qisas" and Diyat" law-fa Sharia, right of defence extends against one's person, property and honour and in most cases, it has been made obligatory on Muslims to discharge it as a uty-Held: Respondent's case being prima facie covered by exercise of right of self-defence against his own person and other persons a: hands of deceased, benefit of efence hall be tentatively extended to him. [P.425JA Afr..\funir Khan, Advocate for Petitioner. MrJehanzeb Rahim, Advocate for Respondent No.l. Mr.Khalid Khan, A.A.G. for State. Date of hearing: 13.4.1991. judgment I'ide F.I.R No.527 Police Station Kabli,Peshawar dated 2-11-90 Abdur Rashid brother of Khushdil deceased reported to Muhammad Ijaz Khan, A.S.I on patrol duty on the spot that he was present in his house when he heard the report of fire shots at which he came out of his house and went towards the Park Hotel, that he saw his brother the deceased firing and Khadim Hussain accusedrespondent, chowkidar of Park Hotel altercating with him, that meanwhile Khadim Hussain accused had also opened fire with a Double Barrel Shotgun, as a result Khushdil deceased was hit and died on the spot. He further stated that as a result of the fire shots of the deceased 2/3 passers-by were also injured who were taken to hospital for treatment. He reported his ignorance about the motive. 2. Vide F.I.R. No.528 Khadim Hussain accused had charged Khushdil deceased for making noise in intoxicant condition and earning a pistol in his hand, that he along others had come out of the hotel and the deceased started firing with his pistol at them, as a result of his fire shots Haji Said Muhammad and Muhammad All Afghan the servants of the hotel and another person were hit and Injured and accordingly hi defence of his person and the other persons he had opened fire at the deceased with his shotgun, as a result he was hit and fell on the ground. He charged the deceased for murderous assault on him and the injured. The two FJ.Rs were read by the learned Additional Sessions Judge, Peshawar as to pritna facie hold the deceased an aggressor and the accused an aggressed and accordingly released the latter on bail. 2. The deceased's father has filed an application for the cancellation of respondent's bail on grounds of direct charge, accused's admission of effective firing at he deceased but claiming self-defence, not allegedly supported by other evidence on record and that in either case the act of the accused-respondent was to fall under ection 303 P.P.C, punishable with imprisonment for life. However, ' -at the Bar the learned counsel for the petitioner confined his arguments to the prohibition of bail in the case with reference to Section 303 P.P.C whereunder 'Qatl' committed under 'Ikrah-i-tam' or 'Ikrah-i-naqis' was considered an offence, respectively punishable, with imprisonment upto 25 years and not less than 10 years and with punishment prescribed for the kind of 'QataP committed by him. He contended that the accused-respondent's case was covered by the prohibitory clause of sub-section(l) of Section 497 Cr.P.C. and he was not, therefore, to be released on bail in the facts and circumstances of the case. In fact, the learned counsel for the petitioner has referred to and relied on a wrong provision of law. It is not a case of coercion that the accused had committed the act without a consent and choice under a threat and duress but the accused has reportedly committed the 'Qatli Amad' of the deceased, the aggressor, in his own defence as well in the defence of others. Under Islam all defensive acts are lawful and the defender does not incur a criminal liability for such acts. True if the act of the defender exceeds the lawful limits it would be a crime and he would be accountable for his act. The sharia, however, warrants the defence of one's own life, property or honour against the aggressor and also authorises the protection of life and honour of others against the onslaught of the aggressor. 3. Under Section 338-F P.P.C in the Interpretation and application of the provisions of 'Qisas' and 'Diyat' law the court shall be guided by the Injunctions of Islam s laid down in the Holy Quran and Sunnah. Section 97 P.P.C vests a right of private defence in every person subject, no doubt, to the restrictions contained in Section 9 P.P.C to defend his own body, and the body of any other person, against any offence affecting the human body and so to defend the property, whether movable or immovable, of himself or of any other person, against any act amounting to an offence covered by the definition of theft, robbery, mischief or criminal trespass, or an attempt to commit such offences. In Islam too all the jurists are agreed that the defence against the aggressor is lawful to save not only one's own life, property and honour but also those of other persons from being wronged. In support reference is made to 2:194 of the Holy Quran "And one who attacketh you, attack him in like manner as he attacked you". There are also the traditions of the Holy Prophet (Peace be upon him) to the same effect. Hazrat Abdullah Bin Umar quotes the Holy Prophet P.B.U.H as saying: "A person whose property is being grabbed wrongfully fights to save it and if slain dies a martyr". There is another tradition of the Holy Prophet P.B.U.H. "Help your brother whether he is a wrong doer or is done wrong to "Again says the Holy Prophet P.B.U.H The believers co-operate with each other to combat those causing corruption. "In fact man made laws have very late conceded the defence the position of a right and still not duty, while the Sharia in most of the cases treats the defence as a duty to be discharged and in all cases as a right. 4. In short this Court is to be guided by the Injunctions of Islam as laid down in the Holy Quran and Sunnah in the interpretation of 'Qisas' and 'Diyat' law. In Sharia the right of defence extends against one's person, property and honour and also against the person, property and honour of others and in most cases it has been made obligatory on Muslims to discharge it as a duty. Thus after finding the accused-respondent's case prima facie covered by the exercise of right of defence against his own person and other persons at the hands of the deceased involved in indiscriminate firing there shall be tentatively extended the benefit of defence to the respondent and accordingly bail granted to uim by the Sessions Judge is not cancelled. Bail cancellation application is hereby rejected. (MBC) (Approved for reporting) Petition dissmissed.

PLJ 1991 Cr PLJ 1991 Cr.C. ( Peshawar ) 425 [Abbottabad Bench] Present: WALI MUHAMMAD KHAN, J SAJJAD alias JAIDA and another-Petitioners versus THE STATE-Respondent Criminal Misc. No.236 of 1990, dismissed on 1.4.1991 Desperate and hardened criminal-- —Offence Against Property-Prayer for bail under 3rd proviso to Section 497 of Cr.P.C.-Rejection of-Challenge to--Whether petitioners are desperate and ardened criminals nd as such not entitled to bail after expiry of statutory period-Question of--Under 3rd proviso to Section 497 of Cr.P.C., an accused can claim bail as of right after statutory period but this right is subject to not being a previous convict or a desperate, hardened or dangerous criminal—It can be inferred from FIRs refer:e.d to in impugned judgment that petitioners live on booty acquired from commission of thefts, robberies and dacoities— Held: Lower forum has rightly come to conclusion that petitioners by their conduct, have disentitled themselves to concession of bail. [P.429JA&B PLD 1990 SC 934=PLJ 1990 SC 1 and 1990 P Cr.LJ 822 rel. Mufti Muhammad Idris, Advocate for Petitioners. Mr.Muhammad Aslam KJian, AA.G. for State. Date of hearing: 1.4.1991. judgment On 13.4.1988, at midnight, Safdar Khan complainant, alongwhh Abdul Hamid, was present inside the room of Adnan Filling Station Petrol Pump Road , Nawanshehr, while Azizur Rehman watch-man was on duty outside. The accusedpetitioners alongwith their co-accused knocked at the door of the petrol Pump, pushed the same open and went inside. The other two went towards the watchman. The moment the two persons entered the room they ordered the complainant to handover the keys and cash to them which he did. Abdul Harnid tried to run out but he was fired at, hitting him on the chest. The other two started firing at the watch-man, hitting and injuring him on several parts of his body who chased them for some distance but succumbed to his injuries and died. The assailants took away 4/5 thousands Rupees. According to the description given by the complainant all the four were 'Pashtoon', youngmen and were fairly dressed and all of them were armed with pistols. The matter was reported by the complainant in Police Station Bagnotar which was recorded vide FIR No.64 under Section 17 (4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 302/307/34 PPC. 2. Since no body was charged in the FIR, no arrest could immediately be made. However, the occurrence being of serious nature, hectic search for the culprits was started by a team of Investiagating Officers which was constituted for the purpose by the Superintendent of Police. Ultimately the present petitioners namely, Sajjad alias Jaida and Mumtaz and their co-accused were arrested, two of them are still at large. In the course of investigation Sajjad petitioner made a confessional statement on 2.8.1988 in which he made clean breast of the occurrence, from the start to finish, involving himself, Mumtaz petitioner and the other two co-accused. Imtiaz the co-accused of the petitioners also made a confessional statement on 27.6.1988 who implicated Sajjad for the occurrence, giving him the role of entering the room of the petrol pump and firing therein. Both the petitioners were separately arrayed in regular identification parade in which the prosecution witnesses correctly identified them. The investigation apparently consumed sufficient time as the occurrence was of dead of night and the police had to make efforts to un-earth the culprits and also because they had to arrest the absconders one of whom is still at large. Any how, complete challan was put in Court and the learned Magistrate vide his order dated 21.12.1989 has sent up the accused for trial before the court of Sessions. The present petitioners submitted bail applications to the learned Additional Sessions Judge, Abbottabad solely on consideration of 3rd proviso to section 497 Cr.P.C. on account of their having remained in jail for two years, without regular trial. The learned Additional Sessions Judge vide his order dated 20,11.1990 declined to grant their prayer only on the ground that proviso 3rd of Section 497 Cr.P.C. was not attracted to them as they were hardened, desperate and dangerous criminals. Hence the instant application for bail on the same ground. 3. I have heard Mufti Muhammad Idris, Advocate for the petitioners, Mohammad Aslam Khan, AAG for the State and have perused the record of the case with thenassistance. 4. The learned counsel strenuously argued that the petitioners admittedly remained in Jail for more than 2 years without the commencement of the trial and that they are as of right entitled to be released on bail. According to him the exception appended to the Proviso that the benefit shall not be extended to hardened, desperate and dangerous criminals was not attracted to the petitioners ecause nothing was brought on the record to establish that they had been connected with any offence to dub them as such criminals. He, however, conceded that certain F.I.Rs have been brought on the file pertaining to the offences of similar nature but they are still sub-judice before competent courts of law and so long as they do not end in the conviction of the petitioners, they cannot be taken into consideration to deprive the petitioners of the benefits allowed to them by the law. 5. The learned Assistant Advocate General on the other hand submitted that the petitioners in view of the heinous nature of the instant tragedy and their involvement in other cases of similar nature, the trial Judge rightly dis-allowed them the concession of proviso 4th of Section 497 Cr.P.C. 6. I have considered the arguments of the learned counsel for the parties. 7. The learned counsel for the petitioners cited the judgment of the August Supreme Court in case Mounder and others Vs. Tlie State reported as PLD 1990 SC 934 = PLJ 1990 SC 1 and referring to the last sentence of head-note 'D' submitted that mere factum of registration of cases was not sufficient for the purpose of requisite opinion under the 4th proviso to section 497 (1) Cr.P.C. I have minutely gone through the same authority and I would like to quote a para from the said judgment as under:- "The word 'riminal' cannot be given a special meaning as a person already convicted of a crime for in that case, the category of previous convicts having been separetely mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the words under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be rendered completely redundant and meaningless. Therefore, opinion on this question cam be based upon the material available in the case under trial as well as any other material which may be produced by the prosecution to help the Court in formation of such opinion". It was thus left to the discretion of the Court to determine on the material available before it whether the accused falls in the category of hardened, desperate or dangerous criminal or not.8. In the case of Zulfiqar All and another vs. The State reported as 1990 Pakistan Criminal Law Journal page 822, a learned Judge of Karachi High Court after review of reported ases on the point observed as follows:-"Ordinarily the word 'or' used disjunctively. It is the duty of a Court to primarily adhere to the strict legal interpretation of the words used. The word 'or' used in the fourth proviso to Section 497 of the Code of Criminal Procedure, 1898, indicates an alternative. It, therefore, follows that a hardened, desperate or dangerous criminal need not be a previous convict. There is no better way of approaching the interpretation of a provision of law than to endeavour to appreciate the general object that it serves and to give its words their natural meaning in the light of that object. The primary duty of the Court is to find the natural meaning of the words used in the context in which they occur. The word'criminal' used in fourth proviso is, therefore, to be understood in its ordinary meaning, viz, a person involved in a crime. Clause (1) of section 110, Cr.P.C. may also be looked into with a view to find out the intention of the legislature in using the words 'desperate' or 'dangerous' in the fourth proviso. A person of desperate and dangerous character means a person, who has a reckless disregard of the safety and property of others. The characteristic of being a desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person has conducted himself at the time of commission of offence is also an important considerat on in arriving to a finding of this nature. The opinion of the Court to this effect which is always tentative in nature can be formed on the basis of:- (i) nature of accusation and conduct of accused at the time of alleged incident, (//) previous record of the accused which may include his earlier prosecution and (Hi) material placed before the trial Court like reports of concerned police and jail authorities. It is the cumulative effect of all the three aspects that may finally determine a tentative opinion in this behalf. It is thus apparent that an accused person charged with an offence punishable with death can claim his release on bail as of right if he has been detained for a continuous period exceeding 2 years and whose trial for such offence has not concluded, but this right is subject to the proviso that he is not (i) a previously convicted offender; (ii) or a person who, in the opinion of the Court is hardened, desperate or dangerous criminal. The plain meaning of the proviso obviously is that if he has a previous conviction to his credit, he will not be extended the concession at all. However, if he is alleged to be a hardened, desperate or dangerous criminal, the matter is left to the opinion of the Court to form a tentative assessment from the material on record, whether he falls in the category of hardened, desperate and dangerous criminal or not. In the instant case copies of the FIRs referred to in the impugned judgment of the Sessions Judge, prima-facie involve the petitioners in offences involving moral turpitude as well as of dangerous nature and it can be safely inferred therefrom that they live on the booty acquired from the commission of thefts, robberies and decoities and they do not deserve to be freed to indulge in their nefarious activities in the interregnum till the final disposal of the cases pending against them. The learned lower forums, have thus, from the tentative appraisal of the record, rightly come to the conclusion that the accusedpetitioners, from their conduct, have disentitled themselves to the concession of bail and I am not pursuaded to differ with them. Consequently finding no merit in the instant petition, the same is dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C( Lahore ) 429 [ Rawalpindi Bench] Present: gul ZARIN KlANI, J MUHAMMAD MUSHTAQ-Petitioner versus THE STATE and"another--Respondents Criminal Revision No.43 of 1991, accepted on 10.4.1991 Muslim Family Laws Ordinance, 1961 (VIII of 1961)- —S.7(2) read with Criminal Procedure Code, 1898, Sections 439 and 561-A-- Pronouncement of 7fl/fl<5<--Failure to intimate Chairman of Union Council-­ Conviction for-Challenge to~Petitioner proceeded abroad after his release on bail and did not return to appear in Court-Obviously petitioner is a fugitive from law and has no right of audience in court-Held: Criminal appeal could not be dismissed on a mere default in appearance and required decision on merits—Order of Sessions Judge dismissing appeal for non-prosecution set aside in exercise ofsuo motu powers under Sections 439 and 561-A of Cr.P.C. [Pp.430&431]A&B AIR 1952 Tripura 5, PLD 1956 FC 43, PLD 1969 SC 89, PLD 1981 SC 265, 1982 SCMR 818, PLD 1950 BJ 54, PLD 1960 (WP) Lahore 11, PLD 1970 SC 177 and 1986 SCMR 59 ref. Mr.Muhammad Munir Peracha, Advocate for Petitioner. MrMuhammad Nawaz Abbasi, A.A.G. for State. Date of hearing: 10.4.1991. order This is a petition for revision filed on behalf of Mohammad Mushtaq, who was tried and convicted for an offence under section 7 (2), of the Muslim Family Laws Ordinance, 1961 for failing to intimate pronouncement of divorce to the Chairman of the Union Council, and, sentenced to a term of one year simple imrisonment, and, a fine of Rs.5000/-, in default to a further simple imprisonment of three months, by the trial Magistrate on 6.1.1991. His conviction and sentence were confirmed by learned Sessions Judge, Attock, not on merits but by dismissing his appeal for want of prosecution on 28.2.1991. In course of appeal, on being released on bail by the learned Sessions Court, Mohammad Mushtaq proceeded abroad to Saudi Arabia and did not return to appear in Court. In this view, learned Sessions Judge took the view that "it is not denied that the appeal cannot be heard on merits in absentia" and, therefore, dismissed the same for want of prosecution. He is still at large and has chosen to file the revision through his real brother as a Mukhtar-e-Aam, who gave the power to Mohammad Munir Peracha, learned counsel to file the revision in Court for pursuing it further. Obviously, the petitioner is a fugitive from law. Therefore, he has no right of audience in Court through his counsel. In Haku Mia and others versus Tlie State of Tripura - - A.I.R. 1952 Tripura 5, it was held that:- "When a convict comes to Court on the revision side under S. 439, Criminal P.C. after the rejection of his appeal by the Sessions Judge, for setting aside his conviction without surrendering to his bail granted till the disposal of appeal, he has no right to be heard through his counsel. Under the circumstances this Court will not be justified in exercising its discretionary powers in favour of the petitioners." Nonetheless, the Court proceeded to examine the case on merits to prevent miscarriage of justice and finding none, declined to interfere. In Chan Shah versus Vie Crown - - P.L.D 1956 Federal Court 43, Gul Hassan and another versus Tlie State - - P.L.D 1969 S.C 89, Havat Bakhsh and others versus Tiie State - - P.L.D 1981 S.C 265, Ali Ahmad Sabri versus The State - - 1982 S.C.M.R 818, it was ruled that a fugitive from law had no right of audience in Court through his counsel. Equally important and well settled rule of law is that the Code of Criminal Procedure does not envisage or permit the dismissal of a criminal appeal for default in appearance, if it had not been dismissed summarily under section 421. Cases of Muhammad Yar versus Crown - - P.L.D 1950 Baghdad-ul-Jadid 54, Ghulam Muhammad versus Vie State - - P.L.D 1960 (W.P.) Lahore 11, Muhammad Ashiq Faqir versus Tlie State - - P.L.D 1970 S.C 177 and Muhammad Bakhsh versus The State - - 1986 S.C.M.R 59 are in point. Therefore, despite absence of the convict-appellant, and, even his counsel could not have led the Court to dismiss the appeal for default in appearance for it was its own duty to examine its merits and decide it; default of the appellant notwithstanding, which could have given rise to consequences in other directions. In presence of a clear rule that the fugitive from law had no right of audience in Court without first surrendering to it, learned Assistant Advocate General was called upon to render assistance to the Court. It was his view that the aforenoticed circumstance did not preclude the court to suo mom examine the merits of the impugned order and pass an order which the circumstances of the case and justice of the cause demanded As it is clear law that criminal appeal could not be dismissed on a mere default in appearance and required its decision on merits after it had crossed the hurdle of summary dismissal under section 421 Criminal Procedure Code, 1 would, in suo motti exercise of powers under section 439 Criminal Procedure Code read with section 561-A of the Code set aside the order of learned Sessions Judge to the extent of dismissing the appeal for want of prosecution and direct its decision on merits by him. As to that part of his order which dealt with a notice to the surety and consequent proceedings against him, presently, there shall be no interference and it shall remain intact and undisturbed. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C. ( Lahore ) 431 Present: MUHAMMAD MUNW KHAN, J OU DRATULLAH-Petitioner versus SIDDIQUE AHMAD e/c-Respondents Criminal Revision No.197 of 1987, dismissed on 3.4.1991 Revision- -—Complaint under Sections 302, 307, 326, 148, 149, 109 P.P.C. and Art.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979- Refusal to issue process to respondents—Challenge to—Held: No revision lies (before High Court) against order passed by Additional Sessions Judge in cases involving charge under Hudood Ordinance-Petition dismissed. [P.432JA Mr.RA.Awan, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 3.4.1991. judgement Qudratullah, petitioner, filed a complaint under Sections 302/307/326/452/148/149/109 PPC and under Article 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, against Siddiq Ahmad and 16 others, respondents No.l to 17, and 7 others, namely, Akbar Ali, Ali Muhammad, Fajroo, Nazir, Shamas Din, Zahoor Khan and Sakhawat, in the Court of Ilaqa Magistrate, Kasur, which was sent up to the learned Addl. Sessions Judge, Kasur, who after preliminary investigation, summoned seven co-accused but declined to issue process against respondents No.l to 17; hence this Revision petition. 2. I am afraid that no revision lies against the order passed by the learned Addl.Sessions Judge in cases in which one of the charge falls under the Hudood Ordinance. Under Article 203 (D) of the Constitution of Islamic Republic of Pakistan 1973, the revision lies before the Federal Shariat Court, so this revision is disposed of as being not maintainable. (MBC) (Approved for reporting) Order accordingly.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 432 Present: MUHAMMAD MUNIR KHAN, J AITEBAR SHAH-Petitioner versus AMIR SHAH and 3 others-Respondents Criminal Misc. No.l207/B of 1991, dismissed on 30.4.1991 Pre-arrest bail- —Murderous assault-Offence of~Grant of pre-arrest bail-Cancellation of- Prayer for-Strangely enough, -three respondents fired shots with their rifles at complainant, but e emained un-hurt and instead his sheep was hit and died~ Additional Sessions Judge applied his conscious mind and has given sound and cogent reasons in support of his rder-A/a/a fide on part of complainant was alleged before him-Held: There is no justification to cancel bail granted by Additional Sessions Judge to respondents 1 to 3. [P.433JA&B Mr.Mansoorur Rehman, Advocate for Petitioner. Mr.Ghulam Hussain, Advocate for Respondents. 1 to 3. Mr.C.M.Latif, Advocate for State. Date of hearing: 30.4.1991. order This is an application for the cancellation of bail granted to Amir Shah, Sikandar Shah, and Nazar Hussain, respondents 1 to 3, in a case under Section 324 of Qisas and Diyat Ordinance, 1990 and Section 429 PPC by the learned Additional Sessions Judge, Mianwali, vide his orders dated 28-1-1991 and 28-2- 1991. 2. According to the prosecution, Amir Shah, Sikandar Shah and Nazar ussain, respondents, launched murderous assault on Aitebar Shah, Mrf.Margana and Lai Bahadar on 18-12-1990 in the area of Majha Ghundi of Police Station Bhangi Khel, District Mianwali. They were armed with rifles. They raised Lalkara and opened fire on Aitebar Shah complainant. The persons present there took shelter hi the room and bolted the door from inside. The respondents then fired at the door of the room. The complainant and the persons present there remained unhurt but one sheep of the complainant was hit and died on the spot. 3. The learned counsel for the petitioner submitted that the pre-arrest bail has been allowed to the respondents without any legal and factual justification; that it was a case of prompt F.I.R. in which the names of the respondents were mentioned; that the respondents had fired at the complainant, but he luckily remained unhurt and that the respondents had not joined the investigation. The learned counsel for the respondents has supported the order of the learned AddLSessions Judge. 4. I have considered the submissions made by the learned counsel for the parties with care. I feel declined to interfere with the order granting pre-arrest bail to the respondents for the reasons that, strangely enough, the three respondents fired shots with their rifles at the complainant but he remained unhurt and instead his sheep was hit and died. It may (be) very easy to concoct such like allegations but very difficult to rebut the same. The learned Add.Sessions Judge was competent to grant pre-arrest bail to the respondents. He has applied his conscious mind to the facts and circumstances of the case and has given sound and cogent reasons in support f his order. The respondents had alleged mala fide on the part of the complainant party before the learned Addl. Sessions Judge. 5. Pursuant to the above discussion, I do not see any justification to cancel the bail granted to the respondents by the learned AddLSessions Judge. The application is dismissed. (MBC) (Approved for reporting) Application dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C. ( Lahore ) 433 Present: MUHAMMAD MUNIR KHAN, J PEHLWAN KHAN and another-Petitioners versus THE STATE-Respondent Criminal Misc. No.l602/B of 1991, accepted on 21.5.1991 BaiK- —Double murder-Offence of-Bail~Grant of—Prayer for~According to FIR, petitioners were present at place of occurrence and fired ineffective shots- During investigation, it was found that they ere detained in judicial lock-up in Azad Kashmir at time of occurrence-Allegations of conspiracy are not mentioned in FIR~According to report under Section 173 Cr.P.C. they have been .challaned n charge of conspiracy—Held: A case for grant of bail to petitioners is made out-Bail allowed. [P.435JA&B Kh. Sultan Ahmad, Advocate for Petitioners. Raja Muhammad Yaqoob Khan, Advocate for Complainant. Date of hearing: 21.5.1991. order This is an application for grant of bail to Pehlwan Khan and Ashiq Hussain, petitioners, in a case under Sections 302/148/149 PPC registered at Police Station Kharian, vide F.I.R.No.577 of 1990. 2. The prosecution case is that the petitioners and six others, in furtherance of their common object, committed the double murder of Raja Fazal Elahi and Sain Ahmad on 12-12-1990 near Sheerin Masjid Kharian. The co-accused, namely, Iftikhar Hussain and Abdul Rauf fired fatal shots hitting Raja Fazal Elahi and the co-accused, namely, Muhammad Arshad and Sana-ullah caused fire-arm wounds to Sain Ahmad deceased. The petitioners allegedly fired ineffective shots from rifles. 3. The investigation revealed that the petitioners were not present on the spot at the time of occurrence although they were party to the conspiracy of the murder of the deceased. 4. The learned counsel for the petitioners submitted that the petitioners have falsely been involved in the case; that they were not present on the spot at the time of occurrence; that at the time of occurrence, they were confined in the Jail situate in Azad Kashmir and the allegations that the two deceased were killed at the instance and with the connivance of the petitioners is after thought. 5. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed this application on the grounds that the bail cannot be granted on the plea of alibi; that the two eye-witnesses, namely, Abdul Ghafoor and Haq Nawaz, in their statements under Section 161 Cr.P.C., have stated that they had seen the petitioners firing ineffective shots at the time of occurrence; that it was a day time occurrence and there was no difficulty in the identification of the offenders and that the police has collected evidence in support of the charge of conspiracy against the petitioners. He has relied on cases P.L J 1974 S.C.40 and 1981S C M R 849. 6. I have considered the matter carefully. I feel persuaded to accept this application for the reasons that according to the F.I.R., the petitioners were present at the lace f occurrence and had fired ineffective shots, but during the nvestigation, it was found that the petitioners were not present on the spot, but, were detained in the Judicial lock-up in Azad Kashmir at the time of occurrence. The allegations that the petitioners were party to the conspiracy of the double murder, are not mentioned in the F.I.R. and that the report under Section 173 Cr.P.C. shows that the petitioners have been challaned on the charge of conspiracy and not on the charge of their presence and participation in the occurrence. 7. Without making any expression of opinion lest it may prejudice the merits of the case, I feel that a case for the grant of bail to the petitioners is made R out, so they will be released on furnishing bail bonds in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Kharian. (MBC) (Approved for reporting) Bail allowed.

PLJ 1991 Cr PLJ 1991 Cr.C( Lahore ) 435 [ Rawalpindi Bench] Present: SH.MUHAMMAD ZUBAIR, J GHULAM ABBAS SHAH and others-Petitioners versus THE STATE-Respondent Criminal Revision No.112 of 1981, accepted on 8.5.1991 Retrial- -—Offence of murderous assault—Conviction for—Challenge to—Retrial— Meaning and scope of-Word "retrial" has not been defined in Cr.P.C.— Cardinal principle of interpretation of Statutes is that, if a word is not defined in statute itself, then it must be given its ordinary dictionary meaning-­According to dictionary meaning, it meant denovo trial in this case-Held: Latter Magistrate did not comply with order of retrial and proceedings stood '•itiated--Held further: Judgment of appellate court is a judgment of a bias Judee and nullity in eye of law-Petition accepted. [Pp.437,438&439]A,B,C,D&E Black's Law Dictionary (5th Edition) ref. PLD 1954 Lahore 139 and PLD 1955 FC 185 rel. PLD 1969 AJ&K 12 distinguished. Haji Shamsuddin, Advocate for Petitioners. Mr.Muhammad Nawaz Abbasi, AA.G. assisted by Mr.Zaheer Ahmad, Advocate for State. Sardar Muhammad Ishaque Khan, Advocate for Complainant, Dates of hearing: 28.4.1991 and 8.5.1991. judgment This revision petition is directed against the judgment dated 17-8-1981 of the learned Sessions Judge, Attock, whereby he maintained the conviction of the petitioners under Section 307/34 PPC and their sentence of four years R.I.plus fine of Rs.1,000/- each; or in default six months R.I. awarded by the learned Magistrate, vide his judgment dated 29-4-1981. The co-accused of the petitioners were, however, acquitted. 2. The facts essential for the decision of this revision petition are that the petitioners and their co-accused were put on trial under Sections 07/149/148/452 PPC, before a Magistrate Section 30, Pindigheb, who vide his judgment dated 4-12-1980, acquitted them of the charges.Sher Shah complainant filed a revision petition against the acquittal of the petitioners and their co-accused before the learned Sessions Judge, Attock, who vide his judgment dated 24-3-1981, after going through the record and considering the arguments, opined: "... it is a case of not only of misreading of evidence but also nonappreciation of evidence. The omissions pointed out by the petitioner's counsel are so glaring that they cannot be easily ignored." The learned Sessions Judge, therefore, accepted the revision petition, set aside the impugned judgment, with the direction that "all the respondents shall be retried." He further directed that "As Mr. Muhammad Akmal Qureshi M.S.30 Pindigheb has already expressed his opinion on merits, the case shall now be tried by Rana Bashir Ahmad, M.S.30, Attock." 3. After this order, the case was taken up by Rana Bashir Ahmad, M.S.30. He questioned the petitioners and the co-accused whether they wanted to lead defence evidence or not. On the refusal of the petitioners and the co-accused to lead defence evidence, the learned Magistrate vide his judgment dated 29-4-1981, convicted and sentenced the petitioners, as indicated above. 4. The petitioners appealed whereas the complainant filed a revision petition for the enhancement of their sentence and for re-trial of the acquitted accused. Both the matters came up before the same learned Sessions Judge, who had earlier ordered re-trial. He vide his judgment dated 17-8-1981, dismissed both the appeal and the revision petition. 5. In appeal before the learned Sessions Judge, a legal objection of fundamental importance was raised that his order dated 24-3-1981, was not complied with by the learned Magistrate in letter and spirit, because no fresh evidence was recorded by him. The learned Sessions Judge, repelled this objection with the following observations:- The order of re-trial passed by this Court in the circumstances of the case did not mean denovo trial, because the first trial Court had already recorded the entire prosecution evidence The second trial court, therefore, did not commit any irregularity or illegality if it did not take recourse to denovo trial and proceeded to take up the case from the stage of arguments after ascertaining the option of the accused whether or not to produce further evidence in their defence." 6. Learned counsel for the petitioners strenuously contended that the impugned judgments suffer from the legal defects referred to above, because, the retrial in the circumstances of the case meant that the trial Court should hold the trial afresh and thereafter pass the order of acquittal/conviction in accordance with law. As the word retrial has not been defined in the Code of Criminal Procedure, the court must rely upon the dictionary meaning of the word retrial. Learned counsel referred to the ordinary dictionary meaning of the word retrial. In Black's Law Dictionary (5th Edition), re-trial, means:- "A new trial of an action which has already been once tried." He also placed reliance on Said Muhammad vs.The Crown (P.L.D. 1954 Lahore 139) and contended that where the appellate Court ordered re-trial and the Magistrate asked the accused whether they wanted to be re-tried and on their declining de novo trial, convicted them on evidence recorded in previous trial, the proceedings were not a re-trial. He further submitted that in view of the dictionary meaning mentioned above, the trial Court was bound to hold a fresh trial and after that he could pass either the order of acquittal or conviction in accordance with law. Learned counsel next contended that the learned Magistrate after the revisional order dated 24-3-1981,was not in a position to judiciously assess the evidence brought on the record, in view of clear observations made by the learned Sessions Judge, while upsetting the order of acquittal after discarding the appreciation of evidence made by the trial Magistrate hi the first instance. Thus subsequent trial on the same evidence was negation of fair trial by the latter Magistrate; hence the trial stood vitiated due to this legal lacuna which is not curable under the provisions of Section 537 Cr.P.C. Learned counsel further submitted that as the learned Sessions Judge has already expressed his opinion on the evidence already on the record so forcefully, therefore, in order to avoid any reasonable apprehension in the mind of the petitioners that they would not have an impartial decision from the learned Sessions Judge and also on the principle that "justice must not only be done but must manifestly be seen to be done", he should not have heard the appeal of the petitioners after the decision of the latter Magistrate. Learned Law Officer appearing for the State has supported the impugned judgment due to this fact that in view of the peculiar ircumstances of this case, what the learned Sessions Judge while ordering retrial meant was that the evidence already brought on the record, in conformity with law, hould be reappraised and the judgment may be written in accordance with law. Placed reliance on Muhammad Ashraf Khan vs. Mst.Resham Bi (P.L.D. 1969 Azad .& K.12). 7. Learned counsel for the complainant has urged that in the present case, no illegality was committed in the mode of trial, hence re-trial did not mean afresh or de ovo trial as contemplated under section 350 Cr.P.C. and if at all any illegality occurred in the mode of trial that stood cured under the provisions of Section 537 Cr.P.C. n nutshell he contended that what the learned Sessions Judge meant was that the latter learned Magistrate, after re-appraisal of evidence already on the record should re-write a judgment. With respect to the bias, learned counsel submitted that the learned Sessions Judge, while directing retrial has not expressed himself in such a strong manner which would amount to a direction to the learned Magistrate to convict the petitioners on the same evidence, hence the question of bias does not arise in the circumstances of the present case. Even the petitioners did not take up this objection berore the appellate Court that they had no confidence in the learned Sessions Judge due to commanding expression used by him regarding the quality of evidence while ordering retrial, hence they are legally debarred from taking up this objection before this Court at this belated stage. 9. I have considered the respective submissions of the learned counsel for the parties carefully. I find lot of force in the submission of the learned counsel for the etitioners that the word 're-trial' must be given its ordinary dictionary meaning, as it has not been defined in the Code of Criminal Procedure. The cardinal principle of interpretation of the Statute is that, if the word is not defined in the Statute itself, then that word must be given its ordinary dictionary meaning. As according to Black's Law Dictionary (5th Edition), retrial means "a new trial of an action which has already been once tried", thus in the present case, it meant de novo trial by the latter Magistrate. In- Said Muhammad vs. The Crown (P.L.D. 1954 Lahore 139), the learned Judge observed:- "But in this case the order was not that the retrial should take place from any particular stage of the case and in the absence of any such order, the retrial should have been of whole case."Respectfully following the above observations, I hold that the latter Magistrate did not comply with the order of the learned Sessions Judge, hence there had been no re-trial in this case and the subsequent proceedings stood vitiated as a whole due to this incurable legal defect. The case of Muhammad Ashraf Khan supra, relied upon by the learned Law Officer and the learned Counsel for the complainant is distinguishable on facts, as ij that case the defect was with respect to the tenor of the judgment, because it was not in conformity with the provisions of section 367 Cr.P.C., which requires that the judgment must contain points for determination, the decision thereon and reasons for the decision. It was in these peculiar circumstances that the learned Judges held that re-trial would mean the re-writing of the judgment on the same evidence without de novo trial. In the present case, there was no defect in the judgment, on the contrary, the learned Sessions Judge was not satisfied with the reasons given by the former trial Magistrate while acquitting the petitioners, hence re-trial in the present case, meant de novo trial. 10. I also find substantial force in the submission of the learned counsel for the petitioners, that due to the forceful expression used by the learned Sessions Judge regarding the quality of the prosecution evidence while setting aside the order of acquittal and ordering re-trial, no choice was left with the latter trial Magistrate to ndependently re-appraise the evidence as a fair minded judicial officer. In the present case, the learned Sessions Judge while ordering re-trial after discussing the evidence, observed, that the decision of acquittal has resulted nto miscarriage of justice, hence in view of the application of the legal maxim "that justice must not only be done but must also appear to have been done", the learnal Sessions Judge should not have heard the appeal of the petitioners in this case, hence the judgment of the ppellate Court is a judgment of a bias Judge and nullity in the eye of law. Reference in this connection be made to Anwar v. The rowi (P.L.D. 1955 F.C. 185). In the circumstances, the orders of the courts below due to the legal defects of such magnitude are not curable under section 53" Cr.P.C. and are not sustainable. 11. This brings me to the question whether in the present case, retrial should be ordered or not. I find that the petitioners were involved in this case in the year 1979, they have been prosecuting this ease since then in different forums and as such they suffered the ordeal of protracted trial, thus no useful purpose would be served by ordering retrial; hence while setting aside the impugned orders, and acquitting the petitioners I refrein from directing retrial in the interest of justice and fairplay. They are on bail and are discharged from their bail bonds. (MBC) (Approved for reporting) Petitioners acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 439 Present: muhammad amir malik, J SHAUKAT ALI--Petitioner verus KALSOOM AKHTAR and another- Respondents Criminal Misc. No.l5/T of 1991, accepted on 273.1991. (i) Muslim Family Laws Ordinance, 1961 (W.P.Ord VIII of 1961)- —S.6(5)~Bi-gamy~Offence of—Trial of—Whether District Magistrate could decline to hold trial-Question of--District Magistrate, as Collector, finds mention in Sections 6 nd 9 of Ordinance and Rule 6-A of Rules framed under Section 11 of Ordinance-There is no mention of Controlling Authority in Ordinance—Complaint against petitioner is dmittedly under Section 6<5) of Ordinance, wherein collector has no function at all to perform—Held; Reading Sections 6 and 10 of Cr.P.C. together, conclusion is rresistabk that designation as a District Magistrate would not take him out of category of Magistrates in District-Held further: Objection raised by District Magistrate declining to hold trial, is without any basis. [P.442JA.B&C (ii) Muslim Family Laws Ordinance, 1961 (W.P.Ord VIII of 1961)- —S.6(5) read with Criminal Procedure Code, 1898, Section 5-Bi-gamy-- Offence of-Trial of—Whether Sessions Judge could transfer case to District Magistrate for trial nd whether latter is subordinate to former—Question of— Section 5(2) of Cr.P.C. lays down that all offences under any other law, shall be investigated, inquired into, tried nd otherwise dealt with according to provisions of Code subject to any enactment regulating proceedings or dealing with such offences-Offence of bi-gamy is an offence nder special law and in view of Section 5(2) of Cr.P.C. is to be tried under Cr.P.C. by Illaqa Magistrate-Held: District Magistrate being a Magistrate in District, Sessions Judge could well transfer case to his court-Held further District Magistrate being a Magistrate in District for purposes of Section 528 (1-C) of Cr.P.C., is subordinate to essions Judge-Case transfered to court of Senior Civil Judge, as Section 30/Magistrate 1st Class. [Pp.442&443]D,E&F Mirza Muhammad Rashid Ahmad, Advocate for Petitioner. •' • Mr. Nazir Ahmad Ghazi, AA.G. for State. Ch. Sarfraz Ahmad, Advocate, with Mr. Imtiaz Ahmad Sadiq, District Magistrate, Okara. Date of hearing: 27.3.1991. order Mst. Kalsoom Akhtar respondent is the first wife of Shaukat Ali petitioner who contracted second marriage with Azra Perveen respondent on 24.3.1989. Mrt.Kalsoom Akhtar filed a petition with the Union Council for initiating proceedings under Muslim Family Law Ordinance 1961, against the petitioner. The same was forwarded to D.C. Okara who entrusted it to Malik Altaf Magistrate 1st Class for disposal. 2. Shaukat petitioner moved an application for the transfer of the proceedings under the Muslim Family Laws Ordinance 1961 from the Court of the said Magistrate to some other Court of competent jurisdiction, whereupon the learned Sessions Judge Okara, transferred the same to the Distt. Magistrate Okara. The latter vide its-letter dated 25.11.1990 returned the same to the learned Sessions Judge as according to him the case could not be transferred to him by the Sessions Judge. Thereupon the learned Sessions Judge without any demur entrusted it to the Court of Assistant Commissioner Okara. The petitioner has approached this Court for the transfer of the proceedings from the Court of Asstt. Commissioner Okara to some other Court of competent jurisdiction. 3. On 12.3.1991, the learned Asstt. Advocate General ppeared and in his presence the following order was recorded: "Learned AA.G wants further time to prepare up. Adjourned to 27.3.1991, Ostensibly it seems that the order of the Distt. Magistrate Okara dated 25.11.1990 whereby he flouted the order of the learned Sessions Judge transferring the case to him for trial, amounts to Contempt of Court. Issue show cause notice to him to explain his conduct personally in Court on the above said date." 4. In obedience to the notice, the Distt. Magistrate has appeared with his counsel. Learned counsel for the petitioner, for Afot.Kalsoom Akhtar respondent, the Distt. Magistrate and his counsel as well as the Asstt. Advocate General have been heard. 5. At the very out-set the learned Asstt. Advocate General frankly conceded at the bar that he could not support and defend the order of the Distt. Magistrate. The Distt. Magistrate in his order objected to the order of the learned Sessions Judge transferring the case to him and observed," it (the order of the essions Judge) is required to be rectifiedaccordingly...." His precise objections '"• ere a i The Distt. Magistrate, in his capacity as Controlling Authroity under the Muslim Family Laws Ordinance, had entrusted the complaint to the Kiaqa Magistrate and as such had the personal knowledge of the facts of The Distt. Magistrate was Collector as well and so Controlling Authority for the disposal of the cases under the Muslim Family Laws Ordinance, and Revisional Authority as well. The Distt. Magistrate was not a Court for the trial of the cases under the Muslim Family Laws Ordinance. The High Court, the Court of Sessions and the Court of the Magistrates •:Ist Class, 2nd Class and 3rd Class), are the category of Courts under Section 6 of the Code of Criminal Procedure, having ordinary and appellate jurisdiction; the Court of Distt. Magistrate was defined in Section 10 (1) of the Code, it was independent of the classes of Courts mentioned in Section 6. The Distt. Magistrate is the Controlling and Administrative Court for the criminal Courts of the Magistrates subordinate to the Distt. Magistrate (Section 12 and 17 of the Code). The Distt. Magistrate was not subordinate to the Sessions Judge (Section 17 of the Code was referred to). Claim was thrown that the Distt. Magistrate is not the Court of original jurisdiction, it was supervisory and having Administrative control. Section 192 of the Code was referred to in this respect. The Distt. Magistrate was appellate/revisional Court in view of the provisions of Sections 406, 406-A, 407 and 435 (2) of the Code. It was finally claimed by him, "Consequently one appellate Court (Sessions Court) under the general law cannot transfer a case to another Appellate/Revisional Court/Distt. Magistrate/Collector under the Special as well as General Law The case (pages 1 to 96) is, therefore, returned with the request to ntrust the same to some other Court of competent jurisdiction." 8. The order of the Distt. Magistrate is illegal, inappropriate and improper. There is no mention of any ontrolling Authority in the Muslim Family Laws Ordinance 1961. 'Collector' only finds mention in Sections 6 and 9 of the Ordinance and Rule 6-A of the Rules framed under ection 11 of the Ordinance. Under Section 6, the decision of the Arbitration Council (on any application for permission to contract second marriage during the subsistance of arlier one) can be brought before the Collector in revision. Order of the Arbitration Council for maintenance under Section 9 of the Ordinance is also subject to revision efore the Collector. Rule 6-A confers powers upon the Collector to appoint any other member of the Union Council as Chairman of the Aribtration Council in place of "Chairman" on the application of any party to the proceedings before the Arbitration Council. The complaint against the petitioner is admittedly under Section 6 (5) of the Muslim Family Law Ordinance. In a complaint/proceedings under Section 6 (5) of the Ordinance, the Collector as such has no function at all to perform. Hence the objection raised by the Distt.Magistrate declining to hold the trial is without any basis in view of the provisions of the Ordinance. 9. The category of Courts including those of the Magistrates have been given in Section 6 of the Code of Criminal Procedure. Section 10 requires the Provincial Government to appoint a Magistrate of the 1st Class to be called the DistlMagistrale. Reading the two sections together, the conclusion is irresistible that the designating a Magistrate 1st Class as a Distt. Magistrate would not take him out of the category of Magistrates in the District. 10. All offences under the Pakistan Penal Code are to be investigated, inquired into and tried in accordance with the provisions of the Code of Criminal Procedure. Section 5 (1) ibid clearly so provides. In sub-Section (2) it is further laid down that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The offence of bi-gamy under Section 6 (5) of the Muslim Family Laws Ordinance is an offence under a Special Law, but neither in the Ordinance or the Rules framed thereunder any seperate Court or pr&cedure for trial is indicated. So in view of the provisions of sub-Section (2) of Section 5 of the Code, it is to be tried in accordance with the provisions of the Code. Section 177 ibid requires that every offence shall ordinarily be tried by a Court within the local limits of whose jurisdiction it was committed. The offence under Section 6 (5) of the Ordinance would thus be triable by the Illaqa Magistrate in whose jurisdicdtion it has allegedly been committed. Vie Distt.Magistraate being a Magistrate in the Distt. the Sessions Judge could well transfer the case to his Court as he can from the Court of one Magistrate to that of another in the Distt. Sub-Section (1-C) of Section 528 of the Code makes the position very much clear. Under it, Sessions Judge may withdraw any case from or re-call any case which he had made over to any Magistrate subordinate to him and may refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. Explanation to the sub- Section reads, "All Magistrates (which would certainly include Distt. Magistrate) shall be deemed to be subordinate to the Sessions Judge for the purpose of this sub-Section." 11. The Distt.Magistrate being a Magistrate in the District for the purpose of I Section 528 (1-C) is subordinate to the Sessions Judge, who can thus entrust any E case to him for inquiry and trial or withdraw the same. The order of the Distt. I Magistrate was, therefore, illegal, improper and inappropriate. 12. It is asserted and not denied at the bar that Mst.Kalsoom Akhtar is connected with Addl. Deputy Commissioner (G) of the Distt. So the case pending in the Court of Asstt. Commissioer Okara, is withdrawn from his Court and is transferred to the Court of Senior Civil Judge Okara, as Magistrate Section- 30 Magistrate 1st Class. The petition is disposed of. (MBC) (Approved for reporting) Case transferred.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 443 Present: MUHAMMAD MUNIR khan, J SHARAFAT HUSSAIN-Petitioner versus THE STATE-Respondent Criminal Misc. No.l34/Q of 1990, accepted on 17.7.1991. Quashment- —Criminal case—Conviction set aside and case remanded for retrial—17 years old case but trial not concluded-Prayer for quashment of proceedings- Petitioner cannot be lamed for delay in decision of case—One member of raiding party has died and cannot be examined after remand—Complainant does not want to pursue case any further- eld: Proceedings against petitioner in Court of Special Judge, Anti-Corruption, amount to an abuse of process of Court—Proceedings quashed. [P.444]A Ch. Waheeduddin Virk, Advocate for Petitioner. Nemo for State. Date of hearing: 17.7.1991. judgment The facts giving rise to this petition for quashment of proceedings in a case under section 161 P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947, briefly are that Sharafat Hussain, Registration Clerk, was working as Registration Clerk in Tehsil Office Narowal. He allegedly demanded illegal gratification, so a raid was conducted on him on 31.12.1974 and two currency notes of Rs.50/- each were recovered from a wooden box lying in the Office. He was arrested and tried by Special Judge Anti-Corruption,^ Lahore . On 29.10.1977, he was convicted and sentenced to one year R.I. and a fine of Rs.1000/- or in default thereof 6 months R.I. On appeal, the case was remanded back to the trial Court vide order dated 1.7.85 of this Court. Although about 6 years have passed, yet the trial Court has not decided the case, hence this petition for quashment under section 561-A, Cr.P.C. 2. Learned counsel for the petitioner submitted that the offence was llegedly committed in the year 1974 and about 17 years have passed, yet the trial has not concluded without any fault of the petitioner and that the complainant Muhammad Sharif does not want to pursue the case and Raja Muhammad Ayyub member of the Raiding Party has died. Learned counsel for the State has opposed this petition. 3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the occurrence took place in the year 1974; hat 17 years have passed, yet the trial has not concluded; that the petitioner cannot be blamed for this delay in the decision of the case; that Raja Muhammad Ayyub, Inspector, the member of the Raiding Party has died and cannot be examined after the remand of the case and that Muhammad Sharif complainant has sworn affidavit to the effect that he does not want to pursue the case any further. For these reasons, I feel that the proceedings against the petitioner in the Court of Special Judge Anti-Corruption, Lahore amount to an abuse of the Process of Court, so the same are quashed. (MBC) (Approved for reporting) Proceedings quashed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 445 Present: muhammad munir khan, J GULSHER and 3 others-Petitioners versus THE STATE-Respondent Criminal Misc. No.l782/B of 1991, accepted on 1.7.1991. Hail- —Offence under Section 302 PPC-Bail-Grant of--Prayer for-There is no eye­ witness of occurrence—Doctor was not certain as to whether or not injury found on person of deceased, was antc-mortem—Evidence of last seen was recorded by police after eight and a half months and extra-judicial confession was recorded after nine months-Held: It can be said that there are not reasonable grounds within meaning of Section 497 Cr.P.C. to believe that Petitioners have committed alleged crime-Bail allowed. ' [P.446]A,B&C Mr. Muhammad Azam Bhor, Advocate for Petitioners. Mr. Abdul Qayyum Anjwn, Advocate for State. Date of hearing: 1.7.1991. order This is an application for the grant of bail to Gul Sher, Shamsher, Sikandar and Zafar, petitioners in a case under sections 302/34 PPC registered at Police Station Toba Tek Singh, vide FIR No.116 dated 27.5.1990. 2. According to the F.I.R. the dead body, was found lying in a field on 23.4.1990 in the area of Chak No.377/GR of Police Station Saddar Toba Tek Singh, so a case against unknown culprits was registered after proceedings under section 1~4 Cr.P.C. During the investigation, the police collected evidence of last seen supported by Dildar and Umar Hayat and evidence of extra judicial confession furnished by Muhammad Rafiq and Mahmood Ahmad, so the petitioners were arrested. Sota was recovered from Zafar, petitioner No.4, and the Challan was submitted in the Court. 3. The learned counsel for the peitioner submits that there is no direct evidence against the petitioners; that the evidence of last seen was recorded after eight and a half months of the occurrence and the evidence of extra judicial confession was recorded by the police after nine months of the occurrence and that from the Medical evidence, it is not clear as to whether or not the injury found on the person of Munir Ahmad deceased was ante-mortem or post­ mortem; that the Sola recovered from the petitioner was not stained with blood. Conversely, the learned counsel for the State has opposed this application on the ground that the witnesses namely, Mahmood Ahmad, Muhammad Rafiq, Dildar and Umar Hayat had no motive to involve the petitioners falsely in the case; that after investigation, the Challan has been submitted against the petitioners in the Court and that Sota has been recovered from Zafar petitioner. 4. I have considered that matter carefully. I find that there is no eye-witness of the occurrence; that in his report, the doctor has stated that "as the dead body was n decomposition process, so it is impossible to give opinion about the fracture of skull or that this injury is ante-mortem or post-mortem". Feeling not satisfied with this pinion, the Investigating Officer made further query on which the doctor stated that "I am of the opinion that if probably the cause of death in this case was hamorrhage nd shock due to already mentioned fractured skull and most probably this injury was inflicted during the life of the person". The opinion expressed by the Medical Officer re-produced above will show that atleast the doctor was not certain as to whether or not the injury found on the person of the deceased was ante-mortem; that the evidence of last seen was recorded by the police after eight and a half months of the occurrence and that the evidence of extra judicial confession was recorded by he police after nine months of the occurrence. 5. Without expression of opinion, lest it may prejudice the merits of the I case, I feel that in view of the opinion of the doctor as to whether or not the injury J found on the person of the deceased was ante-mortem and the inordinate delay in recording the statements of the witnesses of last seen and of extra judicial confession, it can be said that there are not reasonable grounds within the meaning of section 497 Cr.P.C. to believe that the petitioners have committed the alleged crime. Pursuant to the above discussion, this application is accepted and the petitioners are allowed bail in the sum of Rs.20,000/- each with one surety each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Toba Tek Singh. (MBC) (Approved for reporting) Bail allowed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 446 Present: MUHAMMAD MUNIR KHAN, J KHALID JAVID VIRK-Petitioner versus THE STATE-Respondent Criminal Misc No. 2200/B of 1991, accepted on 1.7.1991 Baii- —Offences under sections 365,506,427,380,148/149, 452/109 PPC read with S.342 of Qisas & Diyat Ordinance, Ss.14/17 of Offences Against Property (Enforcement of Hadood) Ordinance and S.13 of Arms Ordinance, 1965- Bail--Prayer for--According to version of eye-witnesses, petitioner was present at spot and physically committed crime-According to investigation, he was not present at spot although he was responsible for commission of crime which was committed at his instance and with his connivance—Held: It is yet to be determined as to which of two versions was/is correct-Bail allowed. [Pp.447&448]A&B M/s Klialid Ranjha and Muhammad Akbar Tarar, Advocates for Petitioner. Mirza Rashid, Advocate for State. Date of hearing: 1.7.1991. order This is an application for grant of bail to Khalid Javed Virk, petitioner, in a case under Sections 365/506/427/380/148/149/452/109 PPC and Section 342 Qisas and Diyat Ordinance and Section 14/17 of offences against property (Enforcement of Hadood) Ordinance, 1979 and Section 13 of the Arms Ordinance, 1965, registered at Police Station Allama Iqbal Town, Lahore, vide FIR No.205 dated 8.5.1&1. 2. According to the FIR about 150 persons variously armed forcibly took possession of the property of complainant, abducted Sajid, M$r.Rubbina and Msf.Suraya, took away the dowery of Afr/.Rubbirfa, criminally intimidated the complainant party and indulged in indiscriminate firing. According to the statements of the eye-witnesses recorded under Section 161 Cr.P.C., the petitioner was very' much present on the spot at the time of occurrence and had actively participated in the commission of the crime. Zaheer Ahmad ASI, after inspecting the police file stated that according to investigation conducted by Mr.Shafaqat DSP, Police Station Ichhra, the petitioner was not present on the spot at the time of occurrence although he was responsible for the crime committed at the eventful time. 3. Learned counsel for the petitioner submitted that the offences other than Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance. 1979. do not fall within the prohibitory clause of Section 497 Cr.P.C.; the allegations that the petitioner was present on the spot and had participated in the occurrence were found false during investigation; that there is no cogent evidence to the effect that the crime was committed at the instance and with the connivance of the petitioner and that he co-accused Muhammad Rafiq, Assistant Commissioner against whom the allegations are identical has already been released on bail by this Court. Conversely, the learned counsel for the State has opposed this application on the ground that serious crime was committed by the co-accused at the instance/instigation/connivance of the petitioner. 4. I have considered the submissions made by the learned counsel for the parties with care. I find that the name of the petitioner is not mentioned in the FIR; that the eye-witnesses of the occurrence stated that the petitioner had come to the spot alongwith the co-accused and had physically participated in the occurrence but the Investigating Officer/DSP has come to the conclusion that the petitioner was not present on the spot at the time of occurrence although the offence was committed at his instigation and with his connivance; that the abducted persons were released after the occurrence at some distance from the place of occurrence; that the stolen property has not been recovered from the petitioner; that having been sent to jail, he is not required to the police for investigation. Be that as it may, the fact remains that there are conflicting prosecution versions. According to the version supported by the eye-witnesses, the petitioner was present on the spot at the time of occurrence and had physically committed the crime. According to the investigation, he was not present on the spot at the time of occurrence although he was responsible for the commission of the crime, which was committed at his instance and with his connivance. So it is yet to be determined as to which of the two versions was/is correct. Without making any expression of opinion, lest it may prejudice the investigation or the trial, I feel that a case for grant of bail to the petitioner has been'made out. So he will be released on furnishing bail-bonds in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Saddar, Lahore . (MBC) (Approved for reporting) Bail allowed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 448 Present: muhammad munir khan, J MUHAMMAD RIAZ-Petitioner versus THE STATE-Respondent Criminal Revision No.217 of 1989, accepted on 6.5.1991. Re-trial-- —Murder case-Petitioner tried with co-accused but acquitted-On appeal of co-accused, case remanded for retrial-Petitioner again summoned for retrial-­ Revision against- cquittal of petitioner was not challenged in appeal or revision-High Court had not specifically directed for retrial of petitioner after remand-Held: Retrial of petitioner under ection 403 of Cr.P.C. for same offence, is not possible-Petition accepted. [Pp.449&450]A&B Ch. Ghulam Bari Saleemi, Advocate for Petitioner. Rana Muhammad Arshad Klian, Addl A.G. for State. Date of hearing: 6.5.1991. judgment The facts leading to this criminal revision briefly are that Muhammad Riaz, petitioner alongwith Saleh Muhammad, Imtiaz Ahmad and Fiaz Ahmad was tried under Section 302/307/34 PPC for the double murder of Asghar Ali and Inayat Ali and murderous assault on Muhammad Tufail and Muhammad Aslam, PWs, by learned Additional Sessions Judge, Kasur, who vide his judgment dated 24th November, 1984 acquitted Muhammad Riaz, petitioner but convicted the others under Section 302/307/34 PPCand sentenced them as under:- (/) Saleh Muhammad and Imtiaz Ahmad under Section 302/34 PPC to death sentence and a fine of Rs.5000/- or in default thereof two years RI. (ii) Fiaz Ahmad under Section 302/34 PPC to imprisonment for life and a fine of Rs.5000/- or in default thereof two years RI. (///) all the petitioner/convicts, under Section 307/34 PPC to five years RI each and a fine of Rs.1000/- each or in default thereof one year RI each. All the sentences were ordered to run concurrently. 2. The convicted accused filed criminal appeal No.705/84 which was heard alongwith murder reference No.72/85 by the Division Bench of this Court, and was accepted on 28.5.1988 on account of the violation of the mandatory provisions of Section 367 Cr.P.C. and of Rule 5 Chapter 19-A of the High Court Rules and Orders Volume III and the case was remanded to the trial Court with the directions to decide the same in accordance with law and the evidence already recorded after hearing arguments. It may be noted here that no appeal or revision was filed by the State/complainant against the acquittal of Muhammad Riaz, petitioner, and nothing was observed against his acquittal in the judgment dated 25.5.1983 of the appellate Court (High Court). On remand, the learned trial Court/Additional Sessions Judge, Kasur, not only summoned the convicted accused namely Saleh Muhammad, Imtiaz Ahmad and Fiaz Ahmad but also summoned the petitioner to face the trial. In pursuance of the process issued by the trial Court, the petitioner entered appearance on 7.7.1988. The trial Court framed the charge not only against his co- accused but also against him. Hence this revision. The learned counsel for the petitioner has relied on 1970 SCMR page 189. to contend that since the acquittal of the petitioner by the trial Court vide its order dated 24.11.1984 has not been set-aside and holds field therefore, the trial Court could not have summoned the petitioner as an accused. Learned counsel for the State is not in a position to controvert him. \Ve have considered the matter carefully. We feel persuaded to agree with the learned counsel for the petitioner. We find that the petitioner was tried alongwith the co-accused and was acquitted of the charge. His acquittal was not challenged in appeal or revision. While deciding the appeal against the conviction and sentence of the cocused, this Court had not specifically directed for the retrial of the petitioner. In this view of the matter, we feel that under Section 403 of the Cr.P.C, the re-trial of the petitioner for the same offence is not possible. Section 403 Cr.P.C. reads as under:- S.403--(l) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under Section 235 sub-section(l). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897, or Section 188 of this Code. 6. Pursuant to the above discussion, this revision is accepted and the order of the trial Court dated 18.6.1988 whereby the petitioner was summoned to face trial in the case and the charge framed against him on 7.7.1988 are set-aside. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 450 Present: MUHAMMAD MUNIR KHAN, J RAMZAN and another-Petitioners versus THE STATE-Respondent Criminal Revision No.223 of 1983, accepted on 29.5.1991 Pakistan Penal Code, 1860 (XLVof 1860)-- —-Ss.224&225--Resistence to lawful apprehension-Offence of~Conviction for~ Challenge to--No warrant for arrest was issued by Naib Tehsildar--No attempt was ade to recover land revenue by attachment of crops-Although 12 persons allegedly launched attack but not a single person received any injury-­ tatements of eye- itnesses have not been acted upon to extent of 10 acquitted accused-It is doubtful whether Naib Tehsildar could straightaway order arrest of Petitioner No.l, defaulter- eld: Giving them benefit of doubt, petitioners are acquitted. [P.452JA&B Mr. KJiizar Abbas KJian, Advocate for Petitioners. Mr. Aziz Ahmad Chughtai, Advocate for State. Date of hearing: 29.5.1991. JUDGNfENT Ramzan and Murad petitioners alongwith 10 others were tried under Sections 506/342/148/149 P.P.C. by Magistrate Section 30, Jhang. 2. The prosecution case was/is that Muhammad Ramzan accused/appellant had to pay Rs.30/- as land revenue in May, 1981. He was defaulter in payment of land revenue. On 26.5.1981, Abdul Razzaq, Naib Tehsildar alongwith Ghulam Farid Girdawar and Dilmeer Peon and Ghulam Muhammad Peon, joined Muhammad Ali ambardar of village Sher Garh to effect the recovery of arrears of land revenue. Naib Tehsildar summoned Muhammad Ramzan through his peons and demanded the arrear of Rs.35/- from him. Muhammad Ramzan allegedly refused to pay the arrears or produce any surety. Abdul Razzaq, Naib Tehsildar declared that he (Muhammad Ramzan) was under arrest. Before Muhammad Ramzan could physically be taken into custody, Murad appellant came there, raised lalkara upon which 10 acquitted accused came there and launched attack on Naib Tehsildar and his companions. Thereafter, Muhammad Ramzan made good his escape. The petitioners and their co-accused denied the charge. 3. To prove its case, prosecution produced 8 witnesses. Ghulam Farid Girdawar PW.l supported the prosecution case as stated above. He further stated that the appellants and his co-accused had abused the Naib Tehsildar and his companions and rescued Muhammad Ramzan from the lawful arrest. Ghulam Qasim PW.2, Ghulam Muhammad PW.3, Dilmeer PW.4, Muhammad Ali Lambardar PW.8 and Abdul Razzaq, Naib Tehsildar PW.15 have supported the prosecution case in all material particulars. The rest of the evidence was/is of formal nature. 4. When examined under Section 342 Cr.P.C., the petitioners and their coaccused denied the incriminating circumstances. They produced Raja DW.l. 5. While acquitting the 10 co-accused, the trial Court convicted Muhammad Ramzan petitioner under Section 224 and Murad under Section 225 P.P.C. and sentenced them to 2 years R.I. each. The appeal filed by the petitioners was dismissed by the learned Sessions Judge, Jhang on 21.3.1983. 6. Learned counsel for the petitioners submitted that the prosecution has failed to prove its case beyond reasonable doubts; that there was no warrant for the arrest of the petitioners; that Muhammad Ramzan having not been physically taken into custody, no offence punishable under Section 224 or 225 P.P.C. was made out and that the order of the Naib Tehsildar for the arrest of Muhammad Ramzan petitioner was illegal. Learned counsel for the State has supported the conviction and sentence of the petitioners. 7. I have considered the matter carefully. I feel persuaded to accept this revision for the reasons that no warrant for the arrest was issued by the Naib Tehsildar; that no attempt was made to recover the land revenue by attachment of the crops before giving oral order for the arrest of petitioner; that although 12 persons allegedly launched attack on Naib Tehsildar and his companions yet not a single person received any injury during the occurrence; that the statements of the eye-witnesses have not been acted upon to the extent of 10 acquitted accused and that it is doubtful that the Naib Tehsildar could straight away order the arrest of Muhammad Ramzan efaulter.Pursuant to the above discussion, the revision is accepted. Giving them the benefit of doubt, the petitioners are acquitted of the charge. They are on bail. They stand discharged of the bail-bonds. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 452 (DB) Present: muhammad munir khan AND rashid Aziz KHAN, JJ RAMZAN alias JANA-Appellant versus THE STATE-Respondent Criminal Appeal No.428 of 1990, accepted on 13.7.1991 Benefit of doubt-- —Un-licensed firearms-Recovery of-Conviction for-Challenge to-When Police raided Chak Jamanwala, appellant was sleeping in an open place on a cot and stengun itted with magazine containing twenty bullets, was lying by his ight side-Held: In case of a sleeping person, it is doubtful that possession of firearms by his side, would e a conscious possession for purpose of his conviction for keeping or holding un-licensed firearm-Benefit of doubt extended and appellant acquitted. [Pp.453&454]A&B Sardar Shaukat Ali, Advocate for Appellant. Haji Fazalur Rehman, Advocate with Mr. I/fan Qadir, Addl A.G. for State. Date of hearing: 13.7.1991. judgment Muhammad Munir Khan, J:--This criminal appeal No.428 of 1990 arises from the judgment of Presiding Officer (of Special Court) (Suppression of Terrorist Activities), Lahore, whereby he on 2.7.1990, convicted Muhammad Ramzan alias Janon under Section 13 of the Arms Ordinance, 1965, and sentenced him to five years' R.I. and a fine of Rs.10,000/- or in default thereof one year's R.I. 2. The charge against the appellant was of keeping unlicensed stengun P.I fitted with magazine containing twenty bullets P.3/1-20 on 21.7.1988. He denied the charge and claimed to be tried. 3. To prove its case, the prosecution produced three witnesses. Muhammad Hussain H.C. (PW-3) had prepared the formal F.I.R. Malik Muhammad Ashiq PW-1 and Muhammad Akram Inspector (PW-2) are the witnesses of recovery. They stated that on 21.7.1988 when they raided Chah Jumanwala situated in the area of Village Phyal Kalan, they found Muhammad Ramzan appellant sleeping on a cot with unlicensed stengun P.I and bullets P.3/1-20 lying on his right side, which were taken into possession vide memo. Ex.P.A. attested by them. 4. When examined under Section 342 Cr.P.C., the appellant denied the recovery of unlicensed stengun and bullets from him. He raised the plea of false implication by the police with the connivance of his opposite party. He appeared in defence and made statement under Section 340(2) Cr.P.C. He produced certified copies of the reports under Section 173 Cr.P.C. Ex.D.A. to Ex.DD and certified copies of the judgments Ex.D.E. and Ex.D.F. to show that he was acquitted in the other cases registered against im. 5. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the possibility that the stengun and he ullets might have been placed by the side of the appellant while he was sleeping by some one else, cannot be excluded. The learned State counsel is not in a position to controvert him. 6. We have carefully attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution and the statements made by the appellant under Sections 340(2) and 342 Cr.P.C. We feel persuaded to agree with the learned counsel for the appellant. Admittedly, when the police raided Chah Jumanwala, the appellant was sleeping in an open place on a cot and stengun P.I fitted with magazine containing twenty bullets P.3/1-20 was lying by his right side. So the possibility that the stengun might have been placed by some one else more particularly by a person belonging to the opposite group, cannot be excluded. No one had seen the petitioner carrying stengun before the alleged recovery. The onus lies on the prosecution to prove that the appellant was not only keeping the unlicensed Firearms but also that his possession was very much conscious. In case of a sleeping person, it is doubtful that the possession of Arm lying by his side would be a conscious possession for the purpose of his conviction for holding or keeping unlicensed Arm. Needless to say that 'an accused person being favourite child of law is entitled to the benefit of slightest doubt not as a matter of course or concession but as a matter of right. For these reasons, we feel that the prosecution has not been able to prove its case beyond reasonable doubt. 7. Pursuant to the above discussion, giving him the benefit of doubt as a matter of abundant caution, we accept the appeal, set aside the conviction and sentence of the appellant and (he) is acquitted of the charge. He is on bail. He stands discharged of his bail bond. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 454 (DB) Present: MUHAMMAD MUNIR KHAN AND MUHAMMAD AMIR MALIK, JJ FAZALUR REHMAN alias PAPPU-Petitioner versus SUPERINTENDENT, KOT LAKHPAT JAIL, LAHORE-Respondent Criminal Misc. No. 274-M of 1991 in Cr A. No.518 of 1985, dismissed on 23.4.1991. Concurrent Sentence-- —Double murder case-Conviction and sentence of death confirmed by High Cour—Death sentence converted to life imprisonment under Presidential Order-Prayer for declaring sentence of life imprisonment on two counts as concurrent-Held: After final disposal of appeal and connected murder reference, High Court has become functus officio-Held further: Since petitioner was awarded death sentence on two counts, there was no option for trial court to make sentences consecutive or concurrent-Petition dismissed. [P.455]A S.BaqirAli Naqvi, Advocate for Petitioner. Nemo for Respondent. Date of hearing: 23.4.1991. judgment Muhammad Munir Khan, J:--The facts leading to this criminal miscellaneous No.274-M-91 filed in criminal appeal No.518/85, and the connected murder reference No.212/85, briefly are that Fazal-ur-Rehman alias Pappu, petitioner, was tried for the double murder of Muhammad Saddique and Muhammad Latif by the learned Additional Sessions Judge, Gujranwala, who vide his judgment dated 15.7.1985 convicted him under Section 302 PPC on two counts and sentenced him to death and a fine of Rs.2000/- or in default thereof one year RI on each count. The appeal filed by the petitioner against his conviction was dismissed and death was confirmed on 16.1.1988 by this Court. The petitioner filed petition for special leave to appeal in the Supreme Court. During the pendency of the petition, the President of Pakistan reduced the sentences of death to that of life imprisonment, of all condemned prisoners. Pursuant to that order, the petitioner was shifted from death Cell to the General Section of the Jail to undergo life imprisonment on two counts. When petition for special leave to appeal came up for hearing before the Supreme Court, the learned counsel appearing for the petitioner did not seriously press the petition. However, he submitted that in the case the above order of President of Pakistan was modified in any way, he would like to get petition for special leave to appeal revived for disposal on merits. Feeling aggrieved by the consecutive nature of the altered sentence of life imprisonment, the petitioner has filed this miscellaneous application seeking direction from this Court to the affect that the sentences of life imprisonment on two counts shall run concurrently. 2. Learned counsel for the petitioner submitted that Superintendent Jail, ot Lakhpat, Lahore, respondent be directed to treat the life imprisonment of the petitioner on two counts as imprisonment for 25 years and not as consecutive imprisonment for 50 years. 3. We have considered the submissions made by the learned counsel with care. We are afraid, after the final disposal of the appeal and the connected murder reference, this Court has become funtus officio and cannot give the direction sought for in this petition. Since the petitioner was awarded sentence of death on two counts, so there was no option for the trial Court to make the sentences consecutive or concurrent. Furthermore, the death sentence of the petitioner on two counts has not been converted to imprisonment for life by the orders of this Court. 4. Pursuant to the above discussion, this miscellaneous petition fails and is accordingly dismissed. (MBCj (Approved for reporting) Petition dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 455 Present: ABDUL MAJ1D TIWANA, J IRSHAD MAHMOOD-Appellant versus THE STATE-Respondent Criminal Appeal No. 264 of 1986, accepted on 15.6.1991 (i) Absconder- —Murder case—Trial of absconding accused later on—Whether statement of a witness in earlier trial of co-accused, could be transferred and read in evidence-Question of~Statements of PWs recorded during previous trial, were not consciously and specifically recorded against appellant in terms of Section 512 of Cr.P.C.-Same were recorded primarily for purpose of trial of appellant's co-accused-General principle of law in Criminal trial is that a statement made against a person in his absence cannot be used against him~ Section 512 of Cr.P.C. creates exceptions to this rule-Held: Possibility of coaccused's taking advantage of absence of appellant and shifting liability on him in cross-examination of PWs, cannot be excluded—Held further: Statement of Sarfraz Gill eye-witness recorded in previous trial, cannot be relied upon. [Pp.459&460]A&B (ii) Absconder-- —Murder case-Trial of absconding accused later on-Conviction for- Challenge to-Eye-witness account without independent corroboration is not worthy of eliance and no such corroboration is forthcoming in this case- According to prosecution, appellant was a mercenary, but as per defence, he was private servant of some igh-up of faction to which accused party belonged-Held: Possibility of false implication of appellant in background of party politics, cannot be excluded-Appeal accepted. [P.460]C,D&E Mr. Tariq Saleem Sheikh, Advocate for Appellant. Mr. Zafar Yasin, Advocate for State. Date of hearing: 25.3.1991. judgment The appellant alongwith four others was an accused in case: F.I.R. No.43 registered at Police Station Sumberyal, District Sialkot on 12.5.1976 under Section 302, 148/149 PPC for the murder of Muhammad Hussain. The appellant absconded during the investigation and could not be sent up for the trial alongwith his co-accused who faced trial before the Court of Session at Sialkot and were sentenced to death, vide judgment of the learned Additional Sessions Judge, Sialkot , dated 6.3.1978. 2. Some time subsequent to the decision of the case of his co-accused, the appellant was arrested and he was also sent up for trial. On its conclusion he was convicted under Section 302/149 PPC and sentenced to imprisonment for life and a fine of Rs.10,000/- or in default to undergo two years R.I. He was also convicted under Section 148 P.P.C. and sentenced to two years R.I. 3. The prosecution story in brief is that in the background of land dispute, about a year prior to the occurrence, Muhammad Hussain (deceased) had fired at Hafiz Muhammad Alam co-accused in Mandi Samberial and at his instance a case of attempted murder was registered against the deceased but he absconded. Hafiz Muhammad Alam co-accused after some time came to know that Muhammad Hussain (deceased) was hiding some where in District Gujrat and he deputed Ali Muhammad co-accused and some other persons to kill him there. The assassins were arrested before they could succeed in attempting at the life of Muhammad Hussain (deceased). Persuant to this incident, another case was registered in which Hafiz Muhanfmad Alam was also cited as one of the accused. Two or three months prior to the main occurrence, Muhammad Hussain (deceased) was arrested in the case of attempted murder, hi which he was absconding, but he was released on bail. However, with the intervention of the elders of the brother-hood they reached the compromise. Two days prior to the occurrence the deceased got married but despite the compromise Hafiz Muhammad Alam did not participate in the ceremony. 4. On 12.5.1976 Muhammad Hussain (deceased) was to appear in a Court at Daska in the case of attempted murder registered against him. To go there he alongwith Muhammad Alam complainant went to bus stand Samberial to catch a bus for Daska. When they reached there at about 7-00 a.m. and went over to the nearby tailoring hop of Sarfraz PW where he got the clothes stitched in connection with his marriage and was talking to him for the payment of stitching charges, all the five accused, including Arshad Mahmood appellant, suddenly appeared there in a white car. Hafiz Muhammad Alam and Muhammad Jargees co-accused were armed with rifles, Muhammad Hasqeel alias Shakeel accused armed with a dagger, Muhammad Ali alias Muhammada carrying a 12 bore gun and Arshad Mahmood appellant herein holding a istol, came out of the vehicle. Soon after comming out of th car, Hafiz Muhammad Alam and his co-accused raised 'lalkara' addressing Muhammad Hussain (deceased) that hey would not allow him to e cape alive. Hafiz Muhammad Alam then fired at him but the bullet, missing the target, hit a window of the shop. Muhammad ussain (deceased) and Muhammad Alam complainant ran into the shop in order to take shelter, they tried to close the doors but the assailants did not allow them to do so. Entering the shop, Hafiz Muhammad Alain fired a second shot at the deceased and having been hit by him he fell down. Then Hafiz Alam, Muhammad Jarge s and Arshad Mahmood fired more shots at him while Muhammad Hasqeel alia Shakeel struck him with the dagger. The victim died on the spot and the assailants drove away in the car towards Wazir Abad. The matter was reported to Sumberial police by Muhammad Alam complainant (PW-13) and a case was registered against the appellant and his co-accused in the manher aforesaid. On the completion of investigation, a group of four accused was tried separately, as stated above, and the appellant was tried subsequently as he had absconded. 5. On the commencement of his trial the prosecution produced as many as 18 witnesses but prominent among those were Abdul Ghani (PW-5) and Ghulam Nabi (PW-6), who had eposed about the motive; Muhammad Alam (PW-13) and Muhammad Iqbal (PW-14), who gave the eye-witness account. DrMuhammad Younus Chughtai (PW-15) who gave the details of the injuries as incorporated by him in the postmortem report; and S.I. Syed Muhammad Alam Shah (PW-16) who gave the details of the investigation. Sarfraz Gill was another eye-witness but by the time the trial of the appellant commenced he had left abroad and his statement recorded during the trial of his co-accused earlier under Section 512 Cr.P.C. was separately transferred to the file of this case and was read in evidence. 6. The appellant in his statement recorded under Section 342 Cr.P.C. denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, professed innocence. He produced no defence. Explaining his involvement he stated that there were two political factions in Sumberial, one led by Ch.Muhammad Nawaz, Ex-Chairman of the Town Committee, and the other by Ch.Muhammad Azam Ex-M.PA. and his maternal uncle Muhamntad Ali co-accused was falsely implicated on account of party faction. He alleged that he was Munshi of Ch.Muhammad Sarwar Lambardar of Village Mojianwali of Police Station Mandi Baha-ud-Din, District Gujrat, for looking after his agricultural land and Ch.Muhammad Nawaz aforesaid got him falsely implicated in this case. According to him, when he came to know about the occurrence and the registration of the case, he appeared before the police and was arrested but later he was released on bail and went back to village Mojianwali to perform his duty as a manager and remained there till he came to know about the commencement of trial in the court of learned Additional Sessions Judge where he surrendered. He denied having remained absconder. 7. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and he came up in appeal to this court. 8. It was argued on behalf of the appellant that the fact of his absconsion was not proved against him by the prosecution and could not be taken into account as a piece of evidence. It was contended that during the trial against the co-accused of the appellant three witnesses, namely, Muhammad Alam, Muhammad Iqbal and Sarfraz Gill PWs had given eye-witness account but during the course of trial against the appellant, Sarfraz Gill PW was not produced due to his having gone abroad and his tatement recorded during the trial of appellant's co-accused was brought on the record with a view to be read as evidence against him (appellant) under Section 512 Cr.P.C. According to the learned counsel, Muhammad Alam and Muhammad Iqbal PWs, who have, during the trial against the appellant, appeared as PW-13 and PW-14, espectively, giving eye-witness account, were partisan witnesses and the only independent witness could possibly be Sarfraz Gill PW but he could not be examined due to his absence from the country and his statement recorded during the previous trial of the case against the co-accused of the appellant could not be legally used against the appellant under Section 512 Cr.P.C. as the same was not recorded for the purpose of being so used. In support of his contention the learned counsel placed reliance (on) Emperor . Sherozaj Singh (1948 All. 375). 9. I am inclined to agree with the contention of the learned counsel for the appellant. Muhammad Alam and Muhammad Iqbal PWs, as it appears from their examination, were the party men of Muhammad Hussain (deceased) and they all belonged to one faction in Samberial Town, while Hafiz Muhammad Alam, the main accused in the case, belonged to the opposite faction of the town and as such they cannot be termed as independent and dis-interested witnesses. The only impartial witness in this case was Sarfraz Gill in whose shop the occurrence had taken place but, by the time the appellant was arrested and his trial commenced, he (witness) left abroad and his appearance for the purpose of evidence could not be procured. Therefore, the prosecution relied upon his statement recorded during the trial of appellant's co-accused a few years ago and brought the same on record in this case as a piece of evidence under Section 512 Cr.P.C. to be read as his statement. 10.1 have not been able to see eye to eye with the arguments of the learned counsel for the appellant that his absconsion has not been proved. He had not joined the trial conducted against his co-accused, who were ultimately convicted for the murder of Muhammad Hussain, on account of his having absconded and this fact stood amply proved on the record that he remained absconder during that trial and for quite some time after its conclusion till he was arrested and made to face trial. 11. However, there seems to be a good deal of substance in the contention of the learned counsel for the appellant that the statements of prosecution witnesses recorded during the previous trial of appellant's co-accused, including the statement of Sarfraz Gill PW, was (were) not consciously and specifically recorded against the appellant in terms of Section 512 Cr.P.C. and cannot be used against him (appellant) as such because those statements were recorded primarily for the purpose of trial of appellant's co-accused and the same were used accordingly. During the course of evidence in the previous trial no doubt the appellant also figured as an absconding co-accused, having played the role of killing Muhammad Hussain alongwith his co-accused but it was mentioned casually in the ordinary course of the case for he purpose of the trial of the appellant's co-accused and atention of the trial court was not directed to the case of the appellant. 12. The general principle of law in criminal trial is that a statement made gainst a person in his absence cannot be used as evidence against him and exception to this rule was specifically created by the Lagislature in Section 512 Cr.P.C. Therefore, while applying the exception so created, it has to be construed strictly, particularly when there can be a possibility of the co-accused's taking advantage of the absence of their alleged partner in the crime and shifting the liability on him by cross-examining the prosecution witnesses in a manner i favourable to themselves and injurious to the absentee accused. This being so, I jam not prepared to rely on the statement of Sarfraz Gill eye-witness recorded in the previous trial. With the exclusion of this piece of evidence, then remains the eye-witness account as deposed by Muhammad Alam and Muhammad Iqbal PWs, which without independent corroboration is not worthy of reliance and no such corroboration in this case is forthcoming. It is an admitted position that the appellant was not related to Hafiz Muhammad Alam, the principal accused. According to the prosecution, he was a mercenary but, as per stance adopted by the defence, he was private servant of some of the high-ups of the faction to which the accused party belonged and had been falsely implicated on that account. 13. Since the appellant had no direct interest in the land dispute between the complainant party and Hafiz Muhammad Alam, which eventually led to the reckless criminal litigation between them, nor he had any personal axe to grind in their controversy, the possibility of his false implication in the background of party politics cannot be xcluded for that reason also. 14. For various reasons stated above, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted. He shall be released forthwith if not required in any (other) case. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 460 (DB) Present: muhammad munir khan and rashid Aziz khan, JJ MUHAMMAD HASHIM-Appellant versus THE STATE-Respondent Criminal Appeal No.851 of 1990, decided on 16.7.1991 Explosive Substances Act, 1908 (VI of 1908)-- —Ss.4-B&5-Hand-grenade--Recovery of-Conviction for--Challenge to~There is nothing on record with regard to intention of appellant to use hand-grenade for purposes tated in Section 4-B—His conviction under Section 4-B cannot sustain-Held: Act of keeping hand-grenade in a bag at time of its recovery, falls within purview of Section 5 xplosive Substances Act, 1908-Appellant convicted under Section 5 instead of Section 4-B of Act. [P.462]A&B K)i. Muhammad Afzal, Advocate for Appellant. Nemo for State. Date of hearing: 16.7.1991. judgment Muhammad Munir Khan, J.--This criminal appeal No.851 of 1990 arises from the judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities) Sargodha, whereby he, on 16.10.1990 convicted Muhammad Hashim, appellant, under Section 4-B of the Explosive Substances Act, 1908 and sentenced him to seven years RI. The benefit of the provision of Section 382-B Cr.P.C. was also given to him. 2. The charge against the appellant was of keeping one hand-grenade on 19.5.1990 which was recovered from the bag carried by him while travelling in a Wagon. He denied the charge and claimed to be tried. 3. To prove its case, the prosecution produced four witnesses. Ghulam Jaffar, PW-1, had prepared the formal F.l.R. Ex.PA/1, Muhammad Sardar, PW- 2, was/is Bomb Disposal Technician. He had examined the hand-grenade and found it to be serviceable and Explosive Substance and was dangerous to life and property. Ijaz Ahmad, Constable, PW-3 and Rafiullah Khan SI, PW-4, are the recovery witnesses. Rafiullah Khan, PW-4, stated that on 19.5.1990 when a Coach arrived there from Mianwali side, they stopped it for checking. Muhammad Hashim appellant came out of the Coach. On search, he was carrying a bag with him, wherefrom hand-grenade PI was recovered and was taken into possession vide memo Ex.P.C. He was not having any permit or license to keep hand-grenade with him. Ijaz Ahmad, PW-3, has supported the statement made by Rafiullah Khan SI. 4. When examined under Section 342 Cr.P.C. the appellant denied the recovery of hand-grenade. He raised the plea of false implication stating that "On the day of the recovery, I was travelling in a bus when the same was stopped at Police Station Wan Bhachran. Many a persons were also travelling in the said us. 6 or 7 persons and myself were detained by the police at PS Wan Bhachran and subsequently hand-grenade PI was planted on me. I have been falsely involved in this case". He did not give evidence on oath in disproof of the charge against him. 5. Believing the prosecution case and disbelieving the plea of false implication raised by the appellant, the trial Court has convicted and sentenced the appellant as stated above. Frankly conceding the recovery of hand-grenade from the appellant, the learned counsel has questioned the nature of offence. He was of the view that no case punishable under Section 4-B of the Explosive Substances Act, 1908, was made out. Instead the offence committed by the appellant would fall under Section 5 of the Explosive Substances Act, 1908. No one has appeared for the State. 6. We have considered the submission made by the learned cou sel for the appellant with care. We feel persuaded to agree with him. The relevant provisions of the Explosive Substances Act, 1908 may be reproduced advantageously:- S.4-B. "makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in Pakistan or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan: shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which circumstances. = = =Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in tus possession or under his control for a lawful object, be punishable with transportation for a term which may extend lo fourteen years to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added. Since there is nothing on record with regard to the intention of the appellant to use the hand-grenade for the purposes stated in Section 4-B, so his conviction under this section cannot sustain. Instead the act of keeping hand-grenade in a bag at the time of recovery falls within the purview of Section 5 of the Explosive Substances Act, 1908. 8. Pursuant to the above discussion, the conviction of the appellant under Section 4-B of the Explosive Substances Act, 1908 is set-aside, instead he is , convicted under Section 5 of the Explosive Substances Act, 1908 and sentenced him (?) to two years R.I. With this modification, the appeal is dismissed. (MBC) (Approved for reporting) Orders accordingly

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 462 (DB) Present: muhammad munir khan and rashid Aziz khan, JJ NASEER AHMAD alias NASEERA-Appellant versus THE STATE-Respondent Criminal Appeal No.392 of 1990, accepted on 13.7.1991 Benefit of doubt- — Un-licensed Mauzer with magazine-Recovery of--Conviction for-Challenge to-At time of recovery of Mauzer from room of hostel, appellant was not present there-Recovery was not affected on his pointation-Held: Possibility that Mauzer might have been placed by'some one else in room of appellant, cannot be excluded-Benefit of doubt extended and appellant acquitted. [Pp.463&464]A&B Raja A.Rehman, Advocate for Appellant. Sh. AsgharAli, Advocate for State. Date of hearing: 13.7.1991. judgment Muhammad Munir Khan, J.«This criminal appeal arises from the judgment of Presiding Officer, Special Court, (Suppression of Terrorist Activities), Lahore, whereby he on 13.6.1990 convicted Naseer Ahmad alias Naseera appellant under Section 13 of the Arms Ordinance, 1965, and sentenced him to five years' R.I. and a fine of Rs.10,000/- or in default thereof six months' R.I. 2. The charge against the appellant was of keeping unlicensed Mauzer P.I in his possession on 17.6.1989. He denied the charge and claimed to be tried. 3. To prove its case, the prosecution produced three witnesses. Mian Khan ASI (PW-1) drafted the formal F.I.R. Ex.P.B. Muhammad Qasim Wasti, Magistrate 1st Class (PW-2) and Khalid Masood Inspector (PW-3) are the recovery witnesses. Muhammad Qasim Wasti MIC (PW-2) stated that on 17.6.1989, they had raided room No.3 of Yaqoob Hostel of Government College of Technology, Railway Road , Lahore , and recovered Mauzer P.I fitted with magazine P.2 from the cot lying in the room occupied by the appellant. Khalid Masood Inspector (PW-3) supported him. 4. When examined under Section 342 Cr.P.C., the appellant denied the recovery of Mauzer from him. He did not produce any evidence in defence. He gave evidence on oath in disproof of the charge against him. 5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the possibility'of putting Mauzer in the room of the Hostel by students of rival group is not excluded. The learned counsel for the State has supported the judgment of the trial Court. 6. We have considered the submissions made by the learned counsel for the appellant with care. We feel persuaded to agree with the learned counsel for the appellant. We find that at the time of recovery of Mauzer from the room of Yaqoob Hostel, the appellant was not present there. The recovery was not effected on his ointation. It is a matter of common knowledge that there are rival groups of students in the Hostel. In these circumstances, the possibility that the Mauzer might have been placed by some one else in the room of the appellant, cannot be excluded. Be that as it may, the exclusive possession of Mauzer by the appellant is not established. For these reasons, we are convinced that the prosecution has failed to prove its case beyond reasonable doubt. 7. Pursuant to the above discussion, the appeal is accepted and while giving him the benefit of doubt, the appellant is acquitted of the charge. He is on bail. He stands discharged of the bail bond. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 464 Present: muhammad munir khan, J MUHAMMAD ASHRAF and 5 others-Petitioners versus THE STATE-Respondent Criminal Misc. No.326-M of 1991 in Crl. Revision No.361 of 1982, dismissed on 30.4.1991 Compromise- —Offence under Sections 325/148/149 PPC--Conviction for-Compromise application filed after decision of Revision Petition by High Court-Whether High Court can act pon compromise-Question of-Word "when accused has been convicted and an appeal is pending" used in Section 345 of Cr.P.C. will show that court may grant leave to ompromise during pendency of appeal or revision and not after its final decision-Held: High Court having become functus officio, it cannot grant leave to compromise ffence. [P.465JA&B Mr. Ashiq Hussain Malik, Advocate for Petitioners. Date of hearing: 30.4.1991. order Muhammad Ashraf and others, the petitioners were tried under Sections 325/148/149 P.P.C. for causing injuries including grievous injury to Muhammad Hussain and Sher Zaman P.Ws. On the conclusion of the trial, they were convicted and sentenced to 2 years R.I. under Section 148 P.P.C. and to 2 years R.I. under Section 325/149 P.P.C. and a fine of Rs. 1000/-, in default thereof 3 months S.I. each under Section 325/149 P.P.C. The appeal filed by them was dismissed by the learned Additional Sessions Judge, Sargodha on 1-6-1982. Feeling aggrieved thereby they filed revision No.361/82 in this Court which was dismnissed on 20-2-1991. The petitioners have filed the present application for their acquittal on the basis of compromise arrived at between them and the injured P.Ws. after the decision of the revision. 2. When asked as to whether or not this Court can entertain this application after the final decision of the revision, the learned counsel relied on Zulfiqar All vs. Tlie State (PLD 1984 Lah. 461), Manzoor Hussain v. Tlie State (1984 P.Cr.LJ. 1396) to contend that to secure the ends of justice this Court has vast powers to grant leave to compromise and acquit the accused/petitioners on the basis of compromise. 3. I have considered the matter carefully. I am afraid, after having become fimctus officio, more particularly when no Us is pending, this Court cannot grant leave to compro ise the offence. The relevant provsion of law may be reproduced advantageously: - Sec.345(5) O.P.C"When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court efore which the appeal is to be heard". The words "When the accused has been convicted and an appeal is pending," used in Section 345 Cr.P.C. will show that the Court may grant leave to compromise during the pendency of the appeal/revision and not after its final decision. The case law cited by the learned counsel relates to the provisions of Section 382 Cr.P.C., which in view of the specific provisions of section 345 Cr.P.C., does not take the case of the petitioners any further. Pursuant to the above discussion, the application is dismissed. (MBC) (Approved for reporting) Application dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 465 Present: S.M.ZUCAIR, J Sheikh MUHAMMAD ASLAM and anolhcr-Pctitioners versus THE STATE and 2 others-Respondents Criminal Misc. No.l99/Q of 1990, accepted on 2.6.1991 Joint Trial- —Offence under Section 298-C of PPC by various accused-Joint trial of~ Orders for—Challenge to—Bare reading of FIR would show that different persons ommitted apparently same offence at different places and time with different intention though they belong lo same religious sect, i.e. Qadiani group-One offence as committed in jurisdiction of trial court whereas other was committed outside its territorial jurisdiction-Held: Petitioners and others cannot be tried jointly on ssumption that they committed same offence, i.e. punishable under Section 298-C of PPC-Petition accepted. [P.468JA&B PLD 1967 Peshawar 32 distinguishable. 1935 Cr.LJ. 1496, PLD 1958 SC(Pak) 131 and PLD 1958 (WP) Lahore 1052 ref. KJi. Mukhtar Ahmad Butt, Advocate for Petitioners. Mr. Muhammad Iqbal Kliichi, A.A.G. for State. Date of hearing: 2.6.1991. ordf.r The petitioners, have challenged the revisional order of the learned Sessions Judge, Kasur dated 22-7-1990 whereby he affirmed the order of the Ilaqa Magistrate, Kasur dated 18-10-1989. 2. The brief facts relevant for the disposal of this petition are that on the application dated 24-8-1987 submitted by Ch.Fazal Hussain and others, a case vide .I.R.No.481, was registered against the petitioners and others at Police Station B- Division, Kasur. According to the F.I.R. the petitioners despite belonging to Qadiani faith have posed themselves as muslims by praying like muslims. calling Azan, and hanging Quaranic verses and Kalma Tayyaba at their shops, so they have committed the offence under Section 298-C P.P.C. The learned Ilaqa Magistrate framed a charge against all the petitioners under Section 298-C and by invoking the provisions of Section 239 Cr.P.C. directed that all the petitioners be tried jointly for the said offence on 22-6-1988. ,The petitioners moved an application on 22-11-1988 before the learned Masgistrate, that in the present case, joint trial of the petitioners, is illegal and in violation of Section 239 Cr.P.C., hence they should be separately charged and tried for the offence in accordance with the provisions of Section 233 Cr.P.C. This petition was dismissed by the learned Magistrate, Kasur vide his order dated 18-10-1989. Against that order the petitioners filed a revision petition under Section 439- A Cr.P.C. which was dismissed by the learned Sessions Judge, Kasur vide his order dated 22-7-1990. 3. The learned counsel for the petitioners has vehemently contended that Section 233 Cr.P.C. envisages that for every distinct offence, there shall be a separate charge, and all the accused shall be tried separately except in cases mentioned in Section 234, 235,236 and 239 Cr.P.C. He urged that as Section 239 ibid is exception to Section 233 Cr.P.C. hence it has to be construed very strictly. According to the learned counsel for the petitioners the offence, if any was committed by different persons at different places and time, hence their joint trial under Section 239 Cr.P.C. is not permissible in law, as this offence was not committed by them in the same transaction. He placed reliance on PLD 1958 S.C. Pak. 13.1 to contend that this illegality in the mode of trial is not curable under Section 537 Cr.P.C. 4. The learned Law Officer appearing for the State has submitted that in order to find out whether the offences were committed in the course of the same transaction, the Court has to rely upon the proximity of time, the continuity of action and purpose. As all these accused presons belong to Mirzai group, they had community of purpose to pose themselves as Muslim, despite the fact the same offence was committed by different persons at different places, they can be tried jointly under Section 239 Cr.P.C. and their trial is neither illegal nor violative of any provision of law. He placed reliance on PLD 1967 Peshawar 32. In that case, his lordship held that:-'Unity of criminal behaviour actuated by common intention on the part of all the petitioners to get through their candidate in the polling, rendered them liable to joint trial'. 5. Before entering into the realm of facts, it would be desirable to find out what is the meaning of word 'same transaction'.The expression 'the same transaction' used in sections 235 and 239 is an expression which from its very nature is incapable of exact definition, and must have been advisedly used because it had this quality.It was held in 8 Cr.L.J. 191 "that during the years since the expression first appeared in this Statute Book, the combined wisdom of all the High Courts in India has failed to definitely fix its meaning, is sufficiently convincing that the task is impossible. The illustrations, however, make sufficiently clear the intention of the Legislature". Again in Raj Bahadur v. Emperor (1935 Cr.L.J. 1496) it was held that "it is not possible to enunciate any comprehensive formula of universal applicability for the purpose of determining whether two or more acts constitute the same transaction, but circumstances which bear on the determination of the question in any individual case can be indicated by saying that proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the principal criteria for deciding whether certain acts form part of the same transaction or not. "The real and substantial test for determination whether several offences were so connected together as to form one transaction, depends upon whether they are related together in point of purpose, or as cause and effect or as principal and subsidiary acts so as to constitute one continuous action". Their lordships of the Supreme Court in Muhammad Mosaddar Hoque and Muhammad Abdul Ranf v. The Slate (PLD 1958 S.C. (Pak) 131) observed that "community of purpose or design and continuity of action arc sine qua non, if the separate acts are to be linked together, so as to constitute one transaction". It was also held in NoorKJian v. Tlie Stale (PLD 1958 (WP) Lahore 1052):- "It is however, now well settled that the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in ;ioint of purpose, or as cause and effect, or as principal and subsidiary acts, to constitute one continuous action. Therefore, the question whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case". 6. Applying the aforementioned principle of law to the facts of the present case I find a bare reading of the F.I.R. would demonstrate that different persons committed apparently same offence at different places and time with different intention though they belong to same religious sect i.e. Qadiani group. Even date .and time is not mentioned in the F.I.R. but it is discernable from the F.I.R. and the statements of the wirtneses under section 161 Cr.P.C. that one offence was committed in the jurisdiction of the learned trial Court whereas the other offence was committed outside the territorial jurisdiction of that Magistrate, hence in these circumstances, these persons cannol be tried jointly on the assumption that they committed the same offence, i.e. punishable under section 298-C P.P.C. in the course of the same transaction. In addition to that, Section 239 Cr.P.C. relates to charges and has no reference to jurisdiction or venue of trial, matters dealt with in Chap.XV of the Code. The fact that accused persons may be charged and tried jointly under Section 239 ibid, does not give territorial jurisdiction to a Court to try them, thus the joint trial of the petitioners by the learned trial Court is legally not sustainable. The case law relied upon by the learned Law Officer is distinguishable, as this illegality goes to the root of the case, hence it is not curable under Section 537 Cr.P.C., therefore, the trial of the petitioners along with their co-accused before the learned Magistrate is not in accordance with law. This petition is accepted, the impugned orders are set aside. I further direct that every accused person should be tried separately for the cTence as required under Section 233 Cr.P.C, keeping in view the requirements of Chapter XV of the Code of Criminal Procedure. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 468 Present: MUHAMMAD MUNIR KHAN, J RAJADA and 3 others—Petitioners versus THE STATE-Respondent Criminal Revision No.189 of 1984, decided on 27.3.1991 (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S.307/149--Murderous assault—Conviction for—Challenge to—No legal infimity has been pointed out in statements of eye-witnesses-Eye-witnesses are quite ependable—They have made consistent statements against petitioners-Medical evidence supports oral testimony-Eye-witnesses have no serious enmity to falsely involve etitioners—Petitioners being previously known to eye-witnesses, there was no difficulty in their identification in dark night-Held: Petitioners have rightly been convicted nder Section 307/34 PPC. [P.470]A (ii) Sentence-- —Conviction for murderous assault maintained-Quantum of sentence-­ Determination of--Occurrence took place in 1980 and petitioners having been sent thrice to Jail, remained there for five months as under-trial prisoners and as convicts—Held: It may not be proper to send them back to Jail after about ten years of occurrence-Held further: It would be in fitness of things that remaining sentence of imprisonment is altered to sentence of fine-Remaining sentence set aside and fine raised to RsJOOOO/- each to be paid to victim. [Pp.470&471]B Ch. Ghulam Murtaza Khan, Advocate for Petitioners. Mr. Akram Nasir, Advocate for State. Date of hearing: 27.3.1991. judgment Rajada, Sajjada, Zulfiqar, Rehmat and four others were tried under Sections 307,324,326 and 148/149 PPC for murderous assault and for causing grievous injuries with blunt and sharp edged weapons to Khushi Muhammad PW-2 on 28-9-1980 at 4.00 a.m. in Village Chandar Kot of Police Station Nankana Sahib. 2. To prove its case, the prosecution produced six witnesses. Muhammad Shafi PW-1, Khushi Muhammad PW-2 and Muhammad Yousal PW-3 have given the ocular account of the occurrence. Khushi Muhammad PW stated that the petitioners and their co-accused launched attack on him at the eventful time and caused him injuries with their respective weapons. Muhammad Shafi PW-1 and Muhammad Yousaf PW-3 supported him. Dr. Muhammad Akhtar Hussain Chattha PW-6 medically examined Khushi Muhammad PW and found six injuries on his person. Out of the six injuries, three were found grievous. The rest of the evidence is of formal nature. 3. When examined under Section 342 Cr.P.C, the petitioners denied all the incriminating circumstances. They did nol produce any evidence in defence. They did not appear to depose on oath in disproof of the charges against them. 4. The trial Court convicted the petitioners and their co-accused under Sections 307/149 PPC and sentenced (them) to four years 'R.I. and a fine of Rs. 5,000/- each or in default thereof six months' R.I. On appeal, the learned Addl. Sessions Judge, Sheikhupura, acquitted the four co-accused and while maintaining the conviction of the petitioners under Section 307/149 reduced the sentences from four years' R.I. to three years' R.I. and fine from Rs. 5,000/- to Rs. 2,000/- or in default thereof six months' R.I. each; hence this petition. 5. The learned counsel for the petitioners submitted that the occurrence took place in the dark hours of the night and the identity of the offenders was/is doubtful; that the eye-witnesses are closely related inter-se and that about 20/30 independent persons had seen the occurrence, but none of them has been produced by the prosecutrion. In the alternative, he requested for leniency in sentence. The learned counsel for the State has opposed him. 6. I have considered the submissions made by the learned counsel for the parties with care. I find that from the statements made by Khushi Muhammad injured PW, uhammad Yousaf PW-3 and Dr. Muhammad Akhtar Hussain PW- 6, it is very much clear that the petitioners had launched murderous assault on the victim of crime (Khushi Muhammad PW-2) and had given him six injuries ncluding three grievous injuries. The injuries have specifically been attributed to Rajada, Zulfiqar and Rehmat petitioners. Rajada gave a hatchet blow on the right leg of Khushi Muhammad PW-2, Zulfiqar inflicted a hatchet blow on the left leg of PW-2 and Rehmat inflicted injuries on the back of the hand of PW-2. The learned counsel for the petitioners has not been able to point out any legal infirmity in the statements of the eye-witnesses. The eye-witnesses are quite dependable. They have made consistent statements against the petitioners. The learned counsel has not been able to point out any material contradictions, major discrepancies or dishonest improvements in their statements. The medical evidence supports the oral testimony. The eye-witnesses have no serious enmity to involve the petitioners falsely or to attribute false part to them. The petitioners were previously known to the eye-witnesses and, as such, there was no difficulty in the identification of the petitioners even in the dark night. The location of the injuires of Khushi Muhammad and the weapons used by the offenders will show that the assailants were close to the victim at the lime of the infliction of the injuries. For all these reasons, I am convinced that the petitioners have rightly been convicted under Section 307/34 PPC. 7. This brings me to the question of sentence. I have considered this question with utmost care on my part. I feel that in the circumstances that the occurrence look place in the year 1980; that the petitioners were sent to Jail thrice; that they remained in Jail for five months as under-trial prisoners and as convicts, as tated by the learned counsel for the petitioners, 1 feel that it may not be proper to send them back to Jail after about 10 years of the occurrence. At this stage, the, learned counsel for the petitioners has offered to compensate the injured PW. In this view of the matter, I feel that instead of sending back the petitioners to Jail after ten years of the ccurrence, it would be in the fitness of things that the remaining sentence of imprisonment is altered into the sentence of fine. So the remaining sentence of imprisonment is set aside and the petitioners are sentenced to a fine of Rs. 10,000/- each with the direction that the same when deposited be paid to Khushi Muhammad PW-2 as compensation. So the petitioners will deposit the fine within two months from today, failing which the trial Court shall issue warrants for their arrest. When arrested, they will be sent to Jail to serve the sentence of imprisonment in lieu of fine. Disposed of accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 471 Present: muhammad munir kuan, J MUHAMMAD HANIF and 9 others-Petitioners versus THE STATE-Respondent Criminal Revision No.548 of 1985 (also Crl.Rev. No.570 of 1985), decided on 13.2.1991 Secondary Evidence— —-S.325/148/149 read with Section 323 PPC-Injury-Causing of-Conviction for-Challenge to-Prosccution did not care to produce constable to whom summons for service f Doctor were enlrusted-Sccondary evidence as such, furnished by Assistant, in proof of medico-legal reports, was inadmissible in evidence—Held: Conviction and entence f petitioners cannot sustain—Held further: Occurrence having taken place in 1979 and pclitioners having been sent to Jail thrice, it is not proper to direct re-trial after about 2 years of occurrence-Petitioners acquitted. [P.472JA&B Ch. Gluilain Mu/iaza KJwn, Advocate for Petitioners. Nemo for State. Date of hearing: 13.2.1991. judgment Muhammad Hanif and nine others were tried under Sections 325/149 and 148 PPC by Magistrate 1st Class, Sheikhupura. I propose to dispose of Cr.R.No. 548 of 1985 and Cr.R.No.570 of 1985 through this single judgment. 2. The prosecution case was that at the eventful day, the petitioners waylaid Jamal Din, Muhammad Rafiq, Muhammad Mushlaq, Abdul Hameed, Mst. Bashiran Bibi, Msl. Nawab Bibi, and Muhamad Na/.ir PWs near Dera Soianwala. They were variously armed and caused injuries to Jamal Din and his companions. 3. To prove its case, the prosecution produced seven witnesses, namely, Muhammad Siddiq, Jamal Din, Mushtaq Ahmad, Mst. Bashiran Bibi, Muhammad Nazir, Abdul Hameed and Mst. Nawab Bibi. They stated that at the eventful time all the petitioners variously armed had injured them with their respective weapons. Dr. Manzoor Hussain Kaznii was not available, so Mubarik Ahmad Khan, Assistant, was produced to prove the medico-legal reports Ex.P.B. and Ex. P.J. of the injured witnesses. He stated that the medico-legal reports were in the hand of Manzoor Hussain Kazmi. The Investigating Officer was also not produced. The trial Court convicted the petitioners and sentenced them to six months, R.I. under Section 148 PPC and to two yeirs R.I. each and a fine of Rs. WOO/- each under Section 325/149 PPC, vide its judgment dated 1-10-1985. The appeal filed by the petitioners was partly accepted on 15-10-1985 and while maintaining the conviction and sentence of the petitioners under Section 148 PPC, the learned Appellate Court converted the conviction of the petitioners from Section 325 PPC to under Section 323/149 PPC and sentenced them to six months 'R.I. each and a fine of Rs. 1,000/- each, in defeault thereof one month's R.I. each, with the direction that the fine, if recovered, Rs. l.OOO/- will be paid (to) each of the injured person as compensation.. 4. The learned counsel for the petitioners submits that the secondary evidence produced by the prosecution in proof of the medico-legal reports was/is inadmissible in evidence because the Process Server to whom the summons for the service of Dr. Manzoor Hussain Kazmi were entrusted, was not examined b the trial Court. 5. No one has appeared for the State. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that the prosecution did not care to produce the constable to whom the summons for the service of Dr.Manzoor Hussain Kazmi were entrusted and, as such, the secondary evidence furnished by Mubarik Ahmad Khan, Assistant, in proof of the medico-legal reports was inadmissible in evidence. If the medical evidence is excluded from consideration, the petitioners, perhaps, could not have been convicted under Section 325 PPC. In this view of the matter, the conviction and sentence of the petitioners cannot sustain. 6. Adverting to the question as to whether or not the case should be sent back for re-trial, I feel that in the peculiar circumstances of the case that the occurrence took place in the year 1979 and the petitioners were sent to Jail thrice, it may not be proper to direct the re-trial after about 12 years of the occurrence. So this revision is accepted, the conviction and sentence of the petitioners is set aside and no order for their re-trial is passed. Disposed of accordingly. The connected revision No. 570 of 1985, which is at pre-admission stage automatically fails and is accordingly dismissed. (MBC) (Approved for reporting) Petitioners acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 473 (DB) Present: MUHAMMAD MUNIR KHAN AND RASHID. A£IZ KHAN, JJ MAHMOOD KHAN--Appellant versus THE STATE-Respondent Criminal Appeal No.64/J of 1990, accepted on 17.7.1991 Admission- -—300 detonators-Recovery of--Conviction under Section 4-B of Explosive Substances Act. 1908--Challenge to-Plain reading of Section 243 of Cr.P.C will show that efore awarding sentence, trial court was obliged to ask appellant after he had pleaded guilty or had made admission of charge, to show cause why he should not be onvicted and sentenced—Accused persons are often induced to make admission of guilt with promise or hope that nominal sentence of fine or imprisonment will be mposed and they do no know implication of plea of guilty-Held: Since mandatory requirement of further notice to accused to show cause was not complied with, conviction s set aside. [P.474]A&B Mr. Ainjid Hussain Sycd, Advocate for Appellant. Mr. Imran Masood, Advocate for State. Date of hearing: 17.7.1991. judgment Muhammad Munir Khan, J.-This Criminal Appeal No.64-J of 1990 arises :::m ;hc judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities) Sargodha , whereby he, on 22.5.1990 convicted Mehmood Khan, irrci'ant. under section 4-B of the Explosive Substances Act, 1908 and sentenced him to ~ years RI. 2. The charge against the appellant was of keeping 300 detonators, the Explosive Substance, in his possession on 3.10.1987 which were recovered from 1 3. The trial Court framed a charge under section 4-B of the Explosive Substances Act, 1908, to which he pleaded guilty. He also stated that he was labourer of stone curshing machine and was in possession of 300 detonators as they were used in blasting the stones; and he used to work as a labourer to earn his livelihood for his children. On this admission, the trial Court convicted and sentenced him forthwith. The learned counsel for the appellant relied on Section 243 Cr.P.C. to contend that the forthwith conviction of the appellant without giving him further notice to show cause as to why he should not be convicted on the basis of his admission, was quite illegal. Learned counsel for the State is not in a position to controvert him 4. We have considered the legal objection raised by the learned counsel for the appellant carefully. We feel persuaded to agree with him. Section 243 Cr.P.C may be reproduced advantageously: - S.243: If the accused admits that he has committed the offence (with which he is charged) his admission shall be recorded as nearly as possible in the words used^by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate (may convict) him accordingly. The plain reading of this section will show that before awarding sentence, the trial Court was obliged to ask the appellant after he- had pleaded guilty or had made dmission of the charge, to show as to why he should not be convicted and sentenced. There appears to be wisdom behind this provision of law. The purpose of this provision was/is to avoid involuntary admission. The accused persons are often induced to make admission of the guilt and plead guilty with the promise or the hope that nominal sentence of fine or imprisonment will be awarded to them. Some of the accused persons do not know the implication of the plea of guilty. Since in the instance case, the mandatory requirement of further notice to the accused to show cause as to why he be not convicted on the basis of the admission, was not complied with, so there is no exception but to set aside the conviction and sentence of the appellant. 5. Pursuant to the above discussion, the appeal is accepted. The conviction and sentence of the appellant is set-aside and the case is sent back to the trial Court for fresh trial in accordance with law. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Cr PLJ 1991 Cr.C. (Lahore) 474 (DB) Present: M ui-iAMMAD munir khan and rashid Aziz khan, JJ SHUJAAT ALI alias CHAN SHAH-Appellant versus THE STATE-Respondent Criminal Appeal No.179 of 1991, accepted on 17.7.1991 Pakistan Penal Code, 1860 (XLV of 1860)- —S.399—Intention to commit dacoity—Offence of—Conviction for—Challenge to-Raid for arrest of appellant and his co-accused was pre-arranged, therefore, any person from public could be associated to witness recovery of weapons from them, but this has not been done-Held: Very strong evidence is required to show that accused persons were really making preparation to commit dacoity-Appeal accepted and appellant acquitted. [P.475&476JA&B Mr. G.Farced Ahmad, Advocate for Appellant. Mr. Rana Arif, Advocate for State. Date of hearing: 17.7.1991. judgment Muhammad Munir Khan, J.--The appellant alongwith four others namely All Imran, Khalid Mehmood, Muhammad Qasim and Akbar, was tried under section 399 PPC on the charge that on 3.2.1990 at 4.40 P.M while armed with various deadly weapons were sitting in the grave-yard Dhoopsari, Sanda Kalan, Lahore, making preparation to commit dacoity in the area of Police Station Sanda, Lahore. They denied the charge and claimed to be tried. 2. o prove its case, the prosecution produced six witnesses. Hakim Ali, S.I. PW1. had prepared the formal FIR Ex.PB on the basis of complaint Ex.PA. Zulfiqar Ali S.I. PW2. Iftikhar Ahmad H.C, PW3, Muhammad Sharif, ASI, PW4, Muhammad .Anwar, ASI. PW5 and Zamin Abbas, Inspector, PW6, are the witnesses of the arrest of the appellant and his co-accused while they were making preparation to commit dacoity in the area of Police Station Sanda, Lahore . Zamin Abbas, Inspector, stated that he alongwith PWs 2 to 5 were (was) present in Sanda Kalan. On receiving secret information they raided Dhoopsari grave-yard and found the appellant and his co-accused sitting duly armed with various weapons talking about the intended dacoity. On seeing the police party they tried to escape but were apprehended. On their arrest, different Fire-arms were recovered from them, for which they had no license. PWs 2 to 5 supported the statement made by Zamin Abbas, Inspector. 3. When examined under Section 342 Cr.P.C, the appellant denied all the incriminating circumstances. The appellant and his co-accused produced nine witnesses in defence. Muhammad Latif, Head Constable, DW 1, and Maqbool Ahmad. Constable, DW 2, were produced in defence of the appellant. The appellant also produced the statement Ex.DB and DC recorded by Magistrate in :ase under Arms Ordinance, 1965. 4. Believing the prosecution case and the evidence produced by it and disbelieving the plea of false implication of the appellant and the evidence prc-cuced by it, the trial Court has convicted and sentenced the appellant as stated 5. Learned counsel for the appellant contended that it was/is very easy to concoct a case under Section 399 PPC and difficult to rebut the same; that strong e\id;nce will be required in proof of offence under Section 399 PPC; that PWs 2 to 5 all are Police Officials; and that there is no independent corroboration of their statements. Learned counsel for the State has supported the judgment of the trial Court. 6. We have considered the submissions made by the parties and have reviewed the entire evidence produced by them, statement made by the appellant under Section 2 Cr.P.C and the defence evidence produced by him, with care. We feel persuaded to agree with the learned counsel for the appellant. We find that the raid for the arrest of the appellant and his co-accused was pre-arranged, so there was occasion for Zamin Abbas, Inspector, PW 6, to associate independent persons from public to witness the arrest of the appellant and his coaccused from the grave-yard. For the reasons known to him he did not associate any person from public to witness the arrest and recoveries of weapons from the appellant and his co-accused. Furthermore, it is very easy to allege that persons were making preparation to commit dacoity, so strong evidence would be required to show that the accused persons were really making preparation to commit the dacoity. Section 399 PPC is an exception to the general rule that intention to commit crime and preparation to commit the crime are no offence and the offence would start from the stage of attempt to commit the same, so exceptional evidence would be needed to prove this crime which I do not see in the case in hand. 7. Pursuant to the above discussion, the appeal is accepted and while giving him the benefit of doubt the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 476 Present: MUHAMMAD MUNIR KHAN, J MUHAMMAD ZUBAIR-Petitioner versus ABDUL MUNAF and 3 others-Respondents Criminal Revision No.126 of 1990, dismissed on 27.5.1991 Pakistan Penal Code, 1860 (XLV of 1860)-- —-S.302/34 read with Section 304 Part I-Double murder-Case of-Acquittal of respondents-Challenge to-Trial Court has appreciated plea of grave and sudden provocation in accordance with guidelines given by superior courts-It does not stand to reason that instead of killing two deceased immediately, respondents would have awaited arrival of PWs to witness murder-Held: Judgment of trial court is neither illegal nor perverse-Petition dismissed. [Pp.479&480]A&B Mr. Abdul Gliani, Advocate with Mr, Bashir Hussain Klialid, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 27.5.1991. judgment This Criminal Revision for the enhancement of the sentence of Abdul Munaf respondent No.l and against the acquittal of Abdul Ghani, Muhammad Younis and Ghulam Raza respondents of the charge under section 302/34 P.P.C. arise from the judgment of learned Additional Sessions Judge, Gujrat, whereby he on 23-12-1989, while acquitting Abdul Ghani, Muhammad Younis and Ghulam Raza respondents of the charge under section 302/34 P.P.C. for the murder of Nazir Ahmad, convicted Abdul Munaf respondent No.l under section 304-1 PPC for the double murder of Nazir Ahmad and Mst. Khanum Bibi deceased and sentenced them to 5 years R.I. on each count with the direction that the sentences shall run concurrently. He was also given benefit of the provisions of Section 382-B, Cr.P.C. 2. The occurrence took place on 27-3-1989 at 10.00 P.M. in the house of Mukhtar situate in village Chakar Khurd of Police Station Jalalpur Jattan, District Gujrat. The FIR. Ex.PC, was lodged by Muhammad Zubair on 28-3-1989 at 1.00 A.M. and was recorded by Muhammad Safdar, Inspector, P.S. Jalalpur Jattan. 3. Mst. Khanum Bibi deceased was the sister of Abdul Munaf respondent No.l. She was the wife of Mukhtar in whose house the two deceased were done to death. 4 As for the main occurrence, it has been stated that on the eventful night Nazir Ahmad deceased and Abdul Majid were present in their dera when at 8.00 P.M.. Abdul Majid came there and informed that Abdul Ghani, Abdul Munaf, Muhammad Younis and Ghulam Raza respondents had summoned Nazir Ahmad and confined him in the house of Mukhtar Ahmad. On this information, Muhammad Zubair complainant accompanied by Abdul Majid, Ghulam Hussain, Faiz Ahmad and Muhammad Sharif went to the house of Mukhtar Ahmad situated in village Chakar Khurd. They found Abdul Ghani armed with 12-bore gun. Abdul Munaf armed with pistol. Muhammad Younis carrying rifle and Ghuiam Raza holding sota in his hand standing in the verandah of his house. When asked as to why they had confined Nazir Ahmad ? Abdul Munaf stated that they would teach him (Nazir Ahmad) a lesson for having illicit relations with Mst. Khanum. There was sufficient electric light there. The respondents then opened the doer of the room where Nazir Ahmad and Mst. Khuanum Bibi were already confined. Ghulam Raza inflicted sota blow on the head of Nazir Ahmad. Muhammad Younis fired shot from his rifle hitting Nazir Ahmad in the abdomen. Abdul Munaf fired from his pistol hitting Mst. Khanum Bibi in her abdomen. Abdul Ghani fired shot at Nazir Ahmad in his abdomen. Thereafter, the respondents accused started firing from their respective weapons. As a result of fire-arm injuries. Nazir Ahamd and Mst. Khanum Bibi expired on the spot. 5. On 28-3-1989, Dr. Zafar Iqbal Gondal conducted post-mortem examination on the dead-body of Nazir Ahmad and found following injuries: Injuries: 1. "Fire-arm entry wound 1/2x1/2 c.m. on the lateral aspect of right side lower chest blackening was also present. 2. Fire-arm entry wound 5x5 c.m. on the lateral aspect of right side chest. 3. Fire-arm entry wound 3/4x3/4 c.m. on the right lower chest on lateral aspect. 4. A lacerted wound 5x3/4 c.m. x scalp deep on the left side of head." Exit wound. 1. 1x1 c.m. on the lateral aspect of left side chest. 2. 1x1 c.m. on the left side of the left axilla. It has crossed the chest and entered inside the left upper arm and there was fracture of left humerous and matallic foreign body was recovered from left upper arm. In his opinion, the death was due to shock and haemorrhage as a result of injuries No.l, 2 and 3, which were caused by fire-arm were antemortem, grievous and fatal. The injuries were sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate and between death and postmortem was about 19 hours. On the same day, the said doctor conducted post-mortem examination on the dead-body of Mst. Khanum Bibi and found following injuries on her body. Injuries. 1. "Fire-arm entry wound 1x1 c.m. x going inward on left hypochonprim. 2. Fire-arm entry wound. 5x.5 c.m. on the front of left side chest on the lower part 5 c.m. above injury No.l. 3. 3 fire-arm entry wounds in an area of 5x 4 1/2 c.m. on the front and left side umblicus each measuring. 5x.5 c.m. 4. Fire-arm entry wound. 5x.5 c.m. on the back of left thigh on lower part. Exit wound. 1. 1x1 c.m. on the front of left thigh. 2. 3x2 c'.m. on the back of upper part of right side chest. 3. Contused area 15x10 c.m. on the lower part of front of left thigh including knee joint. 4. Abrasion 1x5 c.m. on front of left leg on lower part. 5. Abrasion 1x5 c.m. on the inner aspect of right leg. Contused area 8x5 c.m. on the lateral aspect of right thigh.Contused area 15x8 c.m. on the right upper arm. In his opinion the death had occurred due to excess of loss of blood, as a result of injuries No.l, 2 and 3, which were grievous and fatal and sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate and between death and postmortem was about ?() hours. 6. On 1-4-1989 Malik Muhammad Safdar Inspector arrested Abdul Ghan and Abdul Munaf and other respondents. On 12-4-1989, Abdul Munaf got recovered revolver Ex, PI and 3 live cartridges Ex. Pl/1-3 from his house, whichwere taken into possession vide memo Ex. PA. On the same day Abdul Ghani got recovered gun Ex. P3 and 2 live cartridges Ex.P4/l-2, which were taken into possession vide memo Ex.PN. On 24-4-1989, Muhammad Younis led to he recoverv of rifle Ex.P^ and 3 live cartridees Ex.P8/l-3 from his house which weretaken into possession vide memo Ex.PB. He arrested Ghulam Raxa respondent on 2-M9yj 7. To prove its case, prosecution produced 13 witnesses. Muhammad ZubairP.W.2, Abdul Majid P.W. 3 have given the ocular account of the occurrence. They claim to have seen the respondents causing injuries with their weapons to the deceased. Muhammad Zubair P.W, has supported the alleged motive. Fateh Khan PAV.l. Karam Elahi P.W.7 and Malik Muhammad Safdar, Inspector, P.W.13 have .-urponed the recovery of weapons from the respondents. Dr. Zafar Iqbal Gondal P.V. , 1J has proved the postmortem examination reports of the 2 deceased. The res; o;" the evidence is of formal nature. y . When examined under section 342 Cr.P.C., the respondents other than A'rJJ Munaf denied their presence and participation in the occurrence. Abdul M^r.^i r^>pondent raised the plea of grave and sudden provocation. He state .h_u ;n seeing his sister Mst. Khanum Bibi and her paramour Nazir Ahmad kis-inj: and embracing each other in the room of the house of the husband of hi sisur. he killed them on account of Ghairat. 9 Disbelieving the prosecution version of the occurrence and the presence and participation of the respondents other than Abdul Munaf and believing the plea of fj^i and sudden provocation, the trial Court convicted and sentenced Abdul Munjj and acquitted the remaining respondents as stated above. ve n; 10. Learned counsel for the petitioner submitted that Nazir Ahmad was deceitful!;, taken to the place of occurrence and that Mst. Khanum Bibi was apprehended and thereafter both of them were confined in the room in the presence of the eye-witnesses were done to death and as such, there was no occasion for the murder of he two deceased under grave and sudden provocation. 11. I have considered the submissions made by the learned counsel for the parties with care. I do not agree with him. I find that the trial Court has e appreciated the evidence and the plea of grave and sudden provocation in accordance with the guide lines given by the Superior Courts. Muhammad Zubair and Abdul Majid are closely related to Nazir Ahmad deceased. They did not reside in the village in which Nazir Ahmad and Mst. Khanum Bibi were killed. It does not appeal to reason that instead of killing the two deceased immediately the accused/respondents would have waited for the arrival of Muhammad Zubair and Abdul Majid P.Ws to witness the murder. The presence of Nazir Ahmad in the house of the husband of Mst. Khanum Bibi at 10.00 P.M. coupled with the alleged motive of illicit relations between them make the prosecution version of the occurrence told by the 2 eye-witnesses highly doubtful. On the other hand, in view of the place of occurrence, the time of occurrence and the back ground of illicit relations between the 2 deceased, there is a reasonable possibility of the defence version raised by Abdul Munaf being true. The medical evidence does not exclude the possibility f the murder of the two deceased by Abdul Munaf appellant alone. The judgment of the trial Court is neither illegal nor perverse. The reasons given by the trial Court find support from the evidence on record and the circumstances appearing in the case. Pursuant to the above discussion, I do not see any justification to interfere with the well reasoned judgment of the trial Court. So, the revision is dismissed hi limine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 480 Present: MUHAMMAD MUNIR KHAN, J MUHAMMAD AFZAL and another-Appellants versus THE STATE-Respondent Criminal Appeal No.22 of 1984, accepted on 7.5.1991. Benefit of Doubt- —Murder case—Conviction in—Challenge to—Trial Court disbelieved prosecution version to a great extent-It has not believed presence of one eye­ witness on spot-Eye-witnesses are closely related to deceased-Injuries suffered by appellant No.2 have not been properly explained by eye-witnesses-­ Recovery of blood stained Chhuri from house of appellant No.l after four days of occurrence runs counter to natural probabilities-Trial Court has convicted appellants on a theory which does not find support from evidence—Held: There being confusion and darkness around, trial court should have given benefit of doubt to appellants-Appeal accepted and conviction set aside. lPp.484&485]A&B Rana Muhammad Sarwar, Advocate for Appellants. Mr. S.D.Qureshi, Advocate for State. Date of hearing: 7.5.1991. judgment This criminal appeal No.22 of 1984 filed by Muhammad Ayub and Muhammad Afzal, appellants, and State Appeal No.442 of 1984 against acquittal of Mehmood Ahmad, respondent, arise from the judgment of Additional Sessions Judge. Faisalabad, whereby he, on 21.12.1983, while acquitting Mehmood Ahmad ,, convicted Muhammad Ayub and Muhammad Afzal, appellants, under section 308 and 304 P.P.C. and sentenced them as under:- a 1. Muhammad Ayub, appellant to three years RI and a fine of i, under section 308 PPC. Rs.5000/- or in default thereof one r. .year R.I. 2. Muhammad Afzal, appellant to ten years RI and a fine of , under section 304(1) PPC. Rs.10,000/- or in default thereof two years R.I. . I propose to dispose of them through single judgment. 2. The occurrence took place on 2.5.1981 at 2.00. P.M. in Lane situate in Ward No.3 Dijkot. The F.I.R. Ex.PM was lodged by Muhammad Sarwar, PW.7, brother of Muhammad Ashraf, deceased, on the same day at 4.45 P.M. at Police Station Dijkot and was recorded by Rustam Khan SI, PW.13. The distance between the place of occurrence and Police Station was/is 2h furlongs. The parties besides being closely related were neighbours. Muhammad Ayub, appellant, is son of Mahmood Ahmad acquitted accused. Muhammad Afzal is brother of Mahmood Ahmad, acquitted accused. Muhammad Ayub, appellant, and Mehmood Ahmad acquitted accused are the first cousins of the father of the deceased. Muhammad Sarwar, PW7, is the brother of Muhammad Ashraf, deceased. 3. There was no serious enmity between the parties. However their relations were strained on account of quarrel over the division of an Ihata and the ; placement f the drains. The immediate cause of the attack by the I appellant/accused on the deceased and his brother Muhammad Sarwar complainant allegedly was that ust before the main occurrence, Muhammad , Arzai accused was going towards his fields when Muhammad Sarwar, PW7, came out of his house and coughed. Muhammad fzal took exception to it. Muhammad ', Sarwar. PW7, explained that he had not coughed to insult or annoy him. Muhammad Afzal appellant feeling not satisfied ith he explanation of Muhammad Afzal threatened Muhammad Sarwar with dire consequences and left : in his field 4. As far the main occurrence, it has been stated that after some time of incident (coughing) Muhammad Ayub, appellant, armed with hockey, Muhammad Afzal appellant carrying churri in his hand, and Mehmood Ahmad holding Sola in his hands came in front of the house of Muhammad Sarwar complainant and raised lalkara asking him to come out of the house. In the meantime, Muhammad : Ashraf, deceased, and Muhammad Anwar P.W. returned from their fields. On seeing them, the appellants and the acquitted accused raised lalkara that they should be caught hold of. Meanwhile, Muhammad Sarwar came out from his house. Muhammad Ayub gave two stick blows on his shoulder. Mehmood Ahmad gave two Sola blows on his person. Muhammad Ashraf, deceased, tried to intervene, when Muhammad Afzal gave chuni blows in his abdomen. On receiving these injuries, Muhammad Ashraf, deceased, retreatd towards Pacca road but fell down at a distance of 8/10 paces. The occurrence was also seen by Nazir Khan PW8 and Iqbal (not produced). Muhammad Ashraf, deceased, was removed to District Headquarter, Faisalabad, by Muhammad Sarwar, complainant, and others. 5. Dr. Muhammad Ajmal, PW1, had examined Muhammad Ashraf and Muhammad Sarwar. He found one stab wound on the left side of the abdomen of Muhammad Ashraf and four injuries caused with blunt weapon on the person of Muhammad Sarwar, complainant. One of the injuries of Muhammad Sarwar on the back of the right elbow was grievous and the others were simple. Muhammad Ashraf, died in the Hospital on 5.5.1981 at 7.50 a.m. So Dr. Muhammad Ajmal, PW1, conducted post-mortem examination on his body and found following injuries on his person: - 1. A stitched stab wound 4cm long at 1-0-clock position of the umblicus on the left side of the abdomen, cutting peritoneum and stomach underneath. 2. A stitched wound of laparatomy operation llcm long vartically on the left side of abdomen. On opening the thorax, the doctor found the right side of the heart containing blood while the left side was empty. On opening the abdomen, its walls were found cut and stitched as mentioned above. The peritoneum was congested. The stomach was found cut and stitched and was empty. The intestines, both lerge and small were congested and contained clotted blood. The urinary bladder was empty. In the opinion of the doctor, the death was due to shock and haemorrhage added with septicaemia and peritonitis resulting from injury No.l. The injury was caused with sharp pointed weapon and was sufficient to cause death in the ordinary course of nature. The injury was grievous and ante-mortem. The probable time that elapsed between the injury and death was about 2-3 days while the same between death and post-mortem was seven hours and twenty minutes. The doctor proved the post mortem report Ex.PD and the pictorial diagram Ex.PB/1, 6. The appellants and Mehmood Ahmad acquitted accused were arrested on 6.5,1981 by Rustam Khan, Sub Inspector, PW.13. On 8.5.1981 Muhammad Ayub got recovered hockey stick P6 from his house which was taken into possession vide memo PQ attested by Habib-ur-Rehman, PW.12. On the same day and in the presence of the same witnesses Muhammad Afzal, appellant, led to the recovery of blood stained churn P7 from his house which was taken int possession vide memo PR. On the same day, Mehmood Ahmad got recovered Sota P8 from his house in the presence of the same witnesses which was taken into possession vide memo PS. The Forensic report shows that the chum was stained with human blood. 7. To prove its case, prosecution produced 13 witnesses. Muhammad Sarwar, PW.7, Nazir Khan, PW.8, and Muhammad Anwar, PW.9, have given the ocular account of occurrence. They claimed to have seen Muhammad Afzal, appellant, giving chum blows to Muhammad Ashraf, deceased, and Mahmood Ahmad acquitted accused giving two sola blows each on the person of Muhammad Sarwar complainant. Muhammad Sarwar has also eposed about the background of the occurrence. Habib-ur-Rahman, PW.12, and Rustam Khan, S.I.PW.13, have supported the incriminating recoveries from the appellants an the acquitted accused. Dr. Muhammad Ajmal has proved the medicolegal report of the deceased and of Muhammad Sarwar complainant and also post-mortem examination report of the deceased. Dr. Bashir Hussain Kahlon, PW.6. medically examined Muhammad Ayub, appellant, on 3.5.1981, at 12.30 a.m. He found following injuries on his person. 1. An incised wound 4cm x 3/4cm into bone cut through and through on the back of left hand in the area of 5th matacarple bone at its middle 2. A contused mark 7 cm x 2 cm on the back of right scapular rigion. 3. Three contused marks 8 cm x Ik cm on the back of the left side of the chest. 4. A swelling 8 cm x 8 cm on the outer side of left high. According to the doctor, injury No.l had been caused with sharp edged i weapon and was grievous in nature while the remaining injuries were simple in : nature having been caused with blunt weapon. The probable duration between the i injuries and the medical examination was about nine hours. The rest of the evidence was/is of formal nature. ". When examined under section 342 Cr.P.C. the appellants denied all i incriminating circumstances. Admitting his presence on the spot Muhammad ! Ayub explained that at the eventful time when he came out of his house ': Muhammad Ashraf armed with churn, Muhammad Sarwar, complainant, armed with stick launched attack on him and caused injuries with their weapons. He raised alarm which attracted a large number of people to the spot and someone from them inflicted churri blow to Muhammad Asraf in order to safe his (Muhammad Ayub) life. The appellant and the acquitted accused did not produce any evidence in defence. The trial Court has disbelieved the motive, presence of Muhammad Anwar PW, participation of Mahmood Ahmad co-accused, 50% of .the story of the prosecution and on its own theory inferred from the facts and circumstances of the case has convicted and sentenced the appellants for their individual acts, as stated above. 8. Learned counsel for the appellants contended that after having disbelieved the motive, and the prosecution story partly, and participation f one of the accused, the trial Court was not justified in convicting the appellants on its own theory which was/is not supported by the facts of the case. He further submitted that the eye-witnesses having suppressed the injuries of Muhammad Ayub, appellant, could not have been relied upon for convicting the appellants. Learned counsel for the State has not only supported the conviction of the appellants but was also of the view that the acquittal of Mahmmood Ahmad, coaccused was wrong on facts and law. 9. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the appellants. I find that the trial Court has isbelieved the prosecution version to a great extent. The trial Court has not believed the presence of Muhammad Anwar, one of the eye-withnesses on the spot and has also disbelieved the presence and participation of Mahmood Ahmad co-accused. The trial Court has given sound and cogent reasons in this respect. The eye witnesses are not only closely related to the deceased but it seems to me that they have given the evicence with the motive other than that of telling the truth. Muhammad Ayub suffered four injuries. One of the injuries caused with sharp edged weapon was grievous in nature.. Strangely enough, these injuries have not properly been explained by the eye-witnesses. By the fact of the injuries on the person of Muhammad Ayub, it is very much established that the deceased party was armed with sharp edged weapon as well as blunt weapon. The eye-witnesses have suppressed the part played by them in the occurrence. In view of the alleged background of the occurrence, the deceased had also a motive to attack Muhammad Ayyub and Muhammad Sarwar. The eye-witnesses are basically dishonest witnesses. They have not been believed to the extent of the presence of Muhammad Anwar PW and to the extent of one accused namely Mahmood Ahmad. Recovery of blood stained chum from Muhammad Afzal after four days of the occurrence and that too from his house where he could easily wash away the blood on the blade, runs counter to the natural probabilities. I am convinced that the trial Court has failed to appreciate the case and evidence on record in ccordance with the guide-lines given by the superior Courts for the appreciation of evidence in such like cases. The trial Court has convicted the appellants on a theory which does not find support from the evidence and circumstances appearing in the case. There was confusion and darkness around,, so instead of drawing inference with the help of telescope, for convicting the appellants, the trial Court should have given the benefit of doubt to them. 10. Pursuant to the above discussion, there being no satisfactory basis to B uphold the conviction and sentence of Muhammad Ayub and Muhammad fzal, appellants, Criminal Appeal No.22 of 1984 is accepted and they are acquitted of the charge. They are on bail and stand discharged of the bail bonds. Resultantly the connected appeal against the acquittal of Mahmood Ahmad, accused, fails and i is dismissed. (MBC) (Approved for reporting) Appellants acquitted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 485 (DB) Present: muhammad munir khan and rashid Aziz khan, JJ MUHAMMAD ASHRAF-Ap'pellant versus THE STATE-Respondent Criminal Appeal No.497 of 1990, accepted on 14.7.1991. Benefit of doubt- —Offence under Section 5 of Explosive Substances Act, 1908—Conviction for— Challenge to--Out of three recovery witnesses, only one was a public witness who has not supported recovery of hand grenades from appellant—Statements : of Police witnesses are contradicted by independent public witness—Although public witness was declared hostile and was cross-examined by prosecution but is credibility could not be shaken-Held: No implicit reliance can be placed on statements of police officials-Benefit of doubt extended. [P.486JA&B Ch. Muhammad Anwar Bhinder, Advocate for Appellant. MrA.HMasud, Advocate for State. Date of hearing: 14.7.1991. judgment Muhammad Munir Khan, J:— This criminal appeal arises from the judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities), Gujranwala , whereby he on 13-8-1990 convicted Muhammad Ashraf appellant under section 5 of the Explosive Substances Act 1908, and sentenced him to seven years' R.I.. The whole of his property was also forfeited in favour of the State. 2. The charge against the appellant was of keeping bullet box containing three hand grenades P.I to P.3 and three fuses on 28-9-1988. The appellant had no license to keep the hand grenades. He denied the charge and claimed to be tried 3. To prove its case, the prosecution (examined) four witnesses. Umar Hayat S.I. (PW-1) is a formal witness. He drafted the F.I.R. Muhammad Saleem (PW-2), Nazir Ahmad S.I. (PW-5) and Hakim Ali S.I. (PW-3) are the witnesses of recovery. Muhammad Saleem (PW-2) refused to support the alleged recovery o hand grenades etc from the appellant. However Hakim Ali S.I. (PW-3) and Nazi Ahmad S.I. (PW-5) have supported the prosecution case. Shahid Mahmood Khan PW-4/Assistant Inspector of Explosives is Firearm Expert. He has proved his report. 4. When examined under section 342 Cr.P.C, the appellant denied the recovery of hand grenades from him and raised the plea of false implication. 5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as Muhammad aleem Public man, has not supported the recovery of hand-grenades from the appellant. The learned counsel for the State has supported the judgment of the rial Court. 6. We have considered the submissions made by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellant. We find that there were three witnesses of the recovery of handgrenades from the appellant, out of them Muhammad Saleem belonged to t e public and the remaining two were/are police officials. Muhammad Saleem PW-2 has not supported the recovery of the hand-grenades from the appellant. The police officials were/are naturally interested in the conviction of the appellant. There is no independent corroboration of the statements of the police officials rather there is contradiction of their statements by an independent person. The statement of Muhammad Saleem PW-2 cannot and should not be discarded for the reasons that he was declared hostile. The declaration of hostile by a Court does not make the statement of a witness doubtful in any manner. The Court only allow the Prosecutor to cross-examine the witness to shake his credibility. In the instant case, nothing adverse to the witness and advantageous to the prosecution could be elicited through cross-examination of this witness. In hese circumstances, we feel that no implicit reliance can be placed on the statements of the police officials. 7. Pursuant to the above discussion, the appeal is accepted and giving him the benefit of doubt, the appellant is acquitted of the charge. He is on bail. He stands discharged of the bail bond. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 486 (DB) Present: muhammad munir Ki ian and rashid AZIZ KHAN, JJ SHAFAQAT ALI-Appellant versus THE STATE-Respondent Criminal Appeal No.224 of 1991 (also Crl. Appeal Nos. 225, 228, 299, 304 and 428 of 1991) accepted on 31.7.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S.399--Preparation to commit dacoity-Offence of--Conviction for-Challenge to--There is no direct or indirect evidence that appellants had prepared or were making preparation to commit dacoity and no other offence—Persons who had informed police that appellants were making preparation to commit acoity. have not been produced-Possibility that appellants were carrying arms for a purpose other than that of committing dacoity, e.g. abduction, murder etc., cannot be excluded-Held: Strong, cogent, clear and definite evidence would be required to prove that accused were really making "preparation" to commit" dacoity'--Appeals accepted. [Pp.488&489]A&B Mr. Sarnar Hussain Shah. Advocate for Appellants. fOt. Shaukat Aii. Advocate for State. Date of hearing: 317.191. judgment 2 Muhammad Munir Khan, J:-- These six criminal appeals No. 224/91 filed by Shaffaqat Ali, No. 428/91 filed by Abdul Wadood, No. 304/91 filed by Taslim Ahmad, No. 225/91 filed by Muhammad Yusuf, No. 299/91 filed by Bashir j Ahmad and No. 228/91 filed by Salamat Ali, appellants, arise from the same judgment passed in a case in which the appellants were jointly tried by Presiding ] Officer, Special Court (Suppression of Terrorist Activities) Lahore, whereby he, on 13.3.1991 convicted them under section 399 PPC and sentenced them to five years RI and a fine of Rs. 20,000/- each or in default thereof further RI for one year. We propose to dispose of them through this single judgment. 2. The charge against the appellants was that on 26.2,1989 they were making preparation for committing the dacoity while equipped with fire arms, and were arrested by the police from suzuki Pick Up No.LHN/3060, near Lady Maclagan Girls High School, Lodge Road, Lahore, by Mian Nazir Ahmad, nspector/SHO, PYV6. and the other police officials. They denied the charge and claimed to be tried. 3. To prove its case, the prosecution produced six witnesses. Mian Nazir Ahmad. PW6, stated that on 6.2.1989 he, Rehmat Ali Butt, SI, PW5 and other | police oificials, were present in Tollinton Market. On receiving information, that app llants/accused were preparing to commit dacoity and were going fom howk stambol towards MAO College at Bank Road, while carrying fire-arms, in ick- UP Suzuki No. 3060/LHN, they chased the suzuki Pick-Up and intercepted the same at Mclagan Road. Three persons namely Abdul Wadood, Maula and Ahmad gui sitting on the front seat ran away and could not be apprehended, whereas he appellants were apprehended. At that time Taslim, appellant, was armed with Klahsnikov PI, magzines P2, 22 bullets P3/1-22, which were taken into ossession vide memo PH, Muhammad Yusuf appellant was having revolver P5 and 5 bullets P5/1-5 which were taken into possession vide memo Ex.PK, Shabir li, appellant was armed with gun P7 and 5 cartridges P8/1-4, which were recovered and taken into possession vide memo Ex.PL, Salamat Ali, appellant was carrying a gun P9 bullets P-10, which were recovered and taken into possession vide memo Ex.PM, Dost Muhammad, appellant, was armed with Klashnikov PI and 25 bullets P- 12/1-25, 3 magzines P 13/1-3 and a bandoliar P14 which were taken into possession vide memo Ex. PN, Bashir Ahmad, appellant, armed with one mozar P15 and 4 bullets P16/1-4, which were taken into possession vide memo Ex.PO. He also took into possession the Suzuki Pick-up P-17, vide memo Ex.PQ. Rehmat Ali SI.PW5. fully supported the statement of Mian Nazir Ahmad, Inspector PW6. The rest of the evidence was with regard to the service of warrants of arrest issued against Ahmad Gul, Abdul Wadood, Dost Muhammad, Muhammad Sabir and the copies of the proclamation. They have proved the reports made by them. 4. When examined under section 342 Cr.P.C, the appellants denied all the incriminating circumstances, allegations and also the incriminating vidence against them. They produced six witnesses in defence. 5. Believing the prosecution case and evidence produced by it and disbelieving the plea of false implication raised by the appellants and efence evidence, the trial Court has convicted and sentenced them as stated above. A 6. Learned counsel for the appellants mainly contended that the important ingredients of offence under section 399 PPC i.e. "preparation" and that lso to commit the "dacoity" have not been proved by the prosecution. Learned counsel for the State is not a position to controvert him. 7. We have carefully attended to the arguments addressed by the learned counsel for the parties with care. We feel persuaded to agree with the earned counsel for the appellants. We find that there is no direct or indirect evidence to the effect that the appellants had prepared, or were making preparation and that the preparation made by them or the preparation being made by them was to commit dacoity and no other offence. From the circumstances of the arrest of the E appellants duly armed it cannot/should not be inferred that they were making preparation to commit an offence and that too of dacoity. In the instant case the persons who had informed the police that the appellants were making preparation to commit dacoity have not been produced. The prosecution evidence simply is A that the appellants while travelling in a Suzuki Pick-Up were found carrying firearms with them. It may be noted here that they have separately been charged and tried for the offence under the Arms Ordinance. Since in the instant case, except the inadmissible evidence of Mian Nazir Ahmad PW6 that the appellants were preparing to commit dacoity, there is nothing on record in proof of the allegations that the appellants had prepared or were making preparation to commit dacoity, the possibility that the appellants were carrying arms for a purpose other than that of committing dacoity, e.g. for abduction, for roiling, for murder can not be Excluded. So their arrest with firearms will not bring their act within the purviev of Section 399 PPC. Since it is very easy to concoct a case under section 399 PPC alleging that the persons carrying weapons were making preparation to commit dacoity or that he police had a secret information to the effect that some persons were preparing to commit dacoity, therefore, strong, cogent, clear and definite evidence would be required to prove that the accused were really making "preparation" to commit "dacoity". It goes without saying that this offence of preparation to commit dacoity is an exception to the general rule that the two stages towards the commision of crime i.e. intention and preparations are no offence and the crime would start from the stage of attempt to commit the same. 8. Pursuant to the above discussion, all the six appeals are accepted and the | , appellants are acquitted of the charge. They shall be released forthwith, if not j required to be detained in any other case. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Lahore) 489 Present: muhammad munir khan, J ALI MUHAMMAD and 5 others-Petitioners versus THE STATE-Responden Criminal Revision No.35 of 1989, accepted on 26.5.1991 Criminal Procedure Code, 1898 (V of 1898)-- — -S.367 (2) & (3) read with Pakistan Penal Code, 1860, Sections 440, 448, 148 & 149-Criminal trespass-Offence of-Conviction for-Challenge to—Although petitioners were charged and convicted under as many as four sections of PPC, yet no separate sentence under each section was passed by trial court'-Held: Conviction and sentence of petitioners being violative of mandatory provisions of Section 367 (2)&(3) of Cr.P.C cannot sustain-Held further: Occurrence facing taken place in 1986, petitioners having faced agony of protracted trial ajid having been sent to Jail thrice, it would not be proper to direct their re- ^ triai. [P.490]A&B Mr. Abdul Sattar Chughtai, Advocate for Petitioners. Syed All Raza, Advocate for State. Date of hearing: 26.5.1991. judgment Ali Muhammad and 5 others petitioners were tried under Sections 440/448/148/149 P.P.C. on the allegations that they on 19.2.1986 at 8-00 A.M. demolished two walls of the house of Feroze Khan complainant and encroached " upon the same, by Magistrate 1st Class, Jauharabad. They denied the charge and claimed to he tried. 2. To prove its case, prosecution produced 5 witnesses. Muhammad Feroze Khan P.W.2 supported the charge against the petitioners. Muzaffar Hussain P.W.I, Muhammad Sumair P.W.3 and Muhammad Mumtaz P.W.4 are the eye­ witnesses of the occurrence. They have supported the statement ade y Muhammad Feroze P.W.2 in all material particulars. When examined under Section 342 Cr.P.C., the petitioners denied the incriminating circumstances. They did not produce any witness in defence. 3. The trial Court vide its order dated 18.6.1987 convicted Fateh Khan and Shameer petitioners under Sections 440/448/148/149 P.P.C. and sentenced them to one year R.I. each. The remaining petitioners were convicted under Section 448/148/149 P.P.C. and sentenced to six months R.I. each. The appeal filed by he petitioners against their conviction and sentence was dismissed by the learned Additional Sessions Judge, Khushab on 23.1.1989, hence this revision. 4. Since after hearing the learned counsel for the parties, I feel persuaded to set-aside the convictions and sentence of the petitioners on account of legal infirmities in the judgment, so I need not set out the facts in detail and enter into the merits of the case. I find that although the petitioners were charged and convicted under as many as four sections of Pakistan Penal Code, yet no separate sentence under each section was passed by the trial Court. This being violative of the mandatory provisions of Section 367(2) (3) Cr.P.C., conviction and sentence of the petitioners cannot sustain. The relevant provisions may be reproduced advantageously: - Sec.367 Cr.P.C.(2) "It shall specify by offence (if any) of which and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced. (3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative". Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioners are set-aside. 5. Now the question arises as to whether or not, direction for the retrial of the case be given? I find that the occurrence took place in the year, 1986. The petitioners have faced the agony of protracted trial. They were sent to jail thrice and have remained in jail as under trial prisoners and also as convicts, so, it ay not be proper to direct their retrial after 5 years of the occurrence. Disposed of accordingly. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Cr PLJ 1991 Cr.C (Karachi) 491 (DB) Present: IMAM ALI G. KAZI AND ALLAHDINO MEMON, JJ RAHIMUDDIN-Appellant versus THE STATE-Respondent i Criminal Appeal No.186 of 1990, dismissed on 16.7.1991. (ii Pakistan Penal Code, 1860 (XLV of 1860)- —S.409--Criminal breach of trust—Offence of—Conviction for—Challenge to- Held: It has conclusively been proved beyond any reasonable doubt that appellant had in fact misappropriated an amount of Rs.85000/- that was entrusted to him to be credited in account of complainant-Appeal dismissed ' but sentence modified. [P.494JC (ii) Pakistan Penal Code, 1860 (XLV of I860)-- —S.409-Criminal breach of trust-Offence of-Conviction for-Challenge to- , Word "banker" has not been used in Section 409 PPC in purely technical sense- -Any person who discharges functions of a banker by way of his normal ! business, will be treated as a "banker" for purposes of said section-Held: Appellant as a Manager of branch of National Bank was carrying on business of a "banker" and was liable to be convicted under Section 409 PPC. [P.493JA (iii) Qanun-e-Shahadat, 1984 (PO 10 of 1984)-- —Art.59-Criminal breach of trust-Offence of-Conviction for-Challenge to~ Whether PW1 was not skilled handwriting expert and his evidence was to be ] excluded-Question of-Article 59 of Qanun-e-Shahadat requires that opinion : in respect of identity of handwriting of a person can be given by a person especially "skilled" in such subject-Evidence indicates that PW1 had examined 900 suspect documents, received training in institutions at Karachi, Peshawar and Lahore, and had given evidence as an expert before various courts-Held: PW1 can very well be said to be especially "skilled" in subject and evidence ' given by him will be taken to be relevant. [Pp.493&494]B Mr. Dewan Bashir Ahmad Klian, Advocate for Appellant. Mr. Muhammad Zubair Qureshi, Advocate for State. Date of hearing: 16.7.1991. judgment Imam Ali G. Kazi, J.—The appellant Rahimuddin who was the Manager of • National Bank of Pakistan, Bohrapir Branch, Karachi, has been convicted under Section 409 PPC by the Presiding Officer, Special Court (Offences in Banks) at , Karachi, by his judgment passed on 6.12.1990 and sentenced to suffer rigorous ( imprisonment for 7 years and to pay of fine of Rs.200,000/- or in default of such payment to further suffer R.I. for 6 months. Out of the amount of fine when realised an amount of Rs.85,000/- has been ordered to be paid to the bank to cover the losses suffered by it. The appellant was accused of having misappropriated various amounts relating to three accounts of that Branch but the present conviction relates to Account No.9053 which was operated by one Muhammad Ibrahim. It is against this judgment that the present appeal has been filed. The case of the prosecution briefly stated is that one Muhammad Ibrahim had opened an account with Bohrapir Branch of National Bank of Pakistan at Karachi, bearing Account No.9053. The Account Holder had obtained a loan from the said bank and he had made certain payments towards the loan. The Account Holder had sent an amount of Rs.85,000/- through Qazi Imdad Hussain, Advocate to be deposited in his loan account. The wife of Qazi Imdad Hussain had earlier offered herself to be the surety for the payment of amount of loan advanced to Muhammad Ibrahim. The appellant received the amount of Rs.85,000/- from Qazi Imdad Hussain, Advocate on behalf of Muhammad Ibrahim and issued a counter-foil of pay-in-slip under his signature (Ex.2/B-2). Such an entry of receipt of amount of Rs.85,000/- was not kept by him in the other record of the Bank. Similarly on two' other occasions certain other amounts were deposited but entries were not made in the other record of the Bank. Account Holder Muhammad Ibrahim came to know that the amount of Rs.85,000/- sent through Qazi Imdad Hussain, Advocate to the Bank for crediting in his loan account was in fact not credited in his account. He, therefore, filed a complamt in writing to the Regional Head of the Bank of 22.5.1989 (Ex.3/A). This complaint was forwarded to Mr.Maqbool Butt (P.W.3) for investigation. Mr.Maqbool Butt after a detailed enquiry reported to his superior MrAthar Hussain that he did not find any entry showing the credit of Rs,85,000/- in the books of accounts inspite of having signed the counterfoil of pay-in-slip (Ex.2/B- 2). MrAthar Hussain then directed that a complaint be registered with Federal Investigation Agency. Complaint was then made and the Federal Investigation Agency registered the case on 31.5.1989. After usual investigation Federal Investigation Agency put up a challan for trial of the appellant under Section 409 and 477-A PPC in the Special Court (Offences in Banks) at Karachi. The prosecution in support of their case examined Muhammad Ibrahim (P.W.5, the Account Holder), Qazi Imdad Hussain, Advocate (P.W.6, who had. deposited amount of Rs.85,000/- towards the loan account of Muhammad Ibrahim and obtained counter-foil of the pay-in-slip duly signed by the appellant), Muhammad Maqbool Butt, the Vice President of the National Bank of Pakistan (P.W.3, who had conducted the enquiry under orders of MrAthar Hussain and lodged the report), MrAthar Hussain, Vice President of the Inspecting Department of the National Bank of Pakistan (P.W.2, who had endorsed the complaint of Muhammad Ibrahim to Mr.Maqbool Butt), Moula Dad Khan, Handwriting Expert) (P.W.I, who had examined the relevant documents in the case), Mohsin Rafiq (P.W4) Head Cashier of the Branch, Sami Ahmad (P.W.7) working as Assistant in that Branch, Abdul Salam Arif (P.W.8) Inspector working in the National Bank of Pakistan, Nazneen Naz Ansari (P.W.9) the Additional City Magistrate (South) Karachi, who had obtained specimen handwriting of y appellant and attested the same for being referred to Handwriting Expert and r Mushirs and Investigating Officers. In addition to above witnesses prosecution j also examined certain other witnesses in respect of misappropriation of certain ^ other accounts by the appellant but such witnesses are not relevant for the ^ purpose of this appeal. The appellant in his statement generally denied all the allegations of the : prosecution. He neither examined himself on oath nor led any defence. On the basis of oral and documentary evidence produced by the prosecution the appellant has been convicted and sentenced as above e Mr.Dewan Bashir Ahmed, Advocate for the appellant in support of this ^ appeal mainly contended that the appellant was not a "Banker" but was an n employee of a Bank and he could not have been convicted under Section 409 PPC. , He consequently contended that he ought to have been tried for offence under Section 408 PPC. He further contended that the evidence of the Handwriting , Expert cannot be treated as evidence in the case as the Handwriting Expert examined in the case is not an expert witness in terms of Article 59 of the Qanune-Shahadat. He relied on a case of Syed All Nawaz Gardazei v. LlCol. Muhammad Yousuf published in PLD 1963 Supreme Court 51. e Mr.Muhammad Zubair Qureshi, Advocate appearing for the State supportedthe judgment and the sentence as according to him conviction has been based on , reliable and cogent evidence.The word "Banker" has not been used in Section 409 PPC in purely technical n sense. Any person who discharges the functions of a banker by way of his normal business will be treated as a "Banker" for the purposes of the said section. A j Manager of a Bank is expected tg carry on the business of a banker and therefore in a case where such a person commits an offence of criminal breach of trust it

, will come under mischief of Section 409 PPC. In the present case admittedly the A appellant as a Manager of the Bohrapir Branch of National Bank of Pakistan was carrying on the business of a "Banker" and was liable to be convicted under Section 409 PPC. Such a view is supported by the decision reported in 1960 Criminal Law Journal 188 and the case reported in 1986 Pakistan Criminal Law Journal 71. The first contention advanced by Mr.Dewan Bashir Ahmed, Advocate, therefore, has no force. Moula Dad Khan (P.W.I), the Handwriting Expert was examined by the prosecution and he stated in his examination that he had completed courses in J e examination of documents from various institutions established by the Police in Y ll Pakistan and during the course of his career he had examined at least 900 questioned documents and given evidence in respect thereof in various courts. Although in his cross-examination he admitted that he has not obtained any academic degree in the subject. Article 59 of the Qanun-e-Shahadat requires that the opinion in respect of the identity of Handwriting of a person can be given by a person specially "Skilled" in such subject. The evidence indicates that P.W. Moula Dad Khan had examined 900 suspect documents, received training in institutions established at Karachi, Peshawar and Lahore and given evidence as an expert before various courts. In view of his such training and experience, he can very well be said to be specially "Skilled" in the subject and evidence given by him will be taken to be relevant. The second point raised by Mr. Dewan Bashir Ahmed is also of no force. We have carefully gone through the evidence recorded in the case and found from the evidence of several witnesses examined by the prosecution that it had conclusively proved beyond any reasonable doubt that the appellant had in fact misappropriated an amount of Rs.85,000/- that was entrusted to him by witness Qazi Imdad Hussain, Advocate on behalf of Account Holder Muhammad Ibrahim to be credited in the account of latter for the adjustment of the loan advanced to C him by the Bank. No other point was raised by the learned counsel for the appellant and in view of above we had found no force in this appeal and by our short order passed on 16.7.1991 had dismissed the appeal with a modification in the sentence to the extent that instead of payment of fine of Rs.200,000/-, the appellant shall pay a fine of Rs.170,000/- (one lac seventy thousand) being double the amount of the amount misappropriated by him and in default of payment thereof further suffer R.I. for 4 months instead of 6 months. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C. (Karachi) 494 (DB) Present: S ABDUR RAHMAN AND MUKHTAR AHMAD JUNEJO, JJ ABDUL RAHEEM-Appellant versus THE STATE-Respondent Criminal Appeal No.84 of 1991, dismissed on 11.7.1991 (i) Arms Ordinance, 1965 (W.P.Ord.XX of 1965)- —Section I3(d) read with Criminal Procedure Code, 1898, Section 103--Five Klashinkovs-Recovery of-Conviction for-Challenge to-There is force in contention of State counsel that since recovery took place at an odd hour of night, hence recovery evidence cannot be disbelieved for want of private mashirs~He(k Appellant did not allege enmity with any of PWs and mere fact that PWs were police officers does not mean that they were incapable of telling truth. [Pp.497&498]A 1986 SCMR 1482 rel . (ii) Criminal Procedure Code, 1898 (V of 1898) -—Section 103 read with Arms Ordinance, 1965, Section 13 (d)—Five Klashnikovs-Recovery of-Conviction for--Challenge to~Whether non- ' associating of witnesses from locality is atal-Question of~In peculiar circumstances of case, it was difficult, if not impossible, for police to procure private persons to witness search and there was risk of appellant fleeing away-­ Held: on-picking up of private persons to witness recovery, is of no consequence in a case of this nature-Appeal dismissed. [P.498]B&C . PLJ 1990 Cr.C ( Karachi ) 471 (DB) not applicable. 1988 P Cr.LJ 2331 rel. Mr.Zia Ahmad Awan, Advocate for Appellant. Mr.Zubair Qureshi, Advocate for State. Date of hearing 9.7.1991. judgment Mukhtar Ahmad Junejo, J.--Appellant Abdul Raheem has questioned his e conviction for the offence punishable under Section 13 (d) of the Arms Ordinance and his sentence of R.I. for five years, ordered by the Special Court No.l (Suppression of Terrorist Activities) Karachi on 16.2.1991. 2. According to the prosecution on the night between 16th/17th December 1990 a police party, headed by S.I.P. Muhammad Iqbal Niazi of C.I.A. left for patrol duty. While performing atrol duty, the police party reached near drive-in cinema where they received an information at 1-00 A.M. that a person availabl behind the bushes and carrying a bag on his shoulder was about to hand over arms and ammunition to some-body. On receiving such information the police party rushed to the suggested place, where the appellant was found carrying a bag on his soulder. He was stopped and the bag was secured from him. He disclosed his name as Abdul Raheem and the bag, on opening, was found to contain five kalashnikoves and five magazines. The same were secured and the appellant was arrested, under a masliimama. Since private persons were not there, as such ASI Muhammad Ali and H.C. Muhammad Hanif acted as mashirs. Subsequently H.C. Muhammad Hanif was deputed with written report to Police Station Sharah-e- Faisal Karachi, where case under Section 13(d) of Arms Ordinance was registered against the appellant. 3. The case at said Police Station was registered on written complaint of SIP Muhammad Iqbal Khan Niazi who investigated the case. The recovered property it was sent to the Ballistic Expert who examined the same and issued report. Interogation of the appellant showed that the arms in question were meant for sale. On completion of investigation, the case was challaned. 4. The appellant pleaded not guilty to the charge Exhibit-2 containing the prosecution allegations. Prosecution examined PWs. Muhammad Ali iazi Exhibit-3, Muhammad Iqbal Niazi Exhibit-4 and Sher Muhammad Exhibit-5. 5. In his statement Exhibit-6 the appellant denied the prosecut on allegations and stated that all the witnesses against him were police officers. Appellant took plea that he was picked-up from a cabin near Drive-in Cinema, with no recovery from his possession. He added that he was taken by the olice to CIA C ntre where he was seriously beaten. That ultimately he was falsely implicated in this case by police, at the instance of persons, ho have tribal enmity with him. 6. In his defence, the appellant gave a statement on oath Exhibit-7 and exaimined DW. Shujauddin Exhibit-8. At conclusion of the trial, learned trial Court convicted the appellant and sentenced him to imprisonment as already ( stated. Hence this appeal. 7. Mr.Zia Ahmad Awan, learned advocate, who was appointed to argue case of the appellant, contended that all the witnesses against the appellant were police officers. That there were many houses at the place of the recovery, yet no independent person was picked-up to act as mashir. Learned counsel urther argued that there were contradictions about the time of receiving the spy information and about the time of recovery of the arms, because as per deposition of AST Muhammad Ali Exhibit-3 spy information was received at 1-15 A.M. and as per the prosecution case the recovery took place at 1-00 A.M. It was contended that recovery could not have taken place at 1-00 A.M. when spy information was received at 1-15 A.M. Learned counsel further argued that it must be quite dark at 1-00 A.M. and as such mashimama of recovery could not have been prepared at the place of recovery and that the mashimama did not state if there was any light at the place of recovery and this showed that the mashimama of recovery was prepared in CIA Centre, where police statements of the witnesses were recorded. It was also argued that the appellant was a disabled person inasmuch as his right arm was not in a position to carry any kalashnikove and that his other arm could not have carried the load of 5 kalashnikoves. Learned counsel referred to the defence evidence of Shujauddin Exhibit-8 who deposed that the appellant, who was running a cabin in front of his shop was a crippled person and that he was picked-up by a police party at 11-00 a.m. on 12.12.1990 and that this information was given to brother of the appellant. In support learned counsel for the appellant cited the case of Yameen Kwnhar v. Tlie State PLJ 1990 Cr.C (Karachi) 471 (DB). Mr.Muhammad Zubair Qureshi advocate for A.G. for State supported conviction of the appellant. He argued that if intention was to implicate the appellant falsely then one kalashnikove was enough to be foisted upon the appellant. It was added that police had no reason to foist 5 kalashnikoves upon the appellant for the purpose of implicating him falsely in the case. As regards absence of the private witnesses, learned counsel for State contended that the recovery look-place at an odd hour of night and at that time private persons could not have been present to act as mashirs. It was further argued that there was no controversy about tune of receipt of spy information and the time of recovery, because FIR Exhibit-5/A as well as depositions of witnesses indicated that the recovery took-lace at 1-15 a.m. and that the spy information was received at 1-00 A.M. As regards disability of the appellant, it was argued that 5 kalashnikoves were carried by the appellant in a bag which was tied with his shoulder and it was not being carried by the appellant with any of his hands. It was also argued that recording of Police statements in CIA Centre, did not have adverse effect on the investigation and that the mashimama was prepared at the place of recovery. Learned counsel for State cited the case of Wasiuddin IGiawar v. The State (1988 Pak. Cr.LJ. 2331). 9. We thought it necessary to have a look at the appellant, who was physically called in Court. We found right arm of the appellant to be defective but his left arm was quite normal. However, the prosectuion allegation was that the appellant was carrying 5 kalashnikoves in a bag, the load of which was lying on his shoulder. Hence even if one arm of the appellant was defective that does not belie the prosecution evidence about recovery of kalashnikoves. 10. ASI Muhammad Ali Niazi Exhibit-3 and SIP Muhammad Iqbal Niazi Exhibit-5 fully supported the prosecution story about receipt of spy information and about spotting of the appellant at katcha pacca road near Hina Bungalows behind the bushes. SIP Muhammad Iqbal Niazi said that spy information was received at 1-00 a.m. that a person was to deliver arms and ammunition and that he was available behind the bushes near katcha pacca road of Hina Bungalows. ASI Muhammad Ali Niazi Exhibit-3 said that he was informed by SIP Iqbal Ahmad Niazi at 1-15 A.M. that an information had been received that a person on katcha pacca road leading to Hina Bungalows, was available with unlicenced arms and ammunition for delivery to some-body. In this way both the witnesses supported the mashimama of recovery Exhibit-3/A. It was not put to either of the said witnesses, in their cross-examination, if the mashimama Exhibit-3/A was prepared at 1-00 a.m. 11. There is force in the contention of the learned counsel for State that since the recovery took-place at an odd hour of night, hence recovery evidence cannot be disbelieved for want of private mashirs. The appellant did not allege enmity with any of the prosecution witnesses and mere fact that PWs Muhammad Ali and Muhammad Iqbal were police officers does not mean that they were incapable of telling the truth. In the case of Sohail Amjad v. T>ie State (1986 SCMR 1482) it was observed that there is no law that the police officials cannot be believed when ithere was nothing on record to show that the police officers were in any way I inimical to the accused. 12. In the trial Court, the appellant did not raise the point that there was no sufficient light at the place of recovery, for the purpose of reparing the mashimama of recovery. In the case of Yameen Kumhar v. The State PLJ 1990 Cr.C (Karachi) 471 (DB) the view taken was that where during investigation of a crime, recovery is made from any inhabited locality, compliance with Section 103 of Cr.P.C. must be made and said section cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well founded grounds and in exceptional cases. In the cited case the recovery of two kalashnikoves and two magazines was effected from a stock of fire-wood and not from any person. Hence the cited case does not apply. In the case of Wasiuddin Khawar v. The State emphasis has been placed on compliance of the provisions contained by Section 103 of Cr.P.C. but it was held that rule about picking up of two respectable inhabitants of the locality to witness search of a house from where recovery was made, was not absolute and a search could be conducted without taking such witnesses if there is no time available or the evidence is likely to be destroyed if search is delayed or suitable persons f he locality are not available. In the peculiar circumsances of this case, it was difficult if not impossible, for police to procure private persons to witness the search and there was risk of the appellant fleeing away. Hence non-picking up of private persons to witness the recovery, is of no consequence in a case of this nature. 13. For the foregoing reasons, we maintain conviction and sentence of the appellant and dismiss this appeal. However, we direct that the appellant be given benefit of Section 382-B Cr.P.C. These are reasons for our short order dated 9.7.1991 in identical terms. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Cr PLJ 1991 Cr.C (Karachi) 498 Present: M.HussAiN AoiL khatri, J KHAN BAHADUR-Applicant versus THE STATE-Respondent Criminal Revision No.20 of 1991, decided on 3.6.1991 Criminal Procedure Code, 1898 (V of 1898)- —S.514--Surety—Confiscation of—Challenge to—Petitioner stood surety for humanitarian consideration-No enquiry has been made by Additional Sessions Judge and it is not clear from record whether any notice with regard to absence of accused from Court, was served on surety for a date prior to 27.11.1990--Forfeiture of surety amount reduced to one fifth of surety amount. [P.500JA&B PLD1963SC47/-e/. Mr.Fazlur Rehman Awan, Advocate for Applicant. Mr.Zaheer Ahmad Qureshi, Advocate for State. Date of hearing: 3.6.1991. judgment This Criminal Revision has been filed against order dated 24.3.1991 passed by the 1st Additional Sessions Judge Karachi South in Cr. Appeal No.05 of 1989, whereby the learned Judge has ordered the applicant to pay Rs.30,000/- within fifteen days failing which the legal steps will be taken against him to recover the surer.' amount.The facts are that the applicant had stood surety for accused Imam Bux who was facing trial under Section 3/4 Prohibition Ordinance, 1979, in the sum of Rs.30,000/-. After release on bail the said accused failed to attend the Court without intimation with the result that his bail bonds were forfeited and notice was issued to the applicant. The applicant according to the order of the learned Additional Sessions Judge did not appear in court inspite of repeated notices issued to him. The applicant appeared before the Court on 27.11.1990 and informed the Court that the accused Imam Bux was in Jail in some other case and also stated that he did not want to continue as surety for the accused any longer and requested for release of surety documents. He also filed affidavit in support of his application. It has been noted that the learned Additional Sessions Judge has not observed anywhere in the order that the applicant was served with the notice for any date prior to 27.11.1990. All that has been stated by the learned Judge is that inspite of the notices issued to the applicant he did not put in appearance. The applicant has placed a copy of judgment dated 12.3.1991 in Cr. Appeal No.05 ,/S9 whereby the appeal filed by Imam Bux was dismissed and the sentence awarded by the trial Court has been maintained. Under these circumstances I do not find any-justification for penalising the applicant to the full extent of surety amount. Mr.Fazlur Rehman Awan has referred the case of Dildar and another Vs. Tlie State reported in PLD 1963 S.C. 47 wherein it has been observed that in dealing with the cases of surety who are not in default, the balance is to be held between undue leniency, which might lead to abuse of the procedure and interference with course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. It was also observed that while assessing as to what extent the bond should be forfeited, regard should be had to the fact whether the surety has any direct interest through financial or blood connection with the accused or whether the surety had connived at or procured the absence of the accused and whether he has done his best to secure attendance of the accused. Ithe instant case the applicant stood surety for humanitarian consideration. o enquiry has been made by the learned Additional Sessions Judge and it is also no clear from the record whether any notice with regard to absence of the accused from the court was served on the surety for a date prior to 27.11.1990. Under these circumstances, forfeiture of the surety amount to the extent of one fifth of the surety amount is ordered. The bond of the applicant is forfeited to the extent of Rs.6,000/-. (MBC) (Approved for reporting) Order accordingly.

PLJ 1991 Cr PLJ 1991 Cr.C (Karachi) 500 Present: QAISER AHMAD HAMIDI, J. HYDER KHAN and another-Appellants versus THE STATE-Respondent Special Criminal Appeal No.ll of 1990, accepted on 29.5 1991. Customs Act, 1969 (IV of 1969)-- —S.156(l)(89)--Thirty kilograms of heroin-Recovery of-Conviction for- Challenge to--Contention that unless heroin is proved to be of foreign origin, conviction under Section 156(1) (89) of Act cannot stand-On close examination of evidence, it is noticed that prosecution has failed to establish that powder of eroin alleged to have been recovered from appellants, was made in Afghanistan-Most important witness to testify in this behalf was PW3, Deputy Assistant hemical Examiner who has shown his inability to give origin of powder of heroin-Held: There being no evidence on record to prove that appellants were found n possession of smuggled goods, conviction cannot be maintained.-Appeal accepted. [Pp.50! ,502&5031A,B,C<S ft &OH j 1984 P.Cr.LJ 1308 and 1988 P.Cr.LJ 1573 rel. Mr.Mir Nawaz KJian Marwat, Advocate for Appellants. Mr~Amir Hussain Shah, Advocate for State. Dates of hearing: 13 & 14.5.1991. judgment Appellants Hyder Khan and Gul Wali were tried by Special Judge (Customs and Taxation) Karachi, for the offence under Section 156(1)(8)(89) read with Section 178 of the Customs Act, 1969, who found them guilty for the offence under Section 156(1)(89) of the Customs Act, 1969, and vide judgment dated 15.5.1990 sentenced each of them to suffer R.I. for four years and to pay a fine of Rs.1,00,000/- or in default to suffer R.I. for one year. By this appeal filed under Section 185-F of the Customs Act, 1969, the appellants have challenged their conviction and sentence. 2. On 27.2.1989, the Supreintendent Intelligence, (Customs and Excise), Hyderabad received an information from Assistant Director, Intelligence and Investigation (Customs and Excise) Peshawar, that a huge quantity of narcotic was being transported in truck No.QAD-1386, from Afghanistan to Karachi, from where it was to be smuggled abroad. Consequently a raiding party was formed. At / about 8 P.M. the said truck reached at Toll Plaza, Super Highway near Hyderabad r in which 16 heads of cattle were being transported. Allah Bux, the owner of the , cattle was found sitting on the Tool Box. Appellant Hyder Khan was driving the truck, while appellant Gul Wali who is cleaner of this truck was found sitting near ' the driver. The truck was stopped and a formal search was made, but with no : result. Since the information was authentic and there was no proper arrangement for search on the road, the truck was taken to the office of Customs Intelligence, Latifabad, Hyderabad . On 28.2.1989 at 3 .M. a thorough search of the truck was made, which resulted into recovery of 30 bags of powder of heroin, weighing in all 30 Kgs, which were concealed in secret cavities. Out of this quantity 120 samples ' were drawn and such inventory was prepared in presence of mashirs Muhammad ' Munawar and Ghulam Mustafa. Both the appellants were taken into custody who I were served with a notice under Section 171 of the Customs Act, 1969. On the i same day the F.I.R. in this case was registered. The samples so drawn were sent to i Deputy Assistant Chemical Examiner. Karachi , who confirmed them to be of j heroin of commercial grade. After usual investigation the appellants were sent up to stand trial for the said offence. The real beneficiaries, namely, Amil Shah and Annan Shah were challaned in absentia. 3. The appellant pleaded not guilty and claimed a trial. At the trial the prosecution examined Abdul Hameed Khan, Intelligence Officer (P.W.I), Muhammad Munawar (P.W.-2), Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner (P.W.3), Iqbal Raza Naqvi, Intelligence Officer (P.W.4) Allah Bux (P.W.5), and Mushtaque Ahmad Khan, Deputy Superintendent, Customs (P.W.6). 4. In their statements recorded under Section 342 Cr.P.C. the appellants ave disputed the case of the prosecution by professing innocence. They did not examine themselves on oath. They, however, examined Khadim Ali Shaikh, Deputy Superintendent, Customs, in defence (D.W.I). d 5. On the assessment of evidence available on record, the learned Special Judge found the appellants guilty and convicted them accordingly. It is in these circumstances that the present appeal has been filed. 6. I have heard Mr.Mir Nawaz Khan Marwat, learned counsel for the appellants and MrAmir Hussain Shah, learned counsel for the State. I ave lso ° gone through the record of this case carefully 1. The most important point that the learned counsel for the appellants has been able to bring out is that, on the evidence given by the prosecution witnesses, it is not proved that the powder of heroin alleged to have been recovered from truck No.QAD-1386 was of foreign origin and unless that be so, the assumption of jurisdiction by learned Special Judge (Customs and Taxation) Karachi, was without lawful authority, and resultantly the conviction awarded to appellants cannot stand. On close examination of the evidence, I have noticed that the prosecution has failed to establish that the powder of heroin alleged to have been recovered from the possession of appellants was made in Afghanistan. There is no mention about this fact in the following documents prepared at the Initial stage of the investigation:- (/) Notice under Section 164 of the Customs Act, 1969 (Ex.4/A). («') Mashimama of initial search of truck (Ex.4/B). (Hi) Mashimama of recovery of samples (Ex.4/C), and (/v) Notice under Section 171 of the Customs Act, 1969 (Ex,4/E). There is only a passing reference about the origin of the powder of heroin in F.I.R. (Ex.4/I), the details whereof, however, find place in mashirnama of recovery (Ex.4/d), in the following words: - HEROIN MADE IN ILLAQA GHAIR, AFGHANISTAN (i) Balosha 777 Mark » -13Kgs. (h) Mushtarak Teera Marks -10 Kgs. (lii) National Corporation Illaqa Ghair DMC 555/333 - 07 Kgs. Total: 30 Kgs. This factor alone is, however, not sufficient to prove that the powder of heroin alleged to have been recovered from the possession of appellants was of foreign origin. The most important witness to testify in this behalf was Muhammad Iqbal Malik, Deputy Assistant Chemical Examiner (P.W.3), who had performed necessary tests in respect of the samples received by him, but he too was of no Assistance to the prosecution. On the contrary he has shown his inability to give ti the origin of the powder of heroin. It is quite conceivable that the eye of the expert can see a good deal more in matters of this kind than an untrained eye. The word "Illaqa Ghair" again does not necessarily mean part of Afghanistan . The tribal areas which form part of Pakistan are also called "Illaqa Ghair". Article 246 of the Constituton of Islamic Republic of Pakistan , 1973, defines such areas. The learned Special Judge has tried to meet this argument in the following words: - "In this connection it is pointed out that it has been specifically mentioned in FIR that heroin in question was of Afghan origin. Beside this, the seizing officer hi cross examination, clearly stated that said heroin was of Afghan origin. The factum of its being Afghan origin was never challenged in cross examination as well as in the statements of accused. It being so I hold that it was of Afghan origin. Under the circumstances the aforesaid cases are not applicable to this case". 8. A finding has to be based on evidence and not merely on speculations. And in discussing the evidence and arriving at a final conclusion, it should be borne in mind that in criminal cases as a rule, it is for the prosecution to prove it case beyond any reasonable doubt. A finding of fact cannot be recorded only because there was no specific challenge from the other side. On these facts learned counsel for appellants asks this Court to hold that the powder of heroin alleged to have been recovered from the possession of appellants was not of foreign origin. I think this contention is well founded. The case of Taza Klian and another v. The State, reported in 1984 P.Cr. L.J. 1308, is a leading judgment in a situation like the one under consideration, wherein it was observed:- "As already indicated the appellants have been convicted under claus (89) of Section 156(1) of the Cutoms Act. This clause relates possession of goods in respect of which there is either definite evidenc or reasonable suspicion that they were smuggled into Pakistan . Thoughthe possession of charas and heroin may itself be an offence under the excise and other laws relating to narcotics but to support a convictio under clause (89) ibid it is necessary for the prosecution to show that the narcotics were of foreign origin or that they could be reasonably suspected o be so. Thus, an important question for consideration in this appeal is whether the charas and herein allegedly found in possession of the appellants had een muggled or were suspected to have been j smuggled into Pakistan. At the trial the prosecution led no evidence $ whatsoever in this regard. When this osition was brought to the notice of „ d the learned counsel appearing for the State he feebly contended that the e charas and heroin were not made in akistan. It may be mentioned that e at the hearing the learned counsel was assisted by officers of the Customs Department. When I asked the learned counsel f he was prepared to e produce a certificate from some responsible authority in support of his e assertion he expressed his inability to do so. I am, herefore, unable t evidence showing the narcotics to be of foreign origin, the charge under Section 156(1)(89) of the Customs Act, 1969, cannot be sustained. 10. In these circumstances, when there is no evidence on record to prove that the appellants were found in possession of smuggled goods, the conviction recorded against them cannot be maintained and is accordingly set aside. The appellants who are in custody be released forthwith, if not required in any other case. Resultanlly, the appeal is allowed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Lahore 1 (FB) PLJ 1991 Lahore 1 (FB) Present: MUHAMMAD RAFIQ TARAR CJ, M.MAHBOOB AHMAD, MANZOOR HUSSAIN SlAL, IHASANUL HAQ CHAUDHARY AND MALIK MUHAMMAD QAYYUM JJ KHAWAJA AHMAD TARIQ RAHIM-Petitioner Versus Federation of Pakistan and another-Respondents. Writ petition No.6228 of 1990, (also W.P. Nos.6257 and 5849 of 1990) dismissed on 14.10.1990 (i) Constitution of Pakistan , 1973- —Art.48(5) read with Article 91(8)-National Assembly-dissolution of~Caretaker Prime Minister-Appointment of-Challenge to~There is no limitation on power of President to appoint any person as Prime Minister-He has absolute discretion to appoint any person as Prime Minister to head care-taker cabinet—Held: Appointment of respondent No.2 as Care-taker Prime Minister is unexceptionable (Per Muhammad Rafiq Tarar CJ). [P.26JJ (ii) Constitution of Pakistan , 1973-- —Art.48(5) read with Article 91(8)~National Assembly-Dissolution of- Challenge to—Appointment of respondent No.2 as Care-taker Prime Minister--Whether can be challenged—Question of—Contention that respondent No.2 being leader of opposition in dissolved Assembly, could not have been appointed as Prime Minister after dissolution-Under Article 48(5), appointment of Care-taker cabinet and its composition is in sole discretion of President-Held: Objections raised by Petitioner are without substance and thus not tenable-Held further: Appointment of respondent No.2 as Prime Minister heading care-taker cabinet having been made by President in exercise of his discretion, is unexceptionable and cannot legitimately be questioned in High Court. (Per M.Mahboob Ahmad J). [Fp.bi&S/jAAN, AAO, AAP & AAO (iii) Constitution of Pakistan , 1973-- —Art. 48(5)-read with article 91(8)-National Assembly-Dissolution of~ Challenge to-Contention that appointment of respondent No.2 as Prime Minister to head care-taker cabinet, was malafide-Held: Contention has no merit because provisions of Article 48(5) read with Article 91(8) of Constitution clearly provide that after dissolution of National Assembly, any person can be appointed as Prime Minister to head care-taker cabinet. (Per Muhammad Rafiq Tarar CJ). [P.24JH (iv) Constitution of Pakistan , 1973- —Art.58 read with Article 48—National Assembly—Dissolution of—Challenge to—Balance of power inter-se President and Prime Minister—Determination of- -Nation has experienced consequences of split mandate returned by people in last general elections giving rise to unabated confrontation between Federal and Provincial Governments detrimental to development of democratic process in country-Held: If electorate in on-coming elections acts discreetly in electing one of major contesting parties with at least /3rd majority, it will facilitate Parliament to amend and make Constitution in accord with aspirations of people as embodied in Objectives Resolution. (Per Manzoor Hussain Sial J). [P.85]AAS (v) Constitution of Pakistan , 1973-- Art.58 read with Article 48-National Assembly-Dissolution of-Challenge to-Balance of power inter-se President and Prime Minister-Whether can be determined by High Court—Question of—Objection raised by DrA.Basit, Advocate, is that amendments made through Eighth Amendment Act, 1985, have tilted balance of power in favour of President- uestion as to what should be balance of power inler-se President and Prime Minister is a political question and any endeavour to resolve such an issue would amount to entering into political arena beyond jurisdictional domain of Judiciary-Held: It is desirable that politically sensitive question should be resolved on floor of House by elected members of Parliament which is competent to amend Constitutional provisions. (Per Manzoor Hussain Sial J). [P.84] AAR (vi) Constitution of Pakistan 1973-- —-Art, 58(2)(b)-National Assembly-Dissolution of-Challenge to-Argument that if petitioner is able to show that only one of grounds of impugned order is not sustainable, order as a whole should fall in view of observation of learned Chief Justice in Saifullah's case approved by Supreme Court—Held: Observations appear to be based on facts of cited case in which it was specifically held that none of grounds as taken by then President for forming his opinion to dissolve Assembly, existed or had any nexus with pre-conditions laid down in Article 58(2)(fr)--HeId further: Other Hon'ble Judges of Bench gave findings which do not co-incide with observations of learned Chief Justice, and, therefore, principle connot be said to be one laid down by Court (Per M.Mahboob Ahmad J). [Pp.53&55]T,U & V PLD 1988 Lahore 725 and PLD 1989 SC 166=PLJ 1989 SC 170 ref (vii) Constitution of Pakistan , 1973-- —Art. 58(2)(b) read with Article 199-National Assembly-Dissolution of- Challenge (o-Argument that powers conferred upon President under Article 58(2) (b) do not fit in Constitution of a Parliamentary form of Government and thus same should be construed so as to practically divest President from exercise of this power-Held: Court being a creation of Constitution itself can neither add to it nor substract therefrom in any manner-Held further: It is not in all cases necessary that Parliamentary form of Government in every country should be run on some general principles of Parliamentary form even where Constitutional provisions are different. (Per M.Mahboob Ahmad J). [P:52]Q,R&S Constitutional and Administrative Law by de Smith, 6th Edn. P.74 rel. (viii) Constitution of Pakistan , 1973- —-Art.58(2)(b) read with Article 14~National Assembly-Dissolution of- Challengc to-Article 14 guarantees that dignity of man and, subject to law, privacy of home shall be inviolable—this fundamental right was flagrantly violated and disregarded by taping telephones of highly respectable persons including Chairman of Senate and Speaker of National Assembly-Right of privacy of citizen is not only guaranteed by Constitution but has its foundations in Quranic Injunctions and Islamic traditions—Held: No lawful authority is shown to be existing in favour of any person to order taping of telephones. (Per M.Mahboob Ahmad J). [P.74JAW, AX & AY Sura Al Hujurat, Verse 12 and PLJ 1990 Magazine 118 ref. (ix) Constitution of Pakistan , 1973- —Art. 58(2) (fr)-National Assembly-Dissolution of~Challenge to-­ Constitutional organs of State like Senate and superior judiciary were publicly ridiculed and brought into disrespect-Plea of Federation through Deputy Attorney General/Attorney General that Senate is an invalid body and has no recognition under Constitution—Prime Minister remarked about ex-Members of Senate that "the democratic Government does not want to give VIP status to collaborators of treason"~Seminor in respect of a case decided by High Court and Supreme Court, was held Just to criticize it in a manner which brings superior judiciary into disrespect in eyes of general public—Seminar was chaired by a Governor, and Prime Minister and Senior Minister participated in this seminar and a wide publicity was given to it-Judgment was dubbed as dishonest-Manner in which over three dozens of Judges were dealt with, indicates "respect" that the then Government had towards superior judiciary. (Per M.Mahboob Ahmad J). [P.75JAZ, AAA & AAB (x) Constitution of Pakistan , 1973- —Art.58(2) (b)--National Assembly-Dissolution of-Challenge to-Contention that there were other remedies available for checking corruption, nepotism, defection of Members, misuse of funds and horse-trading—President patiently watched developments and advised Federal Government time and again to adopt proper course of action but vices excalated to such a proportion that very solidarity and integrity of country was at stake-Held: President had no option but to dissolve National Assembly in his discretion. (Per Muhammad Rafiq Tarar CJ). [P.22JD (xi) Constitution of Pakistan , 1973- —Art.58(2) (fa)--National Assembly-Dissolution of-Challenge to-Material has been brought on record to the effect that National Assembly had lost its significance by its failure to do substantial legislative work other than adoption of Finance Bill-Unproductive internal confrontation among members of Assembly, paralysed Constitutional set up of Federal Government and incapacitated legislature to do its primary business of legislation-Held: Legislature being one of important organs of State, could not even carry on its primary function of legislation which reflected failure of Constitutional frame­ work. (Per Muhammad Rafiq Tarar CJ) [P.27]L (xii) Constitution of Pakistan , 1973-- —-Art.58(2)(b) read with Article 199-National Assembly-Dissolution of- Challenge to—Whether Dissolution order can be judicially reviewed by High Court-Question of-Held: In light of principles laid down in Saifullah's case, it can safely be held that order passed by President under Article 58(2)(b) of Constitution can be judicially reviewed by High Court in exercise of powers conferred on it by Article 199 of Constitution. (Per M. Mahboob Ahmad J). [P.50]O PLD 1989 SC 166=PLJ 1989 SC 170 rel. (xiii) Constitution of Pakistan , 1973- —Art.58(2) (b)-National Assembly-Dissolution of-Challenge to-Whether Dissolution Order was justified-Question of~there is no merit in contention that there was no constitutional break-down when President invoked his jurisdiction to dissolve National Assembly-Held: Facts brought on record and considered by President justified him to hold that Government of Federation was unable to function in accordance with provisions of Constitution.(Per Muhammad Rafiq Tarar CJ). [P.21]C (xiv) Constitution of Pakistan , 1973- —Art.58(2) (b)--National Assembly-Dissolution of-Challenge to-Whether entire order stands vitiated if one of grounds is found non-existent-Question of-In Muhammad Sharif s case, then Chief Justice made a passing remark in nature of purely obiter dicta that if one of grounds is found non-existent, entire order stands vitiated-Supreme Court made no reference to this observation- This point was neither agitated nor discussed before Supreme Court—Held: Principle applicable is that before an order passed by a public functionary is struck down, it is duty of court to explore every possible explanation for its validity and examine entire field of powers conferred on authority in pursuance to which impugned order was passed. (Per Muhammad Rafiq Tarar CJ). lPp.22,23&24]E,F & G. PLD 1969 SC 210, AIR 1943 FC 1(8) and PLD 1983 Lahore 102 not applicable. PLD 1962 (WP) Lahore 172, 1987 MLD 750 and 1981 PLC 981 distinguishable. PLD 1951 Lahore 17 & AIR 1976 SC 232 ref. PLD 1966 SC 725 and PLD 1971 SC 811 rel. (xv) Constitution of Pakistan , 1973-- —- Art. 58(2) (ft)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution Order have nexus with preconditions prescribed in Article 58(2) (fr)--Question of-Activity of horse-trading assumed such scandalous proportions that President had to dwell upon it in his address to joint session of Parliament on 2.12.1989—Example of horse-trading is clearly demonstrated by fact that some of opposition Members of Assembly who were instrumental in defeat of no-confidence motion against Prime Minister, were immediately thereafter appointed Ministers/Ministers of State—Held: Curse of horse-trading was a valid ground for dissolution of Assembly. (Per M.Mahboob Ahmad J). [P.68]AK & AL (xvi) Constitution of Pakistan , 1973- —-art.58(2)(b) read with Articles 245 and 148(3)-National Assembly-­ Dissolution of-challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2)(b)--Question of- Disturbances in Sindh had assumed serious proportions-Even then Attorney General had stated his opinion that Article 245 of Constitution was necessarily required to be invoked-President, Governor and Principal Law Officer of Government were all of view that in order to save valuable life and property of citizens, a provision of Constitution should be invoked and yet Government failed to act-No doubt maintenance of Law and Order situation is a responsibility of Provincial Government, but where internal disturbances are beyond its control, it becomes duty of Federal Government under Article 148(3) to protect province-Held: It is established that Government of Federation could not be run in accordance with provisions of Constitution and dissolution of National Assembly was justified. (Per M.Mahboob Ahmad J). [Pp.68,69,70&71]AM, AN, AO & AP (xvii) Constitution of Pakistan , 1973- —Art.58(2)(b) read with Articles 153, 154 & 160-National Assembly-­Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed by Article 58(2)(b)—Question of—Federal Government despite repeated demands by three out of four federating units and unanimous resolution of Senate, failed to call a meeting of Council of common interests—President re-emphasized that in order to resolve Centre Provinces differences, it was necessary to let constitutional institutions function—Formation of another important constitutional institution, i.e. National Finance Commission was continuously delayed-Federating Units were thus deprived of constitutional remedy for redress of their grievances qua distribution of revenues-Held: President only took notice of acrimony between Federation and Provinces and considered it a matter relatable to grounds envisaged by Article 58(2)(b) of Constitution for passing an order thereunder. (Per M.Mahboob Ahmad J). [Pp.71,72&73] AQ , AR & AS (xviii) Constitution of Pakistan , 1973-- —-Art.58(2) (ft)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2) (b)-- Question of—Huge amounts were disbursed on orders of Ex- Prime Minister out of secret service fund—Statement made before Court by Maj. Gen.(Retd.) Naseerullah Khan Babar does not inspire any confidence- Misuse of secret fund being a subject of a Reference under P.O. No.17 of 1977, no further comments are needed-Held: President could legitimately take notice of filtering away of huge amounts from secret service fund, for passing order under Article 58(2)(fo) of Constitution. (Per M.Mahboob ahmad J). [Pp.78&79]AAF, AAG, AAH, AAJ & AAK (xix) Constitution of Pakistan , 1973-- —Art.58 (2) (fr)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with pre-conditions prescribed in Art.58(2)(b)-Question of-Main purpose of Parliament, of which National Assembly is an important component, is to undertake legislative work—There was material before President that National Assembly not only did not but was also not in a position to carry out any substantial legislative work effectively— During 20 months tenure, out of 50 Ordinances/Bills, only 15 could be passed- -Held: There was breakdown of legislative machinery resulting in a deadlock which has a direct nexus with Article 58(2)(b) of Constition and President was justified in making this ground a basis for dissolving Assembly. (Per Mahboob Ahmad J). [P.67JAF, AG, AH & AJ (xx) Constitution of Pakistan , 1973-- —Art.58 (2) (b)-National Assembly-Dissolution of-Challenge to—whether reasons forming basis of Dissolution Order had nexus with pre-conditions prescribed in Article 58(2) (b)--Qeustiori of-Material placed on record coupled with affidavits, shows that entire material was before president when he formed opinion about situation and passed impugned order—Held: Reasons forming basis of order had direct nexus with action taken and pre-conditions prescribed in Article 58(2) (b) of Constitution. (Per Muhammad Rafiq Tarar, CJ). [P.21]B (xxi) Constitution of Pakistan , 1973- -—An.58(2) (b)--National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution Order had nexus with preconditions prescribed under Article 58(2) (b) of Constitution—Question of—President had validly passed impugned order because be had formed an opinion that Government of Federation could not be carried on in accordance with provisions of Constitution and appeal to electorate was necessary-Held: Grounds that weighed with president for passing impugned order had direct nexus with preconditions prescribed by Article 58(2) (b) of Constitution-Held further: Impugned order is not liable to be interfered with in Constitutional jurisdiction of High Court. (Per Muhammad Rafiq Tarar CJ) [P.32]M & N (xxii) Constitution of Pakistan , 1973-- —Art. 58 (2) (b)--National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2) (b)--Question of-Reference has been made to some other misuses of resources of Government and statutory corporations/Banks etc., for political ends—No specific finding is being given thereon as they may also be subject of Reference/other legal proceedings and any comments may prejudice either of parties in those proceedings-Held: Ground taken in this regard by President can be reasonably said to have nexus with pre-conditions envisaged in Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J). [P.80]AAL & AAM (xxiii) Constitution of Pakistan , 1973-- —-Art. 58(2) (b)--National Assembly-Dissolution of-Challenge to-Whether grounds in Dissolution Order have nexus with preconditions prescribed in Article 58(2) (b)-Question of-26000 Appointments were made not only on political basis, appointees being members/workers of PPP only, but same were also without consideration of merits and of even such persons who being dismissed Government servants were ineligible for re-appointment- Wholesable appointments in service of Federation and statutory corporations were through agency of Placement Bureau which neither had any legal status nor any legislative backing-Held: Action taken by constitutional functionary empowered to do so, against such a Government, cannot be said to have no nexus with preconditions (prescribed by Article 58(2)(b) of Constitution). (Per M.Mahboob Ahmad J). [Pp.75,76&77]AAC, AAD & AAE (xxiv) Constitution of Pakistan , 1973-- —- Art.58(2) (/?) read with Article 97-National Assembly-Dissolution of-­ Challenge to—Whether grounds of Dissolution order have nexus with pre­ conditions prescribed by Article 58(2)(fr)--Question of~Two Provinces did not approve of action of Federal Government in launching Peoples Programme without participation of Provincial Governments—Direct launching of this programme could have resulted in a sort of civil war—Article 97 prohibits extension of Federal executive authority in any province—Launching of this programme is neither envisaged by any provision of Constitution nor any law is shown to have been made by parliament for this purpose-Held: These violations of Constitutional requirement cannot be, but termed as valid ground for action under Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J). [Pp.73&74]AT, AU & AV (xxv) Constitution of Pakistan , 1973-- —-Art. 58(2) (b)--National Assembly-Dissolution of-Challenge to-Whether opinion that Federal Government could not be carried on in accordance with provisions of Constitution was rightly formed by President-Question of~ President applied his mind to facts and accompanying events and recorded reasons in self-contained order-Held: President had rightly formed an opinion that situation had arisen in which Government of Federation could not be carried on in accordance with provisions of Constitution. (Per Muhammad Rafiq Tarar CJ). [P.26]K PLD 1989 SC 166 distinguished, (xxvi) Constitution of Pakistan , 1973-- —Art. 58(2)(6)-National Assembly-Dissolution of-Challenge to-Whether order as a whole is to be struck down if one of grounds is non-existent or vague-Question of-Held: Universal application of this proposition cannot be given effect to on very weighty reason based on another well settled principle of law namely that before striking down an order, Court must explore every possible explanation for its validity and examine entire field of powers conferred on authority by which impugned order has been passed and all efforts must be made to uphold it. (Per M.Mahboob Ahmad J). [P.60]X & Y PLD 1966 SC 725 and PLD 1971 SC 811 rel. (xxvii) Constitution of Pakistan ,1973-- —-Art. 58(2) (b)-National Assembly-Dissolution of-Challenge to~Whether President could dissolve National Assembly—Question of—President has first to assess situation and form an opinion objectively that Government of Federation cannot be carried on in accordance with .provisions of Constitution- -Held: It is prerogative of President to dissolve National Assembly provided that preconditions set out in Article 58(2) (b) of Constitution are fully satisfied. (Per Muhammad Rafiq Tarar, CJ) [P.21JA PLD 1989 SC 166 = PLJ 1989 SC 170 rel. (xxviii) Constitution of Pakistan, 1973-- —Arl.58(2) (b) read with Article 2-A~National Assembly-Dissolution of- Challenge to—Words "an appeal to the electorate is necessary"—Scope of— Constitution envisages Pakistan to be an Islamic Republic, where per our belief, sovereignty over entire universe belongs to Almighty Allah alone- Sovereignty over Pakistan is delegated by Almighty Allah to people of Pakistan as a sacred trust through its chosen representatives, i.e. Members of Parliament—Held: If sacred trust reposed in Members of Assembly by people as delegate of God Almighty is abused, misused or not exercised in accordance with tenets of Islam and Constitution, President can, by dissolving Assembly, make an appeal afresh to people who, in common parlance of parliamentary language, are political sovereigns. (Per M.Mahboob Ahmad J). [Pp.62,64&65[AB, AC & AD Verses in Holy Quran, and An Introduction to the study of the Law of the Constitution, tenth edition, at Page 433 ref. (xxix) Constitution of Pakistan, 1973- —Art.58(2) (b)--National Assembly-Dissolution of challenge to~Words "discretion" and "opinion" used in clause (2) of Article 58, lead to plausible inference that exercise of discretion has to follow formation of an opinion- Opinion has to be objective-Held: Court will not interfere in exercise of discretion merely on ground that another conclusion may be possible. (Per M.Mahboob Ahmad J). [P.61]AA (xxx) Constitution of Pakistan, 1973-- —-Art.199 read with Article 58(2)(£)~National Assembly-Dissolution of- Challenge to—Judicial review—Scope of—Judicial review contemplated for exercise of Constitutional jurisdiction by High Court under Article 199 has a scope distinct from its appellate jurisdiction-Held: Unless exercise of discretion by President under Article 58(2)(fc) of Constitution is shown to be malafide, frivolous, capricious, vaxatious or arbitrary, power of judicial review will not be available to High Court to interfere with discretion, (per M.Mahboob Ahmad J). [P.52]P (xxxi) Constitution of Pakistan, 1973- —Art.199 read with Art.58 (2)(fe)-National Assembly-Dissolution of- Challenge to-Whether newspaper clippings/reports cannot be read in present proceedings for determining soundness/validity of opinion formed by President—Question of—In cases of constitutional nature, matters have to be decided on affidavits of parties as also on such material which in attendant circumstances of cases, can be referred to or relied upon-Newspaper clippings/reports relied upon by Federation, are undcnied reports of events of PPP Government's tenure and have not, in any manner, been rebutted by petitioner-Held: Reference to newspaper clippings/reports cannot be refused and material available therefrom can be referred to for purpose of examining soundness and validity of grounds taken in order of President. (Per M.Mahboob Ahmad J). [Pp.65&66]AE 1986 SCMR 1736 not attracted. PLD 1976 SC 57 rel. (xxxii) Obiter Dicta- —National Assembly-Dissolution of~Challenge to-Whether observations of the learned Chief Justice in Saifullah's case that if only one of grounds for dissolution of Assembly is non-existent, order as a whole should be struck down, amount to principle or obiter dicta-- Question of—Application of this principle may vary from case to case and would only be aptly attracted where it is shown that grounds forming basis of an order are so intertwined and inseverable that each one of them cannot be taken as an independent ground-­ Held: Question as to whether an order as a whole should be struck down if one of grounds is found to be non-existent or vague, was not in issue in Saifullah's case and observations would, therefore, be obiter only. (Per M.Mahboob Ahmad J). [Pp.55&56]W PLD 1989 Lahore 725 ref. Halsbuny's Laws of England, 4th Edition, Vol.1, Para 26, at Page 29, Administrative Law by H.W.R. Wade, 6th Edition, at Page 338, (1983) 1 Q.B.570, (1972) 1 All E.R. 225, PLD 1951 Lahore 17, 1966 SC 793, PLD 1975 SC 506, AIR 1963 SC 779, AIR 1967 SC 1353 and AIR 1976 SC 232 rel. (xxxiii) Words and Phrases- —Word "also" as used in Article 58(2) of Constitution-Meaning and scope of- Word "also" has a special significance-President's power to dissolve National Assembly under Article 58(1) is dependent upon advice of Prime Minister- Power under Article 58(1) is exercisable by a conjoint action of Prime Minister and President-Held: Use of word "also" in Article 58(2) would, therefore, clearly spell out that President has an additional power to dissolve National Assembly independent of advice of Prime Minister. (Per M.Mahboob Ahmad J). [Pp.60&61]Z Raja Muhammad Anwar, Advocate, assisted by Mian Abdus Sattar Najam, Mr.Shahid Iqbal, Syed Sharif Hussain Bokhari and Mr.Naseer Ahmad, Advocates for Petitioner. Dr. Abdul Basit, Advocate for Petitioner (in W.P. 5849 of 1990). Mr^Aziz A.Munshi, Attorney General of Pakistan, assisted by Ch.Muhammad Farooq, Sh~Abdul Mannan, Mr.Faqir Muhammad Kliokhar and Ch. Ijaz Ahmad, Deputy Attorneys General, and Ch. Fazal Hussain, Advocate for respondent No.l Mr.S.M.Zafar & Syed Zahid Hussain, Advocates for respondent No.2 Agha Muhammad Dilawar KJian, applicant in person (in C.M.4166 of 1990). Mr.Muhammad Ismail Qureshi, Advocate (in C.M.4233 of 1990). Mr.Saifullah, applicant in person (in C.M.4345 of 1990). Mr.Rafiq Ahmad Bajwa, Advocate (in C.M.4447 of 1990). Rai Muhammad Nawaz KJwral, Advocate (in C.M.4560 of 1990). Date of hearing: 22,23,24,25,26,29 and 30.9.1990 and 1,6,7,8,9,10,13 and 14.10.1990. judgment . Muhammad Rafiq Tarar, C J.-On the eve of 6th August 1990, the President of Pakistan issued Order under Article 58(2) (b) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) whereby he dissolved the National Assembly of Pakistan and, in consequence, the Prime Minister and her Cabinet ceased to hold office with immediate effect. The Order, passed by the President on 6th August 1990, reads:- "The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary: - (a) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous 'horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people. (b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority; and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the authority granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discord, confrontation and deadtock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia:- (i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has aiso not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161. (//) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands. (Hi) Constitutional powers and functions of the Provinces have been deliberately frustrated and extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples' Programme. (/v) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded. (c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies, statutory and other corporations including Banks, working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath (s) prescribed therein, and the law, does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf. (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sind against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson/ dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. (e) The Government of the Federation has violated the provisions of the Constitution and the law in that:- (/) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence. (//) Authority, resources and agencies of the Government of the Federation including statutory Corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains. (Hi) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242. (iv) The powers under Article 45 have been exercised by the Government without prior approval of the President. Now, therefore, I, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith." The afore-mentioned Order of the President was challenged in this Court by Kh. Ahmad Tariq Rahim, ex-Federal Minister for Parliamentary Affairs, Government of Pakistan, through Writ Petition No.6228 of 1990, Mr. Zair Sikandar Khan, Advocate, through Writ Petition No.6257 of 1990 and Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.5849 of 1990. The first two petitions were admitted to regular hearing by a Division Bench of this Court on 2nd September 1990 and were referred to the Chief Justice for constitution of a larger Bench as the questions raised therein were of vital public importance. The third writ petition.(No.5849 of 1990) was also admitted to regular hearing on 18th September 1990 and directed to be put up along with aforesaid Writ Petition No.6228 of 1990. The Order of the President was also assailed in the Peshawar High Court by Mian Muzaffar Shah, ex-Minister of State, Government of Pakistan, through Writ Petition No.351 of 1990 and by Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.379 of 1990. Similarly, constitutional petitions were also filed in Sind and Baluchistan High Courts impugning the aforesaid Order. The Federation of Pakistan thus invoked the jurisdiction of the Supreme Court under Article 186A of the Constitution for consolidation of the cases, pending in the four High Courts for disposal. On 15th September 1990, on the move of the Federation of Pakistan for consolidation of the cases, the Supreme Court transferred the above-mentioned two writ petitions pending in the Peshawar High Court to this Court and the writ petitions pending in Baluchistan High Court were transferred to Sind High Court for disposal. By this order we propose to dispose of the afore-mentioned five writ petitions together. 2. Mian Muzaffar Shah and Kh. Ahmad Tariq Rahim petitioners controverted the allegations levelled in the impugned order, passed by the President, dissolving the National Assembly. In nut-shell, it was pleaded that the former Federal Government having majority in the National Assembly enjoyed confidence of the people, it passed the current Federal Budget for the year 1990- 91, provided political stability, enhanced the prestige of Pakistan in world community and endeavoured to achieve socio-economic development in the country when, all of a sudden, the President issued the Dissolution Order, ostensibly under clause (2)(b) of Article 58 of the Constitution contrary to the law declared in Haji Muhammad Saifiillah Mian's case (PLD 1989 S.C. 166 = PLJ 1989 SC 170) by the Supreme Court of Pakistan. It was submitted that the Dissolution Order was void, mala fide, based on reasons which were extraneous, vague, fanciful and having no nexus with the conditions prescribed in Article 58(2)(b) of the Constitution. Mr.Zair Sikandar Khan petitioner pleaded that the grounds mentioned in the impugned Order could not stand the scrutiny of closer examination nor could provide justification for the Order dissolving the National Assembly. He submitted that the Dissolution Order was unconstitutional, mala fide and passed in abuse of the powers vested in the President. In the alternative, it was pleaded that in case the Dissolution Order was held valid, the elections, scheduled to be held on 24th October 1990, should not be allowed to be postponed, notwithstanding the commencement of the process of accountability of the members of the ousted Government or National Assembly. The constitutional petitions, filed on behalf of Wokala Mahaz barai Tahafuz Dastoor, challenged the validity of the Eighth Amendment Act, introduced in 1973-Constitution, on the ground that it contravened the provisions of Article 239 of the Constitution. It was submitted that the impugned order having been passed in exercise of jurisdiction derived from the amended Article 58 of the Constitution, was liable to be declared unconstitutional and of no legal effect. 3. The Federation of Pakistan filed written-statement and annexed therewith several documents to support the impugned order and controvert the allegations levelled in the writ petitions. It was pleaded in the written-statement that the President, in pursuance of clause (2)(b) of Article 58 of the Constitution, had formed an opinion that a situation had arisen in which Government of Pakistan could not be carried on in accordance with the provisions of the Constitution and passed the Dissolution Order in exercise of his discretion which was valid and that the adequacy and sufficiency of the reasons for the Dissolution Order were not justiciable. Reference was made in detail to the existence of facts, like corruption and horse-trading among the members of the National Assembly, misuse of DIB Secret Service Funds and PAF and PIA aircrafts during Noconfidence Motion against the former Prime Minister, non-convening of meetings of Council of Common Interests (hereinafter called CCI) and National Finance Commission (hereinafter called NFC), ridiculing the Senate and Judiciary, undermining the Civil Service structure and Service of statutory corporations, taping telephones of dignitaries and political personalities, non-giving of powers under Article 245 of the Constitution to the army already deployed to control internal disturbances in Sindh and existence of unabating confrontation between the Federal Government and two of the Provincial Governments, to show that the President had rightly exercised his jurisdiction to dissolve the National Assembly, appoint Care-taker Cabinet and fix the 24th of October 1990 for fresh elections. 4. Before highlighting the contentions advanced by the learned counsel for the parties and examination thereof, it appears appropriate to refer to the legislative history of Article 58 of the Constitution, under which the President of Pakistan passed the impugned Order dissolving the National Assembly. Article 58, as amended, refers to Article 48. It will be useful if these Articles of the Constitution, before Amendments introduced therein, are reproduced hereunden- "48. President to act on advice, elc.-- (1) In the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. (2) The question whether any, and if so what advice was tendered to the President by the Prime Minister shall not be inquired into in any Court. (3) Save as otherwise provided in any rules made under Article 99, the orders of the President shall require for their validity the counter-signature of the Prime Minister. 58. Dissolution of National Assembly. — The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation. -Reference in this Article to 'Prime Minister' shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no-confidence has been moved in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly or a Federal Minister performing the functions of Prime Minister under clause (1) or clause (3) of Article 95." Undoubtedly, before 5th July 1977, the 1973-Constitution remained in vogue in Pakistan but on that day General Muhammad Zia-ul-Haq, who was then the Chief of the Army Staff, proclaimed Martial Law throughout the country and assumed the office of the Chief Martial Law Administrator. The Constitution was held in abeyance, the National Assembly and the Senate were dissolved and the Prime Minister and Ministers of his Cabinent were dismissed from their offices. On the same day, the Laws (Continuance in Force) Order, 1977, was issued with a declaration that the country would be governed, as nearly as may be, in accordance with the provisions of 1973-Constitution, notwithstanding its holding in abeyance and subject to any Order issued by the President and Martial Law Regulations issued by the Chief Martial Law Administrator. On 23rd March 1981 the Chief Martial Law Administrator promulgated the Provisional Constitution Order. Apart from other provisions, it contained certain Articles of 1973-Constitution and thereby was transformed into a self-contained document. It provided validity to all Orders and Regulations, including the Proclamation issued on 5th July 1977, imposing Martial Law in the country by the Chief Martial Law Administrator. The powers of the Superior Courts regarding judicial review of orders passed, actions taken and proceedings held by Martial Law authorities were curtailed. As a matter of fact, immunity was provided to them from challenge before any Court, including the Supreme Court of Pakistan. That Order further nullified the effect of any order or judgment passed by any Court, questioning the validity of the constitutional Amendments and jurisdiction of Military Courts. Thereafter, the country was governed in accordance with the provisions of this Order until the 2nd of March 1985, on which date the Pi esident promulgated an important legal instrument, known as the Revival of the Constitution of 1973 Order, 1985 (Presidential Order No. 14 of 1985), which introduced extensive Amendments in 1973-Constitution. The Amendments formed part of the Schedule appended with the Order. Articles 48 and 58 were also amended. These Articles, as amended by Presidential Order No.14 of 1985, read as follows:- "48. President to act on the advice, etc.--(l) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, the Prime Minister or appropriate Minister. Provided that the President may require the Cabinet to reconsider or consider such advice, as the case may be, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration or consideration". (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. (3) If any question arises whether any matter is or is not a matter in respect of which the President is by the Constitution empowered to act in his discretion, the decision of the President in his discretion shall be final, and the validity of .anything done by the President shall not be called in question on the ground that he ought or ought not to have acted in his discretion. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority. (5) Where the President dissolves the National Assembly, he shall, in his discretion,-- (a) appoint a date, not later than one hundred days from the date of dissolution, for the holding of a general election to the Assembly; and (b) appoint a Care-taker Cabinet. (6) If, at any time, the President, in his discretion or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by 'Yes' or 'No'. (7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum. 58. Dissolution of National Assembly.-- (1) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prune Minister has so advised. Explanation-Reference in this Article to 'Prime Minister' shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no-confidence has been moved in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly. (2) The President may also dissolve the National Assembly in his discretion where, in his opinion, an appeal to the electorate is necessary". The Amendments made in the Constitution, including those pertaining to Articles 48 and 58 by Revival of the Constitution of 1973 Order, 1985, gave rise to enormous criticism in the public. The members of the National Assembly, elected on non-party based general elections, took cognizance of the issue and moved a Bill in the National Assembly, which is commonly known as the Constitution (Eighth Amendment) Bi|l of 1985. With special reference to these Articles, it purported to curtail the unfettered powers of the President for dissolution of the National Assembly in his discretion and immunity accorded to such action from judicial review. The non obstante clause, prefixed in sub-Article (2) of Article 58, to the effect: "Notwithstanding anything contained in clause (2) of Article 48" placed limits on the powers of the President to dissolve the National Assembly. Similarly, clause (3) of Article 48, which made the President sole arbiter of the validity of his discretion, was deleted. Article 58(2)(fe) was also modified in a manner that the National Assembly could be dissolved only when the Government of Federation could not be carried on in accordance with the Constitution and appeal to the electorate was necessary. The finally adopted provisions of Articles 48 and 58 by the Parliament in the Constitution (Eighth Amendment) Act, 1985, were of the following effect:- "48. President to Act on advice, etc.-- (1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister). Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) Notwithstanding anything contained in caluse (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever. (3) Omitted. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority. (5) Where the President dissolves the National Assembly, he shall, in his discretiona) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly, 4 and (b) appoint a care-taker Cabinet. (6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that " is capable of being answered either by 'Yes' or 'No'. (7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum. 58. Dissolution of National Assembly.-- (1) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. £xp/fl/iario/i-Reference in this Article to 'Prime Minister' shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly. (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,— (a) A vote of no-confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the members of the National Assembly in accordance with the provisions of the Constitution as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". It is significant to point out that on the 29th of May 1988 General Muhammad Zia-ul-Haq, the late President of Pakistan, for the first time, invoked Article 58(2)(5) of the Constitution and dissolved the National Assembly, dismissed the Prime Minister and his Cabinet and passed Order to the following effect:- "Whereas the objects and purposes for which the National Assembly was elected have not been fulfilled; And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property; And whereas the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered; And whereas in my opinion a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. Now, therefore, I, General Muhammad Zia-ul-Haq, President, in exercise of the powers conferred on me by clause (2)(fo) of Article 58 of the Constitution of the Islamic Republic of Pakistan hereby dissolve the National Assembly with immediate effect and in consequence thereof the Cabinet also stands dissolved forthwith". Simultaneously, the Governors of all the four Provinces of Pakistan also dissolved the Provincial Assemblies and dismissed the Provincial Cabinets. The afore­ mentioned Orders of Dissolution of the National Assembly and that of the Punjab Provincial Assembly were challenged by Kh.Muhammad Sharif and others through Constitutional petitions, and a Full Beach of this Court in case Muhammad Sharif V. Federation of Pakistan (PLD 1988 Lahore 725) declared the impugned Orders of Dissolution of the Assemblies not sustainable in law but, for the reasons recorded in the order, declined to restore the Assemblies. The Federation of Pakistan as well as Haji Muhammad Saifullah Khan etc. preferred appeals before the Supreme Court against the aforesaid order. The Supreme Court in the case Federation of Pakistan V. Muhammad Saifullah Klian (PLD 1989 S.C.166) maintained order of the High Court holding that the power to dissolve the National Assembly under Article 58(2)(£>) of the Constitution was discretionary, which could be exercised by the President without the advice of Prime Minister but his opinion for the exercise of discretion must be based on some material. The superior Courts can examine the validity of the reasons, forming basis of the opinion. In this regard the Supreme Court observed:- "...,the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i.e. either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to the exercise of his 'discretion' but not in relation to his 'opinion'. An obligation is cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has to form his 'opinion' that a situation of the kind envisaged in Article 58(2)(Z?) has arisen which necessitates the grave step of dissolving the National Assembly". The grounds, mentioned in the Order of the President dissolving the National Assembly, on examination by the Supreme Court were found to have no nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution empowering the President to dissolve the National Assembly in his discretion. The Supreme Court, therefore, approved the observations of the Lahore High Court, that the grounds mentioned in the Order were vague, indefinite, too wide and general which could be urged at any time for dissolving the National Assembly. It was further held that nothing was shown that the machinery of the Government of Federation had come to stand-still or such a break-down had occurred which prevented the orderly functioning of the Constitution. It was declared that all the grounds forming the basis of opinion of the President to exercise discretion for dissolution of the National Assembly were extraneous to and had no nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution. It was held that no grounds existed on the basis whereof an honest opinion could be formed justifying dissolution of the National Assembly. It was thus declared that the exercise of the power by the President in dissolution of the Assembly was unconstitutional and open to correction through judicial review. With regard to the consequential relief, following the declaration that the dissolution of the National Assembly was unconstitutional, the Supreme Court held that the national interest would be better served by recourse to the electorate than by restoration of the existing Assemblies, provided the fresh general elections were held on the dates already specified by the Election Commission. 5. With this background about the relevant provisions of the Constitution and their interpretation by the Supreme Court, the task of this Court to examine the validity of the impugned Order of the President, dissolving the National Assembly by invoking the same provisions of the Constitution, has become rather easier. This Court has to concentrate on the material placed before it, which was taken into consideration by the President for forming honest opinion that the Government of Federation could not be carried on in accordance with the provisions of the Constitution. As to the reasons given in the Order, whether they disclose direct nexus with the pre-conditions, prescribed in Article 58 of the Constitution, this Court is not to sit in appeal over the impugned Order of the President nor to substitute its own findings for the Order of the President. Now, the stage is set for examination of the precise submissions of the learned counsel for the parties made at the Bar, in the light of documents on the file. 6. Raja Muhammad Anwar, learned counsel for KhAhmad Tariq Rahim and Mian Muzaffar Shah, former Ministers of the Federal Government, challenged the validity of the impugned Order, whereby the President of Pakistan dissolved the National Assembly. He addressed the Court at some length, but the precise contentions urged by him are as follows:- (1) The existing circumstances and events at the relevant time did not warrant dissolution of National Assembly, as envisaged in Article 58(2)(b) of the Constitution; (2) the grounds mentioned in the Order of 6th August, 1990, dissolving the National Assembly, were factually incorrect and had no nexus with the preconditions set out in Article 58(2)(fo) of the Constitution; (3) there occurred no Constitutional break-down paralysing the Government of the Federation so as to take the gave step of dissolving the National Assembly; (4) the allegations contained in the impugned Order are based on documents of no evidentiary value because the same are either newspaper-clippings or inter-departmental secret communications; (5) the non-convening of the meeting of CCI occurred due to noncooperation of the Provincial Governments. The dispute in this behalf being sub-judice in the Supreme Court, could not form basis of the Dissolution Order; (6) the National Finance Commission was constituted within the stipulated period of five years and before it could convene its meeting, the National Assembly was dissolved; (7) if the President noticed corruption, nepotism, defection of members of the Assembly and horse-trading, he could resort to other remedies to ameliorate the situation rather than to dissolve the National Assembly; (8) the validity of the entire impugned Order dissolving the National Assembly, would stand vitiated if one of the grounds was found to be faulty, non-existent or extraneous. In the instant case some of the grounds forming basis of the impugned Order, being factually wrong, rendered the Order as a whole viod; (9) the impugned Order was male fide which was apparent from the fact that the leader of Opposition, an arch enemy of the former Prime Minister, was appointed as care-taker Prime Minister; and (10) the allegations regarding misappropriation of Secret Service Funds, ridiculing the Senate, the Judiciary and undermining the Civil Service structure were non-existent and could not serve (as) basis for the dissolution of the National Assembly. 7. In response to the first contention of the learned counsel for the petitioners, the learned Attorney-General referred to the principle, enunciated in Haji Muhammad Saifullah Khan's case (PLD 1989 S.C.166=PLJ 1989 SC 170), to the effect that the President has first to assess the situation and form an opinion objectively that the Government of Federation cannot be carried on in accordance with the provisions of the Constitution, he is empowered under the Constitution to dissolve the National Assembly in his discretion. We find force in the submission of the learned Attorney-General and, in the light of the pronouncement made by the Supreme Court in the aforesaid case, observe that if situation arises where the Government of Federation cannot be carried on in accordance with the provisions of the Constitution, it is the prerogative of the President to dissolve the National Assembly, provided the preconditions set out in Article 58(2)(fe) of the Constitution are fully satisfied. 8. As for the second contention, that the grounds mentioned in the Order had no nexus with the preconditions prescribed in the afore-mentioned Article, the material placed on the record by the learned Attorney-General, coupled with the affidavits sworn by M/s Brig. Ahmad Jehan Zib, (Joint Secretary) Director- General Law, President's Secretariat, Islamabad, and Shahzad Akhtar Joseph, 3 Director Law, President's Secretariat, Islamabad, shows that the entire material was before the President when he formed opinion about the situation and passed the impugned Order. So, we find that reasons forming basis of the Order had direct nexus with the action taken and the pre-conditions prescribed in the aforesaid Article of the Constitution. 9. We find no merit in the third contention of the learned counsel, that there was no Constitutional break-down when the President invoked his jurisdiction to dissolve the National Assembly. The facts brought on the record and considered by the President justified him to hold that the Government of Federation was unable to function in accordance with the provisions of the Constitution. 10. So far as the contention of the learned counsel, that the meeting of the CCI could not be convened due to non-cooperation of the Provincial Governments with the Federation, the correspondence exchanged among the Chief Ministers of Punjab, Baluchistan, the former Prime Minister and the President, and ultimately the suit filed by the Provincial Governments against the Federation in the Supreme Court of Pakistan, rather indicate that the President was justified to opine that the Federal Government was responsible for not convening the meeting of CCI until dissolution of the National Assembly. Admittedly, the important Constitutional institutions, like CCI and NFC, were not allowed to meet nor function to resolve the disputes resulting in Constitutional crisis and stalemate between the Federal Government and at least two Provincial Governments. 10. As to the contention of the learned counsel, that the documents brought on the file were inadmissible in evidence being newspaper clippings and inter­ departmental communications, suffice it to observe, that the Supreme Court of Pakistan held a contrary view in Islamic Republic of Pakistan V.Abdul Wali KJian, M.N^4. (P.L.D. 1976 S.C.57(112) which reads:- "Nevertheless, it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible particulary where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are 'business records' or 'ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events..." The inter-departmental communications referred by the learned counsel are declassified documents, open to examination by the Court and were considered by the President before taking the impugned action. He Took notice of the conflicts and events reflected through the correspondence exchanged between the Provincial Government, the Federal Government and the President to form an opinion as to whether the Government of the Federation was functioning in accordance with the provisions of the Constitution. The documents on record were relevant for consideration of the President to form an opinion, and for this Court, to examine if the same had nexus with the pre-conditions set out in Article 58 of the Constitution. 12. About seventh contention of the learned counsel for the petitioners, that there were other remedies available for checking corruption, nepotism, defection of Members, misuse of funds and horse-trading, the learned Attorney-General was right in contending that the President patiently watched the developments and advised the Federal Government time and again to adopt proper course of action but the vices escalated to such a proportion that the very solidarity and integrity of the country was at stake, therefore, the President at that stage had no option but to dissolve the National Assembly in his discretion. 13. The eighth contention of the learned counsel, that if one of the grounds mentioned in the impugned Order is found to be non-existent, the entire Order stands vitiated, is untenable. Government of West Pakistan V. Haider Bux Jatoi (PLD 1969 S.C.210), Keshav Talpade V. Emperor (AIR 1943 F.C.1(8) and Muhammad Mosawwar fOian V. Deputy Commissioner, Gujranwala (PLD 1983 Lahore 102), cited by the learned counsel, are of little help to him as the principle enunciated therein is peculiar to the detention cases. Sher Muhammad V. Bashir AH JQian (PLD 1962 (W.P) Lahore 172), Kahi V. Settlement Commissioner, Lahore (1987 M.L.D.750) and Chan Pir Shah V. Congothene Chemical Industries Ltd. (1981 PLC 981) are distinguishable on facts and the law laid down therein is not applicable to the issues involved in the case in hand. In Raflq Ahmad v. Crown (PLD 1951 Lahore 17) Mr Justice Muhammad Munir, the then Chief Justice of the High Court of Judicature at Lahore, also expressed doubts about the authenticity of the view and held— "The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to the public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result, in my opinion has to be avoided, because a habeas corpus petition would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons anyone of which could have been a good reason for the arrest were not, individually, or collectively, in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority". The Indian Supreme Court in several cases, more particularly in Swam Singh v. State of Punjab (AIR 1976 S.C.232(237), departed from the view expressed in Keshav Talpade's case (AIR 1943 F.C.I), and held:- "There is authority for the proposition that, where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-exisent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existent grounds could not have affected the ultimate decision". Reliance was placed on Stale of Maharashtra v. B.K. Takkamore (AIR 1967 S.C.1353) and State of Orissa v. Bidvabhushan Mahapatra (AIR 1963 S.C.779). In Muhammad Sharifs case (PLD 1988 Lahore 725) MrJustice A.S.Salam, the then Chief Justice of the Lahore High Court, made a passing remark in the nature of purely obiter dicta. While maintaining the decision of the Lahore High Court, the Supreme Court made no reference to the observation in the judgment. It appears that this point was neither agitated nor convassed before the Supreme Court. The material placed before us rather shows that the action taken by the President is neither tainted with malice nor is in excess of the jurisdiction vested in him. The principle enunciated by the Supreme Court in Chairman, Railway Board ' v. Abdul Majid Sardar (PLD 1966 S.C.725) directly applies and is to the following effect:- "...it appears appropriate to observe that acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their function examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect". This rule was followed in Lahore Improvement Trust v. Custodian, Evacuee Property (PLD 1971 S.C.811), wherein it was held that before an order passed by a public authority is struck down, it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order was passed. 14. The ninth contention of the learned counsel for the petitioners, that the appointment of respondent No.2 (the leader of the Opposition) as Prime Minister to head to care-taker Cabinet indicated the mala fide intention of the President, has no merit because the provisions of Article 48(5) read with Article 91(8) of the Constitution clearly provide that after the dissolution of the National Assembly any person can be appointed as Prime Minister to head the care-taker Cabinet. 15. As to the tenth contention, that the former Federal Government did not ridicule the Senate and Judiciary nor it undermined the Civil Service structure, the reference made by the learned Attorney-General to the documents on the file rather shows that the former Attorney-General before the Sindh High Court did not acknowledge the legal entity of the Senate, a seminar was arranged in which the decision of the Supreme Court in Nawab Muhammad Ahmad Khan's murder case was publicly ridiculed, and 26,000 persons were appointed in service through the Placement Bureau, contrary to the provisions of the Civil Servants Rules. We also find substance in the submission of the learned Attorney-General that the Members of the National Assembly, who had defected, were appointed Federal Ministers and huge sums were withdrawn from the Secret Service Funds for purchasing the loyalty of the Members at the time of "No-confidence Motion" and Azad Jammu and Kashmir's elections. 16. Dr.Abdul Basit, Advocate on behalf of Wokala Mahaz barai Tahafuz Dastoor, challenged the vires of the Constitution (Eighth Amendment Act XVIII of 1985), introduced in 1973-Constitution during the Martial Law, on the ground that the amendments in the Constitution were made contrary to the provisions of Article 239 of the Constitution. He stated that the amendment made in Article 58 of the Constitution was one of the amendments forming part of the Eighth Amendment Act (XVIII of 1985). It empowered the President to dissolve the National Assembly. Previously the power of dissolving the National Assembly did not vest in the President. According to him, it was unauthorised and had rendered the Constitution unworkable. He emphasised that the question about the validity of the Eighth Amendment Act has not so far been decided by the Supreme Court and referred to observations made by the Supreme Court in Federation of Pakistan v. Ghulam Mustafa Miar (PLD 1989 S.C.26). He submitted that the Supreme Court deferred decision on this point for another occasion. On a question, he submitted that the mere pendency of the matter before the Supreme Court in Abdul Mujeeb Pirzada's case (PLD 1990 Karachi 9=PLJ 1990 Kar. 14(FB)) arising out of a judgment of the Sindh High Court, is no bar for decision on this issue. The next submission made by him was that Mr.Ghulam Mustafa Jatoi could not be appointed as care-taker Prime Minister being leader of the Opposition in the defunct National Assembly. He was bound to influence the process of the ensuing elections and thus disqualified to act as Prime Minister. The impugned Order, passed by the President, was attacked by him only on the ground that the Amendment made in Article 58 of the Constitution, being part of Eighth Amendment Act, is unauthorised for the reasons mentioned above. He, however, conceded that the Government of the Federation was not being carried on in accordance with the provisions of the Constitution and it indulged in corruption, nepotism and horse-trading for political benefit. 17. We have considered the objections raised by DrA.Basit as to the validity of the Eighth Amendment and observe that this contention was considered by a Full Bench of this Court in Ghulam Mustafa Kliar's case (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660) and repelled. The Supreme Court while diciding the appeal against that judgment also did not take a contrary view, but deferred it for decision on some other occassion. The Sindh High Court in a Full Bench case, Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan (PLD 1990 Karachi 9 = PLJ 1990 Karachi 14 (FB)), also held the Amendments in the Constitution valid. The matter is sub-judice in appeal before the Supreme Court. All the learned counsel except Dr.A.Basit, Advocate, made a joint request to leave this matter for decision by the Supreme Court. 18. Mr.S.M.Zafar, Advocate, on behalf of respondent No.2, argued for the validity of the impugned order, dissolving the National Assembly, and defended the appointment of respondent No.2 as care-taker Prime Minister. He read out Articles 48(5)(fc) and 91(8) of the Constitution and submitted that after the dissolution of the National Assembly the President, in exercise of his jurisdiction, has to appoint a care-taker Cabinet headed by a Prime Minister in his discretion. He could have even allowed the out-going Prime Minister to continue in office during the interregnum or appoint any body else as Prime Minister to head the care-taker Cabinet. He pointed out that this was a new provision in the Constitution whereunder it was obligatory for the President to appoint care-taker Cabinet. He stated that in UK, India and Australia care-taker Cabinets are appointed under the residuary powers of the Crown/President, but this is an improvement in our Constitution which empowers the President to appoint a care-taker Cabinet headed by the Prime Minister and to fix a date not later than ninety days from the date of dissolution for holding general elections to the Assembly. It is the Constitutional obligation of the President to appoint care-taker Cabinet so as to retain parliamentary character of the Government, otherwise, after the dissolution of the National Assembly, the Possibility that the Government would revert to the unitary form of Government cannot be ruled out. Learned counsel referred to the rule laid down in Madan Murari Verma v. Choudhuri Charan Singh and another (AIR 1980 Calcutta 95) and contended that the President had accepted the resignation of the Prime Minister and Council of his Ministers and asked them to continue "till other arrangements are made", and not as care-taker Government. He submitted that it was, therefore, held that the Cabinet could only carry on day to day administration work. He argued that care- laker Government for all practical purposes, acts like a full-fledged Cabinet. The only distinction is that care-taker Government is temporary and its primary function is to hold fair elections. We find that if both Articles viz.48(5) and 91(8) are read together, it becomes evident that there is no limitation on the power of the President to appoint any person as Prime Minister. He has thus an absolute discretion to appoint any person as Prime Minister to head the care-taker Cabinet. The appointment of Mr.Ghulam Mustafa Jatoi as Prime Minister during the interregnum to head the care-taker Cabinet is unexceptionable. A care-taker Government is certainly distinct from a Government appointed "till other arrangements are made". After the dissolution of Assembly the care-taker Cabinet being no longer answerable to the House, nevertheless has to perform its functions with full responsibility until permanent Cabinet is formed. 19. Mr.Muhammad Ismail Qureshi, Advocate, and Dilawar Khan applicant argued in support of the Presidential Order dissolving the National Assembly. According to them, the Federal Government was not performing its functions in accordance with the provisions of the Constitution and Islam, therefore, it was rightly dismissed. 20. Haji Muhammad Saifullah Khan, ex-MNA, appeared in person and attacked the impugned Order on the ground that the Assembly could not have been dissolved because it had passed the Finance Bill. He, however, could not meet the objection, that the former Government of the Federation failed to do substantial legislative work, with the result that a number of important Ordinances and Bills were not processed and lapsed. 21. The contentions raised by Mr.Rafiq Ahmad Bajwa, Advocate, although very instructive had little bearing on the issues involved in the case. On one hand, he asserted that the President had no jurisdiction to dissolve the National Assembly and, on the other, he maintained that the Government of the Federation was not being carried on in accordance with the provisions of the Constitution. What we could gather from the line of his arguments was that a conspiracy was hatched against the nation whereby leader of such a party was nominated to form Government, which party had practically no backing in the Senate and was thus unable to legislate without the cooperation of the parties in opposition. The paradoxical situation inevitably generated confrontation. He argued that whichever Government is placed in that situation, would necessarily indulge in horse-trading and corruption for its survival. 22. After taking into consideration the background in which the impugned Order dissolving the National Assembly was passed by the President and the contentions raised by learned counsel for the parties referred to earlier, in our estimation, the President had rightly formed an opinion, that a situation had arisen in which the Government of Federation could not be carried on in accordance with the provisions of Constitution and passed the Dissolution Order in exercise of his discretion. The President applied his mind to the facts and accompanying events and recorded reasons in the self-contained Order. The sufficiency and adequacy of the reasons are not justiciable, as held by the Supreme Court in Haji Muhammad Saifullah Mian's case (PLD 1989 S.C.166 = PLJ 1989 C 170)). The Order dated 29th May 1988 of the late President General Muhammad Zia-ul-Haq dissolving the National Assembly, is distinguishable from the impugned Order as the former did not satisfy the preconditions, prescribed by Article 58(2)(f>) of the Constitution. The Order was thus declared unsustainable by a Full Bench of this Court and maintained in appeal by the Supreme Court. The grounds incorporated in the Order were held vague, indefinite, too general having no nexus with the preconditions prescribed by Article 58(2)(fc) of the Constitution, which could be made use of, any time for dissolution of the National Assembly. The impugned Order passed by the President is based on reasons emanating from concrete facts directly relatable to the action taken. We have considered the material brought on the record and find no infirmity in the inference drawn by the President, to the effect that the National Assembly lost its significance by its failure to do substantial legislative work, other than the adoption of the Finance Bill. The National Assembly plays a pivotal role in the parliamentary form of Government but the unproductive internal confrontation among the members of the Assembly paralysed the Constitutional set up of the Federal Government and incapacitated the legislature to do its primary business of legislation. It may be mentioned that during its twenty months tenure, out of about fifty Bills/Ordinances, only fifteen could be passed by the Parliament. The rest of thirty-five Bills/Ordinances, some of which were very important like 'Sharia Bill' could not be processed and allowed to lapse. The inability of legislature in this behalf was highlighted by the then learned Attorney-General in press statement, wherein he acknowledged that the majority of the Senate was against the Federal Government, which prevented the Parliament to carry on legislative business. The legislature being one of the important organs of the State, being central forum for settlement of major issues of national importance could not even carry on its primary function of legislation which reflected failure of the Constitutional frame-work. 23. Adverting to the role of the Council of Common Interests, we find that it was for the first time constituted under Article 153 of 1973 Constitution, primarily to strike balance between the rights of Federation and the federating units. A mechanism is in-built in the Constitution to resolve disputes between the Federation and its Units and between the Units inter se. The main object was to insure that the Centre and the Provinces formulate uniform policies in relation to matters in Part-II of Federal Legislative List and (entry 34 electricity) in the Concurrent List. The Council was to supervise the related institutions and to determine the rates at which net profits were to be calculated in terms of Article 161 of the Constitution and to sort out their problems and economic issues in spirit of co-operation while sitting across the table. In case the Council of Common Interests failed to resolve them, the matter could be referred to the joint sessions of the Parliament for final resolution. The documents on the file reveal that the Federal Government, despite repeated demands by three out of four federating units and unanimous resolution of the Senate, failed to call meeting of the Council for settlement of the issues resulting in polarisation and confrontation. The correspondence exchanged between the Chief Ministers, the Prime Minister and the President indicates that there were several subjects, like water and power, royalty of gas and oil, share of electricity and industrial resources, framing of its rules and procedure, which required resolution by the Council. The inaction on the part of the Federal Government to call Council's meeting, obviously put off the settlement of major Centre-Province disputes. In a press-statement the former Federal Law Minister indicated his apprehension that if Council's meeting was called it would open pandora's box. Similarly, the former Prime Minister, in reply to President's letter, simply mentioned that the meeting would be called and convened at some opportune time The material placed before the Court tends to show that Council's meeting was not called seemingly because if the issues were not resolved in the Council the matter required reference to the joint session of the Parliament and the Federal Government lacking majority in it, might face humiliation. The Provincial Governments, namely, Punjab and Baluchistan, finding no way out had to institute a suit against the Federal Government in the Supreme Court, calling for Council's meeting for settlement of the issues. In this way the requirements of the provisions of Articles 153 and 154 of the Constitution were not adhered to, which generated mistrust between the Provincial Governments, on one hand, and the Government of Federation, on the other. At that juncture the President expressed his concern over the confrontation and political dead-lock between the Federation and the Provincial Governments and dispassionately advised the Prime Minister to redress the grievances of the federating Units. 24. We have also noticed that the material on the record indicates that the National Finance Commission constituted under Article 160 of the Constitution, was not allowed to meet during the tenure of the former Federal Government although the Prime Minister was herself its chair-person. Resultantly, the mandatory Constitutional process of allocating shares of finance to the Provinces could not be accomplished. The NFC under clause(2) of Article 160 of the Constitution, was to make recommendations to the President and the latter to get them implemented. Non-summoning the NFC meeting gave rise to discord and confrontation between the Federation and the Provincial Governments, thereby endangering the solidarity of Pakistan. 25. We also find force in the submission of the learned Attorney-General that launching Peoples Works Programme, by an executive order, was violative of Article 97 of the Constitution. The documents on the file show that an amount of Rs.800 crore was allocated for the Peoples Works Programme without legislative backing. The President wrote letters to the former Prime Minister on 12th July 1989 and 31st July 1989 advising her to advert to the demands of the Provincial Governments in that behalf. Nothing is available on the record to controvert this plea except that the Federal Government was empowered to draw and implement social welfare scheme as per item No.25 of Fourth Schedule of the Concurrent List, appended with the Constitution. This plea is hardly available in the absence of a legislation by the Federal Government on the subject. 26. Admittedly, the Senate is a representative of the federating Units and an integral part of the Parliament. It symbolises the unity of Federation and equal status of the federating Units. It is not subject to dissolution and has equal number of members from all the federating Units. The material on the file indicates that unanimous resolution passed by the Senate for calling the meeting of the Council of Common Interests by the Federal Government, was ignored. The former Prime Minister disapproved the resolution of the Senate for providing VIP status to the ex-Senators, and called them as "collaborators of treason". The former Attorney-General's stance on behalf of the Federation, before the Sindh High Court in Abdul Mujeeb Pirzada's case (PLD 1990 Karachi 9(33), was that the Senate had no legal entity. The Members of the Government took oath of their offices to defend the Constitution but their stance in not acknowledging the Senate as a legal entity and a constituent part of the Parliament, is not comprehensible. 27. The material on the record further shows that the former Federal Government ridiculed the Judiciary, for instance, it allowed holding of a seminar where the verdict of the Supreme Court in a decided case, was publicly ridiculed and termed as a "judicial murder". 28. The allegation that the Federal Government misued the resources of the Federation, Prima facie, finds support from the material on the file, indicating the withdrawal of about seventy million rupees from D.I.B.Secret Service Funds, in violation of the relevant Rules, within two days on the occasion of "No-confidence Motion" against the former Prime Minister and disbursement thereof to M/s Malik Waris Afridi, the then Minister of State, Aftab Ahmad Khan Sherpao, ex- Chief Minister of NWFP, Major-General(Retd.) Naseerullah Babar, Special Assistant to the then Prime Minister, and Miss Naheed Khan as also to Mr.Muhammad Hanif Khan, former Federal Minister for Kashmir Affairs, on the occasion of the general elections in Azad Jammu and Kashmir. Mr.Naseerullah Babar opted to explain the details of the disbursement of the amounts withdrawn from the Secret Service Funds if the proceedings were held in camera. We allowed him to explain in the presence of the learned counsel for petitioners, Mian Abdus Sattar Najam, Advocate, and the learned Attorney- General. He acknowledged the withdrawal of the amounts from the Secret Service Funds but was unable to explain the disbursement thereof in accordance with the instructions on the subject referred to by the learned Attorney-General. 29. Our attention was also drawn to the documents relatable to the allotment of two hundred and thirty-seven plots of land in Islamabad to various persons, including MNAs and their relations, and also to documents showing bank loans worth crores of rupees, advanced to various persons in violation of the relevant Rules. The documents on the file further, prima facie, show the misuse of P.A.F., C-130 and P.I.A. aircrafts carrying eighty-six MNAs and other persons at the State expense during "No-confidence Motion" against the Prime Minister. 30. It also appears from the material on record that the former Federal Government disregarded the provisions of Articles 240 and 241 of the Constitution. Article 240 relates to appointments of persons in Service of Pakistan in relation to the affairs of the Federation, by the Federal Public Service Commission. This Constitutional institution was by-passed by making appointments through the "Placement Bureau". Suchlike arbitrary actions created frustration, sense of deprivation in the younger generation. Similarly, massive appointments were allegedly made in violation of the Constitutional provisions and large number of persons who had been dismissed from service, were reappointed and re-instated in service, contrary to Civil Service Rules, 1973. Furthermore, the Federal Government, contrary to Rules, allegedly made appointments in PIA. One Agha Rafiq Ahmad Khan, who was formerly an Additional District and Sessions Judge, was appointed as Director Administration. Several other persons were also allegedly appointed in statutory corporations and banks in violation of relevant Rules. 31. The Constitution under Article 14, guarantees that the dignity of man and, subject to law, the privacy of home, shall be inviolable. The documents on the record show that this fundamental right was flagrantly violated and disregarded by taping telephones of highly respected persons, including the Chairman of Senate and Speaker of the National Assembly. Even members of the Cabinet of Ministers, like the petitioners, were not spared. This was unethical and un-Islamic act. It was condemned by former learned Attorney-General in his speech delivered by him on the eve of the retirement of one of the Judges of the Supreme Court. He criticised the use of electronic means for violation of privacy. 32. Another important factor, which considerably engaged our attention, was that the Federal Govt. failed to give powers to the armed forces to combat law and order situation in Sindh despite advice tendered by the President in that behalf. The President in his letter dated 28th May 1990, addressed to the Prime Minister, expressed serious concern over the massacre in Karachi and Hyderabad on 27th May 1990 and involvement of provincial administration. The material on record pertaining to the incident, known as Pucca Qila Operation, shows that law and order situation in Sindh had virtually collapsed. The President advised that the army be given power under Article 245 of the Constituion, before law and order broke down completely, but, despite the President's directive, the former Prime Minister did not issue any notification to give power to the army, which had already been deployed in Sindh. Even the former Attorney-General had suggested that the army be given power enough to deal effectively with the crimes in Sindh. The Federal Government was under legal obligation, as envisaged under Article 148 of the Constitution, to protect the Provinces from external aggression and internal disturbances. The Federal Government did not take measures to restore law and order in Sindh where dacoities, murders and kidnapping for ransom were allegedly committed and the crime rate rose six times higher than that in Punjab. 33. The scenario presented by survey of the available material on the record with reference to the contentions raised by learned counsel for the parties, is that the last general elections held in November 1988, on party basis, were contested by the political parties, including the Pakistan Peoples Party. As a result of polls, the Pakistan Peoples Party emerged a single largest party although it did not have overall majority in the National Assembly. The President in his discretion, nominated and invited Ms.Benazir Bhutto to form Government of the Federation. The Pakistan Peoples Party formed its Government in Province of Sindh as well as in NWFP but could not form Government in the Punjab and Baluchistan. In Senate, the Pakistan Peoples Party had only a few seats. The nation, therefore, expected that the ruling party would merge all differences with the opposition and carry the opposition with it in all matters of national importance. It was obvious that the Government of Federation could not possibly undertake the legislation without co-operation of the parties in opposition. It appears that this naked reality was not given due importance and for reasons which need not be dilated upon here, the ruling party got itself engaged in confrontation with the parties in opposition. The confrontation erupted between the Federal Government on the one hand, and the two Provincial Governments namely, Punjab and Baluchistan, on the other, went on unabated. An inchoate attempt for dissolution of the Baluchistan Provincial Assembly did not materialise because Baluchistan High Court set aside the Dissolution Order, passed by the Governor, and restored the Provincial Assembly. The confrontation between the Federal Government and the above-mentioned Provincial Governments escalated to a great magnitude and took a serious turn. The material on the record shows that efforts were made to win over members of the Assembly by inducement and those who defected were ostensibly rewarded. This exercise gave rise to corruption, horse-trading and misuse of public funds, running into crores of rupees. It posed serious threats to public confidence in the Federation and the national institutions began to crumble. It appears that the parties in opposition, motivated by public opinion in general and finding no way out, moved "Noconfidence Motion" against the Prime Minister in the National Assembly. It goes without saying that in order to foil the move of the opposition, the Federal Government transported the members of the National Assembly to Sawat. They were made hostages, and not allowed to contact any other member of the Assembly. They were thus prevented to exercise freely their right of vote and were brought to the House when "No-confidence Motion" tabled against the Prime Minister was put to voting. By this device the ruling party succeeded in frustrating the "No-confidence Motion". The irony of fate is that when hijacked members of the National Assembly were set at liberty, none of them uttered a single word about their detention or inducement to vote for or against the Motion. This conduct of the members of the National Assembly lowered their prestige in the world. As a sequel to the failure of the "No-confidence Motion" against the Prime Minister, it was expected that the Federal Government as well as the Provincial Governments, pitched against one another, in the wider national interest would realise that there was no escape from self-destruction if policies of confrontation were not discarded. It could have served an eye opener to the ruling party that the Federal Government had a narrow escape as also to the combined opposition that all efforts made for the success of "No-confidence Motion" failed. The conduct of the members of the Assembly utterly disappointed the nation and attracted public censure. They were elected to solve national problems rather than to indulge themselves in misuse .of national assets for political gains, unmindful of their responsibilities, engaged themselves in confrontation and conspiracies dreadful for the nation at public expense. A wave of non-confidence and mis-trusst gained momentum against the members of the National Assembly. The President was appealed through press time and again to perform his constitutional role to save the country. The President, in turn, repeatedly advised the Federal Government on all the national problems and to redress grievances of the Provinces. On 6th December 1989 the President addressed the joint session of the Parliament and highlighted the problems and performance of the Parliament and the Federal Government. It appears that the Federal Government paid no heed to the timely advice of the President. Even after waiting for over eight months, the President found that the affairs of the Federation were rapidly deteriorating and, finding no way out, on the 6th of August 1990, invoked the provisions of Article 58(2)(b) of the Constitution and dissolved the National Assembly and, in consequence, the Prime Minister and her Cabinet ceased to hold office. He fixed 24th October 1990 as the date for holding fresh elections. The members of the dissolved National Assembly could claim no vested right to enjoy full term of five years when ostensibly they lost confidence of the people on account of their performance and conduct in the National Assembly. If action taken by the President in dissolution of the National Assembly in their estimation is incorrect, the electorate being political sovereign and final obiter may re-elect them with thumping majority. In our view, the President of Pakistan had validly passed the impugned Order because he had formed an opinion that the Government of Federation could not be carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessary. The grounds weighed with the President for passing the impugned Order had direct nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution. 34. Resultantly, we hold that the impugned Order, passed by the President of ( Pakistan , is not liable to be interfered with in Constitutional jurisdiction of this ! Court. By our short order dated 14th October 1990, we had already dismissed this petition and the connected four writ petitions and these are the reasons recorded therefor. There shall be no order as to costs. M. Mahboob Ahmad, J--I have had the privilege of going through the reasons recorded by the learned Chief Justice in support of the short order rendered by this Court on 14th of October, 1990. While generally agreeing therewith 1 have added my own detailed reasons as well in view of the importance of the case. The President of Pakistan (hereinafter referred to as the President) on 6th of August, 1990 in exercise of the powers conferred on him by Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) dissolved the National Assembly of Pakistan with immediate effect and also ordered that the Prime Minister and the Cabinet cease to hold Office forthwith. The President formed an opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. 2. The said order of the President has been questioned before this Court through Constitutional Petitions Nos. 6228 of 1990, 6257 of 1990 and 5849 of 1990. 3. Writ Petitions Nos.351 (Peshawar) of 1990 and 379 (Peshawar) of 1990 were instituted in the Peshawar High Court against the same order of the President which by order dated 15.9.1990 of the Supreme Court of Pakistan have been entrusted to this Court to be beared and decided along with the earlier mentioned petitions. 4. By a short order dated 14th of October, 1990 all the five above mentioned Constitutional petitions have been dismissed. This judgment would give the detailed facts and the reasons for the short order. 5. Three of these five Constitutional Petitions viz. Nos.6228 of 1990, 6257 of 1990 and 351 (Peshawar) of 1990 only question the validity of the order of the President dated 6th of August, 1990, whereas the other two viz. Nos.5849 of 1990 and 379 (Peshawar) of 1990 apart from challenging the validity of the order also question the vires of the Eighth Amendment of Constitition brought about by Act XIV of 1985. The challenge to the order of the President in the later two writ petitions is not as to the merits thereof but is based on the plea that since the Eighth Amendment by virtue of which Article 58(2)(b) was added to the Constitution is an invalid legislation, the exercise of power thereunder is without lawful authority. In the three first mentioned writ petitions the impugned order of the President has been dubbed as without any legal basis and passed in colourable exercise of the powers vested in him. It has been asserted in these petitions that the order of the President is not based on any material whatsoever and that the same is not sustainable in view of the principle laid down in "Federation of Pakistan and others versus Muhammad Saif Ullah KJian and others" reported as PLD1989S.C. 166=PLJ 1989 SC 170. 6. These petitions have been resisted by the Federation of Pakistan as well as by respondent No.2 in Writ petition No.6228 of 1990. The Federation has filed a common written statement in all the petitions which is supported by a large number of documents annexed therewith. It subsequently also filed additional ocuments after the filing of replication by the petitioners. The contents of the petitions have been controverted on merits and preliminary objections as to the maintainability of these petitions have also been raised. Respondent No.2 has filed a separate written statement in Writ Petition No.6228 of 1990 controverting the contents of the same. 7. For facility of reference it appears appropriate that the order of the President be reproduced verbatim:- Dissolution Order "The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary: - (a) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissentions and frictions, persistent and scandalous 'horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people. (b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority, and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the autonomy granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discard, confrontation and deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia:- (i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161. (h) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues of the Provinces despite their persistent demands. (Hi) Constitutional powers and functions of the Provinces have been deliberately frustrated by extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples Programme. (/v) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded. (c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies, statutory and other corporations including Banks working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath (s) prescribed therein, and the law, does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf. (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sind against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of the Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. (c) The Government of the Federation has violated the provisions of the Constitution and the law in that:- (i) The Superior Judiciary has been publicy ridiculed and its integrity attacked and attempts made to impair its independence. (//') Authority, resources and agencies of the Government of the Federation including statutory corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains. (///) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 242. (/v) The powers under Article 45 have been exercised by the Government without prior approval of the President. NOW THEREFORE I, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith." 8. The learned counsel for the petitioners in Writ Petition No.6228 of 1990 and writ petition No. 351 (Peshawar) of 1990 raised the following contentions:- (1) That order of the President of Pakistan dated 6th August, 1990 dissolving the National Assembly is not sacrosanct and is subject to judicial review by this Court. He urged that Article 199 of the Constitution empowers this Court to examine the material which has been made the basis of the opinion and to see whether the same could form a basis for passing the said order. (2) After laying the above proposition, the learned counsel submitted that there was no nexus between the grounds taken in the 1 impugned order and Article 58(2)(b) of the Constitution. (3) That apart from the fact that the Council of Common Interests was existing, its non-functioning on account of the Prime Minister's failure to call its meeting being a question sub judice before the Supreme Court of Pakistan in a suit filed by two of the Provinces against the Federation could not be made the basis of the impugned order. It was in the same context, submitted that otherwise also no meeting of Council of Common Interests was called for as never any party brought up a specific matter or dispute which should have been referred to the said Council. The learned counsel referring to "Advocate General versus Shabbir Ahmad" reported as PLD 1963 S.C. 610 submitted that in fact the taking up of the above ground as basis of the order dated 6.8.1990 constituted contempt of the Supreme Court. (4) That the ground in the impugned order about the non-constitution of the National Finance Commission is also on the face of it untenable in that the said Commission had been constituted on 25.7.1990 i.e. before the order dated 6.8.1990 was passed. (5) That the allegation about the extension of Federal authority into the domain of Provinces which allegedly constituted violation of Article 97 of the Constitution is also without any basis, whatsoever. Elaborating his contention, the learned counsel submitted that Peoples Programme which is referred to as an interference in the domain of the Provinces has been appreciated by the President himself in his address to the Joint Session of Majlis-e-Shura on 2.9.1989 and that otherwise also Article 97 ibid read with item 25 of the Concurrent List empowers the Federal Government to undertake the aforementioned Programme, the same being in the welfare of the masses. (6) That the allegation that Senate's role was undermined and the said House was being ridiculed is also without any valid foundation. Infact the Prime Minister in her speech in the Senate praised the services rendered by the said House. (7) That the vague allegations of corruption and nepotism in the Federal Government cannot also be a valid basis for dissolving the National Assembly and dismissing the Cabinet especially when no specific instance of corruption etc. has been cited. It was urged that the two instances one of Mr. Piracha and the other of Mr. Annhar referred to in the President's speech are otherwise without foundation in that in the first case the Supreme Court has expunged the remarks against the Minister of State whilst the second case is a matter pertaining to the Provincial Government. (8) Referring to the allegation of the Government's failure in maintaining law and order in the Province of Sind , the learned counsel submitted that it is not a relevant factor to attract action under Article 58(2)(b) ibid against the Federal Government as the Federal Government had complied with the provisions of Article 148(3) of the Constitution. As to the law and order situation itself, the learned counsel submitted that same was unnecessarily exaggerated and that there was peace in the Province of Sind before the 6th of August, 1990; army had been deployed some three weeks before the passing of the order of dissolution and the situation had been controlled. In the alternative it was submitted that law and order is a Provincial subject and, therefore, called for action under Article 232 and not under Article 58(2)(b) of the Constitution. In this connection, the learned counsel cited "Federation of Pakistan & others versus Haji Muhammad Saif Ullah JQ\an and others" reported as PLD 1989 S.C. 166=PLJ 1989 SC 170. (9) That the Federal Government never ridiculed the superior judiciary publicly or otherwise and no attempt was made to impair its independence. This allegation has been vaguely levelled without any specific instance having been quoted in the impugned order. The documents annexed with the written statement to show the ridiculing of the superior judiciary did not in any manner establish the allegation as these only show just criticism of judgments of the Courts which is permissible as the judgment after having been delivered becomes a public document. (10) That the alleged violation of Articles 240 and 242 of the Constitution in regard to the civil servants which has been made a ground for the impugned order is not correct as no wrong has been done to any civil servant nor any one of them has been victimised. (11) That the alleged violation of Article 45 of the Constitution of Pakistan about remission of sentences without approval of the President is also not well based as the remission had been made under the Jail Manual i.e. Prison Rules, Rule 218 of which Rules read with Section 415 (5) of the Cr.P.C. empowers the Prime Minister independently to allow remission to prisoners. (12) That in any case there being other remedies available to remove members of the National Assembly indulging in mal-practices viz. Section 8-B of the Political Parties Act, 1962 and Articles 63 of the Constitution, the President could not take action under Article 58(2) (b) of the Constitution. (13) That respondent No.2 could not be appointed 'the caretaker Prime Minister and that Mohtarama Benazir Bhutto still continues to be the Prime Minister by virtue of Article 91(8) of the Constitution read with Articles 48(2) and 58(2)(b) thereof. (14) That respondent No.2 should be stopped from undertaking/doing anything other than day to day work as carrying on of other works of Government such as the transfer of officers, the transfer of funds to Provincial Governments out of the People Programme Fund is in disregard of the Lahore High Court and Supreme Court judgments in the case of "KJi. Muhammad Sharif versus Federation of Pakistan " reported as PLD 1988 Lahore 725 and "Federation of Pakistan versus Haji Muhammad Saif Ullah KJian" reported as PLD 1989 S.C. 166=PLJ 1989 SC 170. (15) That all the grounds taken by the President for dissolving the National Assembly are without foundation and even assuming that some of them have any valid basis then also if one of them is held to be untenable, the order is liable to be struck down in its totality on the principle laid down in "Kli. Muhammad Sharif versus Federation of Pakistan" resported as PLD 1988 Lahre 725, "Government of West Pakistan versus Haider Bux Jatoi" reported as PLD 1969 S.C. 210, "Chan Pir Shah versus Congothene Chemical Industries Ltd. etc." reported as 1981 PLC 981, "Sardar Slier Muhammad versus Rao Bashir All Klian and another" reported as PLD 1962 (W.P.) Lahore 172 and "Muhammad Mosawwar Klian versus Deputy Commissioner, Gujranwala" reported as PLD 1983 Lahore 102. (16) That newspapers reports are no evidence whatsoever unless proved and, therefore, all the clippings annexed with the written statement have to be ignored. Reference was made to "Raja Muhammad Afzal v. C/i. Muhammad Altaf Hussain and others" reported as 1986 SCMR 1736. Annexures A, A/1, A/2 and A/3 as also annex. 'M', it was urged, are liable to be ignored as these could not be produced in the Court being secret documents. Reliance in this regard was placed on "Syed Abual Aala Maududi versus Tlte State Bank of Pakistan and another" reported as PLD 1969 Lahore 908. (17) That the inefficacy of the order of the President dated 6.8.1990 can be well judged from the fact that both the Political Parties viz. PPP and IJI have rejected the mandate of the President regarding the appeal to the electorate by giving tickets for the forthcoming election to the same persons who were Members of the dissolved National Assembly; and (18) That the President of Pakistan before passing the order had to find with certainty that the Government of the Federation cannot be run in accordance with the Constitution which means that it cannot be so run in future and such a situation, in the wake of the position that already Government had requested for convening of the Assembly, never existed. 9. In the light of the above submissions, the learned counsel urged that the order of dissolution of Assembly is liable to be struck down and since the situation presently is at variance with the one which prevailed at the time of dissolution of the last Assembly on many scores, the National Assembly merits to be restored. 10. The learned counsel for the petitioner in Writ Petition No.6257 of 1990 generally adopted the contentions of the learned counsel in the first writ petition. He additionally contended that Article 58(2)(b) of the Constitution in fact is a residuary provision and the sine qua non for exercise of this power is that no other course is available to the President. He submitted that the President should have resorted to Article 63 of the Constitution or to the Provisions of P.O. Nos.16 and 17 of 1977 read with Section 91 of the Representation of People Act, 1976 or for that matter to Article 91 of the Constitution of Islamic Republic of Pakistan. The learned counsel elucidated his point of view by stating that under Article 91(5) of the Constitution the Presidnet could dismiss the Prime Minister Mohtarama Benazir Bhutto if he had come to the conclusion that the Federal Government was corrupt or take action against the individual Members of the Assembly under Article 63 of the Constitution or the other provisions available in this regard and that the dissolution of Assembly is a much bigger punishment which has been nflicted not only on the delinquents but also on such Members of the National Assembly who were innocent and above all on the public at large who will be put to a much bigger inconvenience due to fresh election and which would also be a big drain on the exchequer. The learned counsel was, however, unable to support his above assertion when he was told that the provisions of Articles 91(5) and 63 of the Constitution in no manner confer any powers on the President to take any action as suggested by him. 11. In the ultimate the learned counsel submitted that if at all any action was called for, the President should have taken action under Article 48(6) of the Constitution and should have ordered referendum to seek a verdict from the electorate about the allegations against the Prime Minister and her Cabinet. 12. The contentions raised by the learned counsel for the petitioner in wirt petitions Nos.5849 of 1990 and 379 (Peshawar) of 1990 may be summed up as unden- (/) That before embarking upon the determination of validity or otherwise of the impugned order of the President, it will have to be first decided as to whether the Constitution in force in Pakistan is the 1973 Constitution with or without the addition of Eighth amendment. He termed the Constitution with Eighth Amendment as "Zia's Constitution of 1985". The learned counsel submitted that he would show that 1973 Constitution without addition of the Eighth Amendment is the only lawful Constitution of the country and that the Eighth Amendment is not an amendment brought about by the due constitutional process envisaged by Article 239 of the Constitution. He in the same breath submitted that it is an ill-based assumption that the vires of Eighth Amendment have been judged by the Supreme Court. He argued that although the vires of Eighth Amendment were considered and upheld in Ghulam Mustafa Khar's case (PLD 1988 Lahore 49=PLJ 1987 Lahore 660) by the Lahore High Court but this question though touched upon by the Supreme Court of Pakistan in appeal against the said order was not conclusively decided. (//) That no where in the world any parliamentary form of Government is run under a Constitution like the one created in this country through the Eighth Amendment brought about in 1985. He submitted that the power to dissolve an Assembly in all the parliamentary form constitutions such as British. Irish, Japanese, Indian, is vested in the elected head of the Government and the reason behind this vesting of power is that the elected Assembly should look directly to the elected Government head and not to the head of the State. In the same context the learned counsel submitted that if powers under the Constitution such as the one of dissolving the Assembly are conferred upon two entities like the President and the Prime Minister it is nothing less than an attempt to place two swords in one scabbard which in the nature of things is not possible. (///) That the constitutional amendment brought about in 1985 viz. the Eighth Amendment in the wake of the very tenor of the Revival of the Constitution Order 1985 and the proclamation of withdrawal of Martial Law was intended to remain in field only upto the time the power was not transferred to the elected government and not to be continued in future. (/v) That the validation of various legislations and indemnification of various acts can only be done after the period of deviation of the Constitution had come to an end and any effort in this regard made before the coming to an end of the deviation period cannot be termed as a proper and lawful validation/indemnification. Reference in this regard was made by the learned counsel to "Siileman & Others versus President Special Military Court No.3 Sibi & Others" reported as NLR 1980 Civil Quetta 873, "Federation of Pakistan versus Malik Ghulam Mustafa fOtar" reported as PLD 1989 SC 26 and "Abdul Mujeeb Pirzada versus Federation of Islamic Republic of Pakistan and 87 others" reported as PLD 1990 Karachi 9 = PLJ 1990 Karachi 14(FB). (v) That even if the Eighth Amendment is assumed to be effective no power can be exercised under Article 58(2)(b) of the Constitution by the President because the Constitution in the presence of the above Article which is against the established parliamentary form constitutions has been rendered unworkable. (v/) That without prejudice to the above, even if Article 58 of the Constitution is taken as workable, the appeal to electorate envisaged by this provision indicates appeal through referendum and for that purpose the five questions as detailed in the petition be formulated for reference to the electorate. The learned counsel, however, could not urge anything whatsoever in support of his above contention when he was asked to read the words "appeal to electorate" contained in Article 58(2)(b) conjunctively with the provision of Article 48(5)(a) of the Constitution. (v/7) On merits of the order of the President, Dr. A. Basit very boldly submitted that Raja Muhammad Anwar, the learned counsel for the petitioner in Writ Petition No.6228 of 1990 and No.351 of 1990 has tried to show that there is no valid or for that matter no basis at all for passing of the order by the President but this position was not correct as there did east-grounds which are valid basis for the order, for example, corruption was rampant and unprecedented; that the people around the then Prime Minister were immoral and created all this trouble for the Government. The learned counsel also submitted that it is very generous to use the word "horse trading" for the misconduct of the Members of the National Assembly and that the appropriate word for the nefarious activities of some Member of the National Assembly infact should be termed as 'Zamir Faroshi'. The learned counsel submitted that the power under Article 58(2)(b) ibid in the circumstances prevailing has been exercised by the President properly, justly and validly as the instances given, like inducements and actual conferment of benefits on some of them to buy their loyalties had occurred. (vh/) That the appointment of Mr. Ghulam Mustafa Jatoi as caretaker Prime Minister could not have been made as he is the one person out of the 10 crore population of this country who should not have been appointed to this Office. He being leader of the Opposition could only be appointed to this Office if the former Prime Minister had been ousted from Office by a vote of no confidence. The learned counsel submitted that by this appointment the exercise of power by the President though it may otherwise be well founded stood vitiated. 13. On the conclusion of arguments by the learned counsel for the petitioners in the various writ petitions, the learned Attorney General took the rostrum. He, opening his address, submitted that the petition of Kh. Ahmad Tariq Rahim only prays for a declaration and not for restoration of Assembly. A mere declaration, therefore, even if allowed will be of no consequence. 14. After the above submission, the learned Attorney General formulated following propositions to support the order of the President:- First, that the order of dissolution of Assembly passed by the President of Pakistan in exercise of a specific power conferred upon him having been based on an opinion that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the Constitution is not open to question Secondly, that the order having been passed by the President after full application of his mind to the prevalent circumstances and he having exercised his discretion under Article 58(2)(b) of the Constitution, the said order of the President is not assailable in the present proceedings; Tliirdly, that the adequacy and sufficiency of the reasons forming the basis of the order is not justiciable. He said that so it has been held in "Kh. Muhammad Sharif versus Federation of Pakistan" reported as PLD 1988 Lahore 725 and "Federation of Pakistan and others versus Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170. Fourthly, that all the grounds taken by the President for forming the opinion before dissolving the Assembly have a direct nexus with the various provisions of the Constitution and each one of them sufficiently shows that the affairs of the Federation cannot be carried on in accordance with the Constitution; Fifthly, that the material before the President, some of which has been placed oo record of the Court, would clearly show that the opinion has been formed by the President objectively and keeping in view all the attendant circumstances and, therefore, the Court, while examining the order of the President in exercise of the powers of judicial review, is not to sit as a court of appeal and is only competent to see whether the grounds disclosed by the President had any nexus with the preconditions laid by Article 58(2)(b) of the Constitution; Sixthly, that it is too wild a proposition to be advanced in a case of this nature that even if one of the grounds mentioned by the President in his order is found to have no direct nexus with the preconditions laid by Article 58(2)(b) of the Constitution, the Court should strike down the order as a whole; Seventhly, that if the National Assembly does not function in accord with the provisions of the Constitution, may be on account of the nefarious horse trading or lack of majority of the ruling party in the Senate, there is a constitutional failure and crisis which defeated the working of the Government of the Federation in accordance with the Constitution. As to the inability of the Government to have a bill passed through the Senate, the learned Attorney General drew attention to a statement of the then Attorney General of Pakistan made on 19th of June, 1990 as published in the daily "Nation" wherein it had been accepted that the majority of the Senate Members was against the Peoples Party Government. It was also pointed out by the learned Attorney General that during the period commencing 2.12.1988 and ending 6.8.1990 no legislative work worth the name was conducted by the National Assembly and a large number of bills were either allowed to elapse or not processed for presentation. This, he said, was obviously under the fear that the Government would have failed if the bills had been presented. In the same context, the learned Attorney General submitted that the President gave all possible opportunities to the former Government to make amends and work in accordance with the Constitution but these opportunities were not availed of on account of its adamant attitude which compelled the President ultimately to pass the order of dissolution of Assembly on 6th of August, 1990. Had he not done so it may have brought about disastrous results in the country both in the constitutional and economic fields as well as politically; Eighthly, that the Government of the Federation openly and publicly ridiculed and criticised not only the august constitutional body like the Senate but also ridiculed the superior judiciary in a fashion unprecedented in the history of the civilised world. The ciriticism of the Senate made by the Ministers of the Government by public statements and by openly dubbing the Senate as an invalid House before the Sindh High Court in Abdul Mujeeb Pirzada's case through its Deputy Attorney General/Attorney General and the remarks of the Prime Minister on a summary presented to her in connection with the Senate Members privileges were cited as instances of ridiculing. Similalry, the holding of seminars to criticise the Judges of the Supreme Court and the High Courts in respect of cases decided by them, which seminars were promoted and arranged at the behest of the Federal Government and were presided over by Governor of the Province of Sindh, an appointee of the Peoples Party Government, and attended by the Prime Minister and other Ministers show the scant respect the Federal Government had for the superior judiciary; Ninthly, that the corruption and acts of nepotism, favouritism etc. were so rampant and widely known and even acknowledged by some of the members of the Government party that they need not be elaborated. However, lot of material was available with the President in this respect and some of it has been placed on record of this Court to show the acts of corruption, nepotism, favouritism etc. of the dismissed Federal Government. References made to the Tribunals under Presidnet's Order No. 17 of 1977 were also cited as some examples of such illegal acts; Tenthfy, that the resources of the Government were misued without any restraint. Reference in this behalf was made to the use of Air Force Planes and PIA Planes during the no confidence motion against the Prime Minister as also to the grossest example of embezzlement which, he said, can be found from the fact that secret funds of Intelligence Agency were withdrawn by the Government during the ho confidence motion days and also during the Azad Kashmir Elections to the tune of crores of rupees and either misappropriated or misapplied for purposes other than for which the funds were meant. Reference was made to Annexures A, A/1, A/2 and A./3 to the written statement. Yet another example of favouritism and misuse of Government resources was quoted as increase in the discretionary quota of the Prime Minister for allotment of plots in Islamabad and making of allotments to lure the MNAs/MPAs to cross the floor or to support the Government; Eleventhly, that the corruption and illegal activities of the members of the former Government were so wide spread that even today's associates of the Pakistan Peoples Party like Air Marshal (Retd.) Asghar Khan urged the President to dissolve the National Assembly through a press statement; Twelfthfy, that one of the most important grounds ; n the order of the President which has a direct nexus with the preconditions of Article 58(2) (b) of the Constitution is the inaction of the Federal Government in calling meetings of the Council of Common Interests and National Finance Commission, the two constitutional institutions charged with the function of resolving the disputes between the federation and the federating units and allocation of shares out of the income of the federaton, which compelled the two federating units to go to the Supreme Court of Pakistan for redress of their grievance; Tliirteenthfy, that erosion of the fibre and structure of civil services and of the services of the statutory corporations was embarked upon by the Federal Government in such a massive manner that more than 26,000 persons belonging to the Peoples Party only were accommodated in the services of Pakistan, and statutory corporations irrespective of the position that they were legally ineligible to be so appointed or they had no merit for such appointments. The appointments, he said, were in utter disregard of the constitutional provisions of Articles 240 and 242 of the Constitution and the Federal Public Service Commission Act and other legislations governing the statutory corporations services; Fourteenthly, that in violation of the Constitution, inroads were made into the provincial autonomy by launching Peoples Programme without any constitutional or legislative backing and enforcing the said Programme through its own political workers and such persons who had been defeated in the last general elections to the National and Provincial Assemblies. They had neither any official status nor any legal obligation to be answerable for accounting for the huge funds placed at their disposal; Fifteenthly, that the provisions of Article 245 of the Constitution were not resorted to by the Federal Government to control the law and order situation in Sindh despite the directions by the President, the advice of the then Attorney General of Pakistan and the views expressed by the then Governor of Sindh which inaction resulted in huge loss of life and property of the citizens and thus a constitutional infringement of a grave nature was committed by the Federal Government rendering the carrying on of the Government in accordance with the Constitution impossible; Sixteenthly, that the Federal Government flouted the constitutional provisions of utmost importance relatable to fundamental rights by taping the telephones of citizens including the high government functionaries such as the Chairman of Senate, Speaker of the National Assembly etc. and its this desire to intrude into the privacy was so overpowering that even the petitioner, a Minister in the Federal Government, was not spared. The learned Attorney General submitted that Article 14 of the Constitution confers a fundamental right on the citizens to be treated with dignity and ensures privacy to them which was belligerently violated and not only that the grund norm of our Constitution and country's very existence viz, Quranic Injunctions in this regard were also violated which the then Attorney General himself had quoted in his paper published in PLJ 1989 Magazine 118 (May Part); cassettes of taping were produced in support of this submission. Seventeenth!)?, that the appointment of the Prime Minister heading the caretaker Cabinet having been made by the President in exercise of the discretion vested in him by the Constitution and which is a requirement also according to the Supreme Court dictum in Haji Muhammad Saif Ullah Khan's case is not open to challenge before this Court; and Lastly, that newspaper reports and clippings can lawfully be referred to for determining the controversy as it has been held to be permissible by law laid down by the Supreme Court of Pakistan in NAP Reference "Islamic Republic of Pakistan versus, Abdul Wall Klian. M.AL4." reported as PLD 1976 S.C. 57. He also placed reliance in this respect on "Ghulam SarwarAwan versus Government of Sind" reported as PLD 1988 Karachi 414 and "Federation of Pakistan and others versus Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170. The case cited by the leanred counsel for the petitioner viz. "Raja Muhammad Afzal versus Ch. Muhammad Altaf Hussain and others" reported as 1986 SCMR 1736 was distinguished by him as based on proceedings of different nature. 15. The learned counsel representing the caretaker Prime Minister (respondent No.2) submitted that while dissolving the National Assembly under Article 58(2)(b) of the Constitution, the President is under a constitutional obligation by virtue of the provisions contained in Article 48(5)(b) thereof to appoint a caretaker cabinet which in the light of Article 91(8) of the Constitution and as held by the Supreme Court of Pakistan in Haji Saif Ullah Klian's case must ^ be headed by a Prime Minister. Mr. S.M. Zafar contended that perusal of Article 48(5)(b) and Article 91(8) of the Constitution shows that the President has the discretion to appoint any person as the Prime Minister and this discretion is not liable to be interfered with by this Court. 16. As regards the powers and duties of the caretaker Government, the learned counsel contended that the said Government for all intents and purposes enjoys the same powers as a regular cabinet is vested with and the only difference is that it has to function during the specified period of 90 days. He referred to various provisions of the Constitution including the oath of Office of the Prime Minister which is the same for a regular Prime Minister and a caretaker Prime Minister to support the above contention. 17. In respect of the power of the President to dissolve the National Assembly under Article 58(2)(b) of the Constitution, the learned counsel submitted that the same stands defined by the pronouncement of the Supreme Court of Pakistan in Haji Saif Ullah KJian's case. According to the learned counsel the ratio of the said judgment is that the President has the authority to dissolve the National Assembly; he has to form an opinion before so doing that a situation has arisen in which the Government of the Federation cannot be carried on in accord with the provisions of the Constitution and an appeal to the electorate is necessary; that the superior courts possess the power of judicial review in order to find out whether the opinion formed by the President is such which could be formed by a reasonable person; and that the action to be taken after the forming of the opinion is at the discretion of the President. In this connection, the learned counsel also submitted that exercise of power under Article 58(2)(b) of the Constitution can only be examined in the light of the constitutional provisions of our o%vn Constitution without reference to any other country's case law. He argued that a constitutional phrase has been coined to support the above contention viz. "constitutional autochatoni", which means that every constitution has to have a direct relationship with the genesis of the people. 18. As to the validity of the impugned order of the President, the learned counsel for respondent No.2 contended that the same has to be examined in the light of the submissions of the learned Attorney General as advanced by him in support of the said order. As to the scope of the examination of the grounds of the order of the President, it was urged by him that this Court is not required to hold that they are proved to the hilt and that in the light of the Supreme Court judgment in Haji Saif Ullah KJian's case the court is only to see whether a reasonable person in the given circumstances could form an opinion which the President has formd without any consideration as to whether some other opinion could also be formed. 19. Referring to the inaction of the Federal Government in the matter of Council of Common Interests, the learned counsel argued that this was a valid ground for the President to have taken action. The said ground he said has a direct nexus with the order of dissolution inasmuch as the marriage of the federation and the federating units was being rocked by the inaction of the Federal Government which is apparent from the fact that at least two of the federating units had to resort to an action before the Supreme Court. He submitted that this Court without going into the merits of the case before the Supreme Court can consider that the President could take notice of the acrimony between the federation and the units and on this basis resort to an action under Article 58(2) (b) of the Constitution. In support of his above contention the learned counsel relied upon "Mst. Balqis Fatima V. Najm-ul-Ikram Qureshi" reported as PLD 1959 (W.P) Lahore 566, Mst. Parveen Begum Vs. Muhammad All reported as PLD 1981 Lahore 116, "Muhammad Rafiq v. Chairman, Arbitration Council and others" reported as 1986 CLC 1722, and "Mst. Zarina Gauhar v. Tlie Province ofSind and two others" reported as PLD 1972 S.C. 139. 20. The learned counsel for respondent No.2 also controverted the plea raised by the learned counsel for the petitioner in Writ Petition No.6228 of 1990 to the effect that if one of the grounds of the order of the President out of the many taken by him is found invalid, all other grounds have also to fall along with and the order has to be declared a nullity. He submitted that this principle has been applied in matters of detention and will have no application to a situation of the nature under consideration. Contrarily, he said that in cases of this nature, the effort of the court irrespective of the stance of the parties should be to find out the source of validity. To support the above contention, the learned counsel referred to "Tlte Chairman, East Pakistan Railway Board, Chittagong and another versus Abdul Majid Sardar, Ticket Collector" reported as PLD 1966 S.C. 725 and "Lahore Improvement Trust, Lahore versus Tlie Custodian, Evacuee Property, West Pakistan, Lahore and 4 others" reported as PLD 1971 S.C. 811. 21. In reply to the arguments of DrA. Basil as to the validity of the Eighth Amendment, the learned counsel submitted that this matter has fallen for consideration before the Supreme Court of Pakistan and the various High Courts a number of times. He cited the following cases in which this point has already been considered:- (/) Rustam v. Vie State (PLD 1986 Karachi 561). (//") Muhammad Bachal Memon v. Government of Sind through Secretary Department of Food and 2 others (PLD 1987 Karachi 296). (Hi) Malik Ghulain Mustafa Khar and others v. Pakistan and others (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660 (FB)). (iv) M.D. Tahir vs. Federal Government and 12 others (1989 CLC 1369). (v) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 S.C. 416). (v/) Federation of Pakistan and another v. Malik Ghulam Mustafa KJiar (PLD 1989 S.C. 26). (v/7) Sharaf Faridi and 3 others v. Hie Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404). (viii) Abdul Mujecb Pirzada v. Federation of Islamic Republic of Pakistan and 87others (PLD 1990 Karachi 9=PLJ 1990 Karachi 14(FB)). (or) Abdul Aziz Qureshi Advocate V. Federation of Pakistan and others (PLD 1990 Lahore 488 = PLJ 1990 Lahore 549 (DB)). and said that in above cases the Eighth Amendment has been either assumed or found to be valid. In the case of "Ghulam Mustafa KJiar" (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660 (FB)), it has been held by a Full Bench of this Court that the Amendment is valid, whilst the Supreme Court in appeal in that case assumed it to be correct. He further submitted that in the case of "Mujeeb Pirzada" decided by the Sind High Court, the Eighth Amendment has been held to be valid although the matter is now pending before the Supreme Court in appeal. He suggested that this point in the aforementioned circumstances should not be examined by this Court and be allowed to be kept at rest. 22. Continuing with his arguments on the above point, the learned counsel also questioned the locus standi of the Wokala Mahaz Bara-i-Tahafaz-e-Dastoor to raise this question especially when the said Mahaz has slept over the matter itself for over five years and even the Assembly last formed in 1988 could not get it deleted from the Constitution through legislative measures. The learned counsel argued that this tendency to have political issues decided through the Courts should be discouraged as these are matters of politics which should be settled in the forums provided for the purpose. The learned counsel emphasised that the politicians should know their responsibilities and discharge their functions honestly as is expected of them and not burden the courts to undertake this exercise. He gave a note of caution that the courts should not be lured into these political arenas and keep the stream of justice unpolluted. The learned counsel also pointed out that by bringing politicial issues to the Courts which are kept engaged in these issues genuine poor litigants are put to a great inconvenience and suffering as their matters are kept in abeyance from adjudication. We have also heard Mr. Ismail Queshi, Advocate, Haji Muhammad Saif Ullah Khan, Mr. Rafiq Ahmad Bajwa, Advocate and Agha Dilawar Khan, who had made applications for being impleaded as parties before us and in the alternative to give them opportunity of hearing in the public interest. Mr. Ismail Qureshi supported the order of the President on all the grounds as canvassed earlier by the learned Attorney General. He further submitted that the dissolved National Assembly having taken no steps for Islamization of laws and having failed to properly legislate on the subjects of Qisas and Diyat despite the direction of the Supreme Court of Pakistan had failed to run the Government in accordance with the Constitution. It was next urged by him that the above inaction of the Federal Government was a direct violation of the various provisions of the Constitution including Article 2-A and the Preamble of the Constitution. Haji Saif Ullah Khan contended that the order of the President is selfcontradicory in that it admits the passing of the Finance Bill and yet says that the legislative work was not being undertaken. He said that the passing of the Finance Bill was a clear reposition of trust in the Assembly and thus there was no occasion for dissolving it. Mr. Rafiq Ahmad Bajwa, Advocate argued that the primary matter to be considered by this Court is not the validity or otherwise of the order of the President dated 6th of August, 1990 but to analyse the constitutional provisions so as to remove the anomalies created therein. He submitted that the powers of the President and the Prime Minister have been so overlapped that these will continue to give rise to constitutional crisis and failure of democratic system. It was urged by him that the system under the present Constitution is not Islamic which it should be as this country has been created with the efforts of Muslims of the Sub-continent who were given a promise that the Government in this country will be based on principles of Quran and Sunnah, which promise has not been fulfilled. Mr. Rafiq Ahmad Bajwa was of the view that the present stage of constitutional crisis is the result of a design of some nationals in collaboration with foreign elements who fear the establishment of an Islamic order as this might give lead to other Islamic countries to base their governments functioning on Quran and Sunnah. Mr. Rafiq Ahmad Bajwa submitted that the premises for dissolution of the Assembly had been laid at the very inception of the Assembly when Pakistan Peoples Party which had no majority in the National Assembly was asked to form Government at the Centre and by so doing the said party manipulated to win over some other Members to form a Government and consolidate its position. Simultaneously it was ensured that no legislative work should be allowed to be continued as even though Peoples Party could form a Government in the Federation, it had practically no representation in the Senate and thus no effective legislative work could be undertaken. The stalemate was allowed to continue and when the Shariat Bill was passed by the Senate it was not presented in the National Assembly. Contrarily, the Federal Government tried to sabotage its presentment and passage by the National Assembly by making public speeches to run down the said Bill. It was also ensured, he submitted, that the Shariat Bill should be made subordinate to the Constitution so that in case of a conflict in the existing position of the Constitution and law, the Shariat provisions as contained in the Bill could be got declared ultra vires of the Constitution and thus prove that Shariat is no longer workable. Mr. Rafiq Ahmad Bajwa on the merits of the case submitted that the President could invoke Article 58(2)(b) of the Constitution only in case acts to be done for forming the Government under Article 90 to 100 were not possible or the provisions of these Articles were violated by the Government and that under no other circumstance this power should be invoked by the President. The only other submission made by him was that meeting of the Council of Common Interests was not called by the Federal Government obviously under the fear of Article 153(5) of the Constitution as the Government would have failed in a joint session of the Parliament and, therefore, this ground may have a nexus with the pre-conditions of Article 58(2)(b) of the Constitution. Agha Dilawar. Khan, who stated that he is a candidate for election to the National Assembly, submitted that the President's order was well based in law as well as on facts. He submitted that the President was left with no alternative except to invoke the provisions of Article 58(2)(b) of the Constitution and dissolve the National Assembly as the then Federal Government was not working in accordance with the Constitution. Agha Dilawar Khan submitted that if Article 31 of the Constitution is read with Article 227 thereof it will be established that the Government of the Federation was not working in accordance with the Constitution as it failed to constitute Council of Islamic Ideology- for a very long period during its tenure and that even the belatedly constituted Council was not in accord with the constitutional provisions. He next submitted that Article 32 of the Constitutions was also not adhered to in that the Federal Government not only failed to promote the Local Government institutions but acted contrarily so as to undermine the functioning of these institutions by launching Peoples Programme. The next contention of this applicant was that the Eighth Amendment has been rightly adopted by the Assembly elected in 1985 as it inter alia restored the powers of the High Courts which had been stifled by the Fifth Amendment made by the former Peoples Party Government. Lastly this applicant contended that the dissolved Assembly in any case cannot be restored as it is the admitted position of the petitioners themselves that the Assembly already stands dissolved whereas in the case of Baluchistan Assembly which was restored the plea taken was that the Assembly is still hi existence. Raja Muhammad Anwar, the learned counsel for the petitioners, in reply to the arguments of the learned counsel for the respondents mainly reiterated his earlier contentions. His only new submissions were that the learned Attorney General has said nothing in support of the alleged violation of Article 45 of the Constitution which is a ground contained in the impugned order of the President; that it was not the dismissed Government which ridiculed the judiciary but the one now holding the reigns which has not confirmed a Judge of the High Court and has removed a Judge of the Supreme Court of Pakistan; and that nothing has been brought on record to show the misuse of authority in the matter of appointments in the statutory corporations. Raja Muhammad Anwar thereafter begged leave of the Court stating that Mr. Abdul Sattar Najam will conclude the arguments in reply. Mr. Abdul Sattar Najam Advocate only contended that the provisions of Article 58(2)(b) of the Constitution have to be considered as ejitsdem generis to the provisions of Article 58(2)(a) of the Constitution and that the President can invoke this power only in such cases where circumstances similar to those provided for in paragraph (a) of clause (2) of Article 58 exist. Dr. A. Basil Advocate, in reply submitted that Vokala Mahaz Barai Tahafaz-e-Dastoor is a body of lawyers who are six in number and being associated with the profession of law are persons deeply interested in the upholding of the Constitution and ensuring that the Governments are run in accordance with the Constitution and that functionaries of State do not exceed their constitutional/legal jurisdictions. He argued that in the context of his submission the challenge to the locus standi of the petitioners as made by Mr. S.M. Zafar is not tenable. Dr. A. Basil again emphasising on the invalidity of Article 58(2)(b) of the Constitulion stated lhat his objection to the order of the President only is on a legal ground and that the said order on merits is otherwise suslainable. Coniinuing he submilted thai the actions of the Federal Government in violation of constitulional provisions especially in nol giving effecl to the functioning of bodies like Ihe Council of Common Interesls and Nalional Finance Commission can only be lermed as carrying oul of the Government in violation of the Constitution. On a conjunctive examination of the respective contentions raised on behalf of the various parties to the constitutional petitions under consideration the common questions of law thai emerge for delerminalion may be summarised as under:- Whelher Ihe order passed by Ihe Presidenl under Article 58(2)(b) of Ihe Conslitution of the Islamic Republic of Pakistan can be judicially reviewed in exercise of the powers vested in this Court by Article 199 of the Constilulion; if so, Ihe exlenl and scope of such review? In case one or more of the grounds which are the basis of the opinion of the President are not well founded, whether the order shall be liable to be struck down as a whole or can it be suslanied on the grounds which are determined to be valid? Whal is the true imporl of Ihe words "also", "discretion" and "opinion" used in Article 58 (2) of the Constitution and of the expressions "carried on in accordance with the Constitution" and "an appeal to the electorate is necessary" used in sub-paragraph (b) of Article 58(2) ibid! (4) Whether reports in the newspapers can be read as part of the record for the purpose of determination of controversies raised in these petitions? 40. Before embarking upon the discussion and arriving at conclusions on the propositions formulated as above, it appears appropriate to refer to the all important judgment on the subject viz. "Federation of Pakistan and others v. Haji Mohammad Saif Ullah TQian and others" reported as PLD 1988 S.C. 166 = PLJ 1989 SC 170. The ratio of the said case may be culled out as under:- That the President has the constitutional authority to dissolve the National Assembly in his discretion. He can exercise this discretion on forming an opinion that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The superior Courts do possess the power of judicial review in order to find out whether the opinion formed by the President was such as could be formed by a reasonable person. Where the President provides reasons for making an order under Article 58(2)(b) of the Constitution the Court can examine the validity of such reasons and if the same are found to be non-existent or having no nexus with the perimeter of the exercise of the authority vested in him, the Court may declare the action invalid. 41. The answer to the first part of the first proposition does not, therefore, present any difficulty in view of the above authoritative pronouncement of Supreme Court of Pakistan and in the light of the principles laid down in the said l authority it can safely be held and very respectfully so I do that the order that the () President has passed on 6th of August, 1990 under Article 58(2)(b) of the i Constitution can be judicially reviewed by this Court in exercise of the powers I conferred on it by Article 199 of the Constitution of Islamic Republic of Pakistan. 42. In order to arrive at a correct conclusion regarding the second limb of the first proposition viz. the scope and extent of judicial review, it may be of beneift to examine important judicial precedents on the subject., 43. In Rahim Shah v. Tlie Chief Election Commissioner of Pakistan and another" reported as PLD 1973 SC 24 considering similar proposition it was observed at page 36 as under:- "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. Tlie scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal." [Tlie underlining above is by me] 44. Again in "Begum Wazir Ahmad Industrial Home versus Msl. Niaz Begum" reported as PLD 1976 SC 214. Salahuddin Ahmad J., as he then was, speaking for the Court observed at Page 222 as under:- "The High Court could not interfere with the findings of the Settlement Commissioner even if upon the same facts a different view could be taken.There was neither any jurisdictional defect nor any contravention of any fundamental porinciple in arriving at the impugned findings.". 45. The following passage from the judgment of Supreme Court of Pakistan in "Federation of Pakistan and others . Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170 as appearing at page 189 may also be usefully reproduced hereunder:-- "Thus, though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material. In the present case the President himself chose to state the grounds on which he was basing his action. As the grounds have been disclosed their validity can be examined." 46. In Associated Provincial Picture Houses v. Wednesbury Corporation, (1948) 1 K.B 223 it has been held as under at page 228:-- "It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles that discretion, in my opinion, is an absolute one and cannot be questioned in any court of law". 47. The above principle has been followed in Luby v. Newcastle-Under-Lyme Corporation. (1964) 1 All E.R. 84. The following observations appearing at page 89 of the report in the above judgment may usefully be reproduced hereunder:— "The court's control over the exercise by a local authority of a discretion conferred on .the authority by Parliament is limited to ensuring that a local authority have acted within the powers conferred. It is not for the court to substitute its own view of what is a desirable policy in relation to the subject matter of the discretion so conferred. It is only if it is Here in italics exercised in a manner which no reasonable man could consider justifiable that the court is entitled to interfere." A review of the case law on the sujbect clearly shows that judicial review contemplated for exercise of constitutional jurisdiction by this Court under Article 199 of the Constitution has a scope distinct from its appellate jurisdiction. The power of judicial review cannot be over stretched so as to make this Court an appellate forum against the order passed by the competent authority under the Constitution viz. the President in the instant case, so as to substitute his opinion by the opinion of the Court. The scope and extent of judicial review, to my mind, would only be to the extent that the Court has to find out whether the opinion formed by the President is honest and is such which could be formed by a reasonable person keeping in view the attendant circumstances. If there be some material on the basis of which an opinion could be reasonably formed by the President, then the Court cannot interfere therewith merely because another view may be possible. Similarly, unless the exercise of discretion is shown to be mala fide, frivolous, capricious, vexatious or arbitrary, the power of judicial review will not be available to this Court to interfere with the discretion. Before parting with this aspect of the case it may be observed that some of the learned counsel for the petitioners attempted to argue that the powers conferred upon the President under Article 58(2)(ft) ibid do not fit in the Q Constitution of a Parliamentary form of Government and thus the same should be construed so as to practically divest the President from exercise of this power. I do not see any force in this submission on two-fold basis:— That this Court being a creation of the Constitution itself can neither add to it nor substract therefrom in any manner whatsoever as the power exercisable by this Court under Article 199 is subject to the Constitution; and (2) That the premises that such a power does not exist in constitutions of other parliamentary forms of governments is wholly irrelevant inasmuch as the Constitutions of other countries having a parliamentary form of government cannot be read into our Constitution. Apart altogether from the above position, the Constitution of every country is framed to suit the genesis of its people who are to be governed therewith and it is not in all cases necessary or for that matter even possible that the parliamentary form of Government in every country should be run on some general principles of parliamentary forms even where constitutional provisions are different. 50. In the formation of my above view I find support from the comments in "The Constitutional and Administrative law by de Smith" Sixth Edition as they appear at page 74 which may usefully be reproduced hereunder:-- "A written Constitution is regarded as the primary source of legal authority within a state. In it lies the explanation of legislature's power to make laws, the Executive's power to govern and administer, the Judiciary's power to adjudicate. But if we take one step farther, what is it that confers this legitimating quality on the Constitution? This question produces some convoluted answers. Take the Constitution of the Common Wealth of Australia. Here the answer seems fairly simple. The Constitution is valid because it was duly enacted by the United Kingdom Parliament, which had power to enact it. Subsequent amendments to the Constitution are valid because they have been made in the manner and form prescribed by the Constitution. In other words, legal continuity has been preserved. The case of Australia, however, is exceptional in the modern world. In the large majority of independent states there has been, at one time or another, a bteach of legal continuity, and a Constitution has been adopted or changed in a manner unauthorised by the pre-existing legal order. This is already true of a high proportion of the African states which have become independent during the last fifteen years or so. Since independence they have had revolutions and coups d'etate; often the constitutional instrument has itself been abrogated and replaced, or suspended and modified, in a manner precluded by the independence constitution. And a few countries have deliberately chosen to adopt a new constitution peacefully but in a manner unauthorised by the pre-existing constitution. This is an assertion of legal nationalism, of what is called constitutional autochthony designed to demonstrate that the authority of the constitution is rooted in native soil, not derived from an imperial predecessor." [The underlining' in the above quoted para is by me.] 51. It was strenuously argued by Raja Muhammad Anwar Advocate that if the petitioner is able to show that only one of the grounds of the impugned order is not sustainable the order as a whole should fall. He mainly rested his above contention on the view expressed by the learned Chief Justice in case "KJiawaja Muhammad Sharif v. The Federation of Pakistan and others" reported as PLD 1988 Lahore 725. It would be apporopriate to reproduce the said portion of the judgment of the learned Chief Justice as it appears at page760 :-- "The established law is that even if one ground is wide, vague, general, non-specific or non-existent the whole order has to fall. There is no need to cite any authority for this proposition. It is so axiomatic that it requires no explanation. If a person takes into account, say three factors for coming to a decision and one is faulty or non-existent there is no way of knowing that how much part the faulty or non-existent fact had played in the formation of the judgment or opinion. Therefore, the whole order has to go." The learned counsel had further submitted that since all the findings of the cited judgment of Lahore High Court had been approved by the Supreme Court of Pakistan in Haji Saif Ullah Khan's case (PLD 1989 S.C. 166=PLJ 1989 SC 170), the above findings of the learned Chief Justice have also been approved and thus the principle is well trenched in a case of the nature under discussion. The learned counsel also cited "Keshav Talpade v. Emperor" reported as AIR (30) 1943 Fedral Court 1, "Government of West Pakistan v. Haider Biix Jatoi and another" reported as PLD 1969 S.C. 210, "Chan Pir Shah v. Congothene Chemical Industries Ltd. etc" reported as 1981 PLC 981, "Sardar Slier Muhammad v. Rao BashirAli Kfian and another" reported as PLD 1962 (W.P) Lahore 172 and "Muhammad Mosawwar Khan v. Deputy Commissioner, Gujranwala and 2 others" reported as PLD 1983 Lahore 102 in support of his above contention. 54.1 would, therefore, examine the cited case to see whether these can apply to the cases in hand in the manner it is being canvassed by the learned counsel. The first of these cases viz. Keshav Talpade arose out of the detention of the appellant therein, under the Defence of India Rules. This in fact is the case where the principle being canvassed was for the first time enunciated in the Sub- Continent. To my mind, it appears that the principle even in that case was not conclusively laid and was only brought out in the peculiar circumstances of that case as it was found that the order of detention made by the Government of Bombay read like a mere mechanical recital of the language of Rule 26 and the Court was not briefed with the evidence which persuaded the Government of Bombay to pass an order to prevent the appellant from acting in the manner alleged against him. The Court felt uneasy about the manner of passing of the order and observed: "we confess that an order in the terms of that under which the appellant in the present case has been detained fills us with uneasiness." 55. In the above judgment at page 8 (column 2) while adverting to the observations of one of the learned Judges in the court below (Bombay High Court) to the effect: But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded." the Federal Court of India observed as under:— "We doubt whether this is a correct statement of law." Thus it is obvious from the above that the Federal Court did not record any conclusive finding on the subject but only expressed doubt as to the correctness of the statement of law made by the Bombay High Court. The judgment of the Federal Court was, however, followed by various superior Courts in the Sub-Continent, unfortunately without noticing this aspect of the matter. In the context of the above position of the cited judgment of the Federal Court of India, it can be safely deduced with certainty that the principle in any case was not intended to be all pervasive as to cover cases of all natures. The next case relied upon is that of Haider Bux Jatoi and another (PLD 1969 S.C. 210). This matter again relates to an order of extension of the period of detention of Haider Bux Jatoi under Section 3 (5-d) of the West Pakistan Maintenance of Public Order Ordinance, 1960. Although the principle laid in Kashav Talpade's case was relied upon in this judgment, yet the principle to the contrary laid by the then Chief Justice Muhammad Munir in "Rafiq Ahmad SheikJi v. Tlie Crown" reported as PLD 1951 Lahore 17 was not differed with. The most important factor which prevailed with the Court in Haider Bux Jatoi's case to rely upon the principle in Keshav Talpade's case was that the primary ground on which the board acted that the respondent was a propagandist of Akhand Bharat ad undoing of Pakistan could not be established as correct. The case of "Chan Pir Shah .Congothene Chemical Industries Ltd. etc." reported as 1981 PLC 981 is distinguishable in that in this case two major grounds out of the three taken to constitute misconduct were found to be baseless. Taking up the next case i.e. Sardar Sher Muhammad's case (PLD 1962 Lahore 172), I suffice by observing that this case is circumscribed by its own facts and does not lay down a general principle of law of universal application. 62. The only other case relied upon in this behalf was "Muhammad Mosawwar KJian v. Deputy Commissioner" (PLD 1983 Lahore 102). Again while holding in the given circumstances of that case that the doctrine of severability cannot be applied for separating bad reasons from good reasons reliance has been placed on Haider Bux Jatoi's case, which was a case, as already pointed out above, of detention under the Maintenance of Public Order Ordinance, 1960. Considering all that has been laid in the Judgments discussed above, and with the profoundcst respect to the observations of the learned Chief Justice in Khawaja Muhammad ShariPs case. I am unable to subscribe to the view in the manner it is being canvassed by the learned Cv;ui;ie! to apply to cases of all natures and in all circumstances, the principle that if one of the grounds is proved to be non-existent the entire order shall fall. The observations, to me, appear to be based on the facts of the cited case in which it was specifically held that none of the grounds as taken by the then President for forming his opinion to dissolve the Assembly existed or for that matter had any nexus with the preconditions laid down by Article 58(2)(fo) of the Constitution. It may also be pertinently pointed out in this regard that the other Hon'blc Judges of the Bench which decided the case of Khawaja Muhammad Sharif have given findings which do not coincide with the observations of the learned Chief Justice and, therefore, the principle cannot be said to be one laid by the Court. From the above discussion it clearly emerges that the principle that if one ground of an order is bad the order as a whole should be struck down is peculiar to the matters of detention which of necessity have to be dealt with on a different plane in view of the law governing the matters of detention which arc relatable to fundamental rights involving the liberty of citizens so cherished under all constitutional laws. It is also to be noted that the Detention Laws themselves require that the grounds on which the detention is based should not only be particularized in the order itself but should also be supplied to the petitioner. There is no such requirement, however, under Article 58(2)(b) of the Constitution. The universal application of this principle to maters of nature other than detention without reservations can lead to serious results and may tend to create confusion, uncertainty and chaos. This principle, in my view, has, therefore, to be applied very cautiously and in a restricted sphere where the law governing the subject may warrant so. The application of this principle may vary from case to case and would only be aptly attracted where it is shown that the grounds forming the basis of an order are so intertwined and inseverable that each one of them cannot be taken as an independent ground but where the grounds are everable and can independently of each other be made the basis for the impugned action there would be no warrant for striking down the order as a whole. At the cost of repetition it may be observed that the quoted observations of the learned Chief Justice in Khawaja Muhammad Sharif s case had been made in the attendent circumstances of that case in which it was held that all the grounds given by the then President for dissolving the then Assembly were either non­existent or wide or vague. The question as to whether an order as a whole should be struck down or not if one of the grounds is found to be non-existent or vague was not in issue in that case and the observations would, therefore, be obiter only. 65. As regards the contention of the learned counsel that these observations have been approved by the Supreme Court, I do not find any merit in it as well. A perusal of the judgment of the Supreme Court would show that this question was neither raised nor canvassed before the Supreme Court of Pakistan and being not in issue was also neither decided by that August Court nor even touched upon. 66. The view that I have taken as above finds ample support from the statement of law appearing in Halsbury's Laws of England Fourth Edition Volume I, para 26 at page 29, which may usefully be reproduced as under:— "26. Severance of partly invalid instruments of actions. An order or other instrument or an action may be partly valid and partly invalid. Unless the invalid part is inextricably interconnected with the valid, a court is entitled to set aside or disregard the invalid part, leaving the rest intact. The principles by which the courts ought to be guided have not been clearly expounded, and they may well vary according to the context. It may be appropriate to sever what is invalid if the character of what remains is unaffected." 67. Similar comments have been made in "Administrative Law" by H.W.R. Wade, Sixth Edition at page 338 under the heading "PARTIAL INVALIDITY" which are reproduced as under:— "Severance of good from bad An administrative act may be partially good and partially bad. It often happens that a tribunal or authority makes a proper order but adds some direction or condition which is beyond its powers. If the bad can be cleanly severed from the good, the court will quash the bad part only and leave the good standing. One example was where a licensing authority allowed an applicant's appeal but wrongly ordered him to pay costs, which it had no power to do; the court quashed only the order as to costs. Another was where a disciplinary board validly acquitted a public servant on some charges but invalidly convicted him on others. The same principle applies to orders of courts of law, as where an unauthorised order for disqualification or forfeiture is added to a valid conviction. It also seems possible that a single order may be good against some persons and bad against others." The comments continue ate page 339 as under:- "But there is no 'blue pencil rule' requiring the bad part of the order to be identifiable in the order itself. Thus a local authority's order which appropriated land for planning purposes, but which included a small plot which was outside its powers, was held to be severable and valid as regards the remainder, even though it treated all the land as a single area." 68. Again in names Water Authority v. Elmbridge Borough Council (1983) 1Q.B. 570, Stephenson L.J. observed as under at page 585:- C. "By applying that principle they have been able, not only to make sense of near nonsense but also to give effect to what is good and enforce what is valid, while refusing to enforce what is bad and giving no effect to what is invalid. This latter exercise can be carried out, and can, of course, be carried out only, where the good and bad parts are clearly identifiable and the bad part can be separated from the good and rejected without affecting the validity of the remaining part. But this ought to be done whenever the good and bad parts can be so identified and separated and what remains is clearly valid in the sense that there is nothing inherently unenforceable about it and all the surrounding circumstances indicate that common sense and the intention of the maker of any document which includes both good and bad parts would give effect to it." G. "But where what is alleged to be invalid and unenforceable can be isolated and identified with precision, the court should not refuse to enforce the rest, as Ackner L.J. pointed out in United City Merchants (Investments) Ltd. v. Royal Bank of Canada in the passage, at p. 242, which Dunn L.J. has read." 69. In the same report, Dunn L.J. at pages 580-581 very aptly brought out the principle of scverability in the following words:— "Much of the difficulty in the case seems to me to have been caused by the very use of the word "severance" which, in relation to the construction of documents and in particular of covenants in restraint of trade, has acquired a special and technical meaning. Us use in this case demonstrates the danger of using such words in their general or ordinary meaning to describe a process in which the court is in fact considering the validity of the purported exercise of power by a local authority. The label given to the process tends to confuse the reality of the process itself by imposing rules of law designed to deal with quite different situation. I would echo the words of Ormrod L.J. in Dunkley v. Evans (1981) 1 W.L.R. 1522, 1524,1525, that the court should not strive officiously to kill to any extent greater than it is compelled to do. If, as here, it is perfectly plain that the urban district council had no power to do what is purported to do in respect of an easily identifiable parcel of land, it would not be conducive to good public administration for the court officiously to hold that the whole document, including that part which was within the power of the council, was invalid." 70. A view akin to the conclusions reached in the two judgments cited above has also been taken in Royal Bank of Canada v. I.R.C. reported as (1972) 1 All E.R. 225. The relevant observations apearing at page 239 read as under:- "But where, as here, the requirements are contained in the notice divided into numbered paragraphs dealing with different matters, and the attack is made on one or more of such paragraphs, I do not see why the invalidity of those paragraphs, if established, should infect the other paragraphs, or why the notice should not be good as to the good paragraphs and bad as to the bad. Accordingly, had it been necessary to decide the point, I should have held that even if questions 3 and 4 in the notice were invalid, this would not invalidate questions 1 and 2." 71. It is of great interest that Muhammad Munir, C.J. as he then was, in case "Rafique Ahmad Sheikh v. Crown" reported as PLD 1951 Lahore 17 made a marked departure from the principle under discussion even in matters of detention. Tiie Keshav Talpade case was deviated from and it was held at page 22 as under:— "Gwycr, C.J. observed that he was doubtful about that statement of the law. He proceeded to say that "if a detaining authority gives four reasons for retaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reason operated on the mind of the authority or whether the detention order would have been at all if only one or two good reasons had been before them." This obiter dictum was followed in the other two cases cited above as an authority for the proposition that if the grounds disclosed contained grounds, some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly as in that event it would be impossible to say to what extent the detaining authority was influenced by acts outside the act in making the orders of detention. I am doubtful of the correctness of this rule which appears to me to have been stated—somewhat too broadly. The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result in my opinion has to be avoided, because otherwise, the High Court by hearing a habeas corpus petition would in such a case be substituting its own judgment for the Judgment of the arresting authority in holding that the remaining nine reasons any one of which could have been a good reason for the arrest were not, individually or collectively in fact are the reasons on which he could have been arrested, and thus that court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority." 72. Cornelius, C.J., as he then was, speaking for the Court in "Ttie Commissioner, Sargodha Division, and the Deputy Commissioner, Sargodha" v. Kiiizar Havat and 5 others" reported as PLD 1966 S.C. 793 observed as under at page 801:-' "In my opinion, the learned Judge of the minority was right in the view he took, namely, that the Commissioner's order should be held to be good as far as it was within the law, and as for the fact that thereby, from the first trial, there would be excluded a number of aspects of the case which were graver than those constituting the offence referred, if Consequence in law were to follow, those could be left to take care of themselves. If in the result certain of the more serious aspects of the crime were to go unpunished, the responsibility would lie upon the Legislature, whose dictate was being obeyed by the Courts, as in duty bound." 73. In yet another famous case "Brig. (Retd.) F.B. All and another . Tlie State" reported as PLD 1975 SC 506, the principle of severability was brought out by Hamood-ur-Rehman, C.J. as he then was, at page 539 in the following words:— "In the present case, as I have already indicated earlier in this judgment, I am not in a position to say that the evidence relating to the charge of conspiracy was wholly irrelevant or inadmissible, because, the seduction or the attempt to seduce was itself an overt act of the conspiracy, and therefore, no serious prejudice had been caused, in my view, by the joint trial of the two offences and I am, therefore, unable to accept the contention that the whole trial is vitiated. In my view, only the conviction in respect of the offence under section 121-A, P.P.C. is vitiated on the ground of want of Jurisdiction and not the conviction on the charge of attempt to seduce, because, that was within the jurisdiction of the Court Martial to try and there was relevant evidence on which the decision of the Court could be based." 74. Same view has been adotped by the Indian Supreme Court in "State of Ori.isa and others v. Bidyabhushan Mohapatra" reported as AIR 1963 S.C. 779, wherein at pages 785 and 786 it was observed that:- "It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (c) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges l(a) and l(c') alone the Court could have jurisdiction to declare the order of dismissal illegal but when the findings of Tribunal relating to the two out of five heads of the first charge and second charge were found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal." 75. In another judgment from the Indian jurisdiction in case "Stale of Maharashtera v. B.K. Takkamore reported as AIR 1967 S.C. 1353, it was held as under:— "Where an order is based on several grounds, some of which are irrelevant then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained. Where, however, the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion or decision of the authority, order has to be sustained." 76. The Supreme Court of India in "Swam Singh and another v. State of Punjab and others" reported as AIR 1976 SC 232 again dealt with this proposition at page 237 (Column 1) as under:— "There is authority for the proposition that, were the order of a domestic tribunal makes reference to the several grounds, some relevant and existent, and other irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision." The Universal application of the proposition as canvassed by Raja Muhammad Anwar, the learned counsel for the petitioner can otherwise also be not given effect to on yet another very weighty reason based on another well settled principle of law that beore striking down an order passed by a public authority the Court must explore every possible explanation for its validity and examine the entire field of powers conferred on the authority by which the impugned order has been passed and all efforts must be made to uphold it. Authority if any required in support of this principle can be found in two decisions of the Supreme Court of Pakistan. In one viz. "77ie Chairman, East Pakistan Railway Board, Chittagong; and District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan eastern Railway, Laksam (PLD 1966 S.C. 725), at page 730 it was observed by Muhammad Yaqub Ali J., as he then was:— "None of the grounds on which the order in appeal is based thus holds good, but before we conclude it appears appropriate to observe that acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance of which the public authorities act or performed their function examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect." 79. The same principle was reiterated in "Lahore Improvement Trust, Lahore through its Chairman v. Tlw Custodian, Evacuee Property, West Pakistan, Lahore and 4 others reported as PLD 1971 S.C. 811. 80. Taking up the third proposition it would be seen that the word "also" has a special significance in the context of the provisions contained in clauses (1) and (2) of Article 58 of the Constitution. The President's power to dissolve the National Assembly under clause (1) is dependent upon the advice that may be rendered by the Prime Minister in this behalf. That means the power under Article 58(1) ibid is exercisable by a conjoint action of the Prime Minister and the President. The use of word also in clause (2) of Article 58 would therefore, clearly spell out that the President has an additional power to dissolve the National Assembly independent of the advice of the Prime Minister. 81. The word "discretion" and "opinion" used in clause (2) of Article 58 as placed in the provision lead to a plausible inference that the exercise of discretion has to follow the formation of an opinion. The opinion of course has to be objective whereas the discretion after the forming of a valid opinion appears to be subjective. It would make the burden of the President lighter if the grounds are given and they lead to a legitimate conclusion. The court will not interfere in the exercise of the discretion merely on the ground that another conclusion may be possible. I draw support in the formation of the above view from the judgment of the Supreme Court of Pakistan in Haji Muhammad Saif Ullah's case. 82. The expression "cannot be carried on in accordance with the Constitution" has a history behind which may usefully be recounted here. 83. In the Indo Pak sub-continent, the experssion for the first time appeared in, Article 45 contained in Chapter V and Article 93 in Chapter VI of the Government of India Act, 1935 under the heading:- "Provisions in case of failure of Constitutional machinery" Similar expression appears in Article 356 of the Indian Constitution which provides that "if the President on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Prsident may by proclamation So far as the decided cases are concerned, the only two cases from our country are those of A7i. Mohammad Sharif and Haji Muhammad Saif Ullah Klian to which reference has already been made. In the case of Haji Muhammad Saif Ullah Klian, the expression aforementioned has been examined in detail as it appears from the discussion appearing at page 212 of the report. From the Indian jurisdiction also, two cases, may be referred to with advantage, the first one being a judgment of the Indian Supreme Court in State of Rajasthan v. Union of India AIR 1977 supreme Court page 1361 wherein BEG C.J. as he then was at page 1385 of the report observed,- "Mr. Setalvad in his Tagore Law Lectures, 1974, on "UNION AND STATE RELATIONS" has observed, while dealing with Governor's role (at PP. 164-165): "The powers of the President under Article 356 have been frequently exercised since the commencement of the Constitution. The occasions for its exercise emphasise not only the importance of the power in maintaining stable governments in the State, but also^the vital role which the Governor has to play in enabling the Union Executive to exercise the powers vested in it under Article 356. The constitutional machinery in a State may fail to function in numerous ways. There may be political deadlock; for example, where a Ministry having resigned, the Governor finds it impossible to form an alternative government; or, where for some reason, the party having a majority in the Assembly declines to form a Ministry and the Governor's attempts to find a coalition Ministry able to command a majority have failed. The Government of a State can also be regarded as not being carried on in accordance with the Constitution in cases where a Ministry, although properly constituted, acts contrary to the provisions of the Constitution or seeks to use its powers for purposes not authorised by the Constitution and the Governor's attempts to call the Ministry to order have failed. There could also be a failure of the constitutional machinery where the Ministry fails to carry out the directives issued to it validly by the Union Executive in the exercise of its powers under the Constitution. The very statement of some of the situations, which may bring about the use of the machinery provided by Article 356 shows the pivotal position which the Governor occupies in respect of these situations and the grave responsibility of his duties in the matter of reporting to the President under Article 355 and 356 of the Constitution." The other case is the judgment of Kerala High Court in K.K. Aboo v. Union of India and others (AIR 1965 Kerala) page 229 wherein it was noted, that the situation in which a Constitutional Government becomes impossible, can arise as a result of the party position in and the composition of the Parliament. In the light of the discussion in the said judgment, the expression as quoted hereinabove can safely be construed to mean that an order under the aforementioned provision of the Constitution can only be passed by the President if the grounds taken by him in the order to hold that the government of the Federation cannot be carried on in accordance with the provisions of the Constitution have a direct nexus with the various Constitutional provisions to which the Government of the Federation/the National Assembly were not adhering to thereby rendering it impossible to carry on the Government in accordance with the Constitution. The words "an appeal to the electorate is necessary" will have to be examined in the light of the genesis of our Constitution which envisages Pakistan lo De an Islamic Republic where per our belief the sovereignty over the entire universe belongs to Almighty Allah alone. It is ordained by God Almighty in Sura Al-Furqan verse 2 as follows:-- Transalation: He unto whom bclongeth the Sovereignty of the heavens and the earth, He hath chosen no son nor hath He any partner in Sovereignty. He hath created everything and hath meted out for it a measure." Again in Sure A' 1-e-Imran verse 189, the commandment is as under:— Transalation: "Unto Allah belongeth the Sovereignty of the heavens and the earth. Allah is Able to do all things." Again in Sure Al-Hadid verse 2 it has been revealed:— Translation: "His is the Sovereignty of the heavens and the earth; He quickeneth and He giveth death; and He is Able to do all things." 91. The above are not the only verses of Quran-e-Hakim through which sovereignty of Allah Almighty over the universe has been emphasized but the Holy Quran contains this all important factor of Oneness of God and His exclusive sovereignty in the following verses as well:— Verse 10 Sura Al-Shura Verses 49&50 Sura Al-Shura Verses S4&85 Sura Al-Zukhruf Verses 26&2V Sura Al-Jasia Verses 1&2 Sura Al-Mulk Verse 83 Verse 114 Verses 84 to 89 Verse 70 Verse 88 Verse 46 Verses 8.& 9 Verse 57 Verse 62 Verse 40 Verse 67 Verse \ll Verse 1 Verse 107 Verses 128 & 129 Verse 42 Verse 14 Verse 17 Verse 40 Verses 115 &116 Sura Yasin Sura Taha Sura Al-Mu-minun Sura Al-Qasas Sura Al-Qasas Sura Al-Zumar Sura Al-Buruj Sura Al-Anam Sura Al-Anam Sura Yousaf Sura Yousaf Sura Bani Isra'il Sura Al-Taghabun Sura Al-Baqara Sura Al-e-Imran Sura Al-Noor Sura Al-Fateh Sura Al-Ma'ida Sura Al-Ma'ida Sura Al-Tauba 92. The firm belief of Pakistanis in the above Quranic verses is fully reflected in the Preamble of our Constitution which is now its substantive part in view of Article 2-A thereof and which inter alia reads as under:— "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; Wherein the State shall exercise its power and authority through the chosen representatives of the people;" 93. The effect of the above would be that whereas the real sovereignty over Pakistan vests in Almighty Allah, it is delegated to the people of Pakistan by Him as a sacred trust so that they exercise the authority through its chosen representatives i.e. the Members of the Parliament. If the sacred trust reposed in the Members of the Assembly by the people as delegate of God Almighty is abused, misused or is not exercised in accordance with the tenets of Islam and the Constitution, the President can by dissolving the Assembly make an appeal afresh to the people to whom the power has been delegated by Allah Almighty and who in the common parlance of parliamentary language arc the political sovereigns. 94. Dicey in his classical work on Constitution "AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION TENTH EDITION" at page 433 has also stated the law in the above context which being instructive is reproduced hereunden— "The discretionary power of the Crown occasionally may be, and according to constitutional precedents some times ought to be used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign." [Note: The underlining' in the above para is by me.] 95. Looking at the matter in the above perspective it becomes clear that having framed a written Constitution, the people of Pakistan would like to be governed in accordance with the Constitution. This mandate of the political sovereign if it is betrayed by a Government by not functioning in accordance with the Constitution, then the President who is vested with the power to dissolve the Assembly in such a situation by exercise of power under Article 58 (2)(fc) of the Constitution is under a constitutional obligation to make an appeal to the electorate to elect a new Assembly so as to ensure that the mandate of the Constitution continues unabated without any let or hindrance from any quarter. The true import of the words "an appeal to the electorate" in the light of the above discussion would be that the power of the President in the event of his dissolving the Assembly is circumscribed so as to make it obligatory upon him to make an appeal to the electorate and he is not left free to adopt any other measure when he in his discretion on forming an opinion that the Government cannot be run in accordance with the Constitution dissolves the Assembly. 96. The last of the above formulated propositions which falls for determination is whether the newspaper clippings/reports cannot be read in the present proceedings for determinging the soundness/validity of the opinion formed by the President. The learned counsel for the petitioners in this regard relied upon "Raja Muhammad Afzal v. Allaf Hussain" reported as 1986 SCMR 1736. Contrarily, the learned Attorney General relied upon "Islamic Republic of Pakistan v. Abdul Wall KJian MNA" reported as PLD 1976 S.C. 57 as also on "Ghulam Sarwar Awan v. Government of Sind" reported as PLD 1988 Karachi 414 and "Federation of Pakistan and others v. Haji Muhammad Saif Ullah Klian and others" reported as PLD 1989 S.C. 166=PLJ 1989 SC 170. A perusal of the judgment cited by the learned counsel for the petitioners shows that it proceeds on wholly different circumstances peculiar to that case. That was a case which arose out of an election petition. The election petitions per law and rules governing the subject have to be tried as a suit and the provisions of CPC as also of the Evidence Act have also to be applied to those proceedings. It may also be observed that in such cases the parties lead both oral and documentary evidence and, therefore, evidence has to be sifted as admissible or inadmissible. In cases of constitutional nature coming up before the superior courts per rules governing the proceedings of such petitions the matters have to be decided on affidavits of the parties as also on such material which in the attendant circumstances of the case can be referred to or relied upon. Raja Muhammad Afzal's case is, therefore, not applicable to the facts and circumstances of the case in hand. The case more akin to the present case is Abdul Wali Khan's case in which the question under consideration was as to whether the order of dissolution of political party or imposing a ban on its functioning was justified or not. In that case it was observed that newspaper reports of contemporaneous events if not rebutted within a reasonable period would be considered by the court as sufficient or valid basis for forming an opinion or adjudication of the matter by the court itself. In the case in hand the newspapers clippings/reports relied upon by the Federation are undenied reports of events of the period during which the Pakistan Peoples Party Government was in power in the Federation and the said reports/newspapers clippings have not in any manner by production of a counter report or a denial been rebutted by the petitioner. Reference to the newspapers clippings/reports etc. in view of the above discussion can, therefore, be not refused and the material available therefrom can be referred to for the purpose of examining the soundness and validity of the grounds taken in the order of the President. It may further be observed that the newspapers clippings/reports were only a corroborative factor and not the root basis for the purposes of arriving at the opinion even by the President. At this juncture it will also be desirable to deal with the objection raised by the petitioner's counsel as to the admissibility for consideration of the documents marked as anncxures A, A/1, A/2, A/3, and M-l to the written statement. The objection was that these being secret documents cannot be looked upon for the purpose of determining the issue to which these relate. This objection would be of no consequence in view of the statement made by the learned Attorney General that the documents had been declassified as secret and no longer any secrecy is attached to them. Yet another aspect of the matter which is germane to the issue under discussion is whether the documents have to be proved before us as if a trial is being held by this Court. The answer to this question is obviously in the negative in that this Court in the present proceedings is only determining whether the material before the President for passing the order on 6th of August, 1990 was sufficient to reach the conclusion which he had arrived at. The objection in the circumstances herein above mentioned appears to be not well based and is accordingly repelled. The common legal propositions emerging out of the controversy in these petitions excepting the constitutionality of the Eighth Amendment having been dealt with, the only matter left to be determined is the validity of the grounds taken by the President in the impugned order for dissolving the Assembly. 100. It may be observed in this regard that it is not possible to precisely enumerate the situations in which the power conferred by Article 58(2)(b) of the Constitution can be validly exercised. The failure of constitutional machinery may result from internal subversion or dissension; the deadlock arising from indecisive electoral verdict and political polarisation which makes the carrying on of the Government impossible or where the Government is being conducted in disregard of the Constitution and the law.The President having chosen to state the grounds for the action taken by him, I now proceed to examine the same to find out as to whether there is any nexus between the grounds and the preconditions envisaged by Article 58(2)(ft) of the Constitution empowering the President to dissolve the National Assembly in his discretion. The main purpose of the Parliament of which National Assembly is an important component is to undertake the legislative work as envisaged by Article 70 of the Constitution. There was material before the President which has also been placed before us to show that the National Assembly not only did not but was also not in a position to carry out any substantial legislative work effectively. Article 70 of the Constitution ordains that a Bill passed by one House of the Parliament shall be presented to the other House of the Parliament and which when passed by the other House is presented to the President for his assent. If the Bill is not passed by the other House within 90 days of the receipt, or is passed with amendment, the Bill at the request of the House in which it originated shall be considered in a joint session of the Parliament. It is undeniable that the then Government had virtually no representation in the Senate except that it had only two members in the said House. In the National Assembly as well the Peoples Party did not have a comfortable majority. With the hostile attitude taken by the Federal Government against the Senate and having political confrontation all around i.e. with two of the federating units, it had become practically impossible, which position was likely to continue also, for the Government to carry out any legislative work successfully as there was no likelihood of any Bill sponsored by the Government being passed in the joint session of the Parliament for lack of majority. There was thus a complete deadlock and impasse which is reflected from the fact that during the twenty months' tenure of the Federal Government, out of the 50 Ordinances/Bills presented before the National Assembly only 15 could be passed by the Parliament while the remaining were not processed and allowed to elapse. The learned counsel for the petitioner as well as Haji Muhammad Saif Ullah Khan, one of the applicants had argued that the passing of the Finance Bills shows that the Government was in a position to carry out the legislative work. This contention is not well founded for the reason that it fails to notice the constitutional position in this regard as contained in Article 73(1) of the Constitution which provides that a money bill shall originate in the National Assembly and after it has been passed by the Assembly it shall without being sent to the Senate be presented to the President for his assent. The discussion in the foregoing paragraphs does, therefore, show that I there was breakdown of the legislative machinery resulting in a deadlock which I has a direct nexus with Article 58(2)(ft) of the Constitution and the President was] justified in making this ground a basis for dissolving the Assembly. 106. The activity of horse trading, which had become a common talk in the country as well as abroad in relation to the conduct of some of the Members of the National Assembly, is yet another basis taken by the President for forming his opinion to dissolve the Assembly. The matter assumed such scandalous proportions that the President had to dwell upon it in details while addressing the joint session of the Parliament on 2nd of December, 1989. For the sake of brevity, I would avoid extensive reproduction of the speech of the President and would suffice by referring to a portion thereof which reflects his anxiety to see that the Government of the Federation was run in accordance with the provisions of the Constitution. In his speech, he categorically stated:-- horse trading jjl political stock exchange He fervently appealed to the Members to act according to their conscience and represent the electorate according to the point of view under which they had voted the members to the Assembly. He also pointed out that after election if a Member has a change of views then instead of going against the mandate of the electorate as given to him before his election and thereby committing a sin and being bound in morality and religion return the trust reposed in him to the electorate concerned by resigning and thereafter seek consensus to his changed views through a fresh election. The example of the "horse trading" without going into details is clearly demonstrated by the fact that some of the opposition Members of the Assembly who were instrumental in the defeat of the no confidence motion against the Prime Minister were immediately thereafter appointed Ministers/Ministers of State. It is worthy of mention at this stage that some of these persons were signatories to the no confidence motion. In the context of the foregoing, the curse of "Horse Trading" was a valid ground for dissolution of the National Assembly inasmuch as degeneration of the character of the members of the elected Houses is bound to adversely affect the Constitutional mechanism and consequently lead to break down of the Government. Before parting with this aspect of the case it appears just and proper to take notice of the submission made by Mr. Ismail Qureshi, Advocate, who contended that the Federal Government in not giving effect to the judgment of the Supreme Court by legislating on the subject to Qisas and Diyat had failed to carry on the Government in accordance with the provisions of the Constitution. The submission appears to have relevance when seen in the context of the position that the Federal Government not only did not present a legislation to give effect to the judgment of the Supreme Court but also showed its resistance by dubbing the punishment under the Islamic Laws as impracticable and cruel in the present day world. The law and order situation in the Province of Sindh is not unknown. The internal disturbances in Sindh had assumed serious proportions. The massacre of innocent citizens, the large scale kidnappings including those of children for ransom, the dacoities, robberies, arson, looting etc. had become so rempant that it shocked every law abiding citizen, the people living in Sindh were under a constant fear of damage to thier lives and properties. Insecurity in their minds had brought about a situation that practically the life had become standstill. The economic activities in that part of the country also became negligible. The highly industrialized city of Karachi had been reduced to a place without any life and loss of production was colossal. This situation of necessity leads to the imbalances in the trade of the country both locally as well as in the foreign sphere. 110. The hereunder given statistics available with the President before passing the impugned order and which have also been placed on the record of this case by the Federation show the figures of crimes committed in the Province of Sindh during the period of Peoples Parly Government:- Statement of Crimes 01 January to 31 July, 1990 EVENTS SIND PUN NWFP BALU TOTAL JAB CHISTAN MURDER 72 56 23 12 163 RAPE 2 1 -- -- 3 DACOITY CASES 1062 244 55 28 1389 KIDNAP (NUMBERS) 768 22 84 14 888 ETHNIC TROUBLES (a) KILLED 635 1 -- -- 636 (b) WOUNDED 1434 22 -- -- 1456 LABOUR RIOTS (0) KILLED 6 1 -- -- 7 0) WOUNDED 62 18 1 -- 81 STUDENT RIOTS (a) KILLED 11 5 -- -- 16 (b) WOUNDED 125 103 38 7 273 OTHER INCIDENTS (a) KILLED 464 250 182 70 966 (b) WOUNDED 871 896 433 146 2346 STATEMENT OF MURDERED/KILLED AND WOUNDED PROVINCE MURDERED/KILLED WOUNDED SIND 1188 2492 PUNJAB 312 1039 NWFP 205 472 BALUCHISTAN 82 153 TOTAL 1787 4156 The same when seen in comparison with the figures of similar crimes in other Provinces including that of Punjab, which has a population almost three times that of Sindh, the astronomical height of crime in Sindh can be well visualized. In addition to the above position, Karachi and many other cities in the Province of Sindh remained under curfew for days and months together. In order to avoid burdening this judgment unnecessarily with the details of crimes and criminal activities in Sindh I would only observe that it was an internal subversion and disturbance of that high order which had gone beyond the control of the Provincial Government and called for an action by the Federal Government in terms of Article 148(3) of the Constitution, in order to protect that Province against internal disturbances, which continued un-abated. It may pertinently be observed here that after Hyderabad incident which took a heavy toll of valuable lives of citizens including women and children, the President felt, so much anguished that he wrote to the Prime Minister twice over to take corrective measures but it did not produce the desired result. Not only that even the Governor of the Province of Sindh an appointee of the Federal Government itself in his letter dated 27th of May, 1990 in regard to the situation in Sindh, expressed his view in the following word's:-- "I have already pointed out that unless we so for recovery of illegal arms in a big way, the law and order situation will not improve in Sindh and the recent events in Hyderabad have convinced me that the recovery of the arms will be possible with the aid of the Armed Forces in terms contemplated by Article 245 of the Constitution and that too in cooperation with local leaders." 113. Viewed from the angle that even the then Attorney General of Pakistan, a member of the Cabinet of the Federation, in his opinion dated 9.6.1990 given on the subject of invocation of Article 245 of the Constitution by the Federal Government in respect of the Province of Sindh staled that Article 245 of the Constitution in his opinion is necessarily required to be invoked, the inaction of the Federal Government becomes significant. Could there be a more serious situation like this where the Federal Government fails to act in accordance with the Constitution when the President, the Governor and the principal Law Officer of the Government are all of the view that in order to save the valuable life and property of the citizens, a provision of the Constitution should be invoked and yet the Government fails to act. 114. At this stage it seems desirable to deal with the submission of the learned counsel for the petitioners that law and order situation in the province of Sindh was not a valid basis for dissolving the Assembly as it has been held to be a provincial subject in the case of Haji Muhammad Saif Ullah KJian. The argument to me appears to be naive. The law and order situation in the Province of Sindh was not of ordinary nature so as to be shoved on as a responsibility of the Provincial Government alone. There is no doubt that maintenance of law and order is a responsibility of the Provincial Government but where the internal disturbances assume proportions beyond the Control of the provincial Government it becomes the duty of the Federal Government under Article 148(3) of the Constitution to protect the provinces against internal disturbances and to ensure that the Government of every province is carried on in accordance with the provisions of the Constitution. In the total perspective of the situation in the Province of Sindh, the internal disturbances had become a real threat and danger to the integrity and solidarity of Pakistan which, as already observed, had been duly taken notice of by the President and the Governor of the province. The said situation in the Province of Sindh also tended to defeat the constitutional objective of peaceful Government. The above factors, therefore, establish that the Government of the Federation could not be run in accordance with the Constitution and on this score also Article 58(2)(b) of the Constitution is fully attracted to justify the dissolution of the National Assembly and dismissal of the Federal Government. The Constitution in its essence envisages Pakistan as an Islamic Federal Republic wherein the Federal Government and federating units have well defined powers and spheres of operations. A mechanism is inbuilt in the Constitution to resolve disputes between the Federation and its units and between the units interse Failure on the part of the Federation in the formation of and/or any obstacle in the free working of all the institutions constitutionally envisaged for resolving disputes between the units and the Federation are likely to endanger the Federal structure of the state itself. In this regard one of the important institutions contemplated by the constitution is the Council of the Common Interests provided for by Article 153 of the Constitution. Article 154 of the Constitution enumerates the functions and rules of procedure of the working of the council. This Council inter alia formulates and regulates policy in relation to matters in Part II of the Federal Legislative List and entry 34 (Electricity) in the Concurrent List. It also supervises and controls the related institutions and is also required to determine the rates at which profits are to be calculated in terms of Article 161 of the Constitution. The documents on record which were also before the President do reveal that the Federal Government despite repeated demands by three out of the four federating units and unanimous resolution of the Senate failed to call a meeting of the Council of Common Interests which resulted in polarization and confrontation between the Federation and the two federating units to an extent which eventually obliged them to file a suit against the Federation in the Supreme Court of Pakistan under Article 184 of the Constitution. The President's anxiety to ensure that the Government of the Federation is run in accordance with the Constitution can be well spelt out from his address to the Joint Session of the Parliament, his letter to the former Prime Minister dated 18th June, 1989 wherein he emphasised the importance of the Council of Common Interests and the need for convening of a meeting of the said Council before the ensuing budget so that it rehabilitates confidence between the Provinces and the Federation. The President through his letters dated 12th July, 1989 and 31st July, 1989 addressed to the former Prime Minister again reiterated the importance of the Council and the calling of its meeting in order to remove misgivings inter-alia about the Peoples Programme launched in the Provinces by the Federal Government. The President also made a public speech on 19th February, 1990 at Quetta which is reported in the Daily Nation of Lahore of the same date wherein he rcemphasised that in order to resolve Centre Provinces differences and remove resultant misgivings and tension, it was necessary to let institutions provided for by the Constitution in this behalf function. All these beseechings and entreaties appear to have gone unheeded as the Federal Government did not convene any meeting of the Council nor it had any intention of giving it any importance or adopting a course of reconciliation in future as well, as is apparent from the written statement filed by the Federation in the Supreme Court of Pakistan in the suit instituted by the two federating units. 117. The stand taken by the then Attorney General before the Supreme Court of Pakistan as read out by the learned Attorney General before us from a report of the Press was as follows:-- "He said the Prime Minister being the Chairman of the CCI, has no objection to summon the CCI. But, he added, there is no such dispute between the Federation and the Provinces, which required immediate meeting of the Council." Such a statement in the wake of clamour by the two Provincial Governments through the press and otherwise for calling of a meeting of the Council of the Common Interests can only be termed as" ^ t^/ (j. / j' IJ "• With the above background of inaction in calling a meeting of the Council of Common Interests, the submission of the learned Attorney General that the same was not being convened purposely by the Federal Government as in case of any Government feeling dissatisfied with a decision of the Council of Common Interests, the matter had to be referred for determination to the Parliament in a joint sitting in which the Federal Government not having majority had imminent danger of being defeated, appears to have substance. Another important constitutional institution to keep unity between the Federation and the Federating Units is the National Finance Commission required to be set up under Article 160 of the Constitution. This Commission has the all important function of distribution of revenues between the Federation and the Provinces. The formation of this Commission was continuously delayed and it was only formed on 25lh of July, 1990, i.e. a day before the last date for its formation under the Constitution. This delay in the formation of the National Finance Commission by the Federal Government to say the least, was deliberate as not a single meeting of the Commission could be convened throughout twenty months tenure of the Federal Government and thus the Federating Units were deprived of constitutional remedy for the redress of their grievances qua the distribution of revenues. On this aspect of the matter, the learned counsel for the petitioners had also submitted that the dispute regarding the convening of the meeting of the Council of Common Interests being subjiidice before the Supreme Court of Pakistan, taking into account of this ground for the purposes of dissolving the Assembly amounts to contempt of court. The point as convassed by the learned counsel for the petitioners does not appear to have force. The President while making the ground in question as a basis of his order did not comment upon the merits of the dispute as pending in the Supreme Court of Pakistan. Mr. S.M. Zafar appears to have correctly submitted that the President only took notice of the acrimony between the Federation and the Provinces on the above subject and considered it a matter relatable to the grounds envisaged by Article 58(2)(fc) of the Constitution for passing an order thereunder. The Federal character of a State can only be maintained when the Federation and its Units respect the autonomy of each other and are desirous with all sincerity not to encroach upon and enter into the spheres of each other. In our Constitution there are well defined spheres of the Federal as well as the Provincial authority. Appended with the Constitution are Schedules giving the Federal Legislative List and the Concurrent Legislative List. All items which are not to be AT found in any of the above two lists fall within the sphere of Provincial Legislative List. The two provinces viz. the Provinces of Baluchistan and Punjab did not approve of the action of the Federal Government in launching Peoples Programme in the Provinces without the participation of the Provincial governments. The direct launching of the above Programme by the Federal Government brought about situations of highly explosive nature which could have resulted in a sort of a civil war. The extent of executive authority of the Federation is provided for by Article 97 of the Constitution which reads as under:- "97. Extent of executive authority of Federation.-Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan: Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws." 125. The proviso to this Article as reproduced above in unequivocal terms and in a mandatory form prohibits the extension of the Federal executive authority in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. The said authority can only be extended to the Provinces as provided for by the Constitution by a law made by the Parliament in this regard. The launching of the Peoples Programme in the Provinces is neither envisaged by any provision of the Constitution nor any law is shown to have been made by the Parliament for this purpose. A question was specifically At' posed to the learned counsel for the petitioner to show under what constitutional provision or for that matter under what law that may have been made by the Parliament, this Programme was launched in the Provinces. He very candidly conceded that no law as such was made by the Parliament for the launching of this Programme and that it was carried on in the Provinces only through an executive order. Such an action on the part of the Federal Government to have encroached upon the sphere of provincial autonomy in the terms of the admission before us is a clear and flagrant violation of Article 97 ibid. Apart altogether from the above position that the Peoples Programme was launched without any constitutional or legislative backing, the manner of its launching through personnel who were workers of a political party constituted inter alia of such of them who had been defeated in the last general elections to the National and Provincial Assemblies is also highly objectionable especially when the persons administering the Programme were under no legal obligation to be answerable for the spending of the funds, against which spending there have been open allegations of misappropriation, embezzlement and in any case of squandering away of the funds for purposes other than for which these were intended. Needless to mention that under no law or even for that matter under any colour of law can the public funds be placed at the disposal of private persons who are not even declared as public servants under the relevant laws. These violations of the constitutional requirements cannot be, but termed as valid ground on which action could be taken by the President as provided for by Article 58(2)(&) of the Constitution. Article 14 of the Constitution guarantees that the dignity of a man and, subject to law, the privacy of home shall be inviolable. This fundamental right was flagrantly violated and disregarded by taping the telephones of highly respectable persons including dignitaries like Chairman of the Senate and Speaker of National Assembly. Even the members of the Government party including the petitioner, who was the Minister for Parliamentary Affairs, were not spared. This act was not only in derogation of the fundamental right but was also violative of what had been ordained by Allah Abniehtv in Sura Al Huiural \'cr>e 12: Translation: "O ye believe! Avoid suspicions as much (as possible): for suspicion in some cases is a sin: And spy not on each other." 128. The right to privacy of citi/.en is not only guaranteed by the Constitution but has its foundations in Quranic Injunctions and Islamic traditions It is of interest to note that this principle was acknowledged and propagated by the then Attorney General of Pakistan, Mr. yahya Bakhitar, in his article appearing in the Journal Section of PLJ 1990 (May part) (Page 1 18). 129. In support of this contention, the learned Attorney General produced before us some cassettes of taping of the telephones of various persons. He also informed the Court during the proceedings that the names of the persons whose telephones were taped as given in an Annexure to the written statement are not the only persons but a large number of other telephones were also taped. It -was pointed out by him that a colossal amount was spent by the Federal Government for importing mechanism and devices for taping. The irony is that when this question was raised in the Assembly by some of the Members of the defunct Assembly, there was a categorical denial by the Government of taping of the telephones. Nothing has been urged on behalf of the petitioner to controvert this assertion and no lawful authority is shown to be existing in favour of -any person to order the taping of telephones, The constitutional organs of the State like the Senate and superior judicialy were publicly ridiculed and brought into disrespect. As regards the Senate the Federation through the Deputy Attorney General/Attorney General took up the plea that the said House is an invalid body and has no recognition under the Constitution. This statement was made by the Deputy Attorney General before the Sind High Court in the case of Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan reported as PLD 1990 Karachi 9 = PLJ 1990 Karachi 14 (FB). Again when a summary was submitted to the then Prime Minister for according some privileges of VIP status to the ex-Members of Shooora: (Parliament), the Prime Minister while rejecting this proposal observed "the democratic government does not want to give VIP status to collaborators of treason". As regards the ridiculing of the superior judiciary, I would not like to dilate upon it much and suffice by observing that the holding of a seminar in respect of a case decided by this Court and the Supreme Court of Pakistan just to criticize the same in a manner which brings the superior judiciary into disrespect in the eyes of the general public cannot be held to be fair criticism of a judgment delivered as has been canvassed by the learned counsel for the petitioner. The criticism to be termed as fair as is apparent from the prefix of the word "criticism" has of necessity to be unbiased, dispassionate and without motives. The holding of the seminar soon after taking over of the Government by the Peoples Party, its being chaired by a Governor appointed by the same Government and participation in the seminar by the Prime Minister, the Senior Minister and other Ministers as also giving it a wide publicity through Press and through electronic media controlled by the Government and holding of the seminar allegedly through finances awarded by the Government, may be indirectly, can in no manner be construed as a fair criticism of a judgment. The judgment has been dubbed as dishonest not only in the seminar but in the speech made by the Prime Minister herself at an international platform. The manner in which over three dozens of Judges were dealt with through a press note issued by the Federal Government statedly in pursuance of the judgment of the Supreme Court, which the Supreme Court later clarified did not in any manner lay what the press note release contained also very boldly indicates towards the "respect" that the then Government had towards the superior judiciary. The clarificatory judgment of the Supreme Court of Pakistan delivered after the release of the press note aforementioned released by the Federal Government has also been described as a manipulated and manoeuvred judgment in a note sent to the President by the former Prime Minster. No denial whatsoever was put forth during the arguments by the learned counsel for the petitioner to the whole sale and indiscriminatory appointments in the civil service of Pakistan and the services of such statutory corporations as are working under the Federal Government. The learned Attorney General gave a high figure of 26.000 of such appointments, which were made not only purely on political basis, the appointees being members/workers of the Pakistan Peoples Party only, but the same were also without consideration of merits and of even such persons who being dismissed Government servants were ineligible for reappointment. A classic example is that on the recommendation of the husband of the former Prime Minister, an Additional District and Sessions Judge working in the Province of Sind was appointed to the post of Director Administration in PIA and this appointment was made notwithstanding the clear notes of opposition by the Chairman and Director Administration of PIA. As could be expected both the aforementioned officers of PIA were removed from their assignments for having opposed the desire of the Prime Minister's husband. I consider it unnecessary to go into more details in this regard and would only refer to the appointments of following persons who per record had been dismissed from the service of the Government and yet appointed in violation of Rule 6 of the Government Service (Efficiency and Discipline) Rules, 1973. List of Officers previously dismissed under MLO-17 retired under Section 13/removed under Section 12 and recently appointed as Advisers/Special Assistants and Officers on Special duty etc. S.No. Name Previous Appt./Status New Appt./Status 1. Mr.MAkram Sheikh 2. Mr.Khalid Ahmad Khan 3. Mr. Aslam Azhar 4. Mr. Kalim Oil Khan Mr. Muhammad Khan Junejo Mr. Younis Saeed Director FLA (Dismissed under MLO-17) eputy Commissioner Larkana (Dismissed under MLO-17) Vice-Chairman, State Films Authority (Dismissed under MLO-17). Police Service (Dismissed due to absence) Home Secretary Sind (Dismissed under MLO-17). Managing Director National Book Foundation (Dismissed on charges of Assistant to Adviser on Foreign Affairs and National Security in EPS 22 OSD for Cabinet Affairs with the status of Minister of State (Resigned on 6.12.1989). OSD Pakistan Television Corporation Chairman Narcotic Control Board Ambassador of Pakistan Bahrain Managing Director, Direcotor National Book Foundation corruptionmismanagment). 7. Col.Ilyas Shamim. Pakistan Army Managing Director (Awarded 7 years Pakistan Steel Mills Rl on charges of desertion). 134. It is the admitted position that the wholesale appointments in the service f the Federation and in the statutory corporations were through the agency of Placement Bureau which neither had any legal status nor nay legislative backing. AAD The very working of the Placement Bureau in fact deprived a constitutional body i.e., the Federal Public Service Commission from carrying out its functions. Can such acts of a Government which is required to work under a written constitution and has well defined sphere, be termed as constitutional and could it be said that if any action is taken against such a Government by the AAE constitutional functionary empowered to do so, his action has no nexus with the power conferred upon him for meeting such situation? The President in his impugned order in para e.(ii) has also taken the following ground as basis of the said order:- "Authority resources and agencies of the Government of the Federation including statutory corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains." 137. In support of the above ground, the learned Attorney General in particular contended as under:- (/) That the secret funds of Intelligence Bureau were embezzled/misused by the Federal Government and its functionaries under directions of the Federal Government. (//) That Pakistan Air Force planes were illegally used for unauthorised purposes like transportation of members of the National Assembly to Swat and back during the days of no-confidence move. (Hi) Similarly Pakistan International Airlines planes were misused by diverting their flights to unscheduled routes for the above purpose; and (iv) That the Prime Minister misused her authority by getting the discretionary quota of allotment of plots in Islamabad increased and then allotting the plots to members of Assemblies, their relatives, friends etc. In this respect he specially referred to the case of Lake View Hotel. In support of item (/) mentioned above, documents Annexures A, A/1, A/2 and A/3 had been filed. In rebuttal, the petitioner placed on record two affidavits of Mrs.Benazir Bhutto, former Prime Minister of Pakistan, and affidavit each of Maj. General (Retd) Naseer Ullah Khan Babar and Miss Nahid Khan, former Special Assistant and former Political Secretary to the ex-Prime Minister respectively and an affidavit of his own. 140 After the filing of the above affidavits, the Federation placed on record an affidavit of Mr. Muhammad Ikrmaul Haq, Deputy Director (Administration). Headquarters Intelligence Bureau, Islamabad , together with directions for the proper utilization of secret funds and further detailed instructions in this regard. In this affidavit of Mr. Muhammad Ikramul Haq, apart from other depositions, the deponent has categorically controverted in para 12 the affidavit filed on behalf of the petitioner and stated that not only the depositions therein are incorrect but the true facts arc that no accounts have been rendered for the amounts received by them. 141. The learned Attorney General had contended that out of the special crants of Rs.12,43,00,000/- allocated to the Intelligence Bureau, excepting a sum of .2,88,00,000/- which was demanded and received by the Intelligence Bureau, all other amounts were disbursed on the orders of the ex-Prime Minister's staff (during 1989-90. In this manner an amount of Rs.9,55,00,000/- remains unaccounted for, out of which some recipients have been detailed in Annexures A/1, A/2 and A/3 to the written statement filed by the Federation. When the above documents were referred to by the learned Attorney General, the learned counsel for the petitioner took time to file the affidavits referred to above viz, .. those of the petitioner, Mrs. Benazir Bhutto, Maj. General (Retd). Naseer Ullah Khan Babar and Miss Nahid Khan. He also submitted that Maj. General (Rctd.) Naseer Ullah Khan Babar wishes to be heard in camera in order to explain the (expenditure out of the secret service fund. In the affidavit of Maj. Gen. (Retd.) Naseer Ullah Khan Babar, in para 2, it is deposed that out of the secret fund an amount of Rs. 70 million was spent and accounted for in the highest national interest and in furtherance of the security of Pakistan. In para 3 he has deposed that he is prepared to disclose the details in the Court ( in camera) in view of the sensitive nature of the details. In para 4 there is a denial of any payment out of the secret funds to the former Prime Minister. The amount shown against the name of Aftab Ahmad Khan Sherpao and Malik Muhammad Waris Khan were delivered to them under his instructions and later withdrawn by him. When Mr. Naseer Ullah Khan Babar appeared in camera before the Court, Mr. Abdul Sattar Najam, the learned counsel for the petitioner submitted that the deponent wishes that this matter be not probed any further as it touches the security of Pakistan and that the learned Attorney General is also agreeable to this position. We sent for the learned Attorney General and directed him to talk about this matter separately where only Mr. Abdul Sattar Najam, the learned Attorney General and Maj. Gen. (Retd.) Naseer Ullah Khan Babar should be present. After some time all of them appeared before the Court and the learned Attorney General categorically stated that he has been instructed by the authorities that Maj. Gen. (Retd.) Naseer Ullah Khan Babar may give details whatever he wants about the spending of the money to the Court. Major General (Rctd.) Naseer Ullah Khan Babar, however, did not give any details and merely stated that the amounts had been spent by him on secret missions which he is not prepared to disclose. When inquired about the details of expenditure and its accounting for, it was stated by him that he has neither any accounts to render nor the amounts have been accounted for in the relevant books of accounts. He stated that there ate no instructions/rules requiring the maintenance of accounts of secret service funds. 144. The above assertion of Maj. Gen (Retd.) Naseer Ullah Khan Babar stands contradicted by the detailed instructions regarding the administration, proper utilization nd maintenance of accounts of secret funds. Some of these instructions were read out to him which, inter alia, include the maintenance of cash book, the cash receipt vouchers, cancellation of vouchers, demand slips supervisory checks and proformas of receipts to be obtained from the recipients of amounts out of the fund aforementioned. In the cash receipt proforma which is annexed with the aforementioned instructions apart from the signatures of the recipient, an Officer has to attest the payment and also give the pseudonym of the recipient, if there be any. It may also be pertinently observed here that the instructions aforementioned provide for proper utilization of such funds and amounts not properly spent have to be reimbursed by the concerned officer. AAH According to a circular issued by the Deputy Director (Administration); Intelligence Bureau on 16.9.1981 which has also been filed with the affidavit of Mr. Muhammad Ikramul Haq aforementioned it is an erroneous impression that secret service fund is exempt from audit. This false impression, it is stated in the circular, needs to be dispelled. The further averment therein is that the only difference between the secret service fund and other normal funds is that whereas the laltcr is audited by the Comptroller and Auditor General, the amounts of secret fund arc audited by the Cabinet Secretary. The same norms as applicable to the normal funds apply with equal force to the secret service expenditure. 145. In the light of the above position qua the secret fund, the statement; made before the Court by Maj. Gen. (Retd.) Naseer Ullah Khan Babar does not AAJ inspire any confidence The explanation can hardly be given credence without j substantiation of the expenditure by documents. 146. I would not like to further comment upon this matter as the learned Attorney General has pointed out that this misuse of secret fund is being made subject of a Reference under P.O. No. 17 of 1977 and may only observe that in view of filtering away of huge amounts from the Government fund, the President could legitimately take notice of this factor for passing the order under Article 58(2)(b) of the Constitution. There can be no denial to the established norm that the Government can only be termed to be running in accordance with the Constitution if it protects the funds of the State and conversely if the funds arc not utilized for the specific purpose for which the same have been allocated, it can also be safely said that the Government is not being run in accordance with the Constitution, Another important aspect of the matter which remains completely unanswered from the petitioner's side is the disbursement of these huge amounts from the secret service fund to various Ministers during the days of no confidence motion and about the time when the election of the Prime Minister of Azad Kashmir was held. Yet another important factor in this regard worthy of notice is that the disbursements to persons like Mr. Aflab Ahmad Khan Shcrpao, Chief Minister of NWFP, Malik Muhammad Waris Afridi, Minister of State in the Federal Government and Mr. Muhammad Hanif Khan, Minister of the Federal Government regarding Kashmir Affairs who were not connected with the secret service but had played important role in defeating the no confidence motion and the election of a nominee of the ruling party as Prime Minister of Azad Kashmir remain wholly unexplained by the petitioner. In support of the contentions appearing at Nos. (ii) and (iii) above, the learned Attorney General had placed on record affidavits of Group Captain Tahir H. Siddiqui of PAF Base, Chaklala, as also of Mr. Nasim Akhtar, Chief Warrnt Officer of the said Base, with which affidavits have been annexed the summary of uplift of passengers of PAF Aircrafts together with the passengers manifest and statement of expenditure incurred on the flights of Pakistan Air Force Aircrafts used for carrying the MNAs during the days of no confidence move against the ex- Prime Minister. Similarly, details of use of flights of PIA for the above purpose under affidavit of Mr. Usman Khan, Director Administration, PIA, have also been placed on record. No denial whatsoever has been put forth by the petitioner in respect of the allegation of unauthorised use of the Aircrafts of PAF and PIA for political gains. Practically the same uncontroverted position obtains as regards the increase in the discretionary quota of allotment of plots in the Capital Development Authority and misuse of the enhanced allocation of quota by the Prime Minister for political gains. Although the learned Attorney General referred to some other misuses of resources of the Government and Statutory Corporations/Banks etc. for political ends, I refrain from giving any specific findings thereon as they may also be subject of References/other legal proceedings and any comments may prejudice either of the parties in those proceedings. 153.1 would like to conclude the above discussion by saying that the ground taken in this regard by the President can be reasonably said to be one which has a nexus with the preconditions of Article 58(2) (b) of the Constitution. 154. Having dealt with the main controversies that required determination, I now take up the other two objections that have been raised during these proceedings. These are: (i) The constitutionality and validity of Eighth Amendment (ii) The validity of appointment of Mr. Ghulam Mustafa Jatoi as the head of the caretaker cabinet appointed by the President after dissolving the National Assembly. 155. As regards the objection to the validity of the Eighth Amendment in the Constitution raised by the learned counsel for the petitioner in W.Ps. NO. 5849 of 1990 and 379 (Peshawar) of 1990, suffice it to observe that this question was raised in case "Malik Ghulam Mustafa Khar and others versus Pakistan and others" (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660 (FB)) but was repelled by a Full Bench of this Court. The Supreme Court of Pakistan while deciding the appeal against that judgment, did not take a contrary view. Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Pirzada against the judgment of Sindh High court, I do not consider it appropriate to reopen this controversy especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision by the Supreme Court of Pakistan. 156. Adverting now to the appointment of respondent No. 2 as the Prime Minister to head the caretaker Cabinet, the learned counsel for the petitioner contended that since respondent No. 2 was the leader of the opposition in the dissolved Assembly, he could not have been appointed as the Prime Minister after dissolution. It was also submitted that the President had appointed respondent No. 2 as the Prime Minister instead of caretaker Prime Minister and for this reason also the appointment of respondent No. 2 was bad in law. It was next argued that respondent No. 2 being a caretaker Prime Minister, could only work on day to day basis but could not take policy decisions. Reliance in this connection was placed on the observation made by one of the learned Judges of Full Bench constituted in the case of Khawaja Muhammad Sharif v. Federation (Supra). 157. In my view none of the contentions raised by the learned counsel for the petitioner has any substance. Under Article 48(5) of the Constitution of Islamic Republic of Pakistan, the appointment of caretaker Cabinet and its composition is in the sole discretion of the President. The above provision when read with Article 91(8) of the Constitution leads to the irresistible conclusion that it is open to the President to appoint any person of his choice as a Minister or Prime Minister as the case may be of the caretaker Cabinet. No fetters having been placed on his choice by the Constitution, it is idle on the part of the petitioner to contend that this Court should do so. The discretion vesting in the President under clause (5) of Article 48 having not been circumscribed by any condition like the power of the President under Article 58(2)(b) which opens with the words in clause (2) ibid. " Notwithstanding anything contained in clause (2) of Article 48.' is not liable to be interfered with by this Court. 158. Regarding the contention of the learned counsel for the petitioner that respondent No. 2 had been appointed as Prime Minister instead of a caretaker Prime Minister, the learned counsel has referred to a Notification of assumption of charge of office by respondent No. 2. The learned counsel for respondent No. 2 on the other hand has produced copy of Notification of appointment of respondent No. 2 which shows that he has been appointed as head of the care taker cabinet. There is thus no basis for this contention of the learned counsel for the petitioner. 159. So far as the powers of the Prime Minister/caretaker Prime Minister as head of the caretaker cabinet are concerned, I could not find any material difference between the two except that the tenure of the caretaker Prime Minister is to last till induction into office of the regularly elected Prime Minister by the new Assembly after the election. I am strengthened in this view by the fact that no separate oath of office has been prescribed for the caretaker Prime Minister while assuming office. It is also interesting to note that the words "caretake Prime Minister" as such do not appear anywhere in the Constitution. 160. It is a well settled principle for construction of a Constitution that it is to be construed as an organic whole and its different provisions are not only to be read conjunctively so as to give effect to each other but it is also to be ensured that the provisions are well harmonized. A perusal of the various constitutional provisions referred to above lead me to conclude that the objections raised by the learned counsel for the petitioner are without substance and thus not tenable. The reliance placed by the learned counsel for the petitioner on Madan Murari Verma v. Choudhuri Charan Singh and another reported as AIR 1980 Calcutta 95, is not apt as there are no parallel provisions in the Constitution of India nor does the expression "caretaker cabinet" figure in the said Constitution. 161. Resultantly the appointment of respondent No. 2 as the Prime Minister heading the caretaker cabinet having been made by the President in exercise of his discretion is unexceptionable and cannot legitimately be questioned before this Court. 162. It was for the reasons detailed above that all these writ petitions were dismissed. The parties are, however, left to bear their own costs. Manzoor Hussain Sail, J.--I have had the benefit of reading the elaborate reasons recorded by the learned Chief Justice and my learned brother, M. Mahboob Ahmad, J, in support of the unanimous decision rendered by the Full Bench of this Court on 14th October, 1990, with which I generally concur, but feel tempted to highlight only one aspect of the case. On the 6th August 1990, the Constitutional history of Pakistan recorded another important event, in that, the President of Pakistan, on the basis of his assessment of the situation prevailing in the country, found that the Government of the Federation was not being carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessry, therefore, in exercise of the powers vested in him, under Article 58(2)(b) of the Constitution, dissolved the National Assembly of Pakistan and in consequence, the Prime Minister and her cabinet ceased to hold office with immediate effect. As the text of the Dissolution Order and relevant Articles of the Constitution find reproduction in extenso, in the detailed reasons recorded by the learned Chief Justice, therefore, for reference only relevant portions thereof are mentioned hereunder:- 48. President to act on advice etc. (1) In exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister). Provided .................................................... (2) Notwithstanding anything contained in clause (1) the President shall act in his disrection in respect of any matter, in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever. (3) Omitted (4) ........................ (5) ........................ (6) ........................ (7) ........................ 58. Dissolution of National Assembly. (1) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. . Explanation .................... (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his iscretion where in his opinion:- (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary." The close examination of the aforementioned provisions of the Constitution shows that Article 58(2)(b) empowered the President to dissolve the National Assembly in his discretion provided he was satisfied that the Government of the Federation was not being carried on, in accordance with the provisions of the Constitution and appeal to the electorate was necessary, whereas Article 48(2) provided immunity from challenge, all actions of the President performed in exercise of his discretion as specified in the Constitution. It is noteworthy that Article 48 and for that matter even Article 58, in 1973 Constitution (as it originally stood) did not empower the President to dissolve the National Assembly in exercise of his discretion nor such an action was saved from challenge. On the contrary, the President was bound by the advice tendered by the Prime Minister as envisaged under Article 48(1) and under clause (3) his orders required counter-signatures of the Prime Minister for their validity. This state of affairs continued until on 5th July 1977, the then Chief of the Army Staff imposed Martial Law in the country and the 1973 Constitution was held in abeyance. Simultaneously he became the Chief Martial Law Administrator and issued Laws (Continuance in Force) Order 1977, wherein it was stipulated that the country would be governed as nearly as possible in accordance with the provisions of 1973 Constitution. Thereafter, on 23rd March 1981, he promulgated Provisional Constitution Order, wherein besides other provisions, included certain Article of 1973 Constitution and governed the country in accordance with that Order, until on the 2nd March 1985, he issued another order, known as The Revival of the 1973 Constitution Order 1985 (P.O.No.14 of 1985) whereby he introduced extensive amendments in 1973 Constitution. Both Articles 48 and 58 of the Constitution were also amended. The amendments introduced in these Articles conferred unfettered powers on the President to dissolve the National Assembly in his discretion and his action was immune from challenge on any ground whatsoever. The amendments made in the 1973 Constitution were not well received by the people. The members of the Parliament elected on the party-less elections also started a move against these amendments specially to place limits on the powers of the President .to dissolve the National Assembly, known as the Constitution (Eighth Amendment) Bill of 1985. It proposed further amendments in the Articles of the Constitution introduced through P.O. 14 of 1985. The amendments suggested in Articles 48 and 58 of the Constitution aimed at placing certain limits on the powers of the President to dissolve the National Assembly. The Parliament passed the bill and finally adopted provisions of Articles 48 and 58, in the Constitution, circumscribed the powers of the President to dissolve the National Assembly in a manner that the National Assembly could be dissolved only if the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessary. The validity of extensive amendments made in the Constituion, through Eighth Amendment Act, 1985 by Parliament elected through party-less elections came under challenge before superior Courts of the country, inter alia, on the grounds, that the same were introduced in the Constitution by an unauthorised body, had the effect of illegally altering the basic structure of the Constitution and had made serious in-roads in the Islamic, democratic and Parliamentary form of the Constitution. The Sindh High Court in Muhammad Bachal Memon v. Hie Government of Sindth through Secretary Department of Food and two others (PLD 1987 Karachi 296 (FB) the Lahore High Court in Malik Ghulam Mustafa KJiar & Others v. Pakistan and others (PLD 1988 Lahore 49 (F.B) and the Sindh High Court in another case, titled Abdul Mitjeeb Pirzada v. Federation of the Islamic Republic of Pakistan & others (PLD 1990 Karachi 9 (F.B) examined the vires of the Eighth Amendment Act 1985 and repelled the contentions raised for its invalidity. Similarly, the Supreme Court in Federation of Pakistan v. Malik Ghulam Mustafa KJiar (PLD 1989 SC 26) did not interfere in appeal and assumed the amendments having been validly made by the Parliament. The appeal arisen from the decision of the Sindh High Court in Abdul Mujeeb Pirzada's case is still subjudice before the Supreme Court. The main objection raised by Dr. A.Basit, Advocate to the amendments in Articles 48 and 58 of the Constitution is that the same have concentrated arbitrary powers in the hands of the President, affecting the balance of power between the Prime Minister and the President. Previously, under the 1973 Constitution (as it originally stood), the balance of power was in favour of the Prime Minister, but after the introduction of the Eighth Amendment Act 1985, it tilted in favour of the President. The question as to what should be the balance of power inter se the President and the Prime Minister is a political question and any endeavour to resolve such an issue would amount to entering into political arena beyond the jurisdictional domain of judiciary. It is desirable that the politically sensitive questions should be resolved on the floor of the House by elected members of the Parliament. Undoubtedly, there is no clog on the competency of the Parliament to amend the Constitutional provisions so as to suit the genesis of the people. The salutary feature of our Constitution is that it recognises sovereignty belonging to Allah Almighty alone and it is only the authoirty delegated by him, which is exercised by the chosen representatives of the people of Pakistan . The Parliament exercises limited authority as a delegate. It can amend and improve the provisions of the Constitution without impairing its Islamic and democratic character. The general elections are scheduled to be held on 24.10.1990. The Nation has experienced the consequences of split mandate returned by the people in the last general elections giving rise to unabated confrontation between the Federal and the Provincial Governments detrimental to the development of democratic process in the country. If the electorate in the on-coming elections acts discreetly' in electing one of the major contesting parties with at least 2/3rd majority in the Parliament, it will facilitate the Parliament to amend and make the Constitution in accord with the aspirations of the people as embodied in the Objectives Resolution viz enabling the Muslims to order their lives in accordance with the dictates of Islam as set out in the Holy Quran and Sunnah, principles of democracy, freedom, equality, tolerance, social justice, as enunciated in Islam observed and fundamental rights guaranteed. Ihsan-ul-Haq Chaudhary, J.--I have had the privilege of going through the reasons recorded by the learned Chief Justice and my learned brother Mian Mahboob Ahmad J. in support of the short order rendered by this Court on 14.10.1990 with which I am full agreement and have nothing to add. Malik Muhammad Qayyum, J.--I have had the advantage of going through the reasons given by the learned Chief Justice and my learned brother Mahboob Ahmad J. in support of the short order dated 14th of October, 1990 whereby this writ petition and four similar petitions were dismissed and agree therewith entirely. I have nothing to add. (MBC) Petition dismissed.

PLJ 1991 Lahore 85 PLJ 1991 Lahore 85 Present: FAZAL KARIM, J MUHAMMAD DIN-Petitioner versus MUHAMMAD SADIQ and 2 others-Respondents Civil Revision No. 1188 of 1983, accepted on 24.7.1990. Registration Act, 1908 (XVI of 1908) —S. 77 read with Sections 72 & 73 Document—Execution of—Non-registration of-Challenge to-It was a case where Sub-Registrar had refused to register document on ground of denial of execution—No appeal under Section 72 of Act lay and it was a case falling to be dealt with under Section 73 of Act- Remedy of respondent was to apply to Registrar within thirty days of order of refusal-Contention that having not applied to Registrar within 30 days of refusal, plaintiff had no right to institute suit under Section 73 of Act—Held: If an appeal under Section 72 or an application under Section 73 of Act has not been made timeously and District Registrar has proceeded to inquire whether document has been executed, he will have acted without jurisdiction—Petition accepted. [Pp.87,88,89&90]A,B,C,D (1917) 40 I.C. 192, (1884) 7 Madras 535, (1882) I.L.R. 9 Cal. 150, (1881) I.L.R. 3 All. 397, (1884) 7 M. 535, (1902) I.L.R. 24 Allahabad 402 and PLD 1971 SC 61 ref. Mr. Muhammad Zaman Qureshi, Advocate for Petitioner. Qazi Zahid Hassain, Advocate for Respondent No. 1 Date of hearing: 23.6.1990 judgment This was a suit under Section 77 of the Registration Act, 1908. It was brought by Muhammad Sadiq, plaintiff, respondent herein, who claimed to be the vendee under a sale deed said to have been executed by Muhammad Din, defendant, now petitioner, on 7.1.1977. The suit was decreed by the judgment of the learned Civil Judge, Lahore, dated 8.2.1983, and the petitioner's appeal was dismissed by the judgment of the learned Additional District Judge, Lahore, dated 15.6.1983. 2. Shortly stated the facts are that a sale deed in respect of the property in dispute was written on 7.1.1977; by it, Muhammad Din, petitioner, had purportedly sold the property in dispute to Muhammad Sadiq, respondent for Rs. 20,000/-. Rs. 3000/- had been received by the petitioner as earnest money and the remaining sale price was to be paid before the Registering Officer. It was the petitioner's case that he had agreed to mortgage the property; that he had signed the deed dated 7.1.1977, thinking that it was a mortgage deed and that he had refused to have it registered when the deed was read over to him and he learnt to his surprise that it was not a mortgage deed but a sale deed. 3. The deed was presented for registration before the Registering Officer on 4.5.1977. The Registering Officer refused to register it by his order dated 29.6.1977. The plaintiff preferred an appeal before the District Registrar under Section 73 of the Registration Act (hereinafter to be called the Act) on 6.8.1977 and the District Registrar dismissed the appeal by his order dated 26.5.1980 on the ground that the appeal, so preferred, was time barred. 4. This suit was instituted on 21.6.1980, that is within 30 days of the District Registrar's order dated 26.5.1980. 5. Section 71 of the Act provides that every Sub-Registrar refusing to register a document "shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the word 'registration refused' on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded". By Section 72, "except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of Sub- Registrar refusing to admit a document to registration (whether the registration of such a document is compulsory or optional) to the Registrar to whom such Sub- Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order". Section 73 of the Act by its sub-section (1) enacts that "when a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered". "In such case", so provides Section 74 of the Act, "the Registrar shall, as soon as conveniently may be, enquire— (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration". If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall, under Section 75 of the Act, order the document to be registered. Section 76, by its sub-section (1) of the Act, says that "every Registrar refusing— (a) to register a document except on the ground that the property which it relates is not situate within district or that the document ought to be registered in the office of a Sub-Registrar, or (b) to direct the registration of a document under Section 72 or Section 75, shall make an order of refusal and record the reasons for such order in his Book No 2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded". 6. Section 77, by its sub-section (1) of the Act, enacts:- "Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the civil Court, within the local limits of whose original jurisdiction is situate, the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be 'duly presented for registration within thirty days after the passing of such decree". 7. It is evident that as this was a case in wbich the Sub-Registrar had refused to register a document on the ground of denial of execution, no appeal under Section 72 of the Act lay and that it was a case falling to be dealt with under Section 73 of the Act. In other words, this was a case in which the Sub-Registrar had refused to register a document on the ground of denial of execution by the petitioner and, therefore, the remedy of the respondent was to apply to the Registrar "within thirty days after the making of the order of refusal" in order to establish his right to have the document registered. " 8. For the petitioner, the contention before the Courts below as also before me was that as the plaintiff had not applied to the Registrar within thirty days, after the making of the order of refusal dated 29.6.1977, the provisions of Section 73 of the Act were not complied with and the Registrar had not enquired, and had not the jurisdiction to enquire, whether the document had been executed and, therefore, the plaintiff had no right to institute a suit under Section 73 of the Act. Before the learned Courts below, reliance was placed upon Gangadara Mudali vs. Sambasiva Mudali ((1917) 40 I.C. 192) and it was assumed, and if I may say so assumed wrongly, that that case was an authority for the view that even if the application under Section 73 of the Act was not made within thirty days after the making of the order of refusal, the order of the Registrar, dismissing the application under Section 73 of the Act, amounted to refusal to register the document within the meaning of Section 77 of the Act and entitled the aggrieved party to sue for the enforcement of registration under that Section. The facts of that case are not clear from the report; it, however, appears that that was a case falling under Section 72 of the Act and the Registrar had dismissed the appeal not on the ground that the appeal before him was presented out of time but on the ground that there was a prior order refusing to extend time. In point of fact, when the case, namely, Kunhimmu vs. Viyyathamma ((1884) 7 Madras 535), was cited before the learned Judges, they distinguished it on the ground that "the appeal to the Registrar in that case having been presented after the expiry of the prescribed period, it was considered as if there was no appeal and admittedly where there has been no appeal to the Registrar, no suit will lie under Section 77". 9. There is respectable authority directly on the point, which unfortunately, was cited neither before the Courts below nor before me. I refer to Edun vs. Muhammad Siddik and another ((1882) I.L.R. 9 Calc., 150), a Full Bench case of the Allahabad High Court, namely, Bhagwan Singh vs. KJiuda Bakhsh ((1881) I.L.R, 3 All, 397) and Kunhimmu vs. Viyyathamma ((1884) 7 M. 535). In the ases of Edun vs. Mohammad Siddik and Kunhimmu vs. Viyyathamma, both being cases under Section 73 of the Act, the application under the section had not been made till after the expiry of 30 days; it was held in the first case that "the plaintiffs cannot succeed under S. 77 of the Act, because they did not comply with the conditions precedent to the maintenance of a suit under that section" and in the Kunhimmu case, it was held that "it is only when an application has been made to the Registrar in time and, after inquiry, registration has been again refused that a Civil Court is competent under Section 77 to order registration". In Bhagwan Singh case, the plaintiff did not make any application to the Registrar under Section 73 of the Act but instituted a suit to compel registration without taking any steps under that section. A full Bench of the Allahabad High Court, "while regretting to find themselves constrained by the plain language of the law to admit the validity of the objection raised to the maintenance of the suit," observed that "unfortunately for the plaintiff, 'he has failed to satisfy all the conditions precedent to the bringing of such a suit by omitting to make the application to the Registrar provided by Section 73", that "the suit mentioned in Section 77 may be instituted where the Registrar refuses to order the document to be registered", and that in having failed to fulfil all the necessary preliminaries "the plaintiff has put it out of the power of the Civil Court to give him the relief he asks. To decree the prayer of this plaint in terms would be to direct a public officer to do that which he is specifically and plainly told not to do". 10. The same question fell for consideration in Udit Upadhia and another vs. Imam Bandi Bibi )(1902) I.L.R. 24 Allahabad 402), a case under Section 73 of the Act. An application under that section before the Registrar was formally made two days after the time limited by that section and the Registrar had summarily rejected it and the question was whether the suit under Section 77 of the Act was competent. The question was considered by a Division Bench consisting of Sir John Stanley, Knight, CJ. and Mr. Justice Burkitt. Mr. Justice Burkitt was of the opinion that the right of suit given by Section 77 of Act arises only when the Registrar, "on an application complying with all the provisions of the second and third paragraphs of Section 73 of the Act having been presented to him, has upheld the order of the Sub-Registrar, and has refused to direct the document to be registered. One of the conditions precedent to the presentation and admission of an application under Section 73 of the Act, as laid down in the second paragraph of that section, is that the application must be made within thirty days from the day of the order of refusal by tht Sub-Registrar It is a provision which , the Legislature intended to be obeyed, and not to be disregarded When then an application purporting to be an application under Section 73 of the Act is presented to the Registrar after the expiration of the thirty days , such an application is not... an application which could be entertained under that section and the summary rejection of such an application, on the ground that it was put in beyond time cannot be considered to be a refusal under Section 76 of the Act to order the document to be registered within the meaning of the opening words of Section 77 of the Act, so as to give a right of suit under Section 77". The words "in such case" in Section 74 of the Act, it appeared to Burkitt J, are most important; "they govern Section 74 and the following sections, and ...... imply into Section 74 all the provisions of Section 73, and clearly imply that it is only when an application, purporting to have been presented under Section 73, complies with all the conditions required by that section, that action is to be taken under Section 74 and the two following sections". It was clear to Burkitt J that when an application was summarily rejected as being in violation of the conditions required by Section 73 "that rejection cannot be considered a refusal to direct registration under Section 76 so as to give a right of suit under Section 77 of the Act". He held, therefore, that in such a case, there is no refusal to direct registration under Section 76, "the Registrar not having applied his mind to the question as to whether the document ought to be registered, but having simply thrown out (as he was bound to do) a petition which purported to be an application under Section 73, but which, being presented after the prescribed period had expired, was not an application complying with the requirements of that section and could not be entertained". 11. There being a difference of opinion between the Chief Justice and Burkitt J, the question was referred to a Full Bench consisting of the C.J., Burkitt J and Aikman J. Aikman J speaking for the Full Bench endorsed the view of Burkitt J and held that "in the absence of such an application, ie., of an application presented within the time, the Registrar has, in a case like the present, no jurisdiction to make any inquiry whatever; he must reject the application in limine". He adopted the interpretation of the words "in such case" (in Section 74 of the Act) of Burkitt J and held that "the refusal of the Registrar referred to in Section 76 is a refusal upon an inquiry which pre-supposes the presentation of an application within time". From the opening words of Section 73, he further held, the conclusion necessarily followed that "to create a right of suit in the Civil Court there must have been a refusal to order registration following upon an inquiry held upon an application presented within time". Sir John Stanley, Knight, C.J. could not but accept the force of these reasons and agreed both with Aikman J and Burkitt J that in such a case, a suit under Section 77 of the Act is not competent. 12. These are, if I may say so, powerful reasons and I will respectfully adopt them. If I may venture to supplement those reasons, I shall add that the right to have a deed registered is not a common law right; it has no existence apart from Section 77 of the Act. Similarly, the right of an appeal under Section 72 and the right to apply under Section 73 of the Act also being creations of the Act, it follows as inexorable logic that the District Registrar cannot but exercise his powers subject to the conditions and qualifications prescribed by those sections. 'As a general rule, it was held in Atta Muhammad Qureshi vs. Tlie Settlement I Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 Supreme Court !61), statutes, which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed and when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied. The District Registrar cannot, therefore, ignore the period of limitation prescribed by the Act, to which Act he owes his creation, on any ground. Thus, if an appeal under Section 72 or an application under Section 73 of the Act has not been made timeously and the District Registrar has proceeded to inquire whether the document has been executed, he will have acted without jurisdiction, for the presentation of the appeal under Section 72 and the making of the application under Section 73 of the Act within 30 days is a necessary condition precedent to the exercise of the jurisdiction of the District Registrar to inquire into that question. 12. For these reasons, the revision petition is accepted, the judgments and decrees of the Courts below are set aside and the suit is dismissed. The parties are however, left to bear their own costs. (MBC) Petition accepted

PLJ 1991 Lahore 90 PLJ 1991 Lahore 90 Present: MUN1R A. SHEIKH, J FATEH SHER etc.,-Appellants versus KHANAN etc.,-Respondents R.S A. No. 157 of 1959, accepted on 29.7.1990. Civil Procedure Code, 1908 (V of 1908)- -—S. 96~Adna Malikan --Dispossession of-Challenge to-Whether appellants did not occupy land with consent of Aala Malikan and were liable to ejectment-Question of-It is not contested that possession of appellants over land in dispute was very old—They were not recognised by lower appellate court as Adna Malikan on ground that they did not take possession of land and brought it under cultivation with consent of Aala Malikan i.e., respondents-A consent can be expressed and it can also be implied--From conduct of respondents, it can safely be presumed that they impliedly gave consent to appellants to occupy and cultivate land in dispute-Held: Appellants could neither be dispossessed nor ejected from land in dispute-Appeal accepted. [Pp.92&93]A&B Mr. Allah Wasaya Malik, Advocate for Appellants. Mr. M. Javed Buttar, Advocate for Respondents. Dates of hearing: 30.5.1990, 2,3,4,5,6,12,13,24,25,26, and 30.6.1990, 1,2,8,9,10 and 11.7.1990. judgment This is defendants second appeal arising from a suit filed by the respondents for possession of shainlat land measuring 321 kanals situated in village Doggar Aulakh Tehsil Bhakkar. 2. The respondents filed a suit for possession of shainlat land measuring 321 kanals situated in village Doggar Aulakh Tehsil Bhakkar alleging that they being the, Aala Malkans in the village were the owners of the said shainlat land and that the defendants/appellants had taken possession of the land in dispute without any right or title, therefore, the plaintiffs were entitled to its possession in their capacity as Aala Malkan in the village. The suit was contested by the appellants who filed written statment in which they alleged that the plaintiffs were not Aala Malkan of the Mauza and even if they were proved to be so they had no proprietary rights in the land in dispute because they were only entitled to get haq malkana at the rate of Rs. 1/12/-. It was also alleged that the plaintiffs had never been in possession of the suit land and the defendants were co-sharers in the shainlat land in the village and since their possession was very old, therefore, they could not be ejected. The learned trial Court on the pleadings of the parties framed the following issues:- 1. Whether the plaintiffs are ala malkan of the suit land? OPP 1.A On proof of issue No. 1, are the plaintiffs co-sharer in the shainlat land and as such are owners of the suit land? OPP. 2. Are the plaintiffs only entitled to get haq malkana at the rate of Rs. 1/12/- from the defendants in respect of the suit land? OPD 3. Is the suit land shainlat dch and not shamlat mauza? OPD 4. Is there any legal difference between shamlat deh and shamlat mauza? OPD 5. Were the plaintiffs in possession of the suit land at any time? If not, what is its effect on the suit? OPD 6. Are the defendants malkan khewat-guzar and as such they are co-sharers in the shamlat land? OPD 7. If issue No. 6 is proved in favour of the defendants, then, are they owners of the suit land? OPD 8. Whether the possession of the defendants over the suit land is old? If so, what is its effect on the suit? OPD 9. Relief. The parties led oral as well as documentary evidence. After appraising evidence the learned trial Court under issue No. 1 held that the plaintiffs were among the Aala Malkan of the Mauza. This finding was recorded on the basis of the statement of the Patwari who was examined as PW.l. Under issue No. 1-A it was held that the plaintiffs as among Aala Malkan were owners of the shamlat land but their shares were not determined and at the most they could be regarded as co-sharers. Issue No. 1-A was answered accordingly. Regarding issue No. 2 it was observed that no evidence was led by the defendants on whom the onus was placed, therefore, the said issue was decided against the defendants. Issues No. 3 and 4 were decided against the defendants by holding that there was no difference between the two terms i.e., shamlat deh and shamlat mauza. Under issue No. 5 it was observed that as to whether the plaintiffs were or not in possession of land was of no importance as the defendants did not take the plea of adverse possession. This issue according to the learned trial Court had no bearing on the merits of the case, therefore, it was answered against the defendants. Under issue No. 6 it was held that in the revenue papers the defendants were recorded as ghair dakhilkaran paying rent at basharah bawajah nau toor, therefore, it was held that the defendants were not owners of the land on the ground that they were khewat giizar. Issue No. 6 was answered against the defendants. Under issue No. 7 it was held that the defendants could not specify their rights in shamlat unless shamlat land was partitioned and the respective rights of the superior owners and inferior owners were mutually determined. It was held that the defendants had some rights in the land but they could not assert themselves as exclusive owners thereof. Issue No. 7 was decided accordingly. Under issue No. 8 it was held that the possession of the defendants over the land was very old, therefore, this issue was decided in favour of the defendants. Under issue No. 9 it was held that since the plaintiffs were not yet exclusive owners of the land, therefore, they could not claim decree for possession as a consequence thereof the suit of the plaintiffs was dismissed through judgment dated 1.5.1958. The learned trial Court also observed that he could not pass decree for ejectment against the defendants who though also were not entitled to retain possession as there was no such prayer made by the plaintiffs. 2. Feeling aggrieved the respondents/plaintiffs filed appeal before the learned lower appellate Court against the judgment and decree of the learned trial Court whereas Gulsher one of the defendants filed cross objections challenging the findings on some of the issues recorded agianst the defendants. The appeal of the plaintiffs and the said cross-objections were taken up together. The learned lower appellate Court through judgment dated 20.1.1959 dismissed the suit of the plaintiffs for possession but at the same time held that the defendants having no right to retain possession, therefore, a decree for ejectment was passed against the defendants with the direction that the defendants be ejected therefrom. The cross objections filed by Gulsher were dismissed. The learned lower appellate Court in its impugned judgment held that the defendants were Adna Maliks in the village but since they did not take possession of the land in dispute with the consent of Aala Malkan, therefore, they could not be regarded as Adna Malkan of the land in dispute on account of which they had acquired some right in the land as Adna Malkan, therefore, the plaintiffs were not entitled to a decree for possession. 3. I have heard learned counsel for both the parties. Learned counsel for the respondents/plaintiffs did not challenge during the arguments the findings of the two Courts below that the possession of the defendants/appellants over the land in dispute was very old. The learned lower appellate Court did not recognize the defendants as Adna Maliks of the land in dispute merely on the ground that they did not take possession of the land and brought it under cultivation with the consent of Aala Malkan i.e., the plaintiffs though they were held to be Adna Malkan in the village. In my view the learned two Courts below have not determined the question of taking consent for bringing the land under cultivation from correct point of view. A consent can be expressed and it can also be implied which can be gathered from the conduct of the parties. Since the defendants/appellants were admittedly in possession of the land in dispute since long and cultivating it, therefore, in the absence of any evidence on the record produced by the respondents/Ua/a Malkan that they ever objected to the possession of the appellants who were Adna Malkan in the village during all this period is a conduct from which it can safely be presumed that they impliedly gave' consent to the defendants to occupy the land and cultivate it. It has been held in Mitha and others Vs. Ghulam Hussain and others (PLD 1949 Lah: 86) that Aala Malkan could not refuse to give consent or refuse to receive haq malkana of Rs. 1/12/-. The land in dispute admittedly being shamlat land and there being no discretion vesting in the Aala Malkan (to) withhold consent to take possession and cultivate the land or to refuse to accept haq malkana therefore, their silence over the right of the defendants to occupy the land and cultivate it is sufficient to hold that their possession was with implied consent of the Aala Malkan, as such, the defendants/appellants were Adna Malkan of the land in dispute. The finding of the two Courts below to the contrary is not sustainable, therefore, is set aside. It is held that the respondents at the most were entitled to haq malkana and could not dispute or deny the status of the appellants as Adna Malkan of the land in dispute having been occupied by them with the implied consent of Aala Malkan who brought it under cultivation without any objection. The appellants could neither be dis-possessed nor ejected from the land in dispute. 4. For the foregoing reasons this appeal is accepted. The judgments and decrees of both the Courts below are set aside. The suit filed by the respondents is dismissed with no order as to costs. (MBC) Appeal accepted

PLJ 1991 Lahore 93 PLJ 1991 Lahore 93 Present: IHSAN-UL-HAQ CHAUDHARY, J MUHAMMAD ALI BHATTI --Appellant versus STATE LIFE INSURANCE CORPORATION OF PAKISTAN-Respondent S.A.O. No. 21 of 1990, dismissed on 12.9.1990 Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 15(6)-Tenant-Ejectment of-Second appeal-Whether maintainable-­ Question of-It is clear from Section 13(2)(vi) and 13(3)(ii) of Ordinance that "rented land" has been separately dealt with-it is not part of "non-residential building"-Held: Tenant of a rented land cannot maintain a second appeal in High Court on force of amended sub-section (6) of Section 15 of Ordinance-­Held further: It is settled law that appeal is a creature of statute, and until and unless it is specifically and clearly provided by law, same cannot be maintained-Appeal dismissed. [P.95&96]A,B&C PLJ 1975 SC 331, PLD 1969 Lahore 636, AIR (29) 1942 Lahore 201, AIR 1935 Privy Council 5, AIR 1925 Allahabad 380 and AIR 1974 SC 1126 rel. Mr. M. Saleem Akhtar, Advocate for Appellant. Date of hearing: 12.9.1990 judgment This is second appeal filed by the tenant against an ejectment order passed by appellate authority. The relevant facts are that the respondent let out an open piece of land measuring 5' x 5' out of its premises situated at 4-Lytton Road, Lahore. The land was let out at a monthly rent of Rs. 25/- for cycle repair purposes. The respondent filed an ejectment petition under Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance of 1959) in respect of this 'rented land'. The appellant resisted the same. The learned Rent Controller framed issues, recorded evidence and after hearing the arguments dismissed the ejectment petition vide order dated 4.1.1990. The respondent impugned this order through an appeal before the appellate authority. The same was accepted vide order dated 8.7.1990. The appellant has challenged this last order through this second appeal. 2. The learned counsel for the appellant was directed to show how the second appeal is competent? The learned counsel for the appellant submitted that sub-sections (6), (7) and (8) of Section 15 of the Ordinance of 1959 were substituted by Punjab Ordinance X11I of 1990. The appeal is competent under Section 15 sub-section (6), which reads as under: "(6) In the case of a "non-residential building", a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court." 3. It is evident from bare reading of the above noted provision that argument advanced on behalf of the appellant in support of the proposition that appeal is competent is without any merit. The proposition becomes further clear if the reference is made to the legislative changes brought in the Ordinance and more particularly Section 15 are taken into consideration. The Ordinance originally provided for a second appeal to the High Court but Section 15 was redrafted and as a result thereof two major amendments were introduced:- Firstly, right of second appeal was taken away; and Secondly, the interim order under sub-section (6) of Section 13 determining approximately the amount of rent due or the rate of rent were made non-appealable. The amended provision remained in force till promulgation of Ordinance XIII of 1990, through which Sections 4 and 5 were amended while Section 5-A was added and sub-sections (6), (7) and (8) of Section 15 were substituted. It is clear from this Ordinance that all the amendments were brought in respect of "non-residential building" whereas the Restriction Ordinance deals with following four categories of the properties:- i) 'Non-residential building' which has been defined in Section 2(d); ii) 'Rented land', which has been defined in Section 2(f); iii) 'Residential building', which has been defined in Section 2(g); and iv) 'Scheduled building', which has been defined in Section 2(h). The 'scheduled building' is infact a species of 'residential building' but for ejectment grouped with 'Non-residential building'. It is clear from the Ordinance XIII of 1990 that the amendments have been brought only in respect of the 'nonresidential building'. The same is the position of sub-section (6) of Section 15 as reproduced above. The key words are 'non-residential building', which have been underlined by me to make it prominent. This is in-contradiction to sub-section (4) of Section 15 of the original statute, according to which second appeal was competent without any specification of the property. 4. The grounds of ejectment for all sorts of properties covered by the Ordinance are detailed in Section 13 of the Ordinance of 1959. It is clear from clause (vi) of sub-section (2) and sub-section (3)(ii) of the Ordinance 1959 that 'rented land' has been separately dealt with. It is not part of ' Non-residential Building ', therefore, a tenant of a 'rented land' cannot maintain a second appeal in the High Court on the force of amended sub-section (6) of Section 15 of the Ordinance of 1959. 5. It is settled law that the appeal is a creature of statute and until and unless it is specifically and clearly provided by law, the same cannot be maintained. The right of appeal must be established within four corners of law and cannot be assumed. I am fortified in my view by the judgment of Hon'ble Supreme Court in the case of Ibrahim vs. Muhammad Hussain (PLJ 1975 S.C. 331). Incidently this was a case under Rent Restriction Ordinance, where the tenant denied the relationship and accordingly Rent Controller framed preliminary issue as to the existence of relationship of landlord "and tenant. The issue was decided in favour of the landlord. The first appeal of the tenant was dismissed by the appellate authority while second appeal was dismissed by this Court. The Hon'ble Supreme Court dismissed the petition of the tenant holding that no appeal was competent against the decision of the preliminary issue. The relevant portion reads as under:- "It is well settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a court for its consideration. The right is expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a priori ground. This is in sharp contrast with the right to sue. A litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necesssary implication barred by a statute to the contrary. Therefore, in respect of any order made in proceedings before the Rent Controller, right of appeal will have to be clearly established within the four corners of sub-section (1) of Section 15 of the Ordinance." A reference in this behalf also can be made to the cases of Bahadur vs. Mirza Abdul Qayyum and another (PLD 1969 Lahore 636), Dr. Kishan Singh vs. Bachan ingh and others (AIR (29) 1942 Lahore 201), Ohene Moore vs. Akesseh Tayee (AIR 1935 Privy Council 5), Abdul Rehman vs. Abdul Rehman (AIR 1925 Allahabad 380) and Smt. Ganga Bai vs. Vijay Kumar and others (AIR 1974 S.C. 1126). 6. The upshot of this discussion is that this appeal is dismissed as incompetent. However, the appellant is at liberty to impugne the order of the appellate authority through Constitutional petition. (MBC) Appeal dismissed

PLJ 1991 Lahore 96 PLJ 1991 Lahore 96 Present: MUNIR A. SHEIKH, J Haji LADHOO etc.,-Petitioners versus MEMBER (REVENUE) BOARD OF REVENUE etc.,-Respondents Writ Petition No. 5168 of 1983 (also W.P. Nos. 1221 of 1969,1226 of 1967 and 5169 of 1983), dismissed on 29.7.1990 (i) M.L.R. 1964-- —Para 22-Rights of Aala Maliks-Abolition of~Whether names of petitioners were rightly removed from column No. 3-Question of-A bare reading of para 22 shows that all intermediary interests like Aala M ikiyat and similar other interests stood abolished without payment of any compensation to any person who was affected by such abolition-By operation of para 22, rights of petitioners as Aala Maliks stood automatically abolished—Held: Revenue Authorities did not commit any illegality in removing their names from column No. 3 wherein they were recorded as owners in capacity of Aala Maliks [Pp.99,100&101]A&B (ii) M.L.R. 64- —Para 22-Rights of Aala Maliks-- Abolition of—Who should get compensation for acquired land—Question of—There being a serious dispute between parties regarding ownership of Shamlat land, Member, Board of Revenue was justified in passing order for excluding land in dispute from purview of consolidation—In view of finding that entire proprietory body of village was rightly held to be entitled to land in dispute, consolidation proceedings and orders passed therein, are of no legal effect-Held: Said compensation would be paid to all persons to whom land would go according to their possession- Petitions dismissed. [P.101]C&D M/s Raja Muhammad Anwar and M. Javed Buttar, Advocates for Petitioners. Rana Muhammad Arshad, Addl: A.G. for Respondents 1 to 4 M/s S.M. Zafar and Syed Zahid Hussain, Advocates for other Respondents. Dates of hearing: 30.5.1990, 3,4,5,6,12,13,24,25,26 and 30.6.1990, 1,2,8,9,10 and 11.7.1990. judgment This judgment will also dispose of Writ Petition No. 1221 of 1969, 1226 of 1967 and 5169 of 1983 as common questions of law and facts are involved therein. 2. The dispute relates to land measuring 96000 kanals comprising khata No. 304 of village Doggar Aulakh Tehsil and District Bhakkar which is admittedly Shamlat land. The petitioners Sullah etc. were Aala Malkan. On 13.6.1962 a mutation was sanctioned in favour of these Aala Malkan in respect of this entire land. Malik Sher etc. respondents No. 4 to 9 filed an appeal before the Collector (Consolidation) who by order dated 28.1.1967 accepted the same and remanded the case to the Revenue Officer for fresh order. This order was challenged by the petitioners by filing appeal before the Addl: Commissioner (Revenue) which was dismissed by order dated 28.4.1967. After remand the Revenue Officer through order dated 1.6.1967 sanctioned mutation again in favour of the petitioners. Respondents No. 4 to 9 filed appeal before the Collector. During the pendency of this appeal on the other hand the consolidation operation had also started. The respondents/appellants made an application for an order staying the consolidation proceedings. The Collector through order dated 6.11.1967 stayed the consolidation proceedings. The present petitioners felt aggrieved and filed an appeal against the said order before the Addl: Commissioner (Revenue). This appeal was accepted by the Addl: Commissioner (Revenue) through order dated 15.2.1968 ex-parte and the order dated 6.11.1967 slaying consolidation proceedings was vacated. Malik Sher etc. made an application to set aside the said ex-parte order which application was rejected by the Addl: Commissioner through order dated 22.2.1968. Malik Sher etc. filed revision petition before the Member, Board of Revenue which was accepted through order dated 10.7.1969 and the order dated .11.1967 staying consolidation proceedings was restored. The entire khata No. 304 regarding shamlat land was excluded from the purview of consolidation. This order has been challenged by the petitioners in W.P. No. 1221/1969. During the pendency of this writ petition through an interim order the authorities were permitted to carry on consolidation proceedings. In consolidation proceedings the entire khata No. 304 was given to the petitioners who were Aala Malkan. A mutation No.1808 of partition as a consequence thereof was sanctioned in their favour on 24.8.1969. 3. On the other hand the Collector accepted the appeal of respondents No. 4 to 9 against the order dated 1.6.1967 through which mutation No. 1655 regarding this land was sanctioned in favour of the petitioners i.e., Aala Malkan through order dated 19.9.1970 and the said mutation was set aside. It was held that the words "shamlat deh" had been entered in the column where the names of Adna Maliks are always written and at the same side in the column for the name of Aala Maliks the names of the respondents/petitioners had been written. It was ordered that the rights, of Sullah etc. in the "shamlat deh" as Aala Maliks should be extinguished according to Para 22 of MLR 64 read with Para 6(a) of the Notification dated 3.3.1960 and the land in question should be shown as "shamlat deh" in No. 5 meant for proprietors of land in the Jamabandi. The arguments of the petitioners that previously when some land was acquired by ihe TDA from the shamlat land the compensation was given to the petitioners as owners of the land were repelled with the reasons that after promulgation of MLR. 64 which extinguished Aala Malqiat rights these arguments had no force. Feeling aggrieved the petitioners filed appeal before the Addl: Commissioner Sargodha Division Sargodha which was dismissed through order dated 303.1971. It was held that shamlat dch had been entered in column No. 5 as Adna Maliks and it could not be concluded that no Adna Malik was entered under the petitioners and the removal of the petitioners'name from column No. 3 was in accordance with Para. 22 of MLR. 64 through which intermediary interests such as Aala Malqiat were extinguished without any compensation. The petitioners filed revision petition before the Member, Board of Revenue which was dismissed through order dated 20.5.1982. A review petition was filed by the petitioners which was also dismissed by order dated 18.5.1983. W.P. No. 5168 of 1983 has been filed against these orders passed by the revenue authorities in respect of mutation No. 1655. 4. The facts regarding W.P. No. 1226 of 1967 briefly stated are that on 21.6.1957 through mutation No. 1252 TDA acquired land measuring 463% kanals 15 marlas comprising khata No. 304 which is the khata in dispute. On 29.6.1957 another mutation No. 1253 was sanctioned in which this acquired land was mutated in the name of TDA which was shown Aala KJrud Adna Malik of the same and through mutations Nos. 1328, 1340, 1324, 1350, 1354, 1370, 1371, 1441, 1462, 1466, 1471, 1690 and 1692 an area measuring 50686 kanals 1 marla was excluded from village Doggar Aulakh and new Chaks were carved out as Nos. 22, 25 to 29, 31,178,180,181 and 182/TDA and 53 ML. The remaining area of 96378 kanals 18 marlas remained in Bairun Block. It may be mentioned here that the total land in khata No. 304 was measuring about 147000 kanals. After excluding the area acquired by the TDA the dispute is regarding land measuring about 96000 kanals. On 20.8.1952 the Land Acquisition Collector Thai Development Authority delivered award regarding compensation of land acquired by the TDA. It was ordered that the amount of compensation be deposited in the Government Treasury because there was dispute between Aala Maliks and Adna Maliks regarding entitlement of the compensastion. On 10.11.1960 EA.C.O. Bhakkar passed an order that Aala Maliks were the sole owners. This was appealed against before the Colonization Officer Bhakkar which was dismissed through order dated 2.10.1962. A further appeal was filed before the Chairman TDA which was also dismissed on 3.4.1963. However, on 26.8.1963 the Land Acquisition Collector amended the award. A revision petition was filed before the Member. Board of -" Revenue which was accepted through order dated 28.2.1967. The Member, Board of Revenue set aside the orders passed by the Chairman TDA, Consolidation Officer and the EA.C.O. and restored the award made by the Collector. It was held that the parties would be at liberty to seek whatever legal remedy may be available under the TDA Act, or any other relevant provisions of the Law or the Award. The Award given 'by the Land Acquisition Collector on 20.8.1952 through which the; amount of compensation was ordered to be deposited in the Government Treasury wes restored. This order has been challenged in W.P. No. 1226 of 1969. \ 5. The facts forming the background of dispute in W.P. NO. 5169 of 1983 are that an application was made on 25.3.1970 by Ghulam Hussain etc. regarding the preparation of Girdawari to the Deputy Commissioner, Mianwali, praying that the Girdawari should be prepared by the Colony Mahal Staff on the basis of Mahal record and not on the basis of consolidation record because this entire khata No. 304 had been exclueded from the purview of consolidation by the Member, Board of Revenue through order dated 10.7.1969. This application was accepted by the Deputy Commissioner by order dated 3.4.1970. The petitioners Ladhu etc. in this writ petition made an application on 6.4.1970 to the Deputy Commissioner for rescinding the order dated 3.4.1970. The Deputy Commissioner through order dated 9.4.1970 recalled the said order. Malik Sher filed an appeal before the Addl: Commissioner which was accepted and the case was remanded to the Deputy Commissioner. After the remand the Deputy Commissioner passed an order on 26.9.1970 directing that the stay order granted by the Addl: Commissioner against consolidation proceedings should be implemented, the consequence of which was that the Girdawari which was being prepared by the consolidation staff was stopped and the revenue staff started preparing the Girdawari. The petitioners filed appeal before the Commissioner Sargodha Division Sargodha against the said order which was rejected through order dated 17.3.1971. The petitioners filed revision petition before the leanred Member, Board of Revenue which was dismissed through order dated 20.5.1982. A review petition filed by the petitioners for review of the said order passed by the Member, Board of Revenue was also dismissed on 18.5.1983. W.P.No. 5169 of 1983 is directed against these orders passed in respect of preparation of Girdawari by the revenue staff instead of consolidation staff. Learned counsel for the petitioners argued that the petitioners being Aala Maliks and there being no Adna Maliks under them, therefore, they are the full proprietors of the entire Shamlat land comprising khata No. 304 measuring 96000 kanals. The argument is based on Para 6(d) of Notification dated 3.3.1960 issued by the Land Commission Authorities. In order to fully appreciate the argument addressed by learned counsel for both the parties based on the provisions of Para. 22 of MLR. 64 and the said Notification, it will be useful to reproduce in extensor the said Para 22 and Para 6(d) of notification dated 3.3.1960. Para 22 of MLR. 64 reads as undcr.- " Para . 22 Intermediary interests. Ala-milkiat, and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by. or paid to. any person affected by the abolition." Para 6(d) of Notification dated 3.3.1960 reads as under:- "6(d). Where a person is entered as ala malik, as well as adna malik or where land is held only by an ala malik and there is no adna malik under him the ala malik shall be considered as full proprietor and the entries in the revenue records shall be corrected accordingly." A bare reading of Para 22 of MLR 64 shows that all intermediary interests' like Aala Milkial and similar other interests subsisting immediately before the commencement of the said Regulation stood abolished without payment of any compensation to any person who was affected by such abolition. By operation of Para 22 the rights of the petitioners as Aala Maliks stood automatically abolished, therefore, the revenue authorities did not commit any illegality in removing the names of the petitioners from column No. 3 in which they were recorded as owners in the capacity of Aala Maliks. 8. The question still remains to be decided whether under Para 6(d) of Notification dated 3.3.1960 the petitioners were entitled to claim full proprietorship of the land even after abolition of intermediary interests. Para 6(d) as is manifest from its reading was applicable where there were no Adiia Maliks under the Aala Maliks. It has been held by the Commissioner Sargodha Division in his impugned order dated 30.3.1971 that shamlat deli were entered in column No. 5 meant for Adiia Malik, as such, it could not be concluded that no Adna Malik was entered under the petitioners. Learned counsel for the petitioners when questioned as to how in view of this finding and the entry in column No. 5 of shamlat deh as Adna Malik it could be maintained by the petitioners that there were no Adna Malik, learned counsel maintained that the entries in column No. 5 of shamlat deh as a matter of fact relate to show discription of land and they do not mean that the entire proprictory body of the village was to share the shamlat land as Adna Maliks. The argument of the learned counsel for the petitioners in my view has no substance. Column No. 5 as observed by the revenue authorities is meant for Adna Maliks. The entries showing the land as shamlat deh means that the entire proprietory body of the village was treated and considered to be Adna Maliks, therefore, it could not be arguned that the petitioners were full proprietors ot the entire land by virture of Para 6(d) of Notification dated 3.3.1960 on the ground that there were no Adna Maliks under them. It may also be mentioned here that in the year 1941 Aala Maliks i.e., Sullah etc. filed number of suits for possession and ejectment against Aala KJiud Adna Maliks. The matter went up to the High Court. Mr. Justice Mahajan recorded a finding that the plaintiffs ( Ala Maliks) were not the exclusive owners of the Shamlat and that the defendants ( Ala Klnid Adna) are not tenants at will under them and that the plaintiffs could not exercise rights of absolute ownership in the matter of dispossessing the defendants from these lands. In the said case the trial Court passed decree for possession in favour of Aala Maliks in the suits filed by Aala Maliks. It may be pertinent to note here that all the defendants did not file appeals before the High Court, therefore, the decree passed against the defendants in those suits in which appeals were filed only were set aside. The petitioners made an application for execution of decree against those defendants who did not file appeal and the decree was passed in suits filed against them but this Court ultimately rejected the said application for execution on the ground that under Para. 22 of MLR. 64 Aala Milkiat rights stood extinguished. The judgment delivered by Mr. Justice Mahajan was maintained and upheld in further appeal by the Division Bench of this Court which is reported as Mitha Vs. Ghulam Hussain (PLD 1949 Lah. 82). In the presence of Aala Kliud Adna Maliks, Adna Maliks in the village it could not be argued that the petitioners as Aala Maliks were the full propietors of shamlat land. The petitioners as all others would be entitled to retain land as full proprietors which is in their respective possession and cultivation. In Ghulam Haider Vs. Ghulam Raza Shah (PLD 1979 Lah: 481) it has been observed as under:- "Ala Malkiat rights already stood abolished on 7.2.1959 when MLR 64 was enforced. The dual proprietorship was finished. Thereafter the proprietorship vested in the owner in actual possession of the area". 9. In view of the above discussion the orders passed by the revenue authorities for removal of the names of the petitioners as Aala Maliks in view of |Para. 22 of MLR 64 is unexceptionable. The revenue authorities have not committed any illegality, therefore, the impugned orders do not suffer from any jurisdictional defect calling for interference by this Court in Constitutional jurisdiction. Since there was dispute between the parties regarding ownership of shamlat land which was serious in nature, therefore, the learned Member, Board of Revenue was legally justified in passing the order for excluding the land in dispute from the purview of consolidation. The order in this regard is perfectly valid which does not suffer from any legal defect. The consolidation of land and its partition in pursuance of interim order of this Court would be of no effect because the same has been done on the basis that the petitioners were the full proprietors of the land to the exclusion of others. In view of my finding that the entire proprietor, body of village was rightly held to be entitled to the land in dispute, therefore, the consolidation proceedings and orders passed therein arc of no legal effect. Since through a valid order the learned Member, Board of Revenue, excluded the land in dispute from the purview of consolidation operation, therefore.it was rightly held that the Girdawari should be prepared by the Mahal Staff. Likewise it was rightly held that the compensation of the acquired land should be deposited in the Government Treasury instead of paying it to the petitioners who claimed to be the exclusive owners of the land till such time the dispute was settled. The said compensation would be paid to all the persons to whom the land would go according to their possession as it has been held that the entire proprietory body of the village is to share the land. For the foregoing discussion there is no merit in all these writ petitions I which are hereby dismissed with no order as to costs. ' (MBC) Petitions dismissed

PLJ 1991 Lahore 101 PLJ 1991 Lahore 101 Present: M. M.MIBOOB AHMAD, J. MUHAMMAD BANARAS --Petitioner versus CHAIRMAN. UNION COUNCIL. CHAK MALAK, TEHSIL AND DISTRICT CHAKWAL AND 2 others-Respondents Writ Petition No.44 of 1990, dismissed on 2.6.1990. (i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)-- —S.9--Maintcnance—Grant of—Application for—Whether descripton of designation of officer who decided revision petition as Deputy Commissioner/Controlling Authority would render his order as invalid or coram nom jitdicc--Qucs,l\on of-It is well settled that quoting of a wrong law or giving a wTong description of authority making an order will not invalidate order especially when authority making order is holding a mumber of offices- Legitimate criteria is to see whether contents of order in question show full application of mind by authority deciding case and whether it has resolved real controversy between parties-Held: If this criteria stand fulfilled in a given case, misdescription as to designation or quoting of wrong law cannot e held fatal and ought not be allowed to impede real intent and concept of justice- Held further: In this case order cannot be held to be suffering from a fatal infirmity on above criteria. [Pp.l05&106]C,D&E (ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961) —-S.9 read with Constitution of Pakistan, 1973, Article 199-Maintenance- Grant of-Application for-Whethcr objection about heading of Arbitration Council by respondent No.l could be raised for first time in constitutional petition-Question of-This objection has been neither raised by petitioner in his reply to application before respondent No.l nor any such question was agitated during proceedings before Arbitration Council-Again said objection was neither taken in grounds of revision nor it was urged before Revisional Authority at time of hearing-Held: It is too late in the day to allow such a plea to be raised in constitutional jurisdiction—Petition dismissed. [Pp.l06&107]F&G (iii) Muslim Family Laws Ordinance, 1961 (VIII of 1961) —S.9(l) read with West Pakistan Family Courts Act, 1964, Sections 5 and 21- Maintenance-Grant of-Application for-Whcther application could not be made after withdrwal of suit from Family Court—Question of—There was no impediment in way of respondent No.3 in making application under Section 9(1) of Ordinance as she could make such an application in addition to seeking any other legal remedy available to her-Entitlement of a wife to avail of remedy under Section 9(1) has been given further protection by Sections 5 and 21 of West Pakistan Family Courts Act-Held: Withdrawal of suit for maintenance by respondent No.3 from Family Court before filing of application would not render latter application as incompetent or be an estoppel from claiming maintenance. [Pp.l04&105]A (iv) Muslim Family Laws Ordinance, 1961 (VIII of 1961) —S.9(l)--Maintenance--Grant of—Application for—Whether past maintenance could not be allowed—Question of—Tenor of language used in Section 9 of Ordinance, in no manner even impliedly imports that maintenance allowable to a wife is future maintenance only and that jurisdiction to allow past maintenance has not been conferred thereunder-Held: Wife cannot be deprived of past maintenance which otherwise may be permissible to her, of course keeping in view prescription of limitation etc. [P.105]B PLD 1968 Lahore 93 rel. Mr. Manzoor Ahmad Rana, Advocate for Petitioner. Ch. Inavatullah Kiian, Advocate for Respondent No.3 Date of hearing: 2.6.1990. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question orders dated 14th of June, 1989 and 25th of October, 1989, respectively passed by respondents Nos. 1&2. By the first order respondent No.l allowing the application of respondent No.3 awarded past maintenance to her for the period of 2 1/2 years at the rate of Rs.300/- per month, whereas by the second order the Deputy Commissioner, Chakwal dismissed the revision of the petitioner filed against the aforementioned order of respondent No.l. 2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner was married with respondent No.3 who, alleging desertion, filed a suit against the petitioner before the Judge Family Court, Chakwal for maintenance at the rate of Rs.500/- per month for her and Rs.300 per month for her son as also for recovery of Rs.24000/- being the past maintenance and the expenses incurred in the delivery of the child. On 6.10.1988 the counsel for respondent No.3 made a statement before the Court that since she has filed a suit for dissolution of marriage, she wants to withdraw the suit for maintenance whereupon the Family Court, Chakwal dismissed the said suit as withdrawn. 3. Respondent No.3 thereafter filed an application before respondent No.l on 23.10.1988 claiming past maintenance for her alone at the rate of Rs.300/- per month for the past period of 2 1/2 years. This application was resisted by the petitioner. Respondent No.l constituted an Arbitration Council before whom proceedings were taken and ultimately by order dated 14th of June, 1989, the application of respondent No.3 was allowed and a decree for Rs.9000/- was passed in her favour and against the petitioner. 4. The petitioner feeling aggrieved of the aforementioned order dated 14 th of June, 1989 preferred a revision before the Deputy Commissioner, Chakwal who hy his order dated 25th of October, 1989 dismissed the same. 5. The petitioner still feeling dissatisfied has come up to this Court in the present constitutional petition. 6. The learned counsel for the petitioner has raised the following contentions:- (1) That respondent No.3 having withdrawn her suit for maintenance from the Family Court, her application before respondent No.l was not competent and she was estopped from claiming the maintenance as she abandoned her claim by withdrawal of the first suit; (2) That the maintenance for a past period cannot be granted by the Arbitration Council; (3) That respondent No.2 decided the revision as Controlling Authority whereas he should have decided it as a Collector as required by the Muslim Family Laws Ordinance, 1961; (4) That the quantum of maintenance viz. Rs.300/- per month has been fixed without inquiry and arbitrarily; and (5) That respondent No.l having been the counsel of respondent No.3 in the Family Court should not have headed the Arbitration Council. 7. On the contrary, the learned counsel for respondent No.3 contended:- First, that the application is in no manner barred on account of withdrawal of the suit for maintenance; Secondly, that Section 9(1) of the Muslim Family Laws Ordinance, 1961, under which the application had been filed by respondent No.3 before respondent No.l for grant of past maintenance, has an overriding effect and, therefore, the application of respondent No.3 was competent before respondent No.l; and Lastly, that Section 9(1) of the Muslim Family Laws Ordinance, 1961 gives a right to respondent No.3 to make an application before the Arbitration Council for grant of past maintenance. 8. I am afraid the contentions raised on behalf of the petitioner do not have any force. Since the first contention of the learned counsel for the petitioner can be resolved after consideration of Section 9(1) of the Muslim Family Laws Ordinance, 1961 and Sections 5 and 21(1) of the West Pakistan Family Courts Act, 1964, the said provisions are reproduced hcreunder for facility of ready rcfcrence:- SECTION 9 OF THE MUSLIM FAMILY LAWS ORDINANCE, 1961 "9. Maintenance. (1) If any husband fails to maintain his wife adequately or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives may in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband." SECTION 5 OF THE WEST PAKISTAN FAMILY COURTS ACT, 1964 "5. Jurisdiction. Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Coun shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." SECTION 21 (1) OF THE WEST PAKISTAN FAMILY COURTS ACT, 1964 "21. Provisions of Muslim Family Laws Ordinance to be applicable. (1) Nothing i:i this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the rules framed thereunder " A perusal of Section 5 and 21 of the West Pakistan Family Courts Act, which enactment is of a later date viz. 18.7.1964, shows without any ambiguity that the provisions of the Muslim Family Laws Ordinance, 1961, an earlier statute, were intended to be kept intact and in fact were given an overriding and in any case supplemental effect to the provisions of any other statute on the subject. On a ' onjunctive reading of the aforementioned provisions of the two rrelevant statutes it also clearly emerges that there was no impediment in the way I of respondent No.3 in making an application under Section 9(1) of the Muslim

Family Laws Ordinance, 1961 as she could make such an application for allowing : maintenance to her in addition to seeking any other legal remedy available to her lor the purpose. The entitlement of a wife to avail of the remedy under Section |9(1) ibid has been given further protection by Sections 5 and 21 ;>!' the West Pakistan Family Courts Act, 1964. Section 5 of the West Pakistan Family Courts Act, 1964 subjects the exclusive jurisdiction of Family Courts regarding matters specified in the Schedule, item 3 of which is maintenance, to provisions of Muslim Family Laws Ordinance, 1961. Again Section 21 of the West Pakistan Family Courts Act, 1964 provides that nothing contained in the Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961 or the rules framed thereunder. The withdrawal of the suit for maintenance by respondent No.3 from the Family Court before filing of the application by her before respondent No.l would, therefore, not render the latter application as incompetent or for that matter be an estoppel against respondent No.3 from claiming the maintenance. The first contention of the learned counsel for the petitioner thus fails. 9. Taking up the second contention raised by the learned counsel for the petitioner, it would be observed that the tenor of the language used in Section 9 of the Muslim Family Laws Ordinance, 1961 in no manner even impliedly imports that maintenance allowable to a wife is the future maintenance only and that the jurisdiction to allow past maintenance has not been conferred thereunder. In "Rashid Ahmad Klian versus Mst. Tasnitn Am and others" reported as PLD 1968 Lahore 93 following an earlier judgment in "Sardar Muhammad versus Mst. Nasima Bibi and others" reported as PLD 1966 (W.P.) Lahore 703 it has been held that the husband's obligation to maintain his wife commences simultaneously with the creation of marital bond and being an obligation and not an exgratia grant it is enforceable even with respect to the past period of marital life although the same was not claimed during that period by the wife subject, however, to considerations of limitation and circumstances of the case itself. The enunciation of Section 9 of the Muslim Family Laws Ordinance, 1961 as aforestated to me also appears to be the only one which can be realistically made and no other interpretation of this Section is possible so as to deprive a wife from claiming past maintenance which otherwise may be permissible to her of course keeping in view the prescription of limitation etc. The second contention in view of the above discussion has, therefore, no merit. 10. The designation of the Officer who decided the revision of the petitioner having been given as Deputy Commissioner/Controlling Authority instead of Collector or for that matter the subject of the order having been shown as a revision under Section 8 of the Conciliation Courts Ordinance, 1961 cannot be held to be so fatal as to make the said order of the Revisional Authority wholly invalid or coram non judice. It is well settled that the quoting of a wrong law or giving a wrong description of the Authority making an order will not invalidate the order merely on the grounds stated above, especially when the Authority making the order is holding a number of offices as is the case in hand in that the Deputy Commissioner apart from this position holds the office of a Collector as also of the Controlling Authority under the provisions of Conciliation Courts Ordinance, 1961. Legitimate criteria which can be laid to determine validity or otherwise of an order in such a situation to my mind appear to be to see whether the contents of the order in question show the full application of mind by the Authority deciding the case and whether it has resolved the real controversy between the parties. If the above criteria stand fulfilled in a given case, the misdescription as to designation or quoting of a wrong law cannot be held to be fatal and ought not be allowed to impede the real intent and concept of justice for if it be held otherwise this would only result in prolongation of litigation and multiplicity of proceedings which in the circumstances prevailing in our society today will add to the miseries of the people by adding to the large pendency of litigation between the parties which is a consistent source of delay in disposal of cases and thus a set back to the expeditious dispensation of justice which at times results in defeating the ends of justice. Such a situation of necessity and for betterment of the society has to be avoided as far as practicable. In the case in hand a perusal of the impugned order of the Revisional Authority shows a complete and full application of mind to the facts of the case and also to the law applicable to the controversy. On tbe criteria hereinabove stated the order cannot be held to be suffering from a fatal infirmity. The third contention of the learned counsel for the petitioner also, therefore, fails. Before parting with this aspect of the matter I feel it necessary to impress upon the forums charged with the statutory duties of deciding lis and causes of parties to exercise extra care and caution while delivering judgments and passing orders so that such discrepancies and lacunas do not creep in their decisions. Neglect in this respect not only always causes complications but also promotes litigation which in the ultimate entails waste of valuable national time that can be used in more productive avenues. A copy of this order should be sent to the Deputy Commissioner, Chakwal for his future guidance. 11. Likewise the fourth contention of the learned counsel for the petitioner aslo cannot be sustained in that a comparative reading of the application made by respondent No.3 before the Arbitration Council and the reply thereto filed by the petitioner would show that the quantum of maintenance at the rate of Rs.300/- per month was never specifically disputed by the petitioner. Again in the prceedings before the Arbitration Council the quantum of maintenance was reduced into an issues (issue No.iii) which reads as under:- and on this issue a finding was recorded by respondent No.l to the effect that the petitioner's financial position according to the material on record can bear the maintenance as claimed by respondent No.3. This finding on a question of fact has also been affirmed by the Revisional Authority. Being a concurrent finding on a question of fact arrived at by Tribunals of exclusive jurisdiction, the same cannot be allowed to be challenged in the constitutional jurisdiction of this Court. There can be no cavil to the firmly established principle that controversies ol tacts are not fit subjects for resolution through constitutional jurisdiction of this Court. 12. Adverting now to the last contention raised on behalf of the petitioner, I suffice by observing that objection as to the heading of the Arbitration Council by respondent No.l has been neither raised by the petitioner in his reply to the application before respondent No.l nor any such question was agitated during the proceedings before the Arbitration Council. Again the said objection was neither taken in the grounds of revision before the Revisional Authority nor it was urged before the said Authority at the time of hearing. In the aforementioned circumstances it is too late in the day to allow such a plea to be raised in the constitutional jurisdiction of this Court. The last contention also, therefore, fails. 13. In view of the foregoing discussion this writ petition being without merit is dismissed. There will, however, be no order as to costs. (MBC) Petition dismissed

PLJ 1991 Lahore 107 PLJ 1991 Lahore 107 Present: MUHAMMAD MUNIR KHAN J. MUHAMMAD HUSSAIN and 4 others-Petitioners versus MEHR DIN and another-Respondents . Civil Revision No.1881 of 1990, dismissed on 26.9.1990. Civil Procedure Code, 1908 (V of 1908) —S.47 read with Section US-Pre-emption suit-Decree passed in-Less deposit of decretal amount-Objection for dismissal of execution petition-Rejection of objection-Challenge to-Since trial court had allowed decree-holders to deduct mortgage amount of Rs.1000/-, therefore, by depositing Rs.13000/- as sale price, they have fully complied with order of court and question of dismissal of suit for non-compliance of direction for deposit of sale price, does not arise—Held: Impugned orders do not suffer from any irregularity or material defect-Petition dismissed. [P.108JA&B Ch. Muhammad Faiz KJiaral, Advocate for Petitioners. Date of hearing: 26.9.1990. order The facts leading to this revision briefly are that Mehr din and Allah Rakha filed a suit for possession through pre-emption against Mohammad Hussain and four others, the petitioners, in the civil court. After trial, the suit was decreed subject to the payment of Rs.14,000/- after deducting fifth money already deposited and the mortgage money of Rs.1000/- by 28.5.75. Before this date, the respondents-plaintiffs deposited Rs.13,000/- and filed an application for the execution of the decree. Before the decree could be executed, the petitioners-defendants filed objection petition under Section 47 C.P.C. The application was resisted. Two issues were framed. The trial court dismissed the objection petition. The appeal filed by the petitioners against the order was dismissed by the appellate court on 9.6.90. Hence this revision. 2. Before me the learned counsel for the petitioners has contended that since the full sale price of Rs.14,000/- was not paid, therefore, the suit of the plaintiffs-respondents stood automatically dismissed and as such, the execution petition merits rejection. No other point has been raised before me. 3. I have considered the submissions made by the learned counsel with care. I do not feel persuaded to agree with him. I find that in the last para of the judgment the learned trial court has stated that: "On the basis of my findings above, I pass decree for possession of the suit land in favour of the plaintiffs against the defendants through right of pre-emption subject to payment of Rs.14000/- to the defendants. The plaintiffs are directed to deposit Rs.14000/- after deducting the fifth money if any and the mortgage money of Rs.1000/- by 28.5.75 failing which their suit shall stand dismissed with costs." Since the trial court had allowed the decree-holders to deduct mortgage amount of Rs.1000/-, therefore, by depositing Rs.13,000/- as sale price, they have fully complied with the order of the court and the question of the dismissal of the suit for non-compliance of the direction for the deposit of the sale price, does not arise. The impugned orders do not suffer from any irregularity or material defect. 4. Pursuant to the above discussion, the revision application is dismissed in limine. (MBC) Petition dismissed.

PLJ 1991 Lahore 108 PLJ 1991 Lahore 108 Present: MUHAMMAD MUNIR KHAN, J. Sardar TAHIR MAHMOOD-Appellant versus IKRAMUL HAQ-Respondent F.A.O. No.194 of 1990, dismissed on 15.9.1990. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX Rr.l & 2 read with Trade Marks Act, 1940, Section 20(2)-Suit for permanent injunction-Temporary injunction restraining respondent from using, marketing or publishing "Darsi Model Test Paper"--Prayer for- Rejection of—Challenge to—Whether discretion was properly exercised by trial court—Question of—Trial court applied its conscious mind to relevant provisions of law and came to conclusion that appellant has failed to make out a prima facie case; that balance of convenience was not in his favour; and that he was not likely to suffer an irreparable loss-Held: Trial court has exercised its discretion properly and has considered question of grant/refusal of temporary injunction in accordance with guiding principles laid down by superior courts-Appeal dismissed. [P.109JA&B Mr. Shehzad Shaukat, Advocate for Appellant. Date of hearing: 15.9.1990. order Sardar Tahir Mehmood petitioner filed suit for permanent injunction against Ikramul Haq respondent restraining him from using, marketing or publishing 'Darsi Model Test Paper', before the learned District Judge, Lahore which was entrusted to the learned Additional District Judge, Lahore. Alongwith the suit he filed application for temporary injunction for restraining the respondent from using, marketing or publishing 'Darsi Model Test Paper'. The application was dismissed by the learned Additional District Judge on 1.9.1990, hence this appeal. 2. Learned counsel for the appellant submitted that the trial Court has failed to consider the application for grant /refusal of temporary injunction in accordance with the guiding principles laid down by the Superior Courts; that the trial Court has unnecessarily discussed the merits of the case; that the trial Court has failed to appreciate correctly the provision of Section 20(2) of Trade Marks Act, 1940 and that the appellant/plaintiff was publishing 'Darsi Model Test Papers' for the last more than 20 years without any interruption and the respondent/defendant was "passing off his goods as that of the appellant. 3. I have considered the submissions made by the learned counsel with care I have not been able to persuade myself to agree with him. I find that the trial court has applied its conscious mind to the relevant provision of law and has come to the conclusion that the plaintiff/appellant has failed to make out a prima-facie case and that balance of convenience was not in his favour and he was also not likely to suffer an irreparable loss. The trial Court has given sound reasons in support of the conclusions arrived at by it. On my independent assessment, I do not see any reason to disagree with the findings of the trial Court. In his order, the learned trial Court has observed:- "I find that Darsi Model Test Papers are being issued by so many other publishers. A list of them is given in the written statement. None of those publishers including the contesting parties are registered owners of trade mark. Prima-facie I have to see if defendant sold the Test Papers as test papers belonging to plaintiff. Defendant did not admit that prior to the publication of plaintiff there was no publication in the market with the title assigned by plaintiff to his publication. I have compared different test papers published by different publishers. I hold the view that Test Papers with the disputed title are already in the market in addition to the test papers published by plaintiff. The learned counsel has not been able to controvert the aforesaid observations made by the trial Court. I find that the trial Court has exercised its discretion properly and has considered the question of grant/refusal of temporary injunction in accordance with the guiding principles laid down by the Superior Courts. Pursuant to the above discussion, the appeal fails and is dismissed in limine. (MBC) Appeal dismissed.

PLJ 1991 Lahore 110 PLJ 1991 Lahore 110 Present: MUHAMMAD MUNIR khan, J. Ch . IFTIKHAR AHMAD and another-Petitioners versus MUHAMMAD AYUB and 3 others-Respondents Civil Revision No.1943 of 1990, dismissed on 7.10.1990 Civil Procedure Code, 1908 (V of 1908) —S.115--Suit for recovery-Decree passed in-Challenge to-Whether there is any justification to interfere with concurrent findings of fact-Question of- Issue No.5 is an issue of fact—Courts below have concurrently found this issue against petitioners-No misreading/non-reading of evidence by courts below, is pointed out-Held: There being no illegality, material irregularity or jurisdictional defect in impugned orders, there is no justification to interfere in exercise of revisional power of High Court with well-reasoned orders of courts below-petition dismissed. [P.111JA&B Mr. BashirA. Ranjah, Advocate for petitioners. Date of hearing: 7.10.1990. order On 4.1.86, Mohammad Ayub and three others, filed suit for the recovery of Rs.22856/- against Ch. Iftikhar Ahmad and Ch. Mohammad Sharif petitioners, in the court of Senior Civil Judge, Gujrat. 2. It was averred in the plaint that Iftikhar Ahmad defendant had obtained Rs.32,000/- from them on the pretext of sending them abroad. On his failure to send them abroad, they (plaintiffs) demanded back their amount on which Ch. Mohammad Sharif defendant No.2 stood surety. Thereafter, defendant No.l made part payment but refused to pay the suit money. The defendants were duly served. They engaged Ch. Mohammad Munir Gondal, Advocate as counsel. Since the defendants-petitioners and their counsel did not appear before the trial court, so the suit was decreed against them ex-parte on 24.1.89. On 8.2.89, the petitioners filed application for setting aside the ex-parte decree. This application was contested and six issues were framed. Iftikhar Ahmad petitioner appeared as AW 1. He stated that he had engaged Ch. Muhammad Munir Gondal, Advocate as his counsel who told them that their appearance in the court was not necessary and that he would call them as and when their presence was required. He further stated that it was on 8.2.89 that he came to know about the ex-parte decree against him. He further stated that Mr. Mohammad Munir Gondal, his counsel had remained ill for sufficient time and as such, could not appear before the court. To rebut this evidence, the respondents-plaintiffs produced Ch. Mohammad Munir Gondal, the counsel of the petitioners as R.W.I, who stated that the defendantsrespondents neither contacted him nor had given any instructions, so he did not appear on the date of hearing. He further stated that he was present in the courts on 22.1.89 and 24.1.89. The learned trial court dismissed the application on 8.1.90. Feeling aggrieved thereby, the petitioners filed appeal which was dismissed by the learned Addl. District Judge, Gujrat on 27.6.90. Hence this revision. 3. Before me, the learned counsel for the petitioners has challenged the findings of the courts below on issue No.5 which is as unden- Issues No.5 Whether there are sufficient reasons to set aside the ex-pane decree dated 24.1.89? OPP The learned counsel for the petitioners submitted that Ch. Mohammad Munir Gondal, Advocate had told the petitioners not to attend the court on each and every date of hearing and that he would inform them as and when their attendance would be required in the court and that on 3.3.88 when the petitioners were ordered to be proceeded against ex-parte on account of their nonappearance, Ch. Mohammad Munir Gondal, Advocate/counsel for the petitioners was ill and as such, could not appear in the court and that the findings of the courts below suffer from misreading/non-reading of the evidence. 4. I have considered the submissions of the learned counsel for the petitioners with care. I have not been able to persuade myself to agree with him. I find that issue No.5 is an issue of fact. The courts below have concurrently found this issue against the petitioners. Ch. Mohammad Munir Gondal, Advocate, has not supported the petitioners. The learned counsel has not been able to point out any misreading/non-reading of the evidence by the courts below. I do not see any illegality, material irregularity or jurisdictional defect in the impugned orders. 5. Pursuant to the above discussion I do not see any justification to interfere in exercise of the revisional power of this Court with the well-reasoned orders of the courts below. So the revision application is dismissed in limine. (MBC) Petition dismissed.

PLJ 1991 Lahore 111 PLJ 1991 Lahore 111 Present: MUHAMMAD MUNIR KlIAN J, LAHORE DEVELOPMENT AUTHORITY-Pelitioner versus Mst. RUBI NASREEN-Respondent . Civil Revision No.793 of 1990, dismissed on 18.9.1990. Necessary Party —Permanent injunction—Suit for—Necessary parties—Non-impleadment of— Contcntion of—Whether predecessors-in-interest of respondent, a subsequent purchaser, were necessary parties-Question of-Aftcr sale of plot by predecessors-in-interest of respondent to her, they have no interest in property-Held: Prcdecessors-in-interest of respondent were not necessary parties and trial court has rightly dealt with matter in so far as regards parties actually before it-Petition dismissed in limine. [P.112JA Mr. K]\aqan Babar, Advocate for Petitioner. Date of hearing: 18.9.1990. order On 5.7.89, Mst. Rubi Nasreen filed suit for declaration and permanent injunction against LDA in the court of Senior Civil Judge, Lahore. The suit was resisted. Issues were framed. The parties led evidence. The learned trial court decreed the suit on 12.1.89. Feeling aggrieved thereby, L.D.A. filed an appeal which was dismissed by the learned Addl. District Judge on 16.12.89. Hence this revision. 2. Learned counsel for the petitioner contended that the plaint suffers from non-joinder of necessary party and as such, the suit should have been dismissed. He relied on P.L.D. 1987 Lahore 387. He argued that the plot in dispute was originally owned by Mst. Bilqees Bibi and was exempted in lieu of her land acquired for 1600 acre scheme, Lahore. She sold it to Munawar Sultana, who further alienated it to Mst. Roobi Nasreen respondent through registered sale deed on 19.1.1981. Since the predecessors-in-interest of the respondent were necessary party, therefore, the respondent/plaintiff was obliged to join them as party and in their absence no effective decree could be passed by the trial Court. Resultantly, the suit of the respondent must fail. No other point was raised before me by the learned counsel for the petitioner. 3. I have considered the submissions made by the learned counsel for the petitioner with care. I have not been able to persuade myself to agree with him. I feel that in the peculiar circumstances of this case, Mst. Bilqees or Munawar Sultana were not the necessary party, as such, the trial Court has rightly dealt with the matter in so far as regards the parties actually before it. The decree passed by the trial Court can effectively be executed as the respondent, subsequent purchaser has entered into the shoes of her predecessors-in-interest, therefore, the presence of her predecessors-in-interest before the Court was/is not necessary to enable it effectively and completely to adjudicate upon and settle the question involved in the suit. Needless to say that the term "question involved in the suit" refers to question involved between the parties to the suit. After the sale of the plot by them to the respondent, the predecessors-in-interest namely Mst. Bilqees and Mst.Munawar Sultana have no interest in the property. During the pendency of the suit or even thereafter, they had not made an application for impleading them as party. Pursuant to the above discussion, there being no merit, the revision fails and is dismissed in limine. (MBC) Petition dismissed.

PLJ 1991 Lahore 112 PLJ 1991 Lahore 112 Present: MUHAMMAD MUNIR, KHAN J MUHAMMAD CHIRAGH and another-Petitioners Versus MUHAMMAD FAZIL and 4 others-Respondents. Civil Revision No.728 of 1985, accepted on 6.10.1990. Civil Procedure Code, 1908 (V of 1908)-- —S.12(2)—Judgment and decree—Setting aside of—application for—Dismissal of-Challenge to-It is by now well settled that application by a person other than judgment-debtor, for setting aside judgment and decree on ground of fraud and misrepresentation, is sustainable—Instead of rejecting application straightaway, trial court should have framed issues and afforded opportunity 10 petitioners to lead evidence in proof of allegation of fraud and misrepresentation made by them in application—Held: Impugned order seems to be arbitrary and illegal-Petition accepted and case remanded for fresh decision of application in accordance with law. [P.113]A&B Mr. Abdul Aziz Qureslti, Advocate for Petitioners. Malik Talib Hitssain, Advocate for Respondents. Date of hearing: 6.10.1990. order On 11.6.1983 Muhammad Chiragh and Muhammad Riaz petitioners filed application under section 12(2) C.P.C. for setting aside the judgment and decree dated 19.9.1982 passed in appeal titled 'Muhammad Fazil & others Vs. Shahmand', by the learned Additional District Judge, Jhang, on the ground of fraud and misrepresentation. This application was dismissed on 10.10.1989 on the grounds that the applicants/petitioners being not Judgment debtors, could not challenge the decree passed by it by filing application under sub section (2) of Section 12 C.P.C. and that the learned counsel for the respondent had also contended that the petitioner had gone upto the court of Commissioner for challenging the impugned registered sale deed but they failed and they also filed civil suit which was dismissed on 26.6.1982. 2. Learned counsel for the petitioners mainly submitted that the application of the petitioners under section 12(2) C.P.C. has been dismissed without framing issues and affording the petitioners opportunity to prove the fraud and misrepresentation alleged by them and that any person other than the judgment debtor can file application under section 12(2) C.P.C. learned counsel for the respondents has not been able to controvert him. 3. I have considered the submissions made by the learned counsel for the parties with care. It is by now well settled that application by a person other than judgment debtor for setting aside the judgment and decree on the ground of fraud and misrepresentation is sustainable. I feel that instead of rejecting the application straight-away, the trial Court should have framed issues and afforded opportunity to the petitioners/applicants to lead evidence in proof of the allegations of fraud and misrepresentation made by them in the application. The impugned order seems to be arbitrary and illegal. Pursuant to the above discussion, the revision is accepted and the order dated 10.10.1984 passed by the learned Additional District Judge, Jhang is setaside and the case is sent back to him for fresh decision of the application of the petitioners in accordance with law, in the light of the observations made by this [Court in this Order. The parties arc left to bear their own costs. (MBC) Petition accepted.

PLJ 1991 Lahore 114 PLJ 1991 Lahore 114 Present: IHSAN-UL-HAQ ClIAUDHARY, J M/S RUPALI POLYESTER LTD.-Petitioncr versus EMPLOYEES OLD AGE BENEFITS INSTITUTION and another- Respondents. Writ petition No.6510 of 1990, dismissed on 7.11.1990. Employees Old Age Benefits Act, 1976 —-Ss.12. 33, 34&3S read with Constitution of Pakistan, 1973, Article 199-- Production of books of account—Direction for—Challenge to—Whether writ petition was competent in view of other remedies available to petitioner under Act-Question of-It is clear from text of provisions that establishment which is aggrieved of an order of Institution, has at least three remedies one after other—Petitioner did not avail same—Petitioner should have pursued his remedies with Institution as provided by statute-Held: Preliminary objection of respondents that writ petition is incompetent, is upheld-Petition dismissed as incompetent. [Pp.ll8&119]A,B&C 1986 SCMR 959, 1986 SCMR 1077, 1987 SCMR 396,1987 SCMR 810 and 1988 SCMR 1803 rel. Mr. Attaur Rehman Sheikh, Advocate for Petitioner. Mr. Abdul Hayec, Advocate for Respondents. Date of hearing: 7.11.1990. judgment The petitioner, an industrial concern, through this constitutional petition, has prayed for a declaration that the orders of the respondents dated 15.4.1990, 12.8.1990 and 28.8.1990 are without jurisdiction and of no legal effect. 2. The relevant facts arc that the petitioner was registered with respondent No.l. The respondents felt that Ihe petitioner was not making payment of contribution in accordance with the labour employed by it and salaries paid to this labour. The petitioner, therefore, was directed to produce the following books of account for verification of the amount of contribution:- 1. Salary/wages register or sheets. 2. Cash Books. 3. General Ledger. 4. Attendance Register. 5. Contribution Cards (PR-04) and 6. Any other documents relating to the employment of insured persons and payment of wages. It seems that the petitioner initially promised to furnish these books but did not honour its commitment, therefore, respondent No.2 issued letter dated 12.8.1990. As the same remained unresponded, therefore, respondent No.2 proceeded to assess the amount of contribution payable by it according to the data available with him and intimated the same to the petitioner vide letter dated 28.8.1990. The petitioner has now impugned all these orders/memos of the respondents through this constitutional petition. The petition was admitted to hearing and notices were issued to the respondents who have entered appearance and contested the petition. 3. The learned counsel for the petitioner, in support of the petition, urged that the respondents are not entitled to direct the petitioner to produce books of accounts other than specified in Section 12 of the Employees Old Age Benefits Act. 1976. The argument in nutshell is that the orders for production of General Ledger and other documents is patently illegal. The learned counsel, in support of his contention has relied on Messrs Agri Auto Industries Ltd., V. Employees' Old Age Benefit Institution, Hub Region and two others (1990 PLC 21). 4. On the other hand the learned counsel for the respondents raised a preliminary objection to the effect that the petition is incompetent as there are at least three remedies one after the other available to the petitioner under the Act itself. The learned counsel in this behalf has referred to Section 33 of the EOBI Act, 1976 under which the petitioner can file a complaint. This is to be followed by review application under section 34 and ultimately the petitioner has right of appeal to the Board of Directors under section 35. The learned counsel, in this ehalf, has referred to unreported decisions of this Court in WP 4284 of 1989 'Noon Textile v. EOBI' WP 2314 of 1985 'PCT Indus, v. EOBI' and unreported judgment of the Supreme Court in CPSLA 515-K of 1989 'Employees Old Age Benefits Institution v. Agri Auto Industries Ltd.'. He has also placed reliance on the reported judgments in the cases Messrs Cowasjee and Sons v. Director, Sindh Employees' Social Security Institution (1980 PLC 752a) and Muhammad Shams Eram Usmani Vs. Kar. B.C. Authority (1989 CLC 193). 5. On merits the learned counsel submitted that the petitioner has raised factual controversy which cannot be resolved in constitutional petition. It is submitted that the petitioner was continuously making short payments and in spite of the fact that it was pointed out to it by respondent No.2 but the petitioner did not mend itself and also failed to get the exact amount determined, therefore, there was no way out with respondent No.2 except to make his own assessment on the data available with him. The learned counsel, in this behalf, submitted the following dala:- PERIOD NUMBER OF SALARY PAID EMPLOYEES Actual Shown Actual Shown Dec.87 873 388 Rs.10,38,799.37 Rs.2,82,121.00 The learned counsel submitted that his clients have taken up different months and in this behalf, he has placed on the record a statement for June 1988 and June 1989. He submitted that the petitioner continued in the same pattern throughout this period. The learned counsel submitted that the petitioner was rightly directed to produce general ledgers etc., and the judgment of the Quetta High Court has been set aside by the Hon'able Supreme Court as is clear from the copy of judgment dated 29.1.1990 placed on the record. 6. The learned counsel for the petitioner, in reply to the preliminary objection as to competency of the writ petition, has argued that since the petitioner has challenged the jurisdiction of the respondents, therefore, the remedies provided under the Employees Old Age Benefits Act, 1976, are neither adequate nor efficacious. In this behalf the learned counsel has referred to Begum Nusrat Bhutto v. Income Tax Officer Circle V (PLD 1980 Lahore 449), Ch^4bdul Hamid v. Deputy Commissioner and others (1985 SCMR 359) and Pakistan Bunnah Shell Limited v. Mrs. Nasreen Irshad and others(1989 SCMR 1892). 7. I have given my anxious consideration to the arguments of the learned counsel for the parties and have also gone through the file as well as relevant provisions of law and precedent cases. Section 12 of the Employees Old Age Benefits Act, 1976, reads as unden- "Officials of Institution to check employer's books.-(l) Any official of the Institution, duly authorised by a certificate in a form specified in the regulations, may , for the purpose of inquiring into the correctness of any of the particulars stated in the records or returns referred to in Section 10 or for the purpose of ascertaining whether any of the provisions of this Act have been complied with- (a) require an employer to furnish to him such information as he may consider necessary; or (b) at any reasonable time, enter any establishment or other premises occupied by such employer and require any person found incharge thereof to produce and allow him to examine such accounts books and other documents relating to the employment of persons and payment of wages, or to furnish to him such information as he may consider necessary; or (c) examine, with respect to any matter relevant to the purposes aforesaid, the employer, his agent or any person found in such establishment or other premises, or any other person whom the said official has reasonable cause to believe to be or to have been an insured person. (2) The official referred to in sub-section (1) shall be bound to secrecy as regards all matters with which he becomes acquainted in the performance of his duties and which do not relate to matters provided for in this Act. (3) If an employer fails to maintain records or to submit returns as required by the regulations, or otherwise fails to comply with the provisions of sub­ section (1) and thereby makes it difficult to ascertain the identity of persons required to be insured or the amount of contribution payable, the contribution shall be assessed on the basis of such evidence as the Institution may find satisfactory for this purpose". It is clear from the context of the provision that the purpose is to ascertain the contribution payable by the employer and for that purpose it can be directed to produce the following: (1) Accounts Books; and (2) Other documents relating to employment of persons and payment of wages to them. To the same effect is the observation of the Hon'able Supreme Court in the judgment in the case of 'Employees Old Age Benefits Institution v. Agri Auto Industries (CPSLA No.515-K of 1989). The relevant portion reads as under:- "For the purpose of verification certainly the employer could be called upon to make available at his office the records mentioned in Section 12 (1) (b). j t wom «d be for the employer to make available at its office the accounts books and the accounts books will include General Ledger also." It is, therefore, clear that the Institution can requisition books of accounts of all types which include general ledgers and other documents must pertain to the employment of persons and wages paid to them. The perusal of the first impugned order dated 15.4.1990 shows that there is nothing wrong with the requisition. All the documents required to be produced and examined are fully covered by sub­section (1) of Section 12. The learned counsel for the petitioner when confronted with the judgment of the Hon'ble Supreme Court in Quetta matter, frankly conceded that in view of this judgment his main argument that the petitioner could not be legally directed to produce general ledger etc., has no force. He further submitted that the respondents should now proceed from the point of order dated 28.8.1990 in accordance with the observation of the Hon'ble Supreme Court as reproduced above. 8. Now coming to the preliminary objections, it is relevant to refer to the provisions of Sections 33 to 35 of the Employees Old Age Benefits Act, 1976, which read as follows:- "33. Decisions on complaints, questions and disputes.-If any complaint is received or any question or dispute arises as to- (a) whether a person is an insured person within the meaning of this Act; (b) the amount of wages of an insured person for the purposes of this Act; (c) the amount of contribution payable by an employer in respect of an insured person; (d) the person who is the employer in respect of an insured person; (e) entitlement to any benefit under this Act or as to the amount and duration thereof; (ee) registration of industry or establishment; or (/) any other matter in respect of any contribution or any benefit referred to in clause (e), or dues payable or recoverable under this Act relating to contributions or the aforesaid benefits; the matter shall be decided by the Institution, in such manner, and within such time, as the regulations may provide and the institution shall notify its decision to the person concerned in writing, stating therein the reason for its decision. 34. Review of decisions.-The institution may, subject to regulations, on new facts being brought to its notice, review a decision given by it under Section 33: Provided that no decision shall be reviewed without giving the person concerned an opportunity of being heard and adducing evidence in support of, or against, the decision, as the case may be. 35. Appeal to Board.-Subject to rules, a person aggrieved by a decision of !he Institution under section 33 01 on a review under section 34, may appeal to the Board". It is clear from the text of the above provisions that the establishment which is aggrieved of an order of the Institution has at least three remedies one after the other. The petitioner did not avail the same. The competency of writ petition without availing the remedy under statute was examined by the Hon'ble Supreme Court in a number of cases. In this behalf, reference can be made to Allah Ditto and others v. Malik Ijaz Hussain (1986 S.C.M.R.959), William Lawrence Government of Pakistan and others (1986 S.C.M.R.1077), Munir Ahmad Munir Tlie Province of Punjab through the Secretary, Home Department, Lahore (1987 |S.C.M.R.396) Allah Bakhsh and another v. Muhammad Ismail and others (1987 S.C.M.R.810) and Muhammad Aslam v. Member (Colonies), Board of Revenue, Punjab, Lahore and another (1988 S.C.M.R.1803). Suffice it to reproduce the relevant portion of para 10 of the jugment of the Supreme Court in the case of Allah Ditto and others:- Accordingly, we are of the opinion that if in any case the High Court considers that a writ petition should not be entertained on account of the failure of an aggrieved party to avail of another adequate remedy such a decision is not only entirely legitimate but is indeed in furtherance of the intendment of Article 199 of the Constitution. In fact in the present case, since the case was remanded by the Federal Land Commission to the Chief Land Commissioner for decision afresh in the light of the direction given by it, it was all the more appropriate that a revision petition should have been filed before the said authority to enable it to verify if its directions had indeed been carried out". I am conscious of the judgment of the Hon'ble Supreme Court in Tlie Murree Brewery Co. Ltd., . Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 S.C.279), but in that case the order was attacked on the ground that it was wholly without authority, partial, unjust and mala fide. It is true that in this case also the orders were attacked on ihe ground of lack of jurisdiction but the objection was misconceived. Reliance was placed on the case of Messrs Agri Auto Industries Ltd., v. Employees' Old Age Benefit Institution. Hub Region and two others (Supra) which was partially set aside by the Supreme Court. This is not all. Even the last portion of the impugned order dated 28.8.1990 reads as follows:- "As a very special case we once again give you another opportunity to produce all the record by 10th September, 1990 failing which the amount assessed v-iil become due and will be recovered as arrears of land revenue". This portion is strictly in accordance with the observation of the Hon'ble Supreme Court i.i the case Messrs Agri Auto Industries Ltd (Supra). This renders petition incompetent. The petitioner should have pursued his remedies with the Institution as provided by statute. This lends support to the objection of the learned counsel for the respondents that the writ petition is incompetent and to the same effect are the un-reported judgments of this Court referred to by the learned counsel for the respondents. The same view was expressed by the Karachi High Court in Messrs Cowasjce and sons v. Director, Sindh Employees' Social Security Institution (supra). The learned counsel for the respondents has rightly pointed out that the provisions of Sections 57 to 59 of the West Pakistan Employees Social Security Ordinance, 1965, are para materia to the provisions of Sections 33 to 35 of the Employees Old Age Benefits Act,1976. I, therefore, have no hesitation in upholding the preliminary objection. 9. The result is that this petition is dismissed as incompetent. However, the | petitioner can comply with the direction of respondent No.2 as contained in the ] last order dated 23.8.1990. There is no order as to costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 119 PLJ 1991 Lahore 119 Present: MUHAMMAD iLYAS, J. HAIDER FAROOO -Petitioner versus MAHMOODA BEGUM and 8 others-Respondents. Civil Revision No.2080 of 1990, dismissed on 17.11.1990 Civil Procedure Code, 1908 (V of 1908)-- —O.I.R.10—Suit for administration of property—Impleadment of Mst^Athari Begum being first wife of predecessor-in-interest of parties—Application of— Dismissal of—Challenge to—Suit was filed in 1987 but application for implcadment was filed as late as September,1990-No reason is given for failure of Mst.Athari Begum to make application herself-No Nikah Nama or any other document has been placed on record indicating that she was ever married to late Syed Abul Ala Maududi-Plea of respondents 1, 4 and 9 is that application is false, frivolous and vexatious and has been filed to delay decision of suit-Held: Impugned order rejecting application for impleadment does not require interference. [Pp.l21&122]A,B & C. Mr.Riaz Anwar, Advocate for Petitioner. Date of hearing: 17.11.1990. judgment This petition has arisen out of a suit brought by respondents Nos.l to 7, Mst.Mahmooda Begum and others, against the petitioner, Haider Farooq, and respondents Nos.8 and 9, Hussain Farooq and another, for administration of certain property left by late Syed Abul Ala Maududi. Prayer for a permanent injunction has also been made in the said suit, which is pending before Malik Nasim Hassan, Civil Judge 1st Class, Lahore . According to learned counsel for the petitioner, a direction was issued by my learned brother, Munir A.Sheikh J., about one and a half year ago, requiring the learned trial Court to dispose of the case within six months but it was still pending decision when an application was moved by the petitioner, under Order I, rule 10, of the Code of Civil Procedure, for impleading MstAthari Begum as a party to the suit. It was averred by him that she was a widow of late Syed Abul Ala Maududi and was, therefore, a necessary party to the suit. Respondent No.l, Mst.Mahmooda Begum is a widow and the other parties are children of late Syed Abul Ala Maududi. 2. Petitioner's plea is that before marrying Mst.Mahmooda Begum, late Syed Abul Ala Maududi had contracted marriage with Mst Athari Begum, who is now residing in Bharat (India). According to the petitioner in July 1990, he went to Delhi (Bharat) and came to know that MstAthari Begum was the first wife of late Syed Abul Ala Maududi. Petitioner has added that he also met her there. 3. The application was opposed by respondents Nos.l, 4 and 9, who are Mst.Mahmooda Begum, S.Khalid Farooq and Muhammad Farooq, respectively. They contended that it was false, frivolous and vexatious. It was denied by them that late Syed Abul Ala Maududi ever contracted marriage with Mst.Athari Begum. The application was, however, supported by respondent No.8, Hussain Farooq. No reply to the application was filed by any of the other respondents. The application was eventually rejected by the learned Civil Judge for the following reasons: - "The defendants No.l and 2 have admitted in para No.l of their written statement that the plaintiffs and the defendants are only legal heirs of the deceased. It has been contended by the learned counsel for the petitioner/defendant No.l that the defendant No.l has met Mst.Athari Begum in recent past when he has visited India. He came to know that she is widow of the deceased and earlier the petitioner/defendant No.l had no knowledge that MsLAthari Begum is also widow of the deceased. However, this application has not been moved by Mst-Athari Begum herself and if any such person should have been widow of the deceased she herself should have moved an application to be impleaded as party to this suit. The defendants themselves have admitted in their written statement that plaintiffs and the defendants are the legal heirs of th e deceased. The petitioner/defendant No.l., has not filed any Nikah Nama of this marriage of the deceased with MstAthari Begum and nor any affidavit of any person has been filed who was witness of this marriage and therefore in the above narrated circumstances this application under Order I, rule 10, C.P.C. is not maintainable which as a result is hereby rejected". Feeling aggrieved by the order of the learned trial Court, the petitioner has come up in revision to this Court. 3. It was urged by the learned counsel for the petitioner that MstAthari Begum was the first wife of late Abul Ala Maududi and since the suit related to the administration of his property, it was necessary that she should also be impleaded as a party thereto. According to him, plea in this regard could not be raised earlier because the petitioner did not know whether or not Mst-Athari Begum was alive, although he was aware of the fact that late Syed Abul Ala Maududi had married her before contracting marriage with respondent No.l. 4. Brief of learned counsel for the petitioner reveals that the suit was filed on 7th July 1987, but application for impleading Mst.Athari Begum as a party thereto was moved as late as on 30th September 1990. The petitioner is said to have visited Bharat in July 1990, when he met Mst-Athari Begum there. No explanation whatsoever is forthcoming as to why he kept quite for two months after meeting Mst.Athari Begum. No reason has also been given for failure of MstAthari Begum to make the application herself. If she had any difficulty in coming over to Pakistan, she could make the application through some attorney or counsel. The petitioner's application has been resisted by respondent No.l (who is, admittedly, a widow of late Syed Abul Ala Maududi) as well as by respondents Nos.4 and 9. No Nikah Nama or any other document has been placed on the record indicating that MstAthari Begum was ever married to late Syed Abul Ala Maududi, who was an eminent scholar and Ameer of Jamaat-i-Islami, Pakistan. He was widely known, there are several writings by him and about him. No such writing has been referred to in support of the assertion made by the petitioner. Plea of Mst.Mahmooda Begum (respondent No.l), who is, surely, a widow of late Syed Abul Ala Maududi, as well as that of respondents Nos. 4 and 9, who are his sons, is that the application is false, frivolous and vexatious. As pointed out by the lamed trial Court, in his pleadings it was conceded by the petitioner, who is defendant No.l in the suit, that existing parties to the suit were the only heirs of late Syed Abdul Ala Maududi. Grievance of respondents Nos.l, 4 and 9 is thatj application for impleading MstAthari Begum is aimed at further delaying the decision of the suit which was required to be disposed of within six months, in terms of the direction of this Court. As stated earlier, direction in this behalf was issued about one and half year back. 5. Keeping all this in view, I am not inclined to interfere with the order of the learned Civil Judge whereby he rejected the application of the respondent for impleading MstAthari Begum as a party to the suit. 6. Needless to say that since MstAthari Begum has not herself applied for becoming a party to the suit, there will be no bar to the making of an application by her in this regard (if she so likes) by placing before the learned trial Court such material as may support her claim. As and when such an application is submitted before the learned Civil Judge, he shall deal with it, in accordance with law. 7. With these observations, this civil revision is dismissed in limine. (MBC) Petition dismissed.

PLJ 1991 Lahore 122 PLJ 1991 Lahore 122 Present: IHSANUL HAQ CHAUDHARY, J MUHAMMAD TUFAIL and 2 others-Petitioners versus CHIEF ADMINISTRATOR OF AUQAF and 2 others-Respondents Writ Petition No. 2842 of 1990, accepted on 30.10.1990 (i) General Clauses Act, 1897 (X of 1897)-- —-S. 20 read with Punjab Waqf Properties Ordinance, 1979, Section 7- Property—Taking over administrative control and management of—Notification of—Whether property could be denotified under principle of "locus poenitentiae"~Question of-Once notification is issued, possession taken over and control of property assumed, respondent No. 1 is left with no jurisdiction or authority to denotify property or in other words, release property from control of Department-Principle of "Locus poenitentiae (right to repent) is available till time some decisive steps are taken—Held: Taking over of possession is definitely a decisive step after which respondent No. 1 loses "locus poenitentiae"~Petilion allowed. [P.127]C,D&E PLD 1955 Lahore 65, PLD 1956 F.C 46, PLD 1963 (W.P.) Lahore 53, PLD 1964 SC 503, PLD 1969 SC 407, PLD 1970 SC 439, PLD 1978 Lah. 468, PLD 1980 SC (AJ&K) 46, and PLD 1985 AJ&K 17 rel. (ii) Punjab Waqf Properties Ordinance, 1979 (IV of 1979)-- —S.7~Property~Taking over administrative control and management of~ Notification of-Whether property could be denotified in public interest-­ Question of—Minister has no authority under Ordinance to issue direction for denotification of property taken over and assumed by Auqaf Department- Public interest does not appear anywhere in preamble and Section 7 of Ordinance under which properties are taken over-It is sole discretion of Chief Administrator, Auqaf to assume administrative control, management and maintenance of Waqf property—Held: Public interest is that it should be maintained, for same purpose for which property was dedicated, by Auqaf Department rather than making it over to persons who do not have a right to possess such property. [P.125JA&B PLD 1990 SC 1070 rel. Malik Muhammad Azam Rasool, Advocate for Petitioners. Mr. Riaz Kiani, Advocate for Respondent No. 1. Mr. Mitjlaba All Hamdani, Advocate for Respondents 2 & 3. Dates of hearing: 28 & 30.10.1990 judgment The petitioners through this Constitutional petition have sought a declaration that the action of the respondent No. 1 in denotifying property in dispute is illegal and without lawful authority. 2. The relevant facts are that orre Mian Qurban Ali was owner of land measuring 4 kanals comprising of Khasra Nos: 5549, 5497 to 5499. He constructed a mosque Jamia Usmania, Madarisa with hostel for students etc. He was a pious man, therefore, he created a Waqf-ul-Aam. This Waqf was for Muslim Umma and with its creation the property vested in Almighty God. Thereafter 9 shops were constructed to cover the expenses of these institutions. It is added that the residents of the locality including the petitioners contributed generously for the completion of this Project. Subsequently 9 more shops were added with the contribution of the public. Mian Qurban Ali, after his death was burried in the Ihata of the Madarisa. It is alleged that the respondents No. 2 and 3 claimed portion of the land attached to these institutions and this gave rise to the litigation on the civil and revenue sides. It is pleaded that ultimately the followers of late Mian Qurban Ali made an application to respondent No. 1 to take-over the property. The respondent No. 1 after observing the formalities issued notification of take-over on 2.3.1988. It is alleged that thereafter respondents No.2 and 3 illegally manoeuvred order of denotification of the property as Waqf. This obliged the petitioners to file present Constitutional petition. 3. The petition came up for preliminary hearing on 2.5.1990 when respondent No. 1 was directed to submit report and instruct its legal advisor to be resent alongwith the record. The preliminary arguments were heard on 7.7.1990. The petition was admitted to hearing. 4. The learned counsel for the petitioners in support of the petition has argued that Auqaf Deptt. proceeded to issue notification dated 2.3.1988 under section 7 of Punjab Waqf Properties Ordinance, 1979 after fully satisfying itself as to the status of the property. It is submitted that respondents No. 2 and 3 exercising political influence have manoeuvred order of denotification from the then Minister, Auqaf. It is submitted that Minister does not appear in the scheme of Waqf Properties Ordinance, 1979 anywhere and his order is nothing but a nullity in the eye of law. The arguments are concluded with the submission that the whole exercise is rnalafide and this way the Waqf property is being converted into private property. 5. On the other hand, Mr. Riaz Kiyani, Advocate, for respondent No. 1 argued that although Minister ordered the denotification but respondent No. 1 has not given effect to the same so far and he will exercise the jurisdiction in accordance with law and facts on record. While learned counsel for respondents No. 2 and 3 submitted that the petition is premature as no order has been passed in pursuance of the direction of the Minister, Auqaf. It is added that the Minister was fully justified to pass the order. 6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and relevant provisions of Waqf Ordinance, 1979. The properties are taken over under section 7 of the Ordinance which reads as under:— Section 7. "Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act 1863 (XX of 1863), or any other law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority or in any proceeding pending before any Court or other authority, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqf property. Provided that ............................................................... " 7. The admitted position is that there is no provision in the Waqf Ordinance, 1979 (hereinafter to be referred as Ordinance, 1979), as to denotification. However, the aggrieved person can petition to District Judge against the notification of take-over under section 11 seeking declaration that property is not Waqf property or it is a waqf property within the limits stated in the petition. It is no body's case that any petition was filed by respondents No. 2 and 3 or any-body else under this provision. The decision of the District Judge is appealable to this Court in view of the provision of section 12 of the Ordinance and decision so arrived is final. The jurisdiction of all civil, revenue Courts or other authority is barred under section 21. All these Courts and authorities can not entertain any matter until expressly provided in this Ordinance. However, the argument of the learned counsel for respondent No.l was that according to section 20 of General Clauses that an authority which has power to issue notification has power to rescind the same. Before proceeding any further it is relevant to refer to the provision. The same is reproduced as under:— "Where, by any West Pakistan Act, a power to issue notification, orders rules, scheme, form or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued." 8. It seems that. the respondents No. 2 and 3 were pressing hard for denotification. The matter was examined in the office of respondent No. 1. The Section Officer, who examined the merits and demerits of the claim of respondents No. 2 and 3 and of the Department concluded as under:— Thereafter the file was placed before respondent No. 1 through concerned Administrator, Auqaf. The respondent No. 1 made the following observation on the file and submitted it to the Minister, Auqaf:— The then Minister passed the following orden- Now when the order of the Minister is examined in the light of the provisions of the Ordinance, 1979, then it is crystal clear that Minister has no authority, whatsoever, to isssue any such direction. On the other hand, jurisdiction of all Courts and authorities has been specifically barred. This rules out orders or, directions or interference by Minister. The said direction is otherwise against the entire scheme ol the Ordinance. The Minister does not possess the power of denotifying property either under the General Clauses Act or Waqf Ordinance. It i> clear from the note of the respondent No.l and Section Officer that it was not m the public interest to exclude it from the management of Waqf. If looked from this angle then observation of the Minister that it is in the public interest to restore the property is without any legal and factual basis. 9. The direction of the Minister is even otherwise against the very scheme of the Waqf Ordinance, 1979 which was promulgated with a view to provide for proper management and administration of Waqf properties in the Province of Punjab as is clear from pre-amble. The public interest does not appear anywhere in the Pre-amble and in section 7, under which properties are taken over. It is the sole discretion of the Chief Administrator, Auqaf to assume administrativecontrol, management and maintenance of waqf property. The public interest is that it should be maintained, for the same purpose for which the property was dedicated, by the Auqaf Department rather than making over to persons who do not have a right to possess such property. This way this will amount to convert waqf property in the private property. 10. The learned counsel for respondent No. 1 frankly and candidly conceded that he does not possess any such authority or jurisdiction and in support of his contention referred to the judgment of Hon'ble Supreme Court in the case of Ahmad Klian v. Member (Consolidation) Board of Revenue etc. (P.L.D. 1990 S.C. 1070). It was a case under West Pakistan , Consolidation of Holdings Ordinance. The concerned Minister enquired in the confirmed scheme and directed the reopening of the case. This order was assailed through a Constitutional petition in this Court. The writ was issued and order of the Minister was set aside. The respondent assailed this order through CPS"LA but the leave was refused. The relevant portion of the judgment of Hon'ble Supreme Court reads as under:— "Under the law Minister for Consolidation has no jurisdiction or authority to pass any order in respect of consolidation scheme already confirmed under the law against which all objections and judicial proceedings in the nature of appeals and revisions had already been exhausted and disposed of. The impugned order of Minister for Consolidation was, therefore, wholly without jurisdiction and void abinitio. Law is firmly settled that if the basic order is without lawful authority, whole series of such orders together with superstructure of rights and obligations built upon them fall to the ground. Reference may be made to judgments reported as Yousaf All v. Muhammad Aslam Zia Secretary to Government of the Punjab Local Government and Rural Development Department and 2 others PLD 1982 Lahore 606. In this view of the matter merely because in pursuance to the impugned void order the village has been re-consolidated, is no ground to maintain the said order." In addition to the aforesaid reasons in the impugned judgment of the High Court we are also of the view that another argument advanced before the High Court from the respondents' side, was also valid; namely, that "Minister for Consolidation had no authority to interfere with the confirmed consolidation scheme as under the West Pakistan Consolidation of Holdings Ordinance, 1960, the authorities who could act were the Collector, Commissioner and Board of Revenue." The statutory functionaries alone could have interfered with the orders challenged before them. The Minister not being such a functionary had no jurisdiction to deal with the matter in any manner whatsoever. His action thus for this additional ground was also void ab initio and could not at all be acted upon. Learned counsel for the petitioner faced with the aforestated formidable position, argued that in addition to the order passed by the Minister in this case the Board of Revenue had also passed independent order; therefore, the said order would cure the defects pointed out above. We do not agree with him. The order of the Minister as already explained, was coram non judice. It could not at all be cured by any functionary even if he was acting under the law in purported exercise of his own jurisdiction. Because obviously this exercise also got tainted by the original orders passed by the Minister. In this case there is an additional feature namely, that the learned Member, Board of Revenue did not act according to his own independent judgment and this is further shown in the order of the Member of the Board of Revenue relied upon by the learned counsel. It is clearly stated therein that "under the orders of the Minister of Consolidation Punjab, the Member (Consolidation) Board of Revenue Punjab has been pleased to allow reconsolidation in village Kotli Bhagu, Tchsil Daska, District Sialkot". The aforegoing supposition is strengthened by further direction issued by the Board of Revenue namely, that the District Authorities were required "to comply with the above orders and submit a report for information of the Minister for Consolidation, Punjab". This order was passed in 1987. As shown above, not only this but subsequent orders passed in this case for implementation of the Order of Board of Revenue, whether by saying so or otherwise, would all be treated as void and nullity." 12. Now coming to the argument of the learned counsel for respondent No. 1 that his client is competent to denotify the property in view of the provisions of section 20 of General Clauses Act. This argument, in my humble view, is absolutely misconceived. Once the notification issued, possession taken over and control of the property assumed the respondent No. 1 is left with no jurisdiction or authority to denotify the property or in other words release the property from the control of the Department. The powers given to the authorities under section 20 of the General Clauses Act (in case of Departments of Federation section 21 of the General Clauses Act) is available till the time some decisive steps are taken. This power given to the authorities under section 20 in legal parlance is known as 'locus poenitentiae' (right to repent). The scope of the same was considered in various judgments of Superior Courts of Pakistan starting with case of Shahbaz v. Crown (P.L.D. 1955 Lahore 65). The Same view was approved by the Federal Court and decision is reported as Shahbaz v. Crown (P.L.D. 1956 F.C. 46), Dr. Mahboob Rabbani v. Govt. of West Pakistan (P.L.D. 1963 (WP) Lah. 53), Lt. Col. Bhattacharya v. Tlie State (P.L.D. 1964 S.C. 503), Pakistan v. Muhammad Hidayat Ullah (P.L.D. 1969 S.C. 407), Collector of Central Excise v. Aziz ud Din Industries (P.L.D. 1970 S.C. 439), M/S M, Afzal & Sons and 2 others v. Federal Government of Pakistan (P.L.D. 1978 Lah. 468), Sattar Muhammad v. Chief Consewator of Forests and others (P.L.D. 1980 S.C. (AJ&K) 46) and Syed Muneeb Nazir Shah v. Azad Kashmir Govt. and another (P.L.D. 1985 AJ&K 17). The notification under section 7 of Ordinance, 1979 is end product. 13. The properties are not taken over by the Auqaf Ordinance, 1979 at random but before the take over the area is measured, property surveyed and its status determined. It is thereafter that matter is placed before the competent authority to decide whether to take over the property or not. This is followed by taking over of physical possession of the property and from that point Auqaf Department starts managing the property. This creates interest in favour of Muslim Umma as the property is thereafter managed by the Auqaf Department for the benefit of all Muslims. The taking over of the possession is definitely a decisive step after which the respondent No. 1 loses 'locus poenitentiae' to denounce his earlier decision and take back the notification. 14. The legislature in its wisdom has not given any power to Chief Administrator, Auqaf,. to release a property, therefore, cannot be permitted to frustrate the object of the Ordinance, 1979 through back-door. It is settled principle of interpretation of statutes that the intent of the legislature must be given effect to and respected. Reference in this behalf can be made to the judgment of Hon'ble Supreme Court in the case of Pakistan Biirmah Shell Ltd. v. Mrs. Nasreen Irshad and others (1989 S.C.M.R. 1892). The result is that this Constitutional petition is allowed, direction/order of the Minister dated 19.4.1990 is declared illegal and without jurisdiction. No order as to costs. (MBC) Petition accepted.

PLJ 1991 Lahore 128 PLJ 1991 Lahore 128 Present: GUL ZAWN KlANI, J BALANDA (DECEASED) and 3 others-Petitioners versus BASHIR AHMAD-Respondent Civil Revision No. 1697-D of 1984, accepted on 4.12.1990 (i) Pre-emption-- —Pre-emption-Suit for-Decree passed in-Challenge to-Preferential right- Determination of-It is settled that unless pre-emptor possesses a better right as compared to a vendee, he cannot dislodge him for being substituted for him in sale—Right of pre-emption is a right to acquire property in preference to others—Court has to keep in view only pre-emptor and vendee to find that in event of notional death of vendor at time of sale, who of them, in order of succession, shall succeed to his estate to exclusion of other—Held: Person so succeeding has a superior right of pre-emption, if he is plaintiff, he gets substitution and if vendee, pre-emption suit must fail—Hdd further. If both of them are found to succeed simultaneously, their rights are at par and ift that eventuality, pre-emptor is bound to fail. [P.129JA AIR (29) 1942 Peshawar 22, AIR (32) 1945 Peshawar 45, PLD 1968 Lahore 907, PLD 1973 Lahore 878 and PLD 1979 SC 879 rel (ii) Sinker- —Sinker-Doctrine of-Purpose of-Doctrine of sinker in pre-emption suits, lays down that if a vendee having an equal or superior right of pre-emption, associates with him in a sale a erson with no right or right inferior to right of pre-emptor, he is deemed to have sunk to level of his associate-vendee and would not be entitled to defend him even to extent of his own right-It is not denied that qua vendees who were sons of deceased petitioner No.l, plaintiff had no clear preference-Held: Plaintiffs right of pre-emption was not superior to that of vendees collectively and he could not succeed to dislodge them from joint sale in their favour—Petition accepted and judgment and decree of trial court restored. [P.130JB Mr. A. G. Chaudhry, Advocate for Petitioners. Mr. Shaukat Haroon, Advocate for Respondent. Date of hearing: 4.12.1990. judgment Khushi Mohammad owned land measuring 49 kanals, 14 marlas in village Sheikh Bhago of Tchsil Kasur. By mutation No. 887, sanctioned on 8.5.1974, he sold it to Balanda son of Jalal Din, and, his three sons, Ali Mohammad, Mohammad Sarwar, and, Mohammad Anwar also of the same mauza, for a lump sum consideration of Rs. 15,900/-. Above sale was subjected to pre-emption, in separate suits by two brothers, namely, Bashir Ahmad and Hakim Ali. Rival suits were consolidated for a joint, trial and common set of issues were settled in them. By judgment dated 28.4.1977, the trial Court dismissed both the pre-emption suits. It found that rights of the respective parties were at par with each other and the pre-emptors did not possess any preference. Hakim All accepted the judgment of the trial Court and did not file an appeal against it but Bashir Ahmad challenged the judgment in appeal before learned District Judge. His appeal came to be heard by learned Additional District Judge ho disagreed with the view of the trial Court, and, found that in associating his three sons with him in the joint and indivisible sale, Balanda had forfeited his own preference also and could not resist pre-emption against him even to the extent of his own share of the land purchased by him. Consequent upon taking that view, appeal was accepted and pre-emption suit was decreed in favour of Bashir Ahmad pre-emptor, conditional upon payment of Rs. 15,900/- as sale price of the land to the vendees within a specified period. Usual default clause was also added in the decree-sheet. Against this judgment, vendees have come up in revision to this Court. It was admitted to hearing on 28.10.1984. There is no dispute on inter-se pedigree of the parties. Balanda is paternal uncle of Khushi Muhammad vendor. His sons are his paternal cousins. Bashir Ahmad pre-emptor besides being utrine brother of the vendor, is also his paternal cousin. Pedigree table Ext. P3 supports their relationship. It is not denied that the sale in question evidenced by the mutation is joint and indivisible. Though the share purchased by each vendee is distinct, yet proportion in which the sale price was contributed by them is neither indicated nor specified. Therefore, on the test laid down in Abdullah and 3 others versus Abdul Karim and others— P.L.D. 1968 S.C. 140, the sale shall be deemed to be joint and indivisible. Further, there is neither plea that the sale was divisible nor evidence given in support therefor. In this view, the sale was correctly found to be joint and indivisible in the Court below. Each vendee held l/4th share in the land. Only question arising for decision, on either admitted or proved facts is about the preferential right of pre-emption. It is settled that preference is quint­essence of pre-emption, and, unless the pre-emptor possesses a better right as compared to a vendee, he cannot dislodge him for being substituted for him in the sale. Right of pre-emption is a right to acquire property in preference to others. It is an accepted principle that for deciding superiority of right of pre-emption, the Court has to keep in view, only the plaintiff/pre-emptor and the vendee and no other person and find that in the event of notional death of the vendor at the time of sale, who of them, in order of succession, shall succeed to his estate to the exclusion of other. The person so succeeding for excluding the other has a superior right of pre-emption. If he is plaintiff, he gets substitution and if vendee, pre-emption'suit must fail. If both of them are found to succeed simultaneously, their rights are at par and in that eventuality, pre-emptor is bound to fail. This statement is supported by judgments in Mohd. All KJian v. A/if. Zewar Ni.sa and another -A.I.R. (29) 1942 Peshawar 22, Aft. Pari v. Fazal Rabi and others-A.l.R. (32) 1945 Peshawar 45, Rahim Bakhsh alias Raliim v. Gul Muhammad and another-P.L.D. 1968 Lahore 907, Mst. Shahzad Bibi and another v. Gitlzar Kiian P.L.D. 1973 Lahore 878 and Jalal Din v. Saeed Ahmad and others-P.L.D. 1979 S.C. 879. Judged on the above touch-stone, as utrine brother of the vendor, pre-emptor is a mere sharer and vendees i.e. father and sons fall in the category of residuaries. As such, pre-emptor, in order of succession, had no preference. Similarly, as a-paternal cousin of the vendor, he was not possessed of any preference against paternal uncle, and, paternal cousins of the vendor. As for doctrine of sinker, which is applicable to the territory in Punjab, it lays down that if a vendee having an equal or superior right of pre-emption associates with him in a sale, which is joint and indivisible, a person with no right or right inferior to the pre-emptor, he is deemed to have sunk to the level of his associate-vendee and would not be entitled to defend him even to the extent of his own right. Superiority or inferiority of right of pre-emption is to be judged in competition to the plaintiff/pre-emptor. Therefore, even on strict application of doctrine of sinker, Balanda vendee would have sunk only to the level of his associate vendees and certainly not lowerer than that, and thus would not be denuded to avail of that preference which the other vendees had. It is not denied that qua the vendees who were sons of Balanda, plaintiff had no clear preference. As paternal cousins of Khushi Mohammad, their right was at par with the plaintiff who in order of succession either as a utrine brother or paternal cousin of the vendor could not exclude them from inheriting the land left by the vendor. Therefore, they could not be described as total strangers. Their right of pre-emption was not inferior to the plaintiff/pre-emptor. Doctrine of sinker in pre-emption is intended for exclusion of strangers. That status, the vendees could not be ascribed. Additionally, Balanda the paternal uncle of Khushi Mohammad vendor died on 4.10.1989 in course of pendency of the civil revision in this Court. He was survived by Mst. Taj Bibi widow, Ali Ahmad, Ali Mohammad, Mohammad Sarwar, Mohammad Anwar sons, and Mst. Rehmat Bibi Daughter. Of them, Ali Mohammad, Mohammad Sarwar, and, Mohammad Anwar were already on record with their deceased father. Remaining legal representatives were substituted on record by an order of this Court on 1.12.1990. In my opinion, plaintiffs right of pre-emption was not suprior to that of the vendees collectively, and therefore, he could not succeed to dislgge them from the joint sale in their favour. Upon the view I hold, I could not agree with the learned Judge below in his enunciation of law relating to doctrine of sinker. Consequently, I would accept revision petition, set aside impugned judgment and decree of the learned Judge below, and, restore those passed by the trial Court dismissing the pre-emption suit, with no order as to costs in this Court. (MBC) Petition accepted.

PLJ 1991 Lahore 130 PLJ 1991 Lahore 130 Present: MIAN NAZIR AKHTAR, J Mst. FAZAL BIBI ete.-Petitioners versus ABDUL HAQ etc. -Respondents Civil Revision No. 1185 of 1989, accepted on 25.4.1990 Exparte Proceedings— —Declaratory swi—Exparte proceedings in-Case transferred-No notice issued by transferee Couri--Exparte decree-Challenge to-It is settled proposition of law that parties to a suit are entitled to notice by transferee Court- Notwithstanding order for exparte proceedings petitioners continued to be parties to suit and must have been intimated by transferee court about date of hearing of suit—Held: Petitioners were entitled to join proceedings and address arguments on basis of material available on record—Petition accepted [Pp.l31&132]A,B&C PLD 1962 (WP) Lahore 1041 & PLD 1989 Lahore 255 rel. Mian Younus KJian, Advocate for Petitioners. Mian Ahmad Slier Lali, Advocate for Respondents. Date of hearing: 25.4.1990. judgment This revision petition arises out of a suit for declaration filed by Abdul Haq, respondent No. 1, on 27.9.1983, in the Court of the Senior Civil Judge, Sargodha . The suit was decreed ex parte by the trial Court on 1.7.1986. The petitioner's appeal was dismissed by the learned Additional District Judge, Sargodha , on 11.4.1989. 2. During the pendency of the suit, the petitioners did not file any written statement. However, they filed an application under order VII rule 11 of the C.P.C. on 15.4.1985 for rejection of the plaint. Only two defendants, namely, Fazal son of Mahia and Mst. Razia Bibi daughter of Nathu filed their written statements in the Court admitting the claim of the plaintiff/respondent No.l. The trial Court passed an order for ex parte proceedings against the petitioners on 22.2.1986 and adjourned the case to 20.4.1986 for recording ex parte evidence. The ex parte evidence was accordingly recorded. Thereafter, the case was transferred to the court of Mr. Muhammad Naseem Akhtar Khan, Civil Judge, on 1.7.1986. The trial Court did not issue any notice to the petitioners and took up the case on 1.7.1986. The court passed an ex parte decree against the petitioners on 1.7.1986. Thereafter, on 27.7.1986, the petitioners applied for setting aside the ex parte decree but their prayer was refused by the trial Court on 19.10.1987. 3. The learned counsel for the petitioners contends that notwithstanding the earlier order for ex parte proceedings, the petitioners were entitled to join the proceedings before the transferee Court. However, no notice was given to the petitioners and they were condemned unheard before the trial Court. He places reliance on PLD 1950 Lahore 82, PLD 1985 Lahore 327 and PLD 1962 Lahore 1041. On the other hand, the learned counsel for the respondents submits that the transferee Court was not bound to issue notice to the petitioners because in the trial Court, both of them were proceeded against ex parte. 4. I have heard the learned counsel for the parties and perused the record. It is settled proposition of law that the parties to a suit are entitled to notice by the transferee court. Notwithstanding the order for ex-parte proceedings the petitioners continued to be parties to the suit and must have been intimated by the transferee court about the date of hearing of the suit. It is so required even by paragraph 6, Chapter 13, Volume I of High Court Rules and Orders which reads as under: "When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court rom which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which the case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred". Thus after an order for ex-parte proceedings the court cannot treat the defendant as if he was no longer a party to the suit. In the case of Krishen Lai Malhotra Vs. Madan Lai and 2 others (PLD 1950 Lahore 82) it was held as under:- "A defendant by his failure to appear at one stage of the hearing in the case does not become an outlaw. He is still a party to the litigation; the evidence is led against him and the decree is ultimately passed against him. He can appeal from the decree or take other appropriate steps to ensure that every thing was done in his presence. Logic and common sence too are in favour of this view". In Azmat Begwn and others Vs. Chief Settlement and Rehabilitation Commissioner, Pakistan and others (PLD 1962 (W.P) Lahore 1041) the view expressed was that the decree passed by the transferee court without notice to the defendant against whom ex-parte proceedings had been ordered was illegal. In Col.(Rtd) Ashfaq Ali Sayyed Vs. Akram H. Sayyed and 10 others (PLD 1989 Lahore 255) it was held that despite being proceeded against exparte a defendant remained for all practical purposes party to the proceedings; his name remained on the record and he was entitled as of right to appear before the court and join proceedings at any time. In the present case, without issuing any notice to the petitioner, the learned Civil Judge proceeded to pass an ex-parte decree. The petitioners were entitled to join the proceedings and address arguments on the basis of the material available on the record. Even this opportunity was denied to the petitioners. Hence, I accept this revision petition, set aside the judgments and decrees of the courts below and remand the case to the trial court. The trial court shall issue notice to the parties and proceed in the matter from the stage of the exparte evidence and decide it on merits after hearing the parties in accordance with the law. The parties are left to bear their own costs. (MBC) Petition accepted.

PLJ 1991 Lahore 132 PLJ 1991 Lahore 132 Present: MUHAMMAD MUNIR khan, J WAPDA THROUGH SUB-DIVISIONAL OFFICER (E), MANANWALA-- Petitioner versus RANA ASLAM ICE FACTORY-Respondent Civil Revision No. 1601 of 1990. dismissed on 1.10.1990. Limitation Act, 1908 (IX of 1908)-- —S.5—Declaratory suit—Decree passed in—Appeal against—Delay in filing appeal—Condonation of—Prayer for—According to medical certificate, Khalid Mahmood, Court Clerk, was suffering from P.U.O, a disease not so serious and he could easily contact his counsel and send certified copies of judgment and decree to him through some other person—On expiry of period of limitation, a valuable right had accrued to successful plaintiff-Learned Additional District Judge has given reasons for his refusal to condone delay- Held: There is no illegality or irregularity in (impugned) order refusing condonation of delay and also in judgment and decree dismissing appeal as barred by time-petition dismissed. [Pp.l33&134]A Ch. Ghulam Hassan, Advocate for Petitioner. Date of hearing: 1.10.1990. order The facts leading to this revision briefly are that on 8.1.1983 Rana Aslam Ice Factory through Sh. Khalid Siddiq filed a suit for declaration to the effect that bill of Rs.'20,085/48 issued by the Revenue Officer Electricity WAPDA Nankana Sahib, defendant No. 3 was illegal, without consideration, arbitrary and ineffective upon his rights. As a mandatory injunction he prayed for the restoration of electricity connection. The suit was resisted. Four issues were framed/The parties adduced evidence. The trial Court decreed the suit on 9.4.1987. Feeling aggrieved thereby, the petitioner filed appeal on 21.5.1987. Since the appeal was barred by time, so application under section 5 of the Limitation Act for the condonation of delay was made. The learned Appellant Court refused to condone the delay and dismissed the appeal on 26.2.1990, hence this revision. 2. Learned counsel for the petitioner submits that Khalid Mehmood was appointed as Court Clerk and he used to pursue the Court cases and assist counsel of the WAPDA. Certified copy of the judgment and decree of the trial Court was with him and he had to approach the counsel for filing appeal against the judgment and decree of the trial Court but he suddenly fell ill and could not contact the counsel. Resultantly, the appeal could not be filed within time. The learned counsel argued that the reason given by the ppellate Court that Khalid Mehmood was just a clerk of WAPDA and had nothing to do with the filing of the appeal is factually wrong, inasmuch as although WAPDA Officials were authorised persons and competent to file the appeal yet Khalid Mehmood was assigned duty of filing the appeal, contacting the counsel for the purpose of handing over to him the requisite certified copy of the judgment and decree for the preparation of the appeal. 3. I have considered the submissions made by the learned counsel for the petitioner with care.I have not been able to persuade myself to agree with him. I find that on the expiry of period of limitation for filing the appeal, a valuable right had accrued to the successful plaintiff. The power of attorney to file the appeal was with the counsel of WAPDA. The medical certificate attached with the application for condonation of delay shows that Khalid Mehmood was suffering from P.U.O. and was under treatment of the doctor and he was adi«ed bed rest for 5 days w.e.f. 16.5.1987 to 20.5.1987. The disease certified by the doctor was not so serious and he could easily contact his counsel and send the certified copy of the judgment and decree to him through other person. The learned Additional District Judge has given reasons for his refusal to condone the delay. The copy of the order of competent authority whereby the task of filing the appeal, delivery of the certified copy of the judgment and decree to the counsel for WAPDA, was assigned to Khalid Mehmood has not been annexed with the application for condonation of delay. I do not see any illegality or irregularity in the order refusing condonation of delay and also in the judgment and decree dismissing the appeal as barred by time. Pursuant to the above discussion, the revision fails and is dismissed in limine. (MBC) Petition dismissed.

PLJ 1991 Lahore 134 PLJ 1991 Lahore 134 Present: FATAL KARIM, J Mian GHULAM BARI-Petitioner versus WAPDA THROUGH ITS CHAIRMAN and 2 others-Respondents Civil Revision No. 2489, accepted on 18.11.1990 Civil Procedure Code, 1908 (V of 1908)-- —S.20 read with Order VII, R.lO-Damages-Suit for-Return of plaint- Challenge to-Whether Courts below were right in holding that civil courts at Lahore lacked territorial jurisdiction—Question of—WAPDA is a body corporate entitled lo acquire and hold property, have perpetual succession and a common seal-There is no doubt that it is statutory corporation-No distinction is made by Section 20 of C.P.C. between a statutory corporation and a corporation registered under Companies Ordinance,' and by friction of law, it is deemed to carry on business at sole or principal office-Fact is so well known that judicial notice can be taken that WAPDA has its principal office in Lahore-Held: Civil Courts at Lahore have jurisdiction to try suit-Petition accepted. [Pp.l35&137]A,B,C,D&E AIR 1971 SC 740 and (1906 (A.C.) 455) rel. PLD 1954 Sind 117 and PLD 1969 Lahore 453 distinguished Halsbury's Laws of England , Vol. 9, 4th Ed. Para 1201 ref. Mr. Muhammad Rashid Ahmad, Advocate for Petitioner. Ch. Ghulam Hassan Gulshan, Advocate for Respondents. Date of hearing: 6.11.1990. judgment By this petition under Section 115 of the C.P.C., the plaintiff, Mian Ghulam Bari, seeks the revision of the judgment of the learned Additional District Judge, Lahore, dated 4.6.1989, whereby the learned Additional District Judge dismissed the plaintiffs appeal against the order of the learned Civil Judge, Lahore, dated 12.9.1987. The learned Civil Judge, by that order, returned the plaint of the plaintiffs suit under Order VII Rule 10 of the C.P.C. 2. The short question requiring determination in this revision petition is I whether the learned Courts below were right in holding that the Civil Courts at | Lahore lacked territorial jurisdiction. This question arose as follows. 3. The plaintiff is running the publicity business in the name and style of "'Adservice' throughout Pakistan from Peshawar to Karachi, including Quetta" and has his office at Shahrah-e-Quaid-e-Azam. His business consists in displaying "the illuminated signs technically called 'Pole Plastic Signs'". He obtained permission from the Municipal Corporation, Faisalabad, 'for the fixation of such Plastic Signs with the street light electric poles and Rs.20/- per sign per month is paid as Publicity Tax" and also obtained electric energy from the defendants, namely, the Water & Power Development Authority (to be called the Wapda) and its officers in Faisalabad "for his then existing 16 Plastic signs". Disputes arose between the plaintiff and the Wapda on the payment of electricity charges and this led to a lengthy correspondence between them. By its letter dated 21.12.1980, the Wapda issued "disconnection order", saying that "since the plaintiff had not paid the bills by the grace date of 15.1.1981 he had forefieted his right to be charged under the net rate of tarriff applicable to his installations". Ultimately, the plaintiff had to make the payments under protest; yet his electricity supply was disconnected. 4. The plaintiffs case briefly was that this act of the Wapda and its officers resulted in immense loss to his goodwill; it also caused him mental torture and the "rude behaviour of defendant Nos.2 & 3 towards the plaintiff brought him under humiliation". He, therefore, claimed damages and quantified them as follows: For non display Rs. 3717.00 On account of reconnection fee Rs. 300.00 Labour charges Rs. 525.00 Cost of electricity,goods Rs. 1633.00 Labour charges Rs. 150.00 Mental torture Rs. 5000.00 Loss in reputation Rs. 10000.00 The total being Rs. 21,325.00 5. It was said that "the cause of action accrued to the plaintiff against the defendants at Lahore and the same has still subsisted for the reason that the defendants have not settled the account with the plaintiff inspite of his hard efforts" and that the cause of action arose at Lahore also because the principal office of the defendants is located here. 6. In the written statement, a preliminary objection, namely, that the Courts at Lahore have no jurisdiction to try the suit as the alleged incident of wrong bills took place at Faisalabad , was taken. 7. The learned trial Judge held that the suit fell within Section 20 of the C.P.C.; that under the second explanation to Section 20, "the defendants shall be deemed to carry on business at Faisalabad also. Admittedly the connection of the plaintiffs Plastic Signs was disconnected at Faisalabad and the alleged wrong bills were also issued there". 8. The learned Additional District Judge affirmed that finding. 9. Learned counsel for the parties agreed before me that the learned Courts below were right in holding that the case falls to be dealt with under Section 20 of the C.P.C. That section provides that "every suit shall be instituted in a Court within the local limits of whose jurisdiction— (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institutions; or (c) the cause of action, wholly or in part, arises". The second explanation to Section 20 enacts that "a corporation shall be deemed to carry on business at the sole or principal office or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place". 10. The learned Courts below appear to have" proceeded on the footing that this was a case of breach of contract and as the contract between the parties was allegedly entered into and broken at Faisalabad. only the Courts at Faisalabad had the territorial jurisdiction to try the suit. 11. It is contended for the plaintiff that his case comes both under clause (a) and clause (c) of Section 20 of the C.P.C. and as the principal defendant, namely, the Wapda, has its principal office in Lahore, he is entitled to invoke to his aid the provisions of clause (a) read with the second explanation. Learned counsel for the defendants, respondents herein, however argued that the expression "corporation" does not apply to statutory bodies like the Wapda. In his view, the Wapda is not carrying on any business in the ordinary sense of that word. The function it is performing as a statutory body is a delegated function of Government and it must, therefore, be treated on the same footing as the Federal or Provincial Government. For his contention, learned counsel referred to Muhammad Saeed Vs. Federation of Pakistan (PLD 1954 Sind 117) and Mian Fazal Muhammad Nizam-ud-Din Baig & Co. Vs. Tlie Province of West Pakistan and others (PLD 1969 Lahore 453). In both these cases, the suits were against Government and not against a Corporation and I do not think that these cases are helpful. 12. In my opinion, it is unnecessary in this case to decide whether the functions which under the Water and Power Development Authority Act, 1958, the Wapda performs are functions of Government. For whatever its business, if it is a corporation within the meaning of the Second Explanation to Section 20 of the C.P.C., then the place of its sole or principal office is the place where it carries on that business. 1.3. A corporation may be created under the law by one of the following methods: (1) by an Act of Parliament; (2) by an Act of a Provincial Legislature; or (3) under the Companies Ordinance, 1984. Corporations created under the Acts of Parliament and Provincial Assemblies are called statutory corporations. But whatever the method by which a corporation is created it is recognized as having a personality distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. (See Halsbury's Laws of England Volume 9, Fourth Edition, Para-1201). 14. The Wapda was created under Section 3 of the Water & Power Development Authority Act, 1958; it is a body corporate "entitled to acquire and hold property, shall have prepetual succession and a common seal and shall by B that name sue and be sued". There is, therefore, no doubt that the Wapda is a "statutory corporation" in the accepted sense of that expression. 15. Section 20 makes no distinction between a statutory corporation and a corporation registered under the Companies Ordinance, 1984, and there is, therefore, no doubt that the Wapda is within the provisions of Explanation II to Section 20. (See Hakam Singh Vs. M/s. Gammon (India) Ltd. AIR 1971 S.C.740). As that section makes no such distinction and by fiction of law, it is "deemed to carry on business at the sole or principal office" all that remains to be seen is whether it has its principal office at Lahore. For if it has, then it will be deemed to carry on business at Lahore . 16. Learned counsel for the respondents argued that Water & Power Development Authority Act nowhere says that the Wapda has its sole or principal office in Lahore. In this connection, it is pertinent to note that the averment in para 18 of the plaint, which averment was that the Wapda's principal office is located at Lahore, was not expressly denied in para 18 of the written statement. Learned counsel for the respondents was right in his assertion that there is nothing in the Act itself, saying that the principal office of the Wapda will be at Lahore. We may also assume that there is no such thing in the regulations made under Section 29 of the Act. But then the question will be a question of fact. As was observed in dc Beers Consolidated Mines Limited Vs. Howe (1906 (A.C) 455), where the contention was that a company resides where it is registered and nowhere else, "a company cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business". The true rule, it was held, is that "the real business is carried on where the central management and control actually abides". 17. The fact is so well known that we can take its judicial notice that the Wapda has its principal office in Lahore. It must, therefore, be deemed to carry on its business at Lahore. 18. In the result, I would set aside the judgments of the Courts below and hold that the Civil Courts at Lahore have the jurisdiction to try the suit. The parties are, however, left to bear their own costs. They shall appear before the learned Civil Judge, Lahore, on 18.12.1990. (MBC) Petition accepted.

PLJ 1991 Lahore 138 PLJ 1991 Lahore 138 Present: MALIK MUHAMMAD QAYYUM, J GLAXO LABORATORIES (PAKISTAN) LTD--Petitioner versus UNION COUNCIL, DULLU KHURD, DISTRICT LAHORE and 4 others- Respondents Writ Petition No. 6252 of 1990, accepted on 30.10.1990 Punjab Local Councils (Taxation) Rules, 1980-- —R.4 read with Punjab Local Government Ordinance, 1979, Section 137-Tax-- Imposition of-Challenge to-Respondents have failed to show that public notice as required by rule 4, was published in manner provided by law—There is neither any publication in newspaper nor any indication in record that notice was affixed on notice Board of Council-Notice on which reliance is placed by respondents, does not conform to provisions of sub-rule (4) as neither any date nor rate on which tax is sought to be levied, has been specified therein-Held: There can be no cavil that, if law requires certain formalities to be fulfilled before imposing any tax, provisions are deemed to be mandatory with result that non-compliance there of renders entire proceedings to be void-Held further: Impugned notification imposing tax upon petitioner is without lawful authority and of no legal effect. [Pp.l40&141]A,B,C&D PLD 1967 SC 299,1982 CLC 1252 and PLD 1983 Karachi 517 rel. Ch. Muslnaq Ahmad KJwn, Advocate for Petitioner. Mr. Muhammad Nawaz Bhatti, Advocate for Respondents 1 & 2. Nemo for Respondents 3 to 5. Date of hearing: 30.10.1990. judgment This judgment shall dispose of W.P. Nos.6252/90, 6552/90, 7062/90 and 7172 of 1990 in which common questions of law and facts arise. 2. The petitioners in all these petitions are carrying on their businesses in the local area falling within the jurisdiction of Union Council Dulu Khurd, Tehsil Lahore Cantt, District Lahore (respondent No.l). The petitioners have impugned the notification dated 16th August, 1990, whereby the respondent-No.l in the exercise of powers conferred upon it by section 137 of the Punjab Local Govt. Ordinance, 1979 read with the second Schedule has imposed a tax/octroi on the goods imported into the local area. The main plank of attack by the petitioners is the tax levied in a manner which is violative of the Act and the rules on the subject. The respondents, on the other hand, have contended that the impugned notification has been issued strictly in accordance with law and is not liable to be questioned before this Court. 3. In order to appreciate the respective contentions of the parties, it is necessary to make reference to the various provisions governing the subject. Section 137 of the Punjab Local Government Ordinance, 1979 authorises a local Council, subject to the provisions of any other law, to levy all or any of the taxes enumerated in the second schedule. Section 138 of the Ordinance ordains that all taxes levied by a local council shall be notified and shall, unless otherwise directed by the Government, be subject to previous publication. Section 144 of the Local Govt. Ordinance directs that all taxes and other charges levied by local council shall be imposed, assessed, leased, compounded, administered and regulated in such manner as may be provided by the Rules. 4. The Governor of Punjab in the exercise of powers conferred upon him by section 144 read with section 167 of the Punjab Local Government Ordinance, 1979 (Punjab Ordinance VI of 1979) has framed the Punjab Local Councils (Taxation) Rules,1980 which prescribe the procedure to be followed by the Local Council while imposing any tax which it is authorised by the Ordinance to levy. According to rule 3, of these Rules, while framing the annual budget or the revised budget of the local council, the Chairman of the local Council has to review the financial position of the local council and if in his opinion, the financial position calls for any change in the tax structure, he has to draw up a taxation proposal which is to be incorporated in the Appendix to the budget. Sub-rule(2) requires that there shall be a separate taxation proposal for each tax. After the annual or revised budget has been sanctioned in accordance with section 130 of the Ordinance, the Chairman is required by rule 4 to issue a public notice in respect of each taxation proposal which has inter alia to specify, the main features of the proposed tax, the class of persons and description of property or both, affected thereby, the amount or rate of tax to be imposed, increased, reduced or modified; the justification for taxation proposal. Similarly, the Chairman has to publish a taxation programme specifying the date which shall be not less than 30 days from the publication of the preliminary taxation proposal, by which the objections and suggestions to the preliminary taxation proposal can be filed by the inhabitants. Under sub-rule(5), the Local Council has to appoint a Sub­ committee consisting of the Chairman and such other members as may be specified to examine the objections and suggestions received. The Sub-Committee after hearing the suggestions in public on the close of the hearing is required to draw up and to send to the Local Council by the date specified for this purpose in the taxation programme, a detailed report under sub-rule(4) of rule 5. Thereafter the Local Council has to consider the report of the Sub- Committee in a special meeting convened for this purpose on the date mentioned in the taxation programme as required by rule 4(2)(fo). If the Chairman accepts the report of the Sub-Committee he has to modify the taxation proposal accordingly but if he does not agree with the recommendation of the Sub- Committee he has to place on record the grounds for dis-agreement. The taxation proposals which may either be accepted or rejected, as the case may be, by the majority vote in the special meeting of the Council. If the taxation proposals are sanctioned by the Local Council, the notification in the form of a public notice must be published in the official gazette and the taxation proposals sanctioned by the Local Council come into force on or from the such date as may be specified in the notification. 5. Though it was specifically averred in these petitions that the octroi duty has been levied by the respondents without following the provision of section 137 of the Ordinance as well as Punjab Local Councils (Taxation) Rules, 1980, in the report submitted by the respondents the various steps taken by it before levying the tax have unfortunately not been detailed. It has, however, been averred that the tax has been levied strictly in accordance with law and rules framed thereunder. Respondent No.2 was directed consequently, to produce the relevant record before this Court which has been perused with the assisstance of the learned counsel for the parties. 6. Unfortunately no proper record has been maintained by respondent No.2 in this connection. The only documents produced before this Court were a public notice and the resolution passed by the Local Council which recite that despite notice which was given sufficient publication as required by the Rules, no objections have been submitted by any one and, therefore, the taxation proposal was approved. The petitioners, on the other hand, have contended that no notice was ever published. 7. After hearing the learned counsel for the parties and perusing the available record, it becomes evident that the respondents have failed to show that the public notice as required by rule 4 was published in the manner provided by law. Though there is a photostat of the notice available on the file of the Union Council but there is no report by any of the official that the notice has been published in the requisite manner. It may, at this stage, be mentioned that according to section 174 (4) of the Act, a notice intended for the public in general shall be deemed to have been sufficiently served if a copy thereof has been affixed on the notice board fixed by the local council at a conspicuous place of its office premises or published in a local newspaper. There is neither any publication in the newspaper nor any indication in the record that the notice was affixed on the notice board of the Council. Reference may also be made to West Pakistan Municipal Committees (Issue of notice) Model Bye Laws, 1960, Bye-law 6 whereof provides that a person by whom and under whose supervision a public notice is affixed on a notice board shall certify that the notice has been duly affixed and the Committee shall ensure that the notice remains on the notice board for a sufficient time. Unfortunately, even the name of the person who has stated to have affixed the notice on the notice Board is not forthcoming on the record. 8. Another important fact to be noticed is that the notice on which reliance has been placed by the respondents does not conform to the provision of sub-rule (4) of the Punjab Local Councils (Taxation) Rules, 1980 as neither any date nor the rate on which the tax is sought to be levied have been specified therein. There s as such manifest violation of the rules. 9. There can be no cavil, that if law requires certain formalities to be fulfilled before imposing any tax, the provisions are deemed to be mandatory with the result that non-compliance thereof renders the entire proceedings to be void. The Supreme Court of Pakistan in the case of Tlie Sukkitr Municipal Committee and others Vs. Muzaffar-ud-Din and another (P.L.D. 1967 S.C.299) while construing section 75 of the Sind Municipal Boroughs Act,1925 was pleased to observe that the main object of this section appears to be that the rate-payers must be given adequate notice with sufficient time in order to enable them to object to the proposed tax or duty. If the Legislature intended that such an opportunity must be provided to the tax-payers the respondent cannot of its own neglect be allowed to take away this right. In Kotri Association of Trade & Industry Vs. Govt. of Bind & another (1982 C.L.C.1252) the Sind High Court held that if citizens are subjected to a tax then the general principle of law is that all the prescribed formalities required to be fulfilled must be fulfilled and in case there is a default or failure to comply with the legal formalities the benefit must go to the citizens. The above view was reiterated by the same Court in Burshane ( Pakistan ) Ltd. Vs. Cantonment Executive Officer, Cantonment Board of Korangi Creek, Karachi (P.L.D.1983 Kar.517). Another principle which must be kept in mind while dealing in such like matters is that there is no equity in favour of a tax which is compulsory exaction of money from the public and, therefore, any disregard of the procedure prescribed for levying the tax cannot but be looked at with disfavour. 10. The learned counsel for the respondents raised an objection as to the maintainability of these petitions on the ground that the petitioners have not availed of the alternate remedy available to them of approaching the Govt. through a representation in terms of section 153 of Local Government Ordinance, 1979. This contention of the learned counsel is without any force. Section 153 empowers the Govt. to exercise general supervision and control over the local councils but this remedy can neither be said to be adequate nor efficacious. For the foregoing reasons, all these petitions are accepted and the impugned notification dated 16.8.1990 imposing the tax upon the petitioners is declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs. (MBC) Petitions accepted.

PLJ 1991 Lahore 141 PLJ 1991 Lahore 141 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD KHALIL-Petitioner versus Mst. ZAHIDA PAR VEEN and 2 others-Respondents Writ Petition No. 7245 of 1990, accepted on 24.11.1990 Punjab Court Fees (Abolition) Ordinance, 1983 (X of 1983)-- —-S.2 read with West Pakistan Family Courts Act, 1964, Section 19- Maintenance—Suit for recovery of—Decree passed in—Appeal against— Whether memorandum of appeal was exempt from court-fee—Question of~ Section 2 of Ordinance provides that no court-fee is chargeable in respect of any civil case, value of which does not exceed Rs. 25,000/- and this concession is available at all stages of case—Appeal is a continuation of suit—Family Court is a court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and not a persona desigiiata-Rights which are adjudicated upon by Family Courts are civil rights—Held: In view of Section 2 of Ordinance, no Court-fee was payable on memorandum of appeal and it could not be dismissed for failure to make up deficiency in court fee—Petition accepted. [Pp.l43&144]A,B,C&D PLD 1968 Lahore 987, PLD 1970 SC 1, PLD 1978 Lahore 716 and PLD 1983 Lahore 383 rel. Mr. Muhammad Shaukat Hashmi, Advocate for Petitioner. Mr. Pervaiz I. Mir. Advocate for Respondent No. 1. Nemo for Respondents 2 & 3. Date of hearing: 4.11.1990. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order of the Additional District Judge Lahore dated 5th June, 1990 whereby he dismissed the appeal filed by the petitioner against the decree of the Family Court on the ground that the deficiency in Court fee had not been made up despite the order passed by him on 16th May, 1990. 2. On 29th January, 1989 a suit for recovery of maintenance was filed by Mst.Zahida Parveen respondent No.l against Muhammad Khalil petitioner in the Family Court at Lahore. The suit after contest was decreed by the Family Court on 20th January, 1990 and the petitioner was directed to pay maintenance at the rate of Rs.1000/- per month w.e.f. 18.2.1988. 3. Aggrieved by this decision, the petitioner filed an appeal under section 14 of the West Pakistan Family Court Act 1964. A court-fee of Rs.15/- only was affixed on the appeal. On an objection being raised by the respondent, the Additional District Judge by his order dated 16th May, 1990 directed the petitioner to pay advalorem court-fee on the amount of maintenance awarded by the Family Court. This order having not been complied with, the memorandum of appeal was rejected by the Additional District Judge on 5th June, 1990. 4. The learned counsel for the petitioner has contended that as the amount of maintenance awarded by the Faimly Court was less than Rs.25,000/- no courtfee was payable on the memorandum of appeal in view of the Punjab Court Fee (Abolition) Ordinance 1983. The learned counsel for respondent No.l, on the other hand, maintained that though under section 19 of the West Pakistan Family Courts Act 1964, a court-fee of Rs.15/- is payable on the plaints but this provision has no applicability to the memorandum of appeal on which advalorem court-fee should be paid. Reliance was placed on Mina DaudBaig v. Additional District Judge, Gujranwala and others (1987 S.C.M.R.1161). By means of its judgment and decree dated 20th January, 1990 the Family Court had awarded maintenance at the rate of Rs.1000/- per month w.e.f. 18th February, 1988 and as such when the appeal was filed on 27th January,1990, a sum of Rs.19,000/- was due from the petitioner. In view of the authoritative pronouncement of the Supreme Court of Pakistan in case Mina Daud Baig v. Additional District Judge Gujranwala and others (1987 S.C.M.R.1161) it cannot be urged with any success that section 19 of the W.P. Family Courts Act 1964 which provides that notwithstanding any thing contained contrary to the court Fees Act 1872, a court fee of Rs.15 only shall be paid on any plaint, should be applied to the memorandums of appeals also. In the precedent case it was held that the memorandum of appeal is distinct and different from a plaint and as section 19 does not make mention of memorandum of appeals, advalorem court-fee should be affixed on memorandum of appeals as required by the Court Fee Act 1872. If the matter had rested there, the appellant was undeniably liable to pay advalorem court-fee on his appeal. 5. The position however is different in view of the promulgation of Punjab Court Fees (Abolition) Ordinance 1983, Section 2 whereof is reproduced as under: - "Abolition of Court Fee in certain cases-Notwithstanding any thing to the contrary contained in the Court Fees Act.1870 (VII of 1870) or any other law for the time being in force or in any Rule, Notification or Order no Court-fee shall be chargeable by any Court or payable in respect of~ (a) .Any criminal case: and (b) Any case of civil nature the value of the subject matter whereof or the relief claimed wherein does not exceed 25,000/- rupees". This provision provides that no Court-fees is chargeable in respect of any civil case, the value of the subject matter of which, does not exceed Rs.25,000/-. This concession according to the explanation ...... is available at all stages of the case and before all Courts. It cannot be denied and is since long well settled that the appeal is a continuation of the suit and is a stage in the same case. The question as to whether the Family Court is a Court also does not present any difficulity. Section 3 of the Punjab Family Courts, Act.1964 empowers the Government to establish Family Courts and to appoint a Judge for each of such Courts. It is thus obvious that the Family Court is a Court and matter falling within its jurisdiction is entrusted to it in its capacity as a Court and not a persona designata. This view finds support in the judgment by this Court in Mst.Gaman Vs. Taj Din (P.L.D.1968 Lahore 987). The next question which arises is whether the cases before the Family Courts are of civil nature. It was observed by the Supreme Court of Pakistan in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (P.L.D.1970 S:C.l) that:- "In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding". Undoubtedly, the rights which are adjudicated upon by the Family Courts are civil rights. In Mirza Daud Baig . Additional District Judge, Gujranwala and others (1987 S.C.M.R.1161) it was observed that "Family Court is a Civil Court in every sense despite the exclusion of the Code of Civil Procedure and the Evidence Act 1872 in their application to proceedings before such a Court". Similar view was taken by a Division Bench of this Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi etc. (P.L.D.1978 Lahore 716) wherein it was laid down that the Family Court was a civil Court notwithstanding having been created by a special statute and mentioned in act as distinct from civil Court.From the above discussion it emerges that in view of section 2 of Ordinance X of 1983, that no Court fee was payable on the memorandum of appeal filed by the petitioner and the appeal could not be dismissed for failure to make up the deficiency in Court fee. This view finds support from the judgment of this Court in Abdul Ghafoor v. Muhammad Raflq and others (P.L.D.1983 Lahore 383). 6. The learned counsel for respondent No.l, however, contended that the appeal of the petitioner was even otherwise not competent as he has failed to file a certified copy of the decree of the trial Court alongwith the appeal or even subsequently as directed by the lower .appellate Court. However, as the memorandum has not been rejected on this ground, this question needs not be decided. It shall be open to respondent No.l to raise such an objection before the Additional District Judge in the post remand proceedings. As a result of what has been stated above this petition is accepted and the orders of the Additional District Judge dated 16th May,1990 and 5th of June, 1990 are declared to be without lawful authority and of no legal effect with the result that the appeal filed by the petitioner shall be deemed to be pending before the Additional District Judge and shall be decided afresh in accordance with law. No order as to costs. The parties are directed to appear before the Additional District Judge on 5thofDecember,1990. (MBC) Petition accepted.

PLJ 1991 Lahore 144 PLJ 1991 Lahore 144 Present: MALIK MUHAMMAD QAYYUM, J KHAN MUHAMMAD-Petitioner versus ADDITIONAL DISTRICT JUDGE ^--Respondents Writ Petition No. 3436 of 1988, dismissed on 3.11.1990 (i) Estoppel-- —Pre-emption suit-Exparte decree in-Decree set aside under Order IX Rule 13-Challenge to-Contention that Civil Judge who set aside exparte decree, was Civil Judge Illrd Class and had no jurisdiction-No such objection was raised by petitioner before learned Civil Judge who set aside exparte decree nor even before revisional court-Petitioner had been appearing without any protest and has as such acquiesced in proceedings and cannot be permitted to raise such an objection for first time before High Court—Held: Relief under Article 199 of Constitution being discretionary and even if order impugned before High Court suffers from legal error, High Court will not interfere if petitioner is disentitled by his conduct or on principle of estoppel, to grant of any relief. [P,146]A 1983 SCMR 1768 rel. (ii) Exparte Decree- —Pre-emption suit--Exparte decree in--Decree set aside under Order IX Rule 13-Challenge to-Substituted service can only be ordered where court is satisfied that defendant is keeping out of way for purpose of avoiding service or for any other reason, summons cannot be served in ordinary way—Trial Court, by setting aside exparte decree, has done substantial justice between parties who have been restored to their original position-Held: Law favours adjudication on merits after providing parties sufficient opportunities of being heard and technicalities cannot be allowed to come in way of achieving this supreme object—Petition dismissed [Pp.l46&147]B&C PLD 1968 Lahore 792 and 1985 SCMR 491 rel. Malik Noor Muhammad A wan, Advocate for Petitioner. Nemo for Respondents 1 and 2. M/s Lai KJian Balooch and Shahbaz Saeed Sajid, Advocates for Respondents 3 to 6. Nemo for Respondents 7 & 8. Date of hearing: 3.11.1990 judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment of the Additional District Judge, Sargodha dated 8.5.1988 whereby he dismissed a revision petition filed by the petitioner and affirmed the order of the trial Court dated 4.2.1988 setting aside the ex pane decree dated 27.2.1984 passed in favour of the petitioner and against Muhammad Nazir Ahmad, predecessor of respondents Nos. 3 to 7 and Umar Hayat, respondent No. 8, 2. Briefly stated the necessary facts are that a suit for possession through pre-emption was filed by Khan Muhammad petitioner against Umar Hayat, respondent No. 8 and Muhammad Nazir Ahmad, predecessor of respondents Nos. 3 to 7 with respect to agricultural land situate in Chak No. 4/NB, Tehsil Bhalwal, District Sargodha. This suit was decreed ex parte in favour of the petitioner on 27.2.1984. On llth May, 1986, an application under Order 9 rule 13 C.P.C. was filed by Muhammad Nazir Ahmad for setting aside the ex parte decree on the ground that he was not served with any summons in the suit. This application was contested by the petitioner. The trial Court after framing the necessary issues and recording the evidence of the parties found that Muhammad Nazir Ahmad had not been served in accordance with law in the suit and the er pane decree was liable to be set aside. It was also held that the application for setting aside the decree was within time from the date of the knowledge. Aggrieved of this order the petitioner filed a revision which was dismissed by the Additional District Judge on 8.5.1988, 3. Malik Noor Muhammad Awan, learned counsel for the petitioner, firstly contended that the learned Civil Judge who set aside the ex parte decree was enjoying the powers of a Civil Judge III Class and could only deal with the matters the value of the subject matter of which did not exceed Rs. 20,000/- and as such the order passed by him is without jurisdiction as the suit in which decree was passed was valued for the purpose of jurisdiction at Rs. 90,616/-. No such objection was raised by the petitioner before the learned Civil Judge who was hearing the application for setting aside the ex parte decree nor even before the revisional Court. The petitioner had been appearing without protest or reservation before the Civil Judge and has as such acquiesced in the proceedings and cannot be permitted to raise such an objection for the first time before this Court. It is since long settled that the grant of relief in a petition under Article 199 of the Constitution is in the discretion of the Court and even if the order impugned before the High Court suffers from legal error the High Court will not interfere if the petitioner is disentitled by his conduct or on the principle of estoppel to grant of any relief. (See Muhammad Ismail vs. Abdul Rashid and two others (1983 SCMR 168)). It is interesting to note that the petitioner had himself filed revision before the District Court although revisions arising out of suits, the valuation of the subject matter of which is more than Rs. 50,000/- were at that time filed before this Court and not the District Courts. Be that as it may, no prejudice has been shown to have been caused to the petitioner by disposing of the application under Order 9 rule 13 C.P.C. by the Civil Judge and on the principle contained in section 11 of the Suits Valuation Act, 1887, no relief can be granted. This provision though not strictly applicable embodies a salutary rule of law which can be extended to the present case. 4. It was next contended by the learned counsel for the petitioner that the application filed by the predecessor of respondents Nos. 3 to 7 and respondent No. 8 was barred by time even from the date of their knowledge inasmuch as they had obtained a copy of a mutation on 28th November, 1985 in which the fact that an ex parte decree has been passed against him stood duly recorded. Both the Courts below have held that the ex parte decree was procured by the petitioner by practising fraud by providing wrong address of the defendant. The fact that the defendant was not residing at the given address also stands established by the report made by the Process Server on the summons. Unfortunately, however, the trial Court instead of insisting that the correct address of the respondents be supplied, proceeded to direct service through substituted means for which there appears to be no justification at all. Under Order 5 rule 20 C.P.C. substituted service can only be ordered, where the Court is satisfied that there are reasons to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It was held in Malik Muhammad Nazir vs. Mian Abdur Rahim and another (PLD 1968 Lah. 792) that where there was no sufficient material on the record to show that a defendant is either avoiding service or refusing to accept the service, the order for substituted service could not have been passed nor can ex parte proceedings be ordered on the basis of such service. It was further observed in the precedent case that in such like matters the question of limitation does not arise and the application would be governed by Article 181 of the Limitation Act, 1908. This view, I respectfully follow. 5. Be that as it may, the trial Court by setting aside the ex parts decree has done substantial justice between the parties who have been restored to their original position. Consequently, even if some illegality as alleged by the learned counsel for the petitioner has been committed by the lower Courts, I am not inclined to interfere in the exercise of constitutional jurisdiction of this Court, inasmuch as it is still open to the petitioner to prosecute his suit on merits against the defendants. There cannot be any cavil with the proposition that the law favours adjudication on merits after providing the parties sufficient opportunities of being heard and technicalities cannot be allowed to come in the way of achieving this supreme object. Reference may be made to Gill Muhammad and others vs. Tlie Additional Settlement Commissioner and others (1985 SCMR 491). For the reasons aforesaid, this writ petition is dismissed leaving the parties to bear their own costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 147 PLJ 1991 Lahore 147 Present: GUL ZARIN KlAM, J Mian MUHAMMAD YASIN-Petitioner versus THE MUSLIM COMMERCIAL BANK LTD--Respondent Civil Revision No. 1078 of 1985, dismissed on 27.11.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XXXVII R. 4-Recovery suit-No application to appear and defend suit filed-Suit decreed-Challenge to-Rule 4 of Order XXXVII C.P.C. empowered court to set aside decree under "special circumstances"— "Special circumstances" have not been defined in Code-Obviously those are not synonymous with "sufficient cause"-In this case, no special circumstances have been shown for entitling petitioner to clairp benefit of rule 4-When petitioner had engaged an Advocate, there was no reason for not filing of necessary application for leave to appear and defend suit—Held: Impugned judgment is correct and there is no room to interfere with it—Petition dismissed. [Pp.l48&149]A Ch. Nawabuddin Mahmood, Advocate for Petitioner. Syed Manzoor Hussain Bokhari, Advocate for Respondent. Date of hearing: 27.11.1990. judgment Respondent brought a civil suit in summary jurisdiction, under Order XXXVII, Civil P.C. against Mian Muhammad Yasin petitioner for recovery of Rs. 23836.25, on the basis of a Promissory Note guaranting repayment of the loan. Suit was instituted in the Court of District Judge, Lahore . It was entrusted for trial to a Civil Judge, 1st Class. Upon being served and appeared in Court through an Advocate, petitioner did not apply for leave to appear and defend the suit in time. Consequently, on 13.10.1980, the trial Court struck off his defence and adjourned rhe suit to 18.10.1980 for recording of respondent's proof. On 18.10.1980, counsel for the respondent produced documentary evidence marked Exhts. P.I to P.4 and closed the case. Upon the material brought on record, the trial Court decreed the suit with costs in favour of the respondent on the same day. It may be observed that on this date of hearing, the Advocate representing the petitioner was also marked present. On 23.1.1982, petitioner applied for setting aside of the decree passed against him on 18.10.1980. Respondent contested the application. On 3.1.1983, application was dismissed on merits, by the trial Court. Appeal filed against the decision also failed. Thereafter, an objection petition under Section 47, rsad with Section 12(2), Civil Procedure Code was filed by the petitioner for setting aside of the decree dated 18.10.1980. It was dismissed by the trial Court on 10.10.1983. Yet another application under Order XXXVII rule 4 Civil Procedure Code was filed by the petitioner. It was also dismissed on 8.12.1983 by the trial Court holding that it was barred by res-judicata. Against the orders dated 10.10.1983 and 8.12.1983, a single appeal was filed in the Court of learned District Judge, Lahore. It came to be heard by a learned Additional District Judge of that district who by the impugned order dated 1.4.1985, dismissed the appeal. Against his decision, a petition in revision has been filed in this Court. It was admitted on 10.7.1985, and, execution of impugned money decree was suspended. Learned counsel for the parties have been heard. With their assistance, original record has also been looked into. Mam burden of the -arguments advanced by the learned counsel for the petitioner was that an official hi the Bank committed fraud upon the petitioner and misappropriated a substantial portion of the loan amount by which the petitioner stood deprived of the benefit of loan amount, and, therefore, could not be held liable for its repayment. This is hardly a 'speriaF circumstance envisaged in rule 4 of Order XXXVII Civil Procedure Code tor tecalling of the Court decree. There is no dispute that petitioner was served in the suit filed against him by the respondent. He entered appearance in the suit through an Advocate engaged for the purpose. Power of Attorney executed in favour of the defendant is available on the trial Court's file. Despite that, for reasons best known to .him, the petitioner did not choose to file an application for leave to appear and defend the suit within the time. Consequently, the trial Court struck off his defence and instead of passing of a decree forthwith on the allegations in the plaint which shall be deemed to have been admitted in his default, it took evidence from the respondent-Bank and upon being satisfied passed judgment against the petitioner. It may be observed that the learned Advocate appearing for the petitioner in the trial Court was marked present even on the date of issue of decree by the trial Court. Upon this view of the record, petitioner could be safely fixed with the knowledge of the proceedings in the suit and the decree against him. Despite that circumstance, an application for setting aside of the decree was delayed much. There is no plausible explanation for delaying that action. As observed above, application for setting aside of the trial Court decree dated 18.10.1980, was dismissed, and appeal filed against it also failed. Application filed under Section 12(2) CPC also failed. There is no doubt, | that original decree was appealable but no appeal was filed against it. Be that as it A may, Rule 4 in Order XXXVII CPC empowered the Court to set aside the decree under 'special' circumstances and if necessary stay or set aside execution and may even give leave to appear and defend that suit but that can take place only if 'special' circumstances are shown to exist. What are those 'special' circumstances, have neither been defined in Order XXXVII, Civil Procedure Code nor elsewhere. Obviously, those are not synonymous with 'sufficient cause'. Term 'special' in Webster's New International Dictionary (second edition) is defined as distinguished by some unusual quality; uncommon; noteworthy; extraordinary; as, a special occasion; especially, distinguished by superior excellence, importance, power, or the like. In the Shorter Oxford English Dictionary on Historical Principles, term 'special' is defined as of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree. The Concise Oxford English Dictionary says that 'special means of a particular kind, peculiar in general. Therefore, under rule 4 CPC, the defendant is obliged to explain the 'special' circumstances which prevented him from appearing in the Court to seek leave to appear and defend the suit within time or other 'special' circumstances which may authorize the Court to set aside the decree already passed by it. Rule 4, CPC, is intended to prevent injustice. In the instant case, no 'special' circumstances have been shown for entitling the petitioner to claim benefit of rule 4 CPC. Facts in the case depict it as a clear case of sheer negligence in the conduct of the defence. It is seen from the record that the petitioner was served by the process of the Court in specified form. Thereupon, he engaged the services of an Advocate, and, filed his power in Court and appeared also. To say that petitioner was not served in the suit is neither here nor there. It is clearly a false statement. Power of attorney present on the trial Court's file bears his signatures which closely resemble with his admitted signatures. Even otherwise, it is not believable that an Advocate without authority shall enter appearance in a proceeding before a Court of law. When the petitioner had engaged an Advocate who had appeared in Court also, there was no reason whatsoever for not filing of the necessary application for leave to appear and defend the suit. From the record, it could be clearly inferred that the petitoner wilfully avoided to apply for leave to appear and defend the suit with the sole object to put off dooms-day as far as he could and as the subsequent events would show in that he succeeded to some extent. Upon above view, impugned judgment is correct and there is no room to cause interference with it. Civil revision is, accordingly, dismissed with costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 149 PLJ 1991 Lahore 149 Present: Mian NAZIR AKIITAR, J MUHAMMAD ISMAIL and 2 others-Appellants versus MUHAMMAD DIN-Respondent R.SA. No. 120 of 1985, dismissed on 24.7.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XVII R. 3--Pre-emption suit-Evidence--Closure of~Challenge to- Whether trial court was justified in closing evidence of appellants—Question of-Appellants (defendants) were granted adjounment on payment of Rs. 12/- as costs and it was noted that no further adjournment would be granted to them for production of evidence—Held: On failure to appear in court and produce evidence, trial eourt was justified in closing evidence of appellants (defendants) under Order XVII, rule 3 of C.P.C. [Pp.l51&152]A (ii) Waiver— —Pre-emption suit-Waiver of right-Claim of-Whether respondent (plaintiff) had waived his right of pre-emption—Question of—Mere presence of respondent (plaintiff) at time of bargain, writing of sale-deed and its registration, was not sufficient to give rise to inference that he had waived his right-There is nothing on record to show that he had actually assisted vendee either to strike bargain with vendor or thereafter to complete sale transaction- Burden of issue pertaining to waiver was never discharged by appellants and respondent's evidence did not establish conscious abandonment of right of pre-emption—Held: Appellate court was justified in reversing findings of trial court on issue pertaining to waiver. [Pp.l52,153&154]B,C&D AIR 1925 Lahore 57, PLD 1972 Pesh. 146, PLD 1984 SC 403,1985 MLD 1481 PLD 1954 Lahore 541 and 1982 SCMR 33 ref. Mr. Masood laved, Advocate for Appellants Mr. Naveed Saeed KJian, Advocate for Respondent. Date of hearing: 16.5.1990. judgment This appeal arises out of a suit for possession through pre-emption filed by Muhammad Din respondent on 23.7.1969 in the court of the Civil Judge Narowal to pre-empt the land measuring 19 Kanals 2 Marias situated in village Sankatrah, Tehsil Narowal, District Sialkot. The land was sold by Muhammad Shafi in favour of the appellants through a sale deed dated 19.8.1968, registered on 4.10.1968 for a sum of Rs. 8,000/-. The pre-emptive right was claimed on account of being collateral of the vendor, co-sharer in the Khata and owner in the estate. It may be mentioned that Muhammad Din plaintiff is the first cousin of Muhammad Shafi vendor. 2. The suit was resisted by the appellants and following issues were framed on the pleadings of the parties:- 1. Is the suit not properly valued for purposes of court fee? OPD 2. Is the plaintiff estopped by his conduct to bring this suit? OPD 3. Has plaintiff waived his right of pre-emption? OPD 4. Is the suit not maintainable on account of preliminary objection No. 3 of written statement? OPD 5. Has the plaintiff superior pre-emptive right as against the vendee/defendant? OPD 6. Were Rs. 8,000.00 paid or fixed in good faith as the sale price of the suit land? OPD 1. On non proof of the above issue, what was the market value of the suit land at the time of sale in dispute? OPD 8. Relief. The case was fixed for defendants'/appellants' evidence on 4.1.1971, who were not present in the court. Their evidence was ordered to be closed under Order XVII, rule 3 of the CPC. The court heard arguments of the plaintiff/respondent and adjourned the case for 5.1.1971 for orders. The suit was dismissed by the court vide judgment and decree dated 5.1.1971. The respondent filed an appeal "which was dismissed for non-prosecution on 8.12.1971. On 27.6.1972 the respondent filed an application for restoration of the appeal which was rejected vide order dated 30.6.1972. The said order was challenged by the respondent through FAO No. 188 of 1972 which was accepted by this Court on 24.10.1984 and the case remanded for a fresh decision on merits. The appeal was accordingly restored by the appellate court vide order dated 6.3.1985 and allowed on merits by the learned District Judge, Sialkot vide judgment and decree dated 14.4.1985. Hence this appeal. 3. The learned counsel for the appellants urged that the appellate court committed an error of law in reversing the findings of the trial court on issue No. 3 pertaining to waiver. He pointed out that the plaintiff respondent was present on the occasions of bargain, writing of the sale-deed and registration of the sale deed but never objected to it. This, according to the learned counsel, was sufficient to show that he had waived his right. He also urged that the appellants' evidence was wrongly closed under Order XVII rule 3 of the CPC on 4.1.1971, which was not a date of hearing. At any rate, it was not the adjourned date fixed at the instance of the appellants. He placed reliancle on Bhagat Ram v. Raghbar Dial and others (A.I.R. 1925 Lahore 57), Muhammad v. Raz Gul (PLD 1972 Peshawar 146) and Naseer Ahmad Vs. Arshad Ahmad (PLD 1984 S.C. 403). On the other hand the learned counsel for the respondent contended that the burden of proving issue No. 3, pertaining to waiver, was on the appellants/defendants. They did not enter into the witness box as their evidence was closed under Order XVII rule 3 of the CPC. Therefore, the appellate court had rightly reversed the findings on the said issue. He also pointed out that the order passed on 4.1.1971 closing evidence of the appellants was never challenged by them. He further urged that the application for additional evidence submitted by the appellants was rightly rejected by the appellate court. Out of a large number of judgments cited by the learned counsel for the respondent, I would refer to a few relevant cases which are: Sakhi Muhammad and another Vs. Muhammad Yar and others (1985 MLD 1481), Muhammad Din Vs. Muhammad Aslam (PLD 1954 Lahore 541) and Muhammald Saleh Vs. Muhammad Shafi (1982 SCMR 33). On the basis of these cases, he urged that mere presence of the plaintiff at the time of registration of bargain was not sufficient to prove waiver of his right. 4. I have considered the contentions raised by the learned counsel for the parties and perused the relevant material on the record. On 12.9.1970 the trial court had recorded the affirmative evidence of the plaintiff. The appellants' evidence was not available. The reason stated by the appellants' counsel was that another case between the same parties was pending before the court in which evidence was to be recorded on the same date i.e. 12.9.1970. Hence due to misunderstanding appellants/defendants could not produce evidence in the case. Treating it to be a good reason, the court granted adjournment to the appellants | on payment of Rs. 12/- as costs. It was also noted in the order that no further ! adjournment would be granted to the appellants for production of evidence. Keeping in view the order dated 12.9.1970 the trial court was justified to close the appellants' evidence under Order XVII, rule 3 of the CPC. This order was not challenged by the appellants because the suit was dismissed by the trial court and respondent's appeal was also dismissed for non-prosecution. I allowed the learned counsel for the appellants to challenge the correctness of the said order but he has not been able to persuade me to agree with his view point that the said order was erroneous in law. The appellants had obtained adjournment for producing evidence on payment of Rs. 12 as costs. It was also ordered in their presence that last opportunity was being granted to them for the said purpose. This position was accepted by the appellants. Thereafter on their failure to appear in the court and produce evidence the trial court was justified in closing their evidence under Order XVII, rule 3 of the CPC. As regards the question of waiver I find that the burden to prove the said issue was placed on the appellants. No evidence was produced by them to discharge the onus placed on them because their evidence was closed under Order XVII rule 3 of the CPC. Hence, in the normal course, the finding on this issue must have been recorded in favour of the plaintiff/respondent. As regards the presence of the respondent /plaintiff at the time of the bargain, writing of the sale deed and registration of the sak deed. suffice it to say that mere presence of the respondent/plaintiff was not sufficient to give rise to the inference that he had waived his right of pre-emption. It appears that in his anxiety to establish that a sum of Rs. 5.000/- was returned kf the vendees to the vendor in his presence, he claimed (perhaps wrongly) to be present on the above referred three occasions. He had also stated tkai he had Bed another pre-emption suit against the vendees 'appellants in respect of safe cf ] other land from the same Khata. In view of the previous Hrieatio vendees were not expected to enter into a bargain and scribe the sate deed • the presence of the plaintiff. Even if his statement is accepted to be tnc as a whole, this would only show that he had earlier asserted his right of pre-emption and had been keenly watching the subsequent transaction so that he may »«rin^ a pre­ emption suit on payment of the price actually paid by the vendees, wel MthiB the period of limitation. The sale deed was registered on 4.10.1968 and pre-entptkm suit was instituted on 23.7.1969. Hence the appellate court rightly held that there was no waiver by conduct on the part of the respondent in the present i 5. Now a reference may be made to the judgments relied upon by the learned counsel for the appellants. In Bhagat Ram's case finding of acquiescence was recorded against the plaintiff/pre-emptor for the reason that he had actually participated in setting the bargain," collecting money, counting it at the Sub- Registrar's office and effecting registration of the sale deed in favour of the vendee. The relevant portion is reporduced below:- "It is quite clear that mere presence at the time of registration is not sufficient to prove acquiescence. But where, as here, we have the fact that father of the pre-emptor had taken an active part in the negotiations, that the pre-emptor himself assisted in collecting the money and was not merely a silent spectator of the actual registration, but took an active part there and where he has delayed as here in bringing his suit up to the last possible moment, we are of opinion that all these facts taken together point conclusively to such acquiescence throughout as must have influenced the vendee in concluding the transaction". In Muhammad's case two brothers had instituted a suit for pre-emption out of whom one was found to ha\e waived his right, who subsequently withdrew from the suit by filing an application under Order XXXIII, rule 1 of the CPC, it was held that the other brother was not disentitled to sue for pre-emption. In this background, it was emphasised that waiver could be proved if a person had committed an;, pesitr.e act in the completion of the sale deed. This of course is far from holding that a person would be deemed to have waived his right if he is merely preser.: a: the time of bargain or registration of the sale deed. In Naseer Ahmad s case the evidence clearly established that Haider, the vendor, had first offered :he iar.d for sale to Naseer Ahmad, petitioner for Rs. 16,000/- through Punch^t b_: the latter had refused to buy it. In this context it was held that the right : rre-e~p;ion being piratory right, where a person remained associated M-ith th; -aic-rrxeedings or refrained from bidding at auction of the disputed proper:;- ar.d plugged in his claim to purchase a certain piece of land or property after atther person had purchased it, he did not deserve relief through court of law. I- :he rresent case as observed above the plaintiff/respondent had claimed to be presert at the time of bargain, writing of the sale deed and registration of sale deed "t :h:-re is nothing to show that he had actually assisted the vendee either to strike the "arzair. with the vendor or thereafter to complete the sale transaction. The:. :- r. •thing to show that the land was ever offered to the respondent at t heprice- - -• "-died in the sale transaction. Moreover, the plaintiff had claimed that he had eav.-' instituted a suit against the vendees/respondents to pre-empt sale of r:e;e f land from the same Khata out of which the sale in question was .".-.- •'.:,;•. persuades me to believe that in all probability, the respondent was s.r.t at the time of bargain or registration of the sale deed because the • - • . r.a'.e avoided his presence at all costs for fear of another suit Muhammad's case referred to by the learned counsel for the re-emptor was present at the time of settlement of bargain and : deed and at the time of attestation of the sale deed. It was held :cts were not sufficient to prove that the pre-emptor had iquished his right to pre-empt the sale. In Muhammad Din's case -.ere silence or non assertion of right in so far as it is compatible - not to waive the right, can never amount to waiver. In .-h's case which had arisen out of a rent matter (under the :tf r, 13(6) of the West Pakistan Urban Rent Restriction : deaiine with the question of waiver it was emphasised that in here should be some clear and decisive act or conduct beyond js further held that mere inaction or allowing an opportunity to necessarily amount to waiver and that omission to enforce one's cannot give rise to inference that the right had been abandoned. considered opinion that in the peculiar facts of the present easel of the issue pertaining to waiver was never discharged by the the respondent's evidence did not establish conscious! abandonment of right of pre-emption, the appellate court was fully justified in reversing the findings of the trial court on the issue pertaining to waiver. 7. In view of the above discussion I find no merit in this appeal which is dismissed leaving the parties to bear their own costs. (MBC) Appeal dismissed.

PLJ 1991 Lahore 154 PLJ 1991 Lahore 154 Present: muhammad MUNIR khan. J WATER & POWER DEVELOPMENT AUTHORITY and another-Petitioners versus MUHAMMAD HUSSAIN-Respondent. Civil Revision No.1920 of 1990, dismissed on 1.10.1990. Civil Procedure Code, 1908 (V of 1908)-- —S.115—Suit for damages—Decree passed in—Dismissal of appeal against decree-Challenge to-Rs.12000/- have been claimed as a loss for electrocution of buffalo and not for recovery of price on which buffalo was purchased by- respondent—Respondent was justified in claiming its value at time of its death- -It is a case of concurrent findings—There is nothing on record to show that respondent had also contributed towards electricution of his buffalo-Held: There is no illegality, material irregularity or jurisdictional defect in judgments of Courts below-Petition dismissed. [P.155JA&B Mr. Abdul Rehinan Madni, Advocate for Petitioners. Date of hearing: 1.10.1990. order On 28.9.1987, Muhammad Hussain respondent filed suit for the recovery of Rs.12,000/- as damages for the electricution of his buffalo on 3.8.1987 against WAPDA through its Chairman and S.D.O. WAPDA, Sialkot in the court of Senior Civil Judge Sialkot. The suit was resisted whereon 6 issues were framed. The plaintiff appeared as P.W.3. He produced Rashid Ahmad P.W.I and Ghulam Muhammad P.W.2 and tendered documents Ex.Pl to P5 in evidence. To rebut this evidence, the defendants/petitioners produced 3 witnesses namely Muhammad Parvez, Lineman, D.W.I, Inayat Ullah D.W.2 and Muhammad Iqbal D.W.3. The trial Court granted decree of Rs.12,000/- in favour of the respondent/plaintiff on 31.5.1989. The appeal filed by WAPDA and another petitioners/defendants was dismissed by the learned Additional District Judge, Sialkot on 20.2.1990, hence this revision. 2. Before me, the learned counsel for the petitioners has challenged the findings of the courts below only on issue No.5, which is as under:- "Whether the plaintiff is entitled to recover the amount of Rs.12,000/- as damages from defendants? OPP". He contended that the respondent/plaintiff had alleged that his buffalo was pregnant at the time of electricution but no post-mortem was carried on the dead' body of the buffalo; that the plaintiff had claimed Rs.12,000/- as compensation of the she buffalo because of her being pregnant, otherwise he had purchased the buffalo for Rs.8,800/-; that the plaintiff/respondent appeared as a witness after the defendants/petitioners had closed their evidence, therefore, the statement. made by him at that stage could not be used as affirmative evidence in proof of issue No.5; that the findings of the courts below suffer from mis-reading/non-reading of evidence and that in any case it was a case of contributory negligence on the part of the plaintiff. 3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that Rs.12,000/- have been claimed as a loss for the electricution of his buffalo and not for the recovery of price on which the buffalo was purchased. Furthermore, the buffalo was purchased on 12.2.1980 for Rs.8,800/-. The buffalo died on 3.8.1987. So, the respondent was justified in claiming its value at the time of its death. In his statement, the plaintiff has stated: This part of his statement has not been questioned in cross examination. Furthermore, at the time of his examination as P.W.3, no objection with regard to his making affirmative statement was raised. The Courts below were quite competent to believe/disbelieve the evidence produced by the parties. It is a case of concurrent findings. The learned counsel has not been able to point out any mis-reading/non-reading of material evidence by the Courts below. There is nothing on record to show that the respondent had also contributed towards the electricution of his buffalo. The learned counsel has not been able to point out any illegality, material irregularity or jurisdictional defect in the judgments of the Courts below. Pursuant to the above discussion, I do not see any justification to interfere, in exercise of the revisional power of this Court, with the well reasoned judgments of the Courts below. The petition is, therefore, dismissed in limine. (MBC) Revision dismissed.

PLJ 1991 Lahore 155 PLJ 1991 Lahore 155 Present: MUHAMMAD MUNIR khan, J MUHAMMAD YOUNIS and 3 others-Petitioners versus IMAMUDDIN and 2 others-Respondent. Civil Revision No.869 of 1983, dismissed on 26.1.1991 Civil Procedure Code, 1908 (V of 1908)-- —S.115-Civil Revision-Hearing after ten years of its filing-Whether case should be remanded-Question of~District Judge was quite competent to believe evidence of plaintiff which was disbelieved by trial court—He has given reasons for believing same—No doubt, evidence of petitioners/defendants has not been discussed by Additional District Judge, b,ut remand of case after ten years of filing of revision, held, does not seem to be proper-Evidence of petitioners/defendants examined by High Court—Petition dismissed. [Pp.l56&157]A Mr. Muhammad Jqbal Sai%ana, Advocate for Petitioners. 5/i. Afzal Ahmad Qureshi, Advocate for Respondents. Date of hearing: 26.1.1991. judgment Rahim-ud-Din, deceased, was the owner of the suit property through P.T.D. issued in his favour, by the Deputy Settlement Commissioner, Jhang, in the year 1972. He died in the year 1978. On 13.7.1979 Imam Din, respondent No.l claiming himself as heir/son of Rahim-ud-Din, filed a suit for the partition of the suit property against Muhammad Yunus, Mst.Balquis, Mst.Wahida and Mst.Saeeda, respondents. Muhammad Rafiq and Abdus Salam were added as defendants vide amended plaint dated 19.11.1979. The suit was resisted. Muhammad Rafiq and Abdus Salam conceded the claim of Imam Din, respondent....However, Muhammad Yunus and others, the remaining defendants/petitioner's plea was that Imam Din was not son of Rahim-ud-Din. The issues were framed. Imam Din, plaintiff, produced three witnesses namely Muhammad Ismail, P.W.I, Shahzada Haji, P.W.2, and Shaukat P.W.3, he himself appeared as P.W.4. To rebut this evidence the, petitioner, produced three witnesses namely Nasir-ud-Din DW1, Yusuf DW2, and Rehmat Ali DW3, Yunus one of the defendant/petitioners appeared as DW4. They tendered in evidence (O° <- r-b;(2) Ex.DI. photo stat copy (of) PTD, Ex.D2, Copy of Deputy Settlement Commissioner (?) dated 4.11.1966 Ex.D3, Order dated 6.2.1979 DSC. Ex.D4 and copy of Deputy Commissioner/Collector (?) Ex.D5. In view of "its finding that the plaintiff was not the legal heir of Rahim-ud-Din, deceased, so he had no cause of action, the trial Court dismissed the suit on 26.4.1982. Feeling aggrieved thereby, Imam Din, filed appeal which was entrusted to learned District Judge, Jhang, who accepted the same setting aside the judgment/decree of the trial Court and rern,anded the case for decision on merits in accordance with law. Hence this revision. 2. Learned Counsel for the petitioner submits that the judgment of the Appellate Court suffers from misreading of the evidence of the plaintiff and nonreading of the evidence of the petitioners/defendants. 3. I have considered the submissions made by the learned counsel with care. I do not feel inclined to interfere with the judgment of the Appellate Court in exercise of the revisional power of this Court--for the reasons that the learned District Judge was quite competent to believe the evidence of the plaintiff which was disbelieved by the trial Court. He has given reasons for believing the evidence of the plaintiffs. Learned counsel has not been able to point out any misreading of the evidence produced by the plaintiff, by the learned Appellate Court. No doubt the evidence of the petitioners/defendants has not been discussed by the learned Additional District Judge, yet I do not desire to remand the case for this purpose inasmuch as the suit was filed in the year 1979; the appeal against the judgment/decree of the trial Court was accepted in the year 1983, and the present revision was filed on 12.3.1983. Since the remand of the case after 10 years of the filing of the revision does not seem to be proper, therefore, I have examined the evidence of the petitioners/defendants myself. I find that the evidence of these witnesses with regard to the relationship of Imam Din, respondent/plaintiff with Rahim-ud-Din. Predecessor-in-intcrest, is not relevant under Article 64 of the 'Qanoon-i-Shahadat'. Neither the witnesses except Muhammad Yunus are closely related to Rahim-ud-Din nor had they any special means of knowledge of the rchtionship of Imam Din with Rahim-ud-Din. In cross-examination they have expressed ignorance about the other relatives of Rahim-ud-Din. Muhammad Yunus is an interested witness so no useful purpose would be served by making the case a shuttle-cock. I do not see any illegality, material irregularity or jurisidictional error in the impugned judgment of the Appellate Court. 4. Pursuant to the above discussion, the revision is dismissed, leaving the parties to bear their own costs. (MBC) Revision dismissed.

PLJ 1991 Lahore 157 PLJ 1991 Lahore 157 Present: MUHAMMAD MUMR Kl-lAN, J PROVINCE OF PUNJAB, THROUGH SECRETARY, EDUCATION, and 3 others—Petitioners versus NAWAB BEGUM-Respondent. Civil Revision No.1917 of 1990, dismissed on 13.1.1991. Civil Procedure Code, 1908 (V of 1908)- —O.XLI R.35-Appellate court—Decree of—Defects in decree—Whether illegality or material irregularity-Question of-In decree sheet attached with judgment of appellate court, number of appeal, names of parties and amount of costs have been stated and same is also signed by Additional District Judge- -Held: Mere omission of clear specification of relief granted, does not amount to illegality or material irregularity-Held further: There is no misreading or non-reading of material evidence by courts below-Petition dismissed. [Pp.l58&159]A&B Mr. Muhammad Iqbal, Advocate for Petitioners. Date of hearing: 13.1.1991. order On 29.1.1985, Mst.Nawab Begum filed a suit for declaration to the effect that she was owner of the disputed property and that the action taken by the Province of the Punjab and 3 others, petitioners/defendants, for requisitioning the disputed property was illegal, void and ineffective against her rights, against the Province of the Punjab and others, in the Court of Senior Civil Judge, Lahore. The suit was resisted, whereon the following issues were framed:- (1) Whether this Court has no jurisdiction to entertain the present suit ?OPD (2) Whether the suit is not maintainable in its present form ?OPD (3) Whether the suit is barred under section-4 of the Requisition and Immovable Property (Temporary Powers) Act, 1956 ?OPD (4) Whether the suit is barred under res-judicata ?OPD (5) Whether the Act of the defendants requisitioning the property in dispute is illegal, void, ultra vires and has no legal effect on the right of the plaintiff ?OPP (6) Relief. 2. The, parties led their evidence. The respondent/plaintiff produced Salahud Din PW-1. She herself appeared as PW-2. She tendered documents Ex.P.l to Ex.P.3 in evidence. To rebut this evidence, the defendants produced Muhammad Asghar DW-1 and Muhammad Ashraf DW-2. The trial Court decreed the suit on 30.10.1989. The appeal filed by the petitioners/defendants was dismissed by the learned Additional District Judge, Lahore, on 19.5.1990, hence this revision. 3. The learned counsel for the petitioners submitted that the learned Appellate Court has failed to prepare the decree-sheet in accordance with the •provisions of Rule-35 of Order-41 of the CPC; that before filing the suit, the respondent/plaintiff had filed an application for ejectment, which was withdrawn with permission to file a fresh one. Instead of filing fresh application before the Rent Controller, the respondent has filed the suit, which is not maintainable under Order-23 Rule-1 of the CPC; that the findings of the Courts below on issue No.5 suffer from misreading and non-reading of evidence and that since the disputed property was validly requisitioned, therefore, the suit was not maintainable under sections 11 and 12 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1956. 4. I have considered the submission made by the learned counsel for the petitioners with care. I do not feel persuaded to agree with him. I find that the onus to prove issues No.2, 3 and 4 was on the petitioners/defendants. They did not care to produce the notification whereby the disputed property was requisitioned by them and, as such, it cannot be said that the disputed property was validly requisitioned. Muhammad Asghar DW-1 has stated that: No doubt, Muhammad Ashraf DW-2 has stated that he had brought the requisitioned order with him, but strangely enough the same was not placed on the record. Since the fact that the school was requisitioned by the petitioners could be proved by the documentary evidence which has been with-held,. therefore, no exception can be taken to the findings of the trail Court on issue No.3. The application for ejectment before the Rent Controller is not a suit within he meanings of Order-23 Rules 1 and 2 of the CPC, therefore, the plaintiff/respondent was not precluded from filing the present suit. In the decreesheet attached with the judgment of the learned Appellate Court, the number of the appeal, names of the parties and the amount of the costs have been stated and the same is also signed by the learned Additional District Judge. Mere omission of clear specification of the relief granted, in the circumstances, does not amount to illegality or material irregularity. I do not see any legal infirmity in the impugned judgments and decrees of the Courts below. The learned counsel has not been able to point out any misreading or non-reading of material evidence by the Courts below. 5. Pursuant to the above discussion, I do not find any justification to interfere in exercise of my revisional powers with the well reasoned judgments and decrees of the Courts below, so the petition is dismissed in limine. (MBC) Revision dismissed.

PLJ 1991 Lahore 159 PLJ 1991 Lahore 159 Present: MUHAMMAD MUNIR KHAN, J MUHAMMAD HUSSAIN-Petitioner versus ASGHAR ALI and 2 others-Respondents . Civil Revision No.1882 of 1990, dismissed on 9.1.1991. Civil Procedure Code, 1908 (V of 1908)-- —-S.115 read with Specific Relief Act, 1877 Sections 42 & 54-Co-owner~Suit for declaration by-Dismissal of-Challenge to--Whether only consequential relief of permanent injunction can be granted-Question of-Leaving claim for declaration, petitioner insisted upon grant of permanent injunction restraining respondents from interfering in his possession-Prayer for injunction being a consequential relief, a declaratory decree is a condition precedent because unless declaration is granted, question of grant of consequential relief will not arise-A co-owner cannot be restrained from entering into or interfering with physical possession of another co-owner—Held: Relief under Sections 42 and 54 of Specific Relief Act and under Section 115 CPC being discretionary in nature, exercise of discretionary revisional power in aid of petitioner is refused. [Pp.l60&161]A 1989 CLC 1310, 1979 CLC 230, PLD 1968 Dacca 172 and PLD 1961 Dacca 259 not applicable. Mr. C~A.Rehman, Advocate fdr Petitioner. Date of hearing: 9.1.1991. judgment On 10.4.1979, Muhammad Hussain petitioner filed a suit for declaration to the effect that the registered sale deed dated 14.1.1979 in favour of Asghar All, Bashir Ahmad and Nazar Hussain respondents/defendants was void, illegal and ineffective against his rights, in the Court of Senior Civil Judge, Gujranwala. As a consequential relief, it was prayed that the defendants be restrained from interfering in his possession over the suit land. 2. The suit was resisted, whereon five issues were framed. The parties produced their evidence. The petitioner produced Liaqat All PW-1 and Sher Muhammad PW-2. He himself appeared twice as PW-3 and PW-4. He tendered documents Ex.P.l to Ex.P.7. To rebut this evidence, the defendants produced Ghulam Haider DW-1. Asghar All, one of the defendants, appeared as DW-2. They tendered copy of Jamabandi Ex.D.l, original sale deed Ex.D.2, copy of judgment Ex.D.3 and copy of decree-sheet Ex.D.4. In view of its findings on issues No.4, 4-A and 5, the trial court dismissed the suit on 30.6.1986. The appeal filed by the petitioner against this judgment and decree was dismissed by the learned Additional District Judge, Gujranwala, on 17.9.1989. Hence this reivision. 3. Before me, the learned counsel for the petitioner has challenged the findings of Courts below on issue No.5 only, which rs as under:- "Whether the plaintiff is the exclusive owner in possession of the suit land?OPP. The learned counsel for the petitioner has frankly and rightly conceded that the petitioner/plaintiff was/is not the exclusive owner of the suit land. However, he argued that since it has been admitted by Asghar All DW-2 that the petitioner was in possession of the suit land at the time of sale and also at the time of his statement before the trial Court, therefore, the defendants, although coowners/co-sharers in the suit land, cannot forcibly eject him and, as such, he was/is entitled to the permanent injunction prayed for in the suit. Reliance has been placed on Muhammad Nadir KJwn. Vs. Jam KJiair Muhammad (1989 C.L.C.1310), Muhammad Shaft Vs. Mwishi (1979 C.L.C.230). Mst.KJmteja Bibi Vs. Zulmat KJian (P.L.D. 1968 Dacca 172) and Ahmad Mciji Vs. Eakub All Mwishi (P.L.D. 1961 Dacca 259). 4. I have considered the submissions made by the learned counsel for the petitioner with care. I do not feel persuaded to agree with him. I find .that issue No.4, which reads as under:- "Whether the registered sale deed dated 14.1.1979 is illegal, void and ineffective as against the rights of the plaintiff?OPP was found against the petitioner. Neither the findings of the Courts below on this issue have been challenged nor the genuineness of the registered sale deed in favour of the respondents, has been questioned before me. The suit land is part of a joint Khata. The respondents/ defendants being the co-owners/co-sharers are presumed to be owners in possession of each inch of the suit land. At this stage, the learned counsel for the petitioner decided not to press for the declaration sought for in the suit. He only insisted upon the grant of permanent injunction restraining the respondents from interfering in the petitioner's possession of the suit land. I am afraid that prayer for injunction being a consequential relief, a declaratory decree is a condition precedent because unless the declaration is granted, the question of the grant of consequential relief will not arise. A coowner in the land cannot and should not be restrained from entering into -it or interfering with the physical possession of another co-owner. If the prayer of the petitioner is allowed, then this would amount to laying a dangerous precedent authorising one of the co-sharers to take forcible possession of any valuable portion of the.joint property/land and then file a suit for permanent injunction restraining the other co-owner/co-sharer from interfering with his possession. This will also frustrate the law relating to the partition of the joint property. Furthermore, the relief under Sections 42 and 54 of the Specific Relief Act and under Section 115 of the CPC are discretionary in nature. In the peculiar circumstances of the case, I do not desire to exercise my discretionary revisional powers in aid of the petitioner. The case-law relied on by the learned counsel for the petitioner does not apply to the facts of this case. 5. Pursuant to the above discussion, there being no merit, the revision is dismissed in limine. (MBC) Revision dismissed.

PLJ 1991 Lahore 161 PLJ 1991 Lahore 161 Present: muhammad munir khan, J KJialifa MUHAMMAD YAQUB-Petitioner versus MUHAMMAD SIDDIQUE and 3 others-Respondents. Civil Revision No.151 of 1990, dismissed on 16.9.1990. Specific Relief Act, 1877 (I of 1877)-- —S.12 (c)&(d)~ Specific performance of agreement to sell—Suit for—Whether specific performance could be enforced—Question of—Appellate court was of view that petitioner/plaintiff had failed to perform his part of contract within stipulated time-Plaintiff had not tendered balance amount of Rs.6000/- to respondent No.l—It was agreed between parties that if any party to contract fails to perform his part of contract, he will be penalised and in case, defendant No.l fails to get sale deed registered in favour of plaintiff, he will pay Rs.4000/- to plaintiff as damages-Held: Pecuniary compensation having been accepted for non-performance of part of defendant, specific performance of contract could not be enforced-Petition dismissed. [Pp.l62&163]A Mr. Shainim Abbas Bokhari, Advocate for Petitioner. Date of hearing: 16.9.1990. judgment The facts leading to this revision briefly are that Khalifa Muhammad Yaqub petitioner/plaintiff agreed to purchase 8 marlas of land for Rs.8000/- from Muhammad Siddiq respondent. He paid Rs.2000/- as earnest money on 26.4.1974. It was agreed that he will get the sale deed registered within 4 months and if Muhammad Siddiq defendant/respondent resiles, he will pay Rs.4000/- to the plaintiff as damages. The petitioner approached the respondents for the registration of sale in his favour but he refused. Instead on 14,1.1975, he sold the disputed land to Muhammad Shafi respondent. So, the petitioner/plaintiff filed a suit-for Specific Performance of Contract and also for declaration to the effect that the sale by Muhammad Siddiq respondent/defendant in favour of Muhammad Shafi respondent was illegal, void and inoperative upon his rights. During the pendency of the suit Muhammad Shafi transferred the land to Luqman Ahmad and then Luqman Ahmad rented it to Abdul Hameed, therefore, the subsequent vendees were impleaded as defendants. The suit was resisted whereon 11 issues were framed. The parties led evidence. The trial Court dismissed the suit on 17.3.1987. The appeal filed by the petitioner/plaintiff against this judgment and decree was dismissed by the learned Additional District Judge on 30.10.1989, hence this revision. 2. Learned counsel for the petitioner contended that the time was the essence of the contract and the petitioner validly tendered the balance amount to Muhammad Siddiq respondent No.l within time and as such he was not estopped to bring the suit and that defendant No.2 was not a bonafide purchaser, inasmuch as, he fully knew about agreement to sell already entered between the petitioner/plaintiff and Muhammad Siddiq respondent No.l and that the remaining respondents having purchased the suit land during the pendency of the suit cannot be termed as bonafide purchaser of the suit land for value without notice. 3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the Courts below have applied their conscious mind to the relevant evidence and given sound and cogent reasons in support of the conclusions arrived at by them. The Courts below have concurrently found that the petitioner had failed to perform his part of contract within the time stipulated in the agreement. In Para-10 of its judgment, the trial Court has observed that: "Agreement between the parties was executed on 26.4.1974 and it was stipulated that defendant No.l will execute registered sale deed in favour of the plaintiff within four months and if he will fail he will pay Rs.2000/- alongwith token money as damages and if the plaintiff will fail to pay the remaining price of land his token money will be forefeited. The plaintiff has not produced any evidence that he tendered money within time stipulated between the parties. No notice was given to defendant No.l for execution of sale deed. Money was not tendered to the defendant No.l as sale price within the prescribed time. It is also admission on the part of plaintiff that he has not asked for the return of token money but he has been stressing on payment of remaining Rs.25,000/-. The amount due from the plaintiff was six thousands which he has not tendered to defendant No.l nor he has served any notice to the defendant for execution of sale deed in his favour. It is also admission on the part of the plaintiff that he has not restrained the defendants from raising construction over the disputed land nor he has informed them about the suit pending in the Court. The conduct of the plaintiff seems to be malafide. The plaintiff has failed to fulfil his part of agreement within time stipulated between the parties which was essence of the contract". The learned counsel has not been able to controvert the aforesaid observations made by the learned trial Court. The learned Appellate Court was also of the view that the petitioner/plaintiff had failed to perform the part of his contract within time stipulated between the parties. I find that on his own showing the plaintiff had not tendered the balance amount of Rs.6000/-. Instead he tendered Rs.2500/- to respondent No.l. This being the position, no exception can be taken to the findings of the Courts below. Furthermore, the relief in a suit for Specific Performance of Contract is discretionary in nature. It was agreed between the parties that if any party to the contract will fail to perform his part of contract, he will be penalized and in case defendant No.l fails to get the sale deed registered in favour of the plaintiff, he will pay Rs.4000/- to the plaintiff as damages. So the pecuniary compensation for the non-performance of part of defendant was accepted by the plaintiff, therefore, specific performance could not be enforced under Section 12 (c & d) of Specific Relief Act. I do not see any illegality or material irregularity in the impugned judgments and decrees. The submissions made by the learned counsel are devoid of force and substance. So, the revision is dismissed in limine. (MBC) Revision dismissed.

PLJ 1991 Lahore 163 PLJ 1991 Lahore 163 Present: MUHAMMAD MUNIR KHAN, J Melir LAL KHAN-Petitioner versus HAJI AHMAD and 2 others-Respondents . Civil Revision No.265/D of 1990, accepted on 15.9.1990. (i) Civil Procedure Code, 1908 (V of 1908)-- —S.115-Civil revision-Maintainability of-Challenge to-Contention that petitioner not having annexed complete documents, revision petition is not maintainable-Petitioner has filed copies of pleadings and orders of courts- However, copies of documents, have not been filed-Held: Court, at worst, can refuse to consider documents but cannot dismiss revision as a whole- Objection over-ruled. [P.164JA&B (ii) Local Commission. —Official of court—Appointment as local commissioner—Challenge to—A clerk of court could not have been appointed as local commissioner under rule 4, Chapter 10-A, Part B, Vol I of High Court Rules & Orders (Lahore)-There appears wisdom behind prohibition for appointment of an official of court as a local commissioner—Held: Failure on part of parties to raise objection at time of appointment of official of court as local commissioner, is of no consequence—Petition accepted and case remanded for fresh decision of appeal. [Pp.l64&165]C,D&E PLJ 1978 Lahore 149, PLD 1978 Kar. 360, 1989 CLC 1, 1981 CLC 364 and 1990 Law Notes 885 distinguishable. Ch. Mazhaml Haq Bhatti, Advocate for Petitioner. Syed Laqa Haider Zaidi, Advocate for Respondents. Date of hearing: 15.9.1990. judgment On 21.9.1986 Mehr Lai Khan petitioner filed a suit for possession of land measuring 3 marlas situated in village Bhowana, Tehsil Chiniot, District Jhang against Haji Ahmad and others, respondents, in the Court of Civil Judge Chiniot. The suit was resisted. Issues were framed and the parties led their evidence. The trial Court dismissed the suit on 17.11.1988. The plaintiff/petitioner filed appeal against this judgment and decree which was entrusted to the learned Additional District Judge, Jhang, who while hearing the appeal on 10.9.1988, appointed Assistant Clerk of his Court as a Local Commissioner and directed him to inspect the spot, take measurement, prepare site plan and submit a detailed report in the light of directions given to him. The Local Commissioner inspected the spot and submitted his detailed report. The petitioner/appellant filed objections to the report of the Local Commissioner which were over-ruled. After hearing the arguments of the learned counsel for the parties and using the report of the Local Commissioner in aid of the evidence on record, the learned Additional District Judge dismissed the appeal on 3.9.1989, hence this revision. 2. Raising preliminary objection, the learned counsel for the respondents submitted that since the petitioner has not annexed the complete documents with the icvision as required by proviso to Section 115 C.P.C. therefore, the revision was not maintainable 3. I have considered this objection carefully. I do not agree with him. The .petitioner has not filed the copies of the pleadings, and copies of the orders of the Courts. However, he has not filed the copies of the documents. So the Court at the worst can refuse to consider the documents, but cannot dismiss the revision as a whole. With these observations, the preliminary objection is over-ruled. 4. The learned counsel for the petitioner relied on rule-4, Chapter-10-A, Part-B, Vol.1 of the High Court Rules & Orders ( Lahore ), to contend that the learned Additional District Judge could not have appointed the Assistant Clerk of his Court as a Local Commissioner for inspecting the spot and making report ccording to the direction given to him. Conversely, the learned counsel for the respondents argued that since the petitioner/plaintiff was not prepared to accept the Revenue Officer as Local Commissioner, therefore, there was no option for the learned Appellate Court but to appoint the. official of the Court as Local Commissioner. Furthermore, the parties were present at the time of the appointment of official of the Court as a Local Commissioner, but they did not raise any objection. Reliance has been placed on PLJ 1978 Lah, 149, PLD 1978 Kar. 360, 1989 CLC 1, 1981 CLC 364 and 1990 Law Notes 885. 5. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. Be that as it may the fact remains that the Local Commissioner appointed by the learned Appellate Court was a Clerk of his Court, which could not have been appointed as a Local Commissioner under the relevant High Court Rules and Orders (Lahore). The relevant rule may be reproduced advantageously: - Rule-4. "Court Readers or other Ministerial Officers should never be appointed to make local investigations, such as finding out the market value of the property, etc. Such Commissions should be issued wherever possible to retired Revenue Officers or professional men, such as engineers, contractors, auctioneers and accountants. Legal Practitioners are not excluded from appointment as Local Investigation Commissioners, but the best man for the particular commission in question should be appointed. Revenue Officers in service such as Tehsildars and Naib Tehsildars should not, as a rule, be appointed when retired officers suitable for the work are available". Since there appears a wisdom behind the prohibition for appointment of an official of the Court as a Local Commissioner, therefore, the failure on the part of the parties to raise objection at the time of his appointment as a Local Commissioner is of no consequence. The case law relied upon by the learned counsel for the respondents is bit distinguishable. Pursuant to the above discussion, the revision application is accepted. The judgment and decree of the Appellate Court is set-aside and the case is sent back to him for fresh decision of the appeal in accordance with law. The parties shall bear their own costs. (MBC) Revision accepted.

PLJ 1991 Lahore 165 PLJ 1991 Lahore 165 Present: muhammad MuxiR khan, J Maj. PERVEZ SHAKOOR and 4 others-Petitioners versus MUHAMMAD USMAN-Respondent. Civil Revision No.1.831 of 1990, accepted on 2.10.1990. Civil Procedure Code, 1908 (V of 1908)-- —-O.IX R.l3-Expa>U> decree-Setting aside of-Application for-Dismissal in default of-Application for restoration-Dismissal of-Challenge to-Petitioners have stated reasons in their restoration application for their and their counsel's non-appearance-They were entitled to substantiate same-Neither any issue was framed nor petitioners were given opportunity to prove cause of their nonappearance and application was arbitrarily rejected—Held: Manner in which trial court has disposed of application of petitioners, cannot/should not be approved by High Court-Petition accepted and case remanded to trial court for fresh decision of restoration application. [P.166JA&B Cii. Inayatullah, Advocate for Petitioners. Mr. Hassan Ahmad Khan Kanwai; Advocate for Respondent. Date of hearing: 2.10.1990. judgment On 7.11.1985 Muhammad Usman respondent filed a suit for Specific Performance of agreement to sell of land measuring 235 kanals and 6 marlas situate in village Kalekey, Tehsil Depalpur District .Okara against Major Pervez Shakoor and 4 others, petitioners/defendants, in the Court of Civil Judge Depalpur. The suit was decreed exparte on 11.3.1987. The petitioners/defendants filed application for setting aside the ex-pane decree which was dismissed on 12.11.1988 for non prosecution. On this, the petitioners made application 'for restoration of the application filed by them under Order IX Rule 13 C.P.C. for the setting aside (of) the ex-parte decree. It was stated in this application that the petitioners were residents of Karachi and were not aware of the date of hearing, i.e. 12.11.1988 and their counsel was busy in the election and the Courts were also busy in the election work and as such the default in appearance was not deliberate. This application was contested. The learned Civil Judge, without framing any issue or affording the petitioners/applicants opportunity to substantiate the cause for their non appearance on 12.11.1988, dismissed this application vide order dated 17.4.1989. The appeal filed by the petitioners against this order was dismissed by the learned Additional District Judge Okara on 25.3.1989, hence this revision. 2. Learned counsel for the petitioners mainly contended that the petitioners have been condemned without giving them opportunity to substantiate the cause for their non appearance on 12.11.1988. Learned counsel for the respondent has supported the impugned orders. 3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that in their application for the restoration of their application for setting aside the exparte decree, the petitioners have stated the cause of their non appearance and the cause of the non appearance of their counsel as well. I feel that if these causes are believed to be true then the same do constitute sufficient cause for their non appearance on 12.11.1988 and as such, the petitioners were entitled to an opportunity to substantiate it. Strangely enough, neither any issue was framed nor they were given any opportunity to prove the cause of their non appearance and the application was arbitrarily rejected. The manner in which the learned trial Court has disposed of the application of the petitioners cannot/should not be approved by this Court. Resultantly, the judgment of the learned Applellate Court cannot sustain. Pursuant to the above discussion, the revision is accepted. The impugned orders of the Courts below are set-aside and the matter is sent back to the trial Court for fresh decision of the application of the petitioners for the restoration of their application for setting aside the ex-parte judgment and decree, after framing issues and affording the parties opportunity to lead evidence. The parties shall bear their own costs. (MBC) Revision Accepted.

PLJ 1991 Lahore 166 PLJ 1991 Lahore 166 Present: muhammad MUNIR khan, J Rai BATEY KHAN and another--Petitioners versus RAJA—Respondent. Civil Revision No.1709 of 1990, dismissed on 2.10.1990. Civil Procedure Code, 1908 (V of 1908)-- —S.115-Recovery of gold and silver-Suit for-Decree in~Appeal against- Dismissal of-Challenge to-Respondent's suit was for recovery of ornaments or value thereof which he had entrusted to petitioner No.l-Factum of entrustment of ornaments by respondent to petitioner No.l has not been denied in written statement-Held: There is no illegality, irregularity or jurisdictional defect in impugned judgments and decrees—Petition dismissed. [Pp.l67&168]A A7i. Abdul Hameed Butt, Advocate for Petitioners. Date of hearing: 2.10.1990. judgment On 20.9.1984, Raja respondent/plaintiff filed a suit for the recovery of gold weighing 8 tolas, 3 mashas and 6 ratties and silver weighing 13 tolas or Rs.l6,718/as value thereof, against Rai Batay Khan and Samarida Khan petitioners in the Court of Civil Judge Karanwala. It was averred in the plaint that the plaintiff had entrusted gold 8 tolas, 3 mashas and 6 ratties and 13 tolas silver to Rai Batay Khan petitioner vide a receipt. But he has refused to return the same to him. The suit was resisted whereon 5 issues were framed. The plaintiff/respondent produced Sadiq P.W.I, Mulla P.W.2. He himself appeared as P.W.3. To rebut this evidence the defendant produced Daim D.W.I, Mankora D.W.2 and Muhammad Akram D.W.3. Batay Khan himself appeared as D.W.4. Samanda respondent appeared as D.W.5. The trial Court decreed the suit on 24.9.1987. The appeal filed by the petitioners was dismissed by the learned Additional District Judge Faisalabad on 12.7.1990, hence this revision Learned counsel for the petitioners submitted that the parties had referred the dispute to an arbitrator who gave the award which was acted upon, so, the civil Court had no jurisdiction to set-aside an award in a suit brought by one of the parties.The remedy for that party was to get the award set-aside under section 32 of the Arbitration Act; that the learned trial Court has not properly examined the documentary evidence and that the findings of the courts suffer from mis-reading/non-reading of material evidence. 2. I have considered the submissions made by the learned counsel with care. I do not agree with him. I find that the respondent's suit was/is for the recovery of ornaments, which he had entrusted to Rai Batay Khan petitioner or value thereof. No prayer for setting aside the award has been made in the suit. So, the suit filed by the petitioners was not hit by the provisions of section 32 of the Arbitration Act. The learned counsel has not been able to point out any mis-reading/nonreading of evidence by the Courts below. The factum of the ornaments having been entrusted by Raja respondent to Rai Batay Khan petitioner has not been denied in the written statement. The plea raised by the petitioners/defendants that the ornaments were given by the plaintiff/respondent to Rai Batay Khan petitioner as a security for some dispute between him and Samanda petitioner and that consequent to the decision of an arbitrator, the petitioner had given ornaments to Samanda petitioner No. 2 has not been believed by the courts below for good reasons. I do not see any reason to disagree with the findings arrived at by the Courts below. The learned counsel has not been able to point out any mis-reading/non-reading of evidence by the courts below. I do not see any illegality, irregularity or jurisdictional defect in the impugned judgments and decrees. Pursuant to the above discussion, the revision is dismissed in limine. (MBC) Revision dismissed.

PLJ 1991 Lahore 168 PLJ 1991 Lahore 168 Present: FAZAL KARJM, J BILAL NASIR-Petitioner versus THE PROVINCE OF PUNJAB , THROUGH COLLECTOR, SARGODHA , and another—Respondents. Civil Revision No.1246 of 1989 (also C.R. 2237 of 1989) decided on 4.12.1990. (i) Government Grants Act, 1895 (XV of 1895)-- —Ss.2 & 3 read with Constitution of Pakistan, 1973 Article 173—Government land—Grant of—Sale-deed—Conditions of—Whether waiving of condition that plaintiffs would not use their plots for purposes other than residential, in case of some other owners, entitles plaintiffs to such waiver-Question of-It is in evidence that some of owners, similarly situated, had approached Government and latter had waived condition—Government can waive condition on plaintiffs request but that is a matter between plaintiffs and Government and not for courts-Held: However, if Government has waived condition in some cases, plaintiffs can legitimately claim to be treated as others similarly placed were, for like cases must be decided alike-Civil Revision 1246/89 dismissed and Civil Revision 2237/89 accepted. [Pp.l72&173]D&E (ii) Government Grants Act, 1895 (XV of 1895) —Ss 2 & 3 read with Constitution of Pakistan, 1973, Article 173—Government land—Grant of—Sale deed—Conditions of—Whether condition that plaintiffs would not use their plots for purposes other than residential, is affected by assumption of commercial character by area-Question of-Decisions relied upon merely show that Satellite Town Schemes were transferred to Municipal Committees for "maintenance" purposes—Decisions did not authorize Committee to waive, on behalf of Government condition contained in saledeeds that properties would not be used for commercial purposes—Held: Fact that area has assumed character of commercial area, does not affect legal position that plaintiffs must hold property in accordance with terms and conditions contained in their sale-deeds. [P.172JC (iii) Government Grants Act, 1895 (XV of 1895) —Ss. 2 & 3 read with Constitution of Pakistan, 1973, Article 173—Government land-Grant of~Sale deed-Conditions of-Whether condition that plaintiffs would not use their plots for purposes other than residential, is a valid condition—Question of—Object of Act and its sections 2 and 3 was to empower Government to make a grant or transfer of land in favour of any person subject to restrictions, conditions and limitations and to- declare that restrictions, conditions or limitations "shall be valid and take effect according to their tenor" notwithstanding any rule of law, statute or enactment to contrary—Held: It follows inevitably that condition in sale deeds that plaintiffs would use property in suit for residential purposes only, was a valid condition. [Pp.l71&172]A&B Mr. Mmhtaq Raj, Advocate for Petitioner (in C.R. 1246/89). Mr. Abdul Shakoor, Advocate for Respondents (in C.R. 2237/89). Mr. Muhammad Iqbal, Advocate for Respondents (in CR 1246/89) and Petitioners (in CR 2237/89). Dates of hearing: 29.10.1990 and 14.11.1990. judgment This will dispose of C.R.No.1246 of 1989 by the plaintiff, Bilal Nasir, and C.R.No.2237 of 1989 by the Province of Punjab and others. They have arisen out of two suits, one brought by the plaintiff, Bilal Nasir, and the other brought by the plaintiffs Mst. Akhtari Begum and others. Both these suits were tried by the same learned Civil Judge and were decreed, the suit of Bilal Nasir, by his judgment dated 18.12.1988 and the suit of Mst. Akhtari Begum by his judgment dated 10.9.1988. The defendants, namely, the Province of Punjab and another preferred two appeals. Unfortunately, the appeals were entrusted to two different learned Additional District Judges for disposal with the unenviable result, that the learned Additional District Judge, Sargodha, who heard the appeal (in the suit) of Bilal Nasir, plaintiff, accepted the appeal and reversed the decree of the learned Civil Judge dated 18.12.1988 and the learned Additional District Judge, Sargodha, who heard the appeal in the suit of Mst. Akhtari Begum etc. dismissed the appeal by his judgment dutcd 28.3.1989. 2. The plaintiffs had purchased the land situate in Satellite Town, Sargodha, from the Government through the Housing and Physical Planning Department by two different deeds, the sale deed in favour of Bilal Nasir being dated 25.6.1983 (Ex.P.6) and the sale deed in favour of Mst. Akhtari Begum etc. being dated 23.2.1983 (Ex. P.7), one of the conditions of transfer in favour of the plaintiffs being that they "shall use the land only for residential purposes". It is common ground between the parties that in violation of that term, the plaintiffs had the building plans sanctioned from the Municipal Corporation, Sargodha, and have constructed shops and shops garage etc. and are using the land for commercial purposes. They were, therefore, served with notices requiring them to stop this "commercial activity forthwith" and threatening them with the demolition of unauthorised construction. Bilal Nasir, therefore, brought a suit for perpetual injunction saying that being the owner of the land, he has a right to use it in any way he wishes to use it and that the defendants were not competent to interfere with his ownership rights and Mst. Akhtari Begum etc., plaintiffs,- sued to have it declared that as owners of the land, they were entitled to raise construction in accordance with the building plan sanctioned by the Municipal Corporation, Sargodha, and that the defendants were not entitled to interfere with their rights of ownership. The defendants contested the suits by filing written statements. According to them, as the land was allotted to the plaintiffs for residential purposes, it could not be converted into a commercial property. 3. On the parties' pleadings, several issues were formulated and tried. On the crucial issue-whelher the plaintiffs were entitled to use the property for commercial purposes contrary to the expressed terms of the sale deeds prohibiting the use of the land for purposes other than residential, the learned Civil Judge found that the land was transferred to the plaintiffs for residential purposes; that the plaintiffs had obtained the approval of the Municipal Corporation for their building plans, that a letter was issued by the Cantonment Executive Officer, Sargodha, to the Deputy Commissioner, Sargodha, and the Chairman, Municipal Committee, Sargodha, saying that a part of Sargodha Faisalabad Road passing through the Satellite Town Scheme had been declared a Highway; that the plots of the plaintiffs were situated on the road which had been so declared a Highway and the "main traffic is passing through Satellite Town Scheme resulting in the automatic change of the area from residential to commercial one". In his view, "the situation has made the atmosphere unsuitable for residence due to the noise of the heavy traffic". He also found that the Satellite Town Scheme "sta ds transferred to the Municipal Corporation and afterwards Municipality was competent to sanction the site plans of the plots to the owners" and that "after the sale of the plot and receipt of the sale price alongwilh other dues, the defendants have no right to interfere in the ownership, possession and construction of the plaintiff with regard to the plot in dispute". The learned Civil Judge went on to hold that "according to law the proprietor of any property has every right to use his property according to his own requirements and desires. The only check is that the requirements should not be illegal and against morality". In this connection, he also noticed the fact that "most of the owners have constructed their plots in the shape of pla/as" and there was no explanation "on the part of the defendants that why the plaintiff was chosen as a scapegoat". 4. While endorsing the findings of the learned Civil Judge in the suit of Mst. Akhtari Begum, the learned Additional District Judge was content to say that "because of the change in the nature of the area in which the property in question is situate the respondents could commercially use their property and all the properties in the surroundings have been so converted" and that "as the respondents are intending to raise construction exactly in accordance with the site plan approved by the Municipal Corporation, Sargodha, they are competent to do so". The learned Additional District Judge who dealt-with the appeal in the suit of Bilal Nasir, Plaintiff, very properly referred to the terms of the sale deed and the contents of the IcUcr which had been relied upon by the plaintiffs for their contention that the Government had never authorised the Municipal Corporation to sanction the building plans and observed that the building plans were to be approved by the Dcputy/Direclors/Sccrctary, District Allotment Committees concerned. In his view, the Department had served notices to persons other than the plaintiffs who had similarly contravened the conditions of the sale deeds and that there was nothing to show that the plaintiffs had approached the Government for relaxing the condition. 5. earned counsel for the plaintiff, Bilal Nasir, argued and his arguments were adopted by the plaintiffs in the other case, that the entire area where the plots in question arc situate has become a commercial area; that other owners of such plots were also using their plots for commercial purposes and the action of the defendants was mala fide for there was no reason why the plaintiffs were singled out for what he called this step motherly treatment. In this connection, reference was made to the proceedings of a meeting conveyed by means of a letter dated 8.7.1969 (Exhs. P.3 and P.4) to show that the Satellite Town, Sargodha, had been taken over by the Municipal Corporation. The Satellite Town, Sargodha, it was asserted, had been included within the limits of the Municipal Corporation. My attention was also called to the testimony of Nazar Abbas, one of the defendants' witnesses, who admitted that there were a number of shops in the area where the plots in question were situate and that some of the persons, who had applied for permission to use their plots for commercial purposes, had been given permission to do so. Learned counsel for the plaintiffs thought that the plots in question were governed by the Town Improvement Act, 1922 which was replaced by the Punjab Development of Cities Act, 1976. 6. The last contention can be dealt with at once. Admittedly, the transfer of the plots in question in favour of the plaintiffs was from the Government through the Housing and Physical Planning Department and not from the Trust, a corporate body established under the Town Improvement Act, 1922, or from the Authority, also a body corporate, under the Punjab Development of Cities Act, 1976. Neither of these Acts has, therefore, any relevance for the resolution of the question raised herein. 7. The short question requiring determination therefore is whether the condition in the sale deeds that the plaintiffs would not use their plots for purposes other than residential is a valid condition and is binding upon the plaintiffs. 8. Now, it appears that if the transfers in question were governed by the general law such as the Transfer of Property Act, 1882, it would perhaps have been difficult for the government to support the imposition of such a condition upon the future use of the property. But the general law must give way to the special law, if any. Therefore, one begins by asking the question-is there any law under which the government could restrict the future use of the property by imposing the condition under consideration? The answer, it seems to me, is 'yes'. 9. By Article 173 of the Constitution, the executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts; and "all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize." 10. Transfer of land by the Federal Government or a Provincial Government, Article 173 of the Constitution further provides, "shall be regulated by law". 11. The law which regulates such transfer of land, as is mentioned in Article 173 of the Constitution, is the Government Grants Act, 1895. That Act by its Section 2 enacts that "nothing in the Transfer of Property Act, 1882 shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein made or hereafter to be made by or on behalf of the Government to or in favour of any person whomsoever"; and Section 3 thereof declares that "all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding." The object of the Government Grants Act, 1895, and its sections 2 and 3, it appears plainly, was to empower the Government to make a grant or transfer of land in favour of any person subject to any restrictions, conditions and limitations and to declare that such restrictions, conditions or limitations "shall be valid and take effect according to their tenor" notwithstanding any rule of law, statute or enactment to the contrary. Learned counsel for the plaintiffs did not call to their aid any provision of the Transfer of Property Act, 1882. It has however been seen, that section 2 of the 1895 Act expressly mentions that Act and there is no doubt that it was to exclude the application of the general principles enacted in that Act to the transfers by Government that the 1895 Act was passed. It follows inevitably therefore that the condition in the sale deeds in the plaintiffs' favour namely that they would use the property in suit for residential purposes only was a valid condition and that the Government was within its right to require the plaintiffs to abide by that condition or to violate that condition at the peril of the buildings being demolished. 12. That takes me to the contention that the area where the property in suit is situate has been included within the municipal limits and that the municipal corporation has sanctioned the plaintiffs' buildings plans. As observed above, for that contention the plaintiffs relied upon the decisions contained in Ex.P.3 and P.4. They however merely show that the Satellite Town schemes were transferred to the Municipal Committees for maintenance" purposes. In any case the decisions contained in Ex.P.3 and P.4 did not authorise the Committee to waive on behalf of the Government the condition contained in the sale deeds namely that the properties would not be used for commercial purposes. Nor does the fact that the area has assumed the character of a commercial area, in my judgment, affect the legal position that the plaintiffs must hold the property in accordance with the terms and conditions contained in their sale deeds. 13. Indeed the arrangement under which the plaintiffs obtained the property in dispute from the Government was a contractual arrangement. It was in evidence that some of the owners, similarly situated, had approached the Government and the Government had waived the condition requiring them to use the property for residential purposes only. I am told that the plaintiffs had also approached the Government with a similar request. As observed above, the relationship between the parties being a contractual relationship, there is no question that the Government can waive the condition on the plaintiffs' request. But that is a matter between the plaintiffs and the Government and not for the Courts. However, if the Government has waived the condition in some cases, the plaintiffs can legitimately claim to be treated as others similarly placed were, for like cases must be decided alike. 14. For these reasons, Civil Revision No.1246/89 of Bilal Nasir is dismissed and Civil Revision No.2237/89 of the Province of Punjab and others is accepted, the judgment and decree of the appellate court in the former case is upheld while the judgments and decrees of both the courts below in the latter case are set aside with the result that both the suits stand dismissed. The parties are however left to bear their own costs. (MBC) Orders accordingly

PLJ 1991 Lahore 173 PLJ 1991 Lahore 173 Present: khalilur rehman khan, J MUHAMMAD ISMAIL-Petitioner versus SAKINA BIBI-Respondent C.M. No.4853/C/90 in R.S.A. No.205 of 1987, dismissed on 16.1.1991. (i) Practice and Procedure. —Pre-emption—Suit for—Claim of right—Duty of a Muslim is to order his life and affairs according to dictates and Injunctions of Islam—Before making a claim, every suitor has to see whether his claim or right is recognized by Shaiiah or it otherwise rightfully belongs to him or it would amount to grabbing something which does not rightfully belong to him-For reaping small gains in this world, a Muslim is not expected to grab other's property or right- Held: Machinery of law is to be utilized for arriving at truth and enforcing right in favour of right holder. [Pp.lS4&185]E&F (ii) Punjab Pre-emption Ordinance, 1990 (XVIII of 1990)-- —S.36-Pre-emption-Suit for-Dismissal of-Challenge to--Contention that appeal being a proceeding in continuation of suit, appeals pending during specified period, are required to be decided afresh in accordance with law now in force by treating decree of dismissal of suit as of no legal effect—Section 36 does not contemplate providing of an opportunity to establish through production of evidence, making of Talb-i-Ishhad at relevant time if none had in fact been made or could have been made—Concept of Talabs was not known even to lawyers as statutes on subject of pre-emption in force in Punjab and NWFP did not contain any such concept-Section 36 (2) recognises making of Talb-i-Ishhad as pre-requisite for exercise of right of pre-emption—Held: Applicant cannot be believed now if he alleges that he had made talabs and he should be allowed to amend plaint so as to add averment to that effect. [Pp.l79,180&181]A,B,C&D (iii) Punjab Pre-emption Ordinance, 1990 (XVIII of 1990)-- —-S.36-Pre-emption-Suit for-Dismissal of-Challenge to-Examination of plaint of each suit would reveal that present applicants cannot urge that "Talbi-Ishhad" was in fact made at relevant time-Firstly it cannot be said that they knew even concept of Talabs then, and secondly, at time when High Court heard these second appeals and revision petition, it was not case of applicants that they had in fact made "Talb-i-Ishhad"~Held: Meaning being assigned to Section 36 of Ordinance by counsel for applicants cannot be accepted as that would amount to feeding as well as admitting falsehood. [Pp.l85&186]C-&H Mr. Muhammad Yunas Uppal, Advocate for Applicants. Date of hearing: 16.12.1990. judgment This order will dispose of C.M. Nos. 4853/C of 1990, 4898-C-90, 4905-C-90 and 4529-C-90, filed in R.S.A. Nos. 205-87, 212-84, 981-76 and C.R. No.l488-D-87 respectively, under Section 36 of the Punjab Pre-emption Ordinance (XVIII of 1990), seeking restoration of the second appeals and the civil revision and their decision afresh in accordance with the provisions of the said Ordinance. The learned counsel orally submitted that if necessary the suits be remanded for fresh trial in acccordance with law now in force. 2. The suit out of which R.S.A. 205-87 arose was filed on 2nd September, 1981, by the applicant-plaintiff claiming superior right of pre-emption being collateral of the vendor as well as co-sharer in the khata. The suit was dismissed by the learned Civil Judge, Shcikhupura, vide judgment and decree dated 31 st May, 1983, holding that the plaintiff had not got preferential pre-emptive right as against the defendant. The plea that the applicant-plaintiff possessed superior right of pre-emption being collateral was negatived by recording the finding that the defendant belonged to the category of distant kindred in class higher than that of the plaintiff. The appeal was also dismissed by the learned Additional District Judge, Sheikhupura, vide decree dated 16th May, 1987, with the further observation that the claim of being co-sharer in the khata was also not established on record by producing satisfactory evidence and that the suit was rightly dismissed by the learned trial Court. The second appeal was then dismissed by this Court on the 17th October, 1988, alongwiih R.S.A. No.57 of 1981 observing that obviously no decree can now be passed in favour of the appellant-pre-emptor. 3. The suit out of which R.S.A.212-84 arose was filed on 26th September, 1981 claiming superior right being owner in the village and khata sharik. The suit was dismissed on the 26lh September, 1981, mainly on the ground that no right of pre-emption can be claimed in respect of the sale on account of the Notification of the Board of Revenue, Punjab, dated the 21st June, 1976, exempting sale of agricultural land to the affectees of Pakistan Atomic Energy Plant from pre­ emption. The appeal failed vide judgment dated 1st April, 1984, of the learned Additional District Judge. The second appeal was then dismissed by this Court on 18th October, 1988, with the further observation that the suit could not succeed as it had not been averred in the plaint that the appellant had made the 'talabs' as required by Sliaria for successfully exercising the right of pre-emption. 4. The suit out of which R.S.A. 981-76 arose was filed on 2nd February, 1973, and was dismissed on 27th September, 1974, on the ground of limitation. This decree of dismissal was affirmed by the learned District Judge by dismissing the appeal of the applicant-plaintiff vide judgment and decree dated the 15 th September, 1976. The second appeal filed by the applicant was dismissed by this Court on 14th September, 1988, observing that though the right of pre-emption on the ground of co-sharer, a ground recognized by Sharia, had been claimed yet the suit could not succeed as it had not even been averred in the plaint that the applicant had made the 'talabs' as required by Sharia for successfully exercising the right of pre-emption. 5. The suit out of which revision petition No.l488-D of 1987 arose was filed on the 31st May, 1983, claiming superior right of pre-emption being collaterals of the vendor, owners in the village and owners of the land adjacent to the land in question and as both the lands were being irrigated by one and the same tubewell. The suit was dismissed by the learned Civil Judge on 2nd February, 1987, observing that the qualifications of the plaintiffs for the superior right of pre­ emption, i.e. collateralship and ownership in the estate, had ceased in View of the judgment of the Federal Shariat Court . As regards the plea that the land adjoins the suit land it was observed that since no legislation to this effect had been made the plaintiffs at present were not competent to claim the right of pre-emption on this basis. The first appeal filed by the plaintiffs failed vide judgment and decree dated the 16th May, 1987 of the learned Additional District Judge, Sialkot . The revision petition was also dismissed by this Court on the 8th October, 1988, with the observation that the suit on the ground of being participator in the common source of irrigation could not succeed as admittedly the pre-requisites i.e. 'talabs' for enforcing the right of pre-emption under the Sharia were not fulfilled. 6. It will be pertinent at this stage to give a brief history of the pre-emption law, the statutory as well as the precedent law, in order to comprehend fully the questions raised in these petitions. In Punjab, the Punjab Pre-emption Act, 1913 (1 of 1913) held the field and regulated the right of pre-emption with regard to urban and rural immovable property. The right of pre-emption in respect of agricultural land on the ground of tenancy was recognized and provided for by Land Reforms Regulation, 1972, and then by Act II of 1977. The questions whether certain provisions of the Punjab Pre-emption Act, 1913, N.W.F.P. Pre­ emption Act, 1950, and Paras 22 to 25 of the Land Reforms Regulation, 1972, or the provisions of Act II of 1977, are contrary to the Injunctions of the Holy Quran and Sunnah were examined by the Federal Shariat Court (see Hafiz Muhammad Amin v. Islamic Republic of Pakistan and others (PLD 1981 F.S.C. 23). The appeals against the aforesaid judgment were decided by the Shariat Appellate Bench of the Supreme Court vide judgment reported as Government of N.W.F.P. v. Malik Said Kama! Shah (PLD 1986 S.C. 360 = PLJ 1986 SC 576) in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani J. with the direction thai "if possible a consolidated law of pre-emption be enacted accordingly till 31st July, 1986". 7. The Supreme Court in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 S.C. 287 = PLJ 1988 SC 224) observed that the decision of the Shariat Appellate Bench of the Supreme Court dated 26th February, 1986, reported as Government of N.W.F.P. v. Malik Said Kama! Shah (Supra) was to take effect on the 31st July, 1986, and that mere filing of the suit or even lengthy proceedings thereon without a decree in favour of the plaintiff at any stage before 31st July, 1986, would noi. save the application of the questioned law to it. It was added thai where a decree had been passed in favour of the plaintiff on the basis of the said law before 31st July, 1986, the same would continue to govern the case upto the Supreme Court and the plaintiff would be entitled accordingly to defend the decree. Another learned Bench of the Supreme Court in the case of Slier Muhammad v. Allah Ditto (PLD 1988 S.C. 412= PLJ 1988 SC 303) dismissed the petition for special leave to appeal arising out of pre-emption suit in which admittedly no decree had so far been passed and it was not claimed that the requirement of 'talabs' as envisaged by Islam was fulfilled. It was further observed that in C.P.S.L.A. No.747 of 1983 the learned counsel for the petitioners had not even heard of the expression 'talabs'. That being so no decree could now be passed in their favour in view of the judgment in Sardar All v. Muhammad AH (PLD 1988 S.C. 287 = PLJ 1988 SC 224). 8. The question of effect of the judgment in Said Kamal's case (Supra) came up for consideration in the case of Ahmad v. Abdul Aziz (PLD 1989 S.C. 771 = PLJ 1989 SC 574) before a Bench consisting of seven learned Judges of the Supreme Court and view recorded as per majority(Justice Dr. Nasim Hasan Shah recorded the contrary view) was that:- "The effect of the decision was that as from 1-8-1986 the tenant, the occupancy tenant, the inferior proprietor in that capacity alone could not enforce any right of pre-emption as they were left with none, the provisions recognizing their right ceasing to have effect. Similarly the prospective heirs of the vendors. The superiority of the claim of co-sharer stood enhanced by deletion of other priority categories and by deletion of expression fourthly. As regards the claim based on the ownership of land in the estate or Paul, this was a very wide category and the judgment in Said Kamal's case had not the effect of effacing it in its entirety or of directing total deletion of this category. Only that part of it was declared to be repugnant to the injunctions of Islam where ownership in the estate or Patti was not coupled with contiguity or co-ownership, a very restricted and a smaller category included within the larger - a part of the whole. The whole having not been struck down, the part remains preserved. The result was that where it was contended or it could be contended that ownership in the Paiti or the estate was coupled with contiguity, then such ownership in the estate or Patti continued to be a valid and available ground for pre-empting the sale. For adjudicating this question of fact, opportunity shall be allowed to parties to amend their pleadings, where necessary or required." 9. The entire matter was then examined by the Shariat Appellate Bench of the Supreme Court in suo motu review petition No.l-R-1989, and it was held that, "sections 15 and 30 of the Punjab Pre-emption Act, 1913, having ceased to have legal effect from 31st July, 1986, in its entirety, no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre-emption suits wherein decrees had been passed before 31st July, 1986. However, in so far as before the announcement of the judgment in this Review Petition, the Punjab Pre-emption Ordinance, 1990, was promulgated on the 28th March, 1990, the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force namely. 28th March, 1990, (see PLD 1990 S.C. 865). Reference may also be made to the case of Sultan and others v. Habib Ahmad (PLD 1990 S.C.897 = PLJ 1990 S.C.421) wherein it was held that pre-emption suit by plaintiff based on the ground of being co-sharer of the suit land could hot be decreed for the first time on 31st December, 1987, as explained in the judgment of the Shariat Appellate Bench reported in PLD 1990 S.C. 865. 10. The Government of the Punjab ultimately promulgated the law on the subject of pre-emption i.e. the Punjab Pre-emption Ordinance, 1990 (V of 1990) on 29th March, 1990, and since then, the Ordinances promulgated one after the other, on the expiry of the period prescribed by Articale 128 of the Constitution are:- (/) The Punjab Pre-emption Ordinance, 1990 (Ord.XII of 1990, Gazette Extra-ordinary, 29th May, 1990). (/7) The Punjab Pre-emption Ordinance, 1990 (Ord.XVIII of 1990, Gazette Extra-ordinary, 27th Aughust, 1990) (///) The Punjab Pre-emption (Amendment) Ordinance, 1990 (Ord.XXI of 1990), amending sub-section (2)of section 36, the words 'one year' substituted for the words 'two hundred forty days'. (/v) The Punjab Pre-emption Ordinance, 1990 (Ord. XXVII of 1990, Gazette Extra-ordinary, 26th November, 1990. Ordinances at Nos. (/), (//), and (/V) were to come into force respectively on the date on which the earlier Ordinance stood repealed under Article 128 of the Constitution. 11. Another feature worth noticing is that an additional provision was introduced by adding section 36 to Ordinance No.XVIII. The two Ordinances earlier brought on the statute book contained only 35 sections. The new section 36 reads as unden- "36(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre­emption, instituted or pending during the period from 1st August, 1986, and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved person, shall subject to subsection (2), be decided afresh according to the provisions thereof. (2) Notwithstandig anything in Sections 13 and 31 in respect of the'suits mentioned in subsection (1) the period of limitation shall be two hundred and forty days and it shall-be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad' in the presence of two truthful witnesses." It is pertinent to note that by Ordinance XXI of 1990 the words two hundred and forty days' appearing in subsection (2) of Section 36 were-substituted with the words 'one year' and the amended provision came into force from the date of the enforcement of Ordinance XVIII of 1990. 12. The present applications were made under this very Section 36 and the learned counsel for the applicants submitted that the first as well as the second appeals are to be treated as proceedings in continuation of the suit and as these appeals were pending, during the period from 1st August, 1986 and 28th March, 1990, (the period mentioned in Section 36(1) of the Ordinance) decrees and judgments passed therein are of no legal effect and as such these suits are to be decided afresh according to the provisions of the Ordinance. As regards the provisions contained in subsection (2) of Section 36 of the Ordinance the plea advanced was that this Court is not to see whether in the plaint, making of Talb-i-Ishhad was pleaded or not as in suits where such a plea was not then made the amendment can be sought to include such a plea and later on evidence to establish the making of Talb-i-Ishhad can be adduced. It was argued that irrespective of the time or the period when the suit was originally filed, the judgments passed in all these appeals and revision which were either pending or were decided during the period mentioned in sub-section (1) of Section 36, had been rendered ineffective in view of the declaration made by the Legislature in Section 36 and all such matters require to be decided afresh. 13.1 have given serious consideration to the submissions made and the pleas advanced by the learned counsel for the applicants. The question that requires determination is whether the decree of dismissal of the suit passed in each case is of no legal effect in view of the provisions contained in Section 36 of the Ordinance. In other words which are the decrees, judgments or orders that are to be treated as of no legal effect? A close examination of the section would show that these are the decrees, judgments or orders, dismissing the suits of pre­ emption which were either instituted or were pending during the period from 1st of August,. 1986 and 28th March, 1990, provided that the right of pre-emption claimed in the suit is one that is available under Ordinance XVIII of 1990. All the decrees, judgments and orders of dismissal of such suits with one legislative stroke have been rendered ineffective in law and such suits subject to the provisions of subsection (2) are to be tried afresh in accordance with the law now in force. The intention of the legislature, to my mind, is to regulate the decision of suits of pre­ emption instituted or pending duirng the period when no statutory provision on the subject of right of pre-emption existed and due to non-promulgation of the law of pre-emption by 31st July, 1986, despite direction of the Shariat Appellate Bench of the Supreme Court, the suits filed by the suitors failed and were dismissed. This scope and the meaning of subsection (1) of Section 36 is in accord with the legislative history and the case law on the subject. It is apparent that the suits for pre-emption in which decree was passed in the original, appellate or revisional forum before 31st July, 1986, the proceedings pertaining thereto at whatever forum pending are to be regulated and decided in accordance with the pre-emption law then in force, but the suit in which decree had not been granted in favour of the pre-emptor before the target date, the same cannot be decreed thereafter and the suit cannot be even continued as the Punjab Pre-emption Act, 1913, in entirety ceased to have legal effect. It was also held that no suit of pre­ emption can be decreed even on the basis of being co-sharer, a right recognised by Sharia after the target date i.e. 31st July, 1986 (see in-re: Suo Motu Shariat Review Petition No.l-R of 1989 (PLD 1990 S.C. 865), Mst. Aziz Begum v. Federation of Pakistan (PLD 1990 S.C. 899), and Sultan v. Habib Ahmad (PLD 1990 S.C. 897=PLJ 1990 SC 421). 14. In Aziz Begum's case (Supra) the Supreme Court observed that the judgment of the Shariat Appellate Bench on review has the following operative order for the period from 31st July, 1986 to 28th March, 1990: "Sections 15 and 30 of the Punjab Pre-emption Act, 1913, having ceased to have legal effect from 31-7-1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except" those pre-emption suits wherein decrees had been passed before 31-7- 1986. However, in so far as before the announcement of the judgment in this Review Petition, the Punjab Pre-emption Ordinance, 1990, was promulgated on 28-3-1991 the provisions of the said Ordinance will have their due legal effect as from the date of its coming into force, namely, 28-3-1990." The legislature, it may be noted, has intervened, though quite late, to provide the law for the decision of the suits filed in the period when no statutory law existed to provide that the right of pre-emption claimed in the suit is one which is available under the Ordinance. 15. The plea that as an appeal, first or second, is a proceeding in continuation of the suit, all those appeals pending during the specified period are required by Section 36 to be decided afresh in accordance with law now in force by treating the decree of dismissal of suit as of no legal effect has no merit. Firstly; the distinction between a suit and an appeal cannot be ignored though appeal for the purposes of exercise of powers and grant of relief is considered as proceedings in continuation of the suit. Secondly, the legislative history and the case law pointed out above does not support this plea. The intention of the legislature is not to reopen all the matters of pre-emption pending adjudication at any or all forums. For instance, in a case where a suit of pre-emption was decreed by the trial Court before the target date but on first appeal the suit was dismissed, can it be argued that second appeal is to be decided in accordance with the provisions of the Ordinance now in force. The plea raised cannot therefore, be accepted. Thirdly, there is yet an inbuilt limit provided in subsection (1) of section 36 itself, as it further provides that the suits contemplated therein are to be tried subject to the provisions contained in subsection (2) thereof. Subsection (2) of Section 36 reads as under:- "36 (2) Notwithstanding anything in Sections 13 and 31, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses." This subsection provides in effect that the limitation prescribed for suits of pre-emption in Section 31, and the manner of making the three talabs provided in Section 13 would not apply to the suits mentioned in subsection (1) and that for such suits the period of limitation shall be one year and that instead of establishing the making of three talabs in the prescribed manner, it shall be sufficient if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses. The two aspects which flow from subsection (2) are that, suits which were instituted during the specified period or the suits which were pending during the said period but were dismissed, by whatever forum after the target date and prior to the promulgation of the Ordinance dated 28th March, 1990, the period of limitation is one year and that the making of 'Talb-i- Ishhad' in any case is sine qua non for successfully exercising the right of pre­ emption. It is also obvious that the decrees or orders of dismissal passed in the suits in which the right of pre-emption claimed is one which is not available under the Ordinance e.g. relationship with the vendor, being the heir or a collateral, ownership in the estate, though the suit was instituted or was pending in the specified period, have not been rendered ineffective by virtue of the provisions contained in Section 36 of the Ordinance. The section would also not apply to those suits though instituted or pending during the specified period in which right claimed is one as is available under the Ordinance but the same had been filed beyond the period of one year of the accrual of cause of action. This is apparent from subsection (2) and the intention appears to provide for the same period of limitation as was available under the law of pre-emption previously in force. Secondly, the provision that "it shall be sufficient if the pre-emption establishes that he had made Talb-i-Ishhad in the presence of two truthful witnesses" reaffirms the necessity of making the Talb-i-Ishhad at the proper time before the institution of the suit. It does not contemplate providing of an opportunity to establish through production of evidence, the making of Talb-i-Ishhad at relevant time, if none had in fact been made or could have been made. The legislature cannot be attributed the intention of providing an opportunity to the litigants to first make a false plea by seeking amendment of the plaint and then to produce perjured or false evidence. It is common knowledge that the concept of 'talabs' was not known even to the lawyers what to say of the litigant public as the statutes on the subject of pre-emption in force in Punjab as well as in N.W.F.P. did not contain any such concept and the provision of Muslim Law of Shuffa was neither known nor in practice. These concepts came to be known when the pre-emption laws were challenged on the plea of being contrary to the Injunctions of Holy Quran and Sunnah. 16. The legal principle that talabs are pre-requisite of the right of pre­ emption was pointed out and affirmed in Said Kamal's case (Supra) by the Shariat Appellate Bench. Again in the case of Mushtaq Hussain v. All Muhammad (PLD 1988 Lah. 722) I had the occasion to dilate upon the subject of talabs and on the effect of not making the talabs on the right of pre-emption. First part of para 4 of the judgment being relevant is reproduced:- "4. It is true, the three talabs; ( ^ are not the constituents of the right of pre-emption or the grounds recognized by Muslim Law but these Talabs are necessary prerequisites for enforcing the right of pre-emption. This requirement is based on the Tradition of the Holy Prophet (p.b.u.h.): The right of Shuffa is established in him who prefers his claim without delay'; and the jurists are in agreement that the two Talabs are necessary insomuch that if he makes any delay, his right is thereby invalidated. (See Hedaya by Hamilton, Vol.III Chapter II page 550)." zt was observed that in case a person in whom a right of pre-emption otherwise vests fails to make the necessary talabs, his right is extinguished and he cannot seek enforcement of such a right, so abandoned and invalidated, by lodging proceedings in a Court. The Supreme Court in the case of Sufia Begum v. Ibrahim (PLD 1989 S.C. 314= PLJ 1989 SC 282) observed that without all the demands being made on time there would be no Shuffa as it (the right to Shuffa) would come into existence only through talabs. 17 Sub-section (2) of Section 36 thus recognizes the making of Talb-i-Ishhad as prerequisite for the exercise of right of pre-emption. This talab of necessity must have been made prior to the institution of the suit within one year of the sale transaction. Would it lie in the mouth of a suitor to come up with the plea at this stage that Talb-i-Ishhad was made by him at the proper time before filing the suit when even the concept of Talabs was not known to him. This was so pointed out in the case of Sher Muhammad v. Allah Ditto (PLD 1988 S.C. 412 = PLJ 1988 SC 303). It will also be pertinent to refer to the observations recorded in the case of Ghulam Qadir v. Nawab Din (PLD 1988 S.C. 701 = PLJ 1988 SC 573) as under:- "In some cases which have come to our notice, the learned counsel tried to make out case for 'Talabs' by relying on such phrases in the plaints, which were used to be filed, under the old law, like; ( U> &J/jt -^bj^L &J ^ (fj > '• ) so as to canvass that the plaintiff should be permitted to elaborate such assertions in the context of requirements of the Islamic Law. For obvious reasons such a position would be untenable. The learned Judge in the High Court in this case has correctly remarked that no question of Islamic 'Talabs' could arise in such like cases. It has also indirect support of a very recent judgment of this Court on the Islamic Law of Pre-emption in another context. See Azizur Rehman v. Muhammad Nawaz (PLD 1988 S.C. 384). It may also be mentioned that in some cases, the learned counsel have tried to seek support from another short order passed by this Court in similar cases, where observation was made to the effect that no Talabs in accordance with Islamic Law having been made, the plaintiff could not succeed.. The point sought to be made was that perhaps, by intendment the Supreme Court opened the door, for assertion being made that the relevant plaints were filed after making the Talabs; and, further that amendments could now be permitted. Such plea is also for obvious reasons untenable. When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then existing pre­ emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have been made due to the peculiarities and strictness of the relevant law in this behalf." It will, therefore, be seen that in view of the weighty observations recorded inl these precedents, an applicant cannot be believed, now if he alleges that he had made the talabs and he should be allowed to amend the plaint so as to add an averment to that effect. The Court cannot allow making of such false pleas. 18. The plea that the matter of establishing the making of 'Talb-i-Ishhad' be left to the trial Court in the circumstances is not available, rather such a plea in the new dispensation should not have been raised by the suitors nor advanced by the learned members of the Bar. With the enforcement of Sharia in any facet of our lives, the approach of all concerned must undergo a basic change. Every Muslim coming up with a claim to a Court of law has first to consider whether Sharia i.e. Injunctions of Holy Quran and Sunnah grant him such a right or not as the Muslims are ordained to order their lives and affairs in accordance with Sharia. For members of the Bar, now it is not a case to be pleaded or defended on the part of the party to be represented but to be a part of the System designed to employ the machinery i.e. administration of justice for finding out the party in whom the right in dispute vests and to ensure the enjoyment of right by the said rightful party. The suitors, the lawyers as well as the Courts have now to keep in mind the mandate contained in Section 3 of the Ordinance which reads:- "In interpretation and the application of the provisions of this Ordinance, the Court shall seek guidance from the Holy Quran, Siinnah and Fiqh." The injunctions contained in Holy Quran are:- Sura Al-Baqra: II: 188 "And do not eat up your property among yourselves il or void), nor take it or use for corrupting Judges or those in Authority so that you may devour wrongfully or illegally and knowingly a little of other people's property." Under Islamic standard devouring other's property wrongfully is also greed, usurpation ' ^^ and this is prohibited whether one uses the machinery of law to grab something to which he is not lawfully entitled or does it through any other false means. Again Sura Al-Nisa IV: 29 reads:- "O ye who believe, eat not up your property among yourselves illegally (eCl^) voidly; But let there be amongst you trade and traffic; By mutual goodwill; nor kill or destroy yourselves; For verily God has been to you most merciful." The injunction contained in Sura Nahl. XVI: 90 reads:- "God commands () justice, the doing of good (ul/) and looking after (liberty to) kith and kin; and He forbids all shameful deeds, injustice ( u^juithe prohibitions) and rebellion: He instructs you that you may receive admonition." (Here rebellion means acting against laws and injunctions ordained by God Almighty). Reference may be made to the concept of accountability of man to his Creator on which Holy Quran lays special emphasis. Sura Takathur CII: 1-8 reads:- "The mutual rivalry, for piling up (the good things of this world) diverts you (from the more serious things), Until ye visit the graves. But nay, ye soon shall know (the reality). Again, ye soon shall know: Nay, were ye to know with certainty of mind, (Ye would beware) Ye shall certainly see Hell-fire: Again, ye shall see it with certainty of sight. Then, shall ye be questioned that Day about the joy (ye indulged in). Translation from Al-Quran by A.YusufAli Note 6261 reads:- "We shall be questioned, i.e. we shall be held responsible for every kind of joy we indulge in—whether it was false pride or delight in things of no value, or things evil, or the enjoyment of things legitimate,~the last, to see whether we kept this within reasonable bounds. Attention may also be invited to the Ordain of God Almighty contained in Sura Hashr LIX: 7:- "So take what the Prophet, (p.b.u.h.) assigns to you and deny yourselves that which he withholds from you. And fear God. For God is strict in Punishment." 19. So the duty of a Muslim (i.e. one who is bound in Covenant with God to abide by His Commands), is to order his life and affairs according to the Dictates and Injunctions of Good (Allah), his Master and Creator contained in Holy Quran and Sunnah of His Apostle. It, therefore, follows that before making a claim, every suitor has to see whether his claim or right is recognized by Shariah or it otherwise rightfully belongs to him or it would amount to (>-t<;>) i.e. grabbing something which does not rightfully belong to him. The endeavour of the lawyers as well as of the Courts would also be to find out 'The right' and 'its rightful owner' and then ensure enjoyment of the right by its rightful owner. At this stage three traditions of the Holy Prophet (p.b.u.h.) may be quoted:- "839. Narrated Ibn Masud (God be pleased with him): The Prophet (p.b.u.h.) said, 'Whoever takes a false oath in order to grab other's property, then Allah will be angry with him when he will meet Him." "842. Narrated Abu Wail from Abdullah (God be pleased with him): The Prophet (p.b.u.h.) said, 'Whoever takes a false oath in order to grab another man's (or his brother's) property, then Allah will be angry with him when he will meet Him.' Then Allah confirmed this by revealing the Divine Verse:- Verily; Those who purchase a little gain at the cost of Allah's Covenant and their oaths will get painful punishment.' 3:77 Al-Ashath met me and asked, What did Abdullah tell you today? I said, 'so and so'. He said, 'The Verse was revealed regarding my case.' "845. Narrated Um Salama (God be pleased with him (?)): Once Allah's Apostle (p.b.u.h.) said, you people present your cases to me and some of you may be more eloquent and persuasive in presenting their argument. So, if I give some one's right to another (wrongly) because of the latter's (tricky) presentation of the case, I am really gaiving him a piece of fire; so he should not take it." (see pages 519 to 523 of Sahih Al-Bukhari English Translation by Dr. Muhammad Muhsin Khan) The principle deduced from the last quoted tradition is that if a person with the help of his glib tongue, false evidence or clever reasoning succeeds in getting the decision of the Court in his favour that does not make him legitimate owner of the right. He as well as his All Knowing Creator Allah knows that he is usurper and as such whatever he gets through illegitimate means is a hell for him. (See Sahih Muslim English version by Abdul Hamid Siddiqi - Vol III pages 927-28). So for reaping small gains in this world, a Muslim is not expected to grab other's property or right. By infusing such consciousness Sharia paves way for the establishment of orderly society. These are the specific and strict prohibitions in Sharia against usurpation of other's property or right. The machinery of law is thus to be utilized for arriving at the truth and enforcing the right in favour of the right holder. A Muslim suitor should be conscious that he is to account for his wordly gains and if anything that he obtains unduly, unjustly or unlawfully, how he is going to explain it to his Creator from whom nothing can be concealed. The purpose of Sharia will be fulfilled only if every one concerned with the enforcement of Sharia acts with this consciousness and ideal. 20. It will, therefore, be seen that the meaning being assigned to Section 36 of the Ordinance by the learned counsel for the applicants cannot be accepted as that would amount fo feeding as well as admitting falsehood. 21. The examination of the plaints of each suit would reveal that the present applicants cannot urge that 'Talb-i-Ishhad' was in fact made at the relevant time. These suits were respectively filed on 2nd September, 1981, 26th September, 1981, 2nd February, 1973 and 31st May, 1983.. Firstly, it cannot be urged that the plaintiffs-applicants in each suit knew even the concept of talabs then. Secondly, at the time that this Court heard these second appeals and the revision petition it was not the case of the applicants that they had in fact made the 'Talb-i-Ishhad'. In each of the judgments passed in second appeals by this Court it was observed that the suit cannot succeed as it has not been even averred in the plaint, that the plaintiff-pre-emptor had made 'talabs' as required by Sharia for successfully exercising the right of pre-emption. In the order dismissing the revision petition, the observation made, with regard to the plea that the pre-emptors can succeed in their suit as right is based on the ground of being participators in the common source of irrigation reads:- "Even on other ground the petitioner (pre-emptor) cannot succeed as admittedly the pre-requisites i.e. Talabs for enforcing the right of pre­ emption under the Sharia were not fulfilled." 22. For the reasons given above these applications are bound to fail. The same are, therefore, dismissed. (MBC) Applications dismissed.

PLJ 1991 Lahore 186 PLJ 1991 Lahore 186 [Rawalpindi Bench] Present: GUL ZARIN KlAM. J Mst. SAJIDA PARVEEN-Petitioner versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others-Respondents Writ Petition No.17 of 1991, dismissed on 9.1.1991. (i) Family Courts Act, 1964 (WP Act XXXV of 1964) —S.14 read with Guardians and Wards Act, 1890, Section 25-Minor son- Custody of—Grant of—Prayer for—Whether District Judge had no jurisdiction to assign appeal to Additional District Judge for disposal—Question of—In terms of Section 14 of Family Courts Act, in case of a decision or a decree passed by a Family Court, presided over by a Civil Judge, appeal lies to District Court-According to definition in section 2 of Family Courts Act, expression "District Court" as defined in Section 2 (4) of C.P.C. has been adopted for purposes of Act-It is clear that a District Judge can trannor any case pending before him to an Additional District Judge-Held: It is not correct to say that District Judge had no jurisdiction to assign appeal to Additional District Judge and that latter had no power to hear and decide it. [Pp.l94&195]C (ii) Guardians and Wards Act, 1890 (VIII of 1890) —-S.25 read with Family Courts Act, 1964, Section 14 and Family Courts Rules, 1965, Rules' 6 & 7--Minor child-Application for custody of-Filing of- Whether application for custody of minor was rightly instituted in Court of Senior Civil Judge and correctly transferred by him to Civil Judge—Question of-Held: Position as it emerges from survey of related provisions of two Acts and Family Courts Rules, 1965, was that application under Section 25 of Guardians and Wards Act was rightly instituted in court of Senior Civil Judge and was correctly transferred to Civil Judge who heard and finally decided it. [P.194JB PLD 1990 Lahore 350 dissented from. 1985 CLC 1343, NLR 1980 Civil BJ 100 and PLD 1987 Karachi 239 ref. (iii) Guardians and Wards Act, 1890 (VIII of 1890)-- —S.25-Minor child-Custody of -Grant of-Prayer for-During pendency of litigation, minor has become more than seven years old-Undej- Muslim Law, father is entitled to custody of a boy over seven years of age-As against mother who is married to a stranger to minor and has her own children from him, father can be safely looked upon to better look after interests and welfare of minor son-Held: Agreed finding that it is not in interest and welfare of minor to return him to custody of petitioner, is neither without jurisdiction not without lawful authority. [P.188&1891A Mr. Muhammad Ilvas Sheikh, Advocate for petitioner. Date of hearing: 91.1991. judgment This is an application under Article 199 of the Constitution of Islamic Republic of Pakistan for a writ in the nature of certioraii or any other appropriate writ for quashing the orders passed in the hierarchy of forums established under the Family Courts Act, 1964, in a dispute between a mother who is petitioner in this Court, and, the father about their right to hold the custody of their minor child who admittedly is a boy beyond the age of seven now. Family Court presided over by a Civil Judge, 1st Class held that it was not in the welfare of the ward to order his return to the custody of his mother. Additional District Judge who heard the appeal against the decision transferred to his Court by District Judge was of the same opinion. Agreed views expressed on welfare of the minor for holding his future custody are assailed in this Court at the instance of petitioner-mother. It is submitted that the question of welfare has not been correctly resolved in the Courts below. It is further submitted that Civil Judge, 1st Class who took cognizance of the guardianship-matter was incompetent to try it. Similarly, Additional District Judge who heard and decided the appeal filed against the decision of the Civil Judge, 1st Class lacked jurisdiction. Upon the above premises, it was submitted that since the decisions suffered from absence of jurisdiction, they were coram non-judice and reduced to absolute nullities. The facts which are few and simple leading to the present application briefly summarised are:-Mst. Sajida Parveen petitioner was wedded to Malik Iftikhar Ahmad respondent No.2 as his wife, in the year 1981. Exact date of their marriage is not available on the record. First off spring of the marriage is a male child namsd Malik Ammad Ali Khan. He was born in the year 1982. He is alive and presently is a bone of contention between his parents. Marriage between the spouses proved to be extremely of a short duration. Soon after its solemnization, it suffered a set-back and relations between the couple grew strained. Petitioner complained of ill treatment at the hands of respondent No.2 and took up residence in her parents' house. Petitioner's case is that about fifteen days before the filing of the application under section 25 of the Guardians and Wards Act, on 6.11.1984, respondent No.2 forcibly removed the minor who was then hardly of 1\ years, from the custody of the petitioner. Application for restoration of the custody was presented to the Court of Senior Civil Judge, Rawalpindi who assigned it for its trial to a Civil Judge in the same district. Respondent No.2 submitted his defence and resisted the application. The trial Court seized of the matter framed necessary issues arising for determination in it and after taking evidence from the parties and on its examination found against the petitioner and dismissed her applicattion on 28.9.1989. Against this decision of the trial Court, an appeal was filed under section 14 of the Family Court Act, 1964 to learned District Judge, Rawalpindi who transferred it for hearing to a learned Additional District Judge in the same district. It also failed on 5.9.1990 and decision of the trial Court was maintained. It may be observed here that in course of trial of the application under, section 25 of the Guardians and Wards Act, the trial Court had entrusted interim custody of the minor to the petitioner and under this arrangement the child remained with the petitioner but in view of the final orders passed by the courts now, his custody reverted to respondent No.2. Respondent No.2 gave irreversible divorce to the petitioner and snapped the marital relations between them. Soon after receiving divorce, petitioner entered into a fresh wed-lock with Mohammad Anwar, and, has two children from him. Respondent No.2 has not yet re-married. He is a handicapped person which prevented his free movements. He is a radio, and. T.V. mechanic. He works on his own shop. He has employed a servant at his shop for his assistance. He owns a house and agricultural lands also. He earns from the shop and has income from agricultural lands. Therefore, he has the capacity and the necessary wherewithal to look after and provide for his child. His mother is also there to look after his minor child. Further, there is no moral defect in the person of respondent No.2. At least, none has been pointed out at the hearing. When the dispute about custody was first brought to the Court, minor boy was stated to be of 2\ years of age. By passage of time consumed in litigation, he is over seven years of age.Under Muslim Law, a father is entitled to the custody of a boy over seven years of age. Consistent with the personal law of the minor, his welfare is presumed to lie in the custody of the person entitled to it under that law unless facts leading to a contrary conclusion are established which is not the case here. As against a mother who is married to a stranger to the minor and has her own children from him, the father can be safely looked upon to better look after the interests and welfare of his minor son. Therefore, it is not in the welfare of the minor to return to the custody of his mother and the Courts below have rightly allowed him the parental protection by his father. In determining the question about custody of infant children, their welfare plays a paramount and fundamental consideration and that question, on present record, I think has already been correctly decided in tbe Courts below and there is no need to interfere with the findings. Further, the point about welfare is essentially a question of fact determinable on the evidence led in the case and is not open to review in extraordinary jurisdiction for substituting an opinion by this Court. Upon this view the agreed finding that it is not in the interest and welfare of the minor to return to the custody of the petitioner is neither without jurisdiction nor without lawful authority. If the matter had merely rested at that, there would have been, indeed, no difficulty in concluding against the petitioner and saying 'No' to her but her counsel raised a more serious and fundamental question of law regarding jurisdiction both of the trial Court, and, the Appeal Court to hear and decide the dispute. Relying on the case of Muhammad Hayat versus Additional District Judge 1st, Okara and 2 others-P.LD. 1990 Lahore 350, it was submitted that except Lahore District, only Senior Civil Judges in the Province of Punjab were competent to hear and decide the dispute about guardianship matters. It was further submitted that an appeal under section 14 of the family Courts Act, 1964 could only be entertained and decided by District Judge of the District and not by an Additional District Judge as was done in the case. This point was neither raised before the first Court trying the matter nor in appeal before the Judge below. It was urged for the first time in the constitution petition in this Court. Ordinarily, it would not have been permissible for the petitioner to urge it but being a pure question of law touching the jurisdiction of the trial Court and of the appellate Court, petitioner was allowed to take up the objection more particularly when it was also supported by a judgment of this Court. I must admit at the out-set that upon careful survey of the relevant provisions in the Guardians and Wards Act, Family Courts Act 1964, and, Family Courts Rules 1965 as amended upto date, I am unable to subscribe to the views of my learned brother experssed in case of Muhammad Hayat (Supra) that only Senior Civil Judges in the Punjab (excepting Lahore) had jurisdiction to hear and decide guardianship-matters. Section 4, sub- . section (4) of the Guardians and Wards Act says that "District Court" has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. Section 2(4) of Civil Procedure code runs thus: "District" Means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil jurisdiction of a High Court. Section 4 (5) of the Guardians and Wards Act defines "the Court" as:- "(<?) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or (b) where a guardian has been appointed or declared in pursuance of any such application- (/) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or (//') in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or (c) in respect of any proceeding transferred under section 4-A, the Court of the officer to whom such proceeding has been transferred." Section 4-A of the Guardians and Wards Act gave power to the High Court to confer jurisdiction on subordinate judicial Officers and to transfer proceedings to such Officers. It reads as follows:- "4-A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.--(I) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a District Court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section. The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1). The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer. When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian." Therefore, under the Guardians and Wards Act, jurisdiction to decide guardianship matters was conferred upon "the Court" as defined in it. Obviously, it meant the Court of a District Judge or a subordinate Court empowered under section 4-A of the Act by the High Court. This position prevailed till the West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) was enforced on July 18,1964. As the preamble to the Act would show, it created special forums for expeditious decision of certain matters specified in the schedule to the Act and conferred exclusive jurisdiction in the new forums regarding matters which initially consisted of six items namely, (1) dissolution of marriage; (2) dower; (3) maintenance; (4) restitution of conjugal rights; (5) custody of children; (6) guardianship. In 1969, jactitation of marriage was also included in the schedule. Section 3 of the Act provided for establishment of family Courts, section 4 laid down the qualifications for the appointment of the Judge of a Family Court and stated that no person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, or has been a Senior Civil Judge or Civil Judge 1st Class, section 5 conferred exclusive jurisdiction on Family Courts to entertain, hear, and adjudicate upon the scheduled matters, section 6 provided for the place of sittings of the Family Courts, section 7 about the manner of institution of suits in the Family Courts. Rest of the sections of the Act except sections 14 and 26, which in the context shall be referred to later, are not material for the purposes of the present case. Section 14 provided for a forum of appeal and section 26 empowered the Government to frame rules under the Act. By Ordinance X of 1966-West Pakistan Family Courts (Amendment) Ordinance, 1966 enforced on 4th April, 1966, section 4 was substituted to read as "No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge". By W.P. Act (1 of 1969), for the words "or a Civil Judge", words "a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat" were substituted. Under Section 26 of the Act, rules commonly known as West Pakistan Family Courts Rules, 1965 were framed by the Government which came in force on November 2, 1965. There are provisions in these Rules, altered from time to time, which throw light and assist for discovering of the forum for trial of guardianship disputes and hearing of appeals from them. Rule 6 provided, that the Court which shall have jurisdiction to try a suit, which included an application for the custody of children or guardianship under the Guardians and Wards Act, 1890, in terms of rule 2 (e), will be that within the local limits of which the cause of action wholly or in part arose or where the parties reside or last resided: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall have also jurisdiction. Rule 7 as originally enacted was as follows:- "7. (1) Suits relating to custody of children and guardianship shall be instituted in, and be heard and tried by the Court of the District Judge, but such Court may transfer any such suit to the Court of the Additional District Judge, the Senior Civil Judge, the Civil Judge, First Class or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6, and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same. Suits relating to the custody of children and guardianship shall be instituted, heard and tried in the Court of the Senior Civil Judge, the Civil Judge, First Class, or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6 and where in any District there is no such Court, such suits shall be instituted in, and heard and tried by the Court of District Judge. Notwithstanding anything contained in sub-rules (1) and (2), the Court of District Judge may~ recall any suit made over by it for trial under sub-rule (1) to an Additional District Judge, Senior Civil Judge, Civil Judge, First Class or Civil Judge, First Class (Additional) and either try such suit himself or refer it for trial to any other Court within the District; send for the record and proceedings of any suit pending for trial in the Court of Additional District Judge, Senior Civil Judge, Civil Judge, First Class, or the Civil Judge, First Class (Additional) and hear and try the suit itself or refer it for trial to any other Court within the District and thereupon the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit." Interpretting the rule in the form then existing, in case of Mst. Hayat Kliatoon versus, Allah Dino and another-1985 C.L.C. 1343, Nasir Aslam Zahid, J., in para 5 of the judgment observed:- "In my view, the provisions of law are reasonably clear and there appears to be no ambiguity. As observed earlier, the power was with the Government to establish the Family Courts. In accordance with this power, by rule 3 of the West Pakistan Family Courts Rules, 1965, it was provided that Courts of District Judge, Additional District Judge and Civil Judge, shall be the Family Courts for the purposes of the Act but subject to the provisions of rule 7. And, as seen earlier, rule 7 specifically provides that suits i-elating to custody of children and for guardianship shall be instituted in and to be heard and tried by the Court of the District Judge but the District Judge may transfer any such suit to a Family Court presided over by an Additional District Judge or a Civil Judge. Reading rules 3 and 7 together with section 2 (1) (b) and Section 3 it follows that a family suit for custody of children must be instituted in the Court of District Judge who can then transfer the case to an Additional District Judge or Civil Judge having jurisdiction under rule 5 (it should be rule 6). Mr. A.A. Dareshani is, therefore, correct in his contention that the family suit under section 25 of the Guardians and Wards Act was wrongly instituted by respondent No.l in the Court of Civil Judge, Kandiaro. It should have been instituted in the Court of District Judge Nawabshah who could then transfer the case to a Court having jurisdiction under rule 5 of the West Pakistan Family Courts Rules, 1965." In 1969, rule 7 of the Family Courts Rules, 1965 was substituted in a new form to read as follows:- "7 (1) Suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the Additional District Judge. (2) Notwithstanding anything contained in sub-rule (1), the Court of the District Judge may send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itself or refer it for trial to any other Court within the District, and thereupon the Court of District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit." In Janal Bibi versus Ramzan & another-N.L.R 1980 Civil BJ 100, Muhammd Amin Butt, J., interpreted the amended rule to hold that a Civil Judge was competent to try the guardianship case. After quoting the substituted rule, it was observed in that judgment:- "A bare reading of the above rule woud show that the Civil Judge Minchinabad had the jurisdiction to try the present case as the petition was instituted on 4.2.1978. 6. Section 25 of the West Pakistan Family Courts Act, 1964 provides that a Family Court shall be deemed to be a District Court for the purpose of the Guardians and Wards Act, 1890. The section further provides that in dealing with the matters specified in the Guardians and Wards Act the Family Court shall follow the procedure prescribed in that Act. Thus the powers and functions of the District Court under the Guardians and Wards Act ought to be performed by the Family Court which by fiction of law is to be deemed to be the District Court. 7. Faced with this situation the learned counsel for the petitioner was unable to advance any argument in support of his attack on the powers of the learned Civil Judge, Minchinabad who was entitled to exercise jurisdiction of the Family Court under the provisions of rule 7 as amended." By Gazette of Punjab, Extraordinary 7th April 1972, sub-rule (2) of rule 7 was deleted and sub-rule (1) of rule 7 was re-numbered as rule 7. By the same gazette notification' rules 8 and 9 of 1965 Rules were deleted. In Asif Mowjee versus Mst. Fatema A. Mowjee and another-P.L.D. 1987 Karachi 239, Mr. Justice Abdul Qadeer Chaudhry, now an Honourable Judge of the Supreme Court, on comparison of the provisions in the related Acts observed:- "In order to appreciate the respective contention of the parties it is necessary to refer to the various provisions of the two relevant laws. Section 5 of the Act of 1964 provides that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matter specified in the Schedule. Item numbers 5 and 6 of the Schedule relate to the custody of children and guardianship respectively. Section 25 of the same Act stipulates that a Family Court shall be deemed to be a District Court for the purposes of the Act of 1890 and notwithstanding anything contained in this Act (Act of 1890) shall in dealing with the matters specified in that Act, follow the procedure prescribed in that Act. The Court has been defined in section 4 (5) (b) (ii) of the Act of 1890 as under:- "In any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides." Under Section 7 of the Act of 1890 the welfare of the minor would be the paramount consideration in appointing a guardian of his person or property. Under Section 17 of the same Act the Court would consider certain facts, in appointing a guardian. According to section 19 the Court would not appoint guardian in certain cases. Under Section 25 if a ward leaves or is removed from the custody of a guardian of his person the Court may return the ward to the custody of his guardian if it is of the opinion that it may be in the welfare of the minor. Schedule to Act of 1964 has mentioned custody of minor and guardianship of minor distinctly. There are two different items. Every expression of word of statute has to be interpreted in its ordinary sense and no word of the statute shall be considered as superfluous. Rule 6 has to be interpreted in a sense which is in consonance with the provisions of the Act. In my view in the matter of the custody of the minor an application is maintainable at a place where cause of action has arisen. Such .an application can also be moved in a place where the minor ordinarily resides. As regards guardianship application, an application would be maintainable only in a Court where the minor ordinarily resides. By means of section 25 of the Act of 1964 residence of the minor would give the Court jurisdiction to adjudicate upon the matter." I have quoted this judgment merely to show that a distinction about the forum for the trial in matters relating to the appointment of a guardian for the person and property has been drawn in it. Otherwise, rule 6 of 1965 Rules, looked to be all pervasive, and did not ex facie admit of such a distinction. The position as it emerges from the survey of the related provisions of the two Acts; Guardians and Wards Act 1890, Family Courts Act 1964 and Family Courts Rules 1965 as amended upto date, was that the application under Section 25 of the Guardians and Wards Act 1890 was rightly instituted in the Court of Senior Civil Judge and correctly transferrd by him to the Civil Judge who heard and finally decided it. Unfortunately, and I speak with immense respects, Family Courts Rules which governed the forum had not been taken into account in the judgment of my esteemed brother which proceeded on sole consideration of section 4-A of the Guardians and Wards Act. In my opinion, rules 6 and 7 of the Family Court Rules 1965 made all the difference which escaped notice in the aforesaid judgment. It is in this view that I respectfully differ from my learned brother and hold that as Civil Judge, 1st Class, the trial Court was competent to try the application under Section 25 of the Guardians and Wards Act 1890 and its decision did not suffer from defect of jurisdiction. On merits, I have already said that it is a correct decision. Reverting to the objection about the competence of Additional District Judge to hear the appeal, there is no ambiguity about his jurisdiction because Section 14 of the Family Courts Act is absolutely clear on this point. For facility of reference, it is reproduced:- "14. Appeal. (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable— to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge, and to the District Court, in any other case. (2) No appeal shall lie from a decree passed by a Family Courtfor dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section (2) of the Dissolution of Muslim Marriages Act, 1939. for dower not exceeding rupees one thousand; for maintenance of rupees twenty-five or less per month." In terms of Section 14 of the Family Courts Act, in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeal lies to the 'District Court'. Section 2 (21) of the Punjab General Clauses Act 1956 says that "District Court" shall mean the principal civil court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Section 2(2) defines "District Judge" to mean "the Judge of a principal civil court of original jurisdiction, but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". Under Section 2(4) Civil Procedure Code, a District Court is defined as the principal civil Court of original jurisdiction in the District. Section 5 of the Civil Courts Ordinance 1962 empowered the Government, in consultation with the High Court, to appoint as many persons as it thinks necessary to be the District Judges and post a District Judge to each District. Section 6 of the Ordinance deals with the appointment of Additional District Judges and in sub­ section (2) says that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him and in discharge of those functions he shall exercise the same powers as the District Judge. From this, it is clear that a District Judge can transfer any case pending before him to an Additional District Judge who shall then have the same powers in regard to it as the District Judge. According to definitions in Section 2 of the Family Courts Act, expression 'District Court' as defined in Section 2(4) of Civil Procedure Code has been adopted for purposes of the Act. It is not correct to state that learned District Judge had no jurisdiction to assign the appeal to learned Additional District Judge and the latter, no power to hear and decide it. Therefore, his decision did not suffer from want of jurisdiction. Having regard to the above, writ petition fails and is dismissed in limine. At the end, I must observe that ordinarily judgment of a single Judge must be taken as binding by a brother Judge sitting singly so as to avoid conflict of opinion in the High Court and confusion in the subordinate Courts whose duty is to follow what is said and observed by the High Court. In course of hearing of the writ petition, as I was differing with my learned brother, on a point of law decided by him, I thought, I should refer the case to a larger Bench for an authoritative pronouncement on it, but since my learned brother had not taken into account rules 6 and 7 of the Family Courts Rules, 1965 in deciding on the powers of a Civil Judge,. 1st Class to hear guardianship matters, which in my opinion made all the difference, upon reflection, I dropped the idea for a reference to a larger' Bench and opted to decide the point myself. (MBC) Petition dismissed.

PLJ 1991 Lahore PLJ 1991 Lahore Present: MALIK MUHAMMAD QAYYUM J. Mst. MUBIN KHANUM-Petitioner versus MR. ATA MOHIUDDTN, ADDITIONAL DISTRICT JUDGE, LAHORE, and 2 others—Respondents. Writ Petition No.133 of 1991, dismissed on 23.1.1991. Family Courts Act, 1964 (W P Act)-- XXXV of 1964)-- —S.14-Recovery of dower-Suit for-Exparte decree in-Appeal against- Acceptance of-Challenge-Whether order was interlocutary and not appealable-Question of-In this case, order passed by Family Court dismissing application for setting aside exparte decree was final and not interim in nature- -By that decision, Family Court had disposed of entire matter and there was nothing further left to be decided by it-Held: It is idle on part of petitioner to treat such an order to be interim or interlocutory in nature-Petition dismissed. [P.196] PLD 1978 Lahore 85 and PLD 1978 SC 185 rel. PLD 1976 Lahore 1327 distinguished. Sh. KJialilur Rehman, Advocate for Petitioner. Date of hearing: 23.1.1991. order The dispute in this petition arises out of a suit for recovery of dower filed by Mst.Mubin Khanum petitioner against Javed Ahmad Khan, respondent No.2, which was dismissed for non-prosecution by the Family Court on 18th June, 1989. On an application filed by the petitioner, this suit was restored and was later on decreed ex-parte against the respondent No.2 on 5th November,1989. Thereafter, on 13th November, 1989, an application was presented by respondent No.2 for setting aside the ex-parte decree on the ground that after the dismissal of the suit for non-prosecution on 18th June,1989, he was not served with any process and had no knowledge of the restoration of the suit or the ex-parte proceedings ordered against him. The application was contested by the petitioner and was dismissed by the Family Court on 27th Feb.,1990. Aggrieved by this order, the respondent No.2 filed an appeal which was accepted by the Additional District Judge, Lahore , on 9th December,1990 and the ex-parte decree was set aside. 2. Sh.Khalil-ur-Rehman, Advocate, has raised the following contentions:- (j) That the order passed by the Family Court distnissing the application for setting aside the ex-parte decree was not final but was interlocutory in nature and was, therefore, not appealable under Section 14 of the Punjab Family Court Act,1964. (h) That there was no justification for the Additional District Judge to have set aside the ex-parte decree. Both these contentions are devoid of any force. Under Section 14 of the Punjab Family Courts Act, 1964, an appeal lies not only against the decree, but also against the decision of the Family Court,though it is correct, as has been contended by the learned counsel for the petitioner relying on Syed Muhammad Raza Shah Vs. Sayeda Salma Gilani and another (PLD 1976 Lahore 1015) that the word 'decision' has to be construed ejusdem generis, and has reference to only final decisions but this argument does not in any way advance the case of the petitioner. In the present case the order passed by the Family Court dismissing application for setting aside the ex-parte decree was final and not interim in nature. By decisions of the application and refusing to set aside the ex-parte decree, the Family Court had disposed of the entire matter pending before it and there was nothing further left to be decided by it. It is thus idle on the part of the learned counsel for the petitioner to treat such an order to be interim or interlocutory in nature. Similar view was taken by this Court in Babu Vs. District Judge, Sahiwal and another (PLD 1978 Lahore 85), which I respectfully follow. The other case relied upon by the learned counsel in support of his objection as to the maintainability of the appeal was Mst.Rushda Zareen Vs. Muhammad Saleh (PLD 1976 Lahore 1327). This case is, however, distinguishable as the question involved was as to whether the decision, in the final decree regarding determination of Zare KJiula can be appealed against in view of Sub­ section 2 of Section 14 of the Punjab Family Courts Act,1964. A reference may also be made to the decision of the Supreme Court in Mian Manzar Bashir and others Vs. MAAsghar & Co. (PLD 1978 SC 185), where in a case arising out of the Punjab Urban Rent Restriction Ordinance, 1959, it was held that an order setting aside the ex-pane order of ejectment was not appealable as it was not definitive, but the order rejecting the application for setting aside exparte ejectment order was appealable as such an order was definitive having a direct bearing on the whole subject of controversy concluded by an earlier order. Thus the contention of the learned counsel that the order of rejection of the application for setting aside an ex-parte decree was not appealable, cannot be accepted. Reverting to the second contention of the learned counsel, it is to be noticed that the Additional District Judge has recorded findings of fact on the basis of the record that after the restoration of the suit, no notice of process was issued to respondent No.3. There is nothing on the record to rebut this factual finding. If in need, the decree was passed without any notice to respondent No.3 after the restoration of the suit, it could not but be set aside. 5. For the reasons aforesaid, this petition has no force and is dismissed in limine. (MBC) 'Petition dismissed.

PLJ 1991 Lahore 197 PLJ 1991 Lahore 197 Present: MUHAMMAD MUNIR KHAN, J M/s SAQIB BROTHERS, JHANG.and another-Appellants. versus M/s CIBA GIEGY ( PAKISTAN ) LTD-Respondent. R.F.A.NO. 177 of 1989, accepted on.29.1.1991. Civil Procedure Code, 1908 (V of 1908) —O.XX, R.4--Judgment-Non-discussion of defence evidence-Whether it is proper judgment-Question of-Defendants had produced 3 witnesses, but trial court has neither considered nor discussed statements of D.Ws.—Impugned judgment is in reality one-sided judgment—It does not show as to who were defendant's witnesses and what had they said-Held: Such like judgments cannot and should not be approved by High Court-Appeal accepted and case remanded for fresh decision. JP.198JA Malik Talib Hussain Awan, Advocate for Appellants. Mian Umar Mahmood Kasuri, Advocate for Respondent. Date of hearing: 29.1.1991. judgment This regular first appeal arises from the judgment of the learned Additional District Judge, Chiniot, whereby he, on 10.10.1989, decreed the suit of the plaintiff/respondent, M/s Ciba Geigy Ltd. for the recovery of Rs.1,77,459.86. The learned counsel for the appellants mainly contended that the impugned judgment is not a proper judgment within the meanings of Section 2 and Order 20, Rule 4 of the CPC, inasmuch as the evidence of the appellants/defendants was not discussed or disbelieved. Conversely, the learned counsel for the respondent supported the impugned judgment and decree of the learned trial Court on the ground that the judgment contains the gist of the evidence of the witnesses produced by the appellants/defendants. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellants. I find that although the defendants had produced three witnesses, namely, Muhammad Anwar DW-1, Nazir Ahmad DW-2 and Riaz Hussain DW-3, yet the learned trial Court has neither considered nor discussed the statements of the DWs. After believing the evidence of the plaintiff, the trial Court was obliged to consider, discuss, believe/disbelieve the statements of the DWs. So, the impugned judgment is in reality one sided judgment. The trial Court has failed to write a proper judgment. It does not show as to who were the defendant's witnesses and what had they stated. Such like judgments cannot and should not be approved by this Court. So, this appeal is accepted for want of proper judgment and the case is remanded to the trial Court for fresh decision after hearing the arguments of counsel for the parties. The parties shall bear their own costs. (MBC) Appeal accepted.

PLJ 1991 Lahore 198 PLJ 1991 Lahore 198 Present: FAZL-I-MAHMOOD J. H/DIRECTOR BASHIR AHMAD QASURI and another-Petitioners versus PAKISTAN , THROUGH SECRETARY, MINISTRY OF HEALTH and 2 others-Respondents. Writ Petition No.799 of 1990, accepted, on 27.1.1991. Natural Justice. —Removal of petitioners from Examining Body—Challenge to—Whether removal is against principles of natural Justice-Question of-Bare perusal of resolution in question brings out that petitioners were removed for misconduct and irregularities-It clearly had effect of stigmatization-Held: Ends of justice will be fully met and requirement of natural justice complied with if petitioners were to be asked to appear before appropriate authorities for discovery of truth after due inquiry-Held further: Petitiones' removal from office was illegal and since basic poceedings and resolution are void and non-existent, any subsequent act will also stand on no better footing—Case remanded. [Pp.l99&200]B&C PLD 1964 SC 461 rul. Mr.Sagheer Ahmad Qadri, Advocate for Petitioners. Sardar Abdul Majid Khan, Advocate for Respondent No.3. Air. MwntazAH Mirza, Standing Counsel for Federal Government. Date of hearing: 27.1.1991. order This writ petition is based on the grievance that the petitioners have been removed from the Examining Body of the National Counsel for Homeopathy through an ex-parte resolution. As per the allegation of the petitioners, neither they were present when the resolution was passed nor they were given any notice or opportunity to defend themselves. Brief facts of the case are that impugned" resolution having been allegedly passed by the Council, the Federal Government acting upon that removed the petitioners from the Examination Body. The bare perusal of the resolution in question brings out that the petitioners were removed for misconduct and irregularities. In other words it clearly had the effect of stigmatization. In the case of Abdul Rehman Vs. Tlie Collector and D.C.; PLD 1964 S.C.461, it has been laid down that the provisions of rules of natures justice are to be read into every enactment. In the precedent case Chairman was removed from the local Council. He was held entitled to hearing and to defend his conduct. The position of the present petitioners is not distinguishable from the facts of the above case in material respects. In such a situation, I think ends of justice will be fully met and the requirement of natural justice complied with if the petitioners were to be asked to appear before the appropriate authorities for discovery of truth after due inquiry. One of the question being raised .before this Court by way of constitutional petition is whether factually the impugned resolution was passed or not. This plea is being raised on the basis that the proceedings of that date do not record passing of such a resolution and that as per the petitioners no such meeting was held. These are factual things which can properly be gone into by the competent authorities. Learned counsel for the respondent No.2 has pointed out that in substitution for the petitioners, new members have been nominated on the Examination Body. On my asking it is clarified that members of newly constituted Examination Body are also members of the Council for Homeopathy. In the circumstances of this case it is held that the petitioner's removal from office was illegal for non-conformity with the requirements of rules of natural justice. Since the basic proceedings and resolution are held to be void and non-existent, any subsequent act will also stand on no better footing. The case is, therefore, remanded to the Federal Government for taking fresh proceedings in accordance with law in the course of which it will look into the factual controversies, allow opportunity to both the parties to defend themselves and to raise any plea in their favour. 6. In the peculiar circumstances of the case, there shall be no order as to costs. (MBC) Petition accepted.

PLJ 1991 Lahore 200 PLJ 1991 Lahore 200 Present manzoor hussain sial J. MUHAMMAD MUZAFFAR RABBANI-Petitioner versus THE VICE CHANCELLOR, UNIVERSITY OF ENGINEERING AND " TECHNOLOGY, LAHORE and another-Respondents Writ Petition No.7540 of 1990, decided on 14.1.1991. Educational Institutions. —University of Engineering and Technology—Admission to—Refusal of— Challenge to-Petitioner has not been able to make out case calling for interference when admissions stand already closed—Nevertheless admission policy requires reconsideration—Almost every year, a fair number of seats remain vacant in various disciplines out of total number of seats available for admission and in this way, number of students desirous to seek admission are deprived-Held: Admission policy requires revision in such a manner that not a single available seat goes unutilized before target date for closure of admission-Held further: Undoubtedly, petitioner and may be, some other students similarly placed, keen to seek admission in this University, have a prima facie case of hardship which can be taken notice of by University authorities. fP.lOlJA/ 1990 SCMR 825 and PLD 1976 Pesh. 97 rel. Sh. KJmrshid Ahmad, Advocate for Petitioner. Syed Sajjad Hussain, Advocate for Respondent No.l. Date of hearing: 14.1.1991. order Muhammad Muzaffar Rabbani petitioner had secured 801 marks in F.Sc (Pre-Engineering) in Annual Examination held in May 1990 by the Board of Intermediate and Secondary Education, Lahore. He applied for admission to 1st year B.Sc. (Engineering) Class in the University of Engineering and Technology, Lahore on 29.11.1989. He failed to secure admission in City and Regional Planning Discipline. Aggrieved by non-admission in the University of Engineering and Technology, Lahore he invoked Constitutional jurisdiction of this Court seeking direction to the respondents for displaying the 4th list for filling up the remaining vacant seats. 2. It was averred in the petition that the respondents had already displayed three merit lists of selected students and as per last list displayed, the last student called for admission obtained 803 marks as against the petitioner who secured 801 marks. If the 4th merit list was displayed the petitioner would have secured admission on merit out of 77 seats lying vacant. The respondents had already violated para 9.2 to 9.4 of the University Prospectus allowing admission to studies out of the vacant seats. The respondent No.l in parawise comments conceded that there are 77 seats lying vacant. According to the admission policy laid down in the current prospectus the petitioner can not secure admission because there are 17 persons who had obtained more marks than the petitioner and the last person admitted in the discipline. It was also averred that under para 9.6 of the Current University Prospectus admission cannot be allowed ordinarily after the expiry of 15 days from the commencement of the first year class. The admissions were closed from 15.8.1990 and the teaching session had already started from 9.7.1990. It is not possible for the petitioner to complete requisite days of attendance qualifying him to appear in the examination. 3. I have considered the contentions raised by learned counsel for the parties but find myself unable to interfere in the matter of admission policy as contained in University Prospectus. The petitioner has not been able to make out case calling for interference, when the admissions stand already closed since 15.8.1990 and academic session had already commenced with effect from 9.7.1990. Nevertheless in the circumstances of the instant case, I cannot help observing that the admission policy referred to above requires re-consideration. It has been frankly conceded by learned counsel for the respondents on the basis of the instructions imparted to him that almost every year a fair number of seats remain vacant in various disciplines out of the total number of seats available for admission in the University and in this way number of students desirous to seek admission are thus deprived. The admission policy requires revision in such a manner that not a single available seat goes unutilised before the target date for closure of the admissions. Undoubtedly the petitioner and may be some other students similarly situated, keen to seek admission in the University of Engineering and Technology have a prima facie case of hardship which can be taken notice of by the University authorities in comparison to those who had forefeited their right of admission. The University authorities are duty bound to act fairly and justly. The observations made hereinbefore, are in accord with the dictum laid down by the Supreme Court in Abdul Majid Vs. District Magistrate Loralai and 3 others (1990 S.C.M.R.825) wherein it was held: "The appellant having devoted a few years at Tandojam is no longer interested in getting admission at Khuzdar. In Tandojam University he was not in competition with any other Balochi candidate and his exclusion will not result in substitution but one seat allocated to Balochistan will go unutilized. These and such factors have to be taken full note of by executive officers, while functioning in a country with scarce and underutilized resources. 8. For the foregoing reasons the appeal is allowed". In another case caplioncd as Miss KJiola Jabcen and two others Vs. Government of !\,W.F.P. t/imugli Secretaiy, Health Department, peshawar and 5 others (P.L.D.L976 Peshawar 97), a Division Bench of'the Peshawar Hiiih Court held:- "The Government in nominating the candidates lor admission to Medical Colleges cannot act despotically and throw ruies of equity, justice and good conscience to winds - Government even in the administrative acts, bound in duty to act justly, fairly and reasonably. 4. For the foregoing reasons and subject to the observation made above this petition is disposed of. (MBC) Order accordingly.

PLJ 1991 Lahore 202 PLJ 1991 Lahore 202 Present: MALIK MUHAMMAD QAYYLM. J NAZIR AHMAD-Petitioner versus BORDER AREA COMMITTEE-Respondent Writ Petition No. 3/R of 1989, accepted on 22.1.1991 Void Order- —Allotment of land-Cancellation of-Challenge to-Contention that original order of cancellation having been passsed by officer who had absolutely no jurisdiction to do so, order passed by him was wholly void and conun-nonjudice~lt has been held in many cases that notification issued by Provincial Government authorising Mian waheeduddin to function as and in place of Border Area Allotment Committee, was illegal and all orders passed by him were of no legal effect-Held: It is by now well settled that if basic order is void, whole series of such orders as may be founded on it together with entire superstructure based on same, fall to ground-Petition accepted. [P.203]A,B&C PLD 1958 SC (Pak) 104 and PLD 1990 SC 1070 rel Ch. Muhammad Abdullah, Advocate for Petitioner. Ch Muhammad Rafiq Khan, Advocate for Respondent. Date of hearing: 22.1.1991 judgment The dispute in this case relates to an area of 2 Kanals of land out of Kliasra No. 594 in village Jammon Chandowal, Tehsil Narowal, District Sialkot. The petitioner claims to be the allottee of this land under the orders passed by the Border Area Allotment Committee on 9th October, 1968. It appears that this allotment was cancelled by the officer incharge Border Area Cell on 12lh June, 1973. According to the petitioner the order was passed behind his back and without hearing him and he was not aware of the cancellation. When he learnt about it, he on 12.10.1986 applied to the Chairman Border Area Allotment Committee for restoration of the allotment. This application was dismissed by the Border Area Allotment Committee on 7.11.1988 on the ground that the allotment in his favour stood cancelled as far back as 12th June, 1973. It also observed that as the petitioner was not living in the village where the land was situate, he has violated the condition No.9 of Schedule 2 of Martial Law Regulation 9 under which the allotment had been made. The Border Area Allotment Committee in this behalf relied upon the statement of his General Attorney Sultan Ahmad according to whom the petitioner was permanent resident of Tehsil Shakargarh and had been allotted land in village Jalal of that tehsil and was out of country in connection with his employment. This order of the Border Area Allotment Committee has been challenged by the petitioner by filing this constitution petition. Ch. Muhammad Abdullah, the learned counsel for the petitioner argued that original order of cancellation was passed by the Officer Incharge of the Border Area Allotment Committee, who had absolutely no jurisdiction to do so, and the order passed by him was wholly void, coram-non-judice. This contention of the learned counsel is well founded and finds support from judgment of this Court in W.P. 161-R of 1976 and in W.P. 1101 of 1973 and many other cases wherein it was held that the notification issued by the Provincial Government authorising Mian Waheeduddin to function as and in place of the Border Area Allotment Committee was illegal and all the notices issued and orders passed by him as Border Area Committee were without lawful authority and of no legal effect. It is thus obvious thai the order dated 20th July. 1973 was passed by wholly unauthorised person and is a nulliiy in the eye of law. Mr. Muhammad Rafique Khan, the learned counsel appearing on behalf! of the respondents however contended that even if the original order of cancellation was void, the allotment in favour of petitioner cannot be restored as petitioner was in breach of the conditions of allotment by not residing in village where the land was situate and instead proceeding abroad and as such the Border Area Allotment Committee was justified in refusing to restore the allotment and subsequent order passed on 7th November.1988 cannot be struck down. This contention of the learned counsel is without any merit. It is by now well settled that if the basic order is void, whole series of such orders as may be founded on it together with the entire superstructure of rights and obligations based on the ! same fall to ground. (See Yousaf All v. Muhammad Aslant Zia and 2 others (PLD 1958 S.C. (Pak) 104) and Ahmad KJian v. M'ember (Consolidation) Board of, Revenue, Punjab, Lahore and others (PLD 1990 S.C. 1070). This being so even the subsequent order cannot be sustained. Before parting with the case it may be observed that the Province of Punjab has filed an application (C.M. NO. 2862/90) for being impleaded as party in this petition on the ground that it is in possession of the land in question. Admittedly, no allotment has been made in favour of the applicant. It has thus no right in the land in question and cannot be impleaded as a party. The application (C.M.2862/90) is dismissed. As a result of the above, this petition is accepted, the impugned orders are declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs. It is however, clarified that it shall be open to respondent No.l to proceed afresh in the matter in accordance with law after notice to the petitioner. (MBC) Petition accepted.

PLJ 1991 Lahore 204 PLJ 1991 Lahore 204 Present: MUHAMMAD MUNIR khan. J Dr. H.H. MIRZA-Petitioner versus Msl. WAHEEDA KHATOON-Respondent Civil Revision No. 256 of 1990, accepted on 29.1.1991 Civil Procedure Code, 1908 (V of 1908)-- —-O.IX R.l3~Ex-parte decree-Setting aside of-Prayer for--Rcjection of application-Challenge to-In his application for setting aside ex-pane decree, petitioner had taken grounds which did need factual investigation—Because of ex-partc order, he could not file objections on report of Local Commissioner, on basis whereof, final decree was passed-Held: Trial court was obliged to afford opportunity to petitioner to prove his case by producing evidence and disposal of his petition summarily, was quite illegal—Petition accepted. [P.205]A&B Sh Abdul Aziz and Mr. Rafiq Javed Butt, Advocates for Petitioner. Syed Iflikliar Ahmad, Advocate for Respondent. Date of hearing: 29.1.1991 judgment On 7.9.1986 Mst. Waheeda Khatoon, respondent, filed a suit for the partition of property against Dr. H.H. Mirza, petitioner, in the Court of Senior Civil Judge, Lahore. The suit was resisted. Issues were framed. The parties led their evidence. The trial Court passed preliminary decree. Feeling aggrieved thereby, the defendant/petitioner filed appeal which was dismissed by the learned Additional District Judge Lahore, on 13.5.1985, and the file was sent back to the trial Court for further proceedings. On the receipt of the file, the learned trial Court issued notices to the parties, their counsel and to the Local Commissioner for 5.5.1985. Thereafter, Local Commissioner filed his report. On account of the nonappearance of the petitioner/defendant and his counsel, the trial Court passed an order for ex-pane proceedings on 24.4.1986 and ultimately granted ex-pane decree in favour of the respondent/plaintiff and against the petitioner/defendant on 27.4.1986. On 7.9.1986, Dr.H.H. Mirza filed application for setting aside the expatic decree on the grounds that the notices issued to him after the return of the file from the Apppellate Court, were not served; that his counsel had never appeared before the trial Court after the return of the file to the trial Court; that his counsel had wrongly been marked present in the order sheet and that he was not issued any notice with regard to the filing of the report of the Local Commissioner. This application was contested and the grounds for setting aside cx-pailc decree stating in the application, were denied by respondent/ plaintiff. The trial Court without framing issues and affording an opportunity to the petitioner/defendant to substantiate the grounds taken in the application dismissed the same on 27.7.19S7. on the ground that the contentions of the petitioner were not tenable. The appeal filed by the petitioner against this order was dismissed by the learned Additional District Judge on 7.12.1987. Hence this revision. The leared counsel for the petitioner mainly submitted that the petitioner was not given an;, opportunity to substantiate the grounds taken by him in the petition, for ijtting aside the ex-pane decree. The learned counsel for the respondent uas of the view that since the grounds taken in the petition were against the order sheet in which the presence of his counsel was marked, herefore, there was no need to frame issues or give any opportunity to the petitioner to lead evidence in proof of grounds taken in the petition. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that in this application for setting aside the ex-paite decree, the petitioner has taken grounds which did need the factual investigation. He had challenged the authenticity of the order sheet. Because of the ex-parte order dated 20.4.1986 the petitioner could not file objections on the report of the Local Commissioner on basis whereof the final decree was passed. I feel that in these circumstances, the trial Court was obliged to afford opportunity to the petitioner to prove his case by producing evidence and the disposal of his petition summarily was quite illegal. Pursuant to th; above discussion, this revision application is allowed. The impugned orders passed by the trial Court and by the Appellate Court are set aside, and the case is sent back to the trial Court for fresh decision of the application of the petitioner for setting aside the ex-parte decree, in accordance with law. The parties shall bear their own costs. (MBC) Petition accepted.

PLJ 1991 Lahore 205 PLJ 1991 Lahore 205 Present: MUHAMMAD MUNIR KHAN, J Syed FEROZE BAKHAT-Petitioner versus ABID HUSSAIN SHAH-Respondent Civil Revision No. 1314 of 1978, dismissed on 29.1.1991 Pre-emption— -—Pre-emption-Suit for-Collateral and Shank KJiata-Ground of~Respondent while appearing as a PW, clearly stated that he was a collateral of vendor and shank khata of suit land, and this part of his statement was not questioned in cross-examination—Neither petitioner himself appeared to rebut statement of respondent nor did he care to produce any witness—Appellate Court has applied his conscious mind to relevant evidence and has given sound and cogent reasons in support of his decision—Held: There is no illegality, material irregularity or jurisdictiona! error in impugned judgment—Revision dismissed. [Pp.206&207]A 57;. Naveed Shahiyai; Advocate for Petitioner. Nemo for Respondent. Date of hearing: 29.1.1991 judgment On 26.4.1975, Abid Hussain Shah, respondent, filed a suit for possession by-pre-emption on the basis of being a collateral of the vendor and co-sharer, against Syed Feroze Bakht, petitioner, in the Court of Senior Civil Judge, Gujrat. The suit was resisted, whereon the following issues were framed:-- Whether the suit was time barred? OPD Whether the plaintiff has superior right of pre-emption? OPP Whether Rs.200/- was paid and fixed in good faith as sale price 0 OPD Market Value? OPD Relief. The parties led their evidence. The respondent/plaintiff appeared as a witness and tendered documents Ex.PI to Ex.P7, including pedigree tables Ex.PI. Ex.P4 and Ex.P5 and copies of Jamabandi Ex.P2. Ex.P3 and Ex.Po. The petitioner/defendant did not care to rebut this evidence. Neither he himself appeared as a witness nor he produced any oral or documentary evidence. The learned trial Court dismissed the suit on 18.11.1975. Feeling aggrieved thereby. Abid Hussain Shah filed an appeal, which was accepted by the learned Addl. District Judge, Gujrat, on 10.7.1978, hence this petition. The learned counsel for the petitioner submits that the documentary evidence, pedigree tables Ex.P.l Ex.P.4. and Ex.p.5 do not connect the respondent/ plaintiff with the vendor; that the onus to prove himself as collateral of the vendor and Shareek Khata was on the respondent/plaintiff, which he has not been able to discharge; that his bald statement was not sufficient to prove of his being a collateral of the vendor and Shareek KJiata and that the petitioner/defendant was out of the Country at the time of the trial of the suit. I have considered the submissions made by the learned counsel for the petitioner with care. 1 do not agree with him. I find that the respondent, while appearing as a PW, has clearly stated that he was a collateral of the vendor and hareek Khata of the suit land. This part of the statement was not questioned in cross-examination. Furthermore, neither the petitioner himself appeared to rebut this statement of the respondent nor did he care to prodcue any witness. The learned Appellate Judge was quite competent to believe the evidence disbelieved by the learned trial Court and under section 134 of the Evidence Act, he could act upon the statement of a single witness i.e. the plaintiff. He has applied his conscious mind to the relevant evidence and has given sound and cogent reasons in support of his decision. His judgment is not perverse in any manner. The submissions made bv ihe learned counsel for ihe petitioner do not make out a case lor interference in exercise of the revisional powers of this Court, with the findings of the Appellate Court. 1 do not see any illegality, material irregularity or jurisdietional error in the impugned judgment of the learned Appellate Court. 4. Pursuant to the above discussion, there being no merit, the revision is dismissed. (MBC) Revision dismissed.

PLJ 1991 Lahore 207 PLJ 1991 Lahore 207 Present: AKIITAR HASSAN, J AHMAD FARAZ-Petitioner versus GOVERNMENT OF PAKISTAN , through Secretary, Establishment Division and 2 others—Respondents Writ Petition No. 9089 of 1990, dismissed on 16.3.1991 (i) Civil Servants Act. 1973 (LXXI of 1973)-- —-Ss.4&13-Contractuul employment-Termination of-Challenge to-Whether petitioner's case is covered by principle of Adal. Qisl and Ehsan dilated upon in Pakistan's case-Question of-Authority in Pakistan's case dealt with termination of a permanent employee without notice, exercising arbitrary powers available with removing authority and same was struck down on account of no opportunity of being heard having been afforded to employee— In this case, petitioner entered into a contract for a specified period and agreeing to put an end to it by exercising option clause—If State was to abide by Adal, Qisl and Ehsan, individual too was under a similar obligation—State was really holding Kliilafat on behalf of God Almighty and agreement with State had also to be kept up by individual—Promises bind both parties—Held: Application of principle of Adal, Qisl and Ehsan is not attracted to this case- Held further: Only remedy for breach of contract, was damages rather than forcing a servant upon a master or a vice versa. [P.213]B&C PLD 1987 SC 304 not attracted (ii) Civil Servants Act, 1973 (LXXI of 1973)-- —Ss.ll&14 read with Constitution of Pakistan, 1973, Articles 240 and 260- Contractual employment-Termination of-Challenge to-Whether contractual re-employment of petitioner is covered under Act—Question of—There is considerable mass of cases decided by Supreme Court on point of termination of a contractual employment-Consistent trend of those authorities is to allow cither parly the right to exercise option by giving in advance, either notice or pay in lieu thereof—There is no enacted law dealing with re-employment of retired persons which suggests that it had to be left to parties themselves while undertaking such agreements—Articles 240 and 260 of Constitution arc not much helpful—Act of parliament, namely Civil Servants Act threw out persons employed on contract from ambit of definition of "civil servant"—Held: There is considerable substance in contention that Act primarily deals with adhoc, temporary and permanent employments and not one obtained on a contract. [P.212]A PLD 1957 SC 77, PLD 1958 SC 267, 1969 SCMR 122, 1972 SCMR 204, 1974 SCMR 519, 1987 MLD 153 and PLD 1990 SC 612 rd. (Hi) Constitution of Pakistan, 1973-- —Art. 199—Contractual employment—Termination of—Challenge to—Whether writ petition is maintainable—Question of—Contention that Article 199 of Constitution on its peculiar phraseology, did not bar a writ petition arising out of a contract—It is consistently held in long line of authorities that a writ would not lie to enforce an employment on contract—Held: It is difficult to hold otherwise especially when Supreme Court has categorically made pronouncement directly on point—Held further: Writ petition is incompetent. [P.213]D PLD 1957 SC 77, PLD 1958 SC 267, 1969 SCMR 122, 1972 SCMR 204. 1974 SCMR 519, 1987 MLD 153 and PLD 1990 SC 612 rd. Mr. Abid Hassan Minto, Advocate for Petitioner. Ch. Muhammad Farooq, Deputy Attorney General for Pakistan, for the Respondents. Date of hearing: 20.2.1991 judgment It is a writ petition by Ahmad Farax:, a well-known poet and a litrary figure. His services in Grade-20 as Project Director of the Pakistan Academy of Letters were terminated by Martial Law Authorities in 1977 allegedly for political reasons. His appeal was accepted by the Federal Service Tribunal, while that of the Government before the Supreme Court failed in February, 1988. He was re­ instated and posted as Deputy Director General, Pakistan National Centre in Grade-19. After the Elections of November, 1988, the new Government placed him vide their orders dated 4.5.1989 in Grade-21 under a contract for three years and posted him as Chairman, Academy of Letters. Since his superannuation was to take place in January, 1990, his appointment as aforesaid Chairman was to continue even beyond retirement until he could complete the three year-term. However, by an order dated 19.12.1990 the respondent-Government terminated his services statedly again by reason of political victimization. He challenged the same in the present writ petition claiming that respondent No.3 who was ostensibly shown to have signed those orders, was not competent to do so; that the Prime Minister who alone was competent authority in his case had not passed it; that he was afforded no opportunity to show cause against the action; that it was taken in violation of clause (10) of the terms and conditions of his appointment inasmuch as he was given neither a three months notice nor pay in .lieu thereof; and lastly that it was tainted with mala fides based upon purely political vendetta. 2. The writ petition was opposed by the respondents being not maintainable, without cause of action and suffering from misjoinder of parties. The allegations of mala fides or political victimization etc. were denied. Instead it was submitted that the petitioner's tenure being contractual for three years was terminated in pursuance of the stipulation contemplating notice or pay in lieu thereof. For this reason, the writ petition was said to be not maintainable. Further it was asserted that the orders had been passed by the competent authority and that there was no lacuna in them on that score. The contention that the impugned order was not passed by the competent authority did not appear to be correct. Such authority in the petitioner's case placed in Grade-21 was the Prime Minister. On his insistence the original file was produced by the learned Deputy Attorney General and it disclosed that the order was passed by the Prime Minister himself. Probably the petitioner had some misgivings about it. but the same were removed when he was confronted with the original order. Mr. Minto, Advocate speaking for the petitioner urged that over the period an entirely different concept of "public employment" had been developed so that arbitrary termination of service in the exercise of a clause retained in the contract of service was no more valid. He found support for this view from an Indian publication Contract Act & Law of Tenders, etc." Part-II, Synopsis (pages 2640-411 reading as under:-- ' ................ It is not disputed that the petitioner was not heard before the termination order was passed. It is argued by the counsel for the Institute thai the petitioner was not entitled to a hearing because under the terms of the contract his services could be terminated by three months' notice or three months' pay in lieu thereof. This raises the fundamental question whether the petitioner's appointment was purely contractual or a public employment in which the employer is required to observe the principles of natural justice before terminating the contract of employment. One cannoi accede to the submission that the Director's appointment is purely contractual and that the Government had the right to terminate his services in accordance with the terms of the contract. The Director holds a post in public employment. The reason is that the Institute is an "authority" within the meaning of Article 12 of the Constitution. The Rules pro\ide that the Standing Committee will appoint and dismiss the Director with the prior approval of the Government. This is a clear case of public employment. In public employment it is now well recognised that the principles of the natural justice must be observed. To say that the Court cannot review the State action in the field of contractual appointment is to emasculate the one control mechanism which it possesses. Public employment has become for all purposes a subject of Administrative Law. The public element is so mixed in it that it ceases to be a contractual appointment. The cardinal development in this branch of law is that in public employment the employer is required to observe the principles of natural justice. The state must be fair, just and reasonable because in fact the State is the employer. Fairness demands that the employee must be heard". 4. Secondly he placed reliance upon a recent expression appearing in the Supreme Court judgment reported in Pakistan and others v. Public at large and others (PLD 1987 S.C. 304 (at pp.329, 338 and 361) exhorting that Quranic injunctions as to Ada!, Qist and Ehsan be adopted as abiding rules of dispensing justice in all matters including service contracts, so that an employee holding a post even for a specified term, may not be deprived of it in a manner giving an impression that he was being victimised for reasons contrary to those basic principles. Thirdly, while conceding that the petitioner was not a "civil servant" as defined in section 2 of the Civil Servants Act, 1973, Mr. Minto, Advocate nonetheless claimed for him status of a person "in the service of Pakistan" as contemplated by Article 240 read with Article 260 of the Constitution, so that his appointment to and conditions of service had to be determined by or under Act of Parliament, and the Act in this case was the Civil Servants Act, 1973. He invoked two provisions of the said Act namely, section 11(1) (/i) and section 14. The latter envisaged re-employment after retirement in public interest and according to counsel, the petitioner's contractual tenure having been made thereunder, shall be deemed to be cloaked with statutory basis as distinguished from something inter vivos, so that power from the aforesaid Statute itself shall have to be found out for its termination rather than to leave it to the arbitrariness of the employer. He convassed that re-employment allowed "in public interest" could a priori be terminated in a like manner only in public interest and not exercising the option clause, after giving in this manner a statutory colour to the tenure, counsel then invoked section 11 to see how its provisions relating to "termination of service' could apply to put an end to the petitioner's employment. The relevant portion of the section was as follows:— "Section \l-Termination of service. (1) The service of a civil servant may be terminated without notice (0 ............................................................................................................. (ii) on the expiry of the initial or extended period of his employment; or.. Since the re-employment of the petitioner was to continue after his retirement, it was claimed to be tantamount to an "extended period of his employment" which in terms of section 11 ibid could be terminated without notice only on the expiry of the term and in no case earlier. His assertion was that such a view was adopted in the decision dated 20.1.1990 of Writ Petition No.6305/1989 and also Abdul Majid Sheikh v. Mitshaffe Ahmed, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and another (PLD 1965 S.C. 208) wherein the notice clause was held to be ineffective being violative of section 11 ibid read with Article 240 of the Constituion. 5. Two provisions of the Statute could possibly tilt the scales against the petitioner. These were section 13 authorising retirement on any date, and section 4 holding tenure during pleasure of the President. Section 13 was struck down in the Pakistan's case being opposed to Adal, Qist and Ehsan. Counsel argued that for an analogical reason, even section 4 was void and so shall be any termination clause in any contract inter vivos. The learned Deputy Attorney General (Ch. Muhammad Farooq) refuted the applicability of the concept of a "public employment" developed in the commentary cited overleaf primarily on the ground that in Pakistan, it was held more than once authoritatively by the Supreme Court that writ would not lie to enforce a contractual employment as the only remedy for its breach was the damages. He relied upon Tlie Federation of Pakistan and others v. Sirajul Islam and another (PLD 1957 S.C. 77), Tlie Chandpur Mills Ltd. v. Tlie District Magistrate, Tippera and another (PLD 1958 S.C. 267), Shamshad All KJian v. Commissioner Lahore etc. (1969 S.C.M.R. 122), Muhammad Asadullah Klian Niazi, Sub-Divisional Officer, Bahawalpur v. Tlie Province of Punjab through the Collector, Bahawalpur (1972 S.C.M.R. 204), Marghub Siddiqi v. Hamid Ahmad KJian and 2 others (1974 S.C.M.R. 519), M.R. Rashid v. Tlie Province of the Punjab and 2 others (1987 M.L.D. 153) and Mrs. M. N. Arshad and others v. Miss Naeema Klian and others (PLD 1990 S.C. 612) in support of this assertion. He submitted that even though the petitioner's employment fell within the purview of the expression "service of Pakistan" visualised by Articles 240 and 260 of the Constitution, the Act of Parliament namely, The Civil Servants Act, 1973, including its sections 11 and 14 did not extend its operation to reemployment after retirment. Relying upon the typical definition of the term "civil servant" contained in section 2(l)(fo) which clearly excluded from its purview a person who is employed on contract, he urged that once it was conceded that the petitioner did not fall within the ambit of the aforesaid definition of a civil servant, it was completely otiose on his part to invoke any of the provisions of the entire Act including section 11 or section 14. While section 11 clearly provided for termination of service of a "civil servant" which the petitioner was not, even section 14 was claimed to be not of any invaluable assistance to him. Counsel argued that though ostensibly it permitted re-employment of a retired civil servant, yet he emphasized that the terms of the petitioner's contract prescribed in Annex: 'A' and 'B' did not envisage if it was allowed "in the public interest" and hence he could not eke out much from the section. According to his interpretation, the entire Act besides being meant for "civil servants" intended to provide for adhoc, temporary and permanent employments deliberately excluding from its purview the contracts of re-employment after retirement, as those were to be governed by the volition of parties. He tried to distinguish the ratio of the Pakistan 's case which according to him, arose from termination of a normal permanent employment rather than contractual re-employment for which, according to him, no law existed. While he showed no cavil with the proposition that our entire conduct may be ordered by the principles ofAdal, Qist and Ehsan, he asserted that when an agreement was reached between two parties, each one of them was under not only a moral but also a religious obligation to abide by it. He referred to Surah 16, verse 91 of the Holy Quran impinging upon persons to always fulfil their promises made with God Almighty. The translation of the verse It was the counsel's submission that State was representative of God Almighty in the amity of Islam ( &f]Js' ) and that any promise made with the State would be deemed to be a promise vu mally with God Almighty so that it was not only for the State to abide by it but also the opposite party. He objected to the claim thatAdal, Qist and Ehsan had to be observed by the State one-sidedly, without the citizens correspondingly adopting the same or similar attitude towards it in the context of their contracts. He drew attention to the terms of re-employment contained in Annex: 'A' and 'B', with a view to demonstrate that the petitioner had of his own free will accepted the termination clause and that being under a religious duty to accept its operation against him, he should have no cause for grievance. 8. After considering the pros and cons, I feel that the concept of "public employment "derived from the commentary reproduced above has not been much developed in Pakistan. Not a single instance of its acceptance in this country was cited, nor was it supported by any decided case of the Indian jurisdiction. The commentary appeared to be the thinking of the learned author himself, but has yet to receive judicial recognition in specific instances. Contrarily we have considerable mass of decided cases by the Supreme Court directly on the point of termination of a contractual engagement. The consistent trend of those authorities was to allow either party the right to exercise option by giving, in advance, either notice or pay in lieu thereof. Secondly, there was no enacted law dealing with reemployrnenl of retired persons. The reason for absence of any such law was suggestive of the fact that it had to be left to the parties themselves while undertaking such engagement. The attempt to bring it within the purview of the expression "service of Pakistan" referred to in Articles 240 and 260 of the Constitution was not much helpful. Article 240 no doubt envisaged regulating appointment and the conditions of service of persons in the "service of Pakistan " by Act of Parliament, but the Parliament legislated no Statute to regulate reemployment of retired officers. The Act of Parliament namely, the Civil Servants Act, 1973, threw out persons employed on contract from the ambit of the definition of "civil servant". It has been reproduced in para 7 ante. Exclusion of a contractual employment would a fortiori make the whole of the Act inapplicable to persons employed on contract. Section 11 was wrongly claimed to be applicable to the petitioner's tenure. It deals with termination of service of "civil servant" who definition-wise would not allow the petitioner to fall within its mischief. No doubt it provided for termination of service on the expiry of initial or extended period of employment, but the same related to that of "a civil servant". Even if the petitioner's re-employment amounted to "extended period of employment", he could not invoke the section on this pretext as the extended period of employment was meant to be that of a civil servant. Similarly it was inconsequential to seek application of section 14. It related to employment after retirement provided it was necessary in the public interest. Although the contention was that the petitioner's re-employment was in the public inte r est, yet the terms and conditions contained in Annex: 'A' and 'B' made no reference to it. There was no provision in the said section that the re-employment after having been made in the public interest, would be governed by other provisions of the whole Act. I could see considerable substance in the contention that the Act primarily dealt with adhoc, temporary and permanent employments, and not the one obtained on a contract. This is what the various authorities cited earlier laid down quite succinctly. The argument that the re-employment has statutory basis or that it could be terminated only in the public interest, is not persuading because both these aspects were not covered by any construction of the Statute. Application of Adal, Qist and Ehsan dilated upon in the Pakistan's case too was not attracted to the present case. The whole authority was dealing with termination of a permanent tenure, without notice, exercising arbitrary powers available with the removing authority. It was struck down on a view that an employee should be allowed a normal permanent tenure of employment and that he may not be deprived of it by being thrown out without affording an opportunity of being heard. As distinguished from that case, the petitioner had entered into a contract for a specified period of three years agreeing to put an end to it by exercising option clause. A contractual assignment is neither adhoc, nor temporary, nor permanent and hence the provisions intended to safeguard those employments could not apply to a contractual job. Again, accepting that State was to abide by A da!, Qist and Ehsan, the individual too was under a similar obligation to keep up his own overtures. This is what was ordained in the verse quoted above. State was really holding Khilafat on behalf of God Almighty and, therefore, the agreement with the State had also to be kept up by the individual. If, as was in this case, the individual agreed to be relieved by the application of the termination clause, he has to accept the action merely because he had signified his willingness to such termination of his employment. Promises bind both the parties. This is not only a mundane interpretation but also stems from the above quoted verse of the Holy Quran. The petitioner should not have made any grievance if the State chose to put into operation the clause which has been retained in the contract with the conscious consent of the parties. The petitioner will have no right to avoid the implications of his own commitment. Arguments relating to striking down section 4 of the Civil Servants Act or the termination clause contained in the contract on the analogy of striking down section 13 in the Pakistan 's case was not much enuring. Both these sections dealt with civil servants holding adhoc, temporary or permanent employments. They have certain safeguards in order to avail normal expectancy, but the case of a contractual employment was quite different. Since it was governed by no law, like section 4 or section 13 of the Civil Servants Act, 1973, it was completely inappropriate to introduce in the terms of a contract the third element of denying either of them the right to put an end to it. The rule of sagacity leaves to the parties concerned to do or undo a contract and the only remedy for breach thereof was the damages rather than forcing a servant upon a master or a vice versa. Mr. Minto, Advocate asserted that Article 199 of the Constitution on its peculiar phraseology did not bar a writ petition arising out of a contract. I am afraid, the long line of authorities referred to in para 6 ante consistently held that a writ would not lie to eforce an employment on contract. It is difficult to hold otherwise especially when the Supreme Court has categorically made pronouncement directly on the point. The writ is incompetent. As a result, it is dismissed leaving the parties to bear their own costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 213 PLJ 1991 Lahore 213 Present: FAZL-I-MAHMOOD J. Mst. SALAMAT BIBI and 2 others-Appellants Versus Mst. SARDARAN BIBI-Respondent. F.A.O. Nos.32 and 36 of 1983, accepted on 27.5.1990. (i) Miscarriage of justice- —Appeals before Additional District Judge—Dismissal in default of— Restoration of appeals refused—Challenge to—Whether seeking dismissal of appeals in High Court for want of instructions would result in miscarriage of justice-Question of-It is not denied by counsel for appellants that he was duly briefed and instructed by appellants on being engaged to file and prosecute appeals; that his professional fee was paid to him and that he drafted grounds of appeals and appended therewith relevant documents—It is not understandable as to what is meant by him when he submits that he is not being given instructions—Held: It is not desirable to adopt any measure or course of action which is likely to skake public faith and confidence in judicial system or its institutions or result in failure or miscarriage of justice. [P.215JA (ii) Restoration- —Appeals before Additional District Judge-Dismissal in default of- Restoration of appeals-Prayer for-Refusal of-Challenge to—Before dismissing appeals or applications for restoration, Additional District Judge should have looked into nature of Us before him and would have realised that appeals were pending on behalf of a widow and her minor children—Further ground which weighed with him, was that presence of appellant No.l was not recorded in order of Magistrate, a copy of which alongwith covering page shows that she was a witness in criminal case—Whether her presence was recorded or not, was an act of Court-Held: It should have sufficed that she asserted that she had gone to Magisterial court and her assertion was corroborated by circumstances that she figured amongst witnesses and criminal case was in fact fixed for that date. [P.215&216JB (iii) Restoration-- —Appeals before Additional District Judge-Dismissal in default of- Restoration of appeals-Prayer for-Refusal of~Challenge to~There is no want of authority that courts favour adjudication on merit-Held: A court performing judicial functions to adjudicate rights of parties, should be slow in a technical knock out by dismissing case for default and it should also not be charry of restoring an appeal dismissed for default where a person shows sufficient cuase/reasonable grounds for absence—Appeals accepted. [P.216]C&D Syed Sarfraz Hassan, Advocate for Appellants. Mr. Seerat Hussain Naqvi, Advocate for Respondents. Date of hearing: 27.5.1990. judgment These two connected F.A.Os. by Mst. Salamat Bibi raise common questions or decision and, therefore, are being disposed of by a single order. 2. FAO No.32 of 1983 and FAO No.36 of 1983 have been filed against the orders of a learned Addl. District Judge, Faisalabad , dated 10.11.1982 whereby he refused to restore the two appeals of the appellants inter alia, for the reason that the absence of the appellants could not be held to be bona fide. The dissatisfied appellants then filed these two first appeals against the orders before the High Court. Both appeals were admitted to regular hearing and have been taken up for disposal today. Learned counsel for the appellants at the very outset expressed his desire to withdraw the appeals on the ground that he has no instructions from the appellants. When asked by me to explain as to what did he really mean or imply while raising the plea of want of instructions in order to withdraw the appeals, he elaborated that he had not, for quite some time, heard from the appellant lady. I asked the learned counsel whether any professional fee charges were in arrears? He replied in the negative. I offered him ample opportunity for elaboration of his submission. Nothing substantial was submitted by him except the conventional remarks of want of instructions. After having given a serious consideration to the plea, I have reached the conclusion that the practice of using the phraseology of "no instructions" and seeking dismissal of the appeals as withdrawn by the learned counsel for the appellants was wholly unsustainable in the facts and circumstances of this case. It is not denied that the learned counsel was duly briefed and instructed by the appellant on being engaged to file and prosecute the appeals. It is also not denied that he had been paid his professional fee. It is not denied that he drafted the grounds of appeals and appended therewith relevant documents necessary for the decision. In this background, I am at a loss to understand as to what is meant by him when he submits that he is not being given instructions. The instructions which were received by the counsel at the time of accepting the brief and filing the appeals, in my view, must hold good even today: unless it is shown that altered state of facts or circumstances warranted fresh instructions. Nothing of the ~sort has been spelt out by the learned counsel before this Court. In these circumstances I called upon the learned counsel to argue the appeals on merits and did not feel inclined to dismiss the appeals for want of instructions. I am not ready to adopt any measure or course of action which is likely to shake public faith and confidence in the judicial system or its institutions or result in failure or mis-carriage of justice. Coming to the merits of the cases learned counsel points out that the appeals were dismissed on 13.3.1982. He had filed a copy of the order of a learned Magistrate at Faisalabad in a criminal proceedings. According to the Qalundra of • witnesses, Mst. Salamat Bibi appellant figures as witness No.l in the case. The order of the learned Magistrate dated 20.2.1982 shows that on that date no witness appeared and accordingly he ordered presence of the witnesses to be secured through bailable warrants in the sum of Rs.2,000/- each. Learned counsel for the appellants states at the bar that the order of the learned Magistrate dated 20.2.1982 was before the learned Additional District Judge and he failed to properly comprehend or construe it. The learned Additional District Judge has even taken exception in his impugned order to filing B of application for restoration on 20.3.1982 for absence on 13.3.1982, it is further submitted. Application for restoration can be filed within thirty days as provided in Article 168 of the Limitation Act read with relevant provisions of the Code of Civil Procedure, and a person is fully within his right to move an application within that time and no adverse inference can be drawn on that basis. This is a ground for decision by the learned Additional District Judge and, speaking with respect, this was wholly an irrelevant consideration which has crept into the proceedings and thus vitiated the impugned order. Apart from this aspect before dismissing the appeal or application for restoration the learned Addl: District Judge should have looked into nature of the Us before him and if he had cared to find out he would have realised that the appeals were pending on behalf of a widow and her minor children. I may observe that a female and more so a widow in our society in pursuing litigation is under certain amount of disability as compared to males. A further ground which weighed with the learned Addl: District Judge was that presence of appellant No.l was not recorded in the order of the Magistrate dated 13.3.1982. This view is based on sketchy material before him. A copy of the order together with covering page shows that the appellant was a witness in the criminal case. Whether her presence was recorded or not was an act of the Court. It should have sufficed that she asserted that she had gone to the Magisterial Court in connection with that case which assertion is corroborated by the circumstances that she figures amongst the witnesses and the criminal case was in fact fixed for that date. Apart from the legal lacunae noted in the order of the learned Addl: District Judge, there is no want of authority for the proposition that Courts favour adjudication on merit. A Court performing judicial functions which is required to undertake adjudication of the rights of parties should be slow in a technical knock out by dismissing a case for default and it should also not be charry of restoring an appeal dismissed for default where a person shows sufficient cause/reasonable grounds for absence. In these circumstances, I find that the orders of the learned Addl: District Judge under appeal suffer from vitiative infirmity and the same are accordingly set aside. The two appeals are accepted. Since nobody has turned up to contest these appeals despite notice, respondent is proceeded ex parte but there shall be no order as to costs. (MBC) Appeals accepted.

PLJ 1991 Lahore 216 PLJ 1991 Lahore 216 Present: GUL ZARIN KlANI J. MUHAMMAD YAQOOB efc-Appellants versus FAZAL DAD e/c-Respondents. R.S.A. No.542 of 1966, accepted on 19.2.1991. Pre-emption— —Pre-emption—Suit for—Suit dismissed by trial court. but decreed in first appeal-Challenge to--Whether equality gained by vendee as a result of improvement in status, was subsequently lost by sale of land which gave rise to it-Question of-If at time of sale, a vendee is possessed of a qualification either equal or superior to pre-emptor, its subsequent loss was immaterial to his rights-Held: It is clear that in result of subsequent sale, appellant did not forfeit his equality gained by purchasing land before institution of pre-emption suit filed against hirn-Appeal accepted. [P.218&219]A,B&C 44 P.R. 1903 and 3 PLR 1907 rel. Ch. Arshad Mahmood, Advocate for Appellants. Sh. Naveed Shehaiyar, Advocate for Respondents. Date of hearing: 19.2.1991. judgment Undisputed, and, otherwise proved facts in second appeal arising from a pre­ emption suit, are few and simple but involve a complex question of law, hereto not covered by any binding authority. At least, so the learned counsel state. By mutation 1496, sanctioned on 25.1.1964, one Muhammad Fazil sold 21 kanals, 9 marles of land at Chak Pirana, in Tehsil Kharian, to Muhammad Yaqoob appellant for a consideration of Rs.4500/-. Fazal Dad alongwith Muhammad Ashraf claimed pre-emption in respect of this sale and brought a pre­ emption suit against the appellant on 25.1.1965. Pre-emptors asserted their superior qualifications on the grounds of being owners of the estate, and, owning of land in the patli. Before the institution of pre-emption suit, vendee had also purchased some land, in the revenue estate, in joint ownership with his father-inlaw, on 27.3.1964. This acquisition brought him at par with the pre-emptors. In this state of facts, appellant resisted the suit filed against him and repudiated the preference asserted by his opponents. On 24.3.1965, appellant sold his share of the land purchased by him on 27.3.1964, and, bought another piece of land in the same revenue estate. In the result of a contested trial, the learned trial Court found that since at'the time of institution of the pre-emption suit, rights of the parlies were at par, pre-emptors could not succeed, and, dismissed their suit on 9.2.1966. In appeal filed by them, learned District Judge differed with the trial Court, and, held that in the act of subsequent sale of the land which had improved the status of the vendee prior to institution of pre-emption suit filed against him, the vendee could not successfuly resist and defeat pre-emption against him. On the above premises, appeal was allowed on 6.6.1966, and, the pre-emption suit decreed to the pre-emptors subject to payment of a specified sum of money, before a particular date. Aggrieved of the decree given in first appeal, appellant came up in second appeal to this Court for assailing the view of learned District Judge. His appeal was admitted to hearing on 21.7.1966. Upon true application of legal principles to the existing facts, second appeal must succeed because the view of learned District Judge on them was untenable and could not be upheld. Clear preference is quint-essence of pre-emption. In order to succeed, a pre-emptor is obliged to maintain his preference on three crucial stages viz date of sale, date of institution of pre-emption suit, and, finally, the date of the decree by the trial Court. Loss of preference on or between any of the above three stages must prove fatal for a successful claim of pre-emption. Case of a vendee who is on defence is different from that of a pre-emptor. In competition to him, vendee's right is to be judged at the time of the sale sought to be pre-empted. In case, the vendee's qualification was at par or superior to the pre-emptor, pre-emption against him must fail. While it is essential for a preemptor to retain his superior qualifications as an unbroken chain till the final stage is reached in the pre-emption suit, it is not so necessary for the vendee to maintain them after the initial sale. No. rule of law required him to do so. At least, none has been pointed out. On the contrary, section 21-A grave permission to the vendee to improve his status till the institution of pre-emption suit, and, thereafter improvement was permissible only either through inheritance or succession. It was not denied that by purchasing a piece of land before insitution of pre-emption suit, the appellant had become an owner of the estate and enjoyed equal qualification with the pre-emptors. At that stage of time, it is common ground that pre-emptors were bereft of any superiority over the appellant. Important question requiring attention would be, whether the equality once gained in the result of improvement is status, was, subsequently lost in the sale of land which gave rise to it. In an earlier portion of the judgment, I have referred to a principle that it was not obligatory for a vendee to retain his qualifications after the sale, whereas it was so for a pre-emptor. If at the time of sale, a vendee is possessed of a qualification either equal or superior, its subsequent loss was immaterial to his rights. Except for a contingency contemplated in section 28-A of Punjab pre-emption Act, similar consideration must attract to a case of imporvement in status of the vendee before the institution 'of the pre-emption suit because neither any express section in the Pre-emption Act nor any principle of pre-emption law justified a different treatment of the situations visualized above. No direct authority on the point was cited by either side- It is stated that despite search, they have not been able to locate any. However, facts in Muhammad Nawaz KJian and another versus Mussammat Bobo Sahib reported as 44 P.R. 1903 closely resemble the facts of the instant case, and, the decision rendered in the case is clearly helpful. Relevant observations are present at page 156 of the reported judgment. It runs:- "It is also urged that defendant having at all events immediately parted with his own house ought not to be allowed to retain the one in suit on the strength of his ownership of that house. But he is defendant, not plaintiff, and the question of priority must be decided with reference to the circumstances existing at the time of his purchase had not at any later period, and if he was entitled to purchase at the time of sale he did not forfeit his right by parting with his own house afterwards. It would have been different had the plaintiff been in his position". Rule of law laid down in above decision was not differed with in case of Sardar Darchan KJian and others versus Sohaura Mal--3 P.L.R. 1907. In fairness, it may be observed that both these cases were referred to by Ch.Arshad Mahmood, learned counsel for the appellant. Learned counsel for the respondents, except for an oral address, did not refer to any authority in which a contrary view prevailed. Having regard to this state of law, it is clear that in result of subsequent sale, appellant did not forfeit his equality gained by purchasing the land before the institution of pre-emption suit filed against him. Upon this view, I find it difficult to uphold the view of learned District Judge expressed in the impugned judgment. For the foregoing reasons, appeal succeeds. Impugned judgment and decree passed by learned District Judge are set aside, and, those of the trial Court restored by leaving the parties to bear their own costs of the litigation . Records be returned. (MBC) Appeal accepted.

PLJ 1991 Lahore 219 (DB) PLJ 1991 Lahore 219 (DB) Present: MANZOOR hussain SlAL AND MUNIR A.SHEIKH, JJ. MUHAMMAD TARIQ CHAUDHRY-Petitioner versus Syed MASROOR AHSAN and 3 others-Respondents Writ Petition No.681 of 1990 (also W.P. 419 of 1991) dismissed on 10.3.1991. (i) Constitution of Pakistan, 1973-- —-Art.l99(l)(d)(/7)-Senator--Election of~Writ of quo wairanto against- Whether there is sufficient material on record to justify removal of first respondent, by issuance of writ of quo wamj/ito-Question of-In this case, contest is not between two rival candidates and relater cannot competently file election petition nor can he invoke provisions of Article 63(2) as disqualification incurred by first respondent was of pre-election and not after he became Member of Senate-If dispute touches title to office and had not arisen in relation to election, writ of quo wairanto could issue-Held: Material brought on record by petitioners, is not of such an evidentiary value so as to legally justify removal of an elected Member of Senate from his public office in exercise of discretion in constitutional jurisdiction. [Pp.228,229&230]H,J&K PLD 1989 SC 396 = PLJ 1989 SC 312 and PLD 1989 SC 26 ref. (ii) Constitution of Pakistan, 1973-- —-Art.l99(l)(£)(//) read with Articles 63 and 225-Senator-Election of-Writ of quo wairanto against-Whether writ petition is maintainable-Question of~ Opcning clause of Article 199 "Subject to Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law" indicates that provisions of Art. 199 are controlled by other provisions of Constitution- Provisions of Articles 63 and 225 prescribe mode for resolution of election disputes-Under Article 63, Speaker of National Assembly or Chairman of Senate shall refer matter to Chief Election Commissioner 'for decision-Filling up nomination papers for filing thereof is a step in process of election and only assailable by means of election petition as envisaged under Article 225 read with sections 31 and 34 of Senate (Election) Act, 1975-Held: All steps in conduct of election including filing of nomination papers are thus challengeable by means of election petition-Held further: Jurisdiction under Article 199 was not available and petitions are not maintainable. [Pp.225,226&228]D,E,F&G PLD 1974 Lahore 178, PLD 1967 Lah.689, PLD 1977 Karachi 604 and PLD 1989 SC 396 = PLJ 19S9 SC 312 rel. (iii) Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (P.O.S of 1977)-- —-Art.lO(4) read with P.O.17 of 1985-Senator-Eleciion of-Challenge to-- Whether first respondent was diqualified as Member of Senate on account of having been defeated in Sindh Assembly—Question of—Contention that first respondent was disqualified as Member of Senate under Article 10(4) as amended by President's Order No. 17 of 1985, as he contested election for membership of Provincial Assembly of Sindh and was defeated, has no force because disqualification was relatable only to election held under that Order- Held: Election to seat in question was held under Senate (Election) Act, 1975 read with Representation of the People Act, 1976, as such disqualification contained in P.O.S of 1977 was not attracted. [P.232JN (iv) Jurisdiction-- —Senator—Election of—Writ of quo warranto against—First respondent having been elected against Sindh seat, whether Lahore High Court has no jurisdiction to entertain writ petition—Question of—Principle enunciated by Supreme Court does not exclude jurisdiction of Lahore High Court to entertain petition against first respondent who holds publice office in Senate situate within territorial jurisdiction of Lahore High Court-Held: Factum of his election from Sindh Province does not divest jurisdiction of Lahore High Court otherwise duly vested in it under Article 199(1)(£>)(;7) of Constitution, to decide these matters. ' [P.225]C 1985 SCMR 758 and PLD 1968 SC 387 rel. (v) Jurisdiction— —Senator—Election of—Writ of quo warranto against—Whether Lahore High Court has jurisdiction under Article 199(l)(b)(;7) of Constitution-Question of- -It is abundantly clear that pursuant to Notification issued on 27.6.1990 at Islamabad, first respondent was elected as Member of Senate and holds that office situate at Islamabad within territorial jurisdiction of Lahore High Court -Held: Lahore High Court has, therefore, jurisdiction to entertain and adjudicate upon matter. [Pp.224&225]A (vi) Jurisdiction— —Senator-Election of-Writ of quo warranto against-Whether similar writ petition against first .respondent in Sindh High Court, divests jurisdiction of Lahore High Court-Question of-Held: Mere pendency of a writ petition on identical question against first respondent, in Sindh High Court, for similar relief, does not divest jurisdiction of Lahore High Court to decide these petitions. [P.225]B PLJ 1987 Karachi 331 (FB) rel. (vii) Senate (Election) Act, 1975 (LI of 1975)-- -—S.78 read with Constitution of Pakistan, 1973, Article 63-Senator-Election of—Challenge to—Whether there is sufficient evidence to justify disqualification of first respondent-Question of-Respondent was convicted in 1977 and sentenced for less than two years-Undoubtedly period of more than 5 years has elapsed-He was, therefore, not disqualified to be member of Senate on account of previous conviction under M.L.R. No.l3-Correctness of FIRs, press statements cannot be established unless formally proved in evidence-­ Penal statute tending to deprive valuable right of franchise, must be strictly construed and in case of doubt, benefit must go to person against whom such finding is sought-Held: Writ Petitions are devoid of force—Petitions dismissed. [Pp.230&232]L,M&O PLD 1984 Lahore 502 (DB), PLD 1986 Lah.310, PLD 1969 SC 42, 1991 CLC 1, 19S6 SCMR 1736, and 1984 SCMR 1172 rel. Ch. Irshadullah Chatha and Mr. A.K.Dogar, Advocates for Petitioners. Mr. Sharif Hussain Bokhari, Advocate, with Mr. Naseer Ahmad Chaudhry, Advocate for respondent No.l. Ch. Muhammad Farooq, Deputy Attorney General and Mr. Faqir Muhammad KJiokhar, Deputy Attorney General for other Respondents. Dates of hearing: 13, 15. 19, 20/29-1-1991, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 24-2-1991. judgment Manzoor Hussain Sial, J.--Syed Masroor Ahsan, "hereinafter referred to as the first respondent" was elected un-opposed on 16.6.1990 for the unexpired term of a seat in Senate from Sindh, having fallen vacant on the demise of Mr.Mohsin Siddiqui. Senator. He was notified as such on 27.6.1990 by the Election Commission of Pakistan. Mr.Tariq Chaudhry who is also Member of the Senate filed this Constitutional petition in the nature of quo warmnto alleging therein that he was disqualified to hold office of a Senator and sought direction to him to show, as to under what authority he was holding or purported to hold office of a Senator, with consequential relief, restraining the Chairman, Senate from administering the oath to him pending disposal of this petition. 2. On 13.8.1990, pre-admission notice of this petition was issued to first respondent as also for consideration of the prayer for interim relief. On 15.8.1990 an order was passed by this Court to the effect that the oath of the office of the Senator shall not be administered to him till further orders. The first respondent assailed that order through a petition for special leave to appeal before the Supreme Court, wherein leave was granted on 23.12.1990 (Reported as PLJ 1991 SC 40) and the impugned order restraining him from taking oath of his office was set aside, with a direction to this Court for disposal of the writ petition by 15 th January, 1991. The first respondent took oath of his office as Member of the Senate in the first week of January, 1991. 3. This case was assigned for disposal to this Bench on 13.1.1991 and it was admitted to regular hearing on 20.1.1991. Syed Sharif Hussain Bukhari, Advocate for the first respondent and Ch.Muhammad Farooq, Deputy Attorney-General for respondent Nos.2 and 4 accepted service on their behalf. Notice was issued to the third respondent (Chief Election Commissioner, Pakistan) for 29.1.1991. Syed Sharif Hussain Bokhari, Advocate pointed out that the first respondent was detained by the Provincial Government of Sindh and sought short adjournment to have instructions in the matter. On 11.2.1991, learned counsel for the first respondent stated that he could not contact him, nevertheless expressed that the written statement filed at the preliminary stage of the case be construed to be written statement filed after admission of this petition for regular hearing. The third respondent also filed parawise comments to this petition. On 19.1.1991, one Malik Khalid Pervaiz, Advocate, filed Writ Petition No.419/91 on identical allegations and for similar relief against the first respondent which was directed to be heard alongwith this petition. By this order we propose to dispose of both these petitions. 4. The petitioners precisely maintain that the first respondent is disqualified to be Member of the Senate on account of his conduct being prejudicial to the security of Pakistan and a threat to maintenance of public order. He had been involved in several cases of murder, terrorism, and anti-State activities. The reports published in July,1990 in the weekly "Facts International", weekly "Takbcer", "Pakistan Observer", and weekly "Siasi Loag" high-light his character. Besides, report made on 10.10.1989 by daily Jang Karachi to the SHO Police Station Civil Lines, Karachi ransacking office of daily Jang, F.I.R. No.29/79 lodged on 8.2.1979 at Police Station Aram Bagh, District South, Karachi under Sections 302, 307, 435, 148/149, 120/B P.P.C. read with relevant Martial Law Regulation and F.I.R. No.369 under Ss.307, 353, 336, 148/149, 303 P.P.C. at Police Station Mithadar, District South. Karachi containing allegations of setting on fire oil installations at Kemari and Korangi by the accused. The first respondent allegedly provided arms to them which tends to show his involvement in criminal cases. A chart appended with this petition depicts his criminal activities. Moreover, he filled in nomination form by deliberately giving wrong information. He was convicted in one case under MLR 13 and indicted in several other criminal cases, but he had the courage to reply in the negative in the relevant columns of the form. He was thus a dishonest person and disqualified within the meaning of Article 63(i)(g)(p) read with Article 62(d)(f) and (/i) of the Constitution. 5. The first respondent repudiated the allegations in the written statement and raised preliminary objection as to the jurisdiction of this Court to entertain this petition, in view of the alternate remedy available to the petitioners under the Senate (Elections) Act, 1975 read with the provision of Article 225 of the Constitution. It was also pleaded that he was representative of electorate from the Province of Sindh as he was elected member of the Senate by the Sindh Provincial Assembly, this Court has no jurisdiction to entertain this petition, moreso when his election stood previously challenged through a similar writ petition pending decision in the Sindh High Court. He controverted the contents of the press statements and the allegations in FIRs on the ground that the same were politically motivated. He denied to have incurred disqualification under Articles 62 and 63 of the Constitution. On merits he asserted that the allegations embodied in FIRs and the press statements being inadmissible in evidence merited no reliance in view of the dictum laid down in Raja Muhammad Afzal v. Ch.Muhammad Altaf Hussain (1986 S.C.M.R. 1736). The allegations contained in the FIR No.29/79 were of no legal significance as he was finally discharged from that case on 18.7.1990, by the Additional Sessions Judge, South Karachi. He maintained that he passed his B.Sc. examination in 1974 and obtained Law Degree in 1987 from Islamia Law College, Karachi. He is loyal citizen of Pakistan and a good Muslim. It was pointed out that except for one case, in which he was convicted under Martial Law Regulation No. 13 for one year and ten stripes in 1977 for delivering a political speech against Martial Law, he was not convicted in any other case. He was thus not disqualified under Article 63(1) (h) of the Constitution, as the period of sentence was less than two years and more than five years had already elapsed. The third respondent (Chief Election Commissioner of Pakistan) opposed this petition and maintained in para 5 of the comments that the petitioner ought to have sought the relief through an election petition as provided under Section 34 of Senate (Election) Act, 1975 rather than filing this Constitutional petition in the nature of quo wananto. Learned counsel for petitioners in support of these petitions argued that as the first respondent holds his office as Member of the Senate situate in Islamabad falling within the territorial jurisdiction of this Court, this Court is competent to entertain and dispose of these petitions and referred to Article 199(l)(fo)(/7) of the Constitution. It was submitted that this Court was competent to require a person holding or purporting to hold a public office, within the territorial jurisdiction of this Court to show under what authority of law he claimed to hold the office. Reliance was placed on Notification, dated 27.6.1990 issued by the Election Commission at Islamabad, declaring first respondent duly elected as Member of the Senate functioning at Islamabad. In support of his submission he relied on Abdul Chaffar Lakhani V. Federal Government of Pakistan (P.L.J. 1987 Karachi 331) and Messrs Al-Iblagh Limited, Lahore V. The Copyright Board, Karachi and others (1985 S.C.M.R. 758). The learned Deputy Attorney-General also supported the learned counsel for petitioners in this behalf. As regards the next contention learned counsel for petitioners maintained that the writ of quo wananto is competent because the challenge is not thrown to the election of the first respondent as Member of the Senate, but his title to hold office of a Senator is being questioned. It was submitted that neither the provisions of Article 225 of the Constitution nor the provisions of Article 63(2) of the Constitution for resolution of election disputes create any bar for this Court to exercise jurisdiction under Article 199 (l)(ft)(/i) of the Constitution. Reliance was placed on Lt. Col. FarzandAli and others V. Province of West Pakistan through the Secretary Department of Agriculture, Lahore (P.L.D. 1970 S.C.98). Learned counsel for petitioners also strived to distinguish the dictum laid down in Election Commission of Pakistan V. J avoid Hashmi etc. (P.L.D. 1989 S.C. 396 = PLJ 1989 SC 312) and Rahim Shah V. Tlie Chief Election Commissioner and another (P.L.D.1973 S.C.24) on the point that in those cases the contest was between rival candidates as envisaged under the provisions of Representation of the People Act,1976 read with Article 225 of the Constitution, but in the instant case information is being laid by a third person for the removal of the first respondent from his office. The challenge to the intermediary process of election was subject of resolution before the Supreme Court, wherein it was held that the election petition was the only adequate remedy in the matter. It was stated that in the instant case, however, the disqualification of the first respondent being prior to election and continuing thereafter, the Constitutional petition in the nature of quo warranto was the only remedy available to a relater. Learned counsel for petitioners as well as the learned Deputy Attorney-General submitted that Article 63(2) of the Constitution was also not attracted because that too related to disqualification incurred after the election when a person becomes Member of the Parliament and does not refer to pre-election disqualification. The next contention advanced by learned counsel for the petitioners was that, the first respondent was defeated in his contest for a seat in the Sindh Provincial Assembly as such he stood also disqualified under para 10(4) of the Presidential Order 5 of 1977 (as amended by P.O.17 of 1985). On merits learned counsel for petitioners made reference to various FIRs, a chart and press statements including an order of conviction of the first respondent passed by the Summary Military Court in 1977 as also wrongly filling up nomination form, to show that the first respondent was disqualified to hold office of a Senator. Reference was also made to copies of some other FIRs sought to be placed on record through a separate petition on the strength of law laid down in Islamic Republic of Pakistan V.Abdul Walt KJian, MNA (P.L.D.1976 S.C.57). Learned counsel appearing on behalf of the first respondent, on the other hand, contended that this writ petition is not maintainable firstly because no election to House was challengable except by an election petition presented to a Tribunal as provided under Article 225 of the Constitution. The case titled Election Commission of Pakistan V. Javaid Hashmi (P.L.D. 1989 S.C. 396=PLJ 1989 SC 312) was cited to argue that the writ petition in the nature of quo wairanto was not maintainable in view of the clear bar recognised in the aforesaid pronouncement of the Supreme Court. It was submitted that the provisions of Article 199 were controlled by the provisions of Articles 225 and 63(2) of the Constitution as the former were made subject to the other provisions of the Constitution. The legislature clearly intended to prescribe forum for resolution of all the election disputes as contemplated under Article 225 of the Constitution. It was also submitted that the first respondent having been elected to represent a seat of Senate from the Province of Sindh and pendency of a writ petition on identical nature in the Sindh High Court at Karachi barred the jurisdiction of this Court to entertain this petition. It was lastly contended that in any case it was not a fit case to exercise discretion to interfere in the election of the first respondent on the mere allegations levelled in the press statements and F.I.Rs. referred to above. Reliance was placed on Raja Muhammad Afzal V. Ch.Muhammad Altaf Hussain (1986 S.C.M.R.1736) in support of his submission. We have heard learned counsel for the contesting parties, at some length and the learned Deputy Attorney-General and have also examined the documents on the record. The first question of paramount importance for determination is, as to whether this Court has the jurisdiction to decide these petitions under Article 199(l)(b)(») of the Constitution of the Islamic Republic of Pakistan. It is abundantly clear that pursuant to Notification issued on 27.6.1990 at Islamabad the first respondent was elected as Member of the Senate and holds that office situate at Islamabad within the territorial jurisdiction of this Court. He is thus a person holding the public office situate within the territorial jurisdiction of this Court. This Court, therefore, has jurisdiction to entertain and adjudicate upon the matter. The mere pendency of a writ petition on identical questions filed by Shamasul-Arfin MNA against the first respondent, in the Sindh High Court for similar relief, in our view, does not divest jurisdiction of this Court to decide the petitions. In Abdul Ghaffar Lakhani V. Federal Government of Pakistan through Secretary, Cabinet Division, Government of Pakistan Islamabad and two others (P.LJ.1987 Karachi 331 (F.B), it was held that the writ in the nature of quo warranto is restricted to a person holding public office within the territorial jurisdiction of the High Court. Declaration was sought in that case that General Muhammad Zialul-Haq, Chief of the Army Staff after assumption of the office of the elected President of Pakistan could not act as Chief of the Army Staff. The unanimous verdict of the Court was that the Chief of the Army Staff did not hold office in the Province of Sindh, the Sindh High Court therefore, had no territorial jurisdiction to issue writ in the nature of quo warranto against him. Similarly in Messrs Al-Iblagh Limited, Lahore, V. Tlie. Copyright Board, Karachi and' others (1985 S.C.M.R.758) and Asgliar Hussain V. Tlie Election Commission Pakistan etc. (P.L.D. 1968 S.C.387), the principle enunciated by the Supreme Court does not exclude the jurisdiction of this Court to entertain this petition against the first respondent who holds his public office and performs his functions in connection with the affairs of the Senate situate within the territorial jurisdiction of this Court. In our view, the factum of his election to a seat in the Senate of Pakistan from the Province of Sindh does not divest jurisdiction of this Court otherwise duly vested in it under Article 199(l)(b)(;7) of the Constitution of the Islamic Republic of Pakistan to decide these matters. The next question of vital significance calling for adjudication is, whether these petitions under Article 199(l)(b)(/7) of the Constitution in the nature of quo warranto are maintainable against the first respondent owing to the provisions of Article 225 read with Article 63(2) of the Constitution. We may with advantage reproduce the relevant provisions of the Constitution hereunder:- "199. JURISDICTION OF HIGH COURT.- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a) .......................................................................... (b) on the application of any person, make an order- (0 ............................................................................. (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office". The opening clause of Article 199 of the Constitution provides "Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law" indicates that the provisions contained in this Article are controlled by other provisions of the Constitution. "225. ELECTION DISPUTE.- No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)". 63. DISQUALIFICATIONS FOR MEMBERSHIP OF MAJLIS-E- SHOORA (PARLIAMENT). (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament) (2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant. The afore-mentioned provisions of the Constitituion prescribe mode for resolution of the election disputes. Article 225 of the Constitution provides negative imperative to challenge the election dispute by election petition presented to a tribunal whereas Article 63(2) provides that if question arises whether a member of the Parliament incurred disqualification, the Speaker of the National Assembly or the Chairman of the Senate as the case may be, shall refer the matter to the Chief Election Commissioner for decision. One of the main allegations against the first respondent is that he filled in the nomination form and concealed having been indicted and convicted in criminal cases thereby earned disqualification to be member of the Senate, for his misconduct in the process of election. The filling up nomination papers for filing thereof is a step in the process of election, and only assailable by means of election petition as envisaged under Article 225 of the Constitution read with Sections 31 and 34 of the Senate (Election) Act, 1975 whereas Rule 39 of the Senate (Election) Rules, 1975 envisages filing of the election petition by a candidate to the election or his representative duly authorised by him. The challenge to election of a successful candidate therefore, can only be made through an election petition by a rival candidate. All steps in the conduct of election including the filing of the nomination papers thus are challengable by means of election petition. In Amirzada Klian MNA V. TJie Chief Election Commissioner and 2 others (P.L.D. 1974 Lahore 178), it was held that election is a process which starts with the issuance of the election programme and consists of various links and stages in that behalf like filing of nomination papers, their scrutiny, the hearing of objections and the holding of the actual polls etc. Similarly in Muhammad Afzal V. Miraj Din (P.L.D.1967 Lah.689), it was observed:- "Election is a continuous process consisting of a series of acts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing dates for filing of nomination papers scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result etc." In Niaz Ahmad Khan v. Province ofSindh and others (P.L.D. 1977 Kar.604), an advocate of the High Court challenged imposition of Martial Law in some part of Province of Sindh . It was argued that the National Assembly which was elected in 1977 General Elections was a product of wholesale rigging, therefore, the members of the Parliament were disqualified from holding the public offices as such the Prime Minister elected by them could not hold that post and decision taken by the Government's Head was unconstitutional. In that case the rule laid down in Farzand All's case was distinguished on the ground that the provisions of Article 171 of 1962 Constitution were materially different from the provisions of Article 225 of the Constitution as the latter barred challenge to the election of a member of the Parliament other than through an election petition. It was observed that since the objection of the writ petitioner against the election of the member of the parliament related to actual conduct of election i.e. rigging which could only be challenged through election petition and not otherwise. The Supreme Court in Election Commission of Pakistan TJirough its Secretary v. J avoid Hashmi and others (P.L.D. 1989 SC 396=PLJ 1989 SC 312), held that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in appropriate manner before the Election Tribunal and should not be brought up at an intermediary stage befoere any Court, otherwise Article 225 of the Constitution would be deprived of its meaning and content. The Supreme Court in that case further held that Article 225 of the Constitution did not contemplate two attacks on the matter while election procees is on and has not reached the stage of its completion by recourse to an extra­ ordinary remedy and the other when the election has reached the stage of completion by means of election petition. It is thus clear that all steps in conduct of election could be challenged only by way of election petition by a rival candidate. The blanket cover is therefore, provided to all litigative challenges in respect of every kind of order passed in the course of election process because the provisions of Article 199 are subject to Constitution including Article 225 and exercise of power under Article 199 thus cannot be placed on higher footing than that contained under Article 225 of the Constitution. It was observed:- "Here I may point out that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution, and that while the power under Article 199 exercisable by the High Court is "subject to the Constitution" whereas there is no such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespecitve of anything contained in any other Article-. More particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for decision to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact." Obviously, therefore, allegations regarding filing of nomination form containing false information, would be a step in the conduct of election and could only be assailed through election petition, a statutory remedy provided under the law with mandate under Article 225 of the Constitution. It is, therefore, clear that the rule laid down by the Supreme Court in the above referred case that Article 225 by its mandate creates an independent jurisdiction for resolution of the election disputes and all questions of law and facts are to be decided by the Election Tribunal after the election process is completed, the jurisdiction under Article 199 of the Constitution was not available specially because it was subject to the provisions of the Constitution including Article 225. In this view of the matter these petitions are not maintainable. Article 63(2), however, provides another mode to oust a member of the Parliament if he incurred disqualification subsequent to his election as member. The Speaker of the National Assembly or the Chairman of the Senate as the case may be, may make a reference to the Election Commission for decision of the question as to whether a member who had suffered disqualification ceased to hold his office or not. This article is thus inapplicable to the facts of the instant case. In Javaid Hashmi's case the very contest was between two rival candidates. In the instant case, however, the contest is not between the rival candidates as the first respondent was elected unopposed. The question arises as to whether if the disqualification of the first respondent is preceding the election and continues even after the election, can a relater invoke the jurisdiction of this Court under Article 199 when he cannot competently file election petition as he is not a rival candidate nor can invoke the provisions of Article 63(2) of the Constitution as disqualification incurreu oy the first respondent was pre-election and not after he became member of the Senate. The following observations of the Supreme Court, with reference to Lt. Col. Farzand All's case made in Election Commission of Pakistan v. Javaid Hashmi (P.L.D. 1989 S.C 396 = PLJ 1989 SC 312) may be instructive:- "In that case a broad argument was raised that if once the name of the person has been registered on the electoral roll, his nomination papers having been accepted and he being allowed to contest the election successfully, his election could not be challenged in any other manner save under the specific law providing for challenging election, notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet a pre-election disqualification of the successful candidates. Humoodur Rahman, C.J. did not accept the argument as presented mainly on two grounds; firstly, that if it was to prevail then it would hit Article 103 of the Constitution as then such a person would continue to remain a Member of the Assembly even though Article 103 did not permit it, and secondly, because the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned for being a Member of an Assembly. In effect, therefore, the dispute did not relate to the validity but title to the office in which case writ of quo wairanto could issue. Again in that context it was also observed that the remedy would still be available in all cases where the matte.r is, as in the case under consideration, outside the scope of statutory remedy. These observations are distinguishable as rightly held by the learned Chief Justice in the context of the fact that they did not arise in relation to an election or were outside the scope of the statutory remedies. This being so, the rule stated earlier that the action has to be tested on the touchstone of the word "election" is not affected in view of the constitutional bar providing for the enforcement of the right through remedies available under the Act comprehended therein." It means that if the dispute is about the conduct, or validity of election, it could only be challenged through election petition, a statutory remedy provided under the law, but if it touches the title to the office and had not arisen in relation to election writ of quo warranto could issue. Hon'ble Mr. Justice Nasim Hassan Shah, although holding minority view expressed that orders passed and proceedings taken, even by election authorities, which are outside the limits of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution. Relying on Ghulam Mustafa Khar's case (P.L.D. 1989 SC 26), it was observed:- "While I agree that it is not desirable that the election process should-not be interrupted during the intermediate stage, I cannot agree that to avoid the complication of any such interference a blanket ban should be read into Article 225 to every litigative challenge made to every kind of illegal order passed by an election authority. The law laid down in this respect by Courts in Pakistan and reiterated in the recent judgment of the Full Court in (PLD 1989 SC 26) is othewise. Herein it was observed that "this Article 270-A does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were malafide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law." Accordingly, I would, therefore, hold that orders pased even by election authorities which are outside the limit of the law, are not immune from challenge and correction by the High Court under Article 199. Undoubtedly in doing so the High Court will exercise' its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of the election at an intermediate stage, but leave it to the Tribunal to correct all errors committed after the election is over." Even examining from this angle, the material brought on the record, by the petitioners, in our view, is not of such an evidentiary vlaue, so as to legally justify removal of an elected member of the Senate from his public office, in exercise of discretion in Constitutional jurisdiction of this Court. The documents referred against the first respondent consist upon, copies of First Information Reports, a chart containing summary of allegations, statements appearing in the press soon after he was elected as Member of the Senate, about his character and involvement in criminal cases, including his conviction under Martial Law Regulation No.13 entailing penalty of one year with ten stripes for making speech against Martial Law Authorities. Taking up his conviction first, it may be observed that he was neither disqualified under Article 63(l)(/i) of the Constitution nor under Section 78 of the Senate (Election) Act, 1975. Article 63(1)(/;) of the Constitution provides that a person shall be disqualified from being elected or chosen as, or from being a member of the Majlis-e-Shoora (Parliament) if he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years had elapsed since his release. On identical terms Section 78 of the Senate (Election) Act, 1975, provides:- "78. Disqualification.-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if (a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release." It may be seen, that the first respondent was convicted in 1977 and sentenced for less than two years. Undoubtedly period of more than five years had already elapsed. He was, therefore, no more disqualified to be member, of the Senate on account of his previous conviction under Martial Law Regulation No.13. As regards the rest of the material alluded above and pressed into service for his disqualification, the Supreme Court in Raja Muhammad Afzal's case held that Police reports cannot be relied as evidence of the correctness of facts mentioned therein. The correctness of the contents of FIRs, press statements cannot be established unless formally proved in evidence. They simply indicate that such cases were registered. The presumption of innocence of the accused facing trial continues until held guilty. The law of election requires strict proof of disqualification through positive evidence. The chart relied upon by the petitioners containing summary of individual instances, is neither signed nor certified by any responsible officer about the correctness of its contents, cerries little evidentiary value to disqualify an elected member of the Senate. We may observe that penal Statute tending to deprive valuable right of franchise, must be strictly construed and in case of doubt the benefit must go to the person against whom such finding is sought. In Haji Muhammad Tariq v. Muhammad Naveed-uz-Zafar (P L D 1984 Lahore 502 (D.B.), this Court set aside the order of the Election Tribunal disqualifying a returned candidate on conviction by Martial Law Authorities, assuming him to be terrorist and involved in subversive activities, for want of positive evidence of unquestionable reliability. Similarly in Sardar Asscff Ahmad AH v. Mr. Muhammad KJian Junejo and others (P.L.D. 1986 Lahore 310 (332)), relying on Kama! Hussain v. Sirajul Islam (PLD 1969 SC 42), it was held that, writ of quo warranto cannot issue as a matter of course on sheer technicalities on a doctrinair approach. The Court is vested with the discretion not to issue writ if it is not satisfied about the bona-fldes of the relator, or the evidence on the record does not justifiably warrant so, particularly in election disputes which inevitably lead to investigation of facts more appropriate for the tribunal rather than for a Court exercising the prerogative of issuing writ. In Pir Allay Immrawn and another v. Mian Muhammad Nawaz Sharif and another (1991 C L C 1), wherein a tribunal consisting upon three Judges of this Court held that:- "Suffice it to say that these allegations are hearsay and, therefore, the. same cannot be admitted in evidence for disqualifying the respondent from contesting the election, in view of well-established exclusionary rule of evidence. Wharton's Criminal Law 9th Edition mentions the following principle:- "The only safe course, therefore, is to find the verdict exclusive on evidence duly received and on inference logically to be drawn from such evidence." Wigmore commenting on Theory of Hearsay Rule, quotes with approval the following remarks of Kent, C.J. in Coleman v. Southwick, 9 John 50:- "A person who relates a hearsay is not obliged to enter into any particulars to answer any questions, to solve any difficulties, to reconcile any contradiction to explain any obscurities, to remove any ambiguities, he entrenches himself in the simple assertion that he was told so, and leave the burden entirely on his dead or absent author." The Supreme Court in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1736 quotes with approval the aforesaid remarks and held: "the exclusionary rule of evidence may appear to be too formal and somewhat strict and inflexible, but it has its roots deep down in law." Respectfully following the principle laid down by the Supreme Court in Muhammad Afzal's case (supra), there is no scope for reliance on the newspaper reports and, therefore, the respondent does not stand disqualified on that scroe." It was observed that it is well settled that the allegations, howsoever, grave, are allegations and cannot take the place of proof or be admitted in evidnece to reflect the correctness of the facts alleged therein unless they are proved in accordance with law. The disqualifications envisaged by Articles 62 and 63 were held not attracted merely upon the allegations in the absence of any proof on the record. The Supreme Court in Abdul Rashid Mughul v. Muhammad Shabbir Abbasi (1984 SCMR 1172) set aside the judgment of the Lahore High Court in issuing writ in the nature of quo warranto, whereby the High Court declared the respondent in that case disqualified as member of Municipal Committee, Murree, on his conviction by Summary Military Court, and observed:- "It is obvious that in the absence of any legal evidence learned Judges were somehow persuaded to hold, merely on the basis of the contents of the FIR that appellant was convicted for an offence involving moral turpitude. Unfortunately they failed to notice that both the documents produced in support of the allegations against appellant, namely, FIR and certificate from Deputy Superintendent, District Jail, Rawalpindi, were inadmissible in evidence and, by themselves, furnished no proof upon which a conclusion could be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving moral turpitude. The judgment of the High Court having been based on conjectures rather than any legal evidence is set aside and the appeal is allowed." When confronted with this situation learned counsel for the petitioners stated that this Court may record evidence in support of the averments contained in the F.I.Rs as well as the press statements referred to above. We find no merit in this submission, either as highlighted above, it is the exclusive function of the Tribunal to investigate and record evidence rather than a Court exercising Constitutional jurisdiction in election dispute. The last contention of the learned counsel for the petitioners that the first respondent was disqualified as member of the Senate under Article 10(4) of Presidential Order No.5 of 1977 (as amended by President's Order No.17 of 1985), as he contested the election for membership of Provincial Assembly of Sindh and (was) defeated, has also no force because the disqualification was N relatable only to the elections held under that Order. The election to the seat in question was held under Senate (Election) Act, 1975 read with the Representation of the People Act, 1976 as such the disqualification contained in Presidential Order No.5 of 1977 was not attracted. In the result, we are of the considered view that these writ petitions are O devoid of force and are accordingly dismissed with no order as to costs. This also disposes of C.M.No.731/91 and C.M.No.820/91. (MBC) • Petitions dismissed.

PLJ 1991 Lahore 233 PLJ 1991 Lahore 233 Present: IHSANUL HAQ ClIAUDHRY, J PAK CORPORATION, FAISALABAD-Petitioner Versus FAISALABAD MUNICIPAL CORPORATION and 3 others-Respondents Writ Petition No. 940 of 1990, dismissed on 3.3.1991 (i) Approbation and Reprobation-- —Contractor for collecting octroi duty—Receipts issued by—Non-stamping of receipts—Direction to affix stamps on receipts—Challenge to—Petitioner, on one hand says that it is paying stamp duty wherever necessary, on other hand, it has claimed exemption while in para 4 of petition, it is submitted that respondents No. 3 and 4 are pressurising it to affix stamps—Secondly, on one hand, terms of agreement arc accepted and on other hand, exemption is claimed- whole object of this petition was to avoid duty as long as possible- Held: Such a conduct in Constitutional petition amounts to misconduct of serious nature, and equitable and discretionary relief can be refused on this short ground. [Pp.239,240&241]G&K (ii) Stamp Act, 1899 (II of 1899)-- —Ss.26&30-Contractor for collecting octroi duty-Receipts issued by-Nonstamping of receipts—Direction to affix stamps on receipts—Challenge to— Contention that collection of octroi duty is one of regal functions which is exempt from payment of stamp duty-Collection is not on behalf of State or even lor benefit of Committee, but it is for petitioner's own benefit—Held: Collection of octroi duty by Petitioner, is not regal or sovereign function of State. ' [P.239]F (iii) Stamp Act, 1899 (II of 1899)-- —Ss.26&30 read with Schedule—Contractor for collecting octroi duty—Receipts issued by-Non-stamping of receipts-Direction to affix stamps on receipts- Challenge to—Contention that since amounts received are not certain, it is not possible to treat same as receipts—There is no force in argument that amount received at octroi post is not final-Petitioner is supposed to charge octroi duty in accordance with schedule notified in official gazette—Section 26 of Act deals with stamp duty where value of subject matter is indeterminate while section 30 makes it obligatory on person receiving any amount exceeding Rs.20/-, to give stamped receipt "for same-According to clause 20 of agreement between petitioner and respondent No. 1, it is contractual duty of petitioner to issue stamped receipts-Held: Petitioner cannot avoid statutory duty-Held further: Petitioner, after accepting liability to pay stamp duty on receipts, is now estopped by its conduct to find fault with same. [P.237,238&239]A,B,C,D&E (iv) Stamp Act, 1899 (II of 1899)-- —S.30-Contractor for callecting octroi duty-Receipts issued by-Nonstamping of receipts-Direction to affix stamps on receipts-Challenge to- Contention that legislature never intended that receipts should be stamped because no procedure has been prescribed to stop evasion of stamp duty—In case of entertainment duty on cinema tickets, stamp is not affixed but it is not under Stamp Act-Rather it is under Entertainment Duty Tax Act-There is no resemblance between two duties-Held: Argument also loses sight of fact that Stamp Act is a complete code in itself-Held further: There was no need to formulate rules separately or prescribe any other procedure. [P.240JH (v) Stamp Act, 1899 (II ofl899)» —-S.30-Contractor for collecting octroi duty-Receipts issued by-Nonstamping of receipts-Direction to affix stamps on receipts-Challenge to-It is primary duty of Collector to ensure payment of stamp duty-Respondent No.l is also not absolved from this duly as, according to Rule 10 of Contract Rules, 1981, it is duty of Chairman to see that contracts are faithfully performed- Held: It is high time to take effective measures in this behalf by Government and Collector-Held further: Public should also insist on issuance of properly stamped receipts, and in case of refusal, bring same to notice of collector. [P.240]J Ch. Kluirshid Ahmad Advocate for Petitioner. Rana Muhammad Arshad, Additional A.G. with Mr. Muhammad Raft Siddiqui, Advocate for Respondents 2&3. Ch. All Muhammad, Advocate for Respondents 1&4. Mr. M.A. Zafar, Advocate for Applicants in CM. 1086 of 1990. Dates of hearing: 10,11,12 and 13.2.1991. judgment The petitioner, through this constitutional petition, has prayed for a declaration that under the law the petitioner is not liable to affix stamp duty on the receipts issued by it for the payments received at octroi posts from the importers of goods and that the direction of respondent No.l in this behalf is illegal, without lawful authority and not binding on the petitioner. 2. The relevant facts are that respondent No. 1 leased out through^ public auction rights of collection of income of octroi and Bakkar Mandi fee for aperiod of one year commencing from 1.7.1989. The petitioner was the highest bidder of Rs.20,35,00,000/- (Rupees Twenty Crors Thirty-five Lacs). Therefore, its bid was accepted and it was awarded the contract. The grievance of the petitioner is that respondent No. 1 has directed to affix stamps on the receipts issued by it in accorance with law. The case of the petitioner is that it is not liable to it. Therefore, the direction is illegal. The petition was admitted to hearing and notices were issued to the respondents, who appeared and contested the petition. 3. The learned counsel for the petitioner based the claim of the petitioner on the following argumcnls:- Firstly, that the payments made at octroi posts are not certain and final as they are subject to scrutiny and appeal. In this behalf on one hand he has referred to Rules 33,35,41,45,48,172,175,192 and 218 of the West Pakistan Municipal Committees (Octroi) Rules, 1964 (hereinafter to be referred as Rules of 1964), while on the other hand, his argument is that the municipal limits of Faisalabad are spread over 150 Sq.Miles. There are 46 Octroi Posts and 10 Check Posts, and there are 438 officials of respondent No. 1 connected with the collection while 200 persons have been employed by the petitioner. It is added that average of receipts, which are issued daily comes to 4000. The receipts are issued in the proformas appended as Annexure 'Dl', 'D2' and 'D3'. It is further submitted that according to section 30 of the Stamp Act, 1899, the stamp duty is payable on the documents evidencing 'satisfaction' but the receipts issued by the petitioner in view of the provisions of the Rules of 1964 do not qualify this condition. In this behalf he has also referred to clause 20 of the agreement for lease to argue that the words "where necessary" mean that every receipt is not liable to be stamped. The arguments on this point are summed up with the submission that the petitioner is stamping the receipts at the final stage and it has no objection to payment; Secondly, the collection of octroi, the function of the petitioner, is a regal function and the petitioner is exempt from the payment of stamp duty. The learned counsel, in this behalf, on one hand has referred to sections 6(5), 137 and 159 of the Punjab Local Government Ordinance, 1979, and on the other hand relied on the judgments reported as Management of Municipal General Secretary, Union (?) (PLD 1968 Lah. 395 and In the mailer of Stamping of Casli Memo (PLD 1949 Lah. 448). The submission is that the' collection of revenue is a sovereign function. Therefore, the petitioner is exempt from affixation of stamps on the receipts issued by it; and Thirdly, that the Legislature never intended that the petitioner should affix stamps on the receipts. In support of the argument, the learned counsel has submitted that there are no Rules and no detailed procedure has been prescribed by the Legislature in this behalf. In order to fortify the plea it is submitted that where the Legislature meant payment, the Legislature has provided a detailed procedure. In this behalf, the learned counsel has referred to Entertainment Tax. 4. On the other hand the learned counsel for respondents Nos. 1 and 4 argued that the petitioner, in accordance with clause 20 of the agreement of lease, is under contractual obligation to affix stamps on the receipts issued by it. It is added that it cannot urge exemption in face of this clear clause in the agreement. He added that the Rules of 1964 cannot be, applying any rule of interpretation, deemed to override the provisions of the Stamp Act. Therefore, the same cannot be pressed into service in this behalf. The learned counsel, while referring to practical difficulties pointed out by the learned counsel for the petitioner, argued that there is none. The respondent No. 1 has prescribed a schedule of octroi duties which was duly published in the official gazette. The rates are clearly given therein, therefore, there is no uncertainly as to the assessment of goods and in any case such cases are covered by section 26 of the Stamp Act. The learned counsel further referred to Schedule-I to the Stamp Act to argue that stamp duty on the receipts is nominal, therefore, even if there is an appeal by an importer that the assessment made by the petitioner may be decreased still it will not affect the liability towards the stamp duty on the receipts. The learned counsel also referred to Sliamim Akhtar v. Najma Baqai (PLJ 1978 S.C. 7), Jagan Natli versus Mt. Cliauli (AIR 1933 Lahore 271) and Ramji Mal-Gordhan Das vs. Bela Ram and another (AIR 1933 Lahore 962). The learned counsel, however, argued that the petitioner is covered by proviso to section 3, therefore, it is exempt from payment of stamp duy. 5. Mr. M.A. Zaffar, learned counsel for the applicant in C.M. 1086 of 1990, argued that corporations, committees etc., are affixing the stamps on the receipts issued by them right from the inception of these institutions. It is for this reason that clause 20 was incorporated in the agreement of lease. The fact that this agreement is executed on the stamp paper, as required by the Stamp Act, falsifies the whole contention of the petitioner. The learned counsel added that the schedule of octroi" notified under the Rules and appended as Annexure 'C is certain. Therefore, there is no merit in the plea that the amounts received by the petitioner are uncertain, therefore, it is not possible to affix stamps on the receipts evidencing payments. The learned counsel, thereafter, submitted that the word 'necessary' appearing in clause 20 of the agreement of lease as relied by the learned counsel for the petitioner does not convey the sense convassed on behalf of the petitioner. He submitted that this word clearly denotes that stamps are to be affixed on the receipts when the same are liable to be affixed in accordance with law. The learned counsel, in this behalf has referred to the dictionary meanings of the word "necessary". According to Chambers Twentieth Century Dictionary, the word "necessary" means "adj. that must be; that cannot be otherwise; unavoidable; indispensable; enforced (arch); (of agent) not free--n. that which cannot be loft out or done without (food elc)-used chiefly in pi: a privy; money (coll)." The next submission is that this petition is mala fide and filed with the object to defraud the Exchequer. The learned counsel submitted that some of the citizens through different constitutional petitions filed in this Court complained that the petitioner is avoiding the payment of duty under the Stamp Act. The learned counsel, in this behalf, referred to the order dated 17.2.1990 by this Court and submitted that this Court rightly observed that this petition is counter-blast to W.P. 8145 of 1989. He added that there was another writ petition to the same effect which was got withdrawn by the petitioner. It is added that the agreement of lease is governed by the Contract Rules of 1981. The next submission is that the petitioner is not exempt from payment of stamp duty. In this behalf, the learned counsel has referred to sections 3 and 30 of the Stamp Act. It is submitted that section 3 is subject to other provisions of the Act which include section 30. The arguments are summed up with the submission that the petitioner is approbating and reprobating, blowing hot and clod in the same breath, therefore, not entitled to any relief. It is argued that in any case contractual obligation cannot be impugned in the writ petition. The learned counsel, in this behalf, has referred to Shamshad AH v. Commissioner (1969 SCMR 122) and Momin Motor Co. v. R.T.A.Dacca (PLD 1962 S.C. 108). 6. Rana Muhammad Arshad, Additional Advocate General while adopting the arguments on behalf of other respondents submitted that the petitioner is disentitled to any discretionary relief as it has not come with clean hands. It is submitted that on one hand it is pleaded in the writ petition that respondent No. 1 is illegally coercing the petitioner to affix stamps on the receipts issued by it for the octroi charges and on the other hand it is maintained in the arguments that the petitioner is affixing stamps on the receipts and has no objection to such payment, while in the next breath it is again argued that the petitioner is not liable to affix stmps on the receipts. The learned Additional Advocate General further submitted that the whole anxiety was lo avoid the payment of stamp duty and this is clear from the conduct of the petitioner as is evident from the interim orders passed in this writ petition. The learned Additional Advocate General argued that the receipts are being duly stamped by all corporations, municipal committees etc., right from the inception of these institutions and none of these institutions except the petitioner has raised a little finger to this. It is submitted that the problem is that the system of leasing out the collection of octroi charges was introudced as there was whole sale corruption in the collection of these charges but unfortunately this system is also not free from vices and the matter becomes pretty serious when the city fathers or influential group of them become interested in the contract or Contractors. Then they try to benefit the contractor by various measures and this is one of the glaring example. It is submitted that the respondent No. 2 is under legal obligation under the Stamp Act to see that there is no evasion and the respondents Nos. 2 and 3 rightly insisted that the petitioner should affix stamps on the receipts issued by the petitioner. 7. I have given my anxious consideration to the arguments of the learned counsel for the parlies and gone through the record, relevant provisions of law and precedents relied b\ them. Now I proceed to deal with the points raised by the learned counsel for the petitioner with reference lo counter arguments of the learned counsel lor the respondents. The first argument of the learned counsel for the petitioner, as already noted, was that since the amounts received are nol certain, therefore, it is nol possible to ireat the same as receipts. The first submission in this behalf was that the petitioner has 46 octroi posts and 10 check posts manned by o\er 4(10 officials which include employees of the Municipal Corporation as well as lhat of the petitioner. The argument is that the payment received by staff of the octroi posts is to be checked by the check posts and it is also subject lo appeal by the Importer. Therefore, the amounts received at octroi posts are uncertain and the document cannot be considered a receipt as defined under section 2(23) of the Stamp Act. It is added that when this definition of the 'receipt' is read with section 30 of the Act, which is a charging section, then it becomes clear that payments received at octroi posts are not final. Therefore, the document issued is not a receipt and not liable lo be stamped, 8. On the other hand, the learned counsel for the respondents argued that there is no uncertainty because octroi duty is to be charged in accordance with the schedule of octroi duly notified in the Government Ga/.ette. It is added lhat the purpose of the check posts is not to recvaluate the duty charged from Importers but its purpose is to safeguard against any evasion of payment of import duty hile in respect of the appeal it is submitted that the maximum duty chargeable on the receipt is 80 Paisas. Therefore, if on appeal, which is a rare case, the imposed duty is reduced it will hardly affect the stamp liable to be affixed on the receipt. The learned counsel for the respondents Nos. 1 and 4 referred to Section 26 and Schedule I to the Act while Mr. M.A. Zaffar, Advocate, in this behalf, referred Section 30. I after going through the procedure, law and rules find no force in the argument lhat the amount received at the octroi post is not final. The same is final and the petitioner is supposed to charge the same in accordance with the schedule notified in the official gazette. This payment is only subject to appeal by the Importer. Now maximum duty payable on a receipt is 80 Paisas while minimum is 15 Paisas. The relevant portion of Schedule I to the Act, fixing the amount of duly payable on receipt reads as under:- Description of Instrument Proper Stamp-duty 1. ACKNOWLEDGMENT of a debt exceeding twenty rupees in amount or value, written or signed by, or on behalf of, a debtor in order to supply evidence of such debut in any book other than a banker's pass-book or on a separate piece of paper when such book or paper is left in the creditor's possession; provided that such acknowledgment does not contain any promise to pay the debut or any stipulation to pay interest or to deliver any goods or other property- (a) Where such amount does not 15 paisa exceed Rs. 100; (b) Where such amount exceeds 40 paisa Rs. 100 but does not exceed Rs. 2,000; (c) Where such amount exceeds 80 paisa Rs. 2,000 It is thus clear that in the first instance the petitioner is supposed to charge import duty in accordance with the schedule of duties and secondly, in case of genuine dispute even if the appeal of the Importer is accepted in toto it will not cause any financial loss to the petitioner as the amount of duty remained with it for quite sometime before its refund. The petitioner is not to refund the same with interest. Now if the petitioner has charged Rs. 500/- and on appeal the amount is reduced to Rs. 100/- then it will not affect the stamp on the receipt. The very fact that the Local Councils came into existence in the Sub-Continent in the present from at least from 1884 and since then the system of import duty is there, is sufficient to negate the imaginary practical difficulty canvassed on bahelf of the petitioner in this case. 9. Moreover, Section 26 of the Act deals with the stamp duty where value of the subject matter is indeterminate while Section 30 makes it obligatory on the person receiving any amount exceeding Rs. 20/- to give a duly stamped receipt for the same. The petitioner cannot avoid statutory duty. The Legislature is supposed to be conscious of the difficulties in this behalf. 10. This is not all. According to Clause 20 of the agreement between the petitioner and respondent No. 1, it-is the contractual duty of the petitioner to issue stamped receipts. The argument of the learned counsel for the petitioner that the words "where necessary" in this clause denote that whenever it is deemed necessary by the petitioner then the stamp is to be affixed. The argument is that it is not incumbent upon the petitioner to stamp all the receipts. Mr. M.A. Zaffar Advocate, rightly argued that the words "where necessary" specify and denote that when it is the requirement of law then the receipt should be stamped. In this behalf, he has rightly referred to the dictionary meanings of the word "necessary". The argument has merit and advances the purpose of Section 30. Therefore, must be upheld. The petitioner after accepting the liability to pay the stamp duty on receipts is now estopped by its conduct to find fault with the same. 11. The next submission on bahalf of the petitioner was that the collection of octroi duty is one of regal functions which the petitioner is discharging on behalf of the State, which is exempt from payment of stamp duty in view of the provisions of Section 30. The learned counsel in this behalf referred to Section 5(6) of Act, 1969 as to the constitution of Local Council and Section 137 of Act, 1969 regarding levy of tax. It is submitted that it is a sovereign function, therefore, not liable to pay stamp on the receipt. The learned counsel for the respondents rightly pointed out that the Local Councils charged with duly of collection of import duty are not exempt from payment of stamp duty on the receipts issued by them. Then how the petitioner, who is at the best collecting octroi duty on behalf of respondent No. 1 can be deemed to be exempt from payment of stamp duty? It is submitted that the argument is against clause 20 of the agreement. The petitioner while raising this argument did not keep in mind that the collection is not on behalf of the State or even for the benefit of the Committee. It is for the petitioner's own benefit. The learned counsel lor the petitioner tried to meet this argument wilh the submission that the amounts so collected are deposited in the account of respondent No. 1 and its collection is supervised by its staff. The argument is too superficial because the amounts in the first instance are got deposited in the Municipal account in order to secure the payment of the lease money and not for any other purpose. It is for this very purpose that the Municipal Staff is associated with the staff of the petitioner. It is admitted position between the parlies that respondent No. 1 is only entilled lo the lease amount as fixed in the lease agreement and nothing more therefore, this is not regal or sovereign function of Slate. It is simply and purely commercial activity. 12. The other argument, which is also off-shoot of this second argument, was that the document issued at the octroi post is at the best a sort of cash memo which is not liable to any stamp duty as held in "In the mailer of Slamping of Cash memoranda by Iradesmen for sales againsl cash paymcnl" (PLD 1949 Lahore 448). This again is loo superficial and fallacious for the simple reason that the cash memo is issued when a purchaser comes to a shopkeeper and intends to purchase certain articles. They sellle ihe price and ihe shopkeeper acknowledges his acceplance and undertakes to supply the goods or articles at the specified rate. The buyer may not purchase anything at all or may purchase parl of it. But the moment purchase is made and price is paid then a receipt for the actual amount received by the shopkeeper and goods supplied againsl ihe same is issued. This is the normal practice in all Government Deparimenls. The oclroi receipt has no resemblance to cash memo. 13. Mr. M.A.Zaffar, Advocate, ably exposed this superficial argument on behalf of the pclilioner wilh the submission lhat if it was so then there was no need to execute the lease agreement granling collection (of) oclroi righls on a slamp paper. He further added lhal ihe agreement has been executed in accord'ance wilh Rule 5(3) of Conlracl Rules, 1981, which clearly prescribed thai il should be stamped. The learned counsel further pointed out lhal ihis argument is not alternalive argumenl but is just reverse of the firsl submission where ihe learned counsel for the petitioner, even during the argument, clearly maintained that the petitioner is affixing stamps on the receipts which are final and it never avoided. This argument is clearly contradictory. The petitioner is blowing hot and cold in the same breath. This amounts to approbating and reprobating. Such a conduct in Constitutional petition amounts to misconduct of serious nature and equitable and discretionary relief can be refused on this short ground. 14. The last submission was that the Legislature never intended that the receipts should be stamped because wherever it was essential the Legislature has provided a detailed procedure. In this behalf the learned counsel has referred to entertainment duty/tax on the cinema tickets. The argument is that since no procedure has been prescribed to stop the evasion of stamp duty, therefore, the same is not essential. The arugmcnt is without any merit because in case of "| entertainment duty on the cinema tickets the stamp is not affixed under the Stamp |Act but it is done under the Entertainment Duty Tax Act. There is no resemblance between the two duties. The argument also loses sight of the fact that the Stamp Act is a complete Code itself. Therefore, there was no need to formulate Rules separately or prescribe any other procedure. 15. Moreover, the Legislature has promulgated Punjab Municipal Committees Octroi Rules, 1964. The assessment and collection of the octroi is covered by Chapter VI of these rules. The first in the series is Rule 41, according to which the Octroi Clerk shall assess the octrio payable and on receipt of the amount shall issue octroi receipt. The receipts are to be prepared in duplicate and the original shall be handed over to the Importer while Rule 42 makes it incumbent that the duty shall be assessed in accordance with the rates specified in the octroi schedule. The Rule 43 deals with consignments to two or more classes of goods chargeable at different rates while Rule 44 covers the cases when the same goods fall under more than one of the item of octroi schedule and Rule 45 comes into play when Article is not specifically mentioned in the schedule but at the same time it is otherwise not exempted. These rules go a long way to rebut the main argument advanced on behalf of the petitioner, namely that the amounts received by the petitioner are not certain. It is primarily duty of the Collector to ensure payment of stamp duty. The respondent No. 1 is also not absolved from this duty as according to Rule 10 of the Contract Rules of 1981, it is the duty of the Chairman to see that the contracts are faithfully performed. It is another matter if these authorities ignore or neglect their statutory duties. It is high time to lake effective measures in this behalf by the Government and Collector. The public should also insist on issuance of properly stamped receipts and in case of refusal bring the same to the notice of the Collector. 16. This brings us to the conduct of the petitioner. The petitioner has at least made two very serious lapses in this behalf. Firstly, on one hand it is maintained that the petitioner is paying the stamp duty wherever necessary. On the other hand, it has claimed exemption while in para 4 of the petition it is submitted that the respondents Nos. 3 and 4 are pressurising it to affix stamps. This is serious misconduct on behalf of the petitioner. Secondly, on one hand, the terms of the agreement are accepted and on the other hand, exemption from payment of duty is claimed. The learned Addl: Advocate-General rightly pointed out that this amounts to approbating and reprobating and should not be ignored in Constitutional petition. When these assertions are put together then one thing is clear that the whole object of this petition was to avoid the duty as long as possible. My learned brother Mian Fazl-i-Mahmood J., while admitting this petition very rightly observed that the petition seems to be a counter-blast to the writ petitions filed by citizens complaining that the petitioner is avoiding payment of stamp duty. The petitioner has proved this observation itself. 17. The petitioner was not affixing the stamp duty on the receipts issued by it, therefore, it was directed to furnish a Bank guarantee in the sum of Rs. 5,00,000/- (rupees five lacs) encashable at the discretion of respondent No. 1 subject to the result. The respondent No. 1 now can proceed to enforce the liability and encash the Bank guarantee. 18. The result is that there is no merit in this petition. The same is dismissed with Rs. 10,000/- as costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 241 PLJ 1991 Lahore 241 Present: malik muhammad qayyum J Sh. MUHAMMAD SADIQ and another-Appellants versus lA.KHAN-Respondent S A.O. No.13 of 1990, dismissed on 27.3.1991. Punjab Urban Rent Restriction Ordinance, 1959 (W P Ord. VI of 1959)- —-S.15 (6) as added by Punjab Urban Rent Restiction (Amendment) Ordinance, XIII of 1990~Tenant--Ejectment of-Challenge to--Whether second appeal lies in ejectment petitions instituted before promulgation of Ordinance XIII of 1990-Question of—It is a well established principle that a right of appeal is not a natural or inherent right attached to Us but must be expressly conferred by statute or rules having force of law—At time when ejectment petition or even first appeal was filed, respondent had a right to treat order to be passed in appeal as final and not subject to any further scrutiny in appellate jurisdiction of any court-Held: Ordinance XIII of 1990 has no application to those cases where ejectment petition had been instituted before this amending Ordinance was promulgated-Appeal dismissed. [Pp.243,245&246]A,B,C,D&E PLD 1981 SC 553, 1905 Appeal cases 369, PLD 1966 SC 472, PLD 1985 SC 376, PLD 1975 SC 1,1982 CLC 2271, AIR 1927 Privy Council 242, AIR (30) 1943 Madras 208 (1) and AIR (30) 1943 Nagpur 36 rel. PLD 1969 SC 187, 1987 SCMR 978, 1983 CLC 1901, PLJ 1985 Quetta 1 and 1987 SCMR 1709 not attracted. Mr. Muhammad Akram KJiawaja, Advocate for Appellants. Mr. All Sibtain Fazli, Advocate for Respondent. Date of hearing: 12.3.1991. judgment This second appeal has been filed under section 15 (6) of the Punjab Urban Rent Restriction Ordinance, 1959 against the order dated 19th June, 1990 passed by an Additional District Judge at Lahore up-holding the order of ejectment passed by the learned Rent Controller on 24th of February, 1988 and dismissing the first appeal filed by the appellant. 2. On 3rd of June, 1984 an application under section 13 of the Punjab Urban Rent Restriction Ordinance 1959 was filed by the respondent against the appellants seeking their eviction from a shop situate at Shahrah-e-Quaid-e-Azam, Lahore on the ground that the appellants defaulted in payment of rent from February to May, 1984. The petition was allowed by the Rent Controller on 24 th February, 1988. The appellants challenged this order by filing an appeal on 22 nd of March, 1988 which was however dismissed on 19th June, 1990 by an Additional District Judge at Lahore. The present appeal which is directed against the orders of Additional District Judge and the Rent Controller was filed in this Court on llth August, 1990. 3. Before the appeal could be argued on merits, a preliminary objection was raised by Mr. Ali Sibtain Fazli and Mr. Tariq Qazi, Advocates appearing on behalf of the respondents as to the maintainability of the appeal on the premises that at the time when the ejectment petition was instituted or the first appeal was filed, there was no provision for filing a second appeal before this Court and as the right was conferred only on 6th of June, 1990 when the Punjab Ordinance XIII of 1990 was promulgated, no second appeal could be filed in the present case. It was explained that the right of appeal inhers in a party at the commencement of the Us and any subsequent change whether abridging or enlarging such a right cannot be retrospectively applied to the case pending at the time when the amendment is brought about unless by an express provision in the statute. The following judgments were cited in support of this proposition:- Pakistan International Airlines Corporation . Messrs Pak Saaf Dry Cleaners (PLD 1981 S.C. 553), Governor NWFP and another vs. Gul Naras Klian (1987 S.C.M.R. 1709) Idrees Ahmad and others vs. Haflz Fida Ahmad KJian and 4 others (PLD 1985 S.C. 376), Hassan and others vs. Fancy Foundation (PLD 1975 S.C. 1) Juma Klian vs. Gul Ferosha (PLD 1972 Peshawar 1) Mst. Nazir Begum and others vs. Mst. Qamanmnissa and others (1982 CLC 2271), Examiner of Local Fund Accounts, Madras vs. C. Subramania Mudaliar and others (A.I.R. (30) 1943 Madras 208 (1) ), Tliota Surayya v. Inspector Municipal Councils and others (A.I.R. (31) 1944 Madras 148) and Ratansi v. Jay Singh (A.I.R. 1954 Nagpur 348). 4. The learned counsel appearing on behalf of the appellants while controverting the arguments of the learned counsel for the respondent has argued that the amendment brought about by Punjab Ordinance XIII of 1990 was procedural in nature and as such has retrospective operation. The learned counsel has placed reliance upon the judgments of the Supreme Court in Adnan Afzal vs. Capt. Sher Afzal (PLD 1969 S.C. 187), Muhammad Bashir and 2 others v. Muhammad Firdaus and another (PLD 1988 S.C. 232), Bashir v. Wazir Ali (1987 S.C.M.R. 978) and Dawood and 3 others v. Jamilur Rehman (PLD 1985 Quetta 1). 5. The Punjab Urban Rent Restriction Ordinance 1959 in its original form provided by Section 15(5) a right of second appeal before the High Court against the order passed by the appellate authority. However, by the amendment brought about by the Punjab Urban Rent Restriction (Amendment) Ordinance (IX of 1979). section 15 as a whole was substituted and right of filing of second appeal before this Court was taken away. This right has now been revived to a limited extent by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990 by adding subsection (6) in the following terms:- "In case of a non-residential building, a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court." 6. In this background, the dispute which arises is as to whether the right of second appeal conferred by the Punjab Ordinance XIII of 1990 is available in cases where the ejectment petition had been filed or decided by the Rent Controller prior to the introduction of Subsection (6) of section 15. 7. The first thing which may immediately be noted is that there is no express provision dealing with this aspect in the amending Ordinance itself. The intention of the Legislature has, therefore, to be discovered through a process of interpretation. 8. It is a well established principle that a right of appeal is not a natural or inherent right attached to the Us but must be expressly conferred by the statute or the rules having force of law. It is a substantive right and not a matter of mere procedure. There can be no cavil and is not even canvassed by the learned counsel for the appellant that a right of appeal which is available at the time of commencement of a Us cannot be taken away except by express language. Consequently, even if the law by which an appeal is provided is after the commencement of a cause repealed, the right to file the appeal survives the repeal. The question which however, arises is as to whether the contrary and converse is also true i.e. if no right of appeal is available at the time of comencement of the Us, can the subsequent change in law providing for an appeal be made applicable to pending matters also. After having considered the rival contentions of the learned counsel for the parties, the answer to this question has to be in the negative. 9. In Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 S.C. 553) it was observed that the position in law is well settled that the right of appeal is not a matter of procedure but it is a substantive right; and that the commencement of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties concerned till the rest of the carrier of the suit ; and that these rights can be taken away only by a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise. The judgment of the Privy Council in Colonial Sugar Refining Company Limited v. In'ing (1905 Appeal Cases 369) particularly the observations "In either case there is an interference with the existing right contrary to the wellknown general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested" were cited with approval. After refering to Sutlej Cotton Mills Limited v. Industrial Court (PLD 1966 S.C. 472), it was observed that this proposition of law has now been affirmly deep rooted in our legal system. 10. In Idrees Ahmad and others v. Hafiz Fida Ahmad Khan & 4 others (PLD 1985 S.C. 376) the question which came up before the Supreme Court for consideration was as to whether the right of second appeal vesting in the parties under the West Pakistan Urban Rent Restriction Ordinance 1959, stood destroyed by the repeal of that Ordinance in its application to the Province of Sindh by promulgation of the Sindh Rented Premises Ordinance 1979. It was held that:- "The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the Us is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner. To the same effect is the authority of the Supreme Court in Hassan and others v. Fancy Foundation (PLD 1975 S.C. 1) wherein the Supreme Court ruled that :- "It is well established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." In Mst. Nazir Begum and others v. Mst. Qamarunnissa and others (1982 C L C 2271) it was held that "the right to file an appeal which includes second appeal, is a vested right governed by law in force at the time of initiation of the action unless amending law expresses the same otherwise." 11. The principles on which these cases proceeded were that the appeal which includes second appeal, is the continuation of the original Us and the right to file an appeal which is substantive right has to be determined with reference to the law as prevailing at the time when the cause was instituted in the original Court. 12. Although all these cases deal with the situtation where the right of appeal was available at the time of commencement of the Us and it sought to be taken away subsequently, yet the principles as culled out above are equally applicable to those cases where no right of appeal is available at the time of commencement of the cause but had been conferred subsequently. It cannot be doubted that the General Law is that the rights of the parties are be determined in accordance with the law applicable at the time of filing of the suit. An exception is however, made in the matters of procedure. As no body has a vested right in procedure a procedural change brought about has to be held to be retrospective. The position however is different in cases involving substantive right of the parties, and appeal is certainly one of such rights. There is thus no-warrant for assumption that the change in law relating to appeals would apply to the cases where the ejectment petition has been instituted before the Amended Ordinance came into force. The observation of the Sepreme Court in Fancy Foundation's case supra to the effect that the rights of the parties are to be decided according to law as it existed when the action was begun fully support this view. 13. The case may also be examined from another angle. A party to an action has a right under the law to treat the judgment of the ultimate Court under the law statute to be final and conclusive. Any law which intends to interfere with this finality cannot be held to be retrospective. In Delhi Cloth and General Mills Co., Ltd. v. Income-Tax Commissioner, Delhi and another (A.I.R. 1927 Privy Council 242), the Privy Council was called upon to decide whether the amendment brought about in the Income Tax Act, 1918 by the Indian Income Tax (Amendment) Act, 1926 could be applied to the cases initiated under the old law. While rendering the answer in the negative, it was observed by the Privy Council that:- "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co., v. Irving (2), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually attributed to them, provisions which touch a right in existence at the passing of the statue are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied restrospectively, would deprive of their existing finality orders, which, whem the statute came into force, were final, are provisions which :ouch existing rights. Accordingly, if the section now in question is to apply so orders final at the date when it came into force it must be clearly so pro\ided. Their Lordships cannot find in the seciton even an indication to that effect." Applying this principle to the case in hand, it will be seen that at the time when the ejectment petition or even the first appeal was filed, the respondent had a right to treat the order to be passed in appeal as final and not subject to any further scrutiny in the appellate jurisdiction of any Court. To hold that the amending Ordinance is applicable to the present case would tantamount to destroying that right. The following observations of a Division Bench of the Madras High Court in Examiner of Local Fund Accounts, Madras v. C. Subramania Mudaliar and others (A.I.R. (30) 1943 Madras 208 (1) ) may also be reproduced with advantage:- "There is a preliminary objection to the maintainability of these appeals, based upon the fact that when the applications were filed in 1938 no right of appeal existed. This objection is supported by the Full Bench judgment in 52 Mad. 361." The judgment of Nagpur High Court in Sitao Jholia Dhimar & others v. Emperor (A.I.R. (30) 1943 Nagpur 36) also supports this view. At page 66 of the report the learned Chief Justice observed that:- "It cannot be disputed that in civil cases to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him at the time of the institution of that action is to deprive him of a valuable right which cannot be taken away without a clear intention in the Act which purports to take it away or without an express provision in that regard: vide (1905 A.C.369). Tlie same principle operating in a contrary direction appears in the Privy Council decision in 9 Lah.284, and when a civil action has begun a litigant in that action is entitled to substantive rights such as the right of appeal as existed at the time the action was brought, and those rights cannot be altered to his detriment during the pendency of the litigation which includes an appeal to the highest tribunal available; neither can there be alteration in his favour, when finality has once been reached, by any subsequent legislation." 14. The queston as to what is the effect of law providing for an appeal passed subsequently to the initiation of the case before the first Court, was directly in issue in the following cases wherein it was held that the amendment was not applicable in such cases and no appeal was maintainable even though at the time when.the order was passed there was a provision for appeal:- (i) Examiner of Local Fund Accounts, Madras v. C. Subramania Mudaliar and others (A.I.R.(30) 1943 Madras 208(1)), (ii) Tliota Surayya v. Inspector Municipal Councils and Local Board, Madras and others (A.I.R. (31) 1944 Madras 148) wherein it was held that an appeal did not lie even though at the time when the order was passed there was a provision for appeal, (iii) Sitao Jholia Dhimar & others v. Emperor (A.I.R. (30) 1943 Nagpur 36), (iv) Ratansi v. Jay Singh (A.I.R. 1954 Nagpur 348). 15. Reliance of the learned counsel for the respondent on Adnan Afzal's case is of no avail as the principle laid sown in that case has no applicability here inasmuch as the dispute in that cited precedent was regarding change of forum which was held to be a matter of procedure to be governed by the new law i.e. West Pakistan Family Courts Act 1964. It may also be stated that Adnan Afzal's case itself was examined and explained by the Supreme Court itself in its subsequent judgment in Muhammad Bashir and 2 others v. Muhammad Firdaus and another (PLD 1988 S.C. 232) wherein the Cantonment Rent Restriction (Amendment) Ordinance 1985 providing for change of forum of appeal from the Court of District Judge to the High Court was held not to apply retrospectively as it tended to interfere with the substantive rights of the parties. Bashir v. WazirAli (1987 S.C.M.R.978) was again a case relating to change of forum and has no applicability here. In Fazal Din and others versus Additional District Judge and another (1983 CLC 1901) it was held that as the amending law was explanatory of existing law it was retrospective. This principle has no application to the present case. The other judgment cited by the learned counsel in Dawood and 3 others v. Jamilur Rahman (PLJ 1985 Quetta 1) is equally inapplicable. Similarly the judgment in Governor NWFP and another v. Gul Naras Khan (1987 S.C.M.R. 1709) has no relevance as in that what fell for interpretation was the non-obstante clause. From the above discussion it becomes obvious that the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990 has no application to those cases where the ejectment petition had been instituted before this amending Ordinance was promulgated. That being so the appeal filed before this Court is clearly not maintainable. As a result of what has been stated above the apeal fails and is dismissed leaving the parties to bear their own costs. (MBC) Appeal dismissed.

PLJ 1991 Lahore 247 PLJ 1991 Lahore 247 Present: falak SHERJ. Mst. AMTUL MUBIN, ALIAS Mst. MUBIN KARIM,--Petitioner versus MAGISTRATE ILLAQA, and 7 others-Respondents, Writ Petition No.887 of 1991, accepted on 2.4.1991. Discharge-- — Murder— Offence of—Discharge of accused—Challenge to—Whether Magistrate is to act on police report-Question of-Additional Advocate General conceding that impugned order is unsustainable-Held: Irrespective of fact that impugned order is of administrative nature, Magistrate is not supposed to render his discretion subservient to Police dictate and act in a pure mechanical fashion, rather he is obliged to apply his independent mind to facts and formulate his own opinion which is admittedly lacking—Discharge order set aside. [Pp.247&248]A Mr. Q.M.Saleem, Advocate for Petitioner. Mr. Ghulam Ban, Advocate for Respondents. Mr. Farooq Bedar, Addl. A.G. for State. Date of hearing: 2.4.1991. judgment In the case registered vide F.I.R. No.2 of 12.1.1991 under sections 302/307/34 P.P.C. read with section 324 of Qisas and Diyat Ordinance, 1990 at Police Station South Cantt, Lahore against respondents 3 to 5 alongwith two others alleging murder of petitioner's son Khurram Karim, the respondents were discharged by Magistrate, Factory Area, Lahore vide the impugned order dated 20.1.1991, granting the police request in the following terms:-legality whereof was assailed in these proceedings by contending that the learned Magistrate has acted purely mechanically solely on the police report without application of independent mind, whereupon the respondents were summoned to join the proceedings, during the course of hearing whereof the learned Additional Advocate General frankly stated that the impugned order is unsustainable while learned counsel for the respondents stated that not only the matter is being reinvestigated at the complainant's instance but also she can avail of the alternative remedy of lodging a private complaint, with which I am not persuaded for the reason that irrespective of the fact that the order impugned is administrative in nature, the Magistrate is not supposed to render his discretion subservient to the police dictate and to act in a pure mechanical fashion, rather is obliged to apply his independent mind to the facts adduced on the record by the investigating agency and to formulate his own opinion, which in the instant case admittedly is lacking; consequently, the impugned order is set aside and the matter is deemed to be pending before the Court concerned who shall pass such order as (it) may deem fit in accordance with law. The petition stands disposed of with no order as to costs. (MBC) Petition accepted.

PLJ 1991 Lahore 248 PLJ 1991 Lahore 248 [Rawalpindi Bench] Present: gul zarin kiani, J SARFRAZ KHAN and 3 others-Petitioners versus ABDUL KARIM and another-Respondents Civil Revision No.74/D of 1991, dismissed on 183.1991.’ Injunction- —Declaration and injunction-Suit for-Grant of injunctive relief-Challenge to- -It was conceded at hearing that plaintiffs were in possession of land in dispute; constructions on it were raised by them and that defendants were its co-owners alongwith other recorded co-owners-Contention thai plaintiffs as clear trespassers, could not avail of equitable relief of injunction as against defendants who had legal title to land in dispute-Held: Courts below did not err in granting injunctive relief to plaintiffs for protection of their possession from invasion by defendants except in accordance with dictates of law-­ Revision dismissed. [Pp249&250]A&B AIR 1935 Lahore 547 and PLD 1958 Dacca 435 not helpful. AIR 1980 Kerala 224,1985 CLC 457 and AIR 1958 Madras 497 rel. Mr. Muhammad Munir Peracha, Advocate for Petitioners. Date of hearing: 18.3.1991. judgment Petition of revision arises out of a suit for declaration of title and perpetual injunction. The trial Court decreed the suit on 22.1.1990. In appeal, decree of the trial Court was affirmed, on 14.1.1991. The trial Court had decreed that "plaintiffs are in possession of disputed land and defendants are restrained not to interfere in the possession of plaintiffs illegally". Lower appellate Court agreeing with it held:- "In view of evidence on record, it is fully established that disputed property is in the possession of plaintiffs/respondents and they have purchased it from Aurangzeb s/o Sultan Khan. Although Ex.P.l is an unregistered document and it does not create any title but possession of plaintiffs cannot be disturbed except in due course of law". Dispute that led to the litigation was as follows: Land in Khasra Nos.265, 266 measuring 1 kanal. 10 marlas situate in revenue estate Mari of Tehsil Fateh Jang, was in possession of Sultan Khan and Mst. Bhag Bhari as "qabiz" without payment of rent on account of assertion of ownership rights. It was owned by numerous persons including Sarfraz etc. who were defendants in the suit. Sultan Khan was dead. Aurangzeb is his son. Msr.Bhag Bhari is wife of Aurangzeb. By an unregistered deed executed on 26.J.1978, Aurangzeb sold his possessory rights to Abdul Aziz. and. his brother Abdul Karim for a consideration of Rs.3000/- and transferred actual possession of the land in dispute to them. The purchasers made constructions on the land in their possession. Later, they brought a civil suit against Sarfraz etc. for a declaration that they were owners in possession of the land comprised in khasra Nos.265, 266 alongwith constructions on them and the defendants having no right or interest in the land or the constructions were not authorised to cause interference therewith. The defendants resisted the suit. It was stated that the plaintiffs had constructed houses on an area of 4 marlas only out of the two khasra numbers, 4/5 years ago and the rest of the land in the two khasras was in their own cultivation. As far constructions by the plaintiffs, defendants took the stand that those were made without their permission. Necessary issues having been settled and evidence taken, the Courts below found that the plaintiffs possessed the land in dispute alongwith the constructions raised on it by them, and. their possession could not be interfered with except in due process of law. As far ownership of the land, it was held that it belonged to the defendants alongwith its other recorded owners. It was conceded at the hearing that the plaintiffs were in possession of the land in dispute; constructions on it were raised by them and the defendants were its co-owners alongwith its other recorded co-owners. Upon the admitted and otherwise proved facts, it was argued that the plaintiffs as clear trespassers could not avail of equitable relief of injunction as against defendants who had legal title to the land in dispute. Cases in A.I.R. 1935 Lahore 547 and P.L.D. 195S Dacca 435 were relied upon. Cases relied upon were not helpful to the point requiring decision in the case. The correct rule to apply in such a case is that laid down in Kanhiyayani Amma versus Govindan A.I.R. 1980 Kerala 224 which summed it up as:- "The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession". In Ghiilam Muhammad versus Ch.Kliushi Muhammad and another 1985 C.L.C. 457, similar views were expressed by me when it was observed:- "General purpose of the law is that regardless of actual condition of the title to or right of possession of the property, the party actually in peaceful and quiet possession shall not be turned out by strong violence or terror. There is no provision of law which empowers by force or show of force to evict a person in actual possession of the immovable property". In Ponnusami Mudaliar and another versus Pappammal Annacliatram and others A.I.R. 1958 Madras 497, the Court took the view that:- "According to the majority the interest of a person in possession is heritable and transferable. It is capable of being disposed of by deed or will or by execution sale. Thus, even before mere possession is converted by prescription into a right of ownership, it is in itself a right which according to the present law of India is protected and remedies are provided as under sections 9 and 42 of the Specific Relief Act". Therefore, the learned Courts below did not err in granting injunctive relief to the plaintiffs for protection of their possession from invasion by the defendants except in accordance to the dictates of law and this, in my opinion, was a correct approach to resolve the point at issue before them. In this view, revision petition has no substance, and, is dismissed summarily. (MBC) Revision dismissed.

PLJ 1991 Lahore 250 PLJ 1991 Lahore 250 Present: MALIK MUHAMMAD QAYYUM J. MUHAMMAD KAREEM-Petitioner versus ISLAMIC REPUBLIC OF PAKISTAN . THROUGH SECRETARY, MINISTRY OF DEFENCE, and 2 others-Respondents. Writ Petition No. 1779 of 1990, accepted on 28.1.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.13—Suit for recovery— Exparte decree in—Application for setting aside exparte decree—Condition of furnishing bank guarantee—Challenge to--It was specifically averred in application under Order IX Rule 13 of C.P.C. that neither partnership firm nor any of its partners including petitioner were ever served with summons—There can be no dispute about power of court to impose condition, but this discretion has to be exercised in a judicious manner- -Held: Courts below have acted arbitrarily and with material irregularity in exercise of their discretion in burdening petitioner with such a harsh condition as furnishing a bank guarantee which virtually amounts to deposit in cash, while setting aside exparte decree-Petition accepted. [Pp.251&252]A&B PLD 1977 Lahore 2 and AIR 1933 All. 601 rel. Mr. Abdur Rahman Madni, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 28.1.1991. judgment Or. 29th May. 19S4 a suit for recovery of Rs.1,99,547.43 was filed by respondent No.l against M/s Kareem Borthers a partnership firm of which the petitioner is one of the partners. The suit was decreed ex-parte by the trial Court on 2~th July. l r -»>5. 2 Or. 2~th July. 1985 an application under Order 9 Rule 13 of the C.P.C. \vas filed b> the petitioner as a partner of the judgment-debtor firm alleging that r.o surr.rr.;-ru was ever served upon him, the firm or any of its partners. This apr-i;~::ori v,as contested by respondent No.l by filing a reply in which certain rreli—.-.-j-r. objections were also raised. The trial Court by means of its order c^:rc 2~ h of June. 1989 came to the conclusion that the ex-parte decree was liable '. :• "c -et-aside as the petitioner cannot be condemned unheard. However while -e:::r.; aside the decree a condition that the petitioner should furnish a bank C'-arar/.ee :o the extent of decretal amount was imposed. The imposition of this ;; r.d.::. r. a as challenged by the petitioner by filing a revision which was dismissed b> :h; Additional District Judge Lahore on 19th February, 1990. The petitioner has -,: - approached this Court by filing this constitutional petition. 1 r.j.e heard Mr.Abdur Rehman Madni, Advocate for the petitioner. No one ±- T'iars for the respondents despite repeated calls. Tr.e learned counsel for the petitioner submits that the discretion vested in the :r.al Court for setting aside the ex-parte decree subject to certain conditions has >;;-. arbitrarily exercised by it. Reliance in this connection has been placed upon :.-.; : _dement of this Court in Reid. Brigadier Hamid Hussain Vs. Ch.Barkat A.:: PL D 19"7 Lahore 2). S- the application under Order 9 Rule 13 of the C.P.C. filed by the petitioner, it was specifically averred that neither the partnership firm nor any of its pa::r.;rs including the petitioner were ever served with the summons and it was for this reason that the suit could not be contested by them. This plea was accepted by the trial Court which was of the view that the petitioner had been condemned unheard. Having itself come to the conclusion that the petitioner was not ser.'ed \Mth the summons as required by law, it is not understandable as law (?) ito how) such an onerous condition like furnishing a bank guarantee for settme-aside the ex-parte decree could be imposed. There can be no dispute that under Order 9 Rule 13 of the C.P.C. a Court is empowered while setting aside an ex-pant: decree to direct the deposit of the decretal amount in Court or to impose any other condition as the circumstances may justify but this discretion has to be exercised in a judicious manner. In the present case if the petitioner or the firm had not been served with summons, no fault certainly lay with them and there is no reason as to why they should be called upon to deposit the decretal amount as condition precedent for the setting aside (of) the ex-parte decree. In the present case while exercising the discretion under Order 9 Rule 13 C.P.C. the nature of the claim in suit must also be considered. Unfortunately the trial Court and the Additional District Judge have also failed to notice that the suit amount was being claimed by the respondent/plaintiff as damages for the breach of a contract and loss, if any suffered by the plaintiff/respondent was to be quantified at the trial. It •thus becomes evident that the Courts below have acted arbitrarily and with material irregularity in exercise of their discretion in burdening the petitioner with such a harsh condition as furnishing a bank guarantee which virtually amounts to deposit in cash while setting aside the ex-parte decrees. 5. InRetd. Brigadier Hamid Hussain Vs. Ch.BarkatAH (P.L.D. 1977 Lahore 2) it was held that if it is proved that there was no negligence whatsoever on the part of the defendant, the Court may set-aside the ex-parte decree without payment of any costs or imposing any onerous terms on the applicant/judgmentdebtor unless it finds that he was at fault. In Madan Mohan Vs. B.Kanhaiya Lai (A.I.R.1933 All. 601) it was held that if sufficient cause was shown for nonappearance, the condition of payment of any part of the decretal amount was not called for. For the reasons aforesaid this petition is accepted, the imposition of the condition by the trial Court that the petitioner should furnish bank guarantee is declared to be without lawful authority and of no legal effect. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1991 Lahore 252 PLJ 1991 Lahore 252 Present: muhammad ilyas J. MUHAMMAD QASIM-Petitioner versus MUHAMMAD SHARIF and another-Respondents. Civil Revision No.2241/D of 1990, dismissed on 14.1.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.13~Exparte decree-Setting aside of-Application for-Dismissal of- Challenge to~On transfer of case by administrative order, counsel for petitioner appeared in transferee court but defaulted on next date-There was no need for issuing proclamation by transferee court because it was for petitioner and his counsel to pursue matter further before it—Held: Since petitioner's counsel had once appeared before transferee court, there is no force in argument that petitioner was not served by said court before passing ex-parte decree-Petition dismissed. [P.253]A Mian Ghulam Rasool, Advocate for Petitioner. Date of hearing: 14.1.1991. judgment Facts giving rise to this civil revision are that respondent No.l Muhammad Sharif, brought a suit against the petitioner, Muhammad Qasim and respondent No.2, Muhammad Ishaq. It was initially heard by Syed Masudul Hussan, Civil Judge, Sheikhupura, before whom the parties had been, entering appearance. In consequence of an adminstrative order, the suit was transferred to the Court of Syed Mukhtar All Shah, Civil Judge, Sheikupura. Thereafter, learned counsel for the petitioner appeared in the Court of Syed Mukhtar Ali Shah on 20th February, 1984. However, when the case came up before him on 7th March, 1984, nobody entered appearance on behalf of the petitioner. It was, therefore, directed by Syed Mukhtar Ali Shah that the petitioner shall be served by means of proclamation in the weekly "Kehkashan" for 7th April, 1984. As the proclamation was not issued for 7th April. 19S4. the case was adjourned to 13th May, 1984 to await the proclamation. Subsequently, the proclamation was issued for 13th May, 1984 but nobody appeared on behalf of the petitioner on that date. Syed Mukhtar Ali Shah, therefore . proceeded ex parte against the petitioner, recorded the evidence of respondent No.l and decreed the suit ex parte, on 24th May, 1984. On 6th June, 1984. the petitioner made an application for setting aside the ex parte decree but the sair.e v.i5 dismissed by the learned trial Court. Petitioner went in appeal before an Additional District Judge but in vain. Hence, this civil revision. 1. I: v-ai contended by learned counsel for the petitioner that the petitioner was noi properly served by the transferee Court, namely, the Court of Syed Mukhiar Ali Shah, and as such the ex pane decree was not sustainable. His plea v.a~ that ;he petitioner did not come to know of the proclamation published in the weekj'. 'Kehkashan" for 13th May, 1984. 5 I regret to say that Syed Mukhtar Ali Shah had fallen in error in issuing the proclamation. When learned counsel for the petitioner had entered appearance before him on 20th February, 1984, there was no need for issuing the proclamation. It was for the petitioner and his learned counsel to pursue the maue: further before the learned transferee Court and if they had failed to do so, the> should suffer the consequences thereof. Since the petitioner's counsel had once a;rr-eared before the learned treansferee Court, I see no force in the arguner.: of the learned counsel that the petitioner was not served by the said Court before passing the ex parte decree. There is no merit in the civil revision. It is, accordingly, dismissed in i MBC Petition dismissed.

PLJ 1991 Lahore 253 PLJ 1991 Lahore 253 Present: IRSHAD hassan khan J. KHADIM-Petitioner versus JUDGE. FAMILY COURT, SAMUNDRI and another-Respondents Writ Petition No.6146 of 1990, dismissed on 27.2.1991. Muslim Family Laws Ordinance, 1961 (VIII of 1961)-- -—S.7 read with West Pakistan Family Courts Act, 1964, Section 21 (2)-- Marriage-Dissolution of--Challenge to-Contention that notwithstanding passing of decree by Court, Talaq would become effective only after notice of Talaq has been given to chairman and period of 3 months has expired—Section 21 (2) of Family Courts Act envisages that Court shall send a certified copy of decree to chairman through registered post within seven days who shall act upon it as if it is an intimation given under Section 7 of Ordinance-Held: In case of dissolution of marriage through Family Court, decree of Court is a substitute for pronouncement of divorce—Petition dismissed. [Pp.254&255]A&B PLJ 1973 BJ 328 rel. 1988 P Cr L J 2347 distinguished Mr. Islam All Qureshi, Advocate for Petitioner. Haji Muhammad Iqbal Malik, Advocate for Respondent 2. Date of hearing: 27.2.1991. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the judgment and decree dated 2-6-1990. passed by the learned Judge, Family Court, Samundri, Distt: Faisal Abad, whereby the marriage between the petitioner and respondent No.2 was dissolved by way of Kliula on payment of Rs.5000/-. 2. Learned counsel for the petitioner has assailed the validity of the impugned judgment and decree on the ground that the trial court had recorded the statements of the witnesses on solemn affirmation instead of oath which was violative of Section 6 & 7 of the Oaths Act, 1873, the High Court Rules and Orders and the decision given in case of Abdur Rehman v Tlie State (1988 P.Cr.L.J. 2347). 3. The case of Abdur Rehman (supra) is distinguishable. It was held therein that the charge under Section 193 PPC could not be established against the petitioner therein. It was held that it was not possible to say with certainty whether the affidavit of the applicant therein or that of the other party was correct and. therefore, the proceedings before the court were quashed and the petitioner therein was acquitted of the charge. Here no prejudice has been caused to the petitioner for strict non-compliance of Sections 6 & 7 of the Oaths Act which provides that when the witness or interpreter is Muslim, he is required to take oath. This visualized, a mere irregularity in not following the procedure prescribed in the aforesaid provisions of law would not ipso facto render the impugned order void in the absence of any prejudice to either of the parties which has not even been alleged therein. Reference may also be made to Zeb-ul-Haram v Tlie State (PLD 1991 Federal Shariat Court 1), wherein it was held that "In determining whether any error, omission or irregularity in any proceedings under Criminal Procedure Code, 1898 has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. No objection to the non-giving of oath to the interpreter was taken at the trial stage. Failure of giving oath to interpreter, even otherwise, could not be said to have occasioned a failure of justice so as to make out a case for remand by the Federal Sharial Court to the trial court." 4. Learned counsel for the petitioner next placed reliance on Mst. Manzoor Ajv, Allah Wasaya etc. (PLJ 1973 B..T. 328), to contend that notwithstanding the passing of the decree by the judge, Family Court, the Talaq would become effective only after notice of Talaq has been given by the petitioner to the Chairman, and period of three months provided for bringing out the conciliation between the parties has expired. It is submitted that no notice has been given till no\v, therefore, the Taiaq has not become effective, under Section 7 of the Muslim Family Laws Ordinance, i%l. The contention has no force. Section 21(2) of the West Pakistan Fanr.S. C urts Act. 1964 (XXXV of 1964) provides that "Where a Family Court pas-s^s decree for the dissolution of a marriage solemnized under the Muslim Lav-. ;he Court shall send by registered post within seven days of passinc such decree a certified copy of the same to the appropriate Chairman referred to :r. >ection 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of Talaq required to be (given) under the said Ordinance." 5. I; would, therefore, be seen that the aforesaid provision of Act obligates the Fj.rr.ih Court to send a certified copy of its decree for dissolution of marriage to the Chairman, who shall act upon it as if it is an intimation given under section of tne Ordinance. Clearly a period of 90 days after which the decree will be effective, s-iorts from the date the certified copy is sent to the Chairman by the Court. In c^ic or dissolution of marriage through the Family Court the decree of the FamiK C-o»rt is a substitute for pronouncement of divorce. To the same effect is the judgrner.: of Mst. Manzoor (supra). The portion relied upon by the learned counsel tor ine petitioner in the precedent case is to be read in context of the whole ludinr.erH and not in isolation as has been attempted by the leaned counsel for ihe r-e'.:t:oner which could have been avoided in view of the above, I find no force in the writ petition which is hereby dismissed with costs. (M B C Petition dismissed.

PLJ 1991 Lahore 255 PLJ 1991 Lahore 255 Present: MUHAMMAD MUNIR KHAN J. MUHAMMAD SHAFIQUE-Petitioner versus ADDITIONAL DISTRICT JUDGE, GUJRAT and 4 others-Respondents Writ Petition No.8575 of 1990, dismissed on 20.1.1991. Maintenance- -—Minor children and their divorced mother-Maintenance of-Grant of~ Challen^e to—Children being sons of petitioner,, latter was legally obliged to maintain them where-ever they may be living—They cannot be deprived of their right to maintenance on ground that they were not living with petitioner, father—Held: Courts below have neithr flouted provisions of law nor maintenance amount fixed by them is excessive—Petition dismissed. [P.256JA Ch. Abdul Rashid Gitjjar, Advocate for Petitioner. Date of hearing: 20.1.1991. order Through this constitutional petition, Muhammad Shafiq petitioner seeks declaration to the effect that the judgments and decrees dated 23-9-1989 and 8-5-1990 passed by the learned Judge Family Court, Gujrat, and learned Addl. District Judge, Gujrat, respectively are without lawful authority and of no legal effect. 2. The facts leading to this petition, briefly, are that Imran Shehzad and Irfan Shehzad, minor children, are the sons of Muhammad Shafiq petitioner. Mst. Irshad Begum, respondent No.5, was the wife of the petitioner. She has been divorced by the petitioner. Imran Shehzad and Irfan Shehzad, respondents No.3 and 4, and Mst. Irshad Begum, respondent No.5, filed a suit for maintenance against Muhammad Shafiq petitioner before the learned Judge Family Court, Gujrat. The suit was resisted. Issues were framed. Mst. Irshad Begum appeared as PW-2. She produced Muhammad Hussain as PW-1. To rebut this evidence, the petitioner produced two witnesses, namely, Muhammad Aslam DW-1 and Muhammad Ismail DW-2. Muhammad Ismail DW-2 is the special attorney of the petitioner. The learned trial Court allowed maintenance of Rs.500/- a month to Imran Shehzad, Rs.400/- a month to Irfan Shehzad and Rs.500/- per month for period of Iddat to Mst. Irshad Begum with effect from 19.10.1989. On the appeal filed by the petitioner, the learned Addl. District Judge, Gujrat, reduced the maintenance amount of the children to Rs.350/- per month each and the decretal amount of Rs.500/- in favour of Mst. Irshad Begum to Rs.300/- per month, hence this petition. 3. The learned counsel for the petitioner submitted that since the children were living with their mother Mst. Irshad Begum, so no decree for maintenance more particulaly for past maintenance should have been granted in their favour and that learned Judge Family Court at Gujrat had no jurisdiction to try the suit. 4. I have considered the submissions made by the learned counsel for the petitioner with care. I do not agree with him. As far the jurisdiction of the learned Judge Family Court, Gujrat, to try the suit, I find that the issue relating to the jurisdiction of the trial Court was not pressed by the learned counsel for the petitioner at the time of arguments. The children being the sons of the petitioner, the latter was legally obliged to maintain them wherever they may be living, so the minor children cannot and should not be deprived of their right to maintenance on the ground that they were not living with the petitioner/ father. The submissions made by the learned counsel are devoid of force and substance. The Courts below have neither flouted the provisions of law nor the maintenance amount fixed by them is excessive. 5. Pursuant to the above discussion, there being no merit, the petition is dismissed in limine. MBC) Petition dismessed.

PLJ 1991 Lahore 257 PLJ 1991 Lahore 257 Poseur. muhammad munirkhan J. SARFRAZ HUSSAIN-Pelitioner versus ALLAH RAKHA and 2 others-Respondents Civil Revision No.1258 of 1983, dismissed on 16.1.1991. Civil Pnxirf-nc Oxie, 1908 (\ r of 1908)-- —-O.IX R 13--£ -r^Tt decree-Setting aside of-Appplication for--Dismissal of- -Arr-i.i. i_;jL_-;:--Appeal dismissed in default but later on restored -Challenge to--R;:7-;n;-: No.i who was also special attorney of co-appellants before DLr.r:' J.ixr ~as in police custody on 11.5.1982 when appeal was dismissed ir. ;;f-_:-He >c~: an application for restoration of appeal through jail which wis r'-jcsc :r. record and he was asked to apply according to law—Second arr-.cii:.;c -is presented in court on 29.7.1982 whereupon appeal was reiirrti-Tbere is no legal bar in C.P.C. for sending application through post by rirjis ::• court in unavoidable circumstances-Held: Second application tLrc r-" rt;>:::ient No.l could not have been dismissed as barred by time- Held fvcber: Only miscellaneous application having been fixed for reply and — - - iro.:..il n,:t having been fixed for hearing on that date, there is no irrrr—i-"- '• urisdictional defect in impugned order restoring appeal. [Pp.258u Sarfraz Hussain, petitioner, filed a suit for the declaration againi,: M^^ir.mad Arshad and two others respondents in the Court of Senior Ci'.il J'i-icc. Faisalabad. The suit was decreed ex pane on 30.7.1980. On the same da\ lie respondents/defendants filed an application under Rule 13 of Order 9 CPC ::r ;euin2 aside ex pane decree, which was dismissed on 14.2.1981. The appeal :"jed dv the petitioner against this order was dismissed in default by the learaeo District Judge, Faisalabad on 11.5.1982. Allah Rakha one of the respondent, .vho was (jrfrj&for the other defendants was in police lock-up on the date v»h=n the appeal was dismissed in default. So he sent application through post for the restoration of the appeal. On this application the learned District Judge, passed following orders:- "Seen. Place it on the file. Inform him that he should apply according to I a vs. Allah Rakha was informed accordingly on 20.6.1982. Thereafter, he filed a regular application for the restoration of appeal on 20.7.1982, which was accepted on 28.4.1985 and the appeal was restored. Hence this revision. 2. Learned counsel for the petitioners submitted that the appeal was dismissed in default on 11.5.1982 and the application for its restoration was filed in the Court on 29.7.1982. The application was hopelessly barred by time. There was no sufficient cause to condone the delay. Section 5 of the Limitation Act does not apply to the application for the restoration of appeal dismissed in default. The learned counsel for the respondent has supported the impugned order. 3. I have considered the matter carefully. I do not agree with the learned counsel for the petitioner. Undisputedly Allah Rakha, respondent, who was also LJ L0-/&? for the co-appeallants was in police custody on 11.5.1982, when the appeal was dismissed in default. He remained in Jail from 2.5.1982 to 12.6.1982. On 9.6.1982 he through registered letter sent an application for the restoration of the appeal to the learned District Judge, Faisalabad. This application was received in the Appellate Court on 13.6.1982 and was placed on record. On this application the learned District Judge passed following orders:- "Seen. Place it on the file. Inform him that he should apply according to law." Thereafter, second application was presented in the Court on 29.7.1982. The learned District Judge after applying his conscious mind to the circumstances of the case and to the first application of the Appellants dated 9.6.1982 sent by Allah Rakha£A^£/has restored the appeal. I do not see any illegality and material irregularity in the impugned order. Since admittedly Allah Rakha ^/^u/was in police custody on the date when the appeal was dismissed in default and he had sent an application through post on 9.6.1982, which was well within time, therefore, exception can be taken to the order of the restoration of the appeal. On 9.6.1982 Allah Rakha was in police custody, it was not possible for him to approach the co-appeallants or his counsel so there was no alternative for him but to send the application through post. There is no legal bar in CPC for sending the applications through post by the parties to the Court in unavoidable circumstances. There is nothing in Rule I Order 4, or Rule I Order 41 and Rule 19 of Order 41 CPC, which requires that an appeal/application for the restoration should be presented personally to the Court by the applitant/appellants or by a pleader. Even under High Court Rules, Vol.1, Chapter I-B, it may be irregular to send a plaint/appeal or application to the Court by post. However to send plaint/application or appeal by post is not illegality. The application was sent through registered letter on 9.6.1982. Although it reached the Court on 13.6.1982 yet it will be deemed as if the application was presented in the Court on 9.6.1982. This being the position the second application filed by the respondent could not have been dismissed as barred by time. Adverting to the merits I find that since Allah Rakha one of the Appellants who was authorised agent for the other appellants (was) in police custody on 11.5.1982, therefore, there was sufficient cause for the non-appearance of the Appellants on that date. Even otherwise the appeal could not have (been) dismissed on 11.5.1982 inasmuch as the same was not fixed for hearing on that date. An examination of the record reveals that on 4.4.1982 Sarfraz Hussain, respondent, in the appeal, had filed a Miscellaneous application. He was directed to supply a copy thereof to Allah Rakha. This application was adjourned for the reply of the Appellants therein to 11.5.1982. In reality the Miscellaneous application was fixed for the reply of the Appellants therein and the main appeal was not fixed for hearing on that date. I do not see any irregularity, or jurisdictional defect in the impugned order passed by the Appellate Court. 4, Pursuant to the above discussion, there being no merit the revision is parties to bear their own costs. (MBC Revision dismissed.

PLJ 1991 Lahore 259 PLJ 1991 Lahore 259 [ Bahawalpur Bench] Present: MUHAMMAD MUNIR KHAN, J Haji ATTA MUHAMMAD-Appellant versus ABDUL RASHEED-Respondent R.FA. No 24/1990/BWP, accepted on 13.3.1991 Oath on Hohly Quran-- ----Recover ymoney-Suit for-Suit decreed on oath on holy Quran-Challenge to--S:i".r— ;-; of defendant recorded by trial Court, was very much ambiguous- -Simi^rr- statement of Mustqeem was not definite and clear-Held: Instead of decree^ suit on ambiguous statement, trial Court should have proceeded to decide irrigation of defendant for permission to appear and defend suit— Arpci accepted and case remanded. [P.260]A&B M- A/. Busi: Baber, Advocate for Appellant. C: W^r.zoor Ahmad, Advocate for Respondent. Di:t of hearing: 13.3.1991. judgment On I1..2.19S9. Abdul Rashid respondent filed a suit for the recovery of Rs.l.iX'.X; - on the basis of Promissory Note against Atta Muhammad appellant in the Court of District Judge, Bahawalpur. Summons in accordance with Form- IV of Appendix- B C.P.C. was issued. Within ten days of the service of the summons, the petitioner moved an application for permission to appear and defend the suit. The appellant/defendant accepted this stal ;ment/offer. He stated that:- 2. Before this application could be decided, it so happened that on 27.1.1990. the laintiff made a statement before the trial Court to the effect that :- On the basis of this statement of Mustaqeem, the learned District Judge decreed the suit with costs, on the same day, hence this appeal. 3. Learned counsel submits that not only the statement made by defendant/petitioner accepting the offer made by the plaintiff and the statement made by Mustaqeem were ambiguous and as such, the suit could not have been decreed straightaway more particularly when the case was at the stage of permission to appear and defend the suit. Coversely, the learned counsel for the respondent supported the impugned judgment on the ground that since Mustaqeem had not stated that the claim of the petitioner was false, so the suit was rightly decreed by the trial Court. 4. I have considered the matter carefully. I find that on 27.1.1990, the case was till at the stage of the consideration of the prayer of the petitioner/defendant for leave to defend the suit. The statement of petitioner/defendant recorded by the trial Court was very much ambiguous. Similarly, the statement made by Mustaqeem which has been reproduced above was not definite and clear. This being the position, I feel that instead of decreeing the suit on ambiguous statement, the trial Court should have proceeded to decide the application of the petitioner/defendant for permission to appear and defend the suit. i Pursuant to the above discussion, the appeal is accepted and the judgment jand decree of the trial Court is set-aside and the case is sent back for fresh (decision in accordance with law, leaving the parties to bear their own costs. (MBC) Appeal accepted.

PLJ 1991 Lahore 260 PLJ 1991 Lahore 260 Present: malik MUHAMMAD QAYYUM, J AHMAD NADEEM-Petitioner Versus CHAIRMAN, ARBITRATION COUNCIL ^--Respondents Writ Petition No.617 of 1987, accepted on 4.2.1991 Muslim Family Laws Ordinance, 1961 (Mil of 1961)-- —S.7--Divorce~Notice of--Whether any form of notice is prescribed—Question of—Although it is correct that Section 7 require that notice in writing be sent to Chairman and wife, by husband informing them that he has divorced his wife but no particular form of notice has been prescribed-Held: Even if a document may s:nao senso not be in form of a notice, but if it otherwise contains requisite information, it would constitute sufficient compliance of section 7--Held futher: Arbitration council has clearly erred in insisting upon technical compliance with provision when undoubtedly it stood substantially complied •.vr.h--Petition accepted. [Pp.262,263&264]A&B M r . tj '•'.:'• AhmedKlian, Advocate for Petitioner. .\v":l"' for respondent No.l. \''.Hidz\amllah, Advocate for respondent No.2. Date of hearing 4.2.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Piivistan. 19 7 3. calls in question an order dated 9th of January, 1987, whereby the Arbitration Council Ward No.37 Gulberg, Lahore held the Talaq pronounced by the ri'.r.: r.er to be ineffective and filed the proceedings. 1 .'.'_;•:. Sumbleen Awan, respondent No.2 was married to Ahmad Nadeem petit:;-;: on 24th July, 1982. Unfortunately the marriage could not prosper and the petitioner divorced respondent No.2 on 27th October, 1986. A copy of the divorce deed executed in this behalf was despatched by the petitioner both to re-sptndent No.2 as also the Chairman Arbitration Council Ward No,37 which was recer-ed bv respondent No.2 on 4th of November, 1986 and by the Chairman on Sii N:-.ember. 1986. During the course of proceedings an objection was raised :hj: ±e petitioner was not in Pakistan when the divorce deed was allegedly exc_ted. However, on the production of the copy of passport this objection was :; _r.d to be without any force. But the Chariman on 9th January 1987 proceeded t; -cid that as no notice, as required by section 7 of the Muslim Family Laws Ordinance 1961 had been served upon him or the wife, the Talaq pronounced by the petitioner could not become effective. He, therefore, consigned the proceedings. Hence this petition. 3. Mr. Tahir Ahmad Khan, learned counsel for the prtitioner argued that respondent No.l has acted without lawful authority in holding that the proceedings before him were not competent in the absence of a specific notice under section 7 of the Muslim Family Laws Ordinance 1961. The contention of the learned counsel is that the divorce deed could itself be regarded as sufficient notice in terms of section 7 of the Ordinance. Mr. Hidayat Ullah, Advocate representing respondent No.2, on the other hand, submitted that section 7 of the Ordinance requires in emphatic terms that a notice in writing must be sent by the husband to the Chairman and wife and it is only after 90 days of the receipt of such notice that the talaq could become effective. The other argument of the learned counsel is that as the Chariman did not hold any further proceedings after 9th January, 1987 by which time the period of 90 days had not expired, the divorce did not become effective. The learned counsel also emphasised that as impugned order had been passed unanimously by all the three members of Arbitration Council including the representative of the petitioner, he was estopped from agitating the matter any further. The learned counsel pointed out that the petitioner has remarried during the pendency of this petition and is not entitled to any relief. 4. Section 7 of the Muslim Family Laws Ordinance, 1961 on which reliance has been placed reads as unden- "Sec.7(l) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever, contravenes the provisions of Sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. (3) Save as provided in Sub-section (5) talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under Sub-section (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation and shall take all steps necessay to bring about such reconciliation. (5) If the wife be pregnant at the time talaq is pronounced, talaq sh ll not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." Although it is correct that section 7 requires that notice in writing be sent to the Chairman and the wife by the husband informing them that he has divorced his wife but no particular form of notice has been prescribed by either the Ordinance or in the rules framed thereunder. The object of notice contemplated by section 7 is to communicate to the wife and the Chairman of the Local Council concerned the fact that the husband has dissolved the marriage so that proceedings for reconciliation can be undertaken. Consequently, even if a document may stricto senso not be in the form of a notice, but if it otherwise contains the requisite information, it would constitute sufficient compliance of section 7. 5. According to the Aiyar's Judicial Dictionary 9th Edition 'notice' means "the making something known to a person of which he was or might be ignorant. It is either statutory or actual or constructive." In Ballentines Law Dictionary 3 rd Edition the following definition of notice appears at page 865:- ' \i.nicc. In common parlance, information, intelligenc or knowledge. In ija actual notice, constructive notice, express notice or implied notice. Whatever is sufficient to put a person upon enquiry of all the facts to which that enquiry will lead when prosecuted with reasonable diligence and in good faith." It is also useful to make reference (to) Black's Law Dictionary 5th Edition at page 957 where the meaning of the word notice has been thus stated:- "Xotice. Information; the result of observation, whether by the sense or the mind; knowledge of the existence of a fact or state of affairs; the means of knowledge. Intelligence (by) whatever means communicated." "In an other sense "notice" means information, an advice or a written warning in more or less formal shape, intended to apprise a person of some proceedings in which his interests are involved or informing him of some fact which it is his right to know and duty of the notifying party to communicate." 5. Although, there appears to be no decided case on the interpretation of this aspect of section 7 of the Muslim Family Laws Ordinance 1961 but reference may usefully be made to other laws which also require giving of notice in writing in order to convey certain information. One of such laws is section 43 of the Partnership Act which provides that a partnership at will may be dissolved by giving a notice in writing by one partner to other. In Raja Muhammad Afzal Klian vs. Cli. Manzoor Elahi and 6 others (PLD 1975 Lahore 1276) a Division Bench of this Court held that a receipt of a deed of dissolution by the partners constitutes sufficient notice within the meaning of law. The ratio of this precedent is fully applicable to the present case also. The same rule was laid down in Mr.B~A.Sheikh v, TJie Custodian, Evacuee Property, West Pakistan, and others (PLD 1960 Supreme Court 330) and by the Privy Council in Sathappa Chetty and others v. S.N.Subrahmanyan Chetty and others (A.I.R. 1927 Privy Council 70). 6. Similarly section 13-A of the Punjab Urban Rent Restriction Ordinance 1959 provides that if the ownership of building in prossession of the tenant has been transferred by way of sale, gift or inheritance or in any other manner from one person to another the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in the payment of rent if the rent is paid within 30 days from the date of receipt of such intimation. Although, this section requires that the intimation must be given by a notice sent through registered post acknowledgment due yet the Supreme Court of Pakistan in Syed Azhar Imam Rizvi v. (?) Mst. Salam Yousafv. Meharaj-ud-Din and others (1986 S.C.M.R.751) held that the knowledge gained through receipt of a copy of the ejectment petition, was a sufficient notice and constituted compliance of this provision. 7. In the present case there is no dispute that the deed of dissolution of marriage was received by the wife on 4th of November, 1986 and by the Chairman on 8th of November, 1986. This document clearly conveyed that the petitioner had divorced his wife and severed all his connections by pronouncing talaq on 27 th October, 1986. There can be no reason as to why this deed could not itself be regarded as a notice under section 7 of the Muslim Family Laws Ordinance 1961. The Arbitration Council was clearly in error in insisting upon the technical compliance with the provision when undoubtedly it stood substantially with. 8. As regards the contention of the learned counsel for the respondents I divorce has not become effective as a period of 90 days had not expired when die proceedings were held to be incompetent and filed by the Chairman, suffice is to say that under section 7 of the Muslim Family Laws Ordinance 1961 the divans ipso-facto becomes effective on the expiry of 90 days of the date when the nocks is received by the Chairman. As already observed admittedly, the talaqnama was received by the Chairman on 8th November, 1986 and as such talaq became effective on 8th February, 1987 by afflux of time. Neither section 7 nor any other provision of the Ordinance requires any certificate by the Arbitration Council thai the talaq has become effective. It was so held by this Court in Mst. Maqbool Jan . Arsliad Hassan and another (PLD 1975 Lahore 147). Consequently, even though the proceedings may have been filed by the Chairman prior to expiry of 90 days, it did not have the effect of arresting the time which had started to run. The law took its own course and the talaq pronounced became effective on 8th February, 1987. 9. Reverting to the next argument, although the order holding the proceedings as incompetent was unanimous and even the arbitrator of the petitioner was party to it, but under no principle can the petitioner be prevented from challenging the order only because his own representative had consented to the order. No principle or authority has been cited in support of this proposition. As a result of the above this petition is accepted, the impugned order is declared to be without lawful authority and of no legal effect. No order as to costs. (MBC) Petition accepted.

PLJ 1991 Lahore 264 PLJ 1991 Lahore 264 Present: FALAK SHERj. PASROOR SUGAR MILLS LTD-Petitioner versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others- Respondents Writ Petition No.6020 of 1988, dismissed on 6.2.1991. Industrial Relations Ordinance, 1969 ( XXIII of 1969) —S.25-A—Employee of a body corporate—Termination of services of— Grievance petition-Dismissal of-Acceptance of appeal by Appellate Tribunal-Challenge to-It is clearly established from record that respondent was an employee of petitioner, a statutory body incorporated under Companies Act-Procedure under Standing Order 13, available to petitioner, has not been adopted-It was admitted by learned counsel for petitioner during arguments that respondent No.3 had no authority to recommend, grant or sanction leave to any of foremen or mechanics working with him—Respondent No." in his testimony, has categorically deposed that he enjoyed no supervisor., administrative or managerial capacity, ralher used to undertake manual work personally—Held: Neither impugned judgment suffers from any jurisdictional short-coming nor any material irregularity or misreading of evidence has been pointed out—Petition dismissed. [Pp.265&266]A,B,C&D Mr. M.S.Bokhari, Advocate for Petitioner. Mr. M.HamidAwan, Advocate for Respondent No.3. Date of hearing: 6.2.1991. judgment Consequent upon dis-investment by way of transfer and sale of entire share­ holding of the petitioner, a body corporate, incorporated under the Companies Act, 1913, by the Punjab Industrial Development Board (hereinafter referred to as the Board) to United Sugar Mills Limited S.I.T.E. Mangoo Pir Road, Karachi, pursuant to agreement dated 9.2.1986, clause 12 whereof envisaged the latter's right to retain only such staff/employees as it may deem fit with a corresponding obligation of the former to pay them off or absorb elsewhere, respondent No.3, initially having been recruited as a mechanical apprentice on 6.11.1980 with an honorarium of Rs.400/- p.m. and appointed as Assistant Engineer on 5.12.1983 for a probationary period of three months with a salary of Rs.400/- p.m. in addition to the allowances, to which post he was subsequently confirmed on 29.2.1984, vide letter dated 30.10.1985, was required by the new management to hand over the charge to the Deputy Chief Engineer forthwith and report to the Board for further instructions since his services were no more required. Feeling aggrieved thereby, after serving the statutory grievance notice contemplated by section 25-A of the Industrial Relations Ordinance, 1969 on 7.12.1985 the respondent had a recourse to the Punjab Labour Court No.7 Gujranwala seeking reinstatement in service with back benefits vide application dated 12.1.1986, which was turned down by the Presiding Officer on 11.6.1988 on bi-fold reasons, firstly, he does not fall within the expression "workman" as defined in section 2 (xxviii) of the Ordinance ibid. and. secondly, in term of clause 12 of the agreement referred to supra, redress of the alleged grievance can be sought against the Board through a civil suit. However, on appeal the Punjab Labour Appellate Tribunal vide the impugned judgment dated 8.11.1988 reversing the findings reinstated the respondent with back benefits, legality whereof has been assailed in these proceedings, urging the findings of the trial Court as the sheet-anchor of the submissions to which learned counsel for the respondent joined issue. 2. Having considered the arguments canvassed at the Bar, I am of the firm view that both the contentions are misconceived for the reason that from the record it is clearly established that the respondent was an employee of the petitioner, a statutory body, incorporated under the Companies Act with an independent juristic status and one of the units owned by the Board, who may be having some say in the policy matter, but by no stretch of imagination was the respondent's employer, which status the petitioner continued to enjoy even subsequent to the change of its management and the proprietary interest. This legal position remains untampered with despite the agreement to which admittedly neither the respondent was privy nor the parties thereto could barter his rights under the law, independent of the fact that one cannot contract out of law. 3. Additionally if the petitioner had resolved to say good-bye to the respondent by laying him off as having become surplus then the only option axailable to him was to have a recourse to the retrenchment process contemplated by she Standing Order Ordinance No.13 of 1968, envisaging a self contained comprehensive procedure which admittedly the petitioner has not adopted. Therefore, though the petitioner may be having some claim under the agreement u'.v-a-v/y the Board, but certainly couid have not slashed off the respondent from • his pav roll as a somersault without recourse to appropriate legal process. 4. Likewise, the second contention is not borne out from the evidence on I the record, because the respodent in his testimony as PW-1 has categorically i deposed, that he enjoyed no supervisory, administrative or managerial capacity, 1 rather used to undertake manual work personally: on the eve of his termination j his basic salary was Rs.510/- p.m. and in the departmental heirarchy he was placed subordinate to the Shift Engineer, Deputy Chief Engineer and the Chief i Engineer, which in substance remained unquestioned. Not only that but also j during the course of arguments, learned counsel for the petitioner frankly i admitted that the respondent had no authority to recommend grant or sanction | leave to any of the foremen, or mechanics working with him. Even Muhammad Afzal Bhatti. Deputy Chief Engineer, as RW 3 could not particularise through documents the nature of respondent's duty to which strength is lent by the fact that he is covered by the schemes catered for the benefit of workers by the Punjab Social Security as well as Old Age Benefits institutions. 4. In view of the aforegoing, neither the impugned judgment suffers from any jurisdictional shortcoming nor any material irregularity or misreading of evidence meriting interference in this extraordinary jurisdiction has been pointed out; resultantly, the petition being misconceived is hereby dismissed leaving the parties to bear their respective costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 266 PLJ 1991 Lahore 266 Present: FALAK SHER J. Sardar ASGHAR ALI etc.--Petitioners versus MUHAMMAD SALIM etc.-Respondents . Writ Petition No.4155 of 1982, dismissed on 12.2.1991. Urban Rent Restriction Ordinance, 1959 (VI of 1959)-- —S.13 (6)—Tenant—Ejectment of—Recovery of arrears of rent—Allowed by Rent Controller but his order was set aside by District Judge-Challenge to-­ Juridical classification of application out of which, present petition has emanated is a suit simplicitor for recovery of money due, a concept utterly alien to Ordinance, 1959—There was no interim order under Section 13(6) of Ordinance, requiring tenant to deposit arrears of rent by a certain date-Held: Impugned order is unexceptionable and petition being misconceived, is dismissed. [Pp.267&268]A 1974 SCMR 504 distinguished. '/:-': .Y^.; r .-i-;"ij<;, Advocate for Petitioners. JUDGMI3NT :rr.c -: :r.: necessary facts culminating into the present proceedings are ;-;.:rre-' petition having been instituted by petitioner No.l on ".. :••::••- j.';'-. alleging default in the payment of rent, wherein relationship d tenant was refuted by respondents 1 to 10, was allowed on . nd .vnsequent upon concurrent affirmation thereof in S.A.O. "5. r -session of the suit premises was eventually parted unto petitioner 22Y-, Y-S1. who during the interregnum had stepped into the shoes of the "„-: uzh alienation. Subsequent whereto by virtue of an application dated ::.:-.ery of arrears of rent cumulatively amounting to Rs.26780/- (i.e. nd Rs.18230/- encompassing the respective periods of the petitioners) : uncer Section 13(6) of the Punjab Urban Rent Restriction Ordinance, - v-i; allowed by the learned Rent Controller on 8.12.1981, however on ~..s -et aside by the learned District Judge, Lahore vide the impugned • ia'.jd 30.3,1982 on the ground that in the circumstances of the case the :n::Y : er had become functus offlcio with the conclusion of the pr: :c e din^: ^g-iitty whereof has been assailed on the basis of the law enunciated in '.hi ;.i ; t o! S-.'ed Akhlaque Hussain Vs. Habib Ismail Bajwa (1974 S,C .?••' ?. :• '- '-/herein coaching the proposition in the following terms: The only question that is left for our consideration is whether the Rent r:r.::oller. having already struck off the defence on the failure of the ;Y:Ynjam/respondent No.l to comply with the order of the Rent C: n;r Mler to deposit the rents and having passed the order of eviction of ;n_- respondent, became functus offlcio. and as such could no longer le'.ern-.me the rent finally as required in the 2nd part of Section 13(6) of :ne Urban Rent Restriction Ordinance, 1959" held that "it is evident that the order provisionally fixing the rent in Te event of a dispute about the rate and its deposit is an interim or Interlocutory order. Under the second part of the section, the statutory du:v is cast on the Rent Controller to finally determine the rent, and until t.is aet is performed, the proceeding does not legally conclude. We are, therefore, unable to accept the contention advanced on behalf of the respondent that the Legislature regarded the passing of the order of eviction as the last or ultimate act of the Rent Controller which put an end to the proceeding for eviction under Section 13 of the Ordinance and the Rent Controller thereafter was precluded from finally determining the rent as required under the said Ordinance". 2. There is no cavil with the legal proposition canvassed in the precedent law referred to by the learned counsel at the bar, however, I am afraid it does not cater for the situation obtaining in the present case for the simple reason that it preconceives existence of an interim order under Section 13(6) of the Ordinance ibid, inter alia, requiring the tenant to deposit arrears of rent by certain date, continual deposit thereof before 15th of each month pending adjudication of the Us, and in the event of any dispute as to its quantum, approximate determination thereof, which exercise, admittedly, was not at all ventured upon by the Rent Controller in this case; consequently, I arn of the opinion that in the absence of the sine qua non, the juridical classification of the application out of which the present petition has emanated is a suit simplicitor for recovery of money due. a concept utterly alien to the statute in question, and beyond the parameters of jurisdictional competence of Rent Controller; consequently, the impugned order is unexceptionable and the petition being misconceived is hereby dismissed; however, since the respondents despite service have not put in appearance, thus were proceeded against ex-parte, therefore, there will be no order as to costs. (MBC) Petition dismissed.

PLJ 1991 Lahore 268 PLJ 1991 Lahore 268 Present: MUHAMMAD munir KHAN J. AMANAT ALI-Petitioner versus RIAZ HUSSAIN-Respondent. Civil Revision No.1933 of 1989, partly accepted on 2.2.1991 Handwriting Expert— —Recovery of money—Suit for—Decree passed by trial Court but set aside in appeal—Challenge to—Whether it was necessary to produce Handwriting Expert—Question of—Execution of a document can be proved by scribe of document and also by marginal witnesses-In this case, PW 2 is scribe of document, so document was proved according to law-Held: Argument that respondent was obliged to produce Handwriting Expert is without force inasmuch as it is not a legal requirement-Petition partly accepted and decretal amount reduced to Rs.9000/- (principal amount). [Pp.269&270]A&B Mr. Talib H.Rizvi, Advocate for Petitioner. Mr. AliAkhtar Qurcshi. Advocate for Respondent. Date of hearing: 2.2,1991. judgment On 22.2.1985 Riaz Hussain Shah, respondent, filed a suit for the recovery of Rs.13,000/- on the basis of written agreement Ex.P.l against Amanat Ali, petitioner, in the Court of Civil Judge, Toba Tek Singh. The suit was resisted whereon two issues were framed. The respondent/plaintiff produced Bashir Ahmad PW-1, Nazir Ahmad PW-2, Zameer Hussain PW-3, Ghulam Hussain PW- 4 and he himself appeared as PW-5 and tendered document Ex.P.l in evidence. To rebut this evidence, the petitioner/defendant appeared as DW-2. He produced Taj Muhammad (as) DW-1. The trial Court decreed the suit on 22.5.1988. The appeal filed by the petitioner against this judgment and decree was dismissed by the learned District Judge, Toba Tek Singh, on 13.9.1989, hence this revision. 2. Before me, the learned counsel for the petitioner has challenged the findings of the Courts below on issue No.l only, which is as under:- (1) "Whether the agreement written between the parties on 7.6.1984 was valid, therefore, the plaintiff is entitled to recover Rs.13,000/- from the defendant through this suit?" He argued that the judgments of the Courts below suffer from mis-reading/nonreading of the material evidence; that the respondent/plaintiff has failed to prove the execution of agreement Ex.P.l by the petitioner /defendant; that since the signature on agreement Ex.P.l was categorically denied by the defendant, therefore, the respondent/plaintiff was obliged to produce and examine Hand Writing Expert. 3. Conversely, the learned counsel for the respondent has supported the impugned judgments and decrees. 4. I have considered the submissions made by the learned counsel for the parties with care. After attending to the arguments of the learned counsel for the parties in the light of the evidence on record, I feel persuaded to reduce the decretal amount from Rs.13,000/- to Rs.9,000/- for the reasons that the plaintiff has not been able to prove through any reliable evidence that the petitioner/defendant had agreed to pay profit of Rs.4,000/- in addition to the original loan of Rs.9,000/-. Bashir Ahmad PW-1 and Nazir Ahmad PW-2 have not deposed about the agreement of the petitioner /defendant to pay Rs.4,000/- in addition to Rs.9.000/- received by him. Ghulam Hussain PW-4 has stated that the petitioner after having received Rs.9,000/- from Riaz Hussain Shah, plaintiff, had agreed to return him Rs.13,000/- but in cross-examination, he stated Riaz Hussain Shah has stated that after receiving Rs.9,000/- from him for business, the petitioner/defendant had promised to return Rs.13,000/- to him. Riaz Hussain Shah being a plaintiff was/is an interested person. So the only reliable witness produced by the respondent/plaintiff was/is Nazir Ahmad PW-2. He has stated that the petitioner/defendant had received Rs.9,000/- from the respondent/plaintiff in his presence and had also signed Ex.P.l in his presence. I do not see any reason to disbelieve him. The petitioner /defendant has not been able to rebut his evidence. Taj Muhammad DW-1 stated that no money was paid by the respondent/plaintiff in his presence and that the agreement was false and forged. It may be noted here that he had neither scribed agreement Ex.P.l nor he is a marginal witness of this document. Furthermore, it was/is not the case of the respondent/plaintiff that the agreement took place in his presence. Amanat Ali DW-2 being a defendant is an interested witness. The arguments of the learned counsel for the petitioner that the respondent/plaintiff was obliged to produce the Hand Writing Expert is without force inasmuch as it is not a legal requirement. The execution of a document can be proved by the scribe of the document and also by a marginal witness. In the instant case, Nazir Ahmad PW-2 is the scribe of the document, so the document was proved according to law. 5. Pursuant to the above discussion, the revision is partly accepted. The impugned decree of Rs.13,000/- passed by the learned trial Court against the ("petitioner/defendant is reduced to Rs.9,000/-. With this modification, the revision jis dismissed leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition partly accepted.

PLJ 1991 Lahore 270 [Multan Bench] PLJ 1991 Lahore 270 [Multan Bench] Present: MUNIR A. SHEIKH, J S. TASEER ALI-Petitioner verses PUNJAB LABOUR APPELATE TRIBUNAL, LAHORE and 3 others-­ Respondents Writ Petition No. 841 of 1989, accepted on 4.3.1991 Industrial Relations Ordinance, 1969 ( XXIII of 1969)-- -—S, 25-A- Grievance petition-Acceptance of-Appeal against-Finding of Labour Court set aside-Challenge to-Whether petitioner was not skilled staff and was not entitled to NPS 5—Question of—Reasonings given by respondent No. 1 are based on misreading of evidence as also on conjectures and surmises—There was no evidence on record to rebut assertion of petitioner that his job was to repair clocks and he had been doing so—Even RW1 produced by Railways admitted that petitioner was a skilled staff-Logical bases on which presiding officer of Punjab Labour Court decided case, have not been dealt with by respondent No. 1—lt is a case where petitioner had become entitled as a matter of right to be placed in NPS 5 and became entitled to remuneration with effect from 1.5.1979 which relief was rightly granted to him by respondent No. 2—Held: Impugned order suffers from illegality and cannot be sustained-Petition accepted. [Pp,271&272]A,B,C&D Mrs. Fakhrun Nisa, Advocate for Petitioner Memo for Respodents 1 and 2 Ch. Muhanvnald Shafiq, Advocate for Respondents 3&4 Date of hearing: 43.1991 judgment In this Constitutional petition the petitioner has called in question the order dated 26.4.1989 passed by the Punjab Labour Appellate Tribunal, Lahore, whereby the appeal filed by the respondent No. 3 against the order dated 28.2.1989 passed by the Presiding Officer of the Punjab Labour Court No. 9, Multan has been accepted. 2. The facts giving rise to this Constitutional petition shortly stated are that the petitioner filed petition under Section 25-A of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court No. 9, Multan alleging that he was appointed as Clock Winder in Grade-I. On the introudction of NPS scales the employees falling in his class were placed in NPS-5 which right was denied to him, therefore, a prayer was made that he be placed in NPS-5 with effect from 1972 and be paid the pay accordingly including the arrears of pay. This petition was contested by respondent No, 3. 3. The question of placing the petitioner in NPS-5 was dependent on the question whether as Clock Winder in Grade-I he was skilled staff. The petitioner when appeared as his own witness stated that his duty was to maintain and repair the Clocks and that it was a skilled job. He also stated that he had been repairing and maintaining the clocks being run on electricity. The respondent-Railways examined Rashid Ahmad, the Head Clerk as RW.I who in his cross-examination admitted that the Clock Winder is skilled staff. On the other hand Railways produced evidence in its effort to show that the only Clock Winders in Grade-II were skilled staff and not the Clock Winder in Grade-I. 4. The learned Presiding Officer of the Punjab Labour Court No. 9 after thorough, careful and elaborate appraisal of evidence as also the Pakistan Railways Personnel Manual Volume-I recorded a finding that the petitioner was a skilled staff, therefore, according to the decision of Railways as contained in Ex.R.l/A the posts of Skilled Staff in NSP 3,4 and 5 having been abolished and treated in NPS-5, the petitioner was entitled to be placed in NPS-5 with effect from 1.5.1979 and entitled to pay accordingly alongwith the arrears. The petition moved by the petitioned was accepted through order dated 28.2.1989. This order was assailed in appeal by the Divisional Superintendent Pakistan Railways, Multan / respondent No. 3 before the Punjab Labour Appellate Tribunal Lahore which has been accepted through order dated 26.4.1989. It has been held that the petitioner had not brought on record any duty roster to show that the repair of Clocks was included in his duties and that he had been actually repairing the clocks, as such, it was presumed that his duty was only to wind the clocks which did not require any skill though repairing of clock and watch required skilled (Staff). On this account the petitioner was held to be not entitled to be placed in NPS-5. 5. I have examined the reasonings given by the Punjab Labour Appellate Tribunal and find that the same are based on mis-reading of the evidence as also conjectures and surmises. As observed above the petitioner when examined as his own witness categorically stated that his job was to repair clocks and he had been doing so. There was no evidence produced by the Railways to rebut the said assertion which was brought on the record through the evidence of the petitioner himself. Even RW.I produced by the Railways admitted that the petitioner was a skilled staff. The finding that the winding did not require any skill is also based on conjectures and surmises. 6. Learned counsel for respondent No. 3 failed to satisfy me that the findings of the Punjab Labour Appellate Tribunal are based on evidence. The statement of RW.I has been ignored by saying that the said witness could not declare the petitioner as skilled staff. It was not the question of declaring by RW.I but an admission which must have been made keeping in view by the witness the actual duties to be performed by the petitioner i.e., repair of clocks etc. The learned Presiding Officer of the Punjab Labour Court based his finding on the evidence as also the Manual which have not been duly considered by the Punjab Labour Appellate Tribunal. The logical bases on which the Presiding Officer of the Punjab Labour Court decided the case have not been dealt with by the Punjab Labour Appellate Tribunal. 7. Learned counsel for respondent No. 3 submitted that the petitioner was appointed as Clock Winder in Grade-I which automatically meant that he was not skilled staff as the Clock Winders appointed in Grade-II were skilled staff. There is no basis for advancing this argument because in Ex. R.I/A it has been mentioned that the posts of skilled staff in RNSP 3,4 and 5 had been abolished and they had been placed in NPS-5. When questioned learned counsel for respondent No. 3 admitted that as a Clock Winder in Grade-I the petitioner was placed in RNSP-3. It appears from Ex.R-l/A that there was skilled staff in Grade 3,4 and 5 which were abolished and that skilled staff was brought in Grade-5 which shows that merely because the petitioner fell in RNSP 3 as Clock Winder in Grade-I as such he could not be treated to be skilled staff. The argument is, therefore, repelled. 8. Learned counsel for respondent No. 3 faintly argued that the appointment/promotion as Clock Winder in Grade-II which is in NSP-5 could not be claimed as a matter of right as the promotion to the said grade was to be made on the basis of determination of fitness of the person by the authorities. This argument too has no substance inasmuch as according to the decision as contained in Ex.R-l/A the posts of Skilled Staff in RNSP 3,4 and 5 were abolished and they were brought in NPS-5, therefore, it is a case where the petitioner had become entitled as a matter of right to be placed in NPS-5 and became entitled to remuneration accordingly with effect from 1.5.1979 which relief was rightly granted to him by the Punjab Labour Court. The order passed by the Punjab Labour Appellate Tribunal dated 26.4.1989 for the foregoing reasons suffers from illegality and cannot be sustained, as the same has been rendered as without lawful authority. 9. This writ petition is accepted. The order dated 26.4.1989 passed by the Punjab Labour Appellate Tribunal is hereby declared to have been passed without lawful authority and of no legal effect and quashed. There will be no order as to costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1991 Lahore 272 [Rahawalpur Bench] PLJ 1991 Lahore 272 [Rahawalpur Bench] Present: mian allah nawaz, J. IQBAL MUHAMMAD KHAN-Petitioner versus SETTLEMENT COMMISSIONER, BAHAWALPUR DIVISION and another- Respondents Writ Petition No.47-R of 1977, dismissed on 27.3.1991. Settlement and Rehabilitation Matters- —Evacuee land-Allotment of--Challenge to-Whether Settlement Authorities have power to examine as to whether original owner had migrated to Pakistan or not-Question of-Genuineness of claim is not disputed-Petitioner placed entire reliance on affidavit of one Ellahi Bakhsh stating that Noor Din (original owner) was in India—Held: Settlement Authorities were not competent to examine question of migration of Noor Din to Pakistan—Held further: Confirmation in favour of respondent has attained finality. [Pp.275&276]A,B&C 1983 SCMR 1252 rel. Mr. M.M.Bhatli, Advocate for Petitioner. Ch. Abdus Saltar and Ch. M. Ashraf Akhtar, Advocates for Respondents. Date of hearing: 26.3.1991. judgment The validity of the order of the Settlement Commissioner dated 8.12.1976 is called in question in this constitution petiton. 2. A few facts necessary for the disposal of this petition are; that one Noor Dm migrated from Bekanair. His claim bearing No.6228 was issued to one Siraj Din acting as an attorney of .\/sf. Hajran. This happened on 27.11.1956. After the demise of Noor Din. mutation of inheritance was attested in favour of Myf. Hajran i herein respondent), who was recorded to be daughter of Mrt.Jewni--the real sister of Noor Din-right holder. 3. By means of RL.II No.155 the agricultural and measuring 128 kanals in Chak No.94/P, Tehsil Rahimyarkhan was confirmed in lieu of this claim. It was on ".3.1961 when Ham Din and others lodged information against allotment in favour of a/j;. Rashida Bibi, Mst. Sakina Bibi and 16 others to the Deputy Rehabilitation Commissioner. Rahimyar Khan. A complaint was also given to the Director Enforcement for taking action against Sultan Ahmed and others. The Deputy Settlement Commissioner (Land), Rahimyarkhan in pursuance of this information passed order dated 18.5.1962, by which, he cancelled confirmation in favour of Noor Din. Mst. Hajran unsuccessfully challenged this order before the Stattlement Commissioner by filing appeal which was dismissed on 24.7.1964. Feeling aggrieved., Mst. Hajran impeached these orders by filing constitution petition, which was accepted by the learned Single Judge of the High Court by means of order dated 29.11.1973. The case was remanded to the Settlement Commissioner, Bahawalpur to decide the appeal of Mst. Hajran afresh, in accordance with law. In pursuance of this order, the Settlement Commissioner accepted the appeal of Mst. Hajran and set aside the order of the Deputy Settlement/Rehabilitation Commissioner dated 18.5.1962. 4. In disputing the correctness/legality of the aforesaid order, learned counsel for the petitioner raised following points:- (/) It was submitted that on Ellahi Bakhsh son of Nathu stated in his affidavit dated 18.8.1961 that he was the nephew of Noor Din; that Noor Din was stiil alive in India; that Mst. Jewani was not the sister of Noor Din. On the basis of these facts, it was argued that the confirmation in favour of Noor Din and the mutation of inheritance in favour of Mst. Hajran was incorrect, illegal and merited to be set aside. (ii) Even if it is assumed that Noor Din had come to Pakistan, it was clear that Ellahi Bakhsh was his nephew and Msl. Hajran was entitled only to the extent of share of Mst. Jewani and that the rest of the share would revert to compensation pool which must be allotted to Iqbal Khan informer who was the owner of un-satisfied claim. (in) That Msl. Hajran had filed claim which was not verified by the Central Record Room. On the basis of these facts it was contended that confirmation in favour of Noor Din and mutation of inheritance in favour of Mst. Hajran was thorougly illegal and the respondent could not be permitted to retain ill-gotten claims in lieu of fake claim of Noor Din. Reliance was placed on Mst. Bhano and another Vs. Mian A.M. Saeed and others (1969 SCMR 299). Begiim Shamsu-wi-Nisa Vs. Said Akbar Abbasia and another (PLD 1982 S.C. 413), Umar Din Vs. Syed Muhammad Abdul Aziz Sharqi and others (PLD 1985 S.C. 265), Sheikh Muhammad Amin Vs. Chief Settlement Commissioner Pakistan Lahore and another (1987 SCMR 56). 5. On the contrary, learned counsel for the respondent raised following points in reply:- (/') It was contended that Iqbal Ahmed Khan was not informer. He did not lodge any application under Section 10/11 of the Displaced Persons (Land Settlement) Act XLVII of 1958) before 1st of July, 1974 when the Displaced Persons (Land Settlement) Act (XLVII of 1958) was repealed under Evacuee Properties and Displaced Persons Laws Repeal Act, 1975 (hereinafter referred to as the Act (XIV of 1975). According to the learned counsel, in view of aforesaid fact, the petitioner had no locus standi to invoke the constitutional jurisdiction of this Court. Secondly, it was argued that the contention of the petitioner was to the effect that Noor Din was still in India, had not migrated to Pakistan and so was not right-holder. No objection was taken with respect to genuineness of the claim. It was argued that this controvesy was wholly outside the jurisdiction of the Settlement Authorities under Section 10/11 of the Displaced Persons (Land Settlement) Act (XIV of 1975) (hereinafter referred to as the Act). Reliance was placed on Chief Settlement Commissioner, Lahore Vs. Raja Muhammad Fazil Klian and others (PLD 1975 S.C. 331) and Muhammad Yaqoob KJian and others Vs. NazarKJian and others (1983 SCMR 1252). (ii). It was lastly contended that even otherwise on merit there was no substance/material/evidence produced by the petitioner demonstrating that Noor Din had not come to Pakistan; that Mst. Jewani was not his sister. Reliance was placed only on the affidavit of Ellahi Bakhsh before the Magistrate. Neither Ellahi Bakhsh was produced before Deputy Settlement Commissioner nor he was produced before the Settlement Commissioner. 6. I have heard the learned counsel for the parties at length and have gone through the record with their help. The following points emerge for consideration from the contentions of the parties:- (/) Whether the Settlement Authorities under Section 10/11 of the Act have power to examine the question as to "whether Noor Din had migrated from India to Pakistan as a refugee and allotment obtained in lieu of his claim was valid or not. (//) Whether the order of the Settlement Commissioner was open to excepton regarding his finding that the informer had failed to establish that Noor Din had not come to Pakistan and that the confirmation in favour of the respondent was null and void. (7/7) Whether Mst. Hajran was only entitled to the confirmation to the extent of right of Mst. Jewani—being sister of Noor Din and the remaining land in dispute was the part of compensation pool and was capable of allotment to the petitioner. 8. Having set down the facts, the points of the parties and the finding of the Settlement Commissioner, I herein proceed to determine these contentions. As already noted above, the genuineness of the claim was neither disputed before the subordinate authorities nor before this Court. The only question raised was that Noor Din had not come to Pakistan and so confirmation obtained in lieu of his claim 1! .a> null and void. Similar question came up for consideration in Mwumriad Ynqoob and others Vs. NazarKlian and otiiers. (1983 SCMR 1252). In this case the point raised before the Settlement Commissioner in information application was that Jaurey Khan—the original right holder had not come to Pakistan . This point was repelled by the Supreme Court in following words:- "After hearing the learned counsel at length, however, we find no force in any of the contention. The findings arrived at by the learned Judge in the Hish Court are supported by the decision.of this Court in Officer on Social Duty Vs. Bashir Ahmad (1977 SCMR 208) which has been referred to and relied upon. We further feel that the case advanced before the Settlement Commissioner in the application under Section 10 and 11 of the Displaced Persons (Land Settlement) Act being that Jaurey Khan had died in India would seem to relate to the registration of the claim under the Registration of Claims (Displaced) Persons Act, 1956 and consequently the Settlement Authorities would be incompetent to deal with the question of fraud committed upon the officers of the claims organisation, under sections 10 and 11 of the Displaced Persons (Land Settlement) Act. In the cicumstances and for reasons assigned by the High Court, there attached no finality to the findings recorded by the Settlement Commissioner in his order dated 19.9.1975 so as to oust the constitutional jurisdiction." 9. It is apparent from the record that the facts of the case are not much in dispute. The genuineness of the claim of Noor Din is not contested. The petitioner had not produced any evidence before the Deputy Settlement/Rehabilitation A Commissioner. He did not produce any evidence before the Settlement Commissioner. The entire reliance was placed upon the affidavit of one Ellahi Bakhsh who stated in the affidavit sworn before the Magistrate, 1st Class, Rahimyarkhan On 18.8.1964 to the effect that Noor Din was in India and was in possession of his land and that he has no sister named Mst. Jewani. 10. Seen from the afore-noted background, I have no difficulty in coming to the conclusion that the Settlement Authorities were not competent to examine that Noor Din had not come to Pakistan and so confirmation obtained in lieu of his claim was illegal. This point entirely lay within the domain of claim organisation. 11. Having disposed of the first two questions, I proceed to examine the third one. The reliance was placed by the learned counsel for the petitioner on the statement of Ellahi Bakhsh. It is quite clear that Ellahi Bakhsh neither appeared before the Deputy Settlement Commissioner nor before the Settlement Commissioner. His statement was not recorded in the presence of the parties. The respondent had no opportunity to cross-examine the said witness. No doubt the proceedings under Section 10 and 11 of the Act are not judicial in nature yet they are quasi judicial in nature. It is a settled principle of law that in such proceedings the elementary principle of natural justice must be observed. I have, therefore, no doubt in my mind that the Settlement Commissioner was completely justified in not placing the reliance upon such affidavit. Therefore, the contention of the learned counsel for the petitioner is found to be without any merit on this question. 12. Even otherwise the petitioner has failed to establish that he lodged an information under Section 10 and 11 of the Act before the Deputy Settlement Commissioner before 1st of July, 1974. In result, confirmation in favour of the respondent has attained finality and is immune from such attacks. 13. In the light of fore-going analysis, I do not find any merit in this petition which is dismissed. There shall be no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 276 PLJ 1991 Lahore 276 [ Bahawalpur Bench] Present: muiiammad munir khan, J. MUHAMMAD BASHIR AHMAD-Petitioner versus SAEED AHMAD and 8 others-Respondents Civil Revision No.66/BWP of 1991, dismissed on 8.4.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX Rr. 1&2 read with Section 151-Temporary injunction-Refusal of- -Challenge to-Concurrent finding of lower courts that one of essentials for grant of temporary injunction, i.e. prima facie case, does not exist in favour of etitioner—Courts below have appreciatd question of grant/refusal of temporary injunction in accordance with guidelines laid down by superior courts-Held: No case is made out for interference in exercise of revisional powers with well reasoned orders—Petition dismissed. [P.277JA Mr. MA Relvnan Qureshi, Advocate for Petitioner. Date of hearing: 8.4.1991. order On 16.10.1988, Muhammad Bashir Ahmad, petitioner filed a suit for declaration to the effect that he was the owner in possession of the disputed property and sale deed dated 5.3.1988 in favour of respondent No.l executed by Mst. Haleema, respondent No.6, the mother of the petitioner and also of respondent No.l, was illegal void and ineffective upon his rights. Along with the suit -he filed an application for temporary injunction restraining the respondents from interfering in the possession ot the disputed property and also from alienating the same. 2. The learned Civil Judge, Rahimyar Khan, dismissed the application on 15.5.1989. The appeal filed by the petitioner against the order of the trial Court was dismissed by the learned District Ju Jge, Rahimyar Khan on 19.2.1991. Hence this revision. 3. Learned counsel for the petitioner submits that the petitioner was/is in possession of the disputed property; that the sale deed was executed malafide in order to deprive the legal heirs of their shares; that the trial Court has wrongly declared respondent No.l as bonafide purchaser of the property; that the balance of convenience lies in favour of the petitionr; that in case further alienating of the property, the petitioner will suffer irreparable loss. 4. I have considered the matter carefully. I find that both the Courts below after applying their conscious minds have concurrently found that one of the essentials for the grant of temporary injunction i.e.piima facie case, does not exist in favour of the petitioner. This being the position, the Courts below could not have granted temporary injunction in favour of the petitioner merely on the strength of his possession on the disputed property. It is well settled that before temporary injunction under Order 39 of Rules 1 and 2 under section 151 CPC is granted, the Courts have to see as to whether or not the three essentials for grant of temporary injunction i.e. prima facie case, balance of convenience, and irreparable loss do exist in favour of the petitioner. If une of the essentials is found missing then the Court would be justified in declining the prayer for the grant of temporary injunction. The petitioner has challenged the transaction of sale and the sale deed executed by his real mother m favour of her another son. The petitioner cannot claim injunction for restraining further alienation of the properly, as a matter of right. The impugned orders are neither illegal nor perverse. I do not see any legal infirmity in the impugned orders. The Courts below have appreciated the question of grant/refusal of temporary injunction in accordance with the guidelines laid down by the superior Courts. The submissions made by the learned counsel do not make out a case for interference in exercise of the revisional powers of this Court with the well reasoned orders. 5. For what has been stated above, this petition is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 278 PLJ 1991 Lahore 278 [Buhawalpur Bench] Present: MIAN ALLAH NAWAZ, J. Syed MUHAMMAD IQBAL HUSSAIN SHAH-Petitioner versus Mst. FARHAT JAHAN and 2 others-Respondents Writ Petition No.275/BWP of 1990, dismissed on 25.3.1991. Jactitation of Marriage— —Jactitation of marriage—Suit for—Decree passed in—Challenge to—Judge, Family Court was competent to examine whether Nikalmama was executed under duress and coercion-Finding of fact by two courts is based on evidence adduced by both parties-Held: There is no misreading or non-reading of evidence warranting interference in exercise of constitutional jurisdiction- Petition dismissed. [P.280]A&B PLD 1974 Lahore 78, 1979 CLC 462 and 1981 CLC 1097 rel. Sardur Najanmddin Khan, Advocate for Petitioner. Mr. M Uzair Chughtai, Advocate for Respondent. Dale of hearing: 25.3.1991. judgment On 7.1.1988 A/.v/. Farhat .lehan instituted a suit for jactitation of marriage in the court of Senior Civil Judge, Bahawalpur with the powers of Judge Family Court. It was alleged therein that she was abducted by Syed Iqbal Hussain Shah alongwith his accomplices, that she was recovered by the Police on 27.9.1987; that when she was with Syed Iqbal Hussain Shah, she was coerced to affix her thumb impression on certain documents which were changed into nikah nama. It was further alleged that the aforesaid instrument of nikah was prepared under duress, was without any lawful authority and that the respondent be restrained from calling her, his wife. 2. The suit was resisted. It was pleaded in written statement that the plaintiff was siti-jitris] that she had contracted nikah with her own free will; that she had made statement before the Magistrate as well as before the High Court without any pressure and coercion and contracted marriage of her own accord. Iqbal Hussain Shah (herein respondent) also filed a suit for the restitution of conjugal rights in the Court of Family Judge, Vchari. The aforesaid suit was transferred to the Court of Family Judge, Bahawalpur. Both the suits were consolidated and on the pleadings of the parties, following issues were framed:- I. Whether the plaintiff is entitled to a decree for jactitation of marriage? 2. Whether the thumb-impression and signatures of the plaintiff were obtained by coercion on the Nikah-namal 3. Whether the consent of the plaintiff of (?) Nikah Nama was not free? 4. Whether the plaintiff was abducted by the defendant and his companions? 5. Whether the defendant is entitled to get a decree for restitution of conjugal rights? 6. Relief. 3. The parties led their evidence. Upon the consideration of the evidence, adduced by the parties the learned Judge Family Court, Bahawalpur by judgment and decree dated 4.6.1989 decreed the suit for the jactitation of marriage and also dismissed the suit for the restitution of conjugal rights by coming to the conclusion that the nikah-nama was executed under coercion and duress. 4. Feeling aggrieved by this judgment, Syed Iqbal Hussain Shah filed appeal which was dismissed by the learned Additional District Judge, Bahawalpur by means of judgment and decree dated 22.1.1991. 5. Learned counsel appearing on behalf of the petitioner raised following points:- (/) It was contended that the Family Court under Section 5 of the West Pakistan Family Courts Act, (XXXV of 1964) was not competent to decide a suit pertaining to the plea of declaration to the effect that nikah nama registered under the provisions of Muslim Family Laws Ordinance (VIII of 1961) was under duress and coercion. The Family Court was only competent to decide the suit for jactitation of marriage. In the present case the suit was filed for seeking declaration regarding instrument of nikah duly registered under the provisions of Muslim Family Laws Ordinance, 1961. Reliance was placed on Nazar Qasim Vs. Mst. Shaista Paivecn (1979 CLC 462) and Malla Vs. Msl. Jawai etc . (1981 CLC 1097). (//) It was next contended that under section 23 of the West Pakistan Family Courts Act, 1964, the validity of marriages registered under the Muslim Family Laws Ordinance, 1961 cannot be questioned before the Family Court. No other point was urged. 6. On the other hand, learned counsel appearing on behalf of the respondent supported the impugned decision on merits. It was contended that both the Courts below have recorded the finding on the relevant issues after taking into consideration the necessary evidence. 7. I have heard the arguments of the learned counsel for the parties at length and after carefully taking into consideration the points made by the petitioner, I am clear in my mind that the contentions of the petitioner arc without any force. It is apparent from the statement of Mst. Farhat Jehan that she was abducted by the use of force; that her thumb impression was got affixed by force. She was subjected to a lengthy cross-examination and she firmly denied having consented to the nikah with the present petitioner. Iqbal Hussain Shah admitted in cross-examination that the case under the provisions of offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) was pending adjudication against him; that he was on bail. In the context of aforesaid circumstances both the Courts below came to the conclusion that the nikah nama was obtained under duress. The only point calling for determination is "whether the Judge Family Court was competent to decide the suit". This point came up for consideration in Mst. Amina Begiim Vs. Glntlam Nabi and 2 others (PLD 1974 Lahore 78). After taking into consideration the dictionary meaning of word "Jactitation of marriage" and the relevant provisions of the West Pakistan Family Courts Act, his Lordship Mr. Justice Aftab Hussain as he then was, laid down:- "The object of the Act is to give exclusive jurisdiction to the Family Courts in all matters relating to marriage. A suit for affirmative declaration about existence or subsistence of marriage is as much a suit relating to marriage as a suit for the negative declaration. The wider meaning of the expression "Jactitation of marriage" will, therefore, advance the object of the Act. On principle also there appears to be no difference between a case where the party aggrieved against the false claim comes to the Court first or the other party invokes the jurisdiction of the Court. I do not see any reason why suit for jactitation of marriage will not include a suit for declaration by a person falsely posing that he is the spouse of the defendant. In my view any declaration as to the status where one party alleges marriage and the other denies, it will amount to a decree for jactitation of marriage". This view was followed in Nazar Qasim Vs. Mst. Shaista Parveen (1979 CLC 462) and Malta Vs. A/5/. Jawai etc. (19181 CLC 1097). 8. The next question "as to whether Section 23 was a bar to adjudication of validity of a marriage registered under the provisions of Muslim Family Laws Ordinance, (VIII of 1961)", was answered in Nazar Qasim Vs. Mst. Shaista Parveen (1979 CLC 462) and Malla Vs. Mst. Jawai etc. (1981 CLC 1097), wherein it was held that the dispute relating to false marriage lay wholly within the jurisdiction of Family Court and Section 23 of the West Pakistan Family Courts Act was not a bar to such suit. 9. I am in respectful agreement with the view taken in the aforenoted authorities. Applying the ratio laid down in the aforesaid cases to the facts of the case, it is quite clear that the Judge Family Court was competent to examine as to whether the instrument of nikah said to have been executed in favour of present petitioner was under duress and coercion; that the Judge Family Court as well as first appellate Court have rendered the finding on the basis of evidence adduced by both the parites. This conclusion of fact is not open to exception in constitutional jurisdiction unless and until it is shown to have been vitiated by mis­ reading or non-reading of evidence or in excess of authority. No such circumstances were pointed out by the learned counsel for the petitioner warranting interference in exercise of Constitutional jurisdiction. 10. For the reasons slated above, I do not find any merit in this petition 2) which is dismissed. The petitioner shall bear the costs of proceedings in this Court. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 281 PLJ 1991 Lahore 281 [Bahawalpur Bench] Present: MUIIAMMAD MUNIRKIIAN, J. GHULAM HAIDER-Petitioner versus S.H.O. POLICE STATION QAIMPUR, DISTRICT BAHAWALPUR and 2 others-Respondents Writ Petition No.210/BWP of 1991, accepted on 13.3.1991. Registration of Case-- —Police officials raiding house of petitioner and taking away valuable goods and motor cycle-They did not make any report at Police Station Qaimpur about their arrival or intended raid-No departure report was made—Seizure of property was not reported to Ilaqa Magistrate nor any search warrants were obtained-No respectable person of locality was associated with raid—Held: Under fanciful colour of their authority as police officers, respondents have committed robbery—Case ordered to be registered. • [P.282JA.B&C Piiiada Muliaininad Afzal Nizami, Advocate for Petitioner. Respondents 1 to 3 in person. Date of hearing: 13.3.1991. order Through this constitutional petition, Ghulam Haider seeks direction to S.H.O., Police Station Qaimpur, Tehsil Hasilpur, District Bahawalpur, for the registration of case against Ateeq Butt S.I. and Sycd Muntazir Shah Moharrir, Respondents No.2 and 3. 2. The learned counsel for the petitioner submits that on 1-3-1991, respondents No.2 and 3 alongwilh 14/15 constables trespassed in the house of Ghulam Haider, petitioner, caught hold of him, his mother, his wife and other women present in the house, broke the locks of the room and forcibly took away house articles, Rs.15600/- of the petitioner and his motor cycle and also tortured them. 3. Muhammad Ateeq Butt and Syed Mutazir Shah, respondents No.2 and 3, have voluntarily appeared although they were not sumoned and only S.H.O., Police Station Qaimpur, was summoned for today. Ateeq Butt S.I./respondent stated that the close relatives of Ghulam Haider petitioner were required in criminal cases, so he raided the house of the petitioner situate within the limits of Police Station Qaimpur and took away various articles including bed-sheets, Rs.12,000/- and motor cycle of the petitioner as suspected stolen property. 4. After hearing the S.H.O., Police Station Qaimpur, respondent No.l, and the other respondents, namely, Ateeq Butt, S.I. and Syed Muntazir Shah Moharrir, I find that the entire action taken by respondents No.2 and 3 was illegal inasmuch as they did not make any report at Police Station Qaimpur, with regard to their arrival or intended raid on the house of Ghulam Haider petitioner. They did not associate with them any police official of the Police Station Qaimpur. Except the clothes, which the persons present in the house were wearing, they took away all articles including clothes, bed-sheets, cash and motor cycle of the petitioner on the pretext of stolen property. They did not make any departure A report at the Police Station. They did not report the seizure of the property to the Ilaqa Magistrate. Their entry into the house and search thereof was also quite illegal. They did not comply with the mandatory provisions of section 165 Cr.P.C. They did not obtain search warrants from the Ilaqa Magistrate and also did not record any reason in the police file for not obtaining the search warrants. No respectable person of the locality was associated with the raid on the house of the petitioner. They did not send the copy of the record made under sub-section (1) of section 165 Cr.P.C. to the Magistrate. They did not furnish the list of the property removed by them from the house of the petitioner. 1 feel that under the fanciful colour of their authority as Police Officers, the respondents have committed robbery. 5. In this view of the matter, there can be no two opinions that Ateeq Butt S.I., Incharge Police Post Karampur and Syed Muntazir Shah Moharrir, Police g Post Karampur, Tehsil Mailsi, have committed the offences under sections 452, 392, 342 and 351 PPC. It is also a clear cut case of the mis-use of the provisions of section 550 Cr.P.C. 6. The Superintendent of Police, Bahawalpur, will immediately get a case registered under these sections against Ateeq Butt S.I. and Syed Muntazir Shah, Moharrir, respondents No.2 and 3, at Police Station Qaimpur, on the basis of complaint mark "A". He will depute responsible officer not below the rank of D.S.P. to investigate the case. The D.S.P. so appointed will report the progress of the case to the Addl. Registrar of Bahawalpur Bench, Bahawalpur, within two weeks. 7. Instead of depositing the property seized by them from the house of Ghulam Haider petitioner in the Court of Ilaqa Magistrate, the respondents took way the same to Karampur, Tehsil Mailsi. Ateeq Butt S.I., respondent No.l, is present in Court. He is directed to bring back the property seized by him on 1-3- 1991 from the house of Ghulam Haider and deposit the same with Ilaqa Magistrate, Hasilpur, within three days from today, otherwise serious view of the matter will be taken. 7. With the aforesaid observations and directions, the writ petition is disposed of. 8. Copy of this order be sent to S.P.Vehari, for information and action, which he deems fit. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 283 PLJ 1991 Lahore 283 Present: MALIK MUI1AMMAD QAYYUM, J. FARIDA KHANUM-Petitioner versus MAOBUL ILAHI and two others-Respondents Writ Petition No.1206 of 1990 (also W.P Nos 1208 & 1209 of 1990) accepted on 20.3.1991. Khula— ---Dissolution of marriage-Compensation for Ww/0--Whether rightly directed- Qucstion of--Petitioncr was found entitled to dissolution of marriage on grounds of cruelty and misappropriation of dowry articles also--Wife can only be asked to compensate husband in case of dissolution on basis of khula—It is well settled that in absence of any specific demand by husband in written statement and statement before court, wife cannot be directed to pay compensation for kliula~HM: Both courts below acted in excess of their jurisdiction in directing petitioner to pay compensation for khula— Petition accepted. [Pp.284&285]A,B&C 1988 CLC 2355 and 1984 PSC 289 ret. Mr. Sher Zainan KJwn, Advocate for Petitioner. Mr. Abdus Satlar Khan Rajput, Advocate for Respondent No.l. Date of hearing: 20.3.1991. JUDGMENT This judgment shall dispose of Writ Petitions No.1206,1208 and 1209 of 1990 which are directed against the same judgment and the decree of the Addl. District Judge Sargodha. 2. Mst. Fardia Khanum, petitioner in these petitions, was married to respondent No.l on llth of April, 1987 against a dower of Rs.25,000/-. It appears that the relations between ihe parlies became strained with the result that the petitioner was obliged to file three suits for the recovery of dower of Rs. 25,000/-; for mainlcnancc and for dissolution of marriage on various grounds like cruelly, misappropriation of the dowry, bad character of the respondent and Klutla. A suit was also filed by the respondent No.l for restitution of conjugal rights. By means of the judgment and decree dated 2.5.1989, the suit for dissolution of marriage filed by the pclitioner was decreed on the ground of cruelty; misappropriation of articles of dowry and khula by the Family Court. It was found that the dower was fixed at ihe lime of marriage al Rs.25000/- which had not been paid. However, while passing the decree for dissolution of marriage, it was directed that the petitioner shall not recover dower as ihe marriage was being dissolved on the ground of khula also. The same order was passed with regard lo Ihe claim of ihe pelitioner fur maintenance. The suit for restitution of conjugal rights filed by respondent No.l was dismissed. 3. This judgment and decree of the Family Court was challenged by the petitioner by filing three separate appeals which were dismissed by the Add. District Judge on 10th of October, 1989. Hence this petition. 4. Mr. Sher Zaman, the learned counsel for the petitioner, in support of these petitions has contended that both the Courts below have failed to appreciate that the marriage between the parties was dissolved not only on the ground of khula but also on the findings that respondent No.l had been treating the petitioner with habitual cruelty and had deprived her of articles of dowry. The learned counsel submitted that in the event where the marriage is dissolved not on the ground of Kliula alone, but also on other grounds, the wife cannot be directed to forego dower and maintenance. It was further argued by Mr. Sher Zaman Advocate that neither in the written statement nor in his statement as a witness respondent No.l claimed any consideration for dissolution of marriage on the ground of khula and as such the Courts below have acted in excess of jurisdiction by directing the relinquishment of dower and maintenance as a consideration for khula. 5. Mr. Abdul Satlar Rajput, the learned counsel appearing on behalf of respondent No.l has supported the decrees of the Courts below. 6. There is much force in the contentions raised by the learned counsel for the petitioner. According to the judgment of the Family Court itself, the petitioner was found entitled to dissolution of marriage on the grounds of cruelty and misappropriation of the articles of dowry which are grounds recognized by the Dissolution of Muslim Marriages Act, 1939 independently of khula. If the petitioner had succeeded in establishing these two grounds there was no occasion for the Family Court to have directed the petitioner to forego her claim for dower and maintenance. The distinction between the dissolution of marriage due to cruelty, misappropriation of dowry non-maintenance of wife and separation on account of khula is too obvious to need any comment. In the first case the dissolution results from acts of commission or omission on the part of the husband while in the case of khula, the wife is allowed to separate and free herself (from) the bonds of matrimony, as it is impossible for the parties to live together as husband and wife, within the limits prescribed by God. It is only in these cases that the wife can be asked to compensate the husband. This view (finds) support from a judgment of this Court in Iflikhar Ahmad Vs. Hussan Pan and others (1988 CLC 2355), and of the Supreme Court in Habib-iir-Rehman Versus Add. District Judge, Liu; etc. (1984 PSC 289). 7. The other contention raised by the learned counsel for the petitioner is equally forceful. The law is well settled that in the absence of any specific demand by the husband in the written statement and his statement before the Court for payment of consideration, the wife cannot be directed to pay compensation for khula. It is thus obvious that both the Courts acted in excess of their jurisdiction in directing the petitioner to pay compensation for khula. It is thus obvious that both the Courts acted in excess of their jurisdiction in directing the petitioner to forego maintenance and dower. In view of what has been staled above these petitions succeed and are accepted, the imposition of condition regarding the relinquishment of dower and the maintenance is declared to be without lawful authority and of no legal effect with ihe result that all the suits filed by the petitioner stand decreed with no order as to costs. ' (MBC) (Approved for reporting) Petition accepted

PLJ 1991 Lahore 285 PLJ 1991 Lahore 285 Present: ihsanul HAQ CllAUDHRY, J MUHAMMAD FAROOQ ASGHAR-Petitioner versus FEDERATION OF PAKISTAN, THROUGH SECRETARY, INTERIOR, and 4 others-Respondents Writ Petition No.7207 of 1990 (also other writ petitions) dismissed on 5.3.1991. (i).Arms Ordinance, 1965 (W.P. Ord. XX of 1965)-- —S.12—Arms of prohibited bore—Licenses of—Cancellation of— Challenge to— Contention that it is policy decision which could not be taken by a care-taker Government-Argument is that care-taker Government was appointed only to hold elections and conduct day to day business-Held: There is no force in this argument in view of Full Bench decision of High Court—Petitions dismissed. [P.292]C PLJ 1991 Lahore 1(FB) rcl. (ii) Arms Ordinance, 1965 (W.P. Ord. XX of 1965)- —S.12-Arms of prohibited bore-Licenses of-Cancellation of-Challenge to- Contention that there was no objective satisfaction—It is proved that licenses were issued wrecklessly—Even persons who were not interested and did not make applications, sanction was accorded to them-Held: Government, after fully analysing situation, decided to cancel licenses. [P.290JB (iii) Natural Justice-- —Arms of prohibited bore—Licenses of—Cancellation of—Challenge to— Whether principles of natural justice have been violated-Question of-Even particulars of licensees were not available and none else but licensees are responsible for this mess—Held: Neither there is a provision in Section 12-B of Arms Ordinance for granting hearing before ordering cancellation nor it was possible. [P.290]A PLJ 1988 SC 504 rel. Mr. Zafar Iqbal Bajwa, Advocate for Petitioner. SyedAfzal Haider, Advocate for Petitioner (in another WP). Mr. Maqbool Ilahi Malik, Advocate General with Mr. Farooq Bedar and Rana Muhammad Arshad, Addl A.Gs. for Respondents 2 to 5. Mr. Faqir Muhammad Khokhar, Deputy Attorney General for Respondent No.l. Dales of hearing: 16,17,19,24-2-1991 and 5-3-1991. judgment These are Constitutional petitions against order of Federal Government appearing in the Government gazette notification dated 22.8.1990, through which all the licences of the prohibited bore and automatic weapons issued during the period from 1.12.1988 to 22.8.1990 were cancelled. Since in all these writ petitions common questions of law and fact are involved, therefore, it was decided to hear all the petitions together. The learned counsel appearing on behalf of the different petitioners argued that the impugned order is illegal, without jurisdiction and liable to be set-aside for the following reasons:- Firstly, that the petitioners have been condemned unheard. Neither they were served with any show cause notice nor they •vere heard before the order of cancellation of their licences was issued. In this behalf, the learned counsel for the petitioners have referred to the case of Ali Haider v. Ijaz Hussain Malik and another (1989 M.L.D. 3032); Secondly, that the order should have been based on objective satisfaction based on facts but in this case no objective assessment was made; Thirdly, that the licences could only be cancelled on the grounds specified in Section 12 of the Arms Ordinance and not otherwise. In this behalf, they have relied on judgments in the case of Tlte Province of East Pakistan and others v. Abdul Karim and others (PLD 1959 S.C. 246), Messrs Farid Sons Ltd. Karachi and others v. Government of Pakistan, through its Secretary, Ministry of Commerce, Karachi and others (PLD 1961 S.C. 537), Saiyyid Abul A'la Maudoodi etc. v. Tlie Government of West Pakistan and others (PLD 1964 S.C. 673), All Haider v. Ijaz Hussain Malik and others (1968 P.Cr. L J 127), Rokhanuddin v. Commissioner, Peshawar Division, Peshawar and another (1970 P. Cr. L J 647), Superintendent of Police, Special-Branch Karachi and others v. Abubakar and another (1972 S.C.M.R. 154), Qasim v. Commissioner, Sukkur Division and others (1989 P. Cr. L J 1989) and Ghulam Abbas v. Federal Government, Ministry of Interior and others (1989 P. Cr. L J 1936); Fourthly, it was argued by Sycd Afzal Haider, Advocate alone that the care-taker Government was competent only to perform day to day functions and it was not within its competency to take policy decisions like the cancellation of Arms' licences; Fifthly, that the order is discriminatory as much as licences of some categories of citizens have been left untouched; Sixthly, that the grant of licences is discretion of the Government but once it is granted then it becomes a vested right and enjoyable as property. In this behalf, the learned counsel have referred to the cases of Ch.Ghulam AH v. Commissioner, Lahore Division, Lahore (PLD 1981 Lahore 368) and Jumma Khan v. Province ofSind and 3 others (PLD 1981 Karachi 311); Lastly, it was argued, that the action could only be taken by the Provincial Government and not Federal Government. 2. On the other hand, the learned Advocate-General, Punjab argued that the principles of natural justice are not attracted in this controversy for the reasons that there is no mention of notice or hearing in Section 12-B, notification impugned in the petitions will be deemed as a notice, the issuance of a notification is an act of subordinate legislation, therefore, question of hearing does not arise and that it is not possible to grant hearing when an order is passed against public at large. He, in this behalf, has referred to case of Nageshwar Prasad Singh . State of Bihar and others (A.I.R. 1960 Patna 359). It is added that hearing is not given when an order is promulgated. He justified the order with the argument that licences were issued by the previous Government in bulk and wrecklessly. The arguments are concluded with the submission that there is no discrimination. 3. Mr.Faqir Muhammad Khokhar, learned Deputy Attorney General appeared on behalf of the Federal Government to defend the impugned notification. He argued that the application of the principles of natural justice depends on the nature of the powers exercised and while deciding whether the principles of natural justice are applicable, nature of the statute is also to be kept in mind? In the present case neither nature of the powers nor statute admitted the application of principles of natural justice before cancelling the licences for prohibited bore. He, in this behalf, has referred to cases of District Magistrate, Lahore etc. v. Syed Raza Kazim (PLD 1961 S.C. 178), Godha Singh Jabra Singh v. District Magistrate, Fcrozepitr and another (A.I.R. 1956 Punjab 33) and Moti Miyan v. Commissioner, Indore Division Indore and others (A.I.R. 1960 Madhya Pradesh 157). He added that when the action is not against the individuals then the principles of natural justice are excluded and are not attracted. In this behalf, he referred to the judgments in the cases of Kishore Singh v. State of Rajasthan and another (A.I.R. 1954 Rajasthan 264), Vie Bihar School Examination Board v. Subhas Chandra Sinha and others (A.I.R. 1970 S.C. 1269), Madan Mohan Varma and others v. University of Calcutta and others (A.I.R. 1979 Calcutta 67), Rajkumar Agarwalla and another v. University of Calcutta (A.I.R. 1979 Calcutta 393), Rajiv Ratna Shukla and another v. University of Allahabad and others (A.I.R. 1987 Allahabad 208), 'flie Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur (A.I.R. 1980 S.C. 882), Assistant Commissioner of Urban Land Tax Madrass and others etc. v. Buckingham and Camatic Co. Ltd. (A.I.R. 1970 S.C. 169), Syed Sharif Hussain Bokhari Advocate v. Iqbal Hussain, Registrar, University of Punjab etc. (P.L.J. 1975 Lah. 110), Muhammad Siddique v. Tlie Market Committee, Tandlianwala (1983 S.C.M.R. 785), Chairman, Employees' Old-Age Benefit Institution and others v.' M. Ismail Munawar (1984 S.C.M.R. 143) and Sikandar Sadiq and others v. University of Peshawar and others (P.L.J. 1988 S.C. 504). 4. The learned Deputy Attorney General argued that there is no discrimination. It is a positive legislation and the classification is reasonable, real and on substantial basis, therefore, there is no discrimination and exception cannot be taken to the same. In this behalf, he has referred to the cases of A. Tliangal Musaliar v. M. Venkatachalan Potli, Authorised Official and Income Tax Officer and another (A.I.R. 1956 S.C. 246) Messrs Pannalal Binjraj and others v. Union of India and others (A.I.R. 1957 S.C. 397), Zia Ullah Klian and others v. Government of Punjab and others (P.L.D. 1989 Lah. 544 = PLJ 1989 Lahore 572 (DB) Brig (Retd.) F.B. Ali and another v. Tfic State (P.L.D. 1975 S.C. 506) and Fauji Foundation and-anolher v. Shamimur Rehman (P.L.D. 1983 S.C. 457). The learned Deputy Attorney General argued that the definition of 'Government' was amended and now it includes in its folds both Federal and Provincial Governments. 5. The learned Deputy Attorney General thereafter proceeded to explain with reference to the record, circumstances under which the Federal Government was compelled to take this drastic measure. He, in this behalf, has referred to following factors:- (i) That most of the applications for grant of licence are not available. In this behalf, he submitted that out of 86 writ petitioners only the applications of 33 are available. He, in support of his contention has placed on record a statement, according to which the files of petitioners appearing at serial Nos.32 to 85 are not traceable. The photo copies of available applications have been appended with this statement; (n) That almost all the applications were incomplete and none of the applications was verified by the local police or District Administration; (hi) The orders for the most part were not passed on individual applications but lists were supplied. In this'behalf, he has placed on record R.I to R.ll through which 240, 202, 225, 202, 189, 147, 249, 195, 232, 204 and 188 licences were sanctioned respectively. It is added that there were many more such orders. The submission is that neither antecedents of the applicants were verified by the local police and District Authorities nor there was any scrutiny at the time of issuance of the orders, which were passed in bulk; and (iv) That the large number of applications were mostly completed and signed by the same person. In this behalf, he has referred to list of applicants supplied by Ghulam Hussain, Councillor Ward No.43 for sanction of prohibited bore licences for 12 persons. The persual of these applications showed that only names of the applicants were given while other columns were left blank. The photo copies of the National Identity Cards were appended but the signatures of the applicants on the application forms did not tally with their signatures on the I.D. Cards. Then he referred to another file containing 44 applications. It was evident that the forms were completed and signed by one and the same person. Out of this list 13 licences were issued. The other file, which was produced by the learned Deputy Attorney General contained 60 applications, which were all incomplete. Thereafter he referred to another file, which contained licences issued at the behest of Siraj S. Shamas Din, who had supplied the list to the concerned officials for issuance of licences. The entries in all these forms were in one and the same hand. He also referred to order dated 14.12.1989, according to which 44 forms were appended with the list but the perusal of the forms showed that the same were completed on 24.5.1990. 6. It is submitted that many orders like annexure 'R.3' where the list was enclosed, the licences were issued as per order and subsequently the list was replaced and on the strength of the previous order another set of licences were issued. It is explained that for instance 225 licences were issued against order annexure 'R.3'. Thereafter the exhausted list was detached and another list appended with the order and licences issued to these persons. This of-course was the feat of the officials of the Department, who started issuing the licences misusing such type of orders. It is submitted that one Iftikhar Hussain Zaidi, a political worker was employed as O.S.D. and he was un-officially made Incharge of the Arms Section. He would send a chit alongwith the file for issuance of licence and thereafter collect the chit, file and licence. The licence will be handed over to the licensee and file will be kept with him. It is argued that it is for this reason that most of the files are not traceable in the Department. The arguments are concluded with the submission on this point that licences were indiscriminately and wrecklessly issued to the workers of ruling party. 7. The arguments of the learned Deputy Attorney General in nut-shell are that there being mal-practices at large scale, the particulars and in many cases even the application forms being not available with the concerned Ministry, there was no way except to cancel the licences and it was not possible to give hearing to the licensees. 8. I have given my anxious consideration to the arguments of the parties, gone through the record, provisions of law and precedents relied (upon by) both the sides. Now I proceed to deal with the arguments of the petitioners with reference to counter arguments of the respondents. The first argument on behalf of the petitioners is that the order could not be passed without hearing the licensees. On the other hand, the respondents argued that hearing was factually not possible for reasons that the particulars of all the licensees were not available. Even the application forms of most of the petitioners were not available. They have explained the reasons. The learned counsel for the petitioners on the point of hearing placed reliance on the cases of Ali Haider and Rokhanuddin but the same are not relevant because in these cases only the licences of the individuals were cancelled. The learned Deputy Attorney General has rightly submitted that the right of hearing will depend on the nature of powers exercised, order made and the statute. He. in this behalf, referred to the case of Syed Raza Kazim where the petitioner was refused licence for a Revolver being a political suspect. Thereafter he referred to cases of Godha Singh Jabra Singh and Mod Miyan to submit that the impugned notification is an administrative order against which no wr t lies. On the other limb of the argument that since the licences were issued in utter disregard of the law, rules and antecedents of the applicants, therefore, there was no way out but to cancel the whole lot and in such a situation the principles of natural justice are excluded. In this behalf, the learned Deputy Attorney General referred to case of Kishore Singh. It was a case under Arms Ordinance and licence was cancelled, the writ was refused. Then come the cases of the Bihar School Examination Board, Madan Mohan Varma and others, Rajkumar Agarwalla and another and Rajiv Ratna Shukla and another. These were the cases where the authorities had to cancel the examination as a whole on account of mass irregularities and cheating by the students. In all these cases it was held that the principles of natural justice as to right of hearing cannot be invoked in such a situation and there was sufficient material to cancel the examination as a whole. Then he referred to the case of The Tulsipur Sugar Co. Ltd. In this case the areawas declared as town. This action was challenged. It was held that there was no occasion to grant hearing before such declaration is issued and principles of natural justice were not attracted. The next submission was that the aim of rules is to secure justice. If the application of the same is excluded by word or implication then principles of natural justice cannot be invoked. It is added that hearing is to be provided where necessary. It is submitted that if the action is taken under Section 12(a) of Arms Ordinance then hearing is possible as the licence is to be cancelled of individual or a small group of individuals but where the cancellation involves a large number as in the present case then no hearing is warranted. The learned Deputy Attorney General, in this behalf, has referred to case of Sikandar Sadiq and others. The other submission in this context is that the vires of a statute, rule or notification cannot be questioned on the ground that it offends rules of natural justice. In this context the learned Deputy Attorney General has rightly referred to the case of Muhammad Siddique. In the alternative it was argued that the right of hearing is involved at a specified stage. The rules of natural justice (are) not embodied in the rules, therefore, the procedure adopted to be (is) as provided in the statue. He, in this behalf, has referred to the case of Syed Sharif Hussain Bokhari, Advocate and others where the nomination papers for Punjab University Senate seat were rejected. It is clear from the cases referred by the learned Deputy Attorney General thai in case of action against a large number of citizens the principles of natural justice do not come into play for the reason (that) it is not possible to give hearing to each and every person. The present case is on stronger and better footing than the case of Sikandar Sadiq and others where the examination as a whole was cancelled because of mass cheating and mal-practices. In those cases at least the complete particulars of the candidates taking the examination were available with the authorities but in the present case even the particulars of the licensees were not available and none else but the licensees are responsible for this mess. It was their duty to submit application forms for grant of Arms' licence complete in every respect. It is held that neither there is a provision in Section 12-(l)(b) for granting hearing before ordering cancellation nor it was possible. 9. The second submission on behalf of petitioners was that the order should have, been based on objective satisfaction. The respondents have referred to the type of the orders bidding issuance of the licences, the state of the applications, lack of authenticity and verification by the District and Police Authorities. It is proved that the licences were issued wrecklessly as according to the learned Deputy Attorney General in all, according to the data available, 12,505 licences • were sanctioned while 8,350 were issued. The argument was that even the persons, who were not interested and did not make application still the sanction was granted. Therefore, the Government after fully analysing the situation decided to cancel the licences. Even otherwise if the particulars of the licensees are not available then there was no way out for the Government except tp cancel the whole lot. 10. There is another interesting aspect of the matter. The petitioners and all the applicants applied for grant of licence for Kalashnikov on the ground that the same is required for self-protection. It is not a weapon of self-defence. It is a weapon of offence. The learned Deputy Attorney General submitted that the Government has realized this glaring mistake and for that reason a complete ban has been imposed on issuance of such licences. It will be in the fitness of circumstances that if the remaining licences are also cancelled because this is the only way to completely take the Kalashnikovs out of the hands of the people, otherwise if some citizens are allowed to retain such weapons then this will also help and encourage the others to keep such weapons illegally. 11. The third submission that the licences could' be cancelled only under Section 12 on the specified grounds therein and no other ground. The learned counsel for the petitioners made great effort in this behalf and referred to large number of precedents but the same are not relevant because Section 12 deals only with the individual cases while the action in the present case has been taken under section 12-(l)(b). The same reads as under:- "12. Cancellation and suspension of licences.— (1) Any licence may be cancelled or suspended-- (a) by the officer by whom the same was granted or by any authority to which he may be subordinate, or any District Magistrate within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, and after giving the holder of the licence an opportunity of showing cause against the proposed cancellation or suspension, such officer, authority or Magistrate deems it necessary for the security peace to cancel or suspend such licence; or (b) By any Judge or Magistrate before whom the holder of such licence is convicted of an offence against this Ordinance or against the rules and Government may, by a notification in the official Gazette, cancel or suspend all or any licences throughout the Province or any par thereof. (The relevant portion has been underlined' by me). It is clear from the portion underlined that the Government has a free hand and un-feltcrcd powers in this behalf, therefore, the action is fully covered by the law and no exception can be taken to the same. The argument noted at No.6 is off­ shoot of the main argument, therefore, (is) dealt here alongwith the same. The argument was that Government means Provincial Government. In this behalf, the learned counsel has referred to definition of Government as given in Section 3(<f). The same reads as under:- "3(c/) "Government" means the Federal Government for the whole of Pakistan and the Provincial Government in the case of a Province". The learned counsel while raising this argument perhaps did not take into consideration amendment brought by Act XXXVIII of 1974. The action can be­ taken by either Federal or Provincial Government, therefore, there is no force in this argument too. Here in italics. 12. Syed Afzal Haider, Advocate argued that this is a policy decision which could not have been taken by a care-taker Government. The argument is that care-taker Government was appointed only to hold elections and conduct day to day business. I find no force in the argument in view of the Full Bench decision of this Court in Kli.Ahmad Tariq Rahim v. Federation of Pakistan (P.L.J. 1991 Lahore 1). The relevant portion reads as under:- "159. So far as the powers of the Prime Minister/care-taker Prime Minister as head of the caretaker Cabinet are concerned, I could not find any material difference between the two except that the tenure of the caretaker Prime Minister is to last till induction into office of a regularly elected Prime Minister by the new Assembly after the election. I am strengthened in this view by the fact that no separate oath of office has been prescribed for the caretaker Prime Minister while assuming office. It is also interesting to note that the words "caretaker Prime Minister" as such do not appear anywhere in the Constitution". 13. The last ground that the order is discriminatory because Senators, M.N.As, M.P.As and other classes of citizens have been allowed to hold the arms although the same were issued during the period in dispute. The learned counsel for the petitioners while raising this argument conceded that the Government is always empowered to have classification but it was added that it should be reasonable. On the other hand, it was argued on behalf of the respondents that only the licences of the citizens holding elected offices, who were the epresentative of the people, civil servants etc. were left untouched. It was argued that since the particulars and antecedents of these classes were readily available, therefore, the classification is reasonable and no exception can be taken to the same. It is argued (?) that there is no merit in the argument that the order is discriminatory. 14. It was argued on behalf of some of the petitioners that in case the Government provides the petitioners security from dacoits and out-laws then they will not press these petitions. The learned Advocate-General sharply reacted to the argument and rightly submitted that the Government is bound to protect life, liberty and property of the citizen. This does not require any further guarantee through statement in these proceedings. 15. Before parting with the judgment I would like to point out that the petitioner and others purchased the arms after obtaining valid permission from the Federal Government to hold these arms and now the Federal Government by notification has cancelled the licences. The action of the Government amounts to compulsory acquisition of the weapons of a given category and according to rticle 24 no one can be deprived of the property without being paid compensation, -therefore, it is expected that the Government shall expeditiously decide the mode of payment of compensation/price of the Arms and Ammunition deposited by the licensees. The learned Deputy Attorney General submitted that the Government is conscious of its obligations and is already framing a scheme in this behalf. 16. The result is that there is no force in this petition. The same is dimissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 293 PLJ 1991 Lahore 293 Present: IRSIIAD HASSAN KHAN, J Syccl ALI RAZA ASAD ABIDI-Pelitioner versus S.H.O. POLICE STATION MODEL TOWN, GUJRANWALA and 3 others- Respondents Writ Petition No. 4020/P of 1991, dismissed on 21.5.1991 Constitution of Pakistan, 1973— ---Art. 199 read with Criminal Procedure Code, 1989, Section 154-Registration of case—Petition lor—Statement of Finance Minister appealing to dacoits not to abduct foreigners but Pakistani citizen—This writ petition is an attempt to abuse process of law by disseminating scandalous matters—It has not been filed bonafide— Charges levelled aginst Finance Minister on basis of newspaper report are hearsay allegations—Petition dismissed being frivolous and scandalous. [Pp.294&295]A,B&C 1986 SCMR 1736 rel. Sved Almas Haider Kazmi, Advocate for Petitioner. Date of hearing: 21.5.1991. judgment This petition has been filed by Syed Ali Raza Assad Abidi claiming to be an ex-President Students Union, Government Degree College, Bhakkar, for a direction to the Station House Officer, Police Station Model Town, Gujranwala, for registration of case against Mr. Sartaj Aziz, Finance Minister, Government of Pakistan on the ground that as per news item in the daily 'JANG', a photo copy of which has been appended with the writ petition (dale of publication not given) had publicly appealed to the thieves and dacoits to abduct, if they want to, citizens of Pakistan rather than foreigners. The headline of the said daily 'JANG', reads thus:- It was pleaded that the statement allegedly made by the Minister for Finance that the dacoits should abduct Pakistani citizens instead of foreigners amounts to excitement through public utterance of an opinion which is not only against the people's constitutional rights but is an excitement to commit an offence falling under sections 365 and 365-A of the Pakistan Penal Code. 2. Syed Almas Haider Kazmi, learned counsel for the petitioner argued that the statement made by Mr. Sartaj Aziz reveals the utter lack of responsible conduct expected by citizens of Pakistan from their Federal Minister. He argued that the Finance Minister should have resigned from the Government if he was of the opinion that the Government was unable to control the law and order situation in the country instead of making the dacoits and criminals as appellate authority in such mailers. It was also prayed that Mian Nawaz Sharif the Prime Minister of Pakistan should be directed to refer the matter under Article 63 (2) of the Constitution of Islamic Republic of Pakistan to the Chief Election Commissioner to decide whether the utterance by the Finance Minister disqualified him under the Constitution. A direction was also sought to be issued against the Chairman of Senate to refer the said matter to the concerned authorities. Finally it was prayed that pending final disposal of the writ petition, the Federal Finance Minister be restrained from performing his functions as such. 3. I have thoroughly persued the news item relied upon by the petitioner, which when read as a whole, clearly shows that the remarks were made by the Finance Minister in good faith and without meaning the implications sought to be attributed to him by the petitioner. At best the statement tantamounts to a satire to the unscrupulous dacoits to behave for the sake of God (^- <£ ^) and not jeopardise the relations of Pakistan with other nations of the world. 4. It goes without saying that maintenance of law and order is the primary function of any civilised Government and there can be no two opinions on the proposition. I have however, no doubt in my mind that the Government will take all possible measures to effectively control and prevent the incidents of kidnapping. The court can take judicial notice of the fact that Pakistan is greatly interested in maintaining the integrity, security and defence of its frontiers and is committed to promote international peace and security, foster goodwil and friendly relations with all the nations. 5. It is a common knowledge that three Chinese engineers were kidnapped by the unscrupulous dacoils a few days ago. Admittedly, China is a trusted-friend of Pakistan. Pak-China friendship and friendly relations of Pakistan with other Slates cannot be placed in jeopardy on sporadic incidents of kidnapping here and there. The encouragements of such actions either directly or indirectly would not be conducive to the interest of Pakistan . The present writ petition is an unsuccessful attempt to abuse the process of law by disseminating scandalous mailers. Clearly, the writ petition has not been filed bona fide and its sole purpose appears to unduly embarrass the Government of Pakistan with sensational allegations and particularly its Finance Minister for extraneous considerations with a view lo gain cheap popularily. 7. Be that as it may, the charges levelled against the Finance Minister on the d basis of newspaper report published in the daily 'JANG', to say the least are hearsay allegations and, therefore, the same cannot be admitted in evidence for disqualifying him. In Raja Muhammad Afzal v. Cli. Muhammad Altaf Hussain i I'Vy-, SCMR 1736), the Supreme Court held that there is no scope for reliance on the ruuspapcr reports and on the basis of allegations levelled therein, a Member of the Assembly cannot be disqualified. It is well settled that allegations howsoever grave are allegations simpliciter and cannot take place of proof. ?>. In the instant case, the allegations against the Finance Minister of Pakistan relate to performance of his functions as Minister,.but there is to start \vith a presumption of regularity and good faith with regard to all official acts and no material has been placed on record to rebut the same. 9. The disqualification envisaged by Article 62/63 of the Constitution would not be attracted merely upon the allegations and, therefore, no direction is called for for making reference to respondents No. 3 and 4 as prayed. Even otherwise, no such direction can be given in the facts and circumstances of the present case in the exercise of writ jurisdiction. The writ petition is ex facie frivolous and scandalous and is hereby dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 295 PLJ 1991 Lahore 295 Present: GUL ZARJN KlANI, J msi. SATBHARAI-Petitioner versus Mst. MAHMOOD KHATOON and 3 others-Respondents Civil Revision No.556 of 1980, accepted on 7.5.1991 Civil Procedure Code, 1908 (V of 1908)-- —-S. 115-Inheritance-Mulation of-Challenge to-DUring pendency of Civil Revision, petitioner is reported to be dead-Her death is no bar to decision of Civil Revision on metits—It is not denied that issue relating to limitation was inter-woven with question of adverse possession-Impugned judgment of Additional District Judge did not touch decision of other issues including that of adverse possession on land in dispute for .requisite period—Held: Issue of limitation being closely linked with issue of adverse possession was required to be attended to and dealt with together-Petition accepted and case remanded for fresh decision of appeal. [Pp.296&297]A&B Nemo for Petitioner. Malik Muhammad Ashraf, Advocate for Respondents Nos. 1&2. Nemo for Respondents Nos. 3&4. Date of hearing: 7.5.1991. judgment This is a plaintiffs revision application against the judgment and decree dated 13.1.1990 of learned Additional District Judge, passed in Civil Appeal No. 118 of 1978, whereby judgment and decree of learned trial Court decreeing the plaintiff's suit was reversed on the ground that the suit was barred by limitation. Shcr Mohammad was owner of some land, at mauza Kufri, in Tehsil Khushab. He died without leaving a male issue on 2.2.1957. He was survived by two daughters, namely, Mst. Satbharai, Mst. Basran and a sister, namely, Mst. Mahmood Khatoon. By mutation No. 5125 attested on 14.6.1957, Revenue Officer mutated a half share in his land collectively to the two daughters and the remainder half, was allocated to the sister of the deceased. Later, by mutation No. 6305, sanctioned on 8.2.1973, land held by Mst. Satbharai was mutated in the name of Mst. Basran, on the assumption of former's death on 6.12.1972. Mst. Mahmood Khatoon donated her share in the land to her grandson, Khair Mohammad through a registered deed dated 20.8.1975. Gift deed was given effect to in the revenue papers by attestation of mutation No. 6434, sanctioned on 29.3.1976. On 31.5.1977, Mst. Satbharai brought a civil suit to recover her full share in the land upon annulment of inheritance—mutation No. 5125, 6305 and registered gift deed dated 20.8.1985 and the consequent mutation No. 6434. To the suit were impleaded Mst. Mahmood Khatoon, Khair Mohammad, Alam Sher, and Mst, Basran. Mst. Mahmood Khaloon is sister of Sher Mohammad. Khair Mohammad is grandson of Mst. Mahmood Khatoon and a donee of land from her. Alam Sher is husband of Mrt.Basran. Latter is daughter of Sher Mohammad. Alam Sher and Mst. Basran conceded the claim of the plaintiff Mst. Mahmood Khatoon, and, Khair Mohammad contested the suit. It was averred that the suit filed by Mst. Satbharai was barred by limitation; that she was estopped to sue; that the suit was collusive; that it was barred by res-judicata; that the contesting defendants held the land adversely and had acquired prescriptive title to it. On merits, it was asserted that mutation of inheritance sanctioned upon death of Sher Mohammad was correctly attested. On 4.7.1977, the trial Court framed necessary issues arising from the pleadings of the parlies. The issues have been correctly set out in the judgments of the lower Courts and need not be re-produced. On 16.10.1978, the trial Court decreed the suit in favour of the plaintiff. It held that the suit was not barred by limitation; that estoppel was not established; that the plaintiffs suit was not collusive; that the suit was not barred by res-judicata; that daughters collectively were entitled to take 2/3rd share of the estate left by their father; that gift-mutation No. 6434 was in excess of the share held by Mst. Mahmood Khatoon; . that the defendants did not hold the land adversely. Against the decision and decree of the trial Court, all the defendants preferred an appeal. It was allowed on the solitary ground of time-bar, and, the findings on the remaining issues were not touched. Aggrieved of the judgment in appeal, Mst. Satbharai came up in revision to this Court. It was admitted to hearing on 14.5.1980. Mst. Satbharai is reported to be dead. Her counsel did not appear. With her demise, civil revision did not abate. The death of the petitioner was no bar to decision of the civil revision on merits. Malik Mohammad Ashraf, learned Advocate representing respondents No. 1 and 2 readily conceded that daughters of ihe deceased Sher Mohammad were collectively entitled to a 2/3rd share in his estate, and, allocation of shares by the Revenue Officer in the inheritance - jmutation sanctioned upon the death of Sher Mohammad were incorrectly worked out. It was also admitted that death of Mst. Satbharai was erroneously assumed and the inheritance mutation incorrectly sanctioned of the land owned by her, in favour of her sister Mst. Basran. This being so, Mst. Satbharai was a co-owner in the joint land, and, in default of clear evidence of ouster, her suit could not be found to suffer from the bar of limitation. It was not denied that issue relating to limitation was inter-woven with question of adverse possession claimed by the contesting defendants and was inextricable for a separate decision without touchinu the finding on issue of adverse possession. It was obvious from the impugned judgment that learned Additional District Judge did not touch the di_a-ion on other issues including the issue relating to adverse possession on the land in dispute for a requisite period. Issue of limitation being closely linked with the issue relating to adverse possession was required to be attended to and dealt >.ith together. Any firm decision by this Court on the point of limitation was likely to materially affect the finding recorded on adverse possession by the trial Court. In this view, learned counsel proposed that both the issues should be dealt.with touether and the case remanded to the lower appellate Court for deciding of the appeal afresh on all the issues. Apart from the above proposal, I do not think that the lower appellate Court did a right thing in difurcating the issue of limitation from the other material issues. Further, the lower appellate Court did not keep in view the decided case law touching the question of limitation in such like circumstances, more particularly, the case of Gul KJian versus Said Hassan Shall and others --P.L.D. 1968 Peshawar 148. But since I propose to set aside its judgment for deciding of the appeal afresh on all issues together, it is unnecessary to express finally on this point. In view of the foreoging, revision succeeds. Impugned judgment and decree dated 13.1.1980 of learned Additional District Judge are set aside and the case is remanded to learned District Judge, Khushab for deciding of it afresh in accordance with law. and. the observations made above. There shall be no order as to costs in this Court. Msi. Satbharai died during the pendency of the civil revision in this Court. Her legal representatives were not brought on record. She was respondent in the appeal in the lower appellate Court. Upon receipt of the records from this Court, before proceeding to the hearing of the appeal on merits, learned District Judge shall take the necessary steps for substitution of her legal representatives. Records be returned. (MBC) (Approved for reporting) Petition accepted

PLJ 1991 Lahore 297 PLJ 1991 Lahore 297 Present: maijk muiiammad qayyum, J KHALIL AHMAD-Petitioner Versus MUHAMMAD RAF1Q CHAUDHRY and 3 others-Respondents Writ Petition No. 3469 of 1990 (also W.P. Nos. 3577, 3578, 3653 and 4239 of 1990) dismissed on 1.4.1991. (i) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI ofl959)-- —S. 13(2) (vi)--Tenants—Ejectment of—Challenge to—Personal need—Ground of—Contention that landlord had not sought eviction of petitioner (in W.P. 3469/90)-Landlord explained in his statement that though wall in which shop of petitioner was located, was not to be demolished, but space occupied by petitioner, was required for departmental store— eld: Landlord had sought jectment of petitioner also on ground of personal need. [P.300]C (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13(2)(vi)—Tenants—Ejectment of—Challenge to—Personal need—Ground of-It is correct that when ejectment is sought on grounds of reconstruction as well as personal need, bonafides of landlord must be cxam'med—Malafide of landlord is sought to be inferred from fact that he was residing abroad and working at Dubai-Held: Such an inference is not justified-Petitions dismissed. [Pp.300&301]D&E PLD 1982 SC 218 rel. (iii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13(2)(vi) read with Punjab Local Government Ordinance, 1959, Section 3(XII)~Tenants~Ejcctment of-Challcnge to-Whether tenants can be evicted for alteration of building-Question of-Expression 'reconstruction' has to be interpreted in a pragmatic sense and it is not necessary for landlord to show in each and every case that he wishes to demolish entire building and to re-build t anew-According to sanctioned plan, intervening walls of shops are to be demolished and landlord needs entire hall for running departmental store, in this case—Held: Alterations substantial in character amount to re-construction for which a tenant can be ejected-Held further: As per Section 3(XII) of Punjab Local Government Ordinance, 1959, erection inter alia includes removal of intervening walls. [Pp.299&300]A&B PLD 1978 Lahore 347 approved by PLJ 1984 SC 307 rel. Ch. Mushtaq Ahmad K)\an, Advocate for Petitioner (in W.P.No. 3469/90). 5/1. Klialilur Rehinan, Advocate for Petitioner (in W.P. No. 3653/90). Rana Abdur Rahim, Advocate for Petitioners (in W.P. Nos. 3577 & 3578/90). Mr. Asadullah Siddiqui, Advocate for Petitioner (in W.P. No. 4239/90) Ch. Muhammad Sarwar, Advocate for Respondent No. 1 (in all petitions). Nemo for Respondents Nos. 2 to 4. Date of hearing: 1.4.1991. judgment This judgment shall dispose of Writ Petitions No. 3469 of 1990, 3577 of 1990, 3578 of 1990, 3653 of 1990 and 4239 of 1990 as they are directed against the same judgment of the Additional District Judge, Lahore. 2. The petitioners in all these petitions are tenants with respect to various portions of property bearing No. S. III-21-S-2 situated on 2-Jan Mohammad oad, Anarkali, Lahore under Mohammad Rafique Chaudhry, respondent. The landlord applied for ejectment of all his tenants from the property on the grounds of re-construction and personal use. These two grounds were common in all the ejectments though in some cases non-payment of rent were also alleged. The Rent Controller after recording the evidence of parties accepted the (?) ("rejected") the ejectment petition filed by the landlord-respondent on 22nd of March 1987. 3. Aggrieved by this order the respondent landlord filed separate appeals, which were accepted by the Additional District Judge, Lahore, on 5th of April, 1990 and the petitioners were ordered to hand over the vacant possession of the disputed properties to the respondent landlord before 31.5.1990. 4. Ch Mushlaq Ahmad Khan, the learned counsel appearing on behalf of writ pelitioner in W.P. No. 3469 of 1990, has contended that according to the statement of the landlord himself, the premises in occupation of the petitioner in this writ petition were not to be demolished or re-constructed nor does the sanctioned plan include the area in possession of the petitioner and, therefore, the learned Addl. District Judge acted illegally in directing the eviction of the petitioner on the ground of personal use. 5. Sh. Khalil-ur-Rchman, Advocate for the petitioner in W.P. No. 3653 of 1990 argued that admittedly the sanction obtained by the respondent-landlord from the Lahore Municipal Corporation is for the alteration and not re­ construction and as such, the landlord could (not) seek eviction of the petitioner. 6. Rana Abdur Rahim, Advocate on behalf of the petitioner in W.P. No. 3577 of 1990 and 3578 of 1990, contended that need for re-construction is linked with the personal need of the landlord for which he was required to prove his bonafide and goodfailh which are lacking in the present case. The learned counsel emphasised that the landlord was admittedly working in Dubai rawing handsome salary and all his family was living abroad. According to the learned counsel these circumstances show that the landlord has no intention of occupying the property or doing any business in Pakistan. 7. Lastly Mr. Asad Ullah Siddiqui, the learned counsel appearing on behalf of the petitioner in Writ Petition No. 4239 of 1990 maintained that in the first instance the landlord obtained sanction from the Lahore Municipal Corporation for replacing the roofs of the shops which did not amount to re-construction, but subsequently another sanction was obtained by the landlord so as to create a ground for ejectment which according to the learned counsel was belated and nialcifidc exercise. 8. Mr. Muhammad Sarwar, Advocate for the respondent/landlord in all these petitions, in addition to controverting the arguments of the learned counsel for the petitioners objected that the findings on the issues of personal use and reconstruction, which are questions of fact, are not liable to (be) interfered with in the Constitutional jurisdiction of this Court. 9. It appears appropriate that the arguments of Mr.Khalil-ur-Rehman, Advocate may be adverted to at first. Though it is correct that Section 13(2)(w) of the Punjab Urban Rent Restriction Ordinance empowers the Rent Controller to direct eviction of a tenant for reconstruction or erection of a building and not merely for alteration, but as held by this Court in Msl.Aklitar Sultana v. DrAbdur Rauf Nagi (PLD 1978 Lahore 347), the expression 're-construction' has to be interpreted in a pragamlic sense and it is not necessary for the landlord to show in each and every case that he wishes to demolish the entire building and to re-build it a new. If the alteration is substantial in character, it can be construed as reconstruction. This judgment was approved by the Supreme Court of Pakistan in Abdul Qa\ywn and another v. Khurshid Jchan and others (PLJ 1984 S.C. 307) wherein it was held that the alternations substantial in character amount to re­ construction for which a tenant can be ejected. It is pertinent to note that in the case before the Supreme Court the landlord desired to remove the intervening walls between five shops so as to convert them into a Big Hall. In the case in hand also, according to the sanctioned plan the intervening walls of the shop are to be demolished, and the case of the landlord is that he needs the entire hall for the purpose of running a departmental store. 10. It is also to be seen that though words 're-construction' or 'erection' have not been defined in the Punjab Urban Rent Restriction Ordinance, 1959 but according to Section 3(A77) of the Punjab Local Government Ordinance, 1959 erection inter alia includes removal of the intervening walls. That being so the arguments of the learned counsel for the petitioner cannot be accepted. 11. Now adverting to the arguments of Ch.Mushtaq Ahmad Khan, it was explained by the landlord while appearing as A.W.2 that though the wall in which, the shop of the petitioner was located was not to be demolished but the space occupied by the petitioner which was in the shape of an Almarah was required for selling up show-cause of departmental store. Even if it be assumed, though it is not correct lhal conversion of the Almarah into the Show case does not amount to re-construction, the fact remains that the landlord has sought the ejectment of the petilioncr also on the ground of personal need. 12. The argument advanced by Rana Abdur Rahim, Advocate so far as it goes is correct to the extent that in a case where the ejectment is sought on the grounds of re-construction and as well on personal need, the bonafides of the landlord must be examined. Bui this does not advance the case of the petitioner as it has been found as a fact by the Addl. Dislrict Judge that the need of the landlord to run the departmental store in the premises after reconstruction is bonaficlc. The learned counsel wanted to infer malafides of the landlord from the fact thai he was residing abroad and working al Dubai. However, such an interference (inference) is not juslificd. Il has been held by the Supreme Court of Pakistan in Fazal Aziin and another . Tariq Mehmood and another (PLD 1982 S.C. 218) that the landlord seeking eviction of the tenant on the ground of personal requirement cannot be e pected lo sil idle lill lime of actual eviction and if he gainfully employs himself in the meanwhile abroad, no adverse inference can be drawn againsl him. 13. This brings me to ihe contentions raised by Mr.Asadullah Siddiqui, Advocate. In ihe first he argued lhal Ihc sanclion obtained was only for replacing the roofs which was not reconstruction. But as has been rightly pointed out by the learned counsel for the respondent the landlord had subsequently obtained the permission to remove the intervening walls and to substantially alter the conslruclion which amounis to reconslruclion. The next contention of the learned counsel was (lhal) an objection was raised before ihe Rent Controller that the ejectment petition was not properly constituted against the petilioners and it was one of grounds on which ihe ejectmcnl petition was dismissed by the Rent Controller and though the findings thai issue No.l-B were upheld by the Addl. Dislricl Judge, bul surprisingly enough, he instead of dismissing ihe pelilion proceeded lo accept the appeal. 14. A perusal of the judgment of the Addl. Dislrict Judge, shows that the finding on issue No.l-B was upheld by observing thai no plausible argument had been raised before ihe Rent-Controller. Such a disposal of the issue cannol be countenanced especially when there is no merit in this objection at all. Admittedly the provisions of the Code of Civil Procedure are not applicable to the proceedings before the Rent Controller but even if the matter is to be judged with reference to Order 30 of the C.P.C., there is no substance in the contention of learned counsel. It is not necessary under the law that a firm should be sued through any particular individual. It is not denied that the petition was contested by the firm as such and the written statement was also filed by it. In these circumstances the objection is of no efficacy especially as prejudice is shown to have been caused by llie misdescription. In view of what has been slated above these petitions are dismissed leaving the parties to bear their own costs but at the request of the learned counsel for the petitioners they arc allowed four months, time to vacate the premises in dispute. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1991 Lahore 301 PLJ 1991 Lahore 301 Present: malik MUHAMMAD QAYYUM, J ALMAS KHAKWANI and 3 others-Petitioners versus ADDITIONAL DISTRICT JUDGE, LAHORE and another-Respondents Writ Petition No. 1267 of 1981, accepted on 2.2.1991. (i) Civil Procedure Code, 1908 (V of 1908)-- —-O. XLI Rule 33 read with Punjab Family Courts Act, 1964, Section 17-- Maintenance-Suit for-Dccree passed in~Appeal against-Whether provisions of C.P.C. are applicable to proceedings before Family Court-Question of~ Held: Provisions of C.P.C. are not applicable to proceedings before Family Courts in view of clear mandate of section 17 of Punjab Family Courts Act, 1964-Held further: Assuming C.P.C. was applicable, exercise of power under O. XLI R. 33 being discretionary and limited to cases which, as a result of appellate Court's interference with decree in favour of appellant, require further interference in order to adjust rights of parties in accordance with justice, equity and good conscience, was not applicable to facts of this case-­ Petition accepted. [Pp.303&304]B,C,D&E PLD 1982 Lahore 132, AIR 1928 Cal. 488, AIR 1937 Patna 40 and AIR 1925 Lahore 2 rel. (ii) Finality- —Maintenance-Suit for-Decree passed in~Appeal against-Dismissal of- Successor Additional District Judge while hearing appeal for enhancement of maintenance, setting aside judgment of his predecessor—Challenge to— ' Decision dismissing appeal of respondent No. 2 as a whole, was not challenged any further-If respondent No. 2 had any grievance against that decision, he should have challenged it further but he failed to do so and allowed to become it final-Held: No jurisdiction was vested in respondent No. 1 to set-at-nought decision rendered by his predecessor. [P.303JA Mr. Asadullah Siddiqui, Advocate for Petitioners. Mr. S.M. Masood, Advocate for Respondent No. 2. Nemo for Respondent No. 1 Date of hearing: 2.2.1991. JUDGMENT' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order dated 26th February, 1981 passed by an Additional District Judge, Lahore whereby the judgment and decree of the Family Court was set-aside and the case was remanded to it for decision afresh keeping in view the directions in the order of remand. 2. Petitioners Nos. 1, 2 and 3 are the daughters and petitioner No.4 is the son of Mr. M.K. Khakwani respondent No.2 herein. In February, 1980 the petitioners filed a suit for recovery of Rs.42,000 as arrears of maintenance and also for future maintenance at the rate of Rs.14,000 per month. The suit was contested by respondent No.2 who filed his written statement. The learned Judge Family Court recorded the better statement of respondent No.2 and proceeded to pass a decree for maintenance at the rate of Rs.8,000 per month for all the four petitioners. It was further directed that petitioner No.3 shall be medically treated at the cost and expense of respondent No.2. 3. Two appeals, one by the petitioners and the other by respondent No.2 were filed in the District Court against this decision of the Family Court. In the appeal filed by the petitioners, they objected to the grant of maintenance at the rate of Rs.8,000 per month and prayed that it be enhanced to Rs.14,000 per month. So far as the appeal filed by respondent No.2 is concerned, his grievance was that the suit could not have been decreed only on the basis of his better statement and the decree as a whole should be set-aside. 4. The appeal filed by respondent No.2 was taken up for hearing by MrAzeem Khan Niazi, Additional District Judge, Lahore who on 28 th September, 1980 upheld the grant of maintenance by the Family Court to the petitioners but reduced the rate from Rs.8,000 per month to Rs.6,400 per month. This order was passed in the absence of respondent No.2 and his learned counsel who did not enter appearance on that date. As regards the past maintenance, it was observed that it shall be decided lateron in the appeal filed by the petitioners. 5. The appeal filed by the petitioners came up for hearing on 26th February, 1981 before Sh.Lutf-ur-Rehman, Additional District Judge, Lahore who had succeeded MrAzeem Khan Niazi. Strangely enough, the Additional District Judge instead of confining his attention to the question raised in the appeal namely the rate of maintenance, proceeded to set-aside the decree of the Family Court as a whole holding that the suit could not have been decree without recording any evidence by the Family Court. The Additional District Judge relied upon the provision of Order 41 Rule 33 of the C.P.C. to observe such a relief could be granted to respondent No.2 notwithstanding the absence of any appeal or cross objections by him. As regards the dismissal of the appeal of respondent No.2 by his predecessor, it was stated that the appeal could not have been decided on merits in the absence of respondent No.2 and his counsel but should have been dismissed in default. He, therefore, after setting-aside the decree remanded the suit to the trial Court for decision afresh in accordance with law. This order of the Mr. S.M. Masood, Advocate for Respondent No. 2. Nemo for Respondent No. 1 Date of hearing: 2.2.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order dated 26th February, 1981 passed by an Additional District Judge, Lahore whereby the judgment and decree of the Family Court was set-aside and the case was remanded to it for decision afresh keeping in view the directions in the or.der of remand. 2. Petitioners Nos. 1, 2 and 3 are the daughters and petitioner No.4 is the son of Mr. M.K. Khakwani respondent No.2 herein. In February, 1980 the petitioners filed a suit for recovery of Rs.42,000 as arrears of maintenance and also for future maintenance at the rate of Rs.14,000 per month. The suit was contested by respondent No.2 who filed his written statement. The learned Judge Family Court recorded the better statement of respondent No.2 and proceeded to pass a decree for maintenance at the rate of Rs.8,000 per month for all the four petitioners. It was further directed that petitioner No.3 shall be medically treated at the cost and expense of respondent No.2. 3. Two appeals, one by the petitioners and the other by respondent No.2 were filed in the District Court against this decision of the Family Court. In the appeal filed by the petitioners, they objected to the grant of maintenance at the rate of Rs.8,000 per month and prayed that it be enhanced to Rs.14,000 per month. So far as the appeal filed by respondent No.2 is concerned, his grievance was that the suit could not have been decreed only on the basis of his better statement and the decree as a whole should be set-aside. 4. The appeal filed by respondent No.2 was taken up for hearing by Mr.Azeem Khan Niazi, Additional District Judge, Lahore who on 28 th September, 1980 upheld the grant of maintenance by the Family Court to the etitioners but reduced the rate from Rs.8,000 per month to Rs.6,400 per month. This order was passed in the absence of respondent No.2 and his learned counsel who did not enter appearance on that date. As regards the past maintenance, it was observed that it shall be decided lateron in the appeal filed by the petitioners. 5. The appeal filed by the petitioners came up for hearing on 26th February, 1981 before Sh.Lutf-ur-Rehman, Additional District Judge, Lahore who had succeeded Mr.Azeem Khan Niazi. Strangely enough, the Additional District Judge instead of confining his attention to the question raised in the appeal namely the rate of maintenance, proceeded to set-aside the decree of the Family Court as a whole holding that the suit could not have been decree without recording any evidence by the Family Court. The Additional District Judge relied upon the provision of Order 41 Rule 33 of the C.P.C. to observe such a relief could be granted to respondent No.2 notwithstanding the absence of any appeal or cross objections by him. As regards the dismissal of the appeal of respondent No.2 by his predecessor, it was stated that the appeal could not have been decided on merits in the absence of respondent No.2 and his counsel but should have been dismissed in default. He, therefore, after setting-aside the decree remanded the suit to the trial Court for decision afresh in accordance with law. This order of the Additional District Judge has been assailed by the petitioners in this constitutional petition. t>. Mr.Asadullah Siddiqui, Advocate, learned counsel for the petitioners in support of this petition has raised the following contentions:- (/) That the appeal filed by respondent No.2, against the decree and judgment of the Additional District Judge (?) (Family Judge) was dismissed by Mr.Azeem Khan Niazi, Additional District Judge, Lahore .on 28th September, 1980. The only matter before Sh.Lutf-ur-Rehman, Additional District Judge arising out of the appeal of the petitioners was as regards enhancement of the rate of maintenance and the decree of the Family Court could not have been set-aside. (((') That the provisions of Order 41 Rule 33 C.P.C. on which reliance has been placed by the Additional District Judge have no applicability to a case arising under the Punjab Family Court's Act 1964 and could not, in any case, have been invoked in the present case when the appeal filed by the respondent had already been dismissed. (///) That no power was vested in Sh.Lutf-ur-Rehman Additional District Judge, Lahore to vary or modify the judgment of his predecessor. Mr.S.M.Masood. learned counsel for respondent No.2 submitted that as some of the petitioners had attained majority while for others court of ward had been appointed under the Punjab Courts of Wards Act 1903, the present petition on their behalf by their mother was not competent. On merits the learned counsel supported the order of the Additional District Judge. 7. Admittedly, agiunsl the judgment and decree of the Family Court, the petitioners as well as respondent No.2 had filed separate appeals. The appeal filed by respondent No.2 wherein he had challenged the validity of the decree of the Family Court as a whole was dismissed by Mr.Azeem Khan Niazi, Additional District Judge Lahore on 28th September, 1980. This decision was not assailed any further, and as such attained finality. On no principle of law could this decision be interfered with by Sh.Lutf-ur-Rehman who was the successor of Mr-Muhammad Azeem Khan Niazi, Additional District Judge, Lahore . The question as to whether MrAzeem Khan Niazi should not have decided the appeal on merits in the absence of respondent No.2 was of little consequence inasmuch as it was clearly not open to Sh.Lutf-ur-Rehman who was the successor of Mr.Muhammad Azeem Khan Niazi to criticise the judgment of his predecessor. If respondent No.2 had] any grievance against the decision he shoud have challenged it further but he failed to do so and allowed it to become final. No jurisdiction was vested in the Additional District Judge, Lahore to set-at-nought the decision rendered by his predecessor. It is unfortunate that in the impugned order the Additional District Judge proceeded to criticise the order of his predecessor, although he hadi absolutely no jurisdiction to do so. 8. As regards the applicability of Order 41 Rule 33 C.P.C. suffice it to say that the provisions of the C.P.C. are not applicable to the proceedings before the Family Courts in view of the clear mandate of Section 17 of the Punjab Family Courts Act 1964. The Additional District Judge could not, therefore, have pressed into service Rule 33 of Order 41 C.P.C. Even if it is assumed that the provisions of the Code of Civil Procedure were applicable, Order 41 Rule 33 had no applicability to the facts of the present case. Exercise of power and Rule 33 is discretionary with the Court, and has to be applied with caution, and is limited to cases which, as a result of appellate Court's interference with decree in favour of appellant, require further interference in order to adjust rights of parties in accordance with justice, enquity and good conscience. It was so held by a Division Bench of this Court in Hassan Muhammad v. Jan Muhammad and 5 others (PLD 1982 Lahore 132) as also by the Calcutta High Court in Manab Shaikh v. Muhammad Ghulam Nabi and others (A.I.R. 1928 Cal. 488). Reference with advantage may also be made to a Division Bench of Patna High Court in Darogi Rai and another v. Basdeo Malito and others (A.I.R. 1937 Patna 40) wherein it was held that "though the power of appellate court is wide, the case in which it should interfere with decree which has not been appealed against are those in which the portion of the decree appealed against is so inseparably connected with the decree not appealed that justice cannot be done unless the portion against which no appeal has been preferred is also interfered with". Rule 33 of Order 41 was also examined in Mst.Telll Kuar v. Amar Nath and others (A.I.R. 1925 Lahore 2) and it was observed that:- "Though no general rule can be laid down that Court should not apply Order 41 Rule 33 in favour of party who has appealed or filed crossobjections and failed, yet without strong reasons, it will not take such a course". From the above discussion it is quite apparent that the Additional District Judge acted clearly in excess of his authority in setting-aside that part of the decree which had become final. 10. As regards the objections raised by the learned counsel for the respondents suffice it to say that maintainability of this petition is not effected by the fact that some of the petitioners have attained majority in the absence of any repudiation of the present proceedings by them. Similarly, the objection on the strength of the Punjab Court of Wards Act 1903 is wholly misconceived. In support of this objection, the learned counsel relied upon Section 20 of the Act which has no applicability to the present case. This section provides that no suit affecting the property of the ward shall file except with the permission of Court of Wards. The dispute before this Court is with regard to the maintenance and no property is involved therein. In view of the foregoing reasons this petition is accepted, the impugned order of Additional District Judge dated 26.2.1981 is declared to be without lawful authority and of no legal effect with the result that the appeal filed by the petitioners shall be deemed to be pending before the Additional District Judge who shall proceed to decide it afresh in accordance with law. The parties shall appear before the District Judge, Lahore on 14th February, 1991 who may either hear the appeal himself or entrust it to any other Additional District Judge. No order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 305 PLJ 1991 Lahore 305 Present: MUHAMMAD MUNIR KHAN, J M/s RAJA INDUSTRIES LTD. SIALKOT-Appellant versus RENT CONTROLLER, SIALKOT CANTT and another-Respondents F.A.O. No. 41 of 1985, accepted on 29.1.1991 Default-- —-Order to deposit arrears of rent-Adjustment of deposit already made in Bank instead of deposit in Court-Whether appellant was defaulter-Question of--Crucial question for determination is as to whether by adjusting amount already deposited in Bank against arrears of rent, appellant has complied with order-Plea of appellant that instead of double deposit, he had adjusted same against arrears, will be a good plea against very order of deposit under Section 17 of Cantonment Rent Restriction Act, 1963-Held: Appellant was not a defaulter in any manner and his defence could not be struck off-Appeal accepted. [Pp.306&307]A&B PLD 1978 Lahore 258 rel. Ch. Mushlaq Ahmad KJian, Advocate for Appellant. Cli. Muhammad Iqbal Akhtar, Advocate for Respondent No. 2. Dates of hearing: 28 and 29.1.1991. judgment This FAO 41/85 arises from the order of Cantonment Executive Officer/Rent Controller whereby he on 14.2.1985 accepted the application of Malik Iftikhar Ahmad, respondent No.2, for the ejectment of M/s Raja Industries Ltd. Appellant, from a shop No.l5-B, Aziz Shaheed Road , Sialkot Cantt. The facts leading to this appeal briefly are that Malik Iftikhar Ahmad filed an application for the ejectment of appellant from the shop situated in Cantonment area, before Cantonment Executive Officer/Rent Controller, respondent No.l, on the ground of personal need The learned Rent Controller passed following orders:- "Partics present with their counsels. The respondent is directed to deposit arrears of rent amounting to Rs.14,850/- w.e.f. June (6/80) 1980 to 31.3.1982 i.e. Rs.675/- P.M. on or before 25.4.1982 to go on depositing future rent before the 5th of each following month till the final decision of the case. Rent already deposited in the Court may be adjusted against the rent to be deposited. Case to come up for further proceedings on 29.4.1982". It so happened that on 10.10.1984 Malik Iftikhar Ahmad, respondent/applicant filed an application before the rent Controller for seeking struck off the defence of appellant/tenant for non-compliance with the order dated 8.4.1982, by not depositing the rent for the months of January, 1983, July, 1983, November, 1983 and January 1984 before 5th of each month. This application was contested. The trial Court allowed this application on 14.10.1985 not on the grounds stated by the respondent No.2 in his application but on account of the petitioner's noncompliance of order dated 8.4.1982 to the extent of the deposit of the arrears of rent w.e.f. June 1980 to 31.3.1982. The operative part of the judgment may be reproduced here advantageously. "Accordingly order dated 8.4.1982 was passed. The respondent has tried to adjust Rs.1100/- deposited by him in National Bank of Pakistan in the arrears. Section 17(8) has particularly provided deposit of arrears and monthly rent in the office of the Rent Controller and not anywhere else. It is a settled law that when a thing is required to be done in a particular manner, all other modes of doing that thing shall be deemed to have been forbidden and therefore if a thing is done otherwise than required by law, the doing of that thing shall be invalid. In this view of the matter, amount of Rs.1100/- deposited by the respondent in National Bank is invalid as it has not been deposited in the office of the Rent Controller in the area where the disputed shop is situated. Therefore, the respondent has not deposited full amount of arrears in Court according to law". 3. Learned counsel for the appellant has relied on Sh.Maqbool Ahmad v. Muhammad Akbar All (PLD 1978 Lahore 258) and Ghulam Muhammad and two others v, Mumtaz Ahmad and another (1984 MLD 210) to contend that deposit of the rent by the petitioner/tenant in the Bank will not constitute default within the meaning of Section 17 of the Cantonment Rent Restriction Act, 1963. 4. Conversely the learned counsel for the respondent has supported the judgment of the learned Rent Controller. He was of the view that the amount deposited by the appellant/tenant in the Bank could not have been adjusted in terms of the order dated 8.4.1982 inasmuch as the Rent Controller had clearly stated in the order that the rent already deposited in the "Court" may be adjusted against the arrears of Rs.14,850/-. 5. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the reason given by the respondents for the striking off of the defence of the appellant/tenant that he had failed to deposit the future rent for the months of January 1983, July 1983, November 1983 and January 1984 before the 5th of each month, was not found correct by the trial Court. The learned counsel for the respondent has frankly conceded before me that the appellant/tenant had not committed any default in the future rent to be deposited by him before the fifth of each following month. However, he was of the view that since the learned Rent Controller had directed that the rent already deposited by the appellant/tenant in the Court may be adjusted against the arrears of rent mounting to Rs.14850/-, therefore, the rent already deposited by the appellant/tenant in the Bank could not be adjusted against the arrears. Now the crucial question for consideration and determination is as to whether by adjusting the amount already deposited in the Bank against the arrears of rent, the appellant had/has complied with the order dated 8.4.1982. I find that the appellant had already deposited in Bank the amount adjusted by him against the arrears. So his plea that instead of double deposit, he had adjusted the same against the arrears will be a good plea against the very order of the deposit under Section 17 of the Cantonment Rent Restriction Act 1963. So it is, at the worst, a case of failure simplicitor without any implication of the fault and this may not be treated in the peculiar circumstances of this case as a "default". Reliance may be placed on Sh.Maqbool Ahmad v. Muhammad Akbar All (PLD 1978 Lahore 258). 6. Pursuant to the above discussion, I hold that the appellant was not a I defaulter in any manner and his defence could not be struck off. Resultantly, the,! appeal is accepted. The impugned order is set aside and the case is sent back to f the learned Rent Controller for further proceedings in accordance with law. The j parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 Lahore 307 PLJ 1991 Lahore 307 Present: MIAN NAZIR AKHTAR, J Mst. INAYATBIBItfc.-Appelants versus NAZIR AHMAD etc., --Respondents R.S.A.NO. 413 of 1968, accepted on 6.3.1991 Civil Procedure Code, 1908 (V of 1980)-- —O. XLI R. 31--Appellate judgment-Verbatim copy of written arguments-­ Challenge to-Impugned judgment clearly demonstrates lack of conscious application of judicial mind—Held: Being violative of provisions of Order XLI Rule 31, it is no judgment in eye of law-Appeal accepted and case remanded. [Pp.308&309]A&B 19211.C. Calcutta 436,1983 CLC 2036,1987 CLC 2281,1988 MLD 1294, 1988 MLD 2524 & 1988 MLD 463 rel. Mr. Aftab Iqbal Chaudliiy, Advocate for Appellant. Nemo for Respondents. Date of hearing: 6.3.1991. judgment This R.S.A. arises out of a suit for declaration filed by the respondents 1 and 2 on 14.6.1963 in the court of the Civil Judge, Mandi-Baha-uddin. The suit was decreed in favour of the plaintiffs to the extent of 26/40 shares in the suit land and dismissed in respect of the remaining 14/40 shares by the trial court vide judgment and decree dated 3.11.1964. The plaintiffs preferred an appeal in the court of Ditrict Judge, Gujrat which was allowed by the learned A.D.J., Gujrat vide his judgment and decree dated 20.2.1968. 2. Respondents No. 1 and 2 are represented by Baqir Gardaizi, Advocate who has not entered appearance. Notices were also issued to the respondents but no one has appeared on their behalf. Under these circumstances, they are ordered to be proceeded against ex-pane. 3. I have heard the learned counsel for the appellant. The main ground urged by the learned counsel for the appellant is that there was no proper disposal of the appeal by the learned Additional District Judge. He has pointed out that the appellate judgment is the verbatim copy of the written arguments submitted by the learned counsel for the respondents. Only one line has been added at the end which is to the following effect:- "the appeal is accordingly accepted with costs." 4. It is unfortunate that the learned Additional District Judge did not apply his judicial mind to the facts of the case and merely felt content by reproducing the written arguments submitted by one of the parties to the appeal, added the above referred line at the end and disposed of the appeal. This is nothing but dereliction of duty and complete failure to exercise jurisdiction. The impugned judgment clearly demonstrates lack of conscious application of judicial mind to the facts of the case, the points for determination and reasons for decision of the court. Being violative of the provisions of Order 41 rule 31 of the C.P.C., it is no judgment in the eye of law. Had the court independently considered the material on the record and passed a conscious judgment, the language of the judgment would have been different from the written arguments submitted 'by the respondent's learned counsel. 5. I am fortfied in my view by the following judgments (referred to by the petitioner's learned counsel):- i) Upendra Nalli Saha vs. Adhar Chandra Saha and others (1921 Indian Cases Calcutta 436); ii) Rafiq Abbas Zaidi vs. A/5/. Shahida Begum and others (1983 CLC 2036); iii) Sycd Hassan Shah vs. Malook Shah and another (1987 CLC 2281). Though on dislinuishablc facts, in the above quoted precedents it was found that the appellate courts had failed to apply its conscious mind to the facts of the case and passed judgments without complying with the provisions of Order 41 rule 31 of the CPC. Hence the impugned judgments were held to be illegal and suffering from material irregularity. Similar, views were expressed in the cases of Talib Hussain vs. Barkat All (1988 MLD 1294), Mohammad Zafar Nabi vs. Kittiyana Memen Association (1988 MLD 2524) and Fenand Raza Rizvi vs. Zaheer Mustafa (1988 MLD 463). In Talib Hussain's case the first appellate court had given history of the case and noted contentions of the parties and thereafter disposed of the appeal with general observation that the conclusions reached on legal and factual position by trial court did not suffer from any illegality, infirmity, misreading or non-reading of material evidence. Hence was not liable to be reversed. Disposal of the appeal in this manner was considered to be in violation of Order 41 Rule 31 of the C.P.C. It was emphasised that the court was required by law to record its own findings on the contentions raised before it after independent appraisal of the material on the record. In Mohammad Zaffar Nabi's case it was held that the appeals must be intelligently disposed of after taking note of arguments advanced, points arising from arguments and other material for deciding the points properly. In Ferzand Raza Rizvi's case, it was emphasised that the appellate court was bound to observe the.mandatory provisions of Order 41 Rule 31 of the C.P.C. and that failure to comply with those provisions would not be a mere irregularity but an illegality. It was further observed that the intention of the legislature was that the second appellate court or the court exercising extra ordinary jurisdiction should be in a position to find out track traversed by first appellate court whit'h could not run away from its onerous duty of recording findings of fact and/or discussing evidence. 6. For the foregoing discussion, I accept this appeal, set aside the judgment and decree dated 20.2.1968 passed by the Additional District Judge and remand the case to the learned District Judge, Gujrat for fresh decision in accordance with the law. He may decide the appeal himself or entrust the same to any other Additional District Judge in the District. Since it is an old matter the appellate court shall decide the appeal within a period of 4 months after the receipt of this order. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Lahore 309 PLJ 1991 Lahore 309 Present: MUIIAMMAD MUNIRKHAN, J NOOR MUHAMMAD etc-Petitioners versus NAZIR AHMAD etc-Respondents Civil Revision No.l546/D of 1990, dismissed on 26.3.1991. Civil Procedure Code, 1908 (V of 1908)- — -S.115~Gift--Validity of-Challenge to-Dismissal of suit and appeal-Revision against-Questions about gifting of disputed land and transfer of possession are questions of fact—Held: There is no legal infirmity in impugned judgments and decrees-Petition dismissed. [Pp.310&311]A Mian Israrul Haq, Advocate for Petitioners. Date of hearing: 26.3.1991. judgment On 16-11-1983, Noor Muhammad and others, petitioners, filed a suit for declaration to the effect that mutation No.197 dated 10-7-1962 of gift was illegal, void and ineffective against thier rights, against Nazir Ahmad, respondent No.l, and Wall Muhammad, the predecessor-in-interest of respondents No.2 to 11, in the Court of Civil Judge, Ferozewala. It was averred in the Plaint that the petitioners/plaintiffs were the successors-in-interest of Nawab Din who (Nawab Din) owned 39 acres of land, out of which he transferred one-third to Nazir Ahmad, respondent, by way of gift mutation No.197 dated 10-7-1962. It was alleged that Nawab Din in collusion with Wali Muhammad got the mutation of gift sanctioned in his favour and that physical possession of the land was not delivered to Nazir Ahmad and was still with them (petitioners/plaintiffs).The suit was resisted. In the written statement, preliminary objections were raised. The defendants denied the correctness of the averments in the plaint. The trial Court framed eight issues. The parties led their evidence.Noor Muhammad, one of the plaintiffs, appeared as PW-3. Muhammad Rafiq PW-1 and Muhammad Naseeb PW-2 were produced in proof of the suit. The plaintiffs tendered documents Ex.P.l to Ex.P.3 in evidence. To rebut the evidence of the plaintiffs/petitioners, the respondents produced Muhammad Ismail DW-1-Nazir Ahmad, one of the respondents/defendants appeared as DW-2. They tendered in evidence copy of muation No.197 Ex.D.2, copy of the rccored of rights Ex.D.3, copies of Khasra Girdawri Ex.P.4 and Ex.D.5 and copy of Jamabandi Ex.D.6. 2. The trial Court dismissed the suit on 27-4-1987. The appeal filed by the plaintiffs against this judgment and decree was dismissed by the learned Addl.District Judge, Sheikhupura, on 5-4-1990, hence this revision. Before me, the learned counsel for the petitioners has challenged the findings of the Courts below on issues No.2, 5, 6 and 7, which are as under :- (2) Whether the suit is within time ?OPP ; (5) Whether the gift of land dated 10-7-1962 is void, ineffective against the rights of the plaintiffs ?OPP (6) Who is in possession of the suit land and since when? O.P.Parties. (7) Whether the plaintiffs are entitled to the decree claimed for in the main suil ?OPP. t He argued that the findings of the Courts below suffered from mis-readings of material evidence; that the mutation of oral Hiba was not genuine; that physical possession of the land was not delivered to respondent No. 1; that the petitioners were not aware of the mutation of Hiba and the findings of the trial Court that the petitioners were aware of gift mutation is contrary to the record; that respondent No. 1 had concealed the transaction of Hiba from the petitioners and that the issues have not been decided by the Courts below separately. 4. I have considered the submissions made by the learned counsel for the petitioners with care. I find that the question as to whether or not Nawab had gifted the disputed land to respondent No.l and had delivered physical possession thereof to him are questions of fact. The Courts below after applying their conscious mind to the oral evidence and the documents placed on record have found these facts against the plaintiffs/petitioners. The question as to whether or not the plaintiffs/petitioners were aware of the sanction of gift mutation is also a question of fact. The learned counsel has not been able to point out any mis­ reading or non-reading of material oral or documentary evidence by the Courjs below. The learned Appellate Court has attended to the arguments of the learned counsel for the petitioners/plaintiffs addressed before it and has given sound and cogent reasons for over-ruling the same. On my independent assumption, I find that the disputed mutation was sanctioned, on the statement of Nawab Din/donor and not only mutation was attested in favour of respondent No.l, but the mutation was given effect in the revenue record. Copies of the Jamabandi and Khasra Girdawri do not support the case of the petitioners/plaintiffs. I do not see any legal infirmity in the impugned judgments and decrees. The learned counsel has not been able to make out a case of illegality or material irregularity or jurisdictional error. The trial Court has virtually given findings on all the issues although it did not discuss the same separately, so no exception can be taken to the judgment of the trial Court. The learned Appellate Court has dealt with the points raised by the learned counsel appearing for the appellants/petitioners/plaintiffs before it. 5. Pursuant to the above discussion, I do not see any justification to interfere with the well reasoned judgments and decrees of the Courts below. So this revision is dismissed in It/nine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1991 Lahore 311 (DB) PLJ 1991 Lahore 311 (DB) Present: M.MAHBOOB AHMAD CJ AND MALIK MUHAMMAD QAYYUM, J Mst. TAJ BEGUM and 4 others-Appellants versus ABDUL HAQ and others-Respondents Letters Patent Appeal No.374 of 1968, accepted on 18.3.1991 (i) Laclies-- —Local—Application for transfer of house—Refusal of—Challenge to—Whether revision of appellant before Settlement Authority was time barred or suffered from laches—Question of—Suffice to say that there is no period of limitation prescribed for filing revision—In any case, delay had occurred due to death of appellant's husband—Held: Appellant being a purdah-nashin lady, not otherwise literate and having minor children to look after, rigors of principle of laches will also not be attracted to this case—Appeal accepted. [P.314JE&F 1987 SCMR 1119 rel. (ii) Settlement and Rehabilitation Mutters-- —Local—Application for transfer of house—Refusal of—Challenge to—Whether rental value was less than Rs.10000/- and appellant (a local) was entitled to its transfer—Question of—Excise & Taxation Department assessed rental value at Rs: 270/- whereas Municipal Committee assessed it at Rs: 200/- per annum- Under Para 22-A of Settlement Scheme No.l, lesser of two assessments is to be adopted for determination of amount payable by transferee-Held: On evaluating rental value assessed by Municipal Committee, it would come to Rs: 9200/- which is less than Rs: 10000/- and predecessor-in-intercst of appellants was entitled to transfer of property in dispute. [Pp.313&314]A,B,C&D PLD 1963(WP) Lahore 488 rel. Sh. Anwaml Haq, Advocate for Appellants. Afiu/i Dilawar Malunood, Advocate for Respondents. Date of hearing: 18.3.1991. judgment M. Muhbood Ahmad, CJ.--This Letters Patent Appeal calls in question judgment dated 27.11.1968 of the learned Chief Justice of this court passed in W.P.No.l309-R of 1964. 2. The facts relevant for the purposes of this appeal, briefly stated, are that property No.66, Ward No.6 Lyallpur (now Faisalabad) consisted of two portions one of which was in occupation of the appellant's husband namely Muhammad Ashraf and the other in occupation of one Muhammad Tufail. The portion in possession of Muhammad Ashraf, husband of the appellant stood allotted to him vide order dated 10.10.1947. The said Muhammad Ashraf on 24.7.1959 on the commencement of settlement operations applied for transfer of the portion in his possession through L.H.Form. This Form was not disposed of. The portion in occupation of Muhammad Tufail was transferred to him on 30.11.1959 whilst the portion in occupation of the husband of the appellant was put in the ear marking scheme and then transferred to respondent No.l. Muhammad Ashraf the husband of the appellant filed an appeal against the afore-mentioned transfer in favour of respondent No.l. This appeal was dismissed by the learned Addl.Settlement Commissioner on 4.4.1960. The revision taken by the appellant before the Settlement Commissioner against the appellate order afore-mentioned was also dismissed on 28.4.1964 as barred by time. The appellant there-upon filed writ petition No.l309-R/1964 which was dismissed by the learned Chief Justice on 27.11.1968. Hence the present appeal. . 3. The writ petition afore-mentioned was dismissed mainly on the ground that the revision had been dismissed as barred by time and that while determining entitlement of a local (in the present case the husband of the appellant) the price of the entire house had to be made the basis of such determination. 4. The learned counsel for the appellant has raised the following two main contcnlions:- (/) That the learned Single Judge has not taken into consideration the provisions governing the transfer of houses to locals and has also not taken into consideration the precedent case law on the subject. It was urged by him that Para-22.A of Settlement Scheme No.l provides the basis for determination of the value of the property for the purposes of determining the eligibility of a local to the transfer of property out of the compensation pool. He also referred to Gulzar Muhammad V. Chief Settlement Commissioner Pakistan and another reported as (PLD 1963 (W.P) Lahore 488) in support of the contention that if two valuations can be arrived at on account of different assessments of rental value the lower of the two values shall be the basis for determination of the entitlement of a local; (ii) that the orders of the settlement hcirarchy being void, the bar of limitation cannot be asserted against the appellant while questioning the validity of the void order. Additionally it was argued that no limitation is otherwise prescribed for filing a revision before the Settlement Commissioner. 5. Contrarily the learned counsel for the contesting respondent contended that by virtue of section 2(9) of the Displaced Persons(Compensation & Rehabilitation) Act (XXVIII of 1958), the value of an evacuee property is to be determined by multiplying the annual rental value with forty. The learned counsel in this context pointed out that the annual rental value of the property as assessed by the Excise & Taxation Department being Rs.270/-, the house in \iicf ion taken in its totality has been rightly valued at Rs.10,800/- 6. The next contention of the learned counsel for the contesting respondent was that determination of the value of the property being a question of fact has riehtly been not gone into by the learned single Judge. 7. Lastly the learned counsel contended that even if no period of limitation is prescribed for filing a revision before the Settlement Commissioner, the principle of laches is attracted to the case in hand. 8. Having given consideration to the controversy we are of the view that the case of the appellant has not been properly dealt with by the settlement hierarchy. The material on the record shows that there were two rental values assessed in respect of the property in dispute; one by the Excise & Taxation Department which is Rs.270/- per annum and the other by the Municipal Committee of Lyallpur (now Faisalabad) which assessed the annual rental value of the property at Rs.200/- per annum. The certified copy of the assessment carried out by the Municipal Committee is Annexure 'D' to the writ petition. 9. Section 2(9)(b) of the Displaced Persons (Compensation &I Rehabilitation) Act 1958 provides that the value of an evacuee property shall be determined by multiplying the annual rental value with forty.Para 22.A of Settlement Scheme No.l lays down that where the assessment made by the Government for 1946 under any of the immovable property tax laws and that made by the local body concerned for the same year is different the lesser of the two assessments shall be adopted for determination of amounts payable by the transferee. 10. A; local is entitled to transfer of an evacuee property on payment of market value of the same. The market value determined on the basis herein above given, i.e., forty times the annual rental value plus fifteen percent thereof. 11. Applying the above provision of law, the market value of the house in dispute based on the annual rental value as assessed by the Municipal Committee, Lyallpur (now Faisalabad), a local body, would come to Rs.200 x 40 = Rs.8000/- plus 15%' thereof i.e. Rs.1200/- which makes a total of Rs.9200/- which is less than Rs. 10.000/-. The criteria laid for seeking transfer by a local having been fulfilled in the present case, i.e. the value of whole of the house being less than Rs.10,000/- the predecessor-in-interest of the appellant was entitled to have the property transferred to him. The above basis for determination of value also came under consideration in the case cited by the learned counsel for the appellant wherein it was held that the lesser of the two assessments has to be made the basis of computation of the market value. The settlement hierarchy did not consider the matter in the light of the provisions of law governing the subject as given herein above and therefore, the orders having been passed in complete dis-regard of the said provisions cannot be clothed as having been passed with lawful authority. This aspect of the matter also appears to have not been brought to the notice of the learned Single Judge. 12. As regards the revision being barred by time, we suffice by observing that there is no period of limitation prescribed for filing such revision and in any case the delay that had occurred due to the death of the husband of the appellant who being purdah-nashin lady not otherwise literate and having minor children to look after, the rigors of the principle of laches will also not be attracted to the case in hand and a lenient attitude was called for in order to promote the ends of justicc.lt may pertinently be observed here that the appellant has all along been in possession of the house and being a poor widow her dislocation at this juncture of her life will operate harshly to her and such a situation cannot be countenanced especially when the contesting respondents will not suffer any such difficulty and can be compensated by the Settlement Department otherwise. The view as taken above by us has also been taken by the Supreme Court in Pakistan Post Office v. Settlement Commissioner and others reported as (1987 SCMR 1119). In view of the fore-going discussion, we would allow this appeal and setting aside the judgment of the learned Single Judge and also all the orders of the settlement hierarchy direct that the portion in occupation of the appellant in pursuance of possession of her husband be transferred to her as required by law. There will however be no order as to costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 Lahore 314 PLJ 1991 Lahore 314 Present: MALIK MuiIAMMAD QAYYUM, J ZAFAR HUSSAIN (DECEASED), THROUGH HIS L.RS-Pctitioner versus MANZOOR HUSSAIN alias KARA QALIGAR and others-Respondents Writ Petition No. 1686 of 1987, accepted on 13.5.1991 (i) Urban Rent Restriction Ordinance, 1959 (W.P. Ord VI of 1959)-- —S.13-A-Tenant-Ejectment of-Prayer for--Whether notice under Section 13- A of Ordinance was necessary-Question of-Held: Ejectment petition itself is to be regarded as a notice under Section 13-A and if even after filing of ejectment petition, no rent is paid by tenant, he cannot plead want of notice as a defence—Petition accepted and case remanded. [Pp.317&318]B&C 1986 SCMR 751 and 1985 SCMR 24 rel. (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord.VI of 1959)-- -—S.13-A-Tcnant-Ejectment of-Praycr for-Whether notice under Section 13- A was necessary-Question of-Pclitioner was deprived of control and management of property in dispute by a notification under Section 7 of Waqf Properties Ordinance, 1961 which was later on rescinded and possession was restored to petitioener-No new rights were created by rescission of notification-Held: Section 13-A of Ordinance had, as such, no applicability. [P.317]A 5. ; i. Muhammad Shaft, Advocate for Petitioner. Mr. S.M. Masud, Advocate for Respondent No.l. Nemo for Repondents 2&3. Date of hearing: 13.5.1991. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance filed by Zafar Hussain petitioner herein against Manzoor Hussain respondent No.l and Fazal Hussain the predecessor-in-interest of respondent No.2, with respect to shop bearing No.B-3/275 situated in Bazar Maqbara Panday Shah, Gujrat, on the ground of default in payment of rent with effect from March, 1975. 2. In the written reply filed by them respondent No.l and predecessor of respondent No.2 denied that they were tenants under the petitioner and instead pleaded that they were occupying the shop as tenants under Islahi Committee (Registered) Maqbara Panday Shah, Gujrat. 3. The learned Rent Controller framed a preliminary issue regarding the existence of (relationship of) landlord and tenant between the parties and by his order dated 13th of May, 1984 held that the respondents were tenants under the petitioner and proceeded to direct their eviction from the shop in dispute. 4. Aggrieved by this order respondents 1 and 2 filed an appeal which was heard by an Additional District Judge at Gujrat who vide his order dated 14th of October. 1984 upheld the findings of the Rent Controller on the issue relating to existence of relationship of landlord and tenant (between the parties but set aside the order of ejectment holding that without determining whether a notice under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 had been served upon the respondents by the petitioner, no order for ejectment could be passed. The case was therefore, remanded for further proceedings to the Rent Controller. 5. In the post remand proceedings the Rent Controller framed the following issues:- 1. Whether the respondents have committed default in payment of rent? OPA 2. Relief. By the order dated 3rd of March, 1985, the Rent Controller held that the notice under Section 13-A had not been served upon the respondents by the petitioner and as such, the respondents were not defaulter in payment of rent. As a consequence of these findings, the ejectment petition was dismissed. This order of the Rent Controller was challenged by the petitioner by filing an appeal which was accepted by the Additional District Judge on 21st of July, 1985, who was of the view that as no issue regarding service of notice under Section 13-A of the Ordinance has been framed by the Rent Controller, the order passed by him is illegal. The Additional District Judge, therefore, framed the following additional issue and also recasted issue No.2 as under- 1-A. Whether the petition is preceded with a notice under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance? OPA. 2. If issue No.l-A is not proved, whether the respondent has not committed the default in payment of rent to the appellant - Petitioner? 6. The case was once again remanded to the Rent Controller who vide his order dated 24th of March, 1986 decided the issues in favour of the petitioners and directed the eviction of the respondent. 7. This order of the Rent Controller was challenged by the respondents by filing an appeal which was accepted by the Additional District Judge, Gujrat on 20.10.1986 on the finding that notice under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 had not been served upo'n the respondents by the petitioner before filing the ejectment petition. The finding of the Rent Controller on this issue was, set aside. The Additional District Judge did, not however, decide issue No.2 relating to default. 8. The petitioner has now filed this constitutional petition assailing this judgment of the Additional District Judge. 9. Sh.Muhammad Shafi, the learned counsel for the petitioners has raised two contentions in support of this petition:- ((') That in the present case there was no necessity of serving any notice under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 as there was no transfer of ownership. It was explained by the learned counsel that the shop had been rented out by the petitioner to respondents 1 and 2 but was taken over by the Chief Administrator of Auqaf through a notification dated 24th of January, 1973 issued under Section 7 of the Waqf Properties Ordinance, 1961. However, that notification was rescinded on 15th of January, 1975 with the result that the property stood restored to the petitioner. According to the learned counsel, the Additional District Judge was in error in treating the j restoration of property as transfer of ownership. (//") That even if a notice under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 was necessary, the ejectment petition was itself a notice. Reliance has been placed on Major (Retd) Muhammad Yousaf v. Mehraj ud Din and others (1986 SCMR 751) and Syed Azhar Imam Rizvi v. Mst.Salma KJiatoon ( 1985 SCMR 24). 10. The learned counsel for the respondents in addition to converting (controverting) the arguments of the learned counsel for the petitioner, has raised two preliminary objections firstly that at the time of filing of this constitutional petition Fa/.al Hussain respondent No.2 was dead and therefore, this petition being against the dead person was a nullity, and secondly that as Zafar Hussain petitioner had died during the pendency of the present petition, his legal representatives should have served a notice under Section 13-A of the Punjab Urban Rent Restriction of Ordinance, 1959 on the respondents. 11. The first contention of the learned counsel for the petitioner has force in it. While deciding the issues as to the existence of relationship of landlord and tenant between the parties, both the Rent Controller and also the Additional District Judge in the earlier round of litigation had held that at the time of taking over of the property by the Chief Administrator of Auqaf the petitioner was in control and management of the same of which he was deprived by the notification issued under Section 7 of the Waqf Properties Ordinance. 1961. Subsequently upon the rescission of this notification, the property stood restored to the petitioner. The rescission had the effect of wiping away and effacing the effect of that notification. This restoration could not be equated with transfer of ownership within the meaning of Section 13-A of the Urban Rent Restriction Ordinance, 1959. The transfer contemplated, by Section 13-A of the Urban Rent Restriction Ordinance, is the one where rights are (for) the first time created or conferred upon another person by virtue of an alienation or inheritance. In the present case, no new rights were created in favour of the petitioner by the rescission of the notification taking over the property which revived the pre-existing rights. Section 13-A of the Ordinance had as such no applicability. 12. The second contention of the learned counsel for the petitioner is equally forceful and is based upon the high authority of the Supreme Court in the precedents cited by him, wherein it has been held that ejectment petition itself is to be regarded as a notice under Section 13-A of the Ordinance and if even after the filing of the petition of ejectment no rent is paid to the landlord, the tenant cannot plead want of notice under Section 13-A of the Ordinance, as a defence. 13. Now reverting to the preliminary objections of the learned counsel for the respondents, it is correct that when the constitutional petition was filed, Fazal Hussain respondent No.2 was already dead. However, on an application filed by the petitioner his legal representatives were brought on the record, vide order passed on C.M.No.1459 of 1988 on 5th of June, 1988. Consequently the defect in constitution of the petition stood rectified from that date. As there is no limitation prescribed for filing a constitutional petition, even if it is considered to have been filed on 5th of June, 1988, it would not make any substantial difference. 14. So far as the other objection of the learned counsel is concerned suffice it to say that the notice issued in this petition by this Court can be regarded as a sufficient compliance of the provisions of Section 13-A of the Punjab Urban Rent Restriction Ordinance, as held by the Supreme Court in Major (Retd) Muhammad Yoitsafv. Mchraj ud Din and others (1986 SCMR 751) and SyedAzhar Imam Rizvi v. Mxl.Salma Kliatoon (1985 SCMR 24). Even otherwise the dispute here is whether the respondent had committed default in payment of rent for the period when the petitioner Zafar Hussain was alive. The question of service or nonservice under Section 13—A by the present petitioner is, therefore, of no consequence. As a result of what has been stated above this petition is accepted. The judgment of the Additional District Judge dated 20th of October, 1986 is declared to be without lawful authority and of no legal effect as the Additional District IJudge had not recorded finding on issue No.2 the appeal filed by the respondents | is remanded to him for decision on this issue. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1991 Lahore 318 PLJ 1991 Lahore 318 [Rawalpindi Bench] Present: falak sher, J Sardar M.AFSAR KHAN-Petitioner versus HABIB BANK LTD. and another-Respondents. TA.No 13/C of 1991 dismissed on 29.5.1991 Urban Rent Restriction Ordinance, 1959 (W.P. Ord VI of 1959)- —S.15-A—Rent Case—Execution of ejectment order—Transfer of—Prayer for— Acceleration of date of hearing, granting of adjournments by Reader while court was not in session, and non-joining of bank's counsel on D-day culminating into exparte order, do not appeal to reason and are amenable to connotations warranting thorough probe-Held: Petition appears to have been instituted for extraneous consideration with a view to perpetuating illicit venture-Petition dismissed. [Pp.320&321]A Mr. Fazal Elahi Siddiqui, Advocate for Petitioner. Date of hearing: 29.5.1991. order Having leased out to the respondent the suit premises described as "ground floor including two rooms and verandah of house bearing No.B/76 Commercial Centre, Satellite Town, Rawalpindi" for the setting up of its banking business (Ladies Branch) initially for a period of 8 years, undeterminable by afflux of time, with an option to the latter for successive renewals of 5 years period at a monthly rental of Rs.3500/- inclusive of all taxes, levies, dues and cesses present and future, whercunder advance rent of Rs.1,68,000/- embracing a period of 4 years was duly paid and acknowledged, out of which 50% of the monthly rent was to be adjusted while the balance 50% of the monthly lease rental was to be paid by the respondent periodically, explicitly waiving off all statutory and other rights of ejectment and covenanting that ejectment proceedings against the respondent would be vcntrued upon solely in the event of unauthorised subletting and default in the payment of two consecutive months rental despite service of notice through registered post acknowledgement due both at the demised premises as well as the respondent's head office, demanding the stipulated payment within a month from the delivery thereof; petitioner without adhering to the condition precedent vide ejectment petition No.226 of 1990 on 25.9.1990 sought the respondent's ejectment from the suit premises alleging default in the payment of rent since June 1990 approaching the court of Mr.Shaukat Ali Sajid, Rent Controller, Rawalpindi wherein process was issued to the respondent for 4.10.1990 when repetition had to be ordered for 20th of that very month for non-reporting, in response whereto the respondent's counsel putting in his power of attorney joined the proceedings, was furnished copy of the application and the case was adjourned to 13.11.1990 for filine the reply wherein adjournment was availed of for preparing the same which was submitted on 22.11.1990 inter alia objecting to its maintainability on the ground that as on date a sum of Rs.1,38,250/- was still lying with the petitioner as advance rent: additionally an application seeking rejection of the ejectment application was also moved which was dismissed on 20.12.1990 being surplus and taken care of in the solitary issue viz. "whether the respondent has committed wilful default and if so. to what extent? OPP" 2. Whereupon, though initially the case was adjourned for recording of petitioner's evidence, but subsequently substituting the same with a direction to the respondent to arrange personal appearance of an official duly vested with the powers to rectify and amend the lease deed on 2.1.1991. 3. Pursuant whereto an Assistant Vice President of the respondent tendered appearance, but on account of the Presiding Officer's pre-occupation with election assignment, case was adjourned to 7.1.1991 with the specific stipulation envisaged in order dated 2.12.1990 which exercise had to be repeated for 14.1.1991, then for 14.1.1991 court being on leave, then for 19.1.1991 due to election prc-occupalion, then for 2(1.1.1091 due to leave of the Presiding Officer, then for 2.2.1991 and 11.2.1991 for the same reason and with the same direction noticing presence of the parties' counsel on each date of hearing. On which dale the trial Court observing vagueness of the reply ordered filing of replication on 1.4.1991, which was carried out and it appears that the case was adjourned to 11.5,1991 for announcement of the order contemplated by Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, .instead it was taken up on 11.4.1991 and recording the respondent's absence on third call at 12-00 noon, noticing it to be Thursday, ordered ex-paiie proceedings and set down the case for recording of expane evidence on 27.4.1991, which concluded with the solo examination of the petitioner's general attorney and furnishing of his instruement whereafter the case was adjourned to the next day i.e. 28.4.1991, when eventually, decreeing the petitioner's application, the respondent's ejectment was ordered directing handing over vacant possession of the suit premises unto the former within 15 days together with the 50% of the arrears of rent since June 1990, failing which possession was to be acquired through execution proceedings. 4. Accordingly the execution petition was resorted to on 16.5.1991, notice whereof was issued to the respondent for 21.5.1991 qua which the process server on the preceding day i.e. 20.5.1991 submitted report dated 19.5.1991 divulging refusal of the respondent's branch manager to accept notice; consequent whereupon warrant of possession was issued on 21.5.1991. Subsequent whereto, upon the bailiffs reporting of resistance on 22.5.1991, execution through police intervention was applied for, which was allowed and partly implemented viz. the suit premises upon removal of the movables and entrustment thereof to the Superdar, were placed under lock and key by the bailiff with built in iron safe inside. 5. Feeling aggrieved thereby on 22.5.1991, the respondent preferred civil appeal No.212, primarily grudging clandestine ex-pane proceedings, together with an application praying for suspension of the execution proceedings as an interlocutory measure, which was allowed by the learned District Judge, Rawalpindi, observing the following in his own handwriting:- "Prescnt: counsel for the appellant. Proceedings before the Rent Controller are marred by misconduct of grave character as is averred. In the circumstances, I dispense with the necessity of the certified copy of the impugned order and suspend its operation with immediate effect on admitting the appeal to regular hearing. Rent Controller shall furnish a reply to the allegations contained in the memorandum of appeal by tomorrow". 6. On the other hand, petitioner applied to the Rent Controller on 23.5.1991 for appointment of a local commissioner for taking out necessary proceeedings for removal of the built in iron safe from the suit premises, which he returned for presentation to the learned District Judge, seized of the appeal; whereupon local commission was appointed with a direction to visit the spot forthwith for reporting factual nature of the possession and the removal of articles. Meanwhile, the respondent complaining that the injunctive interim order is being frustrated, prayed for unlocking of. the premises containing customer's lockers, cash, securities and other valuables; wherein petitioner's general attorney, Sardar Shaukat Hayat, Advocate was summoned the same day to explain his point of view. Subsequent to the submissions of local commissioner's report, the matter was taken up on 26.5.1991, and the appeal was set down for final hearing on 27.5.1991 and has been partly heard. 7. Transfer whereof presently is being sought urging that the learned District Judge has acted in a partisan manner, illustrating the following: Admitting the appeal to hearing late in the evening; had no material before him for passing the stricture against the Rent Controller; ordered status quo ante; appointed local commission on petitioner's application for inquisitorial role beyond its scope; wrote each order in his own hand; fixed the main appeal for final hearing within a couple of days time; looked into some of the respondent's documents which did not form part of the record; declined petitioner's request of remanding the case to the trial Court for inquiring into the respondent's alleged acccllcratcd hearing after framing of the issue and recording of evidence, and, lastly, though, admittedly, the trial Court failed to discharge the mandatory statutory obligations under Section 13(6) of the Ordinance ibid contemplating direction for payment of arrears as well as future rent before framing of the issues, the appellate court equally in not directing the same. 8. Having minutely perused the record and heard the arguments convassed at the bar I am of the opinion that the trial Court's proceedings do not represent normalcy of events viz. acceleration of the date of hearing announced within the presence of the parties; over enthusiastic summoning of the bank officials tending to manifest intendment of securing rectification of the lease deed; granting of adjourmcnts with reiteration thereof on each successive date of hearing by the Reader while the Court was not in session and disposal of the execution petition with excessive zeal, in view whereof, non-joining of the bank's counsel on the Dday culminating into ex-parte order does not appeal to reason which are amenable to tOi> obvious connotations warranting thorough probe while the mischief venerated therefrom merited emergent handling for effective administration of justice, wherein the learned District Judge rightly intervened. The petition appears to have been instituted for extraneous consideration with a view to perpetuating the illicit venture and is accordingly hereby dismissed in limine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1991 Lahore 321 PLJ 1991 Lahore 321 Present: gul ZARIN KlANI, J ANWAR etc.-Petitioners versus SHERA etc.~Respondents Civil Revision No.332 of 1980, dismissed on 6.5.1991. Execution of decree- —Compromise decree—Execution of—Challenge to—Whether a separate suit was necessary—Question of—Modified decree passed on compromise provided that plaintiffs or other revcrsioncrs of alienor will be entitled to possession after alienor's death-Section 2-A of West Pakistan Muslim personal Law (Shariat) Act (Amendment) Ordinance, 1983, sounded a death-knell to its further executability and silenced it completely for ever—Held: Without a suit for possession on strength of compromise decree, execution could not take place-Held further: Decree was rendered wholly void and ineffective in altered stale of affairs-Petition dismissed. [Pp.323,324&325]A,B&C PLD 1950 Lahore 75, PLD 1954 Lahore 671, PLD 1963 SC 663, PLD 1965 SC 690 and PLD 1966 SC 612 distinguished. Mr. Hassan Ahmad fGian Kanwar, Advocate for Petitioners. Mr. Hakam Qweshi, Advocate for Respondents. Date of hearing: 6.5.1991. judgment This second appeal is a Post-Partition sprout of a civil litigation commenced in Prc-Partition days, upon sale of agricultural land measuring 161 kanals, 9 marlas made by Machhia on 10.11.1939, in favour of Hassan Din, father of Waryam, Adil, Fazal and grandfather of Jehangir. Anwar and Muhammad, two sons of the alienor, challenged the sale by their father in a usual suit under custom, which was a frequent phenomenon in those days, and, sometime after Partition also. On 6.12.1946, the trial Court decreed the suit in favour of the then two plaintiffs. Successors-in-interest of Hassan Din challenged the decree, in appeal before learned District Judge, Sahiwal. In the appellate Court, parties concluded a compromise between them. Consequently the appeal was dealt with and disposed of in terms of compromise, and, on 25.11.1947, the decree passed by the trial Court adjudging the sale void qua the reversionary rights of the plaintiffs was modified on the lines indicated below. The order of the appellate Court recording the compromise reads:- "The parties have effected a compromise. I accept the compromise and modify the decree of the trial Court in so far as to direct that Rs.4,000.00 will be alienee's charge on the suit land. The plaintiffs or other reversioners of the alienors will be entitled to take possession of the suit land after Machhia's death on payment of charge of Rs.4,000.00 mentioned above. Parties shall bear their own costs". The decree followed the terms of the above order. Machhia died on 27.9.1972. His son Muhammad predeceased him leaving behind him surviving two daughters. Mst.Fatima. and, Mst.Sattan and a widow Mst.Fateh Bibi. Later the widow also died. On 25.4.1973, Anwar petitioner filed a petition for execution of the decree passed by the trial Court on 6.12.1046 as modified in appeal, on compromise, on 25.11.1947 for gaining actual possession of the land sold by his father upon payment/deposit of the charge amount, in the sum of Rs.4,000.00. Upon receipt of the execution petition, and. its registration the Execution Court directed for a notice to the respondents/judgment-debtors. They filed a reply, and, objected to the exccutability of the compromise decree passed in appeal on 25.11.1947. It was stated that "Anwar petitioner is not entitled to claim possession of the suit land through execution proceedings. He is legally required to file a separate suit for his entitlement to take possession of the land after Machhia's death on payment of charge of Rs.4,000.00". Other objections raised were that Anwar son of Machhia alone was not entitled to take possession of the whole of the land, and, surviving heirs of Muhammad, the predeceased son of Machhia, were a necessary party to and in their absence, execution was defectively instituted. In replication, Anwar decree-holder reiterated his stand. On 15.3.1974, Execution Court framed following issues for dctermination:- 1. Whether application for execution was incompetent? 2. Whether Anwar Khan petitioner alone is entitled to the execution of the decree? 3. Whether heirs of Muhammad son of Machhia are not necessary party? If so, what is the effect of not-joining them in the case? 4. Whether the execution petition is defective for reasons given in para 4 of the reply? Parties gave oral evidence, and produced an extract from the death-register showing Machhia to have died on 27.9.1972, Ext.P.l, decree-sheet prepared in appeal Ext.P.2, order recording compromise in appeal Ext.P.3, Register Haqdaran Zamin for the year 1968-69 Ext.P.4. Upon review of this record, learned Senior Civil Judge, Sahiwal, held it to be an executable decree for possession to the extent of the share of Anwar, and, issued warrant for possession for 1/2 of the land in question. Both the parties did not accept the decision of the Execution Court. Anwar laid claim to the whole of the land, and, respondents/successors-ininterest of the alienee, for dismissal of the execution petition in toto. Lower appellate Court heard the appeals together, and, by a common judgment passed in them, on 1.3.1980. dismissed the appeal (Civil Appeal No.93 of 1977) filed by Anwar, and, accepted that of Adil etc. (Civil Appeal No.129 of 1976) by dismissing the execution petition holding that the compromise decree was not a "possessory decree" capable of execution, without a proper suit for possession of the land filed on its basis. Against this order of the lower appellate Court, a further appeal was filed in this Court. It was admitted on 15.3.1980. Mr.Hassan Ahmad Khan Kanwar, Advocate, learned counsel for the petitioner, contended that:- (/) decree for possession of the land could be based on compromise in the appeal arising from a suit filed under custom to challenge the alienation of ancestral land for want of legal necessity and consideration, and, there was no bar for (he Court to make it, if parties agreed; (//) that the respondents were bound by the terms of the compromise decree to deliver possession in execution upon receiving the amount of charge; (Hi) that compromise decree enured for benefit of a surviving near reversioner and female heirs of Muhammad were not entitled to avail of it; (iv) in case, they were found entitled to a share in the land, the Court hearing the appeal could allow them relief. In support of his contentions, learned counsel heavily relied upon Mst.Fatima Bibi v. Muhammad (PLD 1950 Lahore 75), Mst. Niamat Bibi . Nur Muhammad and others (PLD 1954 Lahore 671), East and West Steamship Co. v. Queensland Insurance Co, (PLD 1963 S.C. 663), Haji Abdullah Klwn and others v. Nisar Muhammad Khan and others (PLD 1965 S.C. 690) and Malik Muhammad Hayat Klian v. Sitbcdar Yar Muhammad Klian (PLD 1966 S.C. 612). In course of hearing of the revision petition, learned counsel, when confronted with the impact of supervening legislation in Punjab Ordinance XIII of 1983, submitted that it did not materially affect the fate of the case because it was a transaction past and closed covered by Proviso to Section 2-A of the aforesaid Ordinance. Mr.Hakam Qureshi, learned counsel for respondents, supported the impugned judgment for the reasons given in it. Additionally, it was submitted that the limits on the powers of the Court under Section 115 Civil P.C. did not permit for an interference. Also argued that in a suit for declaration filed under custom, decree lor possession, in the life-time of the alienor, could not have been passed. Lasily, it was argued that Section 2-A of Punjab Ordinance XIII of 1983 gave a final death blow to the compromise decree "directing delivery of possession" on payment of the amount of charge. Upon hearing the learned counsel at length, examination of the records, the nature of the suit filed under custom and the tenor of decree passed in appeal arising from it, in my opinion, without a suit having been filed for possession on the strength of a compromise decree passed in partial modification of the decree of the trial Court adjudging the sale invalid qua the reversionary rights of the plaintiffs in the suit, execution could not take place and possession obtained. Compromise decree was not a decree for possession, capable of execution straightaway upon death of the alienor. The facts in the case of Mst.Fatima Bibi supra were not parallel. In that case, the death of the female alienor had taken place in course of appeal, which made the remedy for possession available at the time of compromise between the parties. In that context, a decree for possession passed was held executable. Other cases ciled by Mr.Kanwar had no similarity of the facts and the ratio in them did not apply. Modified decree passed on compromise provided that the plaintiffs or other reversioners of the alienor will be entitled to take possession after Machhia's death. Plain reading of the decree showed that it gave right to the plaintiffs or other unspecified reversioners of the alienor to take possession of the suit land after the material event i.e. the death of the alienor. It did not seem to dispense with the legal remedy of a civil suit required to be filed under law for obtaining the possession of the suit land on the basis of the decree declaring the sale null and void qua the reversionary rights. Therefore, learned Judge below was right in construing the compromise decree in that manner. Be that as it may, even if the compromise decree was treated as a decree directing possession of the suit land on the death of Machhia, Section 2-A of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance 1983 (Ordinance XIII of 1983) sounded a death-knell to its further executability, and silenced it completely for ever. Section 2-A, by a fiction of law provided that a male heir, who had acquired any agricultural land under custom from the person, who, at the time of relevant acquisition, was a Muslim shall be deemed to have become its absolute owner as if such land had devolved upon him under Muslim Personal Law (Shariat) Act. Restrictions imposed by custom on the power of alienation of a male owner are foreign to Islamic Law. Under that system of law, a person, who is absolute owner of his property, and excepting a certain mode of transfer and the extent of transferable property in specified cases and circumstances, there are no restrictions on his power of dealing with his owned property. By new legislation in Ordinance XIII of 1983, restrictions and restraints on power of alienation imposed by customary law were completely done away with and any decree, judgment or order of any Court affirming the right of any revcrsioncr under custom or usage to call in question such an alienation or directing delivery of possession of agricultural land on such basis, was declared void, incxecutable and of no legal effect to the extent, it was contrary to Muslim Personal Law (Shariat) Act. All suits .or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of the land under such decree were directed to abate forthwith except for the transactions past and closed, where possession of the land had already been delivered under such decree. Obviously, present was not a case of transactions past and closed. Upon death of Machhia, Anwar had applied to the Court to execute the compromise decree for obtaining possession of the land upon payment of the charge money imposed upon it. Section 2-A of the afore-noticed Law not only struck down the decree of the Court as of no legal effect being contrary to Muslim Personal Law, but also gave instantaneous burial to the execution proceedings seeking possession of the land under such a decree. There was no doubt that the Legislature was competent to nullify the effect of the Court-decrees. The contention that the possession had been taken by the petitioner under some unknown arrangement, was not borne out from the record. Contents of the execution petition and the prayer made in it clearly negated the truth of that contention. I have no doubt to say that possession under the decree was not transferred, when Ordinance XIII of 1983 came in force. Therefore, be it a declaratory decree under custom required to be followed by a suit to recover possession under that system of law or a possessory decree capable of execution forthwith upon the death of Machhia, in either cases, it was rendered wholly void and ineffective, in the altered state of law. In this view of the matter, civil revision is left with no real merit in it, and, is accordingly dismissed, by leaving the parties to bear (heir own costs of it. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 325 PLJ 1991 Lahore 325 Present: gul ZARIN KlANI, J TAJ DIN etc.-Petitioners versus ALLAH DITTA-Respondent Civil Revision No.1118/D of 1980, dismissed on 13.5.1991. (i) Limitation— —Pre-emption suit—Payment of deficiency of Court fee after expiry of limitation-Whether pre-emptor could be non-suited-Queston of-Plaint was presented to competent court within limitation-Held: In act of delayed payment of deficit Court-fee in pursuance of order of Court, no question of limitation was involved-Held further: Plaint could not have been rejected or suit dismissed on basis of a mere technical objection. [P.326JA PLD 1984 SC 289 rel. (ii) Sinker— —Pre-emption suit-Sinker-Principle of~Whether principle of sinker was righty applied-Question of-Sale was joint and indivisible-Share of each vendee was distinct and specific but proportion of sale price contributed by each vendee is not indicated-Petitioner No.l was tenant of land in dispute at time of sale, but his associates were strangers and had no right of pre-emption- -Held: Courts below rightly decreed suit in favour of plaintiff (applying principle of sinker). [Pp.326&327]B PLD 1968 SC 140 rel. Mr. KM. Virk, Advocate for Petitioners. Nemo for Respondent. Date of hearing: 13.5.199-1. judgment Revision petition, at the instance of vendees-defendants, in the pre-emption suit raises only two points for determination. First related to delayed payment of Court-fee on the plaint, in the pre-emption suit, and, second concerned itself with the application of doctrine of sinker. On consideration, both are found to be without substance. Facts are:- By sale deed registered on 13.1.1973, Mrt.Tobi sold 17 kanals of land at mau/a Marri Thakaran, Tehsil and District Gujranwala, in favour of Taj Din, Muhammad Aslam, Muhammad Younas, a half share, Muhammad Jam eel, Muhammad Khalil, Muhammad Vakil and Muhammad Sharif, the other half, for a consideration of Rs.8160/-. Allah Ditta pre-empted the sale. He asserted his superior right of pre-emption on the grounds of being a co-sharer in the land sold, and, owner of the estate. Pre-emption suit was instituted on 12.1.1974. Vendees-defendants contested the pre-emption suit. Number of defences were raised. On 5.9.1974, the trial Court settled necessary issues. Thereafter, it took evidence of the parties. Upon its careful analysis, the trial Court decreed the pre-emption suit in favour of pre-emptor subject to his paying Rs.8160/- as the sale price to the vendees-defendants, after deducting the amount of zar-i-panjum already deposited in Court, by or before 29.4.1979. In default, the pre-emption suit was deemed to have been dismissed. Appeal filed against the decree of the trial Court by the defendants failed in the lower appellate Court on 19.6.1980. On the basis of a judgment in Walayat Khatun's case, a revision petition filed in this Court was admitted to hearing on 17.11.1980. In para 9 of the plaint, valuation of the suit for purposes of Court-fee was assessed at fifteen times of the annual net-profits shown at Rs.68/-. On 25.2.1978, the trial Court directed the plaintiff/pre-emptor to file statement of annual netprofits before 9.3.1978. On this date of hearing, the trial Court called upon the plaintiff to pay the deficit Court-fee at fifteen times of the annual net profits shown as Rs.212.50, before 12.3.1978. On the same day, plaintiff placed Court-fee stamps of the required value in the sum of Rs.162/- on the file of the trial Court. On the next date of hearing fixed in the suit on 12.3.1978, the trial Court recorded in the order-sheet that the deficit court-fee had been paid. Thereafter, an application filed under Order VII, Rule 11 Civil P.C. for rejecting the plaint on account of non-payment of the correct amount of Court-fee on the plaint within limitation, was dismissed by the trial Court on 11.3.1979. It is common ground that prior to 25.2.1978, when the court had called upon the plaintiff to file statement of annual net-profits, there was no order fixing with exactitude the amount of Court- Ice payable on the plaint in the pre-emption suit and directing the discovered deficiency in Court-fee to be made good before a time fixed in it. Plaint in the pre­ emption suit was presented to the competent Court within the prescribed period of limitation. Therefore, in the act of delayed payment of deficit Court-fee, in pursuance to an order of the Court, no question of limitation was involved, and, the plaint could not have been rejected or the pre-emption suit dismissed on the basis of a mere technical objection relating to delayed payment of Court-fee on the plaint. Decision of the Supreme Court in Siddique Klian and 2 others versus Abdul Shakur KJwn and another - PLD 1984 S.C. 289 assists the point. Therefore, so far as the contention regarding delay in payment of Court-fee relatable to bar of limitation is concerned, it has no merit in it and is repelled. As far the doctrine of sinker, in my opinion, it was correctly applied to the facts of the case. Sale sought to be pre-empted was made through a registered deed. Its contents revealed that it was a joint and indivisible sale. Share in the land purchased by each vendee was distinct and specific but the sale deed did not indicate the proportion of the sale price contributed by each vendee. There was no proof of it either. Also, there was no statement in the pleading about it. Therefore, on the test laid down in the case of Abdullah and 3 others versus Abdul Karim and olhers- PLD 1968 S.C. 140, the pre-emptive sale shall be deemed and held joint and indivisible. Taj Din vendee alone was stated to be a tenant on the land in dispute at ihc time of its sale. Entries in khasragirdawari, however, did not lend support to his pica of tenancy rights. Be that as it may, even if Taj Din occupied the land in dispute as a non-occupancy tenant at the time of its sale and had first right of pre­ emption, since his associate-vendees were strangers and had no right of pre­ emption, he shall be deemed to have sunk to their position and could not successfully resist or compete with the pre-emptor who as owner of the estate was possessed of a better right to get the land against all the vendees. Looked at from tthis angle, the Courts below rightly decreed the pre-emption suit in favour of plaintiff and there was no ground to interfere with the decrees passed by them. In this view of the matter, civil revision has little merit in it, and is, accordingly, dismissed by leaving the parties to bear their own costs in this Court. Records be returned. (MBC) (Approved for reporting) petition dismissed,

PLJ 1991 Lahore 327 PLJ 1991 Lahore 327 Present: II isanul HAQ Cl IAUDMRY J. MUHAMMAD SHAFIQUE RAJA-Petitioner versus GOVERNMENT OF PUNJAB, THROUGH CHIEF SECRETARY and 2 others—Respondents Writ Petition No.328 of 1990, accepted on 29.1.1991. (i) Constitution of Pakistan, 1973-- —Art. 199(l)(b)(ii)--QHO Wairanlo-'Writ of-Issuance of--Prayer for-Pardon does not restore a convicted person to public office though it may remove disability for fresh grant of employment—Order of pardon was passed on 'mercy petition and not on review petition-It has rightly been pointed out that pardon was in respect of allegations against petitioner-Held: By exclusion of order of pardon from consideration, notification of re-instatement of respondent No.3 is rendered illegal and without jurisdiction-Held further: Respondent No.3 has failed to show valid order or authority under which he is holding public office—Petition accepted and writ issued. [Pp.331&332]B,C,D&E PLD 1977 SC 212 and 1984 SCMR 788 rel. (ii) Constitution of Pakistan, 1973- —Arl.l99(l)(b)(ii)--<2u0 Wairanto—Vfrit of-Issuance of~Prayer for- Respondcnt No.3 was compulsorily retired from service by MLA/Governor under CMLO 17-On mercy petition, he was pardoned-Respondent No.2 issued notification of his re-instatement—Held: Respondent No.2 misinterprcttcd and misconstrued order of pardon and over-stepped his authority and jurisdiction while issuing order of re-instatement of respondent No.3. [P.331JA PLD 1956 (W.P) Peshawar 77 and PLD 1958 Lahore 185 rel. Mr. Awais Shahid, Advocate for Petitioner. Mr. Farooq Bedar, Addl A.G. with Mr. Abdus Samad Hashmi, Advocate for Respondents 1 & 2. Mr. D.M. Awan, Advocate for Respondent No.3. Date of hearing: 29.1.1991. judgment The petitioner through this Constitutional petition has prayed for issuance of a writ of quo warranto directing respondent No.3 to show under what authority of law he is holding the public office of the Chief Engineer, Buildings North Zone, Lahore. 2. The relevant facts are that respondent No.3 was serving as Superintending Engineer, Provincial Buildings Circle, Rawalpindi, in the year 1983 when he was retired prematurely from service with immediate effect vide Notification dated 20.10.1983, issued by the Government of the Punjab, Communication and Works Department. This action was taken under CMLO 17. The remedy provided under that statute was review application, which was to be moved within one month of the order. The same was not availed by respondent No.3. Therefore, the order became final. 3. The petition was admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the petition. 4. The learned counsel for the petitioner argued that the order of 'pardon' made by the Governor/MLA cannot be construed (as) a direction for re­ instatement. It is added that the Governor's Inspection Team noticed discrepancies and 'irregularities in respect of maintenance of Workers of Provincial Buildings. The same was reported to the Martial Law Authorities, who decided to initiate an inquiry against respondent No.3. The inquiry report held him guilty and he was ultimately directed to appear before the Martial Law Authorities on 20.12.1982 where he was served with a show cause notice. The petitioner was ultimately found guilty and his premature retirement was ordered. It is submitted that the 'pardon' was granted only in respect of the allegations, the subject matter of inquiry and show cause notice. 5. .On the other hand, the learned counsel for respondent No.3 argued that his client did submit a review petition, a carbon copy of which is anncxurc 'R/2' with the written statement. It is submitted that his client was granted pardon. The same amounted to exoneration from all charges. A copy of the order of pardon was forwarded to respondent No.2, who rightly proceeded to issue notification of re-instatcmcnt of his client. It is added that the writ petition has been actuated by malice and one Aftab Khan is the person behind the scene. It is added that there is professional jealousy between rival groups of Electrical and Mechanical Engineers and the Civil Engineers in the department. The arguments are summed up with the submission that there is nothing wrong with the order of re­ nstatement, which will be deemed to have been passed by the MLA/Governor. The learned Additional Advocate General appearing for respondents Nos.l and 2 adopted the arguments advanced by the learned counsel for respondent No.3. 6 The learned counsel for the petitioner in reply to the arguments submitted that the word 'pardon' docs not include within its folds "re-instatement" by any stretch of imagination. In this behalf he has referred to the judgment of this Court in Writ Petition No.97/S of 1986 decided by my learned brother Muhammad Amir Malik, J. The petitioners prayed for issuance of a writ directing the C.B.R. to reinstate them in service. In that case, the petitioners were convicted by the Summary Military Court No.52. They were, however, granted 'pardon'. On that basis they claimed re-instatement but the Government refused. Then they filed writ petition, which was dismissed in limine. It is added that the petitioner had only one remedy by way of review. The respondent No.3 submitted that he had filed the review but did not produce any order passed on il. Therefore, there was no occasion to re-instate. He also referred in this behalf to the order of pardon specially its subject to show that this order was not passed on the review application but on the mercy petition. The arguments are concluded with the submission that it was only the Governor/MLA, who could have re-instated and not Secretary of the department. Again in this behalf the learned counsel has relied on the decision of writ petition No.97/S of 1986. 7. I have given my anxious consideration to, the arguments of learned counsel lor the parties. The main question for determination in this case is whether respondent No.3 was re-instated by the competent Authority? The contention of the said respondent is that the Governor/MLA granted him 'pardon' and this amounted to setting aside the order of his retirement and respondent No.2 rightly and simply proceeded to implement this order by issuing the notification. The pivotal point on which the fate of this petition hinges is who was the competent Authority? The admilted position is that the order could have only been made by the Governor/MLA. The plea of respondent No.3 is that the order of 'pardon' dated 6.8.1984 amounted to setting aside the order of pre­ mature retirement. Therefore, before proceeding any further it is relevant to refer to the order of premature retirement dated 20.10.1983, which reads as under: "GOVERNMENT OF THE PUNJAB COMMUNICATION & WORKS DEPARTMENT Dated Lahore the 20lh October, 1983. NOTIFICATION No.SOE II(C&W) 12-25/82. In exercise of the powers conferred upon him under CMLO-17 vide CMLA's Secretariat letter No.57/29(l)IB/AJAG 78 dated the 19th August, 1978, the Govcrnof/MLA, Zone 'A', Punjab, is pleased to order as undcr:- (#) Following officers are dismissed from service with immediate effect:-

, (b) Following officers are retired prematurely from service with immediate effect:- (1) Mr.Akhtar Rashid Toosi, Superintending Engineer, Provincial Buildings Circle, Rawalpindi.

A.H.ASLAM SECRETARY TO GOVT. OF THE PUNJAB COMMUNICATION AND WORKS DEPARTMENT while the order of pardon reads as unden- "Secretary to Govt. of Punjab Communication & Works Deptt: Lahore . Info: Akhtar Rashid Toosi —with ref. to your 1-Shadman-XI Lahore-Ill. mercy petition submitteed on 3.7.84 Subject: Review Petition - Pre-maturc Retirement. 1. On receipt of mercy petition from MrAkhtar Rashid Toosi (Ex- Superintending Engineer) the case was considered at this HQ. Governor/MLA is pleased to pardon him. 2. Forwarded for your information, and necessary action with intimation to this HQ please". It is on the basis of this letter that argument was advanced that it amounted to reinstatement. It is not possible by applying any logic or principles of interpretation to treat the 'pardon' granted as reinstatement in service. Learned counsel for respondent No.3 vehemently argued that since the copy was forwarded for information and necessary action, to the respondent No.2, therefore, he was well within his rights to issue the notification of re-instatement which reads as unden- GOVERNMENT OF THE PUNJAB Dated Lahore the 12lh August, 1984. NOTIFICATION No.SOE II(C&W) 12-52/82. On consideration of a mercy petition of Mr.Akhtar Rashid Toosi, formerly Superintending Engineer, Provincial Buildings Circle Rawalpindi, in respect of his premature retirement from service ordered vide Notification of even number dated 20th October, 1983, the Governor/MLA Zone 'A' has been pleased to pardon him. He is re-instated into seivice w.e.f. 20th October, 1982, the dale on which he was retired prematurely. 2. Since Mr.A.R.Toosi, has already proceeded on Haj he is directed to report to this Department for duty and further posting orders immediately on his return. In the meanwhile he shall be treated as on leave er-Pakistan for the performance of Haj, subject to title under Revised Leave Rules, 1981, with immediate effect". (Underlining is mine). Respondent No.2 mis-interprctted and misconstrued the order of pardon and over-stepped his authority and jurisdiction while issuing order of re-instatement of respondent No.3. This order is, therefore, void and reference in this behalf can be made to judgment in the case of Dr.Sher Bahadur Klian v. Government of West Pakistan (PLD 1956 (W.P.) Peshawar 77) an&A.RAzar v. Federation of Pakistan (PLD 1958 Lahore 185). 8. The respondent No.2 has clearly assigned different meanings to the term 'pardon' than its dictionary meanings as well as the meanings accepted by the Government in other cases as is clear from the judgment in W.P.No.97/S of 1986. 9. The term 'pardon' came up for interpretation before the Supreme Court of Pakistan in the case of Muhammad Asghar . Government of Sind (PLD 1977 S.C. 212) wherein it was held that pardon does not restore a convicted person to public office though it may remove disability for fresh grant of employment. The judgment of the Supreme Court in the case of Agha Aqeel Nasir v. Inspector- General, Police Quelta (1984 S.C.M.R. 788) fully covers the proposition. Respondent No.3 maintained that he had submitted review application while it is clear from the order of pardon that the same was passed on the mercy petition dated 3.7.1984. The respondent No.3 has not placed copy of the mercy petition on the record. This presumeably is for the reason that it would have gone against him. It is interesting to note that the review application allegedly submitted by respondent No.3 and copy appended as annexure 'R/2' is not available on the record. Therefore, his plea that he made a review application cannot be accepted. 10. The contentions of the learned counsel for the petitioner that the respondent No.3 was proceeded against by the Governor's Inspection Team and was also summoned by the Martial Law Headquarter in connection with inquiry and charge-sheeted are clearly established from paras 4 and 5 of annexure 'R/2'. Therefore, he rightly pointed. out that the 'pardon' was in respect of those allegations. 11. The moment the order of pardon is excluded from consideration the notification of re-instatement issued by respondent No.2 is rendered illegal and without jurisdiction. It is admitted between the parties that respondent No.2 had no authority and there is no order of rc-instatemcnt of respondent No.3 by the Governor/MLA. This way respondent No.3 -has failed to show valid order or authority under which he is holding the public office. 12. Learned counsel for respondent No.3 vehemently argued thai the writ petition is mala fide and manoeuvred by his colleagues in order to knock out his client from competition with them for promotion. This argument does not arise in the wril of quo wairanto where a citi/.en only draws the attention of the Court to call upon the respondent holding a public office to show cause under what authority he is holding the said public office. The scope of quo wairanto has been fully examined in the cases of Dr.Sher Bahadur, A.R.Azar and the case of KJi.Nooml Amin, Advocate v. Muhammad Naqi Klian (PLD 1990 Azad J & K 42 = PLJ1990AJX36(DB)). ' I 12. The writ of quo warranto ought to be encouraged to keep check on Executive Authorities. The Constitution has scrapped the Rule of English Law that King can do no wrong. I cannot express the same in better words than done by Mr Justice M.R.Kayani in the case of A.R^Azar (Supra). The relevant portion reads as under:- "Kayani, J.--I add this note with a view to laying greater emphasis on the fujility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in an Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by -. either of them at his pleasure. This, I said, was a vicious phrase and a vesting of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947 has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. ball's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone" says the preamble to the Constitution. Even if the preamble had been less pious, the King-cando-no-wrong theory was by its very nature inapplicable to a democratic State". 13. The upshot of the above discussion is that this writ petition succeeds and is allowed with costs. It is accordingly held that respondent No.3 is holding the office of the Chief Engineer, Buildings illegally and is restrained from performing the functions as such. (MBC) (Approved for reporting) Petition accepted ,

PLJ 1991 Lahore 332 PLJ 1991 Lahore 332 Present: malik MUHAMMAD QAYYUM, J M/s DURA FOAM (PVT) LTD.-Petitioner verus UNION COUNCIL KUMAHAN, DISTRICT-LAHORE, and 4 others-Respondents Writ Petition No.1306 of 1991 (also W.P. Nos. 1879, 2128, 2132, 2248, 2194, 2197 and 2229 of 1991) dismissed on 2.4.1991. (i) Alternate remedy- —Import of goods in territory of Union Council-Import tax on~Levy of~ Challenge to~Objection that petitioners had alternate remedy of filing a petition before Government under Sections 153 and 156 of Punjab Local Government Ordinance, 1979, therefore, these petitions were not Here in italics. maintainable-Held: Section 153 of Ordinance cannot be considered to be an equally efficacious remedy within meaning of Article 199 of Constitution. [P.335JC 1991 CLC 354 rel. (ii) Estoppel-- —-Import of goods in territory of Union Council-Import tax on-Levy of- Challenge to—Whether petitioners are estopped to file constitutional petitions- -Question of--Many persons including some of petitioners objected to levy of tax by filing objections-According to petitioners, no sub-committee was ever formed to hear objections-Held: Question of estoppel does not arise. [F.335JB (iii) Locus Standi-- —Import of goods in territory of Union Council-Import tax -on r Levy of- Challenge to-Whether Petitioners had no locus standi to file constitutional petitions—Question of—Petitioners have been made liable to pay octroi duty/import tax on articles being brought by them into territorial limits of Union Council concerned—Held: Petitioners are clearly aggrieved persons within meaning of Article 199 of Constitution and have locus standi to file petitions. [Pp.334&335]A PLD 1969 S.C 223 rel. 1990 CLC (Peshawar) 569 distinguished, (iv) Punjab Local Council (Taxation) Rules, 1980- —R.4-Import of goods in territory of Union Council-Import tax on-Levy of •- Challenge to-Apart from Publication in newspaper, notice was also affixed on Notice Board of Union Council—Held: Requirements of Rule 4 were sufficiently complied with, and notices issued by respondent are not open to any serious objection. [P.335JD Mr. Ataitr Rehman Sheikh, Advocate for Petitioner (in W.P. No. 1306 of 1991). Mr. TehangirAJhoja, Advocate for Petitioner (in W.P. No.2197 of 1991). Syed Favyaz Hussain Qadri, Advocate for Petitioner (in W.P. Nos. 2128 and 2132 of 1991). Sardar Mashkoor Ahmad, Advocate for Petitioner (in W.P. No.2248 of 1991). Ch. Din Muhammad, Advocate for Respondent Nos. 1 and 2 (in All petitions). Mr. AsifSaeed Kliosa, Advocate for Respondent No.3 (in all petitions). M/s frfan Qadir, Rana Muhammad Arshad, Additional A.Gs. and Muhammad Iqbal Vehniwal, Advocate for Respondent Nos. 4 and 5 (in all petitions). Date of hearing: 2.4.1991. judgment This judgment shall dispose of Writ Petitions No.1306/91, 1879/91, 2128/91, 2132/91, 2248/91, 2194/91, 2197/91 and 2229/91 in which common questons of law and facts arise for determination. 2. By means of a notification dated 1-1-1991, Union Council Kamahan respondent No.l, a Local Council constituted under the Punjab Local Government Ordinance, 1979, levied import tax (octroi duty) on the goods brought, into the territorial limits of the union council concerned. The validity of this notification and the levy of tax has been challenged by the petitioners by filing these petitions on various grounds stated therein. 3. It may be mentioned that earlier an exercise was undertaken by the union council by issuing a notification on 21st of July, 1990, which was challenged by certain persons including the petitioners by filing Constitutional petitions in this Court which were accepted on 30th of October, 1990 primarily on the ground that procedure prescribed by Rule 4 of the Punjab Local Council (Taxation Rules), 1980 was not followed particularly the notice contemplated by Rules was neither issued nor published in the prescribed manner. After the acceptance of those petitions the notification now impugned in these petitions.was issued. 4. Mr. Jehangk A. Jhoja, Advocate appearing on behalf of the petitioner in W.P. No. 2197/91 submitted that the public notice issued by respondent No.l, was not in accord with Rule 4 of the Punjab Local Council (Taxation Rules) 1980 inasmuch as the details of articles on which the tax as sought to be levied have not been specified in the notice nor the class of persons liable to pay the tax have been enumerated. It was also pointed out that neither the amount of tax nor the system of taxation, has been fully described in the notice. Syed Fayyaz Hussain Qadri, the learned counsel for the petitioners in W.P.Nos. 2128/91 and 2132/91 besides adopting the arguments of Mr. Jehangir A. Jhoja Advocate contended that no sub-Committee was constituted by the union council to hear the objection to the proposed tax and as such the imposition of tax is violative of Rules 5,6 and 7 of the Punjab Local Council (Taxation) Rules, 1959 (?). Sardar Mashqoor Ahmad, the learned counsel representing the petitioner in Writ Petition No.2248 of 1991 argued that the permission granted by the Government to the union councils to levy octroi tax has since been withdrawn and, therefore, no jurisdiction was vested in the respondents to levy any octroi duty. Mr. Ata-ur-Rehman Sheikh, Advocate, for the petitioner in Writ Petition No. 1306 of 1991 also addressed similar arguments. 5. Tn reply to these arguments it was submitted by Sardar Asif Saeed Khan Khosa appearing on behalf of respondent No.3 that the Procedure for levying the tax prescribed by the Punjab Local Councils(Taxation)Rules, 1980 was strictly followed and all requirements have been complied with. The learned counsel also raised three preliminary objections to the maintainability of these petitions viz. that the petitioners have no locus standi to file the present petitions; that they were estopped by their conduct even (from) filing the peresent petitions and thirdly that an alternative remedy in the form of filing a petition before the Government as contemplated by Sections 153 and 156 of the Punjab Local Government Ordinance, 1979, (being available) these petitions were not maintainable.Mr. Irfan Qadir Addl. Advocate General representing the Government has also been heard in reply. 6. The preliminary objections raised by Mr. Asif Saeed Khosa, Advocate do not have any force. As regards the locus standi of the petitioners, the Supreme Court of Pakistan in the famous case of Fazal Din v. Lahore Improvement Trust (PLD Vjff) S.C. 223i, was pleased to rule that the right considered sufficient for maintaining a constitutional petition need not be necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he has a personal interest in the performance of a legal duty which if not performed or performed in a manner not permitted by law would result in loss of some personal benenfits or advantage or the curtailment of a privilege or liberty or franchise. According to the petitioners they have been made liable to pay octroi duty/import tax on the articles being brought by them into the territorial limits of the Union Council concerned. They are as such clearly persons aggrieved within the meaning of Article 199 of the Constitution. The reliance of the learned counsel for the petitioner on the case ofBannu Sugar Mills (Pvt) Ltd. v. Inspector Customs and 2 others 1990 C.L.C. (Peshawar) 569), is not apt, for that case is distinguishable on facts and arose under the Central Excise and Salt Act, 1944 and the dispute was with regard to the withdrawal of exemption granted under that Act. So far as the question of estoppal is concerned the arguments of the learned counsel have not impressed me. It is to be seen that many persons including some of the petitioners objected to the levy of the tax by filing objections. Furthermore according to the case of the petitioner no sub-Committee was ever formed to hear the objections, the question of estoppal therefore, does not arise. As regards the third preliminary objection suffice it to say that this aspect was examined in detail by this Court in its earlier judgment in Glaxo Laboratories ( Pakistan ) Ltd. v. Union Council, Dulu Nmrd thorough Chariman and 4 others (1991 C.L.C.354). Section 153 of the Punjab Local Government Ordinance cannot be considered to be an equally efficacious remedy within the (meaning of) Article 199 of the Constitution of Islamic Republic of Pakistan. 7. Now adverting to the merits after hearing the learned counsel for the parties and perusal (of) the record with their assistance, I am of the view that objections as to the validity of the tax imposed by respondent No.l are without any force. The main contention of the learned counsel for the petitoners was that the rate of the proposed tax had not been specified in the public notice published in 'Daily Nawa-i-Waqat' of 19th of November, 1990. Though this argument is correct to the extent it goes, but as the notice in queston specifically stated that the rates are enumerated in the schedule available for inspection in the office of the Union Council. According to section 174 of the Punjab Local Council Ordinance, 1979 a public notice can be published either by publication in the newspaper or by affixing it on the Notice Board of the union council. In the present case it appears form the proceedings recorded by the sub-Committee, on 23rd of December, 1990 that apart from publication in the newspaper the notice was also affixed on the Notice Board of the Union Council alongwith the schedule. That being so the requirements of Rule 4 were sufficiently complied with. The other objections raised by the learned counsel for the petitioners are inconsequential and tantamount to making fetish out of techanicalities. The notices issued by the respondent in this bejalf substantially complied with the requirements of Rule 4 of the Ordinance (?) and are not open to any serious objection. 8. The contention of the learned counsel that no sub-committee was formed to hear the objection is belied by the record which not only shows that a subcommittee comprising of the Chairman and four other members was constituted but also that the seven objections which had been received were given due consideration by the Committee in its meeting held on 23rd of December, 1990. The matter was then placed before the house on 26th of December, 1990 which after discussion, agreed with the report of the local council and decided to impose the tax. It was therefore that the notification impugned in this petition was issued. 9. Mr. Ata-ur-Rehman Sheikh, Advocate objected that the date from which the tax was to be levied was not mentioned in the notice. There is however no such requirement in the RuLs. but as contemplated by Rule 9(2) the taxation proposals sanctioned by the local coi-ocil are to come in force on and from such date as may be specified in the notification. In the present case the notification dated 27th of December, 1990 provided for imposition (of) the tax with effect from 1st of January, 1991. 10. In the last it was urged on behalf of the petitioner that the register produced before this Court in order to show that all the formalities were duly complied with, has been fabricated by the respondents with a view to frustrate the present proceedings. This argument raises a disputed question of fact and cannot be examined in the present proceedings. The contention raised by Sardar Mashqoor Ahmad, Advocate may also be attended to. It is agreed that at one time, the Provincial Government had directed the Union Council to impose the octroi duty. This notification was withdrawn by the Provincial Government. The fact remains, that the local council under Section 137 of the Punjab Local Government Ordinance, 1979, read with Entry 12 of Part 1 of the Second Schedule, (has) a power independent of the direction of the Govenmcnt, to levy the tax on the import of goods. , 11. At the fag end of the case Mr. Fayyaz Hussain Qadri Advovate wanted to raise a new argument i.e. that (as per) Entry 12 of the Schedule a tax can be levied only on import of goods meant for consumption use or sale. According to the learned counsel as the petitioners were importing goods neither for use nor for consumption or sale but only for storage, the imposition of duty was bad in law. As the dispute raised, is factual in nature and no such plea was takne in the petition itself, it is not open to the petitioners to urge it for the first time, during the course of arguments being addressed by the learned counsel in reply to the arguments of the learned counsel for the respondents. For the foregoing reasons these petitions fail and are dismissed without any order as to costs. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1991 Lahore 336 PLJ 1991 Lahore 336 Present: gul zarin kiani, J SIRAJ DIN and another-Petitioners versus ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others-Respondents (i) Alternate remedy-- —-Restoration of possession-Suit for-Decree passed and affirmed in revision-­ Challenge to-It is not proper for High Court in a petition under Article 199 of Constitution to decide disputed questions of fact—Held: Existence of an adequate alternate remedy in shape of a civil suit to establish title and consquent recovery of possession, is a sufficient ircumstance to deny relief in equitable jurisdiction-Petition dismissed. [P.338JB (ii) Specific Relief Act, 1877 (I of 1877)-- —-S.9-Restoration of possession-Suit for—Decree passed and affirmed in revision-Challenge to~Section 9 of Act provides for a summary and quicker remedy to a person dispossessed from immovable property except in due course of law-Court can only restore possession to person illegally dispossessed-Question of title is foreign to suit under Section 9 of Act-Held: Petitioner's remedy against decree passed in suit under Section 9 of Act, is by way of a suit based on title. [P.338JA AIR 1934 Madras 558, AIR (36) 1949 Nagpur 126, AIR (37) 1950 Ajmer 6(2) and AIR 1953 Assam 158 rel. Ch. ShaukatAli Saqib, Advocate for Petitioner. Date of heaing: 9.2.1991. order This is a petition under Article 199 of the Constitution, against a decision of learned Additional District Judge, Faisalabad dated 21.11.1990 passed in revision, affirming the judgment of learned trial Court whereby it had decreed the suit filed under Section 9 of Specific Relief Act, for possession of a shop, in favour of Muhammad Siddique respondent No.3 in this Court. Brief facts culminating in the present litigation, shortly put are:- On 12.7.1977, respondent No.3 purchased 3 marlas of land, in Chak No.l97/G.B. Mamun Kanjun Road, Tehsil Samundri from Siraj Din petitioner. Soon thereafter, the purchaser constructed three shops on the area purchased by him with a chaubara on two of them. Two shops were rented out to tenants and in the third Muhammad Siddique and his sons ran a hamam known as Ghausia Sultania Garam Hamam. On 1.6.1986, petitioners aided by others forced their entry into the third shop and dispossessed Muhammad Siddique therefrom in defiance of law. On 26.7.1987, dispossessed Muhammad Siddique brought a civil suit under Section 9 of the Specific Relief Act, for regaining possession of the shop of which he was illegally dispossessed by the petitioners. Petitioners resisted the suit on number of pleas. In result of a contested trial, the trial Court found that defendant petitioners had dispossessed the plaintiff-respondent No.3 from the shop in his possession and directed its restoration of possession to him. Since no appeal lies from an order or a decree passed in the suit under Section 9 of the Specific Relief Act nor a review of them is allowed, the defendants in the suit preferred a revision in the Court of learned District Judge, Faisalabad which came to be heard by a learned Additional District Judge who agreeing with the trial Court on merits of the case, dismissed it on 21.11.1990. Thereafter, recourse was had to the onstitutional jurisdiction of this Court. It is urged that the impugned orders and decrees suffered from gross misreading of record and writ was the only appropriate remedy for setting aside of them. Section 9 of Specific Relief Act provides for a summary and quicker remedy to a person dispossessed from immovable property except in due process of law. Article 3 of Limitation Act, 1908 gave six months to the dispossessed person for suing to regain the possession. All that the Court can do in a civil suit filed under Section 9 of Specific Relief Act is to restore possession of the immovable property to the person illegally dispossessed from it. Question of title to immovable property is foreign to an enquiry in Section 9 suit. All that should be looked into in such a suit is previous possession of the plaintiff and his dispossession by the defendant, otherwise than in due course of law within six months of the suit : brought and nothing more. Clear object behind Section 9 is to discourage use of force for selling of civil disputes regarding possession of immovable property. In number of rulings from various High Courts, it has been held that Specific Relief Act has provided a remedy for a person aggrieved by the order or decree passed in a suit under Section 9 of that Act. His remedy is by way of a suit based on title and it is well established that the Court does not except in an extreme case interfere by way of revision where a separate remedy is available to the applicant. Some of those rulings in which the above view was expressed are reported in (Kanneganti) Ramamanemina v. (Kanneganti) Basavayya A.I.R. 1934 Madras 558, Bhojraj Krishnarao and another v. Sheshrao Diwakarrao and others A.I.R. (36) 1949 Nagpur 126, Mota and others v. Uda and others AIR (37) 1950 Ajmer 6(2) and Abdul Ban v. Asrab All A.I.R. 1953 Assam 158. Plaintiff gave evidence in proof of his previous possession and subsequent forcible dispossession at the instance of petitioners within six months before the suit and the petitioners produced evidence in its rebuttal. Trial Court resolved the conflict in favour of plaintiff and decreed his suit. Revisional Court did not interfere with the findings of fact recorded by the trial Court. Further revision against the decision does not lie. Petition filed to challenge the decision raises extremely disputed questions of fact. Therefore, it is not proper for the High Court in a petition under Article 199 of the Constitution to decide the disputed questions of fact, more particularly, when it is still open to the petitioners, inspite of an adverse decision in the suit under Section 9, to go to a civil Court to establish their title and to recover possession. Further, the Court below did not act in excess or in absence of jurisdiction nor did it act with material irregularity in exercise of its jurisdiction. Existence of an adequate alternate remedy in the shape of a civil suit to establish title and consequent recovery of possession is a sufficient circumstance to deny relief in equitable jurisdiction. Upon this view, interference is declined in limine, and, the petitioners are left to pursue their ordinary remedy at law. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 339 PLJ 1991 Lahore 339 Present: IJAZ NlSAR, J AFRAZ AHMAD-Petitioner versus NIVERSITY OF THE PUNJAB, LAHORE-Respondent Writ Petition No 8278 of 1990, accepted on 15.4.1991 Average Marks— —-BA. Examination-Request for re-evaluation of answer books-Answer books not traceable-Whether petitioner is entitled to average marks on basis of other papers-Question of~Section 32 of University of Punjab Act, 1973 provides for making of regulations by Academic Council with approval of Syndicate-It is not shown that regulation disentitling a candidate of benefit of average marks was approved by Syndicate-Held: Rule which permitted re- evaluation of answer books shall be deemed to be still existing-University Authorities directed to grant average marks to petitioner in English A and B papers. [P.340]A&B Mr. Ghaus Muhammad Chaudhry, Advocate for Petitioner. Cli. Muhammad Farooq,, Advocate for Respondent. Date of hearing: 12.4.1991. judgment Afraz Ahmad petitioner appeared hi the B.A. Ilnd Annual examination, 1989 under Roll No. 45861 in the subjects of Islamic Studies, English, Statstics, Geography and Persian (Opt.). According to the 'failure statement' issued by the University, the petitioner obtained 43/100 marks in Islamic Studies, 53/200 in English, 93/200 in Statistics, 108/200 in Geography and 70/100 in Persian (Optional). He applied for re-checking of his English papers as provided under the Rules of the Punjab University. The Deputy Controller (Secrecy) vide letter dated 22.11.1989 declined his request and stated that since his answer books of English papers A & B were not traceable, he could either apply for refund of re-checking fee or re-appear in the next examination. Hence this writ petition. 2. It is contended that the petitioner was legally entitled to get his answer books re-checked under the Unversity Rules and refusal on the part of the respondent is arbitrary, illegal and mala fide. In case his answer books are not traceable he is entitled to the average marks in other subjects, it is added. 3. The respondents have contested the petition. According to the learned counsel appearing on their behalf the previous rule which allowed the grant of marks on average basis has been repealed and the new rules made in this behalf do not provide any such concession. Learned counsel for the petitioner has challenged the framing of any such rule by the competent authority. In reply, the learned counsel for the University stated that the Vice Chancellor in anticipation of the approval of the relevant bodies had approved the proposed amendment. Section 32, University of the Punjab Act, 1973, empowers the making of Regulation for the conduct of examination. Section 32(2) provides that the Regulations shall be prepared by the Acadamic Council and submitted to the Syndicate which may approve them or withhold approval or refer them back to the Acadamic Council for re-consideration. It adds that the Regulations prepared by the Acadamic Council shall not be valid unless they receive the approval of the Syndicate. But in the instant case it is not shown that the Regulation disentitling a candidate of the benefit of average marks was approved by the Syndicate. On the other hand, it appears that the Vice Chancellor had, in anticipation of the approval of the relevant Bodies made and enforced the Regulation in question. 4. It is stated on behalf of the University that the proposed change in the Rule was necessitated by the fact that the failed students after the declaration of their results manipulated the removal of their answer books from the Secrecy Office and thereafter sought the benefit of average marks. 5. Learned counsel for the petitioner states that instead of putting their own house in order the University Authorities have wrongly deprived the examinees of their right to get their answer books re-checked/re-evaulated. According to him if this is allowed to continue there would be no check up on the examiners who may or ulterior motive make wrong evaluation. He states that the logic and rationale behind the above amendment is unpursuasive and untenable and seems to have been made to cover up their own faulty and imperfect system. They may act arbitrarily and decline re-evaluation on the ground of untraceability of the answer books. 6. In the present case no inquiry was held to fix responsibility about the loss of the papers of the petitioner. They were admittedly in the custody of the University wherefrom they were allegedly misplaced or removed. The petitioner had no access to the Secrecy Branch or the record room. The proposed amendment has not yet been approved by Syndicate as required by Section 32, University of the Punjab Act, 1973. Thus the old Rule which permitted the re- evaluation of answer books shall be deemed to be still existing. Accordingly, I accept the petition declare the action of the University to be arbitrary, mala fide and against Rules and Regulations on the subject. In consequence the University Authorities are directed to reconsider the case of the petitioner and grant marks to him in the subject of English papers A & B on the basis of average marks obtained by him in other papers as per the previous Regulations. Cost shall also be borne by the University Authorities. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 340 PLJ 1991 Lahore 340 Present: malik muhammad qayyum, J MUHAMMAD SHAFI-Petitioner versus CHAIRMAN, UNION COUNCIL, WARD No. 7, PATTOKI and 2 others-Respondents Writ Petition No 4682 of 1990, dismissed on 27.3.1991 Constitution of Pakistan , 1973-- —-Art. 199 read with Muslim Family Laws Ordinance, 1961, Section 9-- Maintenance to wife-Award of--Challenge to-Whether writ petition is maintainable—Question of—Maintenance awarded by Arbitration Council can be challenged under section 9 of Muslim Family Laws Ordinance, 1961 before Collector-Admittedly this remedy has not been availed by Petitioner-Held: Jurisdiction under Article 199 of Constitution can be invoked only if there is no other adequate remedy available to petitioner-Petition dismissed. [P.341JA Miss Hina Jilani, Advocate for Petitioner. Nemo for Respondents 1 & 2. Malik Ashiq Hussain, Advocate for Respondent No. 3. Date of hearing: 18.2.1991. judgment This petiton under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order of the Arbitration Council Ward No. 7 Patoki Tehsil Chunian District Kasur dated 17th May, 1990 whereby the petitioner was directed to pay maintenance at the rate of Rs. 1000/- per month to his wife Mst. Yasmin respondent No. 3 herein w.e.f. 18.1.1988. 2. The learned counsel for the petitioner contends that the application filed by the respondent No. 3 before the Chairman of Ward No. 7 Patoki was not maintainable as respondent No. 3 was resident of Ward No. 14 and not 7 and therefore, Arbitration Council Ward No. 7 lacked territorial jurisdiction to try the application filed by respondent No. 3. In this respect reliance has been placed by the learned counsel upon a copy of a statement made by respondent No. 3 before a Magistrate wherein she is shown to be resident of Ward No. 14 Patoki. 3. The learned counsel appearing for the respondent apart from disputing the correctness of the contentions raised by the learned counsel for the petitioner has raised preliminary objection that this petition is not maintainable as the petitioner has not availed of the statutory remedy available to him of filing an appeal against the impuged order. 4. According to section 9 of the Muslim Family Laws Ordinance, 1961 a certificate of maintenance issued by the Arbitration Council can be challenged by the aggrieved party by filing a revision before the District Collector. In the present case admittedly, this remedy has not been availed of nor is any explanation forthcoming on the record for this omission. The jurisdiction under Article 199 of the Constitution can be invoked only if there is no other adequate remedy available to the petitioner. For the reasons aforesaid this petition is not maintainable and is dismissed leaving the parties to bear their own costs. Announced today in open Court on 27.3.1991. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 342 PLJ 1991 Lahore 342 Present: IRSHAD HASSAN KHAN, J CHAPMION CLOCK COMPAN^-Petitioner versus CENTRAL BOARD OF REVENUE, THROUGH ITS CHAIRMAN, and 3 others—Respondents Writ Petition No 28 of 1987, accepted on 4.5.1991 Sales Tax Act, 1951 (II of 1951)-- —S. 3 (4) (iv)-Wall clock-Exemption from sales tax of--Whether bodies/cases of clock are exempt from sales tax—Question of—In this case, wall clocks as well as bodies of wall clocks are manufactured by petitioner company-­ Petitioner manufactures bodies of wall clocks and then incorporates them into wall clocks but does not sell bodies—Held: No sales tax can be levied on bodies which are used for manufacture of wall clocks, as exemption granted from sales tax on wall clocks would also exempt bodies from payment of sales tax in terms of clause (iv) of sub-section (4) of section 3 of Act-Petition accepted. [P345] A&B PLD 1986 SC 731 and PLD 1970 SC 93 rel. PLJ 1989 Karachi 30, 1988 SCMR 2103, PLJ 1985 Karachi 321, PTCL 1983 (CL) 410 and PLD 1965 SC 161 ref. Mr. Rafiq Ahmad Bajwa, Advocate for Petitioner. Mr. Faqir Muahmamd Kliokhar, Deputy Attorney General and Ch. Muhammad Ishaq, Advocate for Respondents. Date of hearing: 4.5.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question letter No. C. No. 16(2)(S)/80 dated 17.12.1986 whereby the Central Board of Revenue held that sales tax is leviable on the bodies/cases of wall clocks manufactured in the factory of the petitioner and the show cause notice dated 19.1.1987 issued by the Deputy Superintendent, Sales Tax, Circle II, Faisalabad, whereby the petitioner was directed to pay sales tax in the light of the said ruling of the Central Board of Revenue, for the said goods manufactured in the factory since 1.10.1984. 2. The facts relevant for disposal of the writ petition may be briefly stated. The petitioner company is manufacturing wall clocks, known as Champion Clocks which are assembled from the components such as movements, screws,hard board etc. and for its assembling the petitioner company prepares cases/bodies wherein the components as imported are fitted and thereafter wall clocks are cleared from the factory for sale. The cases/bodies of the clocks are integral part of the wall clocks. The wall clocks manufactured/produced in Pakistan were declared exempted from the chargeability of the sales tax vide notification No. S.R.O. 666(1)/81 dated 25.6.1981 as ameded by S.R.O. No. 563 (I)/82, dated 14.6.1982. It is an admitted fact that the bodies/cases of wall clocks manufactured by the petitioner is excisable item mentioned at serial No. 05.01 of the First Schedule of the Central Excise and Salt Act, 1944 and subjected to sales tax under the Pakistan Custom Tarrif Item No. 91.10. The goods are subjected to levy of sales tax under section 3(4) (iv) of the Sales Tax Act, 1951 (hereinafter called the Act). The petitioner company represented to the Central Board of Revenue vide their letter of 1st September, 1986, seeking clarification, whether sales tax is leviable on plastic bodies/cases which are manufactured by them or not. The Central Board of Revenue through the impugned letter informed that bodies/cases falling under the Pakistan Custom Tarrif, item No. 91.10, manufactured by the petitioner company, are subject to levy of sales tax under section 3(4)(iv) of the Act. Consequently, a show cause notice dated 19.1.1987 was issued to the petitioner company by the Deputy Superintendent, Sales Tax, Circle II, Faisalabad, calling upon them to pay the sales tax on the said cases/bodies manufactured in the factory since 1.10.1984, which has been impugned in this constitutional petition. 3. Mr. Rafique Ahmad Bajwa, learned counsel for the petitioner has argued that no sales tax was payable on the wall clocks and, therefore, the plastic bodies/cases of wall clocks used in the final manufacture of the wall clocks are also exempt from the sale tax in view of the dictum laid down by the Supreme Court in the case of Commissioner of Income Tax v. M/s. Shaiq Corporation Ltd. (PLD 1986 SC 731). 4. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney General and Ch. Muhammad Ishaq, learned counsel for the respondents have placed reliance on M/s. Electric Lamp Manufacturers of Pakistan Ltd. v. Government of Pakistan (PLJ 1989 Karachi 30), Sli. Fazal Elahi v. Federation of Pakistan (1988 SCMR 2103), M/s. Universal Brushes Ltd., vs. Superintendent, Central Exicse and Land Customs (PLJ 1985 Karachi 321), M/s. Esskay Limited v. Federation of Pakistan (PTCL 1983 (CL) 410) and M/s.Noorani Cotton Corporation v. Tlie Sales Tax Officer (PLD 1965 SC 161), to contend that plastic bodies/cases are independent marketable goods and when used for manufacturing wall clocks, loose their identity and its end product is called wall clock and not plastic bodies which fell under Pakistan Custom Tarrif No. 91.10, manufactured by the petitioner company, and therefore, subjected to levy of sales tax under section 3(4) (iv) of the Act. 5. I have heard the learned counsel for the parties and perused the material available on the record. 6. The first judgment on the subject matter was delivered in the matter of M/s. Noorani Cotton Corporation (supra) and the same has been followed by the Sindh High Court in M/s. Electric Lamp Manufacturers of Pakistan Ltd. (supra) and M/s. Universal Brushes Ltd., (supra). The ratio of the case M/s, Noorani Cotton Corporation (supra) is that if the end product is not liable to payment of sale tax, then unless a provision is made that a person would not pay tax on the production of the first article, that is, to partly manufactured goods to be assimilated in the end-product, will be liable to payment of tax in accordance with the general provision in the last para, that is, clause (d) of section 3(6) of the Act. This case was duly considered by a Bench of the Supreme Court, consisting of four learned Judges, headed by Hon'ble Chief Justice of Pakistan in the case of Commissioner of Sales Tax. v. M/s. Shaiq Corporation Ltd. (PLD 1986 SC 731). After elaborate discussion of the cases cited at the Bar, it was held that no sales tax was payable on the imported material which lost its identity after being incorporated into the end-product. As to the ratio laid down in M/s. Noorani Cotton Corporation's case, it was observed that there was no inconsistency, in that, the precedent case was decided by the High Court on the assumption of both the parties that cotton seed oil was exempted from payment of tax but that was not so as it was not exempted under section 7 of the Act, therefore, the manufacture or produce of cotton seed itself which was used for the manufacturing cotton seed oil would not be liable to payment of sales tax for cutting of cotton seed by the manufacturer for extracting cotton seed oil was a sale under section 3(6) (d) it was not a sale of partly manufactured goods, therefore, not subject to payment of tax. It would thus be seen that the case of M/s. Noorani Cotton Corporation (supra) is distinguishable as also pointed out in the case of Latif Bawany Jute Mills Ltd. . Sales Tax Officer (1971 PTD 26) and Commissioner of Sales TAx vJ/. Muhammad Hussain and Company (1974 PTD 20). After elaborate discussion, the Supreme Court held in the case of Commissioner of Sales Tax (supra as under):- "The assessee was a licensed manufacturer of electric fans and was exempted from the payment of tax on partly manufactured goods imported for being incorporated into the end-product under section 4(b) of the Act. The partly manufactured goods in the normal course were leviable to charge under section 3(1) (b) and the stage at which the sale tax was payable was after import but before clearance by the Customs Authorities under section 5(1) (b) of the Act. That stage had passed away. The partly manufactured goods had been assimilated in the production of fans, and the critical date on which these were sought to be assessed for payment of tax was the closing date that is 14th June, 1965. On that date they had lost their original shape and could not be subjected to any event as prescribed under section 4(l)(a) and (b) of the Act. That being so they were not liable to payment of the tax. In this context the High Court rightly decided the case on the basis of two judgments cited above while distinguishing Noorani Cotton Corporation's case. Lastly, on the critical date a notification was issued under section 7 of the Act granting exemption to the fans produced or manufactured by the assessee without any condition. Therefore, as there was a wholesale exemption, the raw material which had been incorporated could not be regarded as having a separate identity for the purpose of payment of tax. In this connection reference may be made to the judgment of this Court in the case of Commissioner of Income-tax East Pakistan." 6-A. In Fazal Elahi's case (supra), the judgment delivered by the Supreme Court in the case of Commissioner of Income-tax v. M/s. Shaiq Corporation Ltd (PLD 1986 SC 731), was not considered. Likewise, (in) the judgment rendered in M/s. Esskay Limited (supra), by the learned Single Judge of this court, no reference was made to the aforesaid judgment of the Supreme Court. 7. In the instant case, the wall clocks as well as bodies/cases thereof are manufactured by the petitioner company. The petitioner manufactures the bodies of the wall clocks and then incorporates them into wall clocks. There is no sale of the first manufactured bodies because the petitioner only uses them for the manufacture of the waH clocks and, therefore, no sales tax can be levied on the bodies which are used for the manufacture of wall clocks, inasmuch as, the notification referred above grants exemption to wall clocks manufactured in Pakistan without any condition. Therefore, in view of the wholesale exemption on the wall clocks, the raw material, that is, body of the clock which is incorporated into the wall clock could not be regarded as having a separate identity for the purporse of payment of tax as held in the case of the Commissioner of Sales-tax (supra) and in the case of Commissioner of Income tax East Pakistan v. Messrs Ayun'cdic Pharmacy (Dacca) (PLD 1970 SC 93). Respectfully following the ratio laid down in the aforementioned cases of the Supreme Court, I hold that the exemption granted from payment of sales tax on wall clock would also exempt the bodies from the payment of sales-tax in terms of clause (iv) of sub-section (4) of section 3 of the Act. It may also be observed that sub-section (6) of section 3 of the Act is not attracted to the facts and circumstances of the present case, in that, it relates to determination of value for tax in circumstances or conditions as render it difficult to determine the value thereof for the tax because such goods are for the use of manufacturer or producer and in such circumstances the Sales Tax Officer is to determine the value of the tax under the Act and all such transactions for the use of such goods by the manufacturer or producer by fiction of law has been made a sale. Here the body of the clock though a separate item on whioh sales tax is leviable but when used by incorporating into wall clock, looses its separate entity for the prupose of payment of lax as stated in the last two precedent cases of the Supreme Court and, therefore, clause (d) of sub-section (6) of section 3 of the Act cannot be pressed into service. In view of the above, the writ petition is accepted and the Central Board of Revenue is restrained from levying the sales tax on wall clocks bodies/cases manufactured by the petitioner in Pakistan for the purposes of manufacturing the wall clocks, in terms of notification No. S.R.O.666(l)/8l, dated 25.6.1981 as amended by S.R.O. No. 563 (l)/82, dated 14.6.1982, as long as the .said notification remains operative. The parties shall, however, bear their own costs. (M BC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 345 PLJ 1991 Lahore 345 Present: MALIK MUHAMMAD QAYYUM, J IHSANULLAH BAJWA-Pctitioner versus CHAIRMAN, CITY AND REGIONAL PLANNING DEPARTMENT, and others-Respondents . Writ Petition No 7845 of 1990, accepted on 30.3.1991 (i) Constitution of Pakistan, 1973- —Art. 199--Overseas scholarship-Refusal to grant of--Challenge to—Whether Constitutional petition is not maintainable-Question of-Contention that petitioner has no vested right and cannot maintain petition-Held: It is since long well established that 'right' considered sufficient for maintaining a constitutional petition need not be 'right' in strict juristic and legal sense, but if petitioner is able to show that he has been deprived of some benefit by nonobservance of law by statutory functionaries, he is entitled to maintain constitutional petition. [P.349JD PLD 1969 SC 223 and PLD 1968 Lahore 1155 rel. (ii) Discretion-- —Overseas scholarship-Refusal to grant of-Challenge to-Objection that petitioner cannot claim scholarship as a right, for grant of scholarship is within discretion of respondents-Held: Discretion vested in public functionaries must be free from arbitrariness and caprice-Held further Articles 4 and 25 of Constitution guarantee equal protection and equal treatment of citizens similarly placed-Pctition accepted. [Pp.349&350]E&F PLD 1976 Peshawar 97, PLD 1990 SC 1092=PLJ 1990 SC 543 and PLD 1991 SC 35 rcl. (iii) Scholarship-- -—Overseas scholarship-Refusal to grant of-Challenge to-It is not disputed that as per criteria of evaluation prescribed by respondents, merit of petitioner ranked higher to that of respondent No. 6-Only reason for depriving petitioner of shcolarship is that he had already availed of a foreign scholarship and was not entitled to grant of second scholarship-Only restriction mentioned in criteria was that a candidate should not have availed of any other facility of scholarship within last 3 years—Held: A period of more than 3 years having elapsed since previous scholarship granted to petitioner, he could not have been denied scholarship on this ground-Held further: Respondents having themselves prescribed criteria, were equally bound by same and could not deviate therefrom. [Pp. 348&349]A,B&C PLD 1976 Peshawar 97 rcl. Mr. A.K. Dogar, Advocate for Petitioner. Syed. Sajjad Hsassain, Advocate for Respondents 1 to 3. Mr. Qamar Riaz Hussain, Advocate for Respondent No. 4. 5/i. Maqbool Ahmad, Standing Counsel for Respondent No. 5. Respondent No. 6: In person. Date of hearing: 30.3.1991. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the refusal of the respondent to grant scholarship under the Central Overseas Training Scheme to the petitioner in preference to respondent No. 6. 2. The petitioner is working as an Associate Professor in the City •& Regional Planning Department, University of Engineering & Technology, Lahore, while respondent No. 6 is employed as a Lecturer in the same department. On llth of November, 1989 a letter was addressed by the Deputy Educational Advisor, Government of Pakistan, to the University Grants Commission (respondent No. 4), requiring it to obtain nominations for the grant of scholarships under the Central Overseas Trailing Scheme from various Universities. It was stipulated that the merit of candidates should be evaluated strictly in accordance with the enclosed criteria. Pursuant to this letter, the University Grants Commission, on 13th November, 1989, directed the University of Engineering and Technology, Lahore, to nominate candiates for grant of five scholarships earmarked for the University by 30th November, 1989. On the receipt of this requisition, the University of Engineering & Technology, asked the heads of its various departments to recommend the names of suitable persons for the award of scholarship. On 18th November, 1989, the Chairman, Department of City and Regional Planning, where both the petitioner and respondent No. 6 were working, recommended the name of the petitioner as the principal candidate while that of respondent No. 6 as an alternate. However, contrary to this recommendation, the University of Engineering and Technology vide its letter dated 13th February, 1990 addressed to the Deputy Director, University Grants Commission, Islamabad, forwarded the name of respondent No. 6 as the principal candidate and that of ihc petitioner as alternate candidate. 3. The petitioner having failed in his representation against this recommendation, filed Writ Petition No. 5004/90 in this Court, which was accepted on 17th October, 1990 on the ground that the decision was taken without hearing the petitioner. The matter was remitted for re-decision to respondents after hearing the petitioner, who was heard by a Committee comprising of four members, which once again refused to grant scholarship to the petitioner, and instead awarded it to respondent No. 6. This order dated 30lh October, 1990, has been assailed by the petitioner by filing this constitutional petition. 4. Mr. Abdullah Khan Dogar, learned counsel for the petitioner has argued that according to the criteria laid down for selection of the candidates for the award of scholarship, the merit of the petitioner ranks much higher than that of respondent No. 6 and as such respondents have acted in excess of their jurisdiction in depriving the petitioner of the scholarship and granting it to respondent No. 6. The learned counsel emphasized that the decision taken by the respondents is contrary to the policy laid down by respondents themselves on the subject. 5. The learned counsel appearing on behalf of the respondents have, however, objected to the maintainability of the petition on the ground that the petitioner has no vested right to grant of scholarship and, therefore, no constitutional petition could be maintained. It was also explained that the petitioner had already availacd of a scholarship and, was as such, not entitled to be considered for the grant of scholarship for the second time and it was on account of this reason that respondent No. 6 was awarded the scholarship. The respondent was directed to file the polcy laid down by the Government of Pakistan for grant of scholarship under the Central Overseas Training Scheme, which has been placed on record. 6. A perusal of various documents filed by the parties shows that applications for grant of scholarship under various schemes are invited by the Government of Pakistan, University Grants Commission, Islamabad. So far as the Central Overseas Training Scholarship Scheme, for the year 1989-90 was concerned, in the letter addressed by the Deputy Education Officer, Government of Pakistan, on lllh of November, 1990, to University Grants Commission, it was clearly stated that the candidates should be evaluated in accordance with the prescribed criteria. The University Grants Commission informed the University of Engineering & Technology that five scholarships have been ear-marked for University for the year 1988-89 in the disciplines of Architecture, City & Regional Planning, Civil Engineering, Electrical Engineering and Mining Engineering and University was called upon to nominate three Faculty members against each discipline striclty in accordance with the criteria of eligibility on the prescribed form. This criteria of elgibility (copy of which has been filed as Anncxure B to this petition) inter alia provided that the candidate should not have availed of any Other facility of scholarship wiihin the last three years. The merit of candidate was to be determined in accordanc with criteria of evaluation (Anncxure B). 7. On the receipt of this request, the University of Engineering called upon the heads of the Departments concerned to nominate the Faculty members for these scholarships. It is not disputed that by letter dated 8th November, 1989 (Annexure E), the Chairman, City & Regional Planning Department nominated Ehsan Ullah Bajwa petitioner as the Principal Candidate, while Ghulam Abbas Anjum, respondent No. 6, herein was mentioned as the alternate candidate. However, the University of Engineering : & Technology, contrary to this recommendation, proceeded to nominate Ghulam Abbas Anjum, respondent No. 6, as the principal candidate and the petitioner as the alternate candidate. The petitionr, represented against this action, but without success. It was at that stage, that he had filed writ petition bearing No. 5004/90 which, as already stated, was accepted and the respondent was directed to afford an opportunity to the petitioner of being heard, in pursuance whereof the order impugned in this petition was passed. 8. It is not disputed by the respondents that as per the criteria of evaluation prescribed by the Government and the University Grants Commission itself the merit of the petitioner ranked higher to that of respondent No. 6, and on the basis of the criteria it was the petitioner who wasentitled to be recommended as principal candidate rather than as alternate. The only reason for depriving the petitioner of the scholarship which has been disclosed by the respondent before this Court is that the petitioner had already avialed of a foreign scholarship granted to him by the British Council under which he obtained the degree of M. Phil from the University of Edinburgh during 1984-86, and as such he was not entitled to grant of second scholarship. , 9. As already noted, the criteria for eligibility and evaluation for the candidates had been prescribed by the University Grants Commission itself. The only restriction mentioned therein in this behalf was that a candidate should not have availed of any other facility of scholarship within last three years. In the present case, on admitted facts the scholarship earlier granted to the petitioner ended on 6th October, 1986 when he returned to Pakistan. The applications for the grant of scholarship for Central Overseas Training Scheme were invited on llth November, 1989 by which time a period of more than three years, since the previous scholarship had elapsed. The petitioner could not, therefore, have been denied the scholarship on this ground. 10. The learned standing counsel and the learned counsel for the University Grnats Commission, however, relied upon certain other instructions of the Government issued on 25th October, 1975, which inter alia provide that no candidate shall be considered for any training facility, if he has availed of such facility under any of the programmes, previously, except under special circumstances and for cogent reasons, but in no case within three years of his return from his last training. On the strength of these instructions,!! was claimed that the petitioner was not entitled to the grant of scholarship in quesiton. The reliance of the respondents, on these instructions is, however, wholly misconceived.These instructions, on the face of the document, apply to the grant of scholarship under Technical Assistance Programmes and do not even purport to be applicable to scholarships under the Central Overseas Training Scheme for which separate criteria for eligibilty and evaluation has been prescribed. The learned counsel for the respondents were not in a position to show as to how the instructions meant for grant of scholarship under other programmes could apply to scholarships under the Central Overseas Training Scheme. 11. As per the letter of the Deputy Education Adviser dated llth November, 1989 addressed to the University Grants Commission, the nom nation by the Universities was to be made strictly in accordance with the criteria for elegibility and evaluation enclosed with that letter. As regard the candidate who had previously scholarship, the only condition laid down was that he should not have availed of any other scholarship within the last three years. It is, therefore, idle on the part of the respondent, to contend that they could refuse to nominate the petitioner on the basis of some condition applicable to ^i ant of other scholarships, which has no relevance to the Scheme under which the scholarship in question was to be granted. The respondents having themselves prescribed the criteria and conditions for eligibility and evaluation were equally bound by the same and could not deviate therefrom. Reference in this connection may be made to Miss KJwla Jabecn and 2 others vs. Government of N.W.F.P. through Secretary, Health Department, Peshawar and 5 others (PLD 1976 Peshawar 97). 12. Adverting now to the legal objection raised by the learned counsel for the respondents that the petitioner has no vested right to claim the grant of scholarship and as such cannot maintain this petition, there is hardly any merit in I it. It is since long well-established that 'right' considered sufficient for maintaining j a constitutional petition need not be 'right' in the strict juristic and legal sense but \ if the petitioner is able to show that he has been deprived of some benefit by non-1 observance of law by the statutory functionaries, he is entitled to maintain the constitutional petition (See Fazal Din vs. Lahore Improvement Trust (PLD 1969 SC 223). In Muhammad Ashraf vs. Board of Revenue, West Pakistan and another (PLD 1968 Lahore 1155), it was observed that all that applicant has to show is that he is an aggrieved party and existence of a vested, legal or absolute right is not necessary. 13. It was next contended on behalf of the respondents that the petitioner cannot claim the scholarship < a right for the grant of scholarship is within the discretion of the respondents. This argument of the learned counsel cannot be accepted as a whole. In a democratic set up like ours, the Government and the other statutory functionaries are bound to act in public matters justly, fairly and in accordance with the rules and instructions on the subject. It is not open to the functionaries charged with public functions to make any indivious (?) distinction for any extraneous reasons. The discretion vested in the public functionaries must be free from arbitrariness and caprice. Articles 4 and 25 of the Constitution, guarantee equal protection and equal treatment of citizens similarly placed. 14. In Miss KJtola Jabeen and 2 others vs. Government of N.Wf.P. tlvough Secretary, Health Department, Peshawar and 5 othes (PLD 1976 Peshawar 97), it was observed that the Government cannot act in utter disregard of criteria for admissions and rules for working out merits contained in the prospectus and was duty bound to treat the respondents of settled districts equally and to nominate persons having superior merit. The Supreme Court of Pakistan in Aman UUah Klian and others vs. TJie Federal Government of Pakistan, throutfi Secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092=PLJ 1990 SC 543) ruled that:- "Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion. The structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often than is necessary apart from the exercise of such power appearing arbitrary and capricious at times". Reference may also be made to Muhammad Iqbal KJwkhar and 3 others vs. Tlie Government of the Punjab, through the Secretary, to Government of the Punjab, Lahore, and two others, (PLD 1991 SC 35). As in the present case, the petitioner has been deprived of the scholarship for considerations which have no relevance to the criteria for eligibility, the discretion exercised by the respondent in refusing to grant the scholarship cannot but be termed as arbitrary. For the reasons aforesaid, this petition is accepted and refusal of the respondents to grant scholarship to the petitioner is declared to be without lawful authority and of no legal effect. The respondents are directed to decide the matter again strictly in accordance with criteria laid down by them. There shall be no orders as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 351 PLJ 1991 Lahore 351 [Bahawalpur Bench] Present: KHIZAR hayat, J KHUDA BAKHSH KHAN-Petitioner versus DEPUTY COMMISSIONER, BAHAWALPUR and others-Respondents Writ Petition No.552 of 1991, accepted on 12.6.1991. (i) Punjab Local Government Ordinance, 1979 (VI of 1979)- —-S31(3) read with Punjab Local Councils (Vote of No Confidence against Chairman and Vice Chairman) Rules, 1980, Rule 3--No confidence-Motion of~Meeting convened on date beyond statutory period-Effect of--Second/ subsequent no confidence motion can be moved within 30 days after every interval of 6 months from date of rejection of first no confidence motion—In this case, meeting could be held upto 12.5.1991 for consideration of no confidence motion against petitioner and not thereafter-Held: Meeting called for 16.5.1991 for consideration of no confidence motion is not competent under Section 31(3) of Ordinance. [Pp.353&354]A&B PLD 1982 Lahore 83 rel. (ii) Punjab Local Government Ordinance, 1979 (VI of 1979)- —S31(3)--No confidence-Motion of-Whether provisions of Section 31 of Ordinance are directory in nature-Question of—It is a cardinal principle of interpretation of statutes that what is enacted must be given full effect and extraneous considerations cannot be employed to make it redundant- Consequence of non-compliance of this provision is very much provided in sub-section (3) of Section 31~HeId: Section 31 of Ordinance, 1979, is mandatory-Petition accepted. [P.355]C&D 1980 SCMR 156 rel. Mr. AA. Ansari, Advocate for Petitioner. Ch. Nazir Ahmad Bhatti, Advocate for A A.G. assisted by Mr. M.M. Bhatti, Advocate for Respondents 4 to 12. Date of hearing: 1.6.1991. judgment Khuda Bakhsh Khan has filed the instant writ petition praying that convening of special meeting of town committee Khairpur Tamewali called by Deputy Commissioner, Bahawalpur, respondent No.l, vide order, dated 8-5-1991, for 16- 5-91 to consider No Confidence Motion againt him, be declared as without lawful authority and of no legal effect being violative of section 31 of the Local Government Ordinance (hereinafter called, the Ordinance, 1979). 2. Khuda Bakhsh Khan, petitioner herein, was elected as Chairman of Town Committee Khairpur Tamewali, district Bahawalpur , which comprises 16 members. First No Confidence motion moved against the petitioner had failed on 12-1-1989. This time 13 out of 16 members of the town committee made an application to the Deputy Commissioner (respondent No.l) on 8-5-1991 for convening a meeting to consider (second) No Confidence Motion against the petitioner. On the same day, respondent No.l made orders calling the meeting for 16-5-1991. Fijjp-members were served as per report of the Process Server by 12-5- 1991 whereas the petitioner was served on 11-5-1991. The petitioner on 15-5-1991 filed instant Constitutional petition on two-fold ground. Firstly, that a notice of less than 7 days for the special meeting convened for considering No Confidence Motion was given to the petitioner and the members in violation of the provisions of rule 3 of the Punjab Local Councils (Vote of No Confidence against Chairman and Vice Chairman) Rules, 1980, (hereinafter called, the Rules of 1980) and secondly, that the meeting called for 16-5-1991 cannot legally consider the No Confidence Motion in question as the same is incompetent as being not within time in view of sub-sections (2) and (3) of section 31 of the Ordinance of 1979. 3. This petition was admitted to regular hearing on 15-5-1991 and simultaneously an order prohibiting to hold the meeting till the disposal of this petition was passed. 4. Respondent No.l in his written statement submitted that the petitioner and the members of the town committee were served by affixing notice on the Notice Board of the town comrrntee, by getting it published in newspaper and also through announcement/broadcast from Radio Pakistan Bahawalpur as envisaged in rule 3 of the Rules of 1980; and that the meeting in question was fixed for 16-5-1991 after properly calculating the interval required under sub­ sections (2) and (3) of section 31 of the Ordinance,1979. 5. Learned counsel appearing on behalf of the petitioner has abandoned the first objection regarding omission to give 7 days' notice to the members prior to the convening of the special meeting as required by rule 3 of the Rules of 1980, and rightly so, as the objection does not hold good since the service of the members has been effected through modes prescribed under above-quoted rule well before time. 6. Arguing the second objection, it is submitted that according to section 31 of the Ordinance, 1979, a second or subsequent motion of No Confidence is "not competent" if it is not moved within 30 days after an interval of every 6 months calculating from the date of rejection of the earlier No Confidence Motion. Making precise calculation he canvassed that since the first motion of No Confidence againtst the petitioner, had failed on 12-1-1989, therefore, the second and subsequent motions could be moved,- (/) from 13-7-1989 to 12-8-1989 as the 6 months' interval from 12-1-1989 expired on 12-7-1989; , (//) then from 13-8-1989 to 12-3-1990 as the 6 months' interval from 12-8- 1989 expired on 12-2-1990; (///) then from 13-2-1990 to 12-9-1990 as the 6 months' interval from 12-3- 1990 expired on 12-9-1990; (/v) and lastly it could be moved from 13-9-1990 to 12-4-1991 as the 6 months' interval from 12-9-1990 expired on 12-3-1991. The instant motion, according to learned counsel could be moved/ passed in a meeting held before or by 12-5-1991 and not thereafter as the safe period of next 6 months' interval has commenced from 13-5-1991. It is, therefore, prayed that since the impugned meeting called for considering the No Confidence Motion on 16-5-1991 falls out of time, hence the same being not in accord with law be declared as without lawful authouity. 7. Learned counsel for the respondents has agreed in principle that a No Confidence Motion can be moved within 30 days after every 6 months' interval from the date of rejection of first No Confidence Motion but has argued that application for requisitioning special meeting for moving the No Confidence Motion was made on 8-5-1991 which date falls within prescribed period, therefore, holding of meeting on 16-5-1991 would not matter as the fixing of date of meeting is not within control of the members but is the function of the Deputy Commissioner and that the members should not be made to suffer for the doings of the Deputy Commissioner. Next submitted that since no penalty for holding a meeting beyond the time limit given in section 31 of the Ordinance, 1979, is provided in the said Ordinance, therefore, this provision is directory in nature and not mandatory, hence the convening of the meeting in question with a delay of ¾ days would not render it illegal. Lastly, he submitted that the petitioner has lost confidence of 13 out of 16 members of the town committee but wants to cling to the office on technical grounds, therefore, he should be refused the relief in exercise of Constitutional Jurisdiction of this Court which is discretionary one. 8. I have carefully considered the contentions with reference to the facts and circumstances of this case and in the light of the relevant law/case-law. Learned counsel for both sides admit, and rightly so, that second/subsequent No Confidence Motion should be moved within 30 days after every interval of 6 f months from the date of rejection of first No Confidence Motion. But, according to learned counsel for the respondents, moving of application to the Deputy Commissioner for convening a special meeting is in fact moving of the No Confidence Motion and as, in this case, the requisition for the meeting was made on 8-5-1991, therefore, No Confidence Motion is within time whereas according to petitioner's learned counsel, No Confidence Motion is the one which is formally moved in the special meeting convened for the purpose and not the application made for calling the meeting. Barkat All's case (PLD 1982 Lahore 83) decided by a Division Bench of this Court, clinches the matter, wherein it was held that making of application for convening of meeting for moving a No Confidence Motion and the moving of a No Confidence Motion are two different things as they are dealt with separately under rules 2 and 5 of the Rules, 1980. The observation made in para 13 of the precedent case in this regard is quoted hereunder with advantage:- "The contention of the learned counsel for the petitioners regarding the applications for convening of a meeting for moving a no-confidence motion may be disposed of. Not only requisition of a meeting and moving of a motion are two different things as these are separately dealt with under rules 2 and 5 of the aforementioned Rules, 1980, but the definition of motion relied upon by one of the learned counsel for the petitioners also makes it quite clear that in representative Institution "the formal mode in which a member submits a proposed measure of resolve for the consideration and action of, the meeting" presupposes that the motion is the matter which is considered in the meeting and not request for holding of the meeting." In this view of the matter, it becomes crystal clear that the motion of No Confidence in this case was yet to be moved for consideration in special meeting called for 16-5-1991. But that meeting could be legally held upto 12-5-1991 and not thereafter. Since the meeting called for considering the No Confidence Motion on 16-5-1991 falls beyond 30 days after the interval of 6 months, therefore, the No Confidence Motion to be moved in that meeting was "not competent" in the meaning of sub-section (3) of section 31 of the Ordinanance, 1979. If the special meeting is convened on 16-5-1991, it would be having a "not competent" No Confidence Motion before it. The term "competent", according to Black's Law Dictionary (Fifth Edition), means, duly qualified; having sufficient ability or authority; possessing the requisite natural or legal qualifications; and legally fit, etc., whereas the term "incompetency" means lack of ability, legal qualification or fitness to discharge the required duty. Obviously, therefore, a "not competent" No Confidence Motion is devoid of legal qualification and cannot be considered by the meeting called for the purpose. I would, therefore, say that on 16-5-1991 there < was no legally competent No Confidence Motion for consideration before special t meeting, as such convening of special meeting on 16-5-1991 was simply purposeless. The argument that section 31 of the Ordinance, 1979, is directory in nature as no penalty for non-compliance of this provision is given in the Ordinance, 1979, has no force, firstly, for the reason that it is a cardinal principle of interpretation that what is enacted must be given full effect and the extraneous considerations cannot be employed to make it redundant (see 1980 S.C.M.R.156) and secondly, consequence for non-compliance of this provision is very much provided in sub­ section (3) of section 31 of the Ordinance, 1979, which says that if no-confidence is not moved in accordance with the section then it shall be deemed to have been moved and rejected. I am, therefore, of the view that Section 31 of the Ordinance, 1979, is mandatory. No doubt, on account of sheer technicality the petitioner would remain in the office despite his having lost confidence of the majority of his electroate but this benefit is extended to him by law which cannot be denied to or withdrawn from him. 9. For what has gone above, I would accept this petition and declare the meeting scheduled to be convened on 16-5-1991 for considering a "not competent" motion of No Confidence to be without lawful authority and of no legal effect. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 355 PLJ 1991 Lahore 355 Present: MALIK MUHAMMAD QAYYUM, J Mst. NASIM KHATOON etc. -Petitioners versus Syed IRSHAD HUSSAIN etc. -Respondents Writ Petition No. 6996 of 1989, accepted on 20.2.1991 (i) Family Courts Act, 1964 (W.P. XXXV of 1964) —S. 14—Objection petition—Rejection of—Whether order of rejection was not appealable-Question of-Section 14 of Act provides for appeals not only against decrees but also against decisions of Family Courts-Order passed in this case, cannot be said to be interim or interlocutory by nature~By this order, objection petition was finally rejected and proceedings to that extent culminated-Held: This order is to be construed as a "decision" within meaning of section 14 of Act and was, as such, appealable. [P.357JA PLD 1976 Lahore 1015 ref. (ii) Maintenance- —Minor children-Maintenance of-Decree for-Execution of-Challenge to~ Admittedly petitioners were minors at time when earlier execution petition was withdrawn-No effort was made by Family Court to ascertain whether compromise was for benefits of minors-Order of withdrawal of earlier execution petition having been passed by Family Court on statement of mother of petitioners, could not render decree itself as ineffective for all times to come-Even if parties live together after decree, it is not superseded or rendered un-enforcible and decree can be enforced by filing a fresh execution petition-Held: Impugned judgment is without lawful authority and of no legal effect-Petition accepted. [Pp.357&358]B,C,D&E PLD 1960 (W.P) Karachi 409 and PLD 1974 Lahore 495 rel. Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioners. Nemo for Respondents 1&2. Ch. Muhammad Aslam Chattha, Advocate for Respondent No. 3. Date of hearing: 20.2.1991. judgment The petitioners who are minor daughters of Mahammad Bashir respondent No.3 brought a suit for recovery of maintenance against him which was decreed by the Family Court on 13th April, 1983 and respondent No.3 was directed to pay maintenance at the rate of Rs-200/-per month to each of the petitioners. His appeal against this decree of the Family Court was dismissed on 19th of October, 1983 by the District Judge Khushab with the result that the decree attained finality. 2. On 19th of November, 1983 the petitioners applied for execution and enforcement of this decree praying for recovery of maintenance for the period June to November, 1983. On 26th of March, 1983 it was stated on behalf of the parties that they had arrived at a compromise and the petitioners have started living with the respondent and therefore, no further orders were required in the execution petition. On the basis of these statements, the Family Court observed that the petitioners had foregone their right to recover the previous maintenance and the execution petition was dismissed as having been withdrawn. 3. The present petition arises out of a subsequent application for execution filed by the petitioners on llth of November, 1985 praying for enforcement of the decree for maintenance for the period November, 1983 onwards. An objection was raised by respondent No. 3 before the Executing Court that in view of the compromise between the parties recorded in the earlier execution petition on 26 th of March, 1985 the decree had become un-executable. This objection was repelled by th Family Court on 24th of July, 1986. However, the appeal filed by respondent No.3 against this order of the Family Court was accepted by an Addl. District Judge at Khushab who was of the view that on account of the compromise between the parties the decree was rendered ineffective and un-enforcible. He consequently accepted the objections raised by respondent No.3 and dismissed the execution petition filed by the petitioners who have assailed his judgment dated 4th of February, 1989 by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 4. I have heard Mr. Muhammad Farooq Chishti, Advocate on behalf of the petitioners. No one has entered appearance for the respondents. 5. The learned counsel for the petitioners has raised the following three contentions in support of this petition:-- (0 That the order dated 24th of July, 1986, whereby the Family Court had rejected the objection petition filed by respondent No.3 was not open to appeal under Section 14 of the Punjab Family Courts Act, 1964 as it was neither a decree nor a decision and as such the lower Appellate Court had no jurisdiction to interfere ic the matter. (a) That the earlier compromise dated 26th of March, 1985, was recorded by the Family Court without following the procedure prescribed by Order 32 rule 7 of the Code of Civil Procedure and as such, it was not binding on the petitioners who were minors. (iu ! Be that as it may, the Addl. District Judge has acted illegally in holding that on account of the compromise between the parties the decree was rendered ineffective, and unenforcible. 6. The first contention of the learned counsel for the petitioners has no merit- Section 14 of the Punjab Family Courts Act, 1964 provides for appeals not against the decrees but also against the decisions of the Family Court. True ygh that the expression "decision" appearing in Section 14 has to be construed generis so as to provide for appeals against final and not interlocutory orders decisions as held by this Court in Syed Muhammad Raza Shah vs. Sayeda Sebna Cilajii and another (PLD 1976 Lahore 1015)' but in the present case, the order passed by the Family Court on 24th of July, 1986 cannot be said to be mfirim or interlocutory by nature. By this order the objection petition filed by respondent No J was finally rejected and as such the proceedings to that extent, cafaninated. This order, be construed as a "decision" within the meaning of Section 14 of the Act and was as such appealable. . However, there is considerable merit in the other two contentions raised by the learned counsel for the petitioner. Admittedly the petitioners were minors at the time when the earlier execution petition was withdrawn on 26th of March, 1985. whik allowing this compromise the Court had acted on the basis of the statement made by their mother who was acting as their next friend. No effort however was made by the Family Court to ascertain as to whether the compromise was for the benefits of the minors. Order XXXII rule 7 of the Code" of Civil Procedure may not be strictly applicable to the proceedings before the Family Court but, the salutory principle, contained therein could not have been ignored. In Pirzada Mumtazuddin Vs. FaruM Sultana and another (PLD 1960 (W.P.) Karachi 409), it was observed that in law the parents are under a statutory obligation to maintain their children and cannot contract themselves out of it and it (is) open to the child to object to the compromise which will not be binding on the minor and can be disregarded by the Court if it is against the interest and welfare of the minor. In the present case, no effort was made by the Court to ascertain as to whether the compromise arrived at between the mother and their father was in furtherance of their welfare and interest and it could not have been accepted as ipse dixit. 8. Be that as it may, the order dated 26th of March, 1985 passed by the Family Court and the statement made by the mother on behalf of the petitioners could not construe as rendering the decree itself ineffective for all times to come. In the earlier execution petition the petitioner has claimed maintenance for the period June to November, 1983 onward and (on) no principle could the withdrawal for that execution petition be taken as bar to maintainability of the 2 nd petition which related to the subsequent period. 9. It is settled law that if after the decree of maintenance, the parties live together, the decree passed in favour of the wife or the children as the case may be, is not superseded nor rendered un-enforcible, but can at the most be considered to be in a state of suspense which too is doubtful. One thing is _ however, certain that is if the father or the husband again fails to maintain his wife ! or children, the decree can be enforced, by filing a fresh execution petition. A useful discussion on the subject may be found in Ghulam Rasool Vs. Collector Lahore and another (PLD 1974 Lahore 495) which though not on all fours with the present case, is of great relevance, 10. For the reasons aforesaid this petition succeeds. The impugned judgment I of the Addl. District Judge Sargodha dated 4th of February, 1989 is declared to be I without lawful authority and of no legal effect with the result that the order of the I Family Court dated 24th of July, 1986 stands restored with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 358 PLJ 1991 Lahore 358 Present: IHSANUL HAQ CHAUDHRY, J CRESCENT TEXTILE MILLS LTD-Petitioner versus ABDUL AZIZ etc.-Respondents Writ Petition No. 3823 of 1986, dismissed on 9.3.1991. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -—S. 3 (KCCv«7)~Whether respondent No. 1 was a worker-Question of-- Respondent No. 1 appeared in witness box and made a statement on oath that he is a worker—Onus to prove that he was not a worker shifted to petitioner— Held: Petitioner has miserably failed to discharge onus, therefore, it must suffer for same-Held further: It was duty of Labour Court to decide grievance petition on all points in order to avoid frequent remands-Petition dismissed. [Pp.361&362]A3&C PLD 1983 SC 21 and PLD 1985 SC 429 ref. Mr. Khalid Farooq Qureshi, Advocate for Petitioner. Mr. Munawar Ahmad Javed, Advocate for Respondent No.l. Date of hearing: 9.3.1991. judgment The petitioner through this Constitutional petition has impugned the order dated 11.8.1986 of respondent No.2 2. The relevant facts are that respondent No.l was working as a line jobber with the petitioner, who terminated his services on account of misconduct. The respondent No.l challenged this order through petition under section 25-A of the Industrial Relations Ordinance before Punjab Labour Court. The petition was allowed vide order dated 6,12.81. The petitioner filed an appeal before respondent No. 2. who accepted the same and remanded the case to Punjab Labour Court . This time the application , f respondent No.l was dismissed and it was he, who challenged this order before respondent No.2, who once again accepted the appeal vide order dated 9.12.1984 and remanded the matter once again. This application, however, after remand was withdrawn by respondent No.l on 3.7.85 and second application, out of which the present proceedings have arisen, was filed. The petitioner contested this application besides facts on two legal grounds namely, that it is time barred and respondent No.l is not a worker, therefore, dismissed his petition vide order dated 4.3.1986. The respondent No.l impugned this order through an appeal before respondent No.2, who accepted the same vide order dated 11.8.86. It was held that respondent No.l was a worker and the case was remanded for fresh decision. The petitioner has challenged this remand order through this Constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondent No.l alone has entered appearance and contested the petition. 3. The learned counsel for the petitioner in support of the petition argued that respondent No.l was not a worker at all as his duties were of supervisory nature. In this behalf he has referred to different portions of the judgments of two tribunals below and also to the statement of respondent No.l and petitioner's own witness. It is added that the main duties are to be seen and not nature of the work which is incidental or consequential is to be considered. The learned counsel in this behalf referred to the judgment in the case of General Manager, Hotel Intercontinental, Lahore and another vs. Bashir A. Malik and others (P.L.D 1986 S.C 103). 4. On the other hand, learned counsel for contesting respondent, has argued that in order to succeed the petitioner was to prove that respondent No.l was employed in a supervisory capacity and his emoluments were more than Rs.8QO/- p.m. It is added that the onus heavily lay on the employer to prove that the petitioner before the Labour Court is not covered by the definition of worker. The learned counsel in this behalf has referred to the case of Warner Lambert (Pakistan) Ltd. v&Sind Labour Court No.HL Karachi and another (1979 PLC 370). It is added that the definition of 'worker' in I.R.O is wider in scope as compared to its definition as given in Standing Orders and covers in its folds the respondent No.l. The learned counsel in this behalf has referred to the case of Rehmat All vs. The Security Papers Ltd. and another. The next submission is that the petitioner himself treated respondent No.l as a worker while initiating disciplinary proceedings against him, therefore, it is now estopped by its own conduct to turn round and plead that he is not a worker. The arguments are summed up with the submission that the controversy involved is a factual controversy which has been set at rest with the decision of respondent No.2 and the same cannot be subject matter of a Constitutional petition. In this behalf learned counsel has referred to the case of Allied Bank of Pakistan Ltd. vs. Ijaz Ahmad Abbasi and another (1990 SCMR 1713) and Inayat Ullah Khan vs. Chairman, Sindh Labour Appellate Tribunal, Karachi (1990 PLC 19). The last argument is that the Courts below throughout dealt with the case of his client in an illegal manner in asmuch as it was decided piece-meal. The result was frequent remands. In this behalf learned counsel has referred to the cases of A.F Ferguson <& Co vs. TJie Sind Labour Court and another (P.L.D 1985 S.C 429) andAbdur Rehman vs. Mir Ahmad Khan and another (P.L.D 1983 S.C 21). 5. The learned counsel in reply to the arguments submitted that there is a marked difference between the definition of worker as given in section 3(xmu) and section 2(i) of Standing Orders No.6 of 1968. The learned counsel for the employee explained that according to section 12(3) of the Industrial and Commercial Employment (Standing Orders), Ordinance, 1968, remedy of a worker even under the Standing Orders is under section 25-A of the I.R.O. 6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the provisions of law and precedents relied by them. The petitioner resisted the grievance petition of the worker amongst others on the legal objection that he is not a worker. Before, proceeding anyfurther, it is advisable to refer to definition of worker as contained in section 3(xn>iu). The same reads as under:- "Worker" and "Workman" means any person not falling within the defintion of employer who is employed (including employment as a supervisor or 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 a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any jKrson " It is clear from proviso (b) to this sub-section that in order to exclude an emplovee from the category of the worker the following are the conditions precedenf.- (7) He is being employed in supervisory capacity and (ii) draw wages Rs.800/- per xnensum. 7. The parties were allowed by the Punjab Labour Court to lead evidence on this point. The respondent No.l appeared himself as PW 3 while petitioner examined Muhammad Saleem as RW 2. The moment respondent No.l entered in the witness box and made a statement on oath that he is a worker then the onus shifted to the petitioner to prove that the respondent was not a worker as defined in the Industrial Relations Ordinance. The petitioner in order to succeed has to satisfy both the conditions contained in proviso (b) to section 3 (xxviii) pf Industrial Relation; Ordinance. 1%9. The bare statement of the worker was sufficient to shift the onus because the admitted position is that the entire record of employment was with the petitioner. The roster of duties, the salary paid and all other record pertaining to other workers was with the petitioner, therefore, it was the duty of the employer to establish and prove its contention as to the status of the petitioner in a grievance petition. The petitioner miserably failed to I discharge the onus, therefore, must suffer for the same. 8. This is not all. Whether one is worker or not is a question of fact, which has to be determined with reference to roster of the duties or the duties performed by the employee. The learned counsel for the respondent No.l has rightly referred to the judgments of Inayatullah Khan and Allied Bank of Pakistan Ltd. There is no merit in the argument of the learned counsel for the petitioner that since respondent No.l was proceeded under Standing Orders, therefore, he cannot maintain the petition under section 25-A of the I.R.O. Section 12(3) of the Standing Orders, as pointed out by the learned counsel for the worker, is a complete reply to this argument, 9. This case has exchequered history and I will be failing in my duty if the practice of piece-meal decisions is not depricated. It was the duty of the Labour Court to decide the petition on all points in order to avoid frequent remands. This –n matter is shuttling between the Punjab Labour Court and the Labour Appellate^ Tribunal for the last about one decade. The efforts should be to decide the matter as a whole instead of deciding it in fragments. The Honourable Supreme Court in the case ofAbdur Rehman ibid held as under:- This Court has time and again cautioned against piecemeal decision of these and similar matters. An exposition of principle that it is negation of justice, can be found in Ibrahim v Muhammad Hussain (1). The fact that it was an appeal case will not make any difference in so far as the basic principle is concerned." While in the subsequent judgment of A.F Ferguson & Co., the Supreme Court has disapproved this practice. The relevant portion reads as under:- "This Court and even the Privy Council, has not favoured piecemeal and fragmentary decisions of causes; see Abdur Rehman \Jlaji Mir Ahmad Khan and another (1) Ibrahim vMuhammad Hussain (2) and Nanheial and another v.Umrao Singh (3). In the circumstances of the present case the prayer for exercising constitutional jurisdiction of the High Court should, therefore, have been declined." This will be an additional reason for declining to interfere in Constitutional jurisdiction. 10. The result is that this petition is dismissed with costs. The Labour Court before whom the grievance petition of respondent No.l is pending is directed to decide the same expeditiously and in any case before 30th April, 1991, even it has to hold day to day proceedings. (MBC) (Approved for reporting) Petiton dismissed.

PLJ 1991 Lahore 362 PLJ 1991 Lahore 362 [Rawalpindi Bench,] Present: gul zarin KlANl, J Thaikadar HASSAN DIN»Petitioner versus ZAHIDIQBAL etc. -Respondents Civil Revision Nos. 63/D and 141/C of 1991, dismissed on 2.3.1991. Specific Performance-- — -Agreement to sell-Specific performance of-Suit for-Decree passed in- Challenge to—Subsequent sale was an oral transaction and not supported by anything in writing—No receipt for payment of sale price existed either— Petitioner himself not appeared to make statement in support of oral sale in his favour and payment of sale price by him to original owner of land-Support of original owner was a friendly play between them to knock out respondent No. 1-There was a clear collusion between petitioner and original owner- Held: Alleged oral sale in favour of petitioner is not free from doubt-Held further: Decision of appellate court being correct, is not open to any interference in revisional jurisdiction—Petitions dismissed [P.365]A Mr. Bashir Ahmad Ansari, Advocate for Petitioner, f Date of hearing: 2.3.1991 ' judgment These iwo civil revisions are inter-linked. Facts are common and the points involvedfor decision similar. Therefore, it shall be convenient to deal with them in a single judgment. 100 kanals of land situated, in the revenue estate of Pindigheb, in District Attock belonged to Ahmad son of Hayat. He agreed for its sale to Zahid Iqbal, and, gave power of attorney to Ahmad son of Mohammad Khan for completing the sale on his behalf. Power of attorney-Ext.D2, executed by Ahmad was registered on 20.12.1983. On 16.3.1986, the attorney executed an agreement to sell above piece of land to Zahid Iqbal for a sum of Rs. 2500/-. Receipt of sale price was acknowledged in the sale agreement, and, possession shown to be transferred under it to the prospective vendee. Agreement to sell is marked Ext.D-1. On 4.2.1987, petitioner alleging to have orally purchased the land covered by agreement to sell-Ext.Dl, instituted a civil suit for a declaration of ownership rights on the basis of oral sale in his favour. Original owner, namely, Ahmad was the sole defendant in the suit. On the first date of hearing fixed in the suit on 24.3.1987, the defendant appeared and conceded the claim of the plaintiff. But before the suit could be decreed on his admission, Zahid Iqbal intervened, and, on his application filed on 7.2.1987, was made a party-defendent to the suit. On 14.2.1987 Zahid Iqbal instituted a suit for specific performance of agreement to sell existing in his favour for completing the sale by Ahmad, and, impleaded petitioner as a co-defendant who claimed an oral sale of the land in his favour. Since both the suits involved common questions of fact and law for determination, these were consolidated for a joint trial and following issues framed in them:- (1) Whether the defendant Ahmad Khan entered into agreement to sell with Zahid Iqbal and executed agreement dated 163.1986 and subsequent oral sale in favour of Hussan Din is without authority? (2) Whether the suit filed by Thekedar Hussan Din is collusive? (3) Whether form of the suit of Hussan Din is incorrect and the suit is not competent in its present form? (4) Whether Hussan Din is bonafide purchaser for value without notice? (5) Whether the plaintiff Zahid Iqbal is entitled to decree for specific performance of contract? (6) Relief. Upon consideration of evidence given by the parties, the trial Court decreed the suit in favour of petitioner, and, dismissed that of Zahid Iqbal by a single judgment passed on 163.1989. Zahid Iqbal appealed from the decrees passed in the consolidated trial of suits. Lower appellate Court reversed the decision of the trial Court on 16.1.1981, and, decreed the suit for specific performance in favour of Zahid Iqbal, and, dismissed the suit brought by the petitioner. Correctness of this order, and, decree passed in appeal is contended (?) in two civil revisions filed by the petitioner, in this Court. It was argued that onus to establish that the subsequent purchaser had notice of the previous agreement to sell was on the plaintiff in the suit for specific performance and that having not been established by him, specific performance of agreement to sell could not be had. Section 27 (b) of Specific Relief Act, 1877 was pressed in aid. In my opinion, it was plainly an incorrect proposition of law. It is well settled that it is for the subsequent purchaser to prove that he was not posted : with aaual or constructive notice of any previous agreement to sell existing in respect of the land purchased by him for consideration. In his suit for declaration of title based on oral sale, petitioner made no averment on this point. However, a statement to that effect was made in the written statement submitted in the suit for specific performance filed by Zahid Iqbal. Consequently, a separate issue was settled on this point. Form of the issue indicated clearly that onus of proof was allocated to the petitioner. Petitioner himself did not appear in the witness-box to make the statement. He preferred to contest the litigation through his mukhtar who gave evidence on his behalf. He was equally dumb-founded on absence of any notice or knowledge of the previous agreement to sell in favour of Zahid Iqbal. Therefore, the contention advanced was without any substance in it. Faced with this position of record and law, Mr. Ansari frankly abandoned the plea and did not say anything further on this point. Even otherwise, possession on the land was held by Zahid Iqbal and it would have put any prudent person dealing with the land on enquiry as to the nature and title of the person holding the possession. No enquiry, whatsoever, was shown to have been made by the petitioner into the title of Zahid Iqbal holding the land. Therefore, subject to proof of the terms of agreement to sell contained in document Ext.Dl, oral sale, even if proved shall be of no material avail to the petitioner. There is neither doubt nor any serious dispute about execution of Ext.D-2. It is a registered document. Its execution by Ahmad Khan son of Hayat Mohammad was admitted. Its subsequent cancellation by a deed registered on 12.5.1988 re-inforced its genuineness. It was recited in Ext. D2 that Ahmad Khan bargained with Zahid Iqbal for sale of land hi dispute and since the lands in the village were under consolidation and transfer of rights could not take place, he appointed Ahmad Khan as his attorney to complete the sale on his behalf. On the basis of power conferred on him by Ext.D2, the muklitar of the original owner entered into an agreement to sell the land to Zahid Iqbal, vide Ext.D-1. It stated that agreement to sell the land was already concluded with Zahid Iqbal in 1983 and acknowledged the receipt of sale price of Rs. 2500/-. It also contained a recital about transfer of possession of the land since 1983. Its execution was adequately proved by its scribe, Haji Ghulam Ahmad DW-1 who wrote it out at the instance of Ahmad Khan, mukhtar of the original owner, Ahmad Khan son of Mohammad Khan the person who held the special power of attorney, and, Zahid Iqbal as D.Ws 1 to 3. All the three deposed on its execution. Although the original owner of the land (Ahmad Khan son of Hayat Mohammad) in his statement, as DW-4, denied the agreement to sell in favour of Zahid Iqbal and receipt of Rs. 2500/- by him as the sale price, but from an overall view of the evidence, it is clear that he had agreed for the sale of his land in favour of Zahid Iqbal for the stated consideration, receipt of which was acknowleged in the agreement to sell executed by his special attorney, and, the subsequent denial was an after-thought merely to benefit the petitioner. Possession of the land held by Zahid Iqbal also favoured the genuineness of agreement to sell in his favour. Petitioner conceded in the amended plaint of the suit for declaration that the defendant had unailthorisedly taken possession of the land in dispute. In the original plaint, there was no reference to the possession of the land, either his own or that of the defendant Zahid Iqbal. Strangely, the original owner despitfi the alleged oral sale of the land in dispute in favour of the petitioner still asserted his own possession on the land. Obviously, in the light of the existing records^ and, more particularly the stance taken by the petitioner himself, it looked to be an incorrect statement. Sale of the land in dispute, as the petitioner put in his plaint, took place on 23.9.1986, against a sum of Rs 10,000/- as its sale price. It was an oral transaction, and, was not supported by anything in writing. No receipt for payment of the sale price existed either. As observed elsewhere, petitioner himself did not appear in the witness box to make statement in support of oral sale in his favour' and payment of sale price by him to the original owner of the land. He, felt content to appear in Court through his Mukiitar-e-Aam. It is tree that the original owner supported the petitioner but seen in the circumstances it was a friendly play between them to knock the respondent Zahid Iqbal out of the field. The manner of the original owner readily conceding the suit in favour of the petitioner on the first date of hearing fixed in it, in view of his previous conduct relating to appointment of special attorney and giving him power to complete the sale of the land on his behalf, was indicative of a clear collusion between him and the petitioner. Alleged oral sale of the land in dispute in favour of the petitioner is not free from doubt either. In this view, learned Judge below rightly reversed the decision of the trial Court and decreed the suit for specific performance in favour of respondent No. 1. There is neither any error of jurisdiction committed nor any mistake discovered in reading of the record by the learned Judge below. The decision being correct is not open to any interference in revisional jurisdiction. Having regard to the above, revision petitions are dismissed in limine (MBC) (Approved for reporting) Petitions dismissed in lunine.

PLJ 1991 -Lahore 365 I Rawalpindi Bench] PLJ 1991 -Lahore 365 I Rawalpindi Bench] Present: GUL ZARIN KlANI, J - SHAUKAT HAYAT-Petitioner versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI and another-Respondents Writ Petition No. 879 of 1990, dismissed on 8.4.1991. Khula- —Marriage-Dissolution ol--Challenge to-Though lower appellate court did not properly read record in regard to second marriage of petitioner, yet its conclusions on an over-all view of existing circumstances, were not faulty—A petition for permission to take a second wife and order of Arbitration Council passed on it, are also a pointer in direction of a broken marriage—There is no claim for return of benefits for grant of khula either in written statement or in evidence-Held: Despite some defect in impugned judgment, it did not call for an interference in equitable jurisdiction of High Court-Petition dismissed. [P.368]A Mr. Nasir Saeed Sheikh, Advocate for Petitioner. Mr. Muhammad Younis Bhatti, Advocate for Respondent No. 2. Date of hearing: 8.4.1991. judgment This petition, under Article 199 of the Constitution, is for setting aside of a judgment of the lower appellate Court passed on 19.6.1990, by which it reversed the judgment of the Family Court, and, decreed divorce to respondent No. 2 in this Court. Parties were married on 27.7.1984. It proved extremely short lived. They could bear each other for a few months, and, thereafter, separated not to meet again, except in Court. There is no living issue from this marriage. A child was conceived but it aborted. On 4.12.1985, respondent No. 2 instituted a suit for divorce against the petitioner, in the Family Court at Rawalpindi. She accused the petitioner of cruelty, mal-treatment, false charge of immorality, existence of aversion, and, hatred for khula. Petitioner resisted the suit. He denied the allegations against him. He also brought a suit for restitution of conjugal rights against the respondent. Both the suits were consolidated for a joint trial, and, common issues were settled in them. Upon evidence taken from the parties, and, its consideration, the trial Court found against respondent No. 2, and, decreed restitution of conjugal rights against her, vide its judgment and decree dated 5.9.1988. Respondent No. 2 assailed the decision of the Family Court, in two appeals before the District Court, at Rawalpindi. Appeals were entrusted for hearing to a learned Additional District Judge, who in disagreement with the conclusions of the trial Court allowed the appeals, and, after setting aside the judgment and decree of the trial Court, gave divorce-decree to respondent No. 2. Against this judgment passed in appeal, a Constitutional petition was filed in this Court. It was admitted to hearing on 10.10.1990, by my learned brother, Mian Nazir Akhtar, J. On behalf of the petitioner, it is argued that the lower appellate Court mis­ read the record, and gave incorrect findings. It was submitted that existing material did not justify a finding for divorce on khula. It was further submitted that without determining the returnable benefits received under contract of marriage, respondent No. 2 could not be freed. On the contrary, learned counsel for respondent No. 2 supported the impugned judgment by reference to evidence on record. It was submitted that the relations between the parties were gravely worsened, and, seriously deteriorated leaving no prospects for survival of a happy marriage between them. As far returnable benefits, learned counsel argued that, neither there was a claim nor evidence in support of it. I must admit at the very outset that the lower appellate Court did not correctly read the record, in so far as it found that the petitioner had taken a second wife. It was either a deliberate omission or an inadvertant error. In either case, it materially affected the approach of the lower appellate Court to the issues requiring decision by it. There was no proof of second marraige by the petitioner, and. yet the lower appellate Court found it so. The document on record merely showed a permission obtained for second marriage by the petitioner. Learned counsel appearing for the petitioner made much capital of this omission of lower appellate Court to read the record correctly, and, submitted that since the burden of the impugned judgment is second marriage of the petitioner, the case required sending back for its decision afresh. As said above, neither party had pleaded or relied upon second marraige and there is no proof of it either. Nonetheless, the lower appellate Court repeatedly referred to the second marriage of the petitioner, and, on its basis adversely commented upon him and his conduct. Obviously, this kind of an approach by a Judge could not meet with approval. In ordinary circumstances, the case may have been sent back to that Court for its re­ consideration and deciding of it afresh. However, the facts and circumstances of the present case do not permit for taking such a course because it would greatly add to agony of respondent No. 2, who is in Courts since 1985, trying to free her from the bondage of marriage with the petitioner. In an effort to save the marriage from breaking, and, to see for a possible chance about rehabilitiation of marital relations, respondent No. 2 was called upon to appear in person, and, for that purpose, the hearing in the case was adjourned. On the adjourned date, respondent No. 2 appeared in person, alongwith her father. Petitioner was also present in the Court. I enquired from respondent No. 2 as to the cause/causes for seeking permanent separation from the petitioner, and, whether there was any chance of a re-union between them. From her replies to the questions put by the Court, it appears that she is determined to stay away from the petitioner, and, under no circumstances, was willing to rejoin him as his wife. She narrated her own talc of woes and slated that during her stay with the petitioner, he accused her of immorality, and, gave physical ill treatment. Recalling the events in the past, she stated that there was no love lost between them and, no possible chance for a happy reunion to sustain continuance of the marriage. She is a Matriculate. Presently, she is teaching in a School at Rawalpindi. She said her father posed no impediment. Petitioner is also an educated person. He shows eagerness to take back respondent No. 2. But unfortunately, she was not willing to join him on any terms. Apart from the recorded material and failing of two attempts at re­ conciliation in the Courts below, question-answer meeting with respondent No. 2 in Court sufficiently re-inforces my impression that damage already done was beyond repair and there was no prospects in the offing for a happy restoration of relations between the estranged spouses. When such are the circumsances, it is better to separate than to live in an atmosphere perpetually surcharged with mutual distrust and hatred towards each other. Marriage bereft of its attendant bliss serves no useful purpose. Rather, it negates and defeats its very object. Respondent No. 2 was prepared to break but not to bend in favour of the petitioner. Even considerable passage of time since the commencement of action in Court could not heal the wounds and bridge the existing differences. Instead the time has widened the gap. Even persuation from the Court has not worked to bring them closer. In this state of human affairs it is idle to think of a rapproachment. The marriage between the parties seems to have irretrieveably broken down. In this view, though the lower appellate Court did not properly read the record in regard to second marriage of the petitioner, yet its conclusions on an over-all view of the existing circumstances were not faulty. A petition for permission to take a second wife filed in mid 1986 by the petitioner, and, the order of the Arbitration Council passed on it, on 13.11.1986, is also a pointer in the direction of a broken marriage. Since then, four years have elapsed but things did not seem to improve. In this scenario, life which (is) a precious gift from GOD must not be allowed to languish and frittered away in mutual squabbles. As far the benefits to be returned for grant of khula divorce, there is neither sure claim laid in the written statement nor reliable evidence in support of it. Upon this view of the matter despite some defect in the impugned judgment, occasioned by an incorrect reading of record, yet upon a careful review and over-all analysis of all the circumstances of the case, it did not call for an interference in equitable jurisdiction of this Court. As Finding on issue of khula is sufficient for the decision of the writ petition, it is unnecessary to advert to other matters decided by the lower appellate Court. In this view, interference is declined, and, writ petition dismissed by leaving the parties to bear their costs in this Court. (MBC) (Approved for reporting) Petition dismissed

PLJ 1991 Lahore 368 PLJ 1991 Lahore 368 Present: ABDUL MAJID tiwana, J SUPER ELECTRICAL INDUSTRIES, GUJRAT-Petitioner versus THE GOVERNMENT OF PUNJAB, THROUGH SECRETARY, S & G.A.D., LAHORE, and 8 others-Respondents Writ Petition No.2538 of 1991, dismissed on 8.5.1991. (i) Constitution of Pakistan, 1973-- —Art.l99--Order passed by High Court—Writ petition to challenge same- Whether High Court can issue writ against High Court-Question of-Held: There can be no two opinions that in view of provisions of Article 199, a High Court or a Judge of High Court cannot issue any writ, order or direction against another High Court or against a Judge of same or other High Court-­ Held further: Present writ petition which impugns orders passed by High Court in two writ petitions, is not maintainable. [P.375]A (ii) Contract— —Supply of electric fans to Government-Invitation of tenders for—Rejection of petitioner's bid-Challenge to-Petitioner firm is not registered and its make is not standardised, hence not eligible to enter arena and offer bid—Additional Chief Secretary, as Principal Purchase Officer, in advertisement itself had reserved right to reject any bid without giving any reason therefor—Held: Reservation was too wide and arbitrary, yet in case of petitioner who was ineligible to offer bid, this power could lawfully be made use of and in fact it was meant for such eventualities-Held further: Claim of petitioner to be entitled to obtain rate contract on basis of lowest bid, is misconceived. [P.381JE&F (Hi) Laches­ '—Supply of electric fans to Government-Compromise order by High Court- Challenge to-According to attendance slip, sole proprietor of petitioner firm was present at time of opening of tenders and he signed attendance -Slip-He very well knew that he had remained unsuccessful in contest and .his brother's concern had been awarded rate contract-Writ petitions filed by respondent No.3 remained pending for more than six months but he did not choose to become a party—He even withdrew security amount but later on made a crude attempt to show its re-deposit in a clandestine manner—Held: Writ petition not only suffers from laches but petitioner has also not come to court with clean hands. [Pp.377,380&381]B,C&D Ch. Muhammad Rafique Bajwa, Advocate for Petitioner. Mr. Farooq Bedar, Addl A.G. for Respondents 1&2. Mr, DM. Awan, Advocate for Respondent No.3. Mr. Abdus Sattar Chughtai, Advocate for Respondent No.4. Dates of hearing: 22 and 30.4.1991,6 and 8.5.1991. judgment By this constitutional petition Supper Electric Industries, Guj rat, the petitioner herein, impugns the orders of this court, dated 20.3.1991, passed in Writ Petition No.6067 of 1990 and Writ Petition No.6068 of 1990. Both these writ petitions were brought by M/s Mehran Electrons Company, Karachi, respondent No.3 herein, on 27.8.1990, first against various functionaries of the Government of the Punjab, and the second against them and M/s Prince Industries (Pvt.) Ltd., Gujrat, respondent No.4 herein. In the fromer M/s Mehran Electrons Company, Karachi, had challenged the act of various functionaries of the Punjab Government of destandardising its 'Make' of electric fans, resulting in dropping its name from the list of approved tenderers for the supply of electric fans thereto during the year 1990-91, while in the latter it called hi question the action of the same functionaries of the Provincial Government in awarding rate contract to M/s Prince Industries (Pvt.) Ltd., Gujrat, for the supply of such fans after excluding it (Mehran) from the tender contest. Thus, in the first writ petition it prayed for a direction to the Government for restandardisation and in second writ petition it prayed for a direction to the Government for readvertisement and recalling of tenders after accepting its 'Make' as one of the approved manufacturers of electric fans. 2. These writ petitions were contested by all the respondents and eventually both of them were disposed of vide order, dated 20.3.1991, pursuant to a compromise reached by the parties. In writ petition No.6068 of 1990, which was the main petition, the following order was passed by this court:- "Parties have agreed to finish the controversy in the larger interest of the State and mutual good-will. Like the preceding year, Messrs Mehran Electrons Company, Karachi, the petitioner herein, and Messrs Prince Industries (Pvt.) Ltd., Gujrat, respondent No.5 herein, shall equally share the rate contract for the supply of electric fans to the Provincial Government represented by respondents No.l to 4 at the rate of Rs.610/- per fan as against the disputed lowest bid of Rs.618/- per fan offered by Messrs Prince Industries (Pvt.) Limited Gujrat, respondent No.5, during the year 1990-91. In other words, each firm shall supply half of the total number of standardised electric fans manufactured by it and required by the Provincial Government during the current financial year, in accordance with the terms and condition embodied in the tender document as already notified to the parties. They shall, however, execute -and sign the relevant documents as required by respondents No.l, 2 and 3 to give effect to this decision. 2. The writ petition is disposed of accordingly with no order as to costs". 3. In writ petition No.6067 of 1990 the following consequential order was passed on 20.3.1991:- "During the course of arguments since the parties have agreed to finisji the dispute by mutual give and take, this writ petition is decided in the light of the compromise reached in the main connected writ petition No.6068 of 1990. Since M/s Mehran Electrons Company, Karachi, the petitioner herein, which is also petitioner in the connected writ petition, and M/s Prince Industries (Pvt.) Limited, Gujrat, respondent No.5 therein, with the consent of co-respondents No.l, 2 and 3 represented by the learned Additional Advocate General/Government Pleader, Punjab have effected compromise in that writ petition and, like the preceding year, have agreed to share equally the supply of electric fans to the Provincial Government at the rale of Rs.610/- per fan as against the lowest accepted bid of Rs.618/- per fan offered by M/s Prince Industries (P\t.) Limited, during the year 1990-91, the petitioner herein stands automatically included in the list of approved tenderers, manufacturing standardized electric fans, appended to the tender document at Annex 'K', and this is their main prayer in this writ petition. It is, therefore, accepted and the impugned order is set aside with no order as to costs". 4. Aggrieved by these orders, M/s Super Electric Industries, Gujrat, the petitioner herein, brought the constitutional petition, now in hand, challenging the aforesaid orders passed in the two previous writ petitions, mainly on the ground that being manufacturer of good quality electric fans, it participated in the tender contest held on 31.7.1990 and since the price of Rs.497/- per fan quoted by it was the lowest amongst the contestants, it was entitled to the award of rate contract for the supply of electric fans to the Punjab Government during the year 1990-91 and continued to be given hope by respondents No.l and 2 but ultimately the respondents, in collusion with one another, fraudulently effected the said compromise, sharing the supply of fans between respondent No3 and 4 and exclusing it (petitioner) despite being the lowest tenderer. 5. It was, therefore, prayed that "respondents No.l and 2 be restrained from issuing any order in pursuance of the aforementioned orders passed by this Hon'ble Court and in case any order has been passed by respondents No.l and 2 before filling any writ petition, the same may be declared as having been passed without any lawful authority to do so. It is further prayed that the parties before the writ petition be proceeded for contempt of court and be punished accordingly. It is also prayed that respondents No.l and 2 be directed to place the order on the petitioner Firm accepting the tender of the aforementioned opened on 31.7.1990 and this writ petition be allowed with costs". 6. On 2.4.1991, after hearing Mr.Rafique Ahmad Bajwa Advocate, the learned counsel for the petitioner, I asked Mr. Farooq Bedar, the learned Additional Advocate General, who had remained associated with the previous writ petitions on behalf of Government of the Punjab and its functionaries, to appear. On 3.4.1991 the learned counsel for the petitioner further documented the writ petition and respondents No.l to 4 were directed to file their respective comments/written statements on 8.4.1991. The record of the aforesaid two previous petitions was also directed to be added. On this date of hearing respondents No.l, 2, 3 and 4 represented by their respective Advocates, filed their comments. 7. It was pointed out by the learned counsel for respondent No.3 that the Additional Chief Secretary (S&GAD) was the Principal Purchase Officer, Government of the Punjab and he needed to be impleaded as respondent. The learned counsel for the petitioner expressed his willingness to implead him and he was allowed to do so. He, therefore, filed amended plaint on the next date of hearing after impleading the Additional Chief Secretary as respondent No.5. Other respondents were certain firms which had participated in the tender contest but their quotations were higher and the same were ignored. These were proforma respondents as no relief was claimed against them and, to my mind, they were not necessary parties. 8. In the joint written statement of respondents No.l and 2, signed by the Deputy Secretary (Procurement), it was alleged that tenders were called for 31.7.1990, wherein only those makes of the fans were invited to quote their rates which were standardised, with the department and since the petitioner's make had ot been standardised, it was not invited to give its offer in response to the tender notice advertised in the Press, nor it was invited through further invitation made in continuation of that advertisement. According to them, the petitioner, despite all this, still dropped its offer in the tender box, quoting the rate of Rs.497/- per electric fan, but on scrutiny its, offer was ignored as it did not fullfil the condition of standardisation as per provisions of Purchase Manual, Government of the Punjab, and it was not eligible to participate in the contest despite being the lowest bidder. The averment of the petitioner firm that it was assured by the department that its offer was being considered, was emphatically denied and it was asserted that after the scrutiny of its tender it was made clear to it that due to its non-eligibility its offer had been ignored and it was out of the arena. 9. With regard to M/s Mehran Electrones Company, Karachi (respondent No.3), it was contended that it was neither invited to participate in the tenders opened on 31.7.1990 nor did it drop its offer in the tender-box as its make was not standardized with the department for the year 1990-91 and it was not eligible to take part in the contest. However, it was conceded that respondent No.3 had filed Writ Petitions No.6067 and 6068 of 1990 against the Government of the Punjab in S&GAD, praying for the standardization of its make of fan and for awarding the rate contract. 10. With regard to M/s Prince Industries (Pvt.) Limited (respondent No.4), it was alleged that this firm, being eligible to participate in the tenders, quoted the rate of Rs.618/- per fan and being the first lowest, it was awarded the rate contract on 31.7.1990 but its implementation was stayed by this court in the aforesaid two writ petitions. In reply to paragraph No.10 of the writ petition, it was contended that orders of this court in the aforesaid two writ petitions had been received but meanwhile further action thereon had also been stayed on account of this writ petition. It wat prayed that the writ petition should be dismissed with costs. 11. In its written statement/comments, M/s Mehran Electrones Company Karachi (respondent No.3) took up the position that in the schedule of tenders accompanying the invitation to tenders it was not eligible to submit tenders as it was not one of those ten makes which stood standardized. However, amongst the tenders opened on 31.7.1990 the rates quoted by M/s Prince Industries (Pvt.) Limited, (respondent No.4) were the lowest amongst various firms. With regard to the petitioner's claim it was alleged that since its make had not been standardized, so its offer was not considered and this fact was specifically in its knowledge eversince 31.7.1990 and if at all it was aggrieved, it could file a writ petition earlier but it purposely kept silent till the filing of this writ petition on 31.3.1991 which suffered from laches and was liable to be dismissed summarily. It was asserted that Mr.Khalid Javaid Mriza, the sole proprietor of the petitioner firm, and Mr. Tariq Pervaiz Mirza, the Chief Executive of M/s Prince Industries (Pvt.) Ltd. (respondent No.4), were real brothers and all the proceedings were specifically within the knowledge of the former on account of its close relationship with the latter. It was alleged that this writ petition was filed pursuant to a well-planned conspiracy by, and collusion of, the two brothers to nullify the orders of this court passed in writ petition No.6067 of 1990 and wirt petition No.6068 of 1990 on 20.3.1991 and since the petitioner had not come to this court with clean hands, it was not entitled to the equitable relief under Article 199 of the Constitution. It was contended that the judgments, dated 20.3.1991, passed by this court in the above mentioned two writ petitions qua the parties had become final and if at all the petitioner felt aggrieved thereby, it could challenge them hi the higher forum but not before this court. It was alleged that on 25.3.1991 i.e. 5 days after the decision of the aforesaid two writ petitions by this court, Mirza Tariq Pervaiz of M/s Prince Industries (Pvt.) Ltd. (respondents No.4), who had voluntarily entered into compromise embodied in Writ Petition No.6068 of 1990 as a party thereto, filed an application (CM-1372 of 1991) praying for re-opening the matter but it was rejected by this court on 26.3.1991 and five days later his younger brother Mirza Khalid Javaid filed this writ petition with mala fide intention. Explaining its own position in the tender contest, it was alleged that the first date for opening tender was 10.7.1990 at 11 a.m. in the Committee Room of Finance Department and on the appointed date, time and place Mr.Badar-ul-Islam, the then Additional Secretary (Procurement), in presence of all the representatives of the concerned firms, including Abdul Razzaq Sori, its authorised representative, after opening the tender box, returned all the sealed tenders of electric fans to the representatives of the respective firms, with the remark that since one of the electric fan manufacturing concerns i.e. respondent No.3 had requested to await its quality/performance report from the Field Officers, the tenders would be re­ called after 8-10 days. However, the tenders invited for other articles were opened by him. It was averred that on 31.7.1990 the said officer, for the reason best known to him, acting in arbitrary and capricious manner, informed certain manufacturers of electric fans on telephones to reach his office with their tenders/offers for the supply of electric fans but Mehran Electrone Company, Karachi, was not given any such intimation and ultimately he announced M/s Prince Industries (Pvt.) Ltd. (respondent No.4) as the lowest bidder for supplying electric fans and accepted its bid as a firm of his choice. It was contended that on the awarding of rate contract to M/s Prince Industries (Pvt.) Ltd. (respondent No.4), the answering respondent filed the aforesaid two writ petitions on 27.8.1990 and the same were finally decided on 20.3.1991 and since respondent No.4 was a party to Writ Petition No.6068 of 1990, Mr. Khalid Javaid Mirza, the sole proprietor of the petitioner firm, on account of being real brother of the Chief Executive of M/s Prince Industries (Pvt.) Ltd. (respondent No.4), had full knowledge of the institution and pendency of these wirt petitions and he could become a party thereto if he so wanted but he purposely kept away. It was contended that thousands of electric fans supplied by the answering respondent in the Year 1986- 87, 1987-88, 1988-89 and 1989-90 to the Government of the Punjab were of required standard and it fulfilled all the contractual obligations. The allegation of collusion between it and the Prince Industries (Pvt.) Ltd. (respondent No.4), in effecting compromise before this court in the aforesaid writ petitions, was emphatically denied and the compromise was described as voluntary, lawful and binding on all concerned, as a consequence of which the lowest bid of respondent No.4 of Rs.618/- per fan accepted by the Government was further decreased to Rs.6lO/- per fan by mutual agreement in the larger interest of the State. 12. M/s Prince Industries (Pvt.) Ltd. (respondent No.4) in its written reply raised preliminary objection that the writ petition was mis-conceived being not based on lawful cause of action as writ petitioner was not standardized for supplying of electric fans to the Government. It was alleged that mere submission of lowest tender did not create any right in favour of the tenderer. In support of this objection a number of reported judgments were quoted. It was alleged that the department had the prerogative to declare any firm as standardized or otherwise and no firm could claim its standardization as a matter of right. In reply to paragraph No.6 of the writ petition, it was asserted that the supply of fans had been allowed to be shared equally by the answering respondent and respondent No.3 in view of the compromise decision in Writ Petition No.6067 of 1990 and Writ Petition No.6068 of 1990. In an answer to paragraph No.9 it was contended that the petitioner firm having not been standardized, its bid, despite being the lowest, was rightly rejected by the Government as it was not eligible to offer its tender. The allegations of concealment of facts, collusion and mis-representation in entering the compromise were denied. 13. During the course of argument the learned counsel for the writ petitioner has reiterated, elaborated and explained the averments contained in the writ petition with reference to certain paragraphs of the Purchase Mannual of the Government of the Punjab and a few judicial precedents on the question of fraud and mis-representation but before discussing this aspect of the matter in some detail, it is necessary to advert to certain preliminary objections raised by or on behalf of respondent No.3. The first preliminary objection emphatically pressed into service by the learned counsel for respondent No.3 is thaf in the writ petition now in hand, the petitioner has challenged the validity of the orders, dated 20.3.1991, of this court disposing of two previous writ petitions and since under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, a High Court can issue writ or direction to, or declare without lawful authority an act done, or proceedings taken, by any person and a 'person', as defined in clause (V) of the said article, does not include a High Court or a Supreme Court or a court to be established under any law relating to the Armed Forces of Pakistan, this writ petition is not maintainable. 14. Confronted with this situation the learned counsel for the petitioner has tried to bank upon the general principle of law that fraud vitiates even the most solemn acts or preoceedings and since in the previous wirt petitions fraud was played on this Court by the collusion and misrepresentation of the parties thereto by concealment of the material fact of petitioner's quotation being the lowest, this court has the inherent power to look into the allegations of fraud and declare the impugned orders as without lawful authority. Alternatively, he has contended that if the wirt petition in its present form is not maintainable, this court can treat it as an application under section 151 C.P.C. or an application under section 12(2) CPC and on the basis of averments of fraud, collusion and mis-representation contained therein, it can embark upon an enquiry into the relevant facts and can record an effective finding to set aside the impugned orders. 15. There can be no two opinions that in view of the provisions of Article 199 ibid, a High Court or a Judge of the High Court cannot issue any writ, order or direction against another High Court or against a Judge of the same or other High Court and the writ petition in its present form, which impugns the orders, dated 20.3.1991, passed by this court in Writ Petition No.6067 and Writ Petition No.6068 of 1990, is not maintainable. The learned counsel for the petitioner should have been aware of the provisions of Article 199 supra under which he was bringing the writ petition. He should have drafted the petition in such form in which it was maintainable instead of asking this court to convert it into an application under Section 151 C.P.C. or into an application under Section 12(2) C.P.C. and thereby to ask it to act in aid of one party. The question of conversion or otherwise of the writ into an application under section 151 C.P.C. or a application under Section 12(2) C.P.C. shall be taken up after the disposal of preliminary objection. 16. The next preliminary objection raised by the learned counsel for respondent No.3 is that of laches. He contends that his client liad filed Writ Petitions No.6067 of 1990 and No.6068 of 1990 on 27.8.1990 and they remained pending in this court till 20.3.1991 when they were disposed of on the basis of a compromise reached by the parties voluntarily and lawfully. According to the learned counsel, the petitioner firm, whose sole proprietor was the real brother of the Chief Executive of Prince Industries (Pvt.) Ltd. (respondent No.4), both located in Gujrat town, side by side, and both of whom had offered tenders, knew the results thereof on 31.7.1990 when the same were opened by the Additional Secretary (Procurement) in the presence of all concerned. As per learned counsel, the petitioner purposely did not come forward^ jpin the proceedings of the said writ petitions despite having knowledge $ tneii pendency, nor did he file any independent writ petition until the present one on 1.4.1991. He submits that the petitioner rather withdrew security amount of Rs.20,000/- some time in October, 1990 which shows that Re was satisfied with the result of tenders and withdrew himself from the contest. According to the learned counsel, the conduct of the petitioner firm or its sole proprietor was not only lethargic and negligent, constituting laches, but -j&q malafide because in order to file this writ petition and cover up the serious drawback of withdrawing the security amount at an early stage, he colluded and conspired, with Abdul Hamid Akhtar, Stenographer/Personal Assistant of the Additional Secretary (Procurement) whose name they tried to misuse by alleging his (Mr.Badr-ul-Islam) permission for redeposit of security in an unauthorised manner, as it appears from the statement of the said Stenogrpher/Personal Assistant recorded by this Court in order to ascertain the factual position. He submits that to subvert the compromise the petitioner firm has not only been set up by its sister concern (respondent No.4) but also by respondent No.l and 2. They, after having voluntarily conceded the compromise for the supply of fans on the pattern of the previous year, happened to have a second thought and in order to wriggle out of the compromise have not only failed to deliberately comply with the final order of this court, dated 20.3.1991, but also made an abortive attempt in a crude manner to undermine it through the application (C.M.No.1372 of 1991) made by the Chief Executive of respondent No.4 which was dismissed by this court summarily on 26.3.1991. 17. In reply to the above contentions on the question of laches and malafide, the learned counsel for the petitioner submits that his client had no knowledge of the pendency of Writ Petitions No.6067 and 6068 of 1990 brought by respondent No.3 against respondent No.l and 2 and respondent No.4 despite the Chief Executive of respondent No.4 being the real brother of the petitioner and their factories being located at Gujrat. According to the learned counsel, the petitioner happened to gather information about Jthe pendency of the writ petitions only when the same were decided by way of compromise and he was so told by the officials of Procurement Wing of S&GAD who eversince the opening of tenders had been telling it that its bid was under consideration and due to procedural difficulties its finalisation was being delayed. He argues that whenever his client came to know about the decision of the previous writ petitions, he immediately brocsit the one in hand. In his opinion, the writ petition did not suffer from bchis nc: there was any malafide on the part of the writ petitioner nor it was plaviaz in the hands of anybody and it had brought this constitutional petition for rise -.in-Scanon of its own valuable rights. li. It is clear from the attendance slip, dated 31.7.1990, attached to the writ peikicc bv the petitioner itself, that KhaliH .lavaid, the sole proprietor of the petitioner firm, and his brother Tariq MirzS, the Chief Executive of respondent Nc•..-. besides either tenderers, were present when the tenders were opened on Jl-'.lW ir.d they had signed the attendance®slip. The petitioner firm's rer'T£Scn:a;r.e. therefore, very well knew that he had remained un-successful in lie contest and his brother's concern (respondent No.4) had been awarded the rat; contract, being the first lowest amongst the eligible tenderers, but despite this the petitioner did not come forward to invoke the jurisdiction of this Court or seek any other remedy from any other forum. The writ petitions filed by respondent No.3 against respondents No. 1, 2 and respondent No. 4 had remained pending for more than six months but it did not rhoose to become a party thereto 3E-d even withdrew the security amount some time in September or October 1990. Laier it made a crude attempt to show its redeposit in a clandestine manner by handing over a cheque of Rs.20,000/- to Abdul Hamid Akhtar, PA. to the Additional Secretary (Procurement) S&GAD, whom it set up as a stooge, as it irears from the simple reading of his statement recorded by this Court on If.-.1991. Both of them collusively tried to misuse the name of Mr.Badar-ul- IsLam. Additional Secretary (Procurement) S&GAD for the redeposit of security despite the fact that he had left for U.SA. on some training course much earlier. 19. For all these reasons I have come to the conclusion that the writ petition oc< only suffers from laches but the writ petitioner has also not come to this court wiii dean hands, rather I have the impression that it is playing the game of respondent No.l, 2 and 4 who want to wriggle out of compromise order, dated 03.1991, passed by this court and to achieve this object they are making every possible efforts and using every mean, fair or foul, to subvert it to the detriment of respondent No.3. 20. Now I take up the allegations of fraud and misrepresentation made in the writ petition and so vehemently pressed into service by the petitioner's counsel, after proceeding on the assumption that this court, as urged by him, has the inherent power to look into the allegations of fraud and misrepresentation or to pre%'ent the abuse of its process as a court of ordinary civil jurisdiction has under Sections 151 and 12(2) C.P.C. 21. Petitioner firm was admittedly a firm neither registered nor standardized with the Government of the Punjab for the purpose of supplying electric fans but despite this it entered the contest for the supply of fans for the year 1990-91 and quoted Rs.497/- per fan, the lowest of all the quotations given by the tenderers. It was. however, ignored by the Government and the rate contract was awarded to respondent No.4, which quoted the lowest price per fan from amongst the manufacturers of standardised electric fans duly registered with the Government. The contention of the petitioner's counsel is that his client, being the lowest bidder, was entitled to be awarded rate contract after he was allowed to participate in the contest in terms of advertisement and also having been specifically invited by the Section Officer (Procurement), but he was deprived of his entitlement by the collusion of the respondents who later entered into a compromise in the wirt petitions filed by respondent No.3. According to him, the fact of petitioner's being the lowest bidder was purposely suppressed by the respondents before this court and they all played fraud on this court in the said writ petitions. 22. The learned Additional Advocate General, who represents respondents No.l and 2 as also the subsequently added respondent No.5, has first tried to dis­ associate himself with the compromise, dated 20.3.1991, effected in the aforesaid writ petitions, by contending that though at the time of finalisation of the compromise he was present alongwith Sufi Bashir Ahmad S.O.(Procurement) yet he had not given unconditional consent thereto because he had reserved his right to consult and seek approval of Additional Chief Secretary/Principal Purchase Officer and to inform this court accordingly and as such his clients, namely, respondents No.l, 2 and 5 were not bound by the compromise entered into by respondents No.3 and 4 for equally sharing the supply of fans to the Government during the year 1990-91. However, when he realised the consequences of his contention and felt that whatever he was stating did not behove a senior Law Officer of his status, he has tried to retrace his steps and chosen to support the compromise by opposing the writ petition in accordance with the tenor of his clients' pleadings. He is of the view that the petitioner was not eligible to offer tender and its offer clandestinely found its way to the tender contest and its socalled lowest quotation was rightly ignored. In his opinion, no fraud was played with this court. 23. On the question of fraud and misrepresentation the learned counsel for respondent No.3 reiterates the same arguments which he has addressed on the preliminary objections. Learned counsel for respondent No.4, in consonance with the pleadings of his client, has supported the impugned order of compromise, dated 20.3.1991, passed in the Writ Petition NO/068 of 1990 and denying its collusion with the petitioner on account of close relationship of their proprietors, opposed the writ petition by saying that on account of business rivalary they were not on good terms with each other. However, with regard to the order of this court, dated 20.3.1991, passed in Writ Petition No.6067 of 1990, he is of the view that though his client was not a party to it yet he does not subscribe to it because it entails automatic re-entry of respondent No.3 in the arena through the process of automatic restandardisation which adversly affects his client' business interest and it has filed an Intra Court Appeal against this order. It may be mentioned here that even respondents No.l and 2 have gone in an Intra Court Appeal against the compromise orders, dated 20.3.1991, as pointed out by the learned counsel for respondent No3. 24. An important fact which has come to the notice of this court during the hearing of the writ petition and has some bearing on the points under discussion is that despite the order of status quo having been passed by this court in this writ petition on 3.4.1991, which was and has been in the notice of the parties and all concerned, respondents No. 1,2 and 5, besides some other functionaries of the Government, have, in the apparent violation of that order, been allowing certain field officers of Communication and Works Department the local purchase of a good number of electric fans. As it appears from the oral statement of MrAli Kazim, Additional Secretary (Procurement) S&GAD (respondent No.2), who hi the absence of the Additional Chief Secretary is now-a-days also working in his place. 632 electric fans have been allowed to be locally purchased after the issuance of the order of status quo by this court on 3.4.1991 till now. According to him, a Committee was constituted by the S&GAD and its decision has been implemented by the Deputy Secretary (Procurement) who has been allowing Executive Engineers, Incharge of various projects of the Government, to locally purchase 632 electric fans at different occasions. This shows the attitude of the Provincial Government and its senior functionaries towards the compromise order, dated 20.3.1991, passed in Writ Petitions as also the respect they have for the orders of the superior courts. 25. Though the impugned order, dated 20.3.1991, passed in Writ Petition No.6068 of 1990, as reproduced above, is quite clear yet I would like to elucidate certain aspects thereof in view of certain contentions raised by the learned Additional Advocate General in his effort to cause doubts in its validity with the sole object of enabling his clients to wriggle out of it. 26. On 20.3.1991, in view of the urgency of the matter, more so due to the fast-approaching summer season and consequent need of electric fans in Government buildings, the writ petitions were being heard in chamber after the normal court time. Mr.D.MAwan, Advocate, the learned counsel for the petitioner in those writ petitions, (now respondent No.3) was on his legs and when commenting on the past performance of his client as a supplier of electric fans during the last three or four years he referred to the preceding year's rate contract, which was shared by his client and Prince Industries (Pvt.) Ltd., (respondent No.3), I suggested to the learned counsel representing the parties that if they had shared the supply last year by mutual consent, why could not they follow the same practice this year? They all appreciated this suggestion and the learned counsel for respondents No.3 and 4 sought permission to consult their respective clients whose representatives were available in the court room. Both the learned counsel went out and, after consulting their clients, came back and made consenting statements. Mr.Farooq Bedar, the learned Additional Advocate General, who was representing respondents No.l, 2 and 5, in the presence of Sufi Bashir Ahmad S.O. (Procurement), also expressed his approval and all concerned expressed satisfaction over the settlement of dispute. Not only this, rather on my persuation in the public interest, the learned counsel for respondents No.3 and 4, with the consultation of their clients, agreed even to decrease the already quoted and accepted price of Rs.618/- per piece to Rs.610/- per piece. This measure effected a saving of Rs.8/- per electric fan for the Government. On this decrease the learned Law Officer and S.O (Procurement) were particularly happy. However, it was I who suggested to them that they should bring this compromise to the notice of A.C.S/Principal Purchase Officer and bring his views, if any, to my notice. The orders were announced in terms of compromise reached but the same was written on the following day when nothing was heard from the Government's side. 27. However, on 26.3.1991 an application written in vernacular was moved on behalf of respondent No.4 through Tariq Mirza, expressing dissatisfaction on the compromise and praying for the dismissal of writ petition. This application was disposed of by the following order:- "This application was brought to me by Muhammad Khalil, Qasid of this court, when today during tea interval 1 was sitting in the chamber, saying that it was given to him by MrAbdus Sattar Chughtai, Advocate for the petitioner. After the tea interval when 1 went out of the chamber to the court room, I asked MrAbdus Sattar Chughtai Advocate, who was incidentlv present in the court-room in connection with another case, as to whether this application was filed by him? He denied having done so. He, however, stated that it was brought to him by his client but he told him that he was not in favour of presenting it to the court and thereafter he was not aware as (to) what had happened. The name of Tariq Mirza petitioner, who has apparently made this application, has been called out many a time but neither he nor anyone else has turned up on his behalf. The application is, therefore, dismissed not only for non-prosecution but also for the reason that in both the writ petitions the proceedings were finalized in the presence of both the counsel representing the parties, including the petitioner herein, on 20.3.1991 persuant to a compromise reached by them and with the final disposal of the writ petitions, this court has become functus officio. Since this application was brought directly, it should be allotted some number." The petitioner herein then brought this writ petition on 1.4.1991. 28. Thus, it will be seen that after lawfully entering into a compromise, PjGovernment of the Punjab represented by various functionaries (repondents No.l, 2 and 5, including its Law Officer), had a second thought for the reason best known to them aad tried to wriggle out of the compromise dated 20.3.1991 and in order to achkve this object, first they instigated and pushed up respondent No.4 and k made an application repudiating the compromise but when it failed in its efforts, then they set up the petitioner who brought this writ petition. 29. There is yet another aspect of the matter. The petitioner did participate in the tender contest and quoted the lowest price per fan but its bid was ignored and had to be ignored because being an unregistered firm, it was not eligible to enter the arena and offer the bid. If every unregistered firm were, as per advertisement, eligible to participate in the tender contest by depositing the security of Rs.2Q.000/- then the whole exercise of registration of firms and standardisation of makes would be meaningless and the petitioner firm, which has been making frantic efforts for its registration with the Government and for the standardisation of its make of fan over the years, would not have felt the necessity of so doing. The words figuring in the advertisement dated 14.6.90 were not meant for the manufacturers of electric fans and they were relevant to some other items or goods mentioned in the advertisement. Section Officer (Procurement) did address a communication under his signatures to the petitioner firm, inviting it for; participation in the tender contest for electric fans. Either he did so purposely in collusion with the petitioner, whose case he has been processing for registration and standardisation, or he did so inadvertantly. In any case, he embarrassed the Government by adopting a course against the express provisions of the Purchase Mannual. 30. As regards the question of the lowest bid of the petitioner and his entitlement to obtain rate contract for the supply of fans on tHt account, this too was misconceived. The Additional Chief Secretary as tht Principal Purchase Officer, in the advertisement itself had reserved the right to reject any bid without giving any reason therefor. Though this reservation was too wide and arbitrary, yet in case of petitioner, who was ineligible to offer the bid, this power could lawfully be made use of and in fact it was meant for such eventualities. 31. In view of the above, I hold that the compromise in question was entered into by the parties with their free will and it was duly incorporated in the order, dated 20.3.1991, passed in Writ Petition No.6068 of 1990. It did not suffer from any legal infirmity, nor any party thereto, including respondent Nos.l, 2 and 5, can avoid its implementation on any ground. So far as Writ Petition No.6067 of 1990 is concerned, no doubt, the learned counsel for the parties, including the learned Additional Advocate General, said nothing about this writ petition but it had to be disposed of in the light of the compromise reached amongst the parties in the main writ petition and it was disposed of accordingly, incorporating a consequential order which is self-evident. Aggrieved by this order, respondent No.4 has filed I.C A while respondent Nos.l, 2 and 5 are also said to have gone in I.GA perhaps against both the orders. I would refrain from saying anything with regard to these I.CAs except that respondent No.4 was not a party to Writ

Petition No.6067 of 1990 and it is not understandable as to how it is affected thereby as it was a matter between respondent No3 and the Government and I had to pass some order in order to dispose of the writ petition and for the limited purpose of giving effect to the compromise-reached in the main petition. I had no intention to entail the ^standardisation of the 'make' of respondent No.3 for all time .to come, nor the order in that writ petition should be interpreted in that manner because the matter in controversy in both the writ petitions remained confined only to the rate contract of electric fans for the year 1990-91. 32. As a result the writ petition is dismissed with costs to respondent No.3 only. (MBC) (Approved for reporting) petition dismissed.

PLJ 1991 Lahore 382 PLJ 1991 Lahore 382 Present: FALAK SHER, J MUHAMMAD ZIAUL HAQ--Petitioner versus ADMISSION BOARD OF MEDICAL COLLEGES OF PUNJAB and 8 others-Respondents Writ Petition No.3821 of 1990, accepted on 30.4.1991. Educational Institutions-- —Medical College-Admission to--Refusal of-Challenge to—Rule 12(g) of Prospectus of Government Medical Colleges in Punjab, has been designed exclusively to cater for students of Punjab domicile residing beyond frontiers of provincial territory who had appeared in F.Sc. from different Boards-It cannot be pressed into service in cases of students of Punjab domicile residing within geographical periphery and taking examination in different Boards of Punjab-Held: Refusal of admission to petitioner in a Government Medical College in Punjab, is without lawful authority and utterly devoid of any legal sanction-Petition accepted. [Pp.383&384]A&B Mian SherAlam, Advocate for Petitioner. Rana Muhammad Arshad, Addl. A.G. for Respondents 1&2. Date of hearing: 30.4.1991 order Resume of the necessary facts, for resolving the present controversy, as divulged from the record is that petitioner, a scholarship holder throughout the academic career, securing 727 marks out of 900 with A-one grading hi the middle

standard school examination Spring 1984; 751 marks out of 850 with A-one grading in the secondary school certificate (Spring) examination 1986 and 816 marks cut of 1100 with A grading in the intermediate (Spring) examination (Pre- Fngine?ring) Group 1988. with a view to pursuing the medical profession, appeared in the adffilSffai subject of Biology in Spring 1989 and obtained 125 marks out of 200, resultantly, with the requisite adjustments, scored 754 marks out of 1100 in pre-medical group and with a credit of 20 marks on the ledger on account of N.C.C., cumulatively raising the total secured marks to 774, applied to the Chairman. Admission Board/Principal K.E.M.C. Lahore on prescribed form within the stipulated date i.e. 16.1.1990 for admission to 1st Year M.B.B.S. class in one of the Government Medical Colleges in the Punjab for the academic session 199-90: however, pending finalisation of the admission process, feeling discontented with the quantum of award in the Biology paper, successfully got it rechecked yielding 7 additional marks escalating the grand total to 781, factum whereof was duly communicated to the Chairman, Admission Board on 31.1.1990. Despke that, to his astonishment, candidates with comparatively lesser grading on the merit list were given preference and granted the admission; feeling aggrieved thereby, present constitutional petition was resorted to, wherein report and parawise comments submitted by the Chairman, Admission Board divulging reason for declining admission to the petitioner revealed that the revised result was furnished beyond the last date prescribed for receipt of the admission forms and tabulation of the merit list having been notified on 1.2.1990, thus was ignored, and his merit was adjudged on the basis of the original marks viz. 774 whereas the tail ender candidate on the merit list had 779 marks, which stance, the Chairman, Admission Board, reiterated at the rostrum during the course of hearing banking upon rule 12 (g) of the Prospectus of the Government Medical Colleges in the Punjab, as the sheet anchor of the solitary contention, text whereof for the sake of ready reference is reproduced herein below in extenso: "Students of Punjab domicile residing outside the Province of Punjab and appearing from different Boards of F.Sc. (Pre-Medical) shall apply for admission in anticipation of declaration of their results (if not already declared) within the prescribed dates notified in the Newspapers. Such applications will only be considered if their results were produced before the final selection is made. Applications received after the date so prescribed will not be considered." 2. Since no other point was urged, therefore, treating it as a notice case the controversy is finally brought at rest. 3? Having perused the rule referred to supra, through the binocular of literal as well as logical principles of statutory construction, I am impelled to observe, without any degree of diffidence, that the solitary contention urged by the respondents suffers from inherent irreconcilable fallacy for three fold reasons; firstly, intendment of the framers of this piece of legislation has been manifested by the statutory draftsmen in an unambiguous term that it has been designed to exclusively cater for students of Punjab domicile residing beyond the frontiers of Provincial territory who had appeared from different Boards of intermediate and secondary school examination in F.Sc. (Pre-Medical) with a view to enabling them to apply for admission) in the Medical Colleges of Punjab in anticipation of declaration of their results by the respective Boards, consequently on the principle of expressio unius est exclusio alterius, it cannot be pressed into service in cases of students of Punjab domicile residing within its geographical periphery and taking examinations from different Boards of intermediate and secondary education of the Punjab; secondly the Chairman, Admission Board, was admittedly duly apprised of the petitioner's revised result prior to the notification of the merit list of successful candidates; lastly, assuming for the sake of arguments, rule 12 (g) ibid is attracted to the instant case even then the expression 'final selection' in the context of things as terminus qua would mean the date on which the last candidate amongst the contemporary applicants was granted the admission which, admittedly, occasioned on 30.4.1990. This legal proposition remained uncontroverted by the learned Additional Avocate General. 4. In view of the aforegoing, refusal of admission to the petitioner to 1st Year M.B.B.S. class in a Government Medical College in the Punjab by the Chairman, Admission Board, is held to be without lawful authority and utterly devoid of any legal sanction; consequently, allowing the petition, respondent No.l is directed to grant the sought for admission forthwith; however, there shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 384 PLJ 1991 Lahore 384 Present: manzoor hussain sial J. MUHAMMAD YAR--Petitioner versus MUHAMMAD SHARIF and another-Respondents. Writ Petition No.2881 of 1985, dismissed on 9.4.1991. Jurisdiction- —Agricultural land-Allotment under Horse Breeding Scheme—Challenge to— Whether transferee Member of Board of Revenue had no jurisdiction to hear revision petition-Question of~Petitioner raised no objection at time of transfer of revision petition to some other Member-No objection was raised even before transferee Member—His jurisdiction was not even questioned in grounds of writ petition-Transfer of a revision petition by Senior Member to another Member being judicial exercise of jurisdiction, required no approval of Government—Held: Neither order of transfer nor disposal of revision petition by Member (Judicial), Board of Revenue, suffered from lack of jurisdiction-Petition dismissed. [Pp.389&390]A,B&C Mr. YusufAM Khan, Advocate for Petitioner. Mr. Talib Haider Rizvi, Advocate for Respondent No.l. Mr. Maqbool Elahi Malik, Advocate General and Mr. Talib Hussain Awan, Advocate for Respondent No.2. Date of hearing: 31.3.1991. judgment The dispute in this case pertains to the allotment of State land situate in Chak No.35/GD, Tehsil and District Okara under horse breeding scheme. The tenancy in respect of the afore-said land had fallen vacant on the death of the original lessee. Applications were invited from eligible persons for its allotment. The District Collector, vide his order dated 24.9.1980 allotted the land in dispute to Muhammad Yar petitioner. On appeal the Additional Commissioner (Revenue) Lahore Division, Lahore vide his order dated 11.1.1983 allotted the land in dispute to Muhmmad Sharif respondent. Muhammad Yar petitioner challenged that order in revision. The Member (Judicial) board of Revenue vide his order dated 8.5.1983 restored the order of the District Collector and allotted the land in favour of the petitioner. The order of the Additional Commissioner was also challenged by Fazal Ahmad and Muhammad Tufail through separate revision petitions. The Member, Board of Revenue seized of the matter vide his order dated 7.7.1984 maintained the order under revision whereby Muhammad Sharif respondent was held entitled to the allotment of land in dispute. The afore­ said orders being contradictory were set aside by this Court vide order dated 183.1984 passed in Writ Petition Nos.2486 and 4483 of 1983. The case was remanded to the learned Member, Board of Revenue for fresh decision. It is significant to point out that during the proceedings in remand before Mr.S.M.Nasim, the learned Member, Board of Revenue Muhammad Tufail rival candidate moved application seeking transfer of the case to some other Member, Board of Revenue.No objection was raised on behalf of the petitioner or his rival candidate Muhammad Sharif who were present in person before him. With the consent of the contesting parties, the case was transferred to the Member (Judicial) Board of Revenue, Punjab, Lahore for decision. He heard learned counsel for the parties and vide order dated 12.6.1985 upheld the findings of the Additional Commissioner holding Muhammad Sharif respondent entitled to the allotment of the land in dispute. This order gave rise to three writ petitions. The one filed by Muhammad Yar (W.P.No.2881/85) was dismissed on 6.7.1985 whereby this Court declined to interfere in the orders of the revenue authorities holding Muhammad Sharif better qualified than the petitioner particularly when the land in dispute was to be allotted as a grant under horse breeding scheme to a suitable person. The second petition (W.P.No.3723/85) was dismissed on 16.10.1985 by his Lordship Mr.Justice Saad Saood Jan (as he then was) holding as under:- "The question before the revenue authorities was who should be allocated the 'Ghoripal' square. They considered the claims of the petitioner and other respondents and decided to give the square to respondent No.4. Since it was a matter of discretion with them, I do not think, it is a fit case for interference by this Court. Dismissed." The third petition (W.P.No.4237/85) filed by Fazal Muhammad was also dismissed by MrJustice Fazl-i-Mahmood (as he then was) on 25.1.1986 holding as follows: - "The learned Member indeed had jurisdiction over the subject-matter and also over the parties to the dispute. The petitioner has not been able to show that the impugned order was liable to be declared as being without lawful authority and of no legal effect. The matter involved selection of a suitable person for the horse breeding grant on a variety of considerations. The question of eligibility of respondent No.2 has been answered in his favour by the learned Member (Judicial) Board of Revenue. The Impugned orders do not as such suffer from a jurisdictional error. The net result of above discussion is that this writ petition fails and is hereby dismissed in limine." It appears that Fazal Muhammad did not agitate the matter any further. Muhammad Yar petitioner, however, challenged the order of this Court thruogh CA.No.172/86 before the Supreme Court. The appeal was allowed on 3-3-1986 and the case was remanded to this Court for fresh decision. The relevant portion of the Supreme Court order reads:- "By CPLA No.920/1985 orders of the learned Member (Judicial), Board of Revenue, Punjab, Lahore and order of the learned Additional Commissioner (Revenue) are challenged and inter alia, it is contended that the two authorities have wrongly held that the Collector is bound to accept the recommendations submitted by the District Remount Officer, that Mr.S.M.Naseem, Member, Board of Revenue properly adjudicated upon this point in his order and respondent No.2 Malik Zawar Hussain Member, (Judicial) has not given any reason that in what circumstances the decision of the learned Member (Colonies) was not correct, that the learned Member (Judicial) of the Board of Board had no jurisdiction to decide the question involved, and that these aspects of the case have not been gone into by the learned High Court Judge while dismissing the writ petition, and thus erred in law. 2. Learned counsel also filed copy of affidavit submitted by Mr .Muhammad Rafiq Chohan, Advocate who had appeared in the High Court and had raised the question whether Malik Zawar Hussain, Member (Judicial) had the lawful authority to decide the case. He also filed copy of the order of the learned Member (Colonies). 3. On examining the question we find that the Board, under the relevant provision of law applicable, has Members to conduct the business in different fields vide sub-section (1) of section 6 of the West Pakistan Board of Revenue Act, 1957 which reads as follows:- 6. "Conduct of Business: (1) Subject to the approval of the Government, the Board may distribute its business amongst the Members, and may, by rules, regulate the procedure of all proceedings before it.As such the question of jurisdiction does arise in this case. Notices were already issued to the respondents. We convert the petition into appeal, allow it and remand the case to the High Court for decision afresh on the point raised by the learned counsel." Muhammad Tufail also called in question the validity of Order dated 16-10- 1985 passed by this Court whereby his Writ Petition No.3723 of 1985 was dismissed, through C.P.S.LA.No.513 of 1986, wherein the Supreme Court granted leave to appeal vide order dated 21-8-1989 which reads:- "This leave to appeal petition relates to the allotment of State land on conditions regarding Horse Breeding Scheme, under the Colonization of Government Lands Act. According to learned counsel the original lessee had died. The land was resumed and treating it as a cew case of allotment (and not that of inheritance), fresh applicants were considered. Muhammad Sharif respondent No.5 succeeded. The petitioner and another candidate, namely, Muhammad Yar were unsuccessful. He has further stated that like the petitioner Muhammad Yar having failed, the Supreme Court ultimately granted him relief and the case was remanded to the High Court for fresh decision. He has also informed that the matter is still pending in the High Court. In view of what has been stated above the delay in filing this petition is condoned. It is converted into appeal and ordered to be fixed in the next week if the Bench is availabe at Lahore. There shall be no security." 2. Mr. Yusuf Ali Khan, learned counsel for petitioner contended that Mr.S.M.Nasim, Member (Colonies) had no jurisdiction to transfer the revision petition to Member (Judicial) Board of Revenue on 1-1-1985 for disposal. In support of his contention he referred to Article 175 (2)of the Constitution which reads:- "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." He argued that under section 6(1) of the West Pakistan Board of Revenue Act, 1957, subject to the approval of the Government, the Board may distribute its business amongst its Members, and may, by rules, regulate the procedure of all proceedings before it. Mr.S.M.Nasim obtained no prior approval from the Government before transferring the revision petition to the Member (Judicial) Board of Revenue. The transferee Member, therefore, had no jurisdiction to hear and decide the revision petition entrusted to him for want of a valid order. In his estimation, the order passed by the Member, (Judicial) was coram non-judice. He also controverted the factum recorded' in the order dated 1-1-1985 by Mr.S.M.Nasim, Member, Board of Revenue that Muhammad Yar petitioner and other rival candidates raised no objection for transfer of the revision petition to the Member (Judicial) Board of Revenue. He however, did not file a counter affidavit in support of his submission in this regard. It was also pointed out that Mr.S.M.Nasim was acting at the relevant time as Member (Colonies) and not even a Senior Member to entrust the revision petition for disposal to Member (Judicial) Board of Revenue. 3. Mr. Talib Haider Rizvi, Advocate, learned counsel for Muhammad Sharif respondent, on the contrary, contended that there is no cavil with the proposition that a Court can competently decide a matter if vested with jurisdiction conferred by the Constitution or under any other law. He maintained that the Member (Judicial) Board of Revenue to whom the case was entrusted for decision was I clothed with jurisdiction to decide the same. He argued that according to section ( 2(i) of the West Pakistan Board of Revenue Act, 1957 the 'Board' means, the a Board of Revenue established under the Act" and section 6(2) stipulates that an c order passed by a Member, shall be deemed to be the order of the Board. The Member (Judicial), Board of Revenue was appointed as Member, Board of Revenue like all other Members for disposing of cases of various categories. He referred to the provisions of sections 6(1) and 4(2) of the aforementioned Act to demonstrate that the approval of the Government was not necessary in matters where the Board exercises appellate and revisional jurisdiction. The transfer of a revision petition from one Member to another, therefore, required no prior approval of the Government. Mr.S.M.Nasim at the relevant time was Senior Member, Board of Revenue. He entrusted the case to another Member fendisposal at the instance of the parties. The petitioner raised no objection before Mr.S.M.Nasim or before the transferee Member. He even did not mention in the writ petition that the Member (Judicial) had no jurisdiction to decide the revision petition but raised the point, for the first time, before the Supreme Court. He was, therefore, estopped to question the competency of the Member (Judicial) Board of Revenue to decide the dispute after the decision had gone against him. Learned counsel further submitted that the order impugned in this petition has already been maintained by two other Hon'ble Judges of this Court by dismissing the writ petitions filed by the rival candidates. It will not, therefore, be appropriate to have a contrary view on a mere technicality which does not exist in reality. 4. Mr. Mukhtar Ahmad Rana, Deputy Secretary, Board of Revenue, appeared with the record and testified that Mr.S.M.Nasim, the learned Member, Board of Revenue was a Senior Member, Board of Revenue when he entrusted the revision petition to the Member (Judicial) Board of Revenue. He also pointed out that the Member (Judicial) Board of Revenue exercises all powers of Member, Board of Revenue and the order passed by him does not suffer for lack of jurisdiction. He also affirmed that revision petition was transferred on an application moved by Muhammad Taufail which was not opposed by the petitioner and other candidates present on that date. 5. Mr. Talib Hussain, Advocate appeared on behalf of Mian Saeed-ur- Rahman Farrukh, Advocate for Muhammad Tufail who had moved an application for impleading him as one of the parties to this case. He stated that he challenged the order of this Court dismissing his writ petition wherein leave has been granted by the Supreme Court. He, therefore, opted to argue the case before the Supreme Court. 6. I have considered the contentions raised by learned counsel fpr the parties and have also perused the relevant documents on the file. It is established on record that the petitioner was present on 1-1-1985 before Mr.S.M.Nasim, Member, Board of Revenue when on the application filed by Muhammad Tufail his rival candidate seeking transfer of the revision petition to some other Member, Board of Revenue, he raised no objection which is so recorded hi the afore-said order. Simiarly he raised no objection before the transferee Member and argued his case until the case was decided against him. He did not mention nor questioned the jurisdiction of the Member (Judicial) Board of Revenue to adjudicate upon the revision petition even in the grounds of the writ petition. The provisions as contained in sections 2, 4 and 6 relevant to the extent are reproduced hereunder:- "2. (i) "Board" means the Board of Revenue established under this Act. (ii) ....................... (iii) "Member" means a member of the Board of Revenue established under this Act." 4- (1) ........................... (2) The Board shall be subject to the control of the Government, and in all matters, other than those in which, the Board exercises appellate and revisional jurisdiction, the Government shall have power to issue such directions to the Board as may be considered necessary or expedient and the Board shall carry out those directions, (underlining is mine). 6. (1) Subject to the approval of the Government, the Board may distribute its business amongst its Members and may by rules, regulate the procedure of all proceedings before it. (2) Any order made or a decree passed by a Member shall be deemed to be the order of the Board." The afore-said provisions of law read together clearly show that all matters where the Board exercises revisional or appellate jurisdiction, the approval of the Government in transacting its business is not necessary. The transfer of a revision petition by a Senior Member, Board of Revenue to another Member being judicial exercise of jurisdiction required no prior approval of the Government. The Member, (Judicial) Board of Revenue who had been appointed as Member, Board of Revenue was, therefore, competent to decide the revision petition. In my opinion neither the order of transfer nor the disposal of the revision petition by Member (Judicial) Board of Revenue suffered for lack of jurisdiction. Even otherwise it does not lie in the mouth of the petitioner to plead lack of jurisdiction in the Member (Judicial) Board of Revenue to adjudicate the revision petition when no such objection was raised at the time the same was entrusted to him nor when it was heard and decided. The discretion cannot be exercised in writ jurisdiction in favour of a person who does not approach the Court bonafidety and with clean hands. The impugned order passed by the learned Member, Board of Revenue whereby the order of the Additional Commissioner was maintained in holding Muhammad Sharif entitled to the allotment of the tenancy on the basis of possessing better right than other candidates merits no interference in writ jurisdiction. 7. For the reasons highlighted above I find no merit in this petition and dismiss it with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 390 [Rawalpindi Bench] PLJ 1991 Lahore 390 [Rawalpindi Bench] Present: gul ZARIN KlANI, J TAUS KHANefc-Petitioners versus Mst. ZARINA-Respondent Civil Revision No. 374/D of 1987, dismissed on 22.1.1991. Here in italics. InberitaDce— —Declarator}. suit-Decreed by trial court but dismissed by appellate court-­ Challenge to-Whether respondent was sister of petitioners and entitled to inheritance of their father-Question of~It is sufficiently established beyond deubcs that respondent was daughter of Karam Khan, father of petitioners and story that she was found in a maize field was neither true nor convincing—In a previous suit, petitioners and their father, as defendants admitted that she was daughter of Karam Khan and sister of present petitioners-There is no reason for dose maternal relations of parties to depose in favour of respondent except compulsion of conscience to speak truth-Held: conclusions of appellate court in impugned judgment, are not infirm-Petition dismissed. [P.394&395JA&B .\faul\i Sirajul Haq, Advocate for Petitioners \fr. Muhammad Munir Peracha, Advocate for Respondent (at pre-admission hearing). Date of hearing: 22.1.1991. order Only point in the revision petition is whether respodent Mst. Zarina was daughter of Karam Khan and entitled to a l/5th share of the land left by him at the time of his decease as found by the learned Judge below. Facts are :- Karam Khan owned 11 kanals, 5 marlas of land at Mauza Vardag Dakhli Nartopa of Tehsil and District Attock. He dioed on 18-8-1972. By mutation No. 2687, sanctioned on his death on 24-3-1973, Revenue Officer distributed the land by allocating 4/5 share to his two sons Taus Khan and Rawat Khan in equal halves, and, gave the remainder l/5th to Mst. Zarina as his real daughter. The inheritance mutation is marked Exht. P-2. On 9-4-1972, Taus Khan and Rawat Khan instituted a suit in the civil Court at Attock to have it found that they were exclusive owners in possession of the land left by thier father and Mst. Zarina being not the daughter of Karam Khan was not entitled to share his inheritance with them and that inheritance mutation was erroneously sanctioned in her favour. Upon being served in the suit, Mst. Zarina joined issues with her brothers and submitted that she was daughter of Karam Khan and rightly given her share in his land. On 29-5-1974, the trial Court settled a solitary issue on her relationship and put its burden of proof on the plaintiffs. On 6-1-1975, above issue was amended to its existing form. It runs- "Whether defendant Mst. Zarina is daughter of late Karam Khan? OPP. The defendant opened her case first. Her husband Asif Khan appeared for her as DW-1, He deposed that Mst. Zarina was daughter of Karam Khan and was wedded to him as his wife. In cross-examination, he deposed that Mst. Zarina was born in village Nartopa. She was of 42/43 years and married to him 26 years ago. Mst. Zarina herself did not appear in the witness box. In support of oral evidence led on her behalf, certified copy of written statement filed by Karam Khan in an earlier civil suit marked Exht. D-l was tendered in evidence and the defence evidence closed. Plaintiffs gave evidence of Nawaz Khan PW-1. He stated that Mst. Zarina was not daughter of Karam Khan, who had informed him that she was found by him from a maize field. In cross-examination, he admitted that he was not related to Karam Khan. He also admitted that Mst. Zarina was got married to Asif Khan by Karam Khan. Also stated that Karam Khan informed him about 4/5 years earlier that he had found Mst. Zarina lying in a field. Taus Khan (plaintiff) as PW-2 deposed that Mst. Zarina was not his sister, nor daughter or Karam Khan. She was found from a maize field and brought up by his father. In cross-examination, he admitted that Rawat Khan was his consanguine brother and Mst. Zarina was younger to him by 10/15 years. He admitted that Mst. Zarina was brought up by his father and married to Asif Khan. Also stated that Mst. Zarina was of a month only when she was found by his father. He conceded that this matter was not reported to the police. He denied the suggestion that he had admitted before the Revnue Officer in course of mutation proceedings about Mst. Zarina to be his sister. Further admitted that a civil suit brought by Mst. Zarina was defended by him and his father Karam Khan and that Sheikh Karim Bakhsh acted as their counsel in that suit. He denied the suggestion that in that suit, Karam Khan had admitted Mst. Zarina to be his daughter. Plaintiffs produced copy of jamabandi for the year 1971-72 Exht.P-1, copy of mutation No. 2687 Exht.P-2 and an extract from Register KJiasra girdawari Exht.P-3 and closed their evidence. Upon review of the material brought on record, the trial Court held that Mst. Zarina was not daughter of Karam Khan, and, thus decreed the suit to the plaintiffs, on 24-4-1975. She filed an appeal. It was allowed on 10-7-1975 by learned Additional District Judge and suit was remanded for deciding of it afresh after taking additional evidence on the issue of relationship between the parties. Para 8 of the judgment in appeal is relevant to the present discussion. It reads:- During the course of the arguments, it has been brought to my notice that the maternal uncles of the respondents who are also alleged by the appellant as her maternal uncles are alive. I think that their statements may be of great help in order to settle the controversial issue. I find that the evidence produced on the record is quite insufficient to determine the contentious issue between the parties. In the interest of justice I feel that both the parties should be given an opportunity to produce additional evidence. The trial Court should also summon the maternal uncles after getting their particulars from the parties." In the preceding paragraph of the judgment, the learned Judge adverted to the contradictory version of Karam Khan which to his mind created a doubt on the veracity of his statement. Against remand order, plaintiff preferred an appeal (FAO 140/75) to the High Court. It was dismissed on 2-2-1985 by my learned brother Akhtar Hassan, J., on the ground that since a revision lay against the remand order, appeal was incompetent. Merits of the remand order were not looked into. In post remand, Hakim Khan and Ghulam Rasul maternal uncles of Rawat Khan (plaintiff) and Mst. Zarina (defendant No.l) as DWs. 1 and 2, stated that Mst. Sajida Bibi was their sister. She was married to Karam Khan. She had a son Rawat Khan and a daughter Mst. Zarina born to her from this marriage. As far Taus Khan, it was stated that he was born from another wife of Karam Khan. They stated that Mst. Sajida Bibi was taken in marriage by Karam Khan after the death of his first wife. The trial Court also recorded the statements of Mst. Bibi Ran and Mst. Aisha Bibi. Mst. Bibi Ran was of 66 years of age and Mst. Aisha Bibi of sG years. Both were maternal aunts of Rawat Khan, and, Mst. Zarina. They deposed that Mst. Sajida Bibi was their sister. She was married to Karam Khan. Rawai Khan and Mst. Zarina were her son and daughter from this marriage. In reburtaL plaintiffs gave statement of Sajawal Khan PW-3 He deposed that Mst. Zarina was not real sister of Taus Khan. Plaintiffs informed him that he had found her in a 'Jf^af field. He stated that Mst. Zarina was able to walk, when she was found by Karam Khan. He is a close relation of Taus Khan. His sister was married lo i±n- Obviously, he interested in him. Rawat Khan (plaintiff) who had not arreared in pre-remand proceedings to make his own statement, now stepped inio lie witness box as PW-4. He deposed that Mst. Zarina was not related to him. Sac was a discovery of his father from a ' Jawar field and was brought up by his fiihsr. and. later got married. He admitted that he was consanguine brother of Ta-o Khan. They were from different mothers but a common father. In crossexamination, he conceded that Mst. Zarina was hardly of few days when she was fc-iind by his father. He admitted that at the time when Mst. Zarina was found by his father, mother of Taus Khan had already expired. In cross-examination he admitted that their father had sold some land to them in the past and a suit was brought by Mst. Zarina to challenge the sale in their favour. In the suit, Karam Khan himself as the alienor and the vendees namely Taus Khan and Rawat Khan were impleaded as defendants. Sheikh Karim Bakhsh Advocate was their counsel in the suit. He admitted that Karam Khan had made a statement in Court but what his statement was, he did not recollect. He denied the suggestion put to him that Karam Khan had admitted that Mst. Zarina was his daughter. Certified copy of the written statement Exht. D-l revealed that some land was sold by Karam Khan in favour of his two sons. Mst. Zarina as daughter of Karam Khan brought a usual civil suit under Customary Law on 31-7-1967 for challenging the sale on the grounds that it suffered from want of consideration, and, lacked legal necessity. Copy of the plaint in the suit was not put in evidence. In Para 1 of the written statement Exht. D-l, it was admitted that Mst. Zarina was daughter of Karam Khan and sister of other two defendants. In Para 3 of the written statement Exht. D-l, it was stated that as daughter, the plaintiff was incompetent to challenge alienation of ancestral land by her father. Written statement Exht. D-l is dated 5- 10-1967. It appears to be signed/thumb marked by the defendants. Its contents were also verified by them. Though the relationship asserted in the plaint was admitted in the written statement Exht. D-l, yet, at some later stage, Karam Khan in his statement recorded by the trial Court denied that the plaintiff (Mst. Zarina) was his daughter and that she was found in a 'Jawar' field after few days of her birth. In final judgment of the Court dated 23-11-1967, issue of relationship was not finally resolved and the suit was dismissed on the short ground that the plaintiff had no locus (standi) to challenge alienation of ancestral land. There are indications in the judgment of the trial Court dated 23-11-1967, that it took plaintiff as daughter of Karam Khan. It may be noticed that the copy of the judgment in the suit filed by Mst. Zarina was not part of the record. It was shown to the Court by the learned counsel for the respondents hi order to satisfy it that there was no adverse finding on issue of relationship between the parties. Let me say at once, that I do not propose to take judgment in the earlier suit in consideration for relying on it for purposes of deciding the present controversy. After survey of the evidence led by the parties, it now becomes necessary to examine the contentions on merits. It is submitted that the learned Judge below did not correctly read the record and failed to notice an important omission about the respondents personal non-appearance in Court to make •statement in support of her case and draw an adverse inference against her on that score. It was forcefully argued that her non-appearance to give evidence on facts within her knowledge was a wieghty factor and was fatal to the truth of her case. As said above, in the opening paragraph of my judgment, only material point requiring decision in the revision petition is about the truth of the relationship of Mst. Zarina to Karam Khan. The trial Court found against her, and, held that she was not daughter of Karam Khan. Judgment in appeal favoured her stance. Upon careful consideration and critical analysis of the material on record, in my view, it is sufficiently established beyond doubts that Mst. Zarina was daughter of Karam Khan and the story that she was found in a maize field was neither true nor convincing. This conclusion I hold, despite her omission to step in the witness box for making a statement in support of her version. In the inquiry on the inheritance mutation at a public gathering, Mutation Officer found that Mst. Zarina was daughter of Karam Khan and gave her share in the land left by her father. In 1967, Karam Khan sold some land to his two sons. Mst.Zarina then asserted that she was daughter of Karam Khan and challenged the sale in favour of her brothers. Karam Khan and his two sons were defendants in the suit. Un-equivocally, the defendants admitted that she was daughter of Karam Khan and sister of the other defendants. It is true that in his statement recorded later, Karam Khan denied that she was his daughter and was found from a field but that appeared to be a clear shift to suit the requirements of the occasion. Probably, the old father intended to save the property in the hands of his sons and for that purpose cooked up and unplausible story. It did not ring true to satisfy a judicial mind for placing reliance upon it. Obviously, that which was stated first in the written statement was true and must be taken as correct on relationship of Mst. Zarina Bibi to late Karam Khan. The trial Court did not consider it necessary to decide on inter se relationship and dismissed the suit for want of competence of the plaintiff to challenge the alienation of ancestral land by her father. It is common ground that Mst. Sajida was married to Karam Khan. There is no dispute that Rawat Khan was born to her from this marriage. Two maternal uncles and two maternal aunts deposed unanimously that Mst. Zarina was born to Sajida Bibi from the loin of Karam Khan. Plaintiffs failed to disclose paternity of Mst. Zarina. All that was said was that she was found by Karam Khan in a field. Some witnesses deposed that she was of few days when she was found by Karam Khan. Other said that she was able to walk. Strangely, none knew of her parents. Atleast, none was produced by the plaintiffs to disclose her origin, whether she was a legitimate child of some parents or begotten illegitimately. To me, it looked to be an extremely unlikely event in a village life, wherein it is difficult, if not impossible to conceal the truth from a searching public eye. Further, there is no reason for the close maternal relations of the parties to depose in favour of Mst. Zarina and against Rawat Khan except compulsion of conscience to speak truth. Both Mst. Zarina and Rawat Khan were equi-distant to them. Why should one be preferred to the other, records gave no answer. Maternal nephew and niece were equally dear to maternal uncles and maternal aunts. Even then, they deposed in favour of Mst. Zarina saying that she was daughter of Karam Khan from the womb of Mst. Sajida Bibi. This is nothing but the truth, and, there is no good reason for not taking it as such. Having regard to the standard of proof for deciding of civil matters, preponderance of evidence favoured the conclusion that Mst. Zarina was daughter of Karam Khan and the learned Judge below was correct in holding that view. As for the contention about personal non-appearance of Mst. Zarina it ought not to tilt the scales in favour of the plaintiffs. Ordinarily, where a party abstains from giving evidence in his own case about the facts in his personal knowledge, the presumption would be that truth lay on the other side but the rule of drawing adverse presumption is neither absolute nor inflexible. Where enough evidence was led by a party to establish its case and there are no inherent improbabilities in it mere non-examination of the party as a witness in support of its case may not justifiably lead to an adverse inference against it. Mst. Zarina was ill-advised to abstain from witness box. Her counsel submitted that she belongs to a tribe of pathans and was a pardah observing lady. Such females avoid public gaze and do not appear in Courts. Even so, she could be examined by a Local Commissioner appointed for the purpose. But all that is now a matter of the past, and, it shall be of no purpose to comment-on the omission because there is good evidence to find the relationship proved. Learned Judge below chose to rely on her evidence in preference to her adversaries. That course was open to him and no fault could be found with it. The conclusions in the impugned judgment are not infirm. Accordingly, I would agree with the learned Judge below, uphold his conclusions, and, dismiss the revision petition in limine. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 396 PLJ 1991 Lahore 396 Present: muhammad munir khan, J MUHAMMAD SHAFIQUE-Petitioner Versus ADDITIONAL DISTRICT JUDGE, GUJRAT, and another-Respondents Writ Petition No. 8660 of 1990, dismissed on 20.1.1991 Guardians and Wards Act, 1890 (VIII of 1890)-- —S. 25--Minor children-Custody of--Petition for-Respondent No.l being appellate court, was quite competent to reverse findings of trial court-­ Admittedly petitioner father does not live in Pakistan and he has not been maintaining minors although he was legally/morally obliged to do so~No male member of petitioner's family lives in his house in Pakistan-Respondent No. 1 has given sound and cogent reasons for disagreeing with trial court-Held: There is no illegality or irregularity in judgment of appellate court-Petition dismissed. [P.397]A Ch. Abdur Rashid Gujjar, Advocate for Petitioner. Date of hearing: 20.1.1991. order Through this constitutional petition, Muhammad Shafiq petitioner seeks declaration to the effect that the order dated 8-5-1990 passed by the learned AddLDistrict Judge, Gujrat, is illegal, without lawful authority and of no legal effect. 2. The facts leading to this petition, briefly, are that Muhammad Shafiq petitioner filed an application under Section 25 of the Guardians and Wards Act for the custody of his minor children, namely, Imran Shehzad, aged eight and a half years and Man Shehzad, aged 7 years, against Mstlrshad Begum (mother of the children) before the learned Judge Family Court, Gujrat. This application was resisted. Issues were framed. The parties led evidence. The learned trial Court accepted the application of the petitioner on 12-10-1989. Feeling aggrieved thereby, MstJrshad Begum respondent/defendant filed an appeal, which was allowed by the learned AddLDistrict Judge, Gujrat. Consequently, the application of the petitioner for the custody of his minor children was dismissed, hence this petition. 3. The learned counsel for the petitioner submitted that the judgments of the Courts below are at variance; that the children being above 7 years in age, the petitioner was/is entitled to their custody; that the welfare of the children lies in their living with the petitioner/father and not living with their mother, respondent No.2; that the learned Appellate Court has not attended to the reasons given by the learned trial Court for accepting the application of the petitioner and that the learned Appellate Court has not properly appreciated the question of the welfare of the children. 4. I have considered the submissions made by the learned counsel for the petitioner with care. I do not agree with him. The learned Addl. District Judge being the Appellate Court was quite competent to reverse the findings of the learned trial Court; that he has taken into consideration the reasons given by the learned trial Court; admittedly, the petitioner/father does not live in Pakistan and he has not been maintaining the minors although he was legally/morally obliged to maintain them while they were living with their mother and that no male member of the family of the petitioner lives hi his house in Pakistan. After taking into consideration the evidence on record and the attending circumstances, the learned Appellate Court has come to conclusion that the welfare of the children does not ue in their living with the petitioner. The learned Addl. District Judge has given sound and cogent reasons for disagreeing with the findings and reasons given by the learned trial Court. The learned counsel has not been able to point out any misreading or non-reading of any evidence by the learned Appellate Court. The learned Addl. District Judge has not flouted the provisions of relevant law. In the peculiar circumstances of the case, it does not seem to be proper to interfere in exercise of the constitutional powers of this Court, with the appreciation of the evidence and circumstances made by the learned Appellate Court. I do not see any illegality or irregularity in the judgment of the learned Appellate Court. The submissions made by the learned counsel are devoid of force and substance. 5. Pursuant to the above discussion, this petition fails and is accordingly dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 397 PLJ 1991 Lahore 397 Present: MALIK MUHAMMAD QAYYUM, J TAHIR UMAR-Petitioner versus M/S BATA SHOES (PAKISTAN) LIMITED, and 3 others-Respondents . Writ Petition No. 4444 of 1987, accepted on 11.3.1991. (1) Urban Rent Restriction Ordinance, 1959 (W.P. Ord., VI of 1959)- —S. 13(3)-Tenant-Ejectment of-Prayer for-Personal need-Ground of- Contention that occupation of adjoining shop by petitioner debarred him from claiming shop in dispute—Admittedly that shop does not belong to petitioner alone-Ejectment petition could not be dismissed on ground that petitioner was a co-sharer in another shop-Held: Argument that condition laid down under Section 13(3) regarding failure of landlord to prove that he was not in possession of suitable property, pales into insignificance. [P.400JC 1982 CLC 868 rel. (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord, VI of 1959)- S. 13(3)~Tenant~Ejectment of—Prayer for-Personal need—Ground of-Not only material evidence was ignored from consideration, but Additional District Judge also acted contrary to law declared by superior courts-It is well settled that it is a prerogative of landlord to select any shop for his business and neither Rent Controller nor Additional District Judge could do so—Held: Appeal filed by petitioner, has not been decided by Additional District Judge in accordance with law and shall have to be re-decided—Petition accepted and case remanded for fresh decision of appeal. [P.401]D,E&F 1986 SCMR 1981,1973 SCMR 185 and PLD 1981SC 246 rel. (iii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord, VI of 1959)- —S. 13(3)~Tenant-Ejectment of-Prayer for-Personal need-Ground of~ Petitioner was mainly non-suited on grounds that he and his brother were in possession of adjacent shop but this fact was not disclosed in ejectment petition, and secondly that petitioner being in possession of other shop, was not entitled to have shop (in dispute) vacated-Held: Both these grounds are clearly not tenable and are not only contrary to law declared by superior couts, but also suffer from non-consideration of material evidence-Held farther Petitioner was certainly not debarred from having shop vacated for purposes of independent business. [Pp399&400]A&B 1979 CLC 801 rel. Sh. Ziaullah, Advocate for Petitioner Mr. Slier Zaman KJian, Advocate for Respondent Nos. 1&2. Nemo for Respondent Nos. 3&4. Date of hearing: 11.3.1991. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by Tahir Umar petitioner herein on 24th October, 1983, against Messrs Bata Shoes (Pakistan) Ltd, with respect to a shop situated at Liberty Market, Lahore. The eviction was sought on the solitary ground that the shop was required by the petitioner for his own use and occupation. The learned Rent Controller after framing necessary issues and recording evidence found that the personal need of the landlord did not stand proved. He consequently proceeded to dismiss the ejectment application on 18th October, 1986. the petitioner unsuccessfully invoked the appellate jurisdiction of the Additional District Judge, who dismissed his appeal on 27th June, 1987. He has now filed the present constitutional petition assailing these orders of the Rent Controller and the Additional District Judge. 2. Sheikh Zia Ullah, Advocate, learned counsel appearing on behalf of the petitioner has contended that both the Courts while non-suiting the petitioner, have acted illegally on consideration, which has no relevance under the law. It was explained by the learned counsel that the petitioner was under no obligation to disclose in the ejectment petition that his other family members were occupying another shop in the same urban area, especially when the other shop was occupied by the brother of the petitoner and not by him. On factual plane, it was contended that as (?) a full disclosure was made by the petitioner in the ejectment petition as also in evidence. The learned counsel further maintained that the impugned orders were contrary to law declared by the superior Courts, and were clearly without lawful authority and could be subjected to judicial review in the exercise of constitutional jurisdiction of this Court. 3. On the contrary, Mr.Sher Zaman Khan, appearing on behalf of respondents No.l and 2 has objected to the maintainability of this petition on two grounds. Firstly, that there was no jurisdictional illegality committed by the Tribunals below and, therefore, constitutional jurisdiction could not be invoked and secondly that the findings recorded by the Rent Controller and the Additional District Judge on the question of personal use cannot be interfered with by this Court in the exercise of its constitutional jurisdiction. As regard the first part of his argument, he has relied upon Muhammad Sharif and another vs Muhammad Afzal Sohail etc (PLD 1981 SC 246); Muhammad Hussain Munir and others vs Sikandar and others (PLD 1974 SC 139); and Noor Muhammad vs Sarwar Khan and 2 others (PLD 1985 SC 131), while for other part of the contention support is sought to be drawn from Muhammad Hanif and others vs Settlement Commissioner, Lahore Divison and 9 others (1985 SCMR 474) and All Sher and others vs Maskeen and others (1985 SCMR 534), As regard the merits, learned counsel for the petitioner (?) submitted that admittedly the family of the petitioner was in occupation of a shop in the same building but this fact was concealed. It was maintained that under Section 13 (3) of the Punjab Urban Rent Restriction Ordinance, 1959, the onus lay heavily upon the petitioner to show that the shop in occupation of his family was not suitable for his needs and maintained (?). The learned counsel asserted that the object in filing the ejectment petition, as has been held by both the Courts below, was to enhance the rent and the need was not bonafide. The learned counsel referred a part of the cross examination of the petitioner while appearing as AW 3 in which he stated that the market rent of the shop was about 5000/6000 per month and it could fetch a Pagri of Rs.300000 or 400000 lacs. The previous conduct of the father of the petitioner in filing repeated ejectment petitions against the Company and withdrawing the same after enhancement of rent was also pressed into service. 4. A perusal of the judgment of the Additional District Judge shows that he has mainly non-suited the petitioner on two grounds; firstly, that he and his brother were in possession of the adjacent shop but this fact was not disclosed in ejectment petition and secondly, that as the petitioner was in possession of the other shop, (he) was not entitled to have the shop vacated. Both these grounds are clearly not tenable and are not only contrary to the law declared by the superior Courts but also suffer from non-consideration of the material evidence. 5. It is not the case of the respondent that the adjoining shop is exclusively occupied by the petitioner. But on the other hand, it has been contended by the learned counsel for the respondent that the shop was in occupation of the petitioner and his family members. That being so, the petitioner was certainly not debarred from having the shop vacated for the purposes of independent business. (See Ehsan Karim and another vs Nisar Ahmad (1979 CLC 801). Furthermore, while considering this question, the Additional District Judge has without any valid basis failed to give effect to the petitioner's plea that after the death of his father, under an arrangement, the other co-sharers had relinquished their rights in the tenancy and had permitted him to occupy the shop for his own use. The brother of the petitioner who appeared as AW 2 fully supported him in this behalf. However, most important evidence is the admission of Talat Manzoor RW 2 to the effect that the other co-sharer had surrendered the shop in question in favour of the petitioner. Unfortunately, these statements were not adverted to by the lower appellate Court. 6. The Supreme Court has taken the view that it is not necessary for the landlord to disclose in the ejectment petition that he was occupying any other shop. (See Ghulam Muhammad vs Tamkeen alias Bhukka and 3 others (1990 SCMR 1087). 7. Learned counsel for the respondent argued that it has not been shown that in the adjoining shop the petitioner has no interest and , therefore, the occupation of that shop debarred the petitioner from claiming the present shop. This argument is not sustainable. Admittedly, that shop does not belong to the petitioner alone and according to the own case of respondent No.l, by all the cosharers. Consequently, the ejectment petition could not have been dismissed on the ground that the petitioner was a co-sharer hi another shop in which the entire family or atleast one of his brother, was also running business. (See Muhammad Salim and others vs Begum Musarrat Bashirul Hassan and others (1982 CLC 868). In this view of the matter, the argument that the condition laid down under Section 13 (3) regarding failure of the landlord to prove that he was not in possession of the property suitable pales into insignificance. 8. So far as the conduct of the father of the petitioner in filing previous ejectment petitions was concerned, it has no relevance as admittedly the petitioner was not a party to those proceedings nor were the premises sought to be got vacated for his use. Further more, the fact that the father of the petitioner had withdrawn an earlier petition after enhancing the rent has no relevance. (See Muhammad Hafeez and 4 others vs Abdul Rashid Khan (1981 CLC 7%) and Muhammad Saeed vs Dr.Sultan Muhammad (1983 CLC 2407). 9. Reverting to the objection of the learned counsel for respondent No.l as to the maintainability of the petition as pointed out above, not only material evidence was ignored from consideration, but the Additional District Judge also acted contrary to law declared by the superior Courts. The judgement cited by the learned counsel for the respondent himself viz. Muhammad Sharif and another vs Muhammad Afzal Soail etc (PLD 1981 SC 246) supports this view. It is also well D settled that it is the prerogative of the landlord to select any shop for his business and neither the Rent Controller nor the Addl.District Judge could do so. (See Sardar Klian vs Riaz Ahmad and others (1986 SCMR 1981) and Sabu Mai vs Kika Ram alias Heman Das (1973 SCMR 185). 10. From the above, it is apparent that the appeal filed by the petitioner has k, not been decided by the Additional District Judge in accordance with law, and I shall have to be redecided. 11. Learned counsel for the petitioner wished this Court to appraise the evidence itself and decide whether the shop is required by the petitioner for his own use. It is not desirable to undertake such an exercise which is primarily the function of Tribunals below, nor can this Court substitute its finding for those recorded by them. 12. As a result of what has been said above, this petition is accepted, the judgment of the Addl.District Judge is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by the petitioner shall be deemed to be still pending before the District Court and shall be decided afresh. The parties shall appear before the District Judge, Lahore , on 24.3.1991, who may hear the appeal himself or entrust it to any other AddLDistrict Judge. As the litigation has remained pending for almost seven years, it is directed that the appeal shall be disposed of within three months. There shall be no orders as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 401 PLJ 1991 Lahore 401 Present: MALIK MUHAMMAD QAYYUM J. Nawabzada ALI NAWAZ KHAN MAMDOT-Petitioner versus DEPUTY ADMINISTRATOR, RESIDUAL PROPERTY, CIRCLE I, LAHORE , and 22 others—Respondents Writ Petition No.l96/R of 1981, accepted on 21.1.1991. Settlement and Rehabilitation Matters— — Main bungalow transferred to petitioner and another-After repeal of Settlement Laws, out-houses transferred to respondents—Whether out-houses were available as residual property-Question of~In view of clear findings in previous writ petition, it is idle on part of respondents to contend that servant quarters were not transferred in earlier round of litigation-Respondent No.l acted clearly in excess of authority in transferring quarters to respondent Nos. 2 to 23~HeId: It is clear that servant quarters/out-houses in possession of respondents stood transferred to petitioner and could not have been subsequently transferred to any of respondents-Petition accepted. [Pp.405&406]A,B,C&D Raja Muhammad Anwar, Advocate for Petitioner. Mr. Sadiq Hayat Lodhi, Advocate for Respondent No.l Ch. Muhammad Farooq, Advocate for spondents 2 to 23. Date of hearing: 21.1.1991. judgment Property bearing No.SE-26-R-ll Abbot Road, Lahore, having an area of 16 Kanals 1 Maria 121 Sq.feet was evacuee in nature and comprised of main bungalow and servant quarters/out houses. The petitioner as well as Muhammad Ahmad Khan, a claimant displaced person applied for its transfer by filing the requisite forms. The occupants of servant quarters also submitted their applications for the transfer of servant quarters/out houses. 2. On 18th January, 1960, it was reported to the Deputy Settlement Commissioner by the Assistant Settlement Commissioner Circle-11, Lahore, that the occupants of the main bungalow can be divided into two categories, one of which comprised of the occupants of the servant quarters and the other of the persons residing in the main bungalow which were Ali Nawaz Khan petition er and Muhammad Ahmad Khan. It was recommended that the bungalow may be transferred to Muhammad Ahmad Khan. On 20th January, 1960, the Deputy Settlement Commissioner passed the following order:- "I agree with the above report. Bungalow alongwith servant quarters is transferred in favour of Muhammad Ahmad Khan the only claimant in the main building. Forms of Ali Nawaz and others about servant quarters are all rejected". 3. This order was challenged by the petitioner by filing an appeal before the Assistant Settlement Commissioner where the parties arrived at a compromise and filed an application for withdrawal of the appeal and permission to compromise. This application was allowed by the Assistant Settlement Commissioner on 17th March, 1960, who directed the parties to appear before the Deputy Settlement Commissioner and present a written agreement. In pursuance to this direction, the petitioner and Muhammad Ahmad Khan submitted an application on 6th December, 1960 before the Deputy Settlement Commissioner alongwith an agreement by virtue of which they agreed to divide the bungalow into two portions among themselves. This agreement was accepted by the Deputy Settlement Commissioner on 17th March 1960 when he directed that P.T.O. be issued to the parties under the rules. Subsequently, however, on 6th December, 1960, they presented another application alongwith the agreement showing the division of the property, in the detail which was also reflected in the plan submitted alongwith the application. This agreement of the parties was approved by the Deputy Settlement Commissioner. 4. It may also be mentioned at this stage that one of the occupants of the servant quarters/out houses agitated against the transfer of the property to the petitioner and Muhammad Ahmad Khan, but he remained unsuccessful all through. He filed Writ Petition No.602/R/62 in this Court which was dismissed on 4th May, 1962 and so was Letter Patent Appeal No.209/62 on 29th March, 1963. 5. Certain other occupants of the servant quarters/out houses also filed a joint appeal against the order of the Deputy Settlement Commissioner dated 20 th January, 1960 but their appeal was dismissed on 10th March, 1960 by the Addl. Settlement Commissioner. They went in revision but remained unsuccessful as the Settlement Commissioner dismissed the same on 17th April, 1964. They thereafter approached this Court by filing Writ Petition No.ll80/R/64 which was dismissed by a Division Bench of this Court on 19th May, 1965, holding that the entire property stood transferred in favour of the petitoner and his co-transferee, namely, Muhammad Ahmad Khan. An argument was also raised that the petitioner and his co-transferee were in possession of excess area but this plea was repelled and it was found that there was no area in excess of the entitlement of the transferees. 6. It appears that after the repeal of Displaced Persons (Compensation & Rehabilitation) Act, 1958, respondents No.2 to 23, claiming to be in occupation of the servant quarters/out houses of the bungalow in question filed forms under the Residual Property Management and Disposal Scheme. The Deputy Administrator Residul Properties, without any notice to the petitioner, on 23rd June, 1980, proceeded to transfer to them the quarters in their respective possession. This order has been assailed by the petitioner by filing this constitutional petition. 7. Raja Muhammad Anwar, learned counsel for the petitioner contended that the entire property including the main bungalow and the servant quarters having an area of 17 Kanals 13 Marias and 121 Sq.feet stood transferred in favour of the petitioner and his co-transferee Muhammad Ahmad Khan, by the Settlement Authorities much before the repeal of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and no part of this property was/is available for 'transfer' to ny other person. It was emphasized by the learned counsel that the transfer in favour of the petitioner and Muhammad Ahmad Khan had attained finality on account of dismissal of Writ Petition No.ll80/R/64 by a Division Bench of this Court on 19th May, 1965 and the Deputy Administrator Residual Properties while proceeding to transfer the servant quarters/out houses to respondents No.2 to 23 has not only acted in excess of its authority but also in violation of the order of the Division Bench and has thus committed contempt of this Court. The learned counsel further pointed out that the impugned order was passed by the Deputy Administrator, without any notice to the petitioner. 8. Ch.Muhammad Farooq, Advocate, appearing on behalf of respondent Nos.2 to 23 submitted that the quarters transferred to these respondents was (were) not part of the property which stood transferred to the petitioner and, therefore, he had no locus standi to challenge the same. Learned counsel pointed out that the Deputy Settlement Commissioner had, on 20th June, 1960 transferred the property in favour of Muhammad Ahmad Khan, in pursuance to C.H. form filed by him on the back of which, he had clearly indicated that he was not desirous of having servant quarters transferred to him. On these premises, it was submitted that as Muhammad Ahmad Khan from whom the petitioner derived his title had not applied for the transfer of the quarters but on the other hand had indicated his unwillingness to have the same transferred to him, the petitioner could not claim to be the transferee of these quarters. As regard the judgment of the Division Bench, it was submitted that respondents No.2 to 23 were not parties to the previous proceedings and for this reason the judgment rendered therein was not binding on them. 9. Learned counsel appearing on behalf of respondent No.l, adopted the arguments of learned counsel for respondents No.2 to 23 and submitted that respondent No.l was justified in transferring the quarters to the petitioner (?). From the record, particularly the judgment passed by a Division Bench of this Court in Writ Petition No.ll80/R/64 on 19th May, 1965 it becomes clear that the ntire property measuring 17 Kanals 13 Marias 121 Sq.feet stood transferred to Muhammad Ahmad Khan respondent. In this judgment, on more than one occasion it was clearly mentioned that the servant quarters also stood transferred to the transferees alongwith the main bungalow. While repelling the contention that there was any excess area which could not have been transferred to the transferees, it was observed:- "We find that the main house is built on an area of 1 Kanal 16 Marias and servant quarters on two Kanals. Because we have held that the servant quarters are a part and parcel of the main house, therefore, for purposes of calculating three times the area under construction, the land underneath both the main house and servant quarters has to be taken into consideration and these two items taken together come to 3 Kanals 16 Marias". On these premises it was held: "that the total area of the Kothi, as per revenue record is 17 Kanals 3 Marias and 121 Sq.feet and, therefore, there is no area in excess of the formula of three times of the plinth area, which has been transferred to the respondents, the order of the Chief Settlement Commissioner has been substantially complied with and we do not find any force in this contention". Another argument which was noticed and repelled by the Division bench was:- "It has been lastly contended that although respondent No.3 had been excluded by the Deputy Settlement Commissioner, thereafter he has been given a portion of the property by a mutual agreement between respondent No.2 and 3. It is maintained that since the property has been divided by this device and respondent No.3 has been given the area covered by the servant quarters as a separate tenement, the petitioners have a preferential claim in this regard as against respondent No.3. We have already held above that a person in possession of a outhouse cannot claim transfer of the residential premises to which the outhouse is attached and, therefore, if respondents Nos.2 and 3, both of whom have been held to be in possession of the main house prior to the 20th of December, 1958, have by agreement shared the property in a manner acceptable to both of them, it does not mean that any part of the Kothi has in any manner been transferred as a separate and independent tenement on the basis of possession of these outhouses. The transfer in favour of both the respondents is on the strength of their possession of the main house and, therefore, the petitioners cannot succeed on this ground also". In view of these clear findings, it is idle on the part of respondents to contend that the servant quarters were not transferred in the earlier round of litigation. The arguments of the learned counsel for the respondents, in this behalf, A unfortunately fail, to take notice of the fact that this Court while dismissing the said writ petition was at pains to mention in detail the measurements of the various parts of the property transferred to the transferees. 10. Even otherwise, there is ample material on the record to show that no part of property No.SE-26-R-ll was available for transfer to respondents No.2 to 23 and respondent No.l acted clearly in excess of authority in proceeding to transfer the servant quarters to them. It is also important to notice that in para 3 of the written statement filed by respondents No.2 to 23, it has specifically been stated that the out houses which have been transferred to the petitioner, were on the eastern side of the property which was transferred to Muhammad Ahmad Khan. A perusal of the Permanent Transfer Deed issued to the petitioner, however, shows that by virtue of agreement dated 6th December, 1960, he was transferred the eastern portion of the property and suitable amendment to (his effect was ordered to be made in the Permanent Transfer Deed. It is thus clear that the servant quarters/out houses in possession of the respondents stood transferred to the petitioner and could not have been subsequently transferred to any of the respondents. 11. As regard the contention of the learned counsel for the respondents that I as Muhammad Ahmad Khan had given up his claim to the transfer of the servant quarter aad fva&si that as. Cull price of the property transferred had not been recovered from the transferees, the transfer in favour of the petitioner was not lawful, suffice it to say that the legality of the transfer in favour of Muhammad Ahmad Khan and the subsequent association with the petitioner whereby half of the property was surrendered to him, was upheld by the Division Bench of this Court, while dismissing Writ Petition No:1180/R/64 on 19th May, 1965. That judgment having become final had binding effect and could not have been brushed aside by any person or authority. Furthermore, the Settlement Department was admittedly a party to the earlier writ petition and any decision thereon was binding on it. In view of JhaS judgment, the, question of legality of transfer stands fore-closed and cannot be reopened. There is also considerable force in the contention of the learned counsel for the petitioner, that the impugned order in any case, could not have been passed without any notice to the petitioner. 12. For the reasons afore-said, the impugned order dated 23rd June, 1980 passed by respondent No.l is declared to be without lawful authority and of no legal effect. The petition stands accepted with costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 406 (DB) PLJ 1991 Lahore 406 (DB) [ Rawalpindi Bench] Present: SAJJAD AHMAD SlPRA AND MIAN NAZIR AKHTAR, JJ MUHAMMAD BASHIR-Petitioner Versus IMTIAZ KHALIQ MALIK and 2 others-Respondents Writ Petition No.166 of 1991, accepted on 12.2.1991. Election Disputes-- —Nomination papers—Rejection of—Challenge to—Nomination papers of petitioner for election of Union Council were rejected on account of defect or error in respect of name of petitioner's father in voters list-Defect or error could have been allowed to be remedied forthwith under second proviso to sub-rule (3) of Rule 15 of Punjab Local Councils (Election) Rules, 1979-If Returning Officer had taken trouble of holding a summary enquiry, he could come to only one conclusion that nomination papers could not K rejected on such defect or error-Held: Error or defect in respect of petitioner's father's name in electoral list, is not of substantial nature and did not call for rejection of nomination papers-Petition accepted. [Pp.408&409}A,B&C Malik Itaat Hussain Awan, Advocate for Petitioner. Returning Officer of Talagng, respondent No.2 himself and for Respondent No.3. Date of heaing: 12,2.1991. judgment Sajjad Ahmed Sipra, J.« The petitioner has, called in question the legality of the order dated 5.2.1991 passed by the Returning Officer/Assistant Commissioner, Talagang, whereby he rejected the nomination paper of the petitioner for the Election of the Councillor of Ward No.4 of Municipal Committee, Talagang, District Chakwal, to be held on 14.2.1991, and the order dated 10.2.1991, whereby the appeal against the said order was dismissed by the Deputy Commissioner/Appellate Authority, Chakwal. 2. The learned counsel contended that the nomination paper of the petitioner for the election in question had been rejected merely on the ground that his father's name is mentioned as "Mansab Khan" in the electoral list of the Ward in question instead of "Mansab Dar". The learned counsel further argued that such an error was not of substantial nature and that, therefore , his nomination paper has been rejected in contravention of the provisions of Sub Rule 3 (ii) of Rule 15 of the Punjab Local Council (Election) Rules, 1979, which is as follows:- "The Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, such as error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer;". 3. The learned counsel further submitted that the petitioner is a permanent resident of the Ward in question and that no objection had been raised to the effect that he was making use of an entry in the electoral list which did not bear his name or the correct parentage. The objection, it was pointed out, was only to the effect that by mistake the name of his father had been entered as "Mansab Khan" instead of "Mansab Dar". Further pointed out that in accordance with the provisions of Sub-section (3) of Rule 15 ibid, the Returning Officer did not conduct summary enquiry before rejecting the nomination paper of the petitioner. The relevant Sub-section reads as follows: - "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; (ft) the proposer () i s not qualified to subscribe to the nomination paper; c) any provision of rule 13 or rule 14 has not been complied with; or d) the signature or thumb-impression of the proposer () J s not genuine: Provided that-- (i) the rejection of a nomination paper shall not invalidate the nomination of candidate by any other valid nomination paper; (//') the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, such as error in regard to the name, serial number in the electroal roll or other particulars of the (candidate or his proposer); and (/«) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect". 4. Further pointed out that the rejection of the nomination paper was in stark violation of the mandatory bar stated in the third proviso stated above, which clearly lays down that the Returning Officer shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect. To illustrate his arguments, it was further submitted that as stated earlier, the objection raised was neither in respect of the petitioner not being the person named as the voter in the electoral list but pertained only to an obvious error or defect in respect of the name of his father as instead of the said name having been written therein as "Mansab Dar" the same had been recorded as "Mansab Khan". 5. In pursuance to the order dated 11.2.1991 respondent No.2, the Returning Officer/Assistant Commissioner, is present in the Court and is also representing respondent No.3. The said respondent confirmed that hi compliance with the said order the petitioner's name has been included among the validly nominated candidates for the election in question and has been allotted a symbol for participating in the said elections. 6. The said respondent further confirmed that he had not held any summary enquiry before rejecting the nomination paper in question but submitted that in his view the error in respect of the name of the father of the petitioner was of a substantial nature and that, therefore, he had rejected his nomination paper. 7. However, we are of the view that, as has been pointed out by the learned counsel for the petitioner with reference to the rules stated above, the defect or error in respect of the name of the petitioner's father could have been allowed to | be remedied forthwith as it pertained to the particulars of the candidate as laid down in the second proviso to the Sub Section (3) of Rule 15 ibid. It has further been noted that the objection was of a mechanical nature and that in the written objection so raised it had not been stated that the petitioner was not the one mentioned as such at the relevant serial number in the electoral list. Therefore, we are constrained to point out, that if the learned Returning Officer had taken the trouble of holding a summary enquiry as required under Sub Section (3) of Rule 15 ibid, he could come to only one conclusion that the rejection of the nomination paper on the basis of such an obvious error or defect was precluded by the provisions contained in the third proviso of the said Sub-section as stated above, and once again reproduced here for emphasise:- "The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect". 8. We further avail this opportunity to note that the participation in any election but particularly in the Local Council Elections should not be barred because of mere technicality, specially if the relevant laws and the rules provide for the same to be rectified, as is the case in the present dispute. We are of the view that it is the objective of the letter and spirit of the laws and the rules made thereunder for conducting the election in question, to encourage the participation of the largest number, and that the said laws and rules should facilitate the participation of the citizens in the democratic exercise of casting votes and contesting elections, and should not be used as a bar due to the failure of the voter, or of the authorities, entrusted with the preparation of the electoral list and the conduct of the elections, to abide by some technicality which, otherwise too, can be cured or rectified by the relevant provisions of the said laws and rules made thereunder. 9. In view of the above discussion, we hereby hold that the error or defect in respect of the petitioner's father's name having been stated as "Mansab Khan" instead of "Mansab Dar" in the electoral list is not of a substantial nature and as such did not call for his nomination paper to be rejected. Therefore, we accept the present writ petition and direct that the petitioner shall be deemed to be a validly nominated candidate for participation in the election in question and as a result hereof, hereby set aside the impugned orders dated 5.2.1991 and 10.2.1991, with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 410 PLJ 1991 Lahore 410 Present: GUL ZARIN KIANI, J Dr. MUHAMMAD SHAUKAT IQBAL and others-Petitioners versus MUHAMMAD LUQMAN ARSHAD-Respondent S.A.O.No.66 of 1991 (treated as Writ Petition) dismissed on 18.5.1991 (i) Default- —Tenant-Default in payment of rent by-Ejectment of~Challenge to—Tenancy and payment of rent were oral-Not a single receipt has been put on record-­ Mere oral statement of petitioner or his father and a stray witness of locality was insufficient to prove payment of rent—Held: Impugned decisions were neither infirm nor faulty-Petition dismissed. [Pp.413&414]C PLD 1982 SC 465 and PLD 1955 FC 38 rel. (ii) Remand-- -Remand-Order of~Challenge to-Remand is an inseparable part of jurisdiction in appeal-In absence of an express prohibition, appellate court/authority can make an order of remand of case for its trial anew-Held: Remand order did not suffer from absence of jurisdiction in authority making it-Held further: Petitioner having not challenged remand order in earlier round of litigation, and having accepted it by giving more evidence, it is no more questionable viz-a-viz its legality or propriety. [Pp.412&413]A&B PLD 1961 (WP) Lahore 638 rel. 1990 C.L.C. 884 distinguished. Mr.Ejaz ¥ croze. Advocate for Petitioner. Date of hearing: 18.5.1991. order Shop No.4 of property under survey No.P-192/A at Satiana Road , Mohallah Patch Abad, in Faisalabad urban area, belonged to Mohammad Luqman (for short, respondent). It was in occupation of Rana Ghulam Mohammad as rentpaying tenant of the owner. Rent payable per mensem was fixed at Rs.175/-. On 18.8.1985, respondent filed an application for ejectment of his tenant from shop in question, on the grounds of rent-default with effect from 1.12.1982 to 31.7.1985 and its further subletting by the tenant to his son Dr. Muhammad Shaukat Iqbal without prior permission. Dr. Mohammad Shaukal Iqbal shall hereinafter be referred to as petitioner. Both the father and son were impleadcd as respondents 1 and 2 to the ejectment petition. They together contested the ejectment application and controverted allegations in it relating to renl-defau and, subletting attributed to them. It was stated that the shop was taken on lcas by Rana Ghulam Mohammad from the father of the petitioner who was paid Rs.7000/- as advance-rent at the commencement of the tenancy, in the year 1974 and the petitioner was inducted as tenant in the month of October, 1982 with permission of the respondent and his father who agreed to adjust advance-rent towards payment of current rent in future. It was asserted that since 1982, petitioner was in sole possession as tenant paying agreed monthly rent to the respondent. It was further asserted that the petitioner had expendend Rs.15,000/-upon renovating the shop for meeting the requirement of his clinic. Pleadings of the parties gave rise to following issues:- 1) Whether the respondent No.l is defaulter in payment of rent? OP A. 2) Whether the respondent No.l has sublet the shop in dispute to respondent No.2, if so, what is its effect? OPA. 3) Relief. Respondent gave evidence of three witnesses to establish pleas of rentdefault and subletting of the shop without his permission. Rana Ghulam Mohammad tenant, recorded statements of equal number of witnesses. Upon review of the material brought on record, Rent Controller found that neither default in payment of rent nor subletting of the shop was established and dismissed the ejectment application on 10.5.1987. In appeal filed by the respondent, lower appellate Court set aside the dismissal order on 23.11.1987 and remanded the ejectment case for proceeding with it afresh on issue No.l as re-cast in appeal. The issue in its amended form read:- "Whether respondent No.l has been paying or tendering rent of the shop to the appellant for the alleged period of default or the said rent was adjusted against any advance allegedly made by the respondent to the appellant". Onus of proof of the issue re-cast was shifted to the petitioner. Parties were allowed an opportunity to lead further evidence. Finding recorded on issue No.2 was not touched in the appeal with the observation "that its correctness or otherwise would be open for the parties after the decision of the case". Rana Ghulam Mohammad died on 30.1.1988. Thereupon, his legal representatives including the petitioner were substituted on the record. They submitted an application to the Rent Controller for filing of amended better statement for elucidating an alleged ambiguity in the written statement filed earlier in the ejectment case. Amendment proposed was to the effect that the landlord had accepted the advance-rent in the sum of Rs.7000/- on behalf of, and, for benefit of the petitioner and agreed for its re-payment at the end of the tenancy but running monthly rent was payable separately and the same was being paid regularly. On 3.4.1988, application for amendment for filing of amended better statement was turned down by the Rent Controller. Respondent relied on evidence recorded in pre-remand adding only documents to it. Petitioner gave more oral evidence to prove timely payment of rent by him. Additional evidence consisted of statements of Mohammad Rafi, Javed Iqbal, and, also documents. Upon survey of evidence on record, Rent Controller concluded that rent-default for the disputed period was established and in consequence to that conclusion directed ejectment of the petitioner. Lower Appellate Court agreed with the finding on rent-default, and dismissed the appeal. Agreed finding on rent-default is under challenge in this Court at the instance of the petitioner. Inititally, petitioner filed second appeal but upon his request, it was treated as a petition under Article 199 of the Constitution. It was contended that concurrent finding on rent-default was not sacrosanct and immune from scrutiny as it was reached in clear disregard of material evidence inasmuch as, evidence produced by the petitioner in pre-remand proceedings was not considered in the Courts below. It was further contended that remand for a trial anew was defective because in terms of Section 15(6) of the Rent Ordinance, the Court was enjoined either to hold enquiry itself or direct its holding by a Rent Controller but in adopting the latter course it was obliged to keep the appeal on its own file and remit the case only for taking additional evidence. Learned counsel argued that provision for a further enquiry under Section 15, by the Rent Controller, was in the nature of a remand contemplated in Order XLI, Rule 25, Civil Procedure Code. He fortified his contention by relying upon a judgment of my learned brother, Malik Muhammad Qayyum, J., in Abdul Aziz and another versus Ata Muhammad and another--l99Q C.L.C. 884.1 would take up the second point first, because it was purely a legal question touching on the powers of the appellate authority to direct remand for a further enquiry. Remand is an inseparable part of jurisdiction in appeal. In absence of an express prohibition, appellate Court//authority can make an order for remand of the case for its trial anew. I am, therefore, somewhat reluctant to subscribe to the broad statement of law advanced at the bar by the learned counsel. The judgment of my learned brother did not go to that extent and did not altogether exclude the possibility of remand of the case by the appellate authority acting under section 15(6) of the Rent Ordinance. In Muhammad Baqa Ullah Khan vesus Mian Muhammad Rashid-PLD 1961 (W.P.) Lahore 638, SAMahmood, J., on powers of remand under the Rent Ordinance, in para 4 of the judgment at page 641 observed:- "With regard to the first contention it is true that the West Pakistan Urban Rent Restriction Ordinance does not specifically provide for remand of a case on appeal, but by reason of Section 141 of the Code of Civil Procedure the provisions of the Civil Procedure Code are clearly applicable. It provides that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. I respectfully agree with the view taken by Shabir Ahmad, J., in Muhammad Azeem and others v. Muhammad Nawaz and others (1), that the proceedings before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, are proceedings of a civil nature and as such Section 141 of the Civil Procedure Code, which is comprehensive, can be invoked for regulating the procedure with regard to the trial of applications presented to the Rent Controller under the Ordinance. Similarly, the provision of the Civil Procedure Code relating to remand could be avalied of by the Appellate Authority in this case. The power to remand a case on appeal is a necessary incidence of appellate jurisdiction. I, therefore, find no force in this contention". Number of situations could easily be visualized, where re-trial was inevitable and remand of the case, the only appropriate course for the appellate authority to adopt. Its propriety, however, is a different matter. Therefore, remand did not suffer from absence of jurisdiction in the authority making it. Further, remand order was not challanged in the earlier round. Rather, it was accepted by the petitioner who gave more evidence in support of his plea. Therefore, remand order is no more questionable viz-a-viz its ligality or propriety. As far the first contention, it is correct that no express reference to pre-remand evidence led by the petitioner is available in the impugned decisions but that was not indicative of the courts not looking into it. Omission to refer to a particular part of record was hardly a ground to canvass that the Court was not alive to it. Therefore, contention based on misreading or non-consideration of evidence was not sustainable. Neither the rate of montly rent nor the tenancy was in dispute. The tenancy as also the payment of rent by the petitioner were oral. It is in evidence that till the month of June 1990, receipts were issued to evidence payment of rent, but thereafter, no receipt was issued by the respondent. Not a single receipt has been put on record. Onus to prove payment, discharge or satisfaction of liability lay on the person alleging it. Therefore, the issue covering the plea of rent-default was rightly re-cast in appeal and onus of its proof correctly shifted to the petitioner. The question whether the rent was orally paid for the disputed period and whether sufficient evidence existed for its proof were questions of fact not susceptible to a further review in the constitutional petition for being upset for a substituted finding. Mere oral statement of the petitioner or for that matter his father and a stray witness of the locality, in case of denial on oath by the respondent was insufficient to prove payment of rent. Decision in case of Allah Din versus Habib-PLD 1982 S.C. 465 materially helps. The Courts below were possessed of jurisdiction to decide the disputed question of fact. They appraised the evidence and after weighing and balancing it found it incredible for placing reliance upon it to hold payment of rent proved. Merely that a different view of record was possible was not a ground to characterise the impugned decisions as without jurisdiction or without lawful authority. On the contrary, the evidence on record gave enough support to the conclusions arrived at on its basis in the Courts below. Therefore, concurrent findings of fact by the two lower Courts, even if they were somewhat erroneous which they were not, could not be upset in second appeal or writ petition. Case of Abdul Majid and others vesus Klialil Ahmad-- P.L.D. 1955 Federal Court 38 may with advantage be referred to. As far the sum of security, there was no proof on record excepting an averment hi the written statement and the oral testimony of the petitioner. This kind of material was considered insufficient for returning a favourable finding in favour of the petitioner. In this view of the record, impugned decisions were neither infirm nor faulty. The case has no merit in it, whatever be its form, a second appeal or a writ petition. It is accordingly, dismissed in limine. Subject to payment of agreed monthly rent by the due date, petitioner is allowed two months to wind up and vacate. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 414 PLJ 1991 Lahore 414 Present: GUL zarin kiani, J AHMED ARSLAN-Petitioner versus ADDITIONAL DISTRICT JUDGE, FAISALABAD and 4 others-Respondents Writ Petition No.4598 of 1991, dismissed on 8.6.1991 Civil Procedure Code, 1908 (V of 1908)-- —-O.I, R.10 read with Constitution of Pakistan, 1973--Rent case-Impleadment of third person as respondent-Prayer for-Upon perusal of facts, petitioner is neither a necessary nor a proper party to ejectment case-Petitioner has already taken his controversy to civil court against respondents 3 & 4 for claiming a title to property allegedly in his possession—Obviously, being not a party to ejectment case, decision in it, may not be binding upon him—Held: It cannot be said that presence of petitioner before Rent Controller was necessary for a final and effectual decision in ejectment case or that in his absence, no effective order could be made-Petition dismissed. [Pp.415&416]A AIR 1977 Orissa 183 and AIR 1978 J & K 84 rel. Mr.M.Irshad Chaudhry, Advocate for Petitioner. Date of hearing: 8.6.1991. order This application, under Article 199 of the Constitution, arises out of an ejectment petition filed by respondents No.3 and 4 for eviction of respondent No.5, from the shop-in-dispute, in his possession, on the ground of rent-default, and, its requirement for their self-use. Respondent No.5 denied relationship of landlord and tenant between him and respondents No.3 and 4 as also the allegations of rent-default and personal requirement of shop-in-question. On 25.3.1991, the Rent Controller settled a preliminary issue for deciding of the question about the relationship of landlord and tenant between the parties and postponed the case for evidence on 28.4.1991. Thereafter, the ejectment case was adjourned to 4.6.1991. Meanwhile, the petitioner filed a petition undci Order I, rule 10. Civil Procedure Code, for being impleaded as a party-respondent to the ejectment petition. It was stated in the petition that rear portion of the shop popularly known as P-71/2 measuring 4'x 10' = 40 square feet was, in his possession for the past several years. The ground beneath the property No.P-71/2 belonged to Provincial Government, and, structure was made upon it by him. It was stated that ejectment case filed in respect of this property by respondents 3 and 4 was collusive with respondent No.5. Upon the above statement of facts, it was stated that he was a necessary party to the ejectment case, because its result shall materially affect him. Respondent No.5 supported the petitioner but respondents 3 and 4 opposed his intervention. By order dated 11.3.1991, Rent Controller did not permit his joining the ejectment case. Against his order, petitioner filed a revision. It was dismissed by Additional District Judge, Faisalabad , on 10.4.1991. It was doubtful, whether the order of Rent Controller refusing impleadment of the petitioner as a party to the ejectment case was open to revision in the rent hierarchy. Petitioner has already filed a suit in the Civil Court at Faisalabad against Province of Punjab , Deputy Commissioner/Collector District, Faisalabad , and respondents No.3 and 4 for claiming a declaration that he was entitled to purchase this part of the property and respondents were not authorised to interfere with his possession. That suit is stated to be still subjudice. On query from the court, learned counsel replied that initially an interim injunction was issued by the trial Court but upon hearing the parties, application was dismissed on merits. It is not known, whether an appeal was preferred against the decision of the trial Court refusing to issue interim injunction during the pendency of the civil suit. Upon facts presented to the Court, petitioner is neither a necessary nor a proper party to the ejectment case. There was no material to suggest that the ejectment proceedings were collusively instituted to harm the interests of the petitioner. If petitioner is allowed to be impleaded and to contest the ejectment petition, then the simple ejectment case for eviction of the alleged tenant will be converted mainly into a complex title suit between respondents No.3 and 4 and the petitioner and the relief asked for in the ejectment case will pale into secondary importance. Apart from that consideration, as observed above, petitioner has already taken his controversy to the Civil Court against respondents 3 and 4 etc. for claiming a title to the property allegedly in his possession numbered as P-71/2. Obviously, being not a party to the ejectment case, decision in it may not be binding upon him. Petitioner does not claim to be a tenant of respondents No.3 and 4 as against their alleged tenant respondent No.5. Ejectment case covers rear portion of property P-71 whereas the petitioner lays claim to the property bearing No.P-71/2. No record of its ownership has been filed with the writ petition. In the context, it cannot be said that the presence of petitioner before the Rent Controller was necessary for a final and effectual decision in the ejectment case or that in his absence, no effective order could be made. In similar circumstances in cases reported in A.I.R. 1977 Orissa 183, A.I.R. 1978 Jammu & Kashmir 84, intervention of a third party was shut out. Therefore the impugned decision could not have been characterised ekher as without jurisdiction or without lawful authority. Upon this view, interference, in constitutional jurisdiction, is denied by this Court and petitioner is left to pursue his other remedies at law. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 416 PLJ 1991 Lahore 416 Present: ABDUL MAJID TlWANA, J MUHAMMAD SHARIF-Petitioner versus Malik ABDUR RAZZAQ-Respondent Civil Revision No.l026/D of 1991, decided on 12.6.1991 Civil Procedure Code, 1908 (V of 1908)-- —8.115(2) read with Specific Relief Act, 1877, Section 9--Suit under Section 9 of Specific Relief Act-Decree passed in-Challenge to-Whether direct revision before High Court is maintainable-Question of-Sub-section(2) to Section 115 CPC having been added by Law Reforms Act, 1972, District Court is empowered to entertain, hear and dispose of any revision which High Court under sub-section(l) of Section 115 CPC is competent to entertain and adjudicate upon--Jurisdictional value of suit in this case, is Rs.6000/- which is within jurisdictional competence of District Court-Held: Revision petition is not maintainable in High Court. [Pp.417&418]A&B Ch. Bashir Ahmad, Advocate for Petitioner. Date of hearing: 8.6.1991. order This revision petition is direct ad against the judgment, dated 4.9.1991, (?) by which the suit of the respondent brought under Section 9 of the Specific Relief Act was decreed against the petitioner in respect of the disputed property. 2. The very first question involved in this revision petition is its maintainability in this Court under Section 115 C.P.C. The High Court as well as the District Court both are competent to hear the revision arising out of a suit. The only limitation on the latter is that the value of the subject matter of the revision should not exceed the limit of its pecuniary jurisdiction for the purpose of appeal. The learned counsel for the petitioner, when called upon to let this court know as to why he brought the civil revision direct to this Court after by-passing the District Court, has submitted that the amendment of Section 115 CPC introduced by Ordinance XII of 1972, did not contemplate the filing of revision, arising out of a suit under Section 9 of the Specific Relief Act, in the District Court because in such like suits there is no question of the value of the subject matter which is a necessary condition for filing a revision before that Court under Section 115(2) CPC. According to the learned counsel, even otherwise it is a discretion of the petitioner to choose between the two forums available to him i.e. the High Court and the District Court and the petitioner in this case chooses the first one. 3. Law Reforms Ordinance, 1972 (Ordinance XII of 1972) added sub­ section (2) to Section 115 which was renumbered as sub-section (1). Sub-section (2) and (3) for the convenience of reference are reproduced hereunder:- 2) "The District Court may exercise the powers conferred on the High Court by sub-section(l) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. 3) If any application under sub-section(l) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them". 4. These sub-sections empower the District Court to entertain, hear and dispose of any revision which the High Court under sub-section(l) is competent to entertain and adjudicate upon, without making any distinction between the revision arising out of a suit brought under Section 9 of the Specific Relief Act or out of any other suit. Despite a direction given to a litigant to make a choice between the two revisional forums, the revisions arising out of all kinds of suits are maintainable and are being instituted in the District Courts subject to the limits of it pecuinary jurisdiction prescribed for appeals, calculated on the value of the subject matter of the suit and it is not being left to the choice of the litigants. Even in a suit brought under Section 9 of the Specific Relief Act, half of the Court fee is payable and jurisdictional value on the basis of value of the subject matter of the suit has to be calculated and has been calculated and specified in the plaint of the suit giving rise to this revision. It is Rs.6,000/- only and obviously within the jurisdictional competence of the District Court as its upper pecuniary limit, for the time being, is Rs.2,00,000/-. This is being done on the principle as embodied in Section 15 of the C.P.C. which enjoins a suitor to institute his suit in the Court of lowest grade competent to try it. The reason behind this view is to prevent the overcrowding in the courts of higher grade or of superior jurisdiction like the High Court, besides attaining uniformity. In other words, strictly speaking it is a rule of propriety than a matter of legal exigency but it is not possible to make any departure from it unless there are very strong reasons therefor and petitioner's counsel has indicated none. 4. For various reasons stated above, this revision petition being not I maintainable in this Court, should be returned to the learned counsel lor theP petitioner for presentation to the proper forum after obtaining its photostat for I record. (MBC) (Approved for reporting) Petition returned.

PLJ 1991 Lahore 418 (DB) PLJ 1991 Lahore 418 (DB) Present: M.MAHBOOB ahmad, CJ and malik muhammad qayyum, J. NAZIR AHMAD-Appellant versus ISLAMIC REPUBLIC OF PAKISTAN , THROUGH SECRETARY, ESTABLISHMENT DIVISION--Respondent R.F.A.No.119 of 1985, accepted on 30.4.1991 (i) Damages-- —Damages-Suit for~Dismissal of--Challenge to-Whether finding of trial court that Government is not liable for tortious acts of its servants/employees, is not correct-Question of-View taken by Civil Judge runs counter to dictum of Supreme Court that principle "king can do no wrong" is not applicable to Pakistan-This principle is no more being accepted even by Courts in England- -Held: Finding on Issue No.3 recorded by trial Court, is erroneous, unsound and liable to be set aside. [P.420JA PLD 1963 SC 627 and PLD 1975 B.J.11 rel. (ii) Damages- —Damages-Suit for-Dismissal of-Challenge to-Whether subsequent re­ instatement with back benefits of a compulsorily retired Government servant, deprives him of his right to recover damages or loss, if any, suffered by him— Question of-Trial Court, by some strange logic, came to conclusion that as appellant had been re-instated into service with back benefits, by Service Tribunal he could not file present suit-It is regrettable that, without citing any authority in support of view taken by Civil Judge, he observed that it was an established law-Trial Court failed to appreciate that suit was not for recovery of arrears of salary but was for damages on account of mental torture, financial hardship and loss in reputation-Held: Reinstatement into service with back benefits of appellant by Service Tribunal, cannot be considered as having taken away right of appellant to recover damages or loss, if any, suffered by him-Appeal accepted and case remanded. [P.421JB&C Sh. Naveed Shaharyar, Advocate for Appellant. Sh. Maqbool Ahmad, Standing Counsel for Respondent. Date of hearing: 30.4.1991. judgment M.Mahboob Ahmad, CJ.--This is a plaintiffs Regular First Appeal against the judgment and decree of Civil Judge 1st Class, Lahore dated 26.2.1985 whereby his suit for recovery of damages was dismissed. , 2. The appellant while serving as Assistant Engineer (Telephones) in the employment of respondent was compulsorily retired on 12.3.1972, by the Government. He filed applications for review under MLR No.116 on 18.3.1972 and 21.6.1972 against the order of his compulsory retirement before the President of Pakistan which were not disposed of. He consequently challenged his dismissal by filing a constitutional petition in this Court which howeve<>abated in view of the promulgation of the Service Tribunals Act, 1973. He thereupon filed an appeal against the order of his compulsory retirement before the Service Tribunal which was accepted on 7.3.1990 and his dismissal was set aside. It was further directed by the Service Tribunal that the plaintiff be reinstated in service with all consequential benefits. 3. On 11.1.1979, he filed the present suit for the recovery of Rs.5,00,000.00 as damages for the loss suffered by him on account of financial hardship, loss, of reputation, mental torture and degradation. In the suit, the only defendant mpleaded was Islamic Republic of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad which contested the suit by filing a written statement. On the pleadings of the parties, the trial Court framed the following 8 issues:- 1. Whether this Court lacks the jurisdiction to entertain and try the suit? 2. Whether this suit is not maintainable in its present form? 3. Whether the defendant is not liable for the tortious acts of its employees? 4. Whether the plaintiff has no locus-standi or cause of action to bring this suit? 5. Whether the defendant refused to comply with the judgment of Supreme Court dated 9.9.1970 wilfully and deliberately, if so, its effect? 6. Whether the plaintiff was compulsorily retired malafide, if so its effect? 7. Whether the plaintiff has suffered any loss of reputation, financial hardship and mental torture due to the malafide acts of the defendant or its employees and whether the plaintiff is entitled to recover any damages from the defendant, if so to what extent? 8. Whether the plaintiff is entitled to recover Rs.5,00,000/- from the defendant? On the basis of the evidence led before him, the learned Civil Judge decided Issues Nos.1,2,4,5 and 6 in favour of the appellant-plaintiff while Issues Nos.3,7 and 8 were answered against him with the result that the suit filed by him was dismissed. Under Issue No.3, it was held that the respondent had no liability for the tortious acts of its employees and therefore no suit could be maintained against it. While deciding Issues Nos.7 and 8, the trial Court took the view that it was established law that when a person suffers by a wrongful act and ultimately that act is declared to be wrongful and malafide and that person is compensated by way of reinstatement with all back benefits, then it cannot be said that that person suffered any loss of reputation, financial hardship or mental torture. 5. It was contended on behalf of the appellant that the trial Court was in error in holding that the Government is not liable for the tortious act of its servants/employees. According to the learned counsel, this view which was based pon the maxim that "King can do no wrong" has since long been for-saken. 6. The next contention of the learned counsel for the appellant was that the findings on Issues No.7 & 8 are based upon mis-conception' of the true legal position. He urged that the said findings are neither tenable in law nor can be sustained on any ground whatsoever. 7. SLMaqbool Ahmad, learned Standing Counsel for the Federal Government on the other hand argued that with the reinstatement of the plaintiff in service by the Service Tribunal, he ceased to have any cause of action or grievance and therefore could not have maintained the suit. 8. After hearing the learned counsel for the parties and perusing the record, we are of the view that the judgment of the trial Court on all the three issues is erroneous in law and is liable to be set aside. As already noted under Issue No.3, the trial Court held that the Government is not liable for the tortious acts of its servants/employees. However while so holding, no rule or authority was cited. The view taken by the Civil Judge runs counter to the dictum of the Supreme Court of Pakistan in Pakistan (through the Secretary, Ministry of Rehabilitation, Government of Pakistan, Rawalpindi), v. Muhammad Yaqoob Butt and another reported as (PLD 1963 Supreme Court 627) wherein it was ruled that the principle that the "King can do no wrong" and that the King cannot be sued in his own courts is inapplicable to Pakistan specially when the Government is acting in relation to its citizens where it can act only in accordance with the municipal law. It may also be observed that this principle is no more being accepte even by the Courts in England . A Division Bench of this Court in Ch.Muhammad Nawaz v. Province of West akistan reported as (PLD 1975 Baghdad-ul-Jadid 11) has also eld that Government was liable for the tortious acts of its servants. In addition to the above, it is also to be noted that according to the case of the appellant, act complained of was ratified and owned by the Government and even for that reason, it was liable for the acts of its employees. This aspect of the case was totally ignored from consideration. It is thus obvious that finding on Issue No.3 recorded by the trial Court is erroneous, unsound and thus liable to be set aside. 9. Coming now to Issues Nos. 7 and 8, the trial court by some strange logic which is not discernable, came to the conclusion that as the appellant had been reinstated into service with back benefits by the Service Tribunal, he could not file the present suit. While coming to this conclusion, it was observed that there is established law on the subject that once a wrongful act is set aside, and the person concerned is compensated by way of reinstatement with back benefits then it can not be said that the person suffered any loss of reputation, financial hardship or mental torture. To say the least, these observations of the trial Court are too wide and general and it is indeed regrettable that without citing any authority in support of the view taken by the Civil Judge, he observed that it was an established law. At least neither we are aware of any such law on the subject nor the learned counsel for the respondent has been able to cite any judgment, authority or rule in support of the above finding of the trial Court. We are unable to understand how declaration of a wrongful action to be illegal or the setting aside of the same can take away the right of a person to claim compensation for loss if any suffered by him. The trial Court had failed to appreciate that the suit of the appellant was not for the recovery of arrears of salary, but was based upon the plea that on account of compulsory retirement, the appellant had undergone mental torture, financial hardship and had suffered loss in reputation. The reinstatement into service and grant of back benefits by the Service Tribunal to the appellant cannot be considered as having taken away the right of the appellant to recover the damages or loss, if any, suffered by him. The finding of the trial Court on these issues, too cannot be sustained and the case will have to be remanded to the trial Court for decision afresh in the light of the observation made above. 10. The result is that this appeal is accepted, the impugned judgment decree are set aside and the suit is remanded to the trial Court for decision afresh in accordance with law. The costs to follow the event. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Lahore 421 (DB) PLJ 1991 Lahore 421 (DB) Present: M. MAHBOOB ahmad, CJ and malik muhammad qayyum, J Syed ALI RAZA ASAD ABIDI-Petitioner Versus MUHAMMAD NAWAZ SHARIF and 2 others-Respondents Writ Petition No.381 of 1991, dismissed on 7.5.1991 (i) Constitution of Pakistan , 1973-- —Art. 91(2-A) read with Art.226--Q«o warranto-Wnt of-Issuance of-Prayer for-Contention that opinion of Members of National Assembly having been ascertained by show of hands instead of secret ballot, election of respondent No.l as Prime-Miniter, was in violation of Article 226 of Constitution—Under Article 91(2-A) Prime Minister is to be "appointed" by President and is not to be "elected" by National Assembly-Held: In context of constitutional provisions governing subject, it is President who has to appoint Prime Minister after ascertaining for himself as to who from amongst Members of Assembly commands confidence of House-Held further: No basis being available to equate words "appoint" and "ascertain" with word "election", Article 226 has no relevance to appointment of respondent No.l as Prime Minister by President of Pakistan. [Pp.424&425]A,E&F 146 U.S.I ref. (ii) Constitution of Pakistan , 1973-- —-Art. 199 read with Articles 91 and 226-Prime Minister-Appointment of- Issuance of writ of quo warranto-Prayer for-Contention that deletion of words "other than those of Prime Minister and Chief Minister" from Art.226 shows that intention of amendment was to have Prime Minister also elected through a secret ballot-Held: Petitioner has lost sight of corresponding amendment in Art.91(2) whereby requirement of election of Prime Minister was done away with and instead President was empowered to appoint one of MNAs as Prime Minister who, hi his opinion, commands confidence .of majority of Members which majority has to be ascertained under Article 91(2- A) of Constitution-Held further: "Election" and "appointment" are different concepts-Petition dismissed. [P.426]H&J (iii) Interpretation of Statutes- -—Provisions of Articles 91 and 226 of Constitution-Before and after Eigth Amendment-Connotation of-Per settled principle of construction, every word used in a provision, has to be assigned meaning hi its common parlance and if different words are used, intention, clearly is to convey different meaning-It is also well established that if a word used in a provision is substituted by another hrough an amendment, intention of Framer manifestly is to bring about change in law, for otherwise, its efforts would be futile. [P.425JG (iv) Words and Phrases- —Word "appoint"-As used in Article 91(2-A) of Constitution of Pakistan, 1973-Meanings of-Word "appoint" means "to designate, ordain, prescribe, constitute, or nominate, to allot or set apart, to assign authority to a particular use, task, position or office". [P.424]D Black's Law Dictionary, Fifth Edition Page 91 ref. (v) Words and Phrases— —Words "ascertain" and "election"-Meanings of-"Ascertain" has been defined as "to appraise, to assure, to find out, to ensure and to make certain" while word "election" has been defined as "act of electing or choosing, public choice of a person for office usually by votes of a constituent body". [P.424JB&C Chambers 20th Century Dictionary, Black's Law Dictionary, and Law Lexicon by Aiyer ref. Petitioner in person. Sh. Abdul Manan, Deputy Attorney General for Respondents. Date of hearing: 7.5.1991. judgment M.Mahboob Ahmad, CJ.~This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks issuance of a direction to Mr.Muhammad Nawaz Sharif, Prime Minister of Pakistan, respondent No.l requiring him to show under what authority of law he is holding the office of the Prime Minister of Pakistan and to issue a prohibitory order restraining him from functioning as Prime Minister and also issuing a direction to respondent Nos.2 and 3 to hold election to the office of the Prime Minister afresh in accordance with law. 2. It has been asserted in the petition that on 6.11.1990, respondent No.l was elected as Prime Minister in a special session of the National Assembly; that the said election was required to be held through a secret ballot as provided by Article 226 of the Constitutio'n of Islamic Republic of Pakistan but in violation thereof, the opinion of the members was ascertained by show of hands; that the election of respondent in violation of Article 226 ibid is in dis-regard of the Constitution and thus an act of high-handedness which was liable to be condemned especially when it was committed by the Legislature itself. 3. Report and parawise comments were called for from respondents Nos.2 and 3 which have since been received and perused. 4. Today the petitioner who has appeared in person has reiterated the contents of the petition. 5. Having given consideration to the controversy, we are of the view that the contentions raised have no force. Articles 91 (2) and 91 (2A) which are relevant for resolution of the issue raised are reproduced here-under for facility of reference:- "Article 91 (2). The President shall in his discretion appoint from amongst the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the confidence of the majority of the members of the National Assembly. (2-A) Notwithstanding anything contained in clause (2), after the twentieth day of March, one thousand nine hundred and ninety, the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of the majority of the members of the National Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution." 6. A bare reading of the above provisions shows that the Prime Minister is to be "appointed" by the President and is not to be "elected" by the National Assembly. The President, however, has to appoint such member from amongst the members of the National Assembly as Prime Minister who commands the confidence of the majority of the members as "ascertained" in a session of the Assembly summoned specially for the purpose hi accordance with the provisions of the Constitution. 7. In order to arrive at a proper conclusion about the controversy involved, the three phrases that fall for consideration are "Elect", "Appoint" and "Ascertain". It may be pertinently noticed that in Article 91 (2A), the significant words used are "appoint" and "ascertain" which on the face of it have connotations distinct and different from the word "election". "Ascertain" has been defined in Chambers 20 th Century Dictionary as, to appraise, to assure, to find out, to ensure and to make certain, while the word "election" has been defined in the same dictionary as the act of electing or choosing; the public choice of a person for office usually by the votes of a constituent body. Similarly according to Black's Law Dictionary the word "ascertain" means to fix, to render certain or definite; to estimate and determine; to clear of doubt or obscurity, whilst "election" is defined as the act of choosing or selecting one or more from a greater number of persons, things, courses or rights, with respect to persons to fill public office, the term means in ordinary usage the expression by vote of the will of the people or of a somewhat numerous body of electors. 8. In Law Lexicon by Aiyer, the word "ascertain" has been assigned two meanings (1) known (2) made certain, to free from obscurity, doubt or chance, to fix, to settle or determine. Whereas the word "election" has been defined as the act of choosing; a free choice between different things; the selection of one man amongst more; the act of choosing a person to fill an office or employment by any manifestation of preference as by ballot. 9. Similarly the word "appoint" according to Black's Law Dictionary Fifth Edition Page 91 means to designate, ordain, prescribe, constitute, or nominate, to allot or set apart, to assign authority to a particular use, task, position, or office. Term is used where exclusive power and authority is given to one person, officer, or body to name persons to hold certain offices. It is usually distinguished from "elect", meaning to choose by a vote of the qualified voters of the city; though this distinction is not invariably observed. 10. From the definitional meanings assigned to the words "election" and "appointment" as given in the various dictionaries, it clearly emerges that "election" ordinarily has reference to a choice or selection by electors, while "appointment" refers to a choice or selection by an individual. The distinction brought out as above between the three expressions when applied to the case in hand would mean that in the context of the constitutional provisions governing the subject, it is the President who has to appoint the Prime Minister after ascertaining for himself in the manner prescribed as to who from amongst the Members of the Assembly commands confidence of the House. 11. Similar question arose for consideration in Mc.Pherson . Blacker reported as (146 US I), wherein it has been observed that the term "appointment" is to be distinguished from "election". The former is an executive act, whereby a person is named as the incumbent of an office and invested therewith, by one or more individuals who have the sole powers and right to select and constitute the officer. Election means that the person is chosen by a principle of selection in the nature of a vote participated in by the public generally or by, the entire class of persons qualified to express their choice in this manner. 12. No basis having been laid and none being available to equate the words "appoint" and "ascertain" with the word "election" Article 226 of the Constitution which has been pressed into service by the petitioner in support of his case has no relevance to the appointment of respondent as Prime Minister by the President of Pakistan as the provision applies only to elections. 13. The view that we have taken as above also finds support from the Legislative history of the two provisions namely Article 91 and Article 226 of the Constitution. Originally i.e. before amendment of Article 91 of the Constitution by President's Order No.XIV of 1985 and Constitution (Eighth Amendment) Act of 1985; Article 91 (2) read as unden- "After the election of the Speaker and the Deputy Speaker, the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim Members to be the Prime Minister." Similarly Article 226 before its amendment by the afore-mentioned two amending laws read as under:- "All elections under the Constitution other than those of Prime Minister and the Chief Minister shall be by secret ballot." 14. It may also be pertinently observed here that per settled principle of construction every word used in a provision has. to be assigned the meaning in its common parlance and if different words are used the intention clearly is to convey different meaning. Similarly it is also well established that if a word used in a provision is substituted by another through an amendment the intention of the Framer manifestly is to bring about a change in law for otherwise its efforts would be futile. 15. It would further be seen that even under the old dispensation, the election of the Prime Minister was not required to be held through a secret ballot which position has been maintained by making the corresponding amendments in the two relevant provisions viz. Article 91 and 226. It was half-heartedly argued by the petitioner that the deletion of the words "other than those of the Prime Minister and Chief Minister" from Article 226 shows that the intention of amendment was to have the Prime Minister also elected through a secret ballot. While advancing this argument the petitioner appears to have lost sight of the corresponding amendment in Article 91 (2) whereby the requirement of election of the Prime Minister was done away with and instead the President was empowered to appoint that person from amongst the Members to be the Prime Minister who in his opinion commands the confidence of the majority of the members which majority has to be ascertained as provided by sub-Article (2A) of Article 91 ibid. It has already been observed that "election" and "appointment" are different concepts. 16. In view of the fore-going discussion, we are clearly of the view that the if-petition has no merit whatsoever and the same is accordingly dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 426 PLJ 1991 Lahore 426 Present: malik muhammad qayyum, 3 Mst. SHAMIM AKHTAR-Petitioner Versus ADDITIONAL DISTRICT JUDGE, SIALKOT and another-Respondents Writ Petition No.1220 of 1990, accepted on 9.3.1991. (i) Maintenance- —Maintenance for wife-Claim of-Suit for-Suit decreed by trial court but dismissed by appellate Court-Challenge to-There is no dispute that it was agreed at time of Nikah that respondent No.2 shall pay maintenance of Rs: 300/- per month to his wife-It was specifically stipulated in clause 20 of Mfa7/i/iama--Stipulation was not made dependent upon Rukhsati—'fh&rt was no averment in written statement that despite demand, wife had refused to perform marital obligations or to live with him-Held: Additional District Judge was clearly in error in setting aside decree by holding that as Rukhsati had not taken place, petitioner was not entitled to any maintenance. [P.428JA (ii) Maintenance- —Maintenance for wife-Claim of~Suit for-Suit decreed by trial court but dismissed by appellate court—Challenge to—Whether a wife cannot institute suit for maintenance after dissolution of marriage—Question of—Contention that a wife can sue for maintenance during subsistence of marriage but cannot file suit after marriage is dissolved-Held: Whether suit for recovery of maintenance is filed during subsistence of marriage or afterwards, is of no significance if during period for which maintenance is claimed, marriage subsisted. [Pp.428&429]B 1990 SCMR 803 not relevant 1989 SCMR 119 ref (iii) Maintenance- —Maintenance for wife-Claim of-Suit for-Suit decreed by trial court but dismissed by appellate court-Challenge to-Whether suit for recovery of maintenance can only be filed before Arbitration Council under Muslim Family Laws Ordinance, 1961 and not before Family Court-Question of- Held: Section 9 of Ordinance, 1961 cannot be construed as having taken away jurisdiction of Family Court in matters of maintenance-Held further: A wife has option of claiming maintenance either before Arbitration Council or by filing a suit before Family Court-Petition accepted. [P.429JC&D 1991 SCMR 681 rel. Mr. Taki Ahmad KJian, Advocate for Petitioner. Rana Nasmllah A7ia/j,Advocate for Respondent No.2. Nemo for Respondent No.l. Date of hear ing: 3.1991. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for maintenance filed by the petitioner against respondent 2 on 12th June, 1988 claiming that she was entitled to receive Rs. 300/- per month from the respondent in accordance with the terms of the Nikahnama. The suit was contested by respondent No.2 but was decreed by the Family Court on 29th May, 1989. An appeal was taken by respondent No.2 to the Additional District Judge, Sialkot , which was accepted and the suit for maintenance filed by respondent No.2 was dismissed on 18th November, 1989. Hence this petition. 2. Mr. Taqi Ahmad Khan, learned counsel appearing on behalf of the petitioner contends that admittedly the Nikah of the parties was performed on 16th June, 1985, and the petitioner/wife was entitled to receive maintenance for (from) her husband in accordance with the conditions contained in the Nikahnama itself at the rate of Rs. 300/- per month and the fact that Rukhsati had not taken place was of no consequence in the absence of any plea being set up by respondent No.2 in the written statement that the wife had refused her conjugal society without any reasonable cause. Reliance has been placed on a Division Bench judgment of Peshawar High Court in Mst. Bibi Musairat v. Sarfaraz (1990 CLC 1908). 3. Rana Nasrullah Khan, Advocate, appearing on behalf of respondent No.2 while controverting the arguments of the learned counsel for the petitioner contended that at the time when the suit was filed, the petitioner was not the •wife of respondent No.2 who had dissolved the marriage by pronouncing Talaq on 10 th November, 1987, and as such she could not have filed the suit for maintenance. Reliance has been placed upon the authority of the Supreme Court in Mst. Naziran v. The Collector, Sialkot and 2 others (1990 SCMR 803). It was further argued by the learned counsel that the jurisdiction of the Family Court to entertain a suit for maintenance of the wife was barred by the provision of Muslim Family Laws Ordinance, 1961 and, for this reason also the suit filed by the petitioner was not maintainable. The learned counsel has in this behalf referred to the provisions of Section 5 of the Punjab Family Courts Act, 1964 and the schedule annexed therewith. 4. There is no dispute between the parties that the Nikah was solemnized on 16th June, 1985 at which time it was agreed that the respondent shall pay maintenance at the rate of Rs. 300/- per month, to his wife. It is so specifically stipulated in clause 20 of the Nikahnama. This stipulation was not made dependent upon the performance of Rukftsati nor was any such condition attached. In the written statement filed by respondent No.2, there was no averment that despite demand made by him, the wife had refused to perform her marital obligations or to live with him. That being so, the Additional District Judge was clearly in error in setting aside the decree by holding that as Rukhsati had not taken place, the petitioner was not entitled to any maintenance. 5. As regard the contention of the learned counsel for respondent No.2 that a wife can sue for recovery of maintenance during the subsistence of marriage but cannot file any suit after the marriage has been dissolved, there does not appear to be much force in it. There can be no dispute that the marriage is a civil contract and any obligation arising thereunder is enforcible under the law. Whether the suit for recovery of maintenance is filed during the subsistence of marriage or afterwards is of no significance, if during period for which maintenance is claimed the mariage subsisted. Reliance of the learned counsel on the above cited precedent in Mst. Naziran Bibi's case is not apt for that there the dispute arose out of an application under the Muslim Family Laws Ordinance, 1961, which provides that a wife may apply for grant of maintenance against the husband," before the Arbitration Council. The plea that such an application can only be made during the subsistence of marriage is founded on the premises that after the dissolution of marriage, a wife becomes an ec-wife and husband an ex-husband and, therefore, she cannot invoke Section 9 of the Muslim Family Laws Ordinance, 1961. There appears to be a difference of opinion even on this aspect of the matter, (vide Muhammad Najeeb v.Abdus Stattar and 6 others (1989 SCMR 119), but suffice it to say for the present, there is no such provision in the Punjab Family Courts Act, 1964, putting constraint on power of Court to grant I maintenance during the subsistence of marriage only. ' 6. In support of the last agrument, strength was sought from Section 5 of Punjab Family Courts Acts, 1964 to contend that the Family Court had no jurisdiction to decree the suit for maintenance of the wife. The argument of the learned counsel is that as Section 9 of the Muslim Family Laws Ordinance, 1961, confers jurisdiction on the Arbitration Council to grant maintenance, the same relief cannot be granted by the Family Court constituted under the Punjab Family Courts Act, 1964, as the later enactment subjects itself to the Muslim Family Laws Ordinance, 1961 as provided in Section 5 of the Act. This argument of the learned counsel cannot be acepted. Admittedly, there is no provision in the Muslim Family Laws Ordinance, 1961, which confers exclusive jurisdiction on the Arbitration Council to adjudicate upon the matters of maintenance. Section 9 is enabling provision which authorises the Arbitration Council to grant maintenance but it does not take away the jurisdicion of other competent forums. The expression" subject to the Muslim Family Laws Ordinance, 1961," in Section 5 of the Punjab Family Courts Act, 1964, cannot be construed as having taken away the jurisdiction of the Family Court in the matters of maintenance. The true scope of Section 5 is that if there be any conflict between the provisions of the Punjab Family Courts Act, 1964 and the Muslim Family Laws Ordinance, 1961, the Ordinance shall prevail. It is a well-settled principle of interpretation that as far as possible the provisions of two statutes, if operating in the same field, have to (be) harmonised and a conflict between the two, cannot be readily presumed. From this discussion, it becomes clear that a wife has the option of claiming maintenance either by approaching the Arbitration Council under Section 9 of Muslim Family Laws Ordinance, 1961 or by filing a suit before the Family Court. There is thus no force in the argument of learned counsel for respondent No.2 that the suit for maintenance filed by petitioner before the Family Court was not competent. This view is fortified by the observations of the Supreme Court in Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus and others (1991 SCMR 681). As a result of what has been said above, this petition is accepted, the impugned judgment of the Additional District Judge dated 18th November, 1989 is declared to be without lawful authority and of no legal efect, with the result that the judgment and decree of the Family Court dated 29lh May, 1989, stands restored with no orders as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 430 PLJ 1991 Lahore 430 Present: MALIK MUHAMMAD QAYYUM, J ' SUPERINTENDING ENGINEER (E) 1ST OPERATION CIRCLE, WAPDA, FAISALABAD and anoth^r-Petitioners versus Raja MUHAMMAD FAZIL and two others-Respondents Writ Petition No.1216 of 1990, dismissed on 30.5.1991. Minor Penalty- —Line Superintendent of WAPDA-Stoppage of one increment of-Whether Labour Court had no jurisdiction to adjudicate upon matter-Question of-It is correct that respondent No.l is a civil servant by vritue of WAPDA Act, 1958 and dispute pertains to terms and conditions of service—Section 4 of Service Tribunals Act, 1973, confers upon a civil servant right to appeal against any final order by a departmental authority in respect of any terms and conditions of his service, before Tribunal-Held: No TribunaUhaving yet been established for purpose of entertaining appeals against minor penalties, jurisdiction of Labour Court was not barred. [Pp. 431&432]A,B&C PLD 1980 Quetta 58 and PLD 1981 Pesh.l«/. Mr. Muhammad Aqil Mirza, Advocae for Petitioners. Mian Mahmood Hussain, Advocate for Respondent No.l. Date of hearing: 30.5.1991. order This petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973, assails the judgment of Punjab Labour Appellate Tribunal dated 24ih October, 1989, whereby it accepted the appeal filed by respondent No.l against the order of the Punjab Labour Court No.4, Faisalabad and remanded the case, lor decision on merits. 2. Raja Muhammad Fa/il, respondent No.l, was working as Line Supcrintendent-U, in the employment of the petitioners. He was proceeded against dcpartmcntally and was awarded the punishment of stoppage of his increment for one year on account of certain irregularities. He after serving a grievance notice, filed an application under section 25-A of the Industrial Relations Ordinance, 1969, challenging the penalty imposed upon him. In the written statement, the petitioners raised an objection that respondent No.l was a civil servant and as the dispute related to terms and conditions of his service, it could only be adjudicated upon by the Services Tribunal and not the Labour Court . This objection found favour with the Labour Court , which dismissed the application of respondent No.l on 15th August, 1989. 3. Aggrieved by this order, respondent No.l went in appeal before the Punjab Labour Appellate Tribunal who held that as only a minor penalty had been imposed by the employer upon the employee, the dispute was not amenable to the jurisdiction of the Services Tribunal and, therefore, the Labour Court could try the same. This order has now been assailed by the petitioner by filing this petition. 4. After hearing the learned counsel for the parties, I am not persuaded to take a view different from the Punjab Labour Appellate Tribunal. Although it is correct that respondent No.l is a civil servant by virtue of provisions of Section 17-1-B of the Wapda Act, 1958 for the purposes of Service Tribunals Act, 1973 and the dispute also pertains to the terms and conditions of his service, but as no Tribunal stands constituted for the purposes of entertaining appeals against minor penalties imposed by the departmental authorities, the jurisdic ion of the Punjab Labour Court was not barred. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, ordains that the jurisdiction of ordinary Court shall stand ousted in respect of matters to which the jurisdiction of the administrative Tribunal, extends. This ouster is not all pervasive but is confined to those cases which can be brought to those tribunals. 5. Section 3(1) of the Service Tribunals Act 1973, empowers the Government to establish one or more tribunals for exercising jurisdiction under the Act, If more than one Tribunals are established the Government has to specify in the notification the class or classes of civil servants in respect of whom or the territorial limits within which such tribunal shall exercise jurisdiction. Subsection (2) of this section ordains that the tribunals have exclusive jurisdiction in respect of the terns and conditions of service of civil servants including disciplinary matters. Subsections (3), (4), (5) and (6) contemplate the setting up of a tribunal the Chairman of which has to be a person qualified to be a Judge of the High Court. Subsection (7) however provides that notwithstanding any thing contained in subsections (3), (4), (5) and (6) a Tribunal established to exercise his jurisdiction in respect of specified class or classes of cases may consist of one or more persons in service of Pakistan to be appointed by the President. 6. Section 4 of the Act confers upon a civil servant right to appeal against any final order by a departmental authority in respect of any terms and conditions of his service to the Tribunal. As regards appeals, against an order imposing punishment or penalty, by a civil servant, subsection (2) provides that in case of penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale, the appeal shall lie to a tribunal referred to in subsection (3) of section 3 namely a tribunal headed by a person qualified to be a Judge of the High Court and in any other case the appeal shall lie to a tribunal referred to (in) subsection (7) of that section i.e. to say a tribunal, consisting of one or more persons in the service of Pakistan to be appointed by the President. Subsection (2) of section 4 when read with section 3 of the Service Tribunals Act 1973 leaves no manner of doubt that the tribunal contemplated for hearing appeals against minor penalties has to be set up separately by the President under Section 3(7) of the Act. At present no such tribunal stands established and therefore no appeal could be filed by respondent No.l against the punishment of stoppage of his increment of one year which is a minor penalty. 7. This view finds support from the judgments of the Baluchistan High Court and the Peshawar High Court in Mujeebullah Aijaz v. Director General, Telephone and Telegraph Department and 2 others (PLD 1980 Quetta 58) and Mian Amanul Mulk v. N.W.F.P. through Chief Secretary (PLD 1981 Peshawar 1), as also the judgment of the Federal Services Tribunal Islamabad in Appeal No. 225 (L)/1986 decided on 29th November, 1988. In view of what has been said above, this petition is found to be without any force and is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 432 (DB) PLJ 1991 Lahore 432 (DB) Present: M.MAHBOOB ahmad, CJ and malik muhammad qayyum, J GOVERNMENT OF PAKISTAN , THROUGH SECRETARY, MINISTRY OF DEFENCE-Appellant versus PREMIER SUGAR MILLS AND DISTILLERY CO.LTD., MARDAN, and 12 others-Respondents R.F.A. No. 179 of 1980, accepted on 18.3.1991. (i) Civil Suit- -—Supply of sugar to appellant-Less payment of price of-Recovery of-Suit for-Whether finding of trial court that defendants have not brought any evidence to refute assertion of plaintiff on issue of competency of suit, is sustainable—Question of~TLis finding was wholly uncalled for as there was nothing brought on record by plaintiffs to establish issue-An issue can only be controverted by opposite party when there is something on record to be controverted-Held: Finding of trial court on isue of competency of suit, cannot be sustained and has of necessity to be reversed—Appeal accepted. [P.437JF&G (ii) Civil Suit-- —Supply of sugar to appellant-Less payment of price of-Recovery of-Suit for-Whether suit was competently filed-Question of-It is admitted position that respondents 1 to 8 are independent entities being Public Limited Companies incorporated under Companies Act, 1913-Suit was instituted on their behalf by respondent No.9, namely Association of Sugar Mills- Association was not a direct person to receive amount in dispute as sugar supplied was property of Sugar Mills, respondents 1 to 8~Secretary of respondent No.9, in no manner represented respondents 1 to 8 as he even did not <%n plaint on their behalf—Held: Suit, on own showing of plaintiffs, had not been competently filed so far as plaintiffs 1 to 8 are concerned. [P.435JA&B (iii) Chil Suit-- —Supply of sugar to appellant-Less payment of price of-Recovery of—Suit for-Whether suit was competently filed-Question of-Institution of suit by respondent No.9 on behalf of respondents 1 to 8 cannot be validated even if it was competently instituted by respondent No.9-Articles of Association show that Secretary by himself is not anthorised to 'commence and institute proceedings which power is vested in Committee-Held: It stands proved especially in absence of any resolution of Committee of respondent No.9 about decision to commence and institute suit, that same had not been instituted competently on its behalf as well. [Pp.435&436]C&D (rv) Words and Phrases- —Words "commence" and "institute"-Meanings of-These words have significant and distinct meanings as against "filing—"First two phrases as explained in dictionary tend to show that some intiative and decision has to be made for taking some action whereas third phrase viz "filing" is only a ministerial and consequential act to follow up intent of first two phrases. [P.437JE PLD 1966 SC 684 rel. Kh. Saeeduz Zafar, Advocate for Appellant. Ch. Sadiq Hussain, Advocate for Respondents. Dates of hearing: 11 and 18.3.1991. judgment M. Mahboob Ahmad, C J.-This Regular First Appeal has been instituted by the Government of Pakistan through Secretary, Ministry of Defence, Islamabad against Premier Sugar Mills & Distillery Company Ltd. and 12 others. 2. The facts necessary for the purposes of this appeal briefly stated are that respondents Nos. 1 to 9 instituted a suit against the appellant Government and respondents Nos. 10 to 13 for the recovery of Rs. 3, 76, 022.70 as price of three thousand tons of sugar supplied by the plaintiffs' Sugar Mills to defendant No.l, the present appelant. Plaintiff/respondents Nos.l to 8 are duly incorporated companies under the Companies Act, 1913 whereas plaintiff No.9 is the Association of Sugar Mills. It was asserted in the plaint that the plaintiffs were entitled to receive Rs. 67/- per maund for the sugar supplied but instead the defendants made payment at the rate of Rs. 61/- per maund and as such the amount of Rs. 6/- per maund still remains payable and that since the appellant/defendant was not paying the same, the plaintiff/respondents were obliged to file the suit. This suit was resisted by the defendant and on the divergent pleadings of the parties, following ten issues including that of relief were framed:- 1. Whether the plaint fails to show a cause of action and is liable to rejection? OD. 2. Whether the plaintiffs have a locus standi for filing the present suit? O.P. 3. Whether the defendants had a right to fix any price of the sugar? OD. 4. Whether sum in suit is payable by the defendants to the plaintiffs and in what proportion? OP. 5. Whether the suit is bad for mis-joinder of the party? 6. Whether the suit is barred under Order 2, Rule 2, C.P.C. OD. 7. Whether the suit is within time? OP. 8. Whether suit has competently been instituted? OP. 9. Whether defendant No.l, is entitled to special costs? OD. 10. Relief. On the conclusion of the trial, the learned Civil Judge 1st Class, Lahore by his judgment dated 30-3-1980 decreed the suit of the plaintiffs with costs as against the appellant/defendant only. 3. Before us today the finding of the learned Civil Judge on issue No.8 has been at the outset questioned on behalf of the appellant. 4. The learned counsel for the appellant has contended that the suit had not been instituted through a duly authorised person and was therefore not competent. He referred to the discussion on this issue as made by the learned Civil Judge and submitted that the finding is not only not based on record but is wholly un-sustainable on the legal plane as well. It was also contended by the learned counsel that the plaintiffs-respondents having not proved the issue, it was not expected of the appellant under law to refute the issue on which the plaintiffs/respondents had led no cogent or tenable evidence. In the same context the learned counsel for the appellant urged that the issue afore-mentioned had been framed in pursuance of the preliminary objection No.l in the written statement of the appelant and had to be decided in the context thereof. 5. On the other hand, the learned counsel for the contesting respondents submitted that the finding of the learned Civil Judg is wholly un-exceptionable and has been found as a matter of fact in favour of the appellant in view of the statement of Ali Ahmad PW.l, the Secretary of respondent No.9 who as the Secretary was authorised under the Articles of Association to institute the suit. 6. The learned counsel for the appellant in reply has submitted that the Articles of Association did not form part of the record and therefore the same could not have been relied upon to clothe the Secretary with the power to institute the suit on behalf of the plaintiffs. 7, We have given consideration to the respective arguments of the learned cooBsei for the parties. We find force in the contentions raised on behalf of the appellant. It is the admitted position that respondents Nos. 1 to 8 are independent entities being Public Limited Companies incorporated under the Companies Act, 1913. There is no material whatsoever available on record and neither anything has been referred to in the impugned finding nor pointed out today at the bar wiich could show the competent institution of the suit on behalf of the said respondents Nos. 1 to 8/plaintiffs. It is well settled that wh'en a company institutes a siiiL it has to establish that I he suit has been competently and authorisedly insauiie-d on its behalf. The rigor of this principle is to the extent that even a person incharge of the affairs of the company unless specifically authorised in this regard is not considered competent to initiate proceedings on behalf of the corpo'idie entity. In Iftikhar Hussain Kfian of Mqmdot v. Messrs Ghulam Nabi Corporation Ltd. Lahore reported as PLD 1971 Supreme Court 550 it was held that a suit on behalf of Company by a person (Director Incharge of Company) is not competent unless he is so authorised by a resolution passed by Company's Board of Directors in a meeting of Directors: duly convened. In the light of the above principle that the suit has not been competently filed the appeal before the Supreme Court was allowed and tfie objection as to the invalid institution of the suit was upheld. S. Adverting now to the question of competence or otherwise of the suit out of which the appeal under consideration has arisen, it may be noted that plaintiff No 9 whose Secretary alone was produced as a witness to prove issue No.8, is only an Association of which the other plaintiffs are the Members. The Association as such is not the direct person who was to receive the amount in dispute as the sugar, additional price for the sale of which had been claimed in the suit, was the property of the Sugar Mills i e. plaintiffs Nos. 1 to 8 and that price had also to be received by the said plaintiffs. The Secretary of plaintiff No.9 in no manner represented plaintiffs Nos. 1 to 8 in the suit as he even did not sign the plaint on their behalf nor did he depose anything about his competence to institute and file the suit on behalf of the said plaintiffs. The suit, therefore, on the own showing of the plaintiffs had not been competently filed so far as plaintiffs Nos. 1 to 8 are concerned. 9. In addition to the above basic factor that the incompetent institution of the suit on behalf of respondents-plaintiffs Nos.l to 8 cannot be validated, even if the suit could be taken to have been validly instituted on behalf of respondent No.9, it may be observed that the suit on behalf of respondent No.9, also had not C been competently instituted. Although the Memorandum and Aritcles of Association of respondent No.9 had not been duly brought on record but in view of the ststement of PW.l, the Secretary of respondent No.9, as made before the trial Court that he was during his examination equipped with the Memorandum and Articles of Association of respondent No.9 which had been seen by the learned trial court we thought it fit to ourselves examine the said Memorandum and Articles of Association to see as to whether the person who filed the suit on behalf of respondent No.9 had the requisite authority or not. For the purpose, the case was adjourned on 11-3-1991 to enable the respondent to produce the said Memorandum and Articles of Association which has been produced today and perused by us. Strangely enough the learned trial court had placed reliance on the .statement of Ali Ahmad PW.l alone to find issue No.8 in favour of respondentsplaintiffs on his bare statement which when seen in the light of Articles of Association of respondent No.9 in no manner authorises him independently to institute the suit. 10. The powers of the Secretary under the Articles of Association of respondent No.9 are contained in Article 39. The relevant to the present controversy is Article 39 (xiii). It reads as under:- "(xiii) to represent the Association for all purposes whenever action arises before any Court of Law in any suit or proceeding instituted by or against the Association provided that he shall not be competent to compromise any suit or proceeding without the sanction of the Committee"; A bare reading of this article shows that the power of the Secretary is only to represent the Association in actions and suits or proceedings instituted by or against the Association. As against this Article, the power to commence, institute,, prosecute and defend the matters in courts is vested in the Committee as found from Article 19(xvii). The said Article reads as under:- "(xvii) to commence, institute, prosecute and defend all such actions and/or suits on behalf of the Association as may be deemed necessary or expedient and to compromise or submit to arbitration and action, suit or dispute or difference;" 11. A conjunctive reading of the two articles therefore adequately shows that the Secretary by himself is not authorised to commence and institute the proceedings in courts on behalf of respondent No.9 which power is vested in the ommittee and that the only power with the Secretary is that where the Committee validly decides to commence and institute the proceedings and such proceedings are commmenced and instituted, the Secretary shall represent the Association respondent No.9 in those proceedings. It therefore stands proved on the own showing of respondent No. 9 especially in the absence of any resolution of the committee of respondent No. 9 about the decision to commence and institute the suit that the same had not been instituted competently on its behalf as well. 12. It may also be pertinently observed that the words 'and institute' have and distinct meanings assigned to them in the dictionary as against the word fifing'. The first two phrases as explained in the dictionary tend to show that some initiative and decision has to be made for taking some action whereas the third phrase viz "filing" is only a ministerial and consequential act to follow up the intent of the first two viz. 'commencement' and institution'. The authority if any needed in support of the above conclusion may be found in Messrs Muhammad SitMuj, Muhammad Umar and another v. The Australasia Bank Ltd. reported as PLD 1966 Supreme Court 684. It therefore stands squarely established that the plaintiff respondents had not discharged the onus of the issue under discussion. 13. Before parting with this case, we may also observe that the finding of the learned trial court that the defendants have not brought any evidence to refute the assertion of the plaintiffs on this issue is wholly uncalled for as there was nothing brought on record by the plaintiffs to establish the issue. An issue can only be controverted by the opposite party when there is something on record to controvert it. The finding on issue No.8 as arrived at by the learned trial court in the attendant circumstances detailed above cannot be sustained and has of necessity to be reversed. 14. In view of the fore-going discussion, we would allow this appeal and setting aside the judgment and decree of the learned trial court dated 30-3-1980 dismiss the suit of respondents Nos. 1 to 9 as having been incompetently instituted. There will however be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Lahore 437 PLJ 1991 Lahore 437 Present: MIAN ALLAH nawaz, J MUHAMMAD IBRAHIM and 3 others-Petitioners versus MAULA BAKHSH and 3 others-Respondents [Writ Petition No.817 of 1977, accepted on 14.7.1991]] (i) Settlement and Rehabilitation Matters- —Building site—Unauthorised possession of predecessor-in-interest of petitioners-Construction of house on-Whether predecessor-in-interest of petitioners had a vested legal right for its transfer-Question of-Held: Predecessor-in-interest of petitioners, on account of un-authorised possession and raising of permanent construction over plot, was equipped with a vested legal right to its transfer in accordance with para 13 of Schedule to Displaced Persons (Compensation & Rahabilitation) Act, 1958. [Pp.441&442]A PLD 1965 SC 618, PLD 1967 Lah. 520 and 1976 SCMR 415 rel. (ii) Settlement and Rehabilitation Matters- —Building site--Un-authorised possession of predecessor-in-interest of petitioners--Non-submission of form by-Effect of-Non-filing of form does not appeal to reason—To such a vigilent person, this lapse cannot be attributed--Filing of form under Scheme VI is meant to facilitate determination of right of un-authorised occupant within a time prescribed by Settlement Commissioner and was not a condition precedent for determination of persons who were entitled to transfer—Held: There was no warrant for coming to conclusion that foral submitted by predecessor-in-interest of petitioners was a forged document and so he was not entitled to transfer-Petition accepted. [Pp.442&444]B,C&D PLD 1965 SC 68, PLD 1967 Lah. 520,1977 SCMR 440,1976 SCMR 415 and 1975 SCMR 182 re/. Ch. Mazharul Haq, Advocate for Petitioners Mr. Muhammad Hussain Awan, Advocate for Respondents 1,2 and 3. Mr.M.Z.IQialil, Advocate for Respondent No.4. Date of hearing: 14.7.1991. judgment This petition by Muhammad Ibrahim and three others is under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking declaration to the effect that the order of the Deputy Settlement Commissioner, Gujranwala dated 6-12-1976 is without jurisdiction, without any lawful authority, hence nullity in the eyes of law. 2. The facts are that the petitioners are successor-in-interest of Karim Bakhsh who came to Pakistan as refugee from Amritsar in 1947, occupied a vacant evacuee plot bearing No. B-XXI-13-S-7 situated in Abadi Hakam Rai Sher Singh Street , Chah Chauhanwala, Gujranwala (hereinafter described as buildingsite) and constructed a house over it after obtaining necessary sanction from the Municipal Committee, Gujranwala . Sanction was accorded by the Municipal Committee on 19-9-1954. He submitted a form for transfer under Settlement Scheme No. VI. The Deputy Settlement Commissioner without disposing of the said form auctioned the plot on 26-4-67 in which Maula Bakhsh was the successful bidder. He got associated with him one Latif who deposited the price and further transferred his right in favour of Amanullah herein, respondent No.3. 3. Having come to know about the auction, Karim Bakhsh lodged an appeal before the Additional Settlement Commissioner which was accepted. The case was remanded for decision afresh. In pursuance of this order, the Deputy Settlement Commissioner Gujranwala by the impugned order dismissed the appeal of Karim Bakhsh. Hence this constitution petition by the legal heirs of Karim Bakhsh. 4. !• support of this petition, the learned counsel for the petitioners made the f otbvng sotnossions. Firsdhr: due admittedly Karim Bakhsh occupied the property in 1947, had raised iD»stnictkm over it and was therefore, entitled to its transfer under Para 13 of Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958(XXVIII of 1958) (hereinafter referred to as the Act). Strength «% sought from Mst. Mahmooda Tehsin v. Ijaz Hussain Shah (PLD 1965 SC 618) and Abdul Malik . Chief Settlement Commissioner (PLD 1967 Lak52G). Secondly, that the petitioners- have submitted belated form; this was no ground for refusing the transfer of the disputed property in favour of the petitioners. Reliance was placed on Allah Baksh v. Nizam Din and 2 others (1975 SCMR 182) and Allah Ditto v. Haji Jan Muhammad and 3 others (PLD 1974 SC 113). 5. On the contrary the learned counsel for the respondents in reply raised an objection that the petitioners had neither filed form under Scheme No. VI nor they had agitated their right before the competent Settlement Department before the date of auction. They were disentitled to the relief under the constitutional jurisdiction on account of delay and manifest inaction on their part. Adding to it, the learned counsel pointed out that the conduct of the petitioners was.tainted with fraud. He manoeuvred forged entry in Settlement Register regarding the circumstance of submission of form. On this ground this petition merited to be dismissed. 6. The arguments of the learned counsel for both parties have been heard at length. Fortunately the facts of the case are not in dispute. The unauthorised occupation of Karim Bakhsh from inception to this date over the plot is also not disputed; it is undenied that Karim Bakhsh had raised a permanent construction over the plot. Thus position of the petitioners as unauthorised occupants of plot/building site is not contested. The only points for decision are:(i) Whether the petitioners are not entitled to relief in constitutional jurisdiction on account of the circumstance of inaction (ii) whether the petitioners had not filed the form within the prescribed time and so are not entitled to its transfer. 7. Before I proceed to examine these questions, it would be appropriate to examine the relevant applicable law. The Displaced Persons (Compensation & Rehabilitation) Act, 1958, was promulgated on 26th March, 1958, "with an object to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others and for matters incidental thereto or connected therewith". A Schedule was provided in this Act to provide the manner of disposal of urban Evacuee properties described in the Act and forming part of compensation pool. Para 13 is relevant which is as follows: "(13) An evacuee building site which has been:- (1) Allotted to a claimant on which a permanent building has been constructed by him, shall be transferrd to him on payment of the market value prevalent at the time of allotment and may, if the claimant so desires, be adjusted against his claim; (2) Allotted to a non-claimant displaced person or local on which a permanent building has been constructed by him shall be transferred to him on payment of the market price prevailing at the time of allotment; (3) In unauthorised possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent of such market value; Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster or colony." In pursuance of the aforesaid para, the Chief Settlement Commissioner framed Scheme No. VI dealing with the disposal of building sites. Under Para 2 the Chief Settlement Commissioner was authorised to invite applications for the transfer of building sites from the persons who had put up permanent constructions on them in accordance with the provisions of para 13 of the Schedule to the Act. There is no dispute that the Chief Settlement Commissioner did notify the time for the purpose of submission of applications from time to time published in the official gazette. The case of the petitioners is that they submitted application while the case of contesting respondents is that they have not submitted any application. The filing of appeal is undisputed. 7. It seems clear from the reading of Para 13 of the Schedule read with Scheme VI that the persons who were in authorised occupation of building site and had raised construction, were given right to purchase it with an object to settle them permanently and integrate them in the socio-economic life of the State. This point came up for consideration before the Supreme Court in Mst. Mahmooda Tehsin v. S. Jjaz Hussain Shah etc (PLD 1965 S.C. 618). After dealing with the contentions of the parties, it was laid down that the unauthorised occupants were clothed with legal right to purchase the building site in their possession over which they have raised permanent construction. It will be instructive to quote the relevant passage from this judgment. It reads as under: "While on the one hand the irrelevancy of the definition in the scheme helps the appellant inasmuch as she is relieved of the necessity of proving iftot her case falls within one of the categories mentioned in the definition, it goes against her inasmuch as her right to transfer of the want land is concerned. In accordance with the definition if she had bnk on l/4th of the plot she could be entitled to the transfer of the fcoie plot However, this does not appear to be the right granted by paragraph 13 of the Schedule. That paragraph provides for the transfer only of the plot which is in possession and on which there is a building. Now this may not necessarily mean that only the precise area on which a construction exists is to be transferred. It will have to be decided on the circumstances of each case as to whether there is a permanent construction on a plot although the construction does not cover the whole plot. Some ground may have been left open as a lawn in a house or as a courtyard or for a path or for some similar object in which case the open space should also go alongwith that part of the plot on which a construction actually exists, because it could be urged that the building is on the whole plot and not merely on the portion actually covered by the construction. When a person builds a house on a plot he does not cover every inch of the plot with construction. But apart from such consideration it should be clear that under paragraph 13 a person cannot be entitled to anything more than the plot on which the construction has been raised. Of course the Settlement Authorities may with the approval of the Government have power to transfer an area apart from the scheme, but that is not the point with which we are concerned. We are only considering the scope of a scheme which is framed for giving effect to para 13... From the preceding discussion it follows that the refusal of the Settlement Authorities to transfer the land to the appellant on the ground that it was not within the purview of Scheme No.VI is unjustified. The appellant is entitled to a transfer of the land in her possession which she, has built upon. The order of the Settlement Authorities is therefore set aside and there will be a determination afresh now of the right of the to (?) the transfer. The right will be confined to the area in her possession subject of course of this that any necessary rights for a passage or other easement which are essential to the enjoyment of the property which is to be transferred to the appellant will also be granted to her by the settlement authorities." This view was followed by the Division Bench of this Court in Abdul Malik and others v. Chief Settlement Commissioner, Lahore etc. (PLD 1967 Lah.520). Again the same view was reiterated in Major Abdul Qadeer Klian v. Abdul Hamid and others (1976 SCMR 415): 8. Applying this principle to the admitted facts and circumstances of the case I have no difficulty in reaching the conclusion that Karim Bakhsh on account of his unauthorised occupation and raising of permanent construction over the I plot was equipped with a vested legal right to its transfer in accordance with Para 113 of Schedule to the Act. 9. Now I take up the next question. The contention of respondents in brief is that neither the petitioners submitted form under Scheme No.VI nor he agitated his right before the competent Settlement Authority till the date of auction. This contention has two parts. The first one regarding the non-filing of form does not appeal to the reason as noted above that the petitioners had been in occupation of the property in dispute since 1947: had raised permanent construction over the plot after getting the sanction from the Municipal Committee twice. To such a vigilant person this lapse cannot be attributed. The contention to this extent is thus untenable and is accordingly repelled. As regards the second part of the arguments is concerned, it is sufficient to say that the petitioners were entitled to transfer under Para No.13. The filing of form under Scheme No.VI is meant to facilitate the determination of right of un-authorised occupation within a time prescribed by the Chief Settlement Commissioner. The Scheme is facilitative in nature (and) does not extinguish the right of un­ authorised occupation. This question was considered in ChAltaf Hussain etc. v. Tlie Chief Settlement Commissioner etc. (P.L.D. 1965 S.C.68). It was there laid down:- "The contention that this form was submitted out of time is grounded on paragraph 2, Chapter II, of Settlement Scheme No.l prepared by the Chief Settlement Commissioner under directions of the Central Government by virtue of powers conferred by Section 16(I)(b) and (c) of the Act. This paragraph 2 of Chapter II prescribes that the Chief Settlement Commissioner "shall from time to time by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification". The argument was advanced in the High Court and has been repeated before us that only two notifications were issued by the Chief Settlement Commissioner under this provision, which are(?) printed at pages 305 and 73 of the Manual. By the first notification dated the 19th of May, 1959, the last date fixed for applications under paragraph 2 of Settlement Scheme No.l was the 15th day of July, 1959. Subsequent to these two notifications it appears that Press-notes and Memoranda were being issued from time to time by the Chief Settlement Commissioner granting further extensions for such applications but it is true that at the time when Mr.Bashir Ahmad accepted the second form of Mr Altaf Hussain, no such extension Memorandum or Press-note existed. Subsequent to that date, however, Press-notes or Memoranda were issued from time to time and applications of this character admitted by the relevant authorities. Contention therefore raised on behalf of the Settlement Department as well as on behalf of Mr.Shabbir Hussain that the only legal mode of extention possible, of the time limit for such applications, by a notification in the Gazette, all subsequent extensions of time allowed under orders of the Chief Settlement Commissioner were invalid, appears to be contrary to the practice that has undoubtedly prevailed in this respect in the Department. If such a contention is acceded to, all these subsequent Press-notes or Memoranda, would have to be treated as without legal sanction. The true view, however, of the provisions of paragraph 2 of Settlement Scheme No.l seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms authorise him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to import any such limiting factor into the situation. In this connection, however, reliance was placed on Section 11 of the Act by Mr.Shabbir Hussain and on Section 23 of the Act by Mr.M Anwar on behalf of the Department. Section 23 of the Act merely confers certain powers enjoyed by a Civil Court under the Code of Civil Procedure, on officers appointed under the Act for the purpose of making an inquiry or hearing an appeal under the Act. These provisions appear to have no relation to the question that calls for determination in respect of limitation for claim forms. The language of Section 11 of the Act too does not appear to afford any assistance to the argument advanced by Mr.Shabbir Hussain that this provision arms the Chief Settlement Commissioner with power to lay down a point of limitation for such forms. In terms, Section 11 is confined to the power of the Chief Settlement Commissioner to invite applications for the payment of compensation under the Act, from such claimants as may be specified in a notification from time to time. But an application claiming compensation is to be distinguished from a claim form requesting for transfer of a particular property in lieu of the assessed compensation for a verified claim. None of the provisions referred to, therefore, can be invoked to import a limitation of time for such claim forms though for reasons of convenience a Chief Settlement Commissioner may call for applications by a certain date. This would not, however, imply that a claim form accepted after such a date would necessarily be illegal. On this score, therefore, the second claim form of Mr.Altaf Hussain could not be declared as invalid as the learned Letters Patent Bench of the High Court seems to have done. To do so, would amount to making a fetish of a technicality. At the relevant point of time no order extending the period of so-called limitation existed but subsequently the door was repeatedly opened for letting in such forms". 10. The rule laid in Ch~Altaf Hussain etc. ibid, was followed in Abdul Malik and others v. Chief Settlement Commissioner, Lahore & others (PLD 1967 Lah. 520), Ch.Sadiq AH v. Settlement Commissioner, Lyallpur & 6 others(l9TJ SCMR 440), Major Abdul Qadir Khan v. Abdul Hamid and others (1976 SCMR 415) and Abdul Qadir v. ShMuhammad Idrees (1975 SCMR 182). 11. The ratio emerging from the aforenoted authorities is that the requirement of filing the form under Scheme No.VI issued under Para 13 to Schedule was of facilitative nature and was not a condition precedent for determination of rights of persons who were entitled to transfer. Applying it to the facts of this case it is quite clear that when Karim Bakhsh had a knowledge of the auction he rushed to file an appeal before the Competent Settlement Authorities and stated to the effect that neither his form has been dealt with nor his rights were determined and that this plot was not capable of auction in view of clear statutory embargo embodied in Para 13 read with Para 9 of the Scheme. There was no warrant for coming to conclusion that the form submitted by Karim Bakhsh was a forged document and so he was not entitled to this transfer. In the light of preceding analysis, I have no difficulty in reaching the conclusion that the order passed by the Deputy Settlement Commissioner is violative of mandatory provisions embodied in Para 13 read with Para 9 of Schedule and so has been passed without any lawful authority. It is declared as such and is hereby quashed. The petitioners are held entitled to the transfer of building site in dispute under Para 13 read with Scheme No.VI. The petition is accordingly accepted with requested relief. The case is remitted to the notified officer who shall transfer the property in dispute in accordance with law. He shall issue necessary transfer documents in favour of the petitioners in consonance with Para No.13 of Schedule read with Scheme No.6. There shall be no order as to cost. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 444 PLJ 1991 Lahore 444 [ Rawalpindi Bench] Present: gul zarin kiani, J MUHAMMAD YOUSAF-Petitioner versus ADDITIONAL DISTRICT JUDGE, ATTOCK, and 2 others-Respondents Writ Petition No.10 of 1988, accepted on 24.3.1991 Restitution of Conjugal Rights­ '—Conjugal rights-Restitution of-Suit for-Dismissal of-Challenge to-Wife having not laid claim to divorce, marriage tie still subsisted-Neither trial Court nor appellate Court attended to issue touching exercise of discretion governing grant of restitution of conjugal rights—It is a clear case of failing to exercise jurisdiction vested in a Court of law-Held: Question whether restitution should or should not be allowed in existing circumstances, cannot be finally resolved by High Court-Petition accepted and case remanded to District Judge, Attock for fresh decision whether husband is entitled to relief of restitution of conjugal rights. , [Pp. 446,447&448]A,B&C PLD 1959 (WP) Lahore 710, PLD 1967 Lahore 1104, AIR 1936 Allahabad 657 and PLD 1952 Dacca 465 ref. Mr. Muhammad Munir Peracha, Advocate for Petitioner. Malik Muhammad Jaffar, Advocate for Respondent No.3. Date of hearing: 243.1991. judgment Petition in constitutional jurisdiction arose from a matrimonial dispute between the spouses and is against a concurring decision of Additional District Judge, Attock dated 26.11.1987 denying relief for restitution of conjugal rights to the petitioner-husband on account of unpaid dower to respondent-wife. Parties were married on 4.9.1985. After marriage they lived together as husband and wife for some time but in course of their stay together, some differences arose between them in consequence whereof, respondent-wife left for the house of her parents. Upon her refusal to return and resume normal matrimonial life, petitioner brought a suit for rehabilitation of marital relations against her in the Family Court at Attock. In return, the wife brought a suit to recover her unpaid dower in the sum of Rs.12,000/- from him. Both the suits were consolidated for a joint trial and common set of issues were settled in them. Upon review of the evidence given by the parties in the consolidated trial of suits, the Judge Family Court found that Rs.12,000/- was fixed as dower of the wife at the time of her marriage and it was not paid to her. Issue of habitual cruelty and the husband's liability to maintain the wife were found against her. Under issue No.6, it was held that since the dower-amount was not paid to the wife, she had the lawful excuse to live away from the husband and on this score alone, relief for restitution of conjugal rights was denied to the husband, and, his suit dismissed on 17.9.1987. Correspondingly, suit for recovery of dower in the sum of Rs.12,000/- was decreed in favour of the wife. Aggrieved of the judgment, the husband challenged it in two separate appeals before learned District Judge Attock which appeals came to be heard by an Additional District Judge in the same District, who agreeing with the trial Court dismissed the appeals with costs on 26.11.1987. Decree for dower was accepted and not challenged further by the husband who preferred to assail only that part of the decree which denied him the relief for restitution of conjugal rights. Dower amount was deposited, and, paid to the wife under an order of this Court. It was not denied that marriage was consummated and the wife lived with the husband for some months after marriage and performed her matrimonial obligations. Upon this view of the matter, learned counsel for the petitioner relying on para 293 of Principles of Mahomedam Law by Mulla, argued that the suit for restitution of conjugal rights could not have been dismissed outright. Instead, decree for restitution of conjugal rights conditional upon payment of unpaid dower ought to have been made, there being no dispute about the nature of dower. To the contrary, learned counsel for the respondent-wife vehemently opposed the granting of decree for restitution of conjugal rights basing his client's defence on cruelty and fabrication regarding the amount of dower fixed at the time of parties' marriage. In defence to the suit for restitution of conjugal rights, wife had pleaded cruelty by the husband, and further that she was hard pressed to forego her dower amount of Rs.12,000/-, failing, she was beaten out of the husband's house. Copy of the plaint in the suit for dower and defence taken to it have not been filed. Therefore, the nature of averments in it and the kind of defence taken to it are not known. On plea of cruelty and liability of the husband to provide separate maintenance to the wife, Courts below had found agam<j her. Nonetheless, restitution was denied because the dower was unpaid. This course, in my opinion, was incorrect. Para 293 of Principles of Mahomedan Law by Mulla states:- "The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid (Baillie, 125). If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If the suit is brought after sexual intercourse has taken place with her free consent, the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower". Para 48 of Muhammedan Law, A Digest, by Sir Roland Knyvet Wilson, revised and brought upto date by A.Yusuf Ali provides: - "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 k 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 Mst.Rahim Jan versus Mu/jcmmad--P.L.D. 1955 Lahore 122, at page 136, Late B.Z.Kaikaus, J., as his Lordship then was found that:- "Even after consummation the wife retains the right to refuse the performance of marital obligation till the prompt dower is paid". jIBe that as it may, after removal of the obstacle provided by the event of non- [payment of dower to the relief of restitution of conjugal rights, the question would arise, whether the husband was entitled to rehabilitation of marital relations with his wife. Marriage tie still subsisted. So far, wife has not laid claim to divorce. In MstMu&fum Bibi versus Muhammad WazirKhan-P.L.D. 1959 (W.P) Lahore 710, it was nifed that:- 'Decree for restitution of conjugal rights is one which is in the discretion of the Court to grant and the plaintiff must prove in order to entitle him to such a decree that he has come to the Court with clean hands". Same view was expressed in Muhammad Zaman versus MstJrshad Begum and others-? LD. 1961 Lahore 1104 wherein, at page 1110, in Para 10 of the judgment, it was observed: - "No doubt, it is the duty of the wife to follow the husband wherever he desires her to go. But such an obligation of the wife to live with her husband at all times and in all circumstances is not an absolute one. The law recognises circumstances which justify her refusal to live with him. For instance if he has habitually ill-treated her, if he has deserted her for a long time etc., or he has directed to leave his house or even connived at her doing so. On all such occasions the husband cannot require his wife to re-enter the conjugal domicile nor the Court of justice can give him assistance to restore him the hand of his wife. The bad conduct or neglect of the husband under the Muslim Law is good defence to a suit brought by him for restitution of conjugal rights. Buzloor Rahman v. Shumsoonnisa Begum (1), Ameer Ali's Muhammadan Law, Vol.11 (1929 Edn.) Section 11, pp 442-446). No doubt a husband can maintain a suit for the restitution of the conjugal rights in a civil Court against his wife, but the decree of the restitution of the conjugal rights is in the discretion of the Court whose duty it is to find out, if there be a cruelty of a degree rendering it unsafe for her if she is ordered to return to the husband's house". In the Principles of Mahomedan Law by Mulla, number of defences are noticed to the suit for restitution of conjugal rights by the husband. These and others initially fall for consideration by the Court which is called upon to decide, whether restitution ought to be ordered by directing the wife to return to the conjugal domicile of her husband. In the ultimate analysis, the issue boils down to adjustment of human relations and force has no role to play in it. If a decree for restitution of conjugal rights is passed by a Court, only mode of its execution provided in rule 32 of order XXI Civil Procedure Code manifestly suggested for an indirect pressure for its enforcement. Only process which could issue in execution of a decree for restitution of conjugal rights is that of attachment of property but not detention for compelling the wife to go and live with the husband. MtSheo Kumari and others versus Mathura Ram--A.l.R. 1936 Allahabad 657, Imam Shariff and another versus Abdul Manaf-P.L.D. 1952 Dacca 465 are in point. Unfortunately, neither the first Court which gave the judgment of dismissal nor the second Court which sat in appeal on it attended the issue touching the exercise of discretion governing the grant of restitution of conjugal rights. Thus, it is a clear case of failing to exercise jurisdiction vested in a Court of law. There are certain limits which the law places upon the power of the Court in dealing with a case before it in exercise of constitutional jurisdiction. Therefore, the question whether restitution should or should not be allowed in the existing circumstances cannot be finally resolved by this Court. Primarily, it is firstly the duty of the Court which is charged with jurisdiction to decide on it. The couple could not be left in impasse to suffer for ever. If the things are allowed to stand as they are, that is the only course which it would lead to. An effort must be made to save the marriage unless it is seen to be irretrievably breaking down. As the Courts below did not attend to the question relating to grant of discretionary relief of restitution of conjugal rights in its true perspective, their conclusions could not be termed sound and legal. In view of the aforesaid, petition is allowed, impugned judgment and decree of Additional District Judge, in so far as it related to relief of restitution are set aside and the case is remanded to learned District Judge, Attock for deciding afresh whether the husband is entitled to relief of restitution of conjugal rights. ^v Appeal shall proceed to hearing on existing records but if need be, it shall be open to the learned Court to take additional evidence and the parties also to supplement the record with additional material to assist satisfactory decision of the remanded appeal. There shall be no order as to costs in this Court. Parties shall appear before the learned Judge below on 24.4.1991. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 448 PLJ 1991 Lahore 448 Present: KHALILUR REHMAN KHAN, J Mian HAMEEDUL HAQ etc. --Petitioners versus TAJ COMPANY LTD. efc.-Respondents. [Civil Original No.2 of 1991, dismissed on 29.1.1991]. (i) Companies Ordinance, 1984 (XLVII of 1984)-- —-Sv284--Creditors of company-Meeting of-Calling of-Prayer for-Contention that where arrangement or compromise is proposed, Court should preferably direct calling of meeting of creditors and thereby leave it to them to consider reasonableness, utility or practicability of proposal made, as they are best protectors of their own interests—This power vested in Court is a discretionary power aad is to be exercised applying its judicial mind-Held: Court is not to pas oiler uniess it is satisfied that it is a fit case to do so. [P.454]A (1981) 51 Camp. Cas. 266 (Bom.) and (1975) 45 Comp. Cas. 248 (Guj.) rel . (ii) Companies Ordinance, 1984 (XLVII of 1984)-- —&284-Crafitors of company-Meeting of-Calling of-Prayer for-Order Section 284 is to be passed where proposal for compromise or is between company and creditors or class of creditors etc.— Ex-Managing Directors of Comapny nor Board of Directors nor y of creditors are in favour of this proposal-Neither reasonableness nor feasWity nor utility of proposed scheme has been established-Held: No case is made out for orders or directions prayed for—Petition dismissed. • [P.457]F,G & H (ml Companies Ordinance, 1984 (XLVII of 1984)-- —S.284—Creditors of company-Meeting of--Calling of~Prayer for—77 Petitioners claiming to be creditors, have put in proposal for calling of meeting of creditors-There is nothing on record to show that they are in fact creditors and what amount of deposits is made by them-Other depositors who are being represented and who are much more in number, opposed this request-­ No precise and specific proposal was made in petition-Petitioners do not qualify to be a class of creditors under Section 284(1) & (2) of Ordinance- Commonality of interest held in company can be considered for treating holders of such interest as one class-Held: Petitioners cannot be termed as a "Class of Creditors" within meaning of Section 284(1) of Ordinance entitled to maintain petition. [Pp.455,456&457]B,C,D & E (1982) 2 QB 573 (CA) and (1970) 40 Comp. Cas. 819 (Guj.) ref. Dr. Abdul Basit, Advocate for Petitioners. MrSaleem Sehgal and Mr.Hamid Lalif Sharif, Advocates for Respondents. Ch~.\fuhammad Farooq, Deputy Attorney General. Mr.Naazar Khan, Advocate, one of the Administrators (of Taj Company). Dates of hearing: 27,28 and 29.1.1991. judgment This petition under Section 284 of the Companies Ordinance, 1984, was filed on behalf of 121 persons, who statedly have deposited different amounts with the Taj Company Limited, for seeking an order to hold the meeting of all persons falling in the Class of creditors, who have invested amounts in the respondent-Company to be conducted under an Officer appointed by the Court to propose an arrangement to effectively safeguard the deposits and to otherwise ensure compliance with the terms and conditions on which these deposits have been received. 2. The assertions made for seeking the aforesaid order are that on a move by the Registrar of Companies, this Court vide order dated 19.12.1990 has appointed a Board of Administrators, observing that prima facie the affairs of the respondent-Company are being conducted in an unlawful and fraudulent manner as well as contrary to the provisions of Memorandum of Association. It is added that the manner in which the Board of Administrators is functioning shows that no proper administration of the affairs of the respondent C mpany has been carried out and that the administrative decision-making is completely absent and instead the approach of an official liquidator has been adopted. This spells sure disaster for all the Creditors including the petitioners and that the prevailing situation is unacceptable to them. It is further averred that attitude to avoid decisions is to be found in interim Report No.3 dated 12.1.1991 of the Board of Administrators made in relation to Bahawalpur Board Mills Limited as well as demand to hold a creditors' meeting. This demand was made through a representation dated 2.1.1991 submitted to the Board of Administrators. Report No.3 has been termed as "routine functioning of official liquidators and an illustration of failure to take crucial decisions". It is asserted that one of the Members of the Board is not in a position to devote time to the affairs of the Company on account of personal reasons, the other is not stationed at Lahore and the third appears to be mentally equipped to be a good official liquidator but has shown little aptitude as an effective administrator and therefore, it is necessary that the interim arrangement of the Board of Administrators be terminated forthwith. With these pleas and assertions the order and directions to supply the list of all the persons including the firms/companies who had made the deposits and to issue public notices in the Daily Newspapers of Pakistan and Daily Newspapers of foreign countries for holding a creditors' meeeting wiih the suggested Agenda for the Meeting, have been sought. 3. DrAbdul Basil, Advocate, learned counsel for the petitioners, at the outset sought deletion of the names of petitioners No.l to 43 as he did not have the Wakalatnamas executed by these persons for the purpose of present petition and also that of Fateh Muhammad, petitioner No.74 who had withdrawn his Wakalatnama. The names of these petitioners were, therefore, deleted. After deleting these names, this petition will, therefore, be treated to have been filed by 77 petitioners. 4. DrAbdul Basil, Advocate, learned counsel for the petitioners, during arguments submitted that though the arrangement proposed in the petition has been opposed by the other creditors, the ex-Managing Director, the Board of Administrators and the Registrar of Companies, still the petilioners are lo be treated as a "Class of Creditors" in themselves and such a proposal made by any Class of Creditors is to be put for consideration in the meeting of that very Class of Creditors. In support of this plea reliance was placed on In re-application under Section 153 & 153-A Companies Act 1913 v. Messrs Hunza Central Asian Textile & Woolen MiMs Ltd. Rawalpindi (PLD 1976 Lahore 850). He argued that criterion for treating any group of Creditors as a distinct Class is the possession of such common characteristics as have a retional nexus with proposal for arrangement made as contemplated by Section 284(1) of the Companies Ordinance and that the petitioners are to be treated as a distinct class of creditors who seek converskM of their deposits into Shares/Equity of Taj Company Limited and association with the management and affairs of the Company. He emphasised that the common characteristic is the proposal to convert their investment into Shares/Eujirity of Taj Company Limited; that even a single creditor irrespective of the vame of his interest is qualified to make an application under Section 284 Companies Ordinance and that only such creditors making the proposal to which they are commonly interested will be voting in the meeting of the Class of Creditors and the proposal if carried by the majority in number representing 3/4th in value of that very Class of Creditors, will come up for sanction of the Court. 5. The Registrar of Companies in its reply has opposed the petition with the assertions that the application is pre-mature at" this stage as the Board of Administrators is already in the process of ascertaining the correct and factual position with regard to the investors/depositors as also the financial position of the Company and that unless the entire facts are before the Court, no useful purpose would be served by convening the Meeting. It is added that the Court has already directed to issue public notices calling the depositors to file their respective claims. The independent Auditors appointed by the Board of Administrators have already submitted their report (which has been placed on record with Report No.4). The other assets of the Company are under process of being located, identified, and the investors/depositors have also been required to submit information as to their investment and that the number of creditors is not yet known as according to the report of Administrators, the record available appears not to reflect the true number of the creditors and the deposits received. 6. Qazi Zahid Hussain, Advocate, appearing for a set of 99 investors, argued that the application is incompetent as such a meeting can be called only where the Company is liable to be wound-up while the case of the petitioners is that hi case he Company is run on the lines they suggest it will earn profit. Learned counsel referred to sub-section (6) of Section 284 in support of this plea. He added that the proposal of conversion of the amounts of deposit into Shares or into Debentures is neither beneficial nor bona fide as the creditors under Section 405(5) of the Companies Ordinance are to receive preferential treatment over share-holders as well as debenture holders. He submitted that in any case the application is pre-mature as the definite list of the creditors is yet to be prepared and finalised as the record of the Company made available does not reflect the true picture of the deposits received. 1. Haji Muhammad Abdullah Hashmi, who claims to be the President of Association of Depositors, in his reply has also opposed the petition. His case is that the application is neither bona fide nor the proposal made secures the interests of the depositors as after becoming share holders, the depositors will lose preferential status of creditors. It was added that they fail to understand whose interest Dr Abdul Basil Advocate, learned counsel for the petitioners, is in reality securing and safeguarding as in one petition he is representing 77 depositors while in other petition, on behalf of Workers Union, order is sought for payment of salaries to them for the period they have not admittedly worked as Bahawalpur Board Mill stands sealed and in both these petitions he is pressing the plea that Bahawalpur Board Mills should be allowed to be run by the ousted lessee as it will bring to the Bahawalpur Board Mills Rs.Five Lacs lease money. He argued that in the veil of representation of 77 depositors who appear not to have been made aware of the true effect of the proposal of conversion of deposits into Share/Equity, the interest of the ousted lessee is being sought to be secured, 8. Mr.M.Saleem Sahgal, Advocate, learned counsel for ChAli Muhammad, Managing Director of the respondent Company, in opposition of the petition, argued that the application is incompetent as:- (i) no specifice proposal of compromise or arrangement has been made; (if) the proposal or the arrangement has not been agreed to by the Company through its Board of Directors or the Board of Administrators and as such it cannot be termed as a compromise or arrangement between the creditors and the Company; and («'/) the petition is liable to be dismissed summarily as the proposal made is neither bona fide nor beneficial to the interests of the depositors and otherwise the proposal is being opposed by the overwhelming majority of the depositors presently pursuing these proceedings. He argued that the proposal to issue shares in lieu of deposits made cannot be allowed under the Companies Ordinance as .shares can be issued only to the financial institutions under the law and that no other rights can be claimed except those recognized by the law. In support of these submissions reference was made to various judgments as well as to the provisions of the Companies Ordinance, 1984. 9. Mr.Muhammad Naazar Khan, Member Board of Administrators, argued that such an application can be moved by the company alone and not by the creditors; that the proposal in terms of Sections 284/286 of the Companies Ordinance has not been spelled out either in the petition or in the representation dated 2.1.1991. The position taken in the Court while arguing the matter to the effect that the petitioners be issued shares in lieu of amounts deposited by them or debentures of equal value be issued with the right to participate hi the affairs of the Company is neither permitted by law nor it secures the interests of the petitioners; the proposal made by 77 creditors is neither feasible nor practicable nor is likely to succeed as these petitioners do not form the requisite majority and that the plea that these 77 petitioners can be treated as a Class of Creditors by themsehres is without merit. 10. Eh-Abdul Basil, Advocate, learned counsel for the petitioners, hi reply firstly submitted that the investors are not seeking to become shareholders in such a manner as to render themselves liable to contribute towards any liability in the event of liquidation. According to him the petitioners want that in lieu of their investment they be allocated shares in the Equity of the Company or transferable debentures with the right to control the affairs of the Company so that they may sell/dispose of the same in the market. He finally took up the position that his earlkr proposal to covert the amount of deposits in shares be treated to have been withdrawn. He submitted that on his advice the petitioners primarily want that they should obtain control over the affairs of the company and also such rights in the Equity of the company which they may, if need be, sell in the Equity Market as in that manner the depositors hope to realize to a reasonable extent the investment made by them as otherwise in case of liquidation of the respondent Company they will be receiving nothing in lieu of their investment made. He emphasised that the offer of leasing of Bahawalpur Board Mills to run the Mills on payment of Rs.Five Lacs per month is the best offer and the same should be accepted as in that manner the respondent Company will have rupees five lacs for payment to at least 500 investors at the rate of Rs.1000/- per month. He was asked to point out the principle on the basis of which 500 out of almost 30000 investors can be selected for payment out of the aforesaid amount and that the above said proposal is also economical, what to say of being the best offer for the company, keeping in view the total monthly liability of the company on account of loam and its capital investment. These questions were, however, not answered by the learned counsel. 1L I have considered the respective submissions of the learned counsel for the parties and have also gone through the pleadings as well as the reports submitted by the Board of Administrators. 12. The criticism levelled against the Board of Administrators is unfounded. The Board has taken charge of the Lahore Office of the respondent Company and has initiated investigation into its affairs. They have been acting in this period and the Chartered Accountants appointed by them have also submitted the interim report. This report has been placed on record alongwith Report No.4. According to the interim report of S.M.Masood and Company, Chartered Accountants, the estimated liability under Deposit Scheme comes to Rs.133850000/- and the shortfall in meeting the obligations for liabilities under the Deposit Scheme comes to Rs.1051865159/-. The Board has finalized the Scheme to computerise the Depositors Ledger at Lahore so as to provide maximum information regarding various categories of depositors. They have also invited, through press, depositors to submit information of their deposits supported by documents so that the position as to the number of depositors and the amount deposited could be ascertained. The estimate of the sums deposited by different persons, Firms and Companies reaches the figure of Rs.2000/- millions said to have been deposited by about 30000 persons. The exact details as per report, and the total sum is being ascertained through detailed audit and by computerisation of record of the Company and by registration of the depositors. The amount available in the Accounts maintained with different Banks does not appear to be sufficient even to meet the outstanding liabilities. The Board of Administrators are (?) of the view that a substantial amount is needed as working capital to run on economic tines the mam business of Taj Company Limited. It is hi the background of aforenoted facts that feasibility, reasonableness and utility of the proposal made by the petitioners is to be seen and determined. 13. The plea that where arrangement or compromise is proposed, the Court should preferably direct calling of the meeting of the creditors and thereby leave it to the creditors or members to consider the reasonablenss, utility or practicability of the proposal made as they are the best protectors of their own interests, is without merit. The very perusal of Section 284 of-the Companies Ordinance would show that the power vested hi Court is a discretionary power and is to be exercised applying its judicial mind and after being satisfied about the merits of the application. Obviously the Court is not to pass order unless it is satisfied that it is a fit case to do so. Reference may be made to Taxmann's Company. Law Digest Volume-II wherein at Page 922 two cases from the Indian Jurisdiction have been reported. These are Sakamari Steel & Alloys Ltd. In re (1981) 51 Comp. Cas. 266 (Bom.) and Krishnakumar Mills Co. Ltd. In re (1975) 45 Comp. Cas. 248 (Guj.) 14. In the first case, one of the questions was "whether the scheme should be turned out at the initial stage or the creditors be given opportunity to consider what was best in their interest. It "Was observed that the language of Section 391 (1) [corresponding Section of Companies Ordinance, 1984 is 284(1)] is manifestly clear about the discretion vesting in the Court hi granting an application and that surely the Court will not pass an order unless it is satisfied that it is a fit case to do so. In the other case, it was observed that the principles which the Court has to bear in mind in granting sanction are; firstly, whether the provisions of the statute have been complied with or not; and secondly, whether the majority has been acting bona fide or not, the Court has also to consider whether the scheme as proposed is reasonable and practicable of being implemented. The ery fact that the two secured creditors of the value of Rs.22 lacs, which was more than half the total value of the creditors, secured as well as unsecured, were opposing the scheme, it could not be urged successfully that the scheme was practicable of implementation. It was finally held that the request for convening the meeting could not, therefore, be accepted. 15. In the instant case only 77 petitioners claiming to be the creditors have put in this proposal. Nothing whatsoever has been placed on record to show that they are in fact the creditors and if they are what is the amount of deposits made with the company. The other set of depositors who are being represented and who are much more in number, opposed this request. The bona fide of the proposal apart, the reasonableness as well as practicability of the proposal has not been established. In the petition, the proposal is to hold the meeting of all the persons falling in the class of creditors who have invested in the respondent company. The purpose of the meeting is to propose arrangement to effectively safeguard the eposits and to ensure compliance with terms and conditions on which deposits were received. No precise and specific proposal was made in the petition. On pointing out the aforesaid deficiency, the plea taken was, that in the representation dated 2.1.1991 (copy of which has been attached with the petition) I specific proposal has been made. This proposal reads: "A date be publically announced for a Meeting of all the Creditors to be held for the purpose of converting their loan amounts into the Shares/Equity of Taj Company Limited and of otherwise devising ways of associating them with the management of the affairs of the Company". Dr Abdul Basil, Advocate, ultimately withdraw the proposal as to the conversion of the amount deposited into shares in view of the reliance of the learned counsel for the respondent on provisions of Sections 86, 87, 92, 120, 182 and 187 of the Companies Ordinance in support of the contention that it was only the financial institutions which can be issued shares, securities and redeemable capital documents. 16. Learned counsel for the petitioners then argued that the proposal finally is that redeemable and transferable Debentures with the right to control the affairs of the Company be issued in lieu of the amount deposited. This plea, again does not keep in view the prohibitions contained in Section 114 of the Companies Ordinance. These proposals, one after the other in fact reflect the desperate position in which these depositors find themselves or due to realization that in case of winding-up, these depositors may not be able to receive reasonable amount against the deposits made by them. 17. The formidable obstacle in the way of the petitioners is that they have put in a proposal which does not qualify them to maintain the petition as a "Class of Creditors" within the meaning of sub-sections (1) and (2) of Section 284 Companies Ordinance. The plea that such common characteristics as have a rational nexus with proposal for arrangement made is the only criterion contemplated by Section 284(1) of Companies Ordinance, 1984, for treating any Group of Creditors as a distinct Class, is without merit. On the question of "Cb. f of Creditors" firstly reference may be made to sub-section (6) of Section 284 . ' the Ordinance. This sub-section reads as under:- "(6) In this section the expression "Company" means any company liable to be wound up under this Ordinance and the expression "Arrangement" includes a re-organization of the share-capital of the company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both these methods and for the purpose of this section unsecured creditors who may have filed suits or obtained decrees shall be deemed to be of the same class as other unsecured creditors". It will therefore be seen that all unsecured creditors who may have filed suits or obtained decrees are to be deemed to be of the same Class as other unsecured creditors. This very question came to be considered in Sovereign Life Assurance Co. v. Dodd (1892) 2 QB 573 (CA). It was observed that the word 'class' is vague and to find out what is meant by it one must look at the scope of the section, which is a section enabling the Court to order a meeting of a Class of Creditors to be called and, that it seems plain that one must give such a meaning to the term 'class' as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest. In the case (a case from Indian Jurisdiction) of Maneckchowk&AhmedabadMfg. Co. Ltd. In re (1970) 40 Comp. Cas. 819 (Guj), it was observed as under:- "Broadly speaking a group of persons would constitute one class when it is shown that they have conveyed all interest and their claims are capable of being ascertained by any common system of valuation. The group styled as a class should ordinarily be homogeneous and must have commonality of interest and the compromise offered to them must be identical. This will provide rational indicia for determining the peripheral boundaries of classification. The test would be that a class must be confined to those persons whose rights are so similar as not to make it impossible for them to consult together with a view to their common interest". Thus it is the commonality of the interest held in the company which can be considered for treating the holders of such interest as one Class. The possession of common characteristics or agreement with the proposal for arrangement made will not render such persons making the proposal as a distinct class. If a set of persons making the proposal because of the commonality of the interest in the proposal of compromise or arrangement is to be treated as a distinct class within the meaning of Section 284 then there would not be any proposal which can be defeated by the majority as all such persons making the proposal will rank for treatment as a Class by themselves. Such interpretation would render sub-section (2) redundant. The petitioners as such cannot be termed as a "Class of Creditors" within the meaning of Section 284(1) of the Companies Ordinance entitled to maintain the petition. If the interpretation which the learned counsel for the petitioners wants to place on this provision is accepted, then there would remain no need to hold the meeting for ascertainment of wishes of majority in number representing 3/4th in value of the creditors or class of creditors as the creditors making the proposal being themselves a distinct and separate class on account of making the proposal would obviously support the proposal. 18. There is yet another obstacle which the petitioners cannot surmount. The order to hold a meeting under Section 284 is to be passed where the proposal for compromise or arrangment, is between the Company and the creditors or Class of Creditors etc. It is inherent in the Section that the Company must consent to the proposal made. In the case of Re Savoy Hotel Ltd. (1981)3 All ER 46 it was held that the Court cannot approve a scheme unless it is proposed by the Company or if it is proposed by some one else, unless the Company has consented to it by a resolution passed in the General Meeting. It is to be seen that the statute makes the majority of the creditors or a class of creditors bind the minority; it exercises a most formidable compulsion upon dissentients, or would be dissentient creditors and it therefore requires to be construed with care so as not to place in the hands of some of the creditors the means and opportunity of forcing dissentients to do that which it is unreasonable to require them to do or of making a mere jest of the interest of the minority. Neither the ex-managing directors of the Company nor the Board of Directors nor the majority of the creditors who are pursuing the proceedings pending in the Court are in favour of this proposal. 19. This Court is not intended to act as a post office with no discretion or power to call a meeting. While considering an application under Section 284(1) the Court is to receive satisfaction as to the prima facie case that the compromise or arrangement is genuine, bona fide and would be in the interest of the creditors of the company. The Court is to be satisfied about the justness for a direction to the share-holders or creditors to meet together to consider the proposal, if any. In my view the order under Section 284 of Companies Ordinance can be made only if the Court considers the feasibility or otherwise of the proposed scheme and bona fide of the applicant. In the instant case, neither the reasonableness nor the feasibility nor the utility of the proposed scheme has been established. The proposal has not got the consent of the company either through the exmanagement or through the Board of Administrators. 20. In the circumstances, no case is made out for the order or the directions j prayed for. The petition is without merit and is dismissed with no order as to I costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 458 PLJ 1991 Lahore 458 [Rawalpindi Bench] Present: GUL ZARIN KlANI, J MUHAMMAD SALEEM eto.-Appellants versus MUHAMMAD SIDDIQUE-Respondent R.FA.No.15 of 1983, dismissed on 3.4.1991 Civil Procedure Code, 1908 (V of 1908)-- —-O.VII R.ll-Deficiency in Court fee-Payment after stipulated period- Whether plaint was to be rejected-Question of--Court must first determine with exactitude amount of court fee payable on a document filed before it and give an opportunity to litigant to make good deficit court fee within a given time and if default takes place, it can then have recourse to punitive provisions of Order VII Rule 11 (b) & (c) of C.P.C.-In this case, there was no such determination and consequent requisition ever made by trial Court—Held: Plaintiff was neither negligent nor contumacious in matter of payment of court fee and could not be visited with penalty for rejection of his plaint on that score-Appeal dismissed. [P.461JA&B PLD 1983 SC 227, PLD 1984 SC 289,1984 PSC 565, PLD 1954 Lahore 228,1980 CLC 186,1980 CLC 545 and 1984 CLC 3428 rel. Kh.Muhammad Yousaf Saraf, Advocate for Appellants. Mr.Muhammad Munir Peracha, Advocate for Respondent. Dates of hearing: 2 & 3.4.1991. judgment First appeal to this Court by the vendees-defendants in the pre-emption suit involved decision of a sole point about the effect of delayed payment of required court-fee on the plaint. We may straightaway proceed to state, with brevity, the case of the appellants presented for our scrutiny and once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by this Court survives at all, after number of decisions of the Supreme Court, on the question of payability of court-fee on documents and its effect on limitation. On 4.12.1978, Khalid Ahmad, and Kamran Khan sold 107 kanals, 18 marlas of land, at mauza Fateh Ullah, in Tehsil Attock to Mohammad Saleem son of Abdul Ghafoor, Channan Din, and, Hazrat Din sons of Roshan for a price of Rs.60,000/- through a registered sale deed of even date. Mohammad Siddique pre-empted the sale on the ground of being a collateral of the vendors and expressed willingness to pay Rs.20,000/- as the price for the land which, according to the averments in the plaint, was truly fixed and paid and was also the real market value of the land at the time of its sale. Pre-emption suit was instituted on 4.12.1979, in the civil Court at Attock. In para-6 of the plaint, value for purposes of Court-fee and jurisdiction was assessed at Rs.20,000/- calculated on fifteen times of the net profits, accruing from the land in the year preceding the filing of the pre-emption suit. Vendees-defendants filed their defence, and, resisted the suit It was submitted that suit was barred by limitation; the land was purchased for Rs.60,000/- and, in addition a sum of Rs.4200/- was spent on purchase of stamp papers, registration fee on the sale deed and District Council fee, which amount, the defendants were entitled to be re-imbursed. Further, right to pre­ empt was denied and valuation of the suit for purposes of court-fee questioned. It was stated that such value was erroneously worked out, and, the Court-fee was pafeble in accordance with the statement of annual net profits--;7jcr paidawar. On 1.12.1979, Reader to the Court reported that naqsha jhar paidawar was not annexed. On the same day, the trial Court passed an order that the suit be registered, summons be issued for 21.1.1980, zar-i-panjum in the sum of Rs,12,000/- be deposited before the date fixed, and after preparation of naqsha jhar paidawar, deficiency in court-fee be made good before the date indicated above. On 21.1.1980, suit was adjourned to 6.2.1980 for submitting written statement and, preparation and filing of naqsha jhar paidawar. Naib Sadar Qanungo, who was present in Court, stated that naqsha jhar paidawar shall be prepared in few days and filed in Court. On 6.2.1980, the trial Court noted that deficiency in the court-fee was made good. Thereupon, on 28.7.1980, the trial Court framed as many as seven issues but in regard to the objection relating to insufficiency of court-fee observed that:- "Issue of deficiency in court-fee has not been framed because the plaintiff has made up the deficiency within time provided by the Court". It may be observed here, that court-fee stamps of Rs.15,000/- were filed in Court on 62.1982, and, schedule of net profits indicated Rs.15260/- accruing from the land in the preceding year. Fifteen tunes of the net profits came to Rs.2,28,900/-. On 13.1982, the defendants filed an application for framing of a separate issue on the objection relating to payment of deficient court-fee contained in para 6 of their written statement. On the same day, the trial Court dismissed the application by the order which reads as below: - "I have gone through the record. The order of my learned predecessor dated 6.2.1980 mentions that the deficiency in the court-fee has been made good. Similarly, at the time of the framing of the issues on 28.7.1980, my learned predecessor had mentioned that the issue of deficiency in the court-fee has not been framed because the plaintiff has made up the deficiency within the time provided by the Court. Under these circumstances, the Court cannot, on this application for the framing of an additional issue, act as an appellate authority of my learned predecessor and besides this application, for obvious reasons, cannot be treated as review application. Consequently, this application is rejected in limine". Against this order, defendants preferred a revision to learned District Judge, Attock. It came to be heard by a learned Additional District Judge who allowed it on 6.7.1982 by directing that an issue about inadequacy of court-fee on the plaint be settled and decided after giving an opportunity for producing evidence to either party. It shall be advantageous to refer to para 3 of his judgment because of its relevance to the succeeding events in the suit. It runs:- "The present case was instituted on the last day of limitation dated 4.12.1979 and the impugned sale was effected on 4.12.1978. The report of the Ahlmad was called by the learned Civil Judge on 6.12.1979 who submitted the same with the objection that 'naqsha jhar pedawar' has not been annexed with the plaint. On 6.12.1979, the learned Civil Judge passed an interim order that the plaintiff is directed to get the 'naqsha jhar pedawar' prepared for purposes of court-fee before 21.1.1980. On 21.1.1980, the learned Civil Judge was on leave and the Reader of the Court passed an order and adjourned the case to 6.2.1980. Since there is involved a question of limitation, the Reader could not adjourn the case from 21.1.1980 to 6.2.1980. He was not competent to extend the period as given above for submitting the 'naqsha jhar pedawar'. This point needs further consideration by the learned trial Court. The order dated 6.2.1980 does not disclose whether the period between 21.1.1980 and 6.2.1980 was covered by limitation while giving such a longer adjournment by the Reader". Upon receipt of records from the revisional Court, the trial Court added issue No.6-A which read:- "Whether the plaintiff has made good the deficiency in court-fee within the period allowed by the Court? If not what is its effect? O.P. Parties". Upon consideration of evidence led in the suit by the parties, the trial Court found for the pre-emptor and decreed pre-emption in his favour, on 5.4.1983, subject to his paying Rs.63,400/- (Rs.60,000/- as sale price and Rs.3400/- as expenses incurred on sale), by 3.5.1983 failing which the pre-emption suit was to stand dismissed. Against this judgment and decree of the trial Court, vendees appealed to this Court. It was admitted to hearing on 17.5.1983. It may be stated at the outset that, neither superior right of pre-emption nor the price payable for the land fixed in the impugned judgment is in dispute, and, as said in the opening paragraph of the judgment, only issue debated seriously at the hearing by Mr.Saraf was the effect of delayed payment of court-fee on the plaint in the pre-emption suit and, this point, in view of weighty and binding pronouncements of Supreme Court in Mst.Parveen versus MstJamsheda Begum and another-P.L.D. 1983 S.C. 227, Siddique Khan and 2 others versus Abdul ShakiirKhan and another-P.L.D. 1984 S.C. 289, Sultan versus AzharAli Shah etc- -1984 P.S.C. 565, Civil Petition for Leave to Appeal No.438-R of 1988 decided on 24th February, 1990 and the judgments of this Court in Karim Bakhsh versus Qadir Bakhsh and another--?. L.D. 1954 Lahore 228, Malik Jam Muhammad versus Shukarud Din and 6 others-1980 C.L.C. 186, Muhammad Sharif Khan versus Ghulam Farid and 4 others-1980 C.L.C.545, Muhammad Yasin and another %ersus FajarAli (Represented by 7 Legal Representatives)-^^ C.L.C. 3428 is not res-integra. Clear rule laid down by the Supreme Court to be followed in such matters is that a plaint cannot be rejected under Order VII, Rule ll(b), (c) Civil Procedure Code, for under-valuation or insufficiency of stamps unless the plaintiff is first given a chance to correct the valuation or to supply the deficient stamps, as the case may be, within a time to be fixed by the Court and he fails to do so. Further, the Courts ought not to pass a composite order requiring the valuation of the subject matter in the plaint to be corrected and simultaneously additional court-fee to be paid on the correct valuation. .Requiring a plaintiff to increase the valuation and further requiring him to pay additional court-fee are two distinct orders with different consequencess arising out of their being not complied with. The Court must first determine with exactitude the amount of court-fee payable on a document filed before it and give an opportunity to a litigant to make good the deficit court-fee within a given time and if default takes place, it can then have recourse to the punitive provisions under Order VII, Rule 11 (b), (c) Civil Procedure Code, as the case may be. In the instant case, no such determination and consequent requisition was ever made by the trial Court. Instead, the plaintiff made good the deficit Court-fee on the plaint in accordance with the computation on the basis of fifteen times of the schedule of net profits prepared by the Naib Sadar Qanungo. In this view, he was neither negligent nor contumacious, in the matter of payment of court-fee to the State and could not be visited with the penalty for rejection of his plaint on that score. Question of limitation was not involved in the delayed payment of court-fee as held by the Supreme Court in the aforenoticed cases. Before closing, we must observe that the trial Court unnecessarily in a labyrinthine discussion under issue No.6-A tried to ignore the judgment dated 6.7.1982 passed in revision taking it to be without jurisdiction, which otherwise, in our opinion, was clearly binding upon him being a Court subordinate to it. In view of the foregoing discussion, though we confirm the judgment and decree of the Court below and dismiss the appeal but our reasons are different from those of it. However, in the circumstances, there would be no order as to costs of this appeal. Records be returned. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Lahore 462 PLJ 1991 Lahore 462 Present: MUNIR A. SHEIKH, J MUHAMMAD DIN etc.--Petitioners versus Mailk NOOR MUHAMMAD etc.--Respondents. Civil Revision No.1856 of 1990, accepted on 27.2.1991. (i) Advocate-- .... Advocate engaged by a party-Statement made by Advocate based on erroneous opinion for withdrawal of appeal-Whether statement was binding on his clients-question of~On date when statement was made by counsel for petitioners for withdrawal of appeal, petitioners were not present in Court-It was a statement on basis of his opinion on a point of law that remedy of petitioners lay in approaching High Court-Held: It is firmly settled law that any admission on a point of law, much less admission based on erroneous opinion on a point of law, does not bind maker of admission or any other person to whom he represents in a judicial proceedings before a Court of law. [P.466JA (ii) Civil Procedure Code, 1908 (V of 1908)- —O.VII R.II read with Section 12(2)~Suit alleging fraud committed by respondents-Rejection of plaint-Challenge to-From averments made in plaint, suit does not appear to be barred by any law and Section 12(2) of CPC- -Held: Withdrawal of appeal by counsel for petitioners on basis of erroneous admission that remedy of petitioners was to approach High Court under Section 12(2) of CPC and dismissal of appeal on that assumption, is not sustainable-Held further: Petitioners cannot be rendered remedyless as their application made before High Court in writ petition had already been disposed of with a direction to pursue remedy somewhere else-Petition accepted and case remanded to trial Court for decision in accordance with law. [Pp.467&468]B,C & D Mian Ataur Rehman, Advocate for Petitioners. Ch.Mushtaq Ahmad Khan, Advocate for Respondents Nos. 1 to 9. Mr.Muhammad Yousaf Klian, Advocate for Respondent No.ll. MrAmjad Hussain Syed, Advocate for Respondents Nos. 12,16 & 17. Date:of hearing: 27.2.1991. judgment The facts forming the background of this case as ascertained from the documents on the record shortly stated are that the land in dispute measuring 548 kanals 14 marlas against khata No.81 dated 26.6.1959 was allotted by the Settlement Department under the settlement laws to one Altaf Hussain on whose death mutation of inheritance was sanctioned in favour of Makhdoom Hussain Hnssain sons of Mushtaq Hussain as his heirs. Makhdoom Hussain sold the land to one Ghulam Muhammad son of Muhammad Oil draqg^ sale deed registered on 31.7.1965 who further alienated it to one l Ah sob of Muhammad Bakhsh. This Nemat Ali transferred the land to one Dogar and Nabi Ahmad Jat. The petitioners claim to have the land from Ghulam Hassan son of Ali Muhammad through i Nol6 sanctioned on 19.1.1971 for a consideration of Rs. 15.000/- and tibem they had been in its possession as owners. The aforesaid Altaf Hussain ifcc oqgpBl aflottee was also allotted land against his claim in the four revenue . of District Sheikhupura. One Malik Noor Muhammad respondent No.l application under Sections 10/11 of the Displaced Persons (Land t) Act, 1958, on 30.5.1972 before KhAbdul Rashid, Additional Commissioner (Land) exercising the powers of Chief Settlement for cancellation of allotment of original allottee who held that the to said Altaf Hussain in respect of land situated in Kakkar Gil and would remain intact while the other allotments were ordered to be . The petitioners feeling aggrieved filed an appeal before the Settlement (Lands) Punjab which was disposed of through order dated 6JCL1973 in which it was held that on verification the entitlement of the allottees had been reduced to 3146 P.I.Units. Thus the allotment in excess of the said miOtii dam should be cancelled but the chronological order of allotment should be kept • view and only subsequent allotments over and above the due should be cancelled. According to the plaintiff as contended by his tfats would save the allotment of the land in dispute purchased by the 2. It is the case of the petitioners that during the pendency of their said : against the order dated 30.5.1972 in which a stay order was issued in dbar fnov, the land in dispute was proposed in the name of Zohra Fatima on 262J973 and the same was confirmed on 11.3.1973 being land which became pursuance of order dated 30.5.1972. It is their case that these entries : forged, fabricated and ante-dated having been done through fraud and mis­ representation. 3. Malik Noor Muhammad defendant No.l filed Writ Petition No.l606/R of 1976 m this Court alleging that he being tenant of the portion of the land in depute was entitled to its transfer under the existing scheme, as such, the order of in favour of Msf.Zohra Fatima was without lawful authority and the : may not be implemented. A compromise was affected and the writ petition disposed of by this Court in terms of the compromise through order dated 2QA198L The petitioners filed a petition for review of the said judgment which was dismissed with the observations that to establish the assertions made by the petitioners recording of evidence was necessary which was not permissible in Constitutional jurisdiction and the petitioners if so advised could seek their remedy available under the law. This was through order dated 17.5.1981 which was challenged in I.CA. by the petitioners which was dismissed through order dated 30.5.1981. The petitioners took the matter to the Supreme Court by way of Petition for Special Leave to Appeal which was also dismissed on 93.1982. The allotment from the name of Altaf Hussain the original allottee was cancelled by the Settlement authorities vide order dated 18.7.1984 which was obviously in pursuance of the order dated 30.5.72 passed by the Additional Settlement Commissioner with powers of Chief Settlement Commissioner. The petitioners challenged the said order in the suit from which this revision petition has arisen in which it was also averred that the compromise between the parties in W.P.No.l606/R of 1976 was affected by practising fraud and the true facts had been concealed. It was also averred that the said compromise was not binding on the petitioners on the grounds given in the plaint. The case of the petitioners was that the petitioners were bona fide purchasers for value without notice. They also claimed ownership of the land by way of adverse possession. The genuineness of the allotment in favour of Zohra Fatima and the legality of the order dated 18.7.1984 passed by the Settlement authorities were also challenged. 4. The suit was contested. The defendants No.l to 9 filed written statement whereas defendants No.13 to 14 filed separate written statement as also defendants No.16 and 17 by filing written statement separately. During the pendency of the suit an application was moved under Order 7 Rule 11 CPC through which a prayer was made that the plaint be rejected. This application was accepted by the learned trial Court through order dated 253.1990. It was held that the plaintiffs having failed upto the level of the Supreme Court, as afore­ mentioned and since fraud was alleged in obtaining the order on the basis of compromise from this Court in W.P.No.l606/R of 1976, therefore, the suit of the petitioners was barred under Section 12 (2) of the CPC as such the plaint was rejected. This order was assailed by the petitioners in appeal before the learned lower appellate Court which has been dismissed as withdrawn on 21.7.1990 on the statement of the learned counsel for the petitioners who withdrew the appeal to seek remedy in this Court which has been challenged in this revision, petition. 5. I have given in detail the above-mentioned facts as pleaded in the plaint so as to understand the real controversy raised by the petitioners for ascertaining the correctness of the finding of the learned trial Court that the remedy of the petitioners was under Section 12 (2) CPC and the suit was barred under the said section. 6. It is clear from the plaint that in substance fraud was alleged with regard to obtaining allotment of land by Zohra Fatima from the Settlement authorities during the pendency of appeal of the petitioners against the order dated 30.5.1972 and in pursuance of which Zohra Fatima claimed to have been allotted the land which became available after having been cancelled from the name of the original allottee Altaf Hussain. The assertion of the petitioners regarding order passed by this Court in W.P.No.l606/R of 1976 on the basis of compromise substantially was that the petitioners being not party in the said writ petition and to the therefore, neither the compromise nor the order passed by this and it did not adversely affect their rights and order of Settlement Commissioner passed on 6.10.1973 in their appeal order dated 30.5.1972 was holding the field according to which ; of bad in dispute in favour of Altaf Hussain whcih was subsequently by the petitioners remained in-tact, as such, its cancellation through . 18.7.1984 on the motion Manzoor Hussain defendant was illegal and 9 fie. The plea of fraud regarding proceedings in W.P.No.l606/R of 1976 was •Hardy with reference to concealment of facts from the High Court i.e. t of order of Settlement Commissioner dated 6.10.1973 and nothing more. Hcfdifk»ers also claimed to be bonafide purchasers for value without notice of m dispute and they also claimed ownership by way of adverse possession. ; to firmly settled law in order to determine whether the suit is barred law or not the averments in the plaint are only to be taken into i and assuming the same to be true it has to be seen whether the suit lined under any law. Section 12 (2) CPC is attracted only where a judgment, ; or order of a Court is sought to be challenged on the ground of fraud, misand want of jurisdiction. The suit-of the petitioners relating fo i that they were bona fide purchasers for value without notice, owners of Ifcy way of adverse possession, the compromise affected between the parties in WPJNtoLlfi06/R of 1976 and the order passed thereon was not binding on them ; not party to the same, that the order for allotment of land to Zohra i pursuance of order dated 30.5.1972 was illegal having been superseded order passed by the higher authority dated 6.10.1973 and that the : in favour of Zohra Fatima was fabricated and forged one and that the order for cancellation of land in the name of original allottee dated B.7J9S4 passed by the Settlement authorities on the motion of Ch.Manzoor HHHBft defendant was illegal do not in any way fall within the purview of Section 12 (2) CPC This Court while dismissing the application of the petitioners seeking of order passed in W.P.No.l606/R of 1976 clearly observed that the i made by the petitioners required recording of evidence which was not in Constitutional jurisdiction, as such, the petitioners were advised to remedy under the law. The said order rejecting the application of the ptlftMMifj: seeking review was upheld in I.CA. as well as by the Supreme Court which would mean that the order of the learned Single Judge observing that the petitioners could seek remedy under the law was maintained which did not debar the petitioners from seeking remedy by filing the suit. 7. The appeal filed by the petitioners was sought to be withdrawn by his learned counsel on the assumption that the petitioners under the law could seek remedy only from this Court. The learned lower appellate Court dismissed the appeal as withdrawn through the impugned order dated 21.7.1990. 8. The petitioners have challenged the said order on the main ground that the opinion of the learned counsel on the point of law that the remedy of the petitioners was to approach this Court only and withdrawal of the appeal on the assumption was not binding on the petitioners. 9. The question for determination is whether the opinion of the learned counsel for the petitioners on a point of law i.e. that the remedy of the petitioners was to approach this Court and withdrawal of the appeal on that assumption was bindging on the petitioners and as such the impugned order for dismissal of appeal as withdrawn by the learned lower appellate Court was sustainable. 10. Learned counsel for the respondents on the strength of rule laid down in judgments reported as Messrs Arokey Ltd and another vs. Munir Ahmad Mughal etc. (PLD 1982 S.C.204), Jhang Bahadur vs. Muhammad Pervaiz (1979 CLC 337) Mian Ghulam Muhammad vs. Maulvi Fazal Haq (1979 CLC 518) and Abdul KJialiq vs. Khuda Bakhsh and others (1989 CLC 1316) argued that an Advocate ppointed by a party in the suit had always the authority to affect compromise in the suit on behalf of the party engaging him and make statement accordingly for adjustment of suit or for withdrawal of the suit, therefore, the statement made by the petitioners' learned counsel before the learned lower appellate Court for withdrawal of the appeal was binding on them and they could not turn around and challenge the order dismissing the appeal as withdrawn. 11. It is no doubt correct that an Advocate engaged by a party is empowered to affect comprmoise on behalf of his client and make statement before the Court for adjustment of the suit. In my view the said rule is not attracted to the facts and circumstances of this case. On 21.7.1990 when the statement was made by the learned counsel for the petitioners for withdrawal of appeal the petitioners were not present in Court as is evident from the order of the said date because the petitioners' presence have (?) not been recorded and it was only the presence of heir learned counsel which has been mentioned. The statement made by their learned counsel was not for withdrawal of the appeal simplicitor on the basis of a compromise or for the relinquishment or abandonment of their claim or the relief which they were seeking but it was a statement made on the basis of his opinion on a point of law that the remedy of the petitioners was to approach this Court. In these circumstances in my considered opinion where an Advocate engaged by a party to persue a particular remedy before a forum is of the opinion that under the law instead of the availability of the said remedy a different remedy was available to his client before a different forum, the right course for him was to advise his client and it was for him to accept the said advise or instruct the learned counsel to persue the remedy already invoked. It is firmly settled law that any admission on a point of law much less admission based on erroneous opinion on a point of law does not bind the maker of the admission, nor any other person to whom the maker represents in a judicial proceedings before a Court of law. The matter can be viewed from another angle i.e. that if instead of withdrawing the appeal on the basis of his opinion on the law point the learned counsel had otherwise made concessional statement during the arguments that the remedy of the petitioners was to approach this Court under Section 12 (2) CPC and the appeal had been dismissed on the basis of this concession on a law point, the same could «oy weD be challenged before this Court on the ground that the concession was based on erroneous opinion on law point and as such the disposal of the appeal was not proper on the basis of such concessional statement. In this case nqsrnHI of making admission on a law point during the arguments the learned coQEsel proceeded to make statement for the withdrawal of the appeal but the consequences are the same. If in the former case this could be interfered with on the eroood that the concession made by the learned counsel on a law point was erroneous, this Court is not divested of the jurisdiction to interfere also in the lanex case merely because,the appeal was withdrawn. The law looks to the gndioramrp and not to the form. I have already held that from the statement made m tine plaint the suit does not appear'to be barred by any law and Section 12 (2) CPC therefore, it can safely be held that the withdrawal of the appeal by the learned counsel on the basis of erroneous admission on the law point that the remedy of the petitioners was to approach this Court under Section 12 (2) CPC aoad jfftgnk<ml of the appeal on that assumption is not sustainable. It is pertinent to •ace that the petitioners had allegedly purchased the land as far back as 19.1.1971 and their non-impleadment in any of the subsequent proceedings relating to the fend "m dispute including the writ petition was a matter which has to be looked "mto m order to determine whether orders passed in those proceedings would be ; on the petitioners which is one of the questions to be determined in the Even otherwise an admission on law point erroneously made, in : of the rights of the person making it can be shown to be wrong, as such, it cioald be argued under the law that the disposal of the cases on the basis of such adnsskm was not proper. Viewed from this angle also I am inclined to interfere in the matter as the petitioners cannot be rendered remedyless as his (?) application made before this Court in the writ petition had already been disposed of wih a direction to persue his remedy some where else. 13. Ch-Mushtaq Ahmad Khan, learned counsel for the respondents argued that the remedy of the petitioners was to approach the learned lower appellate Court for withdrawal of the said statement made by their learned counsel and this Court under Section 115 CPC cannot interfere in the impugned order having been passed on the statement of the learned counsel for the petitioners. I am afraid the argument has not impressed me. After having found that the order for dismissal of the appeal as withdrawn is not legal and proper, this Court is vested with jurisdiction to correct the error. 14. For the foregoing reasons the two Courts below failed to exercise? jurisdiction vested in them under the law to try the suit on the erroneous! assumption that the same was barred under Section 12 (2) CPC, as such, the impugned orders are not sustainable. This revision petition is accepted. The impugned orders dated 25.3.1990 and 21.7.90 passed by the learned trial Court and the learned lower appellate Court are hereby set aside and the case is remanded to the learned trial Court to decide the suit in accordance with law. The parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 468 (DB) PLJ 1991 Lahore 468 (DB) Present: M. MAHBOOB AHMAD CJ AND MAUK MUHAMMAD QAYYUM, J Ch. JAMIL AHMAD-Appellant versus NIPPON BOBBIN COMPANY ( PAKISTAN ) LTD.-Respondent I.CA. No.6 of 1986, (also I.CA. No. 26 of 1987) dismissed on 313.1991 Companies Ordinance, 1984 (XLVII of 1984)- — S.10(l)&(2)--Windmg up of company-Order of-Passing of— Wtether Intra Court Appeal lies to High Court-Question of—A plain reading of Section 10(1) of Ordinance shows that appeal against any order, decision or y passed under Ordinance shall lie to Supreme Court whether in shape of appeal or- petition for leave to appeal as case may be-Held: Present appeal is not competent before High Court-Appeal dismissed. [Pp.468&469]A,B&C 1988 CLC 866 distinguished. Ch. Khurshid Ahmad, Advocate for Appellant. Mr. Sultan KJialid Cheema, Advocate for Respondent. Mr. Tariq Rahim, Advocate Official Liquidator. Date of hearing: 31.3.1991. judgment Mahboob Ahmad, C J.~By this order we propose to deal with ICA No. 6 of 1986 and ICA No. 26 of 1987 as the two of them are between the same parties and common questions of law arise therein. 2. The first of these appeals is directed against order dated 29-6-1986 announced on 7-7-1986 and passed in C.M.No. 414-L/86 and C.M.No. 112-L/86 in C.O. No. 48 of 1984, whilst the second calls in question order dated 7-7-1987 passed in C.M.No.470-L/86 and C.M.No.495-L/87 in C.O.No.48 of 1984. 3. The learned counsel for the appellant was asked to show how this apeal is competent when the order of winding up of the Company has admittedly been passed and by virtue of Section 10(1) of the Companies Ordinance, 1984, the appeal lies to the Supreme Court of Pakistan. The learned counsel has relied on Meaa McMoab Industries Ltd v. Pakistan Industrial Credit and Investment i Ltd reported as 1988 CLC 866.to contend that such an appeal has »be competent vide the above judgment. We are unable to agree with die eoatcatina. raked as above. A plain reading of Section 10(1) of the Companies Oniaaacc, 1984 shows that appeal against any order, decision or judgment of the nder the Ordinance shall lie to the Supreme Court, where the r ordered to be wound up has a paid-up share capital of not less than one , and, where the company ordered to be wound up has « paid-up I of lea than one million rupees, or has no share capital, such appeal shall Ee oah/ if the Supreme Court grants leave to appeal. 4. The learned counsel while relying on the cited judgment of the Sindh Hajh Goart has stated that aforementioned provision viz Section 10(1) should be read so at to be only applicable, where a winding up order is to be challenged. Sack a coatcation on the face-of it is not tenable as the words used in Section 10(1) m mi-equivocal and un-ambiguous terms are "appeal against any order, i or judgment of the court ". The word "any" has a significant meaning be thrown out as redundant; it being the cardinal principle of iaterpretation that every word used in a provision has to be given effect unless there be any repugnancy or contradiction. Such a situation is not prevailing in the i hand and therefore, word "any" has to be read in the provision which has a connotation to cover alll orders, decisions or judgments of the court the Ordinance when the winding up order has already been made. The appeal envisaged by Section 10(2) to our mind appears to be in such a case •am, die winding up order has not as yet been passed. The two provisions viz Sab notion (1) and Sub-section (2) therefore, stand reconciled that in case an appeal is to be preferred against any order, decision or judgment when an order of wiaiEBg up has been passed, it will lie to the Supreme Court of Pakistan whether ib die shape of appeal or petition for leave to appeal as the case may be aad Sab-section (2) of Section 10 will be attracted in respect of an order when wading up has not already been directed. This aspect of the matter was neither in issae in die eked judgment of the Sindh High Court nor has been discussed. 5. In view of the foregoing discussion, we are of the view that the present appeal is not competent before this court. It is accordingly dismissed as incompetent. Parties are left to bear their own costs. (MBQ (Approved for reporting) Appeal dismissed.

PLJ 1991 Lahore 469 PLJ 1991 Lahore 469 Present: falak sher, J IFTIKHAR ALAM eto.-Petitieoers Versus PROVINCE OF PUNJAB eto.«Respondents Writ Petition No.1125 of 1989, accepted on 8.7.1991 Locus Poenitentiae- -—Sub-Engineer—Appointment of—Clearance of Departmental Examination by~Cancellation/scraping of Petitioners' Departmental Examination-­ Challenge to—Contention that it is a case of coram-non-judice since under Rules, not only finality is attached to decision of Examination Committee but also that order of competent authority placing petitioners in BPS 16 having been implemented, was immune from review under principle of locus poenitentiae--P&\ition is opposed as not maintainable due to bar envisaged in Article 212 of Constitution and that Departmental Examination was manoeuvred by petitioners resorting to unfair means—Held: Second objection requires factual inquiry which cannot be ventured upon in Constitutional proceedings-Held further Impugned order not having been passed- by competent authority, is coram-non-judice--PetJtion accepted. [P.471]A Mr. Faqir Muhammad Khbkhar, Advocate for Petitioners. Mr. Jariullah Khan, Advocate for Respondents. Date of hearing: 8.7.1991. judgment Resume of the necessary facts for resolving the present controversy as divulged from the record are that consequent upon petitioners' success in the departmental examination having been conducted under The Panjab (Buildings and Highways) Sub Engineer Professional Examination Rides, 1977 in October, 1988 and certification of the pre-requisite viz. credited with atleast 10 years service in the department as Sub Engineer in the lower grade and possessing the prescribed qualifications for initial recruitment to the pact of Sab Engineer, were placed in B.P.S. 16 by the competent authority vide letter No. 200-E of 8-11-1988 w.e.f. 7-11-1988; subsequent whereto, on the initiative of an unsuccessful candidate i.e. respondent No.4, Secretary, Communication and Woffcs Department, Government of the Punjab on 9-2-1989 conceHtd/sampcd petitioners' departmental professional examination, in obedience whereto, the Superintending Engineer, Highways Circle, Faisalabad vufe memo No. 169/542-44 dated 14-2-1989 recalled the office order No. 200/E, dated S-ll-1989, feeling aggrieved thereby, present petition was resorted to inter aSa contending that it is a case of coram non judice since, under the Rules referred to supra, not only finality is attached to the decision of examination committee since it is not amenable to appeal, revision or review, but also order of the competent authority placing the petitioners in BPS 16 having been implemented was immune from review under the principle of locus poenitentiae; the competent authority purely acted mechanically in obedience to the dictates of the Secretary, Communication and works Department, Government of the Punjab without application of independent mind and contrary to the inalienable principle of audi alteram partem. While learned counsel appearing on behalf of the respondents opposed the petition without controverting the above contentions by submitting that it is not maintainable in terms of the bar envisaged in Article 212 of the 1973 Constitution and secondly success in the departmental examination was manoeuvred by the petitioners resorting to unfair means; with which, I am not persuaded for the simple reason that the latter contention requires detailed factual inquiry which can't be ventured upon in these proceedings while the former has been advanced in oblivion of the fact that the bar contemplated by Article 212 of the Constitution preconceives the notion that the impugned order ought to have been passed by the competent authority which sine qua non is lacking since the competent authority happens to be Superintending Engineer concerned and not the Secretary, Communication and Works Department, Government of the Punjab, thus is patently a case of coram non judice; as well as demonstrative of the specie of subjugation to the dictates of the superiors and lack of application of independent mind, qua which, admittedly, the petitioners were not even required to show cause, consequently, granting the petition, the impugned orders are hereby set aside being a nullity and still born baby in the eye of law, however, there shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 471 (DB) PLJ 1991 Lahore 471 (DB) Present: NLMAHBOOB AHMAD, CJ AND MALIK MUHAMMAD QAYYUM, J NUSRAT ELAHI and 41 others-Petitioners Versus REGISTRAR, LAHORE HIGH COURT, LAHORE and others-Respondents Writ Petition No.1384 of 1983, dismissed on 5.3.1991 (approved for reporting on 10.8.1991). (i) Constitution of Pakistan, 1973- —Art. 199 read with Article 208~High Court employees-Promotion without passing examination by-Challenge to-Whether employees can invoke constitutional jurisdiction against orders passed by Chief Justice or Registrar of High Court—Question of-Contention that orders passed by High Court on administrative side in respect of employees are not immune from challenge- Impogned orders have been passed by then Chief Justice—It cannot be doubUed that Chief Justice excercises powers and acts on behalf of court while Registrar carries out orders of Chief Justice and Judges of High Court—Held: Constitutional jurisdiction cannot be invoked by employees of High Court against orders passed by Chief Justice or Registrar on behalf of Court- PetitJoo dismissed. [P.473&474]B,C&D PLJ 1976 SC 377 rel. (ii) Constitution of Pakistan, 1973- —Art.199 read with Article 208--High Court employees—Promotion without passing examination by—Challenge to-rWhether writ petition is maintainable-­ Question of--Article 199 of Constitution excludes Supreme Court, High Court or a Tribunal established under a law relating to Aimed Forces from those persons against whom High Court can issue writ-Held: No petition can be entertained under Article 199 of Constitution against High Court itself, and so petition is clearly not maintainable. [P.473JA Malik Ghulam NabiAwan, Advocate for Petitioners- Mr. Farooq Bedar, Addl A.G. for respondents 1 to 4. Syed Jamshed All, Advocate for other respondents. Date of hearing: 53.1991. judgment Malik Muhammad Qayyum, J.~This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has beca fied by 42 senior clerks of the Lahore High Court, Lahore in which the Registrar of tins Court has been impleaded as respondent No.l while respondent No.2 has been described as the Administrative Appointing Authority under Rule 8 of die High Court (Appointment and Conditions of Services) Rules. The petitioners have assailed the orders passed by respondents Nos.l to 4 (Annexures C/l to C/3) whereby respondents Nos.5 to 69 were promoted to the posts hi BPS 11 and lfiu 2. The precise grievance of the petitioners is dot the appointments/promotions in N.P.S.11 and 16 can only be made after the appointees/promotees had cleared the competitive test in terms of the High Court (Appointment of Service) Rules, but vide impugned orders respondents No.5 to 69 have been promoted without any test being held. 3. The first question which arises for consideration is as to the maintainability of this petition. Admittedly the petitioners are the employees of this Court and are a class apart from the civil servants. Article 208 of the Constitution of Islamic Republic of Pakistan, 1973 provides that the High Court may make rules for the appointment of officers and servants of the Court and for the terms and conditions of the employment. Consequently the appointment of the staff of the High Court is regulated under Article 208 by the Rules framed by the High Court and to these employees neither the provisions of the Civil Servants Act 1973 nor the rules framed thereunder are applicable unless adopted by the Court itself. The Chief Justice of this Court has already framed the High Court Establishment (Appointment and Conditions of Service) Rules in exercise of the powers conferred upon him by Article 227 (4) read with Paragraph 6 of Part II of the 3rd Schedule of the Constitution of the Islamic Republic of Pakistan, 1962 and Article 268 of the Constitution of the Islamic Republic of Pakistan, 1973. 4. The reasons as to why the officers and servants of the Superior Court are to be treated differently than the civil servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the Superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible the High Court should remain independent and free from interference in its affairs by the executive authorities. 4. With the above back-ground, a reference may now be made to Article 199 of the Constitution which empowers this Court to inter alia declare the orders passed by a person performing the functions in connection with the affairs of the Federation or a Province. While defining 'person', sub-Article (5) (of Article 199) of the Constitution excludes the Supreme Court, the High Court or a Tribunal established under a law relating to the Armed Forces of Pakistan from its purview. That being so, no petition can be entertained under Article 199 of the Constitution against the High Court itself. This petition is, therefore, clearly not maintainable. 5. The learned counsel for the petitioners however, contended that the bar is confined to the challenge of orders passed by the High Court on the judicial side and the administrative orders passed by the Court in respect of its' employees are not immune from challenge. It was further emphasised that the order in this case has been passed by the Registrar of this Court who is not a High Court and therefore, his orders can be challenged under Article 199 of the Constitution. 6. This contention of the learned counsel is wholly devoid of any force. The orders impugned hi the present petition have been passed by the then Chief Justice of this Court as is obvious from the impugned Notifications Annexure C/l and C/2. It cannot be doubted that the Chief Justice exercises the powers and acts on behalf of the Court. Similarly the Registrar carries out the orders of the Chief Justice or the Judges of the High Court as the case may be. The fallacy of the arguments of the learned counsel becomes apparent by reference to Article 208 of the Constitution which vests powers to frame rules in respect of the employees of the High Court in the High Court itself. We are, therefore, clearly of the view that the constitutional jurisdiction of this Court cannot be invoked by the employees of this Court against the orders passed by the Chief Justice or the Registrar on behalf of the Court. 7. Somewhat similar question fell for consideration before the Supreme Court of Pakistan in Ibrar Hussain v. Government of Pakistan and another (PLJ 1976 S.C. 377) wherein while construing the effect of sub-Article (5) of Article 199 it was observed by Anwarul Haq, J., (as he then was) that:- "However, the question is whether such proceedings are barred by virtue the definition of 'person' as given hi paragraph (5) of Article 199 which definition excludes the Supreme Court as well as the High Court from its purview. It seems that intention of the Constitution-makers is to exclude, from the writ jurisdiction of the High Court, all actions, acts and orders made by the High Court or the Supreme Court, or by any Judge thereof in the exercise of the functions and powers of his office". • For the aforesaid reasons, this petition is not maintainable and the same is Djdismissed leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 474 (DB) PLJ 1991 Lahore 474 (DB) Present: M.MAHBooB ahmad, CJ and malik muhammad qayyum, J M/s NATIONAL FILM DEVELOPMENT CORPORATION LTD.--Applicant versus COMMISSIONER OF INCOME TAX, ISI^MABAD-Respondent Civil Tax Reference No.21 of 1990, decided on 7.5.1991 Income Tax Ordinance, 1979 (XXXI of 1979)- —S.136 (1)—Appeal before Appellate Tribunal—Delay in filing of—Whether Appellate Tribunal should have condoned delay of 4 days in filing appeal without a formal application for condonation-Question of—Fact that petitioner had posted appeal within time is of no consequence, as on no rational principle can appeal be deemed to have been instituted on day when it was posted—Inspite of pointing out by office of Appellate Tribunal that appeal was barred by 4 days, no application for condonation of delay was filed— Held: Tribunal was justified in refusing to condone delay and dismissing appeal as barred by time. [P.475&476]A&B PLD 1979 Lahore 409 rel. Mr. Saifuddin Chughtai, Advocate for applicant. Mr. Ilyas Khan, Advocate for respondent. Date of hearing: 7.5.1991. judgment M.Mahboob Ahmad, CJ.-On an application filed by the petitioner, the Income Tax Appellante Tribunal, has referred to this Court under Section 136(1) of the Income Tax Ordinance, 1979, the following question said to be of law and arising out of its order dated 27th February, 1985 passed in ITA No.20-A/IB of 1982-83, relating to the assessment year 1975-76 for answer:- "Whether in the facts and the circumstances of the case, the Appellate Tribunal should have condoned the delay of four days in filing of appeal without a formal application for condonation". 2. The facts forming background of the dispute are that the assessee/applicant is a company set up by the Federal Government for development of film industry and import of foreign films. During the assessment year 1975-76, the appellant paid Rs.27,43,852/- as royalties and rentals to various companies without deducting income tax therefrom, contrary to Section 18(3B) of the Repealed Income Tax Act, 1922. On account of this default, proceedings under Section 52 of the Income Tax Ordinance, 1979, were initiated against the appellant and a penalty of Rs.8,21,072/- was imposed in addition to which additional tax of Rs.7,88,229/- under Section 83 of the Ordinance was also demanded. 3. This order of the Income Tax Officer dated 25th of February, 1981, was challenged by the petitioner by filing an appeal which was partly accepted b the Commissioner of Income Tax Appeals on 20th May, 1982, who remitted the case o the Income Tax Officer for re-decision. This order of the Commissioner of Income Tax Appeals was communicated to the applicant on 16th June, 1985. The order was appealed against by the petitioner before the Income Tax Appellate Tribunal by submitting its appeal through post which was received by the Income Tax Appellate Tribunal on 19th August, 1982. Certain objections were raised by the Assistant Registrar of the Appellate Tribunal and the applicant was rquired to further document its appeal The authorized representative was also informed by the Tribunal that the appeal was prima-facie barred by four days. In response to the letter addressed by the Assistant Registrar in this behalf, the authorized representative of the appellant on 18th September, 1982 filed the requisite copies of the certificate but neither any attention was paid by the applicant to the objection that the appeal was barred by time nor any application for condonation of delay was filed. 4. The appeal came up for hearing on 27th November, 1985 when an objection was taken by the respondent that the appeal was barred by time. This objection was contested by the applicant on the plea that the appeal was posted by the applicant on 24th August, 1982 by registered post and if the appeal had reached the Tribunal late, the petitioner was not at fault. However, no application even at that time for condonation of delay was made nor was any affidavit in this respect filed. The Income Tax Appellate Tribunal vide its order dated 27 th February, 1985 dismissed the appeal as barred by time. 5. The petitioner thereafter, filed an application under Section 136(1) of the Income Tax Ordinance, 1979, for referring the dispute to this Court, with the result that question mentioned above in para 1 has been referred by the Tribunal to us for answer. 6. After hearing the learned counsel for the parties, we do not find that any question of law arises for determination by this Court. It stands established on the record that by the time the appeal had been received by the Income Tax Appellate Tribunal, it was barred by time. The fact that the petitioner had posted the appeal within time is of no consequence, as on no rational principle can the appeal be deemed to have been instituted on the day when it was posted. On the other hand, it cannot be doubted that the appeal is instituted on the day when it is presented or is received by the Tribunal. 7. More importantly, the fact noticed is that although k was pointed out by the office of the Income Tax Appellate Tribunal to the authorized representative of the applicant vide letter dated 1st of September, 1962, that the appeal was barred by four days, no application was filed by the applicant for condoning the delay nor any affidavit in support of the facts on the baas of which the limitation was sought to be condoned was filed. In these circumstances, the Tribunal was perfectly justified in refusing to condone the delay and ^femissing the appeal before it as barred by time. The view which we have taken finds support from the judgment of this Court in Ghulam All 'and another v. Lai Bun and 2 others (PLD 1979 Lahore 409). Resultantly, the answer to the question referred to us is in uk negative and against the assessee. The reference is accordingly disposed of with no orders as to costs. (MBC) (Approved for reporting) Older accodingly.

PLJ 1991 Lahore 476 PLJ 1991 Lahore 476 [Rawalpindi Bench] Present: gul zarin kiani, J ZAFAR IQBAL-Petitioner Versus CANTONMENT BOARD, RAWALPINDI, and another-Respondents Writ Petition No.342 of 1991, dismissed on 3.4.1991. Civil Procedure Code, 1908 (V of 1908)- —O.I, R.10-Intervenor--Impleadment of--Challenge to—In two suits, one filed by petitioner and other by respondent No.2, dispute or a part of it related to street existence of which was asserted by latter for a common use and denied by former-It could not have been said that respondent No.2 had no interest in Us and came forward merely as a probono pdblico—Order impleading respondent No.2 having earned approval of revisional court, must be deemed to have attained finality subject to its judicial review-Held: No interference is needed with impugned orders which have merely allowed a party to be joined to a suit filed by his adversary enabling him to defend his rights which in his absence, were likely to suffer. [P.478&479]A&B Sardar Asmatullah Khan, Advocate for Petitioner. Date of hearing: 1.4.1991. order Petition under Article 199 of the Constitution is against a revisipnal order of learned Additional District Judge, Rawalpindi dated 7.3.1991 upholding that of learned trial Court ordering impleadment of an intervener, as a party-defendant to the civil suit filed by the petitioner against Cantonment Board, Rawalpindi, for a perpetual injunction. Petitioner owns a house in village Topi. Cantonment Board, Rawalpindi issued a notice under Section 185 of the Cantonments Act, 1925 for dismantling of some alleged illegal constructions. Part of it is seen to have already been demolished. Petitioner filed a suit against the Cantonment Board for a decree of perpetual injunction restraining them from demolishing his house, its gate, boundary-walls or occupying his land for user as a passage for others. Alongwith the plaint in the suit for perpetual injunction, petitioner also brought an application for an interim relief indicated in it. Cantonment Board resisted the suit as also the prayer for interim relief. Substantial defence of the Cantonment Board is contained in paras 4 and 7 of their written statement. In course of trial of the suit, Sub.(Rtd.) Muhammad Khan filed an application under Order I, rule 10 Civil Procedure Code for his impleadment as a party to the suit. It was averred that the petitioner had blocked his passage and the decision in the suit filed against the Board shall affect his right/interest. Petitioner opposed the prayer. By an order dated 5.1.1991, the trial court allowed the application, and ordered impleadment of the applicant holding that he was a necessary party to the suit. In revision filed by the petitioner, learned Additional District Judge agreed with the trial Court on merits of the petition for impleadment of Muhammad Khan applicant. Both these orders of the Courts below are contended (?) in constitutional jurisdiction. It was submitted that averments in the petition filed under Order I, Rule 10 CSvfl Procedure Code did not disclose that the applicant was either a necessary or a proper party to the suit and the Courts below hi taking him to be so acted illegally in exercise of discretionary jurisdiction vested hi them under Order I, Rule 10 Civil Procedure Code. In support of the contention that the applicant Muhammad Khan could not have been impleaded as a party-defendant to the suit, either as a necessary or a proper party to it, learned counsel referred to the cases of StmeaSafi Khan versus Lahore Municipal Corporation, Lahore and another— 1979 C.L.C. 891 (Lahore), Fazal Karim and another versus Muhammad Ashiq and 2 others— 1983 C1.C. 272 ( Lahore ). Close reading of the cases relied upon are found to proceed on distinguishable facts and were not much helpful for deciding of the point requiring decision in the writ petition. Applicant Muhammad Khan was not merely acting probono publico. Instead, his own rights were involved in the decision. He intended to protect his own right of using a street of a certain width passing in front of his house, which was in danger of being allegedly misappropriated to a private use by the plaintiff in the suit. In fact, he alongwith one Khuda Bux had already instituted a civil suit against Muhammad Ashraf owner/resident of house No.48 and the Cantonment Board for a mandatory injunction directing the defendant No.l (Muhammad Ashraf) to stop the illegal construction and to demolish the walls which had been constructed in the street, 12 feet wide, shown in the plan annexed to the suit. Muhammad Ashraf is real father of Zafar Iqbal petitioner who instituted the present suit against the Cantonment Board later on 3.9.1990. The suit filed by Subedar Muhammad Khan etc. is proceeding to trial in the Court of Yar Muhammad Wilana, Civil Judge, Rawalpindi . Record of that suit revealed that part of the plaintiffs' evidence has already been recorded and the suit is now adjourned to 8.4.1991 for recording plaintiffs' remaining evidence. As far the suit fded by the petitioner Zafar Iqbal, its stage of procceeding is not known. Upon a prima fade examination of the plaints in the two suits proceeding to trial in different Courts, it appears that the controversy in them has close nexus and in that view of the matter, it would have been conducive to a satisfactory decision if both the suits were tried by a common Court. This course would not only have been convenient to the parties but would tend to avoid conflicting decisions also. As the merits of the cases are yet to be examined by the Courts seized of them, I shall say little about them, except where necessary for deciding of the point raised in the writ petition. In the plaints in the two suits filed by Muhammad Khan etc. against Muhammad Ashraf etc. and Zafar Iqbal versus Cantonment Board to which now Muhammad Khan has been added as defendant No.2, the dispute or a part of it concerned aa alleged street of a stated width, existence of which was asserted by Sub. (Rtd.) Mohammad Khan for a common use and denied by Muhammad Ashraf and his son ZaEar Iqbal who claimed that it did not exist as such, and, the Cantonment Board were not authorised to dismantle their existing constructions. In this state of l"^ it could not have been said that Sub. (Rtd.) Muhammad Khan had no interest in the Us and came forth merely as a probono publico. In my opinion, he had a dear interest hi the litigation and his presence before the Court in the safe filed by Zafar Iqbal was necessary for a final and effective adjudication of the controversy raised in it. It is manifest that initially it is for the Court below to feel satisfied as to whether or not it should exercise its powers under Order I, Rule 10 of the Code of Civil Procedure for addition of a party to the suit and where the Court is satisfied that certain person should be added as party to the suit, it would ordinarily not be possible for this Court to interfere with the exercise of such discretion. By no means, it can be maintained that the order relating to the addition of parties is a matter touching upon the jurisdiction of the Court so as to justify an interference under Article 199 of the Constitution, much less, in revisory jursidiction under Section 115 of the Code of Civil Procedure. The provisions of Order I, Rule 10 Civil Procedure Code confer a wide expanse (?) of discretion on the trial Court and if the trial Court exercised discretion in favour of an applicant who wishes to be impleaded as a party to the pending suit, its discretion will not ordinarily be interfered with unless the impleading of the party resulted in mainfest failure of justice or where the Court had illegally or with material irregularity exercised its discretion. In the present case, the order of the trial Court as to its soundness had already earned approval from the revisional Court which by a detailed considered order found that the applicant (Muhammad Khan) was rightly added as a party-defendant to the suit. Legislature did not provide for a further revision from the order passed by the revisional Court and, therefore, it must be deemed to have attained finality subject to its judicial review by this Court in its supervisory jurisdiction. It is well known that the question of addition of parties under Order I, rule 10 Civil Procedure Code, is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case and unless the discretion was found to have been exercised unreasonably, it ought not to be interfered with in extraordinary jurisdiction. Having known the limits, scope, ambit and purpose of supervisory jurisdiction of the High Court under Article 199 of the Constitution, I do not feel satisfied that I should interfere with the impugned orders of the Courts below which have merely allowed a party to be joined to a suit filed by his adversary for enabling him to defend his rights which in his absence were likely to suffer. As I have said above, the contours of two suits, one filed by Muhammad Khan alongwith Khuda Bakhsh against Muhammad Ashraf and Cantonment Board and the other by Zafar Iqbal against Cantonment Board were somewhat identical and required concurrent trial by a common Court to avert inconvenience to the parties and conflicting decisions, therefore in exercise ofsuo-motu jurisdiction of this Court, I shall direct their trial by Mr.Baqir Ah' Rana, learned Civil Judge, Rawalpindi to whose Court the case files may be sent expeditiously. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 479 PLJ 1991 Lahore 479 Present: MALIK MUHAMMAD QAYYUM, J Syed AMJAD HUSSAIN-Petitioner versus QAISER SIDDIQUE ^.--Respondents Writ Petition No.1801 of 1989,'accepted on 22.5.1991. (i) Default-- —Tenant-Ejectment of-Order of-Challenge to~Whether default was wilful-­ Question of—Held: Even if there was any default in payment of rent, it cannot be held to be wilful in view of application for deposit of rent filed by petitioner who was all along ready and willing to pay rent-Petition accepted and eviction order set aside. [P.482JC&D (ii) Default-- -—Tenant-Ejectment of--Order of--Challenge to~Whether there was any default-Question of-Petitioner applied to Rent Controller for permission to deposit rent from January to April, 1986 on 21.4.1986, but instead of deciding application on that day, Rent Controller issued notices to landlords-Tenany being oral, rent'for March, 1986 fell due on 31.3.1986 and could be paid by 1.6.1986 in view of Section 13(2)(i) of Urban Rent Restriction Ordinance, 1959-Held: Petitioner had applied for deposit much before and if Rent Controller had delayed disposal of his application and not permitted him to deposit rent in time, no responsibility can be placed on him. [P.481]A&B PLD 1982 SC 167 and AIR 1927 Mad. 468 nl. Sh. Ijaz Ahmad, Advocate for Petitioner. Ch. Mushtaq Ahmad Khan and Malik Amjad Pervtuz, Advocates for respondents 1 to 10. Nemo for respondents Nos. 11 & 12. Date of hearing: 22.5.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of an application for ejectment ffled by respondents No.l to 10 against the petitioner with respect to a shop in his occupation as a tenant under the said respondents at a monthly rent of Rs.200/-. The only ground, on which the eviction of the petitioner was sought, was default in payment of rent from January, 1986 to April, 1986. In the reply filed by him the petitioner repudiated the assertion that he was a defaulter and pleaded that the rent was being paid to Khair Din, a 'Munshi' of the respondents, and after his death, the rent for the months of January 1986 and February 1986 was remitted through money order in the name of Nisar Muhammad, one of the respondents, who refused to accept the same, whereafter, the rent was deposited with the Rent Controller. 2. On the pleadings of the parties, the Rent Controller framed the following issues:- 1. Whether the respondent has committed default in payment of rent? OPA 2. Whether the respondent has damaged the shop in dispute? OPA 3. Whether the ejectment petition is frivolous and the respondent is entitled to claim special costs from the petitioners? OPR 4. Relief. In support of their case, the respondents examined Sheikh Nisar Ahmad, one of the landlords, who appeared as AW.l. In rebuttal, the petitioner examined Muhammad Amin, Postman, as RW.l, and he himself appeared as RW.2. 3. Oil the basis of the evidence led before him, the Rent Controller held that the petitioner was a defaulter in payment of rent for January, and February, 1986. He, therefore, proceeded to direct the eviction of the petitioner, vide his order dated 17.9.1988. 4 Aggrieved by the above order of the Rent Controller, the petitioner filed an appeal, which was heard by the Additional District Judge, Gujranwala, who, vide his judgment dated 12th of January, 1989, held that the petitioner was a i payment of rent for the month of March, 1986 and that as the default viral, the petitioner was liable to be ejected. 5. The learned counsel for the petitioner has contended that it stands record that the petitioner had on 21st of April, 1986, applied to the Rat Controller, for permission to deposit ihe rent for January, 1986 to April, 1S8&, bat this application remained pending and was not decided till 29th of May, MR. BBmediately whereafter, the rent was deposited on 2nd June, 1986. It is that there was as such no default and in any case it was a fit case for of discretion in favour of the petitioner. Chaudhry Mushtaq Ahmad Khan, the learned counsel appearing on behalf of the respondents No.l to 10 has been heard in reply. 6. It stands established from Ex.R2 to Ex.R5 that on 21st of April, 1986, the applied to the Rent Controller for permission to deposit the rent from petti 1986 to April, 1986. However, the Rent Controller, instead of deciding the application on that day issued notices to the landlords. The application was on only 29th May, 1986. There is no dispute that the entire rent was deposited by the tenant on 2nd of June, 1986. In the present case tenancy between the parties is admittedly oral and, therefore, the rent for the month of March, M8&, fei due on 31st of March, 1986, and could be paid by 1st of June, 1986, in View of Section 13(2) (/) of the Punjab Urban Rent Restriction Ordinance, 1959. Tie petitioner had applied for the deposit of rent on 21st of April, 1986, i.e. much before the date by which the rent had to be paid. That being so the petitioner caanot be held to be a defaulter. If the Rent Controller had delayed the disposal of the application and had not permitted the petitioner to deposit the rent in time, do responsibility can be placed upon the petitioner. 7. The principle of law is affirmly established that no one can be prejudiced by a» act or omission of a Court. Legally speaking the petitioner was entitled to haw the application for deposit of rent decided on the same day. If however, due to some procedural formalities, the application was decided later on and the drpffp was made immediately thereafter the deposit in all fairness should relate back to the date on which the application was filed &. White considering somewhat similar situation though in another context it was observed by the Supreme Court of Pakistan in Hayat and others v. Amir (PLD 1982 S.C. 167) that: "we cannot favour the view that the applicant should be made to suffer for delay caused in the Court, for that would amount to penalising him for no fault on his part. As such we are of the view that the relevant date is the one on which the application was filed and not the one on which it was accepted and the order of the Court impleading a new person a party to the suit must be deemed to have effect from the date on which the application to implead the party was filed". Again in South Industrials . Mothey Narsima Rao (AIR 1927 Mad. 468) it was opined that "it appears to me to be obviously the right principle to adopt in the matter, as otherwise though an application might be made in tune, as in this case, by the dilatoriness of the Court or by the manoeuvres of the opposite-party or by a mistaken decision of the Court, which had to be put right on appeal or revision, the order to which the party applying was entitled might not be made until the suit had become time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances". 9. Be that as it may, even if there was any default in payment of rent which according to Additional District Judge himself was only for one month it cannot be held to be wilful in view of application for deposit of rent filed by the petitioner who was all along ready and willing to pay the rent. There could not be a better case for «xe.rcise of discretion in favour of the petitioner and die authorities below acted illegally and arbitrarily in directing the eviction of the petitioner. As a result of what has been stated above, this petition is accepted and the impugned orders are declared to be without lawful authority and of no legal effect with the result that the ejectment petition filed by respondents 1 to 10 stands dismissed with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 482 PLJ 1991 Lahore 482 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD HUSSAIN ere.--Petitioners versus Mst. FATIMA efc.-Respondents Writ Petition No.7286 of 1990, dismissed on 5.6.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIII Rr. 1,2&5~Application to sue in forma paupem-Dismissal of~ Whether court, while rejecting application, could have allowed respondent No.l to affix proper court fee and treat it as plaint having been filed on day when application was presented-Ouestion of~Provisions of Order XXXIII of C.P.C. are beneficial in nature and are designed to ameliorate hardship faced by those who are not in a position to pay court fee—Held: There appears to be no difficulty as to why, if court refuses permission to sue as pauper, application should not be treated as plaint-Held further: Non-payment of proper court fee has no effect as regards institution of suit and. validity thereof is not affected by deficit court fee. [P.484&485]A,B,C&D PLJ 1988 Karachi 59, AIR 1962 SC 941, AIR 1973 SC 2508 and PLJ 1984 SC 262 re/. AIR 1937 Lahore 151, AIR 1938 Lahore 41, PLD 1963 (WP) Lahore 23, PLD 1961 (WP) Pesh.67, PLD 1965 Dacca 531, AIR 1968 Pat.l and AIR 1966 Andhra Pradesh 277 ref. Ch. Ghulam Rasool, Advocate for Petitioners. Mr. Farooq Hassan Naqvi, Advocate for Respondent No.l. Nemo for Respondents Nos.2 and 3. Date of hearing: 21.4.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of an application, filed by respondent No.l, for permission to file a suit against the petitioner in forma pauperis under Order XXXIII Rule 1 of the Civil Procedure Code for declaration and possession of agricultural land measuring 106 kanals 13 marlas situated in Toba Tek Singh. This application was rejected by the trial Court on 22nd of March, 1988. Respondent No.l was however allowed to affix the requisite court fee till 22nd of May, 1988. On an application filed by him, the tune for payment of court fee was extended upto 22.5.1988. The petitioner challenged the order dated 22nd of March, 1988 of the trial Court by filing an application for revision which was dismissed by the District Judge on 28th of May, 1990. Hence, this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 3. Chaudhry Ghulam Rasool, Advocate, learned counsel for the petitioner has contended that having dismissed the application for permission to sue as a pauper, the Court became functus officio and there was no jurisdiction left in it to allow respondent No.2 to affix court fee and to treat the application as a plaint. The learned counsel has relied upon Allarakha . Baboo Brothers Transport Co. Karachi (PLD 1972 K.215) Jaipal Ahir and another v. Badri Prasad and another (AIR 1936 Allahabad 485) and Alopi Prashad and others v. MLGappi and others (AIR 1937 Lahore 151). 3. The learned counsel for the respondent, on the other hand, maintained that on the dismissal of the application for permission to sue as pauper, the trial Court did not become functus officio. But retained the seizen of the case and could on the payment of the requisite court fee treat the application as a plaint. He relied upon Ark Navigation Company of Pakistan Ltd. and another v. Esso Pakistan and another {PLJ 1988 Karachi 59). 4. Order XXXIII Rule 1 of the Code of Civil Procedure permits the institution of a suit in forma pauperis, subject to the provisions contained therein. Rule 2 provides as to what the application should contain. Rule 3 deals with the presentation of the application by the pauper, while rule 4 enables the Court to examine the applicant if it so thinks fit. According to Rule 5, the Court shall reject an application for permission to sue as a pauper if it is not framed and presented in the manner prescribed by rules 2 and 3; or where the applicant is not a pauper. If the Court sees no reason to reject the application, k has to fix a date for which a notice in terms of rule 6 has to be given to the opposite party and to the Government Pleader. The Court may, after examining the witnesses and hearing arguments, either allow or refuse permission to sue as pauper. Next provision which is relevant in the present context is Rule 15 of Order XXXIII, which provides that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature; bat the applicant shall be at liberty to institute a suit in the ordinary manner. 5. In the present case, the trial Court proceeded under Rule 5 of Order XXXIII of the Code of Civil Procedure to reject the application of the petitioner holding that he was not a pauper. The question which arises for consideration, therefore, is as to whether the trial Court, while rejecting tike application, could have allowed respondent No.l to affix proper court fee and to treat it as plaint as having been filed on the day when the application was presented. 6. Although there appears to be a divergence of opinion on this question, but some of view that the judgment of the Sindh High Court in. Adi Navigation Company's case supra enunciates the correct legal position. In Ant case, it was held that the Court while rejecting the application for leane to sne as pauper under Rule 5 may, if it is satisfied that the application was not mala Jidt, permit the applicant to make good the deficiency in court fee under Section 149 of the Civil Procedure Code and on such court fee being paid, within the time allowed by the Court, the application can be treated as a plaint deemed to have been presented on the day when the application was filed. 7. It is to be noticed that the provisions of Order XXXm of the Code of Civil Procedure are beneficial in nature and are designed to ameliorate the hardship faced by those who are not in a position to pay court fee. Although the proceedings commence by filing an application for permission to sue as a pauper, rule 1 of Order 33 requires that the application for permission to sue as a pauper shall contain the particulars requisite in regard to plaint in a suit. There thus appears to be no difficulty as to why if the court refuses permission to the applicant to sue as pauper, the application" should not be treated as the plaint. It needs be remembered that under Section 26 of the Code of Civil Procedure, a suit can be instituted not only by preseotation of a plaint but also in such other manner as may be prescribed. The expression "prescribed" according to definition appearing in Section 2 (16) means prescribed by rules. Order 33 Rules 1 and 2 permit the filing of a suit by a pauper by making an application for permission to sue. It will be useful to refer to two decisions of the Supreme Court of India. In VijaiPratap Singh v. Dukh Singh (AIR 1962 S.C. 941) andJugalKishore v. Dhanno Devi (dead) (AIR 1973 S.C. 2508), which have taken the view that a suit by a pauper or a person claiming to be a pauper must be regarded as instituted on the date of the presentation of the application for permission to sue in forma pauperis as required by rules 2 and 3 of Order XXXIII of the Code of Civil Procedure. 8. It is to be seen that non payment of proper court fee has no effect as regards the institution of the suit and the validity thereof is not affected by deficit court fee. This principle stands firmly established by the authority of the Supreme Court in Siddique KJian and 2 others v. Abdul Shakoor & another (PLJ 1984 S.C.262), wherein it was also held that while considering the question of exercise of discretion for grant of time, the factors relevant to the period of limitation are not to be taken into account. These observations of the Supreme Court, if I may say so, are instructive and should be given full weight to, while considering the question in hand. 9. So far as the Lahore High Court is concerned, the view taken in Alopi Prashad's case (AIR 1937 Lahore 151) supports the contentioft of the learned counsel for the petitioner. However, a different view was taken by a Division Bench of the Lahore High Court in Ram Het Gir and another v. Banwari Lai and another (AIR 1938 Lahore 41), wherein the judgment in Alopi Prashad's case was distinguished by" the Division Bench, and it was held that it is open to a Court to ask the plaintiff to deposit proper court fee by a certain date, while rejecting the application for permission to sue as a pauper and the suit should be deemed to have been filed on the day when the application under Order XXXIII Rule 1 was made. This judgment was followed by the West Pakistan High Court in Ch-Nazfr Muhammad and others v. Shafiq Ahmad KJian and others (PLD 1963 (W.P, Lahore 23) and Muhammad Shafi v. Sh. Abdul Aziz (PLD 1961 (W.P) Peshawar 67). The Dacca High Court in Suratan Nessa Bibi v. Muhammad Naimuddin Mondal and others (PLD 1965 Dacca 531) has also taken the same view. 10. As regards the judgment of the Sindh High Court in Allahrakha's case (PLD 1972 Karachi 215) it may be mentioned that the Court itself has taken a different view in Ark Navigation Company of Pakistan Ltd. & another v. Esso Pakistan and another (PLJ 1988 Karach 59). Although it is correct that the earlier judgment of that Court in Allahrakha's case (PLD 1972 Karachi 215) was not noticed but it may be stated with respect that the judgment in Allahrakha's case does not take notice and the very aspects highlighted above and enunciation in Ark Navigation Company's case is the correct interpretation of law. This view is also supported by recent decisions of Indian Courts. Reference may be made to the judgments in Rameshroy & another v. Paghupata Kumar Phatak and another (AIR 1968 Pat.l) and Chegon Vinkafa Randes v. Bonam Lai Channu & others (AIR 1966 Andhra Perdesh 277). In the first mentioned case, it was observed that the contrary view earlier taken in some case should be taken to have been over­ruled by the Indian Supreme Court in Vijai Pratap Sinai's case (AIR 1962 S.C. 941). For the reasons aforesaid, this petition is without any force and is dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 486 PLJ 1991 Lahore 486 Present: MALIK MUHAMMAD QAYYUM, J Mst. BALQEES BANO-Petitioner versus SHAMIM AHMAD alias YASIN and 2 others-Respondents Writ Petition No.3481 of 1990, accepted on 273.199L Khula- —Marriage-p^solution of-Suit for-Dismissal of—Challenge to-Whether petitioner was entitled to decree for dissolution of marriage on ground of £ftu/a--Question of~Issue of Khula has not been decided by both courts in accordance with law-Admittedly, after marriage which took place 4% years ago, parties have lived together for 15 days only and there is no issue from marriage-Petitioner has categorically stated that she would rather die than to live with respondent No.l-Efforts made by Family Court to bring about reconciliation had failed-There was no harmony left between spouses—Held: It is settled that it is not necessary for wife to prove reasons and circumstances justifying her aversion and hatred towards her husband-Petition accepted and suit for dissolution of marriage decreed. [P.487,488&489]A r B,CAI> PLJ 1983 Lahore 558, PLD 1983 SC 169, PLJ 1984 Lahore 562 and PLJ 1981SC 660rel. Ch. Muhammad Hassan, Advocate for Petitioner. Mr, YusufAK Khan, Advocate for Respondent No.l. Date of hearing: 5.3.1991. . judgment Msf.Balqees Bano, petitioner herein, was married to Shamim Ahmad, respondent No.l, on llth December, 1986. Unfortunately, the spouses could not pull on together. On 1st of September, 1987, the petitioner filed a suit against the respondent seeking a decree for dissolution of marriage on the ground of cruelty, mis-appropriation of dowry and Ktiula. Apart from defending this suit, respondent No.l on 17th September, 1987 also filed a suit for restitution of conjugal rights. Both these suits were consolidated and tried together by the Family Court. The following issues arising out of the pleadings of the parties were framed:- 1. Whether the treatment of the defendant with the plaintiff was based upon cruelty? OPP. 2. Whether the defendant subjected to the plaintiff with physical and mental torture? OPP. 3. Whether the defendant has mis-appropriated the valuable belongings of the plaintiff including jewellery articles as well as dowry articles? If so, with what effect? OPP. 4. Whether the defendant levelled false charges of adultery against the plaintiff? OPP. 5. Whether the plaintiff has developed hatred against the defendant and she is entitled to Talaq on the basis of Khula? If so, on what terms and conditions? OPP. 6. Whether the defendant is entitled to a decree for restitution of conjugal rights? OPD. 7. Relief. 2. Both the parties led their evidence in support of their respective cases. The petitioner examined two witnesses apart from appearing herself as PW.3. Similarly, respondent No.l also examined two witnesses and appeared as DW.3. 3. By means of its judgment and decree dated 27th June, 1989, the suit filed by the petitioner for dissolution of marriage was dismissed while that of respondent No.l for restitution of conjugal rights was decreed by the Family Court Aggrieved, the petitioner filed an appeal which too was dismissed by the Additional District Judge, Faisalabad, on 1st of March, 1990. Hence this petition ander Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 4. Ch-Muhammad Hasan, learned counsel appearing on behalf of the petitioner has challenged the finding of the Courts below on issue No.5 alone and has contended that while refusing KJiula to the petitioner, both Courts have acted contrary to the law declared by the superior Courts and-the impugned judgments also suffer from misreading of the 1'ecord and non-consideration of material evidence. 5. Mr.Yusuf Ali Khan, Advocate, appearing for the respondent has supported the impugned judgments and has also objected to the maintainability of the petition on the ground that the concurrent findings of fact recorded by the Courts below were not liable to be interfered with in the constitutional jurisdiction of this Court 6. After having heard the learned counsel for the parties and perused the record, I find force in the contention of the learned counsel for the petitioner that the issue relating to Khula has not been decided by both the Courts in accordance with law. Unfortunately, while holding that the petitioner was not entitled to KJiula, both the Courts approached the case from an absolutely untenable angle. Admittedly, after the marriage between the parties, which took place about 4 1/2 years ago, the parties have lived together for 15 days only and there is no issue from the marriage. In her plaint, the petitioner had categorically stated that she was (would) rather die than to live with respondent No.l. While appearing as PW 3 it was again reiterated by the petitioner that she had developed aversion towards respondent No.l and was not willing to live with her husband under any circumstances. The efforts made by the Family Court to bring about re­ conciliation had failed. It was evident from the circumstances of the case that there was no harmony left between the spouses. 7. Unfortunately, although the Additional District Judge took note of the fact that there was no issue from the wedlock, still he brushed this fact aside by observing that there appears to be no hurdle in the way of the parties to live together. The refusal of the petitioner in all circumstances to restore her conjugal society to the petitioner, was not given due weight. Similarly, the trial Court while dismissing the suit of the petitioner observed under issue No.5 that the plaintiff has not proved in evidence any misconduct on the part of the defendant through which it should be proved that she had developed hatred against the defendant. By now it is well settled that it is not necessary for the wife to prove reasons and circumstances justifying her aversion and hatred towards the husband. 8. In Dr. Akhlaq Ahmad v. Kishwar Sultana (PLD 1983 SC 169), it was observed that the question whether the parties, if made to five as husband and wife would be living within the limits of God, is a question which has to receive full and continuous attention of the Family Court, particularly re-conciliation efforts by the Judge must be taken note of and given effect. In MsLRashidan Bibi v. Bashir Ahmad and 2 others (PLJ 1983 Lahore 558) it was observed:- "It is strange that the Additional District Judge, Faisalabad, also failed to appreciate that when a woman has stated categorically that she would prefer to be shot dead rather than to go and live with the husband and that she was ready and willing to forego all her claims in case her marriage was dissolved, then what more facts and circumstances did he want so that it could be established that there existed extreme hatred in the mind of the petitioner as against her husband. The principle of Khula is based on the fact that if a woman has decided not to live with her husband for any reason and this decision is firm, then the Court, after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hateful union with the man, and it is not necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the Judge Family Court or the Appellate Court". Also see Mst.Shahida v. Abdul Rahim (PLJ 1984 Lahore 562). It is thus apparent that the Courts below while refusing KJiula to the petitioner have acted in disregard of these principles and the law declared by superior Courts. This Court can, therefore, in the exercise of its constitutional jurisdiction interfere in the matter. (Muhammad Sharif and another v. Muhammad Afzal Sohail etc.(PU 1981 SC 660 refer). 9. As regard the benefits to be restored to respondent No.l in lieu of Khula, k is to be seen that no demand was made by respondent No.l for return of benefits either in the written statement or in his statement as PW.3. As a result of what has been stated above, the judgments and decrees of both the Courts below are declared to be without lawful authority and of on legal effect, and the suit filed by respondent No.l for the dissolution of marriage is decreed on the ground ofKJiuIa. The parties are left to bear then- own costs. (MBQ (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 489 PLJ 1991 Lahore 489 Present: MALIK MUHAMMAD QAYYUM, J Mrs. ZAKIA FAROOQ-Petitioner versus CHAIRMAN, UNION COUNCIL, WARD No.90, LAHORE and another- Respondents. Writ Petition No.7336 of 1989, accepted on 5.6.1991. Family Laws Ordinance, 1961 (VIII of 1961)- —S.7-Notice of divorce-Proceedings initiated by Chairman after death of husband— Certificate of divorce issued—Challenge to—Whether Chairman could hold proceedings after death of husband-Question of-There is no explanation as to why, if notice of divorce was received during life time of fcrefrg^, proceedings were not taken by Chairman—Proceedings under Section 7 of Ordinance are primarily designed towards bringing about reconciliation between spouses-Obviously after death of husband, question of reconciliation stood frustrated-Held: It is highly doubtful whether Chairman could hold any proceedings for first time after death of husband of petitioner on an application filed by his brother-Petition accepted and impugned order and divorce certificate declared to be without lawful authority and of no legal effect [P.492JA.B&C PLD 1972 Lah. 694 and 1988 CLC 467 «?/. Mn. Aasma Jehangir, Advocate for Petitioner. Nemo for Respondent No.l. Mr. Ali Ahmad Awan, Advocate for Respondent No.2. Date of hearing: 7.5.1991. judgment On 16th of November, 1987, Mrt.Zakia Farooq, the petitioner herein, was married to Dr.Farooq Akmal, who, unfortunately, died on 15th of July, 1989. It is asserted in this petition that the petitioner remained the wife of Dr.Farooq Akmal till his death. On 9th of October, 1989, she received a notice from the Chairman, Arbitration Council, Ward No.90, Allama Iqbal Town, Lahore, calling upon her to appear before him for constituting an Arbitration Council in connection with the divorce pronounced upon her by her husband. In her reply dated 15th of October, 1989, the petitioner stated that she was never divorced by her husband and the document, if any, produced before him (the Chairman) must have been forged and fabricated by her in-laws. On 22nd of October, 1989, respondent No.l passed an order declaring that the marriage between the petitioner and Dr.Farooq Akmal stood dissolved. In pursuance to that order, a certificate to that effect was also issued by the Chairman on 15th of November, 1989. The order dated 22nd of October, 1989, and the certificate issued by the Chairman on the 15th of November, 1989, have been assailed by the petitioner by filing this constitutional petition. 2. Mrs. Asma Jahangir, the learned counsel for the petitioner has vehemently contended that all the proceedings relating to dissolution of marriage had been fabricated by the Chairman at the instance of the in-laws of the petitioner, who wanted to deprive her of her due share in the inheritance of .her late husband. It was emphasized by the learned counsel that admittedly, no notice of divorce was ever served upon the petitioner by her husband nor did she receive any communication from the Chairman of the Arbitration Council when her husband was alive. The learned counsel maintained that the Arbitration Council had no jurisdiction to proceed in the matter after the death of the husband of the petitioner and, in any case, it could not issue any certificate or pass any order. Mr. Ali Ahmad Awan, the learned counsel appearing on behalf of the respondent, however, stated that the petitioner was divorced by her husband during his life time but due to a misapprehension, the notice of talaq was sent to the Chairman having no territorial jurisdiction, whereafter it was again presented to respondent No.2, who was the relevant Chairman on 20th of March, 1989, and on the expiry of 90 days, the talaq became effective. 3. As regards the order dated 22nd of October, 1989, and the certificate of talaq issued by the Chairman on 15th of November, 1989, Mr Ali Ahmad Awan did not dispute the proposition that the Chairman could not have decided the question of legality of the talaq said to have been pronounced by the husband of the petitioner nor could he issue any certificate that the divorce had become effective. While dealing with a similar question in the case ofMst. Falimida Bibi v. Mukhtar Ahmad and another (PLD 1972 Lahore 694), this Court ruled that "There is no provision either in the Ordinance or the Rules requiring the Chairman of the Arbitration Council to give a decision or to issue a certificate to make the divorce effective. If the Chairman issued the certificate, it was not under any provision of law and had no legal effect". In Dr. Razia v. Mushir Ahmad Pesh Imam and another (1988 CLC 467), the observations of the Sindh High Court are instructive and may usefully be reproduced as under:- "It appears to me that the contentions of the petitioner's counsel have some force. The Chairman of the Arbitration Council is empowered merely to bring about the reconciliation between the parties to a marriage and he has no business of going into the niceties of the questions raised before him in respect of the validity of the marriage or the validity of Talaq or the delegation of the right of pronouncement of Talaq. Therefore, the observation made by the respondent No.l in respect of marital status of the petitioner with respondent No.2 or in respect of the delegation of Talaq were not competently made by him. The maximum that the respondent No.l could do in the matter was to record the contentions of both the parties before him and then merely state whether he had been able to bring about a reconciliation between the parties or whether the reconciliation efforts have failed." The impugned order and the certificate are, therefore, liable to be quashed on this ground alone. 4. The original record was summoned from the Arbitration Council and has been perused with the assistance of the learned counsel for the parties. There is an order dated 16th of March, 1989, on the photostat of a notice by the Chairman, Union Committee, Ward No.91, to the effect that the wife was living in Jahanzeb Block, which falls within the territorial limits of Ward No.90 and that the petitioner may have resort to that Union Committee. There is nothing to show as to in what manner the photo-stat of notice was received by the Chairman, Union Committee, Ward No.91. There is also no indication as to who received back the said notice and presented it before the Chairman, Arbitration Council, Ward No.90. The first order passed by him purports to be of 20th of March, 1989, to the effect that the notice be registered. Surprisingly, however, no proceedings whatsoever were taken upon this notice till 22nd of September, 1989, when one of the brothers of the deceased husband of the petitioner, namley, M. Ali Athar, appears to have presented an application to the Chairman, Arbitration Council, alleging that the petitioner had been divorced by Dr. Farooq Akmal, on llth of March, 1989, through divorce-deed dated llth of March, 1989, photo-stat of which was enclosed and the talaq had become effective. It was alleged that his brother had died on 15th of July, 1989, and the certificate of divorce be issued to him. It is pertinent to note that though it has been stated in the application that the marriage had been dissolved through a divorce-deed dated llth of March, 1989, yet there is no such deed on the record. Instead, there is a photostat of a notice dated llth of March, 1989, addressed to the petitioner purportedly by Dr. Farooq Akmal, pronouncing talaq. 5. It is significant that the proceedings were, for the first time, taken by the Chairman after the death of the husband of the petitioner. There is no explanation as to why if the notice of divorce which had been received by the petitioner from her deceased husband during his life time, the proceedings were not taken by the Chairman. It is also to be seen that at the time when the application was filed by the brother of the husband of the petitioner; the husband of the petitioner was admittedly dead and no proceedings could, therefore, be taken for the first time on the notice allegedly sent by him at least without a positive proof that the notice dissolving the marriage had been served upon the Chairman and the wife by the husband. 6. As already observed, proceedings under Section 7 of the Ordinance are primarily designed towards bringing about a reconciliation between the spouses. Obviously, with the death of the husband, the question of reconciliation did not arise and proceedings, even if pending, stood frustrated. It is also to be noticed that nothing has been placed on the record to show service of notice of divorce by the husband during his life time upon the petitioner. It is highly doubtful whether the Chairman could hold any proceedings for the first time after the death of husband of the petitioner on an application filed by his brother on 22.9.1989. For the reasons aforesaid, this petition is allowed, the impugned order dated 22nd of October, 1989, and the certificate of divorce issued in pursuance of the said order are declared to be without lawful authority and of no legal effect. The parties are, however, left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Lahore 492 PLJ 1991 Lahore 492 Present: MALIK MUHAMMAD QAYYUM, J Mian MEHRAJ DIN--Petitioner versus GOVERNMENT OF THE PUNJAB, THROUGH HOME SECRETARY, and 3 others-Respondents Writ Petition No.7947 of 1990, dismissed on 5.6.1991. (i) Criminal Procedure Code, 1898 (V of 1898)- —S.491--Detention in illegal or improper manner-Whether jurisdiction of court extends to a case where detention is legal but detenu is kept in a manner not countenanced by law-Question of—Court is under obligation to ensure that no person is detained in illegal or improper manner-Held: Jurisdiction vested in Court under Section 491 of Cr.P.C. extends not only to cases where detention is illegal but also where detention is legal but detenu is kept in confinement in a manner not countenanced by law. [P.496JB <1) DucretHM- —Under-trial prisoner~B Class facilities-Claim of~There is no cavil that even in matters of discretion, functionaries charged with duties of administering law, have to act reasonably, fairly, justly and in accordance with rules on abject-Held: If an order is passed by a statutory functionary proceeding on basis of considerations which have no relevance under law, discretion is liable to be struck down. [P.496]A fS) Judicial Review- —Under-trial prisoner-B Class facilities—Claim of~Whether High Court cannot interfere in matter of grant of A or B class facilities to prisoners— Question of-Held: If in a particular case it is shown that, while refusing to better class, authorities concerned have acted in disregard of law or in or arbitrary manner, decision is liable to be corrected in exercise of I review by High Court. [P.496JC Prison Rules- —JL242(ii)~Under-trial prisoner--B Class facilities—Claim of—Whether Petitioner's son is entitled to B class facilities-Question of-Prisoner on account of social status, education and habit of life having been accustomed to jBpcrior mode of living, is not only criteria for grant of better class—A reading afvanous rules in Chapter 9 of Prison Rules would show that these rules are to be read conjunctively-B class facilities were denied in this case inter alia in wcw of nature of offence committed by petitioner's son and also that he was involved in six other cases of attempt to murder and another case for possessing illegal arms-Held: Impugned order cannot be termed as arbitrary and capricious-Petition dismissed. [P.496&497JD.E&F Mr. Azmat Saeed, Advocate for Petitioner. Rana Muhammad Arshad, Addl A.G. and Mr. Muhammad Rashid Malik, Advocate for Respondents. Date of hearing: 31.3.1991. judgment A case under section 302/34 PPC was registered against Akhlaq Ahmed alias Guddu, a son of the petitioner, who was tried in absentia by the Punjab Special Court (Speedy Trials) No.2 and was sentenced on 24th December, 1987 to death and a fine of Rs.10000/- and in default thereof to undergo further rigorous •nprisonment for four years. This conviction was brought under challenge before this Court in W.P. 5090 of 1987 which was accepted on 3rd of September, 1989 and the trial (in) absentia was declared to be ultravires. The matter is stated to be mbjudice before the Supreme Court of Pakistan. 2. On 7th of December, 1988, the President of Pakistan by a proclamation commuted sentences of death to life imprisonment. The son of the petitioner was arrested on 16th September, 1989 and is at present confined in Central Jail Kot Lakhpat. 3. The petitioner applied under Rule 244 (b) of the Prison Rules for grant of B.Class facilities in jail to his son. After holding some enquiry, this application was rejected by the respondents. This rejection has now been assailed by the petitioner through this constitutional petition. 4. Mr Azmat Saeed, the learned counsel for the petitioner contended that the refusal to grant B.Class facilities to the son of the petitioner is contrary to law and is based upon extraneous and irrelevant consideration and, therefore, not sustainable. 5. Rana Muhammad Arshad, Additional Advocate General who appeared for the respondents explained that the reasons for refusal of the grant of B.Class facilities to the son of the petitioner were that the District Magistrate had reported that although the convict was a man of Beans and his financial position was sound, but he was involved in 7 criminal cases oat of which six were under trial. It was pointed out that the charges being faced by die convict inter-alia were possession of illegal arms and 4 attempts to murder, ft «• emphasised by the learned counsel that the matter was in the discretion of the Goveraaveat and the petitioner could (not) claim that his son be granted B.Class faciElies m of light. 6. In order to appreciate the respective contentions of the learned < for the parties, a reference to the various provisions of law governing the sdbject is necessary. The establishment and management of prisons, the confinement and treatment of prisoners, the maintenance of discipline among them___aad other matters relating to them are governed inter-alia by the Prisons Act 1894, (Act 9 of 1894), the Prisoners Act 1890 and some other laws like, Pakistan Penal Code 1860, Criminal Procedure Code 1898, Civil Procedure Code 1908. 7. In the exercise of power conferred upon him by section 59 of Prisons Act 1894, the Governor of Punjab has framed the Prison Rules for the superintendence and management of the prisons of Pakistan . 8. The classification of the convicted prisoners into A.B. and C Classes is provided by rule 242 which reads as under:- R.242 (/) Convicted shall be divided into three classes; A, B and C Class. A Class will contain all prisoners who are:- (a) casual prisoner of good character. (b) by social status, education and habit of life have been accustomed to superior mode of living and, (c) have not been convicted of offence involving elements of cruelty, moral degradation, personal greed, serious or premeditated violence, serious offences against property, offences relating to the possession of explosives, firearms and other dangerous weapons with object of committing or enabling an offence to be committed and abetment or incitement of offences falling within these subclauses. (!) Class B' will consist of prisoners who by social status, education or habit of fife have been accustomed to superior mode of living. Habitual rs can be included in this class by order of the Government. (aT) Class C will consist of prisoners who are not classified as A and B. Rale 243 provides that for A and B Classes Prisoners the classifying aafarity shall be the Government but the Courts may classify the prisoners into A md B dbss pending final orders of the Government. Class C Prisoners are to he '•faggjfi"^ by the trial Court but they have a right to apply for revision of the of the Court before the Government. According to Rule 244 if the court omits to classify convicts for better class treatment, the tendent of Prisons, subject to the approval of the Government may classify B Class Prisoners provided that they fulfil the conditions prescribed for • class treatment. Under Rule 243 while recommending the grant of A or B faculties the recommending authority is required to furnish to the : the following details:- (•) Whether the prisoner is casual or habitual. (fr) Previous convictions if any. (c) Offence and sentence. |4) Social and financial status of family. |r) Profession of the prisoner. (f) lacome of the Prisoner, if any. (f) Academic qualifications of the prisoner. !• order to verify the facts mentioned above, the authority concerned, is . to make further enquiries from the District Magistrate or any other 9. Tic learned counsel for the petitioner contended that the only criteria for grant of B.Class facilities is that mentioned in sub-rule (ii) of Rule 36 viich was that the prisoner was by social status, education and habit of life amauBcd to superior mode of living. According to the learned counsel the son at the fn-titinaiMfulfilled all these conditions, even according to the report of the Diana Magistrate, but he has been denied the facilities on the ground that he «bs iarotved in six more cases which was a consideration irrelevant for the grant or refusal of B.Class. It was contended that although the matter was within the of the Government but the discretion was regulated by the rules and t be exercised in an arbitrary, capricious or wanton manner. 10. There can be no cavil that even in matters of discretion the functionaries charged with the duties of administering law have to act reasonably, fairly, justly and in accordance with the rules on the subject. If an order is passed by a statutory functionary proceeding on the basis of the considerations which have no relevance under the law, the discretion is liable to be struck down. 11. It is also to be noticed that under section 491 of the Cr.P.C. this Court is under an obligation to ensure that no person is detained in an illegal or improper manner. The jurisdiction vested in the Court extends not only (to) the cases where the detention is illegal but also where the detention may be legal but the detenu was kept in the confinement in a manner not countenanced by law. 12. There is thus no merit in the contention of the learned Addl. Advocate General that this court cannot interfere in the matter of grant of A or B class facilities to the prisoners. If in a particular case it is shown that while refusing to grant better class, the authorities concerned have acted in disregard of law or in malafide or arbitrary manner, the decision is liable to be corrected in the exercise of judicial review by this Court. 13. The question which therefore, arises is as to whether the application of the petitioner for grant of B.Class facilities to his son has been disposed of in accordance with law. After hearing the learned counsel for the parties I am not persuaded to agree with MrAzmat Saeed that the only criteria for grant of B.Class facilities are those described in sub-rule (ii) of rule 242 namely that the prisoner on account of social status, education and habit of life has been accustomed to superior mode of living. 14. The provisions of this rule cannot be construed in isolation and the other rules on the subject cannot be divorced from consideration. A reading of the various rules in Chapter 9 of the Prison Rules would show that these rules are to be read conjunctively. The power to classify the convicts into A and B class vests in the Government which may obtain recommendations. Rule 242 provides that the recommending authority shall take into account the various factors mentioned therein including the fact whether the prisoner is a casual or habitual as also his previous convictions, the nature of the offences under which he has been sentenced apart from the social status of the family profession of the prisoner, his income and academic qualification. The District Magistrate could also be asked to make enquiry hi this respect. All these considerations have their relevance while deciding as to whether better class facilities are to be allowed to the inmates. 15. In the present case from the record, it is apparent that B.Class facilities I were denied inter-olio in view of the nature of the offence committed by the petitioner's (son) and also the fact that he was involved in six other cases including 4 cases of attempt to murder and another case for possessing illegal arms. As already observed t&ese factors could be taken into consideration while deciding the application of the petitioner and it cannot be contended with any success that wide doing so the respondents have acted on irrelevant or extraneous j consideration and is not arbitrary in nature. The impugned order therefore,) caaMX be termed as arbitrary and capricious. As a result of what has been stated above this petition is dismissed leaving the forties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 497 PLJ 1991 Lahore 497 Present: AMJAD khan, J BARKAT ALI--Petitioner versus Mst. BARKAT BIBI and another-Respondents Chil Revision No.964/D of 1991, dismissed on 1.6.1991. fit Cmm • n •! Findings- — Smt C haHp "g' n g gift-Decree passed in--Decree confirmed by appellate Gnrt— Challenge to~Courts below have concurrently decided question of fact ; to influence of petitioner over his father-Finding has not been shown resabed from any jurisdictional error or misreading or non-reading of •uteriai evidence-Held: Undeniable object of alleged gift being to son at cost of married daughters, it is not possible to interfere in of discretionary power of revision on account of substantially just i between parties having been concurrently made by two courts below. [Pp.498&499]A PLD 1954 Lahore 575 and PLD 1950 Pesh.45 rel. L IMITATION — Sail challenging gift— Decree passed in— Decree confirmed by appellate coart-Qiallenge to- Whether suit was time-barred-Question of~During life : of her father, plaintiff did not have any right to challenge gift and cause of i accrued to her only upon death of her father on 18.3.1985~Suit was filed ob l&2.1986-Held: Suit was within time-Petition dismissed. [P.499JB&C Mr. Taqi Ahmad KJtan, Advocate for Petitioner. Date of hearing: 1.6.1991. order Three parties being one son and two daughters of Umar Din; one of them Ma. Barkat Bibi (respondent No.l) filed a declaratory suit against her brother, the petitioner herein, and the other sister Mst. Sardaran Bibi, for claiming her l/4th share of inheritance in the lands left by the father, upon a gift allegedly made in favour of the petitioner being set-aside as void and ineffective against her right. Defendants contested the suit on the basis of a joint written-statement wherein while admitting relationship of the plaintiff, they denied her right of inheritance, presumably on account of gift made in favour of the petitioner. They also raised a number of technical objections against the maintainability of the suit which was set-down to be tried on eight issues inclusive of that of the relief. Parties led their evidence wherein copy of mutation relating to gift was produced but registered gift dee,d, whereon it was purported to be based, was not produced. After due consideration of evidence of the parties, learned trial Judge came to the conclusion that gift in favour of the son had resulted from his dominating the will of Umar Din for the reason of his being the only son and both the daughters were married, living with their husbands and in his advanced age Umar Din was residing with his son. He also held that essentials of a gift under Muhammadan Law had not been proved and even authenticity of gift was doubtful. In result, he decreed the suit by the judgment dated 17.2.1988 upon repelling all the technical objections relating to maintainability of the suit. 2. Appeal thereagainst filed by the petitioner came up for hearing before a learned Additional District Judge who reconsidered the evidence existing on the record and affirmed the trial Court's conclusion about Umar Din being under the influence of his only son with whom he was admitted to be then living. Technical objections raised with reference to an earlier suit filed by the plaintiff-respondent in the year 1975, during the life-time of the father who died on 18.3.1985, were repelled with the observations that the previous suit filed by her was not tried but was withdrawn and during the life time of the father she did not even have any cause of action to challenge the gift made by the father, as had been held in Mst.Hamida Begum . Mst.Murad Begum and others (P.L.D. 1975 S.C. 624) and it was concluded that the suit filed on 18.2.1986, within one year of the death of the father, could not be held time-barred. He also took particular notice of the fact that two married sisters of the petitioner were deprived of their right of inheritance on account of Umar Din being under the influence of his only son, the petitioner but the assertion about gift had become doubtful on account of the best evidence relating thereto, in the form of a registered deed, having been withheld despite admission on the point made in the evidence adduced by the defendants. In result, by his judgment dated 29.4.1991 he dismissed the appeal by affirming the trial Court's decree. Defendant No.l has now come up to this Court on revision. 3. Two Courts below have concurrently decided the question of fact relating to influence of the petitioner over his father and this finding has not been shown to have resulted from any jurisdictional error of the nature of misreading or nonreading of some material evidence and thereby genuineness and validity of the alleged gift gets materially impaired in addition to its not having even been proved in accordance with law. Moreover, undeniable object of Umar Din in making of the alleged gift being to benefit the son at the cost of married daughters; it would not be possible to interfere in favour of the petitioner in the exercise of power of revision on account of substantially just decision between ; kzving been concurrently made by the two Courts below. This aspect may be found considered at length in Messrs Ghulam Farid I La&fv. Central Bank of India (P.L.D. 1954 Lahore 575), at page 591. Ikca, k is worthy of being mentioned that view, at one tune held, as reported rAhmad Khan v. Mst. ZamrootJan (P.L.D. 1950 Peshawar 45), was thus:- Tt is the policy of the Muslim jurists to prevent any interference with the coarse of devolution of property amongst the testator's heirs as laid down in the Holy Quran The gift in order to be effective should be a genuine transaction and not merly a plan to achieve some ulterior object. it is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donors, but then it should be the effect and not the real object of the gift. If the real object of the gift is disinheritance of an heir, it will be bad in law." When confronted with the foregoing, learned counsel has elected to the revision-petition on the technical pleas relating to limitation and of the earlier suit. These pleas have been adequately dealt with by I appellate Judge to be rightly repelled on the ground that during the lifeijbk of her father the plaintiff did not have any right to challenge the gift nvportedh/ made by him and, therefore, cause of action for her accrued only •pan the death of the father taken place on 18.3.1985 and the suit filed on 1&2.1986 happened to, by all standards, be within tune. Since the cause of action for the present suit is the right of inheritance accrued upon the death of the father, therefore, nothing turns upon the institution and withdrawal of the previous suit during the life-tune of the father and the objections raised with rtfr"""" to Section 11 of the C.P.C. and the provisions of Rule 1(3) of Order XXHI and Rule 2 of Order II thereof are clearly not sustainable. Equally without is the petitioner's objection based on Section 42 of the Specific Relief Act inch as the plaintiff is a real sister of the defendants and a co-sharer, as such, •!• diem. By virtue of law laid down in Saadullah Khan and 6 others v. Mir Piayo Kkm and 14 others (P.L.D. 1970 Peshawar 150) she has a right to claim herself to be in possession through other co-sharers and was, therefore, not in need of • •ibm., sued out for possession. Foregoing contentions are, hence, repelled as being without substance. 5. There is no other point urged for consideration. 6. Result of the foregoing is that decree concurrently passed by the two! Courts below in favour of the plaintiff is unexceptionable and no basis exists for interference therewith. Revision-petition is devoid of force and is, therefore, summarily dismissed.

PLJ 1991 Lahore 500 PLJ 1991 Lahore 500 Present: GUL ZARIN KlANI, J MUHAMMAD HUSSAIN efc.-Appellants versus MUHAMMAD NAWAZ efc.-Respondents R.S A. No.591 of 1967, dismissed on 123.1991. (i) Mesne Profits- —Exchange of land-Respondent No.l performing his part but appellant could not do so~Suit for possession by respondent decreed and confirmed in appeal- -Challenge to—Whether plaintiff-decree-holder could legitimately claim mesne profits for post decree period-Question of-Trial Court decreed suit on 29.6.1966~Status quo was confirmed by High Court hi this appeal but order was not subjected to any terms to safeguard interests of decree holder—One of first and highest duties of all courts is to take care that act of court does no injury to any of suitors-Held: Court has both jurisdiction and competence to undo wrong and remedy injustice caused by making good loss suffered in interregnum-Judgments and decrees of lower courts below modified to include relief of mesne profits accrued from land in dispute from date of decree till actual delivery of possession. [Pp.504&505]C&D AIR 1922 P.C. 269 and AIR 1953 Patna 289 rel. (ii) Transfer of Property Act, 1882 (IV of 1882)-- —S.119-Exchange of land-Respondent No.l performing his part but appellant could not do so-Suit for possession by respondent decreed and decree confirmed in appeal-Challenge to-Courts below found that it was a case of failing exchange where one party had performed his part and other did not— Principles of Section 119 of Transfer of Property Act are applicable to this case-Held: Courts below were right in decreeing possession of land in dispute to plaintiff-Held further: Second appeal having no substance is liable to be dismissed. [Pp.502,503&504]A&B Syed All Raza, Advocate for Syed Zulfiqar All Bokhari, Advocate for Appellants. Mr. Muhammad Ramzan Raza Klwkhar, Advocate for Syed Nazir Hussain Shall, Advocate for Respondents Nos. 4, 8 & 12. Nemo for other respondents. Date of hearing: 12.2.1991. judgment This is an appeal against the appellate judgment of learned Additional District Judge of Mianwali dated 15.5.1967, in first appeal, confirming the judgment and decree of the learned trial Court passed hi the suit for possession of the land in dispute filed by Muhammad Nawaz plaintiff, now respondent No.l hi the appeal before this Court. Suit was decreed by the trial Court on 29th June, 1966, and appeal filed against the decree of the trial Court was dismissed on the date indicated above. Second appeal brought by Muhammad Hussain and Gulsher defendants 3&4 in the suit was admitted to hearing on 16.10.1967. Facts leading to the litigation briefly put are:- 40 kanals, 1 marla of land situate in mauza Khanpur, Tehsil Bhakkar, belonged to Muhammad Nawaz. He agreed to exchange his above land with Muhammad Bakhsh Khan, Imam Bakhsh Khan sons of Ghulam Muhammad Khan and Sarang Khan, the predecessor-in-interest of defendnats 3 to 10, in return for their land measuring 50 kanals, 18 marlas, at mauza Chandah in Tehsil Bhakkar. Plaintiff fulfilled his part of the agreement, and got mutated his land to Muhammad Bakhsh Khan etc., by mutation No.14, sanctioned on 30.5.1957. Copy of said mutation is Exht. P-3. However, the other side did not abide by the agreement, and, exchange mutation No.798, entered on 1.10.1958, on their behalf, in respect of 5 kanals, 18 marlas of land was rejected on 27.1.1960. Copy of rejected mutation is Exht. P-4. As the plaintiff did not receive anything in return for his land transferred in mutation>Exht. P-3, on 18.5.1964, he instituted a civil suit against Muhammad Bakhsh Khan, Imam Bakhsh Khan and successorsin-interest of Sarang Khan for return of his land and its klias possession from them. Co-owners in the joint khata were also impleaded as defendants to the suit but no relief was claimed against them. Contesting defendants resisted the §uit and repudiated the averments in the plaint. It was stated that the land-in-dispnte was purchased by them for a consideration of Rs.2002.50, but the sale was given colour of an exchange, merely to avoid pre-emption from certain quarters. Further, it was asserted that upon allegations, suit for possession for return of the land in dispute did not lie. Instead, the plaintiff was obliged to sue for specific performance of contract of exchange. The trial Court settled as many as six issues including that of relief on 10.11.1964, but later on, on 16.7.1964 substituted them by new set of issues. Thereafter, it took evidence from the parties and decreed the sou for possession in favour of the plaintiff, on 20.2.1965. However, instead of substituted issues, the trial Court proceeded to record its findings on the issues as initially settled by it. In appeal filed by Muhammad Bakhsh Khan and others, learned District Judge set aside the judgment and decree of the trial Court and remanded the suit to it for re-writing of the judgment on the issues framed on 10.11.1964, on the basis of material already placed on record. Again on 29.6.1966, the trial Court gave the decree for possession in respect of the land in dispute to the plaintiff. An appeal filed against this decree failed with costs, in the Court below. Only material point involved for decision in the appeal was, whether the land in dispute was sold or given in exchange for the land which the plaintiff did not receive. Plaintiffs case was that he had parted with his land in favour of Bakhsh Khan and others, in exchange for the land measuring 50 kanals, 18 marlas belonging to them. As far plaintiff, he transferred his land and got mutation sanctioned in the names of Muhammad Bakhsh Khan etc. Latter, however, did not abide by the agreement and failed to transfer their land to the plaintiff. A mutation of exchange in respect of only 5 kanals, 18 marlas entered was rejected as was clear from Exht. P-4. Defendants had taken the defence that the land-in-dispute was sold to them and they had paid price for it. This version of event was supported by the statement of Muhammad Bakhsh Khan DW-1 and Hassu DW-2. The Courts below did not rely upon this defence evidence to hold the sale of land proved. On record, it was found to be a case of failing exchange, where one party had performed his part and the other did not. Neither sale of land nor payment of consideration was supported by anything in black and white. Mere oral self-serving statement of one of the defendants and a chance witness was insufficient to prove that the land in dispute was sold for a stated consideration. In my opinion, on the existing records, the Courts below rightly took it to be a case of mutual exchange of lands, and, as one of them had failed to perform his part under the contract of exchange, the other was found entitled to I return of his land. The question is, whether the plaintiff was rightly granted this A relief by the Courts below. Though Section 119 of the Transfer of Property Act was inapplicable, yet its principles have been applied to the cases arising hi the Province of Punjab. In M.K. Ranganathan and another versus The Calcutta Tramways Co., Ltd and others- A.I.R. 1956 Madras 285, principle of Section 119 was applied to a case where one of the parties had transferred his property to the other party but that other party had failed to perform his part of the contract by delivering his property. In those circumstances, the Court had to consider the remedy open to the party who had delivered his property without a return from the other. Examining the issue, learned Judges of the Court observed:- "The short point for determination is whether in such circumstances the only remedy open to the party who had delivered the goods in pursuance of the contract of exchange is to recover compensation or damages or to sue for specific performance of the contract. In our opinion, apart from these remedies which, he might have, the aggrieved party can also claim the return of the goods delivered by him if they are in the hands of the other party or his legal representative or transferee from him without consideration. An exchange is defined thus by S.118. T.P-Act:- "When two persons mutualy transfer the ownership of one thing for the ownership of another, neither thing or both things, being money only, the transaction is called an exchange". There has been no such completed exchange in this case, because there has been no mutual transfer. One of the parties no doubt has transferred his property to the other but that other has not in his turn transferred his property. Section 119 is a specific provision dealing with a particular contingency. That section confers a right on a party to an exchange Who is by reason of any defect in the title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option for the return of the thing transferred if still in the possession of such other party or his legal representative or a transferee from him without consideration. It appears to us to follow impliedly from this section, that if a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled to the same reliefs, in the alternative. To illustrate the position: If A agrees to transfer property XloB and B in return promises to transfer property Y to /f, r and in pursuance of this contract, A transfers his property X to B bur B is unable to transfer his property Y to A then -A can either claim compensation for the loss caused by the failure of B to transfer property Y to him or in the alternative claim the return of his property, which he had transferred to B. No doubt S.119 in terms provides for a slightly different case,: namely, where B also delivers his property Y to A but by reason of defect in the title of B to the said property A is deprived of property Y. But the principk underlying S.119 T.P-Act, should also apply to" the case where' instead of a subsequent deprivation of transfer, there is no transfer at all. There is one decision of the Calcutta High Court which supports the view we'are taking'. ib ChSeetaramaswamy versus Narasingha Panda and others-- A.I.R. 1975 Orissa 73, after quoting Section 119 of the Transfer of Property Act, the Court observed' "Although the section, in terms, contemplates a case of one of the parties to the exchange being, by reason of any defect in title of other party, deprived of the thing received by him in exchange, the principle underlying the section should also apply to the case where instead of a subsequent deprivation of the property transferred, there is no transfer at all It would impliedly follow from Section 119 that when a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled at his option for the return of the property transferred by him, if this property is still in possession of the other party or his legal representative or a transferee from him without consideration:. Applying the tests laid down in the above two cases with which I express: cordial assent, the Courts below were right in decreeing possession of the land in ib dispute to the plaintiff. Not only their approach to the record was correct and legal, but their conclusions were perfectly sound. Having due regard to the record, there is no room to hold differently. Second appeal having no substance is liable to be dismissed. Before parting with the case, I must take note of another important question and that is whether the plaintiff-decreeholder could legitimately claim mesne-profits for a post-decree period. In my opinion, it is just the type of a case, where such a relief ought in law be allowed to the plaintiff-decreeholder respondent No.l. He claimed khas possession of his land and filed a suit for that relief on 8.5.1964. The trial Court decreed the suit in his favour on 29.6.1966. Appeal filed against the decree of the trial Court failed on 155.1961. A further appeal filed in this Court was admitted to hearing on 16.10.1%?. On the same day, the Bench admitting the appeal ordered maintenance of "status quo meanwhile", subject to notice for an early date. Status quo was confirmed on 6.8.1968, but the order was not subjected to any terms to safeguard the interests of the plaintiff-decreeholder in the land in dispute. "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains urisdiction over the matter up to the highest Court which finally disposes of the ase". See Jai Berham and others v. Kadar Nath Marwari and ot/iers-A.I.R,1922 'rivy Council 269. Eversince, the attestation of mutation Exht.P-3, Muhammad Bakhsh Khan and others were in possession of the land-in-dispute and appropriated its usufructs without sharing them with the plaintiff who was adjudged to be true owner of the land and found entitled to restoration of its possession. For quarter of a century, plaintiff was deprived of the user of his land. There is no doubt that the Court has both jurisdiction and competence to undo the wrong and remedy the injustice caused by making good the loss suffered in the interregnum. On powers of the Court to award mesne-profits, Das J., in Raghu Mahton v. Bulak Mahton & of/iere-A.I.R. 1953 Patna 289, observed:- "It is true that in empowering Courts to award future mesne profits, O.20 R.12 Civil P.C., makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit; the object is to avoid multiplicity of litigation, as it would be clearly inconvenient and unfair that the person unlawfully kept out of possession of his lands should be obliged to file suits every three years for mesne profits accruing after the institution of his suit in ejectment. But the plaintiff in such a suit cannot claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit, though O.2, R.4, permits the joinder of a claim for mesne profits in a suit for recovery of immoveable property; therefore, it has been held that the power of the Court to award mesne profits subsequent to the suit is discretionary, and a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a i a suit for possession, the Court can award mesne profits •NifHit fetal of general relief was further affirmed in Munshi Benesh Prasad tflf mm eam Jalpa Shankar Varma and of/im-A.I.R. I960 Patna 260. dismissing the appeal of the appellant with costs, I would, in : If ih •• Jlnmary powers of the Court, modify the judgments and decrees • below to include a relief for mesne profits accrued on the land in the date of its decree, till actual delivery of khas possession of the ; decree-holder-respondent No.l takes place. Amount of mesne profits 1 by the trial Court and made part of its judgment and decree. inquiry into the mesne profits shall not arrest execution of the »far as it related to relief for possession of the land. At the end, I must 11 was not much assisted by the learned counsel for the parties. Syed : AE Bokhari, Advocate did not appear. On his behalf, Syed Ali Raza, : catered appearance and requested for an adjournment. As it was an old niting decision since 1967, I was reluctant to grant adjournment. Syed Nazir Hussain, learned counsel representing respondent No.l appear when the appeal was called on for hearing. On his behalf, MrJfcaa F 1>f tl r ]Ka r , Advocate entered appearance. In this state of default, I had to Inofc AnMgh the record, myself for deciding the appeal. Representation by proxy theipful. (Approved for reporting) Appeal dismissed.

PLJ 1991 Lahore 505 PLJ 1991 Lahore 505 Present: IJAZ NISAR, J RAMZAN and 5 others-Petitioners versus : (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE, etc,- Respondents Writ Petition No.3242 of 1985, dismissed on 21.8.1991. & Law! Reforms Regulation 1972 (MLR 115)- —Panu25—Pre-emption-Suit for~Suit decreed by Collector but dismissed in appeal—Board of Revenue again decreed suit of tenant-Challenge to-Oral as vdl as documentary evidence indicates that respondent (plaintiff) was in possession of land on payment of rent without any restriction as to period of occupation—Held: He was a tenant having first right of pre-emption—Petition dismissed. 1P.5091D&I (ii) Land Reforms Regulation 1972 (MLR 115)- —Para.25-Pre-emption-Suit for-Suit decreed by Collector but dismissed in appeal-Board of Revenue again decreed suit of tenant—Challenge to— Whether respondent (plaintiff) was tenant or lessee of land in dispute-­ Question of-Contention that respondent (plaintiff) being in possession on payment of cash rent, does not qualify as a tenant entitled to first right of pre­ emption-Held: Even if respondent was holding land on payment of cash rent, he was a tenant for all intents and purposes and was entitled to benefit of Para.25ofMLR115. [P.508JA&B 1991SCMR228re/. NLR 1988 Rev. 69 over-ruled. (iii) Words and Phrases-- —Words "lease" and "tenacy"—Distinction between—"Lease" implies a contract of occupation of land for a fixed term-Held: Distinguishing factor between two words namely "lease" and "tenancy" is not mode, of payment of rent bat period for which land is rented out by landlord. [P J09JC Ch. Muhammad Farooq, Advocate for Petitioners. Syed Muhammad Zainul Abidin, Advocate with Sh. Muhammad Nasim, Advocate for Respondents. Date of heairng: 2.7.1991. judgment The facts in brief are that Ramzan etc petitioners purchased land measuring 133 kanals and 1 marla situate in Village Qila Chanda Singh, Tehsil and District Gujranwala from Hayat and others for a consideration of Rs.64,000/- through registered sale deed dated 19.6.1973. Maqbool Ahmad respondent pre-empted that sale claiming superior right being a tenant of the said land. Ramzan etc. contested the suit. The learned A.C./Collector, Wazirabad decreed it in favour of Maqbool Ahmad respondent on 17.1.1983. The petitioner challenged the same before the Additional Commissioner who dismissed the suit vide judgment and decree dated 22.2.1984 holding that Maqbool Ahmad respondent was not a tenant but a lessee on paymeiit of fixed rent at the rate of Rs.100/- (f u <^« J !'). Maqbool respondent challenged the said judgment and decree in the Court of Additional Commissioner Gujranwala Division by filing an appeal which was dismissed on 9.8.1984. The relevant para of his judgment is as under: "I have given my careful thought to the arguments addressed by the learned counsel for both the parties and have gone through the impugned order and record of this case. From the perusal of the Khasra Girdawari ExP-3, k has been found that the appellant was paying fixed amount of Rs-100/- per acre at the time of sale of the land, therefore when he cultivated this land under the respondents he was paying 5 Mds. of wheat per acre. In all the entries it is specifically written that he was paying fixed amount of rent. The words 'chakota Sal Tamatn' clearly prove that he was a lessee of this land. The definition of the tenant as to whether a lessee is also covered by the definition of the tenant or not, the Land Commission vide Press Note No.57 dated 7th June, 1973 clarified the matter that the word 'tenant' as used in paragraph 25 of the MLR 115 did not include a lessee. According to definition of a tenant as given in clause 13 of paragraph 2 of the Land Reforms Regulation No.115, a lessee whether cultivating the land himself or through another person is not included in the definition of a tenant. In such circumstances it is proved that the appellant was holding this land as a lessee and not as a tenant. Thus he had got no superior right of pre-emption over the suit land. Finding given by the learned Collector calls for no interference. I, therefore, find no merits in the appeal and the same is dismissed hereby". 2. Feeling aggrieved, Maqbool Ahmad respondent filed a revision in the Board of Revenue which was accepted on 16.7.1985 and the suit filed by him was decreed. The operative part of the order of M.B.R. is as follows: 1 have heard the learned counsel for the parties. The point at issue is as to whether the petitioner held the land as a tenant or as a lessee. According to the entries of register girdawari tendered before the trial Court, the petitioner is entered as tenant-at-will on payment of cash rent for period 1971 to 1978 whereafter he is again recorded as tenant-at-will on payment of specific produce. By the nature of these entries and in the absence of any documentary proof that there was an agreement of lease by the petitioner, he has to be held as tenant-at-will having rights of pre­ emption under MLR-115. The mere fact that he gave a statement in the trial Court that he was cultivating the land as 'Thekedar' on payment of cash rent did not justify the findings of the lower courts that the petitioner was a lessee and not a tenant. The character and the description of the entries of register girdawari which consistently describe the petitioner as tenant-at-will, vest the petitioner with the rights of tenant for the purpose of MLR-115.1, therefore hold that the findings of the lower courts on this issue are misconceived and would set them aside in revision". In consequence he decreed the suit in favour of Maqbool Ahmad respondent. Hence this writ petition. 3. It is contended that the learned Member Board of Revenue has misread the documentary as well as oral evidence. He failed to consider the admission of the respondent before the trial Court that he was cultivating the land as a Tliekedar on payment of cash rent. Being a lessee he was excluded from the definition of tenant as given by Ordinance 5 of 1982, and the right of pre-emption did not vest in him. 4. Maqbool Ahmad respondent has resisted the petition. Learned counsel appearing on his behalf submits that the nature of rent or mode of payment is not relevant for determining the status of a tenant and his status is to be determined by the entries in Jamabandi and Register Girdawari. He has cited Bhapoo Khan v. Noor Din and others (PLD 1985 Rev. 203) where it was held that the payment of rent in cash and description of a person as Thekedar' would not reduce him to the position of lessee. Lai Din . Bashir Ahmad (1991 S.C.M.R. 228) has also been cited where it was held that a person holding land on payment of rent consisting of fixed amount was a tenant entitled to the right of pre-emption as provided under the law. 5. 'Tenancy' is in fact created by the nature of the relationship of the landlord that he has with the person to whom he gives the land for use and occupation. It is not always essential to organise this relationship by an expression contract. It can effectively (be) emancipated by implication or by the conduct of parties. Even if Maqbool Ahmad respondent was holding the land on payment of rent consisting of fixed amount of cash, he was, a tenant for all intents and purposes and was entitled to the benefit of para 25 of MLR 115. Learned counsel for the petitioners has mainly relied upon a judgment of the Peshawar High Court j in the case of Said Hakeem etc. v. Shahdad etc. reported as NLR 1988 Rev.69 and has argued that payment or rent in cash to the landlord deprived the respondent of the status of a tenant. He contended that the tenant who is bestowed with first right of pre-emption, must be a tenant paying the share of produce in kind and a person who is (in) possession of land on payment of cash rent does not qualify as a tenant entitled to the first right of pre-emption. 6. The learned counsel, however, lost sight of Lai Din's case (1991 SCMR 228) which thrashed out the relevant law as well as the precedents including that of Said Hakeem's case. The finding given in Said Hakeem's case stands overruled by the verdict delivered in Lai Din's case. In view of this position a person holding land on payment of rent consisting of a fixed amount irrespective of the crop, for all intents and purposes is a tenant entitled to the right of pre-emption as provided under the law. 7. The petitioner's (?) contention is that he is a tenant whereas the case of the respondent (?) is that he is not a tenant, but a lessee. The distinction between 'tenancy' and 'lease' contemplated by MLR 115 has not been clearly spelled out by any provision thereof. These words as such were not defined in MLR 115. Subsequently, however, it was provided that the word "tenant" used in para 25 of the said Regulation shall have the same meaning as assigned to it in clause (26) of Section 4 of the West Pakistan Land Revenue Act, 1967. 8. Section 4(26) of the West Pakistan Land Revenue Act, 1967 defines Tenant' as under:- ""4(26) 'Tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person, and includes the predecessors and successors in interest of such person, but does not include a mortgagee or a lessee". A 'lease' is defined by Section 105 of Transfer of Property Act as under: - "105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferer by the transferee, who accepts the transfer on such terms". 9. Even in common parlance 'theka' or 'lease' implies a contract of occupation of land for a fixed term. Thus in my view the distinguishing factor between the two words namely 'tenancy 5 and 'lease' is not the mode of payment of rent but the period for which the land is rented out by the landlord. In case of a lease, it should be for a fixed period but in case of tenancy the occupier holds on the land till the same is terminated expressly or by implication. 10. In the instant case oral as well as documentary evidence indicates that Maqbool Ahmad respondent was in possession of that land on payment of rent without any restriction as to the period of occupation. He was, therefore, a tenant having the first right of pre-emption. 11. Consequently, I am of the view that the Member, Board of Revenue had I rightly held Maqbool Ahmad respondent to be a tenant over the suit land. Finding E absolutely no illegality, much less jurisdictional defect in the impugned order, the I writ petition is dismissed with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Lahore 515 PLJ 1991 Lahore 515 Present: malik muhammad qayyum, J MUMTAZ HUSSAIN-Petitioner versus CHAIRMAN, ZILA COUNCIL, JHANG and 3 others-Respondents No.4168 of 1991 (also W.P. Nos.5335 and 3885 of 1991) decided on 20.7.1991. Ptrson- — tib am transfer of immovable property-Collection of-Auction of-Contract to respondent No.4 while petitioner's bid was highest—Challenge to— petitioner has no locus standi to file writ petition-Question of~ petkioner was highest bidder in auction held on 30.4.1991, and was lo hame this bid put up for confirmation before competent authority— of Supreme Court that a person bidding at an auction and of having received no notice of auction is an aggrieved person and to file constitutional petition, becomes fully attracted to this [P.519]A PLD 1976 SC 581 rel. : rtmedy-- i transfer of immovable property-Collection of-Grant of contract to No.4 while petitioner was highest bidder-Challenge to-Whether adequte remedy in form of reference to Commissioner, for is available to petitioner-Question of~Clause 21 of terms and of auction provides reference of dispute to arbitration of r, but disputes which can be referred for arbitration are mainly witib regard to receipts of tax and allied matters relating thereto-Held: ; which call for determination in this case are entirely different and ; covered by arbitration clause-Held further: Chairman of Zila Council whom serious allegations of fraud and forgery are levelled, being Minister of Punjab, remedy of arbitration cannot be considered efficacious or adequate. [P.520JC&D PLD 1966 SC 639 and PLD 1975 SC 355 rel. (iii) Constitution of Pakistan, 1973- —Art.l99-Tax on transfer of immovable property—Collection of—Grant of contract to respondent No.4 while petitioner was highest bidder—Challenge to- -Objection that contractual rights cannot be enforced through constitutional petition-Petitioner is not seeking enforcement of a contract simpliciter but has challenged actions of respondent No.l as being without lawful authority being violative of Punjab Local Government Ordinance, 1979 and statutory rules framed thereunder-Held: Objection is without any merit. [P.519]B PLD 1976 SC 581 rel. (iv) Punjab Local Councils (Contract) Rules, 1980- —R.4-Tax on immovable property-Collection of-Grant of contract to respondent No.4 while petitioner was highest bidder—Challenge to—If value of contract exceeds rupees three lacs, contract can only be made by Chairman of Zila Council with prior approval of Local Council—No sack approval is forthcoming on record with result that contract being violative of rales, has no legal validity—Held: Proper order which deserves to be passed, is that Zila Council shall proceed to re-auction lease rights in question after doe notice in accordance with law. [Pp321A32ZjF&G (v) Punjab Local Councils (Lease) Rules, 1990- —R.4-Tax on transfer of immovable property-Collection of-Grant of contract to respondent No.4 while petitioner was highest bidder-Challenge to- -It stands admitted on record that no separate notice was given with respect to rc-auclion-According to Rule 4(1), public notice in not less than one daily newspaper and of at least seven days before date fixed for auction, has to be given by Local Council-Held: Notice for auction is obviously violative of Role 4 of Punjab Local Council (Lease) Rules, 1990-Held further. As second auction was clearly without any notice, it cannot be sustained. [Pp32QftS21]E Mr. All Ahmad Awan, and Qazi Mohyuddin Klian, Advocates for Petitioners. Mr. Munir Ahmad Bhatti, Advocate, Mr. All Sibtain Fazli, Advocate and Mr. Irfan Qadir, Addl A.G. for Respondents Nos. 1 to 3. Mr. A. Karim Malik, Advocate for Respondent No.4. Mr. Maqbool Elahi Malik, Advocate General with Mr. Muhammad Raft Siddiqui, Advocate on Court's call. Date of hearing: 20.7.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has been filed by Mumtaz Hussain petitioner who claims to be the highest bidder in an auction held on 30th April 1991 for leasing out the rights to collect tax on transfer of immoveable property situate within the areas falling within the jurisdiction of Zila Council Jhang. According to the petitioner this bid Zila Council Jhang (Respondent No.2) in he deposited the requisite amount but respondent No.2 Ike agreement with the petitioner has awarded the contract any lawful justification. filed by respondents No.l and 2, the facts of the

the auction and his being the highest bidder have not I or Tf^ IMl . bat it has been vehemently asserted that the auction in jJt»"«gr was not confirmed but was rejected by the Chairman the subsequent auction was held on 8th of May, 1991, in which No.4 was the highest bidder at Rs.133,00,000/-. This auction was I by the Chairman, Zila Council, in pursuance whereof an agreement was 1 between Zila Council and respondent No.4, who is, as such, entitled to the contract It was asserted that the documents filed with this petition r that the auction in favour of the petitioner had been confirmed, are false ••d fabricated. 3. k is to be noted that on 9.6.1991 Mr.Munir Ahmad Bhatti, Advocate, combe! far Trso m 'V mr

1 to 3, made a statement that his clients had no objection ordered to be re-auctioned. The learned Advocate-General ame position. This arrangement was, however, not accepted No.4, whose learned counsel stated that valuable rights in favour of had been created on account of acceptance of the bid, payment and execution of the contract, and he could not be deprived of 4L Ike jmft^ counsel for the petitioner apart from reiterating the contents of dhcaiEtliaB kz& argued that in law the power to accept or reject the bid vests in not the Chairman and as the bid of the petitioner was never l Council, its rejection by the Chairman is meaningless and has I consequently, the rights could not have been reauctioned. The Mfnil oMBsel next argued that the auction alleged to have been held ob 8th May, 1991 is, in any case, illegal as it was without any prior notice, as required by the junjab Local Councils (Lease) Rules, 1990, particularly Rule 4 whereof which provides that in case of reauction a notice of not less than fifteen days shall be given. The learned counsel emphasised that in the public notice issued on 26th April, 1991, although it was provided that if the auction could not be held on 30th April, 1991, it shall be held on 6th of May, and 8th of May, 1991, bat as admittedly an auct'on was held on the 30th April, 1991, subsequent auctions could not take place. It was also urged that the second auction was not only violative of the Rules, but a sham transaction and was collusive and fraudulent. So far as the contract executed between respondents No.l and 4 was concerned, the learned counsel pointed out that it was violative of Section 39 of the Punjab Local Government Ordinance, 1979 and the Punjab Local Council (Contract) Rules, 1980, according to which the Chairman can execute the contract the value of which does not exceed rupees three lacs. 5. In reply the learned counsel representing respondent No.4 objected to the maintainability of the petition on the ground that the petitioner has not come to the Court with dean hands as his claim is based upon forged and fabricated documents; that there are disputed questions of fact involved in the controversy which cannot be adjudicated upon in the constitutional jurisdiction of this Court; that the petitioner has an equally efficacious remedy available in the form of reference of the dispute to the arbitration of the Commissioner in accordance with the terms and conditions of auction; that the rights flowing out of a contract cannot be made subject matter of a constitutional petition and lastly that the petitioner has no locus standi to file the petition being only a prospective bidder. 6. On merits it was argued that the bid in favour of the petitioner was never approved but was rejected by the Chairman who was competent to do so and has been delegated with the power by resolution No.2 dated 7th June, 1990. As regards the second auction it was argued that it has been held after due notice in accordance with law. 7. In reply, the learned counsel for the petitioner has taken up die position that the Chairman in collusion with his officers has changed the entire record and the documents filed by the petitioner were genuine while the record produced by the respondents has been forged and fabricated. The learned counsel has emphasized that the petitioner has deposited the'entire money due under the auction which shows that the transaction was bonafide and the bid of the petitioner had been confirmed. 8. As is obvious from the facts noted above, a serious factual controversy between the parties is as to whether or not the bid of the petitioner was approved/confirmed by the Chairman. Both the parties filed documents supporting their versions. However it is not possible to resolve these disputed questions in the exercise of constitutional jurisdiction of this Court. The case shall, therefore, proceed on the assumption that the bid in favour of the petitioner had not been approved by the Chairman and only the facts which are not in dispute shall be taken notice of. 9. The admitted position is that in pursuance of the public notice published on 26th April, 1991 the auction of the rights to collect the tax was held on 30th of April, 1991, in which the petitioner gave the highest bid of Rs.1,26,05,000/-. It is conceded in the written statement filed by respondents No.l and 2 that the auction committee comprising three members had recommended that this auction be confirmed. It is disputed that no separate notice for the auction held on 8th of May, 1991 was issued. In that auction, according to the respondents, the bid of respondent No.4 was the highest, which was subsequently approved by the hallenged the impugned actions of the respondent kwful authority being violative of the Punjab Local 1979 and the statutory rules framed thereunder. A similar in Arsalla Khan's case supra, but was repelled in the r was conscious that the appellant's case against this part of the I Older was on a much weaker footing than the challenge to the i for the rejection of the first respondent's bid. Learned counsel, submitted that as the first respondent's claim arose out of a of contract, the High Court had erred in holding that his writ as maintainable. In support of this submission learned counsel this Court's judgments in Meraj Din v. Noor Muhammad and t Munshi Muhammad and another v. Faizanul Haq and another Parvez Qureshi v. Settlement Commissioner, Multan & Divisions, Multan and others. But the High Court had I the writ on the ground that the first respondent had relied on the i of a statutory provision namely sub-rule (1) of rule 225 and had the Government's order inter alia on the ground that it vires of Sections 61, 62, and 63 of the said Ordinance. The whether sub-rule (1) of rule 225 is in force is not free from doubt, but in any case, the direction to lease the octroi rights to the appellant was a breach of a statutory provision, and as the first respondent's claim that his bid at auctions for octroi rights has not been challenged, he was an aggrieved person within the meaning of Article 199 of the Constitution". 12. This brings me to the question as to whether the petitioner, in the circumstances of the case, can be said to have another adequate remedy available to him in the form of reference to the Commissioner for arbitration. It is correct that clause 21 of the terms and conditions of the auction provides that in the event of any dispute between the parties the matter shall be referred to the Commissioner but the applicability of this clause to the dispute in this petition is highly doubtful. On a true reading of the relevant dause, k appears that the disputes which can be taken before the Commissioner are mainly with regard to the receipts of the tax and allied matters relating thereto. The questions, however, which fall for determination in the present case are entirely dUfcicat and to these disputes the arbitration clause cannot be extended. Be that as it may, it is to be seen that the Chaima of (he Zia Council against whom serious allegations of fraud and forgery have bee VnffffHl happens to be the sitting Minister of the Punjab Government The rcMedyfar ariMtration before the Commissioner cannot, therefore, be efficacious or adequate in the circumstances of the present < the Zila Council has itself failed to invoke the Constitutional petition cannot be thrown out on this Ahmadiya v. D.C. Sargodha (PLD 1966 S.C. 639) and the I Masjid, Ghulam Muhammadabad Colony, Lyallpur v., Communication and works Dept. Lahore (PLD 1975 S.C 355). 14. As regards the merits it may be noticed I Rule 4 of the Punjab Local Council (Lease Rules) 199% 1 powers conferred under Sections 144 and 167 of the Punjab Local Ordinance 1979 by the Government of the Punjab, the power to accept or reject the bid vests in the Local Council and not its Chairman. That being so k was incumbant upon the Chairman to have placed the bid of the petitioner for ks confirmation or rejection before the Local Council but he instead, according to the .case of the respondents, proceeded to reject the same. As regards the contention of the learned counsel for the respondents that the powers in this respect had been delegated to the Chairman vide resolution No.2 dated 7th June, 1990 there is no merit in it. On a true interpretation the resolution, it shall be seen that its applicability was confined to the contract for the year 1990-91 and there was no general delegation. This view gains strength from the fact that the matter under discussion at the relevant time was only with respect to the budget for the year 1990-91. It is however, not necessary to dilate any further on this aspect of the matter as the petitioner has made a statement in this Court that he does not press for the confirmation of his bid but has prayed for re-auction. 15. An equally important reason as to why the auction in favour of respondent No.4 cannot be sustained is that it was held without due notice. It stmi admitted go the record that no separate notice was given with respect to n •rtion on 8th June, 1990. Reliance has, however, been placed upon the notice dated 25th April, 1991 in which it was stated that if no auction is held on 30th Apri, 1991 the reauction shall take place on 6th and 8th May, 1991.- This notice hardhr satisfies the requirement of law. According to Rule 4(1) of the Punjab Local Councils (Lease) Rules 1990, public notice in not less than one daily ttLwvpiyut and of at-least 7 days before the date fixed for auction has to be given by Ac Local Council. By virtue of sub-rule (5) this provision applies to re-auctions aba. Sab-rule (2) requires that the notice should contain the date of the meeting of the Local Council to be held for considering the acceptance of the bid made in an aBction, but in the notice on which reliance has been placed by learned counsel for respondent No.4 no such date finds mention at all. The notice is obviously violative of Rule 4 of the Punjab Local Council (Lease) Rules 1990. Even otherwise the auction held on 8th May, 1991 is contrary to the contents of the notice dated 26th April, 1991 itself. In the said notice it was stated that if no auction could be held on 30th April, 1991 reauction shall take place on 8th May, 199L In the present case it is common ground between the parties that auction was held on 30th April, 1991 though according to the respondents it was not approved, but the fact remains that the auction had taken place on 30th April, 1991, and the Committee recommended that the petitioner's bid be accepted. That being so, it cannot be said that as no auction had taken place on 30th of April, 1991, the respondents were entitled to hold auction on 8th May, 1991 without any further notice. The learned counsel for the petitioner has placed on record the instructions issued by the Government of Punjab to all Chairmen of Zila Councils, dated 13th May, 1991, in which practice to hold auction for the second time in such like manner has been deprecated. As the second auction was clearly without any notice, it cannot be sustained. 16. As regards the contract executed in favour of respondent No.4, it is true that under rule 4 of the Punjab Local Councils (Contract) Rules, the Chairman is authorized to execute all contracts on behalf of the Zila Council, but according to the proviso to the rule itself read with Schedule-I, if the value of the contract exceeds rupees three lacs, the contract can only be made by the Chairman with the prior approval of the Local Council. In the present case, there is no approval by the Zila Council forthcoming on the record with the result that the contract being violative of the rules has no legal validity in view of sub-section (2) of Section 39 of the Punjab Local Government Rules, 1979. 17. So far as the relief is concerned it is to be seen that the counsel for the petitioner, respondent No.2 and the counsel for respondents 1 to 3 have stated before this Court that the rights may be ordered to be reauctioned. The learned Advocate-General also made a statement to similar effect. This course of action, was not acceptable to the learned counsel for respondent No.4. But it has been held that the auction in his favour was violative of the rules and was illegal and thus not sustainable. So, in view of the circumstances of the case, the proper order whir .1 deserves to be passed is that the Zila Council shall proceed to reauction the lease rights in question after due notice, in accordance with law. I order accordingly. 18. It may be stated that the petitioner has undertaken to make good the loss, if any, suffered by the Zila Council, for the re-auction and had also undertaken to deposit rupees twenty lacs with the Zila Council within a period of three days from today. 19. For the foregoing reasons, W.P.5335 of 1991, filed by Zahoor Elahi challenging both the auctions as being illegal with the prayer that re-auction of the rights be ordered, stands accepted. Both these petitions stand disposed of in the above terms. (MBC) (Approved for reporting) Re-auction ordered.

PLJ 1991 Peshawar 1 (FB) PLJ 1991 Peshawar 1 (FB) Present: SARDARFAKHREALAM, CJ, INAYATELAHI KHAN, NAZlR AHMAD bhatti, qazi muhammad jamil, and ibne ali ± JJ AFTAB AHMAD KHAN SHERPAO-Petitioner versus THE GOVERNOR, NWFP and 3 others-Respondents Writ Petition No. 352 of 1990, accepted on 26.9.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —-O. XXVII-A, Rule 1 read with Constitution of Pakistan, 1973, Articles 112(2) (b) and 199-Provincial Assembly-Dissolution of-Challenge to- Whether it was necessary to give notice to Attorney General-Question of-It is quite obvious that Rule 1 of Order XXVII-A is applicable to a suit-If general principles of CPC are extended to Constitutional petition, Advocate General is to be issued notice if question of law concerns Provincial Government and Attorney General shall be issued notice if question of law relates to Federal Government-In this case both Province and Federation are arraigned as parties-Provincial Government has engaged private counsel alongwith Advocate General in response to notice—Similarly Federal Government has decided to engage a counsel who represented it-Held: It is not incumbent on High Court, in circumstances of case, to needlessly issue notice to Attorney General (Per Sardar Fakhre Alam CJ) [P.17]O (ii) Constitution of Pakistan, 1973-- —Art. 112(2)(b) read with Article 48(2)--Prvoincial Assembly-Dissolution of-Challenge to-Contention that by specifically limiting certain functions to be performed by President on advice of Prime Minister, rest of powers or functions to be performed by him shall be in his discretion and without his (Prime Minister's) advice-Held: Agreeing with this contention of learned counsel for respondent No. 3 will negate spirit of Parliamentary Government which is engrained in structure of constitution. (Per Sardar Fakhre Alam CJ) [P.11JD&E (iii) Constitution of Pakistan, 1973-- —Art 112(2)(b)-Provincial Assembly-Dissolution of~Challenge to~It is undisputed that reasons for dissolving a legislature in his discretion by Head of State or Head of Province must have nexus or co-relation with enabling conditions laid down in constitution itself-Held: Admitted position is that copy of notification appended with petition or copy of Notification dated 6.8.1990 later on produced by counsel for respondent No.2, both do not give any reason or ground for satisfaction of Governor to dissolve legislature. (Per Sardar Fakhre Alam CJ) [P.lljF (iv) Constitution of Pakistan , 1973-- —- Art 112(2)(b) read with Article 58(2)--Provincial Assembly-Dissolution of- Challcnge to—It is by now an established interpretation of Articles 58(2) and 112(2) of Constitution that discretionary power is to be exercised only after laying down objective grounds for satisfaction that Constitutional conditions for exercise of such power existed—Held: Notification issued on date of dissolution carries no ground and corrigendum issued on 16.9.1990 relates certain reasons which are not only vague, undefined and general, but have no reference to objectives laid down in Art. 112(2) of Constitution. (Per Qazi Muhammad Jamil, J) [Pp.l9&20]Q&R (v) Constitution of Pakistan, 1973-- —-Art. 112(2)(b)-Provincial Assembly-Dissolution of-Challenge to-Whether approval of President for dissolving Assembly was obtained-Question of- Article 112(2)(b) lays down that Provincial Assembly is to be dissolved after prior approval of President of Pakistan—Approval of President is imperative- Held: Respondents have failed to produce any document in form of a summary or draft of dissolution order itself which was communicated to President for his approval. (Per Sardar Fakhre Alam CJ) [Pp.9&10]B&C (vi) Constitution of Pakistan , 1973-- —Art. 112(2)(b)-Provincial Assembly-Dissolution of-Challenge to-Whether dissolution order is open to judicial scrutiny—Question of—It is now universally accepted principle that ouster clause shall not deter court from looking into statutory powers of a functionary if same are arbitrarily exercised-Distinction has to be made between discretion to be exercised and opinion to be formed for exercise of such discretion-Held: Court may be precluded from questioning discretion itself but if such an exercise is dependent on certain conditions, contents of powers so exercised in relation to such conditions are open to scrutiny by superior courts specially when rights of people are thereby al'lected. (Per Sardar Fakhre Alam CJ) [P.9]A \ii) Constitution of Pakistan, 1973-- —Art 112(2)(b)—Provincial Assembly—Dissolution of—Challenge to—Whether dissolution order was justified-Question of~There is neither any charge nor any indication against NWFP Government that there was "breakdown of Constitutional mechanism, a stalemate, a deadlock in ensuring observance of provisions of Constitutions-Provincial Goernment was functioning smoothly and despite stresses and strains of trouble in neighbouring Afghanistan, there was comparative stability in affairs of Province-Held: No justification has been made out for Goernor to make" an appeal to electorate only twenty months after election of Provincial Assembly. (Per Sardar Fakhre Alam CJ) [P P .14&15]L iviiii Constitution of Pakistan, 1973-- —-Art. 112(2)(b)-Provincial Assembly-Dissolution of~Challenge to-Whether Government of NWFP could not be carried on in accordance with constitution-Question of-It is admitted fact that not a few members belonging to A.N.P. but entire party decided to form a coalition Government \vith party of petitioner—Certain I.J.I, members formed an independent group and joined Government as such group-Whether such an action on their part amounted to defection, is a matter still sub-judice before High Court—Held: No other example or instance was given for changing of loyalties for political and personal gains by members and other functionaries of Government as alleged in corrigendum—Held further: It was also not pointed out as to how Government of NWFP could not be carried on in accordance with constitution. (Per Sardar Fakhre Alam CJ) [P.14JK (ix) Constitution of Pakistan, 1973- —-Art. 112(2) (b)-Provincial Assembly-Dissolution of-Challenge to-Whether grounds existed for dissolution of Assembly-Question of~Corrigendum issued on 16.9.1990 points out failure of Provincial Assembly in three fields namely (1) its usefulness and its mandate, (2) confidence of people reposed in it, and (3) orderly functioning of Government in accordance with provisions of Constitution-This failure has been caused, in opinion of Governor, by continuous and widespread corruption including misapplication of public funds and horse trading, and change of loyalties in violation of law—None of counsel appearing on behalf of respondents 2 and 3 were able to provide concrete information to substantiate said allegations-Held: Governor has not given any instance, details or material which led to formation of his opinion about members of Assembly and other functionaries mentioned in his dissolution order-Held further: Material which formed basis for opinion of Governor is least relevant for establishing allegations levelled by him in so-caled corrigendum. (Per Sardar Fakhre Alam CJ) [Pp.l2,13&14]G,H&J (x) Constitution of Pakistan, 1973-- —Art 199 read with Article 112(2) (b)—Provincial Assembly—Dissolution of— Challenge to--Whether relief be or be not granted-Question of-Dissolution of Provincial Assembly was not warranted by provisions of Constitution and was ultra vires of same—Argument that election schedule having already been announced and Provincial machinery having been geared up, relief (of restoration of Assembly) should not be granted to petitioner—Held: This argument is not only devoid of any prusuasive value but it is also fraught with dangers-Petition accepted and Assembly/Cabinet restored. (Per Sardar Fakhre Alam CJ) [Pp.l5,16&17]M,N&P (xi) Constitution of Pakistan, 1973-- —-Art. 199 read with Art. 112(2)--Provincial Assembly--Dissolution of~ Challenge to-Whether relief be or be not granted-Question of-Refusal to grant relief even if impugned action is found to be un-constitutional and without lawful authority, is like asking a surgeon noi to stitch incision after performing a surgery-Held: Impugned order of dissolution is declared ultra vires of Constitution, without lawful authority and of no legal effect-Petition accepted and NWFP Assembly and Cabinet restored (Per Qazi Muhammad Jamil, J) [Pp.20&21]S&T (xii) Constitution of Pakistan, 1973-- —Art. 199 read with Article 112(2)-Provincial Assembly-Dissolution of~ Challenge to—Whether relief be or be not granted—Question of—There was disarray amongst members of Provincial Assembly particularly amongst cabinet members-Two Ministers had resigned on ground of corruption and mal-practices attributed to then Government-Peoples party did not have absolute majority of members of Provincial Assembly—Election Commission has completed almost all legal formalities for holding free, fair and impartial elections—Nomination papers have been filed and appeals against acceptance or rejection of nomination papers shall be disposed of by Tribunals by 2.10.1990-Election compaign is in full swing-Held: Expediency demands that this process must be taken to its logical conclusion-Petition dismissed (Per Syed Ibne All, J) [Pp.24&25]U,V,W&X Syed Iflikhar Gillani, Advocate for Petitioner. Mr. M. Zahoonil Haq, Advocate for Respondent No.2 Mr. Maqbool Elahi Malik, Advocate for Respondent No. 3. Mr. J.D. Akbarji, Advocate General also present for Respondents. Dates of hearing: 22 to 25.9.1990. judgment Sardar Fakhre Alam, CJ.—Detailed hereafter are the reasons for the short order made by this Court on 26th September, 1990. 2. In the evening of August 6, 1990, the Governor of North West Frontier Province, dissolved the Provincial Assembly in a Press Conference. It was also stated that the Chief Minister and his Cabinet had "ceased to hold office forthwith". Mr. Aftab Ahmad Khan Sherpao, being the leader of the House and the Chief Minister before the dissolution of the Assembly, has approached this Court with this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan. 3. The petitioner annexed with his petition copy of the Notification published on 7th of August, 1990, communicating to him the order of the aforesaid dissolution of the Provincial Assembly. The Notification is duly signed by the Additional Secretary Law, Government of N.W.F.P. which is reproduced below:- "ORDER No. Legis: 4(l)/77.—WHEREAS a situation has arisen in which the Government of the North-West Frontier Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary; NOW, THEREFORE, in exercise of the powers conferred by sub-clause (b) of clause (2) of Article 112 of the Constitution of the Islamic Republic of Pakistan, I, Amir Gulistan Janjua, Governor of the North-West Frontier Province, in my discretion and with the previous approval of the President, hereby dissolve the Provincial Assembly with immediate effect, and consequently, the Provincial Cabinet shall also stand dissolved. AMIR GULISTAN JANJUA GOVERNOR OF NORTH-WEST FRONTIER PROVINCE. Peshawar , Dated the 6.8.1990. Sd/- (FAZAL-UR-REHMAN KHAN) Additional Secretary, Law Department. In their written statement, respondent No.2, namely, the Province of NWFP specifically denied the existence of the aforesaid Notification by stating that the same "was neither approved by the President nor approved or signed by the Governor nor released to the press by the Governor at the time of Press Conference held by the Governor on 6.8.1990 at evening time in the Governor's House". Instead, the respondents filed with their written statement as Mark-R2 the newspaper report of the Press Conference published in the Frontier Post of August 7,1990. Also attached was a statement signed by the Governor of NWFP dated 6th August, 1990. It was stated in para 4 of the preliminary objections to the competency of the writ petition that the order of dissolution "under Article 112 of the Constitution previously approved by the President duly signed by the Governor and released to the Press at the time of Press Conference of the Governor on 6.8.1990 in the Governor's House is entirely different and a photo copy of the original is appended as Mark-Rl on front page of the Frontier Post dated 7.8.1990 copy of which is attached as annexure R-2". Thus the Court was informed that the order of dissolution was in fact annexure R-l and not the Notification annexed with the petition. Strange enough, however, one S.Tanzilul Haq Halimi, Secretary Provincial Assembly of NWFP who is not a party before us has conveyed to the Registrar, Peshawar High Court, through a covering letter that "respondent has attached impugned copy of Notification No.Legis; (l)/77, dated 6.8.90 which was circulated to the Ex.M.P. As under my signature" and "that a corrigendum has been issued in the impugned Notification by respondent No.l bearing the same date i.e. 6.8.1990 circulated under the same number dated 16.9.1990" received in his office on 17.9.1990 which was brought to his notice on 19.9.1990. He, therefore, felt "duly bound" to furnish copy of the corrigendum to the Registrar for the information of the Judges. The letter and the so-called corrigendum have been placed on the record. The written statement, however, as stated earlier, has no mention of the said corrigendum but the learned counsel for respondent No.2 standing at the bar acknowledged the same and owned it too. He also, at this stage, handed over a copy of the Notification which was mentioned in the covering letter of S.Tanzeemul Haq Halimi. The same has also been placed on the record. It is pertinent to point out here that the contents of the said Notification are not different from the contents of the Notification impugned by the petitioner and placed by him before,us alongwith his petition. Confronted with the aforesaid situation Mr. Zahurul Haq came out with the reply that the original Notification which was identical to the Notification placed with this petition was a result of "human error". He was constrained to say so as the said Notification did not give any ground for the dissolution of the Provincial Assembly and one of the grave attacks made on the said Notification by the petitioner is that the impugned order of dissolution did not carry any reason for dissolution of the Assembly. This "human error", according to him, was rectified on 16.9.1990, when the so-called corrigendum was issued. According to the learned counsel the corrigendum has replaced the original Notification and, therefore, he argued that the petitioner ought to amend his petition suitably to assail the corrigendum. The corrigendum carries reasons for forming the opinion of the Governor to dissolve the Assembly. Thus we have five documents placed on the record all purporting to carry the dissolution of the Provincial Assembly. 4. The purpose of giving the above details is to reflect upon the supercilious manner in which the elected assembly of the Province was dissolved. It also supports the allegations of the petitioner that act of dissolution of the Provincial Assembly was not based on objective consideration. As shall be presently discussed, it is also one of the elements for us to ponder as to whether the approval of the President was obtained prior to the dissolution of the Assembly as enjoined by Article 112 of the Constitution and if so what were the contents of the proposal put forward to the President for the aforesaid purpose. However, in the interest of justice, we decided to consider all the documents including the corrigendum issued on 16.9.1990 for the purpose of scrutiny of the nature of reasons given therein which prompted the Governor to dissolve the Assembly. How can the respondents benefit by their own mistake by asking us to punish the petitioner for not attaching with the petition the corrigendum which did not exist at the time of filing of the petition and which was brought out only after the petition was admitted for regular hearing. In any case, the corrigendum carries re­ production of the grounds given in the press statement of the Governor on 6.8.1990 which was challenged by the petitioner as to be non-existent, without any specific instance of the allegations mentioned therein, vague and general in paragraphs 6 to 8 of their petition. Mr. Iftikhar Hussain Gillani, the learned counsel for the petitioner quoted extensively from the judgments of the Supreme Court reported as Federation of Pakistan and others Vs. Haji Mohammad Saifiillali KJwn and others (P.L.D. 1989 S.C. 166 = PLJ 1989 SC 10) and of the Lahore High Court in KJiawaja Sharif. Vs. Federation of Pakistan and others (P.L.D. 1988 Lahore 725). He also relied on Mohammad Anwar Durrani Vs. Province of Baluchistan and others (P.L.D. 1989 Quetta 25 = PLJ 1989 Qta. 14 (FB)) in support of his arguments. The following un-disputed premises are laid down in the light of the above cited judgments which are not questioned by the learned counsel for the respondents, (i) Once this Court assumes jurisdiction to adjudicate the matter before it, the justiciability of the issue raised before it is beyond question, (ii) the opinion of the President under Article 58 (2) (b) of the Constitution and that of [he Governor under Article 112(2) of the Constitution for the exercise of the discretionary powers to dissolve the legislature has to be formed on objective grounds having nexus with the conditions laid down for the exercise of such powers and (iii) the grounds forming the opinion for the exercise of the aforesaid discretion must not only be related to the conditions laid down in the Constitution but should not be vague, general or devoid of material particulars. 6. However, the learned counsel for respondents 2 and 3 struck a discordant note in the aforesaid un-disputed premises by stating that the non-obstante clause incorporated in Article 56 of the Constitution removing the bar of immunity from the judicial scrutiny provided under Article 48 (2) of the Constitution, is not available in Article 112 (2) of the Constitution dealing with the dissolution of the Provincial Assembly. Therefore, they argued that the principles laid down in the aforesaid judgments of Lahore High Court and the Supreme Court with regard to the jurisdiction of this court to look into the vires of the dissolution order in relation to National Assembly shall not be available to us. Article 58 (2) (b) and 112 (2) (b) are reproduced below: - Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,- (a) (6) A situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". "Article 112 (2) (b) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion,- (b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary", According to them the provision of Article 48 (2) which deals with the immunity of the President in the exercise of his discretionary powers confers same powers upon the Governor under Article 112 (2) (b) by the provision of Article 105 (5). Article 48 (2) reads as follow: - "Artide 48 (2) "(1) ................................ (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so (and the validity of any-thing done by the President in his discretion shall not be called in question on any ground whatsoever". 7. In convassing the aforesaid arguments the learned counsel for the respondents conveniently ignored the fact that in the above cited dissolution cases the question of dissolution of National Assembly alone was not agitated but the dissolution of Provincial Assembly of the Punjab was also adjudicated upon. The order of the Governor dissolving the Punjab Provincial Assembly was struck down by Lahore High Court on the ground that he "had given no reasons at all except a bald statement that the situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution", he referred neither to the situation nor furnished the reasons which led him to form an opinion that "the Government of the Province cannot be carried on in accordance with the Constitution". Such an order was found not to be suitable in law. This finding of the High Court, of course, was approved by the Supreme Court of Pakistan . In other words, the principles underlying the justiciability of the issue of the jurisdiction of the superior courts discussed in length by both the courts with regard to the provisions of the Constitution dealing with the President's powers to dissolve the Assembly were considered to be the same in relation to the Governor's discretionary powers to dissolve the Provincial Assembly. Furthermore non-obstante clause in Article 58 (2) of the Constitution excluding the application of Article 48 (2) from the exercise of discretion by the President in dissolving the National Assembly is not the only factor in assuming jurisdiction over the subject matter before us. Mr. Justice Shafi-ur-Rehman, after discussing at great length the superior courts powers of judicial review stated as follows:- "There is no express ouster clause in the Constitution with regard to the exercise of this power by the President. Whatever ouster could be implied by the use of the expression 'in his discretion' and 'in his opinion' stands removed by the use of non-obstante clause 'notwithstanding', thereby excluding the application of ouster clause contained in Article 48 (2) excluding courts' jurisdiction generally where the powers reserved for the President to be exercised in his discretion are concerned. Additionally, the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a precondition for the exercise of this power. Not to lest the exercise of this power by reference to these constitutionally prescribed jurisdictional facts, namely, (i) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution; and (ii) an appeal to the electorate is necessary; would in fact amount to a failure to discharge a duty ordained by the Constitution itself." (under-lining' is ours). 8. It is now universally accepted principle in the field of judicial review that any ouster clause shall not deter the court from looking into the statutory powers Here in Italics. of a functionary if the same are arbitrarily exercised and in case there are itatutorv conditions for the exercise of their powers, the same has been exercised oiu>ide the four corners of the enabling law, or on the basis of extraneous consideration or in bad faith. Furthermore, the distinction has been made between the discretion to be exercised and the opinion to be formed for the exercise of such discretion. The courts may be precluded from questioning the discretion itself of a functionary to exercise his powers vested in him by law or the Constitution but if such an exercise is dependent on certain conditions, the contents of the powers so exercised in relation to such conditions are open to scrutiny by the superior courts, specially so, when the rights of the people are tnereby affected. It is not disputed that the conditions laid down for the exercise of discretionary powers in Article 112 (2) (b) of the Constitution are identical in nature to those prescribed for the dissolution of the National Assembly by the President in Article 58 (2) (b) of the Constitution. Thus the arguments of the Earned counsel for the respondents lack substance when they say that this court rr.jv open doors for reviewing the dissolution order of the National Assembly but .; has to shut its doors when the order dissolving the Provincial Assembly is impugned before it. Such an interpretation is not only un-warranted by the Constitution but is patently illogical and un-just. 9. Before embarking upon the question of the existence of judicial facts ••••. h:ch sr.jli attract the discretionary powers of the Governor under Article 112 (2) b ;•: the Constitution, we shall deal with another pre-requisite for the exercise of such powers laid down in the said Article. The provision of Article 112 (2) (b) lays down that the Provincial Assembly is to be dissolved after the prior approval of the President of Pakistan. Mr. Gillani contended that such an approval was never obtained in the circumstances of the case. He rather suggested that after dissolving the National Assembly the President instructed the Governor of NWFP to dissolve the Provincial Assembly as well. When we asked the learned Advocate General whether he could lay any information before us with regard to the aforesaid approval of the President, he promised to do so after contacting the authorities concerned. On the following date of hearing, Mr. Zahurul Haq, and not the Advocate General, who represented respondent No.2 made a statement before us which was duly recorded and signed by him. He stated as follows:- "The Advocate General NWFP was asked to contact the Governor NWFP to apprise this Court whether something in writing is available to show the approval of the President with regard to the dissolution of the Provincial Assembly. Mr. Zahurul Haq, counsel representing the Provincial Government, in reply has stated that he did contact the Governor on telephone after the Advocate General was directed to do so and the Governor informed him that 'on the evening of 5th of August, 1990 he went to Islamabad taking alongwith him a rough draft, met the President who approved the order which was announced on 6th of August, 1990 in the Governor House at Peshawar".When asked whether he would like to place before us any document in support of his statement, he replied that he had nothing else to add to whatever he has stated before us. 10. In the light of the aforesaid statement of the learned counsel for respondent No.2 made on behalf of respondent No.l, another argument of the learned counsel for the petitioner assumes significance. He argued that the President has to be advised by the Prime Minister in according approval sought by the Governor for the dissolution of the Provincial Assembly. He referred to Article 48 (1) which reads as follows:- "In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister); (Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration)". Article 48 (2) has already been reproduced above. According to the provisions of the said Article the President shall not require the advice of the Prime Minister when he acts in his own discretion and all the matters in which he exercises such a discretion are specifically split out in the Constitution. They are limited in number. A bare look at Article 112 (2) (b) of the Constitution reveals that approval of the President for the dissolution of the Provincial Assembly is imperative. The respondents have failed to produce any document in the form of a summary or draft of the dissolution order itself which was communicated to the President for his approval. The word "approval" is more mandatory and stronger in connotation than the word "consultation" or "consent" which appear in different provisions of the Constitution. Previous approval connotes that the authority which has the powers to grant such an approval may also disapprove a measure referred to him. This in turn shall entail the application of mind of the approving authority specially so when such an approval is required prior to the making of the decision by the functionary who seeks such an approval. The learned counsel for respondent No.2, and not the Advocate General of the Province, volunteered to make a bare statement on behalf of the Governor of NWFP unsupported as stated earlier by any document. The National Assembly was dissolved in the after-noon of 6th of August, 1990. The President stated in his Press Conference that he had made up his mind to dissolve the National Assembly the same day. The Press Conference was summoned by the Governor of NWFP soon thereafter in the evening of 6th of August, 1990. In his statement, however, Mr. Zahurul Haq, advocate informed us that the Governor left for Islamabad on 5th of August, 1990 and met the President personally and sought his approval for the dissolution of the Provincial Assembly. In such circumstances, the learned counsel for the petitioners argued that not only the prior approval of the President was ever sought but if the prior approval of the President was sought and obtained it ought to have been sought under Rules of Business, 1973, which lay down an elaborate procedure for the performance of functions of the Head of the State when the advice of the Prime Minister is required for such a performance. He argued that on 5th of August, 1990, the deposed Prime Minister was very much in office and that she did not give advice to the President to approve the dissolution of the Provincial Assembly as proposed by the Governor of NWFP. 11. Mr. Maqbool Elahi Malik, the learned counsel for respondent No.3 argued that outside the discretionary powers exercised by the President he has other functions to perform which may or may not be on the advice of the Prime| Minister. To support his arguments, he referred to Articles 48 (6), 58 (1), 92 (1), 92 (3) and 93 (1) of the Constitution wherein it is specifically laid down that the President shall perform his functions mentioned therein on the advice of the Prime Minister. He contended that by specifically limiting certain functions to be performed by the President on the advice of the Prime Minister, rest of the powers or functions to be performed by him shall be in his discretion and without his advice. 12. The learned counsel for respondent No.3 has, however, ignored the provision of Article 48 (1) of the Constitution reproduced above which lays down the basic principles of Parliamentary Government. No limitation is provided on tendering of advice of the Cabinet or Prime Minister in the performance of functions by the President. The exclusion of the advice of the Cabinet or Prime Minister from the domain of the President's functions is provided only in sub- . , ; j-c (1) of Article 48 of the Constitution which states that notwithstanding jr.uning contained in clause (1) of the Article, the President shall act in his Discretion in respect of any matter of which he is empowered by the Constitution to do so. The last phrase, namely, "empowered by the Constitution to do so" clearly and un-ambiguously lays down that the President is to act independently of ;he advice of the Prime Minister, in his own discretion, only in those cases in A-;ch he ha^ been specifically allowed to do so by the Constitution itself. We shall be negating the spirit of the Parliamentary Government which is engrained in the structure of the Constitution if we agree with the learned counsel for respondent No.3 that outside a few limited functions of the President which are specifically to be performed on the advice of the Prime Minister, rest of the functions of the President are to be performed by him independently of the advice of the Cabinet or the Prime Minister. In the circumstances, we are of the opinion, firstly, that enough material was not placed before us to prove that prior approval of the President which is an essential pre-requisite for dissolving a Provincial Assembly was ever obtained. Secondly, assuming that the same was obtained, the approval was not accorded by the President on the advice of the Prime Minister. 13. Last but not the least, we shall consider the contention of both the sides in relation to the existence or relevancy of the grounds which pursuaded the Governor to form an opinion that a situation has arisen in which the Government of NWFP could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. We have already in one of the preceding paragraphs referred to the standards laid down by the superior courts in the dissolution cases cited above. We shall examine this question in the light of the said standards. It is un-disputed that reasons for dissolving a legislature in his discretion by the Head of the State or Head of the Province must have nexus or co-relation with the enabling conditions laid down in the Constitution itself. The learned counsel for the petitoner vehemently argued that the Notification informing the members of the Provincial Assembly and the members of the Cabinet that they ceased to hold their elected offices in view of the dissolution of the said Assembly did not give any grounds or reason whatsoever, for doing so. Whether we take the copy of the Notification appended with the petition or the copy of the Notification dated 6th August, 1990 later on produced by the counsel for respondent No.2, the admitted position is that both do not give any reason or ground for the satisfaction of the Governor to dissolve the legislature. The so-called corrigendum dated 16.9.1990 which did carry the grounds for dissolution of the Provincial Assembly was admittedly issued after the constitutional petition was admitted for regular hearing on 21.8.1990. 14. This document could easily be taken out of consideration as an after thought. The dissolution of a legislature is a very serious matter. The shoddy manner in which the NWFP Assembly was dissolved shows the indifference of those who deal with the dissolution of an elected legislature. 15. We would have straight away accepted this constitutional petition on this ground alone. However, as stated earlier, in the interest of justice and as the matter is of public importance, we decided to examine all the documents filed before us including the so-called corrigendum threadbare and heard both sides at length. The exercise has been undertaken to find out whether reasons relatable to the provisions of the Constitution which led to the dissolution of the Provincial Assembly were available. 16. The aforesaid corrigendum dated 16.9.90 gives the following reasons which led the Governor to form an opinion that the Government of the Province could not be carried on in accordance with the provisions of the Constitution."The usefulness and the mandate of the Provincial Assembly of North- West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including mis­ application of public funds and 'horse-trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of Oath (s) prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people." It is pertinent to point out that the above paragraph is the reproduction of the Press statement made by the Governor as published in the Frontier Post (Mark- R2). 17. When dissected the paragraph quoted above from the so-called corrigendum points out the failure of the Provincial Assembly in three fields; (1) its usefulness and its mandate, (2) confidence of the people reposed in it and (3) orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of Oaths prescribed thereunder and the law. This failure has been caused, in the opinion of the Governor, by (1) continuous and wide-spread corruption including misapplication of public funds and horse trading, (2) change of loyalties in violation of law by (a) the holders of representatives offices for political and personal gains, (b) by the functionaries of the Government and (c) by the local and statutory authorities functioning under the control of the Government. 18. Before establishing their nexus with enabling provisions of the Constitution, we may point out that despite our anxiety to find out the substance in the serious allegations levelled against the members of the Provincial Assembly, the functionaries of the Goverment, local and statutory authorities, none of the counsel appearing on behalf of respondents 2 and 3 were able to provide us with concrete information to substantiate the said allegations. We do not have to emphasise that the allegations are vague and general. The learned counsel for respondent No.3 would like us to take judicial notice of the situation prevailing in the country at large at the time of dissolution of the Provincial Assembly. We do not understand as to how an elected Assembly of the people could be dissolved by the Governor if we now form an opinion on the basis of judicial notice that certain conditions rclatable to the dissolution of the Provincial Assembly were in existence. This was the job of the Governor of the Province before he dissolved the Assembly. He has not given any instance, details or material which led to the formation of his opinion about the members of the Assembly and other functionaries mentioned in his dissolution order. 19. The respondent No.2, however, has with its written statement enclosed three documents which in its opinion was the material before the Governor for the exercise of his discretionary powers. R-2 is the performance report of the NWFP Assembly from 30th November, 1988 to 6th August, 1990 prepared by the Secretary Provincial Assembly. It gives the number of questions asked during the aforesaid period from the members of the Assembly, the number of privileges and adjournment motions, resolutions, the amendments to the existing laws and the passed by the Assembly. Amongst the details so given, the learnd counsel for respondent No.2 pointed out only the number of fresh legislation made by the Assembly. He said that during the period of twenty months, the Assembly has been able to pass five enactments in the field of legislation. When asked whether he could provide us with information with regard to the fields which required legislation during these twenty months but were ignored by the Provincial Assembly, the learned counsel showed his ignorance. He conveniently ignored the other work of the legislature detailed in the reports. He also could not point out as to how many private member bills were presented to the legislature which after due deliberations could not become laws. In short, he had no other information or material with regard to the performance of the Provincial Assembly. The other document which is placed as a part of the material forming the basis of the information of the Governor in dissolving the Provincial Assembly is the North-West Frontier Province Employees on Contract Basis (Regulation of Services) (Amendment) Act, 1990. The learned counsel stated that this piece of legislation was bad inasmuch as that the employees on contract basis were transformed into adhoc appointees. The third document is also an Act which carries an amendment to Section 4 of the afore-mentioned Act. This amendment regularised the services of those mentioned in Section 3 of the original Act. It is not disputed that these Acts were validly passed by the Provincial Legislature and received the assent of the Governor of the Province as required by the Constitution. It is also not disputed that the Governor who assented to these bills is the same person who dissolved the Provincial Assembly. One fails to understand as to how the laws passed by a competent legislature with the assent of the Governor could be made as the basis for the dissolution of the legislature under Article 112 (2) (b) of the Constitution. It is the primary function of the legislature to pass laws and the laws so passed have their efficacy and cannot be termed bad unless so declared by the superior courts in appropriate proceeding. 20. We, therefore, conclude that the material so provided to us which formed the basis for the opinion of the Governor is leaset relevant for establishing the allegations levelled by him in the so-called corrigendum. 21. Not only the aforesaid allegations are general and vague, it has not been established that as to how the said allegations have given rise to a situation in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution. Mr. Maqbool Elahi Malik kept on repeating that the petitioner who was the leader of a minority party in the Assembly had to find support form members of other political parties to remain in office. This can j hardly be called a novel experiment in a Parliamentary democracy. There are I coalition Governments and there are Governments functioning by alliance among different political parties. It is an admitted fact that not a few members belonging to the ANP joined the Government of the petitioner but the entire party decided to form a coalition with his party. The other example cited by the learned counsel with regard to certain IJI members joining the Government after the break up of the said coalition, suffice it to say, that those members formed an independent group and joined the Government as such group. Whether such an action on their part amounted to defection is a matter still subjudice before this Court. No other example or instance was given for changing of the loyalties for political and personal gains by the members and other functionaries of the Government as alleged in the corrigendum. It was also not pointed out as to how the Government of NWFP could not be carried on in accordacne with the Constitution. 22. The expression that the Government "cannot be carried on" under the provision of Article 112 (2) (b) is the same as the expression used in Article 58 (2) (b) of the Constitution which deals with the dissolution of the National Assembly. The Supreme Court in the above cited dissolution case explained the purport of the aforesaid expression on page 212 of the report in the language of Mr. Shafi-ur- Rehman. J. "The expression "cannot be carried on" sandwiched as is between "Federal Government" and "in accordance with the provisions of the Constitution", acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution." In the light of the above observations we find that the nature of allegations levelled by the Governor has no nexus with the criterion laid down in the enabling provision of Article 112 (2) for the dissolution of the Provincial Assembly. There is neither any charge nor any indication against the NWFP Government that there was "breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution." On the contrary, we were told by the learned counsel for the petitioner, a fact not refuted by the learned counsel for the respondents, that the recent budget of the Province was passed unanimously by the Provincial Assembly. The Provincial Government was functioing smoothly and despite the stresses and strains of trouble in the neighbouring Afghanistan there was comparative stability in the affairs of the Province. In any case, no justification has been made out for the Governor to make an appeal to the electorate only twenty months after the election of the Provincial Assembly. 23. We are. therefore, of the considered view that the dissolution of the Provincial Assembly was not warranted by the provisions of the Constitution and ..;: kvires of the same. A legislature which has been elected on party basis after a considerable period of time by the people of this Province was dissolved by the Governor purportedly deriving his powers under Article 112(2) (b) of the Constitution but doing so arbitrarily, without fulfilling the essential pre-requisite for the exercise of his discretion and without the objective conditions relatable to :he crounds laid down in the Constitution. We shall also not accede to the prayer mide by the learned counsel for the respondents that even if the action of the Governor in dissolving the Provincial Assembly is found to be without lawful iu:hority the consequential relief of restoring the Provincial Assembly and the Cabinet be refused to the petitioner. There is no justification for such a request. The grant of relief is the discretion of a court under Article 199 of the Constitution. It is not bound by any precedent in exercising such a discretion. Each case entails its own objective conditions and the relief is granted or refused : n -.!-.. KiO . !' -u.r. ^TiJiiions. The relief for restoration of the legislature illegally „:?_-.. ea v.j; refused in the case of Kiiawaja Sharif Vs. Federation of Pakistan Citid jixv-e which was approved by the Supreme Court, on grounds specifically mentioned in the findings of the learned Judges of the said court. The main considerations which weighed with them in refusing the relief were that the Assemblies which were dissolved were elected on non-party basis, that the people in general welcomed the elections on Party basis after having been denied the same for a number of years, that a split in the former ruling party had occurred; that Mohammad Khan-Junejo who was the Prime Minister prior to the dissolution of the National Assembly had accepted the action of the President and that the petition was filed after the death of the President who had dissolved the National Assembly which also entailed the un-reasonable delay. The conditions today are totally different. The NWFP legislature which fell victim to the impugned order of dissolution was the product of the elections which were acknowledged by every body to have been eagrely awaited, held on political parites basis and claimed to be fair and free. The leader of the House which was dissolved has himself come to this court challenging the impugned action of the Governor. No delay is to be found in filing of this petition. The sole argument of the learned counsel for not granting relief to the petitioner is that the Election schedule has already been announced and the Provincial machinery has been geared to this end. This argument is not only devoid of any pursuasive value but it is also fraught with dangers. If we refuse the relief prayed for by the petitioner on the ground that the Election schedule has been announced, we shall be setting a precedent for future dissolution of the legislature by the Head of the State or Head of the Government who may at any time after dissolving the legislature without any reason or rhyme announce the schedule of elections and the courts shall refuse the relief to an aggrieved person on the ground that such a schedule has already been announced. This also amounts to a reading in the Constitution what is not there and it shall also bring in the protection to a dissolution order from judicial scrutiny unrecognised by the Constitution and the general principles of dispensation of justice. 24. Before parting with the case we may point out unfortunate tendency on the part of the counsel appearing before us to seek adjournments in an important and urgent matter like the one before us. On 9.9.1990, the learned counsel for respondent No.2 requested for adjournment which was duly granted. It was incorporated in the order sheet of 9.9.1990 that no further adjournment would be granted. As by then no written statement was filed, the aforesaid adjournment was not utilised by the learned counsel for respondent No.2 to file a written statement before the next date of hearing. He filed the same on the actual date of hearing which obviously necessitated the adjournment of the case for the perusal by the other party and for a re-joinder if so required. Another method adopted for seeking adjournment was to make successive applications requesting us to issue notice to the Attorney General in this matter before us. On 18.9.1990, C.M.No. 370/90 to this effect was moved and we disposed it of with the observations that the Federation of Pakistan was a party to these proceedings and that no separate notice was required to be issued to the Attorney General and that if he so desired he may represent the Federation in this case. However, the learned Attorney General did not appear before this Court and instead the Federation of Pakistan engaged Mr. Maqbool Elahi Malik, Bar-at-law, as its counsel who appeared on 22.9.1990 but requested for adjournment on the ground that he was suffering from sore-throat. On 25th of September, 1990, when the learned counsel for respondent No.3 had already concluded his arguments and the reply of the petitioner's counsel was in progress, yet another application was handed over to us by Mr. Maqbool Elahi Malik. The case was concluded and the judgment was reserved but Mr. Maqbool Elahi Malik insisted that the application which he was moving before us be disposed of separately. We accordingly did so pointing out once again that the Federation has been represented by a counsel and there was no restraint on the learned Attorney General to appear before us as the Federation had already a notice of the petition and that we could not adjourn the case for one week at this stage as requested in the said application. We had ample assistance rendered to us by the counsel appearing before us and if there was ever a need to hear the learned Attorney General we would have never hesitated to specially ask him to do so. However, a point raised earlier by Mr. Zahurul Haq, in his application and later on by Mr. Maqbool Elahi-Malik relating to the issue of notice to the Attorney General needs some observations here. Both the counsel referred to Order XXVII-A Rule 1 C.P.C. for making it incumbant on us to issue notice to the Attorney General. The said Rule is reproduced below:- "Notice to Advocate General. In any suit in which it appears to the Court that (any substantial question as to the interpretation of constitutional law) is involved, the court shall not proceed to determine the question until after notice has been given to the (Attorney General for Pakistan) if the question of law concerns the Federal Government and to the Advocate General of the Province if the question of law concerns a Provincial Government." It is quite obvious from the perusal of the Rule that the contents thereof are, firstly, applicable to a suit and secondly, if we extend the general principles of C.P.C. to the proceedings before the High Court in a Constitutional petition, two functionaries are mentioned in the said Rule who are to be issued notices, namely, Advocate General of the Province and the Attorney General of Pakistan. Two situations are, therefore, visualised. The Advocate General is to be issued notice if the question of law concerns the Provincial Government and a notice shall be issued to the Attorney General of Pakistan if the question of law relates to the Federal Government. Before us, is the question of dissolution of the Provincial Assembly and the Advocate General of the Province has been associated since the inception of this case. Furthermore, Order XXVII-A Rule 1 C.P.C. would normally deal with a situation where suit is filed before the court wherein the Federation or the Province is not a party but a substantial question of Constitutional interpretation is involved concerning the Federal Government or the Provincial Government as the case may be. In such a situation it is quite obvious that either the Advocate General of the Province or the Attorney General ol Pakistan shall assist the court concerned. Here before us both the Province and :he Federation are arraigned as parties. Due notice has been received by them. The Provincial Government has engaged a private counsel alongwith the Advocate General of the Province to whom notice was issued by the court on 22.8.1990. Similarly the Federal Government has decided to engage a counsel who represented it before us. If the Attorney General had decided to represent the Federation we would have been too happy to hear him as well. But we do not find il ir.cumbant on us in the circumstances of the case to needlessly issue him a notice while he is busy in arguing similar cases before other High Courts and we were requested to wait for the conclusion of those cases in order to hear him. 25. For the reasons given above, we accept this petition, declare the impugned order of dissolution of NWFP Assembly and the dismissal of the Provincial Cabinet thereto as ultra vires of the Constitution, without lawful authority and, therefore, of no legal effect. Consequently we direct that NWFP Assembly and the Cabinet shall stand restored. In the circumstances of this case there shall be no order as to costs. I Qazi muhammad Jamil, J.—While agreeing with the findings of the learned Chief Justice, I add a few further observations on the subject, attached herewith. S. Ibne Ali J.--Vide my short order of dissent on the question of relief dated 26.9.1990, in this case, I append hereto my detailed order. Qazi Mohammad Jamil. J.—Being in full agreement with the findings of the learned Chief Justice on all the issues before us, I would like to add my own views and conclusions on the impact of newly incorporated provisions of Article 58 (2) and Article 112 (2) on the basic structure of our Constitution. In the process, our findings on the nature of discretionary powers or functions vested in the Head of the State or Head of a Province, as the case may be, under the afore-said provisions of Article 58 (2) and Article 112 (2) of the Constitution shall be fortified. It shall also bring into bold relief the judicial compulsions of interpretting those powers or functions despite the restrictive clause of Article 48 (2) of the Constitution. 2. Technically, dissolution of a legislature means pre-mature termination of its fixed term. It has its origin in British system of Government. Power to dissolve the House of Commons, the elected House in England, is part of the Royal Prerogatives. The monarch exercises his discretionary power to do so. Over a number of years, this power, .like all other Prerogatives of the King or Queen is being exercised on the advice of the Prime Minister. This Convention being part of other Conventions, has developed with the growth of representative and responsible Government in Britain . Responsible Government means an executive responsible to the Parliament. In other words, it implies Parliamentary control of the Excutive. It also necessarily follows that executive is part of the legislature and is made out of the legislature. With the advent of the party-system and its ultimate control of the minds of the electorate, coupled with the convention that for the exercise of each Prerogative a minister is responsible, only that political party could form the Government which enjoyed the confidence of the House. Once a Prime Minister enjoys that confidence, he has to run an elected Government with the help of the Parliament. One of the weapons used by the Prime Minister for the co-operation of the members of the House of Commons is the power to dissolve the House. Both the Government and the Opposition would like to appeal to the electorate only when they are popular outside the House. In other words, the Royal Prerogative of dissolving the popular House has come to stay as a matter of expediency with the Prime Minister of England. 3. Historically, leaders of the major political parties, in Pakistan and India, both prior to Independence and after Independence, made the Parliamentary form of Government as an axiomatic part of their political plateform. Resultantly, our Constitutent Assembly had never entertained any doubt about its introduction in the Constitutions framed by them. Constitution of 1956 and Constitution of 1973 in its original form borrowed the Conventions of the Constitution from England and entrenched them as legal norms in the Constitution. Power to dissolve an elected House of the legislature in the hands of Prime Minister was obviously part of such norms. The only deviation from the system in our Constitutional history, was made by Mohammad Ayub Khan who framed his own Constitution and made head of the State as head of the executive who was independent of the legislatures but at the same time he could dissolve the National Assembly. In the process, however, he would also cease to hold office. 4. The long slumber of 1973 Constitution during its so-called period of abeyance, however, changed its shape. By Eighth Amendment specified number of discretionary powers were given to the President of Pakistan and the Governor of a Province to be exercised by them without the advice of the Prime Minister or a Chief Minister, as the case may be. One of such discretionary powers is the power to dissolve the popularly elected legislature, incorporated in Article 58 (2) for ihc dissolution of National Assembly and Article 112 (2) for the dissolution of the Provincial Assembly. Thus a departure was made from the basic principle of Parliamentary form of Government that a popularly elected House can only be dissolved on the advice of the Prime Minister or the Governor (?) of a Province. The effect of the change was quite traumatic and in a short span of two years the popularly elected legislatures have been dissolved in quick succession by the President who is not responsible to the National Assembly and the Governors of the Provinces who are nominees of the President. No advice of the leader of the dissolved legislatures was sought. 5. Consequent protest on behalf of the actual Heads of the executive namely, the Prime Minister and the Chief Ministers is quite obvious. The dissolution of a legislature on the advice of a Prime Ministr or Chief Minister carries a consensus amongst the Chief of the Executive and the Head of the State or Head of a Province, as the case may be. Secondly, while tendering the advice for dissolution the Prime Minister or a Chief Minister is aware that his own office shall cease to exist and he is prepared to face the electorate by taking the responsibility for such a dissolution. That is the reason as to why the dissolution of a popular House by the Prime Minister or the Chief Minister is normally considered as a political question by the superior courts not suitable for judicial scrutiny. On the other hand the intense judicial activity followed the dissolution of the popular Houses of legislature in the discretion of the Head of the State or Head of a Province, in the last two years, (see P L D 1988 Lahore 725 and P L D 1989 S C 166 = PLJ 1989 SC 10). Earlier too when the Central legislature of Pakistan was dissolved by the then Governor General, under the Government of India Act, 1935 read with Indian Independence Act of 1947, the Speaker of the Assembly successfully challenged the afore-said action of the Governor General before the then Sind Chief Court (P L D 1955 Sind 96). The findings of the Said Chief Court were not materially affected in appeal by the Federal Court which was accepted on technical grounds (P L D 1955 Federal Court 240). 6. From the discussion in the preceding paragraphs it is quite evident as to why judicial activism of the superior courts was necessitated in the aftermath of recent action of dissolution. So long as the Constitutional provisions relating to the discretionary powers of the Head of the State or Head of a Province are there one expects the increasing burden on the superior courts in their domain of judicial review. But there are other reasons too which prevailed with the superior courts of this Country in the above cited judgments of post 1988 dissolution period for such a judicial review. The discretion of the President or a Governor, subject of controversy in this case, is not absolute. It is by now an established interpretation of Article 58 (2) dealing with the dissolution of the National Assembly and Article 112 (2) pertaining to the dissolution of the Provincial Assembly that the discretionary power is to be exercised only after laying down. the objective grounds for the satisfaction that the Constitutional conditions for the exercise of such power existed. In this context Professor SA. de Smith in his celebrated work Judicial Review of Administrative Action, (1973 Edition) at page 281 gave the following opinion on the basis of case law:- "If the source of authority relied upon is statutory, the courts begin by determining whether the power has been exercised in conformity with the express words of the statute and may then go on to determine whether it has been exercised in a manner that complies with certain implied legal requirements. In some contexts they have confined themselves to the questions whether the competent authority has kept within the four corners of the Act and whether it has acted in good faith. Usually they will pursue their inquiry further and will consider whether the repository of a discretion, although acting in good faith, has abused its power by exercising it for an inadmissible purpose or on irrelevant grounds or without regard to relevant consideration or with gross unreasonableness". After discussing cases on the subject Professor SA. de Smith on page 284 of the afore-said work states:- "In all these cases the statutory powers held to have been misapplied had been defined with reference to purpose. As we have already observed, nowadays the courts will not readily be deterred by subjectively worded statutory formulae from determining whether acts done avowedly in pursuance of statutory powers bore an adequate relationship to the purpose prescribed by Statute. If a discretionary power is conferred without reference to purpose, it must still be exercised in good faith and in accordance with such implied purpose as the courts attribute to the intention of the Legislature". In the dissolution case of 1988, our superior courts laid down similar principles and looked into the reasons for dissolving the National Assembly by the President of Pakistan and the Punjab Provincial Assembly by the Governor of the Province and found that they had no nexus with the objectives incorporated in Article 58 (2) and Article 112 (2) respectively of the Constitution. 7. For reasons recorded in the main judgment in the case in hand, we have also come to the conclusion that firstly, the Notification issued on the date of dissolution carries no ground for the dissolution of the NWFP Provincial Assembly and that the corrigendum which was issued on 16.9.1990, even if taken into consideration, relates certain reasons which are not only vague, undefined and general but they have no reference to the objectives laid down in Article 112 (2) of the Constitution. It may also be mentioned here that no ouster or restrictive clause shall prevent this court from interfering when the repository of power acts beyond the scope of his authority which may or may not involve bad faith or malafide. 8. We are being asked to refuse the relief to the petitioner even if the impugned action is found to be un-Constitutional and without lawful authority. This, I am of the view, is like asking a surgeon not to stitch the incision after performing a surgery. Refusal once made had its own objectives. The same cannot be repeated every time when an Assembly is dissolved. Such an exercise may ultimately transform the discretionary powers into arbitrary powers. We are also conscious of the objective situation which prevailed after 1988 dissolution of the legislatures. There was scent of democracy in the air in the post 1988 dissolution period. Universally acclaimed party based elections, made possible by the intervention of the Supreme Court in the case of Miss Benazir Bhutto Vs. Federation of Pakistan and another (P L D 1988 Supreme Court 416) were at hand. Bells had already tolled for the sole actor of the Dissolution drama. The courts were part of the progressive mood of the time. It is different now. The legislatures elected by the people in the afore-said Party based elections have been done away with barely twenty months after they were held. Action is condemned by the affected persons and the courts are inundated with complaining persons aggrieved of the action. Care taker Governments are not simply taking care in the absence of a legitimate elected Government but are serious contenders of power against those who went out of power. Therefore, we are neither constrained to follow the relief formula worked out by the superior courts in 1988 dissolution cases nor the objective situation is the same as the one prevailing at that time. 9. This petition is, therefore, accepted, the impugned order of dissolution is declared as ultra-vires of the Constitution, without lawful authority and, therefore, of no legal effect. All steps taken in pursuance of the impugned dissolution order are also set at naught. It is further directed that NWFP Assembly and the Cabinet shall be restored forthwith. Parties shall, however, bear their own costs. S. Ibne Ali J.—I have had the privilege and benefit of going through the judgment of the Honourable Chief Justice. However, in the facts and circumstances of the case, I regret to subscribe to his verdict with respect to his granting prayer sought in this petition by the petitioner, namely: - "It is, therefore, most humbly prayed that notification dated 06.08.1990 of the Governor, NWFP which has been passed with (?) the prior approval of the President of Pakistan be declared unconstitutional and thus illegal and of no legal effect and the same be set aside and as consequence thereof all other steps taken by the Governor NWFP and the President of Pakistan in consequence thereof may also be declared illegal and as a relief the position as it existed immediately before the passing of the impugned order be restored with such other relief as may be deemed proper." The events leading to the passing of the impugned order on 6th August, IVAi. by the Governor of NWFP dissolving the Provincial Assembly of North- West Frontier Province and consequently unseating the Chief Minister and the Cabinet to hold office have been narrated by the learned Chief Justice in detail and I do not feel called upon to recapitulate the same. In my humble view, in the facts and circumstances of the present case, the petitioner is not entitled to the relief sought by him in this petition in view of the judgments pronounced by the High Court and Supreme Court of Pakistan. 3. In a case reported as P.L.D. 1988 Lahore 725, the President of Pakistan, on 28th May 1988, dissolved the National Assembly under Article 58 (2) (b) of the Constitution and in consequence thereof the Cabinet also stood dismissed. Following this proclamation, the Provincial Assemblies in Punjab, Sind, N.W.F.P and Baluchistan were also dissolved by the respective Governors of the Provinces under Article 112 (2) (b) of the Constitution. Muhammad Saifullah Khan and others filed writ petitions in the Lahore High Court questioning the legality of the order of the President dissolving the National Assembly and that of the Governor of Punjab to dissolve the Provincial Assembly. In the writ petitions it was prayed that the impugned orders of the President and the Governor be declared unlawful and of no legal effect and a direction be issued for the restoration of the National Assembly and the Provincial Assemblies. The writ petitions were heard by a larger Bench of the Lahore High Court. The learned Judges while holding that the impugned orders were un-lawful and of no legal effect, however, refused to grant llie prayer of the petitioners with respect to the restoration of the National Assembly and the Provincial Assemblies. While refusing this prayer, the Hon'ble Judges took note of the fact that general elections to the National Assembly and the Provincial Assemblies in the country were to be held shortly on the specified dates, and further that the political party in power was divided into factions and there was not only lack of cohesion but somewhat polarization between the erstwhile Centra! and the Provincial Heads of the Government. The possibility that restoration of the assemblies may lead to confrontation between them, adding much to the circumstances, notwithstanding the illegality of the impugned orders could not be ruled out. 4. The petitioners and the Federation of Pakistan filed appeals before the Supreme Court. The appeals were heard by a Full Bench of the Hon'ble Supreme Court. The appeals were dismissed and the judgment of the Lahore High Court was maintained. The judgment of the Hon'ble Supreme Court has been reported in P L D 1989 Supreme Court 166 = PLJ 1989 SC 10. Hon'ble Mr. Justice Dr. Nasim Hasan Shah in his part of the judgment at pages 192-93 observed:- "Coming to the Order of Dissolution of the Punjab Legislative Assembly, this was passed by the Governor of the Punjab purportedly in exercise of the powers conferred on him by Article 112 (2) (b). This provision reads:- "112 (2) (b),--The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where in his opinion, (a) .................................................. (b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary." "The High Court found that there was nothing to show that the Governor ordered the dissolution of the Provincial Assembly after obtaining the previous approval of the President. Nor was there anything at all on the record to show that a situation had arisen in the Province of the Punjab wherein the Government of that province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. Hence, the order of dissolution passed by the Governor too was not sustaniable in law. We are inclined to agree." "This brings us to the question of relief. The High Court refused to grant relief and in doing so, inter alia, observed:- "Since the orders dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining the respondents from performing the functions of their offices and to a declaration that such of the respondents who presently hold Ministerial offices and listed posts be treated as having not been constitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions. However, certain other factors which have intervened and which deserve to be taken note of prevent me from granting these reliefs. Amongst these circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former Prime Minister, in accepting the action of the President and the Governors and declaring the decision of his party i.e. the Pakistan Muslim League, to go to the polls and seek the mandate of the people.In this connection, the statement made by the former Prime Minister appearing in 77ie Pakistan Times newspaper of 18th July, 1988, may be referred. Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and members, both at the Centre and the Provinces, supporting Mr. Muhammad Khan Junejo, the former Prime Minister and some Ministers and Members, both at the Centre and the Provinces, supporting Mr. Fida Muhammad Khan (the head of other faction of the Muslim League). In these circumstances, it cannot be said that the previous majoirty parties at the Centre and the Provinces still command the majority of the votes of the members in the Centre and the Provinces. If the reliefs are granted, the National and the Provincial Assemblies would be beset with major problems and conflict. Still further, on 20th July, 1988, the late President ordered that the general elections would be held on 16th Nov. 1988 which fact has been further confirmed in public statements by Mr. Ghulam Ishaq Khan, the present President and the Election Commission of Pakistan has taken serious steps to hold the general elections and in pursuance thereof has delimited constituencies and will soon finish the job of hearing appeals therefrom. The entire administrative machinary of the Federation and the Provinces is geared upon to hold the general elections on 16th November, 1988, and the people, who previously were not in a position to vote for candidates belonging to certain political parties which had been banned, are now ready and impatient to exercise their vote freely and voluntarily without any restrictions. Taking all circumstances into consideration, the discretionary jurisdiction of the Court under Article 199 of the Constitution does not permit me to grant the reliefs as prayed. I do not, therefore, propose to grant any relief." It was further observed at page 195 (citations U and V):- "It is true that the concept of "national interests taking precedence over rights of the individuals" which has been given effect to by us is a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration. Granted that the concenpt of "national interests taking precedence over individual rights" is an indefinite concept and that it can mean different things to different persons but in the instant case no such ambiguity existed because it was quite clear that the national interest would be better served by a recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the holding of the elections on a very early date was ensured. The bane of our society has been that elections have not been held with any degree of regularity, after reasonable intervals. An overwhelming majority in the country was strongly of the opinion and a clear national consensus existed to the effect that the political malaise in the country could be solved only by holding national general elections, wherein all the political parties were allowed to participate. In conformity with this national consensus and the unambiguously expressed wish of all the political parties of Pakistan and every section of people there was no difficulty in coming to the conclusion that an appeal to the electorate rather than restoration of the existing Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th November, 1988, for the National Assembly and 19th November, 1988, for the Provincial Assemblies were adhered to; was the proper course to be followed and that this was in the collective good. In exercise of the discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the aforementioned part of the order of the President whereby the dates for holding of fresh general elections were specified. On the other hand, to ensure compliance therewith and to see that elections are actually held on these dates; the said dates were made a binding part of the Court's judgment itself.". Accordingly, in our short order, passed at the conclusion of the hearing it was said:- "We, however, emphasize that the general elections scheduled for the 16th and the 19th November, 1988, shall be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own representatives in a free, fair and impartial election. Accordingly, these appeals stand dispose of in the above terms." 5. Hon'ble Mr. Justice Shafiur Rehman in his part of the judgment observed:- " .................... The mere transitory continuance of such a pre-exisitng state of affairs, with an eye on the immediate and prime objective of holding a timely and fair General Elections prompts us not to interfere in these proceedings with matters, and the prevailing state of affairs." "For reasons already given the findings recorded by the High Court are upheld, the denial of relief to the writ petitioners is affirmed, and all the appeals are dismissed with no order as to costs." Now on facts, the case in hand is not discernible or distinguishable from the cited case. As in this writ petition, we are concerned with the affairs of this Province of North West Frontier , we should not be oblivious of the disarray amongst the members of the Provincial Assembly particularly amongst the cabinet members. Before the dissolution of the National Assembly, two Ministers had resigned on the ground of corruption and mal-practices attributed to the then Government. The Peoples Party of which the petitioner is the Provincial President did not have absolute majority of the members in the Provincial Assembly. He formed the Government by offering to the members of other political parties and the independent candidates the portfolios of Ministers obviously to keep them happy. The combined strength of Ministers of other political parties and the independent candidates was more than the strength of his party. This Court can in the exercise of its writ jurisdiction take judicial notice in this behalf and it can be said that the Government in the Province was not stable and strong. There would always be danger of sacking of such Government and if such Government is sakced and the Provincial Assembly is dissolved, it should not arouse curiosity in one's mind. It was for these considerations that in PLD 1988 Lahore 725, the Lahore High Court refused to grant relief to the petitioner in that case and the Hon'ble Supreme Court upheld its judgment reported in PLD 1989 S.C. 166 = PLJ 1989 SC 10. The Election Commission has completed almost all the legal formalities for holding free, fair and impartial elections scheduled to be held on 24th October, 1990 in the case of National Assembly and on 27th October, 1990, in the case of Provincial Assemblies. The Returning Officers have disposed of the nomination papers filed before them and appeals against the acceptance or rejection of the nomination papers shall be disposed of by the Tribunals by 2nd October, 1990 and final lists of candidates for contesting elections to the National and Provincial Assemblies will be announced shortly thereafter. Election campaigns by the political parties including the party of the petitioner have been started and are in full swing. Public meetings are being addressed daily by the leaders of the political parties. The political atmosphere in the country is now-a-days charged with emotions. Expediency demands that this process must be taken to its logical conclusion. Lest, there is apprehension to the maintenance of public peace and order and anarchy will hold its sway. As a result, chaotic conditions and reign of terror will dominate the society. In the circumstances discussed, this apprehension would appear to be imminent and cannot be lost sight of. In order to be on guard against such unfortunate explosive situation for the preservation of democratic norms and values upon which our social edifice rests, I am, in the exercise of writ jurisdiction of this Court which is essentially discretionary in nature, reluctant to grant to the petitioner the relief prayed by him in this petition. Accordingly, I would, in view of the cited authorities and for reasons stated above, dismiss this writ petition with no order as to costs. This order furnishes the reasons for the short order recorded by me on the 26th September, 1990. Petition accepted by majority.

PLJ 1991 Peshawar 25 PLJ 1991 Peshawar 25 Present: RAZA AHMAD KHAN, J Shah ABDUR RAZZAQ GILLANI-Petitioner versus GOVERNMENT OF NWFP THROUGH CHIEF SECRETARY and 3 others-­ Respondents Writ Petition No. 294 of 1990, dismissed on 13.1.1991. (i) Civil Services-- —Government servant-Appointment to a particular post-Whether a Government servant has vested right to get appointment on a particular post-­ Question of-Notification under challenge comprises of two parts, one pertaining to promotion of respondent No, 4 from EPS 18 to EPS 19 and other relates to his continuance on his present assignment as Director, Agricultural Engineering-Only latter part of notification is challenged on basis of malafide --Held: Suitability to a particular post is a matter falling exclusively within administrative domain of Government and as such is not open to judicial review. [P.28]A,B&C (ii) Malafide-- —Government servant—Appointment to a particular post—Whether a Government servant has a vested right to get appointment on a particular post-Question of-A bald statement alleging malafide against authority, competent to make appointment to a particular post, is hardly sufficient to achieve desired remlls-Malafide has to be pleaded with particularity and burden to prove same lies heavily on person alleging same—Presumption of regularity with regard to official acts exists under law-Held: Malafide alleged by petitioner does not conform to principles laid down in Saeed Ahmad's case and as such cannot be accepted—Petition dismissed. [Pp.28&29]D,E,F,G,H&J PLD 1974 SC 151 rel. Mr. Abdul Qadir Kliattak, Advocate for Petitioner. Mr. J.D. Akbarji, Advocate General for respondents 1 to 3. Mr Nasiml Mulk, Bar-at-Law. assisted by Mr. Ghafoor Ahmad Qureshi, Advocate, for Respondent No. 4. Date ofhearing: 13.1.1091. judgment Raza Ahmad Khan, J.—Shah Abdur Razzaq Gillani, the petitioner herein, joined West Pakistan Agricultural Development Corporation as Assistant Agricultural Engineer on 1.12.1967 and was later on selected by the N.W.F.P. Public Service Commission as Agricultural Engineer on 16.10.1974. The post of Director Agricultural Engineering in BPS-19 fell vacant on 5.1.1986. The charge of the post was temporarily given at the first instance to one Mr. Gul Shaheen Shah and later to Mr. Abdul Wahab but finally Mr. Mohammad Arif Khan, respondent No. 4, an officer two steps junior to the petitioner on the seniority list, was appointed as Director Agricultural Engineering on temporary basis, as stop­ gap arrangement vide an order dated 4.5.1987. This action was called into question by the petitioner before the Service Tribunal in appeal but the same was rejected vide judgment dated 26.3.1988. The efforts of the petitioner in this behalf also proved abortive when his petition for special leave to appeal before the Supreme Court met the same fate. 2. Meanwhile the petitioner was granted move-over from BPS-18 to BPS-19 vide a notification dated 3.8.1989 effective from 1.12.1985. Hardly about three months later, respondent No. 4 on the recommendation of the Provincial Selection Board, was promoted from BPS-18 to BPS-19 and ordered to "continue on his present assignment" vide a notification dated 1.11.1989. 3. The petitioner has invoked Constitutional jurisdiction of this Court by way of this writ petition seeking a declaration to the effect (/) that the notification dated 1.11.1989, having been issued by the Provincial Government mala fide, is as such without lawful authority and ineffective upon the rights of the petitioner and (»') to direct the respondents No. 1 to 3 to notify the petitioner as Director Agricultural Engineering N.W.F.P., instead of respondent No. 4. 4. We have heard Mr. Abdul Qadir Khattak, advocate, learned counsel for the petitioner, Mr. J.D. Akbarji, learned Advocate-General for respondents No. 1 to 3 and Mr. Nasirul Mulk, advocate learned counsel for respondent No. 4 at length and also perused the available record with considerable degree of care. 5. It is vehemently argued on behalf of the petitioner that the whole exercise, as a result whereof the respondent No.4 has been appointed as Director Agricultural Engineering, ignoring the petitioner, was tainted with malaflde inasmuch as at the first instance the post was kept vacant for almost four years by making temporary appointments of various officers thereto and finally the petitioner has been made a victim of circumstances by giving the temporary charge of the post to respondent No.4 and, later on, regularising his appointment vide the impugned notification on the ground of his (petitioner's) "indifferent record of service". Dilating on this expression, he brought to our notice the fact that the sole adverse entry in his A.C.R. was made by respondent No. 4 in the year 1988 when both of them were serving in the same Basic Pay Scale-18 which had no factual or legal validity attached thereto but has weighed with "the Provincial Selection Board, respondent No. 2 herein, while making recommendations for the appointment to the post of Director Agricultural Engineering, though the same draw-back, if it can be called so, was not deemed a matter of hinderance, when considering his case for move-over from BPS-18 to BPS-19. The learned counsel thus contended that in the context of the above, the so called "indifferent record of service" could not be used as a lever to keep him at bay and the action of respondents 1 to 3 in this behalf, being manifestly malaflde, renders the impugned notification to be one without lawful authority and as such liable to be struck down. He further prayed for issuance of direction to the aforesaid respondents to notify the petitioner as Director Agricultural Engineering, N.W.F.P. As against this the learned counsel for respondents 1 to 3 maintained that while promotion is not a vested right, the appointment to a specific post is least a right which can be claimed or enforced by a civil servant. He contended that the malaflde attributed to the Provincial Government (respondent No. 1), or, for that matter, Provincial Selection Board (respondent No. 2) requires very strong proof in its support which is hardly coming forth in the instant case. In this regard he referred to the A.C.R. of the petitioner for the year, 1988 which, irrespective of having been recorded by the respondent No. 4, was represented against by the petitioner and the competent authority, after examining the matter, turned it down and the adverse remarks were upheld. He however, produced before us the proceedings of Provincial Selection Board and, in this context, submitted that the A.C.R. alone was not that weighed with the respondent No. 2 to recommend respondent No. 4 for the Post of Director, Agricultural Engineering inasmuch as alongwith the petitioner and respondent No. 4, were recommended three more senior most Agricultural Engineers of the Agricultural Department, whose cases were examined. A comparative statement of their merits discloses that respondent No. 4 was the best of all the five candidates and as such was recommended accordingly. Learned Advocate-General, recommendations of the respondent No. 2, having been objectively made, cannot be said to have been suffering from any element of malafide as alleged by the petitioner. He, therefore, urged that the petition, being without any substance is liable to dismissal. 7. Defending the action of the respondents 1 to 3 which culminated in the impugned notification, whereby respondent No. 4 was not only promoted to BPS- 19 but was also ordered to continue on his assignment as Director Agricultural Engineering, Mr. Nasirul Mulk, the learned counsel for respondent No.4 submitted that the petition is misconceived in so far as the claim of the petitioner to be treated at par with respondent No. 4 on the basis of their present basic scales of pay; inasmuch as while the petitioner has been moved-over to BPS-19, respondent No. 4 has been promoted to the said Basic Pay Scale meaning thereby that the basic characteristic of his service has not undergone any change and, therefore, his case could not be considered at par with that of the respondent No. 4 on this score alone. Again, according to the learned counsel while promotion being not a vested right, the appointment to a particular post is a matter which'lies exclusively within the administrative domain of the Government and as such is not justiciable in a court of law; nor seniority alone is a determining factor for judging fitness of a civil servant for appointment to a particular post. The learned counsel thus contended that bare allegation of malafide on the part of respondents 1 to 3, unless supported by cogent and tangible evidence coming forth in support of it, cannot be made a basis to interfere with the administrative orders, such as the one impugned in the instant petition. He, therefore, urged that the prayer made in the petition cannot be acceded to on any valid ground and as such is liable to be turned down. 8. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas. 9. It may be'pointed out at the very outset that the impugned notification comprised of two parts, one pertains to the promotion of respondent No. 4 from BPS-18 to BPS-19 and the other relates to his continuing on his present assignment; and the learned counsel for the petitioner in his concluding arguments has candidly admitted that it is the latter part of the notification which he has called into question and attributed malafide in this regard. 10. The controversy thus narrows down to the proposition as to whether the claim of a civil servant to the appointment of a particular post is founded on any valid basis and, alternatively, whether an order of this nature can be called into question on the plea of malafide. 11. In so far as the earlier part of the aforesaid question is concerned, we are sanguine that the petitioner is vested with no such right whatsoever and his claim is supported with no legal basis in the matter of appointment to a particular post. And we tend to agree with the learned counsel for respondents that suitability to a particular post is a matter falling exclusively within the administrative domain of the government concerned and as such is not open to judicial review. 12. The only exception, however, is a case of proved malafide and this furnishes answer to the latter part of the proposition. But a bald statement alleging malafide against the authority, competent to make appointments to a particular post, is hardly sufficient to achieve the desired results. In fact malafide has to be pleaded with particularity and burden to prove the same lies heavily on the person alleging the same, in that the person (s) responsible for taking the impugned action had been motivated either to hurt the person against whom the action is taken or to benefit himself. We are fortified in this view by a decision of the Supreme Court in the case of "Federation of Pakistan v. Saeed Ahmad reported as PLD 1974 S.C. 151." Again, it may be noted, that a presumption of regularity with regard to all official acts exists, under the law and until that presumption is rebutted with unimpeachable evidence, the impugned action cannot be challenged merely upon vague allegations of malafide . 13. Viewed in the perspective of the above, when we examine the plea of malafide raised by the petitioner in the instant case, we find that although in the adverse remarks made by respondent No. 4 in the A.C.R. of the petitioner for the year 1988, an element of malafide can possibly be suspected, yet the same were communicated to the petitioner, were represented against and, after due consideration, the representation was turned down and the remarks were confirmed by the competent authority, namely, the Provincial Chief Secretary, thus washing off the malafide, if any. 14. For the rest, we are of the considered view that the Provincial Selection Board cannot be saddled with any malafide whatsoever towards the petitioner viza-viz the appointment to the post of Director, Agricultural Engineering inasmuch as we have perused the file, pertaining to the matter, produced by the learned Advocate General which disclosed that the Provincial Selection Board have objectively dealt with the matter and it was after taking into consideration all the pros and cons of the cases of the Agricultural Engineers, then serving in BPS-18, including the petitioner as well as the respondent No. 4; that the Board arrived at a conclusion and found the respondent No. 4 as the most suitable person to the post of Director, Agricultural Engineering. Again we do not find any wrong with the Provincial Government in following and acting upon the recommendations so made by the Provincial Selection Board. 15. Similarly, for that matter, the alleged malafide attributed to the Provincial Government for keeping the said post of Director Agricultural Engineering with no regular appointee for a period of almost four years, although prima facie appears rather undesirable, yet it cannot be held as a piece of manifestation of malafide against the petitioner. For there is no material before us, nor the learned counsel for the petitioner could point out any, to pin-point the malafide instead of unforeseen administrative reasons. 16. In this context of the matter, we have arrived at an inescapable conclusion that the malafide alleged by the petitioner does not conform to the principles laid down in Saeed Ahmad's case (PLD 1974 S.C. 151) and as such cannot be accepted. 17. Before parting with the case, however, we cannot help observing that the petitioner undisputedly was the senior most amongst Agricultural Engineers serving in BPS-18 and the learned counsel for respondents could not show us any reason as to why he was not promoted to BPS-19 instead of move-over simplicitor; more particularly, and we tend to agree in this regard with the learned counsel for the petitioner, when the so called "indifferent record of service" did not provide any hindcrance for the move-over of the petitioner to BPS-19; the case of appointment to the post of Director, Agricultural Engineering notwithstanding. We can, therefore, legitimately expect of respondent No. 1, the Provincial Government, to consider the petitioner not only for formally promoting him to BPS-19 but also to appoint..him or^such,^ther post as is equivalent to or/ and at par with that of the Director, Agricultural Engineering. For, we are of the firm view that such inequituous treatment to the civil servants cannot be countenanced with impunity nor does it lead to a congenial atmosphere in the department and rather is likely to generate personal rivalries, frustration and consequent inefficiency. 18. With the foregoing observations, this writ petition fails and is hereby J dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1991 Peshawar 30 (DB) PLJ 1991 Peshawar 30 (DB) f Abbottabad Bench] Present: WALi muhammad khan and abdur rehman khan, JJ LAND ACQUISITION COLLECTOR, T.D.R.O. GHAZI and 2 others-­ Petitioners Versus ABDUL GHAFOOR KHAN, deceased, through L.Rs and 2 others-Respondents Civil Revision No. 46 of 1990 (also C.R. 39 of 1990) dismissed on 2.12.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —S. 12(2)-Judgment and decree obtained through fraud-Challenge to Matter sub-judice in appeal-Whether application under Section 12(2) CPC lies—Question of—Order of High Court allowing filing of application under Section 12(2) CPC, per-se cannot confer jurisdiction on trial court when it lacked jurisdiction under statutory provisions of law-Held: Order granting permission to file application under Section 12(2) having been passed simply on statement of learned counsel for parties without determining legal aspect of case, same could not legally preclude respondents to raise objection to jurisdiction of trial court. [P.34]B (ii) Civil Procedure Code, 1908 (V of 1908)-- —S. 12(2)-Judgment and decree obtained through fraud-Challenge to- Matter sub-judice in appeal-Whether application under Section 12(2) CPC lies-Question of-Separate suit to challenge validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction has been barred and instead aggrieved person can seek redress through application to very court which passed final judgment, decree or order-Entire dispute becomes sub-judice before appellate court till a final judgment is delivered by it—Admittedly, order of Referee Judge, in this case, is not final and matter is sub-judice -Held: Entire proceedings before trial Judge right from filing of application under section 12(2) CPC by petitioners, were much ado about nothing and without jurisdiction. [P.34JA (iii) Limitation Act, 1908 (IX of 1908)-- —- Art. 181 read with Art. 95 and Civil Procedure Code, 1908, Section 12(2)-- Judgment and decree obtained through fraud-Challenge to-Whether application under Section 12(2) C.P.C. was time-barred-Question of—If it is assumed that trial court had jurisdiction and was final court, even then impugned order holding a- -plication under section 12(2) CPC as time barred, is not assailable as application was undisputedly filed beyond 3 years under Article 181 of Limitation Act which is applicable to such like cases—Since petitioners have raised plea of fraud, they could avail of provision of Article 95 which provides 3 years limitation and terminus quo is when fraud becomes known to party wronged—Held: Plea of fraud having been raised by petitioners in grounds of appeal and computing period of 3 years from date of filing of appeal, application under section 12(2) CPC was hopelessly barred by time. [Pp.34&35]C Maulvi Sirajul Haq, Advocate, assisted by Kit Nazir Ahmad, Advocate for Petitioners. Mr. Fida Muhammad KJian, Advocate for Respondents. Date of hearing: 20.11.1990. judgment Wali Mohammad Khan, J.--The entire land situated in the estate of Village Tarbela was acquired by Government for the construction of Tarbela Dam including the suit land bearing khasra numbers 1006 to 1013 measuring about 700 kanals. Abdul Ghafoor Khan and others, respondents herein, made a reference to the Collector for enhancement of the compensation regarding improvement of the suit land which was ultimately referred to the court for determination under section 18 of the Land Acquisition Act, 1894. The learned Court (Additional District Judge Haripur) after obtaining reply from the opposite side, including the Government of NWFP, (petitioner herein), and recording evidence which was produced before him by the parties, declared the kind of the land as fruit garden and 'chari abi' and determined the compensation accordingly. The Government of N.W.F.P., petitioner herein, filed RFA against the aforesaid order of the Refree Judge which was registered as RFA No. 57/81 and notices were issued to the opposite side. The service was not yet complete when the appellants (petitioners herein), submitted application (CM No. 227/84) for permission to produce additional evidence under Order 41 Rule 27 C.P.C. read with section 151 C.P.C. 2. Another application for the amendment of the written statement was also filed by the appellants on 24.11.1985 which was registered as C.M.No. 479/85 and the notices of both these applications were issued to the respondents. The appeal as well as the afore-said applications came up for consideration before a Division Bench of this Court on 24.6.1986. The learned counsel for the parties gave the following statement before the Court:- "We both agree that in the peculiar circumstances of the case the appeal should be kept pending in this Court and while dismissing the applications for producing additional evidence and filing amended written statement, the appellant may be permitted to approach the trial court with an application under section 12(2) C.P.C. for setting aside the impugned decree on the ground that it was without jurisdiction and obtained by fraud, mis-representation and suppression of facts". In view of the statement of the learned counsel for the parties the Court dismissed both the applications and directed the appellant and the petitioners to file application under section 12(2) CPC within one month and the trial court was directed for the expeditious disposal of the matter and ordered the stay of the appeal till the disposal of the said application under section 12(2) CPC. 3. The Government of NWFP, the Land Acquisition Collector and WAPDA through Chairman filed application under section 12(2) CPC before the Additional District Judge which was registered as 35/6 of 1986 and proceedings commenced according to law. The same was seriously contested by Abdul Ghafoor etc, who in their written statement raised the plea of limitation, lack of cause of action and maintainability of the suit. It was also specifically alleged in reply to para 3 of the petition that in the existance of the appeal, the original order of the Referee Judge dated 8.10.1980 had not attained finality and in consequence no application under section 12(2) CPC could lie. A separate application for determination of the preliminary objection was also filed and the learned trial court vide its order dated 12.10.1986 held that the application was within time under Article 181 of the Limitation Act; that the application under section 12(2) CPC was competent in view of the clear permission of this Court referred to above. Yet another application was filed by the respondents regarding the maintainability of the application which was also rejected by the trial court vide its order dated 10.2.1988. The subsequent order was challenged before this Court through their revision petition No. 49/88 but the same was withdrawn vide order dated 6.11.1988 with an observation by this Court that the matter shall be open for challenge in appeal/revision against the final order/judgment whenever delivered. 4. The petitioners produced some evidence in the case before the trial Judge and sought permission to produce additional witnesses not named in the list of witnesses and therefore applied for permission to amend the list of witnesses and production of additional evidence. This naturally caused resentment to respondents as the acceptance of the prayer was bound to prolong the proceedings and ultimately, the delay in the payment of the compensation to the respondents, as the operation of the impugned order regarding the enhancement of compensation had been suspended by this Court. Since RFA No. 57/81 was also pending in this Court, specific direction had also been issued to the trial court vide order dated 20.11.1989 for disposal of the case within one month. The respondents therefore moved another application on 16.1.1990 to the trial court praying for the dismissal of the application u/s 12(2) CPC on the ground that the order being subjudice before the appellate Court and having not attained finality can not be challenged under section 12(2) C.P.C. The learned trial Judge after hearing arguments of the learned counsel for the parties on the said application, dismissed the application under section 12(2) CPC vide his order dated 24.1.1990. Hence the instant revision petition. 5. Mohammad Nawaz and others claiming to be interested in the suit property also filed an application under section 12(2) CPC before the trial court which was registered as 37/6 and proceedings therein continued alongwith the application filed by the Government and registered as 35/6 above. The said application was also dismissed by the learned trial Judge through the said order dated 24.1.1990 and a separate revision petition registered as 39/90 has been filed by Mohammad Nawaz and others. This order will dispose of both the civil revisions No. 46/90 and 39/90. 6. We have heard Maulvi Sirajul Haq Advocate learned counsel for the petitioners in CR No. 46/90 and Taj Mohammad Khan Advocate learned counsel in C.R.No. 39/90 and also Mr. Fida Mohammad Khan Advocate learned counsel for the respondents and have perused the record of the case with their assistance. 7. The learned counsel for the petitioners submits that the legal objection to limitation and maintainability of the application under section 12(2) CPC had earlier been adjudicated upon by the then learned Additional District Judge and that the trial Judge exceeded his jurisdiction in deciding the said questions dcnovo particularly when he being not the Judge who had passed the earlier orders had no power to review the earlier order under Order 47 rule 2 CPC; that this Court with the consent of the learned counsel for the parties had permitted the filing of the application under section 12(2) CPC and the impugned order amounts to contempt of this Court in so far as it declined to entertain the said application; that the High Court in its revisional order dated 6.11.1988 while dismissing the revision petition had left legal question open lor decision at the time of hearing of the appeal revision against the final order in the matter which was to be honoured b v . th> trial Judge and finally that the impugned order is manifestly illegal and niaUriaiK irregular. 8. The learned counsel for the respondent on the other hand contended that the original order entitling the respondents for compensation of the suit land was passed on 8.10.1980 and the petitioners have been resorting to delaying tactics on one pretext or the other in order to deprive the respondents from the fruits of the decree passed in their favour by the Referee court. He further submitted that they were party to the proceedings and had ample opportunity to rebut the evidence produced by the opposite side before the Referee Court. However, according to him the plea of fraud was raised by the petitioners in the RFA No. 57/81 and the appellate court will definitely take the same into consideration while disposing of the appeal in question. Lastly he emphasised that the provision of section 12(2) CPC come into play when finality is attained by the judgments and decrees and only the court which passed the final judgment/decree or order is invested with the jurisdiction to entertain the application under section 12(2) CPC and consequently the entire proceedings before the trial court were without jurisdiction. 9. We have given our anxious consideration to the arguments advanced by the learned counsel lor the parties. 10. The arguments of the learned counsel for the petitioners prima-fade appear attractive and in the normal course we could face no difficulty in ordering the trial court to proceed with the case and pass final order in the matter but keeping in view the chequered history of the case, the effect of prolongation of decision of the instant dispute on the rights of the parlies we have considered it proper to avoid technicalities and consider the impugned order in the light of the Statutory provision of law and its legality and propriety. For the proper appreciation of the controversy in hand it is necesssary to reproduce the provision of section 12(2) CPC:- "12(2) CPC-Whcre a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree or order and not by a separate suit".A careful reading of the above provision of law makes it abundantly clear that separate suit to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction has been barred and instead the aggrieved person is provided with a remedy to seek his redresses by making an application to the very court which passed the final judgment, decree or order. Through the insertion of this provision of law the intention of the Legislature was to do away with the protracted procedure of filing a separate suit for the purpose and then to file appeal and revision against the judgments delivered in such suits. The insertion of the word "court which passed the final judgment, decree or order and not by a separate suit" must have been with the sole purpose that the trial court should not sit on the judgment of the final court and declare the same as having been obtained through fraud, mis-representation or want of jurisdiction. Under section 96 of the Civil Procedure Code appeal is allowed against every decree passed by any court exercising original jurisdiction to the court which is authorised to hear the appeal from the decision of such court and the appellate court is empowered to maintain the decree, set aside the same or order retrial of the matter. In other words the entire dispute becomes sitbjitdice before the appellate court till a final judgment is delivered by the appellate court. Admittedly the order of the Referee Judge dated 8.10.1980 is subjiidice in the RFA No. 57/81 before this Court and is not final at the moment so long as the appeal is not finally decided and final judgment and decree in the appeal is not passed. We are therefore convinced that the entire proceedings before the learned trial Judge right from the filing of the application under section 12(2) CPC by the petitioners were much ado about nothing and without jurisdiction. The order of the learned trial Judge is in consequence perfectly valid and in accordance with the mandatory provisions of law. 11. No doubt this Court vide its order dated 24.6.1986, on the statement of the learned counsel for the parlies allowed filing of the application under section 12(2) CPC within one month but thai perse can not confer jurisdiction on the trial court when it lacked jurisdiction under the Statutory provisions of law. This aspect of the case apparently was not considered by this Court at the time of granting permission to file application under section 12(2) CPC as the order was passed simply on the statement of the learned counsel for the parties without determining the legal aspect of the case and the same could not legally preclude the respondents, to raise the objection to the jurisdiction of the trial court. 12. The plea of limitation, in view of our conclusions above, has lost its force because the question of limitation will come into play when proper application before a proper forum at the proper lime is made. Any how if it is assumed thai ihe Irial court had the jurisdiction and was the final court even then the impugned order holding the application under section 12(2) CPC as time barred is not assailable, inasmuch as the application was undisputedly filed beyond 3 years under Article 181 of the Limitation Act which is applicable in such like cases. Since the petitioners have raised the plea of fraud they could avail of the provision of Article 95 of the Limitation Act which provides 3 years Limitation to suit for setting aside decree obtained by fraud or for other relief on the ground of fraud and the terminus a quo thereof is 3 years when the fraud becomes known to the party wronged. The plea of fraud was raised by the petitioners in the grounds of appeal and computing the period of 3 years from the date of filing the appeal the application under section 12(2) CPC was hopelessly barred by time. 13. The learned counsel for the petitioners argued with vehemence that fraud vitiates all solemn acts and in support of his argumenls cited the authority of then Dacca High Court in case of Muhammad Idris Klwn . Haji Eifanuddin (P.L.D. 1958 Dacca 132) and the relevant dictum is reproduced bclow:-- "(a) Fraud-Order obtained by practising fraud on Court-Court has inherent power to set it right. No order obtained by practising fraud on the Court and on the parties should be allowed to stand on record. If it be allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances". There is no cavil with the proposition emphasised by the learned counsel for the petitioners. The pica of fraud has already been raised by the petitioners in the grounds of appeal in RFA No. 57/81 and will definitely be considered by this Court while giving its decision in the main appeal. The appellate court has powers under Order 41 Rule 27 to record additional evidence if it feels the necessity for the same inspite of the rejection of the application for the same purposes by the petitioners vide Order dated 24.6.1986. 13. As regards the revision petition No. 39/90 suffice it to say that the petitioners in this revision petition accepted the award and did not choose to make a Reference to the Court and consequently they have no right to challenge the order dated 8.10.1980 passed on the reference filed by Abdul Ghafoor and others on the ground of fraud and misrepresentation as they are not the aggrieved persons from the said order. Their application under section 12(2) CPC was also rightly rejected by the trial court on this ground. 14. The up-shot of the above discussion is that both the revision petitions are dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1991 Peshawar 35 PLJ 1991 Peshawar 35 [Circuit Bench D.I.Khan] Present: wali muhammad kuan, J Haji ARSALLAH KHAN-Petitioner Versus Dr. ABDUS SATTAR KHAN-Respondent. Civil Revision No.217 of 1989, accepted on 27.6.1990. Registration Act, 1908 (XVI of 1908) —S.17 (2)—Declaration—Suit for—Decree passed in—Whether decree passed on compromise requires registration-Question of--Scction 17 (1) of Act enumerates documents which require compulsory registration and sub-section (2) of Section 17 makes exception thercto--It is apparent from clauses (i) and (vi) of Section 17(2) that neither composition deed nor decree or order of Court based thereon require compulsory registration—Held: Appellate court misinterpreted statutory provisions of law and committed illegality in directing registration of declaratory decree passed by it—Revision accepted. [Pp.36&37]A,B&C Air. S.Zaj'ar Abbas Zaidi, Advocate for Petitioner. Mr. Faridnllah Khan, Special Attorney for Respondent. Date of hearing: 27.6.1990. JfDGMF.NT Haji Arsala Khan plaintiff/petitioner herein sued Dr. Abdus Sattar Khan, defendant/respondent herein, for declaration that the suit shops bearing Survey Nos.225/CA and 225/CB situated near Char Bijli Chowk towards the South Sokari Gale, Bannu City, as per boundaries mentioned in the plaint, are owned and possessed by him on account of purchase from the defendant/respondent and that he is lelt with no richt or interest therein. The deicndanl/respondent in his written statement averred that he had cnlered into an agreement to sell with the plaintiff/petitioner but a sum of Rs.1000/- was still outstanding against him and agreed to the passing of the decree in favour of the plaintiff/petitioner provided the balance of sale consideration was paid to him. The parties submitted written compromise on 7/2/1989 whereby the defendant acknowledged the receipt of the entire sale consideration, the delivery of possession to the plaintiff/petitioner on the spot and agreed to the passing of the decree against him in favour of the plaintiff/petitioner. The learned trial Judge, however, vide his judgment and decree dated 7/2/1989 dismissed the suit of the plaintiff on the ground that the suit was based on collusion in order to avoid the payment of government dues. Dissatisfied with the same the plaintiff/petitioner filed appeal before the learned Addl: District Judge. Bannu who acceptd the same and passed the decree for declaration prayed for but directed the plaintiff/petitioner to get the registration of the decree by Sub-Registrar after payment of the prescribed fee on the sale amount of Rs. three lac within two months of the date of the order, otherwise the decree was to be considered null and void and the suit stand dismissed. Hence the instant revision petition by the plaintiff/petitioner calling in question the order of the Appellate Court dated 13/5/1989. 2. I have heard learned counsel for the petitioner, the attorney of the defendant/respondent in person and have perused the record of the case. 3. The attorney of the defendant/respondent has conceded that the defendant/respondent has transferred the suit property in favour of the plaintiff/petitioner and thai the sale is complete in all respects. The question requiring determination, therefore, simply is as to whether a decree passed on the compromise, requires registration under section 17 of the Registration Act or any other section thereof. Sub-section (1) of Section 17 of the Act ibid enumerates the documents which require compulsory registration and sub-section (2) thereof makes exception thereto. Clauses (/) and (v/) of sub-section (2) are somewhat relevant to the point in issue and they are being reproduced for convenience sake:- (/) any composition deed; or (//) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; It is thus apparent from the perusal of the aforesaid provision of law that neither composition deed nor decree or order of the Court based thereon require compulsory registration except those decrees which include immovable property other than that which is the subject-matter of the suit or proceeding. Obviously the compromise in the case in hand exclusively pertained to the suit shops and did not attract the later part of clause (vi) of sub-section (2) of Section 17 of the Act ibid and in consequence did not necessitate compulsory registration. It appears that the learned appellate Court mis-interpretted the above statutory provisions of law and committed illegality in directing the registration of the declaratory decree passed by it. 4. For the foregoing reason the instant revision petition is accepted, the judgment and decree of the learned appellate Court dated 13/5/1989 is modified and a declaratory decree as prayed for is passed in favour of the plaintiff/petitioner against the defendant/respondent, with no order as to costs. (MBC) Revision accepted.

PLJ 1991 Peshawar 37 PLJ 1991 Peshawar 37 [Abbottabad Bench] Present: MAHBUB An KHAN, J. Mst. AMINA and another-Petitioners versus HAJI KHAN-Respondent. Civil Revision No.78 of 1987, dismissed on 20.3.1991. Sinker- —Pre-emption suit-Participator in amenities-Ground of-Whether principle of sinker is applicable-Question of-Right of participation in amenities was claimed on basis of khasra No.2420 which was transfered by petitioner No.2 in favour of petitioner No.l and his daughter, much before institution of pre­ emption suit by respondent—Petitioner No.2, after total divestment of his rights, cannot be held to be an owner of field No.2420-Both petitioners had jointly purchased land under pre-emption, petitioner No.l seven shares and petitioner No.2 one share—Payment of sale money has been mentioned in mutation as lump sum—Mutation does not show that petitioner No.l had shared payment of proportionate price—Impugned transaction cannot be taken to be divisible-Held: Petitioner No.l in suit purchase having equal right of contiguity to pre-emptor, had associated her husband (petitioner No.2) in joint transaction, who had no such preferential right, so rule of sinker shall apply— Petition dismissed. [Pp.39&40]A,B&C PLD 1991 SC 130 = PLJ 1991 SC 183 rel. PLD 1989 Peshawar 179 distinguishable. SyedAbdus Salam Sarwar^ Advocate for Petitioners. Haji Ghulam Basil, Advocate for Respondent. Dates of hearing: 6 and 13.3.1991. judgment In this petition moved under Section 115 C.P.C. Mst. Amina and her husband Allah Ditta assail the judgment and decree passed by the Addl. Distt. Judge, Haripur on 15.4.1987 in appeal No.42/13 of 1986 and that of the Civil Judge, Haripur dated 9.7.1986 whereby pre-emption suit No.172/1 of 1984 filed by Haji Khan respondent was decreed against the petitioners. 2. On the foot of mutation No.6954 dated 22.3.1983 Ghulam Haider Khan s/o Khani Zaman Khan, a resident of village Bhiri Bandi sold an area of 8 kanals 4 marlas of land comprised in fields No.2380 and 2424 to the petitioners for an ostensible price of Rs.50,000/-. Haji Khan respondent preempted this sale being participator in amenities appendages and owner of the contiguous property. 3. The suit was resisted by the vendees. The learned Civil Judge after settling issues arising out of the pleadings, recorded evidence pro and contra and while allowing the suit partially vide his judgment recorded on 9.7.1986 passed a decree for possession through preemption of the case land in favour of the plaintiff preemptor in respect of khasra No.2424 on the basis of contiguity on payment of a sum of Rs. 36900/-. The plaintiffs suit with regard to khasra No.2380 did not succeed. An appeal was taken by the petitioners before the Additional District Judge. The preemptor although did not move any appeal against the partial success of his suit but he filed cross-objections under Order 41 Rule 22 C.P.C. against the determination of sale price at Rs.36900/-. Both the appeal and cross-objections were dismissed by the learned appellate Court vide the impugned judgment. Hence this petition. The suit land consists of two fields No.2380 and 2424. Field No.2380 measures 2 kanals 1 marla and 2424, 6 kanals 3 marlas. None of the parties is cosharer in this land. Respondent Haji Khan is an owner of field No.2423 as the extract Ex. PW1/3 from the jamabandi of 1968-69 indicates. This field is contiguous to suit khasra No.2424 as shown in the Aks Shajra Kislitwar Ex.PW 1/2. The preemptor has admittedly no contiguous land with khasra No.2380. The Aks Shajra Kishtwar (Ex.PW 1/2) further indicates that khasra No.2420 is also contiguous to the suit khasra No.2424. An extract from the jamabandi for the years 1968-69 (Ex.PW l/D-2 & D/3) shows that Allah Ditta petitioner was exclusive owner of field No.2420 measuring 14 kanals 6 marlas which he had transferred in favour of his wife Mst. Amina and daughter Mst. Razia on 16.12.1969 vide mutation No.5048. So after the aforesaid transfer of the field No.2420 by Allah Ditta in favour ,>f his wife and daughter on 16.12.1969, Mst.Amina and Mst. Razia became owners of the said property to the total exclusion of the petitioner No.2. As Mst. Amina had joined her husband with her in the joint purchase who had no right equal or superior to that of preeniptor, she by doing so had also lost her own right of contiguity against the preemptor within the meaning of section 19 of the N.W.F.P. Pre-emption Act, 1950. The learned trial Judge while giving his decision on issues No.l and 7 framed in the suit has taken notice of this aspect of the case and there is also a passing reference as to this regard in para No.5 of the judgment of the Additional District Judge. 5. The learned counsel for the petitioners during his arguments before me has although criticized the approach of the two courts below in respect of the application of Section 19 of N.W.F.P. Act XIV of 1950 to the case in hand but at the same time he has conceded, that although there was no issue on this point and no such objection had been raised in the pleadings but the plea being a legal one could be agitated. The learned counsel is, however, of the view that no rule of sinker could be applied in this case for the reasons; that Allah Ditta who was exclusive owner of the land consisting of fields No.2378 and 2420 in khata No.696 had although transferred the entire khasra No.2420 to Mst. Amina and Mst. Razia on 16.12.1969 but he being still an owner in the remaining land comprised in khasra No.2378 is a joint owner in khata No.696 with Mst. Amina etc and thus a contiguous owner of the land involved in suit field No.2424. 6. I am affraid this argument may not prevail. As stated before, the total land which is subject matter of khasra No.2420 had been transferred by Allah Ditta in favour of his wife and daughter on 16.12.1969, i.e. much before the institution of the present suit by Haji Khan respondent in the Civil Court on 22.3.1984. After this transfer of the entire land in field No.2420 measuring 14 kanals 6 marlas, Allah Ditta had divested himself of all rights of ownership in the said field which is quite a distinct entity from the land involved in field No.2378 measuring 3 kanals 7 marlas. The two fields (are) situate at a considerable distance from each other as the Aks Shajra Kishtwar Ex.PW 1/2 shows. Allah Ditta petitioner in this situation and after the total divestment of his rights in the land transferred cannot be held to be an owner of field. No.2420, by any stretch of imagination no matter that the two fields fall in the same khata wherein Allah Ditta is still an owner in the remaining land comprised in khasra No.2378. The learned counsel in support of his contention has placed reliance on a judgment of this Court reported in P.L.D. 1989 Peshawar page 179 which with utmost respect I say is distinguishable from the case in hand. 7. The second argument advanced by the learned counsel for the petitioners is, that the sale in dispute being divisible the suit could succeed only to the extent of the share purchased by Allah Ditta in case he is found to be a stranger in the joint purchase, and the doctorine of sinker is applied. A perusal of impugned mutation No.6954 dated 22.3.1983 (Ex PW 1/5) shows, that both Mst. Amina and Allah Ditta had jointly purchased the land measuring 8 kanals 4 marlas involved in fields No. 2380 and 2424. Mst. Amina had purchased 7 shares in the said two fields while the share purchased by Allah Ditta is one. Allah Ditta in his statement recorded before the trial court has stated that the sale price for the suit land had been paid on 22.3.1983 at the time of attestation of mutation No.5954. The endorsement made by the revenue officer on 22.3.1983 on the mutation also shows that the mutation was attested in 'Jalsa-e-Aam' in presence of Allah Ditta vendee alone. The payment of sale money at Rs. 50,000/- in the impugned mutation had been mentioned in lump sum. There is nothing in the sale mutation indicating that Mst. Amina had shared the payment of proportionate price. The impugned transaction cannot be thus taken to be a divisible one for the mere reason that specific shares in the land had been purchased by each vendee. The inevitable result in this situation would be, that Mst. Amina in the suit purchase having equal right of contiguity to the preemptor had associated her husband in the joint transaction who had no such preferential right and rule of sinker shall apply. Reliance has been correctly placed in this view of the matter on a recent judgment of the Supreme Court of Pakistan reported in P.L.D. 1991 Supreme Court i30 = PLJ 1991 SC 183. 8. In the circumstances no case of jurisdictional error on the part of the lower forums has been made. I see no merits in this revision petition and dismiss it with costs. (MBC) Petition dismissed.

PLJ 1991 Peshawar 40 (DB) PLJ 1991 Peshawar 40 (DB) [Abbottabad Bench] Present: wali muhammad khan and mahboob ali khan, JJ. MUDASSAR SHAH-Petitioner Versus FAIZ MUHAMMAD KHAN and 7 others-Respondents Writ Petition No.19 of 1991, dismissed on 12.3.1991. Aggrieved Person-- —Provincial Assembly-Election to-Armed clashes between rival groups-­ Order of Election Commission for re-polling in two polling stations—On mutual settlement, fiesh order by Election Commission—Challenge to— Whether petitioner is an aggrieved person—Question of—All contesting candidates were before Election Commission at time of passing of impugned order and it was at their instance that impugned order was passed-Petitioner is an elector in one of polling stations—Held: Petitioner does not fall within category of aggrieved person within meanings of Article 199(l)(a) of Contitution of Pakistan-Petition dismissed. [Pp.41&42]A,B&C PLD 1969 SC 223 distinguished. Mr. Muhammad Sardar KJian, and KJi. Abdul Rasliid, Advocates for Petitioner. Date of hearing: 12.3.1o91. judgment Wall Muhammad Khan, J.-Through the instant writ petition Mudassar Shah, an elector, recorded in the Electoral Roll of Village Devli, at serial No.1837, has called in question the order dated 8.11.1990 passed by the Election Commission, respondent No.8 herein whereby respondent No.2 was declared elected and the earlier order of the same day whereby re-polling in Polling Stations No.10 Jabbar and 12 Devli had been ordered, was reviewed. 2. The facts of the case briefly stated are that election to the Provincial Assembly of PF-45 Manschra IV was held on 28.10.1990 in which respondents 1 to 7 were the contesting candidates; that on the day of polling there were armed clashes between rival groups in the area of polling stations 30 Jabbar and 12 Devli of PF-45 Mansehra IV resulting in the murder of 6 persons and injuries to others; that the polling staff in view of the occurrence had to stop the polls and refer the matter to the Election Commission under section 27 of the Representation of People Act, 1976 (Act LXXV of 1976); thai the Commission after necessary inquiry into the dispute and giving a chance of hearing to I he contesting candidates came to the conclusion that the polling at the above mentioned two polling stations was disturbed due to the criminal case and ordered re-polling in the said two polling stations vide a written order dated 8.11.1990 signed by their Lordships all the three members of the Election Commission. Just at the time of announcement thereof the Commission was informed by Malik Fazal Hussain Advocate for respondent No.l and Mohammad Zaman polling agent of respondent No.2 that they had mutually settled the dispute between them and have recorded their statements on 6.11.1990 already on the file. The learned Commission passed a fresh order on the same day in terms of the statement of respondent No.l and 2. The petitioner feels aggrieved of the subsequent order and wants the same to be declared as illegal, without lawful authority and of no legal effect. 3. The learned counsel for the petitioner strenuously argued that the impugned order amounts to review of the earlier order passed on the same day and that since the learned Commission was not invested with any power of review under the provisions of the Act ibid, the earlier order whereby re-polling had to take place in polling stations No. 10 and 12, under Section 27 of the Act ibid had attained finality and that the subsequent order impugned herein is illegal and. coiwn-non-jiidice. 4. When questioned by one of us (Mr. Justice Mahbub Ali Khan) as to how the petitioner feels aggrieved from the impugned order to entitle him to institute the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, he submitted that under section 33 (5) (b), the petitioner is entitled to cast vote in favour of the contesting candidate for whom he wishes to vote and that this right of his is going to be defeated if there is increase or decrease in the number of contestants who were already in the arena of previous contest. In support of his arguments he cited the judgment of August Supreme Court in case of Mian Fazal Din versus Lahore Improvement Trust, and another reported in PLD 1969 SC 223. 5. We have anxiously considered the arguments of the learned counsel for the petitioner and have carefully gone through the cited judgment. According to the Scheme of the Act ibid, the elections of the Assemblies are held and candidates are proposed and seconded by the electors for contest. Once they are declared as contesting candidates the right and duties of the electors is only to cast vote in favour of one or other candidate and thereafter they (contesting candidates) have the right to challenge the election on any grounds available in the Act before the Election Tribunal or Election Commission. All the contesting candidates were before the Election Commission at the time of passing of the impugned order and it was at their instance that the impugned order was passed. They still feel satisfied with the same in as much as none of the contestants have challenged the same. The petitioner who is an elector in one of the polling stations has no vested right to call in question the order of the Election Commission respondent No.8 who has the exclusive jurisdiction to ensure that the election is conducted honestly, justly and fairly and in accordance with the provisions of the Act and the Rules. The Commission is also invested with unfettered powers under Section 104 of the Act ibid which provides that any thing required to be done for carrying out the purpose of the act for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct. A bar of jurisdiction is also contained in Section 105 of the Act and protection is also given to the action taken in good faith by the Commission under Section 106 both of which are reproduced for ready reference:- "105. Jurisdiction of Courts barred-No Court shall question the legality of any action taken in good faith by or under the authority of the Commission, the Commissioner, a Returning Officer, Presiding Officer or an Assistant Presiding Officer or any decision given by any of them or any other officer or authority appointed under this Act or the rules. 106. Protection of action taken in good faith—No suit, prosecution or other legal proceeding shall lie against the Commission, the Commissioner or any officer or other person in respect of anything which is in good faith done or intended to be done under or in pursuance of this Act or of any rule or order made or any direction given thereunder." We are therefore convinced that the petitioner does not fall within the category of aggrieved persons within the meanings of Article 199 (1) (a) of the (constitution of the) Islamic Republic of Pakistan. 6. The authority of Augut Supreme Court cited above is distinguishable from the facts of the present case in as much as in the cited case the petitioner had purchased a piece of land just opposite (to) the place where the proposed market had to be constructed according to the plan of the Corporation and the abandonment of the construction of the market, according to the conclusion of the Supreme Court, was bound to deprive the petitioner before them of facility. But in the instant case the petitioner has not been deprived of the right of exercise of franchise and it would be open to him to exercise the same in favour of a candidate of his liking. 7. Since respondent No.2 had already been elected as member of the National Assembly he preferred to retain the same and resigned his membership from the Provincial Assembly. Schedule for re-election has already been announced and on this score too we do not feel inclined to disturb the same. 8. The net result of the above discussion is that we do not find any merit in he instant writ petition and dismiss the same in limine. (MBC) Petition dismissed.

PLJ 1991 Peshawar 43 PLJ 1991 Peshawar 43 [Dera Ismail Khan Bench] Present: muhammad khiyar J. KALU and another-Petitioners versus GHULAM SIDDIQ and 4 others-Respondents Civil Revision No.35 of 1989, dismissed on 26.2.1991. Concurrent Finding-- —Declaration-Suit for-Decree passed in-Finding of trial court confirmed by Appellate Court—Challenge to—Two courts are unanimous in their views that plaintiff/respondent No.l had succeeded in establishing his ownership of house by producing evidence as required by law-Concurrent findings on facts cannot be challenged in revision except when decision is based on no evidence, or on inadmissible evidence or is so perverse that grave injustice has resulted therefrom-Only mistake pointed out is that documents being unregistered, were not admissible in evidence-Under amended Section 49 of Registration Act, formal effect of non-registration that documents could not be received in evidence of any transaction affecting such property, is no longer law of country—Held: Un-registered documents were rightly accepted by courts below and no exception could be taken to acceptance of those documents-Petition dismissed. [Pp.45,46,47&48]A,B&C PLJ 1983 SC 1, PLD 1966 Kar. (WP) 376, PLD 1969 Karachi 474, PLD 1970 Kar. 285 and PLD 1976 SC 781 rel. Mr. Zahid YousafKJian, Advocate for Petitioners. Mr. Muhammad KJian KJiakwani, Advocate for Respondents. Date of hearing: 26.2.1991. judgment This civil revision under section 115 C.P.C. is directed against the judgment and decree dated 5.3.1989 of the District Judge D.I. Khan maintaining the judgment and decree dated 14.7.1988 of the civil Judge, D.I.Khan. 2. Ghulam Siddique, plaintiff/respondent No.l herein instituted a suit for declaration in the Court of Senior Civil Judge, D.I. Khan against Kalu and Salim Abbas, defendants-petitioners herein, and against Ghulam Sabir, Muhammad Aslam, Mst. Ghulam Fatima and Mst. Aisha, defendants-respondents 2 to 5 herein, to the effect that he was the owner in possession of the suit house fully described in the heading of the plaint with which the defendants/petitioners and defendants-respondents 2 to 5 had no concern whatsoever and that the sale deed dated 29.6.1983 by defendant/respondents 2 and 3 in favour of defendants/petitioners herein were void, illegal and ineffective on his rights. Additionally, the plaintiff-respondent No.l herein sought the relief for possession and permanent injunction and in the alternative a prayer was made for possession of the suit house by pre-emption on payment of Rs.3000/-. 3. According to the averments in the plaint, the suit house was owned by one Eidoo on whose death his widow Mst. Allah Wasai occupied the house as owner and in that capacity by an oral agreement deed sold it to Ghulam Siddique petitioner/respondent No.l herein for Rs.1000/- and delivered its possession to him and then in support thereof executed an agreement deed on 2.7.1983. Ghulam Siddique permitted her to stay in the house till her life time vide the aforesaid deed. Later on when he came to know that three sisters of Eidoo i.e. Mst. Zinat, Mst. Fatima and Mst. Aisha were also his heirs, the plaintiff/respondent No.l purchased their shares in the suit house as well through Mst. Zinat who executed another sale deed dated 6-12-1983. In this way Ghulam Siddique became full owner of the suit house. Mst. Zinat died after sometime. About two months before the institution of the suit defendants/petitioners herein took forcible possession of the house. The matter was reported to the Chairman, Union Council Paroa, before whom defendants/petitioners herein claimed the ownership of the house on the basis of sale deed dated 29-6-1983 and on the death of Mst. Zinat who had also complained to Martial Law authorities, the porceedings were dropped. The defendants/petitioners were asked to deliver possession of the house but they refused necessitating institution of the suit against them. 4. Defendants/petitioners and defendant/respondent No. 2 herein resisted the suit. In their joint written statment they said that they had purchased the house from Ghulam Shabir, defendant/respondent No.2 herein for Rs. 40,000/- vide sale deed dated 27-2-1983 and 29-6-1983. The ownership of Mst. Allah Wasai and Mst. Zinat and also that of Eidoo was denied. Their contention was that Ghulam Shabbir defendant/respondent No.2 was the owner of the house who had sold it to them. Number of additional pleas were also raised. Pleading of the parties were reduced to following issues:- 1. Whether the plaintiff has a cause of action? 2. Whether the suit house is less than two kanals and hence is exempt from pre-emption? 3. Whether the plaintiff is estopped by his own conduct to bring the present suit? 4. Whether the suit is competent in its present form? 5. Whether the plaintiff has waived his right of pre-em'ption? 6. Whether the plaintiff has got any locus standi? 7. Whether the plaintiff is entitled to a declaration that he is exclusive owner of the suit house and defendants have nothing to do with the same and agreement to sell deeds dated 29-6-83 from the defendants 1 and 2 in favour of the defendants 3 and 4 are against law, illegal, malafide, void and ineffective against his rights? 8. Whether the plaintiff is entitled to possession as well as permanent injunction against the defendants as prayed for? 9. Whether in alternative the plaintiff is entitled to possession of the suit house through pre-emption on payment of Rs. 3000/- or whatever is fixed by the Court? 10. Whether a sum of Rs. 40,000/- has been fixed in good faith or paid actually as sale consideration of the entire suit house by the defendants in equal shares? 11. Relief. 5. The trial Court recorded the evidence produced by the plaintiff/respondent No. 1 herein and closed the evidence of defendants/petitioners under Order 17 Rule 3 of the Code of Civil Procedure, vide order dated 4-4-1987. This order was challenged in revision before the learned Additional District Judge who vide order dated 21-5-1989 in Civil Revision No. 13 of 1987 dismissed the revision and maintained the order. The trial Court in the light of evidence on record discussed the issues. On issue No. 1 it was held that Ghulam Siddique had a cause of action to bring the suit. Issue No. 2 was not pressed by the parties and was left undiscussed. Issues No. 3,5 and 6 were decided against the defendants petitioners as no evidence was produced in support thereof. The suit was held competent. Issue No.4 was decided in the affirmative. On issue No. 7 it was held that Ghulam Siddique was the owner of the suit house while Kalu and Salim defendants-petitioners herein were not and the deeds executed by them were illegal, malafide, void and ineffective. Issue No. 8 was decided in favour of Ghulam Siddique plaintiff/respondent No. 1. Issue Nos.9, 10 and 11 were held as redundant and no discussion was made. Consequently, the suit was decreed vide judgment dated 14-9-1988. 6. Kalu etc; defendants/petitioners herein preferred an appeal in the Court of District Judge, D.I. Khan impugning the judgment and decree dated 14-9-1988 of the trial Court. The learned District Judge vide judgment dated 5.3.1989 after appraising evidence produced by Ghulam Siddique upheld the judgment and decree of the lower Court and dismissed the appeal filed by the defendants/petitioners. 7. Feeling aggrieved from the judgments of the lower Courts, they have now come in revision to this Court. 8. Mr. Zahid Yusuf, Advocate for the defendants/petitioners argued that the lower Courts committed illegality in placing reliance on the un-registered sale deeds dated 2.7.1983 and 6.12.1983 produced in evidence by plaintiff-respondent No. 1 to prove his ownership of the suit house requiring interference by this Court under section 115 of the Civil Procedure Code. 9. Mr. Muhammad Khan, Advocate for plaintiff-respondent No. 1 in reply said that the concurrent findings of facts by the two Courts below call for no interference in revision. Raliance was placed on PLJ1981 Lahore 668. 10.1 have heard the learned counsel for the parties and have also perused the impugned judgments of the lower Courts and the record as well. The two Courts are unanimous in their views that the plaintiff-respondent No. 1 had succeeded in establishing his ownership to the house by producing evidence as required by law. The evidence of the defendants/petitioners was closed under Order 17 Rule 3 C.P.C. The dispute could be resolved only on the basis of evidence produced. It has been resolved by the Courts below and the findings are on facts which being concurrent can not be challenged in revision except when the decision is based on no evidence, or on inadmissible evidence, or is so perverse that grave injustice has resulted therefrom. It has been so held by the august Supreme Court in Kanwal Naeem vs. Fateh Klian (PLJ 1983 S.C.I). The rule laid down reads as under:- "Clearly the decision of the learned Single Judge, impugned in this appeal turns on the determination of a question of fact. As pointed out by this Court in Muhammad Umar Beg Vs. Sultan Mahmood Khan (PLD 1970 S.C. 139), revisional powers under section 115 Civil Procedure Code are primarily intended for correcting errors made by subordinate Courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom. In this regard I am tempted to cite here the illuminating observations of their Lordships of the Privy Council hi Venkatagiri H.R.E. Board Madras (AIR 1949 P.C. 156) which has been followed by this Court in Umar Dad Khan Vs. Tila Muhammad Khan (PLD 1970 S.C. 288):- "In Mohunt Bhagwan Ramanuj V. Khetter Moni Dasi (I C W N 617) High Court of Calcutta expressed the opinion that subsection (c) of section 115, Civil P.C., was intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts as to prevent gross injustice in non-appealable cases. This pasage was dissented from by the Calcutta High Court in Enat. Mandvl V. Baloram Dey (3C W N 581), but was cited with approval by Lord Williams in Gulabchand V. Kabiniddin (58 Cal. 11= AIR 1931 Cal. 27). Their Lordships can see no justification for any such view; it would indeed be difficult to formulate any standard by which the decree of error (of) subordinate Courts could be measured. Section 115 applies only to cases in which no appeal lies, and where the Legislature provided no right of appeal, the manifest intention is that the order of the trial Court, right or wring, shall be final. The section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction: (b) that the case is one in which the Court ought to exercise jurisdiction and ; (c) that in exercising jurisdiction that Court has not acted illegally, 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. J/ the High Court is satisfied opon those three matters, it has no power to interfere because it differs, however profoundly from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justification." The above enunciation of the scope of the revisional powers vesting in the High Court clearly shows that, no interference was called for in this case and in upsetting the conclusion of the Courts below on the question of fact by means of a re-examination of the evidence in revision the High Court unfortunately overstepped the limits of its jurisdiction." Keeping in view the above rule, it is to be seen as to whether by decreeing the suit the two Courts below have committed any error to be corrected by this Court. In support of his claim, that he purchased the house, plaintiff/respondent No. 1 produced unregistered sale deeds dated 2-7-1983 and 6-12-1983 Ex: PW.1/1 and Ex:PW.l/3. The documents were proved by the marginal witnesses Juma Khan (PW.2), Malik Ghulam Hussain (PW.3) and also by Mst. Aisha (P.W.6). The trial Court on the basis of this evidence decreed the suit. The appellate Court maintained the decree. No mistake thus appears to have been committed by the Courts. The only mistake pointed out by the learned counsel for the petitioner is that documents being unregistered were not admissible in evidence. It appears that learned counsel was not aware of the amendment in section 49 of the Registration Act. By Ordinance XLV of 1962 (Registration Amendment Ordinance, 1962) the proviso to section 49 has been omitted. The effect of this amendment has been considered in many reported cases. In the case of Mosa Vs. Mohammad Yaqoob (PLD 1966 Karachi (W.P) 376), it has been held that the documents though un-registered can be used in evidence for collateral purposes and section 49 of the Registration Act 1908 which provided that no document requiring registeration could be used in evidence unless registered has now been replaced by new section 49 by the Registeration Amendment Ordinance, 1962. The findings are that the formal effect of non-registeration that the documents could not be received as evidence of any transaction affecting such property is no longer the law of this country. The case cited above was relied in re: Pakistan Employees Co-Operative Housing Society Ltd: Vs. Mst. Anwar Sultana and others (PLD 1969 Karachi 474). The High Court in dealing with the amended section 49 of the Registeration Act observed as under:- "The question of admissibility or otherwise of a document is indeed nothing more than a mere matter of procedure, and must be governed by the law obtaining in this behalf for the time being, there being no vested right in procedure. Clauses (a) and (b) of the unamended section 49 of the Registeration Act may indeed be regarded as being in the nature of substantive provisions but no such sanctity is attached to clause (c) thereof which merely laid down that no document required by section 17 or by provision of the Transfer of Property Act, 1882, to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it had been registered. As in the amended section 49, this clause does not find any place, it is clear that the prohibition contained therein is no longer operative." Subsequently in Muhammad Hussain Vs. Ghulam All (PLD 1970 Karachi 285), the aforementioned two cases were referred and the argument that with the omission of the proviso there was no room for examining the contents of an unregistered documents even for a collateral purpose was repelled. We have also the pronouncement of the august Supreme Court on the subject in the case of Messrs Rahman Cotton Factory Vs. Messrs Nichimen Co. Ltd., Karachi (PLD 1976 Supreme Court 781). It is held' that:- "An instrument requiring compulsory registeration under section 17 of the Registeratin Act but not so registered is not a dead letter. Vide clause (a) of section 49 ibid, it does not "operate to create, declare, assign ........................... any right, title or interest, in any immovable property". It is well settled that such instrument can be received in evidence for a collateral purpose." The cases cited above apply on all fours to the present case. Plaintiff/respondent No. 1 herein in support of his claim to the suit house produced unregistered documents which were rightly accepted by the Courts below, and no exception could be taken of the aceptance of these documents. 11. For the foregoing reasons this revision petition being devoid of any merit is, therefore, dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1991 Peshawar 48 PLJ 1991 Peshawar 48 Present: RAZA AHMAD KHAN J NADIR KHAN--Petitioner versus MUHAMMAD ASLAM KHAN-Respondent Civil Revision No.151 of 1990, dismissed on 30.1.1991 NWFP Pre-emption Act, 1987 (X of 1987)- —-S.13(3) Pre-emption-Suit for--Whether, while making Talb-i-Ishhad, a reference to Talb-i-Muwathibat is essential necessity-Question of~On plain reading of Section 13 of Act, there is hardly anything in law indicative of necessity of a reference to be made to Talb-i-Muwathibat while making Talb-i- Ishhad-Held: A perspective pre-emptor may refer to making of Talb-i- Muwathibat in notice of Talb-i-Ishhad, if he so desires, but neither he is bound nor Section 13(3) of Act requires him to do so—Revision dismissed. [Pp.49,50&51]A,B,C&D Mr. Abdul Ban KJian, Advocate for Petitioner. Haji M.Zahir Shah, Advocate for Respondent. Date of hearing: 30.1.1991. judgment Revisional jurisdiction of this Court is invoked to examine the propriety of the order of the learned District Judge Karak dated 26.2.90, whereby on acceptance of the appeal preferred by the plaintiff-respondents herein, the learned appellate Court set aside the order of dismissal of the suit and remanded the case back to the learned Senior Civil Judge, Karak to decide the suit in accordance with law. 2. Mohammad Aslam Khan plaintiff-respondent herein instituted a suit for possession of land in exercise of his right of pre-emption under the N.W.F.P. Pre­ emption Act No.10 of 1987. The suit was contested by the present-petitioners but without framing any issues or recording any evidence the learned Senior Civil Judge uismi^ed the same on the ground of absence of any proof of making 'Talb- 2. I have heard Mr. Abdul Bari Khan, Advocate learned counsel for the petitioner and Haji M.Zahir Shah, Advocate learned counsel for the respondent at iencih with considerable degree of care. 3. It is contended on behalf of the petitioner that the order 6f the learned trial Court whereby the suit of the plaintiff-respondent herein was dismissed was founded on valid legal grounds inasmuch as from the pleadings of the parties the failure of making 'Talab-i-Mitwathibal' was too obvious to be ignored and such being the case the suit of the respondent could not be entertained. Elaborating his ir^Lj—.ents. the learned counsel for the petitioner submitted that while making 7u.r-.-/-;r;u-u . a reference to 'Talb-i-Mitwalhibat' is essential and failure of the iime Ls fatal to the cause of a pre-emptor. He further contended that since no further evidence can be led to prove the making of 'Talb-i-Muwathibaf by the respondent, the order of remanding the case was a futile exercise and as such cannot he sustained. 4. As against this the learned counsel for the respondent maintained that _ s _"- : :'-.. N.W.F.P. Pre-emption Act, 1987 there is no such condition attached :: 7j. ;-.-.': ; ; u -u". ^hich indicates that while making the same, a reference to 'T£-i-Mu-ii'Jribat' is a necessary requirement of law. In this regard he referred to sub-section^ (1) and (3) of section 13 of the Act and stressed that no such intention, as is claimed by the petitioner, is manifesting therefrom. He, therefore, urged ihat the oniy means to prove 'Talb-i-Mitwathibat' is by way of leading evidence in this behalf before the trial Court and the learned appellate Court proceeded in right direction to remand the case back to the learned trial Court as such the impugned judgment of the learned District Judge Karak cannot be interfered with. 5. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas. 6. In the context. of the submissions made by the learned counsel, the controversy in narrowed down to the question that while making 'Talb-i-Ishliad' whether a reference to Talb-i-MuwathibaC is essential necessity under the law relevant thereto and additionally if so whether the absence thereof shall be fatal to a suit instituted in exercise of the right of pre-emption. 7. A reference to section 13 of the Act, therefore, needs to be made which reads as unden- 13. Demand of pre-emption (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely: - (a) talb-i-muwathibat; (b) talb-i-ishhad; and (c) talb-i-khusumat. Explanations. I. "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. Note.-Any words indicative of intention to exercise the right of pre­ emption are sufficient. II. "Talb-i-Ishhad" means demand by establishing evidence. III. "Talb-i-Kliusumat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-muwathibat. (3) Where a pre-emptor has made talb-i-muwalliibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 34, or knowledge, whichever may be earlier, make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee confirming his intention to the vendee to exercise the right of pre emption. Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make lalb-i-ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of talb-i-/nuwathibat under sub-section (2) and talb-i-ishhad under sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption. 8. A plain reading of the aforequotcd provisions of law, more particularly sub-section (3) thereof would indicate that (a) the requirements of making 'talb-iishhad' arc that the pre-emptor shall make the same as soon after making the 'lalb-i-muwathibat' as possible but not later than two weeks from the date of notice issued by the Registrar registering the sale deed or, as the case may be, the Revenue Officer attesting the mutation of sale under Section 32 of the Act or its knowledge whichever is earlier; and (b) by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee, presumably in token of confirming his intention to exercise the right of preemption and it was thereafter that he can resort to making 'talb-i-khusumat' to enforce the same. It will, therefore, follow that there is hardly anything in law, indicative of the necessity of a reference to be made to 'talb-i-initwatliibat' while making 'lalb-i-ishhad''. The contention of the learned counsel for the petitioner as such has no force. 9. I am accordingly clear in my mind that a perspective pre-emptor may refer to the making of 'talb-i-muwalhibat' in the notice of 'talb-i-ishhad', if he so desires, but neither is he bound, nor sub-section (3) of section 13 of the Act, requires of him to do so and I have no hesitation in holding accordingly. Revision dismissed. MBO (Approved for reporting)

PLJ 1991 Peshawar 51 PLJ 1991 Peshawar 51 Present: muhammad BASiHR jeiiangiri, J. MURTAZA KHAN and others-Petitioners versus MUHAMMAD ZARIF KHAN and others-Respondents Civil Revision No.l36/P of 1989, dismissed on 16.1.1991. m Civil Procedure Code, 1908 (Vofl908)~ —O XIV R 2--Finding on issue of superiority of pre-emptive right—Whether :-:j : Yh.r Lisucs is unnecessary-Question of-By virtue of impugned order, >iat Kjj not been finally disposed of—Held: Petitioners having not suffered any injustice from proceeding with suit piece-meal and objection being merely of a technicality, impugned order needs not to be interfered with. [P.52JA iii Pre-emption-- —Pre-emption-Suit for—Law on subject of Talabs is by now finally settled that Talabs arc conditions precedent for enforcement of pre-emption—Held: Finding of two courts below on relief of pre-emption is unexceptionable- Revision dismir,<.ed. [Pp.52&53]B&C PLD 1990 SC 865 = PLJ 1990 SC 395 rel. Mian M. Younis Shah, Advocate for Petitioners. Mr. Shah Wazir Muhammad, Advocate for Respondent No.l. Date of hearing: 16.1.1991. judgment By a deed dated 4-2-1986, Muhammad Ayaz Khan and Haroon Khan, defendants-vendors, sold 10 Kanals of the disputed land to Muhammad Zarif Khan defendant-vendee No.l. The grievance of the petitioners is that they had already sold their share of land measuring 41 Kanals 12 marlas and 3 Sarsahis and were thus left with no more land to transfer it to the defendant-vendee No.l. They have, apart from seeking a declaration of their title to and confirmation of their possession over 19 Kanals 12 Marias of the disputed land, challenged the propriety and legality of the sale deed dated 4-2-1986 on the grounds of its being fraudulent and deceitful to the extent of 10 Kanals of land in dispute. The alternative relief claimed is of possession by pre-emtion of 10 Kanals of land on payment of Rs. 1000/- at which the pre-emptors-pctitioners valued its price. 2. On 17-9-1988 Muhammad Zarif Khan, vendee-respondent moved an application for dismissal of the' suit. The gravamen of the vendee-respondent was that the pre-emptors having made no 'Talabs' as envisaged by law stood non­ suited on this score alone. The learned trial Judge placed reliance on Government ofN.W.F.P. v. Malik SaidKamal and others (PLD 1986 SC 360 = PLJ 1986 SC 576) and Sardar AH v. Muhammad All and others (PLD 1988 SC 287 = PLJ 1988 SC 224) and dismissed the pre-emptors-petitioners' alternative relief for possession by pre-emption and ordered the remaining suit to proceed. The appeal against this order was also dimissed by a learned Addidtional District Judge, Charsadda, obliging the' pre-emptors-petitroncrs to come to this Court in the civil revision petition. 3. Mian Younas Shah, learned counsel for the petitioners contended that notwithstanding the dictum of the Supreme Court that a pre-emptor having failed to make statutory 'Talabs' stood non-suited, the learned trial Judge ought to have decided the case after giving his findings on all the issues joined by the parties including that of declaratory relief claimed by the petitioners. 4. There is no cavil with the broad proposition convassed at the bar by Mian Muhammad Younas Shah. Order XIV rule 2, C.P.C. is quite clear, namely, that where issues both of law and fact arise and the court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those isssues first and postpone the settlement of issues of fact until after the issues of law have been framed. Order XIV C.P.C. gives no power to Court to frame a preliminary issue of fact, but where, however, the Judge has framed all the issues which properly arise in a case, he may select one or more of those issues to be tried first and independently, where the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary. 5. There is thus every force in the contention of the learned counsel for the petitioners, because in this case the finding on the issues of superiority of pre- • emptive rights does not at all render the trial of the other issues unnecessary. It would, therefore, have been proper and legal for the trial Judge to have not disposed of the issue of pre-emption at the instance of the respondent. Frankly A. speaking by the virtue of impugned order the suit had not been finally disposed of. Nevertheless, since the petitioners are not shown to have suffered any injustice from proceeding with suit piece meal and the objection is mere of a technicality rather than of any substance I am not inclined to interfere with the impugned order. 6. The law on the subject of 'Talabs' is by now finally settled. In Suo Moto Review Petition titled Malik SaidKamal v. Government of N.W.F.P. (PLD 1990 SC 865 = PLJ 1990 SC 395) which had been re-affirmed in C.P.No. 6-R and 7-R of 1990 titled Sayed Glialib Intisar Gillani v. Zahoor-ud-din and others it has been held "that 'Talabs' are conditions precedent for enforcement of pre-emption. B Admittedly no 'Talabs' had been made in the present case. No decree had been passed before 31-7-1986, therefore, no decree eould be passed on the basis of the claim made by the respondent." The finding of the two Courts below on the relief of pre-emption, therefore, is unexceptionable. 7. Without approving the procedural aspect of the case, this petition in revision is, however, dismissed with no order as to cost. The file should be sent back to the (rial Judge expeditiously. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Peshawar 53 (DB) PLJ 1991 Peshawar 53 (DB) Present: fazal elaiii and muiiammad bashir jahangiri, JJ. CHAIRMAN WAPDA, Through Project Director SCARP and three others-­Appellants versus UMAR BAKHSH-Respondent R.F.A. No.57 of 1990, accepted on 29.1.1991. (i) Civil Procedure Code, 1908 (V of 1908)- —O.XVII R.3-Damages--Suit for-Dccree passed in—Challenge to—By a decision "forthwith" it is meant that court must decide case on same day and cannot adjourn hearing to some other date—It means a decision on merits and it does not at all mean that it should be a summary decision—Held: In exercising powers under Rule 3 of Order XVII C.P.G., trial Judge was required to have decided case on merits-Appeal accepted and case remanded. [Pp.55&56]C,D,E&F PLD 1969 S.C. 270 and PLD 1970 Quetta 79 rel. (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIII R.4 read with Section 115-Damages-Suit for-Decree passed in- Challengc to—Trial Judge erred in allowing plaintiff-respondent to sue as pauper without complying with procedural formalities laid down in Order XXXIII of C.P.C.-Trial Court should have examined applicant-plaintiff and his witnesses—Held: Trial Judge having not complied with provisions of Order XXXIII C.P.C. had committed illegality or material irregularity by allowing applicant-plaintiff to sue in fonna pauperis. [P.55]A (iii) Exparte decree- — Exparte decree—Challenge to—Held: There is every force in contention of learned Advocate General that trial court had erred in passing exparte decree summarily without decision on merits and without discussing material issues. [P.55]B PLD 1969 S.C. 270 rel. Advocate General, N.W.F.P. for Appellants. Mr.Allauddin KJian, Advocate for Respondent. Date of hearing: 29.1.1991. JUDGMENT Muhammad Bashir Jehangiri, J.--This Regular First Appeal is directed against the order dated 15.4.1990, of a learned Civil Judge First Class, Peshawar, whereby, he dismissed the application of the defendants-appellants for setting aside cxpaiic decree for recovery of Rs.2,00,000 as damages against them. 2. Facts giving rise to this appeal arc that WAPDA through Project Director SCARP and Executive Engineer, Peshawar SCARP, undertook the remodelling of the drain, namely, Branch No.2 of Muhammad Zia Drain as part of its reclamation Project through Bakhtawar Shah defendant No.5. On 20.9.1981 Umar Bakhsh plaintiff-respondent filed a suit against Chairman WAPDA and 4 others, infonna paupcris, for recovery of Rs.2,00,000 as damages. The case of the plaintiff-respondent as set up in the plaint and later tried to be established in the witness-box was that on account of excavation of a drain by the defendantsappellants his house had collapsed and thus claimed Rs.2,00,000 as damages therefor. According to averments in the plaint,-plainiiil-respondent was pauper and hence the suit. 3. Defendants Nos.l to 3 contested the suit who, in their joint written statement, pleaded that the plaintiff had neither cause of action nor locus standi; that the suit was not maintainable in the form it 'had been filed; that the plaintiff was not pauper; that he was estopped by his conduct and; that the suit was "malafide, false, frivolous" and as such the defendants were entitled to compensatory costs. On merits, liability to pay any costs due to the alleged collapse of the plaintiffs was denied. The learned trial Court, in view of the respective pleadings of the parties, concluded the following issues:- 1. Whether the plaintiff has got a cause of action? 2. Whether the plaintiff is entitled to recover Rs.2,00,000 as damages from the defendants? 3. Whether the suit is deficiently stamped, if so, its effect? 4. Whether the suit is bad in its present form? 5. Whether the defendants are entitled to compensatory costs? 6. Whether the plaintiff is estopped by his conduct? 7. Relief. 4. The application for permission to sue in forma paitperis was initially contested by the answering defendants as well as Collector (defendant No.6)" Nonetheless, the order-sheet dated 17.12.1985 records that defendants had declined to adduce evidence in rebuttal and that in consequence, the plaintiffrespondent was allowed to sue in fonna pauperis. The case was fixed for evidence. After an adjournment at the instance of the counsel for defendants, the plaintiffrespondent's evidence was recorded and the case .was posted to 25.11.1986 for the evidence of defendants-petitioners. Since they had failed to adduce evidence, therefore, the case was first adjourned to 25.11.1986 then to 15.2.1987, thereafter to 18.4.1987 and finally to 8.6.1987, when not only the defendants were absent but their counsel was also not in attendance. Resultantly, the learned trial Judge decreed the suit of the plaintiff-respondent exparte. 5. On 17.6.1987, the defendants-petitioners moved an application for setting aside cxpanc d'.-.ree. It was contested by the plaintiff-respondent. After recording statement of one witness each on behalf of the parties, the learned trial Judge, by impugned order dated 15.4.1990, dismissed the application. Feeling dissatisfied, the defendants-appellants have come up in this Regular First Appeal. 6. The learned Advocate General, appearing on behalf of the appellants, submitted that the learned trial Court had fallen into error in passing, under Order XVII Rule 3 C.P.C., the impugned judgment and the decree expartc. He also urged that the decision reached under Rule 3 ibid warrants decision on merits and not in the summary manner it has been decreed. 7. The learned counsel for the plaintiff-respondent had seriously defended the impugned judgment and the decree and maintained that in the instant .case the lime was granted to the appellants not once but twice to adduce evidence but they defaulted in doing so, the learned trial Court had rightly decreed the suit exparte. 8. We have perused the record of the case carefully with the assistance of the learned Advocate General and the learned counsel for the respondent. We regret to observe at the out set that learned trial Judge had erred to allow the plaintiff-respondent to sue as pauper without complying with the procedural formalities laid down in Order XXXIII C.P.C. In this context, provisions of Rule 4 thereof were not adhered to and even the plaintiff-applicant was not examined. Even if this omission is ignored and notwithstanding the failure of the appellants to seriously contest the application, the trial Court was required to have fixed a day with notice to the appellants and the Government Pleader for recording within the contemplation of Rules 4 & 6 ibid such evidence as the applicant wished to adduce in proof of the respondent's pauperism. Under Rule 7 ibid the Court is bound to inquire into the plaintiffs pauperism. In the instant case, the trial Court had conveniently ignored this mandatory provision of law by merely observing on the order-sheet dated 25.11.198(5 that..the appellants were not inclined to adduce "evidence in rebuttal"^^ If" ifJs?/' and in consequence, the applicant-plaintiff was allowed to sue as a pauper. Legally speaking, the applicantplaintiff and his witnesses should have-been examined, heard arguments which the parties desired to offer "on the question whether on the face of the application and of the evidence (if any) taken by the Court the applicant was or was not subjected to any of the prohibitions specified in Rule 5 and ought to have allowed or refused to allow the applicant to sue as a pauper". The learned trial Judge having not complied with these provisions of Order XXXIII C.P.C. had committed illegality or material irregularity by allowing the applicant-plaintiff to sue in fonna pauperis. In exercise of our powers under Section 115 C.P.C., the aforesaid order of the learned trial Court is set aside. 9. There is every force in the contention of the learned Advocate General who represented the appellants that the learned trial Court had erred in passing the exparte decree summarily without decision on merits and without discussing the material issues. In support of this proposition we may refer to Muhammad Halccm v. H.E. Muhammad Naeem (PLD 1969 S.C. 270). 10. In the instant case, the onus to prove that the .house in dispute in fact| belonged to the plaintiff-respondent; that how much was its covered area; that it had in fact collapsed due to any act of omission or commission which is altribulablc to the appellants and that the extent and quantum of damages had been determined by an expert and. independent witness. The suit had been decreed without having recourse to the above mentioned points and without discussing any evidence. In such a situation, it is incumbent upon the trial Court to decide the suit on merits rather than passing the decree in a summary manner without any discussion on the issues involved in the controversy. This view was expressed by their Lordships of the Supreme Court in Muhammad Haleem's case cited above and laid down that- "In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non-prosecution. The entire evidence had been led and the Court should have come to a decision on merits in the matter". This proposition was later on followed in few other reported decisions including that of Dale! Klian v. Province of West Pakistan (PLD" 1970 Quetta 79). The ratio in these ca^es is that the Court under Rule 3 of Order XVII C.P.C. had "to proceed to decide the suit forthwith". By a decision "forthwith" it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide'case on the same day. Nonetheless, a decision "forthwith" is. however, to be a decision on merits. It must be on j-. consideration of such material on the record as it is necessary. It does not at all jmean that it should be a summary decision. There is, however, one caution which need to be emphasized. The rule can be pressed into service when it is possible to decide the case on merits and it, therefore, cannot apply when the suit is at a preliminary stage. In another case it was pointed out that if a party has to discharge the onus of proof of an issue which is only a preliminary issue and fails to do so, the suit cannot be decided under Order XVII, Rule 3 C.P.C., unless the decision also affects the merits of the case. 11. In view of what has been discussed above, we are of the opinion that there was every jurisdiction for the Court to have refused further adjournment to the defendants-petitioners to adduce evidence. Nonetheless there was absolutely no warrant hr law to have decreed the suit summarily. In exercising the powers under Rule 3 of Order XVII C.P.C., the learned trial Judge was required to have decided the case on merits. 12. In this view of the matter, the order of the learned trial Judge allowing the plaintiff-respondent to sue as a pauper; the impugned order dismissing the application for setting aside the cxpaile decree and; the exparte decree for recovery of Rs.2,00,000 as damages against the appellants are set aside op payment of Rs.500/- as costs. Resultantly, the case is remanded to the learned trial Juge to proceed with it after allowing another chance to the parties to adduce evidence in the light of the directions made in paras-8 and 10 ante. Since it is an old matter, the office is directed to expeditiously send the record of the case to the learned trial Judge who shall decide the dispute as early as possible. (MBC) (Approved for reporting)

PLJ 1991 Peshawar 57 PLJ 1991 Peshawar 57 Present: WALI MUHAMMAD KHAN, J. SHAFIQ AHMAD--Pctitioner versus MALIK WAZIR eta-Respondents Civil Revision No.102 of 1984, accepted on 27.2.1991. Martial Law Regulation No.64-- —-Paras 3, 4, 25 & 27 read with Land Reforms Regulation, 1972, Para 24~Civil court-Jurisdiction of-No issue framed about jurisdiction-Effect of—Lower courts had no jurisdiction to grant relief of declaration, but prayer of possession through pre-emption fell within jurisdiction of civil court—Held: Question whether Para 25 of MLR 64 invalidates transaction or not, is one falling within exclusive functions of (Land) Commission or Chief Land Commissioner who are charged with duty of implementing provisions of Regulation-Petition accepted. [Pp. 58&59JA&B 1968 S.C.M.R. 667 rel. Mr.Saeed Baig, Advocate for Petitioner. S.Refaqat Ali Shall, Advocate for Respondents. Date of hearing: 6.2.1991. judgment Vide registered gift deed dated 6.11.1972 Malik Gulistan, defendant No.2 (respondent No.13 herein) gifted land measuring 13 marlas & 2 marlas respectively out of khasra Nos.386 and 395 situated in the estate of Fatu Abdur Rahima, in favour of Shafiq Ahmad, defendant No.l (petitioner herein). This deed was given affect to in the revenue record vide mutation No.1848 attested on 9.7.1973. Haji Malik Ghulam Rabbani plaintiff (since dead, represented by Malik Wazir and others, respondents No.l to 12 herein) filed a suit for declaration to the effect that he is co-owner in the said khasra numbers and that the aforementioned gift deed dated 6,11.1972, being in violation of Martial Law Regulation No.64, is void and does not confer any title on defendant No.l. In the alternative it was asserted that if the suit for declaration is held to be not maintainable, then the alleged transaction of gift is infact a sale and that the plaintiff, being possessed with superior right of pre-emption, is entitled to decree for possession through pre-emption of the suit land. The defendant No.l contested the suit and in his written statement raised preliminary objections including the point of jurisdiction of the civil court to entertain the prayer for declaration in view of the prohibition contained in Martial Law Regulation. On factual side the defendant No.l denied the allegation of the plaintiff in toto and contended that the transaction is that of gift and not sale. Ten issues were framed in the case but unfortunately the material issue regarding the jurisdiction of the civil court was advertantly omitted by the learned trial Judge. Evidence of the parties was recorded and the learned trial Judge, vide his judgment and decree dated 26.5.1982 held the transaction void, being in violation of provisions of Martial Law Regulation No.64 read with Martial Law Regulation No.115 and, at the same lime, declared the transaction as one of sale and, in consequence, granted decree for possession through pre­ emption of the suit land in favour of the plaintiff against the defendants in lieu of Rs.500/-. Dis-satisfied with the same Shafique Ahmad defendant No.l preferred appeal before the learned District Judge, Peshawar who vide his judgment and decree dated 20.2.1984 concurred with the learned trial Judge to the extent of his finding that the gift was void under Martial Law Regulation No.115 but disagreed with him regarding his conclusion that the transaction was a sale and hence.preemptable and resultantly set aside the decree for possession through pre-emption passed by the learned trial Judge and declared the gift as void ab initio. Hence the instant revision petition calling in question the judgment and decree of the learned Appellate Court. 2. 1 have heard Mr.Saced Baig Advocate for the petitioner, Syed Rafaqat AH Shah, Advocate for the respondents and have perused the record of the case with their assistance. 3. The learned counsel for the petitioner vehemently argued that the gift in suit was made when Martial Law Regulation No.115 had already been enforced on 11.3.1972, repealing the earlier Martial Law Regulation No.64 and, therefore, the validity of the gift deed had to be determined on the touch-stone of the provisions of Martial Law Regulation No.115 and not Martial Law Regulation No.64. According to him para 24 of Martial Law Regulation No.115 placed certain restrictions on alienation of holdings and as per amendment in the said para vide Act XLVIII of 1976, an owner holding area less than a subsistence holding was permitted to alienate any party of his holding by way of gift to any of his presumptive heirs or exchange with, or mortgage or otherwise alienate to, other owners or landless tenants of the same village, deh or mauza. Thus he emphasized that the petitioner, being an owner in the village, the alienation in his favour through gift even if he was not presumptive heir, was not hit by the provisions of para 24 as amended. He also, relying on the dictum of the Supreme Court in case 'Nasir Ahmad Klian v. Mst.Ismat Jehan Begum' reported as (1968 S.C.M.R. 667), urged that only Land Commission or officers appointed by the Land Commission had the jurisdiction to annul the transaction being violative of Martial Law Regulation and that Civil Court's jurisdiction in the matter is ousted. The learned counsel for the respondents, on the other hand, submitted that the defendant/petitioner has failed to lead any evidence to show that he was either the presumptive owner of the doner or was an owner or landless tenant in the same village, tick or mauza. Additionally he submitted that the original text of Martial Law Regulation No.115 debarred the alienation of part of holding by an owner owning area less than a subsistence holding to any body and that the instant transaction, having taken place prior to the amending Act ibid, was void ab initio. According to him amending Act XLVIII of 1976 had no retrospective effect. As regard the jurisdiction of the civil court, he explained that since the matter was linked with the prayer for pre-emption in the instant suit as well as the connected suits for pre-emption, lower Courts rightly assumed the jurisdiction. 4. I have anxiously considered the learned arguments of the learned counsel for the parties. As stated earlier, not specific issue regarding the jurisdiction of the eivil court was framed, therefore, both the learned lower courts did not dilate on this aspect of the case. 1 have minutely gone through the judgment of the August Supreme Court cited above in which it is declared in unequivocal terms that in the light of paragraphs 3, 4 and 27 read with para 25 of the then Regulation No.64, the question whether para 25 thereof invalidates the transaction or not is one falling within the exclusive functions of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation. The aforesaid dictum of the August Supreme Court is fully applicable to the instant case. So far as the prayer for declaration is concerned I have no option but to hold that the lower forums had no jurisdiction to grant the declaration prayed for by the plaintiffs/respondents. In the normal course I would have returned the plaint for presentation to the proper forum but since it also includes the prayer for possession through pre-emption which fell within the jurisdiction of the civil court and about which a decision has already been given by the lower forums, the plaint cannot possibly be returned to the plaintiffs 'respondents. Consequently a direction can only be made to them to approach the proper forum for the redress of their grievances. 5. Inview of what has been stated above I accept this revision petition, setaside the judgments and decrees of the learned lower forums so far as the grant of declaration prayed for is concerned and direct Malik Wazir and others, respondents No.l to 12 herein (the heirs of Haji Malik Ghulam Rabbani deceased plaintiff) to approach the Chief Land Commissioner with a fresh plaint/petition for seeking declaration that the registered gift deed dated 6.11.1972 on behalf of Malik Gulistan in favour of Shafiq Ahmad, defendant No.l (petitioner herein) in respect of the suit land, is void under para 24 of Martial Law Regulation No.115, as early as possible. Since the matter is very old and the connected revision petitions No. 100 & 101 of 1984 against the pre-emption decrees between the same parties are being kept pending till the result of the adjudication by the Chief Land Commisssioner, it is expected that the learned Chief Land Commissioner will decide the matter on priority basis. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Peshawar 59 PLJ 1991 Peshawar 59 [Dera Ismail Khan Bench] Present: muhammad khiyar, J. HAJI GULSHAN-Petitioner versus ABDUL QAYOOM etc.-Respondents Civil Revision No. 135 of 1988, dismissed on 23.2.1991 (i) Issue-- —Issue not raised or framed-Decision on-Whether it was necessary to give finding on—Question of—Section 4 of Muslim Family Laws Ordinance, 1961 still holds field—Nowhere in plaint, vires of Section 4 of Ordinance was challenged—Held: Since no issue was framed nor parties challenged vires of Section 4 of Ordinance, Courts below imported an extraneous legal issue for discussion compelling High Court also to discuss same. rpp 62&63]A (ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961) —-S.4-Inheritance~Claim on behalf of predeceased daughter of propositus- Whether time barred—Question of—Petitioner received share to which he was entitled and other heirs of propositus, i.e. daughters and widow, were not excluded from inheritance—Even if they were excluded, they could not claim their share due to bar of limitation-Petitioner is claiming shari share of his wife who, in her life time, raised no objection to Mutation No.5034 attested on 17.3.1963-Held: Suit is hopelessly time barred under Article 120 of Limitation Act-Petition dismissed. [P.64JB&C PLD 1961 Peshawar 9, PLD 1970 Peshawar 110 and PLD 1991 SC 93 rel. S.Saeed Hassan Sherazi, Advocate for Petitioner. Mr. Zaliid Yousaf Qureshi, Advocate for Respondents. Date of hearing: 23.2.1991. judgment This civil revision is directed against the judgment dated 22.5.1988 of the learned District Judge, D.I.Khan, vide which the judgment dated 13.4.1987 of the learned Civil Judge D.I.Khan was maintained. 2. The facts in brief are that Muhammad Ayaz, predecessor-in-interest of the parties was the owner of the suit land. On his death in the year 1963, his inheritance mutation No.5034 was attested on 17.3.1963 in the names of his heirs in the following manner:- 1. Ato.Zargulla, widow 2. Msl. Sailan Bibi and Mtf.Saeed- Nama alias Saeeda Bibi 3. Abdul Qayyum, grandson 1/8 share,daughters 1/2 share, 1/2 share. Mst.Saeed Nama alias Saeeda Bibi died in the year 1981 and her inheritance mutation No. 6061 was attested on 11-3-1981 in the name of Haji Gulshan, plaintiff-petitioner herein her husband, and Karim Khan, Muhammad Aslam and Msf.Nek Bibi, defendants-respondents 3 to 5 herein, son and daughters respectively.The plaintiff-petitioner instituted a suit for declaration in the Court of Senior Civil Judge, D.I.Khan, on 11-6-1981 challenging the aforesaid two inheritance mutations. His contention was that Abdul Qayum defendantrespondent No. 1 herein, could inherit 5/24 share in the property of Muhammad Ayaz and the daughters were entitled to 8/24 shares each. Having inherited the lesser share to which Mst. Saeed Nama was entitled, her heirs, i.e. the plaintiff/petitioner (husband) and defendants-respondents 3 to 5 (son and daughters) on her death were deprived of their legal shares vide mutation No. 6061 attested on 11-3-1987. He, therefore, prayed for correction of aforesaid mutations and also for correction of entries in th 3. The suit was contested by the defendant-respondent No. 1 herein on various legal and factual pleas. From the pleading of the parties, the following issues were framed:- 1. Whether the plaintiff has got a cause of action? 2. Whether the suit is not within time? 3. Whether the suit is resjudicata? 4. Whether the plaintiff is estopped to sue? 5. Whether the suit is incompetent in its present form? 6. Whether .the plaintiff is entitled to the declaration prayed for? 7. Relief? 4. The parties to the suit produced their evidence which they wished and then the learned Civil Judge D.I.Khan while discussing issues No. 1 and 2 together held that Abdul Qayum, defendant-respondent No. 1 inherited 1/2 share in the property of Muhammad Ayaz deceased in conformity with the Muslim Family Laws Ordinance, 1961, and becuase the plaintiff-petitioner raised no objection to mutation No. 5034 for a long time, the suit was time barred. These issues were decided against the plaintiff-petitioner. The suit was found not barred under section 11 CPC. Issue No. 3 was decided accordingly. Issues No.4 and 5 were disposed off as not pressed. While giving findings on issue No. 6, it was held that the plaintiff-petitioner was not entitled to the decree prayed for. The suit was consequently dismissed on 11-4-1987. 5. The judgment and decree of the lower Court was assailed in appeal before the learned Additional District Judge D.I.Khan. It was argued before the learned Additional District Judge that, according to Muhammadan Law after allottingl/8th share to the widow, 2/3rd share should have been given to the daughters of the deceased and the remaining share to the defendant/respondent No. 1. The validity of section 4 of the Muslim Family Laws Ordinance 1961 was challenged on the ratio of decision of Shariat Bench reported in PLD 1980 Peshawar 47. The learned Additional District Judge was of the view that the aforesaid decision of the Shariat Bench was not retrospective and that section 4 of the Muslim Family Laws Ordinance 1961 was a valid legislation, under which defendant-respondent No.l inherited (he property. The plaintiff-petitioner's suit instituted on 11-6-1981 was declared as time barred on the view that he had the knowledge of the so-called rights of his wife and accepted all the liabilities and limitations which his wife had left for him due to running of period of limitation. With these observations, the findintgs of the trial Court on all the issues were maintained and appeal filed by the plaintiff-petitioner was dismissed vide judgment dated 22-5-1988. 6. Dis-satisfied from the judgments and decrees of the lower Courts, the plaintiff-petitioner has filed this revision petition under section-115 of the Civil Procedure Code. 7. S. Saced Hassan Shah Shcrazi, Advocate, learned counsel for the plaintiff-petitioner and Zahid Yousuf Advocate, learned counsel for the defendant-respondent No.l addressed arguments on the application of section 4 of the Muslims Family Laws Ordinance 1961 (hereinafter called as the Ordinance). According to them, discussion on section 4 of the Ordinance is required to be made because it having been declared against the injunctions of Islam by the Shariat Bench in the case of Mst. Farishta vs. Federation of Pakistan (PLD 1980 Peshawar 47), Abdul Qayum, defendant-respondent No.l, son of a predeceased son of Muhammad Aya/., could not inherit the property at all. On being referred to the decision in Federation of Pakistan vs. Mst. Farishta (PLD 1981 S.C.120), learned counsel for the petitioner conceded that section. 4 of the Ordinance is a legislation still operative. The Shariat Bench of the Supreme Court declared section 4 of the Ordinance as part of law and scrutiny of section 4 as outside the jurisdiction of Shariat Courts. While dealing with the subject and scope of Article 203-B of the Constitution the august Supreme Court observed:- "Article 227 of the Constitution of Pakistan (1973) is to be enforced through the Council of Islamic Ideology, whereas Article 203-B is to be enforced through Courts. In Article 227 the scope and sphere of Council of Islamic Ideology is very wide whereas in Article 203-B the jurisdiction of the Courts is limited both in point of time and also as regards certain subjects mentioned therein. To come nearer to the point in hand, Article 203-B excludes from its purview examination of "Muslim Personal Law", whereas ihere is no such exclusion from the purview of the Council of Islamic Ideology. Allowing both these Articles to operate in their respective spheres, the conclusion is inevitable that all such laws which apply to Muslims in their capacity as Muslims, whether these are statutory laws, or are applied under sanction of a statute are left to be dealt with by the Council of Islamic Ideology and are not to be gone into by Courts and this is what the phrase "Muslim Personal Law" for the purpose of its exclusion in the context means. In other words, the aforesaid phrase does not mean the pure religious laws of "Muslim" or under the denomination "Muslim" to Pakistani Muslims which may sometimes be different from the corresponding portion of pure "Muslim Laws" as administered in certain Muslim States unaffected by the non- Islamic Legislation or juristic influence." The accepted position of law, therefore, is that section 4 of the Ordinance still holds the field. But the question is as to why this issue was raised in the lower Courts when the parties were not at variance on this issue. No where in the plaint the vires of section 4 of the Ordinance was challenged. What was alleged in the plaint was that Abdul Oayum was given excessive share in the property of Muhammad Ayaz than the one to which he was entitled under the law. I am of the view that the Courts below were mis-directed to give findings on an extraneous issue. The Courts are not to decide a matter on which neither the parties are at variance nor any issue is framed. A.I.R.1943 Allahabad 184 may be referred. The object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. Under Order 20 Rule 5 of the C-P.C. the Courts are bound to give decisions on each issue framed with the reasons therefor unless the finding upon any one or more of the issues is sufficient for the decision of the suit. Since no issue was framed nor the parties had challenged the vires of section 4 of the Ordinance, the Courts below imported an extraneous legal issue for discussion compelling this Court also to discuss the same as above. The discussion in a way may help in removing the impression that section 4 of the Muslim Family Laws Ordinance 1961 is not a good law. It is a valid legislation unless declared un-Islamic by the Council of Islamic Ideology as has been observed by the august Supreme Court in the case cited above. 8. Now coming to the main issue pertaining to the share of Muslim Law heirs under section 4 of the Ordinance, we find that the issue had now been resolved by the august Supreme Court in the case of Mst. Zainab vs. Kamal KJian alias Kamala reported in PLD 1990 S.C. 1051 = PLJ 1990 S.C. 445. 9. The issue as to who arc the heirs entitled to inherit under section 4 of the Ordinance came under discussion earlier before the Karachi High Court in the case titled Yusuf Abbas and another v. Ismat Mustafa and another, reported in PLD 1968 Karachi 480. The words "in the event of used in Section 4 of the Ordinance were considered as referring only to the death of son or daughter of a propositus occurring before the succession opens. It was held that these words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The useful findings rendered are in the following words:- "The \ords in the event of refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before, as well as after the Ordinance came into force. The only addition is that the death should occur before the succession has opened, and even if the succession opens after the promulgation of the Ordinance, Section 4 would apply with full force, and the children of the pre-deceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration which has to be borne in mind in construing Section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the life time of their grandfather, or grandmother as the cuse may be. The construction of such statutes should be just sensible and liberal, so as to give effect to the purpose for which they are passed". 9. The decision in Yusuf Abbas's case was followed by the Lahore High Court in Sakhi Muhammad v. Ahmad Klwn (1980 CLC 1006) and subsequently by the Supreme Court in Msl.Iqbal Mai v. Falak Sher (PLD 1986 S.C. 228). However, the question as to whether it was not the intention of law maker in Section 4 of the Ordinance to provide an opportunity of obtaining only Islamic Law shares to the children of predeceased son or daughter of propositus and that intention was not to increase their Islamic law shares was left to be examined in more detail in a fit and proper case. This question then came up for consideration before the august Supreme Court in the case of Mst.Zainab v. Kamal KJian alias Kamala (PLD 1990 S.C. 1151 = PLJ 1990 SC 445). The rule laid down reads as under:- "On the opening of succession each group of children of the deceased sons/daughters would inherit the share of their father/mother and each individual would not get the share in his/her individual capacity. Section 4 has been added to cater the needs of grandchildren and to. remove their sufferings but it cannot be interpreted so as to decrease the share of the other descendants. According to Section 4, share from the deceased grandfnther's property has been bestowed upon the children of his predeceased son but this does not mean that the other heirs of the deceased would be excluded from their share of inheritance. Under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where parties are Muslims. In spite of the non-obstante clause section 4 is to be interpreted in the light of section 2 of the Act, 1962. Both thus can stand together". 10. The plaintiff-petitioner herein received the share to which he was entitled to and the other heirs of the propositus i.e. the daughters and widow were not excluded from inheritence. Even if they had been excluded from inheritance they could not claim their share due to bar of limitation. It has been held in a number of authorities before that the claims under the Muslim Personal Law (Shariat) Application Act 1935 are like all other claims subject to the provisions of the Limitation Act. Out of these, we may refer to a case reported in PLD 1961 Peshawar 9 which was relied upon in the case of Mukammil Shah v. Mst^Apoga (PLD 1970 Peshawar 110) and also in the recently pronounced judgment of the Supreme Court in the case of Habibullah Jan and 3 others v. Muhammad Hassan etc. (PLD 1991 S.C. 93). It was held in the aforesaid authority as under: - "However, the claims under the Muslim Personal Law (Shariat) Application Act, 1935, are like all other claims, subject to the provisions of the Limitation Act. If a claim to the estate of the deceased is preferred under the Muslim Personal Law (Shariat) Application Act, 1935, and the claim is under the bar of limitation, the bar of limitation will prevent the claim from being entertained". 11. Applying the test to the present case, we find that the plaintiff-petitioner is claiming the shari share of his wife AM.Saced Bibi who in her life time raised no objection to the mutation No.5034 attested on 17.3.1963. Thus the suit for declaration claiming shari share in the property of Muhammad Ayaz and for correction of mutation No.5034 is hopelessly time barred under Article 120 of the Limitation Act. 12. Rcsultantly, this civil revision being devoid of any merit is dismissed. Parties arc left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Peshawar 65 PLJ 1991 Peshawar 65 [Dera Ismail Khan Bench] Present: raza AHMAD KHAN, J MIR ALAM KHAN-Petitioner versus MOSIM KHAN and others-Respondents Civil Revision No. 29 of 1989, accepted on 29.5.1991. (D Limitation Act, 1908 (IX of 1908)-- —-S.4 read with High Court Rules and Orders Chapter I, Part B, Rule 7(c), West Pakistan Civil Courts Ordinance, 1962, Section 23 and Civil Procedure Code, 1908, Order IV, Rule 1-Pre-emption suit-Presentation of plaint-Civil Judge was on leave-No arrangement made for receiving plaints etc.-Plaint presented on expiry of leave but was beyond limitation by one day-Whether suit was time-barred-Question of-Concept of Court is not complete without its presiding officer-Temporary vacancy of a Judge cannot be equated with death or suspension of Judge-A duty is cast upon District Judge to make alternate arrangements for receipt of plaints etc during leave of civil Judge- Lower Courts have penalised petitioner for an act of Court—It is settled law that no one can be penalised for act of Court—Held: Limitation would cease to run during closure of court and plaintiff would be in his rights to file his plaint on re-opening day of court—Held further: Suit shall not be treated as barred by time-Petition accepted. [Pp.72,73,74&75]E,F,G,H,J,K&L AIR 1934 Lahore 622, 1989 SCMR 1204, and 1989 CLC 1984 rel. (ii) Pre-emption-- —Pre-emption-Suit for-Whether a plaintiff having failed in trial court, but succeeding in higher forum in obtaining a decree before 31.7.1986, can be non­ suited—Question of—Pre-emption suits without making requisite "Talabs" were liable to be dismissed save one wherein a decree was granted before 31.7.1986- -Held: Once a decree having been granted by trial court or appellate court before dead line (31.7.1986), all subsequent proceedings relating thereto, shall be governed by provisions of NWFP Pre-emption Act, 1950, and sub-section (3) of section 35 of Pre-emption Act, 1987 would not be attracted. [Pp.69&70]A,B,C&D PLD 1990 SC 897 = PLJ 1990 SC 421, PLD 1986 SC 360=PLJ 1986 SC 576, PLD 1988 SC 287=PLJ 1988 SC 224, PLD 1990 SC 865=PLJ 1990 SC 395, and PLD 1989 Peshawar 174=PLJ 1989 Peshawar 53 discussed. S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Saadullah KJian Miankhel, Advocate for Respondents. . Date of hearing: 22.5.1991. judgment Raza Ahmad Khan, J.--Mir Alam Khan, the plaintiff-petitioner herein, instituted a suit on 8.5.1979 for possession of suit land measuring 40 kanals 15 1/2 m arias situate in Moaza Ihsanpur, Tehsil Lakki, District Bannu, in exercise of his right of pre-emption, against respondents 1 to 3, in the court of Civil Judge, Lakki. 2. The suit was contested and finding the parties at variance, the learned trial Court formulated the following issues: - 1. Whether the suit is within time? 2. Whether the plaintiff has a cause of action? 3. Whether the suit is bad for non-joinder of parties? 4. Whether the plaintiff has got superior right of pre-emption? 5. Whether the sum of Rs.6800/- has been fixed and paid in good faith as sale consideration? 6. Market value? 7. Whether the suit is competent in its present form? 8. Whether the plaintiff has superior right of pre-emption against defendant Badshah Khan? 9. Whether the transfer of the suit land in favour of defendant Badshah Khan is within the period of limitation? If so its effect? 10. Relief. 3. After recording such evidence as was produced by the parties in support of their respective pleadings, the learned Civil Judge, Lakki, while deciding issue No.l in favour of the petitioner holding his superior right of pre-emption qua the suit land, dismissed the suit on the point of limitation by giving a negative finding on issue No.2, vide his judgment dated 23.11.1981. 4. The petitioner preferred an appeal against the aforesaid judgment and the learned Additional District Judge Bannu at Lakki, while allowing the appeal, decreed the suit vide his judgment dated 10.11.1982. 5. The respondents called into question the appellate judgment by way of revision petition (No.66-D of 1982) which came up for hearing before my learned brother Nazir Ahmad Bhatti, J. and vide his order dated 13.11.1984, while he accepted the revision petition, set aside the findings of both the lower Courts on issues 1, 5 and 6 and remanded the case to the learned Civil Judge, Lakki, for deciding all these three issues afresh after recording additional evidence and appointing a local Commissioner. It will be pertinent to note, at this very stage, that issue No.l pertained to the question of limitation whereas issues 5 and 6 related to the value of the suit land. 6. The learned Civil Judge 1st Class, Lakki, on remand, recorded the statements of Mr.Yaqub Ali Shah, Clerk of Court of the District and Sessions Judge, Bannu, and arrived at a conclusion that the suit was barred by time and thus decided issue No.l against the petitioner. Regarding issues 5 and 6, relying on the report of Muhammad Fariq Khan, Advocate, local Commissioner, the learned trial Court assessed the sale price of the suit land as Rs.6800.00. The ultimate result of his findings has been that he dismissed the suit vide his judgment dated 6.10.1987. 7. Aggrieved from the aforesaid judgment, the petitioner preferred an appeal before the learned District Judge, Bannu at Lakki and this time it met the same fate resulting in the dismissal of his appeal vide judgment of the learned District Judge dated 11.12.1988. Hence the instant petition. 8. I have heard S.Zafar Abbas Zaidi, Advocate, learned counsel for the petitioner and Mr.Saadullah Khan Miankhel, Advocate, learned counsel for the respondents at length and also perused the record of the case with considerable degree of care. 9. A preliminary objection was raised by the learned counsel for the respondents to the effect that on coming into force of the N.W.F.P. Pre-emption Act. 198". and repealing of the earlier Pre-emption Act No.XIV of 1950, as per Section 35 of the latest legislation, since no decree in the instant case was in existence on 30.7.1986, the instant case lapsed and the suit of the petitioner stood dismissed. In this regard, he relied on Sultan and another v. Habib Ahmad and others (PLD 1990 SC 897 = PLJ 1990 SC 421). 10. Repelling the preliminary objection, the learned counsel for the petitioner submitted that factually speaking the rule laid down in the above cited decision of the Supreme Court does not cover the instant suit inasmuch as the decree granted in favour of the petitioner by the learned District Judge, Bannu on 10.11.1982 was much before the 31st of July, 1986 and the order of remand in the revision petition against it dated 31.10.1984 is conspicuously silent over annulling the decree and is confined to setting aside the findings of the lower Courts on the issues pertaining to the point of limitation (Issue No.l) and the market value of the suit land (Issues 5 and 6) meaning thereby that his right of prefanption having been upheld, the decree was intact and it was simply subject to the question of limitation which needed further inquiry. 11. As regards Section 35 of N.W.F.P. Pre-emption Act, 1987, the learned counsel for the petitioner contended that while an appeal is continuation of a suit, the revision petition is not so and a decree of pre-emption granted in favour of the petitioner by the appellate Court attained finality. He further contends that even in the revisional order of this Court, the decree so granted was not disturbed and as such all further proceedings relating to the case under sub-section (2) of Section 35, are required to be governed in accordance with the provisions of the old law i.e. N.W.F.P. Pre-emption Act, 1950. 12. On merits, while assailaing the impugned judgments and decrees of both the learned lower Courts dated 23.11.1981 and 10.11.1982 respectively, the learned counsel for the petitioner contended that the direction of this Court, as contained in the order of this Court made in the revision has not been followed in its true letter and spirit. Consequently their finding on issue No.l, is not sustainable inasmuch as in view of the closure of the Court, on account of its Presiding Officer on leave, and in the absence of any other arrangements having been made for the reception of plaints in accordance with Section 23 of the West Pakistan Civil Courts Ordinance, 1962 read with Rule 7(c) of the High Court Rules and Orders Chapter I, Part-B; the petitioner could not help but to present his plaint under Order 4 Rule 1 C.P.C. on the return of the learned Civil Judge from leave on 8.5.1979, a day after the period of limitation lapsed and under Section 4 of the Limitation Act, 1908 he could validly do so. He relied on a case Nur Muhammad v. Ghulaman and others (A.I.R. 1934 Lahore 622) and that ofKJiushi Muhammad v. MstNazir Begum and others (1989 CLC 1984=PLJ 1989 Lahore 526) as also Abdus Sattar and others v. Nawab Din and others (1989 SCMR 1204). 13. The learned counsel thus asserted that the findings of both the learned lower Courts on issue No.l are in defiance of the specific direction made by this Court in that the same are neither in conformity with the outcome of the inquiry conducted, nor in accordance with the law cited and as such are rendered as untenable. This being so, the learned counsel added, when the right of pre emption of the petitioner has already been held as superior to that of the respondents-vendees, his suit merits to be decreed. He, therefore, prayed that this revision petition may be allowed in the aforesaid terms. 14. As against this, the learned counsel for the respondents maintained that Section 4 of the Limitation Act is not applicable to the facts of the case inasmuch as the expression "when the Court is closed" denotes only a declared or a gazetted holiday and not simply absence of the Presiding Officer of the Court on leave or, as the case may be, for some other reason. He placed reliance on a case of Indian Jurisdiction reported as A.I.R. 1941 Nagpur 216. 15. Similarly, he distinguished rule 7(c) of the High Court Rules and Orders, Volume I Chapter I, Part-B and submitted that in such an eventuality, the petitioner could present his plaint to the Additional District Judge, Lakki or even to the District Judge, Bannu in order to avoid the effect of limitation. Regarding Section 23 of the West Pakistan Civil Courts Ordinance, according to the learned counsel, firstly it was directory and not mandatory with the District Judge to empower any other Civil Judge of the district to perform the duties of the Judge of the vacated Civil Court. And secondly, the temporary absence in Section 23, infact, should be construed with the contingency of death or suspension of any Civil Judge described thereunder. Since such an eventuality was not obtaining in the instant case, there was no necessity of taking any action as contemplated under the aforesaid provisions of law and the petitioner, in the circumstances, should have presented the plaint to the District Judge. He relied on 1978 Law Notes 528. the learned counsel for the respondents, therefore, considered the failure in this regard on the part of the petitioner as a fatal consequence of his own act and while supporting the impugned judgments of both the learned lower Courts, he called the dismissal of the suit as lawful. 16. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas. 17. In disposing of the preliminary objection, I would like first to refer to the basic pronouncement on the subject which is made in the case of Said Kamal Shah (PLD 1986 SC 360 = PLJ 1986 SC 576). It was, however, later in Sadar Ali's case (P.L.D. 1988 S.C. 287 = PLJ 1988 S.C. 224) that, as per para 5 of the judgment, certain questions regarding the applicability of the previous laws of pre-emption on cases instituted earlier to 31.7.1986 were posed and this included the situation which we are presently confronted with in the instant case as well, namely, whether the plaintiff, having failed in the trial Court, had in appeal or other proceedings in higher Forums, succeeded in obtaining a decree before 31st of July, 1986, can be non-suited in the still higher Forum including the Supreme Court on the ground that the relevant law had ceased to have effect on 31st July, 1986. The answer to this was provided in para 64 of the judgment and was given in the negative, meaning thereby that a pre-emption suit, having been dismissed in the trial Court but succeeded in obtaining a decree before 31.7.1986 in the appellate Court, cannot be non-suited in still higher Forum including the Supreme Court on the ground that earlier law had ceased to have an effect on 31.7.1986 and obviously be governed under the relevant provisions of the old law i.e. NWFP Preemtpion Act, 1950. The view taken in the above case, finally stood reiterated and affirmed in the suo moto Constitutional Petition No.l-R 1989 (PLD 1990 SC 865 = PLJ 1990 SC 395). 18. But the situation meanwhile took yet another turn when the Pre-emption Act, 1950 was repealed and replaced by NWFP Pre-emption Act, 1987, the saving clause whereof is Section 35 which reads as follows:- "(1) The North-West Frontier Province Pre-emption Act, 1950 (NWFP. Act XIV of 1950), is hereby repealed. "(2) In the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptor shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act". A bare reading of the afore-quoted provisions of law, would indicate that further proceedings relating to such judgments and decrees passed by the Courts as had become 'final' were to be governed and continued in accordance with the provisions of the repealed law. The cases not falling under the first category, however, were to lapse and all pre-emption suits shall stand dismissed except the one wherein pre-emption was claimed under the provisions of the later Act. 19. In the context of these legal and legislative developments, the situation that emerges is that on the one hand is the law as laid down by the Supreme Court in Sardar Ali's case (PLD 1988 SC 287=PLJ 1988 SC 224) as well as by the Appellate Shariat Bench of the Supreme Court in suo moto Constitutional Petition No.l-R of 1989 (PLD 1990 SC 865 = PLJ 1990 SC 395); and on the other hand, the newly enacted NWFP Pre-emption Act, 1987 enforced on 28.4.1987 with its saving clause as embodied in Section 35. 20. An analytic study of both, however, reveals that these are rather complimentary to each other in that both laws found a pre-emption suit, without making requisite "Talabas" a pre-condition, as untenable and such suits were liable to be dismissed, save the one, wherein a decree was granted before 31.7.1986, or the suit in which right of pre-emption is claimed in conformity with the principle of "Talabs" duly exercised by the pre-emptor. 21. The only ostensible hurdle that was felt qua the saving Clause of Pre­ emption Act of 1987, as contained in Section 35, has been the true import of its sub-section (2) quoted above. It, however, came under judicial examination before this Court as well as the Supreme Court. 22. The first case of its kind Mst. Lobia Jan . Roghan Shah (PLD 1989 Peshawar 174=PLJ 1989 Peshawar 53) alongwith 12 other revision-petitions with reference to Section 35 of the NWFP Pre-emption Act, 1987, seems to have come up for consideration before this Court and Mr.Justice Fazal Elahi Khan, as he then was, while delivering the judgment held:- "Admittedly Section 35 of the Act deals with the pending cases and appeals filed under the repealed law, however, it has drawn a distinction in cases in which decrees have been passed before the enforcement of the new law, or for the purpose of the present controversy before 31.7.1986 and those cases which were pending before the trial Court on 31.7.1986 and in which decrees were not yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases are to lapse and suits of the pre-emptors are to be dismissed except those in which right of pre-emption is claimed under the provisions of this Act". The same question came up for hearing in Civil Appeal No. 103/84 decided on 10.3.1990 in the case ofJehan Dad v. Raza Muhammad Klian and 6 others and the rule laid down in Mst.Lobia Jan's case was upheld. A similar view was taken by the Supreme Court in Syed Ghalib Intisar Gillani v. Zahoorud Din and 8 others (C.P.Nos.6-R and 7-R of 1990) decided on 31.10.1990 and it was observed. "The Talabs are conditions precedent for enforcement of right of pre­ emption. Admittedly, no Talabs had been made in present case. No decree had been passed on the basis of the claim made by the respondent. The suit was instituted under the NWFP Pre-emption Act, 1950 which was substituted by the NWFP Act, 1987. Under subsection (3) of Section 35, the cases which had not been decreed by that time, shall stand dismissed except those in which right of pre-emption is claimed under the provisions of this Act". 23. The latest of the series is the case of Ghularn Sanvar v. Abdul Jalil and 2 others (PLD 1991 SC 500=PLJ 1991 SC 375), wherein the impact of NWFP Preemption Act, 1987, came up for consideration and after quoting Section 35 in extenso, it was observed:- "This section envisages the pendency of appeals and cases against the judgments and decrees which have become final. Finality and pendency of appeal do not ordinarily go together. What is final cannot be the subject of appeal and what is subject of appeal cannot be final". And again:- " Reading all these together the conclusion which is inescapable is that the meaning which is to be given in this section is that the 'judgment or decree which terminates action in Court which renders it.' The question whether necessarily it must be a decree in favour of the pre-emptor is not a question which needs examination in this case nor are we properly assisted to embark on that species of decision. In this case that question does not arise at all. When the North-West Frontier Province Pre­ emption Act, 1987 came into force, the final judgments and decrees of the two Courts existed and indeed there was a decree in favour of the pre-emptor by the first appellate Court. Therefore, this was a matter which was rightly dealt with by the High Court under the North-West Frontier Province Pre-emption Act, 1950, and sub-section (3) of Section 35 of the North-West Frontier Province Pre-emption Act, 1987 was not attracted". 24. Viewed in the perspective of the law as contained in Section 35 of the Pre-emption Act, 1987, and the case law discussed above, I am clear in my mind that in a case, once a decree having been granted by the trial Court or appellate Court before the dead line i.e. 31.7.1986, all subsequent proceedings relating thereto shall be governed and continued in accordance with the provisions of the N.W.F.P. Pre-emption Act, 1950 and sub-section (3) of Section 35 of Pre-emption Act, 1987, would not be attracted. The instant case, with its facts in mind, does not appear to me an exception to the aforesaid principle and I have no hesitation to hold it accordingly, particularly when the decree granted herein had not been set aside later in the revision and the suit was remanded to the trial Court for a limited purpose. The preliminary obejction thus is disposed of in the terms indicated above. 25. Reverting to the merits of the case and examining the propriety and legality of the impugned judgments and decrees of both the learned lower Courts, it will be worth while to reproduce the provisions of law referred to in the remand order:- "Order 4 Rule 1 C.P.C. Every suit shall 0e instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. "High Court Rules and Orders, Chapter I, Part-B. Rule 7(c) Reception by ministerial establishment prohibited. The members of the ministerial establishment are strictly forbidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is in charge of his current duties. District Judge, should, however, invariably make arrangements for the reception of plaints and petitions etc. by, another officer of a Court when an officer is temporarily absent on leave, tour or otherwise. Where there is a single judicial officer at a station such as a Moffassal or outlying Courts, arrangements should be made for the reception of plaints, petitions, documents, etc. by the Tehsildar or the Naib Tehsildar in consultation with the Deputy Commissioner". West Pakistan Civil Courts, Ordinance, 1962. "Section 23. Temporary vacancy of Civil Judges. In the event of the death, suspension or temporary absence of any Civil Judge, the District Judge may empower any other Civil Judge of the District to perform the duties of the Judge of the vacated Civil Court, either at the place of such Court or of his own Court, but in every such case the registers and records of the two Courts shall be kept separately". 26. A bare reading of the above quoted provisions would collectively give rise to a legitimate impression that these provisions were enacted/prescribed to provide such mechanisam as to facilitate presentation of plaint to a Court, or an Officer authorised in this behalf, in order to ensure a proper presentation of plaint to, and received by, a person with a judicial sense of responsibility. For, the concept of a Court is not complete without its Presiding Officer. Nor a Court without a Judge and comprising of Reader, or for that purpose any other official attached to it can, by any stretch of imagination be called a Court. Again with reference to Section 23 of the West Pakistan Civil Courts Ordinance, 1962, I simply fail to comprehened as to how temporary vacancy of a Judge can be construed as, or equated with, death or suspension of the Judge; moreso when the very caption of the said provision pertains to "Temporary vacancy of Civil Judges". In this context, I do not subscribe to the view expressed by the learned counsel for the respondents either in his definition of the Court or that of the expression when the Court is closed, for, none of the afore-quoted provisions would suggest so nor the cases reported in A.I.R. 1941 Nagpur 216 and 1978 Law Notes 528 are convincingly pertinent thereto. 27. It appears, and I regretfully observe, that a strict compliance of the aforequoted provisions has fallen into oblivion due to lapse of time but, in my considered view, it cannot be said that the same have lost efficacy in an efficient administration of justice. 28. For, let it be borne in mind that a legal duty is cast upon the District Judge to make alternative arrangements in accordance with Section 23 of the West Pakistan Civil Courts Ordinance, 1962 as also Rule 7(c) of the High Court Rules and Orders, Volume I, Chapter I, Part-B, for the receipts of plaints, petitions, documents etc; in the absence of Presiding Officer, of such subordinate Courts in their respective districts. This is all the more necessary because noncompliance thereof is likely to give rise to such complications as is instantly confronting us and which resulted in un-necessary protracted litigations and delayed justice; latter's notoriety notwithstanding. In the light of the fore-going, the District Judge cannot be absolved of the responsibility that devolved on him in 29. No better example of this situation can be presented than the instant case where the District Judge, Bannu was bound to make alternative arrangements for reception of plaints, petitions, documents etc; the Court of Civil Judge being the lone Court at Lakki and it was precisely in such a situation that even the Tehsildar or Naib-Tehsildar of the area could be entrusted with powers to receive the plaints during his absence. In this context, the argument of the learned counsel for the respondent about directory nature of section 23 (ibid) also looses its force, if it had any. __...,. _ 30. It is, however, a matter of record, and even the evidencejreeoFdedJbjrboth the learned lower Courts in this regard, would indicate, that fto such step as envisaged by law and the rule referred to above had been taken by the learned District Judge, Bannu for the period, the learned Civil Judge, Lakki was on leave. 31. This situation necessitated a reference to the judgment of this Court dated 13.11.1984 whereby in the first round of litigation the case was remanded to the learned trial Court in the following terms:- "It shall thus be seen that during the temporary absence of the Presiding Officer of a Civil Court alternate arrangements for reception of plaints etc. are to be made by the District Judge and in the present case some arrangements must have been made by the District Judge Bannu. The learned Additional District Judge should not have relied upon the contents of the application in deciding the question of limitation in affirmative because, as aforesaid, some arrangements must have been made for the receipt of plaints etc during the temporary absence of Civil Judge, Lakki. This point needed clarification by production "of evidence and in this connection official of the office of the District Judge, Bannu could have been called as a witness to show whether any official of the Court of Civil Judge or the Tehsildar or Naib-Tehsildar Lakki or for that matter any other Civil Judge of the district had been authorised by the District Judge to receive the plaints or petitions etc. As «n allegation had been made by the plaintiff that the Presiding officer was on leave upto 7.5.1979 and he had presented the plaint on the next day, it was in the interest of justice that the learned Additional District Judge should have remanded the case back to the Civil Judge to recrod additional evidence on this issue and then decide the sante in the light of the evidence produced before him. The learned Additional District Judge had reversed the finding of the learned trial Judge on this issue without any evidence on the record. This is an irregularity going to the very root of the case. The valuable rights of both the parties are involved one way or the other on this issue." 32. In the context of the afore-quoted remand order, it is amazing that both the learned lower Courts despite the fact that no such alternative arrangements as was required under the law were found to have been made, still were of the view that the petitioner should have presented his plaint before the District Judge, Bannu. Such a view is not only contrary to the clearly indicated terms of remand order but in my considered opinion, also manifest neither a symptom of healthy administration of justice nor a correct step towards the cause and interest of expeditious disposal of cases. In fact the impugned judgments of both the learned lower Courts has (have) penalised the petitioner for an act of the Court or rather should it be termed as inaction of the District Judge in his failure to comply with the law as contained in Section 23 of the West Pakistan Civil Courts Ordinance, 1962 as also Rule 7(c) of the High Court Rules and Order Chapter-I, Part-B. It is now a settled law that no one can be penalised for an act of the Court. Nor in this case the petitioner can be treated as such. 33. Thus where undisputedly no alternative arrangements were made by the learned District Judge, Bannu, under Section 23 of the Civil Courts Ordinance or/and under Rule 7(c) of the High Court Rules and Orders, Chapter I, Part-B; and in the absence of the Civil Judge, Lakki when there was no authorised officer to receive the plaints, the question that needs examination is as to whether presentation of the plaints to the Court, on the return of the Presiding Officer from his leave, or speaking more precisely from his temporary absence, the instant suit would still be deemed as barred by limitation. It is a common ground that the suit was filed only one day after the requisite period of limitation as prescribed in law. The learned Additional District Judge, Bannu at Lakki vide judgment dated 10.11.1982 had decreed the suit on the ground that an application presumably made under Section 4 of the Limitation Act was annexed with the plaint and in this regard the learned appellate Court had observed as follows: - "It is very much clear from the record of the case that on 8.5.1979, Mir Alam Khan through his general attorney Badshah Khan had submitted an application before the lower Court wherein he had stated that the Presiding Officer was on leave from 5.5.1979 to 7.5.1979 and it was, therefore, that he submitted his plaint on 8.5.1979. This being the position it cannot be said that the suit of the plaintiff is barred by limitation, because the plaintiff-appellant cannot be deprived of his legal rights merely because on the last day of the period of limitation he could not file his suit inspite of the fact that the Presiding Officer was on leave". Section 4 of the Limitation Act states:- "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, or appeal or application may be instituted, preferred or made on the day that the Court reopens". 34. A plain reading of the afore-quoted provision of law indicates that in case of limitation having expired during the closure of a Court, the suit, appeal or application can be filed "on the day that the Court reopens". In other words, the period of limitation ih such a situation would cease to run and a plaintiff would be in his rights to file his plaint on the reopening day of the Court. Thus in the context of the uncontroveted factual aspect of the case in that the learned Civil Judge had proceeded on leave; that no arrangements had been made for the reception of the plaints during his absence and that the suit could not have been instituted prior to 8.5.1979, this period of one day, by which the period of limitation exceeded, must be deducted in. computing the period of limitation within terms and conditions of service—Held: High Court has no jurisdiction to interfere in matter-Petition dismissed. [Pp.77&78]A,B&C PLD 1981 Peshawar 1 rel. Mr. Shahzada ShahpurJan, Advocate for Petitioner. Date of hearing: 7.5.1991. judgment The petitioner has filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 seeking declaration of the entire action of the Deputy Accountant General (PR) Peshawar (respondent No.3) as arbitrary, illegal and void on the ground that the seniority list of the posts of Accountant (B-16) framed in the office of respondent No.3 has not been determined with the ratio of 2:1 in accordance with the instructions issued by respondent No 1. 2 The petitioner is Audit and Account Assistant in the office of respondent No.3. According to him, the posts of Accountant (B-16) are filled in by ratio of 66 and 33 percent, i.e. 66 posts by qualified persons and 33 posts by promotion. Not­ withstanding this, respondent No.l on 11.11.89 issued a circular latter whereby the respondents were directed that; "After preparation of the seniority list on the above lines, seniorty of all the exemptees should in the cadre of Accountants be determined and drawn with reference to the respective batches of the qualified accountants alongwith whom they would have been promoted with the ratio of 2:1 had their promotion not been held up or not given prospective effect due to the dispute of seniority of U.D.Cs and Audit and Accounts Assistants, irrespective of actual date of their promotion as Accountant. This would mean antedation of seniority only in the cadre of Accountant and not antedation of promotion." On 10.10.90, respondent No.3 issued a revised seniority list of Accountants (B-16) in pursuance of the order of respondent No.l but the posts of all the exemptees in the cadre of Accountants have not been properly worked out with reference to the respective batches of the qualified Accountants with the ratio of 2:1. The petitioner was eligible for exemption on 13.12.1986 but respondent No.3 did not correctly reconstruct the interse seniority on the pattern of the office of respondents No.l and 2 and in consequence thereof he has been deprived of the •benefit of exemption and as such the object of 33% quota of exemptees has been violated. 3. The petitioner made a representation before respondent No.2 for determining the promotion of exemptees against the 33 percent quota which were held up and not given batchwise effect, but failed to obtain any favourable order in this regard. Then he filed a representation before respondent No.l for redress of his grievance but it was withheld by the said respondent; hence the instant writ petition. 4. We have heard the learned counsel for the petitioner and perused the material available on the file 5. In his writ petition, the petitioner has sought for the following reliefs:- (a) Directing respondents No.2 and 3 to revise the seniority list of Accountants (B-16) with reference to the respective batches of the qualified Accountants with the ratio of 2:1 as per direction of the respondent No.l. (b) Order that the seniority of all the exemptees including petitioner in the carde of Accountants as determined against 33% quota from the date of their promotions were wrongfully held up.It is to be noticed that the petitioner is asking for revision of the seniority list which according to the Federal Government Civil Servants Act 1973, comes within the terms and conditions of service of civil servants and the Federal Service Tribunal is available therefor. The jurisdiction of other Courts in such matters is barred under section 4 of the Federal Service Tribunal Act, 1973. For the sake of convenience, section 4, ibid, is reproduced below:- "4. Appeals to Tribunals.--(l) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, may within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal) Provided that: (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review of representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was not preferred; and (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; 6. It is thus clear from the afore quoted section of law that there was no bar in the way of the petitioner in approaching the Tribunal for seeking his redress in the matter. The jurisdiction of the Civil Courts including the High Court in service matters are (?) specifically ousted. The High Court shall have the jurisdiction when the order impugned by a civil servant of the Federation or of the Provincial Government is not made by a departmental authority which is competent to make an order in respect of any of the terms and conditions of service of such civil servant. In the case in hand, the orders of the departmental authorities with regard to the revised seniority list and the seniority of all the exemptees including the petitioner in the cadre of Accountants (B-16) could not be questioned before this Court which could only be challenged before the Tribunal established by law made under Article 212 of the Constitution. Reference may also be made to the Case of Mian Amanul Mulk . N.W.F.P.through Chief Secretary (P.L.D 1981 Peshawar 1). 7. For the reasons stated hereinbefore, this Court has no jurisdiction to interfere in the matter. This petition is without any merit and is therefore dismissed in limine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1991 Peshawar 81 (DB) PLJ 1991 Peshawar 81 (DB) Present: fazal elahi khan and muhammad bashir jehangiri, JJ MUHAMMAD TARIQ and 2 others-Petitioners versus GOVERNMENT OF N.W.F.P., THROUGH SECRETARY, LOCAL GOVT. & RURAL -----OPMENT DEPARTMENT, PESHAWAR and another-- Respondents Writ Petition No.286 of 1991, accepted on 6.5.1991 (i) Locus Poenitentiae-- —Vote of no-confidence against Chairman of Local Council—Motion of— Special meeting called but postponed under direction of Government- Challenge to-Held: Order of respondent No.2 to convene meeting for noconfidence motion is not one of those orders which he could validly withdraw upon direction of respondent No.l under purported exercise of principle of Locus Poenitentiae. [Pp.84&85]D (ii) NWFP Local Government Ordinance, 1979 (IV of 1979)-- —-S.34 read with NWFP Local Councils Chairman and Vice Chairman (Vote of No-confidence) Rules, 1980, Rules 3 & 4—Vote of no-confidence against Chairman-Motion of-Special meeting called but postponed under direction of respondent No.l-Challenge to-Pending decision for removal under section 34 of Ordinance, Members do not stand disqualified to participate in noconfidence motion-Action of respondent No.2 to postpone meeting is certainly in violation of Rules~If two-third majority of total members of Local Council lose confidence in Chairman, law gives them choice to oust him and he is not expected to cling to office illegally-Held: Impugned order postponing no-confidence motion is without lawful authority and of no legal effect. [Pp.83,84&85]A,B,C&E Qazi Muhammad Anwar, Advocate for Petitioners. Mr. J.D-Akbarji, Advocate General for Respondents. Date of hearing: 6.5.1991. judgment Muhammad Bashir Jehangiri, J.«Facts necessary for the disposal of this Constitutional Petition, briefly stated, are that Town Committee, Karak, comprised of ten members including the three petitioners. On 31-1-1991, a written notice signed by eight members including the petitioners herein called upon Shamsul Wahab, Chairman of the Municipal Committee to convene a special meeting of the Town Committee under sub-rule (1) of Rule 3 of the N.W.F.P. Local Councils Chairmen and Vice-Charimen (Vote of No-Confidence) Rules, 1980 (to be hereinafter called as the Rules) to consider a motion of No- Confidence against him. This notice was received by the Head Clerk of the Municipal Committee on the same day. Since the Chairman of the Municipal Committee did not call the special meeting within the prescibed period of seven days of such requisition, the said eight members put in an application to the Divisional Director, Local Govenment and Rural Development Department, Kohat Division (Respondent No.2) under Rule 4(1) of the Rules for convening a meeting of 'No-Confidence Motion'. On 7-2-1991, Respondent No.2 called the special meeting in the office of the Chairman, Municipal Committee on 17-2-1991 at 10.00 AM to consider and discuss 'No-Confidence Motion' against the Chairman. Mohammad Farooq, Vice Chairman, Municipal Committee was also directred to preside over the special meeting in pursuance of Rule 4(1) of the Rules. Copy of this directive was furnished, inter alia, to Respondent No.l, Mohammad Farooq, Vice Chairman and Malik Shamsul Wahab, Chairman of the Municipal Committee. On llth/12th of February, 1991 a letter was, however, issued on behalf of Respondent No.l under the signatures of Administrative Officer-Ill of the Government of N.W.F.P., Local Government, Elections and Rural Development Department, addressed to Respondent No.2 directing him to postpone the meeting aforesaid for consideration of 'No Confidence Motion' against the Chairman. In consequence respondent No.2 postponed the meeting. The petitioners, feeling aggrieved, have through this Constitutional Petition impugned the direction contained in the letter dated llth/12th February, 1991 issued by respondent No.l to respondent No.2 to be without lawful authority and of no legal effect with a further direction to Respondent No.2 "to perform his duties in accordance with law as prescribed by the Rules and to convene the meeting for consideration of 'No-Confidence Motion' against the Chairman." 2. The petition was admitted to regular hearing and notices were isssued to the Respondents. Respondents Nos. 1 and 2 accordingly submitted their comments. The sum and substance df the comments was that since there was a report against the two Councillors, namely, Gul Sharif and Bibi Maina that they had incurred a disqualification on account of having remained absent without reasonable cause from three consecutive meetings of the Local Council and that these two Councillors were also signatories to the 'No-Confidence Motion', therefore, it was decided to first dispose of the disciplinary cases against them and in consequence, the meeting was temporarily postponed. 3. Qazi Mohammad Anwar, learned counsel for the petitioners, in support of the petition, contended that respondent No.l was not competent in law to direct respondent No.2 to postpone the meeting' for consideration of 'No- Confidence Motion' against the Chairman. ' 4. The learned Advocate General invoked the provisions of section 34 of the N.W.F.P. Local Government Ordinance, 1979 (to be hereinafter called as the Ordinance) and maintained that Respondent No.l has ample power to remove a Chairman or a Vice Chairman or a member of a Local Council from office in the prescribed manner, inter alia, if he absents himself without reasonable cause from three consecutive meetings of the Local Council. The learned Advocate General thus submits that since there was a complaint against the two members who were signatories to the 'Motion of No-Confidence' against the Chairman, therefore, the postponment of the meeting was imminent which could not be called in question. It was also contended by the learned Advocate General that Respondent No.l was competent under section 20 of the West Pakistan General Clauses Act, 1956 (W.P Act VI of 1956) to issue such a direction, in that, since there was power with Respondent No.l to convene the meeting to consider the 'Motion of No- Confidence' against the Chairman, there was also a power to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form and by-laws so issued. 5. There is no cavil with the proposition that in exercise of powers under section 34 of the Ordinance the Govt. after giving him an opportunity of being heard, may remove a Chairman, Vice Chairman or a member of a Local Council on one or more of the grounds enumerated therein. One of such of grounds is his absence without reasonable cause from three consecutive meetings of the Local Council. In this context, the question arises as to whether pending decision of proceedings of removal within the contemplation r section 34 ibid, the Chairman, Vice Chairman or a member, as the case may be, stands disqualified to participate in the conduct of the business of Local Council. We have not been able to find any such disqualification in the Ordinance or the Rules framed thereunder. In this view of the matter, the two members complained against probably by the Chairman have not incurred any such disqualification so as to participate in the 'Motion of No-Confidence' against the Chairman. Again, Respondents have not disclosed in their comments as to when the complaint of absence against the two members for their absence under clause (e) of sub-section (1) of section 34 of the Ordinance was made. The parties are at variance on the date of such complaint. The learned counsel for the petitioners maintained that it was made after the 31 st of January, 1991 when written notice under rule 3(1) of the Rules calling upon the Chairman to convene a special meeting of the Municipal Committee was served upon him. As against this, the learned Advocate General submitted that the complaint was made on the 24th of January, 1991. Be that as it may, the crucial point falling for consideration is as to whether Respondent No.l was competent under the Ordinance or the Rules framed thereunder to postpone the meeting to discuss and consider the 'No-Confidence Motion' against the Chairman on the ground of a complaint about the absence of two members who are signatories thereto. 6. We have given our anxious consideration to the proposition and have concluded that so long as a requisition complied with the provisions of rules 3 and 4 of the Rules, then there is nothing against convening such a meeting subject of course to the provisions of section 36 of the Ordinance, with which we are not concerned at the moment. Now if the Government is held to have got a prerogative to postpone such a meeting, it will be tantamount to frustrating the very object of the Ordinance. By resorting to such machinations the Chairman or the Vice Chairman, who had lost confidence of the members of the Local Council, may perpetuate his office. Obviously this cannot be accepted as the object of the Oridnance. On the other hand, action of Respondent No.2 to postpone the meeting upon direction of Respondent No.l is certainly in violation of the Rules. 7. Then rule 2 reads that not less than half of the members of Local Council may by written requisition call upon the Chairman to convene special meeting. Even if two members were complained against for allegedly absenting themselves from the three consecutive meetings, still there were two other signatories to the requisition which was more than half of members of the Municipal Committee. If complaints of this nature are entertained it will side-track the very object of the Rules to oust the Chairman by virtue of their legal right to move and pass the 'Motion of No-Confidence' against him. The law on the subject, on the one hand, has sufficiently protected the office of Chairman under section 36 of the Ordinance and rules 3,4 and 5 of the Rules from the on slaughts of the irresponsible moves on the part of the members while, on the other hand, the law has given free hand to the members to move the 'No-Confidence Motion' under rule 6 of the Rules requiring not less than two-thirds majority of the total members constituting the Local Council. If the two-thirds majority of the total members of the Local Council lose confidence in the elected Chairman and the law gives the members choice to oust him then he is expected to step down in an honourable way and should not cling to the office illegally. Likewise, Government which has been inducted into powers will be well advised to discourage such undemocratic moves to frustrate the very spirit of law & strengthen the budding democratic institution like the Local Councils. The democratic Government in their own interest are expected to desist from supporting Chairman who has lost the confidence of two-thirds majority of the total number of the members of a Local Council whereby they would render real service to these institutions. 8. The rule of locus poenitentiae; pressed into service by the learned Advocate General, we are afraid, is not attracted to the case in hand. The impunged order of 'temporary postponement' of meeting to consider the 'No- Confidence Motion' against the Chairman had not been preceded by or originated from any order of the Provincial Government so as to fall within the ambit of section 20 of the West Pakistan General Clauses Act, 1956 (W.PAct VI of 1956). That clearly is a legislative function which is wholly outside the authority conferred by section 36 of the Ordinance or the Rules. The order of Respondent No.2 to convene the meeting under rule 3(2) of the Rules is, therefore, not one of those orders which he could validly withdraw upon the direction of Respondent No.l under the purported exercise of section 20 of the West Pakistan General Clauses Act, 1956. Even if it is conceded that under section 20 ibid power vested in the Respondent, still that power did not include the power what has been described as 'temporary suspension'. The second contention of the learned I counsel thus stands repefled. 9. Before parting with the case we would dispose of an application moved by Shamsul Wahab petitioner for his impleadment as a party to this petition. In the facts and circumstances of the case, we are of the considered view that he is neither a necessary nor a proper party to these proceedings. C.MiscJMo.1133 of 1991 filed by Shamsul Wahab petitioner is accordingly dismissed. f 10. The result of the above discussion is that we allow this petition, set aside the impugned order of Respondent No.2 dated 13th February, 1991, postponing the meeting in pursuance of the direction of Respondent No.l contained in the letter dated llth/12th February, 1991 and hold both the orders to be without lawful authority and of no legal effect. We further direct Respondent No.2 to reconvene the meeting in pursuance of his order dated 7th February, 1991, within a fortnight. No order as to costs. Petition accepted. (MBC) (Approved for reporting)

PLJ 1991 Peshawar 85 (DB) PLJ 1991 Peshawar 85 (DB) [Abbottabad Bench] Present: wali muhammad khan and mahboob ali khan, JJ MUHAMMAD HUMAYUN KHAN-Petitioner versus ALI ASGHAR KHAN and 10 others-Respondents Writ Petition No.16 of 1991, dismissed on 19.3.1991 Civil Procedure Code, 1908 (V of 1908)- —O.I., R.10(2)~Impleadment of respondent No.l-Challenge to—Name of any person can be added as a party to a suit whether as plaintiff or defendant, whose presence before court is deemed necessary for complete adjudication of dispute-Rule 10(2) of Order I vests a discretion in Court to add parties in a suit at any stage or strike out their names~In this case, respondent No.l may not be a necessary party to suit, but he is certainly a proper party-Held: Impugned judgment ordering impleadment of respondent No.l is not without jurisdiction and lawful authority-Petition dismissed. [Pp.86&87]A&B Haji Ghulam Basil, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 19.3.1991. judgment Mahboob All Khan. J.-Mohammad Hamayun Khan involved in this writ Petition instituted a suit on 22-12-1982 (No.27/1 of 1982) in the Court of Civil Judge, Abbottabad against the Government of N.W.F.P., the District Council, Abbottabad and few others, that he is an owner of certain landed property comprised in khasra No.705(old 46 measuring 9 kanals 5 marlas detailed in the heading of the plaint) and the entries made in the revenue papers showing defendant No.l, i.e., the Provincial Government as owner of the property and defendants 3 to 8 lease-holders being against law and facts are not binding on his rights and so are the entries made in mutation No. 86 dated 31-8-1943 recorded in the name of Sain Kalu, i.e., the predecessor-in-interest of respondents 4 to 9 on behalf of the District Board (now District Council), Abbottabad. The petitioner by way of consequential relief asked for the grant of a decree for permanent injunction and possession of the landed property. 2. District Council, Abbottabad and others resisted the suit on many pleas both legal and factual including those of limitation, adverse possession and resjudicata. During pendency of litigation, Ali Asghar Khan (now respondent No.l in this petition) moved an application under Order 1 Rule 10 (2) C.P.C. for his impleadment in the suit as a defendant on the plea, that he had purchased certain 'Pata-Dari' rights in the case land from Sain Haidar Ali son of Sain Kalu in the years 1983-84. This application did not find favour with the trial Judge and was rejected on 7-9-1988. Respondent No.l having felt aggrieved went in revision under section 115 C.P.C. to the Court of AddhDistrict Judge, who vide his judgment and order dated 2-12-1990 allowed the petition and asked for the impleadment of respondent No.l as a defendant in the suit. This order has now been impugned before us in the instant writ petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as without jurisdiction, lawful authority, void and of no legal effect on the rights of the petitioner, i.e., the plaintiff of the initial suit. 3. The suit land is entered in the name of Provincial Government. One Sain Kalu had been granted certain lease rights in the suit property as back as in the year 1943 when mutation No.86 was sanctioned in his name on 31-8-1943 on behalf of the erstwhile District Board. The Said rights had devolved on his successors on the death of Sain Kalu who are Sain Haider etc. Ali Ashgar Khan respondent somewhere in the years 1983-84 purchased some 'Pata-Dari' rights in the suit land from Sain Haider Ali respondent No.5. He in this back ground asked the Court for his impleadment in the suit under Order 1 Rule 10 (2) C.P.C. to which the learned Civil Judge did not agree and the matter was subsequently resolved through the intervention of the Addl: District Judge in revisional jurisdiction. 4. Under Order 1 Rule 10 (2) C.P.C. the Court may strike out or add party in a suit at any stage of the proceedings, either upon or without the application of either party and on such terms and conditions as may appear to be jjist. The name of any person can be added as a party to a suit whether as plaintiff or defendant whose presence before the Court is deemed necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This rule applies to both plaintiffs and defendants and the object is to avoid the necessity of separate actions. The rule vests a discretion in Court to add parties in a suit at any stage after the presentation of the plaint or strike out their names. The parties can be classified either as necessary or proper. A person who ought to have been joined in a suit is a necessary party and a person whose presence before the Court is necessary in order to effectually and completely adjudicate upon and settb all points involved in the suit is a proper party. In the instant case respondent Ali Asghar Khan may not be a necessary party to the suit but he is certainly a proper party. It is true that his claim of purchase of the 'Pata-Dari' rights from respondent Sain Haider Ali dates back to the years 1983-84, i.e., after the institution of the suit by Mohammad Hamayun Khan but his mere presence before the Court as a defendant would by no way debar the plaintiff from raising the plea of Lis-pendens which can be more effectually and completely answered in the presence of this respondent than on his back. Similarly, the issue that the so-called lease rights in the names of the heirs of Sain Kalu had been cancelled before the alleged transfer of such rights in the name of respondent No.l by respondent No.5 would be more properly adjudicated upon and settled in the presence of defendant Ali Asghar Khan. 5. In this view of the matter, we do not find any substance in the allegations that the learned Addl:District Judge had acted without jurisdiction and lawful authority in recording the impugned judgment and order on the impleadment of respondent No.l in the aforesaid suit and dismiss this petition in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 Peshawar 87 PLJ 1991 Peshawar 87 Present: MUHAMMAD BASHIR JEHANGIRI, J Syed MUSTAFA KAMAL SHAH efc.-Petitioners versus Syed FEROZ SHAH efc.-Respondents Civil Revision Nos.170,171 and 172 of 1984, dismissed on 8.6.1991 (i) Civil Procedure Code, 1908 (V of 1908)- —O.XLI R.22—Appeal—Non-filing of cross-objections or appeal by respondents—Whether respondents can question findings—Question of— Provisions of Order XLI Rule 22 of CPC authorise respondents to support judgment of court even on basis of issues decided against them—Held: Respondents are competent to support impugned judgment even on grounds which were not decided in their favour, because there being no decree or order against them, it was not open to them to file any cross-objection or crossappeal of their own. [P.93]A PLD 1978 Lahore 1376 rel . (ii) Gift- —Offer and acceptance of gift-Proof of-Whether primary requirement of gift, i.e. offer by donor and acceptance by donees, was proved by evidence-­ Question of—It was case of petitioners in witness-box as per statement of Shaukat Ali Shah that elder brother of donees was put in possession of gifted lands—Neither this assertion was made in written statements nor Shaukat Ali Shah was examined to substantiate this claim of donees-Held: Requirement of offer and acceptance is not established. [Pp.93&94]B (iii) Gift- —Possession-Transfer of—Proof of-Whether entries in khasra Girdawari are sufficient to prove transfer of possession-Question of—Under Rule 34(4) (xvii) of West Pakistan Land Revenue Rules, 1968, donor ought to have reported to Patwaris in two villages and latter were required to have recorded in Daily Diary, impugned alteration in ownership of disputed lands-Held: Mere entries in Khasra Girdawari, of transfer of possession of disputed lands to donees, cannot be said to be either actual or constructive possession as required under law-Petitions dismissed. [P[.94&95]C&D Mian Muhammad Younis Shah, Advocate for Petitioners. Sheikh Wazir Muhammad, Advocate for Respondents. Date of hearing; 8.6.1991. judgment By virtue of this Civil Revision and Revision Petitions Nos.171/1984 and 172/1984 the donees-defendants challenged the single judgment and decree of the learned Additional District Judge, Charsadda dated 5.5.1984 whereby three appeals filed by the plaintiffs-respondents were accepted, the single judgment and decree of the learned Civil Judge 1st Class, Charsadda dated 27.4.1983 dismissing three identical suits, was set aside and the claim of the plaintiffs for the annulment of four transactions of gift of landed property in favour of the defendants and joint possession of l/4th share therein was decreed leaving the parties to bear their own costs. 2. The following pedigree-table will be helpful in understanding the facts of this case:-- 3. Syed Qaim Syed, who happened to be an Advocate by profession, was owner of considerable landed property in two villages: Akhun Dheri and Umarzai in Tehsil and now District Charsadda. He purported to make oral gift of 242 kanals 4 marlas of land situate in village Akhun Dheri and 25 kanals 9 marlas in village Umarzai in favour of his son Syed Mustafa Kamal Shah while 148 kanals 8 marlas again in village Akhun Dheri in favour of his another son Syed Abid Ali Shah. These gifts are evidenced by mutations Nos. 1303, 1305 and 1307 respectively attested on 27-5-1971, 28-8-1971 and 13-12-1971 in village Akhun Dheri and mutation No. 6602 of village Umarzai sanctioned on 25-1-1975. 4. On 25-1-1975, Syed Feroz Shah and 6 others, sons and daughters of Syed Hikmat Shah and Syed Karamat Shah, the two predeceased sons of Syed Qaim Shah donor from the first wife, filed three suits Nos. 31/1, 32/1 and 33/1 against Syed Mustafa Kamal Shah, Syed Abid Ali Shah, donees and 9 other successors-ininterest of the donor aforesaid. In these suits the plaintiffs challenged the validity of the gifts and also sought a declaration that they were co-owners of the land in dispute and assailed the validity of the gift mutations on the grounds: (1) want of acceptance by or on behalf of donees, (2) gift had been made by the donor under the undue influence of the donor's second wife (mother of the donees), (3) having been made during the death-bed illness (marzul-maut), (4) need of seision in the instant case was not satisfied on the part of the donees either actualy or constructively, (5) the gifts had been made to dis-inherit the plaintiffs and, (6) the mutations of gift had been sanctioned not in the 'Mahal' wherein the land in dispute was situated but at another village. In suit No.31/1 the plaintiffs also sought the annulment of alienation of part of the disputed land on behalf of Syed Mustafa Kamal Shah defendant which he had made to his wife Mst. Mehtab Bibi defendant by a registered dower deed dated 11-4-1972. The consequential relief of joint possession of l/4th share of the disputed land was also added. 5. The suit was resisted by the donees-defendants and Mst. Mehtab Begum, the subsequent transferee from one of the former. The donees filed their written statement denying the allegations made in the plaint. It was averred that prior to the attestation of gift mutations the donor had gifted the disputed land to the donees and had directed the tenants thereof to attorn to the donees. They further maintained that transaction of gift in then- favour was thus completed by offer, acceptance and delivery of possession. The allegation of undue influence/coercion of the mother of donees upon the donor was also refuted. 6. On these pleadings the following issues were framed.by the learned trial Court:- 1. Whether the plaintiffs have got a cause of action? 2. Whether the plaintiffs are estopped to sue? 3. Whether the suit is bad in its present form? 4. Whether the suit is bad for non joinder of necessary parties? 5. Whether the gift in question is not revocable? 6. Whether the defendants are the owners of the suit land and the gift in their favour is valid under the law? 7. Whether the impugned gift is against law and factum on the grounds mentioned in the plaint? 8. Whether the plaintiffs are entitled to a declaration that the impugned mutation is ineffective over their rights alongwith a decree and joint possession of 1/4 share out of the suit property? 9. Relief. On these issues the parties led evidence. The plaintiffs produced Muhammad Haroon Patwari Halqa, Akhun Dheri (P.W.I), (Abdur Rashid Shah Patwari in suit No.32/1) Syed Feroz Shah plaintiff No.l(P.W.2). The defendants apart from Alam Zeb Khan A.D.K. (DW.) produced Syed Mustafa Kama! Shah (PW.2). 7. The learned trial Court vide its consolidated judgment and decree dated 27-4-1983 found that the impugned gifts were not made during his death bed illness; that those gifts were not the result of undue influence or coercion of Mst. Benazira; that possession of the gifted land had been duly evidenced by the entries in khasra girdawari; that attestation of mutation 'at the village other than the village where the land is situate' is not rendered invalid. The crucial issues Nos. 5, 6, 7 and 8 were thus "decided accordingly". Unhappy wording of issue No. 5 notwithstanding, issues Nos.5 and 6 appear to have been decided in favour of the donees-defendants while issues Nos.7 and 8 against the plaintiffs and so was finding on issue No.l. It was held on issue No.2 that as the donor was dead, therefore, the plaintiffs were estopped to sue the donees-defendants. Issues Nos.3 and 4 were neither pressed nor proved. As a result of these findings the plaintiffs were non-suited with costs. 8. The plaintiffs preferred three separate appeals before the learned Additional District Judge, Charsadda. The learned appellate Court upheld all the findings of the learned trial Judge except that on delivery of possession of the gifted land by the donor to the donees which was a sine qua non for the validity of the gift but had not been proved. In consequence, 'the impugned judgment and decree of the learned trial Judge was set aside and the plaintiffs-appellants were granted the decree for declaration and also for joint possession in respect of the suit land as prayed for in the plaint against the donees-defendants leaving the parties to bear their own costs. 9. The aforementioned appellate judgments and decrees passed by the learned Additional District Judge have been called in question through these three civil revisions. Since all the three civil revisions are the outcome of single judgment and decree each of the Courts below and common guestions of fact and law are involved, these are, therefore, being disposed of by this single judgment. 10. Mian Muhammad Younas Shah, learned counsel for the petitioners, contended that the only controversy in these petitions revolves around the question as to whether gift of the disputed lands which were in occupation of the tenants had been completed. According to him, the other two constituents of a valid gift viz., the offer by the donor and the acceptance by the donees had been concurrently found by the two Courts beiow to have been proved and that, in any case, those findings having not been challenged by way of appeal or crossobjections by the respondents, cannot be assailed by them in these revisions. In support of the contention that the gift of lands in dispute which were admittedly in occupation of the tenants were completed by virtue of a direction by the donor to attorn to the donees, the learned counsel relied upon the relevant entries in the khasra girdawari and successful proceedings of ejectment brought by the donees against the tenants. In this context two salient features were highlighted: (1) that while exhibiting extracts Ex. PW. 1/1 to Ex PW. 1/5 the Patwari was not cross-examined which on the authorities of: (i) Sayed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lahore 1138), (ii) Qasim and others v. State (PLD 1967 Karachi 233) and (iii) Mst. ZarJan v. Najmun Nisa (PLD 1969 Peshawar 118) was tantamount to admitting the factum of delivery of possession: (2) On the authority of the Supreme Court in Muhammad Aslam v. Khudadad (1982 S C M R 511) presumption of truth is attached to the entries of khasra girdawari: (3) By virtue of precedent case of Shahzad Gul and another v. Ziarat Slier (PLD 1991 SC 489) kharif 1971 period of inspection of crop was from 1-5-1971 to 15-6-1971. 11. As against this, Sheikh Wazir Muhammad, learned counsel for the plaintiffs-respondents, in each of the above petitions, has argued the following points:- (7) That in suit No, 33/1 neither Syed Abid AH Shah donee nor any authorised person on his behalf appeared in support of averments in the written statement filed on his behalf. (h) That the donees instead of sticking to their defence taken up in all the three suits they set up quite different case in the witness-box. Reference was made to the statement of Syed Mustafa Kamal Shah DW.2 wherein he had alluded to a promise made by the donor to transfer the disputed lands by way of gift to the donees seven years prior thereto and that in 1971 he received a telephonic message conveying and a letter communicating offer therefor which Syed Mustafa Kamal Shah had accepted. (///) That there was neither any offer by the donor nor acceptance by the donees due to which the gift transactions were vitiated. (zv) That the assertion of DW.2 in the witness-box that Shaukat Ali Shah the elder brother of the donees was put in possession of the gifted land on behalf of Syed Mustafa Kamal Shah donee was neither set up in the written statements nor he was produced to substantiate it and that, in any case, latter's deposition read as a whole does not inspire confidence on the points of offer and acceptance and delivery of possession to the donees. (v) That possession either actual or constructive of the gifted land was not proved to have been made by the donor to the donees inasmuch as mere entries in the revenue record could not adversely affect the interest of the co-heirs nor could the petitioners discharge the onus to prove that valid transactions of gift in respect of the disputed lands had taken place in their favour. As to the evidentiary value of mutation in the revenue record reference was made to: (1) Hussain Bibi etc. vs. Nasib Begum (NLR 1988 S C J 115) and (2) Fazal Dad Khan vs. MstHazrat Jan (PLJ 1986 Peshawar 40). (vj) That change of title and possession of lands assessed to land revenue is required to be recorded in the Daily Dairy. Reference was made to Mohammad Zawar Khan vs. AddlChief Land Commissioner (1986 S C M R 1121). 12. Before dilating on the respective contentions raised on behalf of the parties in the case, it is necessary to refer to the legal position in regard to gifts of immovable property under the Muslim Law. In the case ofAmjad Khan vs. Ashraf Khan (AIR 1929 P.C. 149) their Lordships of the Judicial Committee while referring to the case of Mohammad Abdul Ghani vs. Fakhar Jahan Begum (AIR 1922 P.C. 281) reiterated the law on the point of gifts under the Muslim Law in the following paragraph:- "In order therefore to constitute a valid gift inter vivos under the Mahomedan Law applicable to this case, three conditions are necessary: (1) Manifestation of the wish to give on the part of the donor; (2) The acceptance of the donee, either impliedly or expressly, (3) The taking possession of the subject matter of the gift by the donee, either actually or constructively." 13. In support of his case the learned counsel for the petitioners also borrowed the following observations from the case of Zahuran and others vs. Abdus Salam and others (A.I.R. 1930 Oudh 71):- "Where the subject matter of the gift is only capable of constructive possession and such possession accompanies the gift must be held to be valid." There is no cavil with this proposition which has also been reiterated by a Division Bench of Karachi High Court in MirHaji Ali Ahmad Khan Talpur and 9 others vs. Government of Sind and 2 others (PLD 1976 Karachi 316). It was held therein:- "It is well known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject-matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donor should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing, for a written gift is as good as an oral one. In the case of Jamarun-nissa Bibi Vs. Hussain Bibi (1) the Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record of Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of haris may be completed by the donor asking the haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation entries effected in donee's favour in the Record of Rights. A husband making a gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisites of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let out to the tenants, or in the case of lands cultivated to haris, if the tenants or the haris are asked by the husband to attorn to his wife. In such cases, the fact that the husband continues to live in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not on his own account." 14. The objection of the learned counsel for the petitioners that the respondents, having not challenged the findings of the appellate Court on the point of validity of offer and acceptance of gifts by way of appeal or crossobjections cannot question the findings at this stage, is repelled by the provision of Order XLI rule 22 of the Civil Procedure Code. In MstJamila Begum vs. Awamun-Nass and 15 others (PLD 1978 Lahore 1376) it was held that the provisions of Order XLI, rule 22 C.P.C. authorises the respondent to support the judgment of the Court even on the basis of the issues decided against him. Respectfully following the dictum of the Lahore High Court I also hold that the answeringrespondents are competent to support the appellate judgment of the Court below even on the grounds which were not decided in their favour because there being no decree or order against them, it was not open to them to file any crossobjection or cross-appeal of their own. 15. The first question falling for determination is whether the primary requirement of offer by the donor and acceptance by the donees in the instant case was proved by the evidence adduced by the petitioners in the trial Court. Equally important is the second question to be addressed as to whether the offer and acceptance of the gifts as aforesaid was followed by the delivery of possession of the disputed lands to the donees either actually or constructively. On the point of offer and acceptance of the aforesaid gift transactions the contention of the learned counsel for the answering-respondents has every force. It was the case of the petitioners in the witness-box as deposed to by Syed Mustafa Kamal Shah DW.2 that Shaukat Ali Shah, the elder brother of the donees, was put in possession of the gifted lands. Besides, the fact that this assertion never found mention in the written statements, Shaukat Ali Shah was not examined to sub­ stantiate this claim of the donees in suits Nos.31/1 and 32/1. Even the testimony of Syed Mustafa Kamal Shah petitioner in the trial Court read as a whole leaves much to be desired for placing implicit reliance thereon. The claim of the donees that the offer of gifts of the landed property by the donor when the donees were in England and their acceptance on telephone and simultaneously by a letter is not only far from proved but even otherwise does not sound reasonable from a person of the status of Syed Qaim Shah donor who, as stated earlier, himself was a Lawyer by profession. In consequence, I am of the considered opinion that the requirement of offer and acceptance in this case is not established. 16. The reliance of the petitioners on mere entries of khasra girdawari is not well founded for two-fold reasons: Firstly, that the presumption of correctness is not attached to the entries in khasra girdawari as recently held in the precedent case of Muhammad Aslam vs. Khuda Dad (1982 S C M R 511) and: Secondly, that in the disputed cases of gift of immovable property in the occupation of the tenants as laid down in Anjuman Islamia, Muzaffargarh vs. Ashiq Hussain and another (PLD 1967 Lahore 336) may be completed by attornment by the tenants to the donees. In answer to the second ground of completion of gift as aforesaid, the learned counsel urged that the tenants in occupation of the gifted lands had been successfully ejected from the disputed lands by the petitioners and, therefore, they would not have supported the petitioners even if they had been produced. This contention is devoid of any force because this case was never set up in the trial Court by the petitioners either in the written statements or in the witness-box. Then under Rule 9.1 of the Land Records Manual, Kfiarif Girdawari starts from 1st of October while Rabi Girdawari commences from 1st of March. Looking to the relevant entries of khasra girdawari in this case it is abundantly clear that the said entries are not in accord with the dates recorded therein. 17. There is still another legal infirmity in the completion of the gift transactions of the disputed lands. Under rule 34 (4) (xvii) of the West Pakistan Land Revenue Rules, 1968, Syed Qaim Shah donor ought to have reported to and the Patwaris in the two villages were required to have but had not recorded in the daily dairy the impugned alterations in the ownership in and cultivating possession over the disputed lands in the Crop Inspection Register (register khasra girdawari). Notwithstanding the entries of oral transactions of gift, this omission on the part of Syed Qaim Shah donor, who was a practicing Lawyer of the high standing, is quite significant and noteworthy. This omission in the circumstances of this case, would certainly affect the propriety of the impugned gift transactions. This being so, mere entries in the khasra girdawari of the transfer of possession of the disputed lands to the donees cannot be said to be either actual or constructive possession of the gifted lands as required under the law. 18. In the case of Syed Abid Ali Shah (C.R.172/1984 arising out of suit No.33/1) there is still another legal flaw in the impugned transactions of gift of the lands in his favour. In his case he did not personally appear in the witness-box to support the impugned gift transaction. Instead Syed Mustafa Kamal Shah appeared as DW.2 and reiterated the case which he had set up in the witness-box in his own case. He is not shown to have been duly authorised by Syed Abid Ali Shah defendant-petitioner to pursue his case. Legally speaking, Syed Abid Ali Shah has not appeared to substantiate his case and rebut the objections raised by the plaintiffs-respondents to the impugned gift transactions. The statement of Syed Mustafa Kamal Shah in his case, therefore, is of no avail to him. The case of Syed Abid Ali Shah is thus even on the weaker wicket. 19. As a result of what has been discussed above, it is abundantly clear that in | all these gift transactions neither offer by the donor nor acceptance by the donees nor delivery of possession by the former to the latter of the disputed lands either actual or constructive has been satisfactorily proved. The finding of the learned appellate Court on the point of want of delivery of possession in pursuance of the impugned gift transactions is thus affirmed. In the circumstances, all the three civil revisions are without merit and are accordingly dismissed with costs. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1991 Peshawar 95 (DB) PLJ 1991 Peshawar 95 (DB) Present: WALI MUHAMMAD KHAN AND MAHBUB ALI KHAN, J ROSHAN KHAN and 2 others-Petitioners Versus PROVINCIAL GOVERNEMENT OF NWFP and another-Respondents Writ Petition No.89 of 1986, accepted on 11.6.1991 Pakistan Administration of Evacuee Property Act, 1957 (XII of 1957)- —S.3(l) read with Section 43(3)~Property-Declaration by Deputy Custodian as non-evacuee property before target date, i.e. 1.1.1957--Custodian declaring same as evacuee property in 1969 under sou moto revisional jurisdiction- Challenge to-Under Section 3(1) of Act, no property can be treated as evacuee property after 1.1.1957~Shops in dispute were declared as nonevacuee property by Deputy Custodian in 1954 and no appeal or revision was pending against same order-Complaint by tenant much subsequent to target date cannot be said to meet requirement of Section 3(1) of Act—Held: Custodian could not invoke suo moto revisional jurisdiction under Section 43(4) of Act and pass an order with regard to such property-Petition accepted. [Pp.lOO,101&102]A,B&C Qazi Abdur Rashid, Advocate for Petitioners. Kh. Nazir Ahmad, Advocate for Respondents. Date of hearing: 12.3.1991. judgment Mahbub AJi Khan, J.--In this petition moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, M/S Roshan Khan, Haibat Khan and Hakam Khan sons of Bostan Khan Swati of Mansehra have asked for the issuance of an appropriate order; (a) that the two shops shown in the post settlement revenue record of Mansehra Urban by fields No.255 and 256, corresponding to the pre-settlement record of Mansehra Urban by Khasra No.3097/1006 and entered in the Custodian record as shops No.206/c and 207/c are the ancestral property of the petitioners since the life time of their grand father named Amir Khan son of Mir Baz Khan and (b) the order of Custodian, Evacuee Property, West Pakistan camp at Peshawar dated 1.10.1969 passed in suo-moto revision petition No.38 of 1963 is void and ineffective against the aforesaid rights of ownership of the petitioners with regard to the said shops. 2. The facts relating to the property in dispute as available on the case file are as under:- In the land Settlement of 1872 this property had been shown by khasra No.703 in "Mahal-Mansehra" followed by the second settlement of 1904-05 (copy Annexure-A) wherein the suit property measuring 18 marlas was given khasra No.1006 and in the settlement record of 1946-47 by many khasra numbers including 255 and 256 measuring 4 1/2 marlas. The Shamilat land of village Mansehra, measuring 1069 kanals 12 marlas (including khasra No.1006 of the two shops, measuring 18 marlas as recorded in Annexure-A) had been divided into khewats/khatas of the village proprietors including khewat No.87 owned by Amir Khan s/o Mir Baz Khan as shown in Annexure-B. In the Jamabandi of 1907/08 Amir Khan is recorded in exclusive possession of 10 marlas out of 18 marlas in khasra No.1006 which was converted into arable 'bar? from non-arable 'Banjar- Qadeem'. Field No.1006 however remained recorded as 'Shamilat-Deh' and in possession of the said Amir Khan as hissadar owner in the next following jamabandis of 1911-12 and 1915-16 (copies annexures D & E). On the foot of mutation No.3342 partition of the entire 'Shamilat-deh' took place on court order (Annexure-F) and a portion of khasra No.1006 measuring 9 marlas was re-named by khasra No.397/1006 and made Shamilat of 'Tarf Faiz Talab' of village Mansehra. It however remained in 'hissadari' possession of the petitioners' aforesaid grand father named Amir Khan. These entries had been followed in the succeeding jamabandis of 1924/25, 1930/31, 1938/39, 1940/41 (copies annexures G, H, J & K). In the settlement record of 1946-47 of Mansehra Urban, c6py Annexure 'L', khasra No.397/1006 had been represented by two new khasras viz; No.256 measuring 63 square yards, 5 square feet equal to two marlas and 255 measuring 71 square yard; 5 square feet equal to 2 marlas and recorded hi the 'hissadari' possession of Bostan Khan. The inheritance of Amu: Khan had devolved on Bostan Khan vide mutation No.9772 dated 4.4.1939 (copy annexure- M). The pedigree-table of Bostan Khan as recorded in the Land Settlement of 1946-47 in Shamilat of 'Taraf Faiz Talab' is Annexure 'N'. Amar Nath etc Hindus were recorded as tenants of the two shops shown by khasra Nos.255 and 256 without payment of any rent being purchasers. 3. In the year 1952 Bostan Khan moved a claim (No.103 of 1952) under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, i.e., Ordinance No.XV of 1949 before the Deputy Custodian, Hazara for a declaration that the two shops mentioned in khasra Nos.255 and 256 were not evacuee property. The Deputy Custodian vide his order, dated 22.5.1954 (copy annexure 'o') gave the desired declaration and decided that the shops in question were non-evacuee property. Consequently, the Deputy Rehabilitation Commissioner, Hazara in order, dated 29.4.1974 (copy annexure-P) made a direction to the allottees of shops No.206/C and 207/C (in view of the aforesaid decision of the Deputy Custodian, Hazara dated 22.6.1954) that they should make future payment of rent of the two shops to the owner named Bostan Khan. Thereafter in the year 1955 Bostan Khan instituted suit No.588/1 on 24.10.1955 for the ejectment of tenant Mohammad Ilyas from shop No.207/C. This suit ended in compromise on 16.1.1956 in the Court of sub-Judge, Mansehra whereby Mohammad Ilyas agreed to vacate the said shop in favour of Bostan Khan. Subsequently in the year 1957 one Nasir Khan s/o Sara Khan filed a complaint on 20.7.1957 under section 33 of Pakistan , Administration of Evacuee Property Act, 1957 before the Deputy Costodan of Evacuee Property, Peshawar (No.142 of 1957) which was dismissed on 14.6.1960 for want of prosecution. 4. The Custodian of Evacuee Property subsequently in revision petition (suo-moto) No.38 of 1963 set aside an order dated 26.4.1960 of Deputy Custodian Evacuee Property, Peshawar and in consequence thereof held in his order dated 1.10.1969 (copy Annexure-R), that the two shops bearing No.206/C and 207/C were evacuee property. Against the said order of the Custodian Bostan Khan filed a revision petition before this Court on 13.12.1970 which remained pending before the High Court for a period of about 15 years as the record/files relating to the order of the Deputy Custodian, Peshawar dated 26.4.1960 (as mentioned in the Custodian's judgment dated 1.10.1969 annexure-R) and of suo-moto revision petition No.38 of 1963 could not be made available inspite of every effort made by the office of the Registrar High Court. The Revision petition was ultimately withdrawn on 28.1.1986 by order of the Court with permission to file a writ petition in the cause. Bostan Khan had died in the meanwhile. The instant constitutional petition (No.89 of 1986) was therafter filed in this Court by his sons Roshan Khan etc for declaring the said order of the Custodian Evacuee Property, dated 1.10.1969 as without lawful authority and of no legal effect. 5. We have heard at length Qazi Abdur Rashid, Advocate on behalf of the petitioners and Khawaja Nazir Ahmad, Advocate for the respondents. 6. The chequered history of the suit property which dates back to the Land Settlement of 1872 shows, that initially it formed a part of Shamilat of village Mansehra measuring 1069 kanals 12 marlas in toto which had been lateron divided in the year 1915-16 on Court order and fell into hissadari possession of Amu- Khan s/o Mir Baz Khan the grand father of the petitioners. Amir Khan remained in possession thereof as such during his life tune. He had died some where in the year 1939 and was succeeded by his son Bostan Khan who became hi hissadari possession of this property on the foot of inheritance mutation No.9772 dated 4.4.1939. As in the settlement record of 1946-47 (annexure-L) the names of Amar Nath etc Hindus had appeared in the cultivation column as tenants without payment of rent being vendees, the petitioners' father, namely, Bostan Khan in the year 1952 moved an application under section 18 of Ordinance No.XV of 1949 before the Deputy Custodian Evacuee Property, Hazara District for a declaration that the shops in question were owned by him and it was not evacuee property. Mohammad Ilyas etc including Amar Nath and others were made respondents in this petition which was registered as case No.103 of 1952 (annexure-0). A notice was issued to Rehabilitation Department by the Deputy Custodian but no body appeared on behalf of the Department to contest the petition excepting a "written-note" sent to the Court on 18.5.1954 by an Assistant Rehabilitation Comissioner, that the shops in question being evacuee property of the non-muslims were properly allotted to the then occupants under the Pakistan Rehabilitation Ordinance, 1948. The learned Deputy Custodian after recording evidence in the matter came to the conclusion by his judgment dated 22.6.1954, that the Hindus were only 'karaya dors' in the shops in question and had no title/right or interest in this property. He at the same time declared the property as non-evacuee. The applicant could not be, however, given possession of the shops in view of the bar placed by section 19 (a) of Ordinance XV of 1949 as the property by that time had been made subject of an allotment order under the Pakistan Rehabilitation Ordinance, 1948. The Deputy Rehabilitation Commissioner, Hazara on the strength of the aforesaid order passed by the Deputy Custodian, in his letter dated 2210-13/ARC/20 dated 29.7.1954 (annexure-P) directed the tenants to make payment of rent of the said shops to the owner Bostan Khan in future. Mohammad Ilyas tenant of shop No.207/C thereafter in the year 1957 filed a complaint under section 18 of Act XII of 1957 before the Deputy Custodian, Evacuee Property, Peshawar on 20.7.1957 against Bostan Khan, that the decision obtained by him in case No.103 of 1952 from the Court of Deputy Custodian Hazara on 20.6.1954 in respect of the suit shops was based on fraud and collusion and Bostan Khan was, therefore, liable for punishment under section 33 of the Act. He further contended that the shops had been sold in favour of Amar Nath and Hans Raj sons of Gokal Chand Hindu on the basis of registered deed, dated 2.7.1934 and were thus evacuee property. This complaint was registered as Miscellaneous Revenue file No.141 of 1957. It remained pending before the Deputy Custodian Evacuee Property for about three years and was decided on 14.6.1960 with the following order:- "Respondent is present whose statement was recorded. The D.R.C. is neither turned up personally nor sent any representation inspite of service of notice. The pltff. has already withdrawn this application. No further action appears necessary especially in view of the fact that the Rehabilitation Authorities have no objection against the title of the respondent. The case shall, therefore, be consigned to record room. 6. Thereafter in the year 1963 the Custodian Evacuee Property, West Pakistan at camp Peshawar again re-opened the matter on a complaint against Bostan Khan by invoking his suo-moto revisional powers conferred by sub-section (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, i.e., Act XII of 1957. Bostan Khan on a show cause notice appeared before the Custodian and contested the complaint. The allegations made against him were, "that the two shops in dispute belonged to K.B.Mohammad Hassain Khan who had sold the same to Amar Nath, Hans Raj through two registered sale deeds dated 27.8.1934 and 29.6.1934 for a sum of Rs.12,000/-. The sale transactions were given effect to in the relevant record and the non-muslims vendees remained in possession thereof as owners till they migrated to India during the communal disturbances of 1947. Bostan Khan respondent with the connivance of Patwari concerned got his name entered in the revenue record as share holder with Amar Nath and Hans Raj evacuees and subsequently secured a declaration from the Deputy Custodian, Peshawar on the 26th of April, 1960 that the said two shops were not evacuee property and belonged to him." 7. The learned Custodian did not agree with the contention raised on behalf of Bostan Khan, that he was a co-sharer in the joint khata and the shops sold by K.B. Mohammad Hussain Khan were different from those claimed to be owned by this person. In the view held by the learned Custodian, the land over which the shops in dispute were erected had been shown in the revenue record in the ownership of the descendants of 'Faiz Talab Khan' to the extent of 2/3rd share and other owners to the extent of remaining l/3rd share. The Custodian further observed that Bostan Khan inherited the property of his late father Amir Khan through mutation No.9772 sanctioned on the 22nd April, 1939 and it was strange that his name could not be mentioned in the subsequent jamabandi of 1940-41 which for the first time appeared hi the jamabandi of 1948-49 after the migration of the non-muslims. That the respondent had also failed to establish that shops sold by K.B, Mohammad Hussain Khan were different from those claimed by him. That he had not produced any copy of sale deed through which the shops were sold. In this view of the matter the learned Custodian having been not convinced with the claim of Bostan Khan held, that he had secured a non-evacuee declaration from the Deputy Custodian Evacuee Property, Peshawar on the 26 th April, 1960 on the basis of misrepresentation and concealment of facts. He, therefore, vide his judgment and order dated 1.10.1969 set aside the said declaration and held that the property in dispute was an avacuee property which had since become a part of the Evacuee Pool. The Settlement and Rehabilitation Authorities were, therefore, directed to dispose it of in accordance with the settlement law and procedure. This order was impugned by Bostan Khan before the High Court in the revision petition No. 2 of 1970 and subsequently by his sucessors-in-interest, i.e., the present petitioners in this writ petition. 8. Amir Khan and after him his son Bostan Khan were undoubtedly co- sharers of the Shamilat land on a part of which the present property had been constructed. They had remained in possession of the site under-neath the suit shops as hissadars for quite some years before Amar Nath etc were recorded in possession of these shops in the settlement jamabandi of 1947-48 as 'karaya damn'. They did not, however, make payment of any rent being purchasers of the property. Admittedly there is no sale document in favour of the said Amar Nath etc by the aforesaid predecessors-in-interest of the petitioners. The two registered sale deeds mentioned in the judgment of the Custodian, dated 29-6-1934 and 27-8- 1934 had been executed by K.B.Muhammad Hussain Khan. A perusal of the sale deed, dated 29-6-1934 registered on 2-7-1934 (copy placed on the record of case file No.141 of 1965 at page 15, titled Nasir Khan v. Hans Raj etc) shows, that the property which is a pacca built shop with katcha 'teh-khana', consisting of three rooms (poor) had been sold by the said Muhammad Hussain Khan to Amar Nath and Hans Raj sons of Gokal Chand. This property was previously mortgaged with one Deena Nath Hindu for Rs. 3200/-. The shop mentioned in this document is described by boundaries and it is not certain that the subject-matter involved in the aforesaid registered sale deed was the present two shops in dispute. The witnesses examined by the Custodian were at variance on this issue as their statements show. It is strange that the Custodian had found fault (In his judgment dated 1-10-1960 Annexure-R) with Bostan Khan for not producing copies of sale deeds through which the shops were sold. The two registered sale deeds referred in his judgment dated the 27th August, 1934 and 29th June, 1934 had been allegedly executed by K.B. Muhammad Husain Khan in favour of Amar Nath etc and Bostan Khan or his father Amir Khan for that purpose being not a party to the said documents and the transaction involved therein, how could Bostan Khan be expected to possess these deeds in his possession or to produce them before the Custodian during the proceedings aforesaid. The registered sale deed (copy placed on the case file No. 141 of 1957 at page 15) as mentioned before had been written on 29-6-1934 and registered on 2-7-1934, meaning thereby, that it is a different deed than the two described by the Custodian in page 2 of his judgment (Annexure-R). It was for the complainant of the aforesaid petition to have proved that the shops sold by K.B. Muhammad Hussain Khan were the very which are now in dispute. The learned Custodian had thus wrongly placed onus on the shoulders of Bostan Khan by making an observation that the respondent had failed to establish that the shops sold by K.B.Muhammad Hussain Khan were different from those claimed by him. Similarly no inference could be drawn against Bostan Khan on this plea, that although inheritance mutation of Amu- Khan bearing No. 9772 had been sanctioned on the 22nd April, 1939 but the name of Bostan Khan could not be mentioned in the subsequent jamabandi of 1940-41 and it for the first time appeared in the jamabandi of 1946-47 after the migration of the non-muslims. This legal proposition escaped from the notice of the learned Custodian that the moment Amir Khan breathed his last the property devolved on his son notwithstanding the fact that when an inheritance mutation was subsequently entered and attested or given effects in the revenue papers. 9. Section 3 (1) of Act XII of 1957 states that, "no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date". Sub-section (2) provides, that nothing in sub­ section (1) shall apply (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property". 10. After obtaining a decision by Bostan Khan in case No. 103 of 1952 from the Court of Deputy Custodian Hazara on 22-6-1954 the Deputy Rehabilitation Commissioner, Hazara in his letter dated 29-7-1954 (annexure-P) directed Muhammad Ilyas etc occupants of the two shops to accept the ownership of Bostan Khan and make payment of rent to the said owner in future, meaning thereby, that subsequent to the decision of case No. 103 of 1954 by the Deputy Custodian on 22-6-1954 the shops in question were never treated as evacuee property and this was admittedly much before the crucial date, i.e., the 1st day of January, 1957 as envisaged in section 3 (1) of the Act ibid. Similarly, no action had commenced against Bostan Khan in appeal or revision in respect of the suit property after the aforesaid decision made by the Deputy Custodian nor such proceedings were pending before any forum immediately before 1-1-1957 as required by section 3(2) (a) of this Act. It is true that in the Settlement record of 1947-48 Hans Raj etc were recorded in occupation of these shops as 'Karaya daran' (in the cultivation column) without payment of rent being purchasers of the property, but mere entries made in the revenue papers showing the said evacueesowners of the property through purchase cannot be made basis for holding that the property had been "treated" as evacuee within the meaning of section 3(1) of Act XII of 1957 which requires that the treating of property as evacuee must be by a competent authority, i.e. by Custodian or Rehabilitation Department. It was almost after the lapse of three years from the final decision of the Deputy Custodian recorded in case No.103 of 1952 on 22-6-1954, that Nasir Khan filed a complaint under section 33 of Act XII of 1957 against Bostan Khan etc on 20-7- 1957 before the Deputy Custodian Evacuee Property, Peshawar (Annexure-Q) which too was subsequently withdrawn and dismissed as such on 14-6-1960. The filing of this complaint on a much subsequent date than mentioned in section 3(1) of the Act ibid cannot be said to meet the requirement of sub-section (2)(l)(a) of section 3 of the Act, as no such proceedings were pending immediately before 1-1- 1957 for treating these shops as evacuee property. The learned Custodian in this view of the matter could not take this case in suo-moto revision under section! 43(4) of Act XII of 1957 and make a decision thereupon as he did on 1-10-1969 in: the revision petition No. 38 of 1963 by setting aside the order of the Deputy Custodian Evacuee Property, Peshawar dated 26th April, 1960 (as mentioned in his judgment) which in fact was pronounced on 14-6-1960. The impugned order of the Custodian is not only incorrect about the actual date of decision by the Deputy Custodian Evacuee Property, Peshawar of miscellaneous Revenue case No. 141 of 1957 which was 14-6-1960 but there is also no mention in his judgment about the fate of the order passed by the Deputy Custodian, Hazara under section 18 of Ordinance No. XV of 1949 in case No. 103 of 1952 on 22-6-1954 wherein the suit shops had been declared non-evacuee property and in the ownership of Bostan Khan in his own rights. As the suit shops had been declared non-evacuee property on 22-6-1954 by the Deputy Custodian, Hazara and no further proceedings in respect of this property were thereafter pending before any forum immediately before the relevant date, i.e., 1-1-1957 as mentioned in section 3 of Act XII of 1957, the Custodian could not afterwards in the year 1963 invoke his suo-moto revisional jurisdiction under section 43(4) of the Act ibid and pass an order with regard to such property. The learned counsel for the petitioners in this view of the matter has rightly placed reliance on the following precedent cases: - (a) Syed All Iqtidar Shah Dora and 6 others v. The Custodian, Evacuee Property, West Pakistan, Lahore , (P.L.D. 1972 Lahore 798.) (b) Abdul Khaliq-Abdur Razaq v. Kishen Chand and and others. (P.L.D. 1964 S.C. 74) 11. After the impugned decision of the Custodian hi suo-moto revision case under section 43(4) of Act, 1957 on 1-10-1969, Bostan Khan moved a revision petition under section 43(a) of Act XII of 1957 before this Court on 13-12-1970 which was registered as Civil Revision No. 2 of 1970. This petition was admitted to full hearing on 20-1-1970 by a Division Bench. The petition thereafter remained pending with the Court upto the year 1986 for want of relevant record from the Custodian office which could not be made evailable inspite of strenuous efforts made by the petitioner and the office of the Registrar. Ultimately on 28-1-1986 the petition was withdrawn on technical grounds with permission of the court to file a writ petition in the cause. In the meanwhile Bostan Khan died. The instant writ petition was afterwards filed by Roshan Khan etc his sons on 31-12-1986. Throughout this period of about 15 years Bostan Khan himself and after his death his sons had been genuinely prosecuting the claim before the High Court and the case could not be disposed of as the relevant record pertaining to the revision petition from the office of the Custodian could not be procured. Sufficient correspondence had been made by the office of the Registrar of this Court with the quarters concerned which is on record and there is no allegation that the petitioners had any doing in the delay so caused or the record was withheld by the concerned authorities in collusion with them. The bonafides of the petitioners could be adjudged by this fact, that their father Bostan Khan had been pleading the cause right from the year 1952 and contesting throughout his claim before every competent forum. In this back ground of the case we notice, that the petitioners had not been guilty of any purposeful laches at any stage of the litigation with regard to the property in dispute or abandonment of their claim in respect thereof. 12. Khawaja Nazir Ahmad, Advocate the learned counsel for the respondents at the end desired, that the case may be sent back to an officer notified under section 2 of Act XII of 1975 for decision afresh as the learned Custodian in his judgment, dated 1-10-1969 (recorded under section 43(4) of Act XII of 1957 in suo-moto revision petition No. 38 of 1963) did not set aside the order of the Deputy Custodian, Evacuee Property, Peshawar passed on 14-6-1960 (Annexure- Q) and the order of Deputy Custodian, Hazara recorded in case No. 103 of 1952 on 20-6-1954 under section 18 of Ordinance No. XV of 1949. That the Custodian in his impugned judgment has set aside an order allegedly passed by the Deputy Custodian Evacuee Property, Peshawar on 26-4-1960 which never existed. It is correct that the judgment of the learned Custodian suffers from these patent defects but as we have held before (hi paras No. 9 and 10 of this judgment) that the suit shops had not been "treated" as evacuee property before the 1st day of January, 1957 and no action was hi the offing or proceedings pending immediately before the said date for treating such property as evacuee within the meaning of section 3(1) and 2(l)(a) of Act XII of 1957, the learned Custodian had therefore no jurisdiction to reopen this matter hi suo-moto revision under section 43(4) of the Act ibid and make a decision thereupon, remitting of the case back to the lower forum for the purpose aforesaid after almost two decades shall be as such of no use. 13. In this view of the matter which we take, the instant writ petition shall succeed with consequence that the impugned order passed by the learned Custodian in suo-moto revision petition No. 38 of 1963 on 1-10-1969 with regard to the shops in dispute is declared without lawful authority and of no legal effect. We shall not make any order as to costs in view of the peculiar circumstances of the case. (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 Peshawar 103 PLJ 1991 Peshawar 103 Present: muhammad bashir khan jehangiri, J Mst. BAKHTAWARA and others-Petitioners versus Mst. AMIRZADGAI-Respondent Civil Revision No. 260 of 1989, accepted on 30.3.1991 Civil Procedure Code, 1908 (V of 1908)-- —O.VI R. 17—Possession by redemption—Suit for—Amendment of plaint-Prayer for--Objections that suit was not maintainable hi present form and application for amendment has been moved at a belated stage-Held: Once court decides that amendment is necessary for determination of real question, court is required by law not only to allow application for amendment but is also bound to direct amendment for said purpose subject to condition that cause of action does not change main substance and nature of suit-Held further: In this case, if amendment is allowed, facts on which plaintiffpetitioner relied at time of filing of plaint, would not undergo any substantial change except for technical variations and changes-Amendment allowed. fP.108]A,B&C PLJ 1985 SC 525 rel. Mian Hisamuddin, Advocate for Petitioners. Mr. M. Zahoor Qureshi, Advocate for Respondent Date of hearing: 30.3.1991. judgment This revision petition is directed against the appci'ate judgment and decree passed by the learned Additional District Judge, Mardan, on 18-6-1989 reversing the judgment and decree of the learned Civil Judge First Class, Mardan, dated 6-6-1988, who had dismissed the suit of the petitioner >. 2. Brief facts forming the background of the dispute are that Mst. Amirzadgai, plaintiff-petitioner brought a suit against Mst. Bakhtawara and 10 others defendants-respondents for possession by redemption of the land described in paragraphs Alif, Bay, Jeem, Dal and Rey of (.he heading of the plaint and situated in village Sawaldher, Tehsil and District, Vardm. It was averred in the plaint that the plaintiff by mutation No. 3668 dated 22-11-1949 had mortgaged the suit land to Baharuddin, predecessor-in-interest ol defendants Nos 1 to 5. The mortgage being usufructuary, the defendants were approached for redemption of the land on receipt of mortgage charge but they declined to do so and hence the suit. Defendants Nos. 1 to 5 in their joint written statement contested the plaintiffs claim. It was pleaded that plaintiff was devoid of cause of action; that the suit was barred by time; that plaintiff was estopped to sue the defendants; that the suit was barred as res judicata and; that defendants had improved the suit land and in case of decree they were entitled to compensation therefor. On merits, the averments in the plaint were denied. It was alleged that the land in suit had not been mortgaged to the defendants but had in fact been '-.old to them. The mutation of mortgage, according to them, had been fraudulently attested. The pleadings of the parties thus raised were reduced into the folios-ing issues:- (1) Whether the plaintiff has a cause of action? (2) Whether the suit is within time? (3) Whether plaintiff is estopped to bring the present suit? (4) Whether the suit is hit by the principle of res judicatal (5) Whether the defendants have made improvements over the suit land, if so, to what extent and to what effect? (6) Whether the plaintiff is entitled to the decree for possession as prayed for? (7) Relief. 3. The learned trial Judge found issues Nos. 1 and 6 against the plaintiff and so were issues Nos. 3 and 4. On issue No. 2 it was, however, held that the suit was within time. Issue No. 5 was held against the defendants. As a result of findings on issues Nos. 1 and 6, the suit was dismissed on 6-6-1988. Feeling aggrieved, Mst. Amirzadgai, plaintiff, filed an appeal which was accepted by the learned Additional District Judge, on 18-6-1989, who, while affirming the findings of the trial Judge that relationship of mortgagor and mortgagees did not exist between the parties, outrightly decreed the suit for possession of the land under what he described 'the inherent powers of the Court". It would be worthwhile to reproduce hereunder the concluding part of the impugned appellate judgment: - "This decree has been passed to avoid further litigation between the parties, for the matter of possession and their rights in the suit property have been determined by giving full opportunities to the parties to produce evidence for and against above proposition. The matter of improvements has also been decided against the defendants and as there is no appeal neither any evidence with regard to improvements, therefore, the findings of the learned lower Court are confirmed." 4. The perusal of the record would reveal that it came to surface in evidence that the suit land belonged to Qudrat Ali who, by mutation No. 3668 attested on 22-12-1949, had mortgaged it to Baharuddin, predecessor-in-interest of defendants Nos. 1 to 5. It appears that Qudrat Ali, by virtue of mutation No. 4067 dated 13-12-1953 redeemed this land from Baharuddin and then sold it to the latter the same day by mutation No. 4068. It was perhaps on this premise that defendants Nos. 1 to 5 have denied the existence of relationship of mortgagor and mortgagees between the parties and also asserted their title to the land. In any case, the sale by Qudrat Ali to Baharuddin was successfully pre-emtped by Mst. Amirzadgai and Mst. Bakhtawara It may further be noticed that it is not pleadings of the parties but from the evidence in witness-box it transpired that in pursuance of partition between the plaintiff-petitioners on the one hand and defendantrespondent No. 1 on the other hand the land in dispute had fallen to the share of the former. In the entries of the Revenue Record, however, the defendantsrespondents Nos. 1 to 5 are recorded in the column of rent somewhere 'Bila- Lagan Bawajah-e-Bay" while in others as "Bila-Lagan Bawajah-e-Rehan and Hissadari.' The observation of the learned Appellate Court that "the defendantsrespondents Nos. 1 to 5 have also not disputed the claim of the plaintiff for possession on the basis of being an owner", is not supported from the record. 5. First of all, I would address myself to the validity of the possessory relief granted by the learned Appellate Court on the consideration of the evidence adduced by the parties without regard being had to the pleadings of the parties. I am aware of the broad proposition that a Court is empowered to grant all such reliefs as the justice of the case may demand. In Muhammad Yaqoob v. Muhammad Ishaque 1980 C L C 2056 Zafar Hussain Mirza, J., as his Lordship then was, while propounding the proposition circumscribed this power of the Court by certain considerations which have been highlighted in the following observations:- "The general rule is that no relief can be granted upon facts and documents not disclosed in the pleadings nor dealt with by the issues or evidence in the case and which the other side was not called upon or had no opportunity to meet. It has also been held that where the plaintiff asks for a particular relief on a specific ground, he cannot be granted the same relief on a different ground which is not at all disclosed in the plaint. The other limitation on the power of the Court in this behalf is that altered relief can be granted on other grounds only if such other grounds are not inconsistent with the case of the plaintiff as set out in his pleadings and would not lead to determination of the issues which would embarrass the defendant. Clearly, therefore, it is not open to the Court to grant relief to the plaintiff on a different cause of action and on a plea for which there is no foundation in the pleadings. In Shiramani Gurdwara v. Prem Das (AIR 1933 Lah. 25) the plaintiff had sued on the basis of ownership and possession and no claim for title on adverse possession was pleaded. The Court refused to grant relief on the basis of adverse possession as the defendants had no opportunity of meeting this claim". 6. Applying the aforesaid principles to the facts of this case it appears to me that the plaintiff-appellant is not entitled to decree in the manner it has been passed. In the first place the learned Additional District Judge had reversed the findings of the learned trial Judge. Secondly the learned trial Judge held that the plaintiff-appellant was entitled to the possessory relief not on the ground of redemption of the mortgage but on the evidence that had emerged during the trial. Such a case was wholly inconsistent with the pleadings of the parties particularly those urged in the plaint and as further held in the case of Muhammad Yaqoob cited above, would amount to setting up a new case which will result in depriving the defendants-petitioners herein of opportunity of meeting the plea of existence of a partial success of the plaintiff-respondent's suit for possession by pre-emption as also of Mst. Bakhtawara petitioner No.l; and subsequent partition as a result of which the suit land fell to the share of the plaintiff-respondent. It is possible to conceive of various pleas in defence of these assertions if they are ever raised in the plaint. I, therefore, not only disapprove the manner in which the learned Additional District Judge has proceeded to upset the findings of the trial Judge and granted the possessory relief "in exercise of his inherent powers" but I am constrained to set aside these findings. Faced with this situation, the learned counsel for the petitioners moved an application under Order VI, rule 17, C.P.C. for amendment of the plaint "so as to file suit in proper form with the addition of alternative relief of possession of entire or part of the suit land and also for correction of entries of Jamabandis from the year 1961-62 to 1978-79 and for omission of the entries showing the mortgage of the suit land." This application has been strenuously resisted by defendants-respondents. 7. The learned counsel for the petitioners contended that the amendment which has been sought would not alter the nature of the suit and that it was only the form of suit that would be changed, in that, the relief claimed would be for possessory relief with regard to the land in suit in its entirety or partially and also for correction of the entries of the Revenue Record from the Jamabandis for the period from 1925-26 to 1969-1970 and for omission of the entries therein qua the subsistence of mortgage thereof. It was next contended that amendments of pleadings had even been allowed by the august Supreme Court. In this regard he relied on: Keramat AH and another v. Muhammad Yunus All and another (PLD 1963 SC 191), Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106), Messrs East-End Exports v. The Chief Controller of Imports and Exports and another (PLD 1965 SC 605), Lahore Improvement Trust v. The Custodian, Evacuee Property and others (PLD 1971 SC 811), Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220) and Ghulam Hussain v. Zahoor Din and others (PLD 1980 SC 146). 8. As against this, the learned counsel for the respondents argued that notwithstanding a preliminary objection raised in the written statement, the petitioners had ignored to seek amendment. It was further contended that the application for amendment having been made at a very belated stage should be disallowed. The case law cited at the bar by the leaned counsel for the petitioners has been fully dicussed in the latest judgment of the Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa KJian and others PLJ 1985 SC 525. In Ghulam Bibi's case, a suit was filed by one Muhammad Aslam, seeking a declaration that he was owner in possession of land described therein and for injunction to restrain the respondents from interfering with his possession. The respondent therein, inter alia, pleaded that such a suit for declaration and injuction was not maintainable in its present from which plea was reflected in the issue as to 'whether the suit was not maintainable in its present form'? The trial Court decided the issue against the respondents and decreed the suit. The respondents went in appeal and succeeded in the Appellate Court which held that the appellant should have filed a suit for specific performance of the agreement and not a declaratory suit and thus reversed the findings of the trial Judge on the issue reproduced above and held ihe suit not to be maintainable in the form in which it had been filed. In second appeal an application was filed to amend the plaint, but it was rejected by the High Court on the ground that it was a belated request and if allowed it would cause injustice and injury to the opposite-party particularly in the context that an objection was taken in the written statement but no step was taken to rectify it. Their Lordships of the Supreme Court were pleased to accept the appeal and in consequence while setting aside the judgment of the High Court allowed the application for amendment of the plaint subject to payment of costs. 10. The facts of the case in hand as is evident from the above narration, are idemical with the case of Mst. Ghulam Bibi. The two objections raised in that case too that the suit was not maintainable in the present from and the application for amendment had been moved at a belated stage were repelled by the august Supreme Court. Respectfully following the principles enunciated in the case of Mst. Ghulam Bibi by the Supreme Court, I hold that once the Court decides that the amendment is necessary for the purpose of determining the real question as required under Order VI, rule 17, C.P.C., the Court is required by law not only to allow an application for amendment made by a party in that behalf but is also bound to direct the amendment for the said purpose. This proposition is, however, subject to the condition that the cause of action does not change the main substance and nature of the suit. 11. In the present case, as stated in the application for amendment, the facts on which the plaintiffs-petitioners relied when filing the plaint would not undergo any substantial change except for technical variations and changes. The denial of relationship of mortgagor and mortgagees raised by the defendants and the averments in the pleadings regarding possession etc. would remain the same. 12. In the light of the above discussion, this petition in revision is allowed and the impugned judgment is set aside. The application made by the petitioners for amendment of their plaint on 27-3-1991 is allowed subject to payment of Rs. 500 as costs of amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendants shall also, if they so request, be allowed a proper opportunity to amend their written statement. The office is directed to immediately remit the record of the case to the Court concerned (MBC) (Approved for reporting) Petition accepted.

PLJ 1991 SC (AJK) 1 PLJ 1991 SC (AJK) 1 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J MUHAMMAD ASLAM KHILJI-Appellant versus AZAD GOVT. OF JAMMU & KASHMIR and another-Respondents Civil Appeal No. 27 of 1988, accepted on 17.11.1990. [On appeal from judgment and decree of Service Tribunal, dated 31.10.1987, in Appeal No 330 of 1986] (i) Azad Jammu & Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 1980-- ---R. 6--Extra Assistant Commissioners-Promotion to post of Assistant Commissioner—Whether appellant was not entitled to promotion—Question of-It is nowhere provided in these Rules that an Extra Assistant Commissioner must have been confirmed after having passed required examination before he could be appointed as Assistant Commissioner-Rule 6 mentions only two qualifications for induction into Management Group, namely being a graduate and production of character certificate-Held: There is nothing in Rules which may lead to conclusion that appellant was not eligible for promotion as Assistant Commissioner on relevant date as held by Tribunal. [Pp.5&6]B (ii) Promotion— —Extra Assistant Commissioners—Promotion to post of Assistant Commissioner—Non-consideration of appellant—Effect of—Fact that appellant was eligible to become Assistant Commissioner did not necessarily mean that he must have been promoted as such-But fact that he was eligible did create a right in him to be considered by Selection Board-Held: By denying this right, a wrong was done to him and it should have been undone by Service Tribunal which it failed to do-Appeal accepted. [Pp.6&7]C,D&E 1984PLC(C.S)8re/. (iii) Promotion— —Extra Assistant Commissioners—Promotion to post of Assistant Commissioner—Whether name of appellant was considered—Question of— Relevant file of Services and General Administration Department contains a copy of working paper sent to Selection Board which shows that case of appellant was not placed before Selection Board for consideration—Held: It is concluded that case of appellant was not sent for consideration by S&GAD and consequently Selection Board did not examine fitness or otherwise of appellant. [Pp.4&5]A Cli. Muhammad Ibrahim Zia, Advocate for Appellant. Mr. Manzoor Hussain Gillani, Advocate for Respondent No.l. M/s Rafiqiie Mahmood and Abdul Rashid Abbasi, Advocates for Respondent No.2 Date of hearing: 10.10.1990. judgment Basharat Ahmad Shaikh, J.-Appellant Muhammad Aslam Khilji and respondent Abdul Haq Abbasi were initially serving in the Revenue Department. The appellant, Muhammad Aslam Khilji, became a Tehsildar on llth of February, 1974, while respondent Abdul Haq Abbasi became Tehsildar on 16th of May 1974. Later on Muhammad Aslam Khilji was promoted as Revenue Assistant prior in time as compared to Abdul Haq Abbasi and it is now clear that appellant Aslam Khilji was senior to respondent Abdul Haq Abbasi. Both of them were working as Revenue Assistants when on 2.12.1980 the President of A/.ad Jammu and Kashmir , in exercise of powers under Section 23 of the Civil Servants Act, framed the Azad Jammu and Kashmir Extra Assi. ant Commissioners (Recruitment and Promotion) Rules 1980 in order to regulate the recruitment and promotion of Extra Assistant Commissioners and prescribing their conditions of service. By these Rules the cadre of Extra Assistant Commissioners was constituted and the posts of Revenue Assistants were re­ named as Extra Assistant Commissioners and it was provided in rule 15 that all officers substantively holding the posts of Revenue Assistant on the date of coming into force of these rules shall be deemed to have been appointed as Extra Assistant Commissioners under these rules subject to certain conditions. One of such conditions was that if an officer had not completed his period of probation he was required to complete it. The other condition was that the officers who were deemed to have been appointed under these Rules were to complete successfully the training programme and pass the departmental examination as was prescribed in Punjab for the post of Extra Assistant Commissioner. It was laid down in subrule (5) of Rule 8 that in case a member of the service failed to successfully complete his training or pass any departmental examination prescribed under subrule (4) within such period or in such number of attempts as the appointing authority may fix he shall be liable to be reverted to his former post and if there was no such post his service could be dispensed with. This stipulation was however subsequently withdrawn. As both the contestents before us had become Extra Assistant Commissioners after the promulgation of the Rules mentioned above their next promotion was possible as Assistant Commissioners. The post of Assistant Commissioner is not a promotion post but is a post which is to be filled in on the basis of merit and forms part of another service known as the Azad Jammu and Kashmir Management Group which was created on 20th of December 1980 when the President of Azad Jammu and Kashmir promulgated the Azad Jammu and Kashmir Management Group (Composition, Recruitment and Promotion) Rules, 19SO. In accordance with these Rules all the posts of Assistant Commissioners and Deputy Commissioners as well as the specified number of posts of Secretary to the Government etc. were to form part of management group. In order to be inducted in this eroup the entry point was the post of Assistant Commissioner. Sixty per cent of these posts were to be filled in by initial recruitment on the basis of competitive examinations while forty per cent of the posts were to be filled in "by promotion on the recommendation of Selection Board from members of Extra Assistant Commissioners Service on the basis of merit and fitness for higher responsibilities'. It was provided in rule 6 of the Rules that no person could be appointed to the Management Group unless he was a graduate from a recognized University. There fell vacant two vacancies in the cadre of Assistant Commissioner which were to be filled from amongst the Extra Assistant Commissioners and it is on 20th of March 1984 that the order which is bone of contention between the two contendants before us was issued. By virtue of this order two Extra Assistant Commissioners, namely; Ghulam Abbas Nagiana (not before us) and respondent Abdul Haq Abbasi were promoted as Assistant Commissioners on the recommendation of the Selection Board. As has become evident during the litigation between the parties when this order was passed appellant Muhammad Aslam Khilji had not cleared the departmental examination in higher standard while Abdul Haq Abbasi respondent had already done so. In respect of appellant Muhammad Aslam Khilji and two other Extra Assistant Commissioners the order under reference said that if they did not clear the departmental examination in higher standard in two opportunities which had been given to them on llth of February, 1982, they would not remain Extra Assistant Commissioners and in that case Abdul Haq Abbasi, respondent, would be deemed to have superseded them. The appellant Muhammad Aslam Khilji felt aggrieved due to the fact that he was senior as Extra Assistant Commissioner to Abdul Haq Abbasi and he moved a review petition which was dismissed on the 1st of July, 1986, whereupon he filed an appeal before the Service Tribunal. The Service Tribunal dismissed the appeal finding no merit in it on the 31st of October, 1987. Before the Service Tribunal a number of points were urged. Amongst them was the contention that the appellant was already in BPS-17 when the Extra Assistant Commissioner Rules were promulgated on 2nd of December 1980, and these Rules un-lawfully deprived him of his status which he was enjoying at that time as Assistant Commissioner and to that extent the Rules may be declared as inoperative. It was prayed that it may be declared that he was an Assistant Commissioner and continued to be so even after the promulgation of the Extra Assistant Commissioners Rules. This plea has been dealt with at length by the Service Tribunal and has been decided against the appellant. This contention was not raised before us and, in our view, wisely so. On merits, the Service Tribunal formed the view that since the appellant had not passed the departmental examination in higher standard at the time of the selection of Abdul Haq Abbasi as Assistant Commissioner the appellant was not eligible for promotion. This view has been vehemently contested by the learned counsel for the appellant, Ch. Muhammad Ibrahim Zia. Before dealing with the question whether the appellant was not eligible for promotion as Assistant Commissioner on the relevant date, we would like to clear a factual dispute whether the case of the appellant Muhammad Aslam Khilji was considered by the Selection Board and he was not found fit for promotion or his case was not brought under consideration at all. In the appeal filed before the Service Tribunal by Muhammad Aslam Khilji it was averred by him that his name was not brought under consideration while recommending the names of respondent Abdul Haq Abbasi and Ghulam Abbas Nagiana, against whom no appeal has been filed by Muhammad Aslam Khilji. This averment is duly supported by an affidavit filed by Muhammad Aslam Khilji in the Service Tribunal. In the objections filed by the Government this statement was not controverted. However, respondent Abdul Haq Abbasi denied this averment and submitted that the appellant had not been found suitable for promotion on the ground that he had not passed the departmental examination in the higher standard. Respondent Abdul Haq Abbasi did not file any affidavit along with his objections and this fact was duly pointed out by the appellant in the replication filed by him in the Service Tribunal. Even then Abdul Haq Abbasi did not file any affidavit in support of his contention that the appellant had been found un-suitable for being promoted as Assistant Commissioner. It is laid down in rule 14 of the Azad Jammu and Kashmir Service Tribunal (Procedure) Rules 1976 that questions arising for determination by the Tribunal shall be decided ordinarily upon affidavit but the Tribunal may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit. Since no other evidence has been led in the case and there is no affidavit controverting the claim of the appellant that he was not considered for promotion by the Selection Board, the only conclusion which can legally be drawn in that the position taken by the appellant is factually correct. The relevant file of the Services and General Administration Department was summoned by the Service Tribunal and has also been transmitted to this Court along with the record of the case. This file contains a copy of the working paper which was sent to the Selection Board. The working paper shows that the case of the appellant was not placed before the Selection Board for consideration. The names of the appellant and two other civil servants are mentioned in another context but operative part of the working paper says that the names of Ghulam Abbas Nagiana and Abdul Haq Abbasi may be considered for two posts of Assistant Commissioners in grade 18 which were available for promotion from the Extra Assistant Commissioners. From this we condclude that the case of the appellant was not sent for consideration by the Services Department and consequently the Selection Board did not examine the fitness or otherwise of the appellant. Objections filed in the Service Tribunal by the Azad Government of the State of Jammu and Kashmir are favourable to the appellant. It is surprising that when the appellant filed a review petition against the order by which respondent Abdul Haq Abbasi was promoted it was dismissed bu. before the Service Tribunal, just a few months later the Government fully endorsed the position taken by the appellant. The position taken by the Government before the Service Tribunal was that the appellant was entitled to provisional promotion as Assistant Commissioner as had been ordered in the case of Shaikh Hafeez-ur-Rehman and others. However, Abdul Haq Abbasi respondent contended that the appellant was not promoted because he had not passed the required departmental examination and his case was rejected on the ground that he had not passed the aforementioned examination. As already noted in actual fact appellant Muhammad Aslam Khilji's case was not sent by the Services Department and it is not on the record as to why it was not thought necessary to send his case although it is an admitted position that Aslam Khilji was senior to Abdul Haq Abbasi at every stage before the latter's promotion as Assistant Commissioner. The appellant became Tehsildar on llth of February 1974 and was promoted as Revenue Assistant on 19th of No T '3mber, 1975, while respondent Abdul Haq Abbasi's dates of promotion as Tehsildar and Revenue Assistant respectively are 16th of May 1974 and 19th of November 1975. The Service Tribunal has adopted the reasoning that since the appellant had not passed the higher standard examination prescribed for confirmation as Extra Assistant Commissioner he was not eligible for being promoted as Assistant Commissioner. While doing so the Tribunal relied on the provisions of the Extra Assistant Commissioners Rules rather than the Management Group Rules. The latter set of rules provide the qualifications and method of promotion as Assistant Commissioner or in other words for induction into the Management Group. It is nowhere provided in these rules that an Extra Assistant Commissioner must have been confirmed after having passed the required examination before he could be appointed as Assistant Commissioner. Rule 6 of the Management Group Rules laid down that no such person shall be appointed to the post unless he is a graduate from a recognised university. This rule is titled 'qualifications' and the only two qualifications mentioned for induction into the Group are being a graduate and production of a certificate of character. The other relevant rule is rule 4. Sub-rule (1) of this rule ,lays down the manner of recruitment to the post of Assistant Commissioner. It is provided in clause (b) that 40 per cent of the posts of Assistant Commissioners shall be filled in by promotion on the recommendation of the Selection Board from members of the Extra Assistant Commissioners Service on the basis of merit and fitness for higher responsibilities. It is nowhere laid down that a person must be a confirmed Extra Assistant Commissioner or that he must have qualified all the tests which were required for confirmation as Extra Assistant Commissioner to become qualified to be an Assistant Commissioner. We, therefore, do not find any thing in the Rules which may lead us to the conclusion that the appellant was not eligible for promotion as Assistant Commissioner on the relevant date, as held by the Service Tribunal. One of the factors which found favour with the Service Tribunal was that for his failure lo pass higher standard examination Muhammad Aslam Khilji was liable to be reverted from the post of Extra Assistant Commissioner, therefore, he could not be promoted as Assistant Commissioner. The Tribunal observed on page 9 that: "It is a matter of common sense that an officer who is not fit or qualified to hold a post in NFS 17 how he can be treated fit or eligible to hold a post in Grade 18." Obviously the Tribunal while making these observations did not keep in view the apparent distinction between qualification and fitness and thus fell in error. Even otherwise, the Tribunal wrongly assumed that Muhammad Aslam Khilji was liable to be reverted from the post of Extra Assistant Commissioner in case he failed to pass the required test. This assumption runs counter to para 2 (ii) of Government Notification issued on 16.4.1984 which is on page 47 of the Service Tribunal file. It is provided therein that Muhammad Aslam Khilji, amongst others, whold continue to hold grade 17 post even if he failed to pass the departmental examination. No doubt 'eligibility' and 'merit and fitness' are entirely different matters. The fact that the appellant was eligible to become Assistant Commissioner did not necessarily mean that he must have been promoted as such. But the fact that he was eligible did create a right in him to be considered by the Selection Board. By denying this right a wrong was done to him and it should have been undone by the Service Tribunal which it has failed to do on the assumption that he was not eligible for promotion because he had not passed the examination under reference. In order to undo the wrong done to Muhammad Aslam Khilji the normal course for us would have been to set aside the promotion order of respondent Abdul Haq Abbasi and to order that the Selection Board may reconsider the matter with Muhammad Aslam Khilji as one of the candidates but in the peculiar circumstances of the case, we are not adopting this course. The order of Abdul Haq Abbasi's promotion against which Muhammad Aslam Khilji appealed to the Service Tribunal was passed on 28.2.1984. In the intervening period of six years many new developments have taken place. Muhammad Aslam Khilji was subsequently considered fit for promotion by the Selection Board and he was promoted as Assistant Commissioner and both of them have now moved into Deputy Commissioner's grade. Since Muhammad Aslam Khilji has already been found fit for promotion, there is now no question that this exercise may be gone through again. After giving anxious thought to this aspect of the matter we have reached the conclusion that the order which can meat the ends of justice is that Muhammad Aslam Khilji would be deemed to have been promoted from 28.2.1984 in place of Abdul Haq Abbasi. In this respect our attention has been drawn to a similar course adopted by Federal Service Tribunal in Haq Nawaz v. Secretary to Government of Pakistan, Ministry of Defence and 2 others (1984 P.L.C. (C.S.) 8) and we are satisfied that the course adopted in that case was just and proper. The appeal is, therefore, accepted and order of the Service Tribunal is set aside. It is ordered lhat appellant Muhammad Aslam Khilji shall be deemed to have been promoted as Assistant Commissioner on 28.2.1984 in place of respondent Abdul Haq Abbasi. Consequently the appellant would take the respondent's place in the seniority list and vice versa. (MBC) Appeal accepted.

PLJ 1991 SC(AJK) 7 PLJ 1991 SC(AJK) 7 [Review Jurisdiction] Present: sardar said muhammad khan CJ and basharat ahmad shaikh, J AZIZUDDIN QURESHI-Petitioner versus RAHMATULLAH ZIA and 6 others-Respondents Civil Review Petition No. 6 of 1990, dismissed on 17.11.1990 [In the matter of review of judgment of Supreme Court, dated 20.8.1990, in Civil Appeal No. 15 of 1989] Review-- —Supreme Court—Judgment of—Review of—Petition for—Whether a new point can be raised in review petition-Question of-Notification lays down that while referring cases to Selection Board for promotion, three names shall be forwarded for each post—Contention that only five names were referred against five posts and hence notification was violated-This point was not mentioned in memo, of appeal before Service Tribunal—This point was not even raised in concise statement filed in Supreme Court—Held: It is well settled that a new point cannot be raised in a review petition—Petition dismissed. [P.8]A,B,C&D 1988 SCMR 853 and 1987 SCMR 182 rel. Raja Muhammad Hanif Khan, Advocate for Petitioner. \crno for non-Petitioners. Date of hearing: 7.11.1990. judgment Basharat Ahmad Shaikh, J.--This is a review petition seeking recalling of the judgment of this Court recorded on 20th of August 1990. The petition contains as many as eight grounds on which review is sought and creates ex-fade impression of being an appeal. However, the learned counsel only pressed one ground during the arguments. The ground is as follows: "(c) That this is an admitted case between the parties that only five posts of sub-engineers fallen vacant and for all the 5 posts only 5 persons namely the non-petitioners No. 1 to 5 were sent to Selection Board and Selection Board have approved them. Thus, Govt. Notification No. Admin, A- 27(46)/83 dated 20.1.1983 was violated and the petitioner was not considered at the time of promotion on the post of sub-engineer." Government Notification mentioned in the above extracted portion of the review petition has been placed on the file during arguments. The Notification which was issued on 20th of June 1983 lays down, inter alia, that while referring cases to the Selection Board for promotion, if possible, three names shall be forwarded for each post to be filled up. The point urged by the petitioner is that this part of the notification was violated inasmuch as only five persons were sent for five posts under reference. We have looked into the grounds of appeal filed by the present petitioner in the Service Tribunal and find that this point was not mentioned in the memo, of appeal which is otherwise quite detailed. In fact the position taken by the petitioner in his memorandum of appeal was that he was senior as compared to the five respondents who had been promoted and it was on the basis of seniority that he claimed that he was entitled to promotion in preference to the five respondents mentioned above. His appeal was accepted by the Service Tribunal on the ground that he was senior to four out of the five civil servants against whom appeal had been filed. The Service Tribunal consequently ordered that the petitioner Aziz-ud-Din Qureshi shall be deemed to have been promoted from the specified date in place of Rehmatullah Zia. The finding on the question of seniority was vacated by this Court in the judgment sought to be reviewed and the order of the Service Tribunal was consequently set aside. During the hearing of the appeal in this Court Aziz-ud-Din Qureshi petitioner in his concise statement did not raise the point which he now raises. In the concise statement his emphasis was again on seniority. It follows that the petition for review is based on a point which was neither raised before the Service Tribunal nor was agitated in this Court at the appeal stage. It is well settled that a new point cannot be raised in a review petition. If any authority is needed on this point we may refer Muhammad Ishaq and others v. Falak Sher and another [1988 S.C.M.R. 853] and Kamal-ud-Din v. The Province of Punjab [1987 S.C.M.R. 182]. In light of the foregoing the review petition fails in limine. (MBC) Petition dismissed.

PLJ 1991 SC (AJK) 9 PLJ 1991 SC (AJK) 9 [Appellate Jurisdiction] Present; sardar said muhammad-khan, CJ and basharat ahmad shaikh, J. WATER AND POWER DEVELOPMENT AUTHORITY and another-- Appcllants. versus Sardar ABDUL AZIZ and another-Respondents Civil Appeal No.30 of 1990, accepted on 2.2.1991. [On appeal from order of AJK High Court, dated 10.1.1990, in Civil Misc No.11 of 1987]. Civil Procedure Code, 1908 (V of 1908)-- —S.i52--Judgment—Correction in—Application for—Rejection of—Challenge to--lt is correct that orders passed after application of mind cannot be corrected under Section 152 CPC—Other aspect that order was passed without hearine WAPDA still needs to be examined—There is no manner of doubt that it was a clear illegality-Order passed without hearing is also equatablc with an order passed without jurisdiction—Held: Order under reference was not binding on WAPDA. [Pp.ll&12]A (ii) Civil Procedure Code, 1908 (V of 1908)-- —-S.152--Judgmcnt-Correction in-Application for-Rejection of—Challenge to-Legislature has provided that not only clerical or arithmetical mistakes but also accidental slips or omissions can be corrected by court in exercise of powers conferred by this section—It was due to accidental omission that High Court failed to notice that WAPDA was being proceeded against behind its back—Held: Situation is squarely covered by expression "accidental slip or omission" and relief could be granted by High Court under Section 152 of CPC-Appeal accepted. [Pp.l2&13]B&C PLD 1978 SC 270 and 1980 CLC 1351 rel. Sh. Abdul Aziz, Advocate for appellants. Raja Muhammad Hanif Klian, Advocate for respondent No.l. Mr. Abdul RashidAbbasi, Advocate for respondent No.2. Date of hearing: 8.1.1991. judgment Basharat Ahmad Shaikh, J.--The facts of the case necessary for the disposal of this appeal are that Sardar Abdul A/.i/, respondent, filed a suit in the Court of District Judge Muzaffarabad on 28th of February 1977 for the recovery of Rs.63. 517/80 in connection with the service he had rendered in Water and Power Development Authority as a deputationist from the A/.ad Government of the State of Jammu and Kashmir. The learned District Judge passed a decree for Rs.21.806/92 against the A/ad Government of the State of Jammu and Kashmir with 9 c l interest. It was also ordered that respondent Abdul Aziz was to be paid one year's salary and one month's leave salary. In the decree no liability was fixed on Water and Power Development Authority. Sardar Abdul Aziz filed an appeal before the High Court which was decided on 5th of June,1985. In addition to the amount decreed by the learned District Judge against the Azad Jammu and Kashmir Government, the High Court decreed a further sum of Rs.16,865/-, with 9% interest, on account of deputation allowance and one month's salary minus pension. These sums were decreed jointly against the Azad Government of the State of Jammu and Kashmir and Water and Power Development Authority.During execution proceedings being taken by the learned District Judge Muzaffarabad an application was moved praying that an accounts expert may be appointed as a local Commissioner and should be directed to calculate the exact amount which was payable for the decree holder and also apportion the liability between Water and Power Development Authority and the Azad Government. This application was decided by the executing Court on 28th May 1986 whereupon a revision petition was filed in the High Court by Azad Government of Jammu and Kashmir. Sardar Abdul Aziz decree-holder and WAPDA were arrayed as the respondents. On 10th of July, a learned single Judge of the High Court. Muhammad Akram Khan J., who was seized of the case, ordered that a notice shall issue to the respondents for 12th of July. The relevant file shows that notices were issued to the respondents but the process was not served on any of them. On 12th of July, when the case came up for hearing, the counsel for A/ad Government, petitioner before the High Court, and respondent Sardar Abdul A/i/ in person were present. Since Water and Power Development Authority had not been served, nobody was present on its behalf. The learned Judee did not take notice of ihe absence of WAPDA and proceeded to hear the arguments ol the learned counsel for the Government and respondent Abdul Aziz in person and recorded an order immediately thereafter. In this order the learned Judge observed that some material points had been left un-explained in the decree drawn up in consequence of the judgment of the High Court recorded on 15lh of June 1985, for instance, it was not explained as to how much money had lo be paid by the Water and Power Development Authority and how much by Azad Government whether interest was compound or simple and whether house rent was included in the privileges decreed in favour of the decree-holder. The learned Judge ordered that the decrees may be corrected in accordance with the clarification made by him in the order. Although there are no such clarifications in the order, we find that an amended decree was drawn up alter the recording of this order. The details of the decree thus amended need not be noticed because we do not propose to deal with them. On coming to know of it, Water and Power Development Authority, the appellant herein, felt aggrieved and filed an application in the High Court on 24th January 1987 praying that the decree drawn up in consequence of the order passed by the learned single Judge on 12th of July 1986 may be modified and the execution proceedings taken in consequence thereof may be quashed. It was stated in the application that WAPDA had neither been summoned nor heard when the order was passed. An attempt was made to explain with facts and figures that the amounts which were due from WAPDA had already been paid to the decree-holder and that nothing was left to be recovered from it. It was submitted that the executing Court had declined to consider these submissions on the ground that it was bound by the decree of the High Court. A Division Bench of the High Court by its order dated 10th of January 1990 dismissed the application in relation to the main subject matter but corrected a clerical mistake. The High Court treated the application as one under Section 152 C.P.C. and formed the view that this provision of law did not include the authority to amend an order or decree passed by a Court alter conscious application of mind. The learned Judge observed thai when Muhammad Akram Khan .1. ordered that the interest leviable on the amount payable as a consequence of the decree shall be compound interest and that decree-holder would be entitled to some other amounts, it was the result of a definite application of mind and therefore these could not be termed as accidental or arithemalical mistakes within the meaning of Section 152. The learned Judges relied on 'Talib Hussain and another Vs.Amina Bibi and 4 others' ( P.L.D.1982~SC A.I&K 42), 'Haji Ishtiaq Ahmad and 2 others Vs. Bakhshaya and 7 othc'y' (1976 SCMR 420) and 'Mst.Farosha Vs. Fazal Gul and others' (P.L.D.1983 SC 22i i) in support of the conclusion reached by them. Water and Power Development Authority has with our leave, appealed to this Court against order of High Court passed on 10th'of January 1990. Sh Abdul Aziz, the learned counseel for WAPDA, vehemently contended that the order of the High Court recorded on 12lh July which was sought to be modified by moving an application before the same Court, had been passed behind the back of his client and that it was. therefore, void ab initio. He submitted that in any case it was not binding on Water and Power Development Authority and its effects have to be confined to the decree-holder and the Azad Government of the state of Jammu and Kashmir, the two parties which were present before the High Court when the order of 12th July was passed. The learned councel submitted that relief could be given to the appellant under Section 152 of the C.P.C. He alternatively submitted that the High Court had ample powers to declare that the order passed on 12th July 1986 was void and was to be ignored. Mr. Abdul Rashid Abbasi. counsel for decree-holder Sardar Abdul Aziz contended that no new liability had been imposed on WAPDA by Muhammad Akram Khan .1. But the learned Judge had only amplified the liability. He pleaded, therefore, that there was no question that the decree may be termed as a nullity. He also contended that the order had been passed by a Court which was competent to pass that order and it was not possible in law to treat it as a void order. Raja Muhammad Hanif Khan, the learned counsel for the Azad Government of the Slate of Jammu and Kashmir, also supported the contention that by the order of the High Court passed on 12th of July 1986 nothing new had been introduced in the decree. It only explained certain matters without which it was not possible for the executing Court to execute the decree. We agree with ihe High Court when it slates the law that orders passed after application of mind cannot be corrected under Section 152 of the Code, but the other aspect of the mailer, namely, that the order was passed without hearing Water and Power Development Aulhorily still needs to be examined. There is no manner of doubt that it was a clear illegality. The order may not be termed as void in the sense that il had nol been passed by a Courl competenl to pass it but an order passed withoul hearing is also equata.ble with an order without jurisdiction. Therefore there cannot be any hesitation in holding thai the order under [reference was so and thus not binding on Water and Power Development I Authority. No student of law should have any cavil with this proposition. Now we may pass on to the real question before us, namely, whether the order passed by Muhammad Akram Khan J. could be corrected or modified on an application under Section 152 of the C.P.C. In the order of the High Court while dealing with the scope of this section the following observations appear in para 3:- "The language of Section 152 C.P.C. clearly describes the dimension of scope of amendment of judgment, decree or orders wherein clerical or arithmetical mistakes cropped up by virtue of accidental slip or omission." It appears that the High Court was under the impression thai the power granted by this section is confined to clerical or arithmetical mistakes which might crop up as a result of accidental slip or omission. However, the phraseology of this provision of law reproduced below shows that it is not so:- "152.-Amendment of judgments, decrees or orders: Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." As is clear, the legislature has provided that not only clerical or arithmetical mistakes but also accidental slips or omissions can be corrected by a Court in exercise of powers conferred by this section. In our \ lew when Muhammad Akram Khan,.!.,passed his order it was due to accidental omission that he failed to notice that Water and Power Development Authority was being proceeded against behind its back. It is not conceivable that the learned Judge would have passed the order under reference without securing the presence of Water and Power Development Authority if he had become conscious of that omission. Even a cursory glance at the order makes the matter abundantly clear. The order is recorded in the hand of the learned Judge and the parties mentioned in the High Court are "A/,ad Government of the State of Jammu and Kashmir v. Sardar Abdul Aziz". Water and Power Development Authority is not mentioned as a party at all. In our view the situation is squarely covered by the expression "accidental slip or omission" and relief could be granted by the High Court under Section 152 of the Civil Procedure Code. We have been able to lay hands on two reported cases which give support to the view we have taken of the scope of section 152 C.P.C. The first is Muhammad Latifv. Border Area Committee (PLD 1987 S.C. 270). The circumstances in which the matter was taken to the Supreme Court were that Muhammad Latif and others were vendees of land in dispute from one Saced Ahmad who had purchased it from Pultoo, an allottee under the Border Area Scheme. The allotment from the name of pultoo was cancelled by the Border Area Committee, the vendees filed a writ petition in the High Court to challenge that order. A learned Judge of the Lahore High Court found that the order of the Border Area Committee was without lawful authority. It was manifest from the body of the judgment that the learned Judge had intended to remand the case to the Border Area Committee but the learned Judge omitted to give a clear direction to that effect. Apprehending that the judgment of the learned single Judge may not be understood as deciding finally and conclusively dispute between the parties, one of the respondents before the High Court filed a review petition. The learned Judge passed an order on the review petition and clarified that he had in fact ordered a remand while deciding the writ petition. Against this order an appeal was filed by the successful petitioner before a Letters Patent Bench of the High Court but it was dismissed. Thereupon appeal to the Supreme Court of Pakistan, with leave of that Court, was filed. It was pleaded that the order passed subsequently by the learned Judge could not have been passed in a review petition. The Supreme Court observed that in the circumstances of the case the only appropriate order that could be passed by the High Court was one of remand and then proceeded to hold that the application moved for clarification was not in the strict sense, a review petition and the learned Judge was empowered to correct its judment and order upon principle embodied in section 152 of the Code of Civil Procedure. The other case is reported as Sind Star Syndicate v. Synthetic Chemical Compan. (1980 CLC 1351). The facts were that a suit was filed in the Sind High Court on its original side for recovery of some amount in respect ol contract entered into between the plaintiff and defendant No.l. The defendant No.2 was implcaded in the plaint but the only averment made in the plaint about that defendant was that it was the parent establishment of defendant No.l. No relief was claimed against defendant No.2 specifically. The suit was decreed by a learned Judge but it was not specifically explained whether defendant No.2 would or would not be responsible to pay the amount decreed. An application was submitted praying that the High Court may be pleased to rectify the decree bystriking out the name of defendant No.2, a judgment debtor, and the writ of attachment issued against him be recalled. The learned Judge of the High Court Ajmal Mian,J.(as he then was) formed the view that on the basis of the averment in the plaint and evidence on the record decree was not capable of being passed against defendant No.2. Therefore, in exercise of powers under Section 152 C.P.C, rectification of the judgment and decree was ordered. It was ordered that words T accordingly decree the suit as follows' will be followed by the words " against defendant No.l". It was ordered that the decree may be accordingly amended and the writ of attachment issued against the judgment-debtor No.2 was to stand withdrawan. As a result of the above analysis we a-re of the view that the High Court wrongly dismissed the application moved by WAPDA. We accordingly accept the appeal, set aside the order of the High Court and order that in the order passed by the High Court on 12lh July 1986 and the decree drawn up in consequence thereof all references to Water and Power Development Authority would be deleted. The part of the order by which the amount of Rs. 18,865/-was corrected by the High Court shall however remain un-affected. Costs would also follow. (MBC) Appeal accepted

PLJ 1991 SC (AJK) 13 [Appellate Jurisdiction] PLJ 1991 SC (AJK) 13 [Appellate Jurisdiction] Present: sardar muhammad asiiraf kuan and basiiarat ahmad shaikh, JJ. ABDUR RAZZAQ-Appcllant Versus ABDUL AZIZ and another—Respondents Civil Appeal No.45 of 1981, partly accepted on 19.1.1991. [On appeal from judgment and decree of High Court, dated 26.4.1981, in Civil Appeal No.27 of 1979]".

(i) Civil Procedure Code, 1908 (V of 1908)-- —O.XXITI R.3—Compromise by one defendant—Filing of—Whether other defendant was also bound by compromise—Question of—When respondent No.2 filed a compromise and made a statement in court that he had agreed that suit land may be divided in three equal shares, he was clearly surrendering a part of land gifted to him and it was satisfaction of a part of subject-matter of suit—That part of satisfaction of claim did not in any way prejudice respondent No.l-Held: View formed by High Court in judgment under appeal, was not correct—Held further: Respondent No.2 cannot be legally bound by anything beyond l/3rd of total land instead of one half to which he had agreed—Appeal accepted, share of respondent No.2 reduced to l/3rd and appellant given l/6th of total land. [P[,17&18]B,C&D AIR 1920 Cal. 269. AIR 1926 Oudh 131 and PLD 1967 Dacca 155 not relevant. 1980 CLC 110 and PLD 1961 A.I&K 8 rel. (ii) Estoppel— —Admission by counsel—Whether binding on appellant—Question of—So called admission by learned counsel for appellant is not about a factual matter but is about a pure question of law—Held: It is well settled that there is no estoppel against law-Held further: It is equally well settled that if a party or its counsel accepts a proposition which is legal in nature, it is not binding. [P.16JA NLR 1990 SCJ 228 distinguished. Mr. Abdul RashidAbbast, Advocate for appellant. Mr. M.A.Farooq, Advocate for respondents. Date of hearing: 11.12.1990. judgment Basharut Ahmad Shaikh, J.—Leavc in this case was granted only to consider as to whether compromise affected by Muhammad Habib, respondent No.2, is lawful and a decree is permissible, in accordance with the compromise, to the extent of his share. Leave on other points raised at the hearing of the petition for leave to appeal was refused. This judgment will, therefore, be confined to this point. On 24th of December, 1969, one Noora executed a gift-deed by which he transferred the ownership of his total holding in favour of Abdul Aziz his son and Muhammad Habib his grand-son by a pre-deceased son. Abdul Razzaq another son of Noora filed a suit on 28th of September, 1972 at Rawalakot in which he challenged the aforesaid gift-deed. While the suit was being tried Muhammad Habib filed a compromise on 13th of January, 1970, in which it was stated that defendant Muhammad Habib accepted the claim of plaintiff Abdul Ra/zaq in toto and it had been agreed between the parties that the gift-deed executed by Noora would stand cancelled to the extent that the total holding of Noora would be distributed in equal shares between plaintiff Abdul Razzaq, defendant Abdul Aziz and defendant Muhammad Habib. It was prayed that the Court may pass a decree to the effect that property mentioned in the gift-deed would be equally owned by plaintiff Abdul Razzaq, Muhammad Habib and Abdul A/iz. This compromisedeed was signed by Abdul Razzaq and Muhammad Habib as well as by two witnesses but was not signed by Abdul Aziz. Muhammad Habib also got his statement recorded in support of the compromise and thereby re-affirmed the contents of the written comprmise filed in the Court. However, he later on resiled from the compromise and took the position thai a fraud had been pracclised on him by the plaintiff in order to secure the compromise. His plea was lhat the was promised Rs.1000/-, but the amount was not paid to him. The learned Sub-Judge while framing issues in the case framed an issue on this point. The onus to proving the issue was placed on Muhammad Habib, defendant. In light of the evidence on this issue the learned Sub-Judge decided it against Muhammad Habib holding that he had not been able to produce any evidence to prove fraud. The learned Sub-Judce on the question of compromise held" that the compromise was not authorised by Abdul Aziz and could not affect his rights but so far as Habib himself was concerned it was binding on him to the extent of his share.On appeal the learned District Judtie took the view lhat the compromise had been entered into without consent of Abdul Aziz, therefore, it was unlawful and could not be acted upon even to the extent of Muhammad Habib's share. A second appeal taken to the High Court by Abdul Razzaq also failed. In respect of the point relating to the compromise the High Court held that compromise is to be accepted or rejected as a whole and since Muhammad Habib was not competent to enter into compromise on behalf of Abdul Aziz the compromise was to be rejected as a whole. The learned Judge in the High Court also observed thai the learned counsel for appellant Abdul Razzaq accepted this legal proposition. The learned counsel for Abdul Razzaq appellant. Mr. Abdul Rashid Abbasi contended that the mere fact that compromise filed in the court by Muhammad Habib had not been authorised by Abdul Aziz did not make it illegal or un­ enforceable. He submitted that having been filed without an authority on behalf of Abdul Aziz the compromise was not binding on Abdul Aziz but so far as Muhammad Habib was concerned he was bound by it. The learned counsel relied on \ulinu Kama Sun v. Balm Monaranjan Parasad Barman (PLD 1967 Dacca 155). Sasliibala Dasi and others v. Kamiksha Natli Dull and others (A.I.R. 1920 Cal. 269), Muhammad Mazhar-ud-Din Hasan v. Zaliw-ud-Din and others (A.I.R. 1926 Oudh 131) and Baiju Lai Manvari v. Narayan Hemram and others (A.I.R. 192S Pat. 495). Dealing with the point of admission by the counsel, Mr. Abdul Rashid Abbasi submitted that admission made by the counsel who appeared for Abdul Razzaq in the High Court was not binding because it did not correctly reflect the law. He relied on a judgment of this Court, Bahadon v. Phalli (N.L.R. 1990 S.C.J. 22S) laying down that a party cannot be bound by admission of its counsel which has not been made with due diligence and care. Mr. M.A. Farooq, the learned counsel for Muhammad Habib and Abdul Aziz, contended that the compromise filed by Muhammad Habib was un­ authorised and was. therefore, void as a whole and there was thus no question that it may be acted upon in part. He submitted that there was nothing before the Court to hold that the admission made by the learned counsel for Abdul Razzaq had not been made with due diligence. Before examining the legal point involved in the case we would like to dispose of the matter regarding the so-called admission made in the High Court by the learned counsel for Abdul Razzaq. The judgment of this Court cited by the learnd counsel for the appellant Bahadon v. Phalli relates to an admission on a factual matter which is not the case before us. We are dealing with a pure question of law. It is well settled that there is no estoppel against law. It is equally well settled that.if a party or its counsel accepts a proposition which is legal in nature it is not binding. In fact the High Court in its order under appeal also did not act upon the statement made by the counsel but only mentioned that the learned counsel had accepted the proposition. Among the cases cited by the learned counsel for the appellant three cases, namely, Sashibala Dasi v. Kamiksha Nalh Dull, Muhammad Mazhar-ud-Din Hasan v. Zahiir-ud-Din and Nalina Kanla San v. Babu Monaranjan Parasad Bamian do not deal with the question before us and we find them inapplicable. However, the case from Patna jurisdiction Baiju Lai Manvari . Nara\an Hemram deals with this question in a'broad sense. In that case the parties tendered a compromise by which defendants had agreed to settle the claim upon payment of certain sum in eight equal instalments of crops of certain value each year. The compromise further slated that in the event of the defendants fail to pay instalments, the whole debt would become due and would be enforced by the sale of the holding of the defendants. The trial Court declined to give effect to the compromise holding it to be illegal in view of the law prevelant in that locality that no transfer by a 'raiyat' of his rieht in his holding or any portion thereof by sale gift or any other contract or agreement shall he valid unless the ri-iht to transfer has been recorded in the record of rights. A single Judge of the Patna High Court set aside the order and held that the compromise was not illegal inasmuch as the substantial portion of the compromise that a certain sum shall be payable year to year for eight years was not against the local law which rendered part of agreement un-lawful. As we read the judgment, the view formed in the case is that if the legal part of a compromise can be severed from the part which is illegal the compromise can be given effect to. The reasoning adopted by the learned Judge may be reproduced as follows:- "I cannot find anything in S.27 which renders the compromise under consideration unlawful. That part of the compromise which gives the plaintiffs permission to sue for their debt and execute their decree, if any, by the sale of the holding is inoperative and redundant. If the law of the locality is that no money-decree can be executed by the sale of the borrowers' raiyati holding, it is obvious that an admission by the debtor will not permit the creditor to do what is forbidden by law. The ' substantial portion of the compromise is that a sum of Rs.112.8-0 shall be payable year by year for eight years and as far as I can see, there is nothing in the law of the locality which renders such an agreement unlawful." In our opinion the view taken by the learned Judge in the case under reference was correct. We may observe that the part which was unlawful in light of the local law was ignored but in doing so no prejudice was caused to any party to the compromise.The law applicable to the situation before us is contained in rule 3 of Order XXIII of the C.P.C. It runs as follows:- "3. Compromise of sin'/.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." This rule is in two parts. First part deals with a lawful agreement orj compromise by which the suit is adjusted wholly or in part and second part deals! with a ^ituation in which a defendant satisfies the plaintiff in respect of the whole I or any part of the subject-matter of the suit. When Muhammad Habib filed aj compromise and made a statement in the Court that he had agreed that the land which was the subject-matter of the aift-dced challenged in the suit may be; divided in three eaual shares, lie was clearly surrendering a pan of the land gifted-IB to him and it was satisfaction of part of the subject-matter of the suit. There is no] question that his compromise or statement could bind the other donee but so far; as Muhammad Habib himself was concerned he surrendered part of the land! which was in excess of one third of the total land. That part of satisfaction of the subject-matter of the suit so far it related to Muhammad Habib did not in any way prejudice Abdul Aziz. The issue relating to the plea of Muhammad Habib that a fraud had been practised on him was decided against Muhammad Habib. We have looked into the evidence on the point and are satisfied that the findings on this issue were correct. No case decided by this Court was cited before us by the learned counsel for the parties, but when we were about to conclude this judgment our attention has been drawn to a case decided by this Court which is a direct authority on the point in issue. The case is Sanvar KJw/i vs. Mir All & others (1980 C.L.C. 110). At page 119 of the report the following observations decide the point in issue;- "Moreover, a compromise decree passed in terms of Order XXIII, rule 3 becomes final and conclusive only against the party to compromise deed and not against a plaintiff who is not a party to such compromise. It is the duty of the Court to examine the terms of settlement with care and caution and record the agreement and pass the decree in accordance therewith. The compromise decree in the instant case deprived Sarwar Khan appellant-plaintiff of his right to irrigate his land, under survey No.57, measuring 2 kanals, 11 marlas from the water of the spring 'Sar' without his consent and without properly examining his claim. Therefore, it will not be binding on him, as a compromise or agreement cannot be held to be effective against a person not a party to the suit qua his rights and liabilities. In PLD 1961 Azad J & K 8, referring to AIR 1923 Oudh 252 and AIR 1924 Cal. 150, it was observed: - 'Before a decree is passed in accordance with a compromise it has to be established that the agreement of compromise was lawful. An agreement which involves injury to a third party or a compromise between the plaintiff and one defendant prejudicial to the other defendant is not lawful agreement. Where, by the compromise the right of a person who was interested in contesting the minor plaintiffs claim and who was a necessary party, had been ignored and prejudicially affected, the agreement was held to be an unlawful agreement. We are therefore of the considered view that the compromise, in the instant case, has resulted in substantial injusitce against Sarwar Khan appellant and is, therefore, not binding on him. Hence we set aside the compromise decree to the extent it affects the right of Sarwar Khan plaintiff-appellant." In view of the state of law reflected above, the view formed by the High Court was the conclusion which follow? is that the view formed by the High Court in judgment under appeal was not correct that takes us to the question of relief. It was submitted by the learned counsel for the appellant that the appellant may be held entitled to get l/3rd share as agreed by Muhammad Habib and Muhammad Habib's share may be reduced by that extent. We do not find any legal jurisdiction for doing so. What Muhammad Habib agreed to was that he would get l/3rd of the total land instead of one half. He cannot be legally bound by anything beyond it. His share would therefore stand reduced to 1/3 and Abdul Razzaq appellant would be entitled to the ownership of the land thus reduced from Muhammad Habib's share. This works out to be l/6th of the total land. We consequently set aside the judgment and decree of the High Court as well as the learned District Judge and grant Abdul Razzaq a declaration that the gift-deed executed on 24.12.1969 by Noora was ineffective against the rights of Abdul Razzaq to the extent of l/6th of the total land mentioned in the gift-deed. Consequently in the land mentioned in the gift-deed mentioned above the respective shares of the parties would be as follows: Abdul Razzaq 1/6; Muhammad Habib 1/3; and Abdul Aziz 1/2. Parties would bear their own costs throughout. (MBC) Appeal partly accepted.

PLJ 1991 SC (AJK) 18 PLJ 1991 SC (AJK) 18 [Appellate Jurisdiction] Present: SARDAR said muhammad khan, CJ and basharat ahmad shaikh, J. AZIZUR RAHMAN-Appellant versus INSPECTOR GENERAL OF POLICE and 2 others-Respondents Civil Appeal No.57 of 1990, accepted on 9.3.1991. [On appeal from judgment of Service Tribunal, dated 25.3.1990, in Service Appeal No.397 of 1988]. Azad Jammu & Kashmir Service Tribunal Act, 1975-- —-S.4-Service Tribunal-Appeal to--Dismissal of-Challenge to-Whether period spent by appellant in prosecuting revision before Inspector General of Police, could not be deducted in computing period of limitation-Question of~ Term "representation" used in section 4 of Act is wide enough to include a revision petition and cannot be restricted to narrow interpretation adopted by Service Tribunal-Held: Opening part of section 4(1) is controlled by part (a) of proviso which clearly lays down that no appeal can be filed in Service Tribunal unless departmental remedies are exhausted-Appeal acceptd and case remanded for decision on merits. {Pp.l9&20]A,B&C 1988 PLC (CS) 165 over-ruled. Sardar Rafique Mahmood, Advocate for Appellant. Mr. Abdul RashidAbbasi, Advocate for Respondents. Date of hearing: 2.3.1991. judgment Basharat Ahmad Shaikh, J.--This appeal, by leave of the Court, relates to the interpretation of Section 4 of the Azad Jammu & Kashmir Service Tribunal Act which reads as follows:- "4. Appeal to Tribunals.~(l) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer appeal to the Tribunal: Provided that: (a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu & Kashmir Civil Servants Act 1976, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved Civil Servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (c) ............................................................................................................ (2) .......................................................................................................... The Service Tribunal has dismissed the appeal of the present appellant oiij the ground that the period spent by the appellant in prosecution of the revision r petition filed by him before the Inspector General of Police, which is provided under rule 16.32 of the Police Rules, could not be deducted in computing the period of limitation for the purposes of appeal before the Tribunal. The Tribunal has held that since the proviso reproduced above only refers to an appeal, review and representation and does not mention a revision petition, it was not necessary for the appelant to file a revision petition. In reaching the conclusion as aforesaid, the Tribunal has relied on a case decided by Service Tribunal of Sind "Muhammad Boota v.The Stale (1988 P.L.C. (C.S) 165). The Sind Tribunal, while holding that limitation starts running from the date of Deputy Inspector General's order and lime consumed in disposal of the revision petition filed with the Inspector Genera! of Police would not be deducted, adopted the reasoning that the order passed by the Deputy Inspector General of Police was the final appellate order within die meaning of section 4(1) of the Service Tribunal Act and appeal should have been filed against the Deputy Inspector General's order within limitation. In our view the term 'representation' is wide enough to include a revision petition and cannot be restricted to the narrow interpretation which has been adopted by the learned members of the Tribunal. Unlike the words 'appeal' and 'review', the word 'representation' does not have a fixed connotation and should be liberally construed to include a revision petition. The reasoning adopted by the Sind Service Tribunal fails to take note of the fact that opening part of section 4(1) is controlled by part (a) of the proviso which clearly lays down that no appeal can be filed in the Service Tribunal unless departmental remedies have been exhausted. Consequently the order of the Service Tribunal is set aside and the case is remanded to the Tribunal for adjudication of the other points involved in the appeal filed by Aziz-ur-Rehman appellant. i (MBC) Appeal accepted.

PLJ 1991 SC(AJK) 20 PLJ 1991 SC(AJK) 20 [Appellate Jurisdiction] Present: sardarsaid muhammad khan, CJ and basharat ahmad shaikh, J. AZAD JAMMU & KASHMIR GOVERNMENT-Appellant versus Kli. NOORUL AMIN and 4 others-Respondents Civil Appeal No.55 of 1990, accepted on 9.3.1991. [On appeal from judgment of High Court, dated 21.4.1990 in W.P. No.15 of 1990]. ' (i) Appeal--. —Government of AJK--Not party to writ petition-Whether Government can file appeal—Question of—Observation which are sought to be expunged, have direct bearing on working of Government—According to Section 12 of AJK Interim Constitution Act, executive authority of AJ&K vests in Government consisting of Prime Minister and Ministers—Declaration that all actions and functions performed by late Minister were unlawful, adversely affects interests of Government-Held: Government has a right to appeal against judgment of High Court inspite of fact that it was not a party in High Court. [P.23JA PLD 1969 SC 65 and PLD 1984 SC 12 »?/ . (ii) AJ&K Interim Constitution Act, 1974 (VIII of 1974)-- —- SA4(2)(b)(ii)-Quo Warmnto-Wril of-Issuance of-Procedure for-High Court has to confine its enquiry as to the anthority of law under which concerned person claims to hold that office-If High Court comes to conclusion that respondent does not have authority to occupy that office, it can make declaration to that effect whereupon office so held, becomes vacant -There is nothing in clause (ii) from which High Court may derive authority to travel beyond those limits—Held: Whether an act done by a person whose authority is under challenge, was lawful or not, is not within purview of Section 44(2) (b)(ii) of Act. " [Pp.24&25]B&C PLD 1963SC2U3/V/. (iii) A..J & K Interim Constitution Act, 1974 (VIII of 1974) —S 44! 2)(b)(ii)--Qito wairanto—Wnt of—Issuance of—Whether acts of person whose authority is under challenge, could be quashed-Queslion of-High Court can issue writs in nature of mandamus and certioraii under Section 44(2) (a) of Act, but same can only be issued on application of aggrieved person—In this case, petitioner before High Court, was not aggrieved by any act done or proceedings taken by late Minister—In fact no such prayer was made by him in writ petition—High Court declared in general terms, all actions, orders and functions performed by late Minister, as without force of law-Held: Such an omnibus declaration cannot be granted in exercise of jurisdiction granted by Section 44(2) of Act-Held further: High Court was not competent to quash orders which were not produced or challenged before it- Appeal accepted and portion of para 14 of judgment of High Court expunged. [Pp.25&26]D,E,F&G Raja Muhammad HanifKJian, Advocate for Appellant. Respondent No.l Expaite. Mr. Manzoor Hussain Gillani, Advocate for Respondents 2 to 5. Date of hearing: 6.2.1991. judgment Basharat Ahmad Shaikh, J.-- Col. (Rtd.) Muhammad Naqi Khan was elected in 1985 as a member of the Azad Jammu and Kashmir Legislative Assembly. In the elections he participated as a candidate of Tehrik-e-Amal Party. After the elections All Jammu and Kashmir Muslim Conference having obtained majority in the Assembly formed the Government with Sardar Sikandar Hayat Khan as Prime Minister. Members belonging to the Tehrik-e-Amal Party sat on the opposition benches. On 9th of June 1988 Col. (Rtd.) Muhammad Naqi Khan was inducted in the Cabinet. Kh. Noor-ul-Amin, Barrister-at-law, who described himself as a registered elector, an Income Tax payer, an Office bearer of the Jammu and Kashmir Liberation League as well as an Advocate of this Court, lodged a petition in the High Court for issuance of a writ of quo warranto against Col. (Rtd.) Muhammad Naqi Khan on 15th June 1988. In his writ petition Khawaja Noor-ul-Amin contended that sub-section (3) of Section 5 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance 1970 had operated against the respondent simultaneously with his taking oath as Minister and consequently he had ceased to be a member of the Legislative Assembly. It was contended by Kh. Noor-ul-Amin that by becoming a Minister he had 'withdrawn' himself from Tehrik-e-Amal Party within the meaning of sub-section (3) mentioned above. This sub-section runs as follows:- "(3) if a person having been elected to the AJK Legislative Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for un-expired period of his term unless he has been re-elected at a by-election held after his disqualification." In clause (v) of para 7 of his writ petition the petitioner contended as follows:- (v) that the respondent cannot by any stretch of legal imagination be considered to have been inducted as a Minister in the Muslim Conference Cabinet while continuing to remain a member of the Tehrik-e-Amal, the two positions being utterly incompatible and irreconcilable leading to an insurmountable conflict of interests between his obligations towards his constituents as a member of the Tehrik-e-Amal and elected to the legislature as such and his constitutional obligations as a Minister of the Muslim Conference. The scenario is further compounded and exacerbated by the stark reality that there is currently a confrontationist polarisation between the respondent's party the Tehrik-e-Amal and the ruling party, the Muslim Conference." In his written statement Col. (Rtd.) Muhammad Naqi Khan took the position that he had been appointed as a Minister in his capacity as a member of the Legislative Assembly under Section 14 (1) of the AJ & K Interim Constitution Act, under which the Prime Minister has been given un-fettered powers to appoint any member of the Assembly as a Minister and there was thus no question of any disqualification as alleged. The High Court by its judgment recorded on 21st April 1990 (reported as PLJ 1990 AJK 36 (DB)) accepted the writ petition and declared that Col. (Rtd.) Muhammad Naqi Khan ceased to be a member of the Legislative Assembly on the day he assumed the office of Ministership on 9th of June 1988 as this act amounted to 'withdrawal' from his political party. As only a member of the Legislative Assembly can become or continue as a Minister, the High Court also declared that he also ceased to be a Minister forthwith. The High Court also declared that all actions, orders and functions performed by the respondent as Minister were without force of law. Against the judgment of the High Court Col. (Rtd.) Muhammad Naqi Khan filed a petition for leave to appeal which was granted. Arguments in the appeal were heard but before the judgment could be announced Col. (Rtd.) Muhammad Naqi Khan died in a road accident during the election campaign for the Assembly elections held in May 1990. Thereupon this Court, taking note of the fact that the matter had become more or less academic in nature so far as the deceased appellant was concerned, formed the view that the appeal had abated and an order to that effect was recorded on 23rd of May 1990. In that order it was clarified that the judgment of the High Court would stand. However, the matter did not end there. On 21st of June 1990 the Azad Government of the State of Jammu and Kashmir filed a petition for leave to appeal for the purpose of challenging a portion of the judgment of the High Court so far as it concerned the Government. The Government was not a party in the proceedings before the High Court and subsequently in this Court but it was averred in the petition for leave to appeal that the Government had been adversely affected by the declaration that Col. (Rtd.) Muhammad Naqi Khan had no authority to act as a Minister of the Government. The short prayer in the petition is that this portion may be expunged from the judgment. The legal representatives of Col. (Rtd.) Muhammad Naqi Khan were also included in the petition as proforma-respondents. While granting leave the question whether the Government could appeal from the order of the High Court was left open for adjudication at the final hearing. We have heard Raja Muhammad Hanif Khan, the learned counsel for the Azad Government of the State of Jammu and Kashmir, in support of the appeal. Kh. Noor-ul-Amin, on whose instance the offices held by Col. (Rtd.) Muhammad Naqi Khan as a Minister and member of the Assembly were declared vacant, was absent and we heard the arguments ex-parte. However, the legal representatives of Col. (Rtd.) Muhammad Naqi Khan were represented before us by Mr. Manzoor Hussain Gillani and he duly assisted the Court. The first point which needs to be resolved is whether the Government, which was not a party before the High Court, could legally appeal against the said order. We note that the observations which are sought to be expunged have direct bearing on the working of the Government. As a Minister of the Government Col. (Rtd.) Muhammad Naqi Khan participated in formulation of numerous policies of the Government which is collective responsibility of the Cabinet of which he was a member. According to Section 12 of the AJ & K Interim Constitution Act the executive authority of AJ & K vests in the Government consisting of Prime Minister and the Ministers. Then there are certain functions which are performed by a Minister acting on behalf of the Government. Therefore, it is clear that the declaration that all actions and functions performed by late Minister were unlawful adverssely affects the interests of the Government. In that view of the matter the Government has a right to appeal against the judgment of the High Court inspite of the fact that it was not a party in the High Court. Our view is fortified by H.M. Saya & Co., Karachi v. Wazir All Industries Ltd., Karachi and another (P.L.D. 1969 S.C. 65) and Ghulain Qadar and others vs. Abdul Sattar and another (PLD 1984 S.C. 12). The controversy involved in the appeal has to be resolved in light of the jurisdiction vested in the High Court under Section 44 of the AJ & K Interim Constitution Act. As we have already seen the constitutional petition filed by Kh. Noor-ul-Amin was for issuance of, as it is commonly known, writ of quo warranto. In the Constitution Act the provision for a writ of quo warranto is contained in sub-clause (»') of clause (b) Section 44 (2). Before analysing the provision it will be useful to reproduce Section 44 of the AJ & K Interim Constitution Act: "44. Jurisdiction of High Court.- (1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law. (2) Subject to this Act, the High Cour! may if it is satisfied that no other adequate remedy is provided by law— (a) on the application of any aggrieved party, make an order— (;') directing a person pertorming functions in connection with the affairs of A/.ad Janimu and Kashmir or j. local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do: or (;'(') declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect: or (b) on the application of any person, make an order.-- (/) directing that a person in custody in Azad Jammu and Kashmir be brought before the High" Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or (0 .................................... " It is clear that while acting under sub-clause (ii) of clause (b) above, the High Court has to confine its inquiry as to the authority of law under which the concerned person claims to hold that office. There is no other power which is conferred by this clause on the High Court. If after necessary inquiry the High Court comes to the conclusion that the respondent before it does not have the lawful authority to occupy that office the High Court can make a declaration to that effect whereupon the office so held becomes vacant. The Supreme Court of Pakistan held in Masudul Hassan v. Kliadim Hussain and another (PLD 1963 S.C. 203) that power of granting relief in proceedings of quo warranto are confined to— (a) issuing an injunction to a person holding the office not to act therein, and (b) where necessary, to declare the office to be vacant. There is nothing in sub-clause («') from which the High Court may derive the authority to travel beyond the limits as enunciated above. The 'question, whether an act done by a person whose authority to hold an office is under challenge was lawful or nol is not within She purview of this provision. There is a separate provision under which the High Court is clothed with the authority to declare that ar> act done or proceedings taken in commection with the affairs of the State has been done or taken without lawful authority and is of no legal effect. This power is referable to clause (a) of Section 44 (2) reproduced above. Under this clause the High Court can issue writs in the nature of mandamus and ccriiorari but these writs can only be issued on the application of an aggrieved party while there is no such precondition in respect of a writ of (jug warranto and nabfas corpus which the High Court can issue under clause (b) reproduced earlier. In the present case the petitioner before the High Court Kh. Noor-ul- Atr.in was not aggrieved by any act done or proceedings taken by Col. (Rtd.) Muhammad Naqi Khan in his capacity as a Minister and, therefore, a writ in the nature of certiorari could not have been issued by the High Court on his request. We note that in fact no such prayer was made by Kh, Noor-ul-Amin in the writ before the High Cour!. The prayer made by Kh. Noor-ul-Amin in his writ petition i was as follows: - It is, therefore, prayed that the constitutional writ of quo warranto be issued against the respondent and it be ascertained as to how or under what lavs he lias purported to assume the Constitutional Office and authority of a Minister,™ The declaration made by the High Court was in general terms and all the actions, orders and functions performed by Col, (Rtd.) Muhammad Naqi Khan as a Minister 'were declared without force of law. We are clear in our mind that such an omnibus declaration cannot be granted in exercise of the jurisdiction granted under clause u,} reproduced above. Its exercise is. apart from the phraseology of Section 44 of the Constitution Act, regulated by part B of Chapter VIII of the Azad Jamrnu and Kashmir High Court Procedure Rules. Rule 32 applies to writ petitions and is to the following effect:- "PART B. MANDAMUS, PROHIBITION, CERTIORARI. QUO WARRANTO ETC. 32. (1) An application under Section 44 of the Constitution for a direction, order or writ in the nature of mandaus, prohibition, certiorari, quo warranto etc., other than a writ in the nature of habeas corpus shall be filed before the Deputy Registrar. (2) The application shall set out the name and description of the applicant, the exact nature of She relief sought and the grounds on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures if any, in addition to a separate copy for each one of the respondents. The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall b;- properly indexed." The above would show that exact nature of a relief sought by the petitioner has to be specified in the application and also that a certified copy of the impugned order has to be attached with the petition. This provision is fully backed by the consistent practice that a writ petition is only entertained if a copy of the impugned order is attached with it. It cannot be ruled out that in certain extra­ ordinary circumstances the production of certified copy of the impugned order may be dispensed with but such a relaxation can only be justified if there are compelling reasons for doing so. In the present case no copy of any order was before the High Court. In fact any such order or action was not brought to the notice of the High Court. Therefore, the High Court was not competent to quash orders which were not produced or challenged before it. Before parting with the case we may point out that "de facto doctrine" which has been given due recognition by the Courts of law is not only applicable to a Judge but it also applies to certain officers. Under that doctrine the contravention of a constitutional provision may invalidate an appointment but the acts done and functions performed by a person who held that office acting under the colour of lawful authority continue to be valid and effective. This doctrine has recently been applied by this Court in Amjad Hussain and others vs. Ghulam Rasool Mir (Criminal Appeal No.6 of 1990). It is not, therefore, necessary that the actions of Col. (Rtd.) Muhammad Naqi Khan as Minister of the Government may be declared invalid if and when challenged. However, since this matter is not directly before us, we leave this appect of the matter open to be examined where it falls for determination.As upshot of the above discussion, we accept the appeal filed by the Azad Government of the State of Jammu and Kashmir and order that the following words occurring in para 14 of the judgment of the High Court shall stand expunged: "Thus all actions, orders, functions performed by the respondent as Minister are without force of law". It was prayed by the learned counsel for the Government as well as by Mr. Manzoor Hussain Gillani, appearing for legal representatives of Col. (Rtd.) Muhammad Naqi Khan, that the order of the High Court may be modified to the extent that the order may be made effecitve from the date on which it was announced and not from the date on which Col. (Rtd.) Muhammad Naqi Khan was sworn as Minister. We have gone through the judgment of the High Court and we note that the High Court has not held, except in the portion which we have ordered to be expunged, that Col. (Rtd.) Muhammad Naqi Khan ceased to be a Minister on the date on which he was sworn in as such. After expungment, as ordered above, there remains no other reference which needs to be expunged or modified. (MBC) ' Appeal accepted.

PLJ 1991 SC (AJK) 26 PLJ 1991 SC (AJK) 26 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, JJ. KARAM HUSSAIN-Petitioner Versus BASHARAT HUSSAIN and another-Respondents Criminal Revision Petition No.l of 1990, dismissed on 4.3.1991. [In matter of review of judgment of Supreme Court, dated 20.12.1989, in Cr. petition for Leave to Appeal No.3 of 1989]. (i) Amendment-- —-Amendment in Islamic Penal Laws Act-Effect on pending cases-Whether amendment would operate retrospectively-Question of~Amendment in question is not merely procedural in nature but affects substantive rights of parties-It cannot be said that amendment in question is merely procedural in nature and does not affect vested rights of prosecution or defence—When punishment, penalty or obligation is changed by amendment, that does not fall within purview of procedural law-Held: It is settled law that if alongwith procedure, vestd rights of parties are also affected, amendment would always operate prospectively and not retrospectively-Held further: Instant case which is subjudice in court of Sessions Judge, would be tried and disposed of by Sessions Judge and shall not be transferred to District Criminal Court. [Pp.29,31&32]B,C,D&E PLD 1969 SC 599, PLD 1969 SC 187, PLD 1969 Pesh. 62, PLD 1981 AJK 123 and PLD 1981 AI&K 88 discussed. PLD 1969 Lah. 24, PLD 1970 Quetta 27, PLD 1968 Karachi 480, PLD 1965 Lah. 54, PLD 1968 Dacca 143, PLD 1967 Lah. 828 and PLD 1973 Lah. 114 rel. (ii) Review-- —Amendment in Islamic Penal Laws Act-Effect on pending cases-Whether review is not competent-Question of—In this case, two contrary orders by this court have come into existence-Held: It has become necessary to elucidate matter so as to remove confusion created by orders. [Pp.28&29]A 1973 SCMR 210 distinguished. PLD 1969 SC 77 and 1975 SCMR 16 ref. Mr. Muhammad Abdul Khaliq Ansari, Advocate for petitioner. Ch. Muhammad Azam, Advocate for non-petitioner No.l. Ch. Ali Muhammad, Advocate General for State. Date of hearing: 25.2.1991. order This review petition has been directed against the order of this Court dated 20-12-1989, whereby the petition for leave to appeal filed by the petitioner, herein, was dismissed in default with certain observations. Brief facts giving rise to the present petition are that an amendment was brought in section 24 of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974, whereby sub-section (2) of the said provision was deleted. The question arose before the trial Court as to what would be the effect of the amendment on the case in hand which was pending in Court of the Sessions Judge. The Sessions Judge opined that amendment would not affect his jurisdiction to proceed with the trial, Consequently, a revision petition was filed in the High Court by the nonpetitioner, BasharaS Hussain, against the order of the trial Couri. The revision petition was heard 'and disposed of by the Division Bench of the High Court vide its order dated 25-1-1989; holding that aforesaid amendment would not affect ihc jurisdiction of the Sessions Judge to continue with the trial of too case. A petition for leave to appal was preferred by Karam Hussain, petitioner herein, to this Court which was disposed of vide order dated 20-12-1989 as a result of an application by the counsel of Karam Hussain wherein it was staled that as the matter at issue had been resolved in some other similar petition, he did not intend to press his petition any more. Thus, the petition for leave to appeal was dismissed in default ; but all the same it was observed in the order of dismissal that 'even otherwise the judgment of the High Court did not suffer from legal infirmity'. It so happened that previously another petition for leave to appeal, entitled "Nusrat Bi v. State," was dismissed in default by this Court wherein identical point was involved. In that case too, it was observed by this Court that the judgment of the High Court on the point did not suffer from any legal defect. The findings of the High Court in that case were contrary to the findings in the present case. It was observed in that case that the amendment in section 24 of Islamic Penal Laws Act would operate retrospectively and thus the case was held to be triable by the District Criminal Court and not by the Sessions Judge. Consequently, two contrary orders came into existence ; one in the instant case and the other in case entitled "Nusrat Bi v. Slate." It was ur.der the aforesaid circumstances that the present review petition was filed against the order whereby the pciiu^n for Icnvv to appeal was dismissed with the obsc-nations that despite the amendment (he Sessions Judge would continue to enjoy the jurisdiction in the case. I have heard the arguments. A preliminary objection has been raised by Ch. Muhammad Azam, Advocate, the counsel for non-petitioner No. 1. that the review petition was not competent. He has cited a case reported as, Ashfaq Ahmad Sheikh v. Tlie State (1973 S.C.M.R. 210). The learned counsel has contended that mere fact that a different view on the question of law is possible, is no ground for review. In the aforesaid case the review in a criminal case was sought on the grounds that the accused person should have been given benefit of doubt in view of the dictum given in the case reported as S.M. Yousuf v. S,K, Rahim (P.L.D. 1969 S.C. 77); and that the punishment awarded to the accused was harsh. So fatas the question regarding different view taken in S.M. Yousufs case was concerned, it was opined that the decision in each criminal case depends on the peculiar circumstances of the case and, thus, the view taken in the former case about the 'benefit of doubt' had no relevancy in the case of which the review was sought. In the instant case, the question as to whether the review was competent was examined at the stage of preliminary hearing; and relying on the case reported as Mst. Shatnim Akhtar v. Syed Alain Hussain (1975 S.C.M.R.16), it v/as held that failure to notice previous decision binding on the Court constitutes a good ground for review although misapplication of principle laid down in an earlier case, after considering the same, may not furnish a ground for review. In the instant case, as has already been pointed out, two contrary orders by this Court have come into existence and, thus, it has become necessary to elucidate the matter so as to remove the confusion created by the orders. It may be observed that in both the cases, i.e., the case entitled Mst. Nusrat Bi v. Vie State (Criminal Petition for Leave to Appeal No. 7 of 1987, decided on 6-4-1988) and the case under review, the arguments were not heard on the merits; rather the petitions for leave were dismissed for non-prosecution. However, while dismissing the said petitions, it was casually observed that the relevant judgments did not suffer from any legal infirmity. The learned counsel for the petitioner, Mr. Muhammad Abdul Khaliq Ansari, has contended that the amendment, whereby sub-section (2) of section 24 of the Islamic Penal Laws Act was deleted, is procedural in nature and, thus, the same would operate retrospectively and the case in hand which was previously B subjudice before the Sessions Judge would not be tried by the District Criminal Court. The learned counsel has cited the following authorities in support of his I contention. In \ ; abi Ahmed v. Home Secretary, Government of West Pakistan, Lahore . (P.L.D. 1969 S.C. 559), it was opined that procedural law may operate retrospectively. However, it was opined that it is not easy to draw a line between substantive and procedural law. The law of procedure was defined as a branch of law which governs the process of litigation and all the residaury laws which do not relate to the process of litigation but to the purpose of subject-matter, are substantive laws. InAdnan Afzal v. Capt. Sher Afzal (P.L.D. 1969 S.C. 187), it was observed that if a law is merely procedural in nature, it would operate retrospectively, however, if such a legislation alters the rights of the parties and takes away a substantive right that would not operate retrospectively but prospectively. InAlifdin v. ShaukatAli (P.L.D. 1969 Pesh. 62), it was observed that change of forum by a statute is a matter of procedure and would always operate prospectively. In State v. Gul Bahar (P.L.D. 1981 Azad J & K 123), the facts were that some appeals against the judgments of District Criminal Court were pending before the High Court. An amendment was made in sections 23, 25 and 31 of the Islamic Penal Laws Act, 1974, whereby the right of appeal and revision against the judgment and order of the District Criminal Court was provided to the Shariat Court instead of the High Court. It may be stated that before the aforesaid amendment, the appeal and revision against the judgment or the order of the District Criminal Court lay to the High Court. The Full Bench of the High Court expressed the view that the amendment was mere procedural and, thus, it would operate retrospectively and the appeals pending in the High Court would be heard by the Shariat Court by virtue of the aforesaid amendment. In State v. Sahib Dad (P.L.D. 1981 Azad J & K 88), sub-section (2) to section 24 of the Islamic Penal Laws Act was added as under: Before the aforesaid amendment in section 24,. the murder cases were tried by the District Criminal Court. However, after the aforesaind amendment, the question arose as to whether the case which falls within the purview of the amendment and was pending in the District Criminal Court should be transferred to Sessions Judge. The High Court held that as the amendment was not merely a procedural in nature, the cases cannot be transferred to the Sessions Judges and the District Criminal Courts would continue to hear the cases pending before them. It may be observed here that the aforesaid amendment which was made in section 24 of the Islamic Penal Laws Act has now been deleted by an amending Ordinance (now Act) and thus resulted in present controversy. Thus, the legal proposition involved in the case reported as State v. Sahib Dad (P.L.D. 1981 Azad J & K 88) was identical to the case in hand ; at the time of said controversy the cases were being tried by the District Criminal Court when sub-section (2) was added by way of an amendment wheras at present the case in hand is subjudice before the Sessions Judge when the aforsaid sub-section (2) of section 24 of the Islamic Penal Laws Act has been deleted. So far as the case reported as State v. GulBahar (P.L.D. 1981 Azad J & K 123) is concerned, the same is distinguishable because in that case the question involved was as to whether the High Court would continue to hear the appeals, revisions etc. against the judgments and orders of the District Criminal Court or the same would be heard and disposed of by the Shariat Court. The High Court held that as the matter merely pertained to the change 61" forum, the amendment would operate retrospectively. In case reported as State v. Sahib Dad (P.L.D. 1981 Azad J & K 88). while dealing with the effect of the Islamic Penal Laws Act, it was observed as under:- "The first point for determination is whether the amendment in question is merely a procedural one or it is more than that and affects the substantive rights of the parties. Even a cursory glance at sub-section (2) of Section 24 shows that if the provisions of the Islamic Penal Laws Act of 1974, are applicable to a case but evidence required by the said Act is not available, the accused would be challaned under 'other laws' for their offences, and the forum for the trial would be the Courts constituted under the Criminal Procedure Code and not under the Islamic Penal Laws Act. It is obvious that, according to the amendment, if the required evidence is missing, the accused will be challaned under 'other laws' such as A.P.C. etc. and not under the Islamic Penal Laws Act. It may be pointed out that definitions of offences under the Islamic Penal Laws Act, in some cases, are different from those in the Penal Code. The offences, of murder and 'Zarrar' are compoundable under the Islamic Penal Laws Act while under the Penal Code, the offences of murder and grievous hurt are not compundable. Again, under Islamic Penal Laws Act, punishments for offences may be different from those prescribed in the Penal Code. It is obvious that the amendment in question is not only a procedural one but it is much more than that which affects the substantive provisions of law and as such, the argument that the amendment being merely procedural in nature, would operate retrospectively, is not tenable." It may be stated that principle laid down in the above mentioned authority is fully applicable to the case in hand. The amendment in question is not merely procedural in nature but affects the substantive rights of the parties, for instance, the punishments prescribed under Section 3 of the Islamic Penal Laws Act are not identical to those which are prescribed under the provisions of the Penal Code. Under Section 3 of the Islamic Penal Laws Act, following punishments have been prescribed: Thus, the punishments prescribed under Section 3 of the Islamic Penal Laws Act which may be awarded in case the offence of murder is proved are not identical to those envisaged under the Penal Code. Similarly, the definition of different kinds of murders are also not identical to those prescribed under the Pcncal Code. Needless to say that if in view of the aforesaid amendment, the case is transferred to the District Criminal Court, any of the punishments prescribed under section 3 of the Islamic Penal Laws may be awarded. Thus, it cannot be said that the amendment in question is merely procedural in nature and does not affect the vested rights of the prosecution or defence. When the punishment, penalty or obligation is changed by an amendment, that does not fall within the purview of procedural law. It is settled law that if along with procedure the vested rights of the parties are also affected, the amendment would always operate prospectively and not retrospectively. I am fortified in my view from the following cases:- 1. Tlie Essential Industries v. Central Board of Revenue (PLD 1969 Lah. 24). 2. Syed Muhammad Azim v. Tlie State (P.L.D. 1970 Quetta 27). 3. Yusuf Abbas v. Mst. Ismat Mustafa (P.L.D. 1968 Karachi 480). 4. Maitlvi Muhammad Jamil v. NoorKJian (P.L.D. 1965 Lah. 54). 5. Abdul Basir Bhuiyan v. Begum Asia Rahman (P.L.D. 1968 Dacca 143). 6. Sh. Fazal-ul-Rehman v. Dr. Abdul Rashid (P.L.D. 1967 Lah. 828). 7. Mirza Mahmood Sharif Beg v. Claims Commissioner, Pakistan , Lahore (P.L.D. 1973 Lah. 114). The upshot of the above discussion is that the amendment whereby sub­ section (2) to section 24 was deleted would not operate retrospectively and the instant case which is subjudice in the Court of Sessions Judge would be tried and E disposed of by the Sessions Judge and shall not be transferred to the District Criminal Court. Consequently, the view taken by the High Court and affirmed by this Court vide order under review stands. In the light of what has been stated above, the review petition is dismissed. (MBC) (Approved for reporting) Review petition dismissed.

PLJ 1991 SC (AJK) 32 PLJ 1991 SC (AJK) 32 [Appellate Jurisdiction] Present: sardar said muhammad khan CJ amd basharat ahmad shaikh J . MUHAMMAD ASLAM KHAN-Appellant versus Mst. AKBAR JAN and 2 others-Respondents. Civil Appeal No. 53 of 1990, partly accepted on 1.1.1991. [On appeal from judgment and decree of High Court, dated 4.4.1990, in civil appeal Nos. 23 and 24 of 1989]. (i) Past maintenance-- -—Past maintenance-Claim by wife--Whether admissible-Question of-It is obvious from case law that a Muslim wife is entitled to past maintenance, of course, subject to limitation-However, there is difference of opinion with regard to period of limitation-Held: As there is no specific provision in Limitation Act, for a suit for past maintenance, residuary Article 120 of Limitation Act would govern such a suit. [P.34JA&B PLJ 1990 Lahore 234 affirmed. 1985 CLC 1184, NLR 1987 civil 81 (2) and PLD 1972 SC 302 discussed, (ii) Past maintenance— —Past maintenanc-Claim by wife-Whether suits would be dismissed in toto or would fail only to extent of period beyond 6 years-Question of-If part of a claim is' held time-barred, suit cannot be dismissed as a whole—Held: As claim of plaintiffs-respondents in both suits so far as it pertains to six years preceding to institution of suits, is in time, they are entitled to decree for period of six years in each case-Appeal partly accepted. [Pp.34&35]C&D Mr. Glntlam Mustafa Mughal, Advocate for Appellant. Sycd Mushtaq Hussain Gillani, Advocate for Respondents. Date of hearing: 12.12.1990. judgment Sardar Said Muhammad Khan, CJ.-This appeal has been directed against the judgment of the High Court dated 4-4-1990 whereby the appeal filed by the appellant, herein, was dismissed. Brief facts giving rise to the present appeal are that two separate suits were brought by the respondents, herein, in the Court of Sub-Judge, Haitian; one by Mst. Akbar jan for recovery of the arrears of her past maintenance; and other for the recovery of the arrears of the maintenance which were due to the children who were in her custody. The trial Court passed the decree for the amount to the tune of Rs. 24,999/- in each of the suits. Consequently, appeals were preferred to the District Judge. Subsequently it was found that in view of the relevant provisions of law, the appeals were competent to the High Court and not to the District Judge. The appellant filed an application on 5-6-1989 praying that the appeals might be returned to him so that he might file the same in the High Court. The application was allowed and thus the same were filed in the High Court. The High Court rejected the prayer for the condonation of delay in filing the appeals and dismissed the appeals as being time-barred. It was prayed by the learned counsel for the appellant in the High Court that in case his prayer for the condonation of delay in filing the appeals was not accepted, the appeals might be treated as revisions but no findings were given by the High Court on the point. The point was argued before us and was disposed of vide this Court's order dated 18-11-1990; the contention of the appellant was upheld. However, instead of remanding the case to the High Court to dispose of the appeals as revisions, we decided to resolve the relevant points ourselves. Thus, the arguments were heard on the merits of the case. The learned counsel for the appellant, Mr. Chulam Mustafa Mughal, Advocate, has argued that the judgments and decrees passed by the trial Court were not sustainable because, according to Tiqqah Hanfi', a Muslim wife is not entitled to claim the past maintenance from her husband. In alternative he has submitted that the suits were time-barred because, according to the learned counsel, a wife cannot sue for maintenance allowance for a period of more than three years preceding the suit in view of the provisions contained in the Limitation Act. He has argued that past maintenance would be deemed to be a debt due to wife and thus Ihe suit would be competent only for a period of three years preceding the suit. The learned counsel has cited some authorities in support of his contention. In case reported as Abdul Latif V. Mst. Bakhl Bhari (1985 C.L.C. 1184), it was held that section 3 of the Muslim Family Laws Ordinance, 1961, includes both past and future maintenance but past maintenance for more than 3 years preceding the suit cannot be awarded by the Arbitration Council. In Dost Muhammad V. Mst. Alain Kliatoon [N.L.R. 1987 Civil 81 (2) ] it was held that under section 9 of the Muslim Family Laws Ordinance, past maintenance beyond the period of three years from the date of filing the application would not lie. In case reported as Abdul Lalif V, Mst. Bakhat Bhari (1985 C.L.C. 1184), it was observed that the past maintenance could be claimed only for a period of three years. The learned counsel for the respondents has argued that, according to Tiqqah Hanfi', the wife is entitled to claim past maintenance. He has submitted that as there is no specific provision in the Limitation Act prescribing the period of limitation for the suit for recovery of maintenance, Article 120 of the Limitation Act would apply to such a suit and thus the period of limitation would be six years from the date when cause of action accrues. He has cited a case reported as Muhammad Aslain V. Mst. Zainab Bibi (P.L.J. 1990 Lah. 234), wherin it has been opined that as there is no specific Article in Schedule to the Limitation Act providing the limitation for filing a suit for maintenance, the residuary Article 120 of the Limitation Act would be applicable to such a suit. The learned counsel has also referred to a treatise on Muslim Law compiled by Dr. Tanzil-ur-Rahman, captioncd as 'A Code of Muslim Personal Law'. At page 272 of the said book, while dealing with the question as to whether the wife is entitled to past maintenance, it was observed that the mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies out of Court cannot in all fairness be so construed as to deprive her of the right of maintenance from the day when the cause of action accrued to her. A reference was made by the learned author to Sardar Muhammad V. Mst. Nasima Bibi (P.L.D. 1966 Lah. 703), in support of the aforesaid view. In Muhammad Nawaz V. Mst. Klmrshid Begum (P.L.D. 1972 S.C. 302) it was observed that under section 9 of the Muslim Family Laws Ordinance, the Court is empowered to award past maintenance to a wife subject to the question of limitation. We have given our due consideration to the arguments advanced by the learned counsel for the parties. It is obvious from the case law cited above that a muslim wife is entitled to past maintenance, of course, subject to the question of limitation and other relevant factors in that regard. However, there is difference of opinion wiih regard to the period of limitation:- one view is that the maintenance can be claimed only for a period of three years preceding to the institution of the suit while the other view is that the period of limitation would be six years under Article 120 of the Limitation Act. After giving due consideration to the matter we are of the view that as there is no specific provision in the Limitation Act for a suit for past maintenance, the residuary Article 120 of the Limitation Act would govern such a suit. Therefore, we affirm the view taken in case reported as Muhammad Aslam V. Mst. Zainab Bibi (P.L.J. 1990 Lah. 234), referred to above, and hold that the respondents were entitled to maintenance in each of the suits for a period of six years. It is on the record that the plaintiffs-respondents have claimed arrears of maintenance for twelve years. The question which needs determination is as to whether the suits wil be dismissed in toto or would fail only to the extent of period beyond six years. We have no hesitation in holding that if part of a claim is held time-barred, the suit cannot be dismissed as a whole. The plaintiff in such a case would be entitled to the part of relief which is not barred by limitation. As the claim of the plaintiffs-respondents in both the suits so far as the same pertains to six years preceding to the institution of the suits is in time, they are entitled to decree for the period of six years in each case. Therefore, we reduce the decretal amount in each of the suits by one half. The upshot of the above discussion is that we partly accept the appeal and amend the judgments and decrees of the trial Court in terms that in both the suits, the plaintiffs-respondents shall be entitled to a decree to the tune of half of the amount which was decreed in their favour by the trial Court. Consequently, the judgments and decrees of the trial Court in each case would be valid to the half of D the amount which was decreed in favour of respondents in each case; in each of the suits decree would be valid to the extent of Rs. 12,499.50 plus proportionate costs awarded by the trial Court. The total decretal amount in both the suits would be Rs. 24,999/-. In view of the circumstances of the case, we make no order as to the costs so far as this Court is concerned. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1991 SC (AJK) 35 PLJ 1991 SC (AJK) 35 [Appellate Junisdiction] Present: sardar muhammad ashraf khan and basharat ahmad shaikh JJ. AZAD JAMMU & KASHMIR GOVERNMENT, THROUGH ITS CHIEF SECRETARY-Appellant versus SIKANDAR KHAN and another-Respondents. ] Civil Appeal No.28 of 1990, dismissed on 1.1.1991. [On appeal from judgment and decree of High Court,'dated 5.3.1990 in C.A. No. 28 of 1986]. (i) Azad Jammu & Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- —S.42(ll)(d)--Decree passed by District Judge was affirmed by High Court- Clause (d) does not apply to judgments of affirmation even if amount or value of subject matter is more than Rs: 50000/- —Held: Appeal is liable to be dismissed on this ground. [P.37]B (ii) AJ&K Supreme Court Rules, 1978-- —-O.XII R.5~Copies of judgment and decree not filed-Effect of--Rule 5 of Order XII of Supreme Court Rules requires that certified copies not only of judgment and decree appealed against but also of trial and lower appellate Courts shall accompany petition of appeal-Held: This is mandatory provision and its violation entails dismissal of appeal. [P.36]A Raja Muhammad Hanif KJian, Advocate for Appellant. Mr. Muhammad Farid Klian, Advocate for Respondent No.l. Date of hearing: 22.12.1990. judgment Basharat Ahmad Shaikh, J.--This is a civil appeal under clause (d) of Section 42 (11) of the Azad Jammu and Kashmir Interim Constitution Act which has been filed on the ground that the value of the subject-matter in dispute is more than Rs.50,000/-. The learned District Judge Muzaffarabad passed a decree to the tune of Rs.1 ,96 , 847/- in favour of Sikandar Khan, respondent herein, who is a Government Contractor. Appeal filed by the Azad Government was dismissed on a technical ground with the result that the decree passed by the District Judge was affirmed. Mr.Muhammad Farid Khan, the learned counsel for respondent No.l Sikandar Khan, has raised a preliminary objection that the appeal is liable to be dismissed on the short ground that the appeal filed in this Court was not accompanied by the judgment and decree passed by the learned District Judge as is required by Order XII rule 5 of the Supreme Court Rules. He relies on two judgments of this Court, Government of Pakistan and another V. Tariq Hussain Farooqi (N.L.R. 1984 S.C.J. 334) and Azad Government V. Sardar Ghulam Nabi (Civil Appeal No. 1 of 1984). The relevant part of rule 5 mentioned above is as follows:- "5. The petition of appeal shall be accompanied by:- (/) certified copies of the judgment and decree or order appealed against as well as those of trial and lower appellate Courts; This rule requires that certified copies not only of the judgment and decree appealed against but also of the trial and lower appellate Courts shall accompany the petition of appeal. This is a mandatory provision and its violation entails dismissal of the appeal. The objection raised by the learned counsel is fully supported by the two judgments referred to above. Even otherwise the appeal is not maintainable in view of the clear provision of clause (d) of Section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act under which the appeal has been filed. The relevant parts of sub­ section (11) are as follows:- "42. (11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmin- (a) xxxxxx xxx (b) xxxxxx xxx (c) xxxxxx xxx (d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council 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 In the present case, as already noted, the decree passed by the learned District Judge was affirmed by the High Court. The law is clear that clause (d) reproduced above does not apply to judgments of affirmation even if the amount or value of the subject-matter is more than Rs.50 ,000 . The appeal is, therefore, liable to be dismissed on this ground also. Confronted with this difficulty, the learned counsel for Azad Government, Raja Muhammad Hanif Khan, prayed that petition of appeal may be treated as a petition for leave to appeal and may be disposed of as such. We note that the period of filing a petition for leave to appeal is sixty days while the petition filed by the learned counsel has been filed beyond the period of limitation. Thus, even if the petition is treated as one for leave to appeal it would still entail dismissal. The learned counsel for the respondent, Muhammad Farid Khan, also contended that the proper Court fee was not deposited in this Court and when the Registrar of the Court ordered the appellant to deposit the necessary fee he did not do so and sought adjournments for a number of time. He, therefore, contended that the appeal was liable to be dismissed on that ground. Since, we have decided to dismiss the appeal on the grounds already mentioned, we need not decide this question as it has become academic in nature. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC(AJK) 37 PLJ 1991 SC(AJK) 37 [Appellate Jurisdiction] Present: sardar said muhammad khan CJ and basharat ahmad shaikh, J AZAD JAMMU & KASHMIR GOVERNMENT, THROUGH CHIEF SECRETARY and another-Appellants versus Syed ZAMAN ALI SHAH and 3 others-Respondents Civil Appeal No. 61 of 1990, accepted on 13.4.1991. [On apeal from judgment of High Court, dated 19.6.1990, in W.P. No. 27 of 1990] (i) Expunction of remarks-- —Civil servant-Promotion of~Challenge to~Expunction of remarks-Prayer for-It is stated in allegations that case for promotion of appellant No. 2 had been referred to Selection Board-No blame could lie on Government-Held: Observations made by High Court were not well founded—Held further: Remarks are disparaging in nature and amount to condemnation of person who passed order impugned before High Court—Appeal accepted and order of High Court set aside. [P.42]C intention. Another objection raised in the petition was that an Assistant Superintendent of Police could not be promoted as Superintendent of Police without the approval of-the Selection Board but no such approval had been given in the case of Fahim Ahmad Khan. 3. In the written statement filed it was averred by the Additional Advocate General that the order challenged in the writ petition was merely a transfer order and that since Fahim Ahmad Khan had been transferred and posted in his own pay and grade it was a purely an ad hoc arrangment, it could neither be taken as a promotion nor a permanent appointment. It was also contended that the order did not adversely affect the rights of the writ petitioners and they were not, therefore, aggrieved parties. The allegation of mala fide was also contested and it was pointed out that no reason or instance of any malice had been quoted in the writ petition. 4. A learned single Judge in the High Court accepted the writ petition and set aside the impugned order. While doing so the learned Judge formed the view that the order was in fact an order of promotion and that Fahim Ahmad Khan could not be promoted as Superintendent of Police because he had not served as A.S.P. for five years as required by rule 4 mentioned above. The learned Judge also formed the view that even if it is treated as an ad hoc appointment it would still be illegal because only that person can be promoted on ad hoc basis who possesses the qualification for the post and had been approved by the Chairman of the appropriate Selection authority which had not been done in the case. 5. Azad Government of the State of Jammu and Kashmir and Fahim Ahmad Khan have filed appeal with the. leave of the Court. The learned counsel for the appellants, Raja Muhammad Hanif Khan, raised inter alia, the following grounds:- (/") that the appellant No.2 Fahim Ahmad Khan was not allowed reasonable opportunity in the High Court to file written statement in the case and had been proceeded against ex-pane without there being such an order; (ii) that the High Court had no jurisdiction in the case because the subject matter of the writ petition was within the jurisdiction of the Service Tribunal and, therefore, the order of the High Court violates Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, which prohibits any Court from making any order in respect of any matter to which the jurisdiction of the Service Tribunal extends; (Hi) that the order was in fact an order of transfer and was in any case a stop­ gap arrangement and did not give any cause of action to the writ petitioners and, therefore, practically the writ has been issued without their being an aggrieved party; and (/v) that there was no specific allegation of malice, but certain adverse remarks have been recorded without justification which need to be expunged. 6. Sardar Rafique Mahmood Khan has on the other hand defended the order of the High Court. 1. We may point out that the question of jurisdiction was not raised before the High Court and was raised for the first time in this Court in the petition for leave to appeal as well as in the concise statement. Leave was granted, inter alia, to consider whether the High Court had jurisdiction to set aside the impugned order in exercise of the writ jurisdiction or whether the Service Tribunal alone has the jurisdiction in the matter. It is no longer disputed that the question of jurisdiction can be raised in this Court for the first me. 8. Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act the Service Tribunal has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service. Terms and conditions of civil servants are large in number and so scattered that i is not easy to summarise them but the plain fact is that some of them can be easily found in the Civil Servants Act in Chapter II. The title of chapter II is "TERMS AND CONDITIONS OF SERVICE OF CIVIL SERVANTS". Section 3 which is the first section in the Chapter lays down as follows:- "The terms and conditions of service of a civil servant shall be as provided in this Act and the rules." 9. One of the section in chapter II is Section 8 which deals with promotion. Another section namely section 9 deals with posting and transfers while section 11 deals with reversion to lower grade or service. Since these sections are part of chapter II mentioned above these three matters are terms and conditions of civil servants. A perusal of the judgment under appeal shows that the High Court has dealt with these three matters. We may first note that in para 5 the High Court observed as follows:- " In case it is construed that the impugned order does not tantamount to promotion, the petitioners, obviously, would have no grievance and would be incompetent to seek their redress by invoking special jurisdiction of this Court. Conversely, if the order is construed as a promotion feigned as posting, the petitioners undoubtedly, are aggrieved party, as such competent to challenge the validity and propriety of the impugned order." 10. Then in para 11 the High Court recorded the following findings:- "It is accepted by the learned Additional Advocate General that the post of S.P. is a permanent senior post. It is a selection post and it is to be filled in according to the method postulated under rule 4(2) (a), (b), (c) & (d) of the P.S. Rules. Respondent No. 2, who is presently an A.S.P., ordinarily cannot be transferred as S.P., unless he is promoted and posted as such. This is so, as presently he is functioning as A.S.P. and the • post of A.S.P. is admittedly a junior post. On account of disparity between the two posts and the rank of the officers, it is undenied that the respondent, who is an A.S.P. cannot be transferred, in the ordinary course of events, and posted against a senior post of higher cadre and a selection post. It is correct that vide the impugned order, the respondent (No,2) is placed in the same grade and he has to draw the same salary, but it is undenied that by his posting as S.P. he would avail all the benefits and facilities which are admissible to the post of S.P. and would exercise the powers which accompany to the post of S.P. Thus, by virtue of availaing the other benefits and facilities and by exercising the powers of a senior post, the respondent is obviously placed in the position of his promotion. Thus the impugned order which purports to be a transfer order, is in fact an order of indirect promotion of respondent No.2." 11. It is apparent from the portions of the judgment as reproduced above that the High Court reaced a definite conclusion that the order impugned was an order of promotion. We have already seen that promotion is one of the terms and conditions of servcice and is in the exclusive jurisdiction of the Service Tribunal. This ieads us to the conclusion that the High Court has exercised jurisdiction which is vested hi the Service Tribunal which means that there is complete ouster of jurisdiction of the High Court in this matter. If it was a promotion order, as held by the High Court, the vacation of the order has resulted in the reversion of Fabim Ahmad Khan which again, as already seen, is one of the terms and of service as is evident from section 11. We have no doubt that the High Court was not competent to order the reversion of Fahim Ahmad Khan, appellant before us. 12. The case of the Government before the High Court was that the order before the High Court was only a transfer order. The High Court did not accept the plea and held it to be a promotion order. In our view even if the order was one of transfer the High Court would still have no jurisdiction hi the maner because posting and transfer is also one of the terms and conditions laid down in section 9 of the Civil Servants Act. 13. Before closing the judgment we have to dispose of the prayer made by the learned counsel for the appellants that a portion of the judgment of the High Coort is un-called for and may be expunged. The portion to which objection has been raised runs as follows: "It is relevant to state here that the impugned order is one of the series of post election orders issued by the out-going Government. It may be called the last kick of the horse leaving the stable of power." 14. Raja Muhammad Hanif Khan, the learned counsel for the appellant, in support of his contention submitted that no specific instance of malice had been made in the writ petition and in any case there was no material available on the record which could lead to the inferences incorporated in the portion objected to. We have looked into the writ petition and find that the allegation regarding mala fide was made in two places. In ground (b) in para 6 of the writ petition it was alleged that the petitioners had been ignored by the Governmet with mala fide intention. This obviously is a general allegation lacking in material particular and, in our opinion, such could not form basis of the extracted observation. The other allegation is contained in clause (d). In ground (d) the allegation was to the following effect:- "The petitioner's case for promotion and selection was referred to the Selection Board in the month of January 1990, but the same has been kept pending with the mala fide intention to give undue beneifts to the respondent No.2 who has been posted as S.P. without keeping in view the relevant Rule and in disregard of Selection method." 15. It is clear from the above that the delay which was caused in the Hnalisation of the selection was attributable to the Selection Board and not the Government. In fact it is stated in the allegation reproduced above that the case for promotion had been referred to the Selection Board. It clearly shows that job which had to be done by the Government had been performed well in time. In this view of the matter no blame could lie on the Government. Our view, therefore, is that the observations made by the High Court were not well founded. The remarks are disparaging in nature and amount to condemnation of the person who passed the order set aside by the High Court. However, we do not feel it necessary to formally expunge these remarks for two reasons. Firstly, because although the grievance was expressed in the memo of appeal regarding the remarks under reference but no formal prayer for expunction was made; and secondly because the judgment is being vacated as a whole. 16. We, find that there is substance in the other argument of the learned counself for the appellant that no eX-parte order was passed against Fahim Ahmad Khan but he was not afforded an opportunity to file a written statement. However, since the order of the High Court as a whole is being set aside there is no need to record a separate order in this respect. As an upshot of the foregoing, the appeal is accepted and order of the High Court is set aside. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC(AJK) 42 PLJ 1991 SC(AJK) 42 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHAIKH, J. MUHAMMAD RAFIQ and another-Appellants versus Haji MUHAMMAD SHAFI KHAN and 2 others-Respondents Civil Appeal No.62 of 1990 accepted on 29.5.1991 [On appeal from Judgment of High Court, dated 21.10.1990, in W.P. No.31 of 1984] (i) Administration of Evacuee Property Act, 1957 (XII of 1957)-- —S.18-A(6)~Entitlement certificate—Issuance 6f~Whether Custodian could cancel it-Question of-Entitlement certificate was issued on wrong assumption of a material fact and it was an omission apparent on face of record-There is no bar in Section 18-A(6) of Act that Rehabilitation Commissioner cannot exercise review powers-Held: Order passed by Rehabilitation Commissioner on review petition is legally unexceptionable-Held further. Custodian committed a mistake in ordering cancellation of entitlement certificate instead of modifying Proprietory Rights Transfer Order-Appeal accepted. [P.51JD&E (ii) Revicw- —Entitlement certificate-Issuance of~Whether Custodian or High Court could examine validity of entitlement certificate—Question of~Section 18-A of Administration of Evacuee property Act does not lay down that if Proprietory Rights Transfer Order has been issued, power of review cannot be exercised by Rehabilitation Commissioner-Held: Custodian is bound by law to proceed ~- oo assumption that entitlement certificate is correct and legal-Held further: Power of High Court under Section 18-A(5) of Act does not extend to examinabao of validity of entitlement certificate. [Pp.47,48,49&50]A,B&C 5«nfar fafujut Mahmood Khan, Advocate for Appellants. Rajs Muh&nmod Hani/Khan, Advocate for Respondent No.l Nemo for Respondents 2&3. Date of hearing: 5.5.1991. judgment The order nder appeal in this case was passed by a learned single Judge of the High Coon m 2L10.1990, whereby a writ petition filed by respondent No.l Muhammad Shafi Khan, was accepted and the order passed by the Rehabilitation CommissioQer on LL2.1984 and the order passed by the Custodian on 8.10.1984 were vacated. Consequently the Proprietary Right Transfer Order issued by the Custodian on 2.12.1982 in favour of Muhammad Shafi Khan was "restored. 2. The land in dispute, survey Nos.747 and 748 in Chhota Gala, Tehsil Rawalakoc was originally allotted in the name of Sub. Muhammad Shafi son of Mohabat Khan and Syed Sarwar Shah. This allotment was cancelled by a Government Order which was issued on 21.6.1979 after taking necessary proceedings. Consequent upon this cancellation the land was then allotted to Muhammad Rafique Khan and Burhan Khan appellants on 16.1.1980. This order .was challenged by respondent Muhammad Shafi Khan before the Deputy Rehabilitation Commissioner on the ground that land under survey Nos.747 and 748 already stood allotted to him. Another appeal was filed by one Sub. Nazir Muhammad Khan (not before me) to challenge the order dated 16.1.1980. Both these appeals were heard and disposed of together by Deputy Rehabilitation Commissioner Poonch on 30.8.1980. The order of allotment was set aside on various grounds which need not be enumerated here and the case was remanded to A.R.C. Rawalakot with the direction hat the matter may be examined afresh in light of some directions given in.that order. It was also directed that the claim of Sub. Nazir Muhammad Khan and Muhammad Shafi, the present respondents, may also be considered before passing the fresh order of allotment. The matter of allotment went before the A.R.C. in pursuance of the aforesaid order of the D.R.C. on 5.3.1983. Muhammad Shafi respondent brought to the notice of the A.R.C. that he had already obtained proprietary rights of the land in dispute. Thereupon the A.R.C. terminated the proceedings pending with him. Thereafter appellants Muhammad Rafique Khan and Burhan Khan initiated three actions as under:- (/) On 17.3.1983 they filed a review petition with the Rehabilitation Commissioner in which they stated that they had come to know on 5th of March 1983 during the proceedings before the A.R.C. that the Rehabilitation Commissioner had on 4.11.1982 issued an entitlement certificate in favour of Muhammad Shafi Khan. They prayed that the certificate may be cancelled. They enumerated different grounds in order to prove their contention that the entitlement certificate had been issued without legal justification. They submitted that in fact there was no subsisting allotment in favour of Muhammad Shafi and therefore there would be no question of issuing any entitlement certificate in his favour. They also averred that they had been in possession of the disputed land since 1959 and that they were entitled to have the land allotted in their name under Council Order No.25/6O, (if) On the same day (17.3.1983) Muhammad Rafique and Burhan Khan filed a review petition with the Custodian of Evacuee Property praying that the Proprietary Rights Tranfer Order issued by the Custodian on 2.12.1982 may be recalled; (hi) On 21.3.1983 Muhammad Rafique and Burhan Khan filed a revision petition in the High Court against the order passed by the Custodian on 2.12.1982 granting Proprietary Rights Transfer Order in favour of respondent Muhammad Shafi Khan. This revision petition was filed under sub-section (5) of Section 18-A of the Administration of Evacuee Property Act 1957. 3. Out of the proceedings initiated by Muhammad Rafique and Burhan Khan the revision petition filed in the High Court was decided first in point of time. On 2.11.1983 a Division Bench of the Azad Jammu and Kashmir High Court dismissed the revision petition holding that the Custodian whose order had been challenged before the learned Judges was bound to issue a Proprietary Rights Transfer Order on the basis of the certificate of entitlement issued by the Rehabilitation Commissioner provided that necessary costs and dues are paid. The High Court held that the Custodian did not possess the power to refuse the grant of Proprietary Rights Transfer Order to a person who holds an entitlement certificate. In this view of the law the learned Judges formed the view that the order of the Custodian suffered from no illegality. While doing so the learned Judges followed the view expressed in the case of Sardar Muhammad Arif KJian v. Sharif Hussain Bokhari (decided by the High Court on 3.3.1983). 4. The review petition filed with the Rehabilitation Commissioner on 17.3.1983 was decided on 2.12.1984. The learned Rehabilitation Commissioner noted in the order that under Section 18-A of the Administration of Evacuee Property Act 1957 Proprietary Rights Transfer Order is issued by the learned Custodian on the basis of an entitlement certificate and that the learned Custodian was not legally authorised to give any finding in respect of correctness or otherwise of the entitlement certificate. Since proprietary rights were granted by the Custodian on the basis of the entitlement certificate the powers of revision vested in the High Court were limited and the High Court had always felt advised •not to interfere as was evident from the different decisions of that Court. The learned Rehabilitation Commissioner further noted that if there is any error in the entitlement certificate it is only the Rehabilitation Commissioner who can correct it by way of a review petition and that the counsel for the parties were agreed on this point. After making these observations, the learned Rehabilitation Commissioner applied his mind to the facts of the case and by an elaborate order amended the entitlement certificate to the extent that survey No.747 measuring 1 kanal 3 marlas and survey No.748 measuring 12 kanal 12 marlas were deleted from the entitlement certificate. The learned Rehabilitation Commissioner based his order on the fact that allotment in favour of Muhammad Shafi stood cancelled by a Government order. He also noted that the matter was pending before the Assistant Rehabilitation Commissioner. He expressed the view that in such a situation no entitlement certificate could legally be issued. In light of his finding the learned Rehabilitation Commissioner proposed to the learned Custodian, the proprietary rights in respect of khasra No.747 and 748 mentioned above may not be granted to Muhammad Shafi Khan. He also directed that Assistant Rehabilitation Commissioner Rawalakot would proceed to decide the matter of allotment in light of the order of the Deputy Rehabilitation Commissioner Poonch passed on 30.8.1980 whereby he had remanded the case to the Assistant Rehabilitation Commissioner. 5. The review petition filed with the Custodian of Evacuee Property was decided on 8th of October 1984. The learned Custodian, Mr Justice Abdul Majeed Mallick, in his order took note of the order passed by the learned Rehabilitation Commissioner on 12.2.1984 and ordered that entitlement certificate shall be deemed to have been cancelled. 6. The aforementioned orders passed by the learned Rehabilitation Commissioner and the learned Custodian were challenged before the High Court by way of a writ petition by respondent Muhammad Shafi. The writ petition was 7. dismissed in limine on 1.2.1987 by Mr Justice Muhammad Akram Khan. However, an appeal brought to this Court succeeded on 3.12.1988 and the case was remanded to the High Court after indicating the law points which were involved in ~ the case but had been left un-decided in the order of the High Court. After the remand the case was re-heard in the High Court by a learned single Judge who accepted the writ petition by order passed on 21.10.1990. This is the order which is now the subject-matter of this appeal. The learned Judge, while accepting the writ petition, has set aside the orders passed by the learned Rehabilitation Commissioner and the Custodian of Evacuee Property on 2.12.1984 and 8.10.1984, respectively. The reasoning on which the order is based is that the revision petition filed in the High Court had been dismissed by a Division Bench of the High Court and since the order passed by the High Court was not-challenged before the Supreme Court it had attained finality. The learned Judges expressed the view that after the decision of the superior forum the respondents before the High Court were not legally entitled to seek an alternate remedy through a review petition before an inferior forum, namely, Rehabilitation Commissioner. He also held that the Rehabilitation Commissioner was an inferior forum and therefore had no competence to recall the entitlement certificate after the decision of the High Court. 7. I have heard Sardar Rafique Mehmood Khan and Raja Muhammad Hanif Khan, the learned counsel for the parties. Sardar Rafique Mehmood Khan vehemently contended that the view taken by the High Court does not find support from any legal provision. He contended that under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act the High Court can exercise jurisdiction only if an order has been passed without lawful authority but the orders passed by the Rehabilitation Commissioner and the Custodian had been passed in exercise of the powers conferred on them undisputably by Section 18-A of the Administration of Evacuee Property Act 1957. He contended that there was 'no question of a forum being inferior or superior because the order passed by the High Court did not relate to the merits of the case and only proceeded on the interpretation of the relevant provision of law constituting the remedy of revision before the High Court. He took me through the judgment of the High Court and the order passed by the Rehabilitation Commissioner to show that Rehabilitation Commissioner had not dealt with any thing which had been decided by the High Court. Sardar Rafique Mehmood Khan then relied on Section 44-B of the Azad Jammu and Kashmir Interim Constitution Act which reads as follows: - "44-B. Decision of High Court binding on subordinate Courts.~Subject to Section 42-B, any decision of the High Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it". 8. In light of this provision, Sardar Rafique Mahmood Khan contended that a decision of the High Court would be binding only to the extent that it decides a question of law or enunciates a principle of law which is not the situation in the present case. The learned counsel cited the following case law hi support of the proposition that lawful orders passed by an authority could not be set aside under writ jurisdiction: - 1. The Tariq Transport Company, Lahore v. Sargodha-Bhera Bus Service Sargodha (PLD 1958 S.C. 437), 2. Mirza and another v. Mst.Sardar Begum (1970 S.C-M.R. 361), 3. Maqbool Ahmad v. The Member (Colonies), Board of Revenue, Punjab (1986 S.C.M.R. 1371), 4. R.SJhamandas & otiiers v. The Chief Land Commissioner, West Pakistan and others (PLD (?) S.C. 229), 5. Jalal Din and ofaers v. Sheikh Muhammad Rafique, Settlement Commissioner (PLD 1965 S.C. 261), 6. Muhammad Yousuf v. The Collector of Sea Customs, Karachi and others (PLD 1969 S.C. 153) and I. Fauji Foundation and another v. Shamimur Rehman (PLD 1983 S.C. 457). 9. In respect of the merits of the case the learned counsel for the appellants supported the order of the Rehabilitation Commissioner and pointed out that the facts given in the order passed by him were correct and that there was no subsisting allotment on the basis of which an entitlement certificate could be issued. 10. Raja Muhammad Hanif Khan vehemently supported the order of the High Court. He submitted that after the decision of the High Court the learned Rehabilitation Commissioner and for that matter the learned Custodian of Evacuee Property were not competent to examine the legality, of the orders in respect of which the High Court had passed a judgment. He also contended that the entitlement certificate had merged in the Proprietary Rights Transfer Order, therefore, the Rehabilitation Commissioner was left with no jurisdiction to hear a review petitjon. He cited two cases decided by this Court titled SubazAli v. Kala Khan (Civil PLA No.63 of 1986 decided on 14.12.1986) and Pir Muhammad v. Noor Muhammad (Civil Appeal No.19 of 1986 decided on 18.3.1989). II. It was next contended by Raja Muhammad Hanif Khan that the powers of review in any case were confined to "clerical mistakes" and "omission apparent on the face of the record"; and that the orders passed by the learned Rehabilitation Commissioner and the learned Custodian did not fall within these expressions. In this connection he relied on Mst. Nargb.BM v. Muhamma Ibrahim (1983 C.L.C. 370) and Mst.Sardar Begun v. Ahmad Khan (1983 C.L.C. 621). ' 12. The order passed by the Rehabilitation Commissioner on 4.11.1982 was never challenged before the High Court. The revision petition filed by Muhammad Rafique Khan and Burhan Khan is on page 24 of the paper book and a perusal of its contents makes it clear that the order challenged in the revision petition was the order passed by the learned Custodian on 2.12.1982. The order passed by the High Court by which this revision petition was dismissed thus related only to the order passed by the Custodian as aforesaid. A perusal of the order of the High Court makes it clear that the merits of the case were never considered by the learned Judge of the High Court. He only observed, as already noted, that the Custodian was bound to grant proprietary rights to a person who holds an entitlement certificate. Since the entitlement certificate was not under challenge before them the learned Judges did not go into the question whether the entitlement certificate was valid or not; or whether it suffered from any legal infirmity. It follows that the High Court was not right in reaching the conclusion that the matter had been decided by a superior forum. The review powers conferred on the Rehabilitation Commissioner by Section 18-A of the Administration of Evacuee Property Act are incorporated in sub-section (6), (as it stood at the relevant time) which runs as follows:- "18-A (1) ........................ (2) (3) (4) (5) (6) The Rehabilitation Commissioner or as the case may be the Custodian may review his own order to correct any clerical mistake or such omission which is apparent on the face of record. Provided that no order shall be reviewed without notice to the parties likely to be effected by the review. (7) ............................ - ...... 13. This provision does not lay down any condition as to when the power cannot be exercised. It does not lay down that if Proprietary Rights Transfer Order had been issued the power of review cannot be exercised by a Rehabilitation Commissioner. In fact I find that the review is the only remedy which is provided by law for correction or annulment of an entitlement certificate. Under Sub-section (4) (as it then stood) the order of Rehabilitation Commissioner refusing to issue an entitlement certificate is appealable but if such a certificate is issued there is no remedy provided by law. Under the scheme of the Act even the Custodian of Evacuee Property has been given no power to ractify the mistake or illegality, if any, contained in an entitlement certificate. He is bound by law to proceed on the assumption that entitlement certificate is correct and legal'. Power of the High Court granted under sub-section (5) of .^- Section 18-A supra does not extend to an examination of the validity or otherwise of the entitlement certificate. Since the power to issue entitlement certificate is vested in the Rehabilitation Commissioner and so far as the legality or otherwise of the certificate is concerned it is neither controlled by the Custodian nor by the High Court, it cannot be said that Rehabilitation Commissioner is subordinate either to the High Court or to the Custodian so far as the entitlement certificate is concerned. 14. The provision in relation to a review petition reproduced above is in sharp contrast to the power of review of a Court as contained in Section 114 of the C.P.C. In order to mark the difference it will be useful to reproduce Section 114 C.P.C:- "114. (Review.—(1) Subject as aforesaid, any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. (2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court." 15. It may be observed that in the provision reproduced above there is a specific prohibition to the effect that if an appeal has been filed then a review petition cannot be filed in the Court against whose decree or order appeal has be^n preferred. There is no such provision in sub-section (6) of Section 18-A, under examination, that if a revision petition has been filed against the Proprietary Rights Transfer Order issued by the Custodian of Evacuee Property no review could be filed with the Rehabilitation Commissioner in respect of an entitlement certificate issued by him. 16. Raja Muhammad Hanif Khan Advocate contended that once a Proprietary Rights Transfer Order has been issued by the Custodian a review petition does not lie against the order of issuance of entitlement certificate. He relied on two unreported cases of this Court in support of his submissions, namely. Pir Muhammad KJian v. Noor Muhammad KJian (Civil Appeal No.19 of 1986 decided on 18.3.1989) and Subaz All v. Kala KJian (Civil P.L.A. No.63 of 1986 decided on 14.12.1986. So far as Pir Muhammad's case is concerned, in that judgment I have not been able to find any reference to the proposition formulated before me by Raja Muhammad Hanif Khan or any other finding which may support his case. This judgment proceeds on entirely a different ground. The appeal filed by Pir Muhammad Khan was dismissed, broadly speaking, on the ground that the allotment order in favour of respondents Noor Muhammad Khan and others was not challenged by Pir Muhammad Khan by filing any revision, appeal or review with the competent authorities in spite of the fact that he was fully aware of that allotment. It was observed that the appellant kept quiet for 12 years despite having the knowledge of the allotment of respondent and he could not be permitted to assail the same by resorting to writ jurisdiction. It was also found that he was guilty of suppression of material facts. The other case relied upon by the learned counsel "Subaz Ali v. Kala Khan" is an order dismissing the petition for leave to appeal and was recorded by a learned Judge in Chamber. One of the grounds on which the petition was dismissed is as follows:- "(a) On the basis of the impugned entitlement certificate, which was issued by the Rehabilitation Commissioner on 24.5.1985, the nonpetitioner, Kala Khan, was given the proprietary rights of the evacuee suit land by the learned Custodian on 7.9.1985. This order of the Custodian, under Section 18 of the Evacuee Property Act, could be challenged by the petitioner by way of a revision before a Division Bench of the High Court and the Division Bench was all competent to look into the issue as to whether the entitlement certificate by the Rehabilitation Commissioner was issued in accordance with law; but the petitioner failed to avail this statutory remedy and at his own risk chose to move a review petition on 12.10.1985 for reconsideration and quashment of the entitlement certificate before the Rehabilitation Commissioner which was not permissible;" 17 With due deference to the learned Judge who recorded that order, I regret that I have not been able to persuade myself to concur with the view that a Division Bench of the High Court was competent to look into the issue as to whether entitlement certificate by the Rehabilitation Commissioner was issued in accordance with law. I have already attempted to analyse the relevant provisions of law and consequently I do not find that when sub-section (5) of Section 18-A lays down that: "(5) An order of Custodian granting or refusing to grant proprietary rights under sub-section (1) shall be reviseable by Division Bench of High Court"., there is anything in the phraseology which may give authority to the High Court to revise an entitlement certificate issued by the Rehabilitation Commissioner. 18. The only aspect now left to be seen is whether the powers of review vested in the Rehabilitation Commissioner are wide enough so that he could legally pass the order which is subject-matter of dispute in the present litigation. Under sub-section (3) of Section 18-A, supra, the Rehabilitation Commissioner can only issue a certificate of entitlement after satisfying himself to the effect:- "(a) that the allottee is entitled to the allotment of evacuee property in Azad Kashmir; (b) that the allotment has been made by the competent authority; (c) that the allotment is within scale prescribed by the Government from time to time". In the present case it is proved that there was no subsisting allotment on the basis of which entitlement certificate could be issued and that the matter of allotment was pending before the A.R.C. where the contesting parties, who are now before me, were present. The entitlement certificate was therefore issued on a wrong assumption of a material fact and it was an omission which was apparent on the face of record within the meaning of sub-section (6) of Section 18-A mentioned above. As noted elsewhere, there is no bar in sub-section (6) of Section 18-A supra that power of review cannot be exercised by the Rehabilitation Commissioner if the proprietary rights have been granted in pursuance of an entitlement certificate issued by the Rehabilitation Commissioner. I have already reached the conclusion that the order passed by the learned Rehabilitation Commissioner on review petition filed by Muhammad Rafique, appellant, is legally unexceptionable. It follows therefore that the learned Custodian acted within the boundaries of law by reviewing the Proprietary Rights Transfer Order in light of the revised entitlement certificate and I hold accordingly. However, the learned Custodian committed a mistake in ordering the cancellation of entitlement certificate instead of modifying the Proprietary Rights Transfer Order to the extent of survey No.747 and 748. The tenor of the order shows that it was a mistake while the intention can easily be gathered. Since this order was challenged by Muhammad Shafi Khan by filing a writ petition he is entitled to have the mistake corrected. Therefore I order that in the order of the learned Custodian passed on 8.10.1984 para 2 would stand modified in the manner that survey No.747 and survey No.748 shall stand deleted from Proprietary Rights Transfer Order issued in favour of Muhammad Shafi Khan. The upshot of the foregoing is that the appeal is accepted and the order passed by the High Court is vacated. This would have the effect of restoration of the order passed by the learned Rehabilitation Commissioner on 12.2.1984 as well as the order passed by the learned Custodian on 8.10.1984, as modified above. There would be no order as to the costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 SC(AJK) 51 PLJ 1991 SC(AJK) 51 [Advisory Jurisdiction] Present: BASHARAT AHMAD SHAIKH, .1 In re: Reference made by President, Azad Jammu & Kashmir . C.M. hi Reference No.l of 1991, decided on 27.7.1991. Interim Relief— —Reference by President to Supreme Court-Interim relief prohibiting holding of Assembly Session-Prayer for-Whether Supreme Court can grant interim relief in Reference—Question of—A. plain reading of Section 46-A of AJK Interim Constitution Act read with Section 42-A shows that Supreme Court has only to give its opinion on question referred to it and there is no judgment or order which can be passed by it~An opinion is not a decision of court- Held: Supreme Court has no power to grant an interim relief while hearing a reference. [Pp.54&55]A,B&C Mr. AitzazAhsan, Advocate for Referring Authority. Date of hearing: 27.7.1991. judgment Sahibzada Muhammad Ishaque Zaffar, who is, in pursuance of Section 9 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, performing the functions of the President of Azad Jammu and Kashmir since that august office fell vacant due to the resignation of Sardar Muhammad Abdul Qayyum Khan, has filed a reference under Section 46-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hereinafter referred to as the Constitution Act. In the reference the President has sought the opinion of this Court in respect of certain questions of public importance which are included in paragraphs (a) to (e). However, four of these paragraphs contain more than one question. Apart from the request that those questions may be answered by this Court there is a request for interim relief which is contained hi the last two paragraphs of the reference. These two paragraphs run as under:- "In the mean time it is requested that no further action be taken by the Chief Executive and the Chief Election Commissioner in respect of Elections June, 1991. It is further prayed that till the disposal of the reference, an order be issued prohibiting the calling of the Session of the Assembly, the publication of notification of the members of the Assembly, the Elections of the Speaker, Deputy Speaker, Prime Minister etc. Any other interim relief deemed just and appropriate and any directions to avert the Constitutional crisis be passed." The reference itself is pending completion in the Registry but since the prayers made in the two paragraphs reproduced above are of urgent nature the same has been placed before me for immediate disposal by me as a Vacation Judge. I have heard Mr. Aitzaz Ahsan in support of the prayer. In his elaborate arguments the learned counsel mainly prayed that an order be issued prohibiting the holding of the session of the Legislative Assembly which is being held a day after tomorrow, namely, 29th of July, 1991. In fact this prayer in effect means that the Assembly should be stopped from electing a Prime Minister as well as the Speaker and Deputy Speaker of the Legislative Assembly. In his detailed arguments Mr. Aitzaz Ahsan submitted that, as he put it, a 'constitutional anarchy 5 has been created due to the fact that the elected Prime Minister of Azad Jammu and Kashmir Mr. Mumtaz Hussain Rathore, as claimed by him, was un-constitutionally removed from the office by the Government of Pakistan in purported exercise of powers under section 56 of the Constitution Act and consequently Mr. Justice Sardar Muhammad Ashraf Khan, a Judge of this Court, who was acting as Chief Justice of the Court in absence abroad of the learned Chief Justice, was appointed as a Chief Executive. The learned counsel submitted that there were only three ways in which the office of the Prime Minister could become vacant, namely, by resignation, by death or by noconfidence and there is no other manner in which the Constitution Act contemplated the removal of the Prime Minister. Similarly, it was contended by the learned counsel that it is specifically provided in Constitution Act that a person who is a member of the Assembly and is elected as Prime Minister by the members of the Legislative Assembly would be the Chief Executive of the Azad Jammu and Kashmir. The Constitution Act does not visualize that a person should be a Chief Executive without being a Prime Minister. The learned counsel contended that section 7 of the Constitution Act lays down that the President of Azad Jammu and Kashmir has to act on advice of the Prime Minister and not on the advice of a Chief Executive, who is an alien to the Constitution Act. 'Therefore, the President is faced with a constitutional crisis which is one of the reasons which has persuaded the President to file the reference. He also submitted that under Section 52 of the Constitution Act a Prime Minister cannot hold any other office of profit while the Chief Executive was also a Judge of this Court as well as the Chief Election Commissioner. Mr. Aitzaz Ahsan further submitted that out of the questions which have been referred to this Court one important point is that after having become the President of Azad Jammu and Kashmir under Section 9 of the Constitution Act Sahibzada Ishaque Zaffar is to continue till another President is elected and even if a new Speaker is elected. If the Legislative Assembly meets on 29th of July and elects a Speaker it is understood that the new Speaker would also be asked to become the President. In this view of the matter, according to the learned counsel, another violation of the Constitution would take place which necessitated the issuance of an interim relief. The learned counsel submitted that Section 42-A which empowers the Court to issue such directions, orders or decrees as may be necessary- for doing justice in any case or matter pending before it, gave sufficient powers to the Court to r;ant the interim relief being prayed by him. Mr. Aitzaz Ahsan rs:er:ed ' j various references answered by the Supreme Court of Pakistan as wJil as this Court to show that all parties who may have any interest in the outcome of the reference are heard before a reference is answered. He contended that when a reference is heard there is judicial adjudication of the points which are subject-matter of a reference and no opinion is expressed by the Supreme Court without hearing the parties which are likely to be affected. According to him it was thus clear that a reference fell within the ambit of the word "matter" used by the constitution makers in Section 42-A. He did not cite any decided case in which an interim relief was granted in a reference. I have given my anxious thought to the submissions of the learned counsel appearing in support of the President's reference and have reached the conclusion that there is no substance in the arguments that this Court has the power to issue an order in the shape of interim relief while hearing a reference. Section 46-A of the Constitution Act which provides for making a reference runs as follows:- "(1) If, at any time, the Chairman of the Council or the President desires to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law which he considers of public importance, he may refere the question to the Supreme Court of Azad Jammu and Kashmir for consideration. (2) The Supreme Court of Azad Jammu and Kashmir shall consider a question so referred and report its opinion on the question to the Chairman of the Council or, as the case may be, the President." A plain reading of the above section shows that this Court has only to give its opinion on the question referred to it and there is no judgment or order which can be passed by this Court while answering a Presidential reference. An opinion expressed in a reference is not a decision of the Court. Word "opinion" used in Section 46-A reproduced above is in sharp contrast to the words "directions",! orders" or 'decree used in Section 42-A of the Constitution Act which has been relied upon by M,. utzaz Ahsan. The word "opinion" is also in similar contrast to •be word "d ;ci,siO;j' used in Section 42-B of the Constitution Act which runs as follows:- "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 binding on all other Courts in Azad Jammu and Kashmir." Although precedent exists that the Azad Jarnmu and Kashmir High Court issued a direction prohibiting the Azad Jammu and Kashmir Legislative Assembly from holding the session on a writ petition filed by Sardar Muhammad Abdul Qayyum Khan in 1975 but there is no recorded case in which an interim relief was ever granted in a reference. A Court of law grants relief when it decides a case and it grants an inteiim relief during the trial of that case. It is clear from Section 46-A thrii no relief caa be given by this Court under that constitutional provision and all that it can do is to express an opinion on a question of law of public importance. When the Court cannot grant a relief when it decides a reference I am unable to accept the proposition that an interim relief can be granted by this Court. It thus appears that this Court has no power to grant an interim relief while hearing a reference arid I hold accordingly. So far as the questions incorporated in the Presidential reference are concerned they have been considered to be matters of public importance by the President of Azad Jammu and Kashmir and this Court is bound to answer those questions after fulfilling the legal procedure. The opinion to be formed by this Court shall be in accordance with the Constitution and law. However, for the time being no case has been made out for an interim relief. (MBC) (Approved for reporting) Order accordingly. THE END

PLJ 1991 SC 1[Appellate Jurisdiction] PLJ 1991 SC 1 [Appellate Jurisdiction] Present: SHAFIUR REHMAN, ZAFFAR HUSSAIN MlRZA, SAAD SAOOD JAN, ALI hussain qazilbash and abdul shakurul salam, JJ. MUHAMMAD DIN and others-Appellants versus GHULAM MUHAMMAD NASEEM SINDHU and others-Respondents Civil Appeal No. 113 of 1984, accepted on 16.9.1990. [Against judgment dated 9.4.1980, of Lahore High Court, passed in LC.A. No. 133 of 1979] (i) Limitation- —Appeal-Delay in filing of~Condonation of~Contention that intra court appeal not being available, there was delay in filing petition for Leave to Appeal—Proceedings which led to order of Deputy Settlement Commissioner, were not intended to call in question legality or propriety of orders of transfer of house but were intended to find out if there was any excess area-Held: Considering that appellants have been diligently pursuing their remedy, it is a fit case where delay, even if it exists, ought to be condoned (per majority). [P.7JA&B (ii) Settlement and Rehabilitation Matters­ '—Evacuee house—Transfer of—Excess area—Determination of—Proceedings for-Whether appellants had locus standi to file intra court appeal-Question of--Division Bench overlooked fact that there was alre ady a finding of Deputy Settlement Commissioner that house transferred to respondent No. 1 had an excess area which was still available for disposal-^his was a finding of fact with which learned single Judge had elected to interfere on entirely erroneous grounds-Appellants wanted merely to get that finding restored in intra court appeal—Held: As appellants were seeking transfer of said area and order of D.S.C. did recognise, rightly or wrongly, their entitlement thereto, they had undoubtedly locus standi to challenge legality of order of single Judge for it cannot be said that they were not aggrieved by it—Appeal accepted (per majority). [Pp.lO&ll]E&F (iii) Settlement and Rehabilitation Matters-- Evacuee house—Transfer of—Excess area—Determination of—Proceedings \ for-Whether proceedings were incompetent having been initiated by Minister for Rehabilitation-Question of-True that occupants of land ttached to house had filed their complaint with Minister for Rehabilitation but further proceedings were held under order of Chief Settlement Commissioner who could start proceedings on his own or on information eceived from any source-In this case, Deputy Settlement Commissioner who made impugned order, was proceeding under a directive issued to him by Borad of Revenuc.- Held: His (Deputy Settlement ommissioner's) order could hardly be regarded as one without jurisdiction (per majority) [P.10]D (iv) Settlement and Rehabilitation Matters-- —Evacuee house-Transfer of-Excess area-Determination of-Proceedings for--\Vhether Settlement authorities have any right to go behind P.T.D. after a decade of its issuance and that too after repeal of Settlement Laws—Question of-It is nobody's case that land now said to be in excess of three times plinth area did not belong to evacuee—Thus entire interest of evacuee over property was permanently transferred to respondent No. 1—What is use of issuance of Permanent Transfer Deed if it can be gone behind after a decade?--Held: If it were so permissible, there will be no certainty in rights of displaced persons and they will be put on tenterhooks at mercy of changing officials which is contrary to elementary principles of law and administration (per A.S.Salam J). [Pp.ll&12]G,H&J (v) Settlement and Rehabilitation Matters-- —Evacuee house—Transfer of—Excess area—Determination of—Proceedings for—Whether Settlement authorities were not competent to initiate proceedings after issuance of PTD-Question of-in proceedings held y Deputy Settlement Commissioner, legality or propriety of transfer of house to respondent No. 1. was not in issue in any way—Held: Single Judge was clearly in error when he declared order of Deputy Settlement ommissioner to be without jurisdiction on ground that after issuance of PTD, in absence of any allegation of fraud or misrepresentation Settlement authorities were not competent to re-open matter, (per majority). [P.10JC 1976 SCMR 503 not applicable. (vi) Settlement and Rehabilitation Matters- —Ev?"uee house—Transfer of—Excess area—Determination of—Proceedings for-Whether there were pending proceedings-Question of-Second order of Deputy Settlement Commissioner impugned in Constitutional etition was clearly without jurisdiction as office of D.S.C. had come to an end with repeal of law under which that office was established-There was no D.S.C in existence in law on date when order was passed-For ending proceedings, repealing law had provided for appointment of "Notified Officer"-In this case, there were no pending proceedings—Held: After a decade, on a miscellaneous application, nobody could go behind D nd certainly order of D.S.C. challenged in Constitutional petition was without jurisdiction and lawful authority-Appeal dismissed, (per A.S.Salam, ,T). [P.12JK&L Mr. Rafiq Ahmad Sheikh, Adocate, Supreme Court, and Mr. Maqbool Ahmad Qadri, A.O.R., for Appellants. Ch. Klialilur Rehinan, Senior Adocate, Supreme Court andAfr. Iqbal Ahmad Qnrcshi, A.O.R. (absent) for Respondent No.l. Rao Muhammad Yousaf KJian, A.O.R. for Respondents 2&4. Dates of hearing: 18 & 19.12.1989. judgment Saad Saood Jan, J.--This is an appeal by special leave from the judgment of the Division Bench of the Lahore High Court, affirming the judgment and order of a learned Single Judge declaring the order, dated 20.11.1977, of the Deputy Settlement Commissioner to be without lawful authority. 2. Ghulam Muhammad Nasim Sindhu was a claimant displaced person. He was allotted house No. SXVIII-44-S-38 situate in Ichhra, Lahore, on 20.10.1956. When the Settlement operations started he filed a C.H. orm. On this form the local Settlement Inspector made the following report: "He is a claimant and is the only occupant of the house. Its area is 2 kanals, out of which 4 marlas are built. It means 1 kanal 4 marlas of land is excess the three lime the covered area. Annual assessment as per taxation record is Rs. ISO/-. P.A. It is a fit case lor the issue of P.T.O."The Deputy Settlement Commissioner accepted the report and on its basis a P.T.O. was issued to respondent No. 1 on 16.11.1959. 3. In March 1962 respondent No. 1 applied for a permanent transfer deed. The Deputy Settlement Commissioner (another officer) called for a repon. From the local Patwari to find out the extent of the excess rea. In his repor^, the Patwari slated that the total area of the land underlying the house was 1 kanal 5 marlas 223 square feet, whereas the entitlement of respondent No.l, after giving im allowance for the built up area ame to 1 kanal 8 marlas and 132 square feet; accordingly, there was no excess area attached to the house. On receipt of the report the office of the Deputy Settlement Commissioner put up the following note: "The report of the Patwari is attached herewith. There is no land beyond three times covered area." On 8.5.1962 the Deputy Settlement Commissioner appended his initials on the report; thereafter, the permanent transfer deed was granted to respondent No. 1. 4. It was the case of respondent No. 1 that he had inducted the appellants in, the property as his tenants. However that may be, in December 1972 a number of persons including the appellants submitted a complaint to the Minister for Rehabilitation wherein they, inter alia, alleged that respondent No. 1 was holding area much in excess of his entitlement. They prayed that the excess area should be taken away from him and allotted to them as they were in possession thereof. In pursuance of this complaint, the Chief Settlement Commissioner asked the Settlement Commissioner (Urban) to hold an inquiry. 5. The Settlement Commissioner (Urban) in his turn called for a report from the local Deputy Settlement Commissioner. On 10.3.1973 the Deputy Settlement Commissioner sent his report wherein he stated: "The facts of the case are that the above noted property was transferred in favour of Ghulam Muhammad Nasim for Rs.7200/- vide D.S.C's order dated 16.11.1959. The total area of the property according to Excise and Taxation Record is two kanals out of which 4 marlas are built up area. According to the record the transferee is entitled only for 16 marlas and remaining 1 kanal 4 marlas was excess land. The office record shows that the transferee was never asked to pay the price of the excess land. The P.T.D. has been issued to the transferee which means that the transferee is only the owner of only 16 marlas and the other 1 kanal and 4 marlas are available for disposal. On the other hand a fresh report of the Settlement Inspector and draftsman has been obtained, according to which the total area of the property at site is 1 kanal 11 marlas and 49 sq.ft. and after transferring the above said property to Mr. Ghulam Muhammad Nasim an area of 15 marlas and 138 sq.ft. is available for disposal." Apparently the Settlement Commissioner was not satisfied with the report and he called for yet another report from the Deputy Settlement Commissioner (another ofliccr). The second report was submitted on 15.6.1974. The material portion of this report reads as follows: "The excess land in the above noted property has already been calculated O K - 15 M - 138 sq ' ft - 4 by my predecessor vide page 81 of the file. However, in compliance with your orders dated 7.6.1974, I visited the spot along Settlement Inspector and Patwari in the presence of parties on 8.6.1974. The construction after 1947 in this property is in such way that it is very difficult to ascertain the old and new construction. However the relevant record has been consulted, which reveals that in the original transfer order the total area of the plot has been shown 2 kanals, out of which 4 marlas built up and one kanal, four marlas land has been shown in excess, original orders at page 11 of the file. In the survey register the accommodation of the house has been shown three rooms, but the copy of PA. List 1946-47 of Lahore Municipal Corporation, obtained by Settlement Inspector shows that the accommodation of the property in question is 2 rooms and open land videaccr Flag 'B'. According, to spot measurement the total area of the property is ar- In view of the survey register. PA. List, the excess land calculated by my predecessor (i.e. 15 M - 138 sq ft: ) is correct. The Settlement Commissioner then conveyed the findings of his inquiry to the Chief Settlement Commissioner with the following observations: "I have weighed the arguments of the parties and visited the spot and have seen the record. From the persual of the record it is clear that G.M.Nasim is the transferee of the property in dispute. This is also proved beyond doubt that Budha remained in possession of the property and order of the D.C.E.P. dated 21.5.1959 (Annexure 'B') is clear in this respect. This is also a fact that the allotment of a Government Quarter could not be a bar to the transfer of a house to the claimant. There is a photostat copy of Rent Deed executed between Chiragh Din and G.M.Nasim for the payment of rent. On the other hand Muhammad Din complainant had not been able to prove any thing against G.M. Nasim. In view of these facts I wonder if there is an occasion for the interference of the Settlement Department at this winding up stage when a P.T.D. stands issued in favour of G.M.Nasim. However, the question of surplus area requires looking into." Before any action could be taken on this report, the Settlement laws were repealed. The undisposed of properties were transferred to the Provincial Government and the Settlement work was entrusted to the Provincial Board of Revenue. By its letter dated 29.3.1975, the Board of Revenue gave the following direction to the local Deputy Settlement Commissioner: "According to the law the transferee of a house is entitled to get three times the plinth area. You are competent to determine the question of excess area irrespective the P.T.D. has since been issued in this case. You are therefore hereby directed to adjudicate upon the question of exress area attached to property No. S-X VIII-44-S-38 by hearing the transferee as well as the complainant." In compliance with the direction given by the Board, the Deputy Settlement Commissioner held an inquiry. His findings are recorded in his order dated 20.11.1977. He came to the conclusion that respondent No. 1 was holding an area measuring 15 marlas and 138 square feet in excess of what was permitted by law and that excess area was still available for disposal. The relevant part of his order reads as follows: "I have heard the learned counsel for both the parties, gone through the record and visited the spot and have come to the conclusion that Mr.G.M. Nasim had been transferred property No. S-XVIII-44-S-38, Ichhra, Lahore , measuring 16 marlas according to the order of the then learned Deputy Settlement Commissioner dated 16-11-1959 and the P.T.D. was also issued in his favour according to the orders referred to above on 10-8-1962. The order of the Deputy Settlement Commi.^ on dated 16-11-1959 is quite clear and there is no ambiguity in respect n t q. area of the property in question. It had also been declared vide his 01 referred to above that besides the property transferred, there is a excess land available in the said property. The excess land has not so L. been disposed if in any manner, hence the same is still available for disposal. M/s Muhammad Din, Wajid Ali, Soofi Chiragh Din. Zaffar Ahmad, Sultan Muhammad, Noor Mohammad, Muhammad Ismail, have applied under Settlement Scheme No. VIII, for the transfer of the excess land in their possession. I have marked an area of 16 marlas on the plan submitted by the Settlement Inspector alongwith the report dated 17.11.1977. This area has been shown as ABCDEFHIJ on the plan. The plan is also signed by me. The remaining area of the excess land is available for disposal which is in possession of the petitioners. Hence a copy of my order be supplied to the Deputy Settlement Commissioner (Plots) for the disposal of their forms under the law and on merits." 6. Being dissatisfied with the above order of the Deputy Settlement Commissioner, respondent No. 1 filed a constitution petition in the High Court to challenge its legality. A learned Single Judge accepted the petition and eclared the order of the Deputy Settlement Commissioner to be without lawful authority. He was of the view that as the property in dispute had been measured before the issuance of the P.T.D., it was not open to the ettlement authorities in the absence of any allegation of fraud misrepresentation to re-open the matter after the issuance of the P.T.D. He also held that the proceedings initiated under the orders of the Minister for Rehabilitation ere without jurisdiction and that in any case the appellants had no locus standi to impugn the legality of the P.T.D. issued to respondent No. 1. 7. From the order of the learned Single Judge the appellants filed an intracourt appeal. A Division Bench of the High Court dismissed the appeal with the observations that the appellants had no locus siandi to file the appeal, or, Scheme No. VIII under which they were seeking transfer of the property did not contemplate the making of an application for making the property available and that in any event as the appellants had been nducted into the property by respondent No. 1 and orders for their ejectment had already been passed they were not entitled to seek transfer of the same under the Scheme. 8. From the judgment of the Division Bench, the appellants sought leave to appeal from this Court. During the hearing of the petition and in the presence of the parties the following order was made: "We. therefore, summoned Mr. Shah/ad Jahangir, learned Advocate for the Settlement Department to assist us in this matter. He should instruct the learned Deputy Settlement Commissioner, Lahore to go to the spot and measure the area on which the pacca constructed (?) existed on the date when the orders of transfer were passed, namely, 16-11-1959 as also the open land available on the said date. The dale and time when the learned Deputy Settlement Commissioner will visit the spot for carrying out the above measurement should be communicated to the learned counsel for both the parties. After carrying out the measurements the learned Deputy Settlement Commissioner should prepare a report detailing the results of his measurements." In due course Mr. Shahzad Jahangir submitted an elaborate report accompanied by a site plan. According to his report, after adding thrice the plinth area, the house still had an excess land to the extent of 10 marlas and 198 square feet. As respondent No. 1 did not object to the report, leave to appeal was granted to the appellants. 9. Learned counsel for respondent No. 1 raised a preliminary objection to the competency of the appeal on the ground that it was barred by time. He stated that the learned Single Judge made his order on 8.4.1979. The appellants preferred the intra-court appeal on 22.5.1979. It was dismissed on 9.4.1980. The appellants filed the petition for special leave to appeal on 21.5.1980. According to the learned counsel in his case the intra-court appeal was not available to the appellants by virtue of the bar contained in the proviso to section 2, Law Reforms Ordinance, and as such the time spent in pursuing that appeal had to e disregarded. Consequently, the time for filing the petition for special leave to appeal started running against the appellants from the date the learned Single Judge announced the judgment. As the appellants filed the etition more than 60 days after the judgment of the learned Single Judge, the appeal should be dismissed on the ground of limitation. In support of his contention he referred to the case ofKarim Bibi v. ussain Bakhsh (P.L.D. 1984 S.C. 344). 10. The proceedings which led to the order dated 20.11.1977 of the Deputy Settlement Commissioner were not intended to call in question the legality or propriety of the orders of transfer of the house but their object was to find out if the house had any excess area attached to it. These were initiated under a direction issued by the Board of Revenue on 29.3.1975. There was thus scope for some doubt whether these we e entirely independent proceedings attracting, so far the competency of an intra-court appeal was concerned, the bar contained in the proviso to section 2, Law Reforms Ordinance. Considering that the pellants have been diligently pursuing their remedy, it is a fit case where delay, even if exists, ought to be condoned. We would order accordingly. 11. There is no dispute at all that respondent No. I is transferee of the house alone. The provisional transfer order issued to him on 16.11.1959 and the permanent transfer deed drawn in his name on 10.8.1962 do not purport to transfer to him anything more than the house. There is no order of any Settlement authority transferring to him any land other than the house. There is also no order of the Chief Settlement ommissioner in his favour enlarging the area of the house. Now the expression "house" has been defined in section 2(4), Displaced Persons (Compensation and Rehabilitation) Act, 1958. According to the definition a house means: "evacuee residential premises of any value in an urban area, together with the gardens, grounds, garages and out-houses, if any, attached to or appurtenant to such premises, Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out-houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." The proviso to the definition is significant. By operation of this proviso, in case the land attached to the house transferred to respondent No. 1 exceeded three times its plinth area, he could not lay a claim to the excess land by virtue of transfer documents issued in his favour by the Settlement authorities. Reference in this context may be invited to the case of Muhammad Aslam KJtan v. Chief Settlement Commissioner (1972 S.C.M.R. 545) where the question was whether under the Displaced Persons (Compensation and Rehabilitation) Act, a displaced person was entitled to more than three times the plinth area of the house transferred to him; the question was answered in the negative. Similar observations were made also in the case of Mohammad Bashir, v. Settlement and Rehabilitation Commissioner (P.L.D. 1983 S.C. 143). Thus, it was held: "Now, a house within the meaning of the Act would only be an evacuee residential premises alongwith three times its plinth area out of the gardens etc. attached or appurtenant to it plus any further area out of the excess land determined by the Chief Settlement Commissioner to be also a part of the house. The remaining land would be an area which was no longer a part and parcel of the house and, therefore, would not be transferred in connection with the transfer of the house."This being the legal position, the question for consideration is whether there was any land attached to the house transferred to respondent No. 1 which was in excess of three times its plinth area. 12. Earlier the Settlement authorities had treated the area of the plot on which the house was located as 2 kanals. Their assumption in this regard was based on the assessment record maintained by the Excise Department. However, after detailed measurements were made under the supervision of Mr. Shahzad Jahangir the area was found to be 1 kanal 11 marlas and 49 square feet. In 1960 the local Patwari had in his report declared the area to be 1 kanal 5 marlas and 223 square feet; but, then, preference should be given to the report submitted by Mr. Shahzad Jahangir for he had the measurements carried out by another Patwari in the presence of the parties and their counsel. Now, the next matter needing consideration is with regard to the plinth area of the house. According to the appellants the plinth area was only 4 marlas whereas espondent No. 1 averred hat it extended over 10 marlas. In this context it may be noticed that at the time when the house was being provisionally transferred to respondent No. 1 the plinth area was declared to be 4 marlas only and a finding was recorded that the house had an excess area measuring 1 kanal and 4 marlas attached to it. Respondent No. 1 did not challenge these findings before the higher Settlement authorities. However that may be, Mr. Shahzad Jahangir in his report has found the plinth area to be 5 marlas and 19 square feet. Calculating the entitlement of respond nt No. 1 on this basis the excess area attached to the house ould come to 10 marla and 198 square feet. 13. Learned counsel for respondent No. 1 challenged the calculations of Mr. Shahzad Jahangir with regard to the plinth area. He contended that it was not less than 10 marlas. In support of his contention he relied upon the extract from the P.A. List prepared by the Lahore Municipal Corporation for the year 1946-47 and the report of the Patwari prepared in 1960. As already mentioned respondent No. 1 did not challenge the ccuracy of the report of Mr. Shahzad Jahangir at the leave granting stage or even later till the appeal came up for hearing. However I that may be, the releant entries in the extract from the P.A. List are:, 8. The plinth area 10 marlas 10. The approximate number of the rooms 2 rooms/open land. I The entry against the plinth area appears to be incorrect, for, two room would not ordinarily, unless they were very large, cover an area of 10 marlas. It i to be noticed that in the assessment register maintained by the Excise Department the plinth area of the house has been shown to be 4 marlas only. Now the record of the Excise Department relates to the year 1954 when the controversy with regard to plinth area had not arisen. It is also to be noticed that if the report of . j Patwari, upon which respondent No. 1 heavily relies, is crutinized it will be found i that although the area of the first two rooms mentioned therein does come to ! slightly more than 4 marlas but the area of no two rooms, whatever combinations \ one may try, hen taken together, would extend to 10 marlas. Obviously the entry with regard to the plinth area as recorded in the P.A. List is erroneous. 14. As regards the report of the Patwari that no excess area was attached to i. the ouse, it suffered from a basic error, for, while working out the plinth area he had taken into account the area of five rooms whereas at the time of | Independence the house had only two rooms see he P.A. List upon which respondent No. 1 himself relies). For the purpose of calculating the plinth areasuch construction as had been made by the evacuee or out of the income of the property could alone be considered. n this context, reference is invited to a judgment of this Court in the case of Muhammad Matin Mirza v. Jahangir R. Rustomji (PLD 1980 S.C. 64) wherein it was observed: "Taking up the point at (a) above, it ay e mentioned that the calculations on which the petitioner relies have been made on the basis of the constructed area as existing on the site at present, which includes ^ some constructions made after the partition. bviously these calculations are not in conformity with the law on the subject which contemplates taking into consideration of only such construction which were made by the evacuee. Learned counsel argued that the additional construction even though not made by the evacuee should be considered as improvements or accretions to the evacuee property and as such a parand parcel thereof. The argument advanced has no merit. These constructions were not, as already mentioned, made by evacuee; nor from !l the income of the aforesaid evacuee property, and being quite severable from the rest of the property could not be considered as part of the < evacuee house as left by the evacuee for the purpose of calculating its plinth area as it then existed." As both grounds of attack on the report filed by Mr. Shahzad Jahangir fail, it must be accepted as correct. According to this report as already stated the house I had-an excess area of 10 marlas and 198 square feet. Respondent No. 1 cannot lay / a claim to this area under the transfer ocuments issued in his favour; as such it i has to be treated as still available for disposal. CD 15. The learned Single Judge was clearly in error when he declared the order dated 20.11.1977 of the Deputy Settlement Commissioner to be ithout jurisdiction on the ground that after the issuance of the permanent transfer deed and in the absence of any allegation of fraud or misrepresentation the Settlement authorities were not competent to re-open the atter. It is to be noticed that in the proceedings held by the Deputy Settlement Commissioner the legality or propriety of the transfer of the house to respondent No. 1 was not in any way in issue. The inquiry was onfined to the question whether there was an excess area which could not under the law be treated as part of the house and, for that reason, did not stand transferred to respondent No. 1 under the transfer documents ssued in his favour. Such an inquiry was not hit by the rule laid down in the case of Sli. Abdul Lalifv. Deputy Settlement Commissioner (1976 S.C.M.R. 503) to which the learned Single Judge has referred in support of is order. 16. The other ground given by the learned Single Judge in holding the proceedings as incompetent was that these had been initiated by the Minister for Rehabilitation who did not figure anywhere in the Scheme of the Displaced Persons (Compensation and Rehabilitation) Act. It is true that the occupants of the land attached to the house had filed their complaint with the Minister for Rehabilitation but then the inquiry and further proceedings were held under the order of the Chief Settlement Commissioner who admittedly stood at the apex in the hierarchy of the Settlement organization. The learned Single Judge did not refer to any rule which placed a limitation on the power of the Chief Settlement Commissioner to initiate action for protecting property forming part of the compensation pool by laying down that he should proceed only when an application was directly received by him. On the contrary, there appears to be no bar to his starting the proceedings on his own or on information received from any source. In the circumstances the question whether he Minister for Rehabilitation figured in the Resettlement Schemes or whether the occupants had any locus standi to file a complaint before him does not arise. However that may be, after the repeal of evacuee laws, all ndisposed of evacuee property stood transferred to the Provincial Government. See section 3, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The said Government could thereafter take proceedings o retrieve properties which under the repealed Act had not yet been disposed of. In the present case the Deputy Settlement Commissioner who made the impugned order was proceeding under a directive issued to him n 29.3.1975 by the Board of Revenue (see paragraph 5 ante). His order could, therefore, hardly be regarded as one without jurisdiction. 17. In holding that the appellants had no locus standi to file an intra-court appeal, the Division Bench overlooked the fact that there was already a finding by the Deputy Settlement Commissioner that the house ransferred to respondent No. 1 had an excess area extending over 15 marlas which was still available for disposal. This was a finding of fact with which the learned Single Judge had elected to interfere on entirely rroneous grounds. In appeal the appellants merely wanted to get that finding restored. It was not a case of firing an application under Scheme No. VIII for making the property available for disposal so that hey could seek its transfer. In fact as a consequence of the order of the learned Single Judge respondent No. 1 has been allowed to perfect his claim to an area which under the law did not form part of the house ransferred to him.-As the appellants were seeking transfer of the said area and the order dated 20-11- 1977 did recognize, rightly or wrongly, their entitlement thereto they had undoubtedly the locus standi to challenge the legality of the order of the learned Single Judge for it cannot be said that they were not aggrieved by it. 18. As already noticed, after the transfer of the undisposed of property to the Provincial Government it is now required to be disposed of in accordance with the Scheme framed in pursuance of clause (a) of section , Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Whether under the Scheme the appellants had a better claim thereto than respondent No. 1 was a matter which should have been left to the relevant uthorities to be decided in accordance with the Scheme. The learned Division Bench ought not to have shut out the case of the appellants in a summary manner as it had chosen to do in this particular case. 19. For reasons stated above, we accept the appeal, set aside the orders of the Division Bench and the learned Single Judge and direct the Board of Revenue to dispose of the excess land as calculated in the report iled by Mr. Shahzad Jahangir in accordance with the relevant Scheme. There will be no order as to costs. Abdul Shakurul Salam, J.--I really regret that I am unable to agree with the proposed judgment of my learned brother. The case as I see it is whether after a decade of issuance of Permanent Transfer Deed, the Settlement authorities have any right to go beind it and that too when the law under which these authorities were created had already been repealed. 2. The essential facts are that the respondent No. 1, a claimant displaced person, was transferred house No. SVHI-4-S-38, Ichhra, Lahore, on 16-11-1959. On his application for issuance of Permanent Transfer eed, after the report of the Patwari dated 8.5.1962 that "there was no land beyond three times covered area" and payment of all dues, the respondent was transferred the evacuee interest "full". It is nobody's case that the and now said to be in excess of three times the plinth area did not belong to the evacuee. Thus, the entire interest of the evacuee over the property was permanently transferred to the respondent. He was issued Permanent Transfer Deed on 10.8.1962. 3. After more than ten years on a miscellaneous application dated 25.12.1972 of appellant No. 1 to the Minister for Settlement and Rehabilitation, Punjab, reports were called and on 29.3.1975, the Member, Board of Revenue (Settlement and Rehabilitation), Punjab, directed the "Deputy Settlement Commissioner" to "adjudicate upon the question of excess area", who on 20.11.1977 declared some area as excess. 4. The respondent sought a declaration under the Constitutional jurisdiction of the High Court that the orders dated 25.3.1975 and 20.11.1977 were without jurisdiction and lawful authority which was granted by a learned Single Judge and the order was upheld on appeal by a learned Division Bench of the High Court. 5. The appellants wanted this Court to enter into enquiry about the extent of the property transferred to the respondent. 6. Now only such an enquiry is not undertaken by this Court under the! special jurisdiction and it confines itself to question of law but in this case the) orders impugned before the High Court, which are under appeal, have declared the orders of the Settlement authorities to be without jurisdiction and lawful authority, and rightly so. The first order is of the Member, Board of Revenue (Settlement and Rehabilitation), Punjab, dated 29.3.1975 wherein he had said that the "Deputy Settlement Commissioner" was "competent to determine question of excess area irrespective the P.T.D. has since been issued in this case" and had directed the Deputy Settlement Commissioner "to adjudicate upon the question of excess area". This order is clearly illegal as it has undeniably been passed in the secrecy of office without notice or hearing the respondent in whom the rights had vested. Nobody's rights can be put in jeopardy finalized decade ago in such like manner. Secondly, the observation that the "Deputy Settlement Commissioner" was "competent to determine the question " is out of the mark. The Deputy Settlement Commissioner had ceased to exist with the repeal of the law under which he was created. Thirdly, the bald assertion that that can be done "irrespective the P.T.D. has since been issued in this case" is patently arbitrary. What is the use of issuance of Permanent Transfer Deed if it can be gone behind after a decade? If it were so permissible there will be no certainty in the rights of displaced persons to whom land or houses have been transferred, and they will be put on tenterhooks at the mercy of changing officials, which is contrary to elementary principles of law and administration. 6. As regards the second order impugned in the Constitutional petition, of the Deputy Settlement Commissioner dated 20.11.1977, it is clearly without jurisdiction as the office of the Deputy Settlement ommissioner had come to an end with the repeal of the law under which that office was established vide Act XIV of 1975, with effect from 1.7.1974. Therefore, there was no Deputy Settlement Commissioner n existence in law on the date the order was passed. For 'pending proceedings' the repealing law had provided for appointment of "Notified Officer". And in this case there were no "pending proceedings" on the relevant date. Miscellaneous application to a Minister or office notings do not constitute "pending proceedings". For the first time the Member, Board of Revenue (Settlement and Rehabilitation) unjab issued the direction on 29.3.1975. This was after the repeal of the law. 7. For the foregoing reasons I am clear and certain that after the report of the Patwari that there was no excess area and the Chief Settlement Commissioner having never exercised his jurisdiction under section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to say that so much area shall now be treated as part of the house, the "full" interest in the property passed under the Permanent Transfer Deed in favour of the respondent when the Deed was issued to him on 10.8.1962. After a decade on a miscellaneous application nobody could go behind the Permanent Transfer Deed and certainly the urported operative order of the "Deputy Settlement Commissioner" dated 20.11.1977 challenged in the Constitutional petition was without jurisdiction and lawful authority as he did not exist in the eyes of the law having disappeared with the repeal of the law under which he was created. I would, therefore, dismiss the appeal but leave the parties in the circumstances to bear their own costs. ORDER OF THE COURT In accordance with majority opinion of the Judges, the appeal is accpeted, the orders of the Division Bench and the learned Single Judge are set aside and the Board of Revenue is directed to dispose of the excess land as calculated in the report filed by Mr. Shahzad Jahangir in accordance with the relevant Scheme. There will be no order as to costs. (MBC) Appeal accepted per majority.

PLJ 1991 SC 13 [Appellate Jurisdiction] PLJ 1991 SC 13 [Appellate Jurisdiction] Present: dr. nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, JJ Dr. ABDUL HAFEEZ-Appellant versus PROVINCE OF PUNJAB, THROUGH SECRETARY, EDUCATION, LAHORE, and others-Respondents Civil Appeal No. 398 of 1988, accepted on 11.11.1990. [Against judgment dated 12.2.1986 of Lahore High Court, in F.A.O. No. 10 of 1886] Contonment Rent Restriction Act, 1963 (XI of 1963)-- —- S. 24(3) read with West Pakistan Urban Rent Restriction Ordinance, 1959, Section 15(3)-Tenant-Ejectment of-First appeal against-Whether a first appeal could be disposed of without summoning or examining ecord of case- Question of--Bare reading of Section 24(3) indicates that appropriate orders are to be passed by High Court after perusing record of case and giving parties an opportunity of being heard-Held: Appeal referred under section 24(3) of Act as amended, cannot be disposed of without summoning and examining record of case-Appeal accepted. [Pp.l4&15]A,B,C&D 1968 SCMR 828 rel. Mr. Abdul Aziz Qureshi, Advocate, Supreme Court and Mr. Mehdi Klian Mehtab, AOR for Appellant. Malik Saeed Afzal, Advocate, Supreme Court, and Rao Muhammad Yousaf Klian, AOR for Respondents. Date of hearing: 5.11.1990. judgment Nasim Hasan Shah, J.~The first appeal under Section 24 of the Cantonment Rent Restriction Act 1963 filed by the landlord (appellent herein) against the order dated 29.10.1985 passed by the Additional Rent Controller, Lahore Cantt. was summarily dismissed by a learned Single Judge of the Lahore High Court without summoning the record. He rejected the plea of the learned counsel for the appellant that the appeal could not be disposed of without summoning the record and examining it observing:— "Learned counsel claims that this appeal has to be admitted as a matter of course so that record is summoned and the respondents are enabled to be heard as per the requirements of Section 24(3) of the Act, as substituted on 31.1.1985, by Ordinance IX of 1985. This does not appear to be the intention of the law that every appeal, whether or not it has any merit, will entail summoning of record and respondent because for this purpose, a p/ima facie case has invariably to be first made out. Since in this case appellant has not pleaded a case capable of meeting with success; therefore, I do not consider that any useful purpose may be served by sending for the record of the case and calling upon the respondents to be heard". Leave to appeal was granted by this Court to examine the question of law of general application arising in the case namely, whether a first appeal preferred under Section 24(3) of the Cantonment Rent Restriction Act, 1963 (as amended by Ordinance IX of 1985), could be disposed of without summoning or examining the record of the case. Learned counsel for the parties have been heard. Section 24(3) of the Cantonment Rent Restriction Act 1963 as substituted as Ordinance IX of 1985 provides:— "(3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by itself or by the Controller as it may deem it, make an appropriate order which shall be final". The bare reading of this provision indicates that the appropriate orders are to be made by the High Court after perusing the record of the case and giving the parties an opportunity of being heard. This can only be possible if the appeal has been admitted, record summoned and the notice issued to the parties to appear before the Court and of being heard. In fact, the provision of sub-section (3) of Section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, a statute dealt with the same subject, contained a similar provision, which has come up for consideration before this Court.Sub-section (3) of Section 15 of the Rent Restriction Ordinance provided as follows:- "The appellate authority shall decide the appeal after sending for the record of the case from the Controller, and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller". The true scope of the meaning of this provision was considered by this Court in Begum Hwnayun Zulfiqar Ismail and another Vs. Begum Hamida Saadat All (1968 S.C.M.R. "828) and Hamoodur Rehman, J. (as His Lordship then was) speaking on behalf of the Court obsered- "Gencrally in an appeal from an original decree, the appeal is both on facts and on law but in an appeal from an appellate decree or order the appeal is on grounds of law only. In an 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 11 of the Code of Civil Procedure of a first appeal is therefore not the general rule. If the facts are not imple or undisputed a first appeal is not generally dismissed in limine. But in the present case it appears to us that sub-section (3) of the Rent Restriction Ordinance clearly incorporates within it the rule that the appellate authority will not dispose of the appeal without first sending for the record of the case from the Controller and hearing the parties and further if necessary, making such further enquiry as it deems fit. The duty to call for the record in the first instance is imperative. It is difficult therefore to agree that under this sub-section the appellate authority could dismiss.an appeal in limine. Since the provisions of the Code of Civil Procedure have not been made applicable to an appeal under sub­section (3) as has' been done in the case of an appeal to the High Court under sub-section (4), there appears to be substance in the contention advanced on behalf of the appellants that sub-section (3) of Section 15 is a complete Code of Procedure in itself for the purposes of an appeal under that sub-section. We cannot, therefore, approve of what the learned District Judge has done in the present case. In our view there had been no proper disposal of the appeal by the District Judge". (underlining is ours) We respectfully agree and would hold that a first appeal preferred under Section 24(3) of the Cantonment Rent Restriction Ordinance 1963 as amended as „ Ordinance IX of 1985 cannot be disposed of without summoning and examining the record of the case. On this view of the matter we hold that the appeal preferred before the High Court in this case has not been disposed of properly.We would, accordingly, allow this appeal and remand the case back to the High Court for disposal in accordance with law. The costs of this appeal will bej costs in the cause. (MBC) Appeal accepted.

PLJ 1991 SC 15 [Appellate Jurisdiction] PLJ 1991 SC 15 [Appellate Jurisdiction] Present: SlIAFIUR RAHiMAN, ABDUL QADEER CHAUDHRY AND RUSTAM S. SIDHWA, JJ HUSSAN DIN-Appellant versus Hafiz ABDUS SALAM and others-Respondents Civil Appeal No. 100 of 1985, dismissed on 20.9.1990. [From judgment of Peshawar High Court, Circuit Bench Abbottabad, dated 11.12.1984, passed in W.P. 12 of 1982]. Civil Procedure Code, 1908 (V of 1908)-- —O. IX R.14 read with Section 115(2)--.Ev pane decree-Setting aside of- Application for-Whether it was necessary to give notice to subsequent purchasers from decree-holders-Question of-Order IX Rule 14 provides that "no decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party"-Where not only ex-parte decree is being set aside but as a consequence, auction sale as well as interest of auction-purchaser are also affected adversely, then successor-in-interest of transferee from such auction-purchaser, would also be a necessary party because it is his property whose title is being re-opened by setting aside of exparte decree—Not to impkad him wilf be against principles of natural justice and proceedings will be without jurisdiction—Held: It was not a mere illegality committeed by District Judge while seized of proceedings under Section 115(2) CPC but a jurisdictional error in proceeding against property of respondents who were at no stage impleaded—Appeal dismissed. [Pp.l8&20]A,B&C AIR 1922 Patna 281, AIR 1935 Calcutta 506 and AIR (36) 1949 Patna 117 not relevant. (1887) 10 ILR 166, (1899) ILR 26 Cal. 267, (1910) 7 Indian Cases 66, AIR 1934 Patna 396, AIR 1936 Allahabad 408 and AIR 1955 Travancore-Cochin 112 rel. Mr. Mansoor Ahmad, Advocate, Supreme Court and Ch. Akhtar All, AOR for Appellant. Qazi Abdur Rashid, Advocate, Supreme Court and Klian Imtiaz Ahmad Khan, AOR for Respondents. Date of hearing: 6.3.1990. judgment Shafiur Rahman, J.~Leave to appeal was granted to examine whether the decision of this Court in Noor Mohammad versus Sarwar KJian and 2 others (PLD 1985 Supreme Court 131) did not oust the jurisdiction of the High Court to interfere in constitutional jurisdiction with an order passed by the District Judge under sub-section (2) of section 115 of the Civil Procedure Code. 2. Hussan Din, the appellant, was the owner of one storey building in Khasra No. 426 measuring 1 kanal 9 marlas in the Abadi of Sikandarpur, within the limits of Town Committee Haripur. By a registered deed of mortgage dated 7.1.1961, he mortgaged this property for Rs. 5,000/- with Haji Ghulam Kibrya and Haji Ghulam Sarwar. The appellant, thereafter, took on rent of Rs. 40/- per month the same house from the mortgagees as from 17.1.1961. Subsequently, in an ejectment petition, the appellant was ejected from the house for non-payment of rent. The wife of the appellant had also, at one stage, instituted a civil suit claiming the house in dower for herself and it was directed against the mortgagees but it was dismissed on 6.9.1968 and no further proceedings were taken. On the failure of the appellant to redeem the house, a suit was instituted by the mortgagees seeking a declaration and foreclosure. The service of the appellant in that suit took place by publication of the notice in a newspaper published from Kohat. The suit was decreed ex-parte against him. and a final decree was passedon 12.5.1970. The execution proceedings were taken out by the mortgagees and the house was put to auction on 23.6.1971. The decree-holders applied to the court for being permitted to purchase it at the auction which permission was granted and they purchased it for Rs. 7, 370/- and a court certificate of auction sale was issued to them on 31.7.1971. The property was thereafter sold by the auction-purchasers on 28.9.1973 for a sum of Rs. 30,000/- and the purchasers claim to have invested a huge amount over its repairs and improvement. 3. The appellant who had been, it appears, residing at Karachi, addressed a registered letter dated 21.9.1970 from there to the Court of the Civil Judge, requesting as hereunder:- "I have heard from a reliable source and so far I have not been informed legally neither by the plaintiffs nor by the honourable court and I have learnt that the case is adjourned for 2th (?) of instant. That if there is any such suit I may kindly be intimated by your honour on my Karachi address which I have written above and in the end of the application of the plaintiffs suit may kindly be dropped as the plaintiffs are knowingly hidden the facts and wanted to encroach upon my rights. Therefore, at the end in the interest of justice and bowing down myself before the discretion of your honour I request that my immovable rights in the above property may kindly be safe-guarded by the Court and the plaintiffs may be answered as prayed."It was dated 21-9-1970 but received by the Civil Judge on 24-9-1970 and no reply was sent to him. The appellant filed an application on 23-11-1978 for setting aside the ex-parte decree obtained by the mortgagees. The Civil Judge after notice to the mortgagees, who also happened to be the auction purchasers, set aside the expane decree by order dated 25.10.1980. Three Revision Petitions were filed against that decision setting aside the ex-parte decree. One of the Revision Petitions (Civil Revision No.24/CR of 1980) was filed by Hafiz Abdus Salam etc., the subsequent vendees from the auction purchasers. They pleaded want of notice leading to the setting aside of the ex-parte decree. The Additional District Judge did not at all refer to their grievance in the matter and rejected all the three Revision Petitions on 25-1-1982. As any further relief within the framework of section 115 of the Civil Procedure Code was barred, a Constitution Petition was filed by these subsequent vendees of the property. The learned Judges of the High Court, after examining all the facts of the case recorded the following conclusion: - "In the instant case, in our view not only the decree-holders were necessary party to the proceedings for setting aside the ex-parte decree but also the auction purchasers (in this case, the decree holders are the auction purchasers) and the transferees from the said auction purchasers." The High Court provided the relief to the respondents in the following words:- "Thus, without entering deep into the merits of the evidence, we will accept the writ petition on the grounds mentiond above, set aside the impugned orders and in result, direct that the peitioners be impleaded as party to the original application (for setting aside the ex-parte decree). They be afforded opportunity to plead their case and prove it by evidence. Other parties to the application would be well advised to produce evidence in suppot of their respective claim. Let it may be clear that we have purposely avoided to give any finding with regard to the objection of limitation, in order to avoid to prejudice the case of any one of the contesting parties and further as it is required to be decided on the basis of the material to be made available in result of the instant order. Parties are directed to appear before the lower court on 9-1-85 for further proceedings in the light of our order." 4. Mr. Mansoor Ahmed, Advocate, the learned counsel for the appellantN as contended that powers of the High Court and of the District Judge while disposing of matters under section 115 of the Civil Procedure Code are identical. When by sub-section (4) of section 115 of the Civil Procedure Code an order of the District Judge has been made immune from further proceedings before the High Court, that express provision of the law cannot be indirectly avoided by invoking the constitutional jurisdiction. He has thereafter gone to the facts of the case to demonstrate that the entire proceedings had been taken in a manner that the appellant was unable to participate in them and to resist the claim of the respondents. He has particularly drawn our attention to the letter addressed to the Court which had remained unattended. It was timely and before the auction of the house had taken place. 5. Qazi Abdur Rashid, Advocate, the learned counsel for the contesting respondents has contended that once it is found that the respondents had necessarily to be impleaded in the application filed by the appellant, the absence to implead them and an adjudication without impleading them, would be rendered completely without jurisdiction and without authority. The learned counsel has, in order to elucidate the meaning of 'opposite party' contained in Order IX Rule 14 of the Civil Procedure Code, referred to the decisions in Suraj Pal Pande\ and others Versus Uttim Pandey and others (AIR 1922 Patna 281), Dulal Chandra howdhwy Versus Atiil Krishna Roy and others (AIR 1935 Calcutta 506) and Anis Imam and another versus Daughter of Jamunabai w/o Banarasi KJiatri and others [AIR (36) 1949 Patna 117]. 6. Order IX Rule 14 of the Civil Procedure Code, under which the application had come to be disposed of, provides that "no decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party". In the case of Zainul Abdin KJian Versus Muhammad Asghar All Klian and others [(1887) 10 I.L.R. 166], the law on the subject was laid down by the Privy Council in the following words:- "It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order. A great distinction has been made between the case of bona fide purchasers who are no parties to a decree at a sale under execution and the decree-holders themselves. In Bacon's Abridgment, Title "Error," it is laid down, citing old authorities, that "if a man recovers damages, and hath execution by fieri facias, and upon the fieri facias the sheriff sells to a stranger a term for years, and after the judgment is reversed, the party shall be restored only to the money for which the term was sold, and not to the term itself, because the sheriff had sold it by the command of the writ of fieri facias." There are decisions to a similar effect in the High Court at Calcutta. They are collected in a note in Broughton, in his book on the Code of Civil Procedure, fourth edition, note to s. 246, Act VIII of 1859. So in this case, those bona fide purchasers, who were no parties to the decree which was then valid and in force, had nothing to do further than to look to the decree and to the order of sale.". The same question was raised in Jatindra Mohan Poddar Versus Srinath Roy and others [(1899) I.L.R. 26 Cal. 267 at 270, 271], in the following words:- "The parties entitled to notice of an application under section 108 of the Code of Civil Procedure are those that come under the description of "opposite party" in section 109, and they are in our opinion such of the parties to the suit as are interested in opposing the application. An auction-purchaser does not come within this description. It was urged that the auction-purchasers are interested in opposing an application of this nature, as their position may be affected by the ex pane decree being set aside. The answer, however, to this argument is that, as the sale has been confirmed, their rights, whatever they may be, cannot be affected in any way by the present proceedings to which they are not parties and which is instituted with the object of setting aside the ex pane decree, and not of setting aside the sale held in execution of it. The preliminary objection must be over-ruled.". In Sevugan Chetty Versus Obla Munusawamy Iyer and others [(1910) 7 Indian Cases 66], the same law-point was enunciated, as hereunder:- "We are not prepared to accept the view taken by the District Judge that the 'opposite party' in section 109 of the Civil Procedure Code of 1882 includes a person who has attached the ex parte decree in question. The plain meaning of the section seems to be that only the party on record is entitled to the notice mentioned in that section. It is well established that an attaching creditor even of a money-decree is not an assignee of the decree nor has he a charge upon it." In Dadu Missir and others V. Dhani Mahto (AIR 1934 Patna 396), in an application under Order IX Rule 14 CPC, one of the plaintiffs who was a minor and had obtained an ex-pane decree was not impleaded and it was pleaded that his interest was represented by other party who had been served, the court held that the express provision of Order IX Rule 14 of notice to the opposite party and the unserved plaintiff being the opposite party, precluded any representative on his behalf by any one else. In Shyam Lai versus Bahal Rai (AIR 1936 Allahabad 408) a co-defendant had not been served with notice while setting aside the ex-parte decree. It was held that as he was not an opposite party for the purposes of Order IX Rule 14 CPC, such a notice to him was not mandatory. Similar was the law laid down in Kumara Filial Velayudhan Filial Versus Rayappan Nadar Asirvadom Nadar (AIR 1955 Travancore-Cochin page 112). 7. The cases referred to or relied upon by the learned counsel for the parties deal with different provision. For example, the case of Anis Imam and another relates to a review application under Order XLVII Rule 4(2) of the Code of Civil Procedure and the case of Dulal Chandra Chowdhury is not helpful as it holds that in the application the opposite party need not be named, when in fact the opposite party has been served; that is sufficient. The case of Suraj Pal Pandey and others also deals with the notice in a review under Order XLVII Rule 4(2) of the Civil Procedure Code. 8. The upshot of the above discussion of law on the subject is that in setting aside of an ex-parte decree, notice to the decree-holder as on record is sufficient. Such setting aside of the decree does not affect the auction/sale of the property in execution of the ex-parte decree, nor does it affect the auction-purchaser. This general principle, however, is subordinate to another principle that where the auction-purchaser happens to be the decree-holder himself, as in this case, then the protection available to a bona-fide third party-auction-purchaser, is not available to the decree-holder on the mere ground that a court auction had taken place and the necessary certificate has been issued. The third principle that follows from these decisions is that where not only the ex-parte decree is being set aside but as a consequence, the auction-sale as well and the interest of he au tion-purchaser are also affected adversely, then the successor-in-interest of the transferee from such auction purchaser would also be a necessary party because it is his property whose title is being reopened by the setting side of the ex-parte decree. For this reason it will be necessary to implead him because otherwise it will amount to depriving a person, a transferee, from the auction-purchaser, who is the decree-holder, of his property, without hearing him. This is against the substantive rules of justice and against the principles of natural justice. Any proceedings taken adversely in respect of the person and property of an individual, without impleading im as a party, will be without jurisdiction. It was not a mere illegality committed by the District Judge while seized of the proceedings under section 115(2) of the C.P.C., but a jurisdictional error in proceedings against the property of the respondents who were at no stage impleaded. 9. The effect of the judgment given by this Court in Noor Muhammad's case, on the basis of which leave to appeal was granted, is not that a Constitution Petition is in no case permissible whatever the nature of the defect in the proceedings before the District Judge be, but that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitution Petition. Herein, it is not so much the question of a mere irregularity committed with jurisdiction but exercise of jurisdiction not possessed in the matter of re-opening the auction sale by setting aside the ex-parte decree and thereby jeopardising the rights of the respondents n the valuable immovable property bonae, if bona fide purchased from the decree-holder who happened to be auction-purchaser as well. The appeal is, therefore, dismissed. No order is made as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 17 [Appellate Jurisdiction] PLJ 1991 SC 17 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN AND ABDUL QADEER CHAUDHRY, JJ KABUSHIKI KAISHA TOSHIBA-Appellant versus Ch. MUHAMMAD ALTAF TRADING as Murad Industries (Regd.) and another-Respondents Civil Appeal No. 219 of 1988, accepted on 20.9.1990 [From judgment of High Court of Sindh at Karachi, dated 31.5.1987, passed in Misc. Appeal No.76 of 1984.] (i) Trade Marks Act, 1940 (V of 1940)-- —Ss. 8(a) and 10(l)--Trade mark-Registration of-Challenge to~It cannot be said that Registrar has discretion in determining whether prohibition prescribed has been ncurred or not-He has no discretion-He has to record a finding of fact on material before him-In case Registrar comes to conclusion that matter falls within prohibited ategory then he has no discretion but has to refuse registration-Respondent has shown no reason tenable at law to pick up an invented word of foreign firm enjoying inside ountry and outside a reputation for electrical goods of various descriptions-Held: Adoption of same trade mark phonetically in respect of electric fans is bound to create onfusion and deception,hence it is against public interest to register such a trade mark- Appeal accepted. [Pp.62&63]C&D (ii) Trade Marks Act, 1940 (V of 1940)-- —-Ss. 8(a) and 10(l)-Trade mark-Registration of-Challenge to-Judgment of High Court and order of Registrar, Trade Marks give clear indication that they have over-emphasized honest and long use of trade mark which is phonetically identical with registered trade mark of appellant—Application was made in 1979 and use of that trade mark was claimed from previous year-If this fact had been kept in view, not a very long or continuous uninterrupted use of that trade mark would have surfaced-Held: View taken by Registrar that not only trade mark has to be identical/similar but also goods covered by trade mark have also to be identical/similar, is not in accord with law after similarity of trade mark was established and phonetically it was found to be identical. [P.61JA&BJ 3 Appeal Cases 376 and (1880) 15 Chancery Division 181 rel. Mr. Jawwad S. KJiawaja, Advocate, Supreme Court and Mr.Ejaz Ahmad KJian, AOR (absent) for Appellant. Ch. Mehdi KJian Mehtab, AOR (absent) for Respondents. Date of hearing: 25.4.1990 judgment Shaflur Rahman, J.-Leave to appeal was granted in a trade-mark case to examine whether the High Court's view hi the impugned judgment that the order of theRegistrar, Trade Marks, could not be set aside unless, in addition to the same being wrong, it was also 'absurd' and/or 'perverse'. 2. The appellant is a Japanese firm having the name TOKYO SHIBAURA DEMKI KABUSHIKI KAISHA' from which it coined or invented the word 'TOSHIBA' and got it registered as manufacturer of goods of various classes as appearing hereunder:- Trade Mark No. Class Advertised in T.M. Journal and page No. 55127 9 277 dated 1.2.1974 page No.275 55128 8 255 dated 1.4.1972 page No.2202 55129 10 253 dated 1.2.1972 page No.2088 55130 11 253 dated 19.3.1971 page No.2089 55131 12 263 dated 1.11.1972 page No.2600 55132 14 259 dated 1.8.1972 page No.2440 55133 16 264 dated 1.1.1973 page No.2681 It had another application No.77865 dated 27th September, 1982 in Class 11 pending registration. 3. M/s Murad Industries, Gujrat, respondent No.l, applied on 27th of October, 1979 for registration of their trade-mark 'TOSHIBA' in urdu for goods like electric fans all kinds falling in Class 11 claiming use of mark since 1978. On receipt of the application the Officer reported that mark TOSHIBA' stood registered at Sr.No.23678 in Class 11 in favour of M/s TOKYO SHIBAURA ELECTRIC COMPANY LIMITED JAPAN for installation for lighting and heating. The respondent No.l filed Opposition to the registration and the grounds taken up were mainly the following: - (/) "That the opponents are the true and original proprietors of the Trade Mark "TOSHIBA" an invented word, which has been coined from their Japanese name viz. TOKYO SHIBAURA DEMKI KABUSHIKI KAISHA and they have adopted it as a part of their trading name viz. TOSHIBA CORPORATION as such they have exclusive and inherent rights in the word "TOSHIBA" and having been registered as a trade mark in many countries of the world, including Pakistan, has become synonymous with the Opponents' name viz. TOSHIBA CORPORATION, of Japan". ( Para 2). (//) "That the mark viz. "TOSHIBA" sought to be registered by the applicants is the same as the Opponents' name and their world famous Trade Mark "TOSHIBA". Moreover, the goods for which applicants seek to obtain registration of "TOSHIBA" viz. "Electric fans (all kinds) are the same goods or goods of the same description for which Opponents h?• obtained registration of the word "TOSHIBA 1 and hence the use -•"• registration by the applicants is likely to cause confusion and decept : the Trade. The applicant's proposed Trade Mark No.70461 is, therefore, not registerable under the provisions of Section 10(1) of the Trade Marks Act, 1940". (Para 7) (iii) "That the Opponents' said Trade Mark "TOSHIBA" has been in continuous use in respect of various Electric goods falling in different classes as well as goods of Class 11 in Pakistan for many years past and by virtue of extensive user it has become famous in Pakistan in connection with various kinds of electrical items. Therefore, if the applicants' mark is allowed to be used on the goods for which application has been made it will cause confusion and deception, as the public will believe that the goods emanate from or have some connection with the Opponents'. The applicants' mark is, therefore, not registerable under Section 8(a) of the Trade Marks Act, 1940". ( Para 8). 4. In reply to these grounds the counter statement contained the following replies:- (i) 'The contents of para 2 of Notice of Opposition are not known to the applicants and are not admitted". (ii) "Statement in para 7 is funny and absurd. Applicants are not aware of the fame of the opponents so called world famous mark Toshiba. Since opponents have not sed their mark in Pakistan on or in connection with goods, particularly electric fans, in which it is alleged to be registered, applicants assert that in the absence of use of the mark in Pakistan by the opponents, by applicants of this mark is not likely to cause confusion. In fact, its use by applicants for the last six years has not caused any confusion. Since opponents have not submitted any proof of confusion and have not used the mark provision of section 10(1) is not attracted". (iii) "Statement in para 8 is denied because the opponents have not used the mark Toshiba not only on fans but also on other electric goods falling in class 11 in Pakistan. Hence provisions of 8(0) are not attracted".The respondent No.l filed a number of affidavits and documents in support of its claim. The grounds which weighed with the learned Registrar, Trade Marks, are enumerated as hereunder:- (i) 'The opponents are the registered proprietor of mark Toshiba in different classes but not a registered proprietor of this mark in Class 11 which deals with electric fans. There is no affidavit to support the grounds for opposition. It clearly indicates that the mark applied for by the applicant is not being used by the opponent in Pakistan for goods like electric fans". (ii) "Keeping in view the evidence on record I am convinced that the applicants are in bonaflde use of mark TOSHIBA in urdu since 1978. There had been no hindrence made by the opponent as to use of mark. Use of mark by the applicant is honest, bonaflde and without any let or hindrence from any quarter. The registration of mark in one class does not give any monopoly right to the owner to use for infringement for goods falling in other classes. No monopoly rights vest with the proprietor, unless the mark has been used for those particular goods. I rely on PLD 1978 Kar 161 and 1969 Karachi 376. Goods of the opponent are not in the market and they have never been hi the market nor opponent intends to export goods to Pakistan . In these circumstances question of confusion does not arise. Section 8(«) is not attracted. See PLD 1969 Supreme Court 477". (Hi) "In these circumstances I am of the considered view that the use of mark by the applicant entitles him to claim registration of the mark". (/v) "Opponents' plea that the mark is objectionable under Sections 8(a) and 10(1) is not maintainable. Opposition filed by the opponent stands dismissed with costs". The relief that was granted by the Registrar, Trade Marks, was as hereunder:- "Application No.70461 in Class 11 to proceed to registration with a condition that the mark shall always be used in urdu as applied and advertised, the trading style shall always be prominently displayed with the mark and goods shall remain fans all types and the activities shall not be extended further under their mark. To safeguard the interest of the opponent further applicant is directed not to export his products from the country under the accepted mark". 5. An appeal was filed in the High Court under section 76 of the Trade Marks Act. The High Court held that "the trade mark of the respondents was sought to be registered for the same class of goods for which a similar trade mark was already registered by the learned Registrar........... the burden would be on the applicant to show that no deception was likely to be caused by registration of his trade mark". On the question of deception or confusion, the learned Judg observed as ereunder:- "I find that the learned Registrar has already considered all the relevant questions and after doing the same, he was convinced that there was no likelihood of any confusion being caused in the mind of the public since the trade mark of the respondents is in urdu and the same has been used without any let or hinderance since 1978. Moreover, according to the learned Registrar, similar goods of the respondents are not in the market. Consequently, according to the learned Registrar the question of confusion did not arise. Needless to say that the findings of the Registrar can only be interfered with when the same are found to be absurd or perverse which does not appear to be the case here. Moreover, the learned Registrar has allowed registration of the mark subject to certain conditions which, in my opinion, can reasonably safeguard the interest of the appellants". On these findings, the Order of the Registrar was upheld and the appeal dismissed. 6. When this appeal came up before us for hearing on the 25th of April 1990, there was no representation by the respondents. The arguments were heard ex-parte against the respondents and the judgment reserved. At the same time we intimated the Advocate-on-Record for the respondent No.l of the fact that appeal had been heard ex-parte and the judgment was reserved. He was allowed to submit written arguments, if any. The Advocate-on-Record of the respondent submitted in the Supreme Court of Pakistan at Lahore written arguments on 14-5-1990 without any explanation for the absence on the date of hearing. 7. An examination of the judgment of the High Court and the order of the Registrar of Trade Marks gives the clear indication that they have over­ emphasised the honest and long use of the trade mark which is phonetically identical with the registered trade mark of the appellant. In doing so they have omitted to note that the application for registration of the mark was filed in 1979 and the use of that trade mark was claimed only from the previous year. The relevant consideration in the ordinary course for the Registrar of Trade Marks and the High Court should have been to take the factors as existing on the date the application for registration was filed. If that had been kept in view, not a very long or continuous uniterrupted use of that trade mark would have surfaced. Besides, in a case where deception and confusion are the grounds of Opposition, the honesty of intention in user cannot be of avail. In the case of Singer Machine Manufacturers v. Wilson (3 Appeal Cases 376), the House of Lords approved the principle reproduced in Mitchell v. Henry (1880) 15 Chancery Division 181 at 191) in the following words:- "...even if it were made out that the Defendants had originally adopted a mark honestly and innocently, either in ignorance of the existence of the Plaintiffs' mark, or in the belief that their mark was so different from that of the Plaintiffs' as not to be calculated to mislead an ordinary purchaser, their continuing to use the mark after they became aware that their use of it did cause their goods to be mistaken for the goods of the Plaintiffs, would be not less fraudulent in the eye of the Court than if they had originally begun to use it with a fraudulent intent. The Defendants must bear in mind that the original honesty of intention does not protect the continued user, if the user is found practically to have the result of deceiving, or is calculated to deceive purchasers, because it is very easy for manufacturers to avoid any possibility of misleading purchasers if they are minded to avoid it". The view taken by the Registrar of Trade Marks that not only the trade mark has to be identical/similar but also the goods covered by the trade mark have also to be indentical/similar, is not in accord with law, after the similarity of the trade mark was established and phonetically it was found to be identical. 8. The next question which the Registrar of Trade Marks was required to examine was whether there was likelihood of deception on account of goods of the appellant being similar or of the same description. The appellant is extensively in the manufacture of electrical appliances having a registered trade mark for lighting and heating. Electric fans fall in the category of electrical appliances for hich the appellant has earned world-wide reputation apart from registration of its goods under various classes in this country. So far as articles in domestic use are concerned, an impression can be formed even outside the recorded evidence as was done by the ouse of Lords in Bali Trade Marks's case(l969 Reports of Patent Cases 472) in the following words:- "So, in my opinion, this evidence is of no wieght against the plain common sense view (not unsupported by evidence) that phonetically there is a likelihood of deception or confusion and of such a character as to satisfy the legal test which I have propounded above. Prima facie, therefore, Bali's mark should be expunged". 10. As regards the discretion of the Registrar in the matter, one has to take note of the fact that the provisions invoked by the appellant do not on the plain words contain a discretion. The discretion comes in after a finding of fact has been recorded. The two provisions (sections (a) and 10(1) of the Trade Marks Act) invoked, read as hereunden- "8. Prohibition of registration of certain matters: No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would- (a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of Justice;" "10. Prohibition of registration of identical or similar trade mark (1) Save as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and either already on the register or already registered in any Acceding State or a non-Acceding State to which Section 82-A for the time being applies in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion". 11. It cannot be said that the Registrar of Trade Marks has discretion in determining whether the prohibition prescribed has been incurred or not. He has no discretion. He has to record a finding of fact on the material before him. In case the Registrar of Trade Marks comes to the conclusion that the matter falls within the prohibited category then he has no discretion but has to refuse registration. His discretion arises only when after recording the finding of fact that the matter does not fall within the prohibited degree, he yet considers on certain good grounds that registration is not to be allowed or has to be allowed conditionally. This finding of fact with regard to the matter being within the prohibited category or outside it, has necessarily to be examined as a finding of fact relatable to the goods for which the Trade Mark is to be used. Such a finding of fact has therefore, to be shown to be plausible and correct. If it is not so, such a finding is liable to interference. There is no requirement that the finding itself should have been perversely recorded. It is the exercise of discretion, which is subjected to such a stricter test. 12.. The respondent has shown no reason tenable at law to pick up an invented word of foreign firm enjoying inside the country and outside a reputation for electrical goods of various descriptions. It is registered in this country as such. In this background, the adoption of the same trade mark phonetically in respect of electric fans is bound to create likelihood of confusion and deception to the consumers of such goods. Hence, it is against public interest to register such a trade-mark. This appeal is allowed. The judgments impugned are set aside, and the application for registration filed by Respondent No.l is refused. No order is made as to costs. (MBC) Appeal accepted

PLJ 1991 SC 21 [Appellate Jurisdiction] PLJ 1991 SC 21 [Appellate Jurisdiction] Present: dr. nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, JJ PACKAGES LIMITED-Appellant versus MUHAMMAD MAQBOOL and others-Respondents Civil Appeals Nos. 143 and 228 of 1979 & 311 to 313 of 1980, decided on 10.11.1990. [Against judgments dated 23.5.1979, 23.6.1979 and 18.7.1977 of Lahore High Court, in writ petitions Nos. 981 of 1978,1546 and 1548 of 1977 respectively] Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —-S. 25-A (1) to (4) & (6)-Worker-Grievance of-Redress of-Procedure for- Whether remedy provided by sub-section (6) of Section 25-A is an independent remedy in addition to remedy provided under sub- ections 1) to (4) of Section 25-A-Question of-Obstante clause operates as an ouster of earlier provisions only where there is a conflict and inconsistency between earlier provisions and those contained in later provisions—In his case, there was no such inconsistency because procedure for redress of grievance under sub-sections (1) to (4) and that under sub-section (6) can co-exist-Held: Provision of sub-section (6) would appear to be roviding an additional remedy as there was no inherent unworkability in remedies provided in two sets of procedures contained in sub-sections (1) to (4) and sub-section (6) of Section 25-A-Civil Appeals 143 and 28 nd 1979 dismissed and Civil Appeals 311 to 313 of 1980 allowed. [Pp.23,24&25]A,B&C Mr. Javed Altaf, Advocate, Supreme Court, and Sh. Salahuddin A.O.R. for Appellant in C A. 143 and 228 of 1979! Respondents: Exparte (in CA. 143/79). C/i. Ghulam Qadir, Advocate, Supreme Court, and Ch. Akhtar All, AOR (absent) for Respondents (in CA. 228/79). Mr. Abld Hassan Minto, Advocate, Supreme Court, and Sh. Masud Akhtar, AOR for Appellants (in CA. 311 to 313/80). Sh. Salahuddin, AOR for Respondents (in CA. 31.1 to 313/80) Date of hearing: 10.11.1990. judgment asim Hasan Shah, J.-This judgement will dispose of above mentioned five Civil Appeals as all of them involve the same question of law namely whether after the addition of sub-section (6) in Section 25-A of the Industrial Relations Ordinance, 1969 by Industrial Relations (Amendment) Act, 1973, a workman could seek redress against the termination of his service only under the provisions of the said sub-section or whether he could, notwitstanding the addition of sub­ section (6) aforesaid, still avail of the remedies provided under sub-sections (1), For the purposes of examination of the above question it will be useful to reproduce below the provisions of sub-sections (1) (2) & (4) and the provisions of the subsequent addition to the said Section namely sub-section (6) thereof. The provisions of sub-sections (1), (2.) & (4) of Section 25-A are as follows: -"25-A. Redress of individual grievances.- A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force, to the notice of his employer in writing, either himself or through his hop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises. (1) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the orker. (2) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent the employer shall, within seven days of grievance being brought to his notice. communicate his decision in writing to the shop steward or. as the case may be, the collective bargaining agent. (3) If the employer fails to communicate a decision within the period specified in sub-section (2) or, as the case may be, sub-section (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court or, as the case may be, the collective bargaining agent may take the matter to the Labour Court and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in sub-section (2) or sub-section (3), as the case may be." Sub-section (6) was introduced, as already mentioned, by the Industrial Relations (Amendment) Act, 1973 and provided as follows:- "(6) Notwithstanding anything contained in sub-sections (1) to (5), any workman aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out or otherwise after the commencement of this Ordinance, may make an application to a Junior Labour Court having jurisdiction in the area in which the establishment is situated." A perusal of the provisions of sub-sections (1), (2) & (4) shows that a worker is allowed to seek redress of his grievance by approaching his employer who is required to communicate his decision within 15 days of the grievance being brought to his notice and if the employer fails to communicate his decision within the aforesaid period or if the decision is communicated but the worker is dissatisfied with such decision, the worker may take the matter to the Labour Court within a period of two months from the date of the communication of the decision by the employer. Now, in case of a grievance caused to the workman by termination of his employment, a speedier remedy is provided by sub-section (6) namely that he may make an application directly to the Labour Court within a period of two months of the termination of the employment.The controversy that has arisen is whether the remedy provided under sub­section (6) of Section 25-A is an independent remedy in addition to the remedy provided under sub-sections (1) to (4) to Section 25-A or is a remedy which derogates from and excludes the application of the provision of sub-sections (1) to (4) of the same Section on the principle ofgeneralia speciali bus non deroganl. It may be mentioned in passing that sub-section (6) of Section 25-A aforesaid was omitted through Labour Laws (Amendment) Ordinance 1977 - Ordinance IX of 1977 - which was promulgated on 28.1.1977. Thus, these cases relate to the short period falling between 1973 to 1977.Coming back to the merits of the matter we observe that different views have been expressed on the question as to whether sub-section (6) provides an additional remedy or whether it provides a special remedy exclusively for cases of termination of the employment. Thus in the judgment delivered in Muhammad Duiyab Yousitf Qureshi Vs. Punjab Labour Appellate Tribunal, Lahore (PLD 1979 Lahore 406) Gul Muhammad Khan, J. (as he then was) expressed the view that the provisions of sub-section (6) do not exclude the remedy provided under sub­section (4) but come into play only if a worker does not give a grievance notice to employer as provided under sub-section (1). However, in Arif Hussain Shah Vs. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. and another (PLD 1979 Lahore 603) Dilawar Mahmood, J. (as he then was) expressed the view that individual grievances of workman other than termination of service were to be dealt with under sub-sections (1) to (4) of Section 25-A but cases of termination of employment were governed exclusively by sub-section (6). Accordingly, he went on to add that a workman questioning an order of termination must move the Labour Court having jurisdiction in the area concerned within two months in case he was aggrieved by an order of termination. Reliance was placed on the opening words of sub-section (6) namely- "Notwithstanding anything contained in sub-sections (1) to (4) any workeraggrieved by termination of his employment " and it was opined that sub-section (6) being a 'non abstante' clause, the word 'notwithstanding' implying "despite" or "inspite of" this provision was intended to oust the jurisdiction of the Labour Court to call in question the orders of termination of service. On this view, he held that all grievances other than termination of service are to be dealt with under sub-sections (1) to (4) of Section 25-A but so far as cases of termination of employment are concerned they must be governed by sub-section (6) of Section 25-A. Coming to the matters before us, in the first two, namely Civil Appeal No. 143 of 1979 and Civil Appeal No.288 of 1979, A.S.Salam, J. (then in the High Court) in an elaborate judgment (wherein all the earlier judgments on the subject have been discussed) reached the conclusion that the intention of the addition of sub-section (6) was not to take away the existing rights under sub-sections (1) to (4) of Section 25-A but to supplement them by the addition of sub-section (6) to enable immediate relief to the worker, where he so desired. In other words, a further right was conferred on the worker to obtain speedier relief in addition to the right earlier conferred upon him under sub-sections (1) to (4) to Section 25-A. So far as the question of the effect of the word "notwithstanding " with which words sub-section (6) commenced, he expressed the view that the word 'notwithstanding' should be interpreted in the context of the particular statute in which it occurs and that in the words of the learned Judge: -"in the case in hand, what is to be seen is whether when it is said in sub­ section (6) that "notwithstanding" anything contained in sub-sections (1) to (4), the worker may take the matter directly to the Labour Court, does it mean that a worker could not have had recourse to sub-sections (1) to (4)? Now word "notwitstanding" in the Oxford English Dictionary means "inspite of something" "nevertheless", "still", "yet", "although". If we were to substitute the word "notwithstanding" with its meaning "inspite of, the provision would read that "inspite of anything contained in sub-sections (1) to (4), any worker aggrieved by the termination of his employment may take the matter directly to the Labour Court". It would clearly mean that a worker could go to the domestic authority under sub-sections (1) to (4), but inspite thereof, he could come directly to the Labour Court. To put the matter directly the provision is not that "instead of what is contained in sub-sections (1) to (4), sub-section (6) shall apply. On the other hand, the provision is that "notwithstanding", or, "inspite of what is contained in sub-sections (1) to (4), a worker may come to Court directly under sub-section (6)". On this reasoning he came to the conclusion that the addition of sub-section (6) after sub-sections (1) to (5) of Section 25-A was not meant to take away the right to seek redress from the domestic forum under sub-sections (1) to (3) followed by recourse to Labour Court under sub-section (4) but to confer further right to the worker to take the matter 'directly' to the Labour Court under sub­ section (6).However, so far as the other three appeals namely Civil Appeals Nos.311 to 313 of 1980 are concerned a contrary view has been taken namely that a grievance petition made before the Labour Court after two months of the order of the termination of service would be barred by time in view of the provisions of sub­ section (6) of Section 25-A which provides for such grievances to be submitted within two months to the Labour Court. Thus, the time spent for seeking redress of the grievance under sub-sections (1) to (4) of Section 25-A was not available as the petition for redress of grievance of termination was particularly provided for by sub-section (6) of Section 25-A. We have heard learned counsel for the appellants in Civil Appeals Nos. B 143/1979 and Civil Appeal No.228 of 1979 and Mr. Abid Hassan Minto, learned counsel for the appellants in Civil Appeals Nos.311 to 313 of 1980. In our opinion a 'non-ff>stante' clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating. Accordingly, a non obstante clause will operate as ouster only if an inconsistency between the two is found to exist. In the instant case, there was no such inconsistency because the procedure for redress of the grievance of a worker under sub-sections (1) to (4) of Section 25-A and that under sub-section (6) of Section 25-A can co-exist. In the first set of provisions a workman could approach the employer for redress in the first instance and if the same was not forthcoming and the employer refused to grant redress he could, after failing to secure redress from him, approach the Labour Court. Under sub-section (6) of Section 25-A the workman where he felt aggrieved by the termination of service and being of the opinion that there was no hope for redress being accorded to him by the employer and approaching him was merely a waste of time could approach the Labour Court directly, within two months of the termination of his employment. Viewed from this angle the provision of sub-section (6) would appear to be providing an additional remedy as there was no inherent unworkability in the remedies provided in the two sets of procedures contained in sub-sections (1) to (4) and sub-section (6) of Section 25-A. The maxim "generalia spcdali bus non derogant" namely that special provisions will control general provisions is, therefore, not really attracted in the circumstances. Moreover, this rule is not to be understood in the sense that where-ever there is a particular enactment following a general enactment the particular enactment would over­ rule the former. On the other hand, it is only where the particular enactment is absolutely repugnant and inconsistent with the general enactment that the Court may declare the special enactment as having been repealed by the general one. This is not a case here. We would, therefore, dismiss the appeals of the appellants in Civil Appeals Nos. 143 of 1979 and 228 of 1979 and allow the appeals of the appellants in Civil Appeals Nos.311 to 313 of 1980. Accordingly, in the last mentioned three appeals the order of the Appellate Tribunal dismissing the appeals of the workman as barred by time are decalred as erroneous in law and it is found that the Labour Appellate Tribunal has not disposed of the appeals in accordance with law. Resultantly, the said appeals are remitted back to the Labour Appellate Tribunals concerned for fresh decision in accordance with law. The parties will be left to bear their own costs as difficult questions of law arose therein. (MBC) Orders accordingly.

PLJ 1991 SC 25 [Appellate Jurisdiction] PLJ 1991 SC 25 [Appellate Jurisdiction] Present: saad saood jan and abdul shakurul salam, JJ NOOR MUHAMMAD (deceased) through his L.Rs. Appellants versus MUHAMMAD TUFAIL and others-Respondents Civil Appeals Nos. 310 and 311 of 1981, dismissed on 19.11.1990. Punjab Pre-emption Act, 1913 (I of 1913)-- —S. 8(2)--Pre-emption~Suit for-Notification of exemption-Whether land in dispute was subject to pre-emption or was exempted under notification and which of two precedent cases was applicable-Question of-First recedent case relates to privately owned land while second case relates to land owned by Government—Held: Second precedent case has no application to facts of case in hand—Held further: Since land in dispute was dmittedly privately owned, to which colonization of Government Lands Act, 1912 did not apply, exemption notification under Section 8(2) of Pre-emption Act, 1913 had no application- Appeals dismissed. [Pp.27&28]A,B&C 1986 SCMR 320 applicable. PLD 1969 SC 197 not applicable. Ch. Muhammad Farooq, Senior Advocate, Supreme Court, and Mr. AL4. Qureshi, AOR for Appellants (in both appeals). Ch. Muhammad Manan, Advocate, Supreme Court for Respondents (in both appeals). Date of hearing: 19.11.1990. judgment Abdul Shakurul Salam, J.-This order will deal with Civil Appeals Nos.310 and 311 of 1981, by leave, as these arise in similar circumstances. 2. Relevant facts for the disposal of these appeals are that one Dunni Chand was owner of land in Chak No. 9/Fd. Tehsil Chistian in the Jamabandis for the year 1924-25 till 1946-47. After his evacuation land was allotted to displaced persons from whom the appellants purchased through two mutations sanctioned on 2-12-1966. Muhammad Tufail and Ahmad Ali respondents filed pre-emption suits which were decreed by the learned trial Court on 31-5-1981. The appellants filed appeals before the District Judge and raised an objection that the land was exempt from pre-emption because the same fell within the colony area and that the Colonization of Government Lands Act was applicable to the land. Their application under Order VI rule 17 was accepted and amendment in the written statement was allowed. The matter was returned to the trial Court for framing of an additional issue in view of the fresh amendment and to give finding on the said issue. Accordingly, issue No.l-A was framed which read as under:- "Whether the suit land is exempt from pre-emption for the reason stated in the preliminary objection No.l-A of the written statement? OP." After the trial, the learned trial Court found that the suit land was owned by Dunni Chand and not owned by the Government of State of Bahawalpur at the time when the Colonization of Government Lands Act, 1912 was made applicable to the State of Bahawalpur vide Notification dated 30-4-1926, therefore Notification of exemption under section 8(2) of the Pre-emption Act 1913 issued on 12-6-1944 was not attracted. Finally, the appeals were dismissed by the learned Additional District Judge II Bahawalnagar vide judgment and decree dated 13-1- 1981. The appellants filed two revision petitions which have been dismissed by a learned Judge of the Lahore High Court relying on an earlier decision of a learned Division Bench of the Lahore High Court at Baghdadul Jadid reported as Abdul KJialiq v. Slier Muhammad, (PLD 1961 Baghdad-ul-Jadid 79), vide order dated 28-2-1981. 3. Leave was "granted to consider whether the land in dispute was subject to pre-emption or was exempted under the notification of the Bahawalpur Government relevant on the subject and also to see whether there is any conflict between the two judgments of this Court as reported in Mst. Rehmat Bibi v. Nathe Klian and others, (PLD 1969 SC 197) and Sher Muhammad and others v. Abdul Klialiq and others, (1968 SCMR 320) and which of them is applicable to the facts and circumstances of this case." 4. Learned counsel for the appellants referred to statutory provisions and the notifications. Section 4 of the Colonization of Government Lands (Punjab) Act, 1912 is as follows: - ' 'Application of the Act. This Act shall, unless the Provincial Government otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act 1893, have been applied and to any other land to which the Provincial overnment may by notification in the Official Gazette apply it and which at the time of the notification was the property of the Provincial Government. Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23, or in the proviso to section 14, of this Act shall, apply to tenancies specified in Schedule 1 of this Act, or to any class of tenancies created hereafter which the rovincial Government may declare to be scheduled tenancies." In pursuance thereof, his Highness Amir of Bahawalpur on 30th of April, 1926 applied the said Act to the Bahawalpur State. Vide Memorandum dated 7- 11-1934, approval of transfer of Chaks Nos. 1 to 21 from Mushir Mai to the control of Colonization Officer was accorded and it was further added that all lands, including proprietary are also approved. Section 8 of the Pre-emption Act is as follows:- "Provincial Government may exclude areas from pre-emption (1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre-emption shall exist within any cantonment. (2) The Board of Revenue may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre­ emption or onlysuch limited rights as the Board of Revenue may specify, shall exist." Notification No.74 dated the 12th of June, 1944 was issued from the department of the Prime Minister of Bahawalpur, translation of which is as bllows:- "Under Subsection (2) of Section 8 of the Punjab Pre-emption Act which is in force in the State, the Government of Bahawalpur passes an order that no suit for pre-emption would lie with regard to lands included in a colony (coloy area) to which Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied." All the statutory provisions and the notification were subject-matter of decided case. The learned counsel argued persuasively and brought out specious distinction in the case of Sher Muhammad & others V. Abdul Khaliq and others, (1968 SCMR 320) and submitted that the later decision in Mst. Rehmat Bibi v. Nathe Klian and others, (PLD 1969 SC 197) should govern the case. He also referred to unreported decision in Civil Appeal No.246 of 1979 and Civil Appeal No.52 of 1985 decided on 18th June, 1990. 4. After hearing the learned counsel for the appellants and also for the respondents, we find that the first decision in Sher Muhammad's case (1968 SCMR 320) upholds the decision in Abdul KJialiq v. Sher Muhammad and others (PLD 1961 Baghdadul Jadid 79) in which facts were almost identical as far as relevant for the present purposes i.e. that the land in question was privately owned and not by the Bahawalpur Government. The latter case relied upon by the learned counsel for the appellants Mst. Rehmat Bibi (PLD 1969 SC 197) campe up from the High Court decision reported as Nathe KJwn v. Mst. Rehmat Bibi and others, (PLD 1961 Baghdadul Jadid 96), wherein the land in dispute was government owned land and not privately owned land. Therefore, the later decision has no application to the facts of the case in hand. Similar is the position in the unreported decision in Civil Appeal No.246 of 1979 and Civil Appeal No.52 of 1985 wherein it was observed that "the land in dispute under the relevant provisions of law should be treated as Government property " 5. Since the land in dispute in these appeals, admittedly, was privately owned to which Colonization of Government Lands Act 1912 did not apply, therefore, exemption notification under Section 8(2) of the Pre-emption Act 1913 had no application. These appeals are fully covered by the law declared in the earlier decision in Sher Muhammad'& case (1968 SCMR 320) and have, therefore, to be dismissed. It is so ordered. However, as the question raised related to interpretation of statutory provisions and notifications, the parties are left to bear their own costs throughout. (MBC) Appeals dismissed.

PLJ 1991 SC 28 [Appellate Jurisdiction] PLJ 1991 SC 28 [Appellate Jurisdiction] Present: RUSTAM S. SlDHWA AND MUHAMMAD AFZAL LONE, JJ MUSHTAQ AHMAD-Appellant versus THE STATE-Respondent Criminal Appeal No. 54 of 1986, dismissed on 26.11.1990 [From order of Lahore High Court, dated 17.2.1985, passed in Criminal Revision No. 74 of 1985] Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Art. 4 read with Article 2 (g) & (h)--Rectified spirit-possession of- Conviction for-Challenge to--Whether rectified spirit is not an intoxicating liquor within meaning of Article 2 (h) and conviction is illegal-Question f- Rectified, methylated and denatured spirits are basically industrial alcohols used for manufacture and production of a thousand products-Some medicinal tinctures both fit and unfit for human consumption also ontain alcohol—True that certain persons, specially poor are tempted to drink diluted rectified, methylated or denatured spirits but question still remains whether any of said liquids is normally used for purposes of ntoxication-Word "normally" means in a normal manner, according to rule or general course of events or custom- Held: Since rectified spirit is a form of pure alcohol and can be used as a good substitute, it would all in category of liquid consisting or containing alcohol normally used ior p'lrooses of intoxication within definition of Article 2 (h) of Order-Appeal dismissed. [Pp.30,31,32,33&34]A,B,C&D 1899 A.C. 99 P.C., AIR 1951 SC 318, PLD 1983 FSC 55 and PLD 1984 SC 361 Malik Saeed Hassan, Advocate, Supreme Court, and Mr. S^4. Abid Nawaz, AOR for Appellant. Mr. Gulzar Ahmad Qureshl, Advocate, Supreme Court, and Rao Muhammad YousafKJjan, AOR for State. Date of hearing: 14.10.1990. judgment Rustam S. Sidhwa, J.-This is an appeal by Mushtaq Ahmad appellant against the judgment of a learned Single Judge of the Lahore High Court dated 17.2.1985 dismissing his revision petition and maintaining his conviction under Article 4 of the Prohibition (Enforcement of Had) Order, IV of 1979 (hereinafter to be referred to as "the Order"). 2. The brief facts of the case are that Faiz Ahmad, SI, Incharge, Police Post C-Division, Sialkot, was on patrol duty on 25.8.1982 at about 8.45 p.m., along with Riaz Ahmad and Nazir Ahmad, Constables. Malik Muhammad Rafiq PW was also with them at that time. The appellant Mushtaq Ahmad met the raiding party ear Jinnah Park . He was holding a brown rexine bag. On seeing the raiding party, the appellant tried to scape. However, Faiz Ahmad SI was able to apprehend him with the aid of his companions. The bag was opened and three bottles of alcohol were recovered from the bag. Six ounces of liquid from each bottle were separated and were made into separate sealed parcels to be sent to the Chemical Examiner for analysis. The bottles of alcohol were taken into possession by the police. The appellant could not produce any icence/permit for keeping the same. 3. The appellant was convicted under Article 4 of the Order and sentenced to 18 months' R.I. The learned Additional Sessions Judge, Sialkot, on appeal maintained the conviction, but reduced his sentence to one year's R.I. The revision of the appellant having been dismissed by a learned Single Judge of the High Court on 17.2.1985, he petitioned this Court for leave, which was granted to consider the question whether the three bottles which were recovered from him contained "intoxicant" or "intoxicating liquor" within the meaning of clauses (g) and (h) of Article 2 of the Order. 4. On behalf of the appellant it is submitted that the three bottles of liquid recovered from the appellant were found by the Chemical Examiner to contain diluted rectified spirit and since rectified spirit is not an intoxicating liquor within the meaning of Article 2(h) of the Order, the conviction and sentence of the appellant is illegal. It is sumbitted that the word "intoxicant" as appearing in Article 2(g) of the Order means an article either specified in the Schedule or intoxicating liquor or any other article or substance which the Provincial Government may, by notification in the official gazette, declare to be an intoxicant for the purposes of the Order and the words "intoxicating liquor" as contained in Article 2(h) of the Order includes toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified. Since rectified spirit is industrial alcohol not used normally as a beverage or drink for the purposes of intoxication, the possession of the same by the appellant was not criminal as to be liable for any penalty under the Order. 5. On behalf of the State it is submit ted that persons normally used to alcoholic drinks even go to the extent of drinking rectified and denatured spirits which are meant for industrial use and since the three bottles of rectified spirit found in possession of the appellant were found to be sufficiently diluted, it must be presumed that it was intended to serve as alcoholic liquor for the purposes of intoxication. It is, therefore, submitted that the appellant was rightly convicted and sentenced. 6. We have heard the arguments of the learned counsel for the appellant and the State and have given our anxious consideration to this case. Under Article 4 of the Order, whoever owns, possesses or keeps in his custody any intoxicant is liable to punishment under the Order. Article 2(g) of the Order defines "intoxicant" to mean: "an article specified in the Schedule and includes intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this Order". Article 2(h) of the Order defines "intoxicating liquor" as "including toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified". The Schedule to the Order reads as under:- "1. The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis satiya L.), including all forms known as bhang siddhi or ganja. 2. Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing or transport. 3. Any mixture, with or without neutral materials, of any of the articles mentioned in entries 1 and 2, or any drink prepared therefrom. 4. Opium and opium derivatives as defined in the Dangerous Drugs Act, 1930 (II of 1930). 5. Coca leaf and coca derivatives as defined in the aforesaid Act. 6. Hashish." The question, therefore, that arises is whether the three bottles of liquid which the appellant was carrying was intoxicating liquor and therefore an intoxicant to bring the charge of guilt to the appellant. 7. Para 7 of the judgment of the learned Additional Sessions Judge, Sialkot, 1 dated 6.2.1985 states that the report of the Chemical Examiner EX PD showed that the bottles contained coloured diluted rectified spirit which could be used as a substitute for liquor. Under Article 2(g) of the Order, "intoxicant" means an article specified in the chedule or intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this Order. Rectified spirit is not one of the items listed in the Schedule to the Order. It is also not the case of the learned counsel for the State that rectified pirit has been notified in the official Gazette by the Provincial Government as an intoxicant within the meaning of the Order. Uptil date no article has been notified as an ntoxicant. The only question, therefore, that remains to be decided is whether diluted rectified spirit can be treated as intoxicating liquor. 8. Article 2(h) of the Order defines "intoxicating liquor" to include toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used r urposes of intoxication, but does not include a solid intoxication even if liquified. The word "liquor" does not necessarily mean liquid containing alcohol, such as beverage drink produced by fermentation or distillation. In common parlance it also denotes liquids, fludis or matters in a liquid state; chemical solutions used in the manufacture and preparation of articles and in certain processes; liquid solutions used as a wash or bath, or to cure or purify articles etc. The expression "intoxicating liquor", therefore, obviously has reference to liquids consisting of or containing something which produce intoxication. The word "includes" contained in article 2(h) of the Order requires examination. In Dilworth v Commissioner for Land and Income Tax (1899, A.C. 99 P.C.), Lord Watson observed: "The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statutes; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include' and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act, must invariably be attached to these words or expressions." The question, therefore, that arises is whether the word "includes" has been used to enlarge the meaning of the expression "intoxicating liquor" or to limit its meaing and render it exhaustive. As a general rule, the word "includes" is used as a word of enlargement and ordinarily implies that something else also falls within that definition beyond the general or generic meaning of that expression which precedes it, i.e. a species which does not naturally belong to it or a species which normally or naturally attaches to it. What is the general or generic meaning attaching to the expression "intoxicating liquor", so that the items that succeed the word "includes" either constitute a species which do not naturally belong to it or a species deemed included in the general or generic meaning of that expression or to its natural import. The word 'intoxicant" has been defined in Article 2(g). The items listed in the Schedule to the Order are derivatives of plants. These articles when consumed produce intoxication. They are also normally used by persons for purposes of intoxication. Some of these items can be consumed in liquid form. The expression therefore "intoxicating liquor" as used in its general or generic sense would therefore include all forms of drinks, beverages or liquids containing the articles specified in the Schedule to the Order, i.e. intoxicants which are derivatives of certain stated plants, which are normally used by persons for the purposes of intoxication. "Toddy, spirits or wine ....... " are derivatives of cereals and fruits. These articles when consumed also produce intoxication. What is common to them is alcohol. Thus, if the expression "intoxicating liquor" covers liquids containing intoxicants derived from plants, the words "toddy, spirits of wine,..." which follow the word "includes" refer to the species of liquids consisting of or containing alcohol derived from the fermentation or distillation of cereals or fruits. In short, the expression "intoxicating liquor" in its totality would cover all drinks, beverages or liquids consisting of or containing the articles stated in the Schedule or alcohol which are normally used by persons for purposes of intoxication. The word "intoxication" in Article 2(h) of the Order does not mean to get drunk or unconscious or inebriated or elated beyond the bounds of sobriety. What is intended to convey is that the liquid can produce a state of intoxication, i.e. stimulation, depression, elation, semi-consciousness, etc. 9. The main question that arises for consideration is whether diluted rectified spirit can be treated as "liquid consisting of or containing alcohol normally used for purposes of intoxication" to bring the case within the definition of "intoxicating liquor". The normal alcoholic beverages like toddy, whiskey, wine, beer, gin, rum, brandy all contain alcohol. They are all normally used by persons who drink at home or socialise or mix in bars, clubs, etc. Beer and wine are fermented liquors, whereas the rest are distilled liquors. Wines are prepared out of the fermentation of grapes, whereas beer is prepared out of fermentation of barley and hops. Brandy is distilled from grapewine, whiskey from cereal grain treated with malt, rum from sugarcane juice and gin from cereal grain. Beer and toddy contain two to six per cent alcohol, wine eight to nine per cent alcohol and whishey, rum and gin between forty to fifty per cent alcohol. All these alcoholic beverages are so prepared that they have a peculiar taste, peculiar to the particular beverage concerned. This is brought about by adding certain ingredients during their manufacture and by varying the mode of fermentation and distillation. Though the beverages all contain alcohol, they don't give the taste of pure alcohol. Thus, it is the special taste of each beverage that draws the consumer in the normal course to the beverage concerned and not the thought or taste of alcohol. Rectified, methylated and denatured spirits are basically industrial alcohols used for the manufacture and production of a thousand products. Rectified spirit is a form of pure alcohol. It is also used in medicine. It is liquid which contains upto ninety per cent alcohol. Methylated and denatured spirits are also pure forms of alcohol, i.e. liquids containing about forty per cent of alcohol mixed with very small percentages of chemicals or other poisonous liquids, so as to render them unfit for human consumption. Methyl alcohol or wood neptha is generally added to produce methylated spirits, whereas pyridine or cochicine is added to produce denatured spirits. Denaturing chemicals or liquids are almost in all cases of a poisonous nature and intended to render the alcohol unfit for human consumption. Some medicinal tinctures both fit and unfit for human consumption also contain alcohol. It is true that certain persons, specially the poor, not finding the normal alcoholic beverages, are tempted to drink diluted rectified, methylated or denatured spirits or some medicinal tinctures, in order to find some intoxication, but the question would still remain, as required by Article 2(h) of the Order, whether any of the said liquids consisting of or containing alcohol are such as are normally used for purposes of intoxication. 10. In The State of Bombay v. F.N. Balsara (AIR 1951 S.C. 318) the word "liquor" in Section 2(24) of the Bombay Prohibition Act, XXV of 1949, came up for consideration before the Supreme Court of India. The said Section reads:- "liquor" includes:- (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the Provincial Government ay, by notification in the Official Gazette, declare to be liquor for purposes of this Act. " The Bombay High Court had held that the word "liquor" ordinarily meant" a strong drink, as opposed to a soft drink", but that it had in any event to be a beverage which was ordinarily drunk. Proceeding upon this view, the High Court had held that although the Legislature could while legislating prevent the consumption of non-intoxicating beverages and also prevent the use as drinks of alcoholic liquids which were not normally consumed as drinks, it could not prevent the legitimate use of alcoholic preparations which were not beverages nor the use of medicinal and toilet preparations containing alcohol. The Supreme Court of India, however, on a review of various other provincial enactments dealing with liquor, held that the word "liquor" as contained in Section 2(24) of the Bombay Act XXV of 1949 covered not only those alcoholic liquids which were generally used for beverage purposes and produced intoxication, but also all liquids containing alcohol. It further held that though it was possible that the latter meaning was not the meaning which was attributed to the word "liquor" in common parlance, specially when that word was prefixed by the qualifying word "intoxicating", but in their opinion, having _regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term "intoxicating liquor" as used in entry No31 of list (ii) of the Indian Constitution. In clause (a) of Section 2(24) of the Bombay Act XXV of 1949 the words are "all liquids consisting of or containing alcohol", whereas in Article 2(h) of the Order the words are "liquids consisting of or containing alcohol normally used for purposes of intoxication". The last six words are not to be found in the Bombay Act. This accounts for the reason why the Supreme Court of India held that the word "liquor" in Section 2(24) of the Bombay Act XXV of 1949 covered not only those alcoholic liquids which were generally used for beverage purposes and produced intoxication, but also all liquids containing alcohol. 11. The position here is different. What is covered by Article 2(h) of the Order is not only all alcoholic liquids which are generally used for beverage purposes and produce intoxication, but all liquids containing alcohol normally used for purposes of intoxication. The question, therefore, that would arise is whether rectified spirit is a product normally used by persons for purposes of securing any form of intoxication. The word "normally" means in a normal manner, according to rule or general course of events or custom. Methylated and denatured spirits and medicinal tinctures containing alcohol which are not fit for human consumption are neither liquids normally onsumed by persons who drink, whether for enjoyment within the bounds of sobriety or for getting highly intoxicated within the polarities of boisterous madness or stark unconsciousness, nor are they products which persons used to drinking would normally look for as fair substitutes. However, medicines and medicinal tinctures containing alcohol which are not unfit for human consumption are consumed by persons who normally look for adequate substitutes. A person found drunk or taking such a medicine or medicinal tincture, without "iztarar" (a situation in which he is in apprehension of death due to extreme hunger or thirst or serious illness) would be liable for the offence of drinking under Article 6 of the Order, but the Federal Shariat Court has held that no culpability attaches to the use of prohibited items of food or drink permitted under compulsion of necessity, provided their use is bonafide. See Ghulam NabiAwan v. We Federation of Pakistan (PLD 1983F.S.C. 55). This Court has also held that the use of medicine containing an intoxicant if prescribed by a physician for illness, is not culpable. See Ishtiaq v. State (PLD 1984 S.C. 361). A fortiori, a person found in possession of or drinking medicine or medicinal tincture containing alcohol, which is otherwise not nufit for human consumption and which has not been prescribed y a physician for bona fide illness, would be liable under the Order. Rectified spirit is a form of pure alcohol and the same in various diluted forms, with or without colour and flavouring, can be used as a good substitute for an alcoholic beverage-type drink. Since it can be so used as a good substitute, recitified spirit therefore would fall in the category of liquid consisting of or containing alcohol normally used for purposes of intoxication. This would, therefore, bring the case within the definition of rticle 2(h) of the Order. The Chmical Examiner's report also shows that the liquid in the bottloes was coloured diluted rectified spirit which could be used as a substitute for liquor. Tne bottles therefore contained intoxicating liquor and the appellant appears to have been properly convicted and sentenced. 12. There is no merit in this appeal, which is dismissed. (MBC) Appeal dismissed.

PLJ 1991 SC 35 PLJ 1991 SC 35 [Appellate Jurisdiction] Present: dr. nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, JJ JOINT SECRETARY, CENTRAL BOARD OF REVENUE (CUSTOMS) AND OTHERS-Appellants • versus Raja NAZAR HUSSAIN AND OTHERS-Respondents Civil Appeal No. 119 of 1984, accepted on 23.12.1990 Customs Act, 1969 (IV of 1969)-- —-Ss. 168 (2), 180 and 156 (89)-Smuggled goods-Possession of—Confiscation of goods-Whether penalty to be imposed for keeping smuggled goods in possession, is in ddition to confiscation of goods and not dependent upon factum of confiscation—Question of—A perusal of these provisions shows that a show cause notice under ection 0 of Act must be issued before any order f confiscation or of imposition of penalty is passed—Under Section 168(2) if show cause notice is not issued within specified eriod, goods shall be returned to person from whose possession they were seized—Held: As a show cause notice was duly issued by custom authorities, order imposing enalty could be passed even though goods were not confiscated and had to be returned- Appeal accepted. [Pp.36,38,39&40]A,B,C&D PLD 1986 Kar. 373 approved. 988 P.Cr.LJ 213 not attracted.

Ch. Ijaz Ahmad, Deputy Attorney General and Rao M. Yousaf KJtan, AOR for Appellants. Respondents: Exparte. Date of hearing: 31.10.1990 judgment Nasim Hasan Shah, J.~The case of the appellants is that respondent No. 1 was, on 1.3.1973 found in possession of certain articles which were, in fact, smuggled articles. A show cause notice was issued to him on 3.12.1973 to show cause why penal action should not be taken against him under Clause (89) of S. 156 of the Customs Act (1969) and the seized foreign goods also confiscated under the said section. A show cause notice under S. 168(2) of the Customs Act, which deals with the question of confiscation of seized goods and requires that a notice must be given within two months to the person from whom goods are seized, which period may be extended by the Collector of Customs, for reasons to be recorded in writing, to another two months failing which the goods must be returned to the person from whose possession they were seized. Since the notice in question was issued after the prescribed period of 2/4 months, the customs authorities were constrained to release the said goods to the respondents. Nevertheless a penalty of Rs.43,000/- equivalent to the value of the seized goods was imposed on respondent No. 1 for contravention of S. 156(89) of the Customs Act (1969). This penalty was reduced to Rs. 12,000/- on appeal by the Collector and further reduced to Rs. 8,000/- on revision, by the Joint Secretary, Central Board of Revenue, Ministry of Finance, Government of Pakistan vide order dated 22.9.1976. However, the respondents still feeling aggrieved filed a writ petition before the High Court and a Division ^ach of the said learned Court by its judgment dated 16.8.1983 accepted the t/etilion and quashed the order regarding imposition of penalty. In arriving at the above conclusion it was observed:- "The learned counsel for the Custo is Department argued that Section 156(89) of the Customs Act was pro 'ing penalties for the offences hi confiscation of goods and imposition of penalties by the Customs Authorities besides punishment of imprisonment, fine and whipping by the Special Judge (Customs) on trial. He contended that Section 180 was by itself prescribing no time limit for a show cause notice and was contemplating notices both in case of confiscation of goods and imposition of penalty. It is Section 168(2) which prescribes a time limit of two months and in exceptional cases four months to serve a show cause notice in respect of the goods seized to the person concerned otherwise the goods seized shall be returned to the person from whose possession those were seized. He argued that the offence does not abate if requisite show-cause notice is served after the prescribed period and that the Customs authorities can validly proceed to impose penalty of fine on the accused and that he shall also be liable to trial by Special Judge (Customs) for the offence under Section 156(89) of the Customs Act. The argument does apparently look substantive but one has also to bear in mind that a portion commits offence under Section 156(89) of the Act hi relation to the smuggled goods and if the goods are returned as deemed not smuggled or offence as such not taken cognizance of by the Customs Authorities by waiving to serve statutory notice within the prescribed period, the alleged offender thus absolved cannot be proceeded against by the same Customs authorities to impose penalty on him for the alleged possession of smuggled goods". Leave was granted by this Court to consider the question whether the penalty to be imposed for keeping in possession of smuggled goods is hi addition to the confiscation of goods and not dependent upon the factum of confiscation.We have heard the learned Deputy Attorney General. Respondent No. 1 has not chosen to contest this appeal. Section 156 lays down:- "Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof. Clause 89 provides:- Offences Penalties Section of this Act to which offence has reference "89. If any person without lawful excuse, the proof of which shall be on such person, acquires' possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods General So far as the question of confiscation of goods is concerned, Section 168 lays down to the relevant extent:- "168. Seizure of things liable to confiscation.--(I) The appropriate officer may seize any goods liable to confiscation under this Act (2) Where any goods are seized under sub-section (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by period not exceeding two months." Section 180 which has been referred to in the provisions above cited lays down:- "180. Issue of show-cause notice before confiscation of goods or imposition of penalty.--No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person:- (a) is informed in writing (or if the person concerned consents in writing orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty; (b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it orally), within such reasonable time as the appropriate officer may specify, against the proposed action; and (c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent". A persual of these provisions shows that a show cause notice must be issued under Section 180 of the Customs Act before any order of confisaction of goods or an order of imposition of penalty is passed. Section 168(2) of the Customs Act, however, provides that where the goods are liable to confiscation a show cause notice must be issued within two months of the seizure of the goods which may be extended by another period of two months; otherwise the goods shall be returned to the person from whose possession they were seized. The question of imposition of penalty is not dealt with under Section 168(2) of the said Act. Therefore, it does not appear to be correct to say that the failure to issue a statutory notice within the requisite period which is essential before any order (of) confiscation of goods can be passed also results in absolving the said party from the liability of imposition of penalty, even though a notice was issued why penal action under S. 158(89) should not be taken, though on a date after two months of seizure of goods. Indeed the question whether the provisions of S. 180 are controlled by the provisions of S. 168(2) has been discussed in some detail in Messrs Sikandar and brothers Vs. Government of Pakistan through Member (Judicial), Central Board of Revenue and another (PLD 1986 Kar. 373) wherein, it was inter alia observed:- "Section 168 of the Customs Act enacts provision relating to the seizure of goods, while section 180 makes provision for issue of show cause notice for confiscation of goods. Seizure of goods and confiscation of the same are distinct and different matters. Seizure would mean taking possession. The ordinary rule is that no goods or property of any citizen can be seized and he cannot be deprived of its user. In departure of this rule, section 168 of the Customs Act empowers the appropriate officers that when any goods are liable to confiscation to seize the same. When sub-section (1) of section 168 has empowered the appropriate officer the special right to seize such goods, its sub-section (2) places a corresponding obligation on him that in the event of seizure of goods he is bound to proceed for adjudication of confiscation of the goods at an early date. In order to see that the appropriate officer should not retain such goods after seizure of the same and deprive the owners of their user, sub-section (2) of section 168 requires that a notice, as required under section 180 of the Act, should be given to the person from whom goods had been seized, within a period of two months, and if such notice is not given to him the goods must be returned to him. The word "return" would mean to pass back or to release the same from seizure. But it would not tantamount to cessor (?) of the liability of the goods from confiscation under the provisions of the said Act. Therefore, sub-section (2) of section 168, makes provision of curtailment of the period during which seized goods can be retained for issuance of notice under section 180(a). Once the said notice is issued within the period prescribed under section 168(2), the goods seized can be retained till the adjudication of the confiscation proceedings. So, the failure on the part of the Customs Officers to issue notice within the period contemplated by sub-section (2) or proviso thereto, of section 168, would certainly clothe the person, from whom the goods have been seized with the right to claim the return of the same but it does not set at naught the provision of section 180 and will not deprive the Customs Officers to issue notice under section 180, (for) the obvious reason that it (section 180) does not prescribe any time limit for issuance of such notice. All that it provides is that no order under the said Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person unless the owner of the goods, if any, is informed in writing under clause (a) and is given an opportunity of making a representation under clause (b) and is given a reasonable opportunity of hearing under clause (c). There is nothing in the said section from which an inference can possibly be drawn that the said notice contemplated by clause (a) of section 180 is subject to the provision contained in section 168 of the Act. As such, it would not be proper to import the limitation of two months prescribed by sub-section (2) of section 168 (which can be extended for a further period not exceeding two months, vide proviso to the said sub-section (2) into the provisions of section 180 of the said Act. Clearly, section 180 does not prescribe any time limit for issuing the show-cause notice and it is not permissible to go into the intention of the Legislature for not making provision for such a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of section 180 of the Act, which, does not contain any time limit for issuance of show cause notice by saying that in view of the provisions of sub-section (2) of section 168, the said notice must be issued within sixty days of the seizure of the goods or within the duly extended period of not more than sixty days thereafter. In that view of the matter, it cannot be maintained that a notice, as required under Caluse (a) of S. 180 of the said Act is illegal, simply because it had not been issued within sixty days or the extended period contemplated by Sub. S. (2) of S. 168 of the said Act". I agree with the above reasoning and approach of the learned Judges of the Sindh High Court and would hold that as a show cause notice was duly issued by the custom authorities requiring him to show cause why the goods should not be confiscated and a penalty not imposed, the order imposing the penalty could, in these circumstances be passed even though the goods were not confiscated and had to be returned on account of the lapse of the customs authorities in issuing the notice more than 2 months afterthe seizure of the goods, which lapse rendered the return of the goods necessary as per provisions of S. 168(2) of the Customs Act. Ch. Ijaz Ahmad, learned Deputy Attorney General, however, very fairly brought to our notice the judgment of a learned single Judge of the Lahore High Court (my learned brother Rustam S. Sidhwa, J, while sitting in the High Court) in Muhammad Sarwar Vs. Federal Government of Pakistan and others (1988 P.Cr.LJ. 213), wherein a somewhat contrary view appears to have been expressed. On perusal of the said judgment I am of the opinion that the view expressed therein is based on its own peculiar facts and circumstances and that the said decision is not here directly in point. I would, therefore, accept this appeal, set aside the judgment of the High Court dated 16.8.1983 and restore the order of the Central Board of Revenue dated 22.9.1976 passed in revision imposing the penalty of Rs. 8,000/-. Since the respondent has not contested this appeal, there shall be no order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 40 PLJ 1991 SC 40 [Appellate Jurisdiction] Present: dr. nasim hasan shah, abdul shakurul salam and rustam S. sidhwa, JJ Syed MASROOR AHSAN-Petitioner versus MUHAMMAD TARIQ CHAUDHRY and others-Respondents C.P. No. 857-L of 1990, allowed on 23.12.1990 [Against judgment/order dated 15.8.1990, of Lahore High Court, in Writ Petition No. 681 of 1990] (i) Constitution of Pakistan, 1973-- -—Arts. 199(b)(ii), 69(2) and 225-Senator--Election oi-Ad-interim restraint against-Challenge to-Interim injunctions are not issued against elected members of ighest legislative bodies as that not only deprives member but constituency goes unrepresented whereas non-grant effects nobody-Basic principle governing grant f interim injunction is balance of convenience— Without full adjudication, interference in composition of National Legislative houses is contrary to democratic orms--In view of bar contained in Article 225, no election to a House shall be called in question except by an election petition-Lahore High Court did not have ritna facie jurisdiction to issue interim injunction-Under Article 69(2), Chan-man of Senate or other officers of Parliament were not to be subject to jurisdiction of ourt in respect of owers vesting in them and no injunction, prima facie could be issued to them not to give oath to petitioner-Held: During pendency of onstitutional petition on same grounds in Sindh High Court, Lahore High Court had no right to issue direction that petitioner shall not be administered oath- mpugned order set aside (Per Abdul Shakurul Salam, J). [P.46]D&E (ii) Constitution of Pakistan, 1973- —Art. 199(b)(ii)-Senator-Election of-Ad-interim restraint against-Challenge to-Since matters of competence of High Court to deal with Writ Petition and maintainability of writ petition and all other legal matters are still sub-judice before High Court, no view is being expressed and same are left open for High Court to decide-Held: Leave is granted, impugned order is set aside and learned Chief Justice of Lahore High Court is requested to ensure that main writ petition is taken up day to ay and finally decided by 15th of January, 1991. (Per Rustam S. Sidhwa, J). [P.51JJ&K (iii) Constitution of Pakistan, 1973- —Art. 199(b)(ii)-Senator-Election of—Ad-interim restrainst against—Whether interim order was rightly passed—Question of—Legal objections raised by petitioner's counsel before High Court go to root of case namely (1) writ of quo warranto was not maintainable in view of fact that petitioner had not taken oath of office, (2) writ petition was not competent in view of pendency of another writ petition filed earlier in Sindh High Court, (3) writ petition was not competent in view of exclusive jurisdiction being available with Senate itself to deseat a member and (4) writ petition was not competent as grounds for disqualification contained in Article 63 of Constitution referred to present acts and not to past acts-Held: Without considering these legal objections learned Judges could not have proceeded to hold that writ petition was prima facie legally maintainable and competent-Held further: In view of this vital legal flaw, impugned order stands vitiated. (Per Rustam S. Sidhwa, J). [Pp.49&50]G (iv) Constitution of Pakistan , 1973- —Art. 199 (b)(ii)~Senator~Election -of—Ad-interim restraint against— hallenge to-Whether interim order was rightly passed-Question of~ Petitioner was not granted djournment and was compelled to meet onslaught of his prepared adversary, without being granted a fair opportunity to prepare and defend himself-Learned Judges cted with undue haste~A fair opportunity to defend is a right and not an indulgence and where a party is not allowed adequate time to prepare, plead and argue his ase, roceedings stand vitiated-Held: Order relating to interim relief suffers from inherrent vice and deserves to be set aside (Per Rustam S. Sidhwa, J). [Pp.48&49]F (v) Constitution of Pakistan, 1973- —Art. 199(b)(ii)-Senator-Election of—Ad-interim restraint against-Challenge to-Writ petition is still pending in High Court and, in fact, has not yet even been admitted to regular hearing~In case, petitioner is successful in satisfying High Court that it cannot or should not interfere in matter in exercise of its writ jurisdiction, writ petition will be ismissed and ad-interim restraint order will fall along therewith-Petitioner was elected only for un-expired period of term which expires on 20th March, 1991 and that more than half of his term has already been consumed before High Court which is most regrettable-Held: High Court should give priority to this matter and decide it by 15th of January, 1991. (Per Nasim Hasan Shah, J). [P.43]A,B&C (vi) Practice and Procedure- —Senator-Election of—Ad-interim restraint against-Challenge to-Courts should somewhat be reluctant in freely issuing stay orders preventing members of superior legislatures from performing their functions-It is of utmost importance that members of elective bodies should be allowed to fully perform their functions so that interests of their constituencies are protected and do not suffer-Held: Till full adjudication of case, restraint orders should as far as possible, be avoided unless during preliminary earing, court is completely satisfied that such an interim order can safely be passed against weight of all legal and factual objections raised by party affected and quirements of .P.C. relating to issue of interim orders are clearly satisfied. (Per Rustam S. Sidhwa, J). [Pp.50&51]H Raja Muhammad Anwar, Senior Advocate, Supreme Court and Mr. Muhammad Aslam C7i,. A.Q.R. for Petitioner. Mr. A.K. Dogar, Advocate, Supreme Court, Mr. Irshaduttah Chatha, Advocate, Supreme Court and Mr. AbulAsim Jafri, AOR for Respondent No. 1. Ch. Muhammad Farooq, Deputy Attorney General for Respondents 2 to 4. Date of hearing: 18.12.1990. order Nasim Hasan Shah, J.-The petitioner was elected unopposed for the unexpired term of office of Mr, Mohsin Siddiqui, on his demise, to a Senate seat from Sindh Province on 16.6.1990. The notification of his having been so elected was issued by the Election Commission of Pakistan on 27.6.1990. The session of the Senate convened after his election being on 5.8.1990, the petitioner went to take oath on that date but on account of lack of quorum, no formal proceedings could take place. The session of the Senate was, accordingly, adjourned. In the meanwhile, respondent No. 1 (Mr. Tariq Chaudhry), who is also a Member of the Senate filed a Writ Petition (W.P. No. 681/90) in the Lahore High Court alleging that the petitioner was inherently disqualified from being a Member of the Parliament under the provisions of various clauses of Articles 62 & 63 of the Constitution. Alongwith the Writ Petition (W.P. No. 681/1990) a Civil Miscellaneous Application (CM. No. 1061/90) was also submitted wherein it was prayed that the Chairman of the Senate (respondent No. 2) be restrained from administering the oath to the petitioner herein till the final disposal of the writ petition. This civil misc. application came up for hearing before a Division Bench of the High Court on 15.8.1990 and the learned Judges in the High Court, after hearing the parties expressed the view that the writ petitioner had made out a prima-facie case and directed that oath of office of Senator shall not be administered to the petitioner herein till further orders. Since then, although the writ petition has been posted for hearing on several occasions it has not, however, been heard so far, for one reason or another. In these circumstances, the petitioner has moved this Court against the order dated 15.8.1990 restraining respondent No.2 from administering oath to him. Raja Mohammad Anwar, learned counsel for the petitioner, has, in his elaborate address, raised several contentions but the most important of these seem to be: (i) that as ordained in Article 225 of the Constitution no election to a House of the Parliament can be called in question except by an election petition, hence the writ petition filed by Senator Tariq Chaudhry was not maintainable; (ii) that a writ in the nature of quo warranto can be addressed only to a person "holding or purporting to hold a public office" to show under what authority of law he claims to hold that office. In this case, the petitioner not yet Ijaving taken oath as Senator neither held a public office nor was purporting to do so,and (iii) in any case, no order to restrain a person to hold a public office can be issued. Such an order can be issued only when a person is holding or purporting to hold a public office in presentai. The stand of Ch. Muhammad Farooq, the learned Deputy Attorney General and Mr. A.K. Dogar, learned counsel for the Senator Mr. Tariq Chaudhry, in reply to the contentions, is (i) that in the writ petition the election of the petitioner is not being called in question. What is being questioned is his title to be a Member of the Senate because, according to them, he is inherently disqualified from being a Member thereof and that such a challenge, by a writ of quo warranto, is not barred by Article 225 of the Constitution; (ii) that on the issuance of the notification by the Election Commission of Pakistan declaring the petitioner to be the returned candidate as a Senator in the seat of Mr. Mohsin Siddiqui for the unexpired term of his office the petitioner could be said to be holding a public office, notwithstanding that he was still to take oath of a Member of that House, and (iii) the question whether an order restraining the administration of oath to a returned candidate can be issued or should issue depends upon the peculiar facts & circumstances of each particular case and no hard and fast rule can be laid down hi this respect. It is manifest that questions arising are of a legal nature and of considerable public importance. But the issue before us is whether this Court should address them at this stage? We observe that the writ petition is still pending in the High Court and, in fact, has not yet even been admitted to regular hearing. The order impugned before us is only an ad-interim restraint order. The writ petition, we understand, was fixed for hearing even yesterday (17.12.1990) but could not be heard. In case, the petitioner herein is successful in satisfying the High Court that it cannot or should not interfere in the matter in exercise of its writ jurisdiction, the writ petition will be dismissed and the ad-interim restraint order fall along therewith. ,In any case, it is the High Court which must decide this question in the first instance. I am conscious that the petitioner has been elected only for the unexpired period of the term of Senator Mohsin Siddiqui which expires on 20th March, 1991 and that more than half of his term has already been consumed in the proceedings before the High Court. This is indeed most regrettable. In my opinion, the High Court should take up this case forthwith and dispose of the writ petition without any further delay. The writ petition, which was instituted in August, 1990, has still to come up for consideration of the question of 1C admission but on account of an ad-interim order of stay, and elected Senator is being denied his seat. The High Court should, in these circumstances, give priority to this matter and decide it by 15th January, 1991. I would dispose of this petition with these observations: Abdul Shakur ul Salam, J.--I would have liked to agree with the proposed order of my learned brother but regret that would leave the impugned order in the field as a precedent to be followed and I do not think that is correct on principles governing interim injunction and is not contrary to the intention and express provisions of the Constitution. Relevant facts are that the petitioner on 26.6.1990. was elected by the Members of the Provincial Assembly of Sind to a seat allocated to that Assembly in the Senate which had fallen vacant on account of the demise of a member from that Constituency. Vide Notification of the Election Commission of Pakistan, Islamabad dated 27.6.1990, the Chief Election Commissioner published the name of the petitioner as a "returned candidate" in the bye election "to the Senate from Sind Province" against the unexpired term of the deceased member which was "due to expire on March 20, 1991." A member of the Provincial Assembly of Sind filed a Constitutional petition on 11.7.1990 in the High Court of Sind challenging the election of the petitioner on the grounds that he was not qualified and disqualified under Articles 62 and 63 of the Constitution. When it came up for hearing on 17.7.1990 pre-admission notice was issued to the petitioner for 26.7.1990. He having not been served substituted service was ordered for 6.8.1990. It was pasted on his door. On 5.8.1990, a Constitutional petition bearing W.P. No. 681/1990 was filed in the Lahore High Court against the petitioner challenging his election on the same grounds, along with C.M. No. 1061 of 1990 for restraining administration of oath to the petitioner till the disposal of the petition. Session of the Senate stood convened for 5.8.1990 on which date the petitioner was to take oath as a Member of the Senate. There being no quoram, the session could not be held and so the petitioner could not take oath. The Constitutional petition filed in the High Court of Sind was admitted on 6.8.1990 by a learned Division Bench of that Court but the application for stay restraining the respondent from taking oath was not pressed and dismissed. On 13.8.1990, the Constitutional petition filed in the Lahore High Court came up for hearing and notice was issued to the petitioner for 15.8.1990. When he appeared before the learned Division Bench of the Lahore High Court at 10 A.M., he said that he had received notice only a day back and has come on the first flight. He may be allowed time to contest the petition and application for stay. Case was ordered to come up at 12.00 noon. After hearing the parties, the learned Bench issued a direction that "oath of office of Senator shall not be administered" to the petitioner. This is vide order dated 15.8.1990. Itis challenged through the afore-titled petition. Contentions of the learned counsel for the petitioner are that the petitioner was elected by the Members of the Provincial Assembly of Sind and he is to represent the Sind Province in the Senate of Pakistan. The Lahore High Court had no territorial jurisdiction in the matter.Moreso when a Constitutional petition on the same subject for the same relief had already been filed in the Sind High Court on 11.7.1990 and admitted on 6.8.1990. Stay application was withdrawn and dismissed. The Lahore High Court had no jurisdiction to issue interim injunction on 15.8.1990 vide the impugned order. Secondly, election of the petitioner could not be challenged under Article 199 of the Constitution as the Article is "Subject to Constitution" and Article 225 of the Constitution provides that "no election can be questioned except through an election petition filed in accordance with law", for which provisions have been made in Chapter V of the Senate (Election) Act, 1975. He relied upon Election Commission of Pak v. Javaid Hashmi (PLD 1989 SC 396). Article 63(2) also provides a means of challenging the right of an elected Member to sit in the House. Therefore, Article 199 being "subject to Constitution" nd alternate remedies being available, this provision of the Constitution could not be utilized by the Lahore High Court to deprive the petitioner of his right, and to annul the effect of various Articles of the Constitution. Thirdly, that it was prayed in the miscellaneous application that respondent No.2, (Chairman Senate) may very kindly be restrained from administring the oath "to the petitioner till the final disposal of the writ petition". The learned Court in the impugned order has "directed that oath of the office o Senate shall not be administered" to the petitioner "till further orders." Learned counsel submitted that Article 69(2) of the Constitution provides that: "No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct ofbusiness, or for maintaining order in the Majlis-e-Shoora (Parliament) shall be subject to the jurisdiction of any Court in respect of the exercise by him of these powers." It was submitted that direction issued in the impugned order is in direct conflict with the Constitutional provision and the Court had no jurisdiction. Fourthly, the application has been filed and proceeded under Article 199(b)(ii) of the Constitution but the provision has no application to the facts of the case. The provision is that on such an application, the High Court may make an order: ii "requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office.: The precise contention is that the petitioner is neither holding nor purporting to hold any public office. Only his name has been notified as a returned candidate. The petitioner will hold office when he has taken oath as required by Article 65 of the Constitution. He is by no means purporting to hold public office. He has done nothing so as to say that he is purporting to hold public office. It is nobody's case that the petitioner has done anything which will amount to his purporting to hold public office. Lastly, the learned counsel submitted that false propaganda material could not be used against the petitioner. Where there were more and worse allegations against a member of the House those were found to be of no avail for unseating the Member. He submitted that the only conviction against the petitioner is of making a speech against Martial Law for which he was convicted under Martial Law Regulation 13 for a year and 10 stripes. But this happened in 1977. Article 63(l)(h) disqualifies a person who is convicted of an offence involving 'moral turpitude' for 'not less than two years' and 'five years period has not elapsed'. None of the conditions are applicable to the petitioner. He relied to (?) Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736). Fifthly, no interim injunction is issued to an elected office holder not to perform his duties. Not only he is deprived but the Constituency is also deprived of its representation. The learned Deputy Attorney General representing the Federation and Senate as well, and the learned counsel for the writ petitioner submitted that the Lahore High Court had the jurisdiction as the petitioner was notified having been elected as a Member of the Senate by the Election Commission at Islamabad and Senate is also located there. The writ petitioner in the Lahore High Court is a Member of the Senate from Punjab and he has no other remedy to question the qualification and disqualification except through a Constitutional petition in the nature of quo warranto. The petitioner having been declared elected is purporting to hold the public office of a Senator. They relied on Farzan AH v. Province of West Pakistan, (PLD 1970 SC 98). Learned counsel for the writ petitioner has filed a chart showing that the petitioner is not a qualified and is a disqualified person to hold the office of a Senator. We have heard the learned counsel for the parties at length and perused the precedents quoted by them. Obviously the contentions raised require interpretation of Constitutional provisions having far reaching effect. Therefore, leave to appeal is granted.As regards the interim injunction impugned, I am of the view that it is to be vacated. My reasons are that interim injunctions are not issued against elected members of the highest legislative bodies as that not only deprives the member but the constituency goes unrepresented. Non-grant affects nobody. The basic principle governing grant of interim injunction is balance of convenience. Secondly, without full adjudication interference in the composition of national Legislative houses is contrary to democratic norms which are the basis of the Constitution. Thirdly, in view of the Constitutional bar contained in Article 225 that "no election to a House shall be called in question except by an election petition " and Article 199 invoked in the High Court being "Subject to the Constitution " and in its own terms there being alternate remedies, the Lahore High Court did not have prima facie jurisdiction to issue the interim injunction. Fourthly, Article 69(2) of the Constitution provides that "No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for .... the conduct of the business .... shall be subject to jurisdiction of any Court in respect of the exercise by him of those powers." If the Chairman of the Senate or other officers of the Parliament were not to be subject to the jurisdiction of the Court hi respect of the exercise of powers vesting hi them, no injunction prima facie could be issued to them not to give oath to the petitioner. Lastly, and most importantly is the consideration whether the Lahore High Court had the jurisdiction or could exercise it lawfully in respect of the dispute brought before it. In this connection we must remember that Pakistan is a "Federal Republic". Article 1. To the Senate of Pakistan each of the four Provincial Assemblies elects fourteen members. Article 59. Question arises whether a member elected to the Senate by a Provincial Assembly to represent the Province, can be asked by the Lahore High Court for the Province of Punjab to show under what authority he was holding office of having been elected by the Provincial Assembly of his Province? If that be so, all the members elected by the three Provincial Assemblies would be amenable to the jurisdiction of the Lahore High Court for the Province of Punjab. Therefore, when a Constitutional petition on the same ground and for the same relief was pending in the High Court of Sind, without final adjudication the Lahore High Court had no right to issue direction that the petitioner who was lected by the Provincial Assembly of Sind shall not be administered oath. In view of what has been stated above, I am of clear view that the impugned order was not called for. It is, therefore, set aside. Rustam S. Sidhwa, J.-The question that arises for consideration is whether an ad-interim order issued by a learned Division Bench of the Lahore High Court on 15.8.1990 on a miscellaneous application C.M. No. 1061 of 1990, directing that the oath of office of Senator shall not be administered to Syed Masroor Ahsan, the present petitioner, as a member of the Senate of Pakistan, till further orders, can be sustained. 2. It appears that Syed Masroor Ahsan, petitioner, was awarded a ticket by the Pakistan Peoples Party to contest the election to a seat of the Senate which had fallen vacant on the death of Senator Mohsin Siddiqui on 16.6.1990. 3. The petitioner and four others filed their nomination forms. The other candidates withdrew their nomination papers on 23.6.1990. The petitioner was accordingly elected senator on 26.6.1990. The Election Commission of Pakistan accordingly by notification dated 27.6.1990 notified his being elected unopposed to the Senate seat from Sind Province. 4. On 11.7.1990 one Shamsul Arifeen, M.PA. ( Sind ), filed Constitution petition No. E-675 of 1990 in the Sind High Court against the petitioner challenging his election and seeking relief in the form of a writ of quo warranto, alleging that the petitioner was disqualified from being elected as a senator. With the said petition, a miscellaneous application for debarring the petitioner from being administered the oath of his office was also filed. Pre-admission notices were issued to the petitioner. 5. On 5.8.1990 the session of the Senate was convened, but due to lack of quorum the session was not held and the petitioner who had gone there to take oath, could not be so administered oath. However, the session of the Senate was adjourned to 8.8.1990. 6. The same day Senator Muhammad Tariq Chaudhry, the present respondent No. 1, filed writ petition W.P. No.681 of 1990 in the nature of quo warranto in the Lahore High Court to call upon the petitioner to show under what authority he held the office. With the said petition, a miscellaneous application C.M. No. 1061 of 1990 for an interim relief, as stated in para 1 above, was filed. The case was adjourned on two dates and ultimately fixed for 13.8.1990. 7. On 6.8.1990 the constitution petition filed by Shamsul Arifeen M.PA. came up for hearing before the Sind High Court, which was admitted. As regards the miscellaneous petition for interim relief, the same was not pressed and therefore was dismissed as withdrawn. 8. On 8.8.1990 the petitioner presented himself at the Senate to receive the oath of his office. It is alleged that the senators staged a walk out, to show their disgust, with the result that he could not be administered oath. 9. On 13.8.1990 the writ petition filed by Senator Muhammad Tariq Chaudhry respondent No. 1, came up before the Lahore High Court for hearing. Before this date the petition had come up on two earlier dates on which the counsel for respondent No. 1 had sought adjournment. However, on 13.8.1990 the learned Judges summoned the learned Deputy Attorney General and issued notices to the petitioner for 15.8.1990 both in the main petition and on the miscellaneous application C.M.No. 1061 of 1990. Notices were also ordered to issue by registered post acknowledgment due and telegraphically. 10. It is the case of the petitioner that he received notice of the hearing through telegram on 14.8.1990 in the evening at Karachi, that he flew into Lahore on 15.8.1990 by the early morning flight, that he reached the lahore High Court at about 10.00 a.m., that he appeared with his two counsel before the learned Judges of the Division Bench at 10.00 a.m., when the case was called, that his learned counsel requested for adjournment on the ground that he had received notice only the day before and that he had no knowledge of the contents of the writ petition, hat the learned Judges gave no accommodation but adjourned the case to 12.00 noon the same day, that neither he nor his counsel had time to prepare the written statements to the main petition and the miscellaneous application or the affidavits in support thereof or to prepare the case or look up the law on the subject and that after arguments were heard, of a fully prepared counsel, on one side, and two unprepared counsel, on the other, the learned Judges of the Division Bench passed the interim order the same day directing that the oath of office of se ator should not e administered till further orders. 11. The writ petition then was fixed for a number of dates, but nothing material took place. The writ petition does not even stand admitted. The adinterim order still holds the field. 12. The circumstances in which the interim order was passed on 15.8.1990 by two learned Judges of the High Court in some apparent haste leaves much to be desired. Initially on 13.8.1990 the first notices through telegram and registered acknowledgment due post were issued to the petitioner for 15.8.1990. He appeared in Court on 15.8.1990. Since he had received the telegram on 14.8.1990 and post haste presented himself before the Court on 15.8.1990, it was too much to expect that his counsel would be prepared for full fledged arguments that day, or also be ready to present their client's written statement to the main petition and the miscellaneous application, together with accompanying documents and affidavits. Notwithstanding a genuine request for adjournment, which was reasonable and most appropriate in the circumstances, the petitioner-ex facie a responsible citizen holding one of the highest offices i.e., 'of a senator, of a sovereign Islamic counrty-found himself at the mercy of the highest Court in the Province begging for adjournment, which was not granted, and compelled to meet the onslaught of his prepared adversary, without being granted a fair opportunity to prepare and defend himself. It is the solemn duty of Courts to see that defendants or persons against whom causes have been instituted against whom interim reliefs are claimed, get a fair-even though short-amount of time, which they consider reasonable and proper in the circumstances, to enable them to meet the cases of their adversaries regarding interim relief. Where the Court considers that a party, notwithstanding receipt of notice, has not turned up or is trying to delay the case, the Court can squeeze the time, but however short it may be, it must be such that in the given circumstances and taking all facts into consideration, it is neither unfair nor unreasonable. In interlocutory matters the right to defend includes a fair opportunity to the person concerned to present his defence in writing, in the manner required by law or rule governing the relevant case, and to present his oral arguments, where the same is permissible. Where such an opportunity is not fairly granted, it cannot be said that the person concerned was given a right to defend. In constitutional cases, a fair amount of time is allowed, depending upon the facts of each case, to a respondent to present his written statement to the writ petiton and to the miscellaneous application for interim relief and to present arguments relating to interim relief. The instant case clearly shows that a fair opportunity was not granted to the petitoner to defend his adversary's claim to interim relief, but that in circumstances somewhat unfortunate, the learned Judges acted with undue haste. A fair opportunity to defend is a right and not an indulgence and where a party is not allowed adequate time to prepare, plead and argue his case, the proceedings stand vitiated. With profound respect to the learned Judges who have passed the order, I would only say that the order relating to interim relief suffers from inherent vice and deserves to be set aside on that account. 13. Another peculair feature of the case is the somewhat unusual order passed by the Court. The learned Judges first set out in some detail and with precision the arguments of the learned counsel for respondent No. 1 and that of the counsel for the petitioner in reply. The Judges then opined that they would refrain from commenting on the merits of the arguments, lest it may prejudice the case of either party at any subsequent stage of the proceedings. They then observed that the contentions raised were likely to raise propositions of law which would call for an authentic and proper adjudication. They then observed that the allegations made in the petition, as supported by annexures and charts, had not yet been denied even by an affidavit and that the answer to question No. 14 in the nomination form filed by the petitioner had not only been not denied by him through any affidavit, but prima facie stood negated by an annexed charge sheet pertaining to the case inter alia against the petitioner in which he was allegedly declared absconder. In view of this discussion, the learned Judges then proceeded to pass the ad interim order. It may be observed that the learned Judges first refrained from commenting on the legal arguments of the petitioner, lest it prejudiced the case of either party at any subsequent stage and for fear that they raised propositions of law which ultimately called for an authentic and proper adjudication. The legal submissions therefore raised by the learned counsel for the petitioner and which constituted the whole legal basis of his defence, were totally not considered. How the learned Judges could have avoided taking note of the four legal objections raised by the leaned counsel for the petitioner in their arguments, and which have been referred to by the Judges in para 3 of the impugned order, is not. understood. The legal objections go to the root of the case, namely, whether the writ of quo warranto was not maintainable, in view of the petitioner not having taken oath of office, whether the writ petition was not competent, in view of another writ petition which had earlier been filed in the Sind High Court, was still pending there, whether the writ petition was not competent, in view of the exclusive jurisdiction being available with the Senate itself to deseat a member and whether the writ petition was not competent, as grounds for disqualification contained in Article 63 of the Constitution referred to present acts and not to past acts. Till the learned Judges had considered these legal objections and prima facie found that they neither affected the competency of the writ to proceed or their own jurisdiction to deal with the case, they could not have proceeded to hold that prima facie respondent No. 1's writ petition was legally maintainable and competent. Withoug clearing this hurdle, the Court could not have passed the interim order on merits alone. In view of this vital legal flaw, the order stands vitiated. 14. It is the case of the respondents that the past and present character and criminal record of the petitioner, as evidenced by the material appended with the writ petition,are such that he is a reprehensible person who does not at all deserve to be a member of the Senate and that he stands inherently disqualified to be a member of this august assembly. I have read all the annexures and charts appended with the writ petition and the respondents' present reply to the petition for leave to appeal. If all what is stated therein is true, the petitioner would neither be entitled to be qualified nor deserve to be a member of the Senate. However, what is alleged and what ultimately can fairly be found to be legally proved, in a case such as the present, where allegations of fact can only be supported by affidavits, are two different things. In ne ase before the Election Tribunal, where a long string of allegations of a similar nature were found to be proved, the Supreme Court set aside the findings and laid down stricter tests for the establishment of such allegations. See Muhammad Afzal v Muhammad Altaf Hussain (1986 SCMR 1736). To hold that almost all facts stood proved, because they were not denied on affidavit, because- as stated earlier - no fair opportunity to defend the petition was allowed to the petitioner, would be an unfair inference. 15. My learned borther Dr. Nasim Hasan Shah J, has referred to the unfortunate circumstances in which the case has been allowed to drag on, with the writ petition not even being admitted to hearing since the last four months. My learned brother Abdul Shakoor ul Salam J, has referred to the dangers attending the issue of interim orders restraining members of the superior legislatures from performing their functions on the ground that they not only deprive the members from performing their duties, but leave the constituencies unrepresented and that therefore such interim orders - on principle - should not be issued and in any case without a full adjudication of the case, for otherwise interference in the composition of the superior legislative bodies would be violative of basic democratic norms. I am also of a similar mind. The circumstances in which the interim order was issued restraining a member of the superior legislature to take oath and thus perform his functions "till further orders" of the Court, but the writ petition was not admitted, which prima facie suggests that that day at least the learned Judges were in some doubt as to whether they had jurisdiction to deal with the case or whether the writ was competent or whether there was a prima facie case which could otherwise proceed, clearly leads to the inference that the interim order was passed against a background of facts which the Judges feared did not support its issue. Supporting the observations of my learned brother Abdul Shakoor ul Salam J, I would hold that Courts should be somewhat reluctant in freely issuing stay orders preventing members of superior legislatures from performing their functions, till a more closer, if not full, adjudication is made, which would exclude all possibilities of such an order being set aside, both on legal or factual grounds. It is of the utmost importance that members of elective bodies should be allowed to fully perform their functions, so that the interests of their constituencies are protected and do not suffer, and—till the full adjudication of the case-restraint orders should as far as possible be avoided, unless during prelimianary hearing the Court is completely satisfied that such an interim order can safely be passed, against the weight of all legal and factual objections raised by the party affected, and the requirements of the Code of Civil Procedure relating to the issue of interim orders are clearly satisfied. 16. My learned brother Abdul Shakoor ul Salam, J, has referred to the fact that the High Court was not competent to deal with the writ petition as the matter was an election dispute and that the petitioner was neither holding nor purporting to hold a public office and that its action would trench on the principle of federalism, as the petitioner who was a senator elected from the Sind Province could not be arraigned before the High Court of another province to show under what authority he held his office. Since these and all other legal matters are still sub-judice before the High Court, I would not like to express myself on these points, but would leave these matters open for the High Court to decide. 17. Agreeing with my learned rother Abdul Shakoor ul Salam J, I would grant leave to appeal. Notices having already issued to the respondents in this case and arguments having been heard in full, for the foregoing reasons and, in the light of the above submissions, I would set aside the impugned order dated 15.8.1990 passe in C.M. No. 1061, of 1990. Supporting the observations of my learned brother Dr. Nasim Hasan Shah J, I would request the learned Chief Justice of the Lahore High Court to ensure that the main writ petition is taken up day to day, subject to all just exceptions, and finally decided one way or the other by 15th January, 1991. ORDER OF THE COURT By the opinion of the majority, leave to appeal is granted and the interim order dated 15.8.1990 passed in Civil Miscellaneous No. 1061 of 1990 in Writ Petition No. 681 of 1990 is set-aside. The High Court should hear the Writ Petition (W.P. No. 681/1990) expeditiously and dispose it of by 15th January, 1991. (MBC) Interim order set aside.

PLJ 1991 SC 51 PLJ 1991 SC 51 [Appellate Jurisdiction] Present: dr. nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, JJ GOVERNMENT OF THE PUNJAB , THROUGH CHIEF SECRETARY- Appellant versus SAFDAR ALI CHAUDHRY & others-Respondents Civil Appeal No. 527 of 1988, accepted on 16.12.1990 [Against judgment dated 19.6.1984 of the Punjab Service Tribunal, in Appeal No. 313/771 of 1984]. Civil Services Rules-- —R.4.13, Note 4 read with Fundamental Rule 30 and Punjab Civil Servants Act, 1974-S.9~Government servant-Deputation abroad-Promotion of~ Challenge to--Whether convention contained in Note 4 to Rule 4.13 has status of statutory rule-Question of—Rule 10.2 of Civil Services Rules (Punjab) Vol. I Part I provides that no Government servant may be transferred to "foreign service" against his will-Respondent No.l went out to serve in Nigeria of his own free will and not on account of any order passed by Government- Guarantee under Section 9 of Punjab Civil Servants Act, 1974 is confined only to protection of his pay and not to prospects of promotion—Held: Punjab Service Tribunal has committed or error in enhancing status of convention in note 4 to Rule 4.13 as a statutory rule which it was not-Appeal accepted. [P.56]A,B&C Mr. Gulzar Altinad Qureshi, Advocate, Supreme Court and Mr. Ejaz Ahmad Klian, AOR for Appellant. Mr. Asif Jan, Advocate, Supreme Court and Mr. MA.Qureshi, AOR for Respondent No. 1. Respondents 2 to 4: Exparte. Date of hearing: 29.10.1990. judgment Nasim Hasan Shah, J.—This is an appeal, by leave of this Court, against the judgment & order of the Punjab Service Tribunal dated 19.6.1984 passed in Appeal No. 313/771 of 1984. The relevant facts briefly stated are as follows:- The respondent No.l was selected as Assistant Conservator of Forest by the West Pakistan Public Service Commission and was appointed as such with effect from 7.10.1961. In the year 1973 he was selected by the Government of Nigeria to work in the Forest Department of that Government. The Government of the Punjab vide order dated 10.4.1973 allowed respondent No. 1 to take up assignment of Assistant Conservator of the Forest Grade-I in the Government of Nigeria for a period of four years with effect from the date of his being relieved from duty on various terms and conditions stipulated therein. Condition No. (5) read as follows: - "(5) The lien of a confirmed Government servant will remain in the parent department. He will be given substantive or officiating promotion as the authority competent to order promotion may decide in accordance with rule 10.5 of Civil Services Rules ( Punjab ) Vol. I Part. I." Condition No. 8 is also relevant. It reads - "(8) Government will have the option to ask the official to return to duty on the expiry of four years or to quit service, if he is unwilling to return to the home country." The deputation of respondent No. 1 was later extended for another year with effect from 24.4.1977 on the existing terms and conditions vide order dated 21.4.1977. This period was further extended for a period of five years with effect from 24.4.1978 in relaxation of the deputation policy as a special case vide order dated 243.1979. However while respondent No. 1 was on deputation to the Government of Nigeria M/s Aziz Aslam Khan, respondent No. 2 and Mohammad Shamim, respondent No. 3, Divisional Forest Officers (Grade-18), were promoted as Conservator of Forests (Grade-19) with effect from 18.4.1982. The case of respondent No. 1 for promotion as Conservator of Forests was sent to the Provincial Selection Board but according to the minutes of the Board dated 17.2.1982 duly approved by the Governor on 28.2.1982 he was not approved for such promotion. It was, however, decided that since respondent No. 1 had remained on deputation for the last nine years his case be deferred till he returns to the country and earns a report as recommended by the Provincial Selection Board. Mr. Javed Akhtar Ihsan, respondent No. 4, Divisional Forest Officer (Gradc-18) was promoted as Conservator of Forest (Grade-19) with effect from 31.3.1983 vide order dated 27.4.1983 duly apporved by the Governor on 7.2.1983 the case of the respondent No. 1 as Conservator of Forests was again considered but it was deferred till he resumed duty and earned a report. After respondent No. 1 returned to Pakistan in July 1983, by order dated 17.8.1983, the Governor was pleased to appoint him as Conservator of Forests (Grade-19) on current charge basis. On 1.9.1983, respondent No. 1 filed a representation against the promotion of his juniors and claimed promotion on the strength of terms of deputation. Thereafter, he filed anappeal before the Punjab Service Tribunal. The appeal was directed against the orders dated 18.4.1982 and 27.4.1983 promoting respondents Nos. 2, 3 & 4 to Grade-19 although they were junior to him in Grade-18 only because he was abroad on deputation when they were promoted. The appeal was accepted by the learned Tribunal vide judgment and order dated 19.6.1984. The Service Tribunal in accepting the appeal has held that the appellant was sent on deputation vide order dated 10.4.1974 by the Government of the Punjab and a condition in this connection contained in the said order for the lien of the Government servant (i.e. Condition No.5 of the order), and provided for promotion in accordance with Rule 10.5 of the Civil Services Rules. Rule 10.5 of the Civil Services Rules lays down:- "10.5. (i) A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer. He may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide. In giving promotion such authority shall take into account. (a) the nature of the work performed in foreign service, and (b) the promotion given to juniors in the cadre in whcih the question of promotion arises. (ii) In any individual case the competent authority may grant a Government servant, outside his cadre or cadres but in his own line, such promotion as it considers he would have got had he not been transferred to foreign service." The term 'Foreign Service' is defined in Rule 2.21 of the Civil Services Rules (Punjab) as follows:- "Foreign Service" means service in which a Government servant receives his substantive pay with the sanction of Government (a) from any source other than the revenues of the Governor-General in Council or of Federation (when established) or of a province or the Railway Fund (when established); or (b) from a company working a State Railway." The Service Tribunal further referred to Section 9 of the Punjab Civil Servnats Act 1974 which provides:- "Section 9 - Posting and transfer: Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government: Provided that,.when a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service to his pay shall not be less favourablethan those to which he would have been entitled if he had not been so required to serve". According to the Service Tribunal, the effect of Section 9 is that the rules contained in the Civil Services Rules (Punjab) Vol.1 Part I assure the civil servants posted outside the Province not to be treated less unfavourably than the civil servants serving in the country. Under the Civil Services Rules, in the opinion of the Service Tribunal, respondent No. 1 was entitled to the benefit of the convention usually known as the "next below rules". This is contained in Note 4 to Rule 4.13 and reads as follows:- "Note 4~(i) The following guiding principles are laid down for the working of the convention usually known as the "next below rules" :- (1) A Government servant out of his regular line should not suffer by forfeiting officiating promotion which he would otherwise have received, had he remained in his regular line. (2) The fortuitous officiating promotions of some one junior to a Government servant who is out of the regular line does not rise to a claim under the next below rule. N (3) Before a .claim is established, it is necessary that all the Government servants senior to the Government servant who is out of the regular line should have been given officiating promotion. (4) It is also necessary that the Government servant next below him should have been given promotion, unless in any case the officiating promotion has not been given because of inefficiency, unsuitability or leave": The Provincial Government did not follow the principles contained in the aforesaid Note 4 on the basis of "promotion policy" adopted by the Government of Pakistan and circulated by the Cabinet Secretariat, Establishment Division's D.O. No. 10(3)/81-CP-I(Pt) dated the 31st October, 1982, which has also been adopted by the Punjab Government. This promotion policy was framed because, according to the Establishment Division, "the legal frame-work for promotion and its procedure has been provided in the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The Law and Rules by themselves, are not enough to meet the functional requirements and need to be supplemented by a comprehensive and consistent set of policy guidelines:. The salient features of the policy, inter-alia, provided:- 1. ......................

3. ............................. 4. ............................. 5. ............................. 6. ............................. 7. A civil servant on deputation to a Foreign Government International agency or a Private Organization abroad will be considered for •promotion only on his return to Pakistan. He will be given intimation and asked to return to Pakistan before his case comes up for consideration for promotion in accordance with his seniority position, if he fails to return he will not be considered for promotion. Such an officer will have to earn at least one CR after his return to Pakistan before he is considered for promotion. The clearance/approval already accorded in the past to promote a deputationist would lapse automatically if he fails to return on expiry of the deputation period already approved by the Government: The Selection Board in this case appears to have deferred the case of respondent No. 1 in the light of the guidelines contained in Para 7 above. The Service Tribunal was of the opinion that the right of respondent No. 1 for being considered for promotion would be governed by the principles contained in Note 4 of the Civil Services Rules (Punjab) Vol.1 Part I which could not be modified by any executive instructions such as those contained in the "promotion policy" and it accordingly, accepted the appeal of respondent No. 1 and directed the Provincial Government to consider him for promotion in NPS-19 with effect from the date his next junior Mr. Aziz Aslam Khan was so promoted. This appeal is directed against the aforesaid order of the Service Tribunal. The learned counsel for the parties have been heard. In our opinion, the Service Tribunal fell into a fundamental error in considering that Note 4 contained in rule 4.13 was a statutory rule superior in status to any executive instructions and that non-observance of the provisions of Note 4 was justiciable. The Service Tribunal over-looked the fact that Note 4 of Rule 4.13 itself does not possess the status of Rules but lays down certain general principles for the working of a "convention" commonly referred to as "next below rule". A "convention" it hardly needs saying, is merely a practice that is normally followed and it does not enjoy the status of law. In fact, clause (15) to Fundamental Rule 30 which deals with "Pay of officiating Government servants", explains the purpose and scope of the "next below rule" quite elaborately namely- "(15) The 'next below rule' was a temporary expedient designed to protect Govenment servants from monetary loss and in effect meant the temporary upgrading of posts. It was originally intended that the expediency should not last more than six months in individual cases. Whatever may have been the advantage in the past to leave a man undisturbed in the post held by him, if the exigencies of the public service required it, the need for such consideration does not exist at present. It is the considered opinion of this Ministry that the concession of the 'next below rule' should not be permitted except in very exceptional circumstances and that too for very short periods. It has been decided, therefore, that the cases wherein the benefit of the 'next below rule' has been conceded should be reviewed forthwith. The Ministries/Divisions, etc. should take steps either to obtain the approval of the Ministry of Finance for the continuance of that benefit or to revert the Government servant concerned to his parent office." (M.F.O.M.No. 1196-Reg./47 dated the 7th December, 1947). Thus, the Service Tribunal committed an error in enhancing the status of the "convention" contained in Note 4 to Rule 4.13 of Civil Services Rules to the status of a statutory rule, which it was not. What has now been done is to supplement the guidelines contained in the said Note by further guidelines contained in the "Promotion Policy" of 1982 to deal with the situation that has arisen by frequent assignments secured by the civil servants in foreign countries in the recent past. We may also point out that in rule 10.2 of the Civil Services Rules (Punjab) Vol. I Part. I it is provided that no Government servant may be transferred to "foreign service" against his will. Consequently, in the present case, the respondent No. 1 want out to serve in Nigeria of his own free will and not on account of any order passed by the Government and even if Section 9 of the Punjab Civil Servants Act, 1974, was attracted in his case, this provision only guarantees to the civil servant (when he is required to serve in a post outside his service or cadre) that his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. Accordingly, the guarantee is confined only to the protection of his pay and not the protection of his prospects of promotion. For all these reasons we are of the opinion that the order & judgment of the Service Tribunal is erroneous and is liable to be set-aside. We order accordingly. This appeal, is accordingly, allowed and the judgment & order dated 19.6.1984 of the Service Tribunal set-aside. Parties, however are left to bear their own costs. (MBC) Appeal accepted

PLJ 1991 SC 63 PLJ 1991 SC 63 [Appellate Jurisdiction] Present: dr. nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, JJ SECRETARY TO GOVERNMENT OF PUNJAB, IRRIGATION & POWER DEPARTMENT, LAHORE-Appellant versus ABDUL HAMID ARIF and others-Respondents Civil Appeal No. 726 of 1988, accepted on 16.12.1990 [Against judgment dated 7.1.1985, of Punjab Service Tribunal, Lahore, in Appeal No. 485/475 of 1983] Civil Services Rules- —R.4.13, Note 4—Government servant—Retirement under MLR 114—Re­ instatement on review of--Whether he was rightly declared senior to respondents 2 to 12— uestion of—"Next below rule" incorporated in Note 4 is not a statutory rule but merely a convention and does not enjoy status of law-­ Promotion policy merely upplements existing guidelines contained in Note 4 to Rule 4.13 in light of special situation—Held: Office Memorandum dated 5.7.1978 stands on same footing and deals ith another unusual situation which could not be visualised earlier-Appeal accepted and impugned order set aside. [Pp.66&67]A&B PLJ 1991 SC 51 ref. Mr. Gulzar Ahmad Qureshi, Advocate, Supreme Court, and Rao Muhammad YousafKlian, AOR (absent) for Appellant. Mr. Muhammad Aslam Ch., AOR for Respondent No. 1. Mr. Hamid KJian, Advocate, Supreme Court, and Mr. Muhammad Aslam Ch. , AOR for Respondents 2,5 & 8. Respondent 3,4,6,7 and 9 to 12: Exparte. Date of hearing: 30.10.1990 judgment Nasim Hasan Shah, J.~The facts, which form the background of this appeal, shortly stated are as follows:- Respondent No.l joined service as Assistant Engineer (P.S.E-II) on 1.8.1955 and was promoted as officiating Executive Engineer with effect from 10.7.1961 •^firmed as such with effect from 1.4.1972. While working as xecutive . ' > was retired from service under Martial Law Regulation 114 with effect from 13.3.1972. On his review petition under Martial Law Order 23 he was reinstated in service by the Martial Law Administrator vide notification dated 5.4.1978. The case of respondent No.l for promotion to the rank of Superintending Engineer was considered alongwith others by the Department keeping in view the orders of the Federal Government contained in its memorandum No.3/3/78-RII dated 5.7.1978 as adopted by the Punjab Government vide its letter No.SO(SOII)l-2/78 dated 19.7.1978 and consequently he was promoted as Superintending Engineer with effect from 6.11.1982. In the meanwhile, respondents Nos.2 to 12, who had joined service in the Irrigation Department in WPSE-II on 1.8.1961 and promoted as Executive Engineers on different dates later than the date of promotion of respondent No.l, were promoted to the rank of Superintending Engineers on different dates in 1977 & 1978, i.e. during the period when the respondent No.l was out of service due to retirement under Martial Law Regulation 114. Accordingly, in the seniority list of the Superintending Engineers notification dated 16.7.1983 respondent No.l was shown below to the said respondents. He filed a representation on 30.8.1983 which was rejected by the Secretary, Irrigation and Power Department Government of Punjab vide letter dated 21.4.1984. He then filed an appeal before the Punjab Service Tribunal, Lahore against the seniority position in the seniority list of the Superintending Engineers notified on 16.7.1983. He prayed that he be placed in the seniority list immediately above respondents Nos.2 to 12. He also prayed that he be granted proforma promotion with effect from 5.4.1977. The learned Punjab Service Tribunal vide judgment and order dated 7.1.1985 accepted the appeal of respondent No.l qua respondents Nos.2 to 12 relying on its earlier judgments given in the cases of Syed Kabir Hussain Shah and Bashir Ahmad Kamlana (Appeal Nos.380/755 of 1980 and 166/1280 of 1981 decided on 5.5.1982). The seniority list dated 16.7.1983 was set-aside and it was declared that respondents Nos.2 to 12 were junior to respondent No.l as Superintending Engineers. The learned Tribunal further ordered that the case of respondent No.l for proforma promotion as Superintending Engineer from the date his next junior was so promoted be also taken up by the Department. Hence this appeal, by leave of this Court. We have heard Mr.Gulzar Ahmad Qureshi and Mr.Hamid Khan, learned counsel for respondents Nos.2, 5 & 8 in support of the appeal. Respondent No.l has been heard in person. The basic question falling for determination in this case is whether the office memorandum No.3/3/78-RII dated 5.7.1978 on the question of the issues arising out of the re-instatement of government servants retired under Martial Law Regulation 114 but re-instated under Martial Law Order 23 governs the case of the respondent No.l or the normal seniority rule that the person senior in the lower grade will rank senior in the higher grade irrespective of his date of promotion to the said higher grade unless he was considered along with his juniors at the time of their promotion and was superseded? The office memorandum dated 5th July, 1978 in clause (e) provides tha "The persons re-instated in service may be considered for promotion on the basis of their seniority in the grade held by them in accordance with the normal rules. On promotion to higher grade, they may be allowed pay and seniority from the date of their regular appointment to the posts in the higher grade. Tliere will be no automatic promotion on the principle of 'next below' ni le." (underlining is ours) This office memorandum was issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division but stands adopted by the Punjab Government and was circulated 10 all the authorities concerned vide letter No.SO(SXIl)l-2/78 dated 19lh July, 1978. However, the Service Tribunal relying on its decision rendered by il in the cases of Syed Kabir Hussain Shah and Bashir Ahmad Katnlana held that the provisions of the above mentioned office memorandum could not prevail over rules of seniority formulated by the (iovernor on the principle that an Office Memo or a Letter emanating from an authority howsoever high can have no effect against the provisions of the statutory rules promulgated by the Governor. In the meanwhile, this Court has had the occasion to consider the decisions rendered by the Service Tribunal in the cases of S\ed Kabir Hussain Shah & Bashir Ahmad Kamlana in the case of Government of Pakistan & another Vs. Jnnejo Muhammad Iqbal & others (PLD 1987 S.C. 427) and the view taken by the Service Tribunal in the above mentioned decision has been disapproved. Il was, intcr-alia, observed thai -- "Consequent upon the reinstalcmcnt of a large number of officers who had remained out of service for a number of years the Government was faced with a number of difficult questions. One of these was how to rehabilitate them in their erstwhile services, cadres or grades. It resolved this question by directing that they should be placed in the same position in their erst-while grades which they would have enjoyed had there been no retirement. This decision of the Government is reflected in clause (d) of the memorandum. During the period the reinstated officers were out of service a number of promotions had been made. The officers promoted included those who were junior to the reinstated officers. Thus another question which the Government had to answer was how the reinstated officers should be placed with reference to those who were junior to them but were promoted in their absence. On this question the Government resolved that on promotion to higher grades these officers should be allowed seniority from the date of their regular appointment to a post in the higher grade and that the benefits of the convention known as the 'next below rule' should not be given to them. Clause (e) of the memorandum incorporates the decision of the Government in this regard. Whether this decision was fair or not is a matter upon which we can hardly offer any comments. It was a policy decision and we have no doubt that in formulating its policy the Government must have taken into consideration all the relevant facts including the interests of those civil servants who remained in active service throughout the relevant period." It was also observed in this judgment that — "As already indicated the question of seniority of the respondents has to be decided in the light of the office memorandum of 5.7.1978 and not in accordance with the general principles of seniority as contained in the office memorandum of 31.12.1970. Clause (e) clearly states that on promotion to the higher grade the reinstated civil servants will take seniority from the date of their regular appointment to a post in that grade. That being the position the claim of the respondents that on promotion they were entitled to regain seniority in the next higher grade over those who were junior to them in the lower grade at the time of their retirement must be rejected". But this does not conclude the matter for according to the Service Tribunal since the Office Memorandum of 5th July. 1978 is inconsistent with the statutory rule on the point as it provided for promotion on the principles of "next below rule", the part of the memorandum, which is violative of the relevant statutory rule, cannot be given effect to, as it does not stand on a higher footing than the said statutory Rule. In this connection, however, it needs to be pointed out that this Court has held in several decisions that where an office memorandum is expressed in precise terms, which are capable of being applied with particularity to a great variety of cases and in particular those instructions can be applied with exactness in number of cases, the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant respect and be regarded as supplementing them [see for example Pakistan Vs. Abdul Hamid (PLD 1961 S.C.105)]. In this particular case, the memorandum in question dealt with the cases of a very special category namely of officers who were retired under Martial Law Regulation 114 but subsequently re-instated under MLO 23 and has prescribed the manner in which the re-instated officers will be placed vis-a-vis those officers who were junior to them but were promoted in their absence on account of their severance from service. Furthermore, the Memorandum having been issued by the same authority which also possesses the power of rule-making, though not expressed as a rule but possessing all the characteristics of a rule, its terms shall be construed to amplify and adapt the statutory rule which provides for promotion on the principles of "next below rule" in the cases of these officers. Hence it would not be correct to say that the Office Memorandum is inconsistent with the statutory rule which provides for promotion on the "next below rule". In practical terms, it is really an amplification thereof, providing for the exceptional situation that has arisen by the re-instatement of officers under M.L.O. 23 who were retired many years ago under M.L.O. 114 — a situation which was normally unimaginable and for which no adequate provision existed in the existing rules. We may also point out that the "next below rule" incorporated in Note 4 is not a statutory rule but merely a convention and does not enjoy the status of law. Its true scope and purpose has been explained in some detail in our recently delivered judgment in Government of Punjab Vs. Safdar All Chaudhry & others (Civil Appeal No.527 of 1988 reported as PLJ 1991 S.C 51). We have explained that the status of Note 4 is not higher than the guidelines contained in the "Promotion Policy" of 1982 which were issued to deal with cases of officers securing assignments in foreign countries for considerable periods during which period their less fortunate colleagues serving in Pakistan became eligible for promotion to the next higher grade. In effect, the Promotion Policy merely supplements the existing guidelines contained in Note 4 to Rule 4.13 of the Civil Services Rules in the light of the special situation just mentioned. The Office Memorandum dated 5.7.1978 stands on the same footing and deals with another unusual situation which could not be visualised earlier. The upshot is that this appeal must succeed. It is, accordingly, allowed and the impugned judgment of the Service Tribunal set-aside. Since the case involved a complicated question of Law, the parties are left to bear their own costs. (MBC) Appeal accepted

PLJ 1991 SC 67 [Appellate Jurisdiction] PLJ 1991 SC 67 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN, S. USMAN AU SHAH AND ALI HUSSAIN QAZILBASH, JJ PAKISTAN ENGINEERING COUNCIL and two others-Petitioners/Appellants versus ENGR. I.A. OSMANI and 3 others-Respondents Civil Petition for Leave to Appeal No. 590 of 1990, accepted on 16.12.1990 [From order of Lahore High Court, Rawalpindi Bench, dated 5.11.1990, passed in CM. No. 1572 of 1990 in W.P. No. 985/90] Pakistan Engineering Council Act, 1976 (V of 1976)-- —S.17(2)&(4)~Pakistan Engineering Council-Ordinary voters of-Deregistration of-Intcrim relief granted by High Court for their participation in elections— hallenge to—In Constitution Petition in which interim relief was granted, orders directly under challenge are those of Enrolment Committee, against which, an appeal is rovided under Section 18 of Act, to Executive Committee, but this remedy was not exhausted before recourse to Constitutional jurisdiction-Held: Result of interim rder granted by High Court would be that a person found guilty of infamous professional conduct by his own peers would be allowed to take part in elections which would e unfair, inequitable and improper-Petition converted into appeal and appeal accepted. [P.69]A,B,C&D Ch. Ijaz Ahmad, Deputy Attorney General, Mr. Balal A. Kliawaja, Advocate, Supreme Court, and Ch. AkhtarAli, AOR for Petitioners/Appellants. Mr. M. Akram Klwwaja, Advocate, Supreme Court, and Mr. Ejaz Ahmad Klian, AOR (absent) for respondents. Date of hearing: 16.12.1990 judgment Shatiur Rahman, J.--Pakisian Engineering Council and two of its functionaries, the Chairman and the Registrar, seek leave to appeal against an interim order dated 5.11.1990 passed by the Lahore High Court, Rawalpindi Bench permitting the participation of the respondents who were the writ petitioners in the ensuing elections of the Executive Committees etc., as candidates for various offices as also as ordinary voters notwithstanding the order of their dcrcgistration for infamous professional conduct remaining intact. 2. On numerous complaints, an enquiry was held into the professional conduct of the respondents and as a result thereof, the Enrolment Committee in proceedings under section 17(2) and 17(4) of the Pakistan Engineering Council Act, 1976 (hereinafter referred to as the Act) came to the following conclusion and passed order accordingly:- "We are, therefore, unanimously of the view that the names of respondents at para !(/) & (//) be removed from the Register of the PEC for a period of three years and that of respondents at para !(//'/) & (/v) for a period of one year from the date of pronouncement of this Order". It was appealed against under section 18 of the Act and also a number of Constitution Petitions were filed challenging the action taken. During the pendency of those earlier Constitution Petitions a reconciliation committee was formed which examined the dispute and purported to resolve it. The writ petitioners withdrew their writ petitions challenging the action. On 10th of March, 1990, consequential steps of ending the dcregistralion were taken and an order was passed by the Chairman, Pakistan Engineering Council to that effect. The Enrolment Committee on 12th of March, 1990, refused to accept as legal this Order of the Chairman because within the framework of the Act such an order could not be passed by the Chairman. The matter then was taken up at the 51st meeting of the Executive Committee held on 28th of September, 1990 and the following decision was takcn:- "It was a general concensus of the House that in view of the new facts/documents which have come to the light, the case should be referred back to the Enrolment Committee for consideration". 3. On 13.10.1990, the Constitution Petition from which this Petition for leave to appeal has arisen was filed wherein the writ petitioners had challenged the Orders dated 23.9.1989 and 18.10.1989 both passed by the Enrolment Committee. It was subsequently that they included within its purview the decision of the Enrolment Committee dated 20.10.1990. As Elections were due to take place, they asked for interim relief of avoiding the disqualification and participation in the elections. The first prayer was disallowed but not the second which was allowed. Hence, this Petition. 4. By an order in Chambers on 20.11.1990, the operation of the impugned order was suspended. In the meantime, the matter has come up for hearing in the midst of the election schedule wherein some steps have already been taken. 5. After hearing the learned counsel for the petitioners as well as the respondents we convert this petition into appeal and allow it for the following three reasons:- (j) In the Constitution Petition in which interim relief has been granted, the orders brought directly under challenge are those of the Enrolment Committee. There is a statutory remedy provided under section 18 of the Act of appeal to the Executive Committee. No apparent reason is forthcoming why without exhausting the remedy under the statute recourse was taken to the constitutional jurisdiction. In respect ot professionals whose discipline and conduct is under control of professional bodies, it is additionally important that their conduct should come under review before their own peers before judicial review is undertaken. The respondenls have yet to make out a good case for making an exception of their case. (//') If the order of their disqualification remains intact, as it has been allowed to remain, by an interim order granted by the High Court, the result would be that a person found guilty of infamous professional conduct by his own peers would be allowed to take part in the elections of the " professional body and this would be unfair, inequitable and improper. In 1 order to be consistent that order had to be suspended first and then such I a relief would follow as a matter of course. (Hi) In the matter of entertainment of petitions and grant of relief in equitable I and discretionary jurisdiction, it is necessary not to be guided wholly by the technicalities of the law but also by the substance of the controversy, c We do not find any language cither in the recitals or in the judgments toj find prima-facie that the proceedings against the respondents as finalized I in the first round suffered from mala-fidc of fact. 6. We allow this .appeal, set-aside the impugned interim order and allow the proceedings in the High Court to continue on their own merits unaffected by the tentative observations made by us in this order. No order is made as to costs. (MBC) Appeal allowed

PLJ 1991 SC 69 [Appellate Jurisdiction] PLJ 1991 SC 69 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN, ABDUL qadebr CIIAUDIIRY AND RUSTAM S. SlDHWA, JJ WAJAHAT HUSSAIN and 7 others-Appellants versus PROVINCE OF PUNJAB and 81 others-Respondents Civil Appeals Nos. 240 of 1982 and 292 of 1986, accepted on 20.9.1990 [From judgment dated 19.6.1982 of Punjab Service Tribunal, Lahore , passed in Appeal No. 79/893 of 1981] (i) Resjudicata-- —Government servants—Seniority of—Determination of—Whether principle of rcsjiuiicata is applicable—Question of—Seniority list under challenge before Tribunal in M. haft Arshad's case was a different one—Statutory instrument was not in issue in that case—Besides, two material questions arising in appeal No. 240 of 1982 had not been etrmined in that case-Held: Judgment in M. Shall Arshad's case could not operate as resjudicata. [P-77] A PLJ 1975 Tr.C. (Services) 1 ref. (it) Seniority— —Government servants—Seniority of--Dctemination of—Decision of Service Tribunal merits to be set aside (in Civil Appeal 240/1982) on ground that its finding that ppeal was barred by resjudicata is incorrect—Other appeal also merits to be accepted and judgment of Service Tribunal set asie in so far it applies general instructions with egard to regularisation of ad-hoc appointees without ensuring satisfaction of conditions attaching to such appointments- Held: Seniority list under challenge shall be repared fresh giving batchwise benefits to selectees ignoring retrospective date of regularisation except where Governor has, in individual cases, allowed benefit in exercise of his esiduary powers-Appeals accepted. [Pp.78&79] F (Hi) West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964-- —R.8(l)(a)—Government servants—Seniority of—Determination of—General dispensation in favour of ad-hoc appointees continuing since 1966 was made on 28.2.1970 nd for availing benefit under it, certain conditions had to be satisfied, one of them being that ad-hoc appointment should have continued since at least 1966—Department ever undertook that exercise for benefit of appellants or respondents in these two appeals—Held: Service Tribunal was in error in applying that principle without ensuring atisfaction of conditions prescribed therein. [Pp.77&78]C (iv) West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964-- —R. 8(l)(a)~Government servants—Seniority of—Determination of—There were two violations of 1964 Rules—First was that it was definitely a case of initial appointment but vacancies were not advertised-It was a closed or restricted selection from amongst those who were already serving ad-hoc--This is not permitted by 1964 Rules-Secondly Departmental Selection Committee proceeded to regularise appointments from a date in retrospect as long back as six to nine years-It is an established principle that even executive authority does not extend to make retrospective orders—Held: It was clearly beyond power of Departmental Selection Committee and S.G. Admn. & Inf. Department was wrong in blessing such performance and advising adoption of it for preparation of seniority list. [P.77]B (v) West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964- —R. 8(1) (a)--Government servants-Seniority of-Determination of-Order of Governor transfening work, post and budget of Medical Social Officers to Social Welfare Department did not ake out a case of transfer of Medical Social Officers but a case of merger of two—It cannot be said to be a case of transfer of one to other-Rule of seniority contained in Rule 8(l)(a) is ery specific and provides that "in case of persons appointed by initial recruitment, in accordance with order of merit assigned by Commission; provided that persons selected for posts n an earlier selection shall rank senior to persons selected in a later selection"-Held: Applying this principle, appellant No. 1 and others in Civil Appeal No. 240 of 1982 would be entitled o count seniority from date that Governor ordered whereas other ad-hoc appointees will count their seniority from their regular appointment, i.e. 11.5.1970 or under general dispensation rom 1.1.1970 as the case may be. [P.78]D (vi) West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964-- —R. 8(l)(b)—Government servants—Seniority of—Determination of— Expression "continuous appointment" used in clause (b) of Rule 8(1) means appointment to service n accordance with law and not an ad-hoc appointment- -Held: Considering this expression alongwith view taken that regularisalion could not be from a past date, even under this lause, atching of seniority can take place from date of regularisation and not from any retrospective date of regularisalion. [P.78] E Mr. Zakiuddin Pal, Senior Advocate, Supreme Courl, and fOt. Mushtaa Ahmad, AOR (abscnl) for Appellants (in C.A. 240/1982). Raja Abdul Cliafui; Advocate, Supreme Court, and Rao Muhammad Yousaf Khan, AOR (absent) for Respondents 1 & 2 (in C.A. 240/1982). Mr. Aamcr Raza A. Klian, Senior Advocate, Supreme Courl, and Mr. Hamid Aslam Qureshi, AOR (absent) for other contesting Respondents (in C.A. 240/1982). Mr. Aamer Raza A. Klian, Senior Advocate, Supreme Court, and Mr. Hamid Aslam Qureshi, AOR (absent) for Appellants (in C.A. 292/1986). Raja Abdul Ghafur, Advocate, Supreme Court, and Rao Muhammad Yousaf Klian, AOR (absent) for Respondents 1 & 2 (in C.A. 292/1986). Kh. M. Farooq, Advocate, Supreme Court, and Ch. M. Aslam, AOR (absent) for other contesting Respondents (in C.A. 292/19X6). Date of hearing: 30.4.1990. judgment Sliafiur Rahman, J.—Leave to appeal was granted in these two appeals under Article 212(3) of the Constitution to examine whether the seniority list of the Social Welfare Officers prepared and circulaled as on 1.1.1980 was in accordance with law applicable to the parties. 2. The Summary submitted to the Chief Minister on 10.7.1975 provides the historical background of the controversy in the following words:- "There have been two categories of Social Welfare Officers in the Social Welfare Department i.e. the Medical Social Officers attached with hospitals for medical social work and Social Welfare Officers in the field of Community Development. In 1962, the subject of Social Welfare was allocated to the Provincial Government. Simultaneously, the Medical Social Officers, who had all along worked with Social Welfare Officers in one Department, were separated and placed under the Health Department on account of administrative expediency. After the dismemberment of One Unit, the Medical Social Officers were once again allocated to the Social Welfare Department from the Health Department. Since the transfer of Medical Social Officers from Social Welfare Department to Health Department and back in the Social Welfare Department, was based on the time to time policies of the Government, the Department decided to give the Medical Social Officers benefit of seniority from the date of their continuous service, whether in the Health Department, Central Government or the Provincial Social Welfare Department". 3. There are three factors not clearly pointed out in this Summary and need to be noted at this stage. The jirsl is that formal rules ol" service were framed in 1964 and these arc known as "the West Pakistan Social Welfare Department (Ga/clled Posts) Recruitment Rules, 1964" (hereinafter referred to as the 1964 Rules). The .second fact to be noted is that the controversy has arisen mainly on account of the ad-hoc appointment of Social Welfare Officers, be it on the medical side or on the Social Welfare side, and their regulari/alior from a date in retrospect. The third facl of importance lo the case is that on 12th of August, 1970, the following Order was passed by the Governmcnt:- "The Government of Punjab is pleased lo iransfer the Medical Social Work alongwith the staff (List enclosed) from the Health Department lo ihe Basic Democracies, Social Welfare and Local Government Department w.e.f. the 1st August, 1970. By order of the Governor of Punjab. Dr. Ghulam Bheek, P.H.S.I., Secretary to Govt. of Punjab Health Department. No.S.O.(G)MSP-3-319/70 dated Lahorc,the 12th August, 1990 A copy alongwith a copy of the list of the staff is forwarded to the Government of Punjab, Basic Democracies, Social Welfare and Local Govt. Department lor information and necessary action with reference to his U.O.S.().V1(LG)1(12)/70, dated 29.7.1970. It is requested that an official may please be deputed to collect ihe relevant record from the Health Department. The budget provision relating to this project is being surrendered in consultation with Finance Department. Basic Democracies Department is requested to send its demand for budget to Finance Department for sanctioning out of Contingency item against this surrendered budget provision". The list appended to this order contained the names of appellant No.l at serial No.2; appellant No.2 at serial No.2 in the separate category of Medical Social Workers; appellant No.3 at serial No.17; appellant No.4 at serial No.15, appellant No.5 at serial No.ll; appellant No.6 at serial No.16; appellant No.7 at serial No.18 and appellant No.8 at serial No.19 (in Civil Appeal No.240 of 1982). 4. The first seniority list that was circulated on 20.2.1974 was challenged by as many as eighteen appeals before the Punjab Administrative Tribunal, Lahore and the appeals were disposed of on 8.10.1974. The Tribunal held that the case of the Medical Social Officers was not of initial recruitment under 1964 Rules but one of transfer and the Governor had the residuary power to yet pass an order with regard to their seniority on such transfer. The operative part of the order of the Tribunal was in the following words:- "It is to be observed that we are here dealing with an extraordinary situation. Consequent upon the reconstitution of the social welfare services in 1970, one cadre was abolished and the officers affected thereby were transferred en bloc to another cadre. As already pointed the incidents of service in the two cadres were different. It is not only possible but also very likely that the strict application of clause (a) of paragraph (2) of rule 8 may cause hardship to some officers. The Government has the power to relax the said sub rule to ameliorate the hardship this Tribunal cannot do. Apart from that to sort out the anamolies which may arise from this extra-ordinary situation and in order to be just to both categories of officers the Government may well prefer to frame a separate set of rules for determining their inter se seniority".This judgment of the Tribunal is reported as M.Shafi Arshad V. Director, Social Welfare, etc. [PLJ 1975 Tr.C. (Services) 1]. 5. In consequence, a Summary was presented to the Chief Minsiter whereby the regular appointment of the Medical Social Officers was fixed under this statutory power as 20.11.1968. The order passed on the 21st of July, 1975 was as hereunder in the case of each appellant and others affected:- "No.S.O.II(SW)l-4-75. Whereas the Governor of the Punjab is satisfied that the application of rule 8(0) of West Pakistan Social Welfare (Gazetted Posts) Recruitment Rules 1964 will cause hardship in his case, therefore it is decided that seniority of Mr.Wajahat Hussain vis-a-vis other Social Welfare Officers will be fixed from 20.11.1968". 6. Another development that took place was that the Departmental Selection Committee on 11.5.1970 considered the regularization of the services of the ad-hoc Social Welfare Officers and fixed the date of regularization of their appointment by reference to their first ad-hoc, appointment going in retrospect to the years 1961 to 1968 1. The third event having a bearing on the case is that on 28.2.1970 an extraordinary dispensation came in the field whereby all ad-hoc employees on satisfaction of certain conditions were regularized and were entitled to count their seniority in service, grade, cadre or post to which they were regularly appointed from 1st of January, 1970. The extraordinary nature of dispensation would appear from the following opening words of the Notification dated 28.2.1970:- "In pursuance of the Provisions of the Martial Law Proclamation of 25th March, 1969 and with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to direct that notwithstanding anything to the contrary contained in any rules relating to the method of recruitment or the age for appointment to any service or post under the rule making authority of the Governor of West Pakistan, every person appointed on ad-hoc basis to any service or post under the rule making authority of the Governor of West Pakistan whose appointment to such service or post has not been regularised for any reason shall, with effect from the date of this notification be deemed to have been regularly appointed to such service or post provided that...." 8. It is to be further noted in this context that neither in the case of the appellants nor that of the respondents, regularization had taken place by reference to this extraordinary dispensation by scrutiny and satisfaction of the conditions prescribed therein. 9. In this background of events, a revised seniority list of 1.1.1981 came out and the principles governing this revised seniority list are found in the Services, General Administration and Information Department advice to the following effect:- "Services, General Administration and Information Department would advise as under:- (i) The seniority of 85 Social Welfare Officers appointed on ad-hoc basis between 1963 to 1969 and regularised on llth May, 1970 may be fixed w.e.f. the date of such appointment as recommended by the Selection Board for Attached Departments. (if) The seniority of 33 Social Welfare Officers regularly appointed on the recommendations of the Selection Board for Attached Departments between 17th March, 1969 to llth February, 1970 may be fixed with reference to the dates of their regular appointments. (Hi) The seniority of Medical Social Welfare Officers transferred from Health Department to the Social Welfare Department on 1st August, 1970 may be fixed as already approved by the then Chief Minister, with reference to the dates of their regular appointment as Medical Social Welfare Officers in Health Department (His UO No.SGV(II)-SW-l-4/75 dated 28.10.1976 concerning representation of Medical Social Officers for seniority refers)". This seniority list became the subject matter of numerous challenges by those affected. The decision of the Tribunal was not uniform and consistent in all of them. For example, when Wajahat Hussain and others (appellants in CA.No.240 of 1982) challenged this seniority list whereby benefit of continuous ad-hoc appointment was given to the Social Welfare Officers as against them, the Tribunal held that their claim was barred on the principle of res-judicata, the earlier decision in M. Shaft Arshad's case barring it. 10. When Mr.Zahid Aziz Khan, respondent in Civil Appeal No.292 of 1986 challenged this seniority list, the Tribunal gave the following decision on each of the legal point raised before it:- (j) "The question whether earlier date of regularisation was for the purpose of seniority or not, came up for decision before this Tribunal in the case of two other Social Welfare Officers. One is case No:39-32 of 1974, Rifaat Mahmood Vs. Director Social Welfare Department. In para 6 of that judgment the Tribunal noticed that by regularising Social Welfare Officers from earlier date, the only intention was that "the Government did not want that these officers should lose the benefit of their service rendered in ad-hoc capacity in the calculation of pension". It was further noted by the Tribunal that "the Departmental Representative took a stand before this Tribunal that it was never in the contemplation of the Directorate to tamper with the order of merit fixed by the Commission". It was accordingly held that: "In view of this statement the contention of the appellant that he was entitled to a higher position in the seniority list on account of his longer adhoc service loses all substance." (c) In case of A.K.Farooqi Vs. Director, Social Welfare - 1975, PLC (CST) 85 (2) this Tribunal again confirmed the view taken in Rifaat Mahmood's case and refused to give any benefit of seniority on account of earlier date of regularisation". (h) "..as held by us in the case of Muhammad Ayub Rizvi etc, notification dated 28.2.1970, promulgated by the former Governor of West Pakistan had provided for a special policy and has the force of rules. The opening phrase of the said notification "Notwithstanding anything to the contrary contained in any Rules" clearly manifests the intention of the rule-making authority that all the normal service Rules stand superseded by this notification. Under this notification, all ad-hoc appointments made since 1.1.1966 stood regularized by the force of this notification. Further orders of regularization which were issued by departmental authorities were just a formality. As this notification fixed 1.1.1970, as the date of fixation of seniority of such civil servants in the services/cadre, the contesting respondents are not entitled to a date earlier than that date". (Hi) "Even if the case of Respondents is examined under the Service Rules of 1964, the position is no better under Rule 8(1) (a) of these rules which is the appropriate rule for the determination of seniority of the parties, it is the earlier and later selection i.e. date of selection, which is material for the purpose. Date of selection always means the date when a particular civil servant is selected by the public service Commission or other appropriate Selection Board. This point has been clarified by us in the aforesaid reported case of Hadi Raza Khan Vs. Director Social Welfare Punjab and others as follows:- "Thus he can be said to have been selected for the service only when the Public Service Commission included his name among its nominees." We are further fortified in this view by the decision of the former Punjab Civil Services (Appellate) Tribunal in 1973 PLC (CAT) 67 at page 73. The relevant portion reads as follows:- "The material consideration being selection for appointment to the Service in an earlier selection there can be no doubt on the peculiar facts of this case that the appellant was selected in an earlier selection the two Respondents were selected in a later selection and thus the appellant is entitled to rank senior to these two respondents. There is no escape from the proposition that 23 were selected in the first selection by the Public Service Commission and the appellant was one of them, while the two respondents were not included in that list. Their names were recommended for appointment to the service in the letter of Public Service Commission dated 5-10-67, when the appellant had been selected and named in their letter dated 28-12-66."." 11. At the hearing another judgment of the Punjab Service Tribunal. Lahore passed in Case No.541/1560 of 1981 (Mrs. Talat Musharaf and 17 others versus Director General Social Welfare Punjab Lahore and 2 others) was placed before the Court which was delivered by the Tribunal on 15-1-1983. In this judgment the following observation was made by the Tribunal:- "As both the judgments of Wajahat Hussain & others and Zahid Aziz Khan are now before the Supreme Court of Pakistan, we will leave the matter to the said Court, the highest court of the realm to decide the issue involving seniority and would maintain our earlier view taken in Shafi Arshad as well as Wajahat Hussain and others cases." 12. After hearing the learned counsel for the parties we find that the following questions arise in the two appeals:- (/) Whether the decision in the case of M. Shaft Arshad operated as resjudicata to bar the appeal of Wajahat Hussain and others (the appellants in Civil Appeal No. 240 of 1982) before the Tribunal? (ii) Whether the Departmental Selection Committee could regularise the appointment of the ad-hoc appointees of the Social Welfare Department from the dates of their ad-hoc appointment i.e., retrospectively? (Hi) Whether the general dispensation in favour of ad-hoc appointees continuing since 1966 was of avail to the affected parties? (iv) Whether the seniority list of the Medical Social Officers and of Social Welfare Officers had to be determined by dates of their regular appointment batchwise or otherwise? (v) Whether the expression "continuous appointment" used in Rule 8 of 1964 Rules could mean and cover ad-hoc appointment as well? 13. The judgment of the Administrative Tribunal given in M. Shafi Arshad's case could not operate as res-judicata between the parties because the seniority list under challenge before the Tribunal was a different one. Apart from that, the Governor's order pursuant to the decision in M. Shafi Arshad's case had taken over the field as from 21st July, 1975 and the Governor had allowed Wajahat Hussain and others to claim seniority from 20-11-1968. This statutory instrument was not in issue in the decision in M. Shaft Arshad's case. Besides, the two material questions arising in the appeal filed by Wajahat Hussain and others had not been determined or decided at all in M. Shafi Arshad's case. The first was whether the case of the the Social Welfare Officers was itself not of initial appointment irrespective of the fact whether the case of Medical Social Officers was of transfer or of initial recruitment. Having not expressly determined that question, if it was a case of initial appointment then the further question had to be determined whether their appointment could be regularised by the Departmental Selection Committee from a date in retrospect. Apart from that whether in the rules of seniority, continuous appointment could mean an appo ntment not made in accordance with the rules i.e ad-hoc appointment. As these questions were left undetermined, that judgment could not operate as res-judicata. 14. From the proceedings of the Departmental Selection Committee dated llth of May, 1970, two violations of the 1964 Rules, the service rules applicable to the case, stand out. In the first place, it was definitely a case of initial appointment of the Social Welfare Officers but the vacancies were not advertised and a selection made out of the applicants against the advertisement and those serving as ad-hoc as Social Welfare Officers. It was a closed or restricted selection from amongst those who were already serving ad-hoc. This is not permitted by the 1964 Rules. Secondly, the Departmental Selection Committee proceeded to regularize the appointment from a date in retrospect as long back as six to nine years. It is an established principle requiring not much argument that even the executive authority does not extend to make the retrospective orders. The Departmental Selection Committee enjoyed no better position. The 1964 Rules also do not envisage such regularisation from a retrospective date. It was clearly beyond the power of the Departmental Selection Committee and the Services, General Administration & Information Department was wrong in blessing such a performance of the Departmental Selection Committee and advising the adoption of it for preparation of the seniority list. 15. The general dispensation in favour of ad-hoc appointees continuing since 1966 was made on 28-2-1970 and for availing the benefit under it, certain conditions had to be satisfied one of them being that the ad-hoc appointment should have continued since at least 1966. The Department never undertook that exercise for the benefit of the appellants or the respondents in these two appeals. The Service Tribunal was, therefore, in error in applying that principle without ensuring the satisfaction of the conditions prescribed therein. The result is that, as pointed out by the appellants in Civil Appeal No.292/1986, six of them did not satisfy the requirement being ad-hoc appointees in 1966. They could not benefit from that notification. It is for the Department to undertake the exercise in the light of that notification and confer benefits on those who deserved it if they stand to gain in the matter of seniority. Without that exercise having been undertaken by the Department, the Tribunal could not have attempted it without ensuring the satisfaction of the conditions prescribed therein. 16. The order of the Governor transferring the work, the post, the budget of the Medical Social Officers to the Social Welfare Department did not make out a case of transfer of Medical Social Officers but a case of merger of the two, alongwith the work, the budget and the posts. It cannot be said to be a case of transfer of one to the other. The rules on the subject clearly provide for either initial recruitment or by promotion or by transfer. In the case of Social Welfare Officers it was definitely case of an initial appointment. Even the Medical Social Officers were initially ad-hoc appointees and their appointments had to be regularised. The rule of seniority contained in Rule 8(l)(a) is very specific and provides that "in the case of person appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that persons selected for posts in an earlier selection shall rank senior to the persons selected in a later selection". Applying this principle, Wajahat Hussain and others for whom a special dispensation has come, would be entitled to count seniority from the date that the Governor ordered. The other ad-hoc appointees will count their seniority from their regular appointment which took place on 11.5.1970 or under the general dispensation from 1-1-1970 as the case may be. The batchwise seniority following the selection shall on the strength of this Rule be observed and kept intact. 17. The expression "continuous appointment" used in clause (b) of Rule 8(1) of 1964 Rules means appointment to the service in accordance with law and not an ad-hoc appointment. Considering this expression alongwith the view taken that the regularisation could not be from a past date, even under this clause the matching of the seniority can take place from the date of regularisation and not from any retrospective date of regularisation. 18. r. Aamar Raza A. Khan, Advocate, the learned counsel for the appellants in Civil Appeal No.292 of 1986 and contesting respondents in Civil Appeal No.240 of 1982 contended that at one stage when recruitment was being made by advertising the vacancies and the ad-hoc appointees wanted to make applications, they were informed by a circular letter dated 6-8-1968 that the Social Welfare Officers who were already working on ad-hoc basis need not apply for the posts which had been then recently advertised. This has been taken to be a sort of indication or promise to them that their regularisation would be from a past date. No such promise is contained in those letters. What has been suggested is that they need not apply implying thereby that they would not be affected by the appointments so made. Ordinarily, the ad-hoc mployees have to yield place to the selectees but in this case an exception was made. Nothing more was assured or guaranteed to them. 19. In view of the above discussion we find that the decision of the Service Tribunal in Civil Appeal No.240/1982 merits to be set aside on the ground that its finding that the appeal was barred by res-judicata is incorrect. The other appeal (Civil Appeal No.292/86) also merits to be accepted and the judgment of the Service Tribunal set aside in so far as it applies the general instructions with regard to regularisation of the ad-hoc appointees without ensuring the satisfaction of the conditions attaching to such appointment. The result of the acceptance of the two appeals and setting aside of the judgments of the Service Tribunal would be that the seniority list under challenge shall be prepared afresh giving the batchwise benefits to the selectees ignoring the retrospective date of regularisation except where the Governor has in individual cases allowed the benefit in exercise of his residuary powers. It shall be open to the Department while preparing the list to allow the benefit of the general instructions to such of the ad-hoc appointees who satisfy the conditions prescribed therein for getting benefit of seniority from 1-1-1970. No order is made as to costs. (MBC) Both appeals accepted.

PLJ 1991 SC 79 [Appellte Jurisdiction] PLJ 1991 SC 79 [Appellte Jurisdiction] Present: muhammad afzal ZULLAH, CJ AND A.S. salam, J. PUNJAB PROVINCE and another-Petitioners versus Syed INTIZAR HUSSAIN-Respondent Civil Petition No.505 of 1989, dismissed on 18.6.1990. [On appeal from judgment dated 19.2.1989, of Lahore High Court, in Civil Revision No.275 of 1989.] Arbitration- —Award-Making rule of Court of-Objections to-Rejection of objections- Acceptance of appeal against-Challenge to-Question whether civil revision was not competent in iew of judgment of Supreme Court in M/s Combined Enterpises' case might require further examination in a proper case-Appellate Court did not commit any error which ould be treated as substantial, so as to justify interference in revisional jurisdiction of High Court—Held: While being unable to uphold revisional order passed by High Court n so far as question of competency of revision is concerned, there is no justification to grant leave to appeal in facts and circumstances of case as points involved are ypertechnical-Leave refused. [P.80]A ,B &C PLD 1988 SC 39 ref. Mr. Gulzar Ahmad Qureshi, Advocate, Supreme Court and Rao Muhammad YusufKJian, AOR for Petitioner. Respondent: Not represented. Date of hearing: 18.6.1990. order Muhammad Afzal Zullah, CJ.--Leave to appeal has been sought against the dismissal by the High Court of petitioner/defendants' Civil Revision. It has arisen out of arbitration proceedings wherein the respondent's application relating to an award being made rule of the Court, was dismissed. The respondent's appeal was allowed but petitioners' Civil Revision challenging the appellate order was dismissed on the ground that it was not competent. Learned counsel for the petitioners has read the relevant parts from the judgment of this Court in the case of Messrs Combined Enterprises . WAPDA Lahore (PLD 1988 Supreme Court 39) which was relied upon by the High Court for the finding that the Civil Revision was not competent. This question might require further examination in a proper case as to whether the assumption by the High Court that Civil Revision was not competent in all such cases is correct. Because the possibility cannot be excluded that the said judgment of this Court is not to the effect assumed by the High Court in this case. Be that as it may, the fact remains that the appellate Court examined in detail and rejected the petitioners' objections which were based on hypertechnical argumetns. For example, an award admittedly signed by the arbitrator was sought to be kept out of consideration simply because it was not the original typed written paper but the signatures were on the award which was carbon copy of the original which had been lost. If the carbon copy would not have been signed by the arbitrator the position might have been different. In any case the appellate Court did not commit any error which could be treated as substantial, so as to justify interference in the revisional jurisdiction of the High Court. Similar question of use of stamp papers also was adequately dealt with in the appellate judgment. We might have paid more attention to these technical matters if there would have been any plea on the real merits or miscarriage of justice. Accordingly, while being unable to uphold the revisional order passed by the High Court in so far as the question of the competency of the revision in the High Court is concerned we, in the facts and circumstances of this case, do not find any justification to grant leave to appeal. If the case is remanded to the High Court, the appellate judgment would be upheld. Thus, such an exercise is no more necessary when the points involved are hyper-technical. Leave to appeal, therefore, is refused. (MBC) Petition dismissed.

PLJ 1991 SC 81 [Appellate Jurisdiction] PLJ 1991 SC 81 [Appellate Jurisdiction] Present: shafiur rahman, abdul qadeer chaudhry and rustam s.sidhwa, JJ Ch. abdul GHAFOOR-Appellant versus collector, central excise and land customs, lahore and others-Respondents Civil Appeals Nos. 130,131 and 132 of 1984, decided on 20.9.1990 [From judgment and order of Federal Service Tribunal, dated 9.1.1983, passed in Service Appeals Nos. 110(R)/1981, 197(R)/1980 and 87(R)/1981 respectively]. Seniority-- —Government servants-Seniority of-Determination of-St o r ity rights of civil servants, prior to enactment of Civil Servants Act, i9/3, liad to be determined by conditions then prevailing and not by provisions of Rules or Acts subsequently made-During period from 1957 to July 1959, examinations held for post of Deputy Superintendent, Central Excise and Land Customs, were not qualifying examinations but were examinations to prepare a Select List of candidates awaiting promotion—Held: It will not be correct to say that. seniority~cMm~fitness was always basis for promotion or that selection was criteria that prevailed and not a competitive examination and a Select List— C.A. 130/1984 abated and CA. 131 and 132 of 1984 dismissed. [Pp.84&85]A,B,C&D PLD 1972 SC 127 and 1982 SCMR 888 distinguished. Mr. Zaheer Ahmad Klian, Advocate, Supreme Court and Mr. Ejaz Ahmad Klian, AOR (absent) for Appellant (in CA. 130 and 131/84). Mr. Muhammad Afzal Siddiqui, Advocate, Supreme Court and Mr. Manzoor Ilahi, AOR for Appellant (in C.A. 132/84). Ch. AkhtarAli, AOR for Respondent (in all appeals). Date of hearing: 9.5.1990. judgment Shafiur Rahman, J.--Leave to appeal was granted under Article 212(3) of the Constitution to examine the following questions of law arising in the above three appeals, out of which one appeal (CA.No.130/1984) on account of appellant's death has since abated:-"(0 Whether the Tribunal could in 1980 treat seniority to be a vested right by reference to a rule of seniority of earlier date and not of the date when it was claimed in the face of Section 8 of the Civil Servants Act which expressly says that seniority shall not be a vested right of a civil servant? (/;) Whether the Service Tribunal could justifiably hold a qualifying examination for promotion to be a competitive examination and determine the rights of Civil Servants qualifying at the examination as if they qualified in competition and not on the principle of eligibility alone? (in) Whether Muhammad Anis Khan respondent No.l was not himself affected adversely by the accepting once of the principle by the Federal Service Tribunal that those who passed the examination before the policy letter of the Board of Revenue dated 10.7.1959 could alone qualify for the benefit when he qualified after 10.7.1959? (/v) Whether there has been any departure from the principle of selection and seniority-cw/72 -fitness at any stage so as to create any right such as may be enforcible under the law". 2. The dispute in these appeals relates to seniority in the grade of Deputy Superintendent, Central Excise and Land Customs. In 1976, a provisional seniority list of the Officers of this grade appeared which was challenged before the Service Tribunal but was adjudged to be provisional and hence the appeals before the Tribunal pre-mature. Subsequently, two seniority lists appeared; one on 13.11.1980, also called 'provisional and the other on 15.1.1981 which was expressed to be 'final'. This seniority list aggrieved the respondent in C.A.131/84, Muhammad Anis Khan, and Qazi Waheed-ud-Din appellant in C.A.No.132/84. The appeal of Muhammad Anis Khan was accepted by the Tribunal whereas that of Qazi Waheed-ud-Din dismissed. 3. The controversy which has now come up before this Court lies in a narrow compass. It is with regard to the nature of the departmental examinations prescribed and conducted from February, 1957 to 10th of July, 1959 and the rights of those who qualified in examinations held during that period. A more extensive reproduction of the various letters having bearing on the subject is to be found in the Tribunal's Order under appeal, but the relevant portions of the same are being reproduced in this order to make the background intelligible and clear. By a letter dated 20th of April,1956, the Central Board of Revenue took a decision as hereunder:- "The Board for some time had under consideration of giving a suitable status to the Deputy Superintendent of Central Excise and Land Customs in the Central Excise Collectorates and it has been decided that this post should be re-classified as Class-II non-gazetted with effect from the date of these orders". On 5th of December,1956, the Central Board of Revenue issued a policy decision as hereunden- "The Board had decided that henceforth the Inspector of Central Excise & Land Customs will be required to qualify in a promotion examination for selection as Deputy Superintendent. The syllabus and Rules for the Promotion Examination are being forwarded by the Board separately. Promotion to the grade of Deputy Superintendents will be made henceforth in the light of decision mentioned above". On 21st February,1957, the details of the Promotion Examination were circulated: In it also it was provided (hat "only those Inspectors who qualify at thisExamination will be eligible for selection as Deputy Superintendents in the Department". A fact noted by the Tribunal and also spelt out from the record of an earlier decision of this Court in the Central Board of Revenue, Government of Pakistan Vs. Mr^sadAhmad KJian (PLD 1960 S.C.81) was that during the period under consideration i.e., February 1957 to July, 1959, the Departmental Selection Board stood abolished. The Inspectors who qualified at the examinations were picked up in order of seniority assigned in the examination as and when the vacancies of Deputy Superintendents of Central Excise and Land Customs came into existence. There was no element of selection apart from the examination result, intervening during this period. In the Supreme Court judgment this has been expressed in the following words:- "In the beginning of 1957 the Departmental Promotion Committees were abolished and selection for promotion to the newly-created post of Deputy Superintendent in Class-II was based solely on the result of competitive examination held by the Department which was open to all Inspectors of Central Excise and Land Customs". The Service Tribunal has also proceeded on this assumption of fact. It is correct, previous to this period and subsequent to this period there happened to be a Selection Board which exercised powers with regard to make a selection from amongst those who had qualified at the examination. When the Departmental Selection Boards/Committees were revived after July, 1959, they treated those Inspectors who-had qualified at the examination held between February,1957 and July,1959, and had not been promoted to the rank of Deputy Superintendents in the same manner as were treated those who qualified after July,1959. This controversy which was brought before the Tribunal namely, whether those who qualified during this period had to be treated in the same manner as those who qualified subsequently or in a manner different. 4. he Tribunal has held that those who qualified during the period February, 1957 to July, 1959 an examination had distinction inasmuch as they had a vested right to be promoted as Deputy Superintendents as and when the vacancy came into existence without any intervention of further selection while those previously qualified or subsequently qualified had to undergo a process of selection and qualification at the competitive examination was not sufficient by itself to entitle them to get promoted to the rank of Deputy Superintendent. 5. The learned counsel representing the appellant has relied on two decisions of this court on the cases of seniority of the same Department relatable to most the same period to contend that no vested right can be claimed or could be granted. These decisions are Muhammad Suleman Klian Vs. Pakistan through he Secretary, Ministry of Finance (Revenue Division), Government of Pakistan & 10 others (PLD 1972 SCMR 127) (?) and S^bdul Ghaffar Wasli Vs. Tlie Collector of Central Excises and Land Customs and others (1982 SCMR 888). 6. The various methods by which recruitment or promotion to higher posts can take place may be any one of the following: - (/) Seniority alone; (//) Seniority-cwm-fitness; (hi) Selection alone; (/v) Merit at a competitive examination; and (v) Selectees' list of persons prepared under any of the above Rules. Seniority alone had never been the criteria in the Department for promoting Inspectors to the rank of Deputy Superintendents. It was mostly seniority-cum-fitness; seniority being a matter of record and fitness being adjudged by reference to their record of service, interview or other test or examination, all included. Pure selection was also not the basis ever for promotion to the rank of the Deputy Superintendent of Customs and Excise. A competitive examination has the distinctive feature of having no fixed marks for appointment to the higher grade. Those securing top positions are appointed against the existing vacancies and the left over have to take the subsequent competitive examinations. Passing at one competitive examination does not preclude or create any right in respect of subsequent competitive examinations. In that sense, the competitive examination prescribed during the period February,1957 to July,1959 was not really competitive. It was competitive in the sense that those qualifying at the examination were brought on a Select List of Inspectors awaiting appointment as Deputy Superintendents as and when the vacancies occurred. This List had to be exhausted before the successful candidates of any subsequent similar examination could come up for consideration for promotion. It is this last system of Select List prepared on the basis of a prescribed competitive examination that the promotions were being made out of the List, without having further selection made out of it during the period February,1957 to July,1959. Once a person was brought on the Select List he was not required to undergo any further Selection . nor was he tq be superseded by any subsequent year Selectee. In that sense a. vested right had accrued to a person who had been brought on the Select List against those qualifying examination competitive or otherwise subsequently. 6. As regards the period preceding and the period subsequent to the period in dispute, it was not a Select List which was prepared but a List of persons eligible for consideration for promotion and a process of selection had further to intervene as between those eligible after clearing the examination and this distinguishing feature made their claim not at all a vested one but dependent on the process of selection which had to be undergone. 7. As regards the first question on which leave to appeal has been granted, section 8 of the Civil Servants Act provides that seniority shall not be a vested right. Nevertheless in recognising the rights of seniority before and after the enforcement of the Civil Servants Act, instructions of the Establishment Division (Serial No. 155, page 221/222 ESTACODE, 1989 Edition) provide, as hereunder:- "In the case of groups where the cadre has not been amalgamated with any other cadre, the seniority in different grades as determined under the previous rules before the promulgation of the Civil Servants Ordinance, 1973 (15.8.1973) shall not be disturbed. However, seniority of persons promoted to higher grades after 15.8.1973 shall be determined strictly in accordance with the provisions of sub-section (4) of section 8 of the Civil Servants Act,1973". I 8. In view of this circular/instruction of the Government, the seniority rights lof the Civil Servants prior to the enactment of the Civil Servants Act had to bedetermined by the conditions then prevailing and not by the provisions of the Rules or the Acts subsequently made. On the facts narrated it is clear that the examinations held from 1957 to July,1959 were competitive whereby those passing that examination were placed on a Select List in order of seniority earned in the examination and got promoted in order of seniority as and when vacancy occurred, without intervention of any further selection, qualification or condition. In view of that situation prevailing during that short period, it was not a qualifying examination but an examination to prepare a Select List of candidates awaiting promotion. It was prior to that period and subsequent to that period, that the examinations were held to be qualifying examinations, making the persons passing those examinations only eligible, awaiting further selection by the Departmental Selection Committee or Interview Board, for promotion. The rights under the two systems were different and its distinguishing features are there which actually distinguish the two cases earlier decided by this Court where examinations were taken to be the qualifying examinations and not competitive with a view to prepare a Select List. 9. As regards the date and year when Muhammad Anis Khan, respondent o.l in Civil Appeal No.131/84 qualified, the record presented before this Court is not very consistent. For example, in one of the Lists presented before us he is shown to have passed the competitive examination on 31.5.1960. In another List his year of qualifying in the examination is shown as 1959. This being a factual question, would require the attention of the Central Board of Revenue and the result will follow in the light of the judgment given by the Service Tribunal with regard to the period covered by the decision. 10. An impression has been created that as soon as this system of competitive examination and Select List was adopted, a departure had to be made therefrom he light of the decision of the High Court mAsad Ahmad KJtan's case, when the Training Section of the Central Board of Revenue made slight amendments in the Rules. No doubt such an impression is created by the amendments which were introduced but the fact remains that there was no Selection Board for making promotions from February,1957 to July,1959 and the merit list prepared at the examination without any further scrutiny was adopted as the basis for making promotion to that extent. Therefore, it will not be correct to say that the seniority-cum-fitness was always the basis for promotion or that Selection was the criteria that prevailed and not a ompetitive examination and a Select List. 11. In view of these findings, the two appeals C.A.No.131/1984 and 132/1984 are liable to be dismissed. In the case of Qazi Waheed-ud-Din, (C A. 132/1984), we find that his qualification year is 1960 and it was a period subsequent to the Select List system. Therefore, he would not be entitled to the benefit as has been or could be claimed hose who passed the competitive examination held between February,1957 and July,1959. 12. The result of the above discussion is that the appeal of ChAbdul Ghafoor (CA.No.130/84) stands abated. The other appeals (Civil Appeals No.131/1984 and 132/1984) are dismissed with no order as to costs. (MBC) Appeals dismissed.

PLJ 1991 SC 86 [Appellate Jurisdiction] PLJ 1991 SC 86 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J Mirza ghulam hussain and ANOTHER-Appellants versus CH. IQBAL AHMAD --Respondent Civil Appeal No. 395 of 1987, dismissed on 7.10.1990. [On appeal from Order dated 28.10.1987, of Lahore High Court, Rawalpindi Bench, in C.R. 455/D of 1987] (i) Adverse Possession- —Adverse possession—Claim of—Determination of—Contention that even if claim of appellants based on agreement to sell is false and disproved, they can legitimately press their plea of adverse possession-Both agreement and/or adverse possession were pleaded by appellants at much later stage and their claim regarding ither of them can . be considered as baseless-When possession was initially permissive, it can be converted into adverse possession only through an aggressive act by hich there should be disclaimer of owner's title of such a character and so open that real owner must be presumed to know that possession adverse to his title has been stablished—Held: Where possession can be referred to a lawful title, it will not be considered to be adverse. [Pp.89,90&91]A,B&C PLD 1955 FC 31 and Limitation Act by Shaukat Mahmood (2nd Revised & Enlarged Edition of 1984) at page 730 ref. (ii) Adverse Possession— —Adverse possession-Claim of-Determination of-The principle that if origin of possession is based on legality, no adverse possession begins until denial to knowledge of owner, seems to be that unless owner has notice that person in possession has developed a definite intention to challenge his ownership and set up an immoral illegal possession like that of trespasser, it would not be open and hostile possession-Held: In cases where a defendant bases his claim on lawful title, say through purchase, he represents himself as a gentleman law-abiding person and claiming no hostility against owner, and he cannot be treated to have set up any claim as adverse possession. [Pp.91&92]D&E AIR 1914 Privy Council 243, 69 English Reports 701,1912 A.C. 230 and AIR 1925 Madras 1020 discussed. (iii) Adverse Possession— —Adverse possession-Claim of-Determination of~Whether pleas of lawful title and adverse possession can be taken together-Question of-Appellants claimed lawful title through purchase-It is only in alternative that an argument on basis of adverse possession is being pressed—This is only a fake and concealed hostility to owner and cannot be treated as open—There is neither hostility nor openness nor adverseness because appellants have always aimed to have become owner through purchase—Held: If appellants keep a concealed intention of converting their lawful pursuit to a treacherous pursuit at a certain stage when requisite period is passed, that cannot be treated as adverse possession—Held further: Sources of lawful title and adverse possession are contradictory pleas and cannot stand together—Appeal dismissed. [Pp.92&93]F,G&H PLD 1990 SC 1049, 1988 SCMR 1765, 1980 SCMR 364, PLD 1955 F.C. 31, AIR 1925 Madras 1020, AIR 1914 P.C. 243, AIR 1928 Oudh 449, 1912 AC 230, 69 English Reports 701, ILR 37 Allah. 203, 35 Cal. 961, AIR 1926 Oudh 144 and AIR 1926 Oudh 258 Con & rel. (iv) Practice and Procedure- Ejectment cases-Tenants claiming title as transferees from real owner or adverse possession—Forgeries committed by tenants—Notice of—Considerable cases have started pouring in herein a clear impression is gained that a tenant when feeling that he would fail in saving his tenancy, starts claiming himself as lawful alienee/transferee from real owner and when a onsiderable time passes, starts also pressing plea of adverse possession-This immoral element coming into litigation should be checked and blocked-Held: In future, at least when an ppellate court is giving finding of forgery in a case, person found guilty thereof should also be put on notice for prosecution with permission of court. [Pp.94&95]J Mr. Bashir Ahmad Ansari, Advocate, Supreme Court and Ch. Akhtar All, AOR for Appellants. Hafiz S~A. Rahman, Advocate, Supreme Court and Ch. Ghulam Dastgir, AOR for Respondent. Date of hearing: 7.10.1990. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against the judgment dated 28.10.1987 of the Lahore High Court; whereby the appellants'/defendants' revision in a suit for possession filed by the respondent's side which had been decreed throughout, was dismissed. While granting leave to appeal the following facts and circumstances were noted:- Ch-Ali Muhammad Sindhu, predecessor-in-interest of the respondent filed a petition for eviction of the appellants before a Rent Controller on the claim that the property had been transferred to him under the Settlement Law. It was dismissed on the ground of lack of statutory notice served on the appellants. The respondent/landlord then filed a civil suit which was decreed by the trial Court against the appellants. Their appeal was dismissed. Their revision having also been dismissed, leave to appeal was granted to examine the various grounds but the two which have been vehemently pressed and argued are: whether the agreement of sale relied upon from the appellants' side was genuine and if so what was its effect. And secondly, that in any case the appellants had perfected their title through adverse possession. The findings of the High Court on these two questions are as follows:- "Plea in regard to the sale agreement and petitioners being in possession in part performance, was, for the first time, taken in the written statement filed in the second ejectment case. Plea of adverse possession, however, does not appear in the aforesaid written statement. Learned Addl. District Judge, in his order dated 23.2.1981, allowing appeal and dismissing ejectment petition, on sale agreement observed; "From the facts that the appellant No.2 had purchased the disputed premises on behalf of respondent, the respondent remained in possession of the premises from 1960 onwards without the respondent taking any proceedings against the appellants regarding recovery of rent or their eviction and the payment of Rs.8,000/- by appellants to the respondent, it is borne out that there was some oral agreement for sale of the suit premises between the parties. The respondent himself did not appear to deny the existence of any such oral agreement of sale. Therefore, relationship of landlord and tenant does not exist between the parties". In decision dated 15.11.1981 of this Court (Writ Petition No.132/1981) learned Single Judge in para II, observed, "Thus after the learned Additional District Judge held that there is no relationship of landlord and tenant, the question whether there was any agreement at all, and what is its effect, must be decided in a suit for possession. The apprehension of the learned counsel that the Civil Court may be influenced by the finding of the lower appellate Court or the Rent Controller, cannot be accepted. The Civil Court has to proceed in accordance with law on the basis of the evidence to be produced before it. In this view of the matter, I would not like to express any opinion, one way or the other. No interference is, therefore called for, in view of the law laid down by the Supreme Court in Muhammad Hussain Munir Vs. Sikandar (PLD 1974 S.C.139). Leave to appeal, as observed above, was declined by the Supreme Court. In this background, material question that arises for consideration is whether ChAli Muhammad Sindhu had contracted to sell the disputed property to Nazar Hussain for Rs.8,000/- and had also received the amount from him. It is common ground that the aforesaid Nazar Hussain had participated in the auction as attorney of Ali Muhammad Sindhu and offered the highest bid. However, it was not denied that the transfer price was adjusted from the Compensation Book of ChAli Muhammad Sindhu. Respondent did not admit that his father either sold the property or agreed to sell the same and received Rs.8,000/- as its sale price. To the contrary, his case was that his father had given Rs.8,000/- as loan to Asghar Hussain which was repaid to him. To support this plea, reliance was placed on the Pass Book Ext.P.5 which contained reference to a cheque for Rs.8,000/- issued to Asghar Hussain in December, 1960. Courts below relied on and accepted this explanation. Asghar Hussain is real brother of defendants who was shown to have been paid the sale price on their behalf. Merely that Nazar Hussain acted as attorney for Ali Muhammad Sindhu and that rent was not paid or that ejectment application was delayed for some time, are not strong circumstances to establish the sale agreement as set up in defence. Auction took place in 1960 and alleged payment of sale price was also made in the period near about. But despite long drawn-out litigation between the parties, defendants took no steps to enforce the terms of oral sale agreement. Power of attorney given to Nazar Hussain was also SC89 not brought on file. Oral evidence produced to establish sale agreement was not convincing. Statement of Muhammad Iqbal PW who himself had participated in the auction and had lost, was not reliable evidence to favour the petitioners. As observed above, defendants relied on oral agreement of sale. Heavy onus rested on them to prove its terms. The type of evidence produced in support of oral sale agreement was unsatisfactory and was not sufficient to establish the plea. Ordinarily, defendants should have insisted on agreement in writing. No satisfactory reasons are forth-coming as to why this normal rule was departed from. Additionally, mere agreement to sell, even if proved, does not of itself create any interest in or charge on the property. It is only an agreement that sale of the property shall take place on terms settled between the parties. Unless, proper sale deed was executed, title in the property did not pass. Parties are in litigation since 1977 and presently are in the second round of litigation. It is open to grave doubts whether the sale agreement alleged to have been entered into in 1960 was still subsisting and was enforcibie through a Court of law. On present records, I am in no manner of doubt, to say that the plea in regard to sale agreement and payment of sale price was not established. Now comes the question of adverse possession. It is clear from the above that adverse possession was pleaded for the first time in the written statement filed in the present suit which gave rise to the civil revision. No such plea was urged prior thereto. There is no convincing evidence to establish that defendant held the property adversely. Their main plank was sale agreement. On the one hand, defendants set up an agreement to sell, acknowledged the title of Ch-Ali Muhammad Sindhu and on the other, they pleaded adverse possession. I wonder whether these pleas "can be urged together, may be in the alternative. To me, they appear to be contradictory pleas. Be that as it may, adverse possession was not established". After some arguments learned counsel for the appellants faced with the concurrent findings of fact on the question of agreement going against the appellants could not press it any further except that he tried to show that the findings against the appellants in this behalf should be treated as if the agreement was only invalid on account of lack of registration due to its nature and context. This he repeatedly urged should be held so by this Court; presumably, to gain an advantage on a legal aspect of the second question; namely, of adverse possession. However on this also we agreed with the final assessment by the High Court. Though regarding the agreement it did examine as alternative plea also, vis-a-vis, its effect, the final finding with which we agree and affirm is that there was "no manner of doubt to say that the plea in regard to sale agreement and payment of sale price was not established". Thus the only question which really needs examination in this appeal and which has been argued at some length is of adverse possession. It is obvious as held by the High Court that the plea based on the sale j agreement .and that on adverse possession are contradictory inter-se. Thus on this J ground alone as held by this Court in some recent judgments the appellants must j fail. But the learned counsel for the appellants having raised a plea of some public importance we consider it necessary to deal with it. According to him even if the appellants made a false claim of a valid agreement to sell and thus having put up a title on a disproved agreement they can legitimately press their plea of adverse possession also; despite having failed on the validity of the agreement or even its existence. He in this behalf has relied on Ahmad KJian Vs. Rasul Shah and others (PLD 1975 S.C.311). It is true as held by the High Court that both the agreement and/or the adverse possession were pleaded by the appellants at much later stage and their claim regarding either of them for good reasons, can be considered as baseless. This controversy of basing ones claim on valid title as also on adverse possession, (if claim on valid title fails) has often been commented upon by the superior Courts before and after independence. It was held in Mst.Ghulam Ilahi Vs. Muhammad Waris Khan (PLD 1955 F.C.31) that the possession is not to be considered adverse if its origin can be referred to a lawful title, whenever that is possible; because, a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title of possession. This in reality is based on the historical and jurisprudential aspect of adverse possesssion. It has been summed up in the Limitation Act by Shaukat Mehmood at page 730 (Second Revised and Enlarged Edition of 1984) as follows:- "The rule of adverse possession is based on the principle of "might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State in Pakistan have considered it immoral for it has its origin in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organization of society into rule of law, it gained mandate of law to set at rest the status of long time possession, particularly in absence of claims of true owners of properties. Prescription may be defined as the effect of lapse of time in creating and destroying rights. It is the operation of time as a vesting fact. It is of two kinds namely (1) positive or acquisitive prescription, and (2) negative or extinctive prescription. In positive prescription it is a title of right, e.g. exercising easementary right for over a prescribed period, but in negative prescription it is a divestive fact, e.g. prescription of title by adverse possession and limitation. Extinctive prescription or the limitation of action causes not a transfer of right but merely the loss of a remedy. In both forms of prescription fact and right to possession and ownership tend to coincide. It is thus that adverse possession which may arise from dispossession or discontinuance of possession extinguishes the right of the true owner, provided it fulfils certain requirements. "The adverse possession must not merely be a trespass, but for unmistakable ouster of the real owner, there should be some overt act, under such circumstances of notoriety which clearly posts him with the knowledge of invasion of rights. The constituent conditions of adverse possession are that it must be actual, visible exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession being devoid of moral and equitable consideration, is allowed on the strength of strict and sound proof. If any one of the constituent condition is lacking in evidence the plea is outright rejected. It is for this reason that courts have always insisted on cogent and positive evidence in support of adverse possession. Where possession of plaintiffs over land, was continuous, exclusive and adverse it would create right of ownership by way of prescription. The possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the competitor, and the possession must be nee vi nee el. m nee precario that is peaceful open and continuous. Such possession has to be open, hostile and to knowledge of person entitled to possession. It is unnecessary that real owner should have actual knowledge of the adverse possession so long as it is open and capable of being known by parties interested in the property, or that the owner should be shown to have protested that his rights were being violated and that the possession went on adversely to his protests". Thus in the present context when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been established. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, adverse - a long continued, possession hostile to him. In other words there must be express and open denial of the title of true owner and animus of exclusive ownership. Accordingly, where possession can be referred to a lawful title it will not be considered to be adverse. In the Privy Council case of Charles Edward Victor Seneviratne Cerea Vs. Mahatantrigey Iseris Appuhamy and another (A.I.R.1914 Privy Council 243) it was held that a defendant as in the present case, entering into possession or being in possession on the assumption of lawful title could not divest himself of that title "by pretending that he had no title at all". The possession thus held, was never to be adverse if it can be referred to a lawful title. This view, it appears, was based on and taken from and English Authority Thomas Vs. Tliomas (69 English Reports 701). It was held in this latter judgment that when a father had entered upon an estate of his infant children the presumption is that he entered as their guardian and therefore the statute of limitation does not begin to run against the children until they attain a certain age and from that time the rightful owner may legitimately recover possession. In other Privy Council case wherein also Thomas Vs. Tliomas was relied upon it was held that the possession relied upon by a defendant in similar cases as the present one must be based on a title adverse or independent of that of the plaintiff--C/!0r/e? Edward Victor Seneviratne Corea vs. Mahatantrigey Iseris Appunamy and another (1912 A.C.230). There is further considerable case law on the point that possession is not adverse if it could be referred to a lawful title. It has to be kept in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession, as lawful, no adverse possession begins until the denial to the knowledge of the owner-Aiyisa BibiAmmal Vs. Kalandaras Rowther (A.I.R.1925 Madras 1020). The principle underlying the i rule that if origin of possession is based on legality, no adverse possession begins until denial to knowledge of owner, seems to be that unless the owner has the notice that a person in possession has developed a definite intention to challenge his ownership and set up an immoral illegal possession like that of trespasser, it would not be open and hostile possession. And, the concept of might is right would not till then be relevant. It should be a real usurpation, ravishment rapacity and destruction as against justice, equity, good conscience and fairplay. Until this clear, open and hostile clash between good and bad emerges, starting point of adverse possession is not established. This view is further strengthened by a plathora of authority on the basis of which another rule; namely, that a co-sharer cannot be held to be in adverse possession against another co-sharer, is based. Because where one of the several heirs takes possession his possession is not adverse to his co-sharers as he traces back the same to a lawful title and thus he would not be treated as a trespasser. The further corollary, again developed through case law on this principle regarding co-sharer, is that if a co-sharer also becomes a usurper and openly as well as in a hostile manner revolts against a co-sharer; and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer; only then, on the basis of another principle of complete ouster, he (a co-sharer) also can be treated to have set up adverse possession. The element of the opposition and openness together with hostility and clash would then emerge at that point of time and then onward coupled with the ouster, the start of adverse possession would be set in. In cases where a defendant bases his claim on lawful title say through purchase, all the above mentioned elements ate missing. He represents himself as a gentleman law abiding person and claiming no hostility against the owner by basing his right on a lawful transaction, cannot be treated to have set up any claim as "adverse" claim like what has been discussed above. He of course like that of a co-sharer would be treated to have set up an adverse possession and claim on the day he fails in the initial lawful title/claim and makes an open hostile claim; no more pretending to be acting lawfully. And thus coming out openly, notwithstanding his failure to establish title through lawful means, with an illegal and immoral claim of possession with complete openness and hostility to the other.In this case till the present stage of filing of appeal in the Supreme Court the appellants claimed lawful title through purchase. And one of his arguments pressed by the learned counsel is based on the lawful title through purchase. It is only in the alternative that an argument on the basis of adverse possession is being pressed as the same was pressed in the High Court. This is only a fake and concealed hostility to the owner and cannot be treated as open. The defendant/appellant while rigidly maintaining his claim to possession and ownership has based it on lawful title through purchase. It is only in the alternative in order to gain an advantage in litigation that he relies on what he thinks can also be granted through the Court instrumentality. This claim in Courts is totally different from the claim at the spot and in the field, vis-a-vis, reality which he has faced throughout against the ownership rights of the respondent/plaintiff. There is neither hostility nor openness nor adverseness because the appellant has always aimed to have become owner through purchase. If he keeps a concealed intention of converting his lawful pursuit to a treacherous pursuit, at a certain stage, when the requisite period is passed that cannot at all be treated as adverse possession. It is in this context that several judgments, mostly recent, have been rendered to hold that sources of lawful title and adverse possession are contradictory pleas and cannot stand together. They amongst others are: Ghulam Qadir vs. Ahmad Yar and others (P.L.D.1990 Supreme Court 1049); a/to Khan vs. Ghulam Farooq and others (1988 S.C.M.R. 1765); Juma Khan and another vs. Abdul Karim and another (1980 S.C.M.R.364). See also Mst.Ghulam Ilahi vs. Muhammad Waris KJian (PLD 1955 Federal Court 31); Aivsa Bibi Ammal vs. Kalandaras Routher (A.I.R.1925 Madras 1020); Charles Edward Victor Seneviratne Corea vs. Mahatantrigey Iseris Appuhamy and another (A.I.R.1914 Privy Council 243) and Shah Muhammad Jamil Ala vs. Shah Muhammad Hafiz Ala and others (A.I.R.1928 Oudh 449):- "Possession is not adverse if it could be referred to a lawful title. 1912 AC 230, 69 English Reports 701,1.L.R. 37 Allah 203, 35 Cal. 961, A.I.R.1926 Oudh 144 and A.I.R.1926 Oudh 258, con. and rel. on (P-460)". In the first mentioned cases there are relevant observations although without an elaborate discussion. They are the necessary corrolary of what has been discussed above in this judgment on the principles underlying and requirements of establishing adverse possession. It has become necessary due to Islamic umbrella to all interpretation in Pakistan's Constitutional set up, through Objective Resolution and Article 2-A of the Constitution. The appellants in this case have based their claim on lawful title for a considerable time. They have never been in adverse possession in the sense discussed above. Therefore, by meraly raising contradictory plea of adverse G possession on account only of passage of time without satisfying the requisite intention and physical needs of adverse possession, have failed to establish the same. This argument of the learned counsel also fails and with the same the appeal I H also becomes liable to be dissmissed. However, one more point needs to be examined. It relates to an observation in the case of Ahmad Khan earlier noticed and relied upon by the learned counsel for the appellants. It is to the effect that where a vendee remains in possession after the sale of the property "which goes off or is otherwise defective in law, holds adversely to the vendor. Reliance in that behalf amongst others was placed on MstJasoda KJruar vs. Jenak Missir (A.I.R.1925 Pat.787). Although the said observation has to be taken in the context of the facts in the case of Ahmad Khan yet it is necessary to explain that even in the present case such a situation could have arisen. For example, at an earlier stage of the proceedings the appellants' side could have given up the pretext of lawful title through sale and with this negative declaration could have made a further positive assertion of (and reliance on) their intention onward of immoral grabbing the property through what has already been described as 'might is right'. This line of approach explains "what" is stated in the cited judgment; namely, "after sale of property which goes off or is otherwise defective in law". It means that after a fair fight on the basis of lawful title if that claim is given up as having finally failed, from that point of time onward the adverse possession if other conditions are satisfied, could start. In this case, for example, the appellants have tried to fight on the assumption of a fair fight till the announcement of this judgment. The basis of their claim on lawful title now "goes off. It is only from now onward that if the conditions for adverse possession come into existence and are carried on for the prescribed period; and the law which stands now remains intact till then, notwithstanding the thrust of Islamic Law, jurisprudence and principles, the question of adverse possession (without claim of valid title) might arise after the termination of the new period. This interpretation of the judgment in Ahmad KJian's case is further supported by what follows at page 316 .of the report of the case after the afore quoted observation was made. It reads as follows:- "Learned counsel for the appellant on the other hand relied on the Privy Council's judgment in Jagdev Narain Singh v. Baldev Singh A.I.R.1922 P.C.272) that mere non-payment of rent does not mature an adverse possession. That was however, a case of a tenancy in which the plea of adverse ossession was raised on the basis of mere non-payment of rent. The instant case however stands on a different footing. It is nobody's case that the plaintiffs entered nto possession of the suit land as tenants under Haider Khan or Mst. Hawa Jan. Exh. P.W.4/1 and Exh. P.W.1/1 plainly militate against any such suggestion. Similarly, oor Ahmad v. Mst. Hubab Jan (PLD 1974 S.C.78) relied upon by the appellant's learned counsel has no bearing on this case. That case proceeded on entirely different acts. In that case, the respondent in this Court, Mst. Habub Jan entered into possession of land as legatee under a will executed by her father ". Thus as explained above the judgment in the case of Ahmad Klian instead of supporting the appellants' case goes against them. And for the same above explained reasons as also for the view held in Ahmad Khan's case as already explained, the judgment in the case of Mir Laik All vs. Standard Vacuum Oil Company (Esso) (PLD 1964 Supreme Court 220) is of no help to the appellants, both on principle as also on distinguishing features of that case. Before closing this judgment it needs to be observed that in recent years on account of complicacity of the law relating to landlord and tenant, particularly in urban areas, considerable cases have started pouring in and many of them reaching the superior Courts also; wherein a clear impression is gained that a tenant when feeling that he would fail in saving his tenancy starts claiming himself as lawful alienee/transferee from the real owner. And when a considerable time passes, starts also pressing the plea of adverse possession. In many cases we have found that the findings of fact regarding documents of title did give clear impression that forgeries, with or without help of advisors, are being resorted to make false claims of title. In some, findings by the lower Courts are absolutely clear regarding forgeries. In others the findings are based on strong probabilities. The latter cases are lesser in number. It is high time that this further immoral element coming in litigation (apart from what is normal in the litigation involving adverse possession) should be checked and blocked at this stage lest this practice also becomes protected through law like that of adverse possession. Accordingly, in future atleast when an appellate Court is giving a finding of forgery in a case like the present one the person found guilty thereof should also be put on notice for prosecution with permission of the ourt. In this case there is no such question on oral sale agreement. We, therefore, refrain from proceeding any further in this behalf except to leave it open to the parties in such cases to seek remedies for prosecuting the appellants in accordance with the law. With the foregoing observations this appeal is dismissed with costs through out. (MBC) Appeal dismissed.

PLJ 1991 SC 95 [Appellate Jurisdiction] PLJ 1991 SC 95 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J Mir AFZAL KHAN-Appellanf versus EJAZ AKBAR-Respondent C.P.LA. No. 305 of 1990, dismissed on 6.11.1990 [On appeal from judgment dated 6.6.1990 of Peshawar High Court, Circuit Bench Abbottabad, in C.R. 108 of 1989] NWFP Pre-emption Act, 1987 (X of 1987)-- —S.29--Pre-emption-Suit for-Declaration of Section 29 as repugnant to Injunctions of Islam-Prayer for-Whether High Court had jurisdiction to give such declaration- uestion of-Held: View expressed by High Court that it has no jurisdiction to declare exemption under newly enacted Pre-emption Act as being against Injunctions of Islam s contained in Quran and Sunnah, is correct-Petition dismissed. [P.96]A&B Qazi Abdur Rashid, Advocate, Supreme Court and Mr. Manzoor Elahi, Ex- AOR for Petitioner. Respondent: Not represented. Date of hearing: 6.11.1990. order Muhammad Afzal Zullah, CJ.—Leave to appeal has been sought by a plaintiff in a suit for pre-emption against the dismissal by the High Court, of his Civil Revision. The petitioner's suit for pre-emption was dismissed on account of a Notification by which the right of pre-emption of the plaintiff had seized to exist; as the transaction sought to be pre-empted was such that the suit for pre-emption in that behalf could not proceed. The petitioner's appeal and revision having been dismissed he has now sought leave to appeal. The point urged in this Court is the same as was advanced before the High Court. It was noted in the impugned judgment and dealt with as follows: - "Learned counsel for the petitioner submitted under section 29 of the NWFP Pre-emption Act,1987 the Provincial Government is competent only to exempt those transactions which are in public interest. They urther contended that the notification exempting the instant sale transaction from pre-emption is ultra vires and is epugnant to the injunction of Quran and Sunnah as already held so in the Judgment of the Supreme Court reported as PLD 1986 S.C.360=PLJ 1986 SC 376. They submitted that the mission of public interest in the said notification is deliberate because if the public interest was mentioned and at the same time the notification says that it is for private Institutions here would have been obvious contradictions in the said notification. It is further submitted that section 29 is subject to all pervasive of section 3 of Pre­ emption Act 1987 which eans that if section 29 is not in accordance with Quran and Sunnah, the Court is not bound by it. They also submitted that the said notification is strictly in accordance with section (2) of the Repealed Act of NWFP Pre-emption Act,1950 which has been declared by the Supreme Court of Pakistan as against Quran and Sunnah as laid down in PLD 1986 S.C.360 = LJ 1986 SC 376. They quoted case law in support of their contentions and also referred to certain Articles of the Constitution of Islamic Republic of Pakistan and finally contended hat this Court while exercising its revisional jurisdiction can declare section 29 of the New Act as repugnant to Quran and Sunnah and finally requested for the acceptance of the revision petition. "After hearing the arguments of the learned counsel for both the parties as also the perusal of the record I am of the considered opinion that this Court has got no jurisdiction to declare section 29 of the NWFP Pre­ emption Act,1987, as against Quran and Sunnah because itis the function of the Federal Shariat Court as declared under Articles 203-A, 203-D and 203-G of the Constitution of Islamic Republic of Pakistan". In so far as it goes the view expressed by the High Court that the said Court has no jurisdiction to declare the exemption under the newly enacted 1987 N.W.F.P. Pre-emption Act as being against the injunctions of Islam as contained in the Quran and Sunnah, is correct. Without disputing this proposition learned counsel however insisted that another round of litigation for seeking a declaration from the Federal Shariat Court on the same lines as held by the Supreme Court in the case of Said Kama ! Shah was not intended by the Constitution. When pointed out that newly added Chapter 3-A of the Constitution kept separate and apart the Court function and the legislative functions, it was not possible for the Court to go beyond the declaration and that it was for the legislature to enact proper and correct legislation, learned counsel could not advance the case any further. He however, rightly stated that if the petitioner again moves the Federal Shariat Court on the assumption that there is some provision in the new enactment which is against Quran and Sunnah, he himself might not be benefitted. This by itself is no ground for interference when the question involved is covered by a Constitutional mandate. With these observations we find no force in this petition. Leave to appeal, accordingly, is refused. (MBC) Petition dismissed.

PLJ1991SC97 PLJ1991SC97 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J Mst. FARIDA and 2 others-Appellants versus REHMATULLAH and another-Respondents Civil Appeal No. 32-P of 1984, accepted on 12.11.1990. [On appeal from judgment dated 27.4.1983, of Peshawar High Court, in Civil Revision No. 171 of 1979] Muslim Personal Law (Shariat) Application Act, 1962 (W.'P Act V of 1962)-- —S. 2-Inheritance~Claim of-Whether Act, in its application, cannot be given retrospectivity-Question of-Fact that Act of 1962 was not in force in area concerned on 5.1.1976 would not make any difference because Islamic dispensation contained in 1935 Act had taken over retrospectivity even prior to 15.1.1976 and even before 1962 ct was formally applied to area concerned-­ Last male holder in this case had admittedly died in 1972 or 1973—Held: Appellants being daughters, would get their share in is inheritance in accordance with Islamic law—Appeal accepted. [P.98JA PLD 1984 SC 394 rel. Mr. Jalaluddin Klian, AOR for Appellants, Respondents: Exparte. Date of hearing: 12.11.1990. judgment Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court is directed against the judgment dated 27.4.1983 of the Peshawar High Court; whereby while disposing of the appellants' Civil Revision in a case of inheritance they were granted only partial relief, vis-a-vis, one of their brothers' (respondent herein) share on his concession, while the remaining relief was declined. The leave grant order reads as follows:— "The petitioners are the daughters and the respondents the sons of Nadir Khan who died in 1972-73. The exact year of his death is disputed but admittedly he had died much before the extension of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, to this area on 15.1.1976. He left behind 26 Jaribs of land. The petitioners brought a suit in 1978 against the respondents for a declaration that they (petitioners) are owners of 6/14th share in the land and that the defendants had no right in the said share. The petitioners' suit was dismissed and so was their appeal, whereafter they came in revision before the Peshawar High Court, which was accepted only qua the share of Rehmatullah respondent who had admitted the petitioners' claim before the trial Court. The High Court maintained the dismissal of the suit otherwise, upon the view that section 2 of the Act not being retrospective, the petitioners could not claim a share under the Muslim Law in the estate of their deceased father who had died during custom. "The question arising in this case, that is, whether the Act in its application cannot be given retrospectivity, needs to be examined in the light of this Court's judgment in Muzaffar KJian v Roshan Jan (P.L.D. 1984 S.C. 394). Leave is accordingly granted." The respondents' side has chosen to stay away and they are being proceeded ex-parte. We with the help of the learned counsel have carefully considered the law laid down by this Court in the case of Muzaffar Khan noted in the leave grant order. It is true that the Government of N.W.F.P. did not take any formal specific steps to enact a law in pursuance of the decision of the Shariat Appellate Bench of this Court in T)ie Federation of Pakistan vs. Muhammad Siddique and another (P.L.D. 1983 Supreme Court 273); as it was done in the Punjab . There the relevant law was enacted in the form of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983. It was held in the case of Muzaffar Khan that it would not make any difference. In so far as the question of retrospectivity is concerned the position both in Punjab and N.W.F.P. in this behalf would not be dissimilar. It was also held that as soon as the decision of this Court in its Shariat Appellate Bench "took effect" as from 30th June, 1983, the words "subject to the provisions of any enactment for the time being in force" in Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, "ceased to have effect". As a result amongst others one consequence visualised and held in the case of Muzaffar KJian was that "the N.W.F.P. Act of 1935" is to be given restrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of a Muslim deceased he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coining into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935. Accordingly, in this case the fact that the Act of 1962 was not in force in the area concerned on 15.1.1976 would not make any difference because as observed above the Islamic dispensation contained therein read with the same dispensation contained in 1935 Act, had taken over retrospectivity even prior to 15.1.1976 and even before the 1962 Act was formally applied to the area concerned. To what extent the law would be retrospective, as noticed above, it was held that the same would be definitely beyond 1935. Farthest limit we need not go into because in the present case Nadir KJian the last male holder admittedly died in 1972 or 1973. Therefore, the appellants being his daughters would get their share in his inheritance in accordance with Islamic Law. This appeal thus is allowed. The remaining share in addition to what was granted to them by the High Court shall now be allowed to them and the necessary changes would be made in all the relevant records including the record of rights. (MBC) Appeal accepted

PLJ 1991 SC 99 [Appellate Jurisdiction] PLJ 1991 SC 99 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J CHAIRMAN, DISTRICT EVACUEE TRUST COMMITTEE, RAWALPINDI --Appellant versus SHARIF AHMAD etc.--Respondents Civil Appeals Nos. 32 to 55 of 1981, accepted on 7.11.1990 [On appeal from judgment, dated 13.3.1975, of Lahore High Court, in Settlement Appeal No. 2 of 1975] Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIH of 1958)- —-S. 4(4) read with Limitation Act, 1908, Sections 12 and 29~Settlement ppeals-Dismissed as time-barred-Challenge to-Whether time spent by appellant in obtaining copy f impugned order could be allowed—Question of— It is not denied that Displaced Persons (Compensation and Rehabilitation) Act is a special law and Section 29(2) (a) of imitation Act would be attracted- -It is also not denied that period of Limitation provided in Limitation Act and special law are different-Essential condition for application of ection 29(2) stands satisfied-Word "expressly" in section 29(2)(a) of Limitation Act was not given due importance by High Court-In order to avoid application of provisions f Limitation Act including Section 12, exclusion by a special or local law had to be express which is not present in this case-Held: Section 12 of Limitation Act is attracted o appeals filed before High Court in these cases-Held further: If date of knowledge i.e., 24.11.1967 is starting point and if ime requisite for obtaining copies is allowed, ppeals would have to be treated as within time-Appeals allowed. [Pp.lOO,101&102]A,B&C PLD 1971 Lahore 217 over-ruled. PLD 1973 Note 19 at page 30 upheld. Ch. Fazal-i-Hassain, AOR for Appellant. Mr. Bashir Ahmad Ansari, Advocate, Supreme Court and Ch. Akhtar All, AOR for Respondents. Date of hearing: 7.11.1990. judgment Muhammad Afzal Zullah, CJ.~These appeals through leave of the Court are directed against the judgment dated 13.3.1975 of the High Court; whereby the appellant's settlement appeals were dismissed as time barred. The facts as narrated from the appellant's side are that the properties involved were transferred to the respondents under the laws relating to settlement of displaced persons. The Evacuee Trust Board filed petitions under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for declaration that these properties were attached to Lakhshmi Narain Mandar. A Settlement Commissioner vide order dated 16.10.1967 dismissed these etitions. The order was not announced.in presence of the parties. The appellant Department came to know.of the order on 24.11.1967 and applied for the copies on the same day. The copies were delivered.on 18.12.1967 and the Settlement Appeals under section 4(4) of the said Act were filed on 16.1.1968 i.e., within 30 days of the said date of delivery of the copies of the order. When the appeals came up for hearing they were dismissed as time barred on the ground that the period of 30 days for filing of appeals is from the date of the knowledge i.e., 24.11.1967. However, it was held that the appellant was not entitled to the exclusion of the time spent in obtaining the copies nor the plea of the appellant that Section 5 was attracted, was accepted. Leave to appeal was granted to consider: whether, the time spent by the appellant in obtaining copy of the order of the Settlement Commissioner dated 16.10.1967 could be allowed for computing the period of limitation for filing an appeal in the High Court. Tahir AH and others vs. Chief Judge, Karachi Small Causes Court and another (PLD 1963 Supreme Court 147) was noticed when granting leave to appeal. The High Court relied on Chairman Evacuee Trust Property Vs. Muhammad Din (P.L.D. 1971 Lahore 217). It was held therein as follows:-"Sections 5 and 12 have specifically been made applicable to the appeals competent under Section 19 alone. The intention of the Legislature to exclude the application of the Limitation Act with regard to the appeals under sub-section (4) of Section 4 is clear inasmuch as if they had intended that it should apply, there was no limitation on their power to make a provision similar to that of sub-section (3) of section 19. No maxim of law is of more general and uniform application than expressio unius est exclusio alterius, a maxim meaning 'express mention of one thing implies the exclusion of another'. It is never more applicable than in the construction and interpretation of statutes (Broom Leg. Max.) whenever a statute limits a thing to be done in a particular form, it necesssarily includes in itself a negative, viz. that the thing shall not be done otherwise. The expression of a condition excludes the doing of the act authorised, under other circumstances than those so defined. It is, indeed, a principle of logic of common sense, and not merely a technical rule of construction. We are therefore, clear in our mind that the provisions under section 5 of the Limitation Act do not reach sub-section (4) of Section 4 of the Act. The appeals since they were preferred after the expiry of 30 days from the date of knowledge are time-barred". The view held in the Lahore case of 1971 was dissented from in a judgment from Sind High Court-District Evacuee Trust Committee, Hyderabad vs. Lakhano and 2 others (PLD 1973 Note 19 at Page 30). Learned counsel for the appellant also cited Syed FaizAli Shah vs. Chief Administrator ofAuqaf (PLD 1974 Supreme Court 17), Wall Muhammad and others vs. Wall Muhammad and another (PLD 1974 Supreme Court 56) and Ghulam Hussain Shah vs. Ghulam Muhammad (PLD 1974 Supreme Court 344) to support his contention that under section 29 (2) (a) of the Limitation Act provisions contained in Section 12 thereof would be attracted to the appeals filed under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act 1958. Learned counsel for the appellant also cited Ramdutt Ramkissen Dass V.E.D. Sassoon & Co, (AIR 1929 P.C. 103). The question involved is: whether, Section 29 of the Limitation Act would permit the application of Section 12 of the Limitation Act to the appeals under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Section 29 reads as follows:- "(29) (1) Nothing in this Act shall affect Section 25 of the Contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and the remaining provisions of this Act not apply. (3) Nothing in this Act shall apply to suit under the Divorce Act. (4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend". It is not denied that the Displaced Persons (Compensation and Rehabilitation) Act is a special law and Sub-clause (a) of Sub-section (2) of Section 29 would be attracted. It is also not denied that the period of limitation provided in the Limitation Act and the special law are different. The essential condition for application of section 29(2) thus stands satisfied. Accordingly, Sections 4, 9 to 18 and 22 would straight-away become applicable to Appeals under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act. And Section 12 of the Limitation Act relating to exclusion of the time requisite for obtaining copies would thus become applicable. The reasoning in the Lahore case of 1971 missed one important point. Accordingly, with respect, correct conclusion with regard to Section 12 was not reached. It is true as held therein that for the appeals provided under section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, it is specifically provided in Sub-section (3) thereof that Sections 5 and 12 of the Limitation Act shall apply in computing the period of 15 days provided in the said Section. From this it was assumed that if the application of Section 5 and 12 was intended by the legislature, to appeals under sub-section 4 of Section 4, similar provision would have been made therein. Thus, it was through this indirect reasoning that on application of the maxim relied upon in the Lahore High Court judgment, it was thought that what had not been expressly provided in Section 4 was excluded. In nutshell the entire reasoning leads to one conclusion that although the application of Section 12 was not expressly excluded regarding appeals under Sub-section 4 of Section 4, it would be deemed to have been excluded on account of the application of a maxim and by reference to the provision of Section 19 and thus section 12 would be impliedly excluded. In this reasoning the use of the word "expressly" in Clause (a) of sub­ section (2) of Section 29 of the Limitation Act was not given due importance. Sections 4, 9 to 18 and 22 as provided therein "shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law". Thus in order to avoid application of the said provisions of the Limitation Act including Section 12 the exclusion by a special or local law had to be express. And as there is no such expressed exclusion, their application could not have been excluded by implication as implied exclusion is not visualised. One of us (Mr. Justice Muhammad Afzal Zullah) was a party to the judgment in the Lahore case of 1971. The fact that he was not the author thereof will not make any difference. The rule laid down therein regarding Section 12 as now discussed and discovered is with respect, not correct and to the extent indicated above has to be over-ruled and the Karachi view of 1973 is upheld/approved. That being so, Section 12 of the Limitation Act is attracted to the appeals filed before the High Court in these cases. The judgment impugned before the High Court was not announced in presence of the parties-instead it was ordered therein that the parties were to be informed. There is no rebuttal of the assertion from the appellant's side that the appellant came to know of the judgment impugned before the High Court on 24.11.1967 which would be presumed to be the date thereof for him. If that is the starting point and if as held above the time requisite for obtaining the copies is allowed, the appeals would have to be treated as within time. Accordingly, these appeals are allowed. The impugned judgment is set aside. All these cases are remanded to the High Court for fresh decision on merits of the appeals, which shall be deemed to be pending before it. (MBC) Appeals accepted.

PLJ 1991 SC 102 PLJ 1991 SC 102 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, and abdul qadeer chaudhry, J IQBAL and 6 others-Appellants versus Mst. RABIA BIBI and PARVAIZ-Respondents Civil Appeal No. 751 of 1988, dismissed on 23.10.1990. [On appeal from order dated 8.5.1988, of Lahore High Court, in FA.O. No. 3 of 1987] (i) Practice and Procedure- —Tenant-Ejectment of-Agreement to sell-Plea of-Where sale agreement or any other transaction relied upon by a tenant, is seriously and bonafide disputed by landlord, tenant cannot be allowed to retain possession during litigation, where he continues to deny ownership of landlord who had inducted him as a tenant without any condition and/or reservation-In this case, it is more than a decade that appellants have been able to keep possession on a claim which landlord asserts as false—Held: While tenant is at liberty to prosecute litigation to establish his claim, it should not be at cost of landlord but at his own cost and he must vacate, though he would be entitled to an easyand free entry as soon as he finally succeeds in establishing his title against his landlord. [Pp.l04&105]C PLD 1984 SC 17, 1984 SCMR 741 and PLD 1985 SC 1 reiterated. (ii) Transfer of Property Act 1882 (IV of 1882)-- - — S. 54~Tenant-Ejectment of-Agreement to sell-Whether creates right to stall eviction on its strength-Question of-In previous order of High Court, in earlier litigation egarding temporary injunction, it was stated that general rule comprised in Section 54 of Act, namely that agreement to sell does not in itself create a right or interest, pplied-Since appellants were reiving on such an agreement, rule enunciated by High Court had to be applied and they could not stall eviction on its strength-Held: Alorenoted inding of High Court seems to be based on good authority. [P.104]A&B Mian Muhammad Zafar Yasin, Advocate, Supreme Court and Mr. Ejaz Ahmad Khan, A.O.R. (absent) for Appellants. Mr. M. Munir Piracha, Advocate, Supreme Court, Mr. Asif Saeed Khosa, Advocate, Supreme Court and Sh. Salahuddin, A.O.R. (absent) for Respondent No. 1 Nemo for other Respondents. Date of hearing: 23.10.1990. judgment Muhammad Afzal Zullah, C J.--This appeal by a tenant through leave of the Court is directed against the dismissal by the High Court of his First Appeal from an order of ejectment on the grounds of default and personal requirement. The facts and points noted for grant of leave to appeal are as follows:-"The property in dispute is a shop situate in Saddar Bazar of Multan Cantt. Appellant No. 1 and one Kale Khan, predecessor-in-interest of respondents No. 2 to 7 were inducted into the shop by the husband of the respondent No. 1 (landlord) as his tenants. After the death of her husband, respondent No. 1 allegedly executed an agreement to sell in favour of appellant No. 1 and Kale Khan. Under the agreement the price of the shop was fixed as Rs. 15,000/- and respondent No. 1 received Rs. 10,000/- at the time of execution of the deed. It was stated in the agreement:- Subsequently, respondent No. 1 filed an application for the ejectment of the appellants on the ground of default in the payment of rent and personal need. The appellants denied that the relationship of landlord and tenant existed between the parties. Consequently, the learned Rent Controller framed a preliminary issue to that effect. The appellants on their part filed a suit for the specific performance of the agreement. Respondent No. 1 denied that she had entered into any agreement for sale of the house and described the deed as a forgery. The document was referred to the Finger Print Bureau of the Pnnjab Police. An expert reported that the thumb impression on the document was that of respondent No. 1. In the suit filed by them, the appellants sought a temporary' injunction to restrain respondent No. 1 from ejecting them pendent lite. The application was rejected by the trial Court and the matter went to the High Court which upheld the order of the trial Court in this regard. After the refusal of the High Court to grant a temporary injunction to the appellants, the learned Rent Controller held that the relationship of landlord and tenant existed between the parties and directed their ejectment. From the order of the learned Rent Controller, the appellants filed an appeal before the High Court. The same having been dismissed they were granted leave to appeal for the consideration of the arguments that the Controller had not recorded any finding on the question whether the agreement to sell was genuine or not. A decision on this point was particularly important as under the said agreement the appellants had come to occupy the shop not as tenants but in their own rights after payment of a very large amount of consideration." Learned counsel for the appellants has pressed the point on which leave to appeal was granted. The High Court view on this question as expressed in Para 8 of the impugned judgment was that in the previous order of the High Court, in the earlier litigation regarding temporary injunction, it was stated that the general rule, comprised in Section 54 of trie Transfer of Property Act; namely, that agreement to sell does not in itself create a right or interest, applied. Since the appellants were relying on such an agreement, the rule enunciated by the High Court had to be applied and they could not stall eviction on its strength. This view was further sought to be strengthened by the following observations:"It appeared to be a well received rule inasmuch as in Allah Yar and others vs Additional District Judge and others (1984 S.C.M.R. 741) and Mian Muhammad Abdullah vs. District Judge, Sahiwal and 6 others (PLD 1985 Lah. 467) it was laid down unambiguously that ejectment proceedings could not be stayed or stalled on a plea that the tenant in possession holds such an agreement. Even pendency of a suit for specific performance of the agreement was held no ground to avoid eviction of the tenant by the Rent Controller. Since the plea raised in defence by the appellants was not effective, the next order to be passed was one for eviction. Muhammad Idrees vs. Mst. Sofia Begum and others (1986 P.S.C. 164) was an instance where straightaway ejectment was ordered on failure of such a defence". In so far as it goes the afore noted findings and view by the High Court seem to be based on good authority and the learned counsel has not been able to meet the same. Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one; where the sale agreement or any other transaction relied upon by a tenant is seriously and bonaflde disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time-even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate-though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano Vs. Haji Abdul Ghani (PLD 1984 Supreme Court 17), Allah Yar and others vs. Additional District Judge and others (1984 S.C.M.R. 741), and Province of Punjab versus Mufti Abdul Ghani (PLD 1985 Supreme Court 1). In the light of what has been stated above this appeal fails. Accordingly, it is dismissed with no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 105 [Appellate Jurisdiction] PLJ 1991 SC 105 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J REHMAT KHAN and 3 others-Appellants versus REHMAT KHAN and another-Respondents Civil Appeal No. 416 of 1980, dismissed on 22.10.1990. [On appeal from judgment dated 16.6.1975, of Lahore High Court, in RSA No. 165 of 1964] Resjudicata-- — Resjudicata— Principle of—Applicability of—Whether earlier devolution and inheritance being under customary law and present under Muslim Law, principle of esjudicata is not applicable—Question of—Fact remains that whether under customary law or under Islamic Law, parent-hood of Jan Muhammad, unless established and irectly linked with Amir Khan, former would not inherit either under custom or under Muslim Law-Factual controversy relating to inheritance whether dealt with under ustom or under Muslim Law, remains same as to whether Jan Muhammad was or was not son of Amir Khan—Reasons given in impugned judgment are strong enough to ow that Jan Muhammad was not son of Amir Khan-Held: This factual finding together with bar of resjudicata does not leave anything to be discussed further-Appeal ismissed. [P.109]A Maulvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. Manzoor Ilahi, Ex-AOR for Appellants. Mr. M. Munir Piracha, Advocate, Supreme Court and Ch. AkhtarAli, A.O.R. for Respondents. Date of hearing: 22.10.1990. judgment Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court by the defendants in a suit for possession through inheritance is directed against the judgment and decree of the High -Court dated 16.6.1975; whereby, the respondents/plaintiffs' Regular Second Appeal was allowed. Earlier their suit was dismissed and they had also failed in first appeal. Leave to appeal was granted after noticing facts and points involved as follows:- "For the purpose of this petition it would be sufficient to state that the land in dispute in it originally belonged to Amir Khan and Ahmad Khan sons of Samand Khan. On Amir Khan's death it devolved under custom on his brother Ahmad Khan and on Ahmad Khan's death to his widow Mst. Amina Bibi, who died in 1961. On her death, the respondents filed a suit against the petitioners, who claim to be the grandsons of Amir Khan for a declaration that they were entitled to 3/4 of the property of Ahmad Khan. The petitioners contested this suit and said that they were the sons of Jan Muhammad, who was the son of Amir Khan. However, we have to point out that long before the suit under appeal was filed, when Amir Khan was the owner of the land in dispute, he alienated a portion of itwhich was challenged by Jan Mohammad, the father of the petitioners. Amir Khan had contested this suit on the ground that Jan Mohammad (the father of the petitioners) was not his son, and as this plea was accepted Jan Mohammad's suit was dismissed, and Mr. Ehsanul Haq informed us that this decree had become final. Therefore, when the petitioners pleaded in their written statement in the suit under appeal that they had inherited the property as grandsons of Amir Khan, the contention of the respondents was that they were barred by res judicata from advancing this plea, because the suit of their father, Jan Mohammad, had been dismissed on the finding that he had failed to prove that he was Amir Khan's son. "The judgment in this suit filed by Jan Mohammad was produced in the trial Court, but Mr. Ehsanul Haq submitted that the evidence produced by the petitioners in support of their claim was so overwhelming that the learned Administrative Civil Judge, Gujrat dismissed the suit of the respondents by his judgment dated 11.3.1962. "The respondents challenged the dismissal of their suit in an appeal in the District Court, but after careful examination of the evidence produced by the parties, the learned District Judge also upheld the claim of the petitioners that they were the grandsons of Amir Khan, and dismissed the appeal of the respondents by his judgment dated 22.2.1964. The respondents challenged the concurrent findings of the two lower Courts in a second appeal in the Lahore High Court which was allowed by a learned Single Judge inter-alia, on the ground that the claim of the petitioners was barred by res judicata on account of the decree passed against Jan Mohammad in the suit filed by him against Amir Khan. Hence this petition for leave. "The suit filed by Jan Mohammad against Amir Khan was based on custom, whilst the suit of the respondents in the instant case was filed under Mohammadan Law, therefore, Mr. Ehsanul Haq submitted, interalia, that the learned Judge had erred in law in holding that the dismissal of Jan Mohammad's suit was fatal to the claim of the petitioners in the instant case, because it debarred them from contending that Jan Mohammad was the son of Amir Khan. This submission appears to be supported by this Court's judgment in Allah Rakha vs. Siraj Din and others (PLD 1960 Lahore 106). Therefore, we grant leave". In order to understand the real controversy which is short and simple it is necessary to refer to the pedigree-table prepared from the combined reading of similar pedigree-tables; one in the opening part of the trial Court judgment and the other in opening narration of the petition for leave to appeal submitted by the appellants in this Court, as well as three other pedigree-tables-two given in the first appellate judgment and one in the second appellate judgment. Abdullah Khan Rehmat Khan I I Sikandar Khan I Nawab Khan I Muhamnjiad Khan Saadullah Khan Samand Khan Hasan Khan I Fateh Khan I Muhammad Khan Amir Khan Ahmed Khan Aamina Bibi issueless (widow) Deft. | \ | Disputed Rehmat Khan Yousaf Khan | (Plaintiff) (Plaintiff) Jan Muhammad 1 Sardar 1 1 Sardar Khan Karam Khan 1 Muhammad 1 Rehmat Begum Khan Khan (Defendants) The real dispute is with regard to the paternity of Jan Mohammad-whether or not he was the son of Amir Khan. It is agreed from both sides that if he is held to be the son of Amir Khan the appellants would certainly succeed further detailsthen will be examined; If it is held otherwise, the appellants would have no case left to be examined. The High Court when dealing with this question observed as follows:— "It will be seen from the statement of the case given above that when Amir Khan died in 1924 Jan Mohammad was. excluded from succession and the mutation of inheritance No. 2468 of 1924 (Ex.P.4) was sanctioned in favour of Ahmad Khan, his brother, as Amir Khan was held by the Revenue authorities to have died issueless and without having left a widow behind. Jan Mohammad's claim, to be the son of Amir Khan at the relevant time, was rejected on the basis of the decision of the Chief Court of the Punjab dated the 2nd of May, 1918 (Ex.P.7), which had put a seal on the denial of paternity of Jan Mohammad by Amir Khan. Jan Mohammad admittedly felt satisfied with that mutation of inheritance as he did not take any steps either before the higher Revenue Authorities or before the Civil Court to impugn that decision. For the second time Jan Mohammad was excluded from succession, when Ahmad Khan died in 1929 and his estate was mutated under Custom in favour of Mst. Amina Bibi, his widow (See Ex.P.3). No objection was taken to his exclusion from succession for the second time by Jan Muhammad. Moreover, subsequently when Mst. Amina Bibi felt persuaded to execute the gift deed Ex.D.l of the property inherited by Ahmad Khan from Amir Khan to Jan Mohammad on the basis of some alleged oral will made by Ahmad Khan, the attempt of Jan Mohammad to nullify the decision (Ex.P.7) of the Chief Court that he is not the son of Amir Khan, failed. This gift was successfully challenged by the collaterals and when the matter came up before this court in appeal, Jan Mohammad compromised the dispute and agreed to accept l/3rd of the gifted property, thereby further conceding that he could not claim the property as inheritance of Amir Khan (See Ex.D.45). In the circumstances the appellants' contention that the compromise would not be interpreted to mean that Jan Mohammad had in any manner been clothed with the legal status of the son of Amir Khan is not without force. In order to show that if Jan Mohammad was held to be not the son of Amir Khan in some previous litigation, those decisions are not binding on the contesting respondents, reliance has been placed on some observations in Fazal Dad & others V. Ahmad Ali and another (P.L.D. 1960 Lahore 106). I, however, find that the precedent case is clearly distinguishable and has no application to the facts before me. Here Amir Khan, the alleged father of Jan Muhammad, has denied the claim of Jan Mohammad. As already observed, on three occasions Jan Mohammad has accepted that position and there is nothing on the record to show that the contesting respondents are not claiming through Amir Khan as the basis of their claim is relationship with Samand Khan ancestor". Learned counsel for the appellants reiterated the points raised at the stage of grant of leave to appeal; namely, that the bar of resjudicata would not operate against the appellants because the previous suit was filed by Jan Mohammad on the basis of custom while the present suit is based on the rules of Muslim Law of Inheritance. He has again relied on the two judgments cited and noted at the earlier stage. He also argued that the recent trend of authority has become more profound that the Courts in Pakistan tried to lean in favour of legitimacy rather than to stigmatize a person who has already died, as illegitimate. Another recent judgment of this Court Abdul Majid and others vs. Abdul GltafoorKhan and others (PLD 1982 Supreme Court 146) hals also been brought under discussion. We do agree that under the present total legal dispensation deriving its source power from the Islamic Law as enforced and permitted by the Constitution, favours determination of issues like the one in the present case in line with Islamic ethoefc and principles. Accordingly, so long as the question of discretion and/or interpretation is concerned all possible doubts should be and would be resolved in favour of the legitimacy. But in the process of judgment making; if no such doubts arise then the judgment cannot be made so as to uphold legitimacy at all costs. And it is not the case of the learned counsel for the appellants that in Islamic dispensation no one can ever be declared as illegitimate. However, in case one is declared and held as illegitimate he would have all the rights concomitant and consistent with that status given by law or under any accepted principle of Islamic Law and jurisprudence. But in this case Jan Muhammad can be ligitimate son of someone else. The main point argued by the learned counsel is res judicata, pure and simple. According to him the subject-matter dealt with and decided in the earlier litigation was not the same as in the present litigation. Argument is that earlier it was devolution and inheritance under customary law and now it is under Muslim Law. True it is so and there are some judgments supporting the learned counsel in this behalf but as is apparent from the facts and circumstances in this case summarised in the impugned judgment, the fact remains that whether under customary law or under the Islamic Law the parent-hood of Jan Mohammad unless established and directly linked with Amir Khan the former would not inherit either under custom or under Muslim Law. Thus the factual aspect of the same controversy relating to inheritance whether dealt with under Custom or under Muslim Law remains the same as to whether Jan Mohammad was or was not the son of Amir Khan. More than half a dozen reasons given in the impugned judgment reproduced above in order to hold that Jan Mohammad was not son of Amir Khan, are so strong jointly as well as severally that even if one or two fail the remaining standing jointly and severally are strong enough to show that Jan Mohammad was not the son of Amir Khan. Thus this appeal fails on this factual finding and together with the bar of res judicata it does not leave anything to be discussed further. Accordingly, it is dismissed with no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 109 [Appellate Jurisdiction] PLJ 1991 SC 109 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J GHULAM HUSSAIN and another-Appellants versus FAIZ MUHAMMAD and 7 others-Respondents Civil Appeal No. 594 of 1980, accepted on 10.11.1990 [On appeal from judgment, dated 21.10.1979, of Lahore High Court, in R.S A. No. 332 of 1976] Civil Procedure Code, 1908 (V of 1908)-- —-O. XLI R. 33 read with Sections 151 & 153 and Supreme Court Rules, 1980, O. XXXIII R. 5--Mutation of inheritance—Wrong entry in—Real beneficiary not filing suit r appeal-How to cope with such difficulty-Question of—It cannot be denied that Mst. Mureedan, respondent No. 6 was entitled to inherit from her father and on contrary, espondent No. 1 and his children had no right to inherit either as son-in-law of last male holder or as husband of Mst. Amiran, predeceased daughter of last male holder-It is lmost admitted that a wrong mutation had been sanctioned-Judgment in favour of Mst. Mureedan, rendered in first appeal was set aside by High Court, on appeal of espondent No. 1 who had absolutely no right to inherit and had no locus standi-Order XLI rule 33 of C.P.C. permitted first appellate court to grant decree in favour of ivlst. ureedan, respondent before it-Held: Difficulty faced by High Court would have been removed by exercise of inherent powers to do complete justice by undoing an un- slamic mode of devolution of inheritance whereby a female was deprived of her valuable right—Judgment and decree of first appellate court restored-Appeal accepted. [Pp.ll2&113]A,B,C,D,E&F PLD 1990 SC 1 rel. Mr. Muhammad Munir Piracha, Advocate, Supreme Court and Mr. Manzoor Ilahi, .Ec-AOR for Appelants. Respondents: Exparte. Date of hearing: 10.11.1990. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court is directed against judgment dated 21.10.1979 of the Lahore High Court; whereby the respondents/defendants' Regular Second Appeal was allowed and the appellants/plaintiffs' suit arising out of a land inheritance dispute was dismissed. Leave grant order reads as follows:-"The dispute in this petition for leave relates to land in Mianwali District, and the petitioners as well as the respondents are the heirs of one Lai Khan, who was the last sole owner of the land in dispute. Lai Khan died on 28.10.1952 survived by his sons (the petitioners before us), by Mst. Saddan, his widow (respondent No.5) and three other daughters, who are respondents 6 to 8 in this petition for leave. The first respondent, on the other hand, was married to Mst. Amiran, a daughter of Lai Khan, who died more than five years before Lai Khan's death. However, although Mst. Amiran had died in 1946, the mutation of inheritance of Lai Khan was made in the names of all his heirs except respondent No.6 and instead a mutation was made in favour of Mst. Amiran, who had died long before her father's death. Then on the basis of this mutation, the first respondent obtained a mutation of inheritance from Mst. Amiran which was sanctioned on 20.11.1968. Half of the land was mutated in the first respondent's favour and the rest in favour of the other heirs of Mst. Amiran. Then after obtaining this mutation in his favour the respondent gifted the land mutated in his name to respondent Nos. 2 to 4, who are his children by his second wife. "In these circumstances, the petitioners, who are the sons of Lai Khan, filed a suit in the Court of thfc Civil Judge, Bhakhar for a declaration that they and respondents 5 to 8 be declared as the owners of the suit land (namely, the land that had devolved upon them after Lai Khan's death) and they also prayed for a permanent injunction to restrain the respondents 1 to 4 from interfering which their possession of the suit land. As this suit was dismissed by the Civil Judge, who heard it, the petitioners filed an appeal in the District Court which was allowed by the learned District Judge, Mianwali by his judgment dated 10.1.1976. Therefore, the first four respondents challenged the judgment of the learned District Judge in an appeal in the Lahore High Court which was allowed by a learned Judge by his judgment dated 14.10.1979. Hence this petition for leave. "We pointed out earlier that the name of the sixth respondent had been inadvertently omitted from the mutation of inheritance of Lai Khan's death and that Mst. Amiran's name had been illegally substituted. In this connection, the learned Single Judge observed:-- "8. It is quite evident from the mutation (Ex.P.2) that Mst. Mureedan was substituted by Mst. Amiran (deceased). Mst. Mureedan did not contest the suit. Even in the appeal she did not enter appearance. It is not disputed by any of the parties that Mst. Mureedan respondent alone would be the beneficiary of the decree and the position of the plaintiffs-respondents would not improve in any manner. A suit for declaration is competent only if the plaintiff is entitled to any legal character or right to property. No declaration can be granted unless the plaintiff succeeds in bringing his case whthin the ambit of section 42 of the Specific Relief Act. The plaintiffs-respondents in substance had asked for a declaration in respect of right of a third party. Such a, declaratory suit is not covered by Section 42 of the Act. It is quite obvious that the plaintiffs-respondents did not base their suit on an entitlement of any legal character". "With these observations, the learned Single Judge allowed the appeal of the respondents."Mr. Qureshi submitted that the learned Judge had erred in holding that the petitioners were not aggrieved by the mutation illegally effected by the first spondent in his favour and in support of this submission, he referred us to the statement of the case of the petitioners in the trial Court's judgment. And, learned counsel's ubmission was that the learned Judge non-suited the petitioners on the basis of section 42 of the Specific Relief Act by misreading the plaint and the evidence. "As these ubmissions require examination, we grant leave as prayed". It cannot be denied that Mst. Mureedan respondent No.6 was entitled to inherit from her father and on the contrary the first respondent and his children had no right to inherit either as son-in-law of the last male holder or as husband of Mst. Amiran who was the daughter of last male holder, because, she had died earlier in 1946 before the death of Lai Khan the last male holder who died in 1952. It is, therefore obvious and almost admitted that a wrong mutation had been sanctioned whereby Mr. Mureedan respondent No.6 who was entitled to inherit was excluded; while Mst. Amiran and her husband and some of his children from the second wife were allowed to inherit property of Lai Khan without even a semblance of a right. The judgment in favour of Mst. Mureedan above referred respondent No. 6, rendered in first appeal was set aside by the High Court on the appeal of the respondent No. 1 and his children who had absolutely no right to inherit Lai Khan's property and thus had no right to file an appeal. In other words they had no locus standi to file an appeal. In this view of the matter the appeal being incompetent should have been dismissed on this solitary ground. But the matter would not end here. The High Court as is apparent from the leave grant order faced a difficulty that Mst. Mureedan had not filed the suit and she being the only beneficiary was in the array of parties as a respondent, therefore, perhaps it was further thought, she could not be granted any relief by the first appeal Court. This, with respect, was not a correct approach to the difficulty for solving the same. Order XLI rule 33 C.P.C. permitted the first appeal Courc to grant a decree in favour of Mst. Mureedan respondent before it. It reads as follows:— ORDER XLI. Rule 33. Power of Court to Appeal.-The Appellate Court shall have power 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 and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. (Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order). Looked at from this angle the difficulty visualised by the High Court, vis-a­ vis, the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may be clarified that had there been any such difficulty we would not have hesitated to exercise further inherent power to do complete justice by undoing an un-Islamic mode of devolution of inheritance of Lai Khan deceased, the last male holder in this case whereby a female heir Mst. Mureedan would have been deprived of her valuable right of inheritance. See for the support of this view Ghulam All and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1 = PLJ 1989 SC 139). But it is not necessary. Same power was with the High Court itself and a similar power is with this Court under Supreme Court Rules Order XXXIII rule 5. The trial Court also, I cannot be denied, had inherent power in a case, like the present one on the analogy of provisions contained in Order XLI Rule 33 C.P.C. and Order XXXIII Rule 5 Supreme Court Rules to do justice between the parties before it, under section 151 C.P.C. If there was any need for an order for transposing a defendant as a plaintiff the same also could have been done under other provision of C.P.C. including general enabling provision in this behalf; namely, Section 153 C.P.C. This error or defect could be remedied by any of the Courts and could also be resorted to by this Court if there would have been any need but in view of the availability of the other more elaborate and effective power under.Order XLI Rule 33 C.P.C. the two lower appellate Courts and under Order XXXIII rule 5 of this Court, there is no need to resort to the said provisions of C.P.C. including Section 151 and 153 thereof. I Accordingly, in the light of the foregoing discussion this appeal is allowed. The impugned judgment is set aside and the judgment and decree passed by the first appeal Court are restored. There shall be no order as to costs. (MBC) Appeal accepted

PLJ 1991 SC 113 PLJ 1991 SC 113 [Appellate Jurisdiction] Present: MUIIAMMAD AFZAL, ZULLAH, CJ AND ABDUL QADEER CHAUDHRY, J QALANDAR DIN and 4 others-Appellants versus RASUL KHAN-Respondent Civil Appeal No. 7 of 1988, dismissed on 14.11.1990. [On appeal from judgment dated'22.11.1987, of Lahore High Court, Rawalpindi Bench, in RSA No. 230 of 1970] Civil Procedure Code, 1908 (V of 1908)-- —O.H R.2-Pre-emption suit-Second suit for declaration failed and appeal was withdrawn by respondent without permission to file a fresh suit—Whether third suit by respondent was barred under Order II Rule I—Question of— Contention that cause of action for second and third suit was same—In this case, essential features among "bundle of facts" relating to second and third suit are totally diffcrent-In second suit, respondent had seriously challenged motives and intentions of transaction and sale was brought under challenge as collusive and non-existent-In third suit, sale itself was accepted as lawful and complete and then it was brought under challenge through pre-emption suit- Judge non-suited the petitioners on the basis of section 42 of the Specific Relief Act by misreading the plaint and the evidence."As these submissions require examination, we grant leave as prayed". It cannot be denied that Mst. Mureedan respondent No.6 was entitled to inherit from her father and on the contrary the first respondent and his children had no right to inherit either as son-in-law of the last male holder or as husband of Mst. Amiran who was the daughter of last male holder, because, she had died earlier in 1946 before the death of Lai Khan the last male holder who died in 1952. It is, therefore obvious and almost admitted that a wrong mutation had been sanctioned whereby Mr. Mureedan respondent No.6 who was entitled to inherit was excluded; while Mst. Amiran and her husband and some of his children from the second wife were allowed to inherit property of La! Khan without even a semblance of a right. The judgment in favour of Mst. Mureedan above referred respondent No. 6, rendered in first appeal was set aside by the High Court on the appeal of the respondent No. 1 and his children who had absolutely no right to inherit Lai Khan's property and thus had no right to file an appeal. In other words they had no locus standi to file an appeal. In this view of the matter the appeal being incompetent should have been dismissed on this solitary ground. But the matter would not end here. The High Court as is apparent from the leave grant order faced a difficulty that Mst. Mureedan had not filed the suit and she being the only beneficiary was in the array of parties as a respondent, therefore, perhaps it was further thought, she could not be granted any relief by the first appeal Court. This, with respect, was not a correct approach to the difficulty for solving the same. Order XLI rule 33 C.P.C. permitted the first appeal Court to grant a decree in favour of Mst. Mureedan respondent before it. It reads as follows:— ORDER XLI. Rule 33. Power of Court to AppeaI.~T\ie Appellate Court shall have power 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 and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. (Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order). Looked at from this angle the difficulty visualised by the High Court, vis-a­ vis, the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may be clarified that had there been any such difficulty we would not have hesitated to exercise further inherent power to do complete justice by undoing an un-Islamic mode of devolution of inheritance of Lai Khan deceased, the last male holder in this case whereby a female heir Mst. Held: Bar urged as contained in Order II Rule 2 of C.P.C. was not attracted— Appeal dismissed. [P.116]A,B&C Maulvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. M^4. Siddiqui, A.O.R. for Appellants. Mr. Manzoor Ilahi, Ex-AOR for Respondent. Date of hearing: 14.11.1990. judgment Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court, by the defendants' side in a suit for pre-emption, is directed against the judgment dated 22.11.1987 of the Lahore High Court; whereby the respondent/plaintiff/pre-emptor's Regular Second Appeal was allowed and his suit was decreed. Leave grant order reads as follows:-- "The brief facts are that land measuring I Kanal 10 marlas bearing Khasra No. 539, situate in Mauza Murraria, Tehsil Attock, was purchased by Qalandar Din andhis three brothers, the petitioners, for a sale consideration of Rs. 8,000.00. The sale was pre-empted separately by Karam Khan and Rasul Khan respondent. As both the suits had arisen out of the same sale, these were consolidated after impleading the rival pre-emptors. On 2.12.1974 the parties came to a compromise, as a result first decree for pre-emption was granted to Karam Khan who was directed to deposit the pre-emption money, vis., Rs. 8,000.00, till 4.1.1975, in default, second decree for pre-emption was passed in favour of Rasul Khan, the inferior pre-emptor, who was directed to deposit the decretal amount of Rs. 8,000.00 by or before 4.2.1975. Karam Khan deposited the amount and thereafter took out execution proceedings. It was on 11.4.1975 that the parties submitted an application whereunder Karam Khan surrendered all his rights in favour of the petitioners (vendees judgment -debtors) and prayed for the dismissal of the execution proceedings, which was accordingly done. No sooner Rasul Khan respondent came to know of this development he filed a suit for a declaration that Karm Khan had obtained the decree through collusion and fraud and that he should be permitted to deposit the amount. This suit was, however, dismissed on 22.10.1975 by the learned Civil Judge who was of the view that Rasul Khan's remedy lay under section 47 of the Code of Civil Procedure and that the suit was incompetent. Rasul Khan challenged this order by way of an appeal but the same was withdrawn. Thereafter Rasul Khan respondent filed the present suit for possession by pre-emption of the land in dispute. This suit was Contested and as a result of the pleadings of the parties as many as eight issues were framed, of which issue No. 5 is relevant and is couched in the following language: "5 Whether suit is barred by provisions of Order II, rule 2 C.P.C. ?" After recording the necessary evidence, the learned Civil Judge decreed the suit of Rasul Khan respondent vide his judgment dated 29.1.1977. This judgment was, however, reversed by the learned Additional District Judge, Campbellpur vide his judgment dated 9.1.1978, on the appeal filed by Qalandar Din etc petitioners, who relying on the authority of this Court reported as Abdul Hakam and 2 others v. Saadullah KJian and 2 others (PLD 1970 S.C. 63) held that "in this case the relief on the ground of sale was available to the respondent (Rasul Khan) at the time of the institution of the previous suit. While withdrawing the appeal from it, he did not withdraw it with the permission of the Court, neither did he take action u/s 47 of the C.P.C. It is correct that the appellants (the petitioners) had adopted a method to deprive him of the land but by his own actions, the respondent had created legal clog against himself." This judgment was impugned by Rasul Khan respondent in the High Court, where he succeeded through the impugned judgment in having reversed the order of the Additional District Judge. "We have heard the learned counsel for the petitioners and the caveator. The learned counsel for the petitioenrs contened that the learned Judge in his Chambers has failed to appreciate that the grievance arose from the same action which was the cause of action in the previous suit and the present cause of action was available to the respondent at that stage and it was, therefore, incumbent upon him to have taken the present position in that case. Having failed to do so, it amounted to an omission and now he cannot sue for the relief so omitted. As against him, the learned counsel for the caveator contended that the previous cause of action was separate and distinct whereas the present cause of action was that the action of the pre-emptor decree-holder amounting to sale after receiving consideration during the execution proceedings and this was a fresh valid cause of action and the suit was not hit by the provisions of Order II rule 2 C.P.C. Reliance in this case was placed by him on Sardari Mai v. Hirde Nath (A.I.R. 1925 Lahore 459) and Inzar Gnl v. Hajab Gul (A.I.R. 1941 Peshawar 26). "We have given our careful consideration to the arguments advanced by the learned counsel for the parties and we think that the question that requires determination by this Court, is whether on the given facts and circumstances of the case the suit of the respondent (Rasul Khan) would come within the mischief of Order II rule 2 C.P.C. Leave is thus granted." The above order shows that the crucial question is: whether the provisions of Order II rule 2 C.P.C. barred the third suit of the respondent/plaintiff in this case—on first suit he had succeeded in obtaining a pre-emption decree with second right to pre-empt. The first right was granted in favour of the other preemptor; namely, Karam Khan. This decree in favour of Rasul Khan pre-emptor was frustrated by Karam Khan and the vendee, by Karam Khan having sold the land obtained through pre-emption again to the vendees; namely, Qalandar Din and his three sons-the appellants herein. This transaction was effected at such a stage and point of time that the right to execute decree in favour of Rasul Khan had by that time passed. He then thought and believed that he had been defrauded through a collusion between the first pre-emptor and the vendees, therefore, he launched the second litigation through a suit for declaration seeking the annulment of transaction between the first successful pre-emptor and the vendees on ground of fraud. In this suit he did not succeed and filed an appeal which was withdrawn without the permission to file a fresh suit. Obviously under Order II rule 2 C.P.C. he could not have filed the third suit on the basis of the same cause of action as was the basis of the second suit. Therefore, he filed third suit this time without throwing any serious challenge to the validity of the transaction between the first successful pre-emptor and the vendees which he had done in the second round of litigation through the second suit. This time he did not challenge the validity of the transaction between them. On the other hand he accepted it as a valid sale and filed a suit for pre-emption which was decreed on the assumption that this third suit was based on a different cause of action from what was'the basis of the second suit filed by him (Rasul Khan). However, the appellant's first appeal succeeded and the suit was dismissed but the respondent/plaintiffs second appeal was allowed by the High Court which led to the grant of leave to appeal. We have heard the larened counsel at length. While his plea throughout remained that the cause of action for the second litigation/suit and the third litigation/suit remained the same, we strongly feel that it had completely changed. His contention that, as he put at, "what prompted the respondent/plaintiff to file the second suit"; namely, the urge for annulment of transaction between the first pre-emptor and the vendees remained the same which prompted him to file third suit. This criterion of "what urges plaintiff to file a suit" has long been discarded as a proper definition/connotation of what is known as "cause of action". It is accepted rule now that it consist's of bundle of facts and circumstances and other things and not just one element amongst them which ultimately urges a plaintiff or prompts him to file the suit as an immediate cause. In this case the essential features amongst "the bundle of facts" in the facts and circumstances, relating to the second litigation/suit and the third litigation/suit are totally different. In the second suit the respondent had seriously challenged the motives and intentions of the transaction. Not only this he had made positive assertion of fraud and collusion and above that he had not accepted the genuineness of the transaction as a sale. If these elements particularly last one would have remained the same as before, in the third suit, the very basis for suit for pre-emption in the third suit would have been obliterated. Without a sale there cannot be a pre­ emption. In the second suit the sale was brought under challenge as collusive and non-existent. In the third suit the sale itself was accepted as lawful and complete and then it was brought under challenge through a suit for pre-emption. Similarly there are other factors constituting the causes of action in the two suits which are totally different. Accordingly, the bar urged by the learned counsel as contained in Order II rule 2 C.P.C. was not attracted. Learned counsel also tried to show that the third suit would be barred by bar or res judicata. This plea was not earlier urged nor in the present circumstances we are inclined to examine this additional plea because leave to appeal was not granted on this question. And as an exercise of discretion we would not grant leave on this additional point during the hearing of this appeal because of the equities which go in favour of the respondent's side. In the light of what has been stated above this appeal has no force and is dismissed with no order as to costs. directed against the dismissal by the High Court of appellants' Constitutional (Writ) Petilioi. which had arisen out of a lamj settlement case. The order for grant of leave to appeal reads as follows:- "The dispute related to land measuring 16 kanals and 13 marlas situated in Multan Khurd District Chakwal. It was allotted on temporary basis to Sardar AH respondent No. 2 a refugee from Jammu and Kashmir with no claim. He is alleged to have made an application on 31st December, 1968(?) for its cancellation and the Deputy Settlement Commissioner (Land) by his order dated 31st December, 1964 cancelled the same. Thereafter it was allotted to Muhammad Alam respondent No. 3 on 27th February, 1965. He sold the whole of the said land in the. following manner; on 3rd June 1965 he sold 8 kanals and 13 marlas out of it vide registered sale deed to petitioners No.l and 2 and the remaining land was sold on 28th June, 1965 to one Abdur Rashid. In May 1968 this Abdur Rashid on his part sold the portion purchased by him to Muhammad Khan predecessor of petitioners Nos. 3 to 11. Thus all the petitioners became purchasers of the entire disputed land. Then after 8 years i.e. in 1971, Sardar Ali respondent No.2 filed an appeal before the Additional Settlement Commissioner (Land) Campbellpur challenging the order of cancellation of his temporary allotment without impleading the petitioners as party. This appeal was allowed on 15th May, 1972. Thereupon the petitioners filed writ petition No. 328-R of 1975 which was accepted by a learned Judge of the Lahore High Court Rawalpindi Bench vide Judgment dated 14th February, 1983 and the case was remanded. Thereafter the Additional Commissioner (Revenue/Settlement Commissioner) Rawalpindi on remand passed an order dated 22nd May, 1986 upholding the order passed by the Additional Settlement Commissioner (Land) dated 15lh May, 1972. It is this order which was challenged by the petitioners by way of a writ petition which had been dismissed by a learned Judge of the Lahore High Court Rawalpindi Bench on 5th July, 1986. "We grant leave in this case, inter alia, to examine the contention of-the learned counsel for the petitioners as to whether delay in the filing of the appeal by Sardar Ali respondent No. 2 could have been condoned by the Settlement Commissioner (Land) by invoking the provisions of Section 18 of the Limitation Act 1908, without there being any application for condonation of the same and without holding any inquiry in respect of it, particularly when after the lapse of 8 years vested rights had been created of the petitioners who were bonaflde purchasers without notice". Learned counsel has reiterated the pointes urged at the time of grant of leave to appeal. Similar was the position before the Additional Commissioner/Settlement Commissioner whose order was impugned before the High Court by the appellants as well as before the High Court itself at the time of the hearing of the Writ Petition which was dismissed. The following observations by the Settlement Commissioner and by the High Court are relevant in the present context:-- I. Settlement Commissioner's Order dated 22.5.1.986. "Learned counsel for the appellant (respondent herein) has argued that the cancellation of his temporary allotment and its subsequent allotment to Muhammad Alam was made in his absence and therefore as held in PLD-1973-Notes-Page 66, Lahore, the order under appeal is ab initio void and no limitation runs against it. It was based on fraud, for which delay can be liberally condoneld under section 18 of Limitation Act 1908. I find it a clear case of fraudulent cancellation and fraudulent allotment of evacuee land and as such, provision of Section 18 of Limitation Act is invoked. This section 18 is applicable to special laws under the provision of section 29(2) of the same Limitation Act, 1908,1, therefore, proceed to condone the delay in filing appeal by Sardar Ali to Additional Settlement Commissioner (Land), Attock u/s 18 of Limitation Act, 1908."Under the above views, I accept this appeal and set aside the order dated 31.12.1964 of DSC (Land), Talagang whereby he ad cancelled the temporary allotment of Sardar All. At the same time, the allotment of the disputed land in the name of Muhammald Alam respondent at Khata RL-II No. 27, ultan Khurd made by the DSC (Land), Talagang is also cancelled ". II, High Court Order dated 5.7.1986. "The case of the petitioners (appellants) is lhat the appeal of Sardar Ali was barred by Limitation and there was no justification for the Settlement Commissioner for condoning it. I find no merit in this contention. A fraud had taken place and the land in the name of Sardar Ali was cancelled in a fraudulent manner. Sardar Ali discovered this fraud only in 1971. The appeal brought by him on 17.1.1972 was, therefore, within limitation and no condonation of delay was called for. On merits the leanred counsel has argued I hat temporary allottees have no. right to compete with genuine claimants, but this stage could arrive only if there was a competition between the temporary allottees and the so called genuine claimant. In the present case Sardar Ali's land was cancelled on 31.12.1964 fraudulently on the basis of an alleged application made by Sardar Ali himself seeking cancellation of the land. Sardar Ali will, therefore, have to be restored to the position which he enjoyed on 31.12.1964. The question whether he can compete with anybody elsle did not arise on that date. The argument of the learned counsel, that the temporary allottees could not compete with a genuine claimant is, therefore, without any force. In view of the above considerations the order of the Additional Commissioner restoring Sardar Ali to the position which he enjoyed on 31.12.1964 is entirely justified". Learned counsel vehemently rather with extraordinary zeal pleaded the case of the appellants mainly on the ground that in the circumstances of this case the respondent Sardar Ali should have been penalized for fraud committed with him and the Writ Petition should have been allowed by the High Court, because, according to him, the appcllantls who were the innocent beneficiaries but through the fraud committed by their predecessor-in-interest could be protected by the force of some precedent law. He also wanted to cite judgments to support his point of view. (MBC) Appeal & petition dismissed.

PLJ 1991 SC 121 [Appellate Jurisdiction] PLJ 1991 SC 121 [Appellate Jurisdiction] Present: muiiammad afzal zullah, CJ and abdul qadeer chaudbry, J MUHAMMAD QASIM KHAN and 5 others-Appellants versus Mst. MEHBOOBA and others-Respondents Civil Appeal Nos. 66-P and 67-P of 1983, decided on 19.11.1990 [On appeal from judgment dated 9.2.1983, of Peshawar High Court, in RSA Nos. 430 of 1981 and 430 of 1971] (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XLI R. 33 read with Supreme Court Rules, O. XXXIII R. 5-One daughter not joining other as plaintiff-Whether right of inheritance could he taken away from them-Question of-Daughters of Muhammad Akram through their mother, whether as plaintiff or proforma defendant, were entitled to inheritance-Except for formal plea that Mst. Maqboola, defendant No.l had not joined Mst. Mahbooba, plaintiff and perhaps on account of that, she could not be given any relief, nothing more could be urged by learned counsel for defendants—Held: Mst Maqboola could be granted relief by first appeal court as well as by High Court and in any case, it can be granted by Supreme Court under Order XLI rule 33 CPC and Order XXXIII rule 5 of Supreme Court Rules-Defendant's appeal (66-P of 1983) dismissed. [P.123]B&C PLJ 1991 SC W9 reiterate (ii) Inheritance- —Right of inheritance—Claim of—Whether decree passed in favour of plaintiff was rightly set aside by High Court-Question of-If Mst. Amira was a limited . owner, devolution of estate on her death after 1962 will be, in accordance with then prevailing law and decree passed in favour of laintiff regarding share of suit land in possession of Mst. Amira, was also proper and valid and was not liable to be set aside by High Court—Held: Decree passed in favour of plaintiff, vis-a-vis property left by Mst. Amira was not liable to be set aside—Appeal No. 67-P of 1983 is allowed." [Pp.l24&125JD&E PLJ 1991 SC 97 reiterated (iii) Limitation- —Inheritance—Claim of—Whether claim was barred by limitation—Question of- -After grant of leave to appeal in this case, in a number of judgments this part of controversy now stands resolved in favour of respondent side—Ghulam Ali's case goes against defendants' plea of bar of limitation—Held: There is no force in defendants' appeal in so far as question of limitation is concerned. [P.123]A PLD 1990 SC 1 =PLJ 1990 SC 139 reiterated. Mr. M. Shalt Badshah, Advocate, Supreme Court, and Mr. Jan Muhammad Klwn, AOR (absent) for Appellants (in C.A. 66-P/83). Mr. Z. Mehfooz KJian, AOR for Respondents 1 & 2 and for Appellant (in C.A. 67-P/83) Mr. M. Shah Badshah, Advocate, Supreme Court for Respodents 1 to 6 (in C.A. 67-P/83). Memo, for other respondents (in C.A 67-P/83). Date of hearing: il.11.1990. judgment Muhammad Afzal Zullah, CJ.~These two appeals through leave of the Court arise in the following facts and circumstances as noted in the order for grant of leave to appeal:- "Thc plaintiffs as well as the contesting defendants by two separate petitions seek leave to appeal against the judgment of the Peshawar High Court in Regular Second Appeal dated 9.2.1983 whereby the plaintiffs claim was allowed only in part. "Mst. Mehbooba was the plaintiff who sued for 25/96 share in the ancestral property devolving on her through her mother and father. This property had remained in the hands of three ladies, Mst. Ameera, Mst. Shahzadgai, and Mst. Maryam. The dispute was whether it was held by Mst. Ameera as a GUZARAKHUR or as a limited estate for life or a till re-marriage. Similarly the question was whether on the death of Mst. Shahzadgai, the mother of the plaintiff-petitioner, in 1945 the rule governing the inheritance was one of Shariat or of custom and whether the inheritance of collateral Abdul Latif at that stage was not adverse to her and whether the claim made by the plaintiff was not barred by limitation. "All the three courts have dealt with the case differently. The trial Court dismissed the suit on the ground that il was barred by time and the plaintiff was not entitled to inherit any share in the estate. The District Judge accepted the appeal and allowed 19/96 share of what Mst. Ameera had left for inheritance. On second appeal the High Court held that Mst. Ameera had only a right of being maintained from the property and had left no heritable estate. However, the petitioner was held entitled to the estate of Mst. Shahzadgai, her mother, whose share was determined as 1/16 and hall of it was allowed to the Petitioner. "We have heared the learned counsel for the petitioner at some length and find that the case raises more than one question of law which are what is the distinction between a guzarakhaur and a life estate holder and whether on that score She interest of Mst. Ameera could be held to be non-heritable: "Further, it requires examination whether on the death of Mst. Shahzadgai in 1945 custom governed the inheritance or Shariat and what benefit the plaintiff-petitioner could derive from either. Finally the question of limitation requires examination and authoritative pronouncement in a case of this type. Leave to appeal is, therefore, granted to examine the above mentioned questions". We have heard the learned counsel from both sides at length. In so far as what has been left with the plaintiffs' side in this case of inheritance, could be challenged by the defendants' side successfully only on the ground of limitation; which their learned counsel in Appeal No. 66-P of 1983 vehemently advanced and urged. But after the grant of leave to appeal in this case in a number of judgments by this Court this part of the controversy now stands resolved in favour of the respondent side. The case law has been marshalled in a recent judgment of this Court in the case of Ghulam All and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1 = PLJ 1990 SC 139). It goes against the defendants' plea of bar of limitation. There is ample discussion on this question in the said judgment. It fully applies to the case of the respondent/plaintiff side. Accordingly, there is no force in the. defendants appeal in so far as the question of limitation is concerned. B Regarding the right of the daughters of Muhammad Akram through Mst. Shehzadgai, their mother, whether as a plaintiff or as proforma defendant they are entitled to it. Thus the share of Mst. Mehbooba plaintiff and that of Mst. Maqboola defendant No. 1 in this part of the inheritance could not be taken away from them. Except for the formal plea that Mst. Maqboola defendant No. 1 had not joined Mst. Mehbooba, the plaintiff and perhaps on account of that she could not be given any relief, nothing more could be urged by the learned counsel for the defendants. Mst. Maqboola could be granted relief by the first appeal court as well as by the High Court and in any case can be granted by this Court under Order XLI rule 33 CP.C and Order XXXIII rule 5 of the Supreme Court Rules. As held in the case of Ghulam Hussain vs. Faiz Mohammad, C.A-594 of 1980 (reported as PLJ 1991 SC 109), decided on 10.11.1990 Mst. Maqboola could also , be granted relief by the trial Court by resort to the said provision as also by | transposition and/or section 151 read with section 153 C.P.C. In the light of what has been stated above there is no force in the defendants C appeal No. 66-P of 1983. The same, accordingly, is dismissed. In so far as the plaintiffs/appellants' case (No. 67-P) is concerned, it is of advantage to reproduce what the High Court thought about the estate of Mst. Ameera the step mother of Mohammad Umar. In the opening part of the impguned judgment the case of the defendants through their counsel was noted as follows:— "The learned counsel for the appellants took an exception to the finding of the learned appellate court and strenuously contended that Mst. Amira had not entered the estate of Azim Khan as a limited owner but she was inducted into the estate subsequently as she was being maintained by the said estate. She was not a limited owner and was a Guzara Klior only". After noticing this argument from the appellants' side the learned Judge in the High Court also made the following observations: - "It is envisaged by Customary Law in Peshawar District by J.G. Lorimer in answer to Question No. 41 that sons, grandsons or other male lineal descendants excluded all other heirs and in the absence of male lineal descendants widows and after that daughters etc. are entitled to possession of property for life or till marriage or re-marriage". However, on the factual side in the facts and circumstances of this case a very weighty observation in the impugned judgment of the High Court needs also to be produced. "A look at the Jamabandi 1929-30 shows that Mst. Amiran, Mst. Shahzadgai and Mst. Maryam, the widows are recorded as owners of half the land whereas the other half was owned by Ghulam Muhammad and Abdul Latif in equal share". Obviously neither Mst. Amira nor the other two ladies were the full owners and therefore they could not be recorded as such. If, as is apparent from the above quotation, they were entered as owners, it must be as "limited" owner and if the entry is same about all the three namely Mst. Amira, Mst. Shahzadgai and Mst. Maryam; it will not be safe to single out Mst. Amira so as to hold that she alone was a Guzarakhor and not a limited owner though the entry is the same with regard to all three of them. The evidence led on this question, other than Jamabandi entry is of not much help on this question. The entry in the Jamabandi of 1929 reads as follows:- The High Court has not attached due importance to this entry. It remained intact and nobody disputed it. Mst. Amira was treated as limited owner for a long time. That being so due effect has to be given accordingly. Thus the question posed in the leave grant order in this behalf is answered accordingly. If Mst. Amira was a limited owner the devolution of estate on her death after 1962 will be in accordance with the then prevailing law and that being so the decree passed in favour of the plaintiffs regarding the share of the suit land which was in possession of Mst. Amira also was proper and valid and was not liable to be set aside by the High Court. As to the question: whether, on the death of Mst. Shahzadgai in 1945 the rule of inheritance would be Custom or Shariat in the N.W.F.P., it would suffice to make reference to the recent decision of this Court iin Civil Appeal No. 32-P of 1984 decided on 12.11.1990 (reported as PLJ 1991 SC ; (

7). Looked at from this angle also the decree-passed in favour of the plaintiff, vis­ a-vis, the property left by Mst, Amira was also not liable to be set aside. Accordingly, the impugned judgment is liable to be reversed on this issue, Before closing this order it needs to be mentioned and reiterated that as observed in the disposal of the other appeal; namely, CA-66-P/83, the decision and observations regarding Mst. Maqboola defendant No. 1 shall apply mutatis mutandis to that part of the inheritance also which relate to the property left by Mst. Amira. In the light of the above .discussion with the foregoing decision and observations regarding Mst. Maqbooia, Appeal No. 67-P of 1983 is allowed. The impguned judgment in that appeal is set aside and the decree is ordered to be | modified accordingly. There shall be no order as to costs. (MBC) Orders accordingly.

PLJ 1991 SC 125 PLJ 1991 SC 125 [Appellate Jurisdiction] Present: dr. nasim hassan shah, saad saood jan and rustam S. sidhwa, JJ PAKISTAN RAILWAY-Appellant versus ABDUL HAQ1QUE and others-Respondents Civil Appeal No. 17 of 1988, dismissed on 9.12.1990 [Against judgment dated 26.1.1988 of High Court of Sindh, passed in HCA No. 119 of 1987] (i) Fatal Accidents Act, 1855 (XIII of 1855)-- —S. 1—Death by rash and negligent driving—Compensation for—Suit for— Decree passed in—Challenge to—Whether master of vehicle is not vicariously responsible for ayment of compensation-Question of—It is well established that a master is liable for any tort committed by his servant while acting in course of his employment—Master ould, therefore, appear to be "a party who would be liable" within meaning of section-Held: There is nothing in text of Act that would militate against enforcement of ious liability against master for rash and negligent act on part of his servant. (Per Saad Saood Jan, J) • [P. 127] A (1942) 2 All. E.R. 650, (1942) 2 All. E.R. 464, (1953) 2 All. E.R. 582 and AIR 1936 Madras 247 rel. (ii) Fatal Accidents'Act, 1855 (XIII of 1855)-- —S. 1-Death by rash and negligent driving-Compensation for-Suit for- Decree passed in-Challenge to-Contention that High Court should have awarded interest to parents f eceased from date of decree and not from date of institution of suit-Held: As liability of appeallant is of vicarious nature, it is only fair that interest should have been allowed rom date when amount of compensations was for first time quantified and not from date when suit was brought. (Per.Saad Saood Jan, J) [P.128JC (iii) Fatal Accidents Act, 1855 (XIII of 1855)-- —S. 1 read with preamble-Death by rash and negligent driving-Compensation for-Suit for-Decree passed in-Challenge to-Contention that preamble of Act indicates intention of Legislature that damages are to be exacted from wrong-doer alone and not from his master—If provisions of section 1 were intended to depart from general rule relating to vicarious liability of master, clear words to that effect would have been used therein—Held: Words "party ho would have been liable" are of wider import nd there is no compelling reason to restrict their ambit by placing a narrow construction upon them so as to exclude liability of master who is under ordinary law, esponsible for wrongful act of his servant. [Pp.l27&128]B&D PLJ 1981 SC 100 rel Ch. Fazal-i-Hussain, AOR for Appellant. Nemo for Respondents. Date of hearing: 22.10.1990. judgment Saad Saood Jan, J.--This is an appeal from the judgment of the Sind High Court, Karachi. It arises in the following circumstances. 2. The appellant was the owner of a wagon. It had employed respondent No. 3 as driver. On 17.12.1983, at about 7.30 a.m., respondent No. 1 while driving the wagon ran over a young boy, Naseeb Khan, on the Business Recorder Road, Karachi. The boy who was only 14 years of age died as a result of the injuries received by him. Respondents No. 1 and 2 who were his parents filed a suit under the Fatal Accidents Act, before the Sind High Court against the appellant and respondent No. 3 for the recovery of compensation in the sum of Rs. 5,00,000.00. The suit was tried by a learned Single Judge. It was resisted by the appellant and respondent No. 3. They inter alia, denied that the accident had occurred as a result of rash or negligent driving of the wagon by respondent No. 3. On the pleadings of the parties the learned trial Courtframed the following issues: 1) Whether the death of the deceased, Nasib Khan was caused by the defendant No. 2, the driver of wagon No. GP. 1814, belonging to the defendant No. 1 due to rash and negligent driving? 2. Whether the defendants are liable to pay compensation as claimed by the plaintiffs jointly and severally? 3. Whether the plaintiffs are entitled to cost and interest at 15 per cent per annum from the date of filing the suit till recovery of the decretal amount?" After considering the evidence led by the parties the learned trial Judge held that at the relevant time respondent No. 3 was driving the wagon rashly and negligently an that oth the appellant and responden No. 3 were liable to pay compensations jointly and severally to the parents of Naseeb Khan. He assessed the amount of jompensations at Rs. 1,15,200.00 and directed the appellant and respondent No. 3 to pay the said amount to the parents of Naseeb Khan with interest at the rate of 10 per cent, per annum from the date of the institution of the suit till recovery. 3. From the judgment of the learned Single Judge the appellant preferred an intra-court appeal in the High Court. It was heard by a Division Bench. The learned Division Bench upheld the findings of the learned Single Judge that the accident had occurred on account of rash and negligent driving on the part of respondent No. 3 and that both the appellant as well as respondent No. 3 were liable to pay compensations to the parents of the deceased. It, however, reduced the amount of compensations to Rs. 76,800.00 but maintained the direction with regard to the payment of interest from the date of the suit till recovery. 4. It was not disputed before us that while driving the wagon respondent No. 3 was acting in the course of his employment under the appellants. However, it was contended that under the Fatal Accidents Act it was the actual wrong-doer and not his master who could be fixed with the responsibility of paying compensations to the relations of the person killed. Now, the relevant provision of the Fatal Accidents Act is contained in section 1 thereof. It reads as follows:-- "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or ther crime." The words 'the party who would have been liable' occurring in the section | are significant. It is well established that a master is liable for any tort committed by his servant while acting in the course of his employment. See Mckean v. Raynor Bros. ((1942) 2 All. E.R. 650); Canadian Pacific Rv. Co. versus Lockhart ((1942) 2 All. E.R. 464 and London C.C. v. Cattcrmoles ((1953) 2 All. E.R. 582). The master would, therefore, appear to be 'a party who would be liable' within the meaning of the section. There is nothing in the text of the Act that would militate against enforcement of vicarious liability against the master for the rash and negligent act on the part of his servant. We, therefore, do not find any weight in the contention that the appellant, as distinguished from respondent No. 3, cannot be made to pay compensations under the Act to the parents of the deceased. In the case of Stones Motors Ltd. v. Vincent Peter (A.I.R. 1936 Madras 247) the master was saddled with the responsibility of paying compensations for the negligent driving on the part of its employee that had led to a fatal accident. 5. In .support of his contention learned counsel for the appellant entirely relied upon the preamble to the Fatal Accidents Act which reads as follows: "Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him; It is enacted as follows: It was argued by the learned counsel that a reading of the preamble indicated that the intention of the legislation was to exact damages from the wrong-doer alone arid not from his master; that being so, the provisions of section 1 should not be given an extended scope to encompass his master as well. It is difficult to subscribe to this contention. Although the preamble of an Act does serve as an aid in construing the enacting parts but it can hardly be regarded as the sole guide, for, as pointed out by Lord Normand in trie case of Attorney-General v. Prince Ernest Augustus of Hanover ((1957) A.C. 436), there may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. If the provisions of section 1 were intended to depart from the general rule relating to the vicarious liability of the master, clear words to that effect would have been used therein. On the other hand, the words employed are 'the party who would have been liable'. These are words of wider import and we can find no compelling reason to restrict their ambit by placing a narrow construction upon them so as to exclude the liability of the master who is under the ordinary law responsible for the wrongful act of his servant. 6. The only other contention raised by the learned counsel for the appellant was that the High Court should have awarded interest to the parents of Naseeb Khan from the date of the decree and not from the date of institution of the suit. There is a merit in this contention. As the liability of the appellant is of vicarious nature it is only fair that the interest should have been allowed from the date when the amount of compensations was for the first time quantified and not from the date when the suit was brought. With this modification the appeal is dismissed with costs. Rustam S. Sidhwa, J.--I have read the judgment of my learned brother Saad Saood Jan J, with which I concur. However, I would like to add a few words. Whilst not challenging the vicarious liability of the master for the tort committed by his servant whilst acting in the course of his employment, the question whether the master is so liable in respect of cases instituted under the Fatal Accidents Act, 1855, has been raised before us in this appeal. No case law has been cited before us from which it can be inferred that this matter was directly canvassed as an issue before this Court. However, I note that in certain cases before this Court, this liability in respect of cases instituted under the Fatal Accidents Act appears to have been impliedly taken for granted. See Sri Manmatha Nath Kitri v. Moiilvi Muhammad Kokhlesur Rehman (PLD 1969 S.C. 565) and Mst. Bashiran v. Pakistan through General Manager , Pakistan Western Railway (PLD 1976 S.C. 748). s regards the argument of the learned counsel for the appellant that the preamble to the Fatal Accidents Act supports his case, my learned brother has refuted this ith care, deriving support from the observations of Lord Normand in the case of Attorney General v Prince Earnest Augustus of Hanover (1957 A.C. 436). I would like to dd the observations of this Court from Mst. Zainab Bibi v. Mst. Bilqis Bibi (PLJ 1981 S.C. 100 para 36), where my learned brother Dorab Patel J, relying on the same bservations of Lord Normand, stated that a preamble could not be resorted to when the statute itself was clear and unambiguous and that one could not fail back on the reamble or on the statement of the objects of an Act in order to alter the plain meaning of the words of the section itself. (MBC) ' . Appeal dismissed.

PLJ 1991 SC 128 PLJ 1991 SC 128 [Appellate Jurisdiction] Present: SiiAFiUR rahman, S. usman ali shah and ali hussain qazilbash JJ. NOOR ALAM KHAN (DECEASED) THROGH GHULAM QASIM and another, and others—Appellants versus SOHBAT KHAN and others-Respondents. Civil Appeals Nos. 302, 303 and 304 of 1983, dismissed on 16.12.1990 From judgment of Peshawar High Court, Circuit Bench Abbottabad, dated 21.8.1983, passed in C.R. Nos.15 of 1978 and 191 of 1972. General Clauses Act, 1956 (W P Act VI of 1956)-- —-S. 7 read with General Clauses Act, 1897, Section 8, Hazara Forest Act, 1936, Sections 12(2) and 27(2) and NWFP Tenancy Act, 1950, Section 85-- Occupancy enants-Acquiring Ownership rights-Whether still entitled to get compensation for trees as occupancy tenants—Question of—Section 85 of Tenancy Act leaves no doubt hat Tenancy Act not only repealed but re- ; enacted after consolidation various tenancy laws under which occupancy ) tenancies were recognised—It was clearly a case of repeal followed by reenactment-Any reference to occupancy tenancy in any other earlier law would necessarily bring back such occupancy tenants as nder re-enacted law had ' become owners—Held: Notwithstanding extinction of occupancy tenancy, under Sections 7 and 8 of General Clauses Act of 1956 and 1897 respectively, a eference to owners who were erstwhile occupancy tenants, will be construed I as reference to occupancy tenants who had become owners nder re-enacted Tenancy Act, and on that score, full effect shall be given to scheme of distribution of compensation recognized by Wajibul Ariz-Appeals dismissed. [Pp.l33&134]A,B&C PLD 1975 SC 325 interpreted. Mr. Mushtaq All Tahirkheli, Advocate, Supreme Court, and Ch. Akhtar All, AOR for Appellants (in CA 302&303/83) and for Respondents (in CA 304/83). Mr. Muhammad Hussain Lughmani, Advocate, Supreme Court, and Mr. Imtiaz Muhammad KJian, AOR for Respondents (in CA. 302&303/83) and for Appellants (in CA 304/83). Date of hearing: 27.11.1990 judgment Shafiur Rahman, J.-Leave to appeal was granted in all the three appeals to examine whether the dictum of this Court in Sajawal Shah and another versus Syed Rahim Shah and others (PLD 1975 S.C. 325) was correctly applied to the cases under examination. 2. The facts leading to these appeals are that two separate suits were instituted. Both the suits were by the plaintiffs in representative capacity. The plaintiffs in one suit happened to be Sohbat Khan and others - the respondents in Civil Appeal No.302/1983, while in the other Muhammad Farid Khan and others - the responents in Civil Appeal No.303/1983 and appellants in Civil Appeal No.304/1983. The plaintiffs were, previous to the enforcement of section 4 of the N.W.F.P. Tenancy Act (hereinafter referred to as the Tenancy Act), the occupancy tenants of the land held by the original owners of village Jareed in District Hazara. The plaintiffs fell in section 4(1) of the Tenancy Act and on payment of required amount had become full owners of the land. This happened in 1950. Section 3 of the Tenancy Act also provided that 'no person whether a tenant or not, shall after the commencement of this Act, acquire, have or continue to have a right of occupancy in any land under any enactment, contract, decree or order of any court or officer'. Having become owners, such occupancy tenants instituted suits referred to against the original proprietors (also in representative capacity), claiming the entire amount of compensation to the exclusion of the original proprietors of the trees cut and removed by the Forests Department for which compensation was payable according to law. The suits were tried in different courts and different time frame resulting in the dismissal of one and the decree in the other which was maintained in appeal in the District Court. When the two revisions came up before the High Court, it was confronted with the contradictory decrees, in one suit recognising the right of the occupancy tenants who had become full owners to the entire amount of compensation money for the trees cut or removed while in the other they, were denied any share in the compensation on account of having become Malkan-e-Qabza as distinguished from the original proprietors. It was in this background that keeping in view the decision of this Court in the case of Sajawal KJian, the Court ultimately decided to continue the same entitlement of the occupancy tenants, as they had in the capacity of occupancy tenants under the Wajid-ul-Arz notwithstanding their having become Malkan-e-Qabza. This was done on two assumptions or foundational facts, and these are reproduced as hereunder:- (/) "In both the cases under revision there is no evidence on the record to show as to what kind of trees were felled from the disputed khasras, the 'malkana dues' whereof gave rise to the present controversy between the parties. Mr.Muhammad Hussain Lughmani the learned counsel for the former occupancy tenants, made a statement at the Bar that the disputed trees were of the kind of 'Biar and Diar'. Qazi Abdur Rashid, the learned counsel for the original land owners, made no positive assertion either way. That being so, we would proceed with the assumption that the present controversy between the parties relates to the 'malkana dues' of 'Biar and Diar' kind of trees". (//') "....It would be useful to reproduce in extenso paragraph 3 of the 'Wajib-ul-Arz', on which the case of both the parties rests:- 5. The learned counsel for the original proprietors has referred time and again to the decision of this Court in Sajawal Klian's case to contend that the occupancy tenants had become, after the acquisition of full ownership Malkan-e- Qabza and had ceased to be occupancy tenants. Therefore, they had no interest or title in the mpensation as against the original proprietors and the Court was not justified in not giving effect to that decision of Supreme Court. Independently of it, the learned counsel has contended that as no trace of occupancy was to continue after the occupancy tenants had become full owners, recognition of any right relatable to their previous tenure as such would be against the express language of the law and in violation of it; as according to him, the Wajib-ul-Arz recognises no such right of Malkan-e-Qabza and none should have been given to them. The learned consel for the plaintiffs/original proprietors has also contended that the occupancy tenants having become by operation of statute full owners, cannot(?) claim only to be proprietors and not original proprietors of the village. 6. The learned counsel for the erstwhile occupancy tenants, the plaintiffs in these appeals contended that Wajib-ul-Arz contains, at best, customary rights, and as pointed out by the great Jurist Salmon, all customary rights have to be subordinated to statutory rights. As in the case of occupancy tenants, statute intervened to make them full owners, their status as such should be reflected in all dispensations and in no manner they could be subordinated or considered not equal to the original proprietors of the village. They should, according to him, share like the original proprietors the entire amount of compensation for all trees felled from village property with no distinction whatsoever. According to him, in Sajawal Khan's case the Wajibul An contained no such right of the occupancy tenants as is prescribed in the Wajib-ul-Arz of village Jareed. 7. The entries of the Wajib-ul-Arz get statutory recognition and force on the strength of the definition of 'waste land' contained in clause (o) of Section 2 and sub-section (2) of section 12 of the said Act. Independently of it, the entries of the Wajib-ul-Arz bind the parties and Wajib-ul-Arz has to be treated for the purposes of General Clauses Act (Section 8) as an instrument. Black's Law Dictionary defines 'instrument' as "A written document; a formal or legal document in writing, such as a contract, deed, will, bond, or lease". In the Stamp Act 'instrument' is defined so as to include "every document by which any right or liability is or purports to be reated, transferred, limited, extended, extinguished or recorded". Section 8 of the General Clauses Act 1897 and section 7 of the West Pakistan General Clauses Act 1956 are dentical and the two are reproduced hereunder:- General Clauses Act, 1897. "8. Construction of the references to repealed enactments.-(I) Where this Act, or any Central Act or Regulation made after the 'commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so reenacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted". Note:- "The original section 8 was re-numbered as sub-section (1) of that section and sub-section (2) inserted by the Repealing and Amending Act,1919 (18 of 1919)". West Pakistan General Clauses Act, 1956. "7. Construction of reference to repealed enactments.-(l) Where this Act or any other West Pakistan Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. (2) Where any Central Act or an Act of Parliament repeals and re-enacts, with or without modifications, any provision of a former enactment, then references in any West Pakistan enactment or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so enacted". Note:- "Original Section 7 re-numbered as sub-section (1) and sub-section (2) added by W.P. Act III of 1957". 7. Section 85 of the Tenancy Act deals with repeal and savings and an examination of the long list of tenancy laws repealed,leaves no doubt that the Tenancy Act not only repealed but re-enacted after consolidation, the various tenancy laws under which the occupancy tenancies were recognised. It was clearly a case of repeal, followed by re-enactment. Any reference to the occupancy tenancy in any other earlier law would, therefore, necessarily bring back such occupancy tenants as under the re-enacted law had become owners. The transformation would not on the strength of these provisions of the General Clauses Acts affect their rights as occupancy tenants which were recognised or created by such reference to repealed Act, in the Wajib-ul-Arz and under the said Act. 8. These provisions of the General Clauses Acts came for consideration in the Indian jurisdiction in Moosa Kazmi Vs. KM.Sheriff and another (AIR 1959 Madras 542) and were elucidated as hereunder:- "The rule then is that if the provisions of a statute are incorporated by reference to a second statute and the earlier statute is repealed the second statute would continue to be in force with the incorporated provision of the repealed statute being treated in force as a part of it. But if the earlier statute had not been merely repealed but repealed and reenacted, it is the re-enacted provision that would take the place of the corresponding provision in the repealed enactment, in so far as the incorporation in the second statute is concerned. This is subject of course to a contrary intention being statutorily expressed". 9. The result of the foregoing discussion is that in the matter of distribution of compensation for trees like 'diar' and 'biar', Wajib-ul-Arz being an instrument and entrenched in section 27 (2) and 12(2) of the said Act, acquires statutory strength and efficacy. Notwithstanding the extinction of the occupancy tenancy, on the strength of Section 8 of the General Clauses Act and Section 7 of the West Pakistan General Clauses- Act, reference to the owners who were erstwhile occupancy tenants will be construed as reference to the occupancy tenants who had become owners under the re-enacted Tenancy Act, and on that score full effect shall be given to the Scheme of distribution recognised in the WajibulArz. 10. In the circumstances, none of the appeals has merit. The judgment of the High Court proceeds on the correct lines except that the correct law applicable to the situation was not specifically referred to therein. Hence, all the three appeals are dismissed. The parties are, however, left to bear their own costs. (MBC) Appeals dismissed.

PLJ 1991 SC 134 PLJ 1991 SC 134 [Appellate Jurisdiction] Present: shafiur rahman, S. usman ali shah and ali hussain qazilbash JJ. FAIZ AHMAD and 16 others-Appellants, versus MUHAMMAD SHARIF KHAN alias MISKIN KHAN and 8 others- Respondents. Civil Appeal No.122 of 1984, accepted on 6.12.1990. [From Judgment of Peshawar High Court, Circuit Bench Abbottabad, dated 20.11.1983, passed in W.P. No. 1 of 1979]. N.W.F.P Tenancy Act, 1950 (XXV of 1950)-- —-S.56~Tenants-Ejectment of--Claim for-Commissioner and Board of Revenue having concurrent jurisdiction to revise, whether second revision before Board of Revenue was barred-Question of~Interpretation placed by High Court on analogy of Section 115 of CPC, on provisions of Section 56 of Act has effect of obstructing entrenched power of Board of Revenue regarding superintendence, control and of overseeing functioning of all Revenue Officers and Revenue Courts in matter of land revenue and tenancy-Power under Section 56 of Act is concurrently enjoyed by Board of Revenue and Commissioner, but it is. in respect of authorities subordinate to each one-­ Board of Revenue would be examining in this case, not order of Collector or Assistant Collector but that of Commissioner-Held: Board of Revenue could certainly see whether Commissioner had exercised jurisdiction properly or not- -Held further: Interpretation placed by High Court on analogy of Section 115 CPC and importing limitations therefrom is not justified—Appeal accepted. [Pp.l39&140]A,B& PLD 1983 Peshawar 1 over-ruled. 1985 SCMR 770 distinguished. Khawaja Muhammad Yusuf Saraf, Advocate, Supreme Court, and Mr. Ghulam Dastgir, AOR for Appellants. Mr. Muhammad Hussain Lughmani, Advocate, Supreme Court and Ch. AkhtarAli, AOR for Respondents. Date of hearing: 25.11.1990. judgment Shafiur Rahman, J.--Leave to appeal was granted to examine whether the High Court has correctly interpreted Section 56 of the N.W.F.P. Tenancy Act,1950 (hereinafter referred to as the Act) in a manner to bar a Revision by the Board of Revenue where the Commissioner had exercised his own revisional powers conferred by the same section. 2. The appellants happened to be the landlords of village Balakot, Tehsil and District Mansehra and the respondents their tenants. The appellants through their predecessor sued the respondents in the revenue court seeking their ejectment on the ground of default in the payment of rent. The Assistant Collector 1st Grade by his judgment dated 7.7.1973 upheld their claim and ordered the ejectment of the tenants and passed a decree in respect of the arrears of land revenue. The appeal of the tenants failed before the Collector/Assistant Commissioner, on 21.12.1974. A Revision filed by the tenants before the Additional Commissioner also failed on 23.2.1978. They thereafter filed a Revision Petition against the Order of the Additional Commissioner before the Board of Revenue/Chief Land Commissioner which partly allowed it on 24.7.1978. The Board of Revenue upheld the finding that the tenants were in default but declined to order their ejectment observing as hereunder:- "So far as the ejectment is concerned, though the default on the part of the tenants is there but it is a casual and excusable case and not a chronical one,, as the tenants from the time of their fore fathers have been paying the chakota dues regularly. In the present case, as the land was partly barani and only meant for grazing the cattle when the forefathers of the present tenants toiled on it for years and made it culturable. Now this land has more value and is producing crops and there are valnut trees standing on it. All this improvement has been made by the efforts of the tenants and their forefathers. Therefore, justice demands that they should not be thrown out for the mere non-payment of this nominal amount of chakota of Rs.3/- or so per annum which the petitioners are ready to pay. Thus the decree of ejectment is not justified in the present case specially when in Kaghan valley almost all the brother tenants of the petitioners with such a long duration of tenancy have become owners with the abolition of occupancy Tenancy under Sections 5 & 8 of the Tenancy Act. The default is there, it has been proved as such and the tenant must pay. Therefore, the decree regarding chakota stands and should be executed! The revision is accepted to that extent". The appellants filed a Constitution Petition in the High Court. The main ground taken up in the Constitution Petition was as hereunder:- "That in view of the variation of the language of Section 56 of N.W.F.P. Tenancy Act from the language of Section 84 of Punjab Tenancy Act, it is clear that the power of revision in N.W.F.P. is exercisable in one of the two forums either in Board of Revenue or in the Commissioner. The power of the Commissioner is not only co-existing but is co-extensive too. It is unimaginable in law, that a man should be taxed twice in the same matter or in the same cause of action and the same forum with different consequences". The High Court followed the decision given by it in Fazalur Rehman and 12 others versus Board of Revenue NWFP & 16 others (PLD 1983 Peshawar 1) and held that in view of the different language used in section 56 of the Act as compared to the Punjab Tenancy Act, the powers of the Commissioner and the Board of Revenue were concurrent and co-extensive and, therefore, the exercise of jurisdiction by one exhausted the remedy and no second revision as such could be filed. 3. Khawaja Muhammad Yusuf Saraf, Advocate, the learned counsel for the ppellants contended that though it would be correct to hold that the power of revision is concurrently possessed by the Board of Revenue and the Commissioner under section 56 of the Act, it would be incorrect to assume that the powers are co-extensive. Amplitude of two powers, the one with the Board f Revenue and the other with the Commissioner, is different. The Board of Revenue revises, if at all, the order not of the Revenue Courts subordinate to the Commissioner but of the Commissioner while the Commissioner revises the order of Revenue Courts subordinate to the Commissioner. On the interpretation that the High Court has placed, the exercise of jurisdiction by the Commissioner becomes immune from examination by the Board of Revenue which cuts across the supervisory role of the Board of Revenue and the hierarchy of Revenue Courts, established under the Revenue and the Tenancy Laws. 4. Mr.Muhammad Hussain Lughmani, Advocate, the lea ned counsel for the respondents has, on the other hand, pointed out to the difference in the language of the Punjab Tenancy Act and the Act, in order to establish the difference and has supported the view taken by the Peshawar High Court in its earlier judgment delivered in the case of Fazalur Rehman nd others and followed in the impugned judgm nt. 5. Section 56 of the Act which requires interpretation and examination in this case is reproduced hereunder:- "56. Power to call for, examine and review proceedings of Revenue Officers and Revenue Courts.-(l) The Board of Revenue or the Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him. (2) A Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control. (3) If in any case in which a Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with the opinion on the case for the orders of the Commissioner. (4) If, after examining a record called for by himself under sub-section (1) or submitted to him under sub-section (3), the Commissioner is of opinion that it is inexpedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly. (5) If, after examining the record, the Board of Revenue or the Commissioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with roceedings of an order or decree of a Civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case. (6) Except when the Board of Revenue or the Commissioner fixes under sub­ section (5), a day for hearing the case, no party has any right to be heard before the Board f Revenue or the Commissioner when exercising its or his powers under this section". One feautre to be particularly noticed about this provision is that it confers suomotii jurisdiction on the authorities specified therein of calling for the record, examining it and of passing appropriate orders. It directly confers no right on the party or individual to prefer a Petition seeking the invocation of the power. Nevertheless, being a public power, it could in fact be invoked by a person interested or aggrieved. The second feature is that the power recognises the hierarchy of Revenue Courts administering the Tenancy Law. A reference will be made to other provisions of the Act in order to show how such a hierarchical arrangement is entrenched and made functional by supervision by the higher over the subordinate. Section 47 of the Act provides as hereundcr:- "47. Classes of Revenue Officers.-(I) There shall be the following classes of Revenue Officers, namely.- (a) The Board of Revenue; (flfl) The Commissioner; (b) The Collector; (c) The Assistant Collector of the first grade; and (d) The Collector of the second grade. (2) The Deputy Commissioner of a district shall be the Collector thereof. (3) The Board of Revenue may appoint any Assistant Commissioner, Extra Assistant Commissioner or Tehsildar to be Assistant Collector of the first or of the second grade, as it thinks fit, and any Naib-Tehsildar to be an Assistant Collector of the second grade. (4) Appointments made under sub-section (3) shall be by notification, and may be of a person specially by name or by virtue of his office or of more persons than one by any description sufficient for their identification. (5) Subject to the provisions of this Act the jurisdiction of the Board of Revenue extends to the whole of the North-West Frontier and Commissioners, Collectors and Assistant Collectors to the districts in which they are for the time being employed". Section 50 of the Act provides as hereunder:- "50. Superintendence and control of Revenue Officers and Revenue Courts.- (1) The general superintendence and control over all other Revenue Officers or Revenue Courts, shall be vested in and all such Officers and Courts shall be subordinate to the Board of Revenue. (2) Subject to the general superintendence and control of the Board of Revenue, a Commissioner shall control all other Revenue Officers and Revenue Courts in the division. (3) Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue Officers and Revenue Courts in his district". 6. The Revenue Courts have been established under section 49 of the Act and the first two sub-sections of it are relevant and these are reproduced as h reunder:- "49. Revenue Courts and suits cognizable by them.-(l) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in sub-section (3) orwith respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court . (2) There shall be the same classes of Revenue Courts as of Revenue Officers under this Act, and in the absence of any order of the Provincial Government to the contrary, Revenue Officer of any class having jurisdiction within any local limils under this Act shall be a Revenue Court of the same class having jurisdiction within the same local limits". Finally, we come to section 51 of the Act which is worded somewhat in a similar language as is section 56:- "51. Power to distribute and withdraw and transfer cases.-(l) The Board of Revenue or the Commissioner or Collector may by a written order distribute in such manner as it or he thinks fit, any business cognizable by any Revenue Officer or Revenue Court under his control. (2) The Board of Revenue or the Commissioner or Collector may withdraw any case pending before any Revenue Officer or Revenue Court under his control, and either dispose of it himself, or by written order refer it for disposal to any other Revenue Officer or Revenue Court under his control. (3) An order under sub-section (1) or sub-section (2) shall not empower any Revenue Officer or Revenue Court to exercise any powers or deal with any businesswhich he or it would not he competent to exercise or deal with within the local limits of his or its own jurisdiction". 7. Section 4 of the Punjab Board of Revenue Act, 1957 as well as the provisions of the Act reproduced above clearly establish that the power of the Board of Revenue of superintendence, control and of overseeing the functioning of all Revenue Officers and Revenue Courts in the matter of land revenue and tenancy is well entrenched. The interpretation placed by the High Court on the provisions of Section 56 of the Act has the effect of obstructing this entrenched power inasmuch as the High Court has held the Commissioner's exercise of revisional powers to be immune from examination by the Board of Revenue. This has been done on the analogy of Section 115 of the Code of Civil Procedure where an express legislative provision exists barring the re-examination of the same matter by the High Court which has been examined by the District Judge in Revision. In this law, in the Act, there is no provision barring such an examination. Besides, the revisional power of the High Court had inhibitions, none of which exists in the case of Board of Revenue. To notice only a few, the revisional power of the High Court could not reach a pending proceeding but is limited to a case decided. Further, it is limited to cases which had been decided and in which no appeal lay. The Board of Revenue and the Commissioner have no such constraint in the exercise of this power. The District Court by sub-section (2) of Section 115 of the Code of Civil Procedure was expressed to be exercising the powers of the High Court to the limited extent of deciding a Revision within its jurisdiction. The Commissioner is not stated to be exercising the powers of the Board of Revenue. The power under section 56 of the Act is concurrently enjoyed by the Board of Revenue and the Commissioner but it is in respect of the authorities subordinate to each one; in the case of Commissioner the authorities subordinate to it are different for the purposes of revisional order while they are different for the Board of Revenue. The Board of Revenue would be examining in this case not the Order of the Collector or the Assistant Collector but that of the Commissioner. The Respondents in their Memo, of Petition had sought revision of the Order passed by the Commissioner and not the orders passed by the Assistant Collector or the Collector. In such a situation, the Board of Revenue could certainly see whether the Commissioner had exercised jurisdiction properly or not. If the principle of interpretation adopted by the High Court for section 56 of the Act is adopted, it will lead to great disharmony in the other provisions of the Act, for example section 51 confers in identical language the powers to distribute, withdraw and transfer cases. In a case where the Commissioner has exercised this power, the Board of Revenue would be helpless to exercise its own powers. 8. Not only the language used in the Act does not permit the interpretation placed by the High Court, (on) the analogy of section 115 of the Code of Civil Procedure and importing limitations therefrom is not justified in the case because B of the nature, the amplitude and the scope of powers being different under the two laws. 9. A view contrary to the view taken in this case appears to have been taken in the case of Haji Samad Khan and others versus Khalid Khan and others (1985 S.C.M.R.770). However, the finding in that decision clearly on this point is obit because the decision required and was to be proceeded on the interpretation of revisional power reserved in clause (7) of paragraph 25 of the Land Reforms Regulation and rule 7 of the N.W.F.P. Land Reforms (Procedure for Ejectment Suits) Rules,1975. 10. We, therefore, accept the appeal, set aside the judgment of the High Court and dismiss the Constitution Petition filed by the appellants in the High Court. (MBC) Appeal accepted.

PLJ 1991 SC 140 [Appellate Jurisdiction] PLJ 1991 SC 140 [Appellate Jurisdiction] Present: shafiur rahman, S. usman ali shah and ali hussain qazilbash JJ GOVERNMENT OF THE PUNJAB, THROUGH SECRETARY, SERVICES, PUNJAB , LAHORE-Appellant versus MUHAMMAD AWAIS SHAHID-Respondent Civil Appelas Nos. 779 to-782 of 1984 and 358 of 1990, accepted on 6.12.1990 [From judgments of Punjab Service Tribunal, dated 18.3.1982, passed in Appeal No.105/965 of 1981, dated 12.12.1983, passed in Appeal No. 121/135 of 1983, dated 14.2.1984, passed in Appeal No.170/134 of 1983, dated 3.5.1984, passed in Appeal No.279/391 of 1983, and dated 5.6.1984, passed in Appeal No. 86/58 of 1983 respectively.] Promotion- —Higher National Pay Scales-Grant of-Whether available automatically to senior most under Pay Revision Rules-Question of-It is an admitted fact that higher scale NPS 18 in case of Civil Judges and higher scale NPS 20 in case of District and Sessions Judges, is enjoyed by same post holder of respective category—In other words, there is no higher post to which their appointment takes place on such improvement of status—Even this change of grade or scale of pay for better, would amount to promotion-According to rules, claim made by respondent for higher scale for purposes of selection post, certainly amounts to a claim for promotion-Sub-rule (3) to rule 8 in Punjab Civil Servants Pay Revision Rules, 1977, has no retrospective application—Held: Wherever there is a change of grade or post for better, there is an element of selection involved, that is promotion and it is not earned automatically, but under an order of competent authority to be passed after due consideration of comparative suitability-Appeals accepted. [Pp.l45&146]A,B,C&D Mr. Muhammad Nawaz Abbasi, AA.G, Punjab, and Rao M. Yusuf Klian, AOR for Appellants (in all Appeals). Respondents in person (absent) in C A. 77/84, 780/84 and 358/90. Mr. M.Z. Khalil, AOR (absent) for Respondent (in CA. 781/84). Ch. M. Farooq, Senior Advocate, Supreme Court for Respondent (in CA. 782/84). Date of hearing: 28.11.1990. judgment Shafiur Rahman, J.-Leave to appeal was granted in order to examine the correctness of the view taken by the Punjab Service Tribunal with regard to the grant of enhanced Scale of Pay in the Basic Scales of Pay to Officers who had the fixed percentage of posts of the same category in the higher scale of pay. This entails interpretation of Pay Revision Rules of 1973 and of 1977. All these Appeals have been filed by the Government of the Punjab, and the appellants before the Service Tribunal in these appeals were either Civil Judges or District & Sessions Judges. 2. In Civil Appeal No.779/84, the respondent Mr.Muhammad Awais Shahid joined as Civil Judge on 14.12.1964. His services were dispensed with on 15.4.1967. He was reinstated in service in February, 1975 as a result of the decision by the Service Tribunal dated 2.1.1975, with back benefits. In the seniority list of Civil Judges he appears at serial No.6. 3. In Civil Appeal No.782/1984, the respodent Mr.Mumtaz Hussain Malik was recruited as a Civil Judge on 1.9.1961. His services were dispensed with on 18.8.1964. He was reinstated in service on 4.1.1978 vide Supreme Court's order. By a notification dated 27.1.1983 he was granted NPS-18 which was reserved for fifteen percent of the cadre strength of Civil Judges in NPS-17 from 1.2.1980. He claimed it from 1.3.1972, the date from which the Pay Revision Rules of 1973 took effect. 4. In Civil appeal No.358/1990, the respondent Sagheer Muhammad Khan, joined as Civil Judge on 22.6.1970. He was suspended and adverse remarks were recorded against him. Subsequently, he was reinstated in service. In the notification dated 27.1.1983, allowing NPS-18 to certain Civil Judges, he was excluded though his juniors in seniority were given that scale. He felt aggrieved over it. 5. In Civil Appeal No.780/1984, the respondent Sh.Saeed Ahmad was recruited as Civil Judge on 24.3.1953 and promoted as Additional District & Sessions Judge on .1.1967 and further promoted as District Judge on 2.1.1970. A notification was issued by the Governor on 22.2.1983 whereby certain District Judges who were junior to the respondent in service were given NPS-20 to the exclusion of the respondent. He felt aggrieved over it. 6. In Civil Appeal No.781/1984, the respondent Mr.Masud Ahmad Ansari joined as Civil Judge on 25.5.1954, became Additional District & Sessions Judge on 16.9.1967 and District & Sessions Judge on 1.7.1970. The same order dated 22.2.1983 affected him as he was excluded from the conferment of NPS-20 reserved for a fixed percentage of posts of District and Sessions Judges. 7. Prior to 1972, there existed a selection grade for the Civil Judges as well as for the District and Sessions Judges. When the Punjab (Gazetted) Civil Services Pay Revision Rules of 1973 were enforced, they by rule 12 abolished the selection grade in the words that follow: - "12. Selection Grades.-() There shall be no Selection Grade in the National Pay Scales: Provided that the existing Government servants, who were drawing pay in the existing selection grades on the 22nd October, 1973, shall be allowed the appropriate National Pay Scales, on the basis of the maximum of the selection grade, in accordance with the scheme of replacement of the consolidated pay scales with the National Pay Scales prescribed in Annexure 'A'. (2) Subject to the provisions of sub-rule (3), the existing Government servants who opt for the existing pay scales shall be entitled to the existing selection grades. (3) The number of selection grade posts available for the existing Government servants opting for the existing pay scales shall be worked out in accordance with the percentage in force immediately before the coming into force of these rules, on the basis of the total number of existing Government servants opting for the existing pay scales". 8. In its place a provision was made that 15% o a regular strength of Civil Judges will be in NPS-18. The post of Civil Judges is ordinarily in BPS-17. Similarly, for the District and Sessions Judges, the selection Grade post was abolished and a certain percentage of the post of the District & Sessions Judges was placed in the higher NPS i.e., NPS-20, the post of the District & Sessions Judge being ordinarily in NPS-19. This percentage was subsequently varied but the variation is not material. A question arose whether the higher National Pay Scales were available automatically to the senior-most or any element of selection was involved. The first notification he Government of the Punjab dated 8th of October, 1980 which issued in respect of the Civil Judges in its paragraph 2 recited as hereunder:- "The cases of the following Civil Judges were also considered with the result as under:- 1. Mr^Ali Gul Khan. His case has been deferred till he earns a few clear cut good reports. Mr.Muhammad Akmal Qureshi. He is ignored for NPS-18 due to unsatisfactory record. t is certified that grant of NPS-18 to a specified number of Civil Judges in NPS-1 is not promotion and the case does not fall within the purview of rovincial Selection Board". The other impugned notification of 27.1.1983 in respect of Civil Judges also in its paragraph^, 3 & 4 recited as hereunder:- "2. The cases of Mr.Muhammad Siddique Javed Ch., Mr.Muhammad Awais Shahid and Mr.Vaqoob Ali Khan were deferred and vacancies respectively w.e.f. 1.12.1980, 1.12.1980 and 1.7.1981 have been reserved for them. 3. The cases of the following Civil Judges were also considered and they have been ignored for grant of NPS-18:- 1. Mr.Razi Abbas Bokhari. 2. Mr.Saeed Ifzaal Malik. 3. Mr.Muhammad Akmal Qureshi. 4. Mr.Sagheer Muhammad Khan. 4. It is certified that grant of NPS-18 to a specified number of Civil Judges in Grade-17 is not promotion and the case does not fall within the purview of Provincial Selection Board". 9. The notification in respect of District Judges which is of 22.2.1983 made no such reservation or remark as has been reproduced from the other two notifications. The Tribunal in one of its earlier judgment dated 18.3.1982 dealing with the case of Mr. Mohammad Awais Shahid, Civil Judge, allowed the claim of automatic grant of the higher National Pay Scale against the percentage quota on the following reasoning:— "The perusal of the impugned notification itself has mentioned in para 3 that grant of NPS 18 to a specific number of Civil Judges in NSP 18 was not a promotion and therefore, their case would not fall within the purview of the Member Selection Board. In view of this observation in the impugned notification the argument of the learned counsel for the appellant would prevail that the grant of NPS 18 from NPS 17 would not be a promotion for the 15% of the regular strength of the Civil Judges as given in the Pay Revision (Gazetted) Rules 1977. Similarly when we peruse Section 16 of the Punjab Civil Servants Act of 1974 we find that the appellant would be entitled to NPS 18 which stands attached to his post. The post which appellant is now holding automatically confers upon him NPS 18 and the criteria of the performance would be irrelevant to such grant. If his superiors are in any way dis-satislled with his work or considered him in-experienced or in any manner unsuitable for the post which he is holding the correct procedure would be to proceed against him under E&D Rules and to take action so prescribed. We are of the considered opinion that scale of NPS 18 is a vested right of the appellant in accordance with ihc terms and conditions of the service and he cannot be deprived of the same when he is working along with others at the said post. In this matter our own judgment in Sardar Ali Gul Khan vs. Government of the Punjab in Appeal No. 652/692 of 1980 decided on 15.2.1981 is fully applicable to the case of the present appellant. Therefore, following our earlier judgment as cited above and keeping into consideration section 16 of the Punjab Civil Servants Act read with the Schedule 2 Punjab (Gazetted) Civil Servants Pay Revision Rules, 1977 we direct the respondent to treat the appellant in NFS 18 from the date his next juniors were so inducted." In the light of it, the calim of the respondents for automatic grant of Selection Grade on the strength of seniority was allowed. Hence, this appeal. 11. Mr. Muhammad Nawaz Abbasi, the learned Assistant-Advocate-General has drawn our attention to the fact that higher scales of pay to these senior Judicial Officers were being granted on the recommendation of the High Court and the nature of service rendered was one of the criteria for the grant of such a higher scale as was claimed by the respondents. 12. Ch. Muham ad Farooq, Advocate, the learned counsel representing one of the respondents has relied moie on the statement of the Government itself that the-grant of the higher National Pay Scaje does not involve promotion. The specific legal questions raised in the case have not been attended to in the arguments addressed at the bar. 13. Mr. Mumtaz ussain Malik (respondent in Civil Appeal No. 782/84) has claimed the retrospective operation as from, 1.3.1972 of the notification dated 10.6.1976 whereby "15% of the regular strength of Civil Judges" was placed in NPS-18. This would be the effect on the express words of the Notification dated 10.6.1976 because it is an addition to the Schedule and the last remark provides "this will take effect from 1.3.1972". To that extent the claim of Mr. Mumtaz Hussain Malik is tenable in the light of our decision in West Pakistan Government through Chief Secretary and another versus S. Abdul KJialiq, Accountant (PLD 1970 S.C. 247). 14. In Province of the Punjab through Collector Dera Ghazi Klian versus Muhammad Siddiq, Addl. Deputy Commissioner (General) Dera Ghazi Khan (Civil Appeal No.ll of 1978 decided on 9.8.1982), in an opinion recorded, the concept of promotion viz-a-viz Selection Grade was examined in the following words:-- "The words promotion has a fixed meanig. It has been defined in chapter XX (O & M Establishment Manual Vol.11) as hereundcr:-- "In precise official terminology, promotion is defined as the advancement of an official from a lower to a higher post or grade against a vacnacy specifically reserved for such advancement under the relevant Recruitment Rules." 15. 'Grade' has been defined in rule 2 (l)(i) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, as hereunder:- "'Grade' has the same meaning as in the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974" In Rule 2(c) of the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974, 'Grade' has been defined as hereunder:— "'Grade' means 'national scale of pay' in which a number of posts, in a functional unit, carrying same duties and responsibilities is placed: Provided that in the case of a person who does not opt for the national scales of pay or the post which has not been placed in the national scales of pay, 'National Scale of Pay' means the presumptive national scale of pay corresponding to the existing scale of pay in which such person, or as the case may be, the post would have been placed but for the aforesaid reasons: Provided further that in case of a person whose pay has been fixed in the national scale of pay corresponding to the pre-national scales selection grades or who moves over to the next higher national scale of pay without change in the nature of duty and assumption of higher responsibilities or under prescribed conditions after reaching the maximum of the lower national scale of pay, 'national scale of pay' meant the lowest national scale of pay admissible for his post." 16. It is an admitted fact that the higher scale NPS-18 in the case of Civil Judges, and the higher scale NPS-20 in the case of District & Sessions Judges, is enjoyed by the same post holder of the respective category. In other words, there is no higher post to which their appointment takes place on such improvement in the status. Nevertheless, there is an improvement in the Grade, as the Civil Judge from NPS-17 goes to NPS-18 and the District & Sessions Judge from NPS-19 to NPS-20. On the strength of definition of the word 'promotion' as provided in the official documents, even this change of grade or sacle of pay for the better would amount to promotion. This fact that this change of scale is promotion, is also clear from the Pay Revision Rules of 1973 (Rule 9) which places such category of improvement under the head 'Promotion' and deals with it in the following words:— "9. Fixation of pay on promotion.-- (1) Subject to t e provisions of Rule 10, in the case of promotion from a lower to a higher post, where the stage in the National ay Scale of the higher post, next above the substantive pay of the Government servant concerned in the National Pay Scale of the lower post, gives a pay increase equal to, or less than a full increment in the pay scale of the higher post, the initial pay in the National Pay Scale of the higher post will be fixed after allowing a premature increment in the National Pay Scale of the higher post: Provided that a Government servant who is promoted from National Pay Scale No. 17 to National Pay Scale No. 18 after the expiry of a period of three years from the date of reaching the maximum of National Pay Scale No. 17, shall be allowed a minimum benefit equal to two increments in National Pay Scale No. 18: Provided further that when a Government servant in National Pay Scale No. 17 is allowed National Pay Scale No. 18 on account of his coming within the orbit of a minimum benefit equal to one full increment in National Pay Scale No. 18: (2) If, by virtue of the benefit admissible under Rule 8, a Government servant is already drawing pay in the National Pay Scale of the higherpost at the time of his promotion, he will be allowed one advance increment in that scale with effect from the date of promotion. Provided that if the promotion is from a post carrying National Pay Scale No. 17 to a post carrying National Pay Scale No. 18, the Government servant shall be allowed two advance increments in the higher scale. (3) All existing rules or orders allowing minimum benefit to the Government servants on promotion from a lower to a higher post shall cease to be applicable to the Government servants drawing pay in National Pay Scales with effect from the date he starts drawing pay in the National Pay Scales." The higher scale for the purposes of selection post may not be a matter reserved for Selection Board but for the purposes of Rules as contained and referred to above, the claim made by the respondent certainly amounts to a claim for promotion. The Government itself reversed its own point of view when in November, 1984 when it added sub-rule (3) to rule 8 in the Punjab Civil Servants Pay Revision Rules, 1977, in the following words:- "(3) In a case where for the same or similar posts, apart from the ordinary pay scale, a higher pay scale has been provided for a percentage of the said posts, the grant of the said higher pay scale shall be deemed to be a promotion on seniority-cum-fitness> basis and for allowing such higher pay scale, the procedure prescribed for promotion in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 shall be followed". 18. If it was a substantive rule, certainly, it would have no retrospective application; but as we have noticed, it has always been the rule and even if this provision did not exist, the interpretation would be no different. 19 In the circumstances, all the appeals are allowed. The decision of the Service Tribunal is set aside and it is held under the existing rules consistently practiced that wherever there is a change of grade or post tor the better, there is an element of selection involved thai is promotion and it is not earned automatically, but under an Order of the competent authority to be passed after due consideration on the comparative suitability and the entitlement of those incompetent. Hence, the service appeals filed by the respondents before the Service Tribunal are dismissed with no order as to costs. (MBC) Appeals accepted.

PLJ 1991 SC 152 [Appellate Jurisdiction] PLJ 1991 SC 152 [Appellate Jurisdiction] Present: SllAFIUR RAHMAN, S. LJSMANA LI SHAH AND ALI HUSSAIN qazilbashjj. MUHAMMAD NOOR and anothcr-Appellants Versus MEMBER-l, BOARD OF REVENUE, BALUCHISTAN and others-­ Respondents C'ivil Appeal No.33-Q of 1988, accepted on 23.12.1990. |From judgment of High Court of Baluchistan, Ouetta, dated 12.4.1988, passed in C.P. No.59 of 1988.] Pakistan Penal Code, 1860 (XLV of 1860)-- —S.302 read with Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968), Section ll(3)--Murder~Offence of-Conviction for-Challenge to- Whether Tribunals and igh Court were justified in convicting appellants-- Question of—Appellants were convicted on three types of evidence, namely (1) cxisience of enmity between parties, (2) bscondance of appellants, and (3) fathers of appellants attempted to compromise matter through compensation- It can hardly be said that motive/enmity or matter of their bscondance have any value at all so long as direct evidence is not forthcoming-Held: Decision taken by Tribunals and High Court in convicting appellants on basis of admission/compromise made by their fathers, is against all canons of justice and fair play-Held further: It is a case of no evidence-Appeal accepted and appellants acquitted. |Pp.l53&154]A,B,C&D Mr. Muhammad Munir Peracha. Advocate, Supreme Court and Mr. Manzoor flalii, AOR for appellants. Mr. S-4.M. Quadri, AOR for Respondents. Date of hearing: 25.11.1990. judgment AH Hussain Qazilbasli, J.-This appeal by leave arises from the judgment of a learned Division Bench of the Baluchistan High Court dated 12.4.1988. 2. The facts very briefly are that on the report dated 20.9.1986 that one Muhammad Akbar was missing, Naib Tehsildar Kirdgaab started investigation. During the process the dead body of Muhammad Akbar in a decomposed stage was recovered under the bushes in the mountains. During further probe, Dad Au brother of the deceased implicated the appellants on a suspicion of previous enmity. The case was ultimately referred to the Tribunal under Sections 5 and 6 of Ordinance II of 1968. On the basis of three pieces of circumstantial evidence, namely enmity, abscondence of the appellants and the fact that the fathers of the appellants had tried to compromise on payment of blood-money, reported the findings of guilt of the appellants to the Deputy Commissioner Kalat. After considering the findings of the Tribunal, the Deputy Commissioner as per order dated 2.7.1987 convicted both the appellants under Section 302/34 PPC read with Section 11(3) of Ordinance II of 1968 and sentenced them to 14 years R.I. each. The appeal filed by the appellants and revision were dismissed by the Commissioner Kalat and Member Board of Revenue Baluchistan, Quetta on 13.9.1987 and 29.3.1988, respectively. Their writ petition was also dismissed. 3. Leave in this case was granted to examine the legality and propriety of the orders of the Tribunals and the High Court. 4. We have heard the learned counsel for the parties. 5. As per the facts narrated in para-2 of this judgment, no ocular evidence is available in this case. The appellants have been convicted on the basis of the following hree types of evidence:- 1. existence of enmity between the parties; 2. abscondence of the appellants; and 3. that the fathers of the appellants had admitted the guilt of their sons, compromised the matter on the payment of a sum of Rs.80,000/- but then resiled from the same. Now the question to be considered is whether the Tribunals and the High Court were justified in convicting the appellants on the basis of such evidence on a capital charge. 6. The answer obviously is in the negative. We say so because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever convincing it may be, can be relied upon or can form the basis of conviction. The existence of motive/enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstance it can be taken as an evidence. Further, motive/enmity is a double edged weapon. Offence may be perpeterated because of the existence of motive/enmity and it can also be a basis to a false charge. The same is the case with abscondence. It is true that people do run away after committing the crime but it is equally true that people also scare themselves because of a false charge, the fear and high-handedness of the police. In this view of the matter it can hardly be said that motive/enmity or the matter of their abscondence has any value at all so long as direct evidence is not forth­ coming. 7. As for the third piece of evidence on which conviction has been made, the less said the better. In this case the admission of the fathers of the appellants as to the commission of crime by the appellants has been taken as confession made by the appellants and thus convicted them as such. The adoption of such a procedure in the criminal trial is beyond our comprehension. In the matters of the trial of an accused person the only person who can make an admission of the commission of crime or enter into a compromise is the accused himself. Thus any admission made or compromise entered into by the fathers of the appellants is absolutely meaningless and therefore no conviction can be based on such compromise; The decision thus taken by the Tribunals and the High Court in convicting the appellants on the basis of mission/compromise made by the fathers of the appellants is against all canons of justice and fair play. The same is, therefore, discarded. 8. The learned Judges of the High Court have also refused to examine the case in view of the judgment of this Court reported in PLD 1974 S.C. 139. With all respects we think that the law laid down in the reported authority has been misapplied in this case inasmuch as the decisions made by Tribunals are not supported by any evidence at all. It being a case of no evidence, the High Court was bound to examine the legality and propriety of the decision made by the lower forums. 9. In so far as applicability of the Qanun-e-Shahadat in proceedings under Ordinance before the Tribunal and authorities is concerned, this has been considered by a learned Division Bench of the Baluchistan High Court in the case of Nazar Muhammad and another versus Abdul Ghafoor and others reported in PLD 1987 Quetta 141 at length. After dealing with the above question in the light of Section 8 of the General Clauses Act 1897 corresponding to Section 5 of the General Clauses Act (Act 6 of 1956), the learned Judges in a well considered judgment held: "From the above discussion we are inclined to hold that the provisions of Qanun-e-Shahadat shall apply to. procedings under this Ordinance. Section 3(2) of the Ordinance shall have no effect to the applicability of provisions of Qanun-e-Shahadat to proceedings under the Ordinance."We too have considered this question. No material has been brought before us to reach a conclusion other than the one arrived at in the reported case. We, therefore, hold that Qanun-e-Shahadat Order 1984 is fully applicable in the case before the Tribunals and authorities to proceedings under Ordinance II of 1968. ( 10. The view that we take in the matter is that it is a case of no evidence. We, therefore, accept this appeal and acquit the appellants. They should be set at liberty if not required in any other case. (MBC) Appeal accepted.

PLJ 1991 SC 154 PLJ 1991 SC 154 [Appellate Jurisdiction] Present: DR. nasim HASAN shah AND RUSTAM S. SlDHWA, JJ GHULAM MUHAMMAD-Appellant versus AHMAD KHAN and another-Respondents Civil Appeals Nos. 274 and 275 of 1978, accepted on 2.2.1991. [On appeal from judgment dated 24.3.1975, of Lahore High Court, in Writ Petition Nos. 1409/R and 1410/R of 1975]. (i) Displaced Persons (Land Settlement) Act, 1958 (XXVIII ofl958)-- —S.10--Jammu and Kashmir refugees—Temporary allotment of land to— Cancellation of-Challenge to-It is only where any person who has obtained allotment by means of fraud and alse representation that such an allotment becomes liable to cancellation under Section 10-Held: Where land granted to any person is not in nature of an "allotment" as it is understood n Act, provisions of Section 10 would not be attracted. [P.157JA (ii) Displaced Persons (Land Settlement) Act, 1958 (XXVIll of 1958)-- —Ss. 10 & 11 read with Section 14 (l-A)--Jammu and Kashmir refugees- Temporary allotment of land to—Cancellation of—Challenge to—Under Section 14 (1-A) of Act, it is only where any person has furnished information about bogus and fraudulent allotment of land, that such land can be resumed-Where land has not been allotted under Act or any Rehabilitation Scheme, question of resumption of land granted to person ex-gralia, would not arise—Held: Nirther Chief Settlement Commissioner nor his delegate had any jurisdiction to cancel land and allot it to informant-Appeal accepted. [P.159]B,C&D PLD 1972 Lahore 880 and 1989 SCMR 323 ret'. Mr. S.M. Tayyab, Advocate, Supreme Court, instructed by Ch. Mchdi KJian Melitab, AOR for appellants (in both appeals). Ch. Muhammad Abdullah, Advocate, Supreme Court, instructed by Rana M.A. Qadri, A.O.R. for Respondent No. 1 (in both appeals) Respondent No.2: Expartc (in both appeals). Date of hearing: 20.1.1991. judgment Nasim Hasan Shah, J.—These appeals, by leave of this Court, are directed against the dismissal by the Lahore High Court of appellants' writ petitions.As the appeals arc directed against a consolidated order dismissing the two writ petitions filed by the respective applellants herein, in the High Court at Lahore, they can be conveniently disposed of together.Briefly, the relevant facts are that Ghulam Muhammad appellant (in C.A.No. 274/78) is the son while Budha appellant (in C.A.No.275/78) is his father (now dead £ represented by his legal representatives). Evacuee lands measuring 47 kanals 10 marlas and 67 kanal 14 marlas situated in Chak Uggo, Tchsil Daska, District Sialkot, were temporarily allotted to Ghulam Mohammad and his father Budha respectively as Jammu & Kashmir refugees. But on the 15th February,1974, Ahmad Khan respondent filed separate applications against them under Sections 10 & 11 of the Displaced Persons (Land Settlement) Act, 1958. It was contended that the two appellants were not Jammu & Kashmir refugees and belonged to village Chaprar,Tehsil and District Sialkot. As such, they were the local residents of Pakistan not eligible for the allotment of the evacuee lands to them. After the necessary enquiry on the 20lh of November, 1975, respondent No. 2, the Additional Deputy Commissioner (C), Assistant Settlement Commissioner Land with delegated powers of the Chief Settlement Commissioner by his consolidated order accepted the two petitions before him and cancelled the allotments of the lands n dispute held by the respective appellants. He was, interalia, impressed by the fact that in a copy of the relevant jamabandi for the year 1944-45 relating to the estate of Chaprar, Tehsil and District Sialkot, Budha appellant was entered as a mortgagee in cultivating possession of some lands. Moreover, according to the copies of the extracts from the birth registers Imam Din father of Budha appellant and Ghulam Muhammad appellant son of Budha son of Imam Din were born in village Chaprar. In rebuttal, the two appellants pleaded that they had migrated to Jammu and Kashmir State about 10 years before the Independence and had started living there permanently and thereafter came back to Pakistan only as refugees in the disturbances attendent on the partition of the Sub-Continent. But they failed to substantiate this plea to the satisfaction of respondent N.o.2. In these circumstances, the two appellants filed their separate writ petitions challenging the validity of the respective orders passed by respondent No.2 cancelling the lands in dispute from their names. But a learned Judge of the Lahore High Court at Lahore on the 24th March, 1976 dismissed the writ petition in limine by a single order. He refused to interfere in writ jurisdiction with findings of fact recorded by respondent No.2 on the evidence before him. Hence these appeals. The learned counsel for the appellants in support of these appeals has contended before us that in terms of para 4-A, Part of the Rehabilitation Scheme, the lands in dispute allotted temporarily to the appellants as Jammu and Kashmir refugees were expressly excluded from the operation of that Scheme. He further submits that the lands in dispute were allotted to the respective appellants on purely temporary basis for maintenance only and not in lieu of any claim verified under the law. As such, there was no 'allotment' of these lands within the contemplation of the definition of the term contained in Section 2(1) of the Displaced Persons (Land Settlement) Act, 1958. This being the case, therefore, the provisions of Sections 10 & 11 were not attracted to the facts and circumstances of the case. In brief his submission is that the delegate of the Chief Settlement Commissioner did not have (he jurisdiction to entertain the petition for cancellation of the land held by the Jammu & Kashmir refugees for maintenance only. Hence, the impugned orders passed by the Settlement authorities cancelling the land in dispute are without lawful authority and of no legal effect. The learned counsel for the contesting respondents Ch.Muhammad Abdullah, on the other hand, has submitted that the Chief Settlement Commissioner had the powers under Section 11 of the Displaced Persons (Land Settlement) Act to cancel and resume the land who (?) were not allottees but occupying the land in an unauthorised manner and, in this connection, he relied on a judgment of the Lahore High Court in the case of Pakistan Tenneries Lid. Vs. Hidayat Ullah (PLD 1972 Lahore 880). For a proper appreciation of the contention of the two parties it should be borne in mind that in the matter of allotments to refugees from Jammu & Kashmir the approach followed was not the same as adopted in making allotments to refugees from other parts of India. Here the families migrating from Jammu & Kashmir were, in the first instance, given free rations on ration cards issued to them as the expectation was that occupied Jammu & Kashmir would soon be liberated and these refugees would be returning to their home land as soon as the situation normalised. However, as this expectation was not being fulfilled it was decided to make temporary allotments of land to them towards subsistence (a/'/i) in lieu of the free rations being drawn by them. With the passage of time and the prospect of Jammu & Kashmir refugees returning to their home-land becoming more & more remote, the land temporarily allotted to the ration card holder was sold by the Chief Settlement Commissioner to the Ministry of Kashmir Affairs for utilisation and satisfaction of the claims of Jammu & Kashmir refugees, who had abandoned their land in the occupied territories. In the meanwhile, Para 4-A was inserted in the Rehabilitation Settlement Scheme (Part-I) clause (tv) whereof providing that the land allotted on temporary basis to Jammu & Kashmir refugees was not allotable under the Rehabilitation & Settlement Scheme but was to remain excluded from the said Scheme [clause (ix) of Para 4-A]. It is on the basis of this provision that the learned counsel for the appellants has contended that the land in dispute not being allotable was not subject to Sections 10 & 11 of the Act, which was attracted for cancellation of "allotments" alone. It may here also be pointed out that the term "allotment" is defined in Sub­section (1) of Section 2 of the Displaced Persons (Land Settlement) Act, 1958 as follows: 'Allotment means an allotment of Agricultural Land made to a displaced person under this Act or under any Scheme, in lieu of any claim registered and verified .......... " This shows that only such allotments which have been made hz lieu of any claim registered and verified come within the purview of the definition of allotment under Sub-section (1) of Sub-section (2). Now Section 10 of the Land Settlement Act provides: "If the Chief Settlement Commissioner is satisfied that an allotment has been obtained by any person by means of fruad or false representation then without prejudice to any other penally to which such person may be liable, the Chief Settlement Commissioner may pass an order cancelling the allotment, or reducing the area of the land allotted or such other order as he may deem fit". Thus, it is only where any person who has obtained allotment by means of fraud and false representation that such an allotment becomes liable to cancellation under Section 10. Obviously where the land granted to any person is not in the nature of an "allotment", as the said term is understood in the Displaced Persons (Land Settlement) Act, the provisions of Section 10 would not be attracted. Coming to Section 11 on which the learned counsel for the respondents has mostly relied, it lays down: "(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, but subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, may, for easons to be recorded in writing, cancel or terminate any allotment or lease made under a Scheme or under this ct,or amend or vary the terms of any such allotment or lease (2) If any allottee, lessee, holder or occupant of any land acquired under this Act by reason of lack of a valid allotment order or lease or on account of an order made under Subsection (1) is not, or ceases to be, entitled to the possession of such land, he shall, when so required by the Chief Settlement Commissioner, surrender, the possession thereof to the Chief Settlement Commissioner in this behalf. According to the learned counsel for the respondents Sub-section (2) has a much wider scope than Section 10 because herein where any allottee, lessee, holder or occupant of any land acquired under this Act is found to be disentitled to the possession of such land occupied by him, such land can be resumed by the Chief Settlement Commissioner. In support of this submission reliance is placed on the observations occurring in the judgment of the Lahore High Court in Pakistan Tanneries Ltd. Vs. Sardar Hidayat Ullah Mokal & others (PLD 1972 Lahore 880) where Sub-section (2) of Section 11 has been found to be wider in scope than Sub-section (1) of Section 11 and held also to cover the cases of unauthorised occupants". The contention is that as the appellants were found not to be refugees from Jammu & Kashmir they were neither entitled to free rations nor to be given temporary allotment of land towards subsistence and. therefore, the allotment made to them under the temporary permit issued in their favour on 17.9.1951 could be resumed under Sub-section (2) of Section 11. An examination of the judgment in the case of Pakistan Tanneries Ltd. (PLD 1972 Lahore 880) does not appear to be apposite in the circumstances of the case in hand because it does not deal with the question of land given under temporary permits to persons claiming to be refugees from Jammu & Kashmir, but to land held by some different category of persons.Be that as it may, the matter is put beyond dispute by the provisions of Sub­ section (1-A) to Section 14 introduced by the Displaced Persons (Land Settlement) (Ammendmenl) Ordinance 1974 (Ordinance VI of 1974) which provides: "(2) for Sub-section (1-A) the following shall be substituted, namely :- "(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973) any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be cntitled- (a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of such other land available for allotment in the same Province as he may choose; and Limitation Act, 1908 (IX of 1908)-- —-S.12 read with High Court Rules and Orders, Vol. I, Chapter XIV-D, Para 2 (//) (J)--Appeal--Delay in filing of-Whether time between completion of copy and its delivery, is "time requiste"—Question of—Where rules of Court or Copying Branch provide that a date shall be communicated to applicant when certified copy will be ready, "time requisite" for obtaining certified copy would be time which is taken between date of application and last date communicated by official of Copying Branch for taking delivery-Rule that sufficient ground, should be shown for securing condonation, stands established and even where "time requisite" is sought to be stretched, sufficient grounds have to be shown to justify each day's delay in order to such condonation of delay—In this case, appellant did not establish before lower appellate court that he was given wrong information about date on which copy would be ready—Held: Appellant could not make out any case for exclusion of lime spent between completion and delivery of copy—Held further: Appellant's appeal was rightly dismissed as time barred by Additional District Judge. [Pp.l62.163&164]A,B,C,D&E 1975 SCMR 157, PLD 1984 SC 208, PLD 1960 Lah.443, PLD 1968 Lah. 1205, PLD 1973 SC 222, 1974 SCMR 33, PLD 1985 SC 324, 1988 SCMR 1256 and PLJ 1988 SC 144 rel. Mr. M Maqbul Sadiq, Advocate, Supreme Court, and Mr. S. Inavat Hussain, AOR for Appellant. Ch. Muhammad Aslam, AOR for Respondent. Date of hearing: 19,1.1991. judgment Rustam S. Sidhwa, J.—This is an appeal by the Cantonment Board, Kharian Cantt: appellant, against the decision of a learned single Judge of the Lahore High Court dated 5.5.1987, dismissing its revision petition. 2. The brief facts of the case are that Muhammad Shafi, respondent, was employed as a clerk with the Cantonment Board, Kharian, District Gujrat, appellant, when he was removed from service. He challenged the order passed in this behalf, by means of a suit, which was decreed on 28.10.1974. On 29.10.1974 the appellant applied for the certified copy of the judgment and decree of the trial Court. It appears that the said certified copies were ready on 27.2.1975, but delivery thereof was not taken until 16.5.1975. On 9.6.1975 the appellant filed its appeal before the District Judge, Gujrat, but the same was dismissed on 10.6.1979 on the ground of limitation. Feeling aggrieved by the appellate judgment, the appellant filed a revision petition in the High Court, which was also dismissed on 5.5.1987. Being aggrieved by the said judgment, the appellant petitioned this Court for leave to appeal, which was granted to consider: First, whether the days spent between the date of the preparation of the copies of the impugned judgment and decree and the date of their delivery, were to be necessarily treated as subject of condonation under Section 5 of the Limitation Act or that of exclusion as of right, under Section 12 thereof. Second, as to what was absolutely essential for a party to establish to seek either of them. And thirdly, whether in the instant case, the appeal should have been dismissed as time barred or further enquiry should have been held under Section 3 of the Limitation Act. 3. On behalf of the appellant it is submitted that when the application for obtaining the certified copies of the judgment and decree was filed on 29.10.1974, no date for the delivery of the said copies was given by the Copying Branch on receipt of the application for supply of the said copies. It is submitted that the official concerned of the Cantt Board deputed to collect the copies had been visiting the Copying Branch, but neither any specific date nor any intimation was given to him for collecting the copies. It is submitted that the record maintained by the Canlt Board also indicated that the Deputy Commissioner had also been approached, due to delay in the preparation of the copies. It is submitted that the copies were made available by the Copying Branch on 16.5.1975, but the same indicated the dale of preparation as 27.2.1975. It is contended that alter completing the necessary lormalilies and seeking Ihe necessary instructions, the appeal was filed by the appellant before the learned District Judge, (Jujrat, on 9.6.1975. At the hearing of the appeal the counsel for the appellant attempted to meet the objection of limitation by citing Muhammad Afzal Klian Lodhi Vs. Islamic Republic of Pakistan (PLD 1968 Lah. 1205), but the learned appellate Court dismissed the appeal as barred by time on 10.6.1979. It is further contended that the appellant preferred a revision petition before the Lahore High Court, where it was averred that the Copying Branch of the trial Court having not given any specific date for preparation or collection of the copies, the time taken from the date of preparation till delivery was "time requisite" within the meaning of Section 12 of the Limitation Act, 1908, and hence the appeal was within time. An affidavit of the Tax Superintendent of the Cantt: Board was also filed in support of the revision peititon. In this connection Halim All Vs. Mst.Zulekha Bibi and others (PLD 1964 (W.P) Kar. 339), Syed Jalilur Rchman and others Vs. Msl.Rashida Begum and others (PLD 1976 Kar.105) and Fateh Muhammad and others Vs. Malik Qadir Bakhs/i (1975 S.C.M.R.157) are referred. 4. On behalf of the respondent it is submitted that the appellant neither explained before the first appellate Court the reasons for the delay in the lime taken between the date of preparation of the certified copies and the date of their receipt, nor filed any application for condonation of delay under Section 5 of the Limitation Act and therefore the judgments of all the lower Courts is (?) legal and proper and the present appeal should be dismissed. 5. We have heard the arguments of the learned counsel for the appellant and l-he respondent and have perused the record. When the appeal was filed by the-appellant before the District Judge, Gujrat, no application was made for the condonation of delay under Section 5 of the Limitation Act or any cause shown why the certified copies were not received on 27.2.1975, when they were ready, or why they were received so late as 16.5.1975. 6. As held by this Court in Fateh Muhammad Vs. Malik Qadir Baklish (1975 S.C.M.R.157) and'Afa. Jamela Khatoon Vs. Mst. Tajunnisa (PLD 1984 S.C.208), "lime requisite" for obtaining certified copies of the necessary documents required to be filed with an appeal is that consumed between the date the application for certified copies is made and the date the same are ready for delivery by the Copying Branch. 7. Where the rules of the Court or Copying Branch provide that a date shall be communicated to the applicant when the certified copy will be ready, the "time requisite" for obtaining the certified copy, which can be excluded under Section 12 of the Limitation Act, would be the time which is taken between the date of application and the last date which is communicated to the applicant by the official of the Copying Branch for taking delivery of the certified copy. The Lahore High Court Rules and Orders, Vol.1, Chapter XIV-D, Para-2, Clause (/('), sub-clause (d), provided that "the date on which a copy is ready for delivery will be deemed, for the purpose of such calculation, to be the day on which it is given". This Sub-clause (d) was replaced by a Correction Pamphlet No.39 dated 3.6.1959, which was later replaced by Correction Pamphlet No.41 dated 3.9.1960, which reads as follows:- "Applicants for copies shall be given a date on which delivery of the copy is lo be taken. If the copy is not then completed, such date shall be extended from time to time, under intimation to the applicant, until the copy is ready for delivery. The final date so intimated shall, for the purpose of the calculation required by this rule, be deemed to be the day on which the copy is given". In these circumstances, where a number of dates are given to the applicant for taking delivery of the certified copy by the Copying Branch, 'time requisite" could be calculated upto this last date, if this be later than that on which the certified copy was ready for delivery. 8. In Gul Muhammad Vs. Allah Dilta (PLD 1960 Lah.443), the Laho e High Court held that the "time requisite" could be extended if further delay took place by reason of the carelessness of the Copying Branch in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. The Court treated the Correction Pamphlet of 3.6.1959 as containing an implied obligation on the part of the Copying Branch to inform the applicant of the ate of delivery of the certified copy and as evidence of a general feeling that it would be unreasonable for an applicant to call for a copy morning and evening every day, so as o ascertain whether it was ready. his rule was followed in Muhammad Afzal Vs. Islamic Republic of Pakistan (PLD 1968 Lah.1205) and West Pakistan Industrial Development Coiporation Vs. Aziz Qweshi (PLD 1973 S.C.222), but was not noted in Patch Muhammad Vs. Malik Qadir Bakhsh (1975 S.C.M.R.157), which was also a Punjab case, where it was held that the lime between the date on which the copy was ready for delivery and the date on which the applicant chose to take delivery thereof, was not a portion of the "time requisite" for obtaining the same. In this case too it was pleaded that the petitioner was not informed of the date when the copy would be ready, but the Supreme Court held, following two Privy Council decisions, that even during the interval between the date of application for supply of copy and the date when it was ready for delivery, due diligence was required on the part of the applicant and no delay unless such as was caused by circumstances over which he had no control and (?) which he could not by due diligence have avoided, could form part of the "lime requisite" for obtaining the copy. In the last two cases the Supreme Court held that each days delay had to be satisfactorily explained and where it was so, the same could be condoned. The principle stated in Patch Muhammad's case was followed in MstJameela Khaloon Vs. A/.s7. Tajimnisa (PLD 1984 S.C.208). 9. Following the rule slated in the West Pakistan Industrial Development Corporation's case and Fateh Muhammad's case, the rule that sufficient grounds should be shown in the case for securing condonation now stands almost established and even where "time requisite" is sought lo be stretched, sufficient grounds have lo be salisfactorily shown to justify each day's delay in order to seek condonation of delay. In this connection Syed Faiz All SlwJi Vs. Chief Administrator of Auqaf (1914 S.C.M.R.33 = PLD 1974 S.C.ll),Rahim Bakhsh Vs. Mst.Pothani (PLD 1985 S.C.324), Ahmad Nawaz Vs. Muhammad Ayub (PLJ 1988 S.C.144) and Fazal Rahman Vs. Karim Gill (1988 S.C.M.R.1256) may also be referred. 10. The position therefore that emerges is: First, that "t me requisite" for obtaining the certified copy, which can be excluded under Section 12 of the Limitation Act, 1908, would be the time which is taken from the dale the application for obtaining the copy is made to the date when the copy is ready for delivery. However, where a rule of the Court or the Copying Branch provides that a date has to be communicated ts> the applicant for taking delivery of the copy, the said rule, according to its exact tenor, can be availed to extend the time under Section 12. In the Punjab, in view of the Correction Pamphlet No.41 dated 3.9.1960 appended lo the High Court Rules and rder Vol.1, where a date is ommunicated by an official of the Copying Branch to the applicant for taking delivery of the copy, or by carelessness of the said official a wrong date for delivery is given, ihe period upto the said date can be excluded under Section 12. However, it will have to be shown to the satisfaction of the Court the various dates that were given on the slip to the applicant lo colled the copy and what steps the applicant took to collect the copy. Second, time can further be extended if further delay has taken place through circumstances over which the applicant has had no control or over (?) which he could not by due diligence have avoided, provided sufficient cause is shown for each day's delay and application for condonation is filed. And third and last, it is of no consequence for an applicant to merely allege and prove that he was not given any date by the official of the Copying Branch when the copy would be ready. In order to seek condonation, he should take Ihe receipl slip from the Copying Branch, showing the date on which the copy is to be taken, for that is his right, and if he docs not do so, he cannot capitalise on his mistake. In such a situalion he must allege and satisfactorily show thai he did visit the Copying Branch regularly at reasonable intervals to secure the certified copy, so that sufficient grounds exist on which the said delay may be condoned. 11. In the insta t case the appellant did not establish before Ihe learned Additional District Judge thai he was given any wrong information as to the date on which the certified copies would be ready. He therefore, could not make out any case for exclusion of time. Further, he did not establish before the said Court that he was not given ny nformation about the dale when the certified copies would be ready, bul lhal otherwise he had been attending the Copying Branch regularly, such as every two to three days f not each day, and he did not get the copies till 16.5.1975. On the other hand the copies were ready for delivery on 27.2.1975, but were collected on 16.5.1975, showing thai he had not gone to the Copying Branch to collect them for months. The appellant did not even file an application seeking condonation of delay, duly supported by his affidavit alongwith the appeal. He therefore could not make out any case for condonation of delay under Section 5 of the Limitation Act before the Additional District Judge. Thus the appellant's appeal was rightly dismissed as barred by time by a learned Additional District Judge and though and affidavit was filed alongwith the revision before the High Court, the learned Single Judge of the High Court rightly declined to interfere because the appellant did not make out any case for condonation of delay, having failed to explain why he had not been attending the Copying Branch for months, even though no date had been given to him for collecting the Copies, nor explained what steps were taken by him to collect them during more than two and a half months, after they were ready for delivery. 12. There being no merit in this appeal, the same is dismissed. There shall be no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 164 PLJ 1991 SC 164 [Appellate Jurisdiction] Present: dr. nasim hasan shah. J ZAHID and another--Appellant> versus THE STATE and another—Respondents Criminal Misc. Appeal No. 1-L of I'»l, accepted on 2.2.1991. [On appeal from order dated 28.1.1'Wl. of Assistant Registrar, Supreme Court of Pakistan. Branch Registry, Lahore .] Supreme Court Rules, I980-- —-O.XXIII R.S read with Order XXXIII. Rule (.-Murder case-Bail allowed by Additional Sessions Judge—Cancellation ol bail by High Court-Refusal to entertain petition for leave to appeal-Appeal against- B.ir contained in first proviso lo Rule 8 of Order XXIII does not apply in circumstances of case-Second proviso lo Rule 8 is also not attracted as petition does not involve question of "bail before arrest"—Accordingly, provisions of Rule 8 cannot be invoked in facts and circumstances of case—Held: In such a situation, where no specific bar to entertainment of petition to the effect that unless petitioner surrenders to Police authorities, exists, residuary rule namely Rule 6 of Order XXXIII permitting court under its inherent powers to make such orders as may be necessary for ends of justice, can be invoked and any order which furthers ends ol justice, can be passed—Appeal allowed. [Pp.l65,166]A.B&C 1985 SCMR 97 and 1985 SCMR 900 re/. Sh Shdiikat All, Senior Advocate, Supreme Court, instructed by Mr. Ijaz Ahmad Khan, AOR for Appellants. Mr. Mat/hoot Elahi Malik, Advocate General, Punj;;H, lor Slate. Qazi Muhammad Salccm, Senior Advocate, Supreme Court, for Complainant Dale of hearing: 2.2.1991. order The appellants herein (accused in a case under Section 302/34 PPC) were arrested by the police. They moved an application for bail after arrest before the Additional Sessions Judge, Faisalabad , who, vide his order dated 1.11.1990, accepted the application and ordered their release on bail. The complainant moved an application (Cr.Misc.No.47()9-B of 1990) in the Lahore High Court for cancellation of bail. A learned Single Judge of the said learned Court, vide order dated 21.1.1991, was pleased to set-aside the order granting bail passed by the Additional Sessions Judge and directed that the appellants herein be taken into custody and lodged in jail. Feeling aggrieved, the appellants have filed a petition for leave to appeal against the aforesaid order dated 21.1.1991 and prayed for restoration of the order dated 1.11.1990 passed by the Additional Sessions Judge, Faisalabad allowing them bail. The Branch Registry of this Court, however, refused to entertain the petition for leave to appeal and the order dated 28.1.1991 passed by the Assistant Registrar in this regard is as follows:- "This petition is hit by the second proviso to Rule 8 Order XXIII of the Supreme Court rules 1980. Therefore, it cannot be entertained and the same is hereby returned to the A.O.R".This is an appeal under Order V Rule 3 of the Supreme Court Rules against the aloresaid order of the Assistant Registrar. Sh.Shaukat Ali. learned counsel for the appellants, Mr.Maqbool Elahi Malik, learned Advocate-General Punjab and Qa/i Muhammad Saleem, learned counsel tor the complainant, have been heard. Rule (S of Order XXIII of the Supreme Court Rules states-Tending the disposal ol a petition under this Order, the Court may direct (hat execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit; Provided that unless surrender is first made to an order of imprisonment, as above, the petition shall not be entertained: Provided further, petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court". It is manifest from the terms of the first proviso that unless surrender is made to an order of imprisonment the petition shall not be entertained. Now in this case there is no order of imprisonment that is challenged and the order which is challenged is the order cancelling the bail granted to the appellants by the Additional Sessions Judge. Accordingly, the bar contained in the first proviso of Rule 8 does not apply in the circumstances of the present case. Similarly, the second proviso is also not attracted in the facts and circumstances of the case as the petition filed before this Court docs not involve the question of "bail before arrest" in which case a petition can be entertained if the petitioner undertakes to appear and surrender in Court. Accordingly, the provisions of Rule 8 cannot be invoked in the facts & circumstances of this case. Nor is there any other specific rule in the Supreme Court Rules dealing with the situation which arises in this case. In such a situation where no specific bar to the entertainment of the petition to the effect that unless the petitioner surrenders to the police authorities exists, the residuary rule namely Rule 6 Order XXXIII of the Supreme Court Rules permitting the Court under its inherent powers to make such orders as may be necessary for the ends of justice, can be invoked and any order which furthers the ends of justice can be passed, in the light of the circumstances of a given case. The learned counsel for the parties have, I may add, brought two judgments of this Court wherein a similar situation arose, to my attention namely Bakhta & others Vs. Vic Slate (1985 S.C.M.R.97), wherein the facts were similar in that the Additional Sessions Judge had allowed bail but his order was cancelled by the High Court and directed that the petitioners be taken into custody forthwith and when the matter came to this Court it was observed that the petition could be heard only if the petitioners "surrender themselves before this Court" and Musharaf Khan Vs. The Slate (1985 S.C.M.R.900) were too the situation was similar as the Sessions Judge had admitted the petitioner under Section 497(5) read with Section 439 Cr.P.C. the High Court had cancelled the bail and this Court entertained the petition against the order of the High Court while allowing bail and observed "Thus petitioner, who has surrendered himself before us, is allowed to remain on bail on the Bail Bond furnished by him in pursuance of the order of the learned Sessions Judge, Sheikhupura dated 5.4.1980". The upshot is that this appeal is allowed. The order of the Assistant Registrar dated 28.1.1991 is set-aside. The Criminal Petition for Special Leave to Appeal should now be put up before the Court for considering whether the petition for leave may be entertained without the accused surrendering before the police? (MBC) Appeal accepted.

PLJ 199 ISC 166 PLJ 199 ISC 166 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, J ZAHID AFZAL and another-Petitioners versus THE STATE and another-Respondents Criminal Misc. Application No.l2-L of 1991 in Cr.PSLA No.25 of 1991 allowed on 2.2.1991. Criminal Procedure Code, 1898 (V of 1898)-- —-S.497/498--Concellation of bail by High Court-Challenge to-Il is a fit case wherein petition should be entertained on petitioners' surrendering themselves before Court—petitioners surrendered themselves before Supreme Court- Held: As order of High Court, cancelling bail carliar granted by Additional Sessions Judge, requires further examination, they are entitled to bail adinterim—Bail allowed during pendency of petition for leave to appeal. |P.167 ]A &B Sir. Shaukat AH, Senior Advocate, Supreme Court, and Mr. Ijaz Ahmad Klian, AOR for Petitioners. Mr. Maqbool Elalii Malik, Advocate General Punjab for respondent No.l. Qazi Muhammad Saleem, Advocate, Supreme Court, for complainant. Date of hearing: 2.2.1991. order After hearing learned counsel for the parties 1 consider that this is a fit case wherein the petition should be entertained on the petitioners' surrendering themselves beforethe Court.Let the petition be registered and assigned a regular number.The petitioners have surrendered themselves before me. As the order of the High Court cancelling bail earlier granted by the Additional Sessions Judge on 1.11.1990 requires further examination they are entitled to bail ad-interim. They are allowed to remain on bail, during the pendency of the petition for leave to appeal, on the bail bonds furnished by them in pursuance of the order of the learned Additional Sessions Judge, Faisalabad dated 1.11.1990. (MBC) Bail allowed.

PLJ 1991 SC 167 PLJ 1991 SC 167 [Appellate Jurisdiction] Present: dr. nasim hasan siiaii and abdul shakurul salam, JJ Z.Z. AHMAD-Appellant versus z-Respondent Civil Appeal No. 225 of 1979, accepted on 23.1.1991 [On appeal from judgment dated 23.5.1979, of Lahore High Court, in F.A.O. No. 121 of 1979.] (i) Civil Procedure Code, 1908 (V of 1908)- —O.IX, R.6(l)(fl) read with Order X, Rule 4(2) and Order IX, Rule 13-Suit for recovery—Decree passed in—Challenge to—Whether judgment of trial Court was under Order IX Rule 6(l)(a) and application under Order IX, Rule 13 was proper— Question of—In this case, all ingredients of clause (a) ot Rule 6(1) of Order IX CPC stood atisfied-Order IX, Rule 12, CPC became applicable— Proceedings taken against appellant on that date, were in fact exparte~ln so far as decree was passed on that date, t could legitimately be treated as an ex-pane decree—Held: Application for setting aside decree under Order IX, Rule 13 CPC, showing good cause, was, therefore, orrect nd proper-Appeal accepted. [Pp.l70&171]C,D,^E (ii) Civil Procedure Code, 1908 (V of 1908)-- — - O.XX R.4(2) read with Order X, Rule 4(2) and Order IX, Rule 6(l)(a)~Suit for recovery— Decree passed in—Challenge to— Whether it was a judgment under rder X Rule 4(2) or under Order IX, Rule 6(l)(a) of C.P.C.- Qucstion of—Term "judgment" according to Order XX, Rule 4(2) of CPC means a concise tatement of case, points for determination and reasons for such decision— In this case, judgment of trial court merely refers to fact that appellant had persistently failed to ppear without lawful excuse—Neither any evidence of any party was recorded nor defendant was examined— Held: Order of trial Court falls within purview of Order IX, ule 6(1)(#) of CPC despite express reference to provisions of Order X Rule 4(2) C.P.C. [P.170JA&B Manlvi Ehsanul Hag, Advocate, Supreme Court, instructed by Mr. Mahinood A. Qwcshi, AOR for Appellant. Mr. Jamshed Ahmad, Advocate, Supreme Court, instructed by Ch. Gludain Mujtaba, AOR (absent) for Respondent. Date of hearing: 23.1.1991. judgment This is an appeal, by leave of this Court against the order of the Lahore High Court dated 23.5.1979 passed in F.A.O. No.121 of 1979. The relevant facts are that the National Bank of Pakistan (respondent herein) brought a civil suit against the appellant and others for recovery of certain amounts of money alleged to have been borrowed by the Leather and Allied Industries Ltd. Wazirabad of which Company the appellant (Mr.Z. Z.Ahmad) was for some-time, a Director. During the hearing of the suit the appellant, who was defendant No. 3 in the said suit, was ordered to appear in Court to make a statement to give better particulars as the written statement filed by him appeared to be evasive. However, he did not appear on several dates of hearing fixed for this purpose before the Court and ultimately a date (7.12.1976) was fixed for this purpose. On that date he again did not appear before the Court. The learned trial Court in his order passed on that date (7.12.1976) observed that many opportunities had been granted to the appellant to appear in Court for making a better statement but he had neither appeared himself nor his original counsel had appeared on these dates of hearing and despite being warned of the consequence he was again not present. Accordingly, he proceeded to puss an order against him under Order X Rule 4 CPC. The exact words of the order were:- (3) If in any case in which a Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with the opinion on the case for the orders of the Commissioner. (4) If, after examining a record called for by himself under sub-section (1) or submitted to him under sub-section (3), the Commissioner is of opinion that it is inexpedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly. (5) If, after examining the record, the Board of Revenue or the Commissioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings of an order or decree of a Civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case. (6) Except when the Board of Revenue or the Commissioner fixes under sub section (5), a day for hearing the case, no party has any right to be heard before the Board f Revenue or the Commissioner when exercising its or his powers under this section". One feautre to be particularly noticed about this provision is that it confers suomotii jurisdiction on the authorities specified therein of calling for the record, examining it and of passing appropriate orders. It directly confers no right on the party or individual to prefer a Petition seeking the invocation of the power. Nevertheless, being a public power, it could in fact be invoked by a person interested or aggrieved. The second feature is that the power recognises the hierarchy of Revenue Courts administering the Tenancy Law. A reference will be made to other provisions of the Act in order to show how such a hierarchical arrangement is entrenched and made functional by supervision by the higher over the subordinate. Section 47 of the Act provides as hereunder:- "47. Classes of Revenue Officers.-(1) There shall be the following classes of Revenue Officers, namely.- («) The Board of Revenue; (ad) The Commissioner; (b) The Collector; (c) The Assistant Collector of the first grade; and (d) The Collector of the second grade. (2) The Deputy Commissioner of a district shall be the Collector thereof. (3) The Board of Revenue may appoint any Assistant Commissioner, Extra Assistant Commissioner or Tchsildar to be Assistant Collector of the first 3 was proper— uestion of—In this case, all ingredients of clause (a) of Rule 6(1) of Order IX CPC stood satisfied-Order IX, Rule 12. CPC became applicable—Proceedings taken gainst appellant on that dale, were in fact expartc—ln so far as decree was passed on that date, it could legitimately be treated as an ex-pane decree—Held: pplication for setting aside decree under Order IX, Rule 13 CPC, showing good cause, was, therefore, correct and proper-Appeal accepted. [Pp.l70&171]C,D,tE (ii) Civil Procedure Code, 1908 (V of 1908)- —-O.XX R.4(2) read with Order X, Rule 4(2) and Order IX, Rule 6(l)(a)-Suit for recovery-Decree passed in-Challenge to-Whether it was a judgment under Order X Rule 4(2) or under Order IX, Rule 6(l)(fl) of C.P.C.- Question of-Term "judgment" according to Order XX, Rule 4(2) of CPC means a concise statement of case, points for determination and reasons for such decision—In this case, judgment of trial court merely refers to fact that appellant had persistently failed to appear without lawful excuse—Neither any evidence of any party was recorded nor defendant was examined—Held: Order of trial Court falls within purview of Order IX, Rule 6(l)(a) of CPC despite express reference to provisions of Order X Rule 4(2) C.P.C. [P.170JA&B Maulvi Ehsamd Haq, Advocate, Supreme Court, instructed by Mr. Mahmood A. Qureshi, AOR for Appellant. Mr. Jamshed Ahmad, Advocate, Supreme Court, instructed by Ch. G/nilam Mujtaba, AOR (absent) for Respondent. Date of hearing: 23.1.1991. judgment This is an appeal, by leave of this Court against the order of the Lahore High Court dated 23.5.1979 passed in F.A.O. No.121 of 1979. The relevant facts are that the National Bank of Pakistan (respondent herein) brought a civil suit against the appellant and others for recovery of certain amounts of money alleged to have been borrowed by the Leather and Allied Industries Ltd. Wazirabad of which Company the appellant (Mr.Z.Z.Ahmad) was for some-time, a Director.During the hearing of the suit the appellant, who was defendant No.3 in the said suit, was ordered to appear in Court to make a statement to give better particulars as the written statement filed by him appeared to be evasive. However, he did not appear on several dates of hearing fixed for this purpose before the Court and ultimately a date (7.12.1976) was fixed for this purpose. On that date he again did not appear before the Court. The learned trial Court in his order passed on that date (7.12.1976) observed that many opportunities had been granted to the appellant to appear in Court for making a better statement but he had neither appeared himself nor his original counsel had appeared on these dates of hearing and despite being warned of the consequence he was again not present. Accordingly, he proceeded to pass an order against him under Order X Rule 4 CPC. The exact words of the order were:-Since the decree was passed without recording any evidence and without hearing the defendant (No.3) the said defendant took it to be an ex-paite decree. He, therefore, filed an application under Order IX Rule 13 CPC for setting it aside. This application, however, was dismissed by the trial Court vide order dated 13.2.1979 on the ground that the order dated 7.12.1976 was passed under Rule 4 of Order X CPC pronouncing judgment against a party which was an appealable order to the higher Court. Accordingly, an application under Order 9 Rule 13 CPC for setting it aside, which was presented to the same Court, was a remedy taken before the wrong forum. Coming to the submission that the judgment dated 7.12.1976 was not justified under the provisions of Rule 4(2) of Order X CPC it was observed:- "The petitioner and his original counsel remained absent from the Court for more than one year and two months. Under the circumstances, it does not appeal to the logic that the said advocate had the instructions from the petitioner to answer the questions which were proposed to be put to him by the Court. Several adjournments were given for the personal appearance of the petitioner and each time the advocate who appeared on behalf of his original counsel was warned that in case the petitioner failed to appear personally action will be taken against him. Inspite of all this neither he nor his original counsel nor his agent appeared; therefore, the order was passed". Feeling dis-satisfied with the above order dated 13.2.1979 the appellant challenged it by filing an appeal (F.A.O.No.121 of 1979). But the appeal was dismissed by alearned Single Judge of the High Court on 23.5.1979. Hence the present appeal, by leave of this Court. At the hearing of the appeal today, the learned counsel for the respondent- Bank, MrJamshed Ahmad, raised a preliminary objection that the appeal had abated insofar as the appellant (Mr.Z.Z.Ahmad) had died on 29.7.1989 but his legal representatives had not been brought on record. Maulvi Ehsanul Haq, learned counsel on behalf of the appellant, however, pointed out that an application under Order XXIII Rule 6 of the Supreme Court Rules, 1980 had been submitted on behalf of the appellant for bringing the legal representative of the appellant (Mr.Z.Z.Ahmad) on the record and prayed that the delay that had occurred in submitting the application may be condoned in the interests of justice. After hearing the learned counsel for the parties we feel that this is a fit case in which the delay in the submission of the application for bringing the legal representative of Mr.Z.Z.Ahmad should be condoned in the interests of justice. The legal representative of Mr.Z.Z.Ahmad is, therefore, allowed to be brought on record. On merits, the learned counsel for the appellant has submitted that both the Courts below had misread the relevant provisions of Orders 9, 10 and 43 of the Civil Procedure Code. In this connection, he pointed oul that the suit had been decreed against the appellant without recording any evidence whatsoever, without even an affidavit as ex-pane proof. A decree against the appellant, in such circumstances, could only have been passed under Order 9 Rule 6 of the Civil Procedure Code and, therefore, the Courts below had erred in holding that the appellant's remedy was only by way of an appeal under Section 104 C.P.C. read with the provisions of Order 43(1)(<?) CPC and that the application for restoration under Order 9 Rule 13 was not maintainable. Mr.Jamshed Ahmad, learned counsel for the respondent, has been heard in reply. In order to decide the controversy, a deeper examination of the relevant provisions involved appears to be necessary. Rule 4 of Order X C.P.C. provides: "4. (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without lawful execuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order inrelation to the suit as it thinks fit". In this case, the Court decided to pronounce judgment against the appellant on the ground that he had failed to appear in person before it on the appointed date "without lawful execuse". The term "judgment", means "a concise statement of the case, the points for determination and decision thereon and the reasons for such decision" (vide clause (2) of Rule 4 of Order XX CPC). In this case, the judgment passed on 7.12.1976 neither contains any concise statement of the case nor the points for determination, nor the decision thereon nor the reasons for the decision. It merely refers to the fact that the appellant had persistently failed to appear before the Court despite being asked to do so and that he had again failed to appear before the Court without lawful excuse on the appointed date. The Court, in these circumstances, was constrained to pass a decree against him under Order X Rule 4(2) of the C.P.C. It is an admitted position that by then (.7.12.1976) neither the evidence of any party had been recorded nor was the defendant examined. In this state of affairs, the order that was passed falls, in our view, within the purview of Rule 6(1)(«) of Order IX C.P.C., despite the express reference to the provisions of Order 10 Rule 4(2) of the C.P.C. by the learned trial Judge.Rule 6(l)(fl) of Order IX of the C.P.C. reads as follows:- "6-(l) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then— (a) if it is proved that the summons were duly served, the Court may proceed cx-parte and pass decree without recording evidence". As has been seen already summons had been duly served upon the defendant, in this case, but he did not appear when the suit was called for hearing. Furthermore, in this case, a decree was passed without recording evidence. In this case, therefore, all the ingredients of clause (a) of Rule 6(1) of Order 9 C.P.C. stood satisfied. Now, a reference to the provisions of Rule 12 of Order IX (dealing with consequences of non-attendance without sufficient cause shown, by the party ordered to appear in person) reveals that where a plaintiff or defendant fails to appear in person, who has been ordered to do so, without lawful excuse all the provisions applicable to the'plaintiffs and defendants under Order IX become applicable. By virtue of this provision clause (a) of Rule 6(1) of Order IX C.P.C. becomes applicable and a decree can be passed against the defaulting party without recording evidence. Mr.Jamshed Ahmad, however, submitted that a counsel for the appellant did appear in Court on 7.12.1976 and, therefore, the decree passed on that date could not be considered to be an ex-parte decree. But this submission overlooks the fact that the counsel appearing on behalf of the defendant on that date was not the original counsel of the defendant and was a counsel appearing only to seek adjournment of the case and, therefore, was not in a position to answer any material question relating to the suit. Accordingly, his presence did not imply that any pleader representing the appellant in the true sense appeared on his behalf on the said date. The proceedings taken against appellant on that dale thus were in fact ex-pane. Insofar as a decree was passed against the appellant on that date it could legitimately be treated as an ex-parte decree falling within the purview of Order 9 Rule 6(l)(a) C.P.C. and was not a judgment falling under Order 10 Rule 4(2) thereof. The application filed for setting aside the decree passed on 7.12.1976 under Order IX Rule 13 C.P.C. on showing good cause was, therefore, correct and proper. The orders of the Courts below holding to the contrary do not appear to be in accordance with law and are, accordingly, liable to be set-aside. The result is that this appeal must succeed and the impugned orders dated 9.12.1976. 13.2.1979 and 23.5.1979 set-aside. In the result, the suit filed by the respondent-Bank will be deemed to be pending not only against the three codefendants of the appellant who were impleaded alongwith him in the suit and against whom the suit is still pending, but also against the present appellant as well. We are informed that the said suit has since been transferred to the Banking Court . As it has been pending now for nearly 15 years we would direct the said learned Court to dispose it of as expeditiously as possible. The upshot is that this appeal is allowed in the above terms, but the parties are left to bear their own costs. (MBC) Appeal accepted.

PLJ 1991 SC 171 PLJ 1991 SC 171 [Appellate Jurisdiction] Present: saad saood jan and abdul shakurul salam, JJ MUHAMMAD HUSSAIN and others-Appellants versus ISLAMIC REPUBLIC OF PAKISTAN, THROUGH CHAIRMAN, RAILWAY BOARD, LAHORE , and others-Respondents Civil Appeal No. 147 of 1982, accepted on 3.2.1991 [From judgment dated 19.9.1981 of Lahore High Court, passed in Writ Petition No. 2855 of 1978. | Payment of Wages Act, 1936 (W of 1936)-- —-S.17(l) read with Industrial Relations Ordinance, 1969, Section 35(5)--Lower Division Clerks—Extra wages of—Recovery of—Application for—Whether exercise of appellate jurisdiction by Labour Court under Payment of Wages Act, is not a proceeding under Industrial Relations Ordinance—Question of— By amendments made by Ordinance XII of 1974, forum of appeal against order of authority under Act was changed from District Court to Labour Court-It will appear from clause (d) of Section 35(5) of I.R.O. that performance of functions under other laws, is a part of normal duties of a Labour Court-Held: It is difficult to subscribe to view of High Court that exercise of appellate jurisdiction by Labour Court under Payment of Wages Act is not a proceeding under I.R.O—Held further: Order of Labour Appellate Tribunal was within its competence and High Court erred in declaring it to be without lawful authority and of no legal effect—Case remanded to High Court. [Pp.l76&177]A,B&C 1981 PLC 307 over-ruled. 1981 PLC 561 approved. PLD 1981 SC 282 rel. Mr. Kara/not Nazir Bliinclari, Advocate, Supreme Court, and Mr. M. A. Qurcshi, AOR for Appellants. Ch.Fazl-c-Hnssain, AOR for Respondents. Date of hearing: 6.10.1990. judgment Saad Saood Jan, J.-This is an appeal by special leave from the judgment and order dated 19.9.1981 of the Lahore High Court whereby the order dated 8.3.1979 of the Punjab Labour Appellate Tribunal was declared to be without lawful authority and of no legal effect. 2. The appellants who arc 73 in number were employed as lower division clerks in the establishment of the Pakistan Railways. They together with some others filed an application before the Authority constituted under the Payment of Wages Act for the recovery of extra wages which they claimed were payable to them by the Railway Administration. Their case was that although they held the posts of lower division clerks, they had been made to perform the duties of upper division clerks. Consequently, they were entitled to receive (he difference between the pay of an upper division clerk and that of a lower division clerk. By its order dated 7.7.1977 the Authority accepted the application and directed the Railway Administration to pay to the appeallants an amount of Rs. 1,19,520,00 together with four times the said amount by way of compensation. 3. From the order of the Authority, the Railway Administration preferred an appeal before the Punjab Labour Court No.2, Lahore. By its judgment dated 21.9.1977 the learned Labour Court accepted the appeal and dismissed the application on the ground that as the appellants were civil servants, the Authority had no jurisdiction to entertain their application. The appellants filed a revision petition before the Punjab Labour Appellate Tribunal. The learned Tribunal accepted the revision petition and set aside the order of the Labour Court on a technical ground based on the proviso to section 17(l)(a), Payment of Wages Act. According to this proviso the memorandum of appeal should be accompanied by a certificate from the Authority that the amount awarded to the employee has been deposited with the Authority. In this case the Railway Administration had deposited a cheque in the requisite amount with the Authority before preferring the appeal. The learned Tribunal did not regard the deposit of cheque as sufficient compliance of the said proviso and held that there was no proper appeal before the Labour Court. From the order of the Punjab Labour Appellate Tribunal the Railway Administration filed a constitution petition in the High Court. A learned Single Judge, relying entirely upon an earlier judgment of the Court reported as Pakistan versus Maqsood All (1981 P.L.C. 307) took the view that the learned Tribunal was not competent to review the order of the Labour Court. Accordingly, it accepted the petition and declared the order of the learned Tribunal to be without jurisdiction and of no legal effect. From the judgment of the learned Single Judge the appellants have come in appeal to this Court. 4. It may be mentioned here that the rule laid down by the Lahore High Court in Maqsood Ali's case was contrary to the view expressed by the Sind High . Court in National Cement Industries v. Sind Labour Appellate Tribunal (1981 PLC 561). As the two High Courts were not agreed on the question whether the Labour Appellate Tribunal was competent to review an order made by the Labour Court under the Payment of Wages Act, leave to appeal was granted to resolve the conflict. 5. The Labour Courts have been constituted under Section 35(1) of the Industrial Relations Ordinance. Subsection (5) of Section 35 sets out the functions of a Labour Court . It reads as follows: "A Labour Court shall- (a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance, (b) enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government, (c) try offences under this Ordinance, and such other offences under any other law as the Provincial Government may, by notification in the official gazette, pecify in this behalf, (d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law." Section 38, Industrial Relations Ordinance, provided for the constitution and functions of the Labour Appellate Trib>. .al. Subsection (3a) thereof states:"The Tribunal may, on its own motion at any time, call for the record of any case or proceedings under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order, in relation thereto as it thinks fit; 6. Section 17(1), Payment of Wages Act, 1936, makes provision for appeals from the decisions of the Authority established under the Act. It reads:- "An appeal against a direction made under sub-section (3) or sub-section (4) of section 15 may be preferred within thirty days of the date on which the direction was made before the Labour Court constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) within whose jurisdiction the cause of action to which the appeal relatesarose. Subsection (2) of the same section states: "Save as provided in subsection (1), any direction made under subsection (3) or subsection (4) of section 15 shall be final." It may be mentioned that subsections (3) and (4) of Section 15 empower the Authority to issue directions, inter alia, for the payment of wages, due or unreasonably withheld by the employer, to the employee together with compensations and penalty. 7. The case of Maqsood Ali, ibid, was heard by a learned Single Judge of the Lahore High Court. He was of the view that the revisional jurisdiction conferred upon the Labour Appellate Tribunal was confined to cases or proceedings rclatable to matters falling under the Industrial Relations Ordinance. An appeal heard by the Labour Court in exercise of the jurisdiction conferred upon it by Section 17, Payment of Wages Act, was not such a matter and for that reason it fell outside the revisional jurisdiction of the Tribunal. The learned Judge also referred to the language of sub-section (3a) of Section 38 where the words "cases or proceedings" were followed by the words "under this Ordinance" and observed that the rules made under the Payment of Wages Act laid down the procedure for the disposal of appeals by the Labour Court and as such while acting as an appellate Court it constituted a special forum outside the ambit of the Industrial Relations Ordinance. For that reason, too, the cases decided and the proceedings undertaken by it as an appellate Court could not be regarded as cases and proceedings under the Ordinance. He also thought that the scheme of the Payment of Wages Act and the Industrial Relations Ordinance did not provide more than two fora for the redress of the grievance of the workmen. In this context he observed: "Under subsection (2) of Section 17, except as provided in subsection (1) thereof, the decision of the Authority under subsections (3) and (4) of Section 15 is final. It would, therefore, appear that where the Authority has acted as a tribunal of first instance, after one appeal to the Labour Court acting as the Appellate Authority, if available, no further right of revision to any higher tribunal or Court is available to the party. It is, therefore, clear that the Legislature has not provided more than one appeal or revision, both under the Industrial Relations Ordinance, 1969, and the Payment of Wages Act, 1936, in respect of matters falling within their own respective jurisdiction. It is, therefore, in this background that Sub-section 3(a) of Section 38 of the Ordinance will have to be appraised". 8. On the other hand while coming to a different conclusion in the case of National Cement Industries, ibid, a Division Bench of the Sind High Court thought that the conferment of appellate jurisdiction on a Labour Court from the orders or directions made by the Authority under the Payment of Wages Act was nothing more than mere extension of its jurisdiction and thus the orders passed by it in exercise of this additional jurisdiction were subject to all the incidents of appeal or revision which were ordinarily available to an aggrieved party from its decisions. The learned Judges went on to hold: "The Labour Court before being conferred with the jurisdiction under Section 17 of the Act was an already established Court with its jurisdiction defined so as to include the powers conferred under laws other than the I.R.O. and its procedure and powers laid down by Section 36 of the I.R.O. Clearly, therefore, Sub-section (5) of Section 35 which lays down the ambit of its jurisdiction already contemplated by clause (d) the conferment of powers and functions upon the Labour Court under the I.R.O. or any other law. It, therefore, follows that in exercising powers under special laws, the Labour Court exercised its ordinary jurisdiction subject to all the incidents of appeal or revision ordinarily applicable to the Labour Court. The Act of 1936 does not lay down any special procedure for adjudication or determination of an appeal under Section 17 by the Labour Court. The disputes under the Payment of Wages Act are in the words of Lord Atkinson disputes closely resembling in character matters under the I.R.O. over which the Labour Court had already jurisdiction and, therefore, there is no reason to hold that the Legislature intended to keep out of the revisional jurisdiction of the Appellate Court matters under special laws other than the I.R.O. dealt with by the Labour Court. In our opinion, when a matter under any special law is transferred to the Labour Court under a statutory provision its adjudication and determination by the Labour Court becomes a proceeding under the I.R.O. by virtue of Sub-section 5(d) of Section 35 so that it is amenable to the revisional jurisdiction of the Appellate Tribunal. This conclusion is further fortified by the provisions of Sub-section (7) of Section 35 which confer the power upon the Appellate Tribunal to transfer any proceedings from a Labour Court within its jurisdiction to any other such Labour Court. In this sub-section the nature of proceeding has not been defined". 9. It may be mentioned that before the amendment of the Payment of Wages Act by Ordinance XII of 1974, an appeal from the order of the Authority lay before the District Court. There was some doubt whether an order made by the District Court in appeal was final by virtue of the provisions of Sub-section (2) of the same section and for that reason it fell outside the revisional jurisdiction of the High Court under Section 115, Code of Civil Procedure. This doubt was resolved by this Court in the case of S.M.Rahman & Co. Vs. Motabar (PLD 1981 S.C.282) wherein it was held that the order made by the District Court was revisable by the High Court under Section 115, Code of Civil Procedure. The Court observed: "The argument that there is a finality attaching to the order of the Authority under Section 15 of the Act subject only to the appellate jurisdiction of the District Court under Section 17(c) of the Act, does not advance the case any further, as such finality only means that the order of the Authority can be challenged only by way of appeal to the District Court and not otherwise; but there is no such limitation in respect of the appellate order made by the District Court as ordinarily constituted, in which capacity it is subordinate to the High Court". By the amendments made by Ordinance XII of 1974 the forum of appeal was changed from the District Court to the Labour Court . As will be noticed the amendment has revived the controversy whether the decision made by the Labour Court as appellate forum is to be treated as final and beyond the reach of the Labour Appellate Tribunal which ordinarily exercises appellate and revisional jurisdiction over its decisions under Sub-section 3(a) of Section 38, Industrial Relations Ordinance. In our opinion, the provisions of clause (d) of Section 35(5), Industrial Relations Ordinance should put an end to the controversy. It will apear from this clause that the performance of functions under other laws is a part of the normal duties of a Labour Court . That being so, even when it exercises jurisdiction under other laws it does not act as a special forum outside the ambit of the Industrial Relations Ordinance, but, on the other hand, it is performing a function specifically provided for by the Ordinance. It is, therefore, difficult to subscribe to tjie view taken by the learned Single Judge in the Lahore High Court that the exercise of appellate jurisdiction by the Labour Court under the Payment of Wages Act is not a proceeding under the Ordinance. Consequently, the main premises upon which he has proceeded to hold against the competence of the Labour Appellate Tribunal to exercise revisional jurisdiction is erroneous. His view that the Payment of Wages Act and Industrial Relations Ordinance envisage only two fora for the redress of the grievance of the workmen is founded only on an assumption without any firm basis. As noticed earlier, prior to the amendment of Section 17, Payment of Wages Act, the appeal from the order of the Authority lay before the District Court. Despite the provisions of Section 17(2) of the Act which clothed the order of the appellate Court with finality this Court, as pointed out above, in S.M.Rahman & Co., ibid, held that the said order was revisable under Section 115, Code of Civil Procedure, by the High Court. The rules framed under the Payment of Wages Act for institution and disposal of appeal do not lay down any special procedure which may be regarded as indicative of the intention to constitute the Labour Court as a forum of a special nature. 10. For the reasons staled above we would hold that the order made by the Labour Appellate Tribunal in its revisional jurisdiction was within its competence and the High Court erred in declaring it to be without lawful authority and of no legal effect. 11. However, this is not the end of the matter. It was stated by the learned counsel for the respondent that he had taken a number of grounds to assail the order of the learned Tribunal, particularly with regard to the competency of the Authority under the Payment of Wages Act to entertain the application of the appellants, but these were not considered by the High Court as it elected to interfere with the order of the learned Tribunal solely on the basis of jurisdiction. That being so, we would remand the case to the High Court for decision on other grounds taken in the constitution petition. There will be no order as to costs in this appeal. (MBC) Appeal accepted.

PLJ 1991 SC 177 PLJ 1991 SC 177 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and abdul qadeer chaudhry J. HAZRAT UMAR-Appellant versus ZAFAR MAJEED and 13 others-Respondents Civil Appeal No.2 of 1985, dismissed on 21.10.1990. [On appeal from judgment dated 25.11.1984, of Peshawar High Court, Circuit Bench D.I. Khan, in Writ Petition No.l8/D of 1982.] (i) Urban Rent Restriction Ordinance, 1959 (W.P Ord. VI of 1959)- —-S.13(2)(vi) read with NWFP Ordinance, No.XII of 1972-Tenant-Ejectment of-Challenge to-Whether for benefit of proviso added after section 13(2)(vi), it is essential that Rent Controller should pass an order of deposit of rent-­ Question of—It is requirement of law that a direction for deposit shall be made by Controller in satisfaction that tenant had not committed any such default previously—This, of course, would be after offer is made by tenant to pay rent due—Held: Even if no such specific order is passed by Rent Controller, and in reality, there is no such previous default, tenant on making offer, can pay same forthwith before Controller or deposit it immediately and also request Controller to pass consequential order rejecting application for his eviction-Appeal dismissed. [Pp.l79&18()|C&D (ii) Urban Rent Restiction Ordinance, 1959 (WP Ord. VI of 1959)-- —S.13(2)(vi) read with NWFP Ordinance No.XII of 1972-Tenant-Ejectment of—Challenge to—Whether or not landlord had refused to receive rent in first instance, was a disputed question-Condition in proviso added by Ordinance XII of 1972 would have been satisfied if tenant would have at proper time, lay before the District Court. There was some doubt whether an order made by the District Court in appeal was final by virtue of the provisions of Sub-section (2) of the same section and for that reason it fell outside the revisional jurisdiction of the High Court under Section 115, Code of Civil Procedure. This doubt was resolved by this Court in the case of S.M.Rahman & Co. Vs. Motabar (PLD 1981 S.C.282) wherein it was held that the order made by the District Court was revisable by the High Court under Section 115, Code of Civil Procedure. The Court observed: "The argument that there is a finality attaching to the order of the Authority under Section 15 of the Act subject only to the appellate jurisdiction of the District Court under Section 17(c) of the Act, does not advance the case any further, as such finality only means that the order of the Authority can be challenged only by way of appeal to the District Court and not otherwise; but there is no such limitation in respect of the appellate order made by the District Court as ordinarily constituted, in which capacity it is subordinate to the High Court". By the amendments made by Ordinance XII of 1974 the forum of appeal was changed from the District Court to the Labour Court . As will be noticed the amendment has revived the controversy whether the decision made by the Labour Court as appellate forum is to be treated as final and beyond the reach of the Labour Appellate Tribunal which ordinarily exercises appellate and revisional jurisdiction over its decisions under Sub-section 3(a) of Section 38, Industrial Relations Ordinance. In our opinion, the provisions of clause (d) of Section 35(5), Industrial Relations Ordinance should put an end to the controversy. It will apear from this clause that the performance of functions under other laws is a part of the normal duties of a Labour Court . That being so, even when it exercises jurisdiction under other laws it does not act as a special forum outside the ambit of the Industrial Relations Ordinance, but, on the other hand, it is performing a function specifically provided for by the Ordinance. It is, therefore, difficult to subscribe to Ijie view taken by the learned Single Judge in the Lahore High Court that the exercise of appellate jurisdiction by the Labour Court under the Payment of Wages Act is not a proceeding under the Ordinance. Consequently, the main premises upon which he has proceeded to hold against the competence of the Labour Appellate Tribunal to exercise revisional jurisdiction is erroneous. His view that the Payment of Wages Act and Industrial Relations Ordinance envisage only two fora for the redress of the grievance of the workmen is founded only on an assumption without any firm basis. As noticed earlier, prior to the amendment of Section 17, Payment of Wages Act, the appeal from the order of the Authority lay before the District Court. Despite the provisions of Section 17(2) of the Act which clothed the order of the appellate Court with finality this Court, as pointed out above, in S.M.Rahman & Co., ibid, held that the said order was revisable under Section 115, Code of Civil Procedure, by the High Court. The rules framed under the Payment of Wages Act for institution and disposal ofjippeal do not lay down any special procedure which may be regarded as indicative of the intention to constitute the Labour Court as a forum of a special nature. 10. For the reasons staled above we would hold that the order made by the Labour Appellate Tribunal in its revisional jurisdiction was within its competence and the High Court erred in declaring it to be without lawful authority and of no legal effect. 11. However, this is not the end of the matter. It was stated by the learned counsel for the respondent that he had taken a number of grounds to assail the order of the learned Tribunal, particularly with regard to the competency of the Authority under the Payment of Wages Act to entertain the application of the appellants, but these were not considered by the High Court as it elected to interfere with the order of the learned Tribunal solely on the basis of jurisdiction. That being so, we would remand the case to the High Court for decision on other grounds taken in the constitution petition. There will be no order as to costs in this appeal. (MBC) Appeal accepted.

PLJ 1991 SC, 180 PLJ 1991 SC, 180 [Appellate Jurisdiction] Present: 1 muhammad afzal zullah CJ and abdul qadeer chaudhry, J. Mst. ZAAHRAN MAI and others-Appellants versus MUHAMMAD MUTIULLAH KHAN and others-Respondents Civil Appeal No.162 of 1979, accepted on 3.11.1990. [Against judgment oand order, dated 5.7.1974, of Lahore High Court, in RSA No.256 of 1964.] Limitation Act, 1908 (IX of 1908)-- —S.5-Second appeal-Delay in filing of-Dismissal of appeal as time barred- Challenge to—Whether time from 23.12.1963 (date on which application for copy was received by post) to 8.2.1964 (date of supply of copy) could be excluded-Question of-Assertion of appellants was not repudiated by respondents, therefore, statement of appellants could be accepted-Even otherwise, High Court could make summarry inquiry after summoning record from Copying Agency in order to find whether contention of appellants is supported by documentary evidence—Dismissal of appeal on ground of limitation, merely on a technical reason, could have been avoided—Appellants could apply for copy through post—Held: View taken by High Court cannot be maintained as time spent by appellants in obtaining copy should have been excluded—Appeal allowed and case remended to High Court. [Pp.l81&183]A&B PLD 1990 SC 90 and PLD 1978 Lah.293 rel. PLD 1957 (WP) L ,.hore 370 and AIR 1930 Nagpur 129 not relevant. Mr. Allah Wasaya Malik, Advocate, Supreme Court, and Rana M.A. Qadri, AOR (absent) for appellants. KJi. M. Farooq, Advocate, Supreme Court, and Mr. Manzoor Elahi, AOR for respondents. Date of heaing: 3.11.1990. judgment Abdul Qadeer Chaudhry, J.--This appeal through leave of the Court has arisen in the following circumstances:- A decree for possession was passed in favour of the appellants on 18.4.1963. On appeal, the District Judge Mianwali, set aside the judgment and decree and dismissed the suit of the appellants on 30.10.1963. The appellants submitted an application by registered post on 23.12.1963 for getting certified copy of the judgment and decree passed by the learned District Judge. The receipt of the registered letter bears No.117 dated 23.12.1963. The Copying Branch registered it on 2.1.1964. In the application for supply of copy, the date of judgment was mentioned as 16.10.1963 instead of 30.10.1963 and due to this reason the application was returned with the objection on 6.2.1964. According to the appellants, the same day the application was re-submitted after correcting the date of decision. The certified copies were supplied on 8.2.1964 which were received by the counsel for the appellants on 13.2.1964. The appellants filed a Regular Second Appeal on 10.3.1964. Alongwith the appeal, an application under Section 5 of the Limitation Act for the condonation of delay was filed claiming exclusion of time from 23.12.1963 to 8.2.1964. The learned High Court dismissed the appeal on 5.7.1964 as being barred by time. The learned High Court while considering the contention of the appellant with regard to the condonation of delay, observed that: "There is however, no proof on the record that the application for copy was sent by registered post on the 23rd December, 1963. This is a matter which could not be proved except by primary evidence". The assertion of the appellants was not repudiated by the respondents therefore the statement of the appellants could be accepted. Even otherwise, the learned High Court could make a summary inquiry in the matter after summoning the record from the Copying Agency in order to find out whether contention of the appellants is supported by the documentary evidence. The dismissal of the appeal on the ground of limitation mere on a technical reason could have been avoided. The appellants under the rules could send application for obtaining copy of the judgment through post. If there was wrong mention of the date of judgment and the Copying Agency had either summoned the record or verified it from the Courts concerned, this technical error could have been corr6cted by the Copying Agency itself. The application was submitted within time. The same was sent back to the appellants for correction of the date of decision, the mistake was rectified and it was resubmitted by the appellants. The appellants were diligently prosecuting their case and there was no negligence on their part. As such, the view taken by the High Court cannot be maintained as the time spent by the appellants in obtaining copy in the circumstances stated above, should have been excluded. Learned Counsel for the respondents referred to Punjab Province Vs. M.Nuntllah (PLD 1957 (W.P.Lahore 370) and Muhammad Klian Vs. Fatma Bai (A.I.R. 1930 Nagpur 129), in support of his contention that such time spent for the correction of date of judgment in the application could not be considered as time requisite for obtaining copy. We do not consider that the two cited cases have enunciated the correct proposition of law. This Court in Federation of Pakistan Vs. Mrs.Riaz Latif ((P.L.D.1990 S.C.90), has referred to the Copying Agency Manual. An applicant may also at his option ask that the copy be sent to him by V.P.P. Finally, it was observed that "Rules do confer a right on the applicant to obtain certified copy by V.P.P. and makes it obligatory on the Copying Agency to comply with the request. The responsibility of the Copying Agency could not have been made the responsibility of the party nor should the party be penalised for the nonobservance of the requirement of the rules by the Copying Agency". In Muhammad Aslam Vs. Hameed All (P.L.D.1978 Lahore 293), in the similar circumstances, it was held that "it cannot be visualised that when the process for supply of copy had commenced but had not yet concluded, the latter circumstances would disentitle the appellant from counting this period towards the period requisite for obtaining the copy. It was also observed in Paras 7, 8 and 9 of the judgment as under:- "7. There is another aspect of the matter. The appellant was not at fault in so far as the supply of wrong copy by the Copying Agency is concerned. As mentioned above, he took steps to seek correction. This shows his bona fides. The learned Additional District Judge should not have returned the incorrect copy. The endorsement by the Copying Agency made thereon showing various dates including that of application and preparation of the copy, if would have been duly considered by the learned Additional District Judge, the appeal would not have been held to be time-barred. 8. There is yet another circumstance which goes in favour of the appellant. The Copying Agency in District Courts is a part of the judicial administration. If the learned Additional District Judge wanted to check certain facts from the Copying Agency, he could have done so before dismissing the appeal. The fault of the Copying gency, which is a part of the Court's machinery, cannot be made the basis of penalizing the appellant. The principle that no one shall suffer on account of act of Court would at least indirectly apply in this case. For what has been stated above it is held that the appellant was entitled to adjust the period from 24.12.1969 upto the filing of the appeal i.e. 10.2.1970 in counting the period of limitation. That being so, the appeal was not time barred. 9. The foregoing discussion would show that the period between making of the application for copy on 24.12.1969 and filing of the appeal on 10.2.1970 has to be excluded as period requisite for obtaining copy. The exclusion of the period is, as of right, under Section 12 of the Limitation Act. There was no question of condonation and thus there was no need for moving an application under Section 5 of the Limitation Act. The two cases cited by the learned counsel for the appellant in this behalf, namely, Qalandar Shah and others Vs. Imdad All Shah and others (PLD 1962 Azad J & K 21) and Messrs Aftab Medical Stores Vs. Commissioner of Income-tax (PLD 1976 Lahore 1330) support him in so far as they go, on analogical basis. In view of the clear provisions of Section 12 of the Limitation Act, it is not necessary to discuss any further the case-law in this behalf. In the result, we hold that the appeal filed by the appellants was within time. The appeal is, therefore, allowed. The case is remanded to the High Court for decision on merits. There will be no order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 183 [Appellate Jurisdiction] PLJ 1991 SC 183 [Appellate Jurisdiction] Present: zaffar hussain mirza and ajmal mian, JJ SULTAN MUHAMMAD and another-Appellants versus NAWAB KAN and another-Respondents Civil Appeals Nos.199 and 200 of 1982, dismissed on 30.10.1990. [On appeal from judgment of Lahore High Court, Rewalpindi Bench, dated 24.4.1982, in R.S.A. Nos.105 and 106 of 1982.] (i) Punjab Pre-emption Act, 1913 (I of 1913)-- —S.3 & 4--Pre-emption—Suit for—Reversal of decree in first appeal—Challenge to—Whether transaction did not amount to sale—Question of—Under Section 4 of Act, orm of transaction is not material but court has to determine if transaction amounts to sale in fact-It is clear that what appellants were purchasing, was not a mere paper ecree or right to execute a decree unrelated to rights in land which was subject matter of decree-Held: Once it is held that transaction effected a transfer of a right in and, it follows that any right arising out of such sale of land in favour of third party, would automatically flow from such transaction-Held further: ransaction did involve tranafer of rights and interests in immovable property and it was sale under Section 3 of Act. [Pp.l86J87&188JA,B&C PLD 1970 Lahore 168, PLD 1962 SC 42, PLD 1973 SC 347, PLD 1962 Peshawar 14 and 94 P.R. (1902) rel. AIR 1937 Lahore 755 not relevant. (ii) Sinker— —Pre-emption-Suit for-Reversal of decree in first appeal-Challenge to- Whether doctrine of sinker was attracted in this case—Question of—Contention that transaction was divisible and transfer in favour of first three appellants, jointly having superior right of pre-emption being tenants, was not liable to be vitiated merely because separately described land in same instrument, was transferred to appellant No.4, a stranger having no right of tenancy—Admitted position is that separate parcels f land were described in instrument to have been transferred to two sets of appellants but price or consideration was shown as paid by only one of vendees— eld: ransaction cannot be held to be divisible so as to avoid doctrine of sinker for simple reason that amount paid towards price has not been separately apportioned to ach vendee—Held further: Doctrine of sinker has been rightly applied in this case—Appeals dismissed. [Pp.l88&189]p,E&F PLD 1989 SC 474 ref. Malik Muhammad Jafar, Advocate, Supreme Court, and KJian Imtiaz Muhammad KJian, AOR for appellants. Mr. Bashir Ahmad Ansari, Advocate, Supreme Court, and Ch. Akhtar Ali, AOR for Respondents. Date of hearing: 16.10.1990. judgment ZaiTar Hussain Mirza, J.~These two appeals are in fact between the same parties and arise out of a single judgment and decree passed in civil suit No.471/1979, filed by the respondents. Therefore, we propose to dispose of these two appeals by the present common judgment. The facts forming the background of these appeals may briefly be stated as follows. One Nazar Muhammad had obtained a decree for possession through pre-emption in respect of the land in dispute against Nawab Khan respondent No.l and others respondents herein. After having deposited the pre-emption amount in.court, in pursuance of the decree, by means of registered instrument dated 30th July, 1978, Nazar Muhammad sold his rights under the aforesaid decree to Sultan Muhammad and others appellants herein. It was specified in the sale deed that the first three appellants jointlytwere being transferred separately specific shares in the land which was subject matter of the decree and the remaining share separately in the said land to appellant No.4. The details may be stated at this stage. Out of the total area of 157 kanals 7 marlas, covered by the decree, the rights and interests of the decree holder in respect of an area of 137 kanals 5 marlas comprising khasra numbers 1378, 1380, 1381, 1382, 1388, 1387, 1379, 1389, 1390, 1391, 1392 and one half of khasra number 1383 were sold in favour of the first three appellants jointly and the rights in respect of an area of 20 kanals 2 marlas comprising khasra number 1364 and the remaining one half of khasra number 1383 were sold to the appellant No.4. Significantly, however, the instrument did not specify the shares of the sale price contributed by each of the vendees. On 30th September, 1979, respondents instituted, in the Court of Civil Judge, Attock, a suit against the appellants, for pre-emption of the said sale. The respondents based their right of pre-emption on their being collaterals and heirs of the vendor. The appellants contested the suit and on the pleadings of the parties various issues were framed by the trial Court. The main-plea in defence raised by the appellants was that they were tenants on the suit land at the time of its sale and therefore the respondents (plaintiffs) did not have a superior right of pre-emption as against them. The learned trial Court found that out of the lands in suit, appellants No.l to 3 were tenants in part of the suit land at the time of sale comprised in khasra numbers 1379 and 1388 to 1392. They were not tenants in respect of the rest of the suit landj On this finding the trial Court by its judgment dated 14th April, 1981, decreed the suit of the respondents in respect of an area measuring 74 kanals 3 marlas, namely, the land in respect of which the appellants were found to possess tenancy rights. The decree directed the payment of Rs.30,104,22 which was proportionate share of the total sale price. The result was that the suit of the respondents in respect of rest (of) the land was dismissed. As the success was divided between the parties both parties filed first appeals to challenge the judgment and decree passed by the trial Court before the District Judge, Attock. By a common judgment dated 15th March,1982, the learned Additional District Judge, Attock, who decided the appeals, dismissed the appeal of the present appellants and accepted the appeal of the respondents, and decreed the suit in their favour in respect of the entire land in suit on payment of Rs.64,000/-. The decision of the learned Additional District Judge proceeded on the principle of sinker, whereby it was found that while appellants No.l to 3 were tenants of the land in suit, appellant No.l was not a tenant in respect of any part of the land at all, therefore, by joining him in the sale they had lost their superior rights by the doctrine of sinker. The appellants then filed two regular second appeals in the Rawalpindi Bench of the Lahore High Court. By a common judgment dated 24th April,1982,. a learned Single Judge of the Lahore High Court dismissed both appeals in liniine. The only contention advanced in support of the appeals before the High Court was that the sale deed by which the appellants had purchased the land, the land in share of the appellant No.4 was separately shown and therefore, the sale was severable. In other words the contention was that in fact there were two sale transactions incorporated in the same instrument, one in favour of the first three appellants and the other in favour of the appellant No.4, and therefore the doctrine of sinker was not attracted in the case of the remaining three appellants. This contention was repelled by the learned Single Judge for the reasons which appear in the following part of his order: "There is, however, nothing in the sale deed indicating as to how Saadat Khan had shared the sale price which has been mentioned in lump sum. The land purchased by Saadat Khan cannot be separated from that of his co-vendees as his precise share in the sale price is not known. The sale in. the instant case is, therefore, not divisible. As a result, the vendees who have been found to be tenants would be hit by the doctrine of sinker due to their having associated with them a stranger".The appellants then brought two separate petitions for. leave to appeal before this court and leave was granted to consider the following contentions: "(/) the sale was not of land/immovable property but of the rights under decree; (//) the land covered by decree was separately described and assigned to set of vendees having right of pre-emption and another to stranger; (Hi) the share was so specified as to make proportionate price of the land capable of reckoning.So the principle of sinker did not apply". Malik Muhammad Jaffar learned counsel for the appellants has re-urged the three contentions noted in the leave granting order as stated herein above. In respect of the first contention he invited us to examine the nature of the sale and particularly the subject matter of the transaction evidenced by the instrument dated 30th July, 1978. In a well prepared argument learned counsel raised the question that the terms of the sale instrument clearly spell out that the subject matter of transfer was the rights under the pre-emption decree obtained by the vendor and not the land described therein. He referred to the title of the instrument which reads as under:Proceeding on this premise that the sale related to the rights of the decree holder under the pre-emption decree, learned counsel forcefully contended that no right of pre-emption accrued in favour of the respondents, in that, by virtue of section 6 of the Punjab Pre-emption Act,1913 (hereinafter referred to as the Act) which recognizes such a right to exist in respect of "agricultural land" and "village immovable property". The submission was that the sale in suit did not relate either to such land or immovable property, but to intangible rights under the decree. Learned counsel referred to the definition of the said expressions in clauses (1) and (2) of Section 3 of the Act. Learned counsel also referred to the provisions of Order XXI Rules 15 and 16 of the CPC to urge that the rights of decree holder or transferee of the decree are distinct. According to the learned counsel the purchaser under the transaction had merely acquired the right to execute the decree by making an application under Order XXI Rule 16 and his rights were inchoate, since the proceedings with regard to notice before execution of the decree were required to be taken in terms of Rule 16.Learned counsel asked, can such creation of rights be equated with the sale in respect of agricultural land or village immovable property? We have carefully considered the arguments of the learned counsel and regret our inability to find force in them. The admitted position is that the sale transaction in suit had taken place after Nazar Muhammad, the vendor (decree holder in the previous suit) had already deposited the pre-emption amount in court. On the strength of this fact it was urged by Mr.Bashir Ahmad Ansari, learned counsel for the respondents, that by virtue of the provisions of Order XX Rule 14 CPC, the title in the property which was subject matter of the earlier pre­emption decree stood vested in Nazar Muhammad from the date of such payment and therefore the transaction created in substance and in reality a right in the land. Such a transaction of sale, it was urged, is subject to all incidents of the right of pre-emption recognized under the Act. Counsel submitted that therefore the provisions of Order XXI Rule 16 CPC are not relevant at all. The principle underlying Section 4 of the Act, whereby the power of the Court to determine the real or substantial nature of the alienation whether it was a sale ornot, ecognizes that the form of the transaction is not material but the Court has to determine if the transactien amounts to a sale in fact, then notwithstanding its form the right of pre-emption will come into operation. It is clear to us that what the appellants were purchasing was not a mere paper decree or the right to execute a decree, unrelated to the rights in land which was the subject matter of the decree. Indeed in view of the fact that the decree holder had already acquired title in the land by virtue of the payment of pre-emption money apparently he was transferring that right in land through the transaction. Whether the possession was not immediately transferred, or was to be obtained by means of execution proceedings, will not have a material bearing on the nature of the transaction as a sale in respect of agricultural land. Once it is held that the transaction effected a transfer of a right in land, it follows that any right arising out of such sale of land in favour of a third party would automatically flow from such transaction. In this connection reference may be made to Allah Ditto Vs. Fateh KJian (PLD 1970 Lahore 168) in which the question with regard to the right of pre­ emption under the Act in respect of land permanently settled under the Displaced Persons (Land Settlement) Act, 1958, was considered. It was urged in that case that a sale by an allottee of land under the Settlement Law was not subject to right of pre-emption because a sale of allotment was not a sale in respect of agricultural land but a sale of mere right of allotment. It was held that since the allotment gave the right of alienation to the allottee, even though the allotment was liable to be cancelled under Sections 10 and 11 of the Displaced Persons Act if found to have been obtained by fraud and misrepresentation, the sale of right of allotment does fall within the purview of Section 4 of the Act. Reliance was placed on Syed Abdul Rashid Vs. Pakistan and others (PLD 1962 SC 42) in which following dictum was laid down: "It is difficult, in the circumstances, to imagine how it can be said that the interest acquired by the allottee in the property is merely a personal interest which cannot be inherited. In our view, having regard to the rights expressly conferred upon him by the Scheme itself, an allottee, in whose favour an allotment has been confirmed, acquired a right which is in every sense of the term a 'real property' in its true juristic concept an interest in land". From the aforesaid dictum laid down by this Court it will be manifest that the crucial test is whether a right is acquired in the land which is tantamount t real property, in order to attract the provisions of the Act. The case of Syed Abdul Rashid was followed by Jallu Vs. Muhammad Klian and others (PLD 1973 SC 347) in which the maintainability of the pre-emption suits in respect of sale by the vendors of their rights and interests in the evacuee land held by them as temporary allottees^ confirmed allottees or permanent transferees was considered. In this case the dictum laid down in the case of Syed Abdul Rashid (Supra) was re-affirmed and in an exhaustive judgment it was held that since no right or interest in the land was created by temporary allotment the same did not fall within the purview of Section 4 of the Act and was not subject to pre-emption because such allottees could not sell such non existent rights. As regards the permanent transferees, since, they were conferred full ownership rights under Settlement Act, the sales made by them were held subject to right of pre-emption. .Even in respect of confirmed or permanent allottees, in view of the dictum laid down in the case of Abdul Rashid (Supra) although the allottee did not become absolute owner of the land, since he acquired interest in the land, his right was equated with occupancy tenancy and was, therefore, held to be subject to the right of pre-emption. The conclusion was formulated by the Court as hereunder: "(1) There is no right of pre-emption in regard to sale by temporary allottees of their rights in the lands as they do not get any saleable interest in those lands held by them temporarily. (2) Permanent transferees under the Land Settlement Act acquire full ownership rights of the lands conferred on them and the sale by them is the sale of agricultural land owned by them which is subject to the right of pre-emption under the Pre-emption Act. The rights in land allotted to confirmed allottees under the Land ettlement Act and the Settlement Scheme is "real property" and the rights conferred on hem fall in the category of 'village immovable property'. The sale of such rights is pre-emptible under the Punjab Pre­ emption Act". The aforesaid discussion leads us to the conclusion that in the present case the transaction in question did involve the transfer of rights and interests in immovable property which inhered in the decree holder in the previous suit by virtue of the decree and the payment of the pre-emption amount. But for this, it seems to us that the sale of a pre-emption decree in which the payment of amount was not deposited would be purely sale of a decree creating a personal right, which cannot be transferred to a third person, for the reason that such a decree is a judicial recognition of a personal right of the pre-emptor, See Mustaqim Vs. Slier Bahadur (PLD 1962 Peshawar 14). In such a case no right is created in favour of the transferee or an assignee of the decree. But in the present case since the title in the property stood vested in favour of the pre-emptor by virtue of the payment of the pre-emption amount under the decree, rights in property had accrued to him, therefore, he could transfer by sale his rights in land to the appellants. However, since such rights were created by sale in agricultural land, or village immovable property the same gave rise to the right of pre-emption in favour of the respondents (See 94 P.R. (1902). As there is no dispute that the land in suit was agricultural land, in the view we have taken the conclusion would be that the transaction in question was a sale in respect of agricultural land within the meaning of Section 3 of the Act. Therefore, the reliance of the learned counsel for the appellant on Hardit Singh Vs. Mohindar Singh and others (AIR 1937 Lahore 755) is not relevant. The other cases referred to by the learned counsel with regard to the subject matter of sale are similarly irrelevant. In this view of the |matter we find no substance in the ftisl conlenVkm of Vive. le.avv\e,d counsel. The next two contentions can be taken up together as they referred to the question whether the doctrine of sinker was attracted in the present case. The contention of the learned counsel for the appellants was that the land covered by D the decree was described and assigned, in the transaction in question, in favour of the first three appellants separately as vendees and separate portion of land was described as assigned to appellant No.4. In other words, the submission was that the transaction was divisible so that the transfer in favour of the first three appellants jointly who had a superior right of pre-emption by virtue of their being tenants in the land, was not liable to be vitiated, merely because separately described land in the same instrument was transferred to appellant No.4 who was stranger having no right of tenancy. The admitted position in the present case is that separate parcels of lands were described in the instrument to have been transferred to the first set of three appellants and appellant No.4. However, so far as the price or consideration is concerned it was shown as paid by only one of the vendees. Mr.Bashir Ahmad Ansari, learned counsel for the respondents has referred to Muhammad Ismail and others Vs. Karamat All (PLD 1989 SC 474) in which it was held that if a vendee having a superior right of pre-emption joins with another vendee who is a stranger having no such right, if such a transaction is through a single sale deed and they come into a possession of the suit land jointly with common interest in it, the transaction would be indivisible, attracting the doctrine of sinker. However, the position now stands settled by a'recent decision of this Court in Civil Appeal No.10/1983, Mir Ahmad son of Ghulam Muhammad VsAttaullah alias Alia Muhammad and others, and connected Appeal No.20/83 Muhammad Anwar KJwn and others Vs. Attaullah alias Atta Muhammad and others, where it has been held that "in pre-emption suits where a vendee having an equal or superior right of pre-emption associates a stranger i.e. a person having an inferior right of pre-emption than the pre-emptor, the rule of sinker will apply and the suit decreed unless the impugned sale is divisible i.e. it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified". In the light of the aforesaid decision the transaction in the present case cannot be held to be divisible, so as to avoid the doctrine of sinker, for the simple reason that the amount paid towards the price has not been separately apportioned to each vendee but has been shown to have been paid by one of the vendees in lumpsum. Thus if the transaction is not divisible the learned Judge in the High Court was right in holding that the first three appellants cannot separately claim a superior right and defeat the right of pre-emption set up by the respondents. Our conclusion is that the doctrine of sinker has been rightly applied in this case and the defence of the appellants rejected on that account. For the foregoing reasons both these appeals fail and are accordingly dismissed but in the circumstances of this case we make no order as to costs. (MBC) Appeals dismissed.

PLJ 1991 SC 189 [Appellate Jurisdiction] PLJ 1991 SC 189 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and nasir aslam zahid, JJ. CENTRAL BOARD OF REVENUE and another-Appellants versus M/S SHEIKH GULZAR ALI and 3 others-Respondents Civil Appeals No.468 to 489 of 1980, dismissed on 30.1.1991. On appeal from judgment dat£d 22.4.1975, of Lahore High Court, in W.P. No.236 of 1973. Adjournment-- —Old cases—Collection of public revenue involved—Adjournment—Request for—Request is made for adjournment on ground that despite having informed learned counsel who was to argue appeals, he has not turned up—Learned AOR has offered to now prepare while reading relevant records in court-This obviously can neither be treated as preparation nor assistance of any value in such an important matter—-Seeking of adjournment in Court of apex is treated so casual by parties, AORs and sometimes counsel as well, as if it was a trial court-Held: In order to save litigants from torture of delays, particularly through adjourments sought by their counsel or due to lack of preparation, it has now been decided to treat such like cases as examples of lack of diligence and glaring non-prosecution—Appeals dismissed for non-prosecution. [Pp.l90&191]A,B&C Mr. Gulzar Hassan, AOR for appellants, (in all appeals), Mr. Riazul Haq Shaikh, Advocate, Supreme Court (absent) for respondent No.l (in CA 468/80). Mr. Imiiaz Muhammad Khan, AOR for respondent No.l (in C.A. 477 and 488/80). Cli. Fazal Hnssain AOR for respondent No.l (in CA 485 & 486/80). Or. Ghitlam Dastgir, AOR for respondent No.l (in CA 471/80). Rao M. YoiisafKhan, AOR for respondent No.l (in CA 475/80). Mr. M.A. Siddiqui, AOR for respondent No.l (in CA 479/80). Other respondents. Not represented. Dale of hearing: 30.1.1991. judgment Muhammad Afzal Zullah, CJ.--Thesc cases are very old. In fact the petitions were filed in 1975 while the leave to appeal was granted in 1980. On the direction of the Chief Justice the office has for sometime tried to take out old cases which were suffering for long time. Not only this, those from amongst them which are very old and in particular relate to public revenues and/or otherwise emergent, are being paid special attention. This is well known to the litigant parties therein as well as the gentlemen of the Bar generally and also through notices and lists thereof issued from lime to time. In this set of cases public revenues being involved besides the leave to appeal was granted to examine a very important question of law relating to the vires of Rule 50 of the Income Tax Rules 1972, vis-a-vis, the Income Tax Act 1922. Over and above this, the Chief Justice had in particular directed the Registrar to prepare and fix these cases for special disposal after specially informing the A.O.R. concerned. The learned A.O.R. is faithfully present but as it usually happens in such like old cases and particularly those which relate to collection of public revenue, he A has made request for adjournment on the stated ground that despite his having informed the learned counsel who was to argue the appeals, the latter has not turned up. When questioned, as to whether he himself is prepared to argue the appeals he frankly stated that he had not prepared, though it is not denied by him that it was also his duty under the prevalent law and Rules of this Court to prepare these appeals. To be fair to him he, however, offered to now prepare while reading the relevant records in this Court. This obviously can neither be treated as preparation nor assistance of any value in such an important matter. It has also to be pointed out that seeking of adjournment in the Court of apex is treated so casual by the parties, the A.O.Rs and some times the counsel as well,; as if, it was a trial Court. Though in the lower Courts also such a practice should be depricated but the case with regard to Supreme Court is different. Here the system is almost fool proof. The importance which naturally is attachable to a verdict at the apex cannot permit cither casualncss or lathergy what to talk of negligence. The performance of the Court has suffered immensely on this and such like other practices which would be considered un-imaginable in the Courts of apex in some of the civilized countries. Accordingly, in order to save litigants from torture of delays particularly those through adjournments sought by their counsel or due to lack of preparation, it has now been decided to treat such like cases as examples of lack of diligence and glaring non-prosecution. The learned A.O.R. having been told so remained unuble to plead any legal defence to such a course of action. To be fair to him again he continued begging for concession for his counsel and for his clients. This, however, cannot change the legal position. As shown above no live interest having been shown for the prosecution of these appeals for disposal they are dismissed for non-prosecution. However, as public revenues are involved and public exchequer belonging to the innocent citizens is involved, it is left open for the appellants to seek revival if so advised and if the subject-matter of these appeals is still alive; after the passage of nearly two decades from the time when the matter was brought before the High Court in its Writ jurisdiction. Therej shall be no order as to costs. (MBC) Appeals dismissed.

PLJ 1991 SC 191 [Appellate Jurisdiction] PLJ 1991 SC 191 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and Mui iammad rafiq tarar, JJ. FEDERATION OF PAKISTAN and 2 others-Appellants versus Ma}. (RETD). MUHAMMAD SABIR KHAN-Respondent. Civil Appeal No.330 of 1986, accepted on 23.1.1991 [On appeal from judgment dated 24.12.1985, of High Court of Baluchistan, Quetta, in Const. Petition No.21 of 1983]. Constitution of Pakistan, 1973-- —Art.199—Constitution petition—Maintainability of—Challenge to—Whether Constitution petition in High Court, was maintainable—Question of—Question of title is nvolved in this case-Not only this, question of possession also cannot be resolved except through proper trial-Held: This case did not qualify for entertainment in writ ursidiction and writ petitioner, in his own interest, should have been advised to approach other proper forum—Appeal accepted and inpugned judgment set aside. [P. 193]A Ch. Ijaz Ahmad, Deputy Attorney General, and Ch. Akhtar Ali, AOR for appellants. Mr. Bashir Kiani, Advocate, Supreme Court, and Mr. Ejaz Muhammad KJian, AOR for respondent. Date of hearing: 23.1.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against the judgment of the High Court of Baluchistan; whereby the Constitutional Petition filed by the respondent in a land (title/possession) case, was allowed. The order for grant of leave reads as unden- "The respondent filed a Constitutional Petition in the Baluchistan High Court Quetta seeking relief that the action of the petitioner dispossessing him from agricultural land in dispute may be declared as without lawful authority and the petitioner be directed to hand over possession of the land to him. The ownership of the land was claimed by respondent on the basis of certain registered and unregistered sale deeds executed between 1965 to 1971 by persons named in the documents as owners thereof. The Constitutional Petition was resisted on the ground that the land belonged to Government of Baluchistan and was meant for the establishment of Corps Scouts of Mahsud Scouts. The respondent was said to be the first contingent Commander of the Forces posted at Khuzdar at the relevant time and was entrusted with the job of procuring lands for that purpose. It was also averred that the possession of the land had all along been within the control of the Scouts. The learned High Court referred to as . many as 10 documents produced on behalf of the respondent and two brought on the record on behalf of the Government. An objection was raised before the High Court on behalf of the petitioner with regard to the maintainability of the Constitutional Petition on the ground that the matter involved disputed questions of fact. This plea' was, however, rejected by the learned High Court. "2. It was contended by the learned counsel for the petitioner that in the first place a Constitutional Petition did not lie under Article 199 of the Constitution and such jurisdiction, in any case, could not be invoked in matters requiring determination of factual controversies and detailed inquiry which required recording of evidence". From the bare reading of the impugned judgment it appears that the learned Judges deciding the Writ Petition were not oblivious of the seriousness and strength of the objection to the competency of the Writ Petition which must have been raised as a preliminary objection from the appellants side. At some stage they also, it seems, realised that it might be difficult to resolve serious factual controversy between the parties. However, it was felt by them that they would be able to resolve by making reference to admitted positions and records. In actual exercise, however, the learned Judges relied upon disputed documents and disputed versions. Therefore, what they originally thought possible in reality did not materialize when rendering the judgment and giving reasons in support thereof. When all this was put to the learned counsel for the respondent who opposed the present appeal and defended the High Court judgment, he contended that there was no dispute of title between the .parties before the High Court, therefore, the question of possession could be resolved in Writ jurisdiction and having been resolved, this Court should not interfere. When further questioned: as to whether, the respondent claims title in the land also, he, in the first instance, answered in the affirmative and admitted that this is strongly disputed by the appellant's side. Thus even in the very begiuning a serious dispute regarding a very important factual aspect of the case has arisen. He did not like our deciding the same in these proceedings because it would involve recording of voluminous evidence. He then took the position that even now the question of title can be left to be determined by the Civil Court . He also stated that the matter having gone before the Revenue Authorities the same dispute has been resolved against the respondent and in favour of the appellants and that the respondent has gone before the higher forum for redress. Both the learned counsel were unaware whether the Civil Court has or has not been approached by either party. They, however, have stated that the Civil Court , if approached, would have the jurisdiction in the matter. Regarding the position of the record learned counsel for the respondent relied on such records which were relied upon by the High Court and which are seriously disputed and/or interpreted otherwise by the appellants. Thus after hearing both the learned counsel the final position that emerges is that the qeustion of title is involved. Not only this the question of possession also cannot be resolved except through proper trial. With due respect to the High Court this case did not qualify for entertainment in the Writ jurisdiction and thej ,A Writ petitioner in his own interest should have been advised to approach the other! proper forum. With these remarks this appeal is allowed, the impugned judgment is set aside and parties are left to seek and pursue remedy in accordance with the] law in the proper forum. No order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 193 [Appellate Jurisdiction] PLJ 1991 SC 193 [Appellate Jurisdiction] Present: dr. NAsiM hasan shah and rustam s.sidhwa JJ -SECRETARY DISTRICT EVACUEE TRUST PROPERTY-Appellant versus QAZI HABIBULLAH and 2 others-Respondents. Civil Appeal No.278 of 1977, accepted on 23.2.1991. [On appeal from judgment dated 4.6.1975 of Lahore High Court, in Settlement Appeal No 2 of 1970]. Displaced Persons (Land Settlement) Act, 1958 (XXVIII of 1958)- —S.4—Evacuee land—Declaration as an evacuee trust property—Challenge to-m igh Court relied on a judgment which has been expressly set-aside by Supreme Court-If ufficient prima facie evidence is adduced to show that property in question was attached to a religious or charitable institution and this evidence is not displaced by any other eliable evidence, burden of showing actual creation of trust on party asserting it, is not essential and matter can be decided on rule of preponderance of evidence-Held: Order f Chief Settlement Commissioner declaring that property was an evacuee trust property and, therefore, could not be allotted to a displaced person, was correct-Appeal ccepted, judgment of High Court set aside and that of Chief Settlement Commissioner restored. [P.197]A,B&C PLJ 1975 Lahore 105 over-ruled. 1990 SCMR 143&1989 SCMR 1636 rel. Ch. Fazal-frHussain, Advocate, Supreme Court, instructed by Mr. Muhammad Aslam Cliaudhry, AOR for Appellant. Mr. A.R. Shaukat, Senior Advocate, Supreme Court, Mr. Mohammad Iqbal, Advocate, Supreme Court and Mian Ataur Rahman, AOR for Respondent No.l. Klian Itntiaz Muhammad Klian, AOR (absent) for Respondent No.2. 5/i. Abdul Mannan, Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for Respondent No.3. Date of hearing: 10.2.1991. judgment . Nasim Hasan Shah, J.—The relevant facts are that respondent No.l (Qazi Habibullah), a claimant displaced person, was allotted a garden measuring 29 kanals 8 marlas (constituting a part of Kliasra No.9663) situate in the urban area of Kasur vide order of the Garden Allotment Committee dated 27.6.1955. (This area is now being described as Kliasra No.6963/1). However, sometimes in 1960, the Kliasra in question was taken over by the Evacuee Trust Board (hereinafter called the Board) and the allotment of respondent No.l was cancelled on the ground that it was an evacuee property vide order of the Deputy Rehabilitation Commissioner (Land) dated 3.11.1960. Subsequently, the land in question alongwith some other land was auctioned by the Board in open auction and Muhammad Siddiq son of Qazi Habibullah, respondent No.l, was the highest bidder at the auction of this land for Kharif 1963 to Rabi 1965 and came into possession of the land under the auction. His father, (respondent No.l), however being desirous of retaining the allotment earlier made in his favour filed a writ petition in the High Court of West Pakistan for this purpose, but the same was dismissed as withdrawn .with the observations that the writ petitioner may file an appeal before the Chief Settlement Commissioner under Section 4(3) of the Displaced Persons (Land Settlement) Act 1958 seekinga declaration that the land in question was not an evacuee trust property, if so advised. An appeal under Section 4(3) of the said Act was, accordingly, filed by him before the Chief Settlement Commissioner which was entrusted to Mr.Muhammad Shafi Zafar, Additional Commissioner (Revenue), Lahore exercising the powers of the Chief Settlement Commissioner, but he dismissed the appeal vide order dated 23.1.1970 with the following observations: "The documents produced by the petitioner as well as the respondent show that State is the owner of the disputed land. Salag Ram Chela Sowarsati Dass Sahid Beragi was recorded as 'Dakhilkar under a Committee in the year 1891-92. Mahant Gopi Dass Chela Sowarsati Dass Sahid Beragi was recorded as Dakhilkar in 1911-12. Mutation No.1707 indicates that Badsuwan Dass Chela of Mahant Gopi Dass was recorded as 'Dakhilkar' and he was replaced by Mandir Hari Har by means of this mutation. Mandir Hari Har continued to be recorded as 'Dakhilkar' in the subsequent registers Haqdaran Zamin 1938-39 and 1945-46 through Mahant Ramji Dass B'awa Mohan Dass, detailed report of the Tehsildar dated 22.10.1936 exists on Mutation No.1707 on which this mutation in favour of Mandir Hari Har was sanctioned by the Collector. A perusal of. this report indicates that certain persons had instituted a suit in the Civil Court claiming ownership of the disputed land; but the suit was dismissed and it was also held by the Civil Court that the Manager could be selected by the public. It was held by the Tehsildar that the property belonged to Mandir Hari Har. The petitioner argues that a Major part of the land under the occupancy tenancy of Mandir Hari Har has been allotted by the Border Allotment Committee to one Col. Nafees-ud-Din Ansari and Ex.P.10 has been produced in support of this contention. It is argued that the allotment of other land of Mandir Hari Har to the said Colonel is proof that the land is not Evacuee Trust Property. The other land is not subjudice before me at present and it is for the Evacuee Trust Committee authorities to take necessary action in respect of its allotment. The documents produced by each side clearly establish that Mandir Hari Har is the occupancy tenant of the disputed land and there is therefore no doubt left that this land is attached to a religious institution as a Mandir is nothing but a religious institution. In view of this, this petition is rejected and the declaration asked for is refused". Dissatisfied with this order, the respondents filed an appeal under Section 4(4) of the Act praying for setting aside of the above order passed by the Chief Settlement Commissioner and for restoration of the order of the Garden Allotment Committee dated 27.6.1955. This appeal was accepted by a learned Single Judge of the High Court who observed, inter-alia, as follows: "All the documents which have been placed on record by the contesting parties go to show that the property is otherwise owned by the State and, as mentioned above, till 1936 it was in the name of different Mahants and Gums s&Dakhilkars, but later on vide Mutation No. 1707 Dakhilkari rights therein were transferred in the name of Mandir Hari Har. I am afraid, the material on record, which has been relied upon by the learned Chief Settlement Commissioner in declaring the property to be evacuee trust property is not sufficient to declare it as such. According to Hindu Law in order to constitute a public trust the author or authors of the same must be ascertained and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of trust, the trust property and the beneficiaries must be indicated so as to enable the Court to administer trust, if required". In reaching his decision the learned Judge relied upon a judgment earlier delivered by him in a case wherein he had elaborately dealt with this subject namely S^Abdus Saleem and 153 others Vs. Chairman Evacuee Property Tntst Board and another (PLJ 1975 Lahore 105). On account of his view, as expressed in the aforesaid judgment and re-iterated by him in the present case, the learned Judge was pleased to allow the appeal and to set-aside the order of the Chief Settlement Commissioner dated 23.1.1970. This appeal, by leave of this Court, is directed against the aforesaid judgment of the learned Single Judge of the High Court dated 4.6.1974. Learned counsel for the parties have been heard. We observe that the judgment relied upon by the learned Single Judge namely S~Abdus Saleem and 153 others Vs. Chairman, Evacuee Property Trust Board and another (PLJ 1975 Lahore 105) has been expressly set-aside by this Court in Evacuee Trust Property Board, Lahore and another Vs. Syed Abdus Saleem and others (1990 S.C.M:R.143). In fact, this Court has had occasion to deal with the question arising in this case, in some other judgments as well. Thus, in the case of District Evacuee Tntst Committee Vs. Mashraf KJian and 3 others (1989 S.C.M.R.1636) where the question was whether in the absence of any deed of trust indicating the real purpose of trust, mere production of the extract from the Record of Rights or City Surveys which describe a property as "Dharamshala" "Tikano" or by other similar expression, any such property can be declared to be attached to a religious, charitable or educational trust for the purpose of Section 4 of Act XXVIII of 1958, it was held that "the entries in the official record taken as a whole leave no measure of doubt that the property was conveyed by endowment for the charitable purpose of Dharamshala and there is no indication or any other evidence produced to show that the property was privately owned by any person". Therefore, applying the rule of preponderance of evidence the issue was decided in favour of the appellant that the property was attached to a religious and charitable trust. Similarly, this Court in District Evacuee Trust Committee Vs. Muhammad Umar & others (Civil Appeal No.K-31 of 1973) vide judgment delivered on 25.4.1989 observed:- "It is difficult to subscribe to the view taken by the High Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of Independence . The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious or charitable trust is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official records from it remains unrebutted, should not be given effect in deciding the nature of the property". Thus, the view of this Court on this question is that if sufficient prima-fade evidence is adduced for showing that the property in question was attached to a religious or charitable institution and this evidence is not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property is attached to a religious or charitable trust is not essential and the matter can be decided on the rule of preponderance of evidence. In the present case, the entries in the revenue record from 1936 onwards consistently show that the property belonged to Mandir Hari Har. The conduct, user and treatment of the property also indicate that the property was attached to the said Mandir and no cogent evidence pointing to the contrary has been shown to us. In these circusmstances, the order of the Chief Settlement Commissioner dated 23.1.1970 declaring that the property was an evacuee trust property and, therefore, could not be allotted to a displaced person was correct. The upshot is that the judgment of the High Court dated 4.6.1974 must be set-aside and the order of the Additional Commissioner (Revenue) exercising thej; powers of the Chief Settlement Commissioner dated 23.1.1970 restored. This appeal is allowed. Since a complicated question of law arose for adjudication, the parties shall be left to bear their own costs. (MBC) Appeal accepted.

PLJ 1991 SC 197 PLJ 1991 SC 197 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH CJ, abdul qadeer chaudhry and nasir aslam zahid JJ. BOARD OF INTERMEDIATE & SECONDARY EDUCATION, PESHAWAR-Appellant versus MUHAMMAD IQBAL and others-Respondents. Civil Appeals Nos.ll-P and 12-P of 1984, accepted on 17.2.1991. [On appeal from Judgment and order dated 18.5.1983, of Peshawar High Court, in W.P. Nos. 368 and 369 of 1980]. Calendar of Board of Intermediate & Secondary Education, Peshawar, 1978-- —Rr.8&9—Employees of Board—Misconduct by—Removal from service of—Re­ instatement by High Court—Challenge to—In previous writ petitions of respondents, High Court did not direct that fresh proceedings were to be initiated against respondents-Import of order was that orders be passed by chairman and right of appeal to appellate authority, i.e Board, should remain available to respondents-Operative part of judgment in previous writ petitions is unambiguous-Chairman acted in accordance with directions/observations in said judgment—Appeals against orders of chairman, were dismissed by Board and those orders were not even challenged before High ourt—Held: There could be no better case for High Court to deny relief in its writ jurisdiction-Appeals accepted. [Pp.201&202]A,B,C,D&E Qazi Attiqur Rehman, Advocate, Supreme Court, and Mr. Ejaz Muhammad Klian, AOR for Appellants. Mr. Nur Ahmed Klian, AOR (absent) for Respondents. Date of hearing: 28.1.1991. judgment Nasir Aslam Zahid, J.--These two Civil Appeals arise out of the judgment dated 18.5.1983 of the Peshawar High Court. Briefly the facts are that on account of leakage of question papers of the Intermediate Examination 1978 (Annual) of the Board of Intermediate and Secondary Education, Peshawar, (hereinafter referred to as the Board), the Board constituted an Enquiry Committee in its meeting held on 7.8.1978 to conduct an enquiry into the matter. The Enquiry Committee comprised Professor Muhammad Raza Khan, Miss Asif Jalil, Principal, Government College for Women, Abbottabad, and Professor Dr. Jamal Khan. The Enquiry Committee conducted a detailed enquiry and recorded statements of several witnesses and submitted their report. In its meeting held on 18.10.1978, the Board considered the report of the Enquiry Committee and decided to charge sheet the private respondents, employees of the Board. Professor Ilyas was appointed as an authorised officer, who served the respondents with Show Cause Notices and after affording them an opportunity to explain and defend themselves, submitted his report on 27.1.1979 finding the respondents responsible and recommended imposition of certain penalties. The Board accepted the report regarding involvement of the respondents but did not agree with the recommendations of the authorised officer regarding the quantum of punishment, as it was of the opinion that their retention in the Board in any capacity would be prejudicial to the working of the Board. The Board, therefore, ordered their removal from service with effect from the date they were suspended. Being aggrieved, respondent Dost Muhammad filed Writ Petition No. 120/1979, respondent Sher Haider filed Writ Petition No.121/1979 while respondent Muhammad Iqbal filed Writ Petition No.259/1979 in the Peshawar High Court. In these petitions, which were heard together, Peshawar High Court set-aside orders of removal from service of the respondents holding that the Board was not the competent authority. Chapter VI of the Calendar of the Board of Intermediate and Secondary Education, Peshawar, of 1978 contains rules of service. Rule 8 of such rules inter alia provides that appointments, suspension and removal of the employees of the Board in the case of Class B employees shall rest with the Chairman of the Board. Rule 9 made provision for an appeal against the orders passed by the competent authority in the case of employees of Class B to the Board. Admittedly the respondents were Class B employees and, in view of Rules 8 and 9, the competent authority in respect of respondents was the Chairman and the appellate authority, the Board. The Peshawar High Court allowing the said Writ Petitions held as follows:- "In these circumstances the impugned order of the Board dated 12.2.1979 does not carry any weight in that the only competent authority who could pass any order will be the Chairman. We, therefore, accept this writ petition holding that the Board.was not competent to pass the impugned order. The impugned order is, therefore, set aside. It is the Chairman of the Board of Intermediate and Secondary Education, Peshawar, who was competent to pass any order. In the instant case, now, it will be for the Chairman to pass any order". In compliance with the aforesaid judgment of the Peshawar High Court, the respondents were reinstated in service of the Board with immediate effect by order, dated 20.11.1979. However by separate orders passed on the same day respondents were placed under suspension. Thereafter the Chairman of the Board, by orders dated 13.1.1980, ordered the removal of the respondents from service with immediate effect and also forfeiture of their salaries excluding subsistence allowance already paid to them during the period of suspension. In hi-, order dated 13.1.1980, the Chairman recorded that the respondents were accused of corruption and misconduct in leakage of question papers of Intermediate Examination 1978 (Annual) and were accordingly proceeded against departmentaly and the authorised officer Professor Ilyas had served them with Show Cause Notices and had also afforded them adequate opportunity to explain their position and defend themselves but the respondents were found guilty of the charges and the authorised officer then forwarded the case to the Chairman alongwith record and his recommendations for imposing a major penalty on the respondents. Being aggrieved by the Chairman's order dated 13.1.1980, respondents filed appeals before the Board but the same were dismissed. The respondents then approached the Peshawar High Court for the second time. Respondent Iqbal filed Writ Petition No.368/1980 and respondents Sher Haider and Dost Muhammad filed Writ Petition No.369/1980 alleging that action was taken against them without issuance of Show Cause Notices and without'granting them any hearing on the basis of the report of the Enquiry Committee and the recommendations of the authorised officer. According to respondents, the proceedings previously taken and orders passed by the Board were set aside by the High Court in the earlier round of the litigation. In the impugned judgment dated 18.5.1983, Peshawar High Court held as follows:- NWFP Government Servants (Efficiency and Discipline) Rules, 1973 are applicable to the employees of the Board in matters of disciplinary action against them. (a) Professor Ilyas had bee" appointed authorised officer by the Board but this was invalid inasmuch as the authority in respect of the respondents,- class B employees, being the Chairman, the authorised officer should have been appointed by the Chairman. According to the High Court, the appointment of Professor Ilyas as authorised officer was not valid and any report/recommendation made by him are without lawful authority. (c) Under the Rules of 1973, three distinct persons, namely, "Authority", "Authorised Officer", "Enquiry Officer" and "Enquiry Committee" are envisaged and these three persons have to perform separate, independent and distinct functions but in the instant case the authorised officer also held a formal enquiry and this amounted to combination of two offices in one person which occasioned grave prejudice and injustice to the respondents. (d) Copies of the preliminary enquiry report and the enquiry conducted by the authorised officer were not supplied to the respondents. (e) The authorised officer had recommended in the case of Sher Haider and Dost Muhammad their reversion to the substantive posts as being promotees and on probation and further to keep them under report for some time. According to the High Court, such penalties had not been prescribed under the rules and as such the authorised officer could not have made recommendations for imposing of any penalty under the rules in case of Sher Haider and Dost Muhammad. In case of Muhammad Iqbal, according to the High Court, the authorised officer simply recommended extension of the probation and stoppage of increments. According to the High Court extension of probation was not a penalty while stoppage of increments was a minor penalty which the authorized officer was himself ompetent under the rules to impose upon Muhammad Iqbal. (/) The Chairman of the Board did not independently apply his mind but misunderstood the import of the order of the High Court passed in the previous Writ Petitions by reinstating the respondents and simultaneously placing them under suspension and passing the impugned orders dated 13.1.1980 of their removal from service without conducting the proceedings afresh. We heard the arguments of Qazi Attiqur Rehman, learned counsel appearing for the appellant. No one appeared on behalf of the respondents. Mr.Nur Ahmad Khan, A.O.R. remained absent. Judgment was reserved. Counsel for the parties, were, however, permitted to submit written arguments which they did. From the judgment of the High Court passed in the earlier writ petitions filed by the respondents it follows that the writ petitions were allowed on the ground that the Board was not the competent authority. The operative part of that judgment has been reproduced earlier. The High Court, after holding that the Chairman of the Board was competent to pass any order, then observed that now it would be for the Chairman to pass any order. The Enquiry Committee constituted earlier had already conducted an enquiry into the matter and in the light of the judgment dated 12.11.1979 in the earlier writ petitions, the Chairman, after considering the replies of the respondents to the Show Cause Notices issued by the authorised (officer), passed orders for removal of respondents. from service. Competency of the Chairman to pass such orders could not be questioned. Under the relevant regulations contained in the Calendar of the Board issued in 1978, the Chairman was the competent authority as had also been held by the High Court in its judgment in the earlier writ petitions filed by the respondents. From the judgment dated 12.11.1979 of the High Court in the earlier writ petitions it is apparent that on behalf of the respondents the only ground urged against the adverse action taken by the Board was that the orders should have been passed by the Chairman and not by the Board which was the appellate authority and as a consequence the respondents were deprived of the right of appeal. Para-3 of the judgment in the earlier petitions is reproduced here:- "Learned counsel for the petitioner states that only the Chairman of the BISE was competent to pass an order in the case of the petitioner, and the Board was the appellate authority against the order of the Chairman, but that in the instant case, the Board took upon itself the responsibility, which was to be performed by the Chairman and instead theyproceeded with the case themselves and pronounced the impugned order and in this way the petitioner was deprived of the right of appeal, which was available to him". The High Court did not direct that fresh proceedings were to be initiated against the respondents in case the Board wanted to take action against the respondents evenafter the judgment dated 12.11.1979 but directed that, as the Chairman was the competent authority, it was for the Chairman to pass any orders. The import of that order was that orders be passed by the Chairman and the right of appeal to the appellate authority, the Board, should remain available to the respondents and that was the grievance of the respondents. While passing judgment in the earlier petitions, if the High Court was taking the view that the Chairman should appoint an authorised officer, a fresh enquiry held and thereafter further action taken without reference to the previous proceedings, the High Court would have given such directions in their previous judgment. But as observed earlier, the High Court did not give any such directions but, dealing with the plea raised on behalf of the respondents that they had been deprived of the right of appeal to the Board, held that the Chairman of the Board was competent to pass any orders in the matter. The operative part of the judgment in the previous writ petitions is unambiguous. The Chairman acted in accordance with the directions/observations in the said judgment. It has also been noticed that the respondents filed appeals before the Board against the orders of the Chairman but the appeals were dismissed by the appellate authority, the Board. No grievance had been made before the High Court that the Board acted in an illegal manner in disposing of the appeals filed by the respondents. In fact, the orders of the Board rejecting the appeals of the respondents were not even challenged before the High Court. In the instant case, apart from the enquiry held by an Enquiry Committee comprising three Professors, show cause notices had also been issued to the respondents to which replies had been given and, after considering all such material, orders of removal from service were passed by the Chairman, the competent authority under the Rules. There could be no better case for the High Court to deny relief in its writ jurisdiction. Civil Appeals No.ll-P of 1984 and 12-P of 1984 are accordingly allowed and the judgments of the Peshawar High Court dated 18.5.1983 in Writ Petitions Nos.368 and 369 of 1980 are set aside. Persuant to the judgment of the Peshawar High Court, the respondents were reinstated. In the interest of justice, it is ordered that respondents will not be liable to make any reimbursement for the salaries, emoluments and other facilities received/enjoyed by them in case they have been working against their posts after reinstatement. The parties will bear their own costs. (MBC) Appeals accepted.

PLJ 1991 SC 202 PLJ 1991 SC 202 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, abdul qadeer chaudhry and muhammad rafiq tarar JJ. COMMISSIONER OF INCOME TAX, PESHAWAR ZONE, PESHAWAR- Appellant versus M/S SIEMEN A.G-Respondents. Civil Appeal No.87-P of 1983, dismissed on 21.1.1991. [On appeal from judimient dated 7.9.1982, of Peshawar High Court, in Tax Reference No.136 of 1972]T Interpretation of Statutes. —Term "return"--Used in agreement between parties—Interpretation of— Whether "return" means profit in nature of dividend or interest—Question of— Contracting parties were well ware of terminology used in such like agreements—In peculiar circumstances and background of this case, use of word "return" in agreement, could have been interpreted and xplained n basis of intention of parties-It is established principle of Islamic Rule of interpretation that when two contracting parties agree to do something by a mutual valid contract or intend oing so, and it is not prohibited by Islam, a third party like Income Tax Department or for that matter, court has no power to modify either contract or with what they intended to do with t—Held: On touchstone of Islamic Rules of interpretation, it can safely by held that Income Tax authorities cannot change nature of contract intended by parties thereto, under pretext hat rule of interpretation of a fiscal law in this behalf, is different-Appeal dismissed. fPp.203.204&205JA B,C&D PLD 1976 Lahore 930, PLD 1982 SC 139, PLD 1989 SC 613, PLD 1986 SC 360 = PLJ 1986 SC 576 and PLD 1990 SC 99 = PLJ 1989 SC 600 rel. Mian M~Ajmal, Deputy Attorney General, and Mian Shakiraullah Jan, AOR (absent) for Appellant. Mr.S. Safdar Hussain, AOR (absent) for Respondents. Date of hearing: 21.1.1991. judgment Muhammad Afzal Zullah, CJ.—This appeal through leave of the Court is directed against the decision of the Peshawar High Court in an Income Tax matter. Leave to appeal was granted for re-examination of the question dealt with in the impugned judgment: "whether, on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in finding that the return on capital paid by Telephone Industries of Pakistan Limited to Siemens AG on the holding of the latter in the share capital of the former was not dividend within the meaning of the definition given in Section 2(6-A) of the Income Tax Act, 1922". The High Court answered the question in the negative and it has been held that the disputed amount was "dividend" within The meaning of the term as defined in Section 2(6-A) of the Income Tax Act.The facts taken from the impugned judgment for the limited purpose of the present appeal and the short point involved therein are that in 1952 the Government of Pakistan, the respondent herein (M/s Siemen A.G.) and Farid Sons Limited of Karachi: entered into an agreement for incorporation of a limited company under the tille Telephone Industries of Pakistan". It was, inte/'-alia, provided by the agreement that dividend of 4^ was to be declared on the paid up share capital tor the lime being or proportionately lower sums in years of less production as the case may be, that net profits that may accrue shall first be used for declaring a dividend not exceeding 4% on invested capital and for paying other charge. The dividends were contingent on sufficient profits being made and were not otherwise guaranteed. With the expansion of the venture the need for capital was felt and the said parties amended the agreement in July, 1966. This time it was provided that the respondent assessee had agreed to contribute additional capital towards investment subject to the condition that a fair return would be granted on such investment. It was, therefore, stipulated that their investment under the first expansion programme will bear return of 4% per annum from 1st April,1964 and all subsequent investments will bear a return of 5% per annum and further that the Government had guaranteed the performance by the Telephone Industries of Pakistan of its part of the agreement. Accordingly, for the assessment years 1968-69 the respondent assessee company showed in its return a sum of Rs.4,39.769/- as income from the dividend. The Income Tax Officer held that this amount was "interest" and not dividend. Assessee's appeal before the Income Tax Tribunal failed but on Income Tax Reference moved before the High Court, the point of view of the assessee respondent having been upheld leave to appeal was granted; to examine the nature, meaning and connotation of the "return" which was guaranteed to the respondent/assessee through the aforementioned agreement. Although the Income Tax Officer had treated the return as interest, the learned Dy. Attorney-General stated that he would stress the point that the return in this case, keeping in view its background, was in the nature of an "obligatory charge" and that being so it could not fall within the definition of "dividend". Learned counsel has taken us through the history and the development of the venture and the pitfalls it suffered from time to time. It is absolutely clear that if the return in question had not been guaranteed in the manner provided in the agreement as profit to the respondent/assessee, the results might have beeni different. It is also an admitted position that the contracting parties were well aware of the terminology used in such like agreements. The argumentpf the learned counsel actually is based on this assumption. According to him there was nothing to prevent the use of the word "dividend", itself; instead of the word return being used. On our asking learned counsel took out the meaning of the word 'return' from Black's Law Dictionary, Ballentine's Law Dictionary and Income Tax Dictionary. He had to admit that return has generally been understood as profit in the nature of dividend and not in the nature of interest and/or obligatory charge. The learned counsel himself, representing the department, brought under consideration the intention of the parties; notwithstanding the hesitance on the part of the departmental authorities (when interpreting the fiscal Statutes) to adopt underlying intention. We are of the view that even if he would not have relied on this aspect, in the peculiar circumstances and background of this case, the use of the word 'return' in the agreement could have been interpreted and explained on the basis of the intention of the parties notwithstanding the afore stated legal position. It is not denid that there are exceptions to the said rule of interpretation. With this addition to the elaborate reasons and discussion by the High Court on the subject with reference to the then available case law, we agree with the conclusions reached in the impugned judgment by the High Court. This appeal is liable to be dismissed. Learned counsel in the alternative repeated the same argument as was advanced in the High Court that the return having been guaranteed notwithstanding the Company running into losses, the return should be treated as interest. We do not agree with them. When questioned: what would be the source of the payment of so called return which in reality, as already discussed, was dividend, the learned counsel thought that the dividend put in reserve could always be utilized for payment of such return. Even if the reply is hypothetical, the fact remains that the decision of this case would not turn upon the source from which the payment of the return, which has been heldto be dividend, would be made In this regard there is yet another important aspect which needs serious consideration. All the questions being examined in this case are relatable to interpretation of a Statute rather than admitted and direct statutory command. It was held in the case of Haji Nizam. Khan by the Lahore High Court (PLD 1976 Lahore 930); and subsequently affirmed in several legal fields, including criminal and fiscal, that so long as the existing Statutes are not brought in conformity with Injunctions of Islam (Article 227 of the Constitution), their interpretation, application and enforcement, wherein discretionary judicial elements are involved, only that course would be adopted which is in accord with the Islamic philosophy, its common law and jurisprudence. (See also the case of Muhammad Bashir PLD 1982 S.C.139; and the case of Mian Aziz A. Shaikh PLD 1989 S.C.613). Coming to the specific Islamic Rule of interpretation as was briefly discussed in connection with another fiscal question in the case of Mian Aziz A. Shaikh a fundamental principle, is established that when two contracting parties agree to do something by a mutual valid contract or intend doing so, and it is not prohibited by Islam, a third party, like the Income Tax Department or for that matter the court has no power to modify either the contract or with what they intended to do with it. The most important relevant Injunctions of the Quran are contained amongst other in Chapter Maida Verse (1) and Chapter Alisra's Verse (34)-to the effect that the contracting parties are bound to fulfil their contracts. And that they would remain liable for any contraventions - obviously both here and hereafter. There are very strong Commands and have been enforced in various legal fields. Recently a major contravention regarding the law of pre-emption was resolved by the Supreme Court and this principle was also applied - See the case of Said Kama ! Shah (PLD 1986 Supreme Court 360 at 381 and 418 et seq). What was emphasized regarding prohibition against third party intervention in mutual contracts in the well "established Sunnah Injunction is that: People be left alone in their mutually agreed transactions; "so that they be blessed by Allah through free circulation of <3JJ wealth) amongt themselves" - (Bokhari: Kitabul-Baua - No.3709; Abu Daud: Kitabul-Ajara No.3442). When parties by mutual free consent enter into a valid contract, then the third parties have no right to intervene either to frustrate the contract or to change its nature - (Government of N.W.F.P. Vs. Said Kamal Shah 360 at 442). The question relating to exceptions has been dealt with separately on the basis of Islamic principles of Zaroorat, Zarar, public interest as such. State policy, State necessity etc. in the case of Land Reforms (Qazalbash Waqf Vs. Chief Land Commissioner, PLD 1990 Supreme Court 99 = PLJ 1989 SC 600). As a necessary conclusion drawn from the foregoing, it can be safely held in this case also that on the touchstone of Islamic Rules of interpretation, which unless excluded otherwise, under the present Constituional set up the Courts are bound to apply in preference to the ''contrary so called accepted rules of rv interpretation under the other jurisprudential concepts (and the fiscal laws are no exception in this behalf), the income tax authorities cannot change the nature of the contract intended by the parties thereto, under the pretext that the rule of interpretation of a fiscal law in this behalf, is different. For all these reasons and in the light of the foregoing discussion this appeal is dismissed. There shall be no order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 205 [Appellate Jurisdiction] PLJ 1991 SC 205 [Appellate Jurisdiction] Present: dr. nasim hasan shah and rustam s.sidhwa JJ. ALLAH RAKHA, MUHAMMAD AKBAR-Appellants versus MUHAMMAD YOUSAF and others-Respondents. Civil Appeal No.118 of 1980, dismissed on 11.2.1991. [On appeal from judgment dated 3.11.1979, of Lahore Hidi Court, in R.S.A. No.624 of 1965]. Civil Procedure Code, 1908 (V of 1908) —-O.XXK R.6 read with O.XVIII, R.2 and O.XXIII, R.3~Death of two of plaintiffs—Legal representatives of one deceased plaintiff not brought on record—Whether suit abated— uestion of—Leave was granted to consider question whether date given for hearing of arguments was not a step short of "conclusion of hearing" and hence suit did abate-Appellants ontend that under Order XVIII, Rule 2 CPC, hearing of arguments is a part of proceedings and death of a party having taken place after close of evidence, proceedings had ot concluded—In this case, date was given for hearing of arguments but none of parties appeared to address arguments—Held: Courts below were right in considering that for urposes f Order XXII Rule 6, hearing will be deemed to have concluded with conclusion of evidence of parties—Held further: No case for interference has been made out—Appeal dismissed. [P.207]A,B,C,D&E PLD 1961 B.I 58 rel. Sit. Abdur Rushid, Advocate, Supreme Court, instructed by Mr. Manzoor E/a/ii, AOR (absent) for Appellants. Respondents: Exparte. Date of hearing: 11.2.1991. JUDGMENT Nasim Hasan Shah, J.--The appellants, who arc unsuccessful defendants, seek reversal of the judgment of the Lahore High Court dated 3.11.19 7 9 whereby their Regular Second Appeal was dismissed. The facts, in brief, are that the plaintiffs/respondents challenged the order of the Collector dated 17.9.1960 refusing to redeem the mortgage. The evidence of the parties in the suit was closed on 26.4.1963 and the case was adjourned for arguments. On 9.9.1963. the date fixed for hearing of the arguments, none of the parties appeared before the Court. Accordingly, no arguments were heard and the Court fixed 12.9.1963 as the date for announcement of the judgment. The judgment was announced on 12.9.1963 on which date the suit was decreed. The appellants challenged the judgment & decree by an appeal before the District Judge. Before the Appellate Court the appellants submitted an application that as two of the plaintiffs Rehmal Ali and Shahab Bibi had died after close of the evidence and before the pronouncement of the judgment the suit should be deemed to have abated. This application was, however, rejected on the ground that the legal representatives of Mst.Shahab Bibi were already on record and as regards Rchmat Ali though he had died after the conclusion of the evidence of both the parties and before the pronouncement of the judgment but the provisions of Order XXII Rule 6 of the C.P.C. preserved the proceedings in such an eventuality. The appeallants after rejection of their above plea applied under Order XXIII Rule 3 CPC alongwith an application under Section 5 of the Limitation Act seeking permission to implead in their appeal the heirs of Rehmat Ali. This application was disallowed and the appeal having been filed against a dead person was held to have abated. Feeling dissatisfied, the appellants Tiled a Regular econd Appeal before the High Court but this too was dismissed by a learned Single Judge agreeing with the learned District Judge that the suit filed by the respondents had not abated because the death of Rehmat Ali took place after close of the evidence of the parties and before pronouncement of the jdugment. Leave was granted to consider the question whether the date given for hearing of the arguments was not a step short of "the conclusion of the hearing" for the purposes of Order XXII Rule 6 CPC and hence the suit did abate for not bringing his legal representatives on the record. Sh.Abdul Rashid, learned counsel for the appellants, has submitted that the hearing could not be said to have concluded because hearing of arguments is a B part of the oceedings under Order XVIII Rule 2 C.P.C notwithstanding the fact that the death of a party took place after the evidence was closed as the arguments were still to be (?) proceedings had not concluded We observe that the same plea was raised before the learned Single Judge also but it was repelled relying on the judgment of the West Pakistan High Court in Abdullah and another Vs. Mian Tafazzid Hitssain and another (PLD 1961 Baghdad-ul-JadiJ 58). In this cae too. the question was whether the hearing of a case concluded only after the conclusion of the arguments and it was held that the hearing of arguments is not enjoined on the Court by the Civil Procedure Code, 1908 and all that can be said on the language used in Rule 2 of Order XVIII CPC is that if the parties or their counsel want to address arguments, the trial Court has to give them an opportunity to do so, but the hearing of the arguments is not essential before disposing of the case. It was further held that if the arguments are not heard before the judgment is passed the hearing will, for the purpose of Order XXII Rule 6 of the Civil Procedure Code 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if the arguments are heard, the stage at which the hearing concludes is the one when arguments conclude. In this case, although a date was given for hearing of the arguments but none of the parties appeared to address the arguments which showed that in fact they were not interested in addressing !hc arguments and, indeed, did not wish to £> address arguments. In these circumstances, the Courts below were right in considering that for the purposes of Order XXII Rule 6 CPC the hearing will be deemed to have concluded with the conclusion of the evidence of the parties in this case. Sh.Abdul Rashid could not cite any authority in which a different view than that taken in P.L.D.1961 B.J.58 has been taken by any Court in Pakistan and we consider that there is no need to unsettle the settled law which appears to be based on good sense and is also otherwise quite reasonable.' The result is that no case for interference has been made out. This appeal is, therefore, dismissed but since no one has appeared to contest it, there shall be no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 208 PLJ 1991 SC 208 [Shariat Appellate Jurisdiction] Present: nasim hasan shah, chairman, shafiur rahman, abdul qadeer chaudiiry, pir muhammad karam shah and maulana muhammad taqi usmani, JJ FEDERATION OF PAKISTAN, THROUGH SECRETARY MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS-Appellant versus PUBLIC AT LARGE-Respondetns Shariat Appeal No.5 of 1989, dismissed on 18.2.1991. [On appeal from judgment dated 6.10.1988, of Federal Shariat Court, in S.S.M. No.196 of 1983]. Members of National Assembly (Exemption from Preventive Detention & Personal Appearance) Ordinance, 1963 (IX of 1963)-- —Ss.3 & 4-Members of National Assembly-Privilege of-Whether provisions of Sections 3 & 4 are repugnant to Injunctions of Islam-Question of- Whenever a Member of ational Assembly is busy attending a session of House, Courts invariably grant him accommodation and do not prevent him from discharging his duties as such Member— rgument that his obligation to national interests deserves preference over individual 'interests.," is mere theoretial than real—This privilege results in negation of concept of quality of citizens before law-Held: Provisions relating to exemption of M.N.As from appearance before Courts and provisions for stay of proceedings of courts for whole eriod when Assembly is in session and for a period of 14 days before and 14 days after session, are manifestly repugnant to Injunctions of Islam- Appeal dismissed. [P.211]A&B Hafiz S.A. Rahman, Advocate, Supreme Court, instucted by Ch. Akhtar AH, AOR for appellant. Mr. K.G. Sabir, Advocate, Supreme Court for Respondents. Date of hearing: 18.2.1991. judgment Nasim Hasan Shah, J.(Chairman).—In this appeal, the question requiring determination is whether and to what extent the provisions of Section 3 and Section 4 of the "Members of National Assembly (Exemption from Preventive Detention & Personal Appearance) Ordinance, 1963 (Ordinance IX of 1963) are repugnant to the injunctions of Islam? Section 3 of this Ordinance provides: 3." Tlie Privilege etc— (1) No member shall be detained under any law relating to preventive detention, nor shall any Member be required to appear in person in any Civil or Revenue Court, or before any Election Tribunal, during a session, and for a period of fourteen days before and fourteen days after the session. (2) nothing in subsection (1) shall be construed as applying to any Member who is detained under any such law as is referred to in sub­ section (1)-- at any time during the period commencing on the fifteenth day next after the conclusion of a session and ending on the 15th day before the commencement of the next session; or (a) for reasons of State connected with defence, external affairs, or the security of Pakistan or any party thereof. The Federal Shariat Court has found that the provision of Section 3 to the extent of that it dispenses with the requirement of personal appearance of the Member in any Civil or Revenue Court during a session and for a period of 14 days before and 14 days after the session if a Member is a party to the proceedings is repugnant to the Injunctions of Islam. Section 4 of the Ordinance reads as follows:- 4. Proceedings in Civil Courts, etc.—(I) Notwithstanding anything to the contrary contained in any law for the time being in force, no Civil or Revenue Court proceed, during a session and for a period of fourteen days before and fourteen days after the session, with anv matter before it in which a Member is a party, unless the privilege conferred by Section 3 is waived, by application made in writing to the Court by the Member concerned with the matter, and, where more Members than one are so concerned, by all of them. (2) The provisions of sub-section (1) shall apply to all matters pending immediately before the commencement of this Ordinance in any Civil or Revenue Court, in which a Member is a party, and no such Court shall proceed further with any such matter, unless the privilege referred to therein is waived in accordance with the provision thereof, or the period specified therein has lapsed." In other words according to Section 4, no Civil or Revenue Court shall proceed, during a Session and for a period of 14 days before and 14 days after the Session, with any matter before it in which a Member is a party unless exemption is waived on application to the Court by the Member concerned. The Federal Shariat Court found the above Sections of the Ordinance repugnant to the Injunctions of Islam. The reasons given for coming to this conclusion are decipherable from the following observations made in its judgment dated 6.10.1988, impugned herein:- "The concept of equality between human beings is the corner stone of, Islam. The Holy Quran made the concept very clear and left no ambiguity that all human beings are equal in the eye of law and there is no difference between them except for their piety. Al-Hujurat 49: 13, Al- Nisa 4:1, Younus 10:19 refer. The Holy Prophet (s.a.w.s) laborated the idea of equality of human beings in many traditions, one of which is that all mankind is equal like teeth of the comb. There is no preference for an Arab over a non-Arab except for his piety. Kindly see Musnadul-Imam Ahmad Bin Hambal Vol. V P.lll". "In the matter of administration of justice, Surah Al-Nisa, verse 135 requires that justice be rendered regardless of the status of the parties before the Court. Similar provision is made in the same Surah, Verses 42 and 58. In Surah Al-Baqra Verse 282 it is provided that witnesses cannot refuse to appear in Court whenever they are called upon to do so. There are Ahadith in support of it. In a Hadith stated by Hazrat Sumra, the Holy Prophet (s.a.w.s) commanded that whenever dispute between the parties is brought before the Court, the party who refuses to appear be deprived of its rights. (Al-Haisami Majma-ul-Zawaid, Vol.IV P.198). Hazrat Umar, Hazrat Usman, Hazrat Ali when Caliphs personally appeared in Court in their civil disputes. (Kanzul Amaal Vol. V page 838, Ibne Kasir Al-bidaya Walnihaya, Vol. VIII page 4, Al-Bahaky-Alsunanul-Kubra, Vol X page 136). Therefore, we are of the view that no preference can be given to a party before the Civil or Revenue Court." "In Islam a person can be forgiven for his failure to perform Haquq-Ullah .but with respect to Huqua-ul-Ibad a person must either perfrom it or obtain permission of the person whom he owes the rights so much so that even prayers can be interrupted for attending to Huquq-ul-Ibad". "The purpose in granting exemption from personal appearance before a Civil or Revenue Court and provision for stay of proceedings against a Member of the NationalAssembly is to allow him to sit in the proceedings without interruption. The personal appearance of a litigant before such a Court is not always necessary". And note was taken of the fact that a Member of the National Assembly can absent himself from the House with its leave (vide Article 64(2) of the Constitution. Moreover, a Member can be represented before a Court through an agent and his evidence can even be recorded on commission. Accordingly, the proceedings before the Civil or Revenue Courts need not be stayed even where the Member of the Assembly cannot appear personally before these Courts. On this view of the matter, the Federal Shariat Court concluded:- "That the provisions in Sections 3 and 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance IX of 1963 as amended up-to-date to the extent of personal appearance of the Member and stay of proceedings during a , Session and before and after 14 days ofrany Session if the Member is a party, is repugnant to the Injunctions of Islam. Therefore, we order that Section 4 of the Ordinance be omitted and Section 3 be amended to allow exemption on application of the Member before Civil or Revenue Court subject to the discretion of the Court". Hafiz Z.A. Rehman, learned counsel appearing on behalf of the appellant (Federation of Pakistan), submitted that the Members of the National Assembly owe a duty towards every citizen of the State in each and every matter which is being discussed in the National Assembly and regarding which some decision is to be taken as a policy decision of the State or some law applicable to each and every citizen of the State is to be enacted in the best interest of the country and its citizens. It is a duty towards the State and the people of the State. The matters under consideration before the National Assembly being of material importance have to be given preference over matters involving individual interest. The duty to attend and to pay full attention to the business before the National Assembly comes under Huquq-ul-Ibad. If there are two matters of Huquq-ul-Ibad at one and the same time, one requiring immediate and preferential attendance and consideration, has to be attended first. Thus the provisions of law contained in Sections 3 and 4 of Ordinance IX of 1963 providing protection to Members of National Assembly, keeping in view their duties of national importance, does not in any way come in conflict with the Injunctions of Islam. As such the declaration made bv the learned Federal Shariat Court about these provisions was not correct. We do not find any force in these submissions because we can take judicial notice of the fact that whenever an Hon'ble Member of the National Assembly is busy attending a session of the House, the Courts, on being apprised of this fact, invariably grant him accommodation and do not prevent him. from discharging his duties as such Member and the argument that his obligation to such Member and the argument that his obligation to national interests deserves preference over indhidual interests is more theoretical than real. The privilege conferred on Members by Sections 3 & 4 of the Ordinance appears to be designed, in point of fact, from making it almost impossible to obtain justice as against him, if he is arrayed as a party before a Court so long as he continues to be a Member of the National Assembly. This results in negation of the concept of equality of citizens before law in the Islamic Republic of Pakistan. The verses of the Holy Quran and the Ahadith of the Holy Prophet cited in the judgment of the Federal Shariat Court clearly establish that the provisions relating to exemption of Members of the National Assembly from appearance before the Courts "and the provisions for the stay of proceedings of these Courts for the whole period when the Assembly (is) in session and for a period of 14 days before & 14 days after the session are manifestly repugnant to the Injunctions of Islam. Accordingly, they require amendment with a view to bringing them in accord with the Injunctions of Islam. The Federal Shariat Court had directed that the necessary amendments be made by the 10th of April, 1989. This direction remained stayed on account of the preferment of this appeal by the Federation of Pakistan. As we have found no force in this appeal, the same must be dismisseal. Although the order of the Federal Shariat Court has been upheld but the date specified by the said Court for carrying out the amendments has expired during the pendency of the appeal. We, therefore, direct that the amendments in Ordinance IX of 1963 as directed by the Federal Shariat Court shall now be carried out by the 30th June, 1991 and in case the riecessary amendments in the provisions of Section 3 and Section 4 are not carried out by the said date, the said provisions shall cease to have effect on 1,7.1991. (MBC) Appeal dismissed.

PLJ 1991 SC 212 PLJ 1991 SC 212 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, abdul qadeer chaudhry and muhammad rafiq tarar, JJ. Mst. KANEEZ BIBI and another-Appellants versus SHER MUHAMMAD and two others-Respondents Civil Appeal No.174 of 1985, accepted on 19.2.1991. On Appeal from judgment, dated 2.10.1979, of Lahore High Court, in L.P A. No. 295 of 1967. (i) Gift- —Father-in-law—Gift by in favour of daughter-in-law--Suit against—Decree passed in—Challenge to—Argument that it was a gift in lieu of marriage of donee with son of donor and thus it was in nature of Hiba-bil-evaz for which there is no need for transfer of possession—Held: View already taken in case of Mureed Hssain that in cases of Hiba-bil-evaz in lieu of dower and/or marriage, physical delivery of possession would not be necessary so as to complete gift is reiterated-Held further: Controversy, if any, in that regard would have to be resolved under umbrella and guidance of Islamic principles rather than any other rule contrary thereto even if found in earlier case law. [Pp.216&217]C&D PLD 1984 SC 392 reiterated. 1989 SCMR 2017, PLD 1968 Lahore 1001 and PLD 1969 Lahore 467 ref. (ii) Gift-- —Father-in-law—Gift by in favour of daughter-in-law—Suit against—Decree passed in—Challenge to—In Intra Court Appeal, learned two Judges took note of documentary evidence going in favour of appellants and that too from revenue record-It is noted in impugned judgment that "during course of mutation also, a statement was made by donor that possession of property had been delivered to donee, but actual possession remained either with donor or with his tenants upto Rebi 1956"-Another very weighty aspect "when entry of mutation was incorporated in Jamabandi, donee was shown to be in possession of property through her husband" was also noticed—Donor died in 1962 and case of his legal representatives other than appellant No.2, was that there was no gift and in any case, it was not complete-Learned Judges simply observed that they found themselves "unable to agree (with learned counsel for appellants) in view of entries of Khasra Girdawari which prove possession of donor after mutation-Held: It is an obvious case of misreading of evidence- Held further: Appeal is liable to be accepted on this ground alone. {pp.2l5&2T>|E (iii)Gift-- —-Father-in-JaW'-Gift by in favour of daughter-in-law-Suit against-Dacree passed m-Chaflenge to--Respondent's suit was decreed on ground that no cogent evidence as roduced by donee (appellant No.l) to show that physical possession of land had been transferred to her—Plethora of case law on question of delivery of possession in ases like present one, was not at all noticed-Held: In such like cases, strict proof by donee, of transfer of physical prossession, as in other type of cases, is not insisted pon. [Pp-214&215]A AIR 1927 Privy Council 22 rel. (iv) Gift-- —;Father-in-law--Gift by in favour of daughter-in-law-Suit against-Decree passed in—Challenge to—Whether condition attached to gift of land making it operative in favour nee only for life time, is valid or void on account of Islamic dispensation—Question of—Condition under attack in cases of gift to a bride or bride to be or a wife, would be gainst public policy as envisaged in Islam--If life estate is to be created through a gift, it has to take form of waqf wherein question of delivery of possession and other onditions for complying same, would not arise-Held: Condition of life estate attached to gift made in favour of donee (appellant No.l) is void but gift is valid—Held further: It ll take effect not only for life as a life estate but also in perpetuity, conveying exclusive title to her-Appeal accepted. fPp.218&219]G,H,J,K&L PLD 1969 Lahore 338, PLD 1970 Lahore 502 and Islamic Law by Mulla, Para 153 ref (v) Gift-- —Father-in-law-Gift by in favour of daughter-in-law-Suit against-Decree passed in—Challenge to—Whether it was a gift of usufruct only—Question of— Entries in various columns of utation also are very clear that it was land, corpus thereof which was being mutated and not only income therefrom-- Order of attestation of mutation shows that gift was ccepted as if land had also been transferred under gift-Held: It was a case of gift of corpus and not only of usufruct. [P.217JE&F Mr. M.Munir Peracha, Advocate, Supreme Court, and Mr. Manzoor Elalii, Ex-AOR for appellants. Respondent No.l Exparte. Mr. Ijaz Hussain, s/o respondent No.3 in person. Date of hearing: 22.1.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal thfough leave of the Court is directed against the dismissal by the High Court of appellants' Intra Court Appeal. It had arisen out of the res/wndents' land suit which was decreed notwithstanding the plea of appellant No.l that the land in question was given to her in lieu of marriage by her father-in-law; namely, Atta Muhammad, the father of Noor Zaman her husband who is appellant No.2 herein. Two orders on the mutation in question which was sanctioned in favour of the appellant No.l read as follows:- not insisted upon. To cite only one example; the Privy Council three quarters of a century ago in the case of Ma Mai and another Versus Kallandar Ammal (A.I.R. 1927 Privy Council 22) had observed that in the case of gift of immovable property by such a close relation of the female as are menticvned above, once mutation of names has been prosed the natural presumption arising from the relationship existing between the donor and the donee, the donor's subsequent acts with reference to the property would be deemed to have been done on behalf of the donee and not on his own behalf. This line of authority is so woven in a chain which is very rarely broken. The obvious consensus has to be followed and adopted in this case also; there is absolutely no reason for departure. Whatever Atta Muhammad, the father-in-law of Mst. Kaneez Bibi did, either for cultivation of the gifted land or for collecting the share/produce from the tenants or .even changina the tenants \vould be presumed as acts done or steps taken on hehalf of the donee, daughter-in-law. In extremely rare cases where the donee lady is a very active member of the society, may be an urbanized educated one, managing her affairs effectively herself the position might be different; but there is nothing in this ca>e to suggest such a position of the donee and/or her conduct. From the appearance of the parties also the above supposition gets strengthened, although it is not necessary as a proof. The examination of the question of possession on first appeal filed by the appellants suffered from same defects. Not only this a learned Judge in the High Court by an unfortunate very short order suggesting clear lack of application of mind disposed of the appellants' Regular Second Appeal by a simple observation that the "possession was not delivered to the donee and inspite of the mutation in favour of the donee the donor himself remained in possession". Of course there is no discussion on any piece of evidence nor it is mentioned that the same was at all perused nor was it noticed otherwise. In the Intra Court Appeal it appears for the first time that two learned Judges took note of documentary evidence going in favour of the appellants and that too from the Revenue Record. And thus it was examined as material befitting and matching as a rebuttal of what was led from the other side. It is noted in the impugned judgment that: "during the course of mutation also a statement was made [by Atta Muhammad] that possession of the property had been delivered to the donee but the actual possession remained either with the donor or with his tenant upto Rabi 1956". It is not mentioned as to whom the tenant had adorned or who had inducted the tenant and/or who was receiving the produce from him. However, another aspect, also very weighty, was noticed by learned Judges. They rightly noted that "when the entry of the mutation was incorporated in the Jamabandi. appellant No.l [the donee] was shown to be in possession of the property through her husband". Not only this the learned Judges also noticed that sometimes the husband' of the donee himself was "stated to be a tenant in possession through a tenant of his own. The statuts of appellant No.2 is shown to be that of a tenant-at-will under appellant No.l. This type of entry had continued till then. Atta Muhammad died in the year 1962 and the case of his legal representatives other than appellant No.2 [husband of the donee] was that there was no gift and in any case it was not complete". Despite this very strong evidence showing delivery of possession to the donee who exercised the same through her husband and/or a tenant-at-will under husband and not under her father-in-law, the learned Judges of the Division Bench simply observed that they found themselves "unable to agree [with the learned counsel for the appellants] inview of the entries of the Khasra Girdawari from which it is proved that Atta Muhammad remained in possession after the mutation. From this, it transpires that the statement made at the the time of mutation that he delivered the possession of property to Mst.Kaneez Fatima was incorrect". This conclusion with respect does not at all flow from the state of evidence in view of the proposition that the possession was transferred to appellant No.l; which has been summarised above from the expression used in the impugned judgment itself. It is an obvious case of misreading of that evidence. Accordingly, this appeal is liable to be accepted on the above discussed ground alone. In our .view the possession was in fact transferred to the donee and it was a complete gift. However, the learned counsel for the appellants also argued that it was a gift in lieu of marriage of the donee with the son of the donor and thus it was in the nature of Hiba-bil-ewaz for which there is no need for transfer of possession. He has relied on Murid Hussain vs. Ghulam Ahmad (PLD 1984 S.C. 392), Fakhur-ud-Din vs. Mst. Zohra Bibi (1989 S.C.M.R. 2017), Kliuda Bakhsh vs. Mst. KJiudeja Bibi (PLD 1968 Lahore 1001) and Asghar AH vs. Mst. Naseem Akhtar (PLD 1969 Lahore 467). In the case of Murid Hussain this Court did treat a gift made by a husband to the wife as "in the nature of Hiba-bil-ewaz" and accordingly held that questions of acceptance of such a gift or proof of delivery of possession were not relevant. It was also held that the gift would be treafvsd as complete and realization of rent of gift property by the husband after marriage would be deemed to be collection by the husband on behalf of the wife in absence of very strong evidence to the contrary. Similar view has been taken in many other cases comprehensive list can be found in the notes under the relevant paragraphs of the celebrated book on Muslim Law by Mulla. Thus cases can also be seen exhaustively'cited in the Lahore case of Khuda Bakhsh already cited and the said case has by reference been relied upon in the case of Asghar AH. A very fine distinction has been made by one of the most learned Judges of the Lahore High Court-(late) Karan Elahi Chohan J. in cases like the present one between a false (contextural word of art) Hiba-bil-ewaz, a simple Hiba-bil-ewaz together with the discussion of Indian (again contextual word of art) Hiba-bil ewaz which according to Mulla would be distinguished from "true Hiba-bil-ewaz" and which according to author: was "introduced by Muslim lawyers of India as a device for effecting a gift of Mushaa in property capable of division". Support for this view was obtained by the learned Author from Bailie. This controversy was examined by Mr. Justice Karam Elahi Chauhan J. in the context of the two types of gifts in cases like the present one—those in lieu of dower simpliciter and those in lieu of marriage. It appears that at one stage the learned Judge thought as if both these cases might be covered by false Hiba-bil-ewaz but at another stage it was treated as real true Hiba-bil-ewaz~p-drticularly one in lieu of marriage. In the changed circumstances since 1969, vis-a-vis, our Constitutional set up and thrust towards Islamic principles for guidance, would lead us towards thinking that it would be a true Hiba-bil-ewaz. That being so, we reiterate the view already taken in the case of Murid Hussain that in case of Hiba-bil-ewaz in lieu of dower and/or marriage, physical delivery of possession would not be necessary so as to complete the gift. Similar discussion as above is-found in some of the cases relating to a gift in lieu of services rendered. In our view, the controversy if any, in that regard would have to be resolved under the umbrella and guidance of the Islamic was only an embroidery. Thus it was a case of gift of corpus and not only of the usufruct. Had it been the gift of the usufruct only we might have examined the correctness or otherwise of the views expressed by the Lahore High Court in a Division Bench judgment wherein can be found a very elaborate discussion on various aspects of this subject. Scores of decided cases were cited therein and a distinction was sought to be made between the two types of gifts in cases like the present one leading to different effects. It has been found necessary to make these remarks about the judgment in the case of Mst.Klian Bibi Vs. Mst.Safia Begum and others (PLD 1969 Lahore 338) because it might need further examination to hold; whether in the changed circumstances, as already noted, in the present Constitutional set up, the same defect or disability regarding gift of usufruct would continue to be attachable to it as was visualised in the said case of Mst.Nian Bibi. Same would apply to the reference of the said case in a later Lahore High Court judgment by one (of) us (Muhammad Afzal Zullah, C.J.) in Farid Vs Nur Bibi (PLD 1970 Lahore 502). The said case of Mst. Klian Bibi was noticed in this decision also and was distinguished except for the comment to be made on this case of Farid in another context. It is not necessary to make any further remarks on the various questions relating to gift of usufruct as obviously in this case it has been found that as in the case of Farid the gift to A-Isl. Kaneez Bibi appellant No.l was not of usufruct only but also of the land/corpus. The only question to be resolved now is: whelher, condition attached to the gift of land making it operative in favour of the donee only for the life time v-^- Ifc?l»would be valid and operative or would be rendered void on account of the Islamic dispensation as the validity of the gift has to be and is being examined under the light of the Islamic Law. As already mentioned the decision from Lahore in the case of Farid having examined this question with reference to the case law by then available, resolved this controversy with the view lhat the condition would be void. The gift would be operative as that of the corpus in perpetuity in favour of the donee carrying all the necessary implications accordingly. In the work on Islamic Law by Mulla, under Paragraphs 153, considerable case law (citing dozens of rulings including those of Privy Council) has been noted in support of the proposition that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will lake effect as if no conditions were attached to it. The cases noted are as under: Nizamuddin Vs. Abdul Gafur (1888) 13 Bom.264, 275 affirmed on appeal to P.C. subnomine Abdul Gafur V. Nizamuddin (1892) 17 Bom. 1,5,19 I.A. 170, 178 (as to the last decision. Sec Mahomed Ibrahim V. Abdul Latif(19l3) 37 Bom. 447, 458,17 I.C. 689); Suleman v. Dorab Ali (1881) 8 LA. 117, 122; Abdoola V. Mahomed (1905) 7 Bom. L.R.306; Mahomed Shah v. Official Trustee of Bengal (1909) 36 Cal. 431, 2 I.C. 292; Ma Hmyia v. R.L.S.A.R.S. Oiettyar (1935) 158 I.C. 848, (35) A.R. 318. Pakistan: Bahadur v. Jan Muhammad PLD.1960 (W.P) Karachi 745; Ghulam Qadir v. Glmlam Hussain PLD. 1965 (W.P) Lahore 200"). (From 1987 Edition Revised by M.Hidayat Ullah) The condition under attack in cases of gift to a bride or bride to be, or a wife, would be against public policy - as envisaged in Islam. As an illustration; in this very case it appears the lady and/or her parents had agreed to the marriage only on the assurance of making of the gift. After making the gift if she is deprived of its real worth, then she would be deemed to have been inveigled into an agreement/contract of marriage, under a representation about a gift which could not be treated as real. Mulla in another context also under another paragraph while dealing with gifts through a medium of trust expressed the view that "Life estates and vested remainders are unknown to Muslim Law, but life estates may be construed as an interest in the usufruct [Paragraphs 55 also referred]. Successive life-interests, however, may be created both under the Sunni and the Shia law in favour even of unborn persons by means of a wakf. Thus if a life estate is to be created through a gift it has to take the form of wakf wherein the question of delivery of possession and other conditions for complying the same would not arise. The contrivance for creating a life estate in the corpus of immovable property through gift is simply prohibited in Islam. As a result of foregoing discussion on the question of condition of life estate attached to the gift made in favour of the donee appellant No.l, it is held that the gift is valid but condition is void. It will lake effect not only for her life as a life-estate but also in perpetuity, conveying exclusive title to her. This appeal with the foregoing findings is allowed. All the impugned judgments and decrees are set aside and the suit filed by the respondents is dismissed. However, on account of the close relationship of the parties there shall be no order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 219 PLJ 1991 SC 219 [Appellate Jurisdiction] Present: dr. nasim hasan shah and rustam s.sidhwa JJ ANWAR AZIZ CHAUDHRY-Appellant versus THE STATE-Respondcnt Criminal Appeals Nos.129 to 133 of 1980, 10, 146 and 147 of 1981, decided on 3.3.1991. [On appeal from judgment and order of Lahore High Court, dated 4.2.1980, in Cr.Misc. Nos.605/Q, 554/Q, 548/Q, 551/Q, 535/Q, 605/Q, 193/Q and 552/Q of 1977]. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases against—Quashment of—Prayer for—Against appellant (in Cr.Appeal No.147 of 1981), there are ten challans relating to defalcation and misappropriation of funds through preparation of false documents-His eply does not answer prosecution llegations—Held: It cannot be said that there is no piima facie case against appellant qua ten challans filed against him-Prayer for quashment rejected. [P.242]O (ii) Criminal Procedure Code, 1898 (V of 1898)- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases against—Quashment of—Prayer for—Against appellant (in Cr.Appeal o.146 of 1981), there are eight cases concerning a string of allegations regarding defalcation and misappropriation of funds through preparation of false documents-His reply oes not answer prosecution allegations-Held: It cannot be said that there is no piima facie case against appellant-Prayer for quashment rejected. [Pp.241&242]N (iii) Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases againt—Quashment of—Prayer for—Appellant (in Cr.Appeal No.130 of 1980) as sole proprietor of Riaz Associates, Lahore undertook contract for renovation of sheds Nos.3 and 4 of Millat Poultry Farms, and was paid Rs.61088.20 in excess—From reply of appellant, it is apparent that he had filed a suit against Board claiming balance payment, in which suit, an arbitrator was appointed who gave award in favour of appellant, which was made a rule of court—Proceedings against appellant quashed. [P.240]H (iv) Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board-Criminal cases against-Quashment of-Prayer for-Appellant (in CrAppeal No.129 of 1980) in is capacity as Managing Director of Board, without calling for tenders, entered into agreements with his friends for supply of live cattle heads to Meat Complex, Sehala, gainst which contract, he allowed advances of Rs.200000/- to each of said two persons—Prosecution case is that original agreements at lower rales were later on enhanced, hat no security was taken for advances paid to contractors and that firms of those contractors were fictitious which did not exist-Held: It cannot be said that there is no iima facie case against appellant-Held further: Prayer for quashment has no merit and must be rejected. [Pp.239&240]G (v) Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases against—Quashment of—Prayer for—Case against appellant (in Cr.Appeal No.132 of 1980) is that he was responsible for excess ' payment of Rs.570/- regarding construction of tube-well room-Reply of appellant does not answer prosecution allegations-Held: It cannot be said that there is no piima facie case against appellant-Prayer for quashment rejected. [Pp.240&241]K (vi) Criminal Procedure Code, 1898 (V of 1898)- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board-Criminal cases against-Quashment of-Prayer for-Case of rosecution against appellant (in Cr.Appeal No.133 of 1980) is that he was given contract for installation of a tubewell of 2.00 cusecs in Cholistan area, but it was found that tubewell installed by him was of 0.75 cusec capacity and that although estimated cost of tubewell was only Rs.1,60,000/-, contract had been offered to appellant for an excess sum of Rs.4,00,000/- -Reply of appellant does not answer prosecution allegations—Held: It cannot be said that there is no prima facie case against appellant—Prayer for quashment rejected. [P.241]L (vii) Criminal Procedure Code, 1898 (Vofl898)» —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board-Criminal cases against-Quashment of-Prayer for-Prosecution case against appellant (in r.Appeal No.131 of 1980) is that officers of Board, without advertising for tenders, gave him contract for renovation of Hatchery and Breeding Farm buildings al Chhattar, awalpindi, for Rs.3,71,000/- but he was later on paid Rs.4,25,916/- -Reply of appellant to these allegations shows that he had filed a suit against Board claiming certain ayments, in which suit, an arbitrator was appointed who gave award in favour of appellant, which was made rule of court—Proceedings against appellant quashed. [P.240JJ (viii) Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A-Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases against—Quashment of—Prayer for—Prosecution case against appellant in Cr.Appeal No.10 of 1981) is that he being relative of Senior Project Manager of Board, by way of favouritism, was given contract for constuction of deep freezer body ver chassis of truck at cost of Rs.1,95,000/- and was paid advance of Rs.97,500/- by way of favouritism- According to prosecution, Chassis of truck was second-hand ne nd did not give satisfactory preformancc-Reply of appellant does not answer prosecution allegations—Held: It cannot be said that there is no prima fade case against appellant-Prayer for quashment rejected. [P.241JM (ix) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S.21, clause 9 read with Criminal Procedure Code, 1898, Section 561-A- Officers of Punjab Livestack, Dairy and Poultry Development Board—Criminal cases against- uashment of-Prayer for-Whether such officers are public servants within meaning of clause 9 of Section 21 of PPC-Question of-In four of appeals, appellants were dmittedly holding positions of rank and merit in Board—One was Managing Director, two were Senior Project Managers while fourth was Project Manager of Board—They all in category of senior executives/officers carrying pay scales above EPS 16 by virtue of service rules applicable to them—Held: They fall in category of officers as that erm is understood in clause 9 of Section 21 of PPC. [P.238]E (x) Pakistan Penal Code, 1860 (XLV of 1860)-- —S.21, clause 9 read with Criminal Procedure Code, 1898, Section 561-A- Officers of Punjab Livestock, Dairy and Poultry Development Board—Criminal cases against-Quashment of-Prayer for-Whcther such officers are public servants within meaning of clause 9 of section 21 PPC-Question of-It is necessary for prosecution in a case efore Special Judge, Anti-corruption, to show that main person arraigned before him for an offence, is a public servant within meaning of one of many clauses of Section 1 of PPC by bringing on record the scope, nature and extent of his duties and other material which would show under which clause his case falls-Word "officer" is not efined in PPC--Term "officer" with reference to term "office", is a person who performs duty or bears charge or executes functions or trust, or exercises public or private mployment, or one who fills a position or station to perform certain duties, public or private—Held: While term "officer" connotes different meanings, but in respect of ection 21 of PPC, what meaning would have to be assigned to that expression which occurs in clause Nine, calls for special attention. [Pp.228,229,232&233]A,B&C (xi) Pakistan Penal Code, 1860 (XLV of 1860)-- —S.21 clause 9, read with Criminal Procedure Code, 1898, Section 561-A- Officers of Punjab Livestock, Dairies and Poultry Development Board-­ Criminal cases against- uashment of-Prayer for--Whether such officers are public servants within meaning of clause Nine of Section 21 of PPC—Question of-Thcre is no single definition of term public servant" in Section 21— Generally speaking, "public servant" signifies a person in pay or service of Government, performing a public duty or function-Clause 9 ncludes within its comprehensive group, a large mixed class of non-dcscript officers who could not be specially provided for-Held: By a long string of precedents, uidelines that determine term "officer", are that he is a person who is functionary or holder of some "officium" or office, whether of dignity or importance, or humble or low, and hat he has authority, representative character or delegated function of employer, or performs public duties, or exercises administrative or supervisory functions over ersons laced below him, or is ne whose duties are immediately auxiliary to some one who is so armed with such a power. ' ' [Pp.237&238]D 12 Bom. H.C.R.l, ILR 28 cal. 344, AIR 1918 Lah.152, PLD 1957 SC (Ind.) 170, AIR 1959 SC 817, AIR 1963 Punjab 201, AIR 1965 All. 478, PLD 1960 Dacca 1049, PLD 1962 Lah. 144,1968 P.Cr.L.J. 869, PLD 1968 Lah. 1124, PLD 1962 Lah. 144, PLD 1972 Lah.196, PLD 1980 Lah. 597, PLD 1985 Kar. 720, 1986 P.Cr.L.J. 1530 and PLD 1988 Lah. 802 discussed. (xii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S.21, clause 9 read with Criminal Procedure Code, 1898, Section 561-A-- Officers of Punjab Livestock, Dairy and Poultry Development Board-Criminal cases against-Quashment of-Prayer for-Whether such officers are public servants within meaning of clause 9 of Section 21 of PPC-Question of~It is clear that Board had not only to discharge its functions on national considerations, but is also responsible for implementing and executing schemes approved by Government, and managing on behalf of Government, on such terms and conditions as it may specify, such farms, projects and activities as Government may from time to time decide to hand over to Board- -Held: It cannot be said that piima fade there is no evidence that senior officers of Board did not take, receive, keep or expend property on behalf of Government or make surveys and assessments on behalf of Government, or nvestigate or report on matters affecting pecuniary interests of Government-­ Held further: Four appellants who are senior fficers of Board, are ex-fade public servants and similar view of Single Judge is, therefore, legal and correct and admits of no exception. [P.239]F Mr. Riaz Anwar, Advocate, Supreme Court, and Mr. Muhammad Aslam Ch., AOR for Appellant (in Cr.A.129/80) Ch. Qadir Bakhsh, Senior Advocate Supreme Court, and Rana Maqbool Ahmad Qadri, AOR for Appellant (in Cr.A.130 and 131/80) Sardar Sami Hayat, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Appellant (in Cr.A. 132 and 133/80). Mirza Nasir Ahmad, Advocate, Supreme Court, and Mr. Hamid Aslam Qureshi, AOR for Appellant (in Cr.A.10/81). Mirza Nasir Ahmad, Advocate, Supreme Court, and Mr. M.A. Qureshi, AOR for Appellant (in Cr.A. 146/81). Mr. Mobashir Latif Ahmad. Advocate, Supreme Court, and Mr. Hamid Aslam Qureshi, AOR for Appellant (in Cr.A. 147/81). Date of hearing: 26.1.1991. judgment Rustam S.Sidhwa J.--This judgment will dipose of eight criminal appeals namely CrlA.No.129 of 1980 preferred by Anwar Aziz Chaudhry appellant Crl.A.No.130 of 1980 preferred by M.A.Suhail appellant Crl.A.No.131 of 1980 preferred 'oy Muhammad Tariq appellant, Crl.A.132/1980 preferred by MrAhmad Ghazali appellant, Crl.A.No.133 of 1980 preferred by Mian Abdur Rehman appellant, Crl.A.10 of 1981 preferred by Masood Ahmad appellant, Crl.A.146 of 1981 preferred by Saeed Yousaf appellant and CrlA.No.147 of 1981 preferred by Nasrullah Khan appellant against the consolidated judgment of a learned single Judge of the Lahore High Court, Lahore, dated 4.2.1980 passed in Criminal Misc.No.605/Q of 1977 dismissing the petitions filed by the said appellants under section 561-A Cr.P.C. seeking quashment of criminal proceedings pending against them under the Prevention of Corruption Act,1947 and the Pakistan Penal Code in the Court of Chaudhry Ghulam Murtaza, Special Judge, Anti-Corruption, Lahore. 2. The brief facts with regard to each of the appeals deserve to be separatelystated. CRIMINAL APPEAL NO.129 OF 1980 3. Anwar Aziz Chaudhry, appellant, was appointed as Managing Director of the Punjab Livestock, Dairy and Poultry Development Board (hereinafter to be referred to as "the Board") by the Governor of the Punjab vide Notification dated 19th June,1974. It was specifically provided therein that he would not receive any salary and that other facilities and conditions of service would be determined by Government later. The Governor of the Punjab was pleased to pass an order dated 29th July,1974 whereby the terms and conditions of the appellant as Managing Director of the Board were determined. He was to receive a salary of Rs.l/- per month and the other facilities as enumerated in the order. The appellant assumed charge of his office on 22.6.1974 and resigned his office on 12.7.1976, from which date he ceased to hold office. The appellant in his capacity as the Managing Director, filed an F.I.R. against some of the employees of the Board on 9.7.1976. An F.I.R. was registered on the basis of the letter addressed by the appellant. It is the case of the appellant that after assumption of power by the Army on 5.7.1977, a witch hunt started against every person who had been closely associated with the Pakistan Peoples Party. In the absence of any other material against the appellant, under the dictation of the Army Authorities, the very F.I.R. referred to above was made the basis of initiation of criminal proceedings against him and a challan was put up in the Court of Senior Special Judge, Anti- Corruption, Lahore, against him. The offences charged against the appellant were exclusively under section 5 of the Prevention of Corruption Act, 1947. Being aggrieved by the said proceedings, the appellant filed Crl.Misc.No.605/Q of 1977 in the Lahore High Court for quashment of ihe said proceedings under section 561-A Cr.P.C. CRIMINAL APPEAL NO.130 OF 1980 4. M.A.Suhail, appellant, was the sole proprietor of the firm known as "Riaz Associates", Lahore, which was carrying on the business of construction works in various Govt. Departments and was also on the list of approved Government contractors. In the year 1975, the Punjab Livestock, Dairy & Poultry Development Board invited tenders for the renovation of sheds Nos.3 & 4 of Millat Poultry Farm, Lahore. The tender submitted by the appellant's firm for the renovation of the said sheds was accepted by the Board vide its letter dated the 29 th October,1975. Thereafter a formal agreement was executed between the parties known as agreement No.14 of 975-76. The said work was completed by appellant's firm within the stipulated period in accordance with the settled specifications. The Board made part-payment for he work done at site, but the department delayed the final payment on one pretext or the other. The appellant, therefore, on 9.7.1977 filed a suit in the Civil Court at Lahore. The dispute was referred to the arbitration of Syed Zal'ar All Shah, Deputy Managing Director, Lahore Development Authority (WASA WING). After adjudication, the Arbitrator filed his award in the Civil Court at Lahore. It was held by the Arbitrator that an amount of Rs.91,210.20 was due to the appellant's firm on account of the work done by it. However, on 21.1.1977, a criminal case was registered against some employees of the Punjab Livestock, Dairy & Poultry Development Board vide F.I.R. No.39 at P.S.DACE, Lahore, inter alia, on the ground that excess payment had been made to the appellant by the said officers over and above the scheduled rates and the appellant was also alleged to have been involved therein. A Challan was filed against the appellant, before the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Crl.Misc.No.544/Q of 1977 in the Lahore High Court for quashment of the said proceedings. CRIMINAL APPEAL NO.131 OF 1980 5. Muhammad Tariq, appellant, was the sole proprietor of the firm known as "Dawn Construction Company", Lahore, which was carrying on the business of construction works in various Government departments and was also on the list of approved Government contractors. In the year 1975, the Punjab Livestock Dairy & Poultary Development Board invited tenders lor the renovation of the Hatchery Building at Chhattar, Rawalpindi. The tender submitted by the appellant's firm for the said work was accepted by the Board, vide its letter dated 11.11.1975. Thereafter, a formal agreement was executed between the parties known as agreement No.15. The said work was completed by the appellant's firm within the stipulated period, in accordance with the settled specifications. The Board made part payment on 18.3.1976 for the work done at site, but the department delayed the final payment on one pretext or the other. The appellant, therefore, on 9.7.1979, filed a suit in the Civil Court at Lahore. The dispute was referred to the arbitration of Syed Zafar Ali Shah, Deputy Managing Director, Lahore Development Authority, Lahore (WASA Wing), Lahore. After adjudication, the Arbitrator filed his Award in the Civil Court at Lahore. It was held by the Arbitrator in his award dated 26.2.1980 that an amount of Rs.25,029.83 was due to the appellant's firm on account of the work done by it. However, on 21.1.1977, a criminal case was registered against some employees of the Punjab Livestock, Dairy and Poultry Development Board vide F.'l.R. No.39 at P.S. DACE, Lahore inter alia, on the ground that over-payment had been made to the appellant by the said officers over and above the scheduled rates and the appellant was also alleged to have been involved therein. A challan was filed against the appellant before the Special Judge, Anti-Corruption, Lahore . Being aggrieved by the said proceedings, the appellants filed Petition Crl.Misc.No.548/Q o~f 1977 in the Lahore High Court, Lahore, for quashment of the said proceedings. CRIMINAL APPEAL NO.132 OF 1980 6. Ahmad Gha/ali, appellant, was employed on 16.5.1975 as Project Manager with the Punjab Livestock, Dairy and Poultry Development Board (to be hereinafter called "the Board") and remained in its service till 15.2.1976, when he tendered resignation and was relieved of the charge. After some months of his leaving the Board's service, the appellant learnt thr.t a criminal case being F.I.R. No.4 dated 21.1.1977 was registered at Police Station Directorate of Anti- Corruption, Lahore, wherein it was alleged that while in the service of the Board and posted as Project Manager, Cholistan, the appellant caused wrongful loss to the Government to the extent of Rs.1,428/- in connection with the construction of a room of the tube-well situate in Cholistan. It was further alleged that the appellant had failed to account for the xpenditure of the said amount and had mis-appropriated the same. The said room, it was alleged, could have cost only 6,000/- as against the sum of Rs.6,750/- shown to ave been spent on it. It was also alleged that full receipts of expenses were not forthcoming and a sum of Rs.5,142/- only was supported by receipts. On this basis, it was alleged that a total sum of Rs.1,428/- had been misappropriated by the appellant and his co-accused MrAhsan Al-Wadood. A challan was filed against the appellant before the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Cr.Misc.No.5l5/Q of 1977 in the Lahore High Court Lahore for its quashment. CRIMINAL APPEAL NO.133 OF 1980 7. Mian Abdul Rehman, appellant, was the Managing Director of Boremaster Limited, a private limited company, engaged in the business of boring and installation of tube-well. In January,1975, the appellant's company was approached by the Punjab Livestock, Dairy and Poultry Development Board, Lahore , for installation of a tube-well of two cusecs in Cholistan, District Bahawalpur , and after negotaiting the terms, the company agreed to instal the tube-well for a consideration of Rs.4 Lacs. he Board vide its letter of intent No.PLD/OPS/75 dated 27.1.1975, conveyed to the company its requirements, which was reciprocated vide its letter No.BML/2081/75 dated 8.1.1975. The project was completed and handed over to the Board despite enormous problems and vide'its letter No.BML/2143/75 dated 10.4.1975, the company wrote to he Board informing it of the completion thereof and having handed over the same to an authorised representative of the Board. The company also claimed payment of the alance amount of Rs.50,000/-. The Board vide its letter No.FIN/75/13/1830, dated 26.6.1975 returned the original Fidelity Bond and the Bank Guarantee. As far the payment f the balance amount, the Board vide its letter -No.FIN/PR/13/2149/1494 ,dated 17.7.1975 settled the accounts at Rs.21,481.50 after deducting some expenses said t& be ayable by the company in full and final settlement of accounts. In 1976, some complaint was lodged by the Managing Director of the Board against its Senior Project anager n respect of some mis-appropriation of funds, bogus purchases, execcssive spendings on repair and purchase of Board's articles like motor-cars, air-conditioners, etc., and n the course of investigation thereof, the matter pertaining to the tube-well installed by the company was also examined. The Project was allegedly got assessed by M/s Altaf aces, Sub-Engineer, and Abdul Rashid of the Public Health Department, Bahawalpur, who are said to have found that the project had actually cost Rs.1,60,000/- only as gainst Rs.4 lacs paid to the company and as such a sum of Rs.2,40,000/- was allegedly over paid to the company. It was further-alleged that the room housing the ube^wells was ^constructed at the cost ofRs.6,000/- only as against a sum of Rs.6,570/- shown to have been spent thereupon. All receipts in respect of the expenses ncurred on the said room, it was alleged, were not forthcoming and a sum of Rs.5,142/- only was supported by receipts. In that view of the matter, it was alleged that a um of Rs.1,528/- had been misappropriated by Ahmad Ghazali, the Project Manager, and Mr.Ahsan Al-Wadood, the Project Incharge. On the basis of these allegations, .I.R. .4 dated 21.11977 under sections 409, 420, 468,109 PPC with section 5 of the Preventian of Corruption Act,1947 was registered at Police Station Anti-Corruption stablishment Directorate, Lahore, against Mian Abdul Rchman, appellant, the Project Engineer MrAbdul Qadir, the Project Engineer, Mr.Ahsan Al-Wadood, the Project ncharge, and Ahmad Ghazali, the Project Manager. After some investigation, the cnallan was submitted in the Court of Special Judge, Anti-Corruption, Lahore. Being ggrieved by these proceedings, the appellant filed petition Cr.Misc.No.535-Q of 1977 before the Lahore High Court, Lahore, for its quashment. CRIMINAL APPEAL NO.10 OF 1981 8. Masood Ahmad, appellant, was owner of the firm known as "Bolan Radios", which dealt with electrical goods and connected items. A representative of the Board approached the firm of the appellant for the construction of a freezer body over the chassis of a truck. The appellant showed his unwillingness as the firm was already much pre-occupied. However, on the pursistent request of the representative of the Board, the appellant consented to manufacture such a freezer body as agreed between the parties. Accordingly, quotations were called for and the appellant's firm manufactured the truck, as agreed. The truck was guaranteed by an Indemnity Bond ensuring its smooth working for a period of one year. Accordingly the Pioneer Insurance Company Limited insured the truck. There was no complaint or grievance whatsoever about the functioning of the truck and the truck was still working satisfactorily. That surprisingly the issue of the truck was dragged in alongwith many other issues and Case No.6 arising out of the F.I.R.No.13 dated 31st July,1976 was initiated against the appellant and one Ch.Nasrullah, an employee of the Board. A Challan was filed against the appellant before the Special Judge, Anti-Corruption, Lahore . Being aggrieved by the said proceedings, the appelant filed petition Cr.Misc.No.582/Q of 1977 before the Lahore High Court, Lahore, seeking its quashment. CRIMINAL APPEAL NO.146 OF 1981 9. Saeed Yousaf, appellant, was posted as Senior Project Manager in the Punjab Livestock, Dairy and Poultry Development Board, Lahore. The appellant was appointed as a Senior Project Manager with effect from 12.8.1975 on adhoc basis and his services were terminated with effect from the 31st of July,1976. That the Anti-Corruption Establishment, on the basis of a report made to them by the former Managing Director of the Punjab Livestock, Dairy and Poultry Development Board, Lahore, registered a case against the appellant and others at Police Station, Anti-Corruption Establishment Directorate, Lahore, under Section 409/420/468 and 471 Cr.P.C. and section 5 of the Prevention of Corruption Act,1947, on the allegation that the appellant, while posted as Senior Project Manager in the afore-mentioned Board, by abusing his position, had made certain bogus purchases or had spent excessive amounts on the repair and purchase of the Board's aritlces, such as motor-cars, air-conditioners, etc. The Police challaned the appellant under Sections 409/420/468 and 471 of Pakistan Penal Code and Section 5 of the Prevention of Corruption Act,1947 in the Court of the Special Judge, Anti-Corruption, Lahore. Being aggrieved by the said proceedings, the appellant filed petition Cr.Misc.No.193 of 1977 before the Lahore High Court, Lahore, for its quashment. CRIMINAL APPEAL NO.147 OF 1981 10. Nasrullah Khan, appellant, was appointed as a senior Project Manager in the Punjab Livestock Dairy and Poultry Development Board, Lahore, with effect from 1.2.1975. An F.I.R. No.13 dated 31.7.1976 was lodged by the former Managing Director of the said Board with the'Anti-Corruption Establishment under Sections 409/420/468/471 and Section 5 of the Prevention of Corruption Act 1947 against the appellant and many others. The allegations against the appellant were that while posted as Senior Project Manager in the said Board, by abusing his postion as public Servant, he misappropriated its funds, by making purchases at higher rates or spent excessive amount on the constructions carried out for the said Board. The Special Police split up the F.I.R. into 13 challans, out of which the appellant was alleged to be involved in the first ten challans. All these challans were filed before Ch.Ghulam Rasul Azhar, Senior Special Judge, Anti- Corruption. Being aggrieved by the said proceedings in the said 10 challans Nos.l to 10, the appellant filed Petition Cr.Misc.No.552/Q of 1977 before the Lahore High Court, Lahore, praying for their quashment. 11. All the above quashment petitions of the present appellants, apart from those filed by other persons, came up for hearing before a learned single Judge o the Lahore High Court. In respect of those who were the employees of ihe Punjab Livestock, Dairy and Poultry Development Board (hereinafter to be referred to as the Board), it was submitted that they were not public servants and therefore proceedings before the Special Judge -were illegal and without jursidiction. In respect of the appellants and also those who were not the employees of the Board, factual matters were raised to show that there was no primafacie r evidence against them to sustain the offences imputed to them and that therefore their cases deserved to be quashed. All these petitions were disposed of by a common judgment dated 12.2.1980. 12. The learned single Judge, after referring to the preamble and Sections 1, 3, 4, 13, 14, 15 and 22 of the Punjab Livestock, Dairy and Poultry Development Board Act,1974, held:- "16. The above brief picture of some of the provisions of the law shows the extent of the interest of the. Government in the affairs and management of the Board, both pecuniary and functional. For all intents and purposes Government has created an organization for looking after its functions on behalf of the Government in the sector ofLivestock Development. This is very much a delegated function of the Government, as laid down in the case of Karim Bakhsh. 17. Government money by way of Governinent investments, grants and loans are to be placed at the disposal of the Board. Then it is common knowledge that loans from international financiary institutions are given only on the guarantee furnished by the Government. Government farms and projects • could be handed over to the Board, apart from implementing and executing schemes approved by Government, all these functions are reminiscent of functions of a Government department. The performance of these functions certainly entails taking, receiving, keeping or expending any property on behalf of Government. 20. It is also necessary to refer to the provision of Section 4(2). It provides that the Board in discharging its functions will act on national and commercial considerations. The reference to national considerations cannot be dismissed as inconsequential. It certainly entails public responsibilities, which ordinarily is a function of the Government. In the light of the above discussion,,! have no hesitation in holding that the employees of the Punjab Livestock Dairy and Poultry Development Board are public servants in the light of Section 21 of the P.P.C.". The learned Judge held that such of the applicants as appeared before him who were employees of the Board were public servants within meaning of Section 21 clause 9th of the Pakistan Penal Code and the cases before the Special Judge, Anti-Corruption, Lahore, were legal and proper. With regard to the separate pleas on facts taken up by the present appellants and some others before him in individual cases against them, those of the present appellants and some others were rejected. , 13. Being aggrieved by the above consolidated judgment, the present appellants petitioned the Supreme Court for leave to appeal, which leave was granted to determine whether officers of the Punjab Livestock, Dairy and Poultry 19. Straightaway the first question that arises is whether the Pakistan- Criminal Law Amendment Act,1958, defines a public servant. Section 2(b) of the said Act states "public servant" means a public servant as defined in Section 21 of the Pakistan Penal Code and includes an employee of any corporation or other body or organization set up, controlled or administered by, or under the authority of, the Federal Government. In these circumstances, one need not labour any further to find out what that expression means, other than refer to this provision. 20. It may be here mentioned that the Punjab Livestock Dairy and Poultry Development Board Act,II of 1974, does not contain any section which defines the expression "public servant'.'. This does not, however, mean that it is the intention of the legislature to treat all employees of the said Board as persons who are not public servants. The basic object of defining the expression "public servant" in a statutory enactment is not to define which of such persons covered by the enactment shall be graded as public servants lor purposes of honour or rank, but which amongst them shall be treated as such for the purposes of section 21 of the Pakistan Penal Code, i.e., to be entitled to the special protection of the law and liable for serious punishment for abuse of power, as provided in the Pakistan Penal Code or the enactment itself as available or applicable to that class, or for any'specific purpose as may be spelt out from the enactment itself. Thus, in an enactment specific officers or persons holding specific offices in that organization maybe particularised as persons (ailing within the definition of "public servant", or those who normally would not fall wilhin that category may be treated as falling within that definition, or all persons working in thai organization may be deemed as falling wilhin that definition. The absence of a definition section -docs not mean that the persons concerned who are covered by the enactment are not to, be treated at all as public servants. What it means is that Section 21 of the Pakistan Penal Code would come into play, which will determine which of such persons can be treated as falling in the category of "public servants". 21. It is, therefore, necessary for the prosecution in a case before the Special Judge Anti-Corruption, to show that the main person arraigned before him for an offence is a public servant. In some cases the person's office or rank may be such as itself speaks of his status as an officer and a public servant, but where his duties, designation, rank or status is at some lower level and not very clear, or where his status as such public servant is denied, it is necessary for the prosectuion to prove that he is a public servant within the meaning of any definition section that defines that expression in the statutory enactment covering his employment or duties, or, if this is not so, then within the meaning of one of the many clauses of Section 21 of the Pakistan Penal Code, by bringing on record the scope, nature, and extent of his duties and other material which would show under which clause his case falls. 22. The Punjab Livestock, Dairy and Poultry Development Board has neither been set up nor is controlled or administered by, or under 1 the authority of, the Federal Government. The employees of the Board arc therefore not covered by the latter part of the definition contained in Section 2(b) of the Pakistan Criminal Law Amendment Act,1958. It therefore only remains to be determined whether the appellants can be treated as public servants within the meaning of Section 21 of the Pakistan Penal Code 23. Section 21 of the Pakistan Penal Code contains eleven clauses, but the one which is relevant is clause Nine which may be reproduced here with advantage: "Ninth—Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection, of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duly". This clause may be broken up into two parts as follows:- A Every officer whose duty it is, as such officer, to - (/) take, receive, keep or expend any property on behalf of the Government, or ' (//) make any survey, assessment or contract on behalf of the Government, or (///) execute any revenue process, or (iv) investigate or report on any matter affecting the pecuniary interest of the Government, or (v) make, authenticate or keep any document relating to the pecuniary , interest of ihe Government, or (w) prevent the infraction of any law for the protection of the pecuniary interest of the Government; B Every officer who is - (/) in the service or pay of the Government, or' (//') remunerated by fees or commission for the performance of any public duty. The only provisions which appear relevant and requiring consideration for the purposes of this case are (/) to (vi) of category A; the others not being relevant. 23. The first question that arises is who is an "officer" within the meaning of clause Nine of Section 21 of the Pakistan Penal Code. This word is not defined in the Pakistan Penal Code. To understand this word, it is necessary to understand the term "office". The term "office" expresses a duly or charge, a place of trust, a right to exercise a pub c or private employment, a position or station in which a person is employed to perform cerlain duties, or by virtue of which he becomes charged with the performance of certain duties, public' or private. The term "officer" therefore is a person who performs the duty or bears the charge, or executes the functions or trust, or exercises public or private employment, or one who fills a position or station to perform certain duties, public or private. The concept that an "officer" is one who occupies a position or station of some rank or merit or duties and functions of a superior or higher order, is associated with offices and organisations where classification or grading in the employment exists, whether it be in the public or private sector. An office, position or station has to be held under some one and it is not possible to conceive of it as being held under no one. In both the public and private sector, classification and grading exists, placing persons in different tiers, one above each other. Persons holding positions or stations which involve the exercise of authority, representative character or delegated function of the employer or exercise of administrative or supervisory functions over persons placed below them, are generally treated as of superior merit or rank. With such classification and grading existing in the public and private sector in respect of master and servant relationship, the question whether the word "officer" will have to conform with or recognise the superior rank or status of the position or the station, or the higher duties involved, calls for examination. Thus, whilst the word "officer" could connote different meanings, but in respect of Section 21 of the Pakistan Penal Code, what meaning would have to be assigned to that expression, which occurs in clause Nine, calls for special attention. 25. With this forward, one may examine the case law referred to by the learned counsel for the parties on the subject. 26. In Reg. Vs. Ramajirao Jivbaji (12 Bom H.C.R.I), West J., held that the word "officer" meant some person employed to exercise to some extent and in certain cases a delegated function of Government. He either possessed some authority oi' representative character himself, or his duties were immediately auxiliary to some superior officer who so possessed the same. West J., was considering the case of an Izuphaldar, i.e. a licensee of a village who had undertaken to keep an account of its forest revenue and who was obliged to pay a certain proportion of H to the Government, keeping the rest for himself. Since there was no delegation to him of any authority for coercion or interference, nor was he a person appointed to assist any one who was so vested with such authority, it was held that the fzaplialdar was not a public servant. 27. In Nizamaddin Vs. Queen Empress (I.L.R.28 Cal.344) the question was whether a peon attached to ihe office of the Superintendent of the Salt Department was a public servant within the meaning of clause Nine of Section 21 of the Penal Code. The learned Judges of the Calcutta High Court, whilst considering the case of Reg. Vs. Ramajirao Jivbaji, held that the rule stated in that case appeared to be too narrow for the purposes of their case. Since the peon was attached to the Superintendent of the Salt Department and it was his duty to carry out the orders of his superior officer, who was a public servant and in that capacity to assist the Superintendent in the performance of the public duties of his office, he was an officer of Government, though he did not exercise any delegated function of the Government. The learned Judges also held that the duties of the peon were immediately auxiliary to those of the Superintendent, who was armed with delegated authority. The peon was therefore held to be an officer in the service and pay of Government, within the meaning of clause Nine of Section 21 of the Pakistan Penal Code. 28. In Aliad Shah Vs. Tlie Slate (AIR 1918 Lah.152), the question was whether a Quarter Master's Clerk, who was not paid by Government but by the Quarter Master himself out of an allowance which he received for the purpose of his office and was not borne on the strength of the regiment, but was a mere supernumerary, was a public servant. The learned Judges observed that it was not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of clause Nine of Section 21 of the Penal Code, but he must also be an "officer". The learned Judges held that that expression was not, of course, to be restricted to its colloqial meaning of a Commissioned or non-Commissioned Officer; it meant a functionary or holder of some "officiuni" or office. The office could be one of dignity or importance, it could equally be humble or low, but whatever its nature, it was essential that the E erson holding the office should have in some degree delegated to him certain auctions of Government. Referring to West J's observations in Reg. Vs. Ramajirao Jivbajirao, the learned Judges held that Hira Singh, though as a Quarter Master's clerk was not a public servant, but being otherwise a non- Commissioned Officer in the 2/9th Gurkha Rifles, was a public servant, though not then discharging that office. 29. In JA. Monierio Vs. Stale oj'Ajmer (PLD 1957 S.C.Ind.170), the question was whether a metal examiner known as Chaser in the Railway Carriage Workshop could be treated as an officer. Alter considering a number of cases, the Supreme Court of India held that the true test to determine whether a person was an fficer in the Government was (1) whether he was in the service or pay of the Government and (2) whether he was entrusted with the performance of a pu lic duty. If both these requirements were satisfied, it mattered not the least what was the nature of his office, whether the duties he was performing were of an exalted character or very humble indeed. At a later stage it held that if the said two conditions were present and the person also had delegated to him the functions of the Government, or was in any event performing duties immediately auxiliary to those of some one who was an officer of the Government, such a person could be treated as an officer. Since the Chaser was working under the Works Manager who was admittedly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager, who besides being a public servant was armed with some authority or representative character qua the Government, the Chaser was treated as an officer. The above rule, namely that where a person is in the service or pay of Government, it is sufficient to show that he is entrusted with the performance of a public duty, in rder to show that he is a public servant, has been reiterated in the State ofAjmer Vs. Shivji Lai (AIR 1959 S.C.817), M.B. Kauwar Vs. The State (AIR 1963 Punjab 201) and Ranjeet Singh Vs. The State (AIR 1965 All 478). 30. In A.K. Shamsul Haq Chaitdh/y Vs. State (PLD 1960 Dacca 1049), theM Secretary of the District Soldiers, Sailers and Airmens Board was held not to be a public servant within the meaning of Section 21 of the Penal Code, merely because the expenses of the Board were being met from the contributions made by the Central and Provincial Government, for it could not be said that the employees of the Board spent Government money or that the employees were in the service or pay of the Government. It was held that the money which was paid by the Government to the Board was by way of contribution, which, after payment, became the money of the Board. It therefore held that simply because Government exercised some control over the Board, it did not follow that the employees of the Board were employees in the service or the pay of the Government. 31. In Karim Bakhsh Vs. State (PLD 1962 Lah.144) a Land Supervisor with the Pakistan Military Lands and Cantonment Service, also described as a Gardener, was held not to be a public servant, as he neither held any office, nor had any delegated authority from the Government or his superiors in the performance of any public duty entrusted to him. Sajjad Ahmad J., (as he then was) held that to fall under clause Nine of Section 21 of the Penal Code, it was not enough that a person was shown to be an employee, but he must also be an fficer, which meant that he did hold some office or "officium", humble or exalted, high or low, in the sense that he exercised to some extent a delegated function of the Government and he was in this behalf either himself armed with some authority or representative character, or his duties were immediately auxiliary to those of some one who was so armed. 32. In Abdul Klialek Patwaiy Vs. State (1968 P.Cr.L.J.869) the question was whether the appellant had abetted an offence punishable under section 165 of the Pakistan Penal Code by offering bribe to a public servant. The question was whether F.Rchman PW1, an Accountant of the Bank, was a public servant and therefore the trial by the Special Judge was within jurisdiction. After analysing the provisions of the Agricultural Development Bank Ordinance,1969, the learned Judge held that as not less than 51% of the shares issued at any time by the Bank had to be subscribed for by the Central Government, that the Accountant dealt with Government money, that the major portion of the capital was supplied by the Government and having regard to the fact that it was his duty to report on matters affecting the pecuniary interest of the Government, because it was his duty to check all applications for payment and report on them, the Accountant was therefore a public servant within the definition of clause Nine of Section 21 of the Pakistan Penal Code. 33. In Ashfaq Ahmad Vs. The State (PLD 1968 Lah.1124), the question was whether the appellant who was a Wasil Baqi Navis was a public servant. The learned single Judge held that although the word "officer" as used in common parlance connoted the holder or incumbent of an office of authority, yet the said word in clause Nine of Section 21 of the Penal Code had been interpreted by judicial authorities to include all incumbents of offices high or low irrespective of their status. The learned Judge held that the same view was expressed in Karim Bakhsh Vs. The State (PLD 1962 Lah.144). Since the appellant was an officer and maintained the record of land revenue assessed on the land owners and recoverable from the lambardars and was also charged with the duty of keeping documents relating to the pecuniary interest of the Government, the appellant was held to be a public servant within the meaning of clause Nine of Section 21 of the Penal Code. 34. In Zabtey KJwn Vs.. State (PLD 1972 Lah.196), the question was whether the appellant who was a despatcher in the West Pakistan Social Welfare Council was a public servant and whether his trial by an ordinary Magistrate was not illegal. After examining the documents, which showed that the Council was a branch of the Social elfare Wing of the Secretariat and that the Council was one of the semi-autonomous bodies which was under the administrative control of the Social Welfare Department, the appellant was held to be an employee of the Provincial Government. However, the question whether the appellant was an officer was not closely examined. 35. In Ikram All Vs. Slate (PLD 1980 Lah.597) supervisors and storekeepers of the Punjab Agricultural Development and Supplies Corporation, a statutory body created under Punjab Act XXI of 1972, who had been convicted by the Special Judge Anti-Corruption for misappropriation and corruption, petitioned for the quashment of their convictions and sentences. The case of the petitioners was that they were not public servants within the meaning of clause Nine of Section 21 of the Pakistan Penal Code. The learned Single Judge, whilst adverting to the tests laid down by West J., in Reg. Vs Ramajirao Jivbajirav (12 Bom H.C.R.l), by H.Rattigan C.J., inAliad Shah Vs. Emperor (AIR 1918 Lah.152) and by Bhagvati J., in G.A. Monlerio Vs. Stale of Ajmer (PLD 1957 S.C.(Ind.)170) to determine who was an "officer", appears to have accepted the test laid down by the Supreme Court of India, namely, that the person must be entrusted with the performance of a public duty. It may be here stated that the case before Bhagvati J., related to a metal examiner also called Chaser who was working with the Railway Carriage Workshops and was in the service and pay of Government. The question before Bhagvati J., was whether he was an officer falling in category B(/) as stated in para 23 above, so as to fulfil the definition of public servant. The learned Single Judge of the Lahore High Court, alter examining the scope of the unjab Agricultural Development and Supplies Corporation and the nature of the duties of the uperivsors and storekeepers found that they were neither in the service of the Government nor received any pay from Government, that they were employees of a tatutory corporation which was a separate legal entity apart and distinct from Government, that they received their salaries from fund created by the statute which established the corporation, that they performed functions assigned to them by the Corporation as part of its ordinary commercial activities and that there was no nexus between them and the Governmentymd they could hardly be said to be performing any public duties. The conviction^ and sentences of the petitioners were quashed. The question hether even assuming the petitioners were not in the service or pay of Government, the petitioners were otherwise "officers" of the Corporation and, if so, whether they came in any of the ategories (/) to (vi) of A or (//') of B, as stated in para 23 above, was not considered. 36. In Moosa Karim Vs. State (PLD 1985 Kar 720) the question was whether the appellant, who was a clerk in Sind Small Industries Department and who had been convicted by the Special Judge Anti-Corruption, was a public servant. Following the view taken in Ikram Ati Vs. State, the learned Single Judge held that the appellant, who was a clerk, was not covered by the definition of "public servant" and his conviction and sentence were quashed. 37. In Allied Bank of Pakistan Vs. Sliaukat Textile Mills Ltd. (1986 P.Cr.L.J.1530), the question was whether S.Rchman Ra/a, Manager cum Assistant Vice President of the Allied Bank of Pakistan Ltd., who had filed a complaint before the Special Court, Offences in Banks, was a public servant, so that his statement under Section 200 of the Code of Criminal Procedure need not be recorded. Since the complainant admittedly was a senior officer of the Bank, the question that he was not an "officer" did not arise. Since his duties included the taking, receiving, keeping and expending money and securities on behalf of the Government and to investigate and report on matters affecting the pecuniary interests of the Government and to make, authenticate and keep documents relating to the pecuniary interests of the Government and he was also in the service of the Government, as the Allied Bank was a nationalised bank, the complainant was held to be a "public servant" falling under many categories of the definition as given in clause Nine of Section 21 of the Pakistan Penal Code. 38. In State Vs. Abdul Rchman KJian (PLD 1988 Lah.802), the question was whether the two respondents, who were ex-Managers of the Central Co-operative Bank, were public servants. Under Section 65-B of the Co-operative Societies Act, as amended by West Pakistan Ordinance XVII of 1966, "every officer of a society, including a Co-operative Bank, was to be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code" and under Section 3(d) of the said Act, the definition of the word "officer" included a chairman, secretary, treasurer, member of committee or oilier person empowered under the rules or under the bye-laws of a society to give directions in regard to the siness of such officer. Referring to various dictionary meanings of the word "officer", the learned Single Judge held that the respondents were officers. 39. Section 21 of the Pakistan Penal Code docs not attempt to lay down a single definition of the term "public servant". It describes the term by enumeration, which is illustrative, but not exhaustive. Generally speaking a public servant signifies a person in the pay or service of the Government, performing a public duty or function. The fact that such person is armed with authority or executive power of Government, direct or delegated, or is concerned with public dealings, is another incident of that office, which is generally associated with it. But when one examines the various clauses of Section 21 of the Pakistan Penal Code, a more horrendous enumeration could not have been attempted. One clause deals with officers of the Government, some clauses deal with designated officers or offices, some clauses deal with officers whose duty it is to perform certain functions and some clauses deal with persons who hold offices by virtue of which they are empowered or can perform certain functions or duties. The term "officer" therefore carries different meanings in the various clauses wherein it is located. But since the Ninth clause of Section 21 of the Code is the one which is relevant to our case and on which arguments have been addressed, it is necessary to examine the same in depth. The break-down of this clause has been given in para 23 above which shows the two basic groups and the sub-groups under which the expression "public servant" can be categorised. One of the categories specifically relates to officers in the service or pay of the Government. As pointed out by Dr.Sir Hari Singh Gour in the Penal Law of India, 7th Edition, Vol.1 at page 95, "The ninth clause is really the otta porida of the section and it includes within its comprehensive group a large mixed class of nondescript officers who could not be specially provided for". A person whose position or station per se is of such rank or merit as entitles him to be treated as an officer, or who is admittedly such by the rules or regulations applicable to him, need not trouble himself any further, for he would fall within the erm "officer". Other than such apparent cases, by a long string of precedents, some of which have been referred above, the guidelines that determine the term "office", which have now somewhat crystallised and shaped its meaning, are that he is a person who is a functionary or holder of some "officium" or office, whether of dignity or importance, or humble or low, and that he has authority, representative character or delegated function of the employer or performs public duties (which would also include public dealings), or exercises administrative or supervisory functions over persons placed below him, or is one whose duties arc immediately auxiliary to some one who is so armed with such a power. This meaning being in consonance with clause Nine and otherwise best fitting the large mixed class of nondescript officers that fall in this clause, would appear to be the most correct and appropriate that one can adopt and we would so approve it. In doing so we are not unmindful of the fact that it is not possible to lay down with any precision any clear definition or meaning which can be used invariably to determine who is an officer, as that term is understood in clause Nine of Section 21 of the Pakistan Penal Code. 40. In respect of four appeals before us the appellants a e admittedly holding positions of rank and merit in the Board. Anwar A/i/. Chaudhry appellant, was the Managing Director, Saeed Yousaf and Nasrullah Khan appellants, were the Senior Project Managers and Ahmad Gha/.ali was the Project Manager of he Punjab Livestock, airy and Poultry Development Board. Under Annexure-III of the Board's Service Rules, (1974), the appellants fall in the category of senior executives/officers carrying pay scales above BPS-16. By virtue of the Service Rules appicable to them, they are officers. They therefore fall in the category of officers, as that term is understood in clause Nine of Section 21 of the Pakistan Penal Code. 41. The only further question that remains s whether such of the appellants, who were officers of the Board, look, received, kept or expended any property on behalf of the Government, made any survey, assessment or contract on behalf of the Government, or investigated or reported on any matter affecting the pecuniary interests f the Government so as to fall under category (/), (//) and (iv) of A as tated in para 23 above. Under Section 3(2) of the Punjab Livestock, Dairy and Poultry Development oard Act, 1974, the Board is a body corporate empowered to acquire and hold properly having perpetual succession and a common seal. Under Section 4(1), the dministration and management of the Board and its affairs vest in a Board of Directors constituted und r Section 5, which has authority to exercise all powers and do ll such acts and things as may be exercised r done by the Board in accordance with the provisions of the Act. Under Section 4(2), the Board shall in discharging its unctions act on national and commercial considerations, subject to such directions as the Government may give to it from time to lime. Under Section 4(3), the Government an suspend the execution of any resolution or order of the Board as in the opinion of the Government contravenes the provisions'of the Act or rules or egulations made thereunder, or the directions mentioned in sub-section (2), or prohibit the doing of any act which is being done in pursuance of the said resolution or order, r, if the act has been accomplished, order its rectification in such manner as may be directed. Under Section 5, the Board consists of a Chairman and ten directors, of whom ive are superior office holders of the Punjab Government at the Secretary level, four are non-official members and one is a Managing Director. The Chairman, the four non-official members and the Managing Director ar appointed by the Government. Under Section 6 the Managing Director is the Chief Executive of the Board and is a whole time officer, performing such duties as may be specified or assigned to him. Under section 13(1), the Board can, in accordance with the provisions of the Act, but subject to such general or special order as the Government may give from lime to time, take measures to establish, manage or run any of the projects mentioned in the schedule. Under Section 13(2), the Board can establish companies in respect of any of the projects mentioned in the schedule and manage on behalf of the Government the shares held by the Government in the issued capital of the said companies. Under clause (d) of sub-section (3) of Section 13, the Board inter alia is held responsible for implementing and executing schemes approved by the Government and under clause (/) for managing on behalf of the Government, on such terms and conditions as the Government may specify, such farms, projects and activities as the Government may from time to time decide to hand over to the Board. Under Section 13(4), the Board can, subject to general or special directions as the Government may give to it from time to time, assist and encourage the private sector in establishing and running any of the projects mentioned in the schedule. Under Section 15(2), the Board's finances consist of investments and grants made by and loans obtained from the Government. Under Section 22(2), the Government has power by notification to dissolve the Board. Under Section 22(3) the properties and assets left over alter all the liabilities of the Board have been discharged, vest in the Provincial Government and all liabilities left undischarged, after the proper-lies and assets of the Board have been disposed, become the liabilities of the Provincial Government. It is clear that the Board not only has to discharge its functions on national considerations, but is (also) responsible for implementing and executing schemes approved by the Government and managing on behalf of the Government, on such terms and conditions (as) it may specify, such farms, projects and activities as the Government may from time to time decide to hand over to the Board. As already submitted by the learned Additional Advocate General in para (?) above certain projects which were earlier been(?) run by the Government were given to the Board after its establishment for management and certain projects were resumed by the Government from the Board during its period of operation and that almost 2/3rd of the funds of the Board were interest bearing returnable loans of the Government.In addition after the Board was wound up in 1986, the Government took over all the on going projects of the Board and also its liabilities after winding up its business. In this view of the matter it cannot be said lhat pri/na facie there is no evidence that the senior officers of the Board did not take, receive, keep or expend property on behalf of the Government or make surveys and assessments on behalf of the Government or investigate or report on matters affecting the pecuniary interests of the Government. The case there (tore) is covered by category (/), (/'/) and (/V) of A as stated in para 23 above. The four appellants who are the senior officers of the Board are therefore ex-fade public servants and the similar view taken by the learned Single Judge is therefore legal and correct and admits of no exception. However, nothing herein contained shall prevent the Special Judge from giving a proper finding in the matter alter evidence of both the sides is recorded in this respect. 42. We now turn our attention to the arguments advanced on behalf of the appeallants on the ground that no piima fade case stands made out. 43. The case of the prosecution against Anwar Aziz Chaudhry appellant is that in his capacity as the Managing Director of ihe Punjab Livestock Dairy and Popultry Development Board, he, without calling for tenders or placing advertisements, entered into agreements dated 28.4.1975 and 1.4.1975 with his riends Muhammad Tufail of Zargam & Co., Faisalabad, and Khan Muhammad Khan of Mahnaz & Co., Sargodha, respectively for the supply of live cattle heads to he Meat Complex, Schala, against which contract he allowed advances of Rs.2,00,000/- to each of the said two persons. It is the prosecution case that though the riginal agreements were at lower rates, they were later revised and enhanced and that no security was taken for the advances paid to the contractors. It is also the ase of the prosecution that Zargam & Co., Faisalabad , and Mahnaz & Co., Sargodha , were fictitious firms which did not exist. The case of the appellant is eproduced in para 3 above, which does not answer the prosecution allegations. In these circumstances it cannot be said that there is no piiina facie case against the ppellant. The prayer for quashment therefore has no merit and must be rejected. 44. The case of the prosecution against M.A. Sohail is that the said appellant - 'as sole proprietor of Ria/. Associates, Lahore, undertook the contract for the renovation of sheds Nos.3 and 4 of Millat Poultry Farms, Ferozpur Road, Lahore, and that he was paid Rs.6K)88.20 in excess, as a result of the mechinations of Muhammad Khalid, Oversear, who showed excess work and quantities in Measurement Book No.478. The appellant is arraigned with six others in the challan. The reply of the appellant to these allegations is contained in para 4 above. From this reply it is apparent that the appellant had filed a suit against the Board on 9.7.1977 claiming balance payment, in which suit an Arbitrotor was appointed, who gave an award in favour of the appellant.which was made a rule of the Court. In the said arbitration proceedings the Board did not take up the position that the Measurement Book being maintained by Muhammad Khalid, Oversear, showed excess work and quantities. In these circumstances, the proceedings against M.A.Sohail appellant in case No.234 of 1977 are quashed. The case, however, shall proceed against the other accused. 45. The case of the prosecution against Muhammad Tariq appellant is that the officers of the Board without advertising for lenders gave the contract for the renovation of the Hatchery and Breeding Farm buildings at Chhattar, Rawalpindi to Muhammad Tariq, Proprietor of Dawn Construction Co., Lahore, for Rs.3,71,000/-, but thai the said conlractor later was paid Rs.4,25,916/-. It is the prosecution case that though the budget provision was only for Rs.1,80,000/-, the estimates in the instant case were neither technically sanctioned administratively approved and that excess payment of Rs.1,16,877.11 was made to the appellant. The appellant is arraigned with five other co-accused, four of who are officers and employees of the Board. The reply of the appellant to these allegations is contained in para 5 above. From this reply it is apparent that the appellant had filed a suit against the Board on 9.7.1979 claiming certain payments, in which suit an arbitrator was appointed, who gave an award in favour of the appellant, which was made a rule of the Court. In the said arbitration proceedings the Board did not counter claim excess payments made.In these circumstances the proceedings against Muhammad Tariq appellant in case No.140 of 1977 are quashed. The case, however, shall proceed against the other accused. 46. The case of the prosecution against Ahmad Ghaxali appellant is that during his ten years (tenure) a separate tubewell room was constructed which involved expenditure of Rs.6570/-, though the estimated cost of the room was Rs.6000/-. In this manner the appellant was responsible for payment of an excess amount of Rs.570/-. It is further slated that against the expenditure of Rs.6570/- shown, receipts available only proved an expenditure of Rs.5142/-. Thus the appellant was also liable for an unaccounted expenditure of Rs.858/-. In this connection the recoverable loss shown against Ahmad Ghazali appellant and Ahsanul Wodood, Project Managers, is staled to be Rs.1438/-. The reply of Ahmad Ghazali to the prosecution case is contained in para 6 above, which does not answer the prosecution allegations. In these circumstances, it cannot be said that there is no prima facie case against Ahmad Ghazali appellant. The prayer for quashmcnt therefore has no merit and must be rejected. 47. The case of the proseculion againsl Mian Abdur.Rahman appellant, who is arraigned as accused with some others in the same case, is that Mian Abdur Rchman, who was the Managing Director of Boremasler Lid, was given contract for the installation of a tubewell of 2.0t) cusecs in the Cholistan area in Bahawalpur. Later, some ancillary work was also given lo him. According to the agreement dated 28.1.1975, the said contractor was to receive only 25% advance, whereas the Board's officers sanctioned advance of Rs.1,00,000/- on 28.1.1975 and Rs.2,50,000/- on 1.2.1975. It is submitted that after the lubewell was completed, it was found that it was not of 2.00 cusecs capacity, but of 0.75 cusec capacity and that though the estimated cost of the tubewell was only Rs.1,60,000/-, the contract had been offered to Mian Abdur Rchman for an excess sum of Rs.4,00,000/-. In this challan Ehsanul Wadood, Store Pilot Incharge, and Abdul Qadir, Project Engineer, arc also co-accused. The reply of Main Abdur Rehman appellant to the prosecution case is contained in para 7 above, which does not answer the prosecution allegations. In these circumstances, it cannot be said thai ihere is no prima facie case against the appellants. The prayer for quashmenl therefore has no meril and must be rejected. 48. The prosecution case against Masood Ahmad appellant is that he was the owner of Bolan Radios and was a relative of Ch. Nasrullah Khan, Senior Project Manager of the Board, and that the said Senior Project Manager by way of favouritism gave him a contract for the construction of a deep freezer body over the chassis of truck at a cost of Rs.1,95,000/- On 28.10.1976 the appellant was paid advance of Rs.97,500/- by way of favouritism. It is the case of the proseculion that the deep freezer body fixed over the chassis of the truck was a second-hand one acquired from Bada Ber Air Base, Peshawar , and did not give satisfactory performance. Ch. Nasrullah Khan, Senior Project Manager, Syed Sajjad Mehdi, Project Manager, Ghulam Mohayuddin, Production Manager, Hassan Raza, Transport Officer, and two others are also rraigned as co-accused in this case. The case of the appellant is reproduced in para 8 above. The same does not answer the proseculion allegations. It cannot therefore be said thai there is no prima facie case against the appellant. The prayer for quashment therefore has no! merit and must be rejected. 49. There are eight cases of the proseculion against Saeed Yousuf appellant concerning a string of allegations regarding defalcation and misappropration of funds through preparation of false documents. The case of the appellant is reproduced in para 9 above. His reply does not answer the prosecution allegations, relative to the eight cases instituted against him and others. It cannot therefore be said that there is no primu facie case against the appellant. The prayer for quashment therefore has no merit and must be rejected. 50. There are ten challans against Ch. Nasrullah Khan, Senior Project Manager, appellant. All relate to defalcation and misappropriation of funds through preparation of false documentation. The case of Ch. Nasrullah Khan appellant is reproduced in para 10 above. His reply does not answer the prosecution allegations relative to the ten cases instituted against him and others. It cannot therefore be said that there is no prima facie case against the appellant qua the ten challans filed against him. The prayer lor quashmcnt therefore has no merit and must be rejected. 51. For the foregoing reasons, Criminal Appeal No.130 of 1980 preferred by M.A. Sohail appcilanl is allowed and the criminal proceedings pending against him in case No.234 of 1977 arc hereby quashed. The case, however, against the other co-accused shall proceed. Criminal Appeal No.131 of 1980 preferred by Muhammad Tariq appellant is also allowed and the criminal proceedings pending against him in case No.140 of 1977 are hereby quashed. The case, however, against the other co-accused shall proceed. The remaining seven appeals, namely, Cr.A.No.129 of 1980 filed by Anwar A/ix Chaudhry, appellant, Cr.A.No.132 of 1980 filed by Ahmad Gha/ali, appellant, Cr.A.No.l3_3 of 1980 filed by Mian Abdur Rchman, appellant. Cr.A.No.K) of 1981 filed by Masood Ahmad, appellant, Cr.A.No.146 of 1981 filed by Saeed Yousuf, appellant, and Cr.A.No.147 of 1981 filed by Ch.Nasrullah Khan, appellant, are dismissed. (MBC) Orders accordingly.

PLJ 1991 SC 242 PLJ 1991 SC 242 [Appellate Jurisdiction] Present: shafiur riuiman, abdul qadi-i-r chaudiiry and rustam S. SiomvA, JJ CHIEF LAND COMMISSIONER, PUNJAB, LAHORE and another- Appellanls versus Ch. ATTA MUHAMMAD BAJWA and others-Respondents Civil Appeal No. 127 of 1979, accepted on 9.11,1991 [From judgment of Lahore High Court, dated 21.6.1974, passed in W.P. No. 185 of 1974.] (i) Land Reforms Regulation 1972 (MLR 115)-- —Para.lO-Governmenl servant-Grant of land to-Grantee sold land to respondents-Resumption of land under MLR 115-High Court setting aside resumption-Challenge to-Held: Subsequent action of Board of Revenue in granting proprietory rights and transferring land to respondents, would not be f avail against Land Commission because uch excess land would vest by operation of law in Land Commission, itself divesting Board of Revenue of its jurisdiction in matter-Appeal accepted (Per majority) [Pp.251&252]F&G (ii) Land Reforms Regulation, 1972 (MLR 115)- —Para.10 read with Government Grants Act, 1895, Section 3—Government servant-Grant of land to—Grantee sold land to respondents-Resumption of land under MLR 115—High Court selling aside resumption—Challenge to— Whethcr grant was made by Governor as an executive fiat-Question of—High Court proceeded on assumption that "grant was made under a scheme by Governor of West Pakistan as an executive fiat and not under any powers derived from any Act"—Held: This obviously is not correct assumption because there exists on statute book since 1895 Government Grants Act"—Held further: Prohibition contained in Section 3 of Act prevails and any sale, even if contract of sale be held to be a sale in present!, must in view of such repugnance, be held to be void and having no legal existence. [Pp.249&250]A&B (iii) Land Reforms Regulation, 1972 (MLR 115)-- —Para.10 read with paras.!3&18 and Govenment Grants Act, 1895, Section 3- Govcrnment servant—Grant of land to—Grantee sold land to respondents-­ Resumption of and under M.L.R. 115-High Court setting aside resumption- Challenge to—On date of coming into force of MLR 115, grantee had not become full owner of land in dispute- nder para 10 of MLR, land in excess of his entitlement had to be surrendered—Whether such land should be treated as vesting in Sindh Land Commission for granting same o sitting tenants free of charge or remain vaslcd in Sindh Government as owner/grantor-Question of--Case of a grantee under a grant which provides for transfer of State and subject to payment of price, which has not yet been paid in full, is not covered by para. 13(3) but would be covered under para. 18(4)--Held: It is obvious that said land ould not vest by operation of law in Sindh Land Commission as to divest Government of Sindh of its jurisdiction in mailer. (Per Rustam S.Sidhwa J). [Pp.254,255&256]J,K&L PLD 19S4SC453rcl. (iv) Land Reforms Regulation, 1972 (MLR 115)-- —Para.10 read with Government Grants Act, 1895, Section 3-Government servant-Grant of land to-Granlce sold land to respondents-Resumption of land under MLR US- igh Court setting aside resumption-Challenge to-­ Subsequent to decision of High Court in this case, Colony Officers, without waiting for decision of Supreme Court in this ppeal, received balance price of land from respondents and transferred land to them-Respondents in turn, have sold land to others-Held: Board of Revenue, Sindh, will ecognize equities arising out of agreement for sale by grantee in favour of respondents in view of special nature of this grant and peculiar circumstances of this case, and ill rmit transfer to go through in favour of respondents in aid of justice. (Per Rustam S.Sidhwa J). [P.256]M (v) Land Reforms Regulation 1972 (MLR 115)-- —Para.10 read with Government Grants Act, 1895, Section 3—Government servant—Grant of land to—Grantee sold land to respondents—Resumption of land under MLR 15—High Court setting aside resumption—Challenge to— Whether grantee could affect sale—Question of—Transaction itself shows that it was not a transfer but it was a ontract of sale to lake effect after proprietary rights had been acquircd-Till then, future purchaser enjoyed interest in land only as an attorney of Grantee—Held: Grantee imself not being proprietor but only purchaser under an agreement to sell visualised in form of Grant, could not confer more rights on contracting party than he himself ossessed. (Per majority). [Pp.250&251]C (vi) Land Reforms Regulation 1972 (MLR 115)- —Para.10 read with Government Grants Act, 1895, Section 3—Government servant—Grant of land to—Grantee sold land to respondents—Resumption of land under MLR 115-High Court selling aside resumption-Challenge to— Whether prohibition (under seclion 3 of Acl) prevails and any sale or a contract of sale even if it be held to be a sale in presenti, must in view of such repugnance, be held to be void and having no legal effect-Question of-Held: If grantee transferred whatever rights he had in grant, before acquiring full title to land, he did so al risk of having his land resumed, giving transferee no legally enforceable title to land covered by grant (Per Rustam S.Sidhwa J). [Pp.253&254]H (vii) Land Reforms Regulation 1972 (MLR 115)- —Para.10 read wilh Government Grants Act, 1895, Section 3-Government sevant—Grant of land to—Grantee sold land to respondents—Resumption of land under MLR 115—High Court selling aside resumption—Challenge to— Whether prospective purchasers, i.e. respondents have any equitable right- Question of-Even if Government Grants Acl was nol there, transferee under a contract of sale from one who himself derives interesl from a contract of sale, creates no right in land at all-Held: Prospeclive purchaser has no independent right and cannot have any in land so as to be recognized either under terms of Grant or under Land Reforms Regulation. (Per majority) [P.251]D&E PLD 1990 SC 99=PLD 1989 SC 600 not attracled. Mr. Muhammad Nawaz Abbusi, Assistant Advocate General Punjab, Raja Abdul Ghafoor, Advocate, Supreme Court, and Rao Muhammad Yousaf Klian, AOR for Appellants. Mr. S.M.Zafar, Senior Advocate, Supreme Court, and Mr. Imtiaz Muhammad Klian, AOR for Respondents. Dales of hearing: 2 and 5.5.1990. judgment Shufiur Rahman, J.-Leave to appeal was granted to the Chief Land Commissioner Punjab and ihc Land Commissioner, Lahore, to examine whether the Lahore High Court correctly held that an agreement to sell amounted to transfer of the properly agreed to be sold for the purposes of Sub-paragraph (/) of Punjab Land ommission's letter dated 5.5.1972 as amended by letter dated 14.3.1973 and Para 10 of the Land Reforms Regulalion,1972. 2. The facts of the case arc that in the year 1963, the Government of West Pakistan framed a Scheme which was notified on the 23rd of February, 1963. The Scheme enabled the civil servants who had retired or were retiring, to obtain State agricultural land by way of sale from the Government. The maximum that could be granted under the Scheme was 241) acres in multiples of 16 acres. In the Scheme there was condition No. 13, relating to alienation, attaching to the grant, which is reproduced hercunder:-"13. Alienalion.-T\c grantee and in ihe event of his death, his heir, shall not until the price of the land is fully paid, sell mortgage or otherwise alienate the land. In the event of a breach of this condition, the land shall be liable to resumption on refund of the price paid but without any compensation or interest". 3. The price of the land so acquired was to be paid cither in lump sum or in instalments at the option of the grantee. The grantee in this case happend to be Shahzada Alamgir, respondent No.12. He had obtained the maximum allotableunder the Scheme. The land was located in village Kamoo Shahced in Taluqa Ubrao, District Sukkur. The first instalment of Rs.12,000/- was paid in June, 1964 when he obtained possession of the land. On 2.6.1968 his two sons who were managing the land were murdered. While he had some instalments yet to pay, he entered into an agreement of sale with regard to this land with Ch.Atta Muhammad and his ten brothers. The agreement was executed by Shahzada Alamgir son of Shahzada Saleh Muhammad Khan the grantee. Relevant recitals in the agreement to sell are reproduced hcreundcr:- (/) "AND WHEREAS the second party desires to sell the land to the first party as soon as it is finally transferred and conveyed by the Government to the second p rty, nd the second parly desires lhat in the meanwhile the first party should manage and administer the land on behalf of the second parly, and also pay all the remaining inslalmcnis of ihe sale price with interest thereon to the Government and make further development on the said land at their own cost". ) "Thai when ihe full sale price and inlcrest thereon is paid to the Government and as soon as possible immediately after the acquisition of full tille lo ihe plol of land byihe second parly from the Government, it will be the boundcn duly of the second parly to do all and everything to get the said plot of land transferred, conveyed and registered in the name of the first parly or his nominee or nominees and also to execute all such deeds and instruments which he may be called upon to execute for more fully and perfectly securing the rights of the firsl party". (///') "In case, however, it becomes legally impossible for ihe second party to transfer his land lo ihe first party, ihe second parly shall be bound to refund the money received Rs.2,40,000/- (Rupees two lacs & forty thousand only) as well as the actual cost of further developments of land and the sums of money paid, to the Government in instalments in connection with land together with all other expenditures incurred by the first party before the second party becomes entitled to take possession of the land". "That the second party shall execute an irrevocable General Power of Attorney in favour of Ch.Atta Muhammad on the very day, the post­ dated Cheque No.CAX-930315 for Rs.l,(X),000/- (Rupees one lac only) is encashed.Thcreafler the first parly will be able to act on behalf of the second party and obtain its produce. The second party shall also execute as soon as possible irrevocable General Power of Attorney at the request of the first party in favour of Chaudhury Alta Muhammad Bajwa of Rahimyarkhan, so that when all the instalments are paid to the Government they may have the land transferred in the name of first party and then execute regislrcred sale deed on behalf of the second party in favour of the first party or their successors-in-intcrest". As agreed, on the 17lh day of January, 1969 Shahxada Alamgir, the civil servant, executed an irrevocable General Power of Attorney in favour of Ch.Atta Muhammad Bajwa for acting on his behalf and authorised him, among others, to transfer 239.10 acres of land in accordance with rules to Ch.Atta Muhammad Bajwa and his ten brothers, as soon as the land is conveyed to him by the Government. 4. While the instalments had yet to be paid of the land acquired, Martial Law Regulation No.115 came to be enforcjd and the operative sub-paras (1) and (2) of Paragraj^i 10 read as hereunder:- "10(1) No person who is or has been in service of Pakistan and has at any time between the first January, 1959, and two years of his ceasing to be in service acquired any land or any right or interest therein, by any means whatever, either in his own name or in the name of any of his heirs or any other person, shall own or possess any land exceeding one hundred acres: Provided thai, subject to the other provisions of this Regulation, any such person may, in addition to one hundred acres of land, own or possess any land which has devolved on him by inheritance or any other land, not exceeding the land so inherited, whether by exchange or sale, either in his own name or in the name of any other person. (2) Whether any person as is referred to in sub-paragraph (1) has, within the period specified therein, transferred in favour of any of his heirs or has acquired in the name of any of them any land, and such land continues to be owned or possessed by his heirs, he shall for the purposes of that subparagraph be deemed (o be the owner of such land". The Punjab Land Commission by letter dated 5.5.1972 as amended by letter dated 14.3.1973 also introduced sub-paragraph (/) in the following words:- "A Civil Servant who had acquired more than 100 acres of land within the period specified in paragraph 10 of the Regulation, but had before the promulgation of the Regulation, transferred the land in favour of a person who is not any of his heirs, is not required to file any declaration under the Regulation". 5. Shahzada Alamgir filed a declaration persuant to Paragraph 10 of Land Reforms Regulation 1972. This declaration came up for scrutiny on 26.6.1972 before the Land Commissioner who disallowed the exemption. The operative part of the Order of the Land Commissioner reads as hereunden- "The question would now arise whether this transaction should be deemed to be a transaction of sale or alienation under para 7 of MLR 115. It will be seen that the land still remains in the name of the declarant and in accordance with Condition No.13 of the Conditions governing the grant published vide Government of West Pakistan Notification No.5%- 63/659-S-V dated 23.2.1963, the grantee could not sell, mortgage or otherwise alienate the land till the price of the land was fully paid. Therefore while intention und agreement to sell was there the sale was not complete and could not be so till the declarant had paid the full price to Government and got the proprietary rights, the declarant would, therefore, appear lo be still the Government grantee and should be dealt with accordingly. As regards Ch.Atla Muhammad Bajwa etc. they are tenants in cultivating possession who may either claim the excess land to be resumed as landless tenants if otherwise eligible or apply to the Provincial Government in the special circumstances of the case for outright grant of the land they occupy". 6. An appeal was taken by Atta Muhammad Bajwa and his brothers to the Chief Land Commissioner, Punjab. He passed the Order rejecting the appeal in terms as hcreunden- "I cannot also accept the claim of the appellants before me that Shahzada Alamgir had sold off this land in their favour and that he should not be deemed to 'own or possess any land excepting 100 acres' for the purpose of .application of paragraph 10 of MLR 115. The factual position is that the land continues to be in the name of Shahzada Alamgir and has not been transferred or sold to ihe appellants. Shahzada Alamgir entered into a private arrangement with the appellants for ultimate transfer of the land in their favour after he had acquired proprietary rights but that is a matter between him and [he appellants and it cannot effect the legal position under which Shahzada Alamgir is affected still a grantee and the possessor of the land in question. Even all the documents and revenue record are still in his name. His agreement with the appellants has therefore, no relevancy or bearing so far as his legal position as grantee of the land is concerned. The appeal of the appellants is therefore rejected". 7. The matter was then taken to the Chairman Federal Land Commission and Mr.Ghulam Mustafa Khan Jaloi who then happened to be the Chairman, Federal Land Commission upheld the Orders passed by the Land Commissioner and the Chief Land Commissioner. He observed as hcreundcr:- "It is, thus, clear that the Respondent No.] still holds valuable rights and interest in the land in question and the transaction in favour of the petitioners is incomplete. The Land Commissioner, therefore, was fully justified in refusing to validate this transaction under paragraph 7(/)(f>) of Land Reforms Regulation 1972". 8. Finally, Ch;Alla Muhammad Bujwu and his ten brothers filed a Constitution Petition which succeeded. The main findings of the High Court were as hercundcr:- (t) "In short, by executing the agreement and the general power of attorney, the Government servant has indeed, as asserted by the learned counsel for the petitioners, completely washed his hands off the land in question provided the power of attorney is truly irrevocable as it purports to be". (//.) "In my opinion, the Government servant has, within the meaning of Subparagraph (/) of the Land Commission's letter, referred to earlier, transferred the land in question in favour of the petitioners who are not in any way his heirs or even remotely related to him. Therefore, the Land Commission has no authority to resume any part of that land". (Hi) "However, even if it be assumed that despite the irrevocable power of attorney, the Government servant can lake the land back after duly compensating the petitioners, the operation of Paragraph 10 of the Land Reforms Regulation being continuous in future, the land and the Government servant both will be hit as soon as he comes to own or possess it and the Land Commission can then move in to resume from the Government servant the area in excess of 100 acres. Therefore, if the transaction in question is not genuine, neither the Government servant nor the land can for long escape the Land Reforms Regulation. That being so, it would be premature to apply paragraph 10 to this case at the present juncture. For, at this moment, the Government servant does not own the land in question, the Government being still the owner; and, for all practical purposes, he has parted with possession". (/v) "The grant was made under a scheme by the Governor of West Pakistan as an executive fiat and not under any powers derived from any Act". (v) "Since condition No.13 of the Statement of Conditions contained in the Scheme does not make the alienation of land before the payment of full price to theGovernment void ipxo facto but only renders the land liable to resumption and that loo On the refund to the guarantee of the price already paid by him, the alienation cannot be held void under Section 19 of the Colonization Act". (v/) "While construing the word "transfer" it was necessary that the purpose and the spirit of ihe Land Reforms Regulation should have been kept in view. It must be noted that this Regulation has not been enacted to regulate the transfers of immovable property from one party to another. Therefore, it was wrong to have given that meaning to the expression "transfer" which, under the law governing the transfers of property, it normally carries. The error of Land Commission authorities lies in the fact that they construed ihe word "transfer" strictly in a manner which would be justified only in a case where the dispute was between the transferor and the transferee. In the present case, it may be noted that there is no conflict between the positions taken by the Government servant who is the transferor , and the petitioners who are the transferees. It is the Government as a third party that is seeking to hold the transfer invalid in order to resume the bulk of the land in question. In these circumstances, what the Land Commission is to see is whether in effect the transfer is complete even if it is not strictly so under the general law governing the transfers of property. In my opinion, for the purposes of the Regulation, it is the de facto position that counts and not the de jure one except where the validity of the transfer is disputed also by one or the other party to the transfer. Similarly, while interpreting the words "own" and "possess" occurring in paragraph 10 of the Regulation the Land Commissions shouldalways bear in mind the purposes of the Regulation itself. The necessary declaration that the impugned orders of the Provincial and the Federal Land Commission were without lawful authority and were of no legal effect was granted and the Writ Petition was allowed. 9. Subsequent to the decision of the High Court certain other events have taken place which have been brought to the notice and pleaded. First is the fact that the entire price of the land including a balance of Rs.23.000/- was paid after the decision of the High Court and proprietary rights were obtained in the name of Shahzada Alamgir and thereafter the permission of the Government was also obtained under Section 19 of the Coloni/.aiion of Government Lands (Punjab) Act for transferring the land to the respondents/the beneficiaries under the agreement io sell. The other factor or the event which has happened after the decision is that the Martial Law Regulation No.115 inclusive of the paragraph under consideration has ceased to be the law of the land vide decision reported in Qczilbash Waqfv. Chief Land Commissioner (P.L.D. 1990 S.C. 99 = PLJ 1989 SC 600) from 23.3.1990. 10. Mr.Muhammad Nawax. Abbasi, Assistant Advocate-General has contended that an agreement to sell when the right to sell was not possessed by the grantee, could not be of avail to either; nor could such an agreement amount to transfer for the purposes of the Land Reforms Regulation. 11. Mr.S.M.Zafar, Senior Advocate, the learned counsel for the respondents has on the other hand taken us through the various terms of the agreement to sell and the irrevocable power of attorney executed in lieu of valuable consideration in order to establish that the grantee had done all that he could do and had transferred all the interest that he had for the moment and was likely to obtain in future in favour of the transferee. In such a situation, the transfer had to be rccogni/cd and to be given effect to and that has rightly been done by the High Court. He has referred to a number of decisions from die High Court of Sind to establish that the transfer envisaged in the Land Reforms Regulation need not have all the legal formalities and perfections which are required to alienate properly in favour of someone else. 12. So far as the merit of the adjudication is concerned, the judgment of the High Court, if I may say so with utmost respect, has on three material points gone against the established law of the land. Firstly, the High Court proceeded on the assumption that "the grant was made under a scheme by the Governor of West Pakistan as an executive fiat and not under any powers dervied from any Act". This obviously is not a correct assumption because there exists on the statute book of the country since 1895 the 'Government Grants Act'. The over-riding and the compulsive effect of this Act necessitates its reproduction in full. It reads as hereunder:- THE GOVERNMENT GRANTS ACT.1895 ACT NO.XV OF 1895 [10th October,1895] An Act to explain the Transfer of Property Act, 1882, so far as relates to grants from the Government, and to remove certain doubts as to the powers of the Government in relation to such grants. WHEREAS doubts have arisen as to the extent and operation of the Transfer of Property Act,1882, and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, and it is expedient to remove such doubts; it is hereby enacted as follows:- 1. Title and extent.--(l) This Act may be called the Government Grants Act,1895. (2) It extends to the whole of Pakistan. 2. Transfer of Properly Acl, /cSVS'2, not to apply to Government g/'O/iW.-Nothing in the Transfer of Properly Act,1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed. 3. Government grants to take effect according to their tenor.-M\ provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding". Section 3 deserves special attention. In this context condition No.13 of the Grant already reproduced in para 2 of the judgmen acquires an over-riding compulsive effect and what such a law prohibited could not be held to have validly happened. The prohibition prevails and any sale, even if the contract of sale be held to be a sale, inpresenti, must in view of such repugnance be held to be void and having no legal existence. 13. The second and an equally important feature of the transaction pleaded as a transfer itself shows that it was indeed not a transfer but it was a contract of sale to take effect after the proprietary rights had been acquired. Till that happened, the furture purchaser enjoyed interest in the land only as an attorney of the Grantee. There was also a provision made in the Agreement with regard to frustration and compensation therefor. The various terms of the contract of sale or the Agreement to sell reproduced in the judgment in para 3 indicate that this agreement was subordinate to the terms of the grant, that it was in recognition of it and that no interest in the land as such was claimed except certain rights relating to land which were to become enforceable after the proprietary rights had been conferred on the grantee. The Grantee himself being not the proprietor but only a purchaser under an agreement to sell visualized in the form of Grant could not confer more rights in the property on the contracting party, the respondents No.l to 11, than he himself possessed. He was not permitted to transfer even the rights which he was possessed of in the property. 14. Tliirdty, even if the Government Grants Act was not there, the transferee under a contract of sale from one who himself derives interest from a contract of sale, creates no right in the land at all. There is no equitable aspect coming into D existence. Such a question came up for consideration before the Indian Supreme Court in the case of Satyabrata Chose v. Mugneeram Bangitr and Co. and another (A.I.R.1954 S.C.44) where the following law was laid down:- "....under the English Law as soon as there is a concluded contract by A to sell land to B at certain price, B becomes, in equity, the owner of the land subject to his obligation to pay the purchase money. On the other hand, A in spite of his having the legal estate holds the same in trust for the purchaser and whatever rights he still retains in the land are referable to his right to recover and receive the purchase money. The rule of frustration can only put an end to purely contractual obligations, but it cannot destroy an estate in land which has already accrued in favour of a contracting party. According to the Indian Law, which is embodied in Section 54 of the Transfer of Property Act, a contract for sale of land does not of itself create any interest in the property which is the subject-matter of the contract. The obligations of the parlies to a contract for sale of land are, therefore, the same as in other ordinary contracts and consequently there is no conceivable reason why the doctrine of frustration should not be applicable to contracts for sale of land in India". 15. The Land Reforms Regulation's provisions which apply to the case provide for transfer of land. Neither on the basis of this agreement to sell nor on the basis of the status conferred on the prospective purchaser as of attorney of the Grantee, can the land or possession of it be held to be transferred to the attorney. He has no independent right, and cannot have any, in land so as to be recognized either under the terms of the Grant or under the Land Reforms Regulation. The decision of the Shariat Appellate Bench of this Court in the case of Qazilbash WaqfPU 1989 SC 600 will not directly effect the adjudication in this case because the Court's Order referred to itself in ragraph 7 made the following reservation:- "The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. on 23.3.1990". The provision invoked against the appellants being a self executory provision, does not await the decision of any authority or court for having effect. It is only the interpretation, the exclusion or the limitations which can be decided upon by the Court and not the operation of law as such. 16. For the same reason, the subsequent action of the Board of Revenue would not be of avail against the Land Commission because such excess land would vest by the operation of the law in the Land Commission itself divesting the Board of Revenue of its jurisdiction in the mailer. The procedural determination of the exact area to be resumed or to be left with the Grantee is a matter that can be dealt with any lime by the authorities competent to deal with it. 17. In the circumstances, this appeal is accepted. The judgment of the High Court is set aside and the writ recalled, the Constitution Petition filed by the Respondents No.l to 11 against the Order of the Federal Land Commission is dismissed. No order is made as to costs. Abdul Qadeer Chaudhry J: I agree. Rustum S. Sidhwa J.--By virtue of the scheme lor the grant by way of sale of State agricultural land in the Ghulam Muhammad Barrage, Guddu Barrage and Taunsa Barrage to distinguished retired and retiring Government servants, as notified by the Board of Revenue in its notification No.596-63/659-S-(G)V, dated 23.2.1963, Shahzada Alamgir was granted 240 acres of land in Lot-II, Deh Kamoon Sha'need, Taluka Ubaro, District Sukkur, within the Guddu Barrage area. As the grantee elected to pay the price in instalments, under para 10 of the scheme he executed an agreement in the form set out in Appendix 'B' to the said scheme. Appendix 'B' to the scheme is not printed in the paper book of this case. It appears that the said Appendix 'B' containing ihe agreement was first circulated by the Boad of Revenue, West Pakistan, under its mcmorendum No.596-63/3537- S(GN)V, dated 2.9.1964. By virtue of para 3(/) of the agreement, the grantee inter alia covenanted with the Government not to alienate by sale or otherwise the land to any person until the price of ihe land was paid in its entirely. Para 4 of the agreement, which is relevant, may be reproduced wilh advantage as follows: "4. li is expressly agreed between the parties as follows:- (li In a r

f the followingcvenls:- (a) il the grantee commits any breach of or fails to perform any of the H-rms and conditions of this grant, or suffers or permits such breach •>r non-performance, or (b) if the grantee is declared insolvent, or (c) if the grant is attached, Government may thereupon or at any lime thereafter re-enter upon the land and determine this grant: Provided that such termination of ihe grant shall not prejudice any right of action or remedy of Government in respect of any antecedent breach of this agreement by the grantee. (2) (a) No compensation shall be payable by the Government in respect of the exercise of any rights reserved or conferred by the terms of this grant, except as provided hereunder:- (0 ................... (Hi) on resumption of ihe whole or any portion of the land otherwise than for breach of conditions or for the creation of a public right of way or for construction of a watercourse a proportionate refund of the purchase price, if any, paid and such additional sum, if any, as may be determined by the Collector in accordance with the general principles applicable to the acquisition of land for public purposes. It is therefore obvious that the grantee, whilst in possession of the land, did not have the right to alienate it, but had the right of possession, user, peaceful enjoyment and usufruct. In short, he did not ha\e full title to the land. 2. It is the case of the respondents that through the agreement for sale and irrevocable general power of attorney the grantee transferred the land to them and since the grantee was not the owner but only one having possession, the full transfer of possession took place in their favour and thus vide para (/) of the Clarification issued by the Punjab Land Commission by its letter dated 5.5.1972, Shah/ada Alamgir, the grantee, was not required to file any declaration under the Regulation regarding the land held under the grant. Para 10 of the Martial Law Regulation (hereinafter to be referred to as "the Regulation") debars a civil servant, who (at) any time between 1st January,1959, and two years of his ceasing to be in civil service, has "acquired any land or any right or interest therein, by any means whatever", to own or possess any land exceeding one hundred acres. The v\ords "acquired any land or any right or interest therein" refer to two types of land. The words "acquired any land" refer to land, the full title of which has been acquired. The words "right or interest therein", refer to land, full title of which has not been acquired. The words "a civil servant who had acquired more than 100 acres of land" in para (/) of the Punjab Land Commission's letter dated 5.5.1972, obviously refer to that land of which full title has been acquired by the declarant, which he has transferred to some other person before the promulgation of the Regulation. They do not refer to land, in which some right or title has been acquired. If this was intended to be convercd, para (/) would have read "A civil servant who had acquired land or any right or interest therein in excess of 100 acres within the period specified " Thus para (/) of the letter does not cover the respondents' case. Even otherwise, with the agreement for sale and the irrevocable general power of ttorney in favour of the respondents, the position of Shah/.ada Alamgir as grantee and one in symbolic possession of the land would still remain, compelling him to file the declaration. 3. The Government Grants Act (1895), applies to the grant in question. Drawing attention to para 4 of the agreement, it would appear that it has an over­ riding compulsive effect and would apply according to its tenor. The question remains whether the prohibition prevails and any sale or a contract of sale even ifit be held to be a sale in presenti, must iii view of such repugnance be held to be void and having no legal effect. As I read paras 3 and 4 of the agreement, the whole of the conditions have to be read according to their tenor and it would therefore appear that any sale, mortgage or alienation of the land would not give any right to the vendee, mortgagee, or alienee to enforce the same, or give any right to the Government to ipso facto avoid the agreement or treat it as void, for the Government would have the right either to waive the breach, or avoid the grant and resume the land, but without any compensation. Thus, if the grantee transferred whatever rights he had in the grant, before acquiring full title to the land, he did so at the risk of having his land resumed, giving the transferee no legally enforceable title to the land covered by the grant. 4. It cannot be doubted that the lands in the Guddu Barrage area in District Sukkur given to Shahzada Alamgir grantee were in the nature of a grant from the Government of West Pakistan and that on the dale of the coming into force of Martial law Regulation 115, the grantee had not become full owner of the land Since the grantee could not own or possess land in excess of his entitlement under para 10 of the Regulation, which entitlement was found to be 100 acres plus 16- 2/3 acres of land on account of a tube-well, he had to surrender the balance area which was in excess. In the excess area which he surrendered there was inter alia the total land under the grant, which was located in Sind, which continued to remain with the owner/grantor i.e. the Sind Government, as the successor of the Government of West Pakistan. 5. The main question that arises is whether the said lands should be treated as vesting in the Government of Sind (through the Sind Land Commission) under para 18 of the Regulation for the purposes of being granted free of charge to the sitting tenants, or as remaining vested in the said Government as the owner/grantor and as excluded for transfer to the tenants under para 18(4) thereof. 6. Paras 13 and 18 of the Regulation may be reproduced here with advantage 13. /esting i'i Cover/uncut of excess land— (1) Land in e:.i ess of the area permissible for retention under Part-Ill, shall vest absolutely in Government free from any encumbrance or charge and without navmcnt of anv compensation': (2) Any encumbrance or charge existing on land surrendered by a person, which vests in Government under sub-paragraph (1), shall be deemed to have been transferred to the land retained by such person under Part-Ill; (3) Where any person is in possession of, or is holding land in excess of the area permissible for retention under Part-Ill, so much of such excess land as is in his possession as a lessee or mortgagee or is held by him as the landlord of any occupancy tenant or a Muqarraridar or as an Ala Malik shall not vest in Government but shall, subject to the other provisions of this Regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be and shall be deemed to have so reverted at the commencement of this Regulation. 18. Grant of land to tenants.--(I) Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to the other provisions of this paragraph, be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub-paragraph (1) of paragraph 12, to the tenant who is shown in the Revenue Record to be in cultivating possession of it in the year immediately preceding such declaration: Provided that no land shall be granted to tenants who, but for the making of this Regulation, would have (been) entitled to inherit land from any of the person from whom land has been resumed under this Regulation. Where a tenant who is eniitled to the grant of land under the said sub-paragraph (1) already owns any land, he shall be granted only so much land under the said sub-paragraph which together with the land already owned by him equals an area of a subsistence holding. Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant during Kharif 1971 and Rabi 1971-72 it shall be granted to such tenant or other persons, owning less than a subsistence holding, and on such terms and conditions, as theGovernment may determine;Provided that Government may ulili/.e any such land for such public purpose as it may deem lit. (4) Nothing in this paragraph shall apply to orchards, or to any State land granted on instalments where any instalment in respect of such land mains unpaid". /. i'ara 13(3) of the Regulation treats land in excess of the area permissible for retention under Part-Ill of the Aet, which is in the possession of a declarant as a lessee, or mortgagee, or as a landlord of an occupancy tenant, inuqarraridar or ala inalik, as not vesting in the Government, but as reverting to the lessor, mortgagor, occupancy tenant, inuqurraridar or adna malik, as the case may be; the reversion taking effect from the date of the commencement of the Regulation. The case of a grantee under a grant which provides for the transfer of Stale land subject to payment of a price, which has not been paid in full, is not covered by para 13(3). However, the same would appear to be covered by para 18(4), which states that nothing in this para would apply to orchards or to any State land granted on instalments where any instalment in respect of such land remains unpaid. It is an admitted position that the total instalments in respect of the land held by Shah/ada Alamgir as a grantee had not been paid when the Regulation came into force. It is therefore obvious that the said land would not vest by operation of the law in the Sind Land Commission as to divest the Government of Sind of its jurisdiction in the matter. The procedural determination of the exact area to be resumed or to be left with the grantee fell within the competence of the Land Commission, but no sooner any such area which fell for resumption related to State land granted under a Government grant, the said area did not vest with the Land Commission to be granted free of charge to the tenants under para 18, but reverted to the Sind Government as the owner/grantor. Even under the earlier Martial Law Regulation 64, if the leased area surrendered by a person was State Land, it reverted to the Government and the sitting tenants were not entitled to proprietary rights thereto. See Talib Din v. The Chief Land Commissioner (P.L.D. 1984 S.C. 453). 8. The grant in the instant case was by way of sale of agricultural land, i.e. one intended to confer proprietary right on the grantee. There are various types of grants. Some are resumbale grants; some are non resumable. A service grant where some benefit accruing out of land is granted to a grantee so long as he remains in service, which terminates after his service ceases, is a resumable grant. A horse breeding or cattle breeding grant, where land is offered to the grantee on certain conditions for a limited period, which grant automatically ceases on the expiry of the stated period, is also a resumable grant. A grant by way of sale of State land, where land is allotted to the grantee for the purpose of breaking the land and bringing it under plough, subject to certain conditions regarding payment of the price, which, when fully paid, proprietary right to the land is conferred on the grantee, basically is a non resumable grant. There are also various other types of non resumable grants. In almost all these types of grants there is a condition that the grantee shall not alienate by sale or otherwise the land to any person during the tenure of the service or the limited period of the grant stated or until the price of the land is paid in its entirety. Had the Martial Law Regulation not intervened, the grantee in the instant case would have paid the full price, secured the proprietary rights to the land and transferred the same to the respondents. I mention this in view of the subsequent development that has taken place in respect of the land in question. 9. ! appear' that subsequent to the decision of the High Court in this case, the Col ; y Officers, without waiting for the decision of this Court, in the appeal filed by i u: Chief Land Commissioner, Punjab, received the balance price of the land from she respondents and transferred the land covered by the grant in favour of the respc-ndi-TiK The respondents have in turn sold the land to others. In view of the decision ol this Court, whether the transfer orders will be recalled or the transfer will be u! owed to stand, it is not very clear. However, I assume the Board of Revenue, Sind, will recognise the equities arising out of the agreement for sale made by Shahzada Alamgir in favour of the respondents, in view of the special nature of this grant and the peculiar circumstances of this case, and will permit the transfer to go through in favour of the respondents, in aid of justice. With this observation, I would agree with the final order proposed by my learned brother that this appeal be accepted and the judgment'of the High Court be set aside. (MBC) Appeal accepted. PLJ 1991 SC 256 Present: dr. nasim hasan siiaii, suafiur rahman, zai-tar hussain mirza, am hussain qa/.ii.uasii and abdul qadherciiaudhry, jj SAFDAR AL1 and others-Petitioners versus THE STATE and another—Respondents Criminal Misc. Petition No.65-L of 1990 in Criminal Petition No. 350-L of 1990, accepted on 13.1.1991. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S.345 read with Pakistan Penal Code, 1860, Section 323--Murder—Offence of-Conviction for-Compounding of--Prayer for--Not only all heirs of deceased desire to ompound offence but a sum of Rs. 1,71,000/- is to be paid to heirs of deceased as Badl-i-Sulali by convicts-According to newly introduced section 323 PPC, Court is equired to fix value of Diyat keeping in view financial position of convicts and heirs of victim, but not less than value of 30630 grams of silver-Held: As value of 30630 grams of silver omes to about Rs. 1,71,000/-, Diyat being paid is not less than statutory amount prescribed in this behalf and is reasonable. [P.262]C (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S.345 read with Pakistan Penal Code, I860, Section 323-Murder-Offence f-Conviction for-Compounding of-Prayer for-\Vhether amount of Rs. 1,71,000/- is a fair Badl-i-Sulah for ompounding offence-Question of-In this case, victim was a single individual and despite fact that 3 persons were involved in his murder, is hardly of much importance when heirs of ictim are satisfied with amount of Diyat being paid to them—Held: In view of financial position of convicts as also of heirs of victim, amount of Diyat is quite appropriate—Permission o compound offence allowed. [Pp.262&263]E&F (iii) Criminal Procedure Code, 1898 (V of 1898)-- —-S3-JS read with Pakistan Penal Code, 1860, Section 313(2)(b)--Murder- (;>L ol--Conviction lor—Compounding of—Prayer for—Whether Badl-i- Si L; -, 10. ild be paid in presence of court-Question of-Pelilioners have today hrou:.i! 11 court entire amount of Rs. 1.71.000/- and court can make any provs.in considered suitable by it to safeguard interest of minor heirs of dccca^d- Difficulty under provisions of section 313(2)(b) about father or grandfather of minor to exercise right of Qisas on behalf of minor, can be overcome—Three minor heirs of deceased are being represented by their mother and their paternal grandfather is already dead—Held: By tendering amount of Diyat in Court with prayer that amount payable to minors may be paid to them in any manner considered suitable, difficulty is resolved. [P.262JD (iv) Criminal Procedure Code, 1898 (V of 1898)-- —S.345 read with Pakistan Penal Code, 1860, Sections, 302/309,310, 338 E and 338 H-Murdcr-Offence of-Conviction for-Compounding of-Pfayer for-- Whether offence committed before commencement of Crimirfal Law (Second Amendment) Ordinance, 1990, can be compounded-Queslion of-Held: A perusal of Section 338 E and 338 H indicates that waiver or compounding of an offence in cases falling under Section 309 and 310 PPC, is possible even in those cases of Qutl-i-Aind where right of Qixas cannot be enforced because of death sentence having not been imposed and lesser sentence awarded under Section 302 PPC, in view of provisions of Section 345 of Cr.P.C (as amended). [P.261JA&B Mr, Muhammad Adam Oiaiidh/y, AOR for Petitioners. Mr. Maqbool Elalii Malik, A.G. Punjab, Mr. Muhammad Nawaz Abbasi, A.A.G. and Rao Muhammad Yousuf Klian, AOR for State. Mr. Ijaz Hitssain Batalvi, Senior Advocate, Supreme Court as ainicus airiae. Date of hearing: 13.1.1991. judgment Nasim Hasan Shah, J.-This is an application under Section 345 Cr.P.C. as amended by the Criminal Law (Second Amendment) Ordinance, 1990, seeking acquittal of the petitioners in Criminal Petition No.350-L of 1990 namely Safdar Ali, Abdul riamid and Abdul Wahid who stand convicted under Section 302/34 PPC and sentenced to imprisonment for life with fine of Rs.5,000/- and payment of compensation of Rs.5,000/- each under Section 544-A Cr.P.C. by the Lahore High Court. The Petitioners, above-named, are brothers and the case of the prosecution is that a dispute existed between the lather of the petitioners and Abdul Haq P.W. about the Nakka of the Kiwi. The deceased Muhammad Bashir used to accompany Abdul Haq during the hearings of the case in respect of the KJial and the petitioners were annoyed with him on this account. This annoyance was responsible for the unfortunate incident wherein the deceased lost his life at the hands of the petitioners resulting in their conviction under Section 302 PPC and sentence of life imprisonment. A petition for leave to appeal (Criminal Petition No. 350-L of 1990) was filed in this Court against the aforesaid conviction and sentence which is still pending. In the meanwhile, on 5th September, 1990, the Qisas & Diyal Ordinance 1990-C'riminal Law (Second Amendment) Ordinance, 1990 was promulgated and this application has been moved before us wherein it is submitted that a compromise has been entered inlo between the petitioners and the heirs of the deceased with a view to fostering good relations between the parties in the future; that the petitioners have paid an amount of Rs.1,,71,000/- in cash as Badal-i-Sulah and that they should be acquitted under its provisions. The compromise has been entered inlo between the petitioners and the following heirs of the deceased:-- (1) Msl. A/iz Bibi, Widow (2) Mohammad Tayyab (3) Muhammad Iqbul) sons (4) Muhammad Tariq (5) Msl. Irshad Bibi daughter (6) Zulfiqar Ahmad (7) Fai/ur Rasul (8) MohdSiddique minors through their mother Mxt. A/i/ Bibi A compromise deed accompanied by affidavits sworn by the heirs of the deceased have (?) also been submitted confirming the facium of compromise. This pplication came up for hearing on 17.12.1990 on which date Mst. Aziz Bibi widow of Muhammad Bashir deceased, major sons of the deceased as also his daughter Mr. Irshad Bibi were present in person. The remaining heirs namely the three minor sons of the deceased were represented by their mother Mst. Aziz Bibi. Alongwilh the heirs of the deceased Mr. Muhammad Aslam Ch. Advocateon-Rccord was present while the Additional Advocate-General represented the State. On that date the heirs of the deceased stated that they have already received the amount of Rs.1,71,000/- as Badal-i-Sulah and utilised the said amount in the construction of the shops on some land owned by them in Ghalla Mandi. Sumundri and, therefore wished to compound the offence. But we were reluctant to grant their prayer because the issues involved called for deeper & closer examination. Accordingly, we decided to request some jurists speciali/.ing in this field namely Mr. Khalid M. Ishaq and Mr. Ija/ Hussain Batalvi to assist us as arnicas cwiae. We also issued notice to the Advocate-General Punjab to also appear in this case observing as follows:— "This is a case of compounding of Qi.sas (Sulah) in Qatl-i-aind falling !i uier Section 310 of the Penal Code as substituted by Criminal Law (Second Amendment) Ordinance 1990. According to sub-section (1) of Section 310 "in case of qail-i-aind, an adult sane wali may, at any time on accepting/jtfJtf/-/'-.v/</tf/i, compound his right of qisas". The question, interana, arises whether the amount of budul-i-xulah must necessarily be accepted in the presence of the Court and even if this may not be a requirement of the statute whether ihis condition should not be adopted in practice, for the sale administration of justice? In the present case, we are also told thai the amount was paid in cash sometimes, before 13.10.1990. will such an averment be sufficient •iroof of payment ol bdilal-i-xitlali'! Again, according to clause (a) of Section 305 in case of qall, the • vnii shall be the heirs oi the \iclim. according to his personal law. But if -.ome of the heirs of the victim arc minors, the father or if he is not alive the paternal grandfather of such in;// .shall have the right of qisas on his behalf (Section 313(2)(/;) refers,!. In this case, the three minor heirs of the deceased arc represented by their mother and not by their grand­ father who, we are told, is already dead. Can the molhcr, in ihese circumstances, have the right of <//.vtf.y on their behalf? Furthermore, the offence of tfull-i-amd committed by the Ihree offenders is sought to be compounded in this case. Can the amount of Rs.1,71,000/- be treated to be an equitable or fair badal-i-sulah for compounding the right ol ' qisas in the circumstances." This case has come up today (13.1.1990). In the meantime, Ordinance No.I of 1991 namely Criminal Law (Amendment) Ordinance 1991 has been issued repealing the Criminal Law (Second Amendment) Ordinance 1990. Mr.Khalid M.Ishaq, one of the Amiens Citrine, is not presenl owing lo indisposilion bul Mr.Ijax Hussain Batalvi, ihe other Amiens Cuiiae is present who has given us benefit of his learned views. Mr.Maqbool Elahi Malik, learned Advocate-General, Punjab has also been heard. In this case, three petitioners, though convicted under Section 302 P.P.C., have been sentenced to life imprisonment. Section 310 provides for compounding of qisas (sulah) in qalli-i-amd and lays down that "in the case of qatl-i-amd, an adult sane wall may, at any time on accepting badal-i-sulah, compound his right of qisas". Qisas is defined in clause (/c) of Section 299 as follows:- "(k) "qises" ( O^t ) means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd, in exercise of the right of the victim or a wall". (underlining" is ours) ( cordingly, the right of Qisas means the right of causing death of the convict if r, ..- has committed Qall-i-Amd. In this case, as the petitioners have not been s • itcnced to death, but to life imprisonment, the question of the heirs of the v i tim compounding their right of Qisas does not arise. The present case, therefore, falls under the provisions of sub-section (2) of s xlion 345 as amended by the Criminal Law (Amendment) Ordinance, 1991. At cording to Section 10 of the said Ordinance clause (b) of Section 345 of the ( r.P.C. has been substituted as follows:- ' "(b) in sub-section (2), in the table, in the second column, for the figures "302, 303, 304-A, 305, 306, 307, 308, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 337 and 338" and ihc entries relating thereto in the first and third columns the following shall be sub.itituted, namelv- "Qall-i-amd 302 B} 1 the heirs of the victim Sub-section (2), as amended, now reads as follows:- "(2) The offence punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the person mentioned in the third column of that table: Section Offence Whether Whether the a warrant police or a Whether Whether Punishment bailable compoun- under the or not dabic By what Court triable may sumon arrest shall or not without ordinarily warrant issue in or not the first instance Merc in italics. 302 Qatl-i- May Warrant Ante arrest Not Compound- Qisas or bailable able death. Coujrt of without warrant imprison­ ment for Session life or imprisonment uplo twentyfive years It is also relevant to point out that despite the fact that the offence was committed before the commencement of the Criminal Law (Second Amendment) Ordinance 1990, the offence committed in this case can be compounded. This is possible on account of the provisions of Section 338- E read with Section 338-H, which ;>:e reproduced below for facility of reference:- "33r>-E.«{ j'.'/tT or compounding of offence.- Subject to the provisions of this Chapter and Section 345 of the Code of Criminal Procedure 1898, all •x/jnces under this Chapter may be waived or compounded and the provisions of Sections 309 and 310 shall, mutatis mutandis, apply to the v.ai', cr or compounding of such offences: (underlining' is ours). \'r,'.'.-. Section 338-H provides: 338-H. Saving. -(1) Nothing in this Chapter, except sections 309, 310 and 33-SE, shall applly to cases pending before any court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance. 1'A'U (Yll of IvvU). or to the offences committed before such commencement . A perusal ot the above pi>\i.-,ioas indicates that the waiver or the compounding of an ollence in cases failir.u; under Section 309 [Wavier-Afw ( of Qisas in Qatl-i-Amd] and Section 31u '{Compounding of Qisas (sulah) ( in Qatl-i-Amd] is possible even in those ca.scs of Qatl-i-Amd where the right of Qisas cannot be enforced because the sentence of death has not been imposed and the lesser sentence granted under Section 302 P.P.C. in view of the provision of Secion 345 of the Code of Criminal Procedure 1898 (as amended).This brings us to the question whether permission to compound the offence should be allowed in the circumstances of this case. In this connection, we observe that not only that all the heirs of the deceased desire to compound the offence and end their differences but a sum of Rs.1,71,000/- is to be paid to the heirs of the victim as badal-i-sulah by the convicts. According to the newly introduced Section 323 P.P.C. the Court is required to fix the value of the diyat keeping in view the financial position of the convicts and the heirs of the victim provided, however, that this amount is not less than the value of thirty thousand six hunred & thirty grams of silver and under sub-section (2) of Section 323(ibid) the Federal Government is to declare by notification in the official gazette (on the 1st day of July each year) the value of silver which shall be payable during the financial year. As the value of thirty thousand six hunderd &. thirty grams of silver comes to about Rs.1,71,000/-, the diyal being paid is not less than the statutory amount prescribed in this behalf. Besides it is also quite reasonable. The next question requiring deeper and closer examination is the question whether the amount of badal-i-sulah should be paid in the presence of the Court even if this condition is not laid down in the statute, with a view to ensuring the safe-administration of justice. This question, however, is now no longer of any importance in this case because the petitioners have today brought in Court the entire amount of Rs.1,71,000/- for payment to the heirs of the victim. By so doing, as righlly contended by the petitioners, any enxieiy which might be entertained with regard to how the interest of the minor heirs of the deceased can be safeguarded can be obviated, because the Court can make any provision considered suitable by it in this behalf. In this way, the difficulty that arises with regard to the requirement of the provisions of clause (/>) of sub-section (2) of section 313 which lays down that "if some of the heirs of the victim are minors, the father or if he is not alive the paternal grand father of such wall shall have the right of Qisas on his behalf, can be overcome. As noted already, the three minor heirs of the deceased are being represented by their mother and their paternal grand-father is already dead. By tendering the amount of diyat payable to the minors in Court by the petitioners, with the prayer that the amount payable to them may be paid to them in any manner considered suitable by it, the difficulty is resolved. The last question which requires consideration namely whether the diyat of Rs,l,71,()()0/- can be regarded as an equitable and fair badal-i-sulah for compounding the offence of Qutl-i-Amd committed by the three offenders may now be taken up. In this case, the victim was a single individual and despite the fact that three persons were involved in his murder is hardly of much importance when the hries of the victim are satisfied with the amount of the diyat being paid to them. We too arc of the opinion that keeping in view the financial position of the convicts as also of the heirs of the victim the amount of diyul is quite appropriate. We consider that the amount of Rs.1,71,000/- is a fair badal-i-sulah for compounding the offence. Accordingly, we would permit the compounding of the offence on payment of Rs.1,71,000/-. The aforesaid amount of Rs.1,71,000/- paid towards badal-isulah shall be deposited by the Registrar of this Court in the National Bank of Pakistan in the name of the heirs of the victim as follows: - (1) Mst. Aziz Bibi widow (2) Mohammad Tayyab (3) Mohammad Iqbal (4) Mohammad Tariq (5) Mst. Irshad Bibi (6) Zulfiqar Ahmad = Rs.21,375.00 major = Rs.23,020.00 each sons daughter = Rs.11,510.00 1991 sai-da R ali v. Tin; stati-; SC. 263 (Nasiin Hasan Shah, J) (7) Fai/.urRasul (8) Mohammad Siddiquc minor = Rs.23,020.00 each sons Total: = Rs.1,71,000.00 This amount will be transferred to the Account of the above named persons which are being opened by them in the National Bank of Pakistan , Sumundari. The Account of the three minor sons namely Zuifiqar Ahmad, Fai/ur Rasul and Mohammad Siddique shall be opened and operated on their behalf by their mother Mst. A/iz Bibi. Before parting with the case we would like to express our gratitude for Mr.Ijaz Hussain Balalvi, atnicus citriae, for the valuable assistance given by him in resolution of this case. The final result of this discussion is that permission to compound the offence is allowed. This petition is converted inlo an appeal and is accepted and the three convicts Safdar Ali, Abdul Wahid «k. Abdul Humid stand acquitted. (MBC) Offence compounded.

PLJ 199 ISC 263 PLJ 199 ISC 263 [Appellate Jurisdiction] Present: muhammad ai-yalzli.i.aii CJ and nasir aslam zahid, J. LAL KHAN and another-Appellants versus SHAM DIN and others-Respondents Civil Appeals Nos. 181 and 182 of 1983, dismissed on 3.2.1991. [On appeal from judgment and order of Lahore High Court, dated 22.9.1976 in W.P. Nos. 779-R and 780-R of 19(>8]. Mukhbari Application— —Evacuee land—Allotment in excess of entitlement—Cancellation of—Whether informers were entitled to land so cancellcd-Queslion of-Contenlion that proceedings which led to etection of illegally allotted lands, were based on Mukhbari applications-Copies of Mukhburi applications and of orders passed on such applications, have not been brought on ecord-Copies of various orders passed by Settlement Aulhorties, have also not been filed—There is clear non-compliance of Order XIV of Supreme Court Rules, 1980—Held: These ppeals are liable to dismissal for non-completion of record and on merits also, no case for interference in impugned orders is made out—Held further: Finding of High Court that ukliban applications had been consigned to record and action was taken on another application on behalf of heirs of deceased Muhammad Ali, cannot be challenged in absence of elevant record- -Appeal dismissed. "' [Pp.264&266]A,B,C&D Ch. Muhammad Hassan, Advocate, Supreme Court, and Rana M-A.Qadri, AOR (absent) through S. AbulAusim Jafri, AOR for Appellants. Mr. Imliaz M. Khan, AOR for Respondent No.3 (in C.A. 181/83) and for Respondent No.9 (in C.A. 182/83). Nemo for other respondents. Date of hearing: 3.2.1991. JUDGMENT Nasir Aslani Zahid, J.—This judgment will govern connected Civil Appeals Nos.181 of 1983 and 182 of 1983. The appellants in these two appeals are the same, namely, ai han and Boota. They have claimed better right over the landsin question as informers in preference to private respondents in these appeals who have been allotted the same as claimants against their balance units. 2. We encountencd great difficulty in the hearing of these appeals as apar from the memo of Writ Petitions filed by the private respondents and the mpugned judgment of the High Court copies of no other documents have been filed. A question which arose in these appeals was whether only one appellant had ]> filed the mukhbari application or it had been filed on behalf of the other appellant also. There is also a dispute about (he disposal of the mukhbari application as, according to the High Court "admittedly the mukhbari application was consigned to record" and the proceedings on that application ended there, whereas according to the appellants the proceedings which led to the detection of illegally allotted lands were based on the mukhbari application. Copies of the mukhbari application and of orders passed on such application have not bveen brought on record. Copies of the various orders passed by the Settlement Authorities have also not been filed and brought on record. Leave was granted to the appellants by order dated 3.4.1983 and it is apparent that no effort at all has been made on behalf of the appellants to get the record completed to enable this Court to decide this matter on merits to its complete satisfaction. There is a clear non-compliance of Order 14 of the Supreme Court Rules, 1980. In the circumstances, these appeals ^ are liable to dismissal for non-completion of the record. However, with whatever scanty record that is available, we are of the view that on merits also no case has been made out for interference in the impugned orders of the High Court. 3. One Mst.Faxal Bibi was allotted 709 P.I. Units in village Kotli Hasharn, Tehsil Mailsi, District Multan. On 10.8.1962, one Muhammad Anwar, who has ot been a parly in the proceedings, acting as attorney of appellant No.l, Lai Khan, filed a mukhbari application against Mst.Fa/al Bibi alleging that she was holding the entire estate of her late husband Muhammad Ali whereas she was entitled to only l/4lh share in the estate. It was prayed in the mukhbari application that the allotment over and above her entitlement be conceited and the land thus made available be allotted to the informers. There is a dispute as to whether the mukhbari application was filed on behalf of Lai Khan or on behalf of other informers also. According to the impugned judgment of the High Court dated 22.9.1976, mukhbari application had been filed by Muhammad Anwar as attorney of the appellant No.l only. As neither the copy of the mukhbari application nor the various orders passed by the Settlement Authorities have been brought on record, it is assumed that the mukhbari application had been filed on behalf of the appellant Lai Khan only as observed by the High Court. On the mukhbari application, the Settlement Officer exercising the powers of the Deputy Rehabilitation Commissioner directed the Settlement aulhorilies to look into the matter for determining who were the legal heirs of deceased Muhammad Ali. Copy of this order has not been placed on record. According to the High Court judgment, the mukhbari application commenced on that application stood terminated and as such the role of the appellants as informers came to an end and subsequent proceedings were entirely different. From the judgment of the High Court, it appears that thereafter another application was filed by the same Muhammad Anwar on behalf of his father and uncle alleging thereby that they were the legal heirs of Muhammad Ali and as such they should be impleaded as a parly to the enquiry. Muhammad Anwar himself appeared as a witness in the enquiry. In the enquiry it was found that Mst.Fazal Bibi was entitled to l/4th of estate of her deceased husband and the excess allotment was accordingly cancelled from her name by the Chairman Allotment Committee by order dated 16.5.1966. The private respondents were allottees of land in Village Kambar, Tehsil Mailsi, where they had some balance units available. These had been transferred to village Kotli Hasham and the area cancelled from the name of Msi.Fa/al Bibi was allotted to the private respondents by the Allotment Committee on the same (dale) i.e. 16.5.1966. Against the said order, the appellants filed a lime-barred appeal in the Court of Deputy Settlement Commissioner which was dismissed on 23.5.1967 but then a Revision filed by them was accepled by the Settlement Commissioner by order dated 1.6.1968. Copies of none of these orders have been brought on the record. In any case, the order of the Settlement Commissioner was challenged by separate writ Petitions by the private respondents which were allowed by the impugned judgment of the High Court. 5. The High Court held that the mukhbari application was consigned to the ecord and as such whatever proceedings i hat commenced on that application thereon stood terminated and the subsequent proceedings were enlirely different in nature. It was also held that the Settlement Commissioner did not consider the point of limitation as far as the appeal filed by the appellant was concerned. In the circumstances of the case, High Court was of the view lhal it was not necessary that the appellants should have been issued formal notices before ihc allolment of the land to the private respondents. According to the High court, allotments had been made in favour of the private respondents validly and as such the allotments could not be disturbed for the p rpose of allotting the lands to the appellants as informers. 6. The finding of the High Court lhal the mukhbari application had beenj consigned to record and action had been taken on another application on behalf of the heirs:of the deceased Muhammad Ali cannot be challenged in the absence l of relevant record. In these circumstances the entire basis of the claim on behalfi of the appellants is gone. 7. Even from whatever record that is available before us, there appear serious doubts whelher ihe application attributed to the informers was in fact moved by the informers. Muhammad Anwar moved the application claiming to be the attorney of the informers. Then the second application is also moved by Anwar on behalf of his father and uncle claiming to be the heirs of Muhammad Ali (husband of Mst.Fazal Bibi). Copy of this application is also not available on record. Was that application in fact moved by the informers? It seems that the socalled informers did not appear at any stage in the inquiry or before any settlement authority. As there was a serious doubt about the bonafides of the application alleged to have been moved on behalf of the informers, it was in any case to be resolved in favour of the respondents who are regular allottees of the land against their balance claim. j 8. These appeals arc accordingly dismissed for non-completion of record jand also on merits. There will be no order as to costs. (MBC) Appeals dismissed.

PLJ 1990 SC 266 PLJ 1990 SC 266 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZUI.LAH, C.I AND S.USMAN ALI SHAH, J M.st. NASREEN-Pclitioner versus FAYYAZ KHAN and STATE-Respodenls Suo Motu Criminal Rev. Petition No. 103 of 1990. in Criminal Petition No. 102 of 1990, accepted on 8.1.1991 [On appeal from order, dated 22.8.1990, of Peshawar High Court, in Cr. Misc. No. 138 of 19901 (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(2) read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10--Z//jtf-fe//-y«/w—Offence of—Bail granted in—Challenge to— Bail was granted by High Court on finding it a case of further inquiry on two grounds, firstly that proscculrix's testimony alone in zinu case would not be enough to deny concession of bail, and secondly that there was un-cxplained delay of 2/3 months in lodging FlR-Supreme Court has, in large number of zina cases, considered sole testimony of victim as enough for conviction if it inspires confidence— Prima facie explanation of delay being on record, learned Judge seems to have ignored or misread it-Held: There would hardly be a case which would not require "further inquiry", therefore, this element by itself is no ground for granting bail under sub-section (2) of section 497 of Cr.P.C. [P.271]B&C (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(2) read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10--Z//ifl-W/-./<//v-Offence of-Bail granted in-Challenge to- Learned Judge, while exercising discretion, did not apply mind as to whether it was a fit case for exercise of discretion in favour, allegedly, of a person who uined life of a young girl, impregnated her and she died n account of this case according to her grand-lather—According to medical certificate produced, prosccutrix in this case already met her death which occurred on ccount f act complained of in this case, namely forcible sexual intercourse and child birth-Held: For all these reasons, it is a fit case for grant of leave to appeal- Non-bailable arrants of arrest ordered to be issued, and copies ordered to be sent to major Women's Social Organisations and Bar Councils for instrospection vis-a-vis rights and plight f rural classes particularly women­ folk. [Pp.271&272]D,E,F&G PLD 1990 SC 1 = PLJ 1990 SC 139, PLD 1990 SC 99 = PLJ 1989 SC 600, and 1990 SCMR 895 reiterated (Hi) Review— —Criminal petition for leave to appeal—Dismissal of—Suo Molu review of— . After examining complaint of grand-father of proseculrix/pctitioner, and action so far taken in respect of conduct f 3 lawyers involved in this case, this case is amply fit for review-Held: Order of dismissal of petition for leave to appeal is eviewed and recalled with result that criminal petition No. 102 of 1990 is revived and restored. [P.269JA Mr. i\f^4slani Uns, Advocate, Supreme Court and Mr. Ejaz Muhammad Klwn, AOR for Petitioner. Respondents: Not represented. Date of hearing: 8.1.1991. JUDGMENT Muhammad Afzal Zullah, CJ.--Criminal Petition No. 102 of 1990 calling in question grant of bail by the High Court to the respondent No.l/accused in a case of Zina-bil-Jabr, was dismissed by this Court on 21.10.1990 as time barred. No. good ground for condonation of delay had then been made out by the counsel appearing for the petilioner-the proscculrix/complainant who has since died. A pathetic application for investigation and re-opening of the case in the Supreme Court, was made by Sultan Khan the grand-father of Mst. Nasreen the victim of the crime through a letter dated 7.11.1WU addressed to the Chief Justice. It reads as follows:- On this the following order was passed bythe Chief Justice on 8.11.19.90:- "Registrar to deal with the mailer on two sides: "1. Complaint against Mr. Khalil. "1A. Report about the conduct of Mr. Uns and Mr. Ejax. in the entire episodewhy did they lend their services to Mr. Khalil in prosecution of the alleged fraud. "2. Suo mohi review before CJ. for first opinion. In pursuance of the directions at 1 and 1A, the action regarding the Advocates involved in this case, has been initialed separately. On the direction No. 2 the matter having been placed before the Chief Justice for suo-motti examination of the case for review, the following order was passed:- "Yes, as at 'A'-Bul before thai he be summoned and asked why a case be not registered/reported against him, of fraud. "2. The role of the other two also does not seem to be above suspicion. Why did they act without instructions from the client. Mr. Khalil was not the authorised attorney himself. If not gross misconduct, it might be a case of gross negligence. Put up the case for taking action against them under the Rules. "3. On account of what is stated in the application and in the report of the Registrar I consider it a fit case for review on the question of Limitation. Suo motu order accordingly." In pursuance of the afore quoted opinion for review of the order of dismissal of the original petition for leave to appeal, the office has fixed this case before this Bench for examination: whether the said order should or should not be reviewed and if reviewed; whether it is a fit case for grant of leave to appeal. After examining the complaint of the grand-father of the prosecutrix/pctitioner and the action so far taken in respect of the conduct of the three lawyers involved in this case, we consider this "case amply fit for review. Accordingly, the order of dismissal of petition for leave to appeal dated 21.10.1990 is reviewed and recalled with the result that Criminal Petition No. 102 of 1990 is revived and restored. On the merits of the case it would be proper to reproduce the narration of facts of the case in the F.I.R. lodged by the proscculrix herself. There are two elements in the case which have pronouncedly been taken note of by the High Cxnirt. One, that the complainant/prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail as it would not be enough for conviction. And secondly, that there was un-explained delay of about 2/3 months in the lodging of the F.I.R. Accordingly, it was treated as a case for "further inquiry" and the respondent was allowed bail. Prima-facie, none of the two main grounds already noticed were available to the accused at the bail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony of victim as enough for conviction in case it inspires confidence. The second ground regarding delay is also, primafacie, not tenable because it was not un-explained delay. The victim's husband being insane was in a jail. He was not available to impregnate her. Obviously the pregnancy mentioned in the F.I.R. had resulted out of third party copulation. There was enough reason for the prosecutrix to keep quiet on the direction and threats of the accused but when after lew months the circumstantial evidence of Zina started showing itself, she divulged the secret to her mother. There is no need to probe this question any further at this stage. The, prima-facie, explanation for delay being on record, the learned Judge in the High Court seems to have ignored or mis-read it. Lastly, the question of primu-facie, opinion about the guilt of the accused under Sub-section (1) of Section 497 Cr.P.C. or Sub-section (2) thereof has not been properly examined in the impugned order. The easy contrivance of "the further inquiry" against positive rulings of this Court explaining the provisions of Section 497 (2) Cr.P.C. was pressed into service. It has been observed lime and again that there would hardly be a case which would not require "further inquiry", therefore, this element by itself is no ground for granting bail under Sub-section (2) of Section 497 Cr.P.C'. Such orders are on the very face illegal which do not fulfil the second condition regarding tentative opinion about the prima-facie, guilt or otherwise of the accused. The learned Judge while exercising discretion, it is to be further remarked, did not apply mind; whether, it was a fit case for exercise of discretion in favour allegedly of a person who ruined the life of a young girl, impregnated her with an illegitimate child, and we have been told by the grand-father of the victim that she died, according to his accusation, on account of this case. Be that as it may, the fact remains that according to the medical certificate produced, the pclitioncr/compluinant/prosccutrix in this case already met her death which occurred on account of the act complained of in this case; namely, the forcible sexual intercourse and the child birth. For all the afore staled reasons we consider it a fit case for grant of leave to - appeal. Order accordingly. Non-bailable warrant of arrest shall issue against the accused/respondent No. i, for appearance in this Court. Delay is condoned. It is to be remaked thai all the foregoing observations marshalling the primafacie elements of crime against the accused/respondent are only tentative in nature and in the context of bail proceedings and they shall not influence the respondent's trial on merits. Copies be sent to the major Women's Social Organization and the Bar Councils for instrospcction, vis-a-vis, the rights and plight of some less fortunate rural classes particularly the women folk—See also suggestions for improvement through these Organizations in Chulam All and 2 others vs. Mst. Chulam Sarwar Naqvi (PLD 1990 Supreme Court 1 at pages 26 & 27 = PLJ 1990 SC 139). Regarding Women's Social Organizations (at Page-26). In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as rotected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct Rules. But t is a wide guess as to how many females take the courage of initialing or continuing th legal battle with their close ones in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. Mien will they be able to move out of sophisticated methods of American speech/seminar system and all thai goes with it, in the enlightened urban society. It is a pity that while an urbanised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes, even Couils find it difficult properly to count-right I'rom the definition of 'rights' upto the enforcement even in Homes, through 'Social Secuiitv' Laws, with web of network of 'Inspectorates' etc. who are supposed to be helping him at eveiy step, his unfortunate sister, who is deprived of her most valuable rights oj inheritance even today by her own kith and kiii-somctimes by the urbanised brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterprelation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone. Regarding Organizations of the Bar (at Page-27). A large number of members of the legal fraternity have live contacts with the rural life from where the majority of them come. They also are aware of the malady and many may be involved in the tragedy. They can carry this burden adequately. Wliile the Bar always seeks the protection of its rights through legislation, an amendment therein to honour the honourable members thereof with the duty of the protection of the rights of (if not all the deprived classes of society) atleast the womenfolk of mral ureas to start with, will not be out of place. There can be statutory committees for this purpose of the Pakistan and Provincial Bar Councils with the collaboration of the Local Bar Association. They can be headed by the Judges of the Superior judiciary as it is for the other existing committees and tribunals. A network can be created with the inclusion of the lawyers who belong to the respective localities as also the departmental representatives of education, health, labour, social welfare and revenue departments. They can also point out prospective and actual cases of infringements of rights-failure to do so might also incur penalty, even for the lawyer, before his domestic disciplinary tribunal, of the respective Bar Council. The finances cannot be a problem. The Government, the legislature, the tax-payer and the Urban elite will not grudge this small facility for 80% of these have-nots of the Social Sector, while 20% get all the other facilities of the urban paraphernalia, which includes amongst others better facilities and services in nearly oilfields. See also for general remarks in Qazilbash WaqfVs. Cliief Land Commissioner (PLD 1990 S.C. 99 at 115 = PLJ 1989 S.C 600) he Labour Legislation, which admittedly in this part of the world only looks after vocal and fortunate sector of society—the Urban labour (which is also a strong politicalelement) has by and large, so far ignored more than 70 per cent of the rural population. It mostly consists of the poor, self-employed, and the small peasant—proprietors. Tliis unfortunate rural sector including womenfolk, arc living a life of toil mixed with poverty and lots of misery; both, social and economic. The comment on prevalent labour legislation: therefore, would not be different from what has been stated about general welfare legislation. The afore reproduced general remarks about the rights, living conditions and plight in our rural life when read with the facts of the case stated in and remarks made thereon by the Supreme Court in the case of Mst. Zubaida vs. Tlie State (1990 S.C.M.R. 895), in a matter dealing with the offence of Zina but in a matter different from the present case, would also be noticeable in the foregoing context. Accordingly, those remarks are also reproduced from the said case: Msl. Zubaida vs. Tlie State (1990 S.C.M.R. 895 at page 896 & 898) "This is a classic example visualised in Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 Supreme Court 95) wherein only passive participation in the trial by the residing officer, it seems, has resulted in miscarriage of justice. The story is usual. Zubaida petitioner was betrothed to Yaqoob her co-convict-a relative. Munir omplainant ultimately got promise of her hand. Before marriage, she ran away to Yaqoob and married him in May, 1973. She was inveigled and brought back on promise of regular ukhasti to Yaqoob. But was married off to Munir ante-dating this Nikah by a week before Yaqoob's Nikah. There were Habeas Corpus proceeding "Before parting with the matter it needs to be noticed that ptima-fade (in) the trial, defence-lawyer acted carelessly and the lawyers' finn which undertook petitioner's defence at appeal stage, seems to have left her in the lurch and she filed this jail petition without legal assistance in such a complicated case. It can be due to the mistaken belief that she was a bad woman having given up her children for lover's sake: It might also need examination: (1) whether ndes of professional conduct were not violated; and (2) how to eradicate these shortcomings where rustic poor ladies are involved us such like cases when they are forsaken by their kith and kin". (all underlining is mine). (MBC) Leave granted.

PLJ 1991 SC 274 PLJ 1991 SC 274 [Appeliate Jurisdiction] Present: muhammad afzal zullaii, CJ, rustam s.sidhwa and muhammad afzal lone j J. BARKAT ALI-Appellant versus SETTLEMENT & REHABILITATION COMMISSIONER, MULTAN, and 8 others—Respondents Civil Appeal No.36i of 1985 accepted on 26.2.1991. [On appeal from judgment dated 3.11,1985, of Lahore Hieh Court, Multan Bench, in L.P.A. No. 279 of 1969.] Settlement and Rehabilitation Matters-- —Evacuee house-Transfer of-Claim for-Whether house was divisible- Question of—Deputy Settlement Commissioner while passing order impugned before High Court, did ot notice physical division of property-He was conscious of order of Assistant Settlement Commissioner, impugned before him, about this physical aspect of division in eality of house into two parts, but his observation that "house is not divisible" was an absolute reversal and contradiction of this reaiity-Thus this observation or finding was ithout application of judicial mind-Held: Deputy Settlement Commissioner failed to exercise a power vested in him and his order was without lawful authority- Appeal ccepted and house held as divisble. [Pp.276&277]A,B&C Ch. Nawabuddin Mahmood, Advocate, Supreme Court, and Ch. Mehdi Kiian Mehtab, AOR for Appellant. Dr. Farooq Ahmad, Advocate, Supreme Court,-and S.Abul Aasitn Jaferi, AOR for Respondent No,8. Nemo for other Respondents. Date of hearing: 26.2.1991. judgment Muhammad Af/al Zullah, CJ.-This appeal through leave of the Court is directed against the dismissal by the High Court of appellant's Constitutional (Writ) Petition in an urban settlement case; whereby his claim for transfer ot a part of the building in dispute which was in his possession on ground-floor, was finally rejected. Leave to appeal was granted on the facts and grounds noted as unden- "The dispute in this case relates to the transfer of an evacuee double storeyed house consisting of five rooms situated in Tulamba Town , Tehsil Khanewal, District Multati. The first floor consisting of two rooms is in the occupation of Noor Muhammad (respondent herein), who is a claimant. The rest of the building consisting of three rooms and a court­ yard on the ground-floor is in the occupation of Barkat Ali (petitioner herein) who is a non-claim ant. Both had applied for the transfer of the house under the Provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958, but these applications for transfer were dealt with rather haphazardly. We find from the record placed before us that in the first instance an order was passed by a Deputy Settlement Commissioner on 10.12.1959, whereby the entire house was transferred to Barkat Ali (petitioner herein) on his N.C.H. Form. However, on the record there also exists another order, passed on 5.5.1960 by Mr.Naeemuddin, Assistant Settlement Commissioner, according to which Barkat Ali, petitioner herein, was to get the lower portion of the house in his occupation, while Noor Muhammad, the claimant (respondent herein), was found eligible to the transfer of the upper portion of the house "in his authorised possession". However, there is yet another order passed by the Deputy Settlement Commissioner (Mr.K.S.S. Tirmizi) on 20.7.1960 which is mutually self-contradictory. In this order it is said:- The house is not divisible. 1 uphold the order of Mr.Moinuddin Ali Khan. Assistant Settlement Commissioner, dated 5.5.1960. The entire house 'is. therefore, transferred in favour of Noor Muhammad son of Ahmad Khan. Form submitted by Barkat Ali is hereby rejected', (underlining is ours.) "A perusal of the order of the Assistant Settlement Commissioner dated 5.5.1960, which ostensibly has been upheld, however, was to the effect that the house be divided and both the occupants transferred the protions in their occupation. However, if. as the present order states that the house is "not divisible and the entire house is transferred to Noor Muhammad the claimant", the two orders are inconsistant and the latter order dated 20.7.1960 does not uphold the order of the Assistant Settlement Commissioner dated 5.5,1960 as it purports to say. Furthermore, the earlier order dated 5.5.1960 which has been placed on the record has been passed by Mr.Naimuddin Assistant Settlement Commissioner and not by Mr.Moinuddin Ali Khan, Assistant Settlement Commissioner, as mentioned in the Older of the Deputy Settlement Commissioner dated20.7.1960. "Be that as it may, the petitioner challenged the order of the Deputy Settlement Commissioner dated 20.7.1960 by filing an appeal before the Additional Settlement Commissioner, Multan, which was dismissed. He then approached the learned Settlement Commissioner by a revision which, too, failed. He then filed a writ petition before the High Court of West Pakisian, Lahore but the same was dismissed by the learned Chief Justice on 6.6.1969. An L.P.A. preferred against this order too was dismissed. Hence this petition for leave to appeal in this Court. "This main point urged by the learned counsel for the petitioner is that the Deputy Settlement Commissioner's order dated 20.7.1960 was passed in review of the earlier order of another Deputy Settlemenl Commissioner dated 10.12..1959. This argument was met by the learned Chief Justice by observing that the order dated 10.12.59 was an ex pane order which did not preclude the Deputy Settlement Commissioner from passing a fresh order on 20.7.1960. "This reasoning is correct so far as it goes but we find that in the order dated 20.7.1960 the learned Deputy Settlement Commissioner observes that he is upholding the order of the Assistant Settlement Commissioner dated 5.5.1960, but the said order does not, in effect, appear to have actually been upheld by the order of the Deputy Settlement Commissioner dated 20.7.1960". Learned counsel for the appellant relied on the point noted in the leave grant order.We called upon the learned counsel for the respondent to reconcile the two orders 5.5.1960 and 20.7.1960 but he failed to do so. His argument throughout remained that there seems to be some clerical error regarding the order dated 20.7.1960. Prima-facie, learned counsel for the respondents may be right. But it cannot be held with absolute certainty that the said order suffers only from a technical or clerical error. A possibility that the Deputy Settlement Commissioner having mainly noticed the physical practical division of the property in a horizontal manner which has been put into use by the parties for a long time, wanted to uphold the same by ordering transfer of both the portions possession-wise. But on account of some mistake (how it happened cannot be imagined) he did not put this thinking into enough words. If this line of interpretation of the order dated 20.7.1960 is adopted this appeal would straight away succeed but if the contrary line of interpretation advanced by the learned counsel for the respondents is adopted, the appeal may have to be dismissed or the case may have to be remanded. Be that as it may, there is a third course which can safely be adopted in this I case. The Deputy Settlement Commissioner while passing the order dated 20.7.1960 impugned before the High Court did notice physical division of the property. It was also apparent from the order of the Assistant Settlement Commissioner dated 5.5.1960 which was admittedly before him and is mentioned in his own order. After having become conscious of this physical aspect of division in reality (and that too for a long time) of the house into two parts, it is an absolute reversal and contradiction of this reality when he observed that "house is not divisible". Apart from the fact that word not might not have been used, the fact remains that there is absolutely nothing in the order to show that in view of the admitted physical division of the house between the parties how did he come to the conclusion that it was indivisible. Thus this observation or finding was without application of judicial mind. The power under section 2(4) (Proviso) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to decide whether or not the house is divisible is through the judicial exercise of mind. The impugned order shows that this was not at all done when giving the finding that the house is not divisible and thus the Deputy Settlement Commissioner failed to exercise a power vested in him and his order was without lawful authority. On this ground alone the Writ Petition filed by the appellant should have been allowed by The High Court. At this stage of the settlement operations which have almost concluded, it has been held in a number of cases that instead of further perlonging the litigation the Courts exercising Constitutional jurisdiction may grant or withhold relief full or partial in exercise of descretion and/or in aid of justice. In this case in the light of the foregoing discussion the order of the Assistant Settlement Commissioner which as held above was not set aside in a lawful manner by the Deputy Settlement Commissioner, treating the property as indivisible-while in fact it was divisible. There was no other legal hurdle in transferring both the divided parts to the respective applicants by transfer in accordance with their possession. We. while accepting this appeal and setting aside the impugned judgment, order accordingly. The further action for sharing of price by the two transferres and the issuance of transfer documents shall be taken j by the concerned functionaries. There shall be no order as to costs. (MBC) .Appeal accepted.

PLJ 1991 SC 277 [Appellate Jurisdiction] PLJ 1991 SC 277 [Appellate Jurisdiction] Present: MUHAMMAD afzal ZULLAH CJ AND NASIR aslam zahid J MUHAMMAD RAMZAN-Appellant versus Mst. YAQOOT BEGUM and others-Respondents Civil Appeal No.30-P of 1986, dismissed on 3.2.1991. [On appeal from judgment and order dated 1.1.4.1984 of Peshawar High Court, in Civil Revision No.318 of 1980.] Specific Performance-- —-Specific performance of agreement to sell-Suit for-Dismissal of suit and first appeal-Acceptance of revision petition-Challenge to-Contention that sale-deed egistered in favour of appellant in 1976 after issuance of P.T.D., takes preference over agreement of sale and mortgage deed executed and registered in 1961 in avour of first vendees-Admittedly, agreement and mortgage were earlier in time and could be enforced by first vendees—Entire consideration had been paid by and ossession was delivered to first vendees- Appellant must be aware of these documents—Held: High Court has rightly found that appellant was not a bonafide urchaser—Held further: High Court rightly accepted revision as documents executed and registered in favour of first vendees in 1961 take preference over sale eed executed in favour of appellant in 1976-Appeal dismissed. [Pp.278&279]A,B&C PLD 1986 SC 70 and PLD 1971 SC 481 rel. Mr. Z. Mahj'ooz Klian, Advocate-on-Record for Appellant. Mian Shakinillah Jan, AOR for Respondents 2&3. Nemo for other Respondents. Date of hearing: 3.2.1991. judgment Nasir Aslam Zahid, J.--This appeal arises out of judgment dated 11.4.1984 of a learned single Judge of the Peshawar High Court allowing the Revision Application filed by Mst. Yaqoot Begum and others (the first vendees) and setting aside the judgment of the trial Court and the appellate Court passed in favour of Muhammad Ramzan (the second vendee). 2. The dispute relates to a house in Kohat city which was in possession of respondent Muhammad Hasham (the original owner). The house, being evacuee property, was put to auction and was purchased by Muhammad Hasham, in whose favour a P.T.O. was issued on 5.10.1961, After receipt of the P.T.O., Muhammad Hasham executed a mortgage deed and also an agreement to sell in favour of first vendees on 6.10.1961. Both these documents were registered on 12.10.1961. The entire consideration was paid to Muhammad Hasham by the first vendees who were also put in possession of the house. Il was undertaken by Hasham by a covenant in the agreement that as the house could not be sold then, there being a restriction by the Government, he would execute the sale deed as soon as such restriction was removed. The Permanent Transfer Deed of the property was issued in favour of Muhammad Hasham on 24.2.1976 but, instead of executing a sale deed in favour of the first vendees as had been agreed, he executed a sale deed on 18.3.1976 in favour of the appellant Muhammad Ramzan (the second vendee). When the first vendees came to know of the second sale, they instituted a Suit in the Civil Court, Kohat for specific performance of the agreement to sell and impleaded Muhammad Hasham and the present appellant as defendants who contested the suit. The suit was dismissed on 25.10.1979. The first vendees filed a i appeal but the same was also dismissed by the Additional District Judge, Koh^ In these circumstances, the first vendees filed a Revision challenging the judgments of the Courts below. The High Court found that the registered agreement to sell in favour of the first vendees was for consideration over-ruling the findings of the two Courts below on this point that such agreement was without consideration. The High Court further held that the second vendee was not a bow fide purchaser and that the first vendees were entitled to the specific performance of the agreement. As observed, the Revision was allowed and the judgments of two Courts below were set aside. Leave was granted against the judgment of the High Court to consider as to which one of the two sets of documents could be legally enforced on the facts and circumstances of the case. . Mr. Z.Mahfooz Khan, Advocate-on-Record on behalf of the appellant (the second vendee) submitted that the sale deed in favour of the appellant registered in 1976 after the issuance of Permanent Transfer Deed in favour of Hasham, the transferee from the Settlement Department, takes preference over the agreement of sale and the mortgage deed executed and registered in 1961 in favour of the first vendees. It was submitted that Muhammad Hasham had not acquired ihc right to transfer the property prior to the issuance of the Permanent Transfer Deed in his favour and as such the sale agreement in favour of the first vendees was of no consequence. We find no substance in the contention. Admittedly the agreement of sale and mortgage deed executed by Hasham in favour of the first vendees were earlier in time and could be enforced by the first vendees against Hasham. The entire sale consideration had been paid by the first vendees to Hasham who had also delivered possession of the property to the vendee. Such agreement could not be repudiated b\ Hasham and was binding on htm. Hasham was legally bound to perfect the title of the first vendees in the property by execution of the sale deed after issuance of the Permanent Transfer i Deed in his favour, as had been agreed by him. Reference may be made to the decision of the Court in the case of Muhammad Iqbal V. Mirza Muhammad Hussain (PLD 1986 S.C.70) which related to application of Section 19 of the Colonization of the Government Lands Act, 1912. In that case, an allottee of Government land, who had not yet acquired proprietary rights, entered into an oral agreement with the vendee that he would transfer the land to the vendee after proprietary rights were conferred on him. The specific performance \as postponed to a date when the allottee had acquired proprietary rights. It was held that such oral agreement of sale in favour of the wndecs wa? not hit by the provisions of Section 19 of the Colonization of Government Lands Act, 1912. This judgment and Nawab Bibi V. Rafiq Bano PLD 1971 S.C.481 support the case of the first vendees that they were entitled to specific performance of the agreement against Hasham. 4. It was argued on behalf of the appellant that the agreement of sale in favour of first vendees was without consideration and as such it could not take preference over the sale deed executed in favour of the appellant in 1976. This submission is without any substance. A bare reading of the agreement of sale executed and registered in favour of first vendees in 1961 shows that the agreement was for consideration. 5. It may additionally be observed that the appellant must be aware of the transactions entered in 1971 in favour of the first vendees. Both these documents were registered and the possession wa? also with the first vendees and the sale B deed of 1976 also mentions the mortgage deed executed in 1961 in favour of the first vendees. The High Court has rightly found that the appellant was not a bona fide purchaser. 6. In these circumstances, we are of the view that the High Court rightly allowed the Revision as the first set of documents executed and registered in favour of the first vendees in 1961 take preference over the sale deed executed by C Hasham in favour of the appellant in 1976. It may be added that in the evidence recorded before the trial Court Hasham had admitted the execution of the agreement and mortgage deed in favour of the first vendees in 1961. 7. As a result, this appeal is dismissed with no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 SC 281 [Appellate Jurisdiction] PLJ 1991 SC 281 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and muhammad rafiq tarar J. Mst. SHAH JAHAN BEGUM-Appellant versus Mst. SHABBIR FATIMA and another-Respondents Civil Appeal No.233 of 1983, partly accepted on 19.2.1991. Divisibility- —Evacuee house-Transfer of-Leave was granted to examine whether appellant had a better claim—Whether appeal can be decided on question of divisibility-Question of-While observing that respondent No.l had got a preferential claim, officer once again repeated his earlier view that house was indivisible—It practically amounted to failure of Officer to apply mind to and exercise power under proviso to Section 2(4) of Displaced Persons (Compensation and Rehabilitation) Act, 1958-Same error was committed by High Court in upholding order of Settlement Commissioner—While exercising jurisdiction in nature of writ as is available to High Court, Supreme Court would also try to adjust and accommodate as many displaced persons as possible—Held: Instead of examining question on which leave was granted, this appeal is to be decided on point of divisibility alone-Impugned orders set aside and house ordered to be deemed to have been divided. [Pp.283&284]A,B&C Mr. A.R. Shaukat, Senior Advocate, Supreme Court, Mian Saeedur Rehman Farriikh, Advocate, Supreme Court, and Sh. Salahuddin, AOR for Appellant. Raja M. Anwar, Senior Advocate, Supreme Court, and Cli. Muhammad Aslam, AOR for Respondent No.l. KJian Imtiaz Muhammad Klian, AOR (absent) for Respondent No.2. Date of hearing: 19.2.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against the dismissal of the appellant's Constitutional (Writ) Petition by the High Court. It had arisen out of an urban settlement matter.The appellant's side, it is admitted position, occupied the house in dispute prior in time but it seems the head of the family being n service was transferred out. He was, it is stated, paternal uncle of the husband of the appellant. It is also not denied that the appellant and her husband, in other words their mall family, continued the occupation of the house even after the departure of the original allottee. There was some other occupant as well but it appears that his position is o more controversial at this stage. The respondent's side presumbly thought and rightly so that the allottee having gone out on transfer, the house was available for fresh allotment. Accordingly they btained the allotment in February, 1950. The appellant and her husband also made similar attempts for allotment on the basis of their earlier occupation and they were also allotted a small part (two rooms) about a year later. Both the parties sought transfer of the house on C.H.Forms. They were equal in rights but the respondent sought prior possession on the basis of the date of allotment while the appellant claimed that they were prior in occupation and the same having been subsequently regularised through allotment order they also became in possession having an edge; namely, through prior occupation. There was protracted litigation. It is not necessary to take note of it in its entirety. It would suffice to mention that in an earlier round of litigation the matter came up to the High Court and it was remanded by the Letter Patent Bench in 1971. It was then at the time of remand that the respondent's side had pleaded that the remand for purpose of possible division of the house in accordance with the respective possessions would be futile because of the superiority of their claim on other points. The argument was repelled with the remark that it is not only permissible but proper for the Settlement Authorities to apply mind to the question of divisibility. Perhaps taking clue from this and similar other observations the Settlement Commissioner who passed the final order in that hierarchy did take note of the question of divisibility. It was held that on the inspection of the spot the officer had observed that "no doubt the house has got two stair cases and two exits but it cannot be divided into two independent residential units". No reason was advanced to show why despite stair cases and independent exits, the house was treated as not capable of being divided into independent residential units. In addition to these factors we have noticed from the site plan that the house is situate in such a way that atleast on its two sides there are two lanes/roads. Thus there was no difficulty of practical division, vis-a­ vis, the existence of independent roads in addition to independent stair cases and independent exits. ^From the order dated 29.10.1975 of the Settlement Commissioner it is clear that the division was refused because the officer thought that the respondent's side had better claim. The following observations are important in this behalf so as to judge the working of the mind of the Settlement Commissioner: "Mst.Shabbir Fatima has got a preferential right being in possession of much more accommodation than Mst.Shah Jehan Begum. Mst. Shabbir Fatima appears to be prior allottee also".On account of these reasons the officer further observed that "I have no alternative but to hold that Mst.Shabbir Fatima has got a preferential claim over Mst.Shah Jehan Begum". While observing so the officer once again repeated his earlier view that the house was indivisible. As analysed above, the power exercisable under the Proviso to Section 2(4) of the Displaced Persons (Compensation and Rehabilitiation) Act, 1958, it has to be pointed out, was not at all exercised as a consideration, independent of the otherwise "preferential claim" of the parties. The power exercised under the Proviso is relatable to the physical aspect of the house and not the characteristics of the rights of the applicants forks transfer. Thus it practically amounted to failure of the officer to apply mind to and exercise power under Proviso to Section 2(4). As a necessary corollary of his findings otherwise of fact, on inspection, he would have divided the house in accordance with the possession but on wrong principle (looking at the better qualifications of the respondent's side) on extraneous grounds refused to divide the house. Same error with respect has been committed by the High Court in upholding the order of the Settlement Commissioner At this stage it needs to be remarked that leave to appeal in this case was granted to examine, inter-alia, the point whether the appellant had a better claim for thetransfer of the entire house as against the respondent on the ground that she was prior is possession by linking her occupation with subsequent regularization thereof through an allotment order. But if after examination of that point, it is decided in favour of the appellant, the respondent's side would be deprived of any right to the transfer of the house. It is admitted position that the C appellant has only a small part of the house in her possession while the respondent has much bigger part thereof. Therefore, while exercising the jurisdiction in the nature of Writ as is available to the High Court, this Court would also try where-ever possible, in the settlement cases, to adjust and accommodate as many displaced persons as possible. We, have, therefore, decided to refrain from examining the question on which leave to appeal was granted. Instead as other points including that of divisibility were not excluded from consideration in so far as the language of the leave grant order is concerned, we decide this appeal on the point of divisibility alone as discussed above. As a result thereof it is allowed. The impugned judgment of the High Court as well as the Order of the Settlement Commissioner are set aside. The house in dispute shall be deemed to have been divided, in accordance with what the Settlement Commissioner found at the spot, in two parts in exercise of his power under Section 2(4) in accordance with the possession of both the parties. On the announcement of this order both the parties started dispute on the question regarding extent of possession of the appellant. Appellants' counsel stated that she had also some accommodation on the first floor while the respondent's counsel refuted it. Thus the question arose: whether, two rooms in possession of the appellant should be transferred to her from ground to sky or from ground to ceiling leaving the roof and the upper side to the use of the respondent's side. After some discussion on this issue as well, the parties agreed that the appellant shall be transferred only two rooms from ground to ceiling and that the roof with whatever upper structure thereon shall go to and thus remain with the respondent's side. In the above terms this appeal stands partly allowed. There shall be no order as to costs. (MBC) Appeal partly allowed.

PLJ 1991 SC 284 [Appellate Jurisdiction] PLJ 1991 SC 284 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J SAID ALAM SHAH, through his L.Rs.-Appellant versus Mst. JANA and others—Respondents Civil Appeal No.28-P of 1986, accepted on 14.1.1991 [On appeal from Judgment dated 23.4.1983, of Peshawar High Court, in Civil Revision No.194 of 1980] Civil Procedure Code, 1908 (V of 1908)-- —O.XX R.14—Pre-emption suit—Decree passed in—Decretal amount not specified by Court-Appellant himself ascertaining amount but District Judge refused to oblige him as stipulated period was over-Challenge to-Court was to specify total price to be paid by appellant, and mere specifying rate per Maria of land would not be enough to satisfy requirement of law—It was duty of Court to specify purchase money—Held: There being no fault of appellant in taking time for trying to ascertain exact amount, District Court was not justified in depriving him of benefit of decree-Appeal accepted. [Pp.286&287]A&B PLD 1984 SC 289 rel. JUDGMENT "14.(1)—Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall- (a) specify a day on or before which the purchase-money shall be so paid, and (b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in lause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid the suit shall be dismissed with costs. "(2)~Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,- "(#) if and in so far as the claims decreed are equal in decree that the claim of each pre-emptor complying with the provisions of sub-rule (1) 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 comply with the said provisions would, but for such default, have taken effect; and (b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions". The relevant expressions used in the provision are: "Sale of property "The purchase money "Not paid into Court "Shall be so paid "On payment into Court of such purchase-money". All the words in these expressions lead to a single basic supposition therein that the Court will specify the total purchase-money which has to be paid as total price and that mere specifying the rate per Maria of the land or other measure of parcel of land, would not be enough to satisfy the requirement of law. This perhaps also was the view of the High Court because had it been not so the High Court would not have observed that the appellant could have made an application for the correction by the Court which decreed the suit. If it was the subject-matter of correction by the Court it implies that the Court was required to do it. If so, the next question arises: whether the Court was required to do so or to act rightly only on the application of a party and not as its own original duty. In these circumstances the answer must be that it was the duty of the Court to specify the total purchase-money. That being so, the next question would be if the Court itself was at fault in not performing its duty; whether, this could be made a ground for punishing the decree-holder, the answer must be in the negative. Accordingly, there being no fault of the appellant in taking time for trying to ascertain the exact amount, the District Court was not justified in depriving him of the benefit of the decree. The principle laid down in the case oiSiddique KJian (PLD 1984 S.C.289) on the question of specification and payment of Court-fee in so far as it can be attracted to situation like the one in this case also helps the appellant. In the light of the foregoing discussion this appeal is allowed. The impugned judgments are set-aside, case is remanded to the District Court with the direction that the exact amount of pre-emption money and other amounts, if any, to be paid together with the manner for the deposit shall be specified by the Court. This having been done, reasonable further time shall be allowed to the appellant to deposit the same. There shall be no order as to costs. (MBC) Appeal accepted.

PLJ 1991 SC 287 [Appellate Jurisdiction] PLJ 1991 SC 287 [Appellate Jurisdiction] Present: muhammad afzal lone and sajjad ali shah, JJ CHIEF ADMINISTRATOR OF AUQAF, PUNJAB, LAHORE-Appellant versus KOURA alias KARAM ILAHI and another-Respondents Civl Appeal No. 2 of 1990, dismissed on 25.3.1991 [From judgment of Lahore High Court, dated 12/13-11-1989, passed in FAO No. 118 of 1974] (i) Locus Standi-- —Agricultural Land-Assumption of Administration, control and management of—Notification of—Petition for declaration that property was not waqf property—Dismissal f petition by District Judge but High Court setting it aside-Challenge to-Whether respondents had no locus standi to apply for declaration-Question of-Under Section 11 of unjab Waqf Property Ordinance, 1979, any person having an interest in property treated as waqf property, can apply for declaration-It is not necessary that he should be its owner-Held: Respondents have sufficient interest in land in dispute entitling them to seek declaration-Appeal dismissed. [P.291JD&E 1976 SCMR 500 not applicable (ii) Punjab Waqf Property Ordinance, 1979 (IV of 1979)- —Ss. 2(e) & 11—Agricultural land—Assumption of administration, control and management of—Notification of—Petition for declaration that property was not Waqf roperty—Dismissal of petition by District Judge but High Court setting it aside—Challenge to—Whether there was any dedication by owner of property-Question of- ntries n revenue record do not demonstrate an un­ interrupted devolution of property from Gum to Chella— Last non-Muslim holder of property died escheat and normally escheat roperty should have reverted to State, but Revenue Officer alienated it in favour of KJwnqah Sakhi Sarwar—Held: There was absolutely no dedication by owner of property irrespective of his faith—Held further: No waqf under Islamic Law came into existence. [P.290JA&B PLD 1969 SC 223 ref. (Hi) Punjab Waqf Property Ordinance, 1979 (IV of 1979)-- —Ss. 2(e) & 11-Agricultural Land-Assumption of administration, control and management of—Notification of—Petition for declaration that property was not I waqf roperty-Dismissal of petition by District Judge, but High Court setting it aside—Challenge to—Whether valid waqf was created in contemplation of xplanation I to Section (e) of Ordinance— Question of—Explanation i usually appended to a section to clear ambiguity and explain meaning of words ' used therein—Explanation should not be construed to enlarge scope of section- -Held: No basis exists to treat property as waqf property even under Explanation I to Section 2(e) of Ordinance. [P.291JC Mr. Riaz Kayani, Advocate, Supreme Court and Rana Maqbool Ahmad Qadri, AOR (absent) for Appellant. Mr. Masood Javaid, Advocate, Supreme Court, and Mr. Muhammad Aslam Chaudhry, AOR (absent) for Respondents. Date of hearing: 14.1.1991. judgment Muhammad Afzal Lone, J.--This appeal under Article 185(2)(d) of the Constitution is directed against the judgment of the Lahore High Court, Lahore , rendered in appeal filed in pursuance of Section 12 of the Punjab Waqaf Property Ordinance, 1979. 2. The Chief Administrator, Auqaf, by means of Notification No.l(419)- DWP-Auqaf/73, dated 14.5.1973, published in the official gazette of 26th May, 1973, issued under ection 7 of the Ordinance, took over, assumed the administration, control and management of Agricultural land, measuring 80 kanals, 7 marlas, alongwith 7 atcha ooms and one chopper, bearing Khaveat No.102, Khatoni Nos.608 to 610, as per Register Haqdaran Zamin of Village Jalalpur, Tehsil Kabirwala, District Multan, as being attached to the Klianqah of Sakhi Sarwar. The respondents moved a petition before the learned District Judge, Multan, for a declaration envisaged by Section 11 of the Ordinance, that the property is not waqf property. They claimed that it was their private property; in their continuous possession since their fore-fathers, and that they never paid any share out of profits and produce to anyone. In support of the petition, Koura, respondent No.l, appeared as his own witness, and deposed that the land was never dedicated in favour of Klianqah of Sakhi Sarwar, and was transferred by Rama to his father, namely, Tagga, but neither the transfer deed was executed nor mutation sanctioned. The Auqaf Department relied on the excerpt for the period from the year 1885 to 1972, in respect of the land, prepared by Special Kanugo, Saddar Office, Multan . According to this document, in the year 1885, the property was owned by Lallu son of Maula Hindu Faqir; the entry for the year 1888-89 is in the name of Dittu Chella Lallu; for the period from 1889 to 1907, it is shown as owned by and in possession of Mst. Mir Bai, niece of Dittu Ram, caste Faqir. By means of inheritance mutation No.105 dated 18.12.1905, the land is shown to have devolved from Mst. Mir Bai on Raman Chella Lallu. The history of the property further indicates that Raman, caste Faqir, died issueless on 16th June, 1909, and thereafter on 21st March, 1910, mutation No.115 was sanctioned in the name of Khanqah Sakhi Sarwar. In the proceedings recorded by the Revenue Officer, while sanctioning this mutation, it is incorporated that the land was of KJianqah of Sakhi Sarwar and not owned by any particular Mujawar. According to this mutation, the land was passed on to the Khanqah by way of inheritance. From the year 1910 onward upto 1971-72 the name of Khanqah Sakhi Sarwar figures in the "ownership column" of the relevant jamabandis. However, the entry in the jamabandis, during the period from 1933-34 to 1950-51 is Khanqah Sakhi Sarwar, " ^jlf fj> (}•$),£ firfl, ". On the death of Tagga, Inheritance Mutation No.75 dated 9.5.1954, was sanctioned in the names of his two sons, namely, Koura and Sawan, and their names appear in jamabandis relating to the period subsequent to the year 1950-51 and KJianqah is mentioned as: 3. The District Judge. Multan, on reference to the evidence of the parties recorded a finding that the respondents had no locus standi to challenge the Notification and that they failed to prove their possession as owners of the land. Consequently, by judgment dated 7.5.1974, he dismissed the petition. 4. The fate of this appeal is largely pegged on the construction of the definition of the term "waqf property" embodied in Section 2(e) of the Ordinance, which so far as relevant for the purpose of this case is reproduced below: " 'Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any waqf such as is described in Section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descedants. Explanation /.--If a property has been used from time immemorial for any purpose recognized by Islam as religious, pious or charitable then in spite of there being no evidence of express dedication, such property shall be deemed to be waqf property". In construing the definition clause the High Court maintained that to be "waqf property", it must have been dedicated by a person professing Islam, for any purpose recognized by Islam as pious, religious and charitable and that Explanation-I did not have the effect of doing away with this condition. It is well settled that when a phrase is defined as having a particular meaning in the Act, it must be given the same meaning throughout the Act, unless there is anything repugnant in the context. There is, however, nothing in Section 7 which empowers the Chief Administrator Auqaf to notify a property as waqf property, denying the application of the definition clause thereto. Significantly, in the definition clause the word "means" figures. The user of this expression would indicate that definition is hard and fast and no other meaning can be assigned to the expression other than that given in the definition. 5. The learned counsel for Auqaf Department has argued that even a non- Muslim can create valid waqf and invited our attention to the following passage from Volume-I, page 200 of Mahommedan Law by Syed Ameer Ali: "Islam is not a necessary condition for the constitution of a Waqf. Any person of whatever creed may create a Waqf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines". He further contended that the property devolved from Gurru to Chella and, therefore, bore the Character of trust property. It was submitted that though it was a Hindu Trust, but by virtue of Mutation No.115 dated 21.3.1910, it stood dedicated to Klianqah Sakhi Sarwar for religious and pious purposes recognised by Islam, to which no objection was raised by the Hindu community and as from time immemorial the property was being utilized for such purposes, it would be deemed to be Waqf Property within the meaning of the first explanation. He referred to the entries in the revenue record and urged that the respondents were merely matwali of the property and, therefore, they had no locus standi to seek the declaration prayed for. In support of this argument, reliance was placed on Maqbool Ahmad Vs. ChiefAdministrator Auqaf (1976 S.C.M.R. 500). 6. It is not permissible to ignore the legislative definition; assign extended meaning to the term "Waqf Property" and treat even dedication by a non-Muslim as a valid Waqf, The entries in the revenue record do not demonstrate an un­ interrupted devolution of the property from Gurru to Chella. Myf.Mir Mai seemingly succeeded Dittu not in the capacity of Chella, but as her niece. The revenue record is suggestive of such an inference. For decision of the controversy before us it is not necessary to determine as to whether the land was Hindu Trust or a private property of the non-Muslim. The reason being that there was no dedication at all. Raman was the last non-Muslim holder of the property who died as escheat. It appears that the land became escheat property which normally should have reverted to the State, but the Revenue Officer alienated it in favour of KJianqali Sakhi Sarwar. In Fazal Din Vs. Lahore Improvement Trust, Lahore and another (PLD 1969 S.C. 223) this Court has taken the view:- "As regards the alleged dedication it will be sufficient to point out that under the Muslim Law; both Hanafi and Shiah schools; it is a condition that the property dedicated should be the Waqifs otherwise the Waqf is not valid. Ameer Ali in his Muhammadan Law, Volume-I, P.134 states that "the subject-matter of dedication must be the property of the Waqif at the time the Waqf is made, that is he must be in a position to exercise dominion over it. To make a valid dedication it is essential that the person dedicating must be vested with the full proprietary right at the time of dedication, for, even the subsequent acquisition of such a right will not validate it unless the proprietor also ratifies". d ! In the instant case there was absolutely no dedication by the owner of the property I irrespective of his faith. Thus, no Waqf under Islamic Law came into existence. 1. It remains to be considered as to whether a valid waqf was created in contemplation of Explanation-I. It may be observed that an explanation is usually appended to a section, to clear the ambiguity and explain the meanings of the words used therein. Unless compelled by the language, the explanation should not be construed to enlarge the scope of the section to which it is added. It seems to us that the object of the first explanation is that if due to long passage of time the evidence of express dedication is not forthcoming, the user of the property as waqf property from time immemorial may be treated as sufficient evidence of creation of waqf. In the present case there are positive indications that there was absolutely no dedication by owner of the property. As regards its use, according to the testimony of Koura the respondents appropriated the profits of the land unto themselves. The department has not led any evidence in rebuttal that the income of the property was utilized for the purposes covered by the definition clause, leaving aside whether the period of about 60 years intervening between the sanction of the Mutation in favour of Khanqah, and the date of Notification under Section 7, can really be categorized as time immemorial. No doubt, in the revenue record the status of the respondents is entered as "Mujawars", but this entry by itself does not establish that the income of the land was utilized for the objects of waqf. We are, therefore, of the view that no basis exists to treat the property as "Waqf Property", even under the first explanation. 8. Under Section 11 of the Ordinance, any person having an interest in the property treated as waqf property can apply for declaration. It is not necessary that he should be the owner of the property. Admittedly, the respondents are in possession since long. As already maintained they have been utilising the income of the property, they, therefore, have sufficient interest in the land in dispute, entitling them to seek the declaration. In Maqbool Ahmad's case, referred to by the learned counsel for the appellant,the mutwalai had no personal interest in the property under the endowment. This precedent, therefore, has no application to the case in hand. For the foregoing reasons, we are of the view that the judgment of the High Court is unassailable, and does not call for interference. There is no substance in this appeal, which is dismissed. The parties are left to bear their own costs. (MBC) Appeal dismissed.

PLJ 1991 SC 291 [Appellate Jurisdiction] PLJ 1991 SC 291 [Appellate Jurisdiction] Present: ali hussain qazilbash and muhammad rafiq tarar, JJ FAQIR MUHAMMAD and others-Appellants versus Mst. MUHAMMAD BIBI and others-Respondents Civl Appeal No. 347 of 1985, accepted on 26.3.1991 [On appeal from judgment dated 9.6.1984, of Lahore High Court, passed in R.S-A No. 54 of 1980.] Civil Procedure Code, 1908 (V of 1908)-- —O.IV R.I read with Order VI R.14--Plaint--Non-signing of by plaintiff-- Rather thumb-impressions of plaintiff were forged-Whether no plaint instituted under law or whether it was irregularity curable under Order VI Rule 14—Question of—It was concurrent finding of courts below that thumbimpressions on plaint, vakalatnama and other documents were not that of Taleh Mand but were forged and further that no plaint as required under Order IV Rule 1 CPC had been filed in Court-Held: Finding of learned Single Judge in chamber that it was an irregularity and curable under Order VI Rule 14 CPC is far from being correct and is not sustainable-Held further: A party with forged pleadings and exhibiting bad faith cannot be considered at par with a party whose case is covered under Order VI Rule 14 CPC-Appeal accepted. [P.295]A PLD 1990 SC (AJ&K) 13 rel. Mian Nisar Ahmad, Advocate, Supreme Court and Muhammad Aslam Ch. AOR for Appellants. Dr. Farooq Chaudhry, Advocate, Supreme Court and Ch. Mehdi KJian Mahtab, AOR for Respondents. Date of hearing: 4.3.1991. judgment Ali Hussain Qazilbash, J.~This appeal by leave arises from the judgment of a learned Single Judge of the Lahore High Court dated 9.6.1984. 2. Facts in brief are that the appellants alongwith respondents 11 to 13 had purchased agricultural land measuring 106 kanals 1 marla situate at Muraday Khurd and Pir Kot, Tehsil and District Sheikhupura as per registered sale deed dated 10.2.1973 for a consideration of Rs.62,500/-. On 4.12.1974 Taleh Mand the predecessor-in-interest of respondents 1 to 10 filed a suit for possession through pre-emption claiming superior right of pre-emption being the real brother of the vendor as well as co-sharer in the Kliata. The sale price was also disputed. Respondents 11 to 13 filed Iqbali Dawa whereas the suit was contested by the appellants, as a result of which a number of issues were struck. 3. On 4.7.1974 the case was fixed for the evidence of the parties when Muhammad Ilyas son of Taleh Mand predecessor-in-interest of respondents 1 to 10 possed himself as Taleh Mand and got his statement recorded as plaintiff in the case. Soon after, this was noticed by the appellants, who further learnt that even the plaint, Vakalatnama and other documents did not bear the thumb impressions of Taleh Mand plaintiff. On 12.9.1974 when the case came up for further proceedings the appellants brought the above facts to the notice of the learned trial Court which was not disputed by the counsel for the plaintiff/respondents and instead made a statement that the statement of Muhammad Ilyas PW-1 be cancelled because this statement was not made by Taleh Mand plaintiff but was made by his son-his attorney, by mistake. On the same day the learned trial Court cancelled the statement of PW-1 because the same was given by Muhammad Ilyas by mistake. not duly thumb marked by the appellant and some other person affixed his thumb impression on the same, therefore, there is no difficulty to conclude that no suit was filed by the appellant. I, therefore, have come to the conclusion that the irregularity or the forgery, whatsoever, it may be called cannot be rectified and the conduct of the appellant, throughout the long litigation is detrimental to his claim that any discretion may be exercised in his favour. The stand of the appellant had all along been, during the pendency of the suit, that he thumb marked the plaint and vakalattiama. It was found to be false and wrong in view of the statement of ZakaA.Malik. The plaint and the vakalatnama in the present case were not duly thumb marked by the appellant, therefore, the presumption under Order 6 Rule 14 and 15 would be that the plaint was not properly presented in the Court hence there was no suit instituted on behalf of the appellant. The plaintiff/appellant failed to comply with the provision of Order IV Rule 1 which requires that the plaint must be signed/thumb marked or verified under Order VI Rule 14 and 15". The respondents then approached the High Court through a Regular Second Appeal. The learned Single Judge who was seized of the matter found the non-signing of the plaint, Wakalatnama etc. as a curable irregularity and allowed the same as per the impugned judgment, and the case remanded to the trial Court with the direction to allow the respondents to put their signatures/thumb impressions on the plaint, Wakalatnama and redecide the suit after recording fresh evidence on issues 7 and 7-A. 6. Leave in this case was granted to examine whether in the facts and circumstances of the case the respondents had shown good cause for permission to sign the plaint. 7. Arguments heard and the record perused. The learned counsel for the appellant has vehemently contended that the learned Judge in his chambers has legally erred in permitting the respondents to sign and verify the plaint when there is overwhelming evidence on the record that the respondents were guilty of making false assertions as to the signing and verifying the plaint and Wakalatnama and other documents; that the High Court has acted illegally in treating the respondents who were guilty of forgery, false representation and contumacy at par with those who for sufficient cause failed to comply with the provision of Order VI Rule 14 and 15 C.P.C; and further that the High Court acted in excess of its jurisdiction in setting aside the concurrent finding of the facts of the Courts below, moreso, when no misreading or ignoring the evidence on the record had been noted or highlighted. He lastly submitted that since in this case no decree for pre­ emption was passed by the 31st July, 1986, no decree can now be passed in favour of the respondents. In support of his arguments the learned counsel for the appellants has relied on the case of Muhammad Riaz Khan Vs. Sardar Rahim Dad and 12 others (PLD 1990 S.C. (AJ&K) 13); Government of N.W.F.P. through Secretary, Law Department Vs. Malik Said Kama! Shah (PLD 1986 S.C.360=PLJ 1986 SC 576); Sher Muhammad and another Vs. Allah Ditta and 2 others (PLD 1988 S.C. 412=PLJ 1988 SC 303) and Ghulam Qadir Vs. Nawab Din (PLD 1988 S.C.701=PLJ 1988 SC 573). 8. As against the ab ve, the learned counsel for the respondents has supported the impugned judgment and submitted that non-signing of the plaint and the Wakalatnama is only a procedural irregularity and not an illegality and the same can be cured under Order VI Rule 14 C.P.C. Reliance in this respect was placed by him on the case of Ismail and another Vs. MstRazia Begum and 3 others (1981 S.C.M.R.687) and Ghulam Mohiyuddin Vs Moor Dad and others (PLD 1988 S.C. (AJ&k) 42). As for the objection about the non-passage of pre-emption decree before 31.7.1986 the learned counsel relying on Section 36 of the.Punjab Pre-emption Ordinance IX of 1991 submitted that since it is pending, the case can be now re-adjudicated upon and decided accordingly. 9. In the light of the arguments of the learned counsel for the parties, we have reconsidered the findings of the Courts below and that of the learned Single Judge. The threadbare analysis of the evidence of the parties made by the Courts below was that the thumb impressions on the plaint, Wakalatnama and other documents were not that of Taleh Mand but were forged and further that no plaint as required under Order IV Rule 1 C.P.C. had been filed in the Court. The learned Single Judge in his chambers did not write a word in disagreeing with the analysis made by the Courts below, he simply found that the non-signing of the plaint, Wakalatnama etc. was an irregularity and curable under Order VI Rule 14 C.P.C. and allowed the appeal. The conclusion of the learned Judge in his chambers in view of the concurrent finding of facts of the 2 Courts which are based on correct appraisal of evidence, with respect, is far from being correct and is, therefore, not sustainable. The perusal of record has made it manifestly clear that this case from the very beginning was based on mala fide and bad faith. It is an admitted fact that on the first day of recording the evidence it was found out that one of the sons of Taleh Mand namely Muhammad Ilyas was guilty of impersonating his father Taleh Mand. Then during the course of proceedings it was detected and established that the plaint, Wakalatnama etc. were forged for reasons best known to Taleh Mand respondent. It needs no emphasis that law and the Courts of law assist only those litigants whose claim and approach to the Courts are based on honesty and good faith. And when these things are lacking, relief is denied to them. Under Order VI Rule 14 C.P.C. every pleading shall be signed by the party and its pleader (if any). A concession under its proviso that the pleadings may be signed by any person duly authorised by the party to sign, is allowed only to that party who could not sign the plaint etc. because of his bona fide absence or other good cause such as an oversight or inadvertence. Once it is established that the non-signing of the pleadings is based on mala fide, bad faith or for the matter of that the signature or thumb impression of a party is forged on the pleadings, the concession so provided is denied to him and it takes the party beyond the pale of Order VI Rule 14 C.P.C. In the instant case it has been established that the plaint and other relevant documents were not thumb impressed by Taleh Mand plaintiff but his thumb impressions on these documents were forged. Obviously, therefore, a party with forged pleadings and exhibiting bad faith cannot be considered at par with a party whose case is covered under Order VI Rule 14 C.P.C. Support in this regard was rightly sought by the learned counsel for the appellants from the judgment of the Supreme Court (AJ&K) in" the case oi Muhammad Riaz Kiian Vs. Rahim Dad and 12 others (PLD 1990 S.C. (AJK) 113) wherein the learned Judges dissenting from the judgment in the case of Muhammad Bibi and others Vs. Nawaz and others (1986 MLD 771) held:- "We are afraid, we cannot subscribe to the view taken by the learned Judge. It hardly needs any arguments that forging signature or thumb impression on power of attorney or 'Vakalatnama' is an act of forgery within the meaning of Section 463 of the A.P.C. and is a penal offence. Therefore, it cannot be said that omission to sign a power of attorney or 'Vakalatnama' practically stands on the same footings, as forging the said documents. The Courts of law have always been reluctant to show indulgence in case of an illegal act; specially so if such an act constitutes a criminal liability. It is not only a legal obligation but also a moral duty of the Courts to discourage the acts of fraud, forgery and personification even if the same do not constitute a criminal liability". Further in this case question of ratification too, does not arise because an illegal act cannot be ratified under the law. 10. The contention of the learned counsel for the appellants that since in this case no decree was passed before 31.7.1986, therefore no decree can be passed now and which has been rebutted by the learned counsel for the respondents on the strength of Section 36 of the Punjab Pre-emption Ordinance IX of 1991 need not be dilated upon because this appeal is being decided on an altogether different ground. 11. As a result of the above, the appeal is allowed with costs throughout. (MBC) Appeal accepted.

PLJ 1991 SC 296 PLJ 1991 SC 296 [Shariat Appellate Jurisdiction] Present: dr. nasim hasan shah, chairman, abdul qadeer chaudhry and maulana muhammad taqi usmani JJ. HASHAM KHAN-Appellant versus THE STATE-Respondent. Criminal Appeal No.46(s) of 1988, partly allowed on 8.4.1991. [Against judgment dated 22.3.1988, of Federal Shariat Court , in Cr. Appeal No.223/I of 1987.] (i) Interpretation of Statute- Supreme Court can supply omission—Question of~ Supreme Court, in exercise of its ordinary jurisdiction, has had occasion to deal with this question on more than one occasion and has ruled that even though court cannot normally give any meaning to a provision other than that which is carried by words used by draftsman, but court can give effect to t —Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-- Omission in—Whether rue and patent intention of law-maker by suppling an omission in order to avoid who fills a position or station to perform certain duties, public or private. The concept that an "pfficer" is one who occupies a position or station of some ank or merit or duties and functions of a superior or higher order, is associated with offices and organisations where classification or grading in the employment exists, whether it be in he public or private sector. An office, position or station has to be held under some one and it is not possible to conceive of it as being held under no one. In both the public and rivate sector, classification and grading exists, placing persons in different tiers, one above each other. Persons holding positions or stations which involve the exercise of authority, epresentative character or delegated function of the employer or exercise of administrative or supervisory functions over persons placed below them, are generally treated as of uperior merit or rank. With such classification and grading existing in the public and private sector in respect of master and servant relationship, the question whether the word officer" will have to conform with or recognise the superior rank or status of the position or the station, or the higher duties involved, calls for examination. Thus, whilst the word officer" could connote different meanings, but in respect of Section 21 of the Pakistan Penal Code, what meaning would have to be assigned to that expression, which occurs in clause ine, calls for special attention. 25. With this forward, one may examine the case law referred to by the learned counsel for the parties on the subject. 26. In Reg. Vs. Ramajirao Jivbaji (12 Bom H.C.R.l), West J., held that the word "officer" meant some person employed to exercise to some extent and in certain cases a delegated function of Government. He either possessed some authority or representative character himself, or his duties were immediately auxiliary to some superior officer who so possessed the same. West J., was considering the case of an Izaphaidar, i.e. a licensee of a village who had undertaken to keep an account of its forest revenue and who was obliged to pay a certain proportion of it to the Government, keeping the rest for himself. Since there was no delegation to him of any authority for coercion or interference, nor was he a person appointed to assist any one who was so vested with such authority, it was held that the Izaphaidar was not a public servant. 27. In Nizamuddin Vs. Queen Empress (I.L.R.28 Cal.344) the question was whether a peon attached to the office of the Superintendent of the Salt Department was a public servant within the meaning of clause Nine of Section 21 of the Penal Code. The learned Judges of the Calcutta High Court, whilst considering the case of Reg. Vs. Ramajirao Jivbaji, held that the rule stated in that case appeared to be too narrow for the purposes of their case. Since the peon was attached to the Superintendent of the Salt Department and it was his duty to carry out the orders of his superior officer, who was a public servant and in that capacity to assist the Superintendent in the performance of the public duties of his office, he was an officer of Government, though he did not exercise any delegated function of the Government. The learned Judges also held that the duties of the peon were immediately auxiliary to those of the Superintendent, who was armed with delegated authority. The peon was therefore held to be an officer in the service and pay of Government, within the meaning of clause Nine of Section 21 of the Pakistan Penal Code. injustice-Held: In order to avoid injustice and to give effect to true intention K of law-maker, Court would supply inadvertant omission in Section 11 o Ordinance as "imprisonment which may extend to life" instead of "imprisonment for life". ' [Pp.300&301jC&D ; PLD 1961 SC 119 and PLD 1969 SC 241 rel. (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S.11—Abduction of a woman—Offence of—Conviction for—Challenge to— What punishment should be awarded to appellant-Question of-Held: Appopriate sentence which should be awarded to appellant after having been und guilty under Section 11 of Ordinance, is 10 years only and not life mprisonment-Sentence reduced to 10 years R.L [P.301JE (iii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S.ll read with Section 10(3)-Abduction of a woman-Offence of-Conviction for—Challenge to—Whether real intention of law-maker in providing punishment is not correctly expressed in Section 11 of Ordinance-Question of--Contention that language employed by draftsman in Section 11 is inartistic and does not express true intention of law-maker-According to learned counsel, real intention of law-maker was to make a person, guilty under Section 11, punishable for an imprisonment "extending" to life as is case in Section 10(3) of Ordinance, and word "extending" has been inadvertently omitted-Held: It is correct that real intention of law-maker is not reflected in actual text of provision. [P.300JB (iv) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —Ss.ll&16—Abduction of a woman—Offence of—Conviction for—Challenge to- ! -Whether case falls under Section 11 or 16 of Ordinance-Question of~Facts, do not show that prosecutrix was enticed away by appellant-To attract • provision of Section 16, there may be some kind of inducement or seduction by | accused, but where any woman has been taken away by force by a person •i against her will, provisions of Section 11 would be attracted-Held: All facts t ^ taken jointly lead to an irresistible conclusion that this case falls under Section 11 of Ordinance. [Pp.299&300]A Malik Rab Nawaz Noon, Advocate, Supreme Court, and Ch. Akhtar All, AOR for Appellant. Raja Abdul Ghafoor, Advocate, Supreme Court, for State. Date of hearing: 4.3.1991. judgment Nasim Hasan Shah, J (Chairman).--This appeal by the leave of the Court is

directed against the judgment of the Federal Shariat Court dated 22.3.1988. 2. The facts, in brief, are that on 17.10.1981, Mst.Rukhsana (PW.5) the +' complainant, was busy in the kitchen of her house and her sister-in-laws , MstZahida Parveen and Bushra were sitting in the courtyard of the house I alongwith one Mst.Farzana, their neighbour. She heard the alarm of her sister-inlaw Mst.Zahida Parveen. She entered the kitchen and found that Hasham Khan, appellant, armed with a knife caught hold of MstZahida Parveen and was dragging her. The complainant and two other ladies tried to rescue Mst.Zahida Parveen but could not succeed. The accused abducted MstZahida Parveen. The report of the incident was lodged by Mst.Rukhsana the same day. In the report, she also mentioned the presence of two other persons as helpers of Hashim Khan. One of them was identified as Rashid, the absconding accused. The motive for the offence was that Hasham Khan intended to marry Mst.Zahida Parveen but her mother had turned down his request for marriage. At the trial, the prosecution examined ten witnesses. Hasham Khan, Muhammad Zaman and Zafarullah accused were tried by the Additional Sessions Judge, Kohat. Abdur Rashid accused absconded during the trial and was therefore declared as proclaimed offender. The aforesaid three accused denied the allegation against them. The trial Judge acquitted Muhammad Zaman and Zafarullah and convicted Hasham under Section 11 of the Hudood Ordinance (hereinafter referred to as the Ordinance) and sentenced him to life imprisonment, 30 stripes and fine of Rs.5,000/- or in default in the payment of fine, to suffer further R.I. for two years; under Section 10(3) of the Ordinance, 10 years R.I. and fine of Rs.5,000/- and in default, R.I. for two years and 30 stripes; and under Section 324 PPC to one year R.I. and fine of Rs.2,000/- or in default to suffer further R.I. for six months. All the sentences were ordered to run concurrently. It was further directed that the amount of fine, if recovered, half of the same be paid to Mst.Zahida Parveen as compensation under Section 544-A Cr.P.C. The appeal preferred by the appellant in the Federal Shariat Court was dismissed and the sentence of fine on conviction under Section 10(3) of the Ordinance was set aside. 3. In order to bring home the charge against the appellant, the prosecution relied upon (/) the recovery from the accused (of) a Suzuki, a 12 bore gun with five cartridges, (//') the recovery of Mst.Zahida Parveen from the custody of the accused; (Hi) direct evidence as furnished by PW.4 Mst.Rukhsana and PW.6 Mst.Zahida Parveen. (The two witnesses Mst.Bushra and Mst.Farzana were not produced), and (/v) the medical evidence as furnished by Lady Dr.Khurshid (PW.3). 4. As regards the commission of the offence by the appellant, that has been established by over-whelming evidence. The two Courts below have assessed the evidence in true perspective. The prosecutrix Mst.Zahida Parveen (PW.6) supported the prosecution case and corroborated the statement of Mst.Rukhsana PW.5. She was recovered from the custody of the appellant. Cloth Ex.P.26, Shirt and Shalwar Exhs.P.27 and P.28 respectively of Mst.Zahida Parveen were stained with blood and semen. Mst.Zahida Parveen had received injuries at the hands of the appellant. She had stated that the appellant had committed zina-bil-jabr with her ten times. In his statement under Section 342 Cr.P.C., the appellant has admitted that she was in his custody but gave an explanation which was rightly rejected by the Courts. The appellant stated as follows: - "She had gone to his house on her own accord, and he wanted to return her to her parents but she refused to go to her parents and in order to return her to her parents he took her to the house of her relatives". 5. The case against the appellant (is) proved to the hilt. No material evidence has been discarded. It is not the case of misreading of evidence. As such, the evidence does not require re-appraisal in this case. 6. Leave to Appeal was also granted to,consider whether the appellant was rightly convicted under Section 11 of the Ordinance or the case falls under Section 16 thereof. Mst.Zahida Parveen was medically examined on 10.12.1986 and she was 20/21 years of age at that time. The date of the incident is 17.10.1981. The essential ngredients of Section 11 of the Ordinance are that "any woman is abducted or kidnapped with intent that she may be compelled to marry any,person against her will, or that she may be forced or seduced to illicit intercourse "whereas Section 16 provides tflat "Whoever takes or entices away any woman with intent that she may have illicit ntercourse with any person, or conceals or detains with that intent any woman". Learned counsel for the appellant submitted that the case falls under Section 16 of the Ordinance. Mst.Zahida Parveen eloped with the appellant. The ingredients of Section 11 are missing in this case. This plea was also raised before the Federal Shariat Court but the same was rejected by the Court for the following reasons recorded in Para 11 of the judgment: - "Learned counsel for the appellant vehemently argued that in view of certain admitted facts Mst.Zahida Parveen was a consenting party and that the accused being on visiting terms went to their house, prior to the occurrence she had already developed intimacy with him. He accordingly contended that the intention which is necessary to prove the offence under Section 11 of the said Ordinance is not present in the instant case. He argued that the statement of Mst.Zahida Parveen recorded during the trial was the result of coercion by her relatives as she was handed over to her mother soon after her recovery and during that period she appears to have been properly tutored by her whereas in fact from her conduct, it appears that she was a consenting party throughout. None of these arguments have any force for the reason that before making statement during the trial Mst.Zahida Parveen had already stated a similar version in her statement recorded under Section 164 Cr.P.C., soon after her recovery. Similarly, no evidence worth consideration has been shown on the record to give any indication about the conduct of Mst.Zahida Parveen, showing her as a consenting party".There is no exception to the above finding. 7. The facts of the present case do not show that the prosecutrix was enticed away by the appellant. The element of inducement is missing in this case. The word "take" does not mean taking by force. It implies to get into possession or cause to go with an accused. An accused may exert some influence on the woman. There may be some kind of inducement or seduction by the accused to'attract the provision of Section 16 of the Ordinance but where any woman has been taken away by force by a person against her will, the provisions of Section 11 of the Ordinance would be attracted. It is always a question of fact which is to be determined on the material on record whether the case falls under Section 11 or 16 of the Ordinance. In the present case, she was abducted by the appellant from her house against her will. According to the prosecution evidence, Mst.Zahida Parveen was present in her house. The appellant entered the house. He tried to take away Mst.Zahida Parveen by force. She in order to save herself ran into the kitchen of the house and also raised cries. The appellant started dragging her. He was armed with a knife and the complainant and the other two ladies tried to rescue her but they could not succeed. With the help of another man, she was forcibly taken away by the appellant. Mst.Zahida also received injuries at the hands of the appellant and this fact is established by Lady Dr.Khurshid (PW.3). Mst.Zahida further stated that she was made to sit forcibly on the front seat of the waiting Suzuki pick-up. She was taken to different places. The accused gave her beating and injured her at back as well as at her thigh and threatened her that her nose and ears would be cut if she did not consent to marry with him. She pointed out the places where she was taken by the appellant after her abduction. According to Lady Dr.Khurshid, PW.3 Mst.Zahida Parveen was subjected to sexual intercourse. Exhs.P.26, P.27 and P.28 were stained with blood and semen. All these facts taken jointly lead us to an irresistible conclusion that the case falls under Section 11 of the Ordinance. 8. As regards punishment, the appellant stands sentenced under Section 11 of the Ordinance to life imprisonment, with whipping (30 stripes) and to a fine of Rs.5,000/- and in case of default in its payment to further R.I.. for 2 years. It is submitted that the sentence of life imprisonment has been imposed on the appellant because under Section 11 of the Ordinance any person found guilty thereunder "shall be punished with imprisonment for life", although any person found guilty even for the much more heinous offence of zina-bil-jabr under Section 10(3) of the Ordinance is liable to punishment to a term extending to life imprisonment and in fact the appellant herein, despite being found guilty under Section 10(3), was awarded imprisonment of 10 years only. 9. The submission of the learned counsel for the appellant is that the language employed by the draftsman under Section 11 is inartistic and does not express the true intention of the law-maker. According to him, the real intention of the law-maker was to make a person guilty under Section 11 to be punishable for an imprisonment extending to life as is the case in Section 10(3) of the Ordinance and the word "extending" has been inadvertently omitted in the provision. To us also this appears to be the case and we also feel that the real intention of the law-maker is not reflected in the actual text of the provision. But the question is whether we can supply this omission? 10. The Supreme Court in exercise of its ordinary jurisdiction has had occasion to deal with this question on more than one occasion and has ruled that even though the Court cannot normally give any meaning to a provision other than that which the words used therein by the draftsman carry (however, drastic or inconvenient the result may be) but the Court nevertheless in order to avoid injustice can give effect to the true and patent intention of the law-maker by supplying an omission (see Muhammad Amir KJian Vs. Controller of Estate Duty (PLD 1961 S.C.119) and Muhammad Ismail Vs. TJie State (PLD 1969 S.C.241). And in our opinion, the jurisdiction of a Shariat Court in the matter of tazir punishments is even more extensive. 11. Accordingly, in order to avoid injustice and to give effect to the true intention of the law-maker we would supply the inadvertent omission in Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 with a view to bringing it in conformity with the true intention of the law-maker, as follows:- "11. Kidnapping, abducting or inducing woman to compel for maniage etc.-- Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment which may extend to life and with whipping not exceeding thirty stripes, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code (Act XLV of 1860), or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or, knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid". (Underlined words are ours, in place of the words "for life" presently appearing in Section 11). 12. Coming now to the question of punishment to be imposed on the appellant, the appropriate sentence which should be awarded to the appellant after having been found guilty under Section 11 of the Ordinance is, in our opinion, 10 years only and not life imprisonment. We would, accordingly, reduce his punishment under Section 11 of the Ordinance to 10 years, alongwith whipping (30 stripes), plus a fine of Rs.5,000/- in default of payment of fine to 2 years further R.I.. The sentences under Sections 10 and 11 shall, however, run concurrently. The appeal is allowed in the above terms and in the result this appeal succeeds in part. (MBC) Appeal partly accepted.

PLJ 1991 SC 301 PLJ 1991 SC 301 [Appellate Jurisdiction] Present: Dr. nasim hasan shah, shahur rehman, zaffar hussain mirza, ali hussain qazilbash and abdul qadeer chaudhry, JJ MIR AHMAD-Appellant versus ATAULLAH alias ATTA MUHAMMAD and others-Respondents Civil Appeal No. 10 of 1983 (also C.A. Nos. 20 of 1983, 45,103, 337 and 365 of 1985, and 218 of 1986) dismissed on 19.6.1990. [Against judgments dated 24.1.1983, 30.1.1983, 24.11.1984, 5.6.1984, 21.4.1985, 4.7.1984 and 9.10.1984 of Lahore High Court, in R.S.A. Nos. 123 & 157of 1981, 17 of 1984, an C.R. Nos. 82 of 1984, 815/D of 1.985,1096 of 1984 and • 1579/D of 1984 respectively]. Sinker-- —- Pre-emption-Suit for-Sinker-Principle of-Whether principle is applicable to vendee joining a stranger with him—Question of—Held: In pre-emption suits where a endee aving an equal or superior right of pre-emption, associates a stranger, i.e. a person having an inferior right of pre-emption than pre-emptor, rule of sinker will apply and pre- mptor's suit decreed unless impugned sale is divisible, [P.3Q3]A Raja Muhammad Anwar, Senior Advocate Supreme Court and Maidvi Sirajul Haq, Advocate Supreme Court for Appellant in C.A. 10/83. Mr. Imtiaz Muhammad Klian, A.O.R for Respondents Nos 1,2 and 6 in C.A. 10/83. Mr. Bashir Ahmad Ansari, Advocate, Supreme Court, for Respondents Nos. 3 to 5 in C.A. 10/83. Raja Muhammad Anwar, Senior Advocate, Supreme Court, for Appellants in CA. 20/83 Mr. Bashir Ahmad Ansari, Advocate, Supreme Court, and Mr. Imtiaz Muhammad Klian, AOR for Respondent No. 4 in C.A. 20/83. Kli. Muhammad Yoiisaf Saraf, Advocate Supreme Court, and Ch. Gliulam Dastgir, AOR for Appellants in C.A. 45/85. Rana M.A. Qadri, AOR (absent) for Respondent in C.A. 45/85. Mr. M. Hanif Bhatti, Advocate, Supreme Court, and Mr. M. Afzal Siddiqui, AOR for Appellants in C.A. 103/85. Mirza Anwar Beg, Advocate, Supreme Court, for Respondent No. 1 in C.A. 103/85. Ch. AkhtarAli, AOR for Respondent No. 2 in C.A. 103/85. ChMushtaq Ahmad Klian, Advocate Supreme Court, and Mr. Iqbal Ahmad' Qweshi, AOR for Appellants in C.A. 337/85. Mr. All Ahmad Mahi, Advocate Supreme Court, and Mr. MA. Qadri, AOR (absent) for Respondents in C.A. 337/85. Qazi Muhammad Sali/n, Senior Advocate, Supreme Court, and Mr. M. Aslam Ch., AOR (absent) for Appellants in C.A. 365/85. Mr. Muhammad Munir Peracha, Advocate, Supreme Court, and Ch. Akhtar All, AOR for Respondents in C.A. 365/85. Ch. Mushtaq Ahmad Klian, Advocate, Supreme Court, and Mr. Iqbal Ahmad Qweshi, AOR (absent) for Appellants in C.A. 218/86. Mr. Ghulam Dastgir, AOR for Respondents in C.A. 218/86. Dates of hearing: 16 and 17.6.1990. judgment Nasim Hasan Shah, J--The above appeals were referred to a larger Bench (consisting of 5 HJJ) as some doubts arose as to the application of the "rule of sinker" more particularly whether a vendee who possesses a right of pre-emption equal or superior to the pre-emptor on associating a stranger i.e. person having an inferior right of pre-emption than the pre-emptor, will not sink alongwith his covendee and the sale held pre-emptible on account of the inferior qualification of his co-vendee. The learned counsel of all the parties addressed us at considerable length on the question but during the course of the hearing it transpired that another Bench of 5 learned Judges (consisting of Mr. (Justice) Muhammad Haleem, C.J., Mr. Justice Shafi-ur-Rehman, Mr. Justice Ghulam Mujaddid, Mr. Justice Usman Ali Shah & Mr. Justice Naimuddin) had in the meanwhile considered a somewhat similar question-in the case of Muhammad Ismail & others vs. Karamat Ali (PLD 1989 S.C. 474)—and held that the doctrine of sinker applied in such cases. After having given our fullest consideration to the submission of the learned counsel for the parties we have also reached the same conclusion and, therefore, it seems unnecessary to give detailed reasons in support thereof as they have already been set out at sufficient length in the aforesaid judgment. Our final conclusion, after having considered the whole matter at length is that in pre-emption suits where a vendee having an equal or superior right of pre-emption associates a stranger i.e., a person having an inferior right of pre-emption than the pre-emptor, the rule of sinker will apply and the pre-emptor's suit decreed, unless the impugned sale is divisible i.e., it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified. In the result, these appeals fail. A short order to the above effect was announced at the conclusion of the hearing of the appeals. The above are our reasons for the saidorder. These appeals are, accordingly, dismissed but with no order as to costs. (MBC) Appeals dismissed

PLJ 1991 SC 303 [Appellate Jurisdiction] PLJ 1991 SC 303 [Appellate Jurisdiction] Present: Sl-lAFI UR REHMAN, S. LJSMAN ALI SHAH AND ALI HUSSAIN OAZILBASH, JJ SARFRAZ HUSSAIN BAN GASH-Appellant versus FEDERATION OF PAKISTAN, through Secretary, Finance Division, Islamabad and 2 others—Respondents Civil Appeal No. 16-P of 1988, dismissed on 24.11.1990 [On appeal from judgment of Federal Service Tribunal, dated 13.12.1984 and 16.1.1985, passed in Service Appeal No. 122(P) of 1983] Special Pay- —Specail pay—Grant of—Prayer for—Rejection of—Challenge to--In order to establish his legal entitlement to Special Pay, appellant had to prove any one of three, requirements, namely (1) specially arduous nature of duties, (2) a specific addition to work or responsibility, and (3) unhealthiness of locality in which work is performed-It is not case of appellant that his case squarely falls in any defined category—Federal Government employees cannot, in matter of emoluments, compare themselves with Provincial Government employees and vice versa-Held: There is no merit in appeal. [P.304]A,B&C Qazi Muhammad Anwar, Advocate, Supreme Court, and Mr. Abdul Hamid Qweshi, AOR for Appellant. Ch. Ijaz Ahmad, Deputy Attorney General, and Mr. Manzoor Ilalii, AOR for Respondents. Date of hearing: 24.11.1990. judgment S. Usman AH Shah, J.--This service appeal by leave of the Court has arisen from the'judgment of the Federal Service Tribunal, Islamabad, dated 13.12.1984 & 16.1.1985: whereby, service appeal of the appellant for the grant of special pay denied to him by the Finance Department, was dismissed. The appellant was appointed as Technical Assistant (then a Grade-IlI post) in the Pakistan Forest Institute, Peshawar on 19.5.1972, on ad hoc basis and was subsequently regularized, vide Office Order dated 31.3.1973. This post was up­ graded to Grade-16 and the appellant was placed as such. The appellant was promoted to Grade-17 with effect from 2.12.1980 and posted as Assistant Soil Chemist, The appellant considered himself to be eligible to the Special Pay of Rs. 100/- which was then authorized to Assistant Soil Chemists or to those holding equivalent posts in the four Provincial Govts. who were appointed on supervisory posts. So he moved the Authority for the grant of such Special Pay on the basis of the decision of the Provincial Governments. The Authority submitted a favourable proposal in this regard to the Ministry of Finance, Government of Pakistan. The Finance Department turned down the proposal so the appellant filed appeal in the Federal Service Tribunal which dismissed (it) through the impugned judgment. We have heard the learned counsel for the parties and perused the record. Special Pay has been defined in Clause (25) of Fundamental Rule 9 as under:- "(25) Special pay. means an addition, of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of— the specially arduous nature of the duties; or (a) a specific addition to the work or responsibility; or (b) the unhealthiness of the locality in which the work is performed." In order to establish his legal entitlement to Special Pay the appellant had to prove any one of the requirements prescribed. That has not been canvassed at any stage. Even now it is not the case of the appellant that his case squarely falls in the defined category. The Federal Government .employee cannot in the matter of emoluments compare himself with employees of Provincial Government, nor can the Provincial Government employee compare himself with the Federal Government employee. The categories are different. The classification is obvious. The reasonableness of it needs no proof. Under the circumstances and foregoing facts there is no merit in this appeal which is accordingly dismissed with no order as to costs. (MBC) Appeal dismissed

PLJ 1991 SC 305 [Appellate Jurisdiction] PLJ 1991 SC 305 [Appellate Jurisdiction] Present: SHAFiUR rahman, zaffar hussain mirza, ali hussain qazilbash and abdul qadeer chaudhry, JJ GOVERNMENT OF NWFP-Appellant versus Dr. S.HAIDER BUKHARI and others-Respondents Civil Appeal Nos. 28/P and 29/P of 1987, partly accepted on 20.3.1991. [On appeal from judgment of Peshawar High Court, dated 20.3.1984, in RFA No.ll of 1984]. Damages-- —Damages—Suit for—Decree passed in—Challenge to—There is no justification for Government (appellant) to appropriate sale proceeds of motor car which was taken way from respondent, as car has been handed over to its real owner-Held: Respondent is entitled to decree for Rs. 15000/- -Appeals partly allowed in that decretal amount hall stand reduced from Rs. 40000/- to Rs: 15000/- with interest at rate of 4% per annum from date of decree till realization. [P.309JA&B Mr. K.G. Sabir, Advocate, Supreme Court and Mr. M^A. Qayyiim Mazhar, AOR for Appellant Mr. Abdul Aziz Kundi, Advocate, Supreme Court, and Mian Shakimllah Jan, AOR for Respondents. Date of hearing: 20.3.1991. judgment Zaffar Hussain Mirza, J.--These two appeals are being disposed of by this ;| common judgment as they are directed against the same judgment of the Peshawar High Court, dated 20th March, 1984. These appeals by the Government of N.W.F.P., have arise out of a suit filed by Dr.Syed Haider Bukhari respondent No.l herein against it and five others, in j - the Court of Senior Civil Judge, Peshawar, on 23rd January, 1979. ' The case of the respondent No.l, who is the only contesting respondent at the present stage and would be referred to as the "respondent", was that a Toyota Corona, otor-car Model 1967, bearing registration No.KAP-448, was found ! lying abandoned by the police, Warsak Police Post, by the road side and was accordingly taken into custody. As its owner was untraceable, the local police obtained an order from the Ilaqa Magistrate and sold it through a public auction for Rs.15,000 on 20th September, 1973, to Haji Ghulam Fareed (Respondent No.4). It appears that after purchasing the car the said Haji Ghulam Fareed obtained a new registration No.PRB-703 and sold it to Rahibullah (respondentNo.5). The said Rahibullah in turn sold the car to the respondent (plaintiff) on 28th March, 1975, for a consideration of Rs.28,000/-.In the events that happened in November, 1975, while the said motor car was in the possession and use of the respondent it was revealed that the said vehicle was stolen from Karachi and was the case property in F.I.R. No.207/72, dated 16th September, 1972, Preedy Police Station, Karachi, lodged by the owner Abdul Waheed respondent No.6. Accordingly during the course of investigation the motor car was taken away from the respondent and sent to Karachi. The latest information is that the same has now been handed over to its original owner under the orders of the Court at Karachi, Having failed to secure the said motor car back, the respondent claimed the value of the car at Rs.40,000 and further claimed by way of damages a sum of Rs.60,000 for mental torture, agony and loss of professional time. Thus the total claim preferred by the respondent in the suit was Rs.1,00,000. The trial Court decreed the suit on 24th March, 1981, only as regards the value of the car which was found to be Rs.35,000 but dismissed the claim with regard to damages. The decree was passed against the Provincial Government and two Inspectors General of Police, only (respondents Nos.2 and 3). Both parties were dissatisfied with the judgment and decree passed by the trial Court, accordingly the respondent as well as the appellant filed separate appeals before the Peshawar High Court, which were disposed of by a common judgment impugned in these appeals. The High Court dismissed the appeal of the Provincial Government, but partly accepted the appeal of the respondent by enhancing the amount of decree to Rs.40,000 which according to the Court represented the value of the car at the time it was taken away from the respondent. Leave was granted to consider whether the respondent was entitled to recover any amount in excess of what was secured as a result of auction sale of the car, inasmuch as the car was put to auction in pursuance of a lawful order of the Magistrate who was competent to pass the said order under Section 524 Cr.P.C. On behalf of the appellant the same contention was reiterated as has been noted in the order granting leave as mentioned above and it was urged that the car was taken over from the respondent as it was stolen property in connection with which a F.I.R. was lodged at Karachi and it was further argued that the car was put to sale as a result of lawful order passed by the competent Magistrate under section 524 Cr.P.C. Therefore, according to the learned counsel for the appellant the respondent had no cause for grievance as he was not illegally deprived of the possession of tne property in question of which he was the lawful owner. On the other hand, on behalf of the respondent it has been contended that the order of the Magistrate, whereby he disposed of the motor car, was patently illegal for, no inquiry was held nor a proclamation issued as contemplated by subsection (2) of Section 523 Cr.P.C. In order to examine the respective contention of the learned counsel for the parties, it will be convenient to refer to Sections 523, 524 and 525 of the Cr.P.C. which are as follows: "Section 523(1) the seizure by any police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. Section 524(1). If no person within such period establishes his claim to such property, and if the person in whose possession such property was found, is unable to show that it was legally acquired by him, such property shall be at the disposal of the (Provincial Government), and may be sold under the orders of the District Magistrate or Sub-Divisional Magistrate, or of a Magistrate of the first class empowered by the (Provincial Government) in this behalf. (2) In the case of every order passed under this section, an appeal shall lie to the Court to which appeals against sentences of the Court passing such order would lie. Section 525. If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, (or if the Magistrate) to whom the seizure is reported is of opinion that its sale would be for the benefit of the owner, (or that the value of such property is less than ten rupees) the Magistrate may at any time direct it to be sold; and the provisions of Section 523 and 524 shall, as nearly as may be practicable, apply to the net proceeds of such sale". On a plain reading of Section 525 it appears to us that in case of a property in respect of which it is unknown as to the person entitled to possession thereof and if the Magistrate to whom the seizure is reported is of the opinion that its sale is for the benefit of the owner, then the Magistrate would be fully empowered and competent to direct such property to be sold. In such case the provisions of Sections 523 and 524 shall apply to the net proceeds of such sale. We have not been referred to the orders passed by the Magistrate under which the motor car.in question was sold, as no such document is on the record. However, there is a reference in the judgment of the trial Court that the car was disposed of as evidenced by the certificate issued by the Magistrate First Class through auction for Rs.15,000 (Ex.PW 1/1). Also Muhammad Azeem (PW.6) District Nazir, Peshawar, in his deposition before the Court has testified that the car was disposed of through public auction on 28th September, 1973, by the Magistrate. This statement was not challenged as there is nothing in the cross-examination to that effect. Further Khadimat Hussain Khan (DW.l) Police Inspector, has stated in his evidence that he made an application for auction of the car and the Magistrate First Class, Peshawar, was appointed to supervise the auction. He has also stated that before applying for auction he had made efforts to trace the pwner of the car without anv fruitful result. It is in the evidence of Muhammad Yousaf (DW.2) Senior Clerk, Moharrir Mall, Office of Collector, Peshawar, who produced the auction proceedirrg^before the Court that the car was put to general auction. There is an order on the record by the trial Court to the effect that the certified copies of orders of Courts dated 25th January, 1978 and 24th October. 1978, were produced in evidence, but they are not on the record before us to examine the contents thereof. On the aforesaid state of evidence we are unable to critically examine the contention on behalf of the respondent whether the disposal of the car in question was made after compliance with the procedure provided in Sections 523 and 524 Cr.P.C. However, on the legal plane, it appears that the property secured in the circumstances as are obtaining in the present case, the Magistrate to whom the seizure of the property is reported could order its disposal without inviting claims as required by subsection (2) of Sections 523 and 524. There is nothing in the evidence to suggest that the real owner of the property was traceable by the time the motor car in question was disposed of through auction and in such circumstances obviously keeping the car in custody with the Magistrate or the police, for an indefinite period, would not have been in the benefit of the real owner, therefore, there is no warrant for the contention that the car was disposed of by means of an illegal order. However, the contention advanced on behalf of the respondent destroys his own case. If the auction proceedings through which the car was disposed of itself was illegal and ineffective in law then the legal taint that attached to the title of the auction purchaser would be transmitted through the intervening sale and attach to the property even in the hands of the respondent. He did not bring the suit on a grievance that he had suffered the loss of the property on account of illegal order passed by the Magistrate as a result of which the auction sale took place. No such case was pleaded at any stage of the proceedings but if that be his case then, he should have impleaded the Magistrate under whose order the auction had taken place as the main party defendant in the suit for any loss sustained by him as a result of his illegal act. However, in that case as held in Capt. Raza AH Vs. Mukhtar Hussain and another (1977 S.C.M.R.202), the Magistrate could have appealed to the protection under the Judicial Officer's Protection Act, 1850. But as he is not a party and the case pleaded is not the one as is being urged at this stage on behalf of the respondent, it is not necessary to go into that question. Whether an order under Section 524 or Section 525 Cr.P.C. was passed as an order while acting judicially on the part of the Magistrate, the matter stands settled by the Privy Council in Loftiis Otway Clarke Vs. Brojendra Kishore Roy (39 Indian Appeals 163). The learned Judge in the High Court has, however, held that no proper inquiry was conducted by the Government officials to find out the owner of the car, before a request was made for its disposal through auction by a Magistrate. It is sufficient to state that the responsibility of the police officer under the law only extended to report the seizure of the property found, inter alia, under circumstances which create suspicion of the commission of any offence to make a report to the Magistrate under subsection (1) of Section 523 Cr.P.C. There is no material produced by the respondent that such action was not taken by the police officers. Once the seizure is reported as above, it is for the Magistrate to take proceedings for the disposal of the property whether the owner is known or unknown and as discussed herein before such act of the Magistrate would be protected, with the result that no suit for damages can lie if the Magistrate acted in good faith. There is no allegation of want of good faith on the part of Magistrate nor has the Magistrate been impleaded as a party, which is a fatal defect for a suit on a claim for damages against the Government. However, there is no justification for the Government to appropriate the sale proceeds of the motor car, which was taken away from the respondent, as the car has been handed over to its real owner. The respondent is, therefore, entitled to a decree for Rs.15,000. For the foregoing reasons these two appeals are partly allowed, in that the decretal amount shall stand reduced from Rs.40,000 to Rs.15,000 with proportionate costs. The appellant shall also pay interest on Rs.15,000 at the rate of Rs.4% per annum from the date of decree until realization, as the appellant " had no right or other justification to withhold this amount, which ought to have been admitted and offered to the respondent. Both appeals are disposed of accordingly. (MBC) (Approved for reporting) Appeals partly allowed.

PLJ 1991 SC 309 [Appellate Jurisdiction] PLJ 1991 SC 309 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and nasir aslam zaiiid, J. ZAHID PARVEZ and another-Appellants versus THE STATE-Respondent Criminal Appeal No.169 of 1987, partly allowed on 10.2.1991. [On appeal from judgment dated 19.11.1986, of Lahore High Court, in Crl. Appeal No.662 of 1984]. Grave and sudden provocation-- —Double murder-Offence of-Conviction for—Challenge to--It is highly probable that Mst. Bushra (sister of appellant No.l) had been taken away by Amanat deceased, ppellants, on coming to know about it, went there, caused' injuries to all three of them and retrieved their honour to their house-Held: This act would fall under Exception o Section 300 PPC, relating to grave and sudden provocation-Conviction altered to that under Section 304 Part I of P.P-C. [P.313JA PLD1962SC502re/. Mr. TariqAzam Chaudhiy, Advocate, Supreme Court, for Appellants. Nemo for State. Date of hearing: 10.2.1991. judgment Muhammad Afzal Zullah, CJ.—This appeal through leave of the Court is directed against the dismissal by the High Court of appellants' Criminal Appeal and affirmation of their conviction under Sections 302 and 449 P.P.C. and sentences including life imprisonment together with fine on two counts of murder. Leave grant order which is based on and includes two conflicting opinions, reads as undcr:- Isl Hon. Judge "Zahid Pervai/ aged 20 years and his brother Muhammad Aslam aged 26 years have jointly filed a petition for leave to appeal from jail against their conviction under Section 302/34 P.P.C. (two counts) and under Section 449 P.P.C. "On the 22nd of October. 1983 at about 11.30 p.m., Bashir Ahmad aged 50 years, the father of the complainant Mst. Sabiran Bibi (P.W.10) and her brother Amanat Ali aged 18 years were murdered by knife blows while asleep in the house. Mst. Sabiran (PW-10) and Niamat Ali (PW-11) another brother of A/5/.Sabiran witnessed the occurrence. Mst. Sabiran lodged the report at 6.05 a.m. at the police station on 23.10.1983. She charged the petitioners for causing their deaths by giving knife blows. Zahid Pervaiz was arrested on 9.11.1983 and led to the recovery of the blood-stained knife (Exp.16) hurried in the fields. The motive for the occurrence given out was that Amanat Ali was suspected of maintaining illicit relations with Mst. Bushra Bibi (DW-3) sister of the petitioners. It was also the prosecution case that in furtherance of the motive, that very night the two petitioners also caused knife injuries to their own sister Mst. Bushra Bibi (DW-3). "The occurrence resulting in the death of Bashir Ahmad and Amanat Ali and injuries to Bushra Bibi, was admitted but a different version was provided which appears in the statement of Zahid Pervaiz, petitioner, in the following words: "Actually the occurrence took place in this manner; that on the night of occurrence at about 9 P.M. may sister Mst. Bushra went to village field for answering the call of nature, but she did not return to her house upto 11-00 P.M. Thfe created anxiety in my mind and I alone went in search of her. On that day, Mst. Yasmin and Allah Ditta had come to our house for fixing date of marriage of Mst. Bushra with Qayum with whom she had been already betrothed. When I reached near the house of the deceased, I heard hue and cry of Mst. Bushra Parveen. 1 saw inside the house and found that the two deceased were forcibly dragging Mst. Bushra from the room to the courtyard; they were also causing injuries to her with chhuries; I under sudden and grave provocation as well as to save the life of my sister, jumped into the courtyard of the house of the two deceased and with a pen knife which I already had caused them injuries; after rescuing my sister I took her to my house. On the way, her injuries bled. Her blood had also fallen on the floor of our house" "Muhammad Aslam denied his participation in the occurrence and stated that he was away from the scene and was attending to the guests in his own house. "The prosecution case rested mainly on the statement of the two eye witnesses Mrt.Sabiran (PW-10) and Niamat Ali (PW-11). The petitioners produced in defence five witnesses. A/stBushra Parveen (DW- 3) made an uninspiring statement that she had for the fif st time in her life gone to the fields to answer the call of nature at that house and she had seen Amanat Ali on that night for the first time who had forcibly taken her to his house. Her age is recorded as 20 years and she admits to be a student of Government College. The injuries on her person were fourteen in number and all were incised wounds. "The two Courts have appraised the entire evidence and have come to a conclusion which does not appear to suffer from any infirmity. They have rejected the defence version and believed the two eye witnesses who are natural witnesses. The recovery of the knife from Zahid Pervaiz and the number of injuries on MstBushra (DW-3) provide the corroboration, if any, was needed. The plea taken up by the petitioners is palpably untenable. "There does not appear any merit in the petition and I am of the opinion that leave to appeal be refused". Opinion of 2nd Hon. J. "After going through the record I feel that the High Court seems to have ignored some important features of the case. The sister of the petitioners suffered fourteen serious incised wounds one being on the neck 10 cm x 4 cm. It is unlikely that they caused them "to create defence". The victims were asleep inside two separate rooms when .injured. One death according to the doctor was immediate. The incised wounds are such that there must have been profused bleeding. Yet no blood was found from underneath the" cots. And the dead bodies were found outside in the courtyard-one at a distance of 35 feet (according to the site plan). Over and above that; there was no trail of blood. The door of the courtyard was chained from inside, therefore, the prosecution suggested; through a waj takkar witness - Nazir PW-9, that the culprits scaled over the wall. But this part of his statement was not supported by his version before the police with which he was duly confronted in cross-examination. "A very strong possibility cannot be excluded that the eye witnesses have not told the true story. That is why the trial Court had to make the following observation:- "According to MstSabran Bibi, the accused had started suspecting illicit relation of their sister about 15 days before the occurrence. No untoward incident took place prior to the occurrence between the parties. Naturally some thing would have happened newly which infuriated the accused to commit the offence on that day. The suspicion about the visit of their sister to the house of the deceased on the fateful night, cannot be ruled out"."The complainant herself admitted in the F.I.R. that the accused had even suspicion that Muhammad Bashir deceased was helping his deceased son in his affair with Mtf.Bushra instead of restraining him". "It would 'need examination whether, on account of understandable reasons in a case like the present one, both parties have not introduced vital falsehood in their respective versions. If so whether the Court is not duty bound to try to discover the true version on the authority of Bepari's case (PLD 1962 S.C.502), so as to determine the nature of offence. If so, if the petitioners are found guilty, they have not committed the offence under Section 304-1, on the basis; that a reasonable possibility cannot be excluded that in reality (partly withheld by both sides) they acted on grave and sudden provocation; when killing the two victims and nearly killing their own sister Mst. Bushra. "I would therefore, with respect, grant the leave to appeal". Sd/- Hon. J. Opinion of 3rd Hon. J. "I agree with HJ(2)" "ORDER Leave to appeal is granted". Sd/- by all the three Hon. Ji Learned counsel for the appellants has taken us through the relevant parts of the record. During his arguments he has not been able to take the case of the .appellants beyond that is noted in the second opinion, already reproduced. The finding by the learned trial Court reproduced above regarding what could be the background and immediate reason for this unfortunate double murder, is not only significant but also very weighty. The parties had not suffered any serious estrangement prior to the occurrence. On the other hand the testimony of the prosecutrix reveals that they were also on casual visiting terms. It also appears that but for MstBushra's incident there might not have been any murder at all. Thus it could be assumed as a sound premises for further examination that the two murders have nexus with Mrt.Bushra's incident and also could be in consequence thereof. In the light of what has been stated above it is necessary to assume that the large number of injuries on the person of Mrt.Bushra and the selection of peculiar location to inflict the same by the assailants cannot be the result of what Zahid Pervaiz appellant would like the Court to believe; namely, that the deceased side were inflicting these injuries 'on her person to prevent her from escaping after the alleged forcible abduction. On the other hand it is more in accord with natural human conduct and high probabilities that such number and type of injuries were inflicted by the appellants but in a highly charged emotional stage of mind. Otherwise too there is no explanation for their having inflicted such large number of injuries on her. It is not possible to assume that they did so for creating a plea for self defence. As observed in the leave grant order the location and the nature of injuries is such that it could hardly be assumed to be self suffered or self inflicted. The prosecution thus having failed to explain the injuries on the person of Ms7.Bushra and the accused having withheld whole truth regarding their having almost killed their own sister, the only alternative for the Court was to follow the guidelines given in the famous case of Syed AH Bepari (P.L.D. 1962 Supreme Court 502). Thus it is not only legally possible but also a legal necessity to act on the third highly probable version which is shorn of the embroidery and falsehood introduced by both the interested parties. The law of evidence also permitted the Court "after considering the matters before it" to act on genuine probability and adopt this course. The definition of "proof, reads as follows:- "A fact is said to be proved when, after considering matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". In this case in the light of what is stated in the leave grant order as also discussed above it is highly probable that Mst. Bushra having been taken away by Amanat deceased, she was still in the house of the deceased when the appellants came to know about it. They went there, caused injuries to all three of them and retrieved their honour to their house. That is why the blood was also found in their house by the investigator. This act would fall under exception I [relating to grave and sudden provocation] to Section 300 P.P.C. Accordingly the offence committed by them would fall under Section 304 Part-I P.P.C. Their appeal, therefore, is partly allowed. Their conviction and sentences under Section 302 P.P.C. are set aside. Instead the conviction is altered to one under Section 304 Part I P.P.C. The sentence of imprisonment for the said offence on account of grave and sudden provocation is awarded as already undergone. It is fairly substantial. The sentence of fine and the imprisonment in lieu thereof is maintained. The entire fine when recovered shall be paid to the heirs of the deceased. The conviction under Section 449 P.P.C. in the circumstances that the appellants went into the house of the deceased to retrieve their sister is set aside as it would not amount to culpable trespass in the circumstances of this case. If the fine is paid they shall be released forthwith in case they are not required to be detained in any other matter. (MBC) (Approved for reporting) Appeal partly allowed.

PLJ 1991 SC 316 PLJ 1991 SC 316 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL CjADEER CHAUDHRY J. GHULAM NABI-Appellant versus MUHAMMAD ASGHAR and 3 others-Respondents Civil Appeal No.291 of 1989, dismissed on 13.3.1991. [On appeal from judgment dated 18.12.1988 of Lahore High Court, Rawalpindi Bench in writ petition No. 475 of 1988]. (i) Maintenance-- —Minor children-Grant of maintenance to-Challenge to-Contention that in case children are being provided sustenance by their grand-parents, father should not be burdened with duty to maintain his own children-Held: In presence of father, grand-parents, whether on paternal or on maternal side, will not be more responsible for maintaining their grand-children as compared to father's duty to maintain his own children—Appeal dismissed. [P.318JB&C (ii) Past maintenance-- —Minor children-Past maintenance of-Gfant of-Challenge to-Contention that past maintenance could not be granted to children of appellant—Supreme Court, while permitting grant of past maintenance, did not make any exception with regard to children as distinguished from maintenance to a wife-­ Otherwise too, it looks unfair that while wife gets past maintenance, children should be deprived of this benefit—Held: There is no force in argument of learned counsel. [P.318]A Mr. M.S. Mahboob, Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex- AOR for Appellant. Hafiz Saeed Akhtar, Advocate, Supreme Court, and Cli. AkhtarAli, AOR for Respondents. Date of hearing: 13.3.1991. judgment Muhammad Afzal Zullah, CJ.—This appeal through leave of the Court is directed against the judgment of the High Court; whereby in a case of maintenance, a Constitutional (Writ) Petition filed by the respondents' side (children of the appellant) was allowed and they were granted past maintenance, subject to the law of limitation. Leave to appeal was granted on noticing the facts and the point involved as under:- "Mst. Razia Begum filed a suit against the petitioner claiming maintenance for herself and for three minor children for September 1982 onwards. After contest, the suit was dismissed by the Judge, Family Court, Jhelum, by judgment dated 15.3.1988. However, on appeal, the Additional District Judge, Jhelum reversed the decreee passed by the trial Court and allowed the maintenance to the minor children from the date of the institution of the suit onwards. Still aggrieved, the respondents filed a constitutional petition and prayed for an order for grant of past maintenance from September 1982. The learned Judge in Chamber allowed the petition and awarded maintenance w.e.f. 3.9.1982. The petitioner has questioned this judgment in this petition for leave to appeal. "Learned counsel for the petitioner mainly relies on a judgment of the Lahore High Court in the case of Mst. Ghulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) in support of his submission that past maintenance could not be granted, wherein relying on the Hedaya (Hamilton's Second Edition, page 149) Bailie's Muslim Law (Third Impression, 1957, page 460 and Urdu translation of Durral Mukhtar by Maulvi Khurram Ali, it was observed at page 599 of the report as follows: - "It also seems clear from the authorities on Hanafi Law that neither the child nor the person who maintains it can claim past maintenance from the father unless the same has been previously fixed either by a decree of the Court or by the father himself. This proposition seems to flow from the propositions mentioned in the preceding paragraph and is supported by the exposition of the law relating to maintenance in the text-books". "The learned counsel further submitted that the cases relied upon by the learned Judge in the High Court are distinguishable, inasmuch as in Muhammad Nawaz v. Mst. Kliurshid Begum and 3 others (PLD 1972 Supreme Court 302) the order for past maintenance passed by the Arbitration council was not disturbed by this Court, but in the present case, even the Additional District Judge did not pass any order for past maintenance. It is also ubmitted that the High Court exceeded its powers under Article 199 of the Constitution". Learned counsel to start with reiterated the same argument which was noted in the leave grant order with reference to the decision of this Court in the case of Muhammad Nawaz. In support of his contention that the past maintenance could not be allowed to the children of the appellant, learned counsel cited some other cases from the Lahore and Sind High Courts. However, after considerable discussion he had to agree that this Court while permitting the grant of past maintenance did not make any exception with regard to the children as distinguished from the maintenance to a wife. Otherwise too it looks unfair that while the wife gets past maintenance the children should, as contended by the learned counsel, be deprived of this benefit. Cases are not lacking where, while granting maintenance to the wife, Courts have taken into account her needs, vis-a­ vis, any minor child which she might be supporting in the same house-hold. Accordingly, we have not been able to find any force in the argument of the learned counsel. Next, the learned counsel also arguned that in case the children are being provided sustenance by their maternal grand parents, the father should not be burdened with duty to maintain his own children. His main contention is that when somebody is voluntarily maintaining minor children who are close relations, this would not infringe any rule of Muslim Law of Maintenance. He also tried to support this proposition by citing case law including the well known case of Haji Nizam Klian v. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930). Although leave was not granted to examine this point we permitted the learned counsel to advance the same so as to clarify the legal position. No doubt grand-parents, if affluent, will be obliged to maintain grand children if they are destitute. But the command would issue in this behalf when there is no other nearer relation and/or more responsible in this behalf. Accordingly, when a specific proposition was put to the learned counsel in this behalf hie could not advance his argument any further. The question posed was: whether, in presence of the father the grand-parents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grand-children as compared to the father's duty to maintain his own children. Learned counsel without hesitation admitted that the priority-wise it would be the duty of the father.In the light of the foregoing discussion we find no force in this appeal. The same, accordingly, is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 318 PLJ 1991 SC 318 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and muhammad rafiq tarar J. DILSHAD-Petitioner versus Mst . MUSARAT NAZIR and another-Respondents Civil Petition No.l90-L of 1991, dismissed on 23.4.1991. Khula -- —Dissolution of marriage—Suit for—Decree passed in—Challenge to— Contention that while granting khula , no direction for return of monetary benefits has been made n favour of petitioner-Petitioner not having insisted upon for determination of exact benefits received by respondents' side nor for their return, same could not be asked or in writ jurisdiction which is highly discretionary-Held: Impugned judgment is unexceptionable-Held further: It will be futile exercise for petitioner to file a fresh suit (for eturn of benefits)— Leave refused. [P.319JA&B Sh . Klialilur Rehman , Advocate Supreme Court, and S. Abul Aasim Jaferi , AOR for Petitioner. Respondents: Not Represented. Date of hearing: 23.4.1991. order Muhammad Afzal Zullah , CJ.--Leave to appeal has been sought by an exmale partner in a marriage contract against the affirmation of the dissolution of the marriage through the ground ofKJmla in Writ jurisdiction. The only point urged is that while granting KJiula no direction for the return of monetary benefits has been made in favour of the petitioner. It appears that the learned Judge in the High Court was satisfied that the dissolution impugned in the High Court was based on evidence and there was no infirmity, legal or otherwise. However, by way of abundant caution some observation in the case of Akhlaq Ahmad vs. Kishwar Sultana (PLD 1983 Supreme Court 169) was made. It was observed that if the petitioner was so keen for the return of benefits, if any, he could file a suit. In so far as the said observation goes it is the right of the petitioner to seek the remedy but in a case like the present one, he not having insisted upon at proper stage for the determination of the exact benefits received by the respondent's side nor for their return - as it might have been thought below his dignity to do so, the same could not be asked for in the Writ jurisdiction of the High Court which is highly discretionary. Therefore, in addition to what the High Court observed we feel that it was not a fit case for grant of relief asked for in the discretionary Writ jurisdiction of the High Court. Accordingly, the impugned judgment is unexceptionable for this additional g reason also. And hence the matter now finally stands closed. It will be futile exercise for the petitioner to file a fresh civiLsuit . Leave is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 SC 320 PLJ 1991 SC 320 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and muhammad rafiq tarar, J. WAPDA and 2 others-Petitioners versus MIAN GHULAM BARI-Respondent Civil Petition No.59-L of 1991, dismissed on 28.4.1991. [On appeal from judgment of Lahore High Court, dated 18.11.1990, in Civil Revision No.2489 of 1989]. Jurisdiction-- —Suit against WAPDA—Cause of action accruing at Branch Office—Whether suit could be filed at place where WAPDA has its principal office—Question of-Explanation o Section 20 CPC means that corporation shall be deemed to carry on business at its sole or principal office as well as at any place where it has a subordinate office but in atter case, cause of action should have arisen at that place-Held: Argument of learned counsel being too wide to be accepted and same also being in negation of statutory xplanation, has no force-­ Petition dismissed. [P.321JA Ch. Ghulam Hassan Gulslian, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Petitioners. Respondent: Not represented. Date of hearing: 28.4.1991. order Muhammad Afzal Zullah, CJ--WAPDA as defendants have sought leave to appeal in a suit for recovery; against the acceptance by the High Court of respondent/plaintiffs Civil Revision. The respondent's plaint was returned to him under Order VII Rule 10 C.P.C. His appeal was dismissed but the Revision was accepted by the High Court on the finding that the Civil Court at Lahore had the requisite jurisdiction to try the suit. Accordingly, the respondent's Civil Revision was allowed and the case was sent to the said Civil Court for trial on merits. Learned counsel for the petitioners has contended that WAPDA is not an ordinary Corporation. It should not be, therefore, equated with the other commercial institutions and further that it should be equated with the Government, vis-a-vis, the territorial jurisdiction of the Courts in the suits filed against it. While elaborating the argument he has contended that the explanation to Section 20 C.P.C. should be construed in such a manner so as to provide that in case a cause of action has actually arisen at the location of a Branch office of WAPDA, the suit should not be filed with reference to the principal office at Lahore. The explanation reads as follows:- Respondents: Ex-parte. Date of hearing: 9.10,1990. judgment Shaflur Rahman, J..--Leave to appeal was granted to examine whether the High Court of Baluchistan had correctly by its judgment dated 14.5.1980, declined to interfere in the constitutional jurisdiction with the order of the Commissioner, Quetta, dated 29.6.1978 refusing to interfere with-the unanimous award given by the Council of Elders under the Frontier Crimes Regulation, 1901 (Regulation No.III of 1901 - hereinafter referred to as the F.C.R.) in a civil dispute. 2. The facts of the case are simple. The respondents No.l and 2 (hereinafter referred to as the respondents) claimed redemption of land and of water rights from the appellant on payment of Rs.520/-. The matter was referred to the Council of Elders for trial under the F.C.R., the dispute being of a civil nature. The first award was given in favour of the plaintiffs/respondents by three Members of the Council of Elders out of five. In Revision the Commissioner set aside this award on 29.5.1976 on the ground that it did not satisfy the requirements of clause (d) of sub-paragraphs (3) of Paragraph 8 of the F.C.R. which required a majority of three fourths of the Members of the Council of Elders for its acceptance. He remanded the case for retrial in accordance with law after constituting a fresh Council of Elders. A Council of Elders was constituted which replaced the earlier. After perusal of the roceedings that had already taken place, the Council of Elders rendered a unanimous award in favour of the respondents. It was accepted by the Deputy Commissioner and not interfered with by he Commissioner in Revision. The High Court also, for various reasons, did not interfere with it. Hence, this appeal. 3. The respondents have not appeared and the appeal has been heard exparte. 4. Mr.M.Bilai, Advocate, the learned counsel for the appellant took up a jurisdictional question namely, that after the enforcement of the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 (hereinafter referred to as the Regulation) which was extended to the area in dispute on 18th of February, 1977, the Commissioner had no jurisdiction to dispose of the Revision Petition which had necessarily, under Paragraph 7 of the Regulation, to be transferred to the Majalis-e-Shura or Qazi for its disposal. Further, it is contended that the retrial did not, in fact, take lace as the Council of Elders appointed in substitution of the earlier one, did not record any further evidence, make any enquiry, or heard the parties, but proceeded to decide the matter on the same evidence. While doing so, it did not take into consideration the Fatwa of a subsequent date filed by the appellant in support of his claim. Additionally, the grievance is that Commissioner did not pass a speaking Order. His order does not satisfy the requirements of a judgment. 5. In order to appreciate the contention of the learned counsel it is necessary to reproduce hereunder certain provisions of the Regulation. Under this Regulation Qazi Courts ere conferred jurisdiction in civil disputes wherein the subject matter in amount or value did not' exceed Rs.50,000/- and for amounts/value exceeding that, the Majalis-e-Shura had the original jurisdiction and also the appellate jurisdiction. Paragraph 7 of the Regulation provided as hcreundcr:- "7. Transfer of pending cases to Courts of Qazi and Majalis-e-Shura. --Upon the coming into force of this Regulation in any area, all suits and appeals pending in any District Court or a Civil Court subordinate thereto, or in any tribunal, involving a dispute which under this Regulation is to be adjudicated upon by a Court of Qazi or Majalis-e-Shura, shall stand transferred to the Court of Qazi or Majalis-e-Shura, as the case may be, having jurisdiction in the matter under this Regulation; and, upon such transfer, shall be deemed to have been instituted therein, and shall be heard and determined accordingly". As against this, the relevant provisions of the F.C.R. (Paragraphs 48, 49, 52 and 53), provided as hereunder:- "48. Appeals barred.~No appeal shall lie from any decision given, decree or sentence passed, order made or act done, under any of the provisions of this Regulation". "49. Revision.--Th& Commissioner may call for the record of any proceeding under this Regulation and revise any decision, decree, sentence or order given, passed or made therein". "52. Powers in exercise of civil revisional jurisdiction.-Notb.ing in this Chapter shall be deemed to authorize the Commissioner to vary or set aside any decision, decree or order given, passed or made in any civil proceeding under this Regulation, unless he is of the opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice, or that the decision, decree or order is contrary to good conscience or public policy". 53". Record of reasons.-'Where, in the exercise of his revisional jurisdiction in any proceeding under this Regulation, the Commissioner varies or sets .aside any decision, decree, sentence or order, he shall record his reasons for so doing". Equally important for the purposes of this appeal is the definition of "Commissioner" in the same law F.C.R.), in Paragraph 2(c) as hereunder:- " 'Commissioner' or 'Court of Commissioner' means the Provincial Government or such officer or officers as the Provincial Government may appoint in this behalf". 6. Paragraph 7 of the Regulation on the strength of which transfer of proceedings is sought, expressly mentions all suits and appeals. There is no mention of the Revision. The forum where such suits and appeals should be pending in order to attract this provision are mentioned as District Courts, or courts subordinate to it or a Tribunal. The Council of Elders consisting of the Members selected by the Deputy Commissioner for trial of a case, civil or criminal, would certainly qualify as a Tribunal. So will the Commissioner, because in the definition clause, 'Commissioner' has been treated as synonymous with the 'Court of Commissioner'. The word "Tribunal" has been defined in Black's Law Dictionary (Fifth Edition) as hereunder:-"The seat of a judge; the place where he administers justice. The whole body of judges who compose a jurisdiction; a judicial court; the jurisdiction which the judges exercise. In Roman Law, an elevated seat occupied by the praetor, when he judged, or heard causes in form. Originally a kind of stage made of wood in the form of a square, and movable, but afterwards built of stone in the form of a semicircle". The 'Commissioner', on the definition quoted would, therefore, qualify as a Tribunal if not as a 'Court', though the word 'Court' has been affixed to his designation. 7. It is true that the word 'Revision" has not been expressly motioned in Paragraph 7 of the Regulation, but then in interpreting beneficial and remedial statutes, quite often the word 'appeal' has been given an extended meaning to include revision. In the case of TahirAli and others v. Chief Judge, Karachi Small Causes Court and another (PLD 1963 S.C. 147) where under special Law, a right of revision was conferred, a question arose, whether the word 'appeal' provided in section 15(1) of the Karachi Rent Restriction Act read with Section 12(2) of the Limitation Act includes a revision and the time spent in obtaining copies of Orders, to be excluded for appeal, would also be excluded in case of Revision. The case law was exhaustively considered as hereunder:- "Upon construction of the word 'appeal' used in Section 12(2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word 'appeal' and laid down emphatically that it does not include revision. On the other hand some of the Cqurts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question. The word 'appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon 'appeal' has been defined as The judicial examination of the decision by a higher Court of the decision of an inferior Court". In the Attorney-General v. HJ. Sillem and others (11 E.R. X H.L.C. 703) Lord Westbury described an appeal in these terms: "An appeal is the right of entering a Superior Court and invoking its aide and interposition to redress the error of the Court below". Story in his work on the Constitution, (Vol.II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial. In the case of Nagendar Nath De v. Suresh Chandra De (59 I A. 283) the question as to what amounted to 'an appeal' under Article 182(2) of the Limitation Act arose. The following observations of their Lordships of the Judicial Committee in that case are both suggestive and significant: "There is no definition of 'appeal' in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a Subordinate Court, is an 'appeal' within the ordinary acceptation of the term, and that it is no less an appeal becuase it is irregular or incompetent". The view also finds support from the observation of the Judicial Committee in Raja ofRamnad v. Kamid Rowtlien and others (55 LA. 74). Their Lordships while referring to civil revision petition observed: "From the judgment and appeal in the form appropriate to such a case from the Munsifs Court i.e. a Civil Revision petition was referred to the High Court of Madras". From the above it is clear that the remedy which has been given to the aggrieved party by way of revision does not differ in essence from a right of appeal. It is true that under the Code of Civil Procedure a distinction has been made between a 'revision petition' and 'an appeal'. Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here we are dealing with a revision petition which had been filed under a special Act, namely Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure. In this Act, before the amendment of 1962, there was no provision for appeal. The only remedy available to an aggrieved party against the order of Rent Controller was to file a petition before the Chief Judge of the Small Causes Court, Karachi to whom the power of revision had been delegated by the Central Government". 8. One distinguishing feature of that case is that there, a right to prefer an application to the Central Government within thirty days was provided in the statute which was taken to be akin to a right of appeal. More relevant is the decision of the Indian Supreme Court on the point in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat (AIR 1970 S.C. 1) where the suo motu revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure was considered in the following words:- "Now when the aid of the High Court is invoked on the revisional side it is done because it is a Superior Court and it can interfere for the purpose of rectifying the error of the Cout below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal". 9. There are two other reasons why an extended and a beneficial interpretation should be given. The first of these is that as held mAdnan Afzal v. Capt. Slier Afzal (PLD 1969 S.C. 187), where procedure and formus are altered and the alteration relates substantially to procedure, the pending matters also get affected. The Court had observed in this case as hereunder:- "It is obvious that matters relating to the remedy, the mode of trial, the manner of taking eivdence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate, retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconveneince or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively Loking at the provisions as whole we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication". 10. We find that the procedure of the trial has been made more formal, regular and orderly and in forums which are better equiped with their knowledge and training. In addition, the other reason for giving an extended meaning is the intention of the legislature itself. Prior to the promulgation of the Regulation, substantive law governing the decision of Council of Elders was, custom and usage which was not contrary to good conscious or public policy. (Paragraph 9 of the F.C.R.). In the Regulation, the substantive law has been changed to Shariat in the following words:- "2. Adjudication of civil disputes according to Shariat.~(l) Notwithstanding anything to the contrary contained in any law for the time being in force or any custom or usage, all disputes of a civil nature, where the parties are Muslims, shall be decided in accordance with Muslim (Shariat) Law;Provided that nothing in this subsection shall apply to cases by or against the Federal Government or a Provincial Government or a Local Authority or a Public Corporation or a public servant acting in the discharge of his duty. (2) If all the parties to a dispute of a civil nature any of whom is a non- Muslim agree to the dispute being adjudicated upon under this Regulation, such dispute shall, as far as practicable, be adjudicated upon accordingly". 11. Paragraph 7 of the Regulation definitely gives the impression that the Regulation was to have effect on the pending suits and appeals and to that extent it was retroactive. The only test laid down for transfer was as to whether the dispute be triable under the Regulation and if it was then it had to go to the Court competent to try it irrespective of the fact in which court it was pending. Therefore, even appeals have to go back to the Court of Qazi for trial in accordance with Shariah and not to be transferred in the appellate jurisdiction of Majalis-e-Shura for disposal according to the law in force at the time the proceedings were instituted. To that extent, the express language of Paragraph 7 of the Regulation makes the provisions of the Regulation applicable in the areas to which and when it is extended retroactive over all proceedings pending before any Tribunal, Court or District Court. 12. In View of the reasons given for holding that appeal for the purposes of Paragraph 7 includes the Revision preferred by a party invoking the power of the Commissioner under Paragraph 48 of the F.C.R. and pending suits and appeals before any District Court or a civil court subordinate thereto, or any tribunal, I the nature of n appeal, would be liable to be transferred to the Court of Qazi for trial in accordance with the injunctions of Shariat. The fact that the appellant had instituted the Revision in the Court of Commissioner cannot stand in the way of such a transfer because at the time when he instituted the proceedings, that was the only remedy which could ossibly e invoked by him. 13. In the cir umstances, this appeal is allowed. The judgment of the High Court is set aside. The Constitution Petition filed by the appellant is allowed in terms that the judgment of the Deputy Commissioner given on the recommendations of the Council of Elders and the decision of the Commissioner in Revision are declared to be without lawful authority. In view of Paragraph 7 of the Regulation, the proceedings shall stand transferred to the Court of Qazi having territorial jurisdiction in the matter who shall summon the parties and proceed in accordance with law. No order is made as to costs as the respondents have been proceeded ex-pane in the proceedings. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 327 [Appellate Jurisdiction] PLJ 1991 SC 327 [Appellate Jurisdiction] Present: dr. nasim hasan shah, shafiur ragman and abdul qadeer chaudhry JJ. SULTAN KHAN-Appellant versus SHER KHAN and others-Respondents Criminal Appeal No.62 of 1985, dismissed on 24.2.1991 [Against judgment dated 15.5.1984 of Lahore High Court, Rawalpindi Bench, in Cr. Appeal No. 1199 of 1980 (M.R. No. 16 of 1981)]. Criminal Procedure Code, 1898 (V of 1898)-- —S.342--Murder-Offence of-Acquittal of accused-Challenge to~Whether inculpatory part of statement under Section 342 Cr.P.C could be used against accused while excluding exculpatory part thereof-Question of~Court cannot select out of statement passage which goes against accused-Accused has given version of incident and stated that he caused injury in right of private defence- Held: Exculpatory part of statement of accused cannot be excluded-Held further: Statement has to be taken into consideration as a whole and plea advanced by accused has to be accepted-Appeal dismissed. [P.330JA.B&C PLD 1952 FC 1, AIR 1931 Allahabad 1, AIR 1935 Lahore 671, PLD 1956 (WP) Lahore 1045, AIR 1978 SC 1183 and PLD 1961 (WP) Lahore 146 rel. Mr. M.Bilal, Senior Advocate, Supreme Court, Qazi Khalid Iqbal, Advocate Supreme Court, and Mr. Imtiaz Muhammad Khan AOR for Appellant. C/i. AkhtarAli, AOR for Respondents 1 to 3 Ch. M.Akram, Advocate, Supreme Court, for State. Date of hearing: 24.2.1991. judgment Abdul Qadeer Chaudhry, J.~This appeal by the leave of the Court is directed against the judgment dated 15.5.1984 passed by the Lahore High Court, to consider whether the inculpatory part of the statement of an accused under Section 342 Cr.P.C. could be used against him while excluding the exculpatory part thereof? 2. The facts, in brief, are that on 4.8.1979, the complainant Sultan Khan and his son Abdul Khaliq were grazing cattle in their field. At the same time, Sher Muhammad PW.9 Abdul Rehman deceased and Fateh Khan PW.8 were also grazing their cattle in a nearby field. At that time, Sher Khan and others came there with hatchets. They caused hatchet blows to Abdur Rehman and Fateh Khan. Ahmad Khan, Sher Khan and Muhammad Amir inflicted injuries respectively on the right ear, back of the neck and right hip of Abdur Rehman. Khuda Yar caused a blow on the head of Fateh Khan. Fateh Khan tried to run away but he was over-taken by Amir Muhammad who injured his right hand. All these injuries were caused with the wrong side of the hatchet. Abdur Rehman expired at the spot while Fateh Khan was taken to the hospital in injured condition. The report was lodged by Sultan Khan. After usual investigation, the accused were sent up for trial before the Court of Sessions. 3. At the trial, the prosecution examined 12 witnesses including the three eye-witnesses. The Sessions Judge dis-believed the three eye-witnesses, namely, Sultan Khan, Sher Muhammad and Fateh Khan but relied on motive as furnished by Sultan Khan, PW. It was observed that Sultan Khan and Sher Muhammad were not present. He also disbelieved Fateh Khan injured with regard to the injurie suffered by the deceased. He relied upon his statement in regard to himself and that too in respect of the first injury received by him at the hands of Khuda Yar. According to the learned Sessions Judge, he became unconscious after receiving the first injury. He dis-believed the recovery of weapons of offence. He found Sher Khan guilty of the charge as his participation was proved by his own admission. He convicted Sher Khan under Section 302 P.P.C. and sentenced him to death, fine of Rs.5,000/- or in default to undergo two years' R.I., and Khuda Yar under Section 326 P.P.C. to three years' R.I. and fine of Rs.3,000/- or in default in the payment of fine, to suffer further R.I. for one year. Ahmad Khan, Muhammad Amir and Amir Muhammad were acquitted by means of judgment dated 19.10.1980. The High Court accepted the appeal of Sher Khan and he was acquitted of the charge. The appeal of Khuda Yar was dismissed as not pressed. The private revision filed against the acquittal of co-accused was dismissed. 4. Leave to appeal was granted by this Court against the acquittal of Sher Khan. The High Court disbelieved the motive. As regards the statement of the accused Sher Khan under Section 342 Cr.P.C, it held that his statement should be taken into consideration in its entirety. The evidence on record shows that PW.8 Fateh Khan injured had not implicated the respondent Sher Khan in the First Information Report. There is no reference of revolver or its use by Ahmad Khan, the acquitted accused. It was held by the learned Sessions Judge that Sultan was not present at the Wardat. Fateh Khan had not stated that Sher Khan had caused any injury to the deceased. Sher Muhammad PW was contradicted by Fateh Khan PW who stated that it was Ahmad Khan, the acquitted accused who had given blow at the neck of the deceased. The motive has been discarded by the High Court for cogent reasons. The motive alleged in this case is that about 10/12 years before the incident, there were consolidation proceedings of holding. The complainant was allotted the land of accused who had a grudge and wanted to dispossess the complainant party. Sultan Khan PW.7 had stated about the actual occurrence. He was disbelieved by the High Court and the trial Court. There is no material on record to suggest that during this period of 10/12 years any untoward incident had occurred between the parties. The complainant had admitted that at the time of consolidation proceedings, the land in which the occurrence took place was Banjar Qadeem. He also admitted that the entire land even at the time of the occurrence was Banjar Qadeem. Alter considering the statement of Sultan Khan, the High Court discarded he otive as a piece of evidence against the accused. There is no material .to displace this finding. Even otherwise, it cannot be imagined that the accused party had wailed for such a long time to take the revenge. There remains only the statement of the accused made under Section 342 Cr.P.C. The accusedrespondent in his statement under Section 342 Cr.P.C. stated as follows:- "Two days prior to the occurrence a goat belonging to Alam Sher, maternal uncle of Abdur Rehman deceased, was stolen or lost. On the day of occurrence I was grazing my own goats in the land of Misri Khan situated near the place of occurrence where Abdur Rehman deceased was grazing his own cattle. On the basis of some information, Abdur Rehman (deed) blamed me for stealing the aforesaid goat belonging to his uncle. I denied the allegation and tried to assure him but he was not satisfied. During this controversy he abused me. When I asked him not to misbehave, he suddenly took out a revolver from his 'dab' and wanted to fire at me. I hurriedly caught hold of his hand in which he was holding the revolver and twisted it. During the struggle the revolver went off from his hand and the bullet hit him. I receded back and apprehending danger to my life, gave him two 'danda' blows as a result of which he fell down. I stood nearby. After 10/15 minutes Fateh Khan PW came and seeing Abdur Rehman lying injured, gave me abuse. He was armed with a hatchet and aimed blow on me. I receded back and it did not hit me. With the same 'danda' 1 gave two blows to him as well. He was still resting his body on the hatchet which he was holding like a stick, when I ran away. None else excepting myself, Abdur Rehman and Fateh Khan, who came there 10/15 minutes later, was present there nor any one else saw the occurrence. Fateh Khan PW had not seen me giving blow to Abdur Rehman". 6. After excluding the entire prosecution evidence against the accused, the question (that) calls for determination is whether the statement of the accused is to be accepted as a ole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the inculpatory statement. There is no doubt that the statement of an accused recorded under S.342, Cr.P.C. may be taken inlo consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement ust e accepted or rejected as a whole. The Federal Court in Rahim Bakhsh v. Crown (PLD 1952 F.C. 1) has observed that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken into consideration in its entirety". The statement of an accused should be taken into consideration in its entirely and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved lo be false may be excluded. [See Balmakund v. Emperor (AIR 1931 Allahabad 1): Slier Citl v. Emperor (AIR 1935 Lahore 671); Muzaffar Khan v. Vie Stale (PLD 1956 (W.P.) Lahore 1045); Mohan Lai v. Ajct-l Singfi (AIR 1978 S.C. 1183) and Clntlam Muhammad v. The State (PLD 1961 (W.P.) Lah. 146)]. 7. In the present case, the accused in his statement under S.342 Cr.P.C. has given his version of the incident and staled that he had caused injury by means of blunt weapon in exercise of his right of private defence. There is no other circumstance direct or indirect connecting the accused with the commission of the offence. An such, the exculpatory part of the statement of the accused cannot be excluded. The statement has to be taken into consideration as a whole and the plea advanced by ihe accused had to be accepted. S. The acquittal of the accused-respondent is based on correct appreciation of facts and law. It does not require any interference by this Court. The appeal is acc rdingly dismissed. The bail bonds of respondent No. I shall stand discharged. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SG 331 PLJ 1991 SG 331 [Appellate Jurisdiction] Present: dr. nasim hasan shah, shafiur rahman and abdul qadeer CHAUDIIRI JJ. Haji NOORWAR JAN--Appellant versus SENIOR MEMBER, BOARD OF REVENUE, NWFP PESHAWAR , and 4 others-Respondents Civil Appeals Nos. 10 of 1986, 458 of 1987 and 28 of 1988, decided on 4.3.1991. [From judgment of Peshawar High Court, dated 2.12.1985, passed in W.P. No.280 of 1983, and from judgment of Lahore High Court, Multan Bench, dated 28.10.1987, passed in W.P. Nos. 1181 and 744 of 1986 respectively]. Lambardar— — Lanibardar--Appoinlmcnt of~Procedure for-In first appeal, Commissioner was under a mistaken impression that it was not a case of creation of Lambardari but of revival of Lambardari which had been put in abeyance—In second appeal, Member, Board of Revenue has laid down a broad proposition of law that no right of primogeniture would be available to respondent since his father was removed from office-It amounts to re-writing of rule-On third appeal, by making observation that "in case of minor, choice has to be made from amongst other eligible candidates", entire principle of primogeniture has been ignored-Held: Board of Revenue being at apex of revenue heirarchy, is charged with statutory duty of interpreting law and any error on its part must be corrected in Constitutional jurisdiction-Civil Appeal No.10 of 1986 dismissed and other two appeals remanded for fresh decision. [P.336,337&338]A,B ) C,D&E PLD 1973 SC 24 rel. Mr. Abdul Hakim Kundi, Advocate, Supreme Court, and Mr. Jan Muhammad KJtan, AOR (absent) for Appellant (in CA 10/86). Ch. Muhammad Ashraf Wallah, Advocate, Supreme Court, and Mr. Mahmood A. Qureshi, AOR (absent) for Appellants (in CA. 458/87 and 28/88). Nemo for Respondents 1 & 4 (in CA. 10/86). Mian Shakirullah Jan, AOR (absent) for Respondent No.5 (in C.A. 10/86). Respondent No.l (in C.A. 458/87) and Nos. 1,2,3,5 and 6 (in CA. 28/88): Exparte. Ch. Mehdi KJian Mehtab, AOR (absent) for Respondent No.2 (in CA. 458/87). Mr. Muhammad Akram Sheikh, Advocate, Supreme Court, and Ch. Qamantddin Klian, Meo, AOR (absent) for Repondent No.4 (in CA. 28/88. Date of-hearing: 4.3.1991. judgment Shafi-ur-Rehman, J.--These three appeals raise a common question of law, namely, the powers of the High Court while exercising constitutional jurisdiction under Article 199 of the Constitution to interfere in the appointment of Lamhardars. 2. In Civil Appeal No. 10 of 1986, the facts are that till the year 1922, there were four Lambardars in village Doaba, Tehsil Hangu, District Kohat, the village having been divided into four Kandis. In 1922, the Lambardari of one of Kandis of Yousaf Khel was abolished with the sanction of the Commissioner and merged with that of adjoining Kandi - Khara Khel. Arsala Khan, the grandfather of Habib Khan/the writ petitioner, became thereby the Lambardar of Kandi Yousaf Khel as well. Arsala Khan was succeeded by Muzaffar Khan and Muzaffar Khan by Habib Khan. The rule of hereditary succession was observed. In the year 1979, the appellant Haji Noorwar Jan of Kandi Yousaf Khel applied for recreation of the separate Lambardari of Kandi Yousaf Khel. The statements of the villagers were recorded. The matter was sent up to the ommissioner for permitting the creation of the post of a Lambardar for Kandi Yousaf Khel. The Commissioner, somehow was of the view that it was not a case of reation of a new post of Lambardar but of revival of an existing post which was kept in abeyance or temporarily merged with that of Kandi Khara Khel. The atter as again examined in the Collector's Office and the view taken by the subordinates of Collector was that as the abolition had taken place with the permission of the Commissioner, it was a case of creation of a post and not revival of a post already existing. It was suggested that reference be made again to the Commissioner. The Collector, however, thought otherwise and acting on the suggestion of the Commissioner, proceeded to deal with the case as if it was a revival of the lambardari already in existence and made the appointment of the appellant on 20.4.1980. 3. Against this order, an appeal was filed and also a review application before the Collector. While the appeal was pending, the Collector reviewed his own order appointing the appellant as Lambardar and set it aside on 15.3.1981. The appellant appealed to the Commissioner and succeeded on the ground that during the pendency of an appeal, review could not be entertained and decided. The Board of Revenue, by its order dated 20.2.1982 upheld the legal view taken by the Commissioner. A Constitution Petition was in the first instance filed by Malik -' Faqir Khan who was then acting as a. Sarbrah Lambardar for Habib Khan. He ultimately withdrew that Constitution Petition on 29.8.1983 with permission to refile. It was Habib Khan who filed the Writ Petition and succeeded in the High Court on the short ground that he was entitled to hearing before the appointment of the appellant as Lambardar which had the effect of curtailing the area of Habib Khan respondent No.5/writ petitioner. The impugned order of the High Court on the subject is brief one and is reproduced hereunder:- "Amir Sher Ali, District Qannungo, Kohat stated that at the time of appointment of respondent No.5, no notice whatsoever was issued to the Petitioner and the file does not show that the Petitioner was aware of the procedure adopted by the Revenue Authorities on the appointment of the Lambardar. In view of the above this Petition is accepted and the authorities concerned are directed to act strictly in accordance with Law after due advertisement of the post in the local press" 4. In Civil Appeal No.458 of 1987, one Sohanra was the permanent Lamb'ardar of village Wahi Qa/i Abdul Khair, Tehsil Lodhran, District Multan. He transferred his entire land in favour of his sons, thereby himself becoming landless. Patwari submitted a report dated 18.7.1982 that on the ground of becoming landless, he was liable to be removed from Lambardari. The Qanungo in his report dated 10.8.1982 observed that apart from being landless, he was alsoold and a frequent defaulter. The matter went to the Collector, who by an order dated 11.10.1982 ordered the removal of Sohanra from lambardari and that order was not contested. However, thereafter, the question of appointment of his successor was taken up and the contest ultimately centred round Younis, the appellant, and Elahi Bakhsh, respondent No.2/the eldest son of Sohanra, theremoved lambardar. The Assistant Commissioner/Collector took it to be an appointment under Rule 17 of the West Pakistan Land Revenue Rules, 1968 and decided it as hereunden- This case is being basically dealt with under Rule 17, Land Revenue Rules, 1968. While Ilahi Bakhsh has a claim on the hereditary grounds, the other factors tilt the balance in favour of unus, specially so because overwhelming majority of land owners belong to his caste and clan. Under these circumstances, I feel that Muhammad Yunus is the most ; suitable candidate for the post of Lambardari in this Patti. He is accordingly appointed under Rule 17 of Land Revenue Rules, 1968". 5. The matter was taken up in appeal to the Commissioner and he on the question of law reversed the order of the Assistant Commissioner/Collector by observing as hcreunder:- have heard the arguments advanced by both the parties and seen the record of the case. Removal-was not under any offence or inefficiencyHe was removed because he had become landless. It is not a disqualification and heirs cannot be ignored. Rule 19(2) will apply in thicase. The appellant is the eldest son of the lambardai. No disqualification is attached to him The appeal is accepted and the impugned order is set aside. Under Rule 19(2) the eldest son of the deceased lambardar Ilahi Bakhsh is appointed as lambardar". 6. he matter was then taken to the Board of Revenue which on the legal plane took the same view as was taken by the Assistant Commissioner/Collector, by observing as hereunder:- "On this issue, I would accept the contention of the learned counsel for the appellant that no rights of primogeniture would be available to the respondent since his father was removed from the office. It has been my consistent view that when an incumbent is removed from office of lambardar, he becomes Junctus officio and has no primogeniture right to pass though his heir successor would not be ordinarily debarred from contesting the office. I have, therefore, to disagree with the learned Commissioner that right of primogeniture would devolve on the respondent. Since the appellant Muhammad Younus has better merit, as held by the Collector, I would set aside the orders of the learned Commissioner and restore the orders of the AC/Collector appointing Muhammad Younus as successor Lambardar". 7. The mailer was ultimately brought to the High Court where a learned Judge disposed it of. by observing as hcreunden- "The discretion exercisable within the frame-work of statutory rules in the appointment of the Lambardar docs not operate in bar of constitutional jurisdiction. If the law and the rules are shown to have not been properly construed and applied and if a tribunal makes an error of law in deciding a matter the same can be quashed under writ jurisdiction being in excess of law. This view finds strong support from judgment reported as "P.L.D. 1987 S.C'. 447". In view of my above findings that the West Pakistan Land Revenue Rules, 1968 have hot been legally construed and correctly applied, the case law relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of this case and the said judgments are clearly distinguishable from the facts of this case. The learned Judge in the High Court sel aside the order of the learned Member, Board of Revenue dated 27.7.1986 and restored the Order passed by the Commissioner dated 3.3.1986. 8. In Civil Appeal No.28 of 1988, a permanent Lambardar of Chak No.l19/l3AL, Tehsil Chichawatni, District Sahiwal died on 19.11.1983. The appointment of his successor was taken up. The appellant, who had rendered meritorious services in the Army preferred a claim against the minor son of the deceased Lambardar, before the Assistant Commissioner/Collector. The Assistant Commissioner/Collector vide order dated 19.8.1984 appointed the appellant as Lambardar. On appeal by the minor, the Commissioner set aside the order of Assistant Commissioner/Collector appointing the appellant as Lambardar and instead appointed the minor observing as hereunder:- "The estate is chiefly owned by the private owners and the deceased was a permanent lambardar. This case will be decided under Rule 19(2). Under this rule the law of primogeniture will apply. The line of descendant has to be exhausted before an outsider can be considered. The appellant is the eldest son of the deceased lambardar. He has enough holding in the estate to cover ZAR-E-BHRAT. The only disqualification attached to him is his age. He is a minor. Under the Rules being a minor is no disqualification. A number of case law can be cited where minor was appointed as lambardar. Under the instructions, a Sarbrah can be appointed in case lambardar cannot perform his duties. Such a contingency is meant for situations like this. The appellant has an over-riding claim as successor to the deceased lambardar. Appeal is. therefore, accepted. The impugned order is set aside and the appellant is appointed as lambardar in place of his deceased father Wajid Ali Khan". 9. The matter was taken to the Board of Revenue who took the following view of the malter:- "On this point, 1 would, follow the ruling of the Lahore High Court that the preference on ground of primogeniture is only directory and cannot operate to the exclusion of other considerations. Since the purpose of appointing a lambardar is to secure the services of the best available candidate to discharge the mandatory functions and against the landowners, obviously such purpose would not be fulfilled by appointing a minor who will have to operate through a Sarbrah which may npt be as qualified as other available candidates. The conclusion which follows is that in case of a minor, the choice has to be made from amongst other eligible candidates". 10. A Review Petition was filed by the minor which was disposed of by the same learned Member, Board of Revenue on 7.5.1986 upholding the previous decision by bserving as hereunder:- "I have considered the arguments addressed by the learned counsel for the petitioner but would find them without any substance. As regards the contention that the petitioner had no holding in the village, the learned counsel has not tendered any proof in support thereof. On the point that a case was registered against the respondent, the learned counsel concedes that there was no conviction. Concerning the issue of primogeniture, suffice to observe that this is adequately discussed in the impugned judgment and the orders of this court cannot now be re­ opened on this point in review. This review petition is accordingly dismissed in limine". 11. It was thereafter that the Constitutional jurisdiction of the High Court was invoked in the mailer by the minor. The learned Judge in the High Court held that rule l l

of the Land Revenue Rules governed the appointment, and granted relief in the following words:- "In view of the foregoing discussion I hold that the petitioner has a superior entitlement for appointment as Lambardar. Accordingly I accept the writ petition and declare the impugned order dated 7.5.1986 passed by the Member, Board of Revenue to be without lawful authority and of no legal effect which is hereby quashed and that of the Commissioner dated 3.11.1985 is restored, which conforms to the provisions of rule 19 ibid. There will, however, be no order as to costs". 12. In all these appeals, the leave granting Order as well as the arguments addressed by the learned counsel representing the appellants point out to a number of decisions of this Court where it has been held that the appointment of a Lambardar is purely an administrative function, that no particular person has a vested right to be appointed as a Lambardar, that the selection cannot be made by the courts in exercise of their constitutional jurisdiction nor can the discharge of such administrative duties hampered or impeaded by Courts' intervention. In the context reference has been made to Abdul Wahid v the Member, Board of Revenue. Punjab, Lahore and another (1971 S.C.M.R. 719), Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (1972 S.C.M.R. 253), Muhammad Warravam v. Member, Board of Revenue, Punjab, Lahore and 3 others (1972 S.C.M.R. 354), Ghulam Hussain v. Ghulam Muhammad and another (1976 S.C.M.R. 75) and Sltaraf Din v. Qazi Abdul Jalil and another (1986 S.C.M.R. 1368). On the strength of these decisions it is contended that the intervention by the High Court on technical grounds of the applicability of the Rules or their interpretation when the Rules themselves were directory in nature could not be sustained. 13. In reply to these contentions of the appellants, the learned counsel representing the respondent has contended that the right of a citizen to be governed by law has been ensured. Even in discretionary and administrative fields the law and its purposes had to be kept in view. The administrative discretion and the ower does not extend to empower the authorities to rewrite the law of their own choice, to understand it the way they like and to lay down the law for subordinates and ose in the lower hierarchy in an arbitrary manner and on an erroneous understanding of the law. For this, reference has been made to Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 S.C. 447), and Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 S.C. 14), where the amplitude of discretionary and administrative powers had been put under a restraint by nd large indicated by the requirement of the rule of aw In examining the questions in issue in these appeals, one has to necessarily identify the error of law pparent on the face of the record, if any, and thereafter to determine its nature and effect. In the first appeal (Civil Appeal No. 10/1986), the fact that Lambardari of Kandi Yousaf Khel was abolished, and abolished with the sanction of the Commissioner is established from the following note recorded by Revenue E.A.C. Kohat:- "While addressing the Commissioner, for according sanction to create the post of Lambardar, it has been mentioned that at the time of abolition of post of Lambardari under reference Commissioner (the then Rev: Commissioner) sanction was sought and the confirmation of the order passed by the Collector on the file was obtained". 15. Rule 16 of the Land Revenue Rules provides as hcreunder:- "16. Number of headmen.--A. sufficient number of headmen shall be appointed to every estate, and this number when once fixed shall not be increased except by or under the order of the Commissioner". 16. The Commissioner was under a mistaken impression that it was not a case o creation of a lambanlari but of revival of lambardari which had been put in beyance. Had he been aware of the fact that it was a case of creation of Itimbarduri notices would have issued and an enquiry would have taken place with regard to I he need of it when nothing on the record shows that any requirement of revenue administration as such called for the recreation of an abolished lambardari. 1 here was not only, therefore, a legal error but jurisdictional one in filling up a vacancy which did not exist and appointing to a post which was not created y the competent authority. 17. In the second appeal (Civil Appeal No.458/87), a broad proposition of law has been laid down by the learned Member, Board of Revenue in his impugned order and it is that "no rights of primogeniture would be available to the respondent since his father was removed from the office". It goes on to say that it has been his consistent practice. Such a broad proposition, as was laid down by the learned Member, Board of Revenue for a precedent for his subordinates makes non-existent and irrelevant the formal rules contained in clause (b) of subrule (2) of rule 19 of the Land Revenue Rules. It amounts to re-writing the rule. Confronted with this conflict between the formally framed rules and the judgment of the Member, Board of Revenue in individual cases, completely negating it, the subordinates in the hierarchy would be totally confused. In this case also the error is of law and is apparent on the face of the record. 18. Similarly in the third case (Civil Appeal No.28 of 1988), by making the broad observation that "in case of a minor, the choice has to be made from amongst other eligible -candidates", the entire principle of primogeniture has been ignored and the rule applicable over-ridden and that too while deciding an individual case. 19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the. law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiclion. If it is left- uncorrected, it will result in subverting the rule of law. It is in this context that Ammon Rubinstein in Chapter V of his book 'Jurisdiction and Illegality' under the heading "Supervision over 'the Observance of the law in the Course of the Exercise of Jurisdiction'" observes as hereunder:- "Certiorari is a writ which 'extends to the whole of the record'. As long as it is supportable by the record, any defect, irregularity, or error which, in the opinion of the supervisory court is substantial, will enable the court to issue certiorari. Where the error is not substantial, the courts may feel less inclined to intervene. Their reluctance can be expressed either by invoking the discretionary nature of the remedy, by treating an error of law as an error of fact or by limiting the meaning of 'record'. These same expedients may be resorted to where the decision sought to be quashed is appealable under statutory provisions. Nevertheless, where the court wills it, it has authority to correct 'all irregularities in the proceedings of inferior tribunals'. In exercising this authority the Court is only circumscribed by the existence and contents of a record. What is generally meant by recurring assertions that certiorari cannot serve as means of appellate proceedings is that the supervisory Court cannot (/) go behind the record; (/'/) vary or alter the decision impugned (it can only affirm or quash it);(/'/"/) admit extrinsic evidence or hear any further evidence unless relating to a jurisdictional matter; (iv) weigh the evidence or otherwise interfere with findings of fact.Within these limits, the supervisory court may exercise a semiappellate power of review which is aimed at remedying errors committed within jurisdiction. It is this intra-jurisdictional review which renders certiorari the useful remedy it is: 'It must be apparent to anyone that if the superior court could only examine into the right of the inferior one to enter upon an inquiry, without reference to the manner in which that inquiry is conducted, this remedy would be of small account'. It was this recognition which led, in some American States, to a better appreciation of the nature of certiorari; in the State of New York it had the effect of turning certiorari into an almost complete means Jf appeal". 20. The above observations have to be read with one qualification pointed out by this Court in Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 S.C. 24), in-the following words:- "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is therefore limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion" that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted". 21. In view of the discussion above, Civil Appeal No.10 of 1986 is dismissed, but the other two appeals (Civil Appeals No.458/1987 and 28/1988) are partly allowed in so far as after declaring the order of Member, Board of Revenue to be illegal and without lawful authority the High Court has blessed with finality the order of the Commissioner, which it could not do. As pointed out, the selection of the lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex. After the error of law in the judgment of the Member, Board of Revenue has been co r rected, it will be for the Board of Revenue to decide afresh the revisions brought before it in accordance with the law. Hence, these two appeals (CA. No.458/87 and 28/88) are remanded to the Board of Revenue for decision afresh. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 SC 339 PLJ 1991 SC 339 [Appellate Jurisdiction] Present: dr. nasim hasan shan, SHAFiuR rahman and abdul qadeer chaudhryjj. GHULAM MUHAMMAD and 3 others-Petitioners versus BAKHSH-Respondent Civil Review Petitions Nos. 80, 81 and 99 of 1990, dismissed on 10.3.1991 [For review of order/judgment dated 19.6.1990, passed in Civil Appeal Nos. 365 of 1985, 20 of 1983 and 45 of 1985 respectively]. Sinker— —Pre-emption cases-Principle of sinker—Whether applicable hi case where divisibility of sale is evidenced by separate shares of vendees but not price thereof-Question of-Held: Law consistently laid down by Supreme Court in approval of practice of Courts in Punjab, has been that unless separate amount determined at time of sale in respect of each separate share is available, sale is not considered divisible for purposes of avoiding pre-emptive claim. [Pp.339&340]A&B AIR 1928 Lahore 784, PLD 1968 SC 140, PLJ 1980 SC 458,1982 SCMR 189, 1982 SCMR 282 and PLD 1989 SC 474=PU 1989 SC 382 rel. Mr. Q.M. Saleem, Senior Advocate, Supreme Court, and Mr. Muhammad Aslam Chaiidltry, AOR (absent) for Petitioners (in CRP 80/90); Maulvi Sirajul Haq, Senior Advocate Supreme Court, and Mr. Ejaz Muhammad Klian, AOR for Petitioners (in CRP 81/90). KJi. Muhammad Yusuf Saraf, Advocate, Supreme Court, and Mr. Ejaz Muhammad Kftan, AOR for Petitioners (in CRP 99/90). Nemo for Respondents (in all Review Petitions). Date of hearing: 5.3.1991. judgment Shafi-ur-Rehman, J.«These three review petitions arise out of a consolidated judgment dated 19.6.1990 disposing of a number of appeals dealing with a question of law namely, whether the principle of sinker applies in cases where the divisibility of sale is evidenced by separate shares of the vendees but not the price thereof. 2. In Civil Review Petition No.80/1990, the share of each vendee was specified by mentioning the area purchased by each, the consideration for the whole remaining intact. Mr.Q.M.Saleem, Senior Advocate, the. lamed counsel representing the petitioners, seeks on the strength of section 45 of the Transfer of Property Act, a proportionate division of the amount of consideration and in this manner, make the sale in favour of the so called strangers divisible, distinct and capable of being excluded for the purposes of pre-emptive claim. 3. In QV/7 Review Petition No.81/1990, Maulvi Sirajul Haq, Senior Advocate, the learned counsel for the petitioners, relies not only on the separation of ares but also the fact that the payment of the two groups of vendees was made by different persons representing each group though whatever the amount was paid by each group was not mentioned. He also wants to infer, without reference to the law that it must be proportionate to the share purchased by each. In this manner, he also seeks the same relief as is being sought by Mr.Q.M.Saleem, Advocate. 4. In Civil Review Petition No.99/1990, Mr.Muhammad Yusuf Saraf, Advocate, the learned counsel for the petitioners, draws our attention to his plea, which, according to him, remained unattended, that by protection of a part of the property from the pre-emptive claim, the status of the vendee gets improved ipso facto thereby destroying the entire pre-emptive claim of the suiter. 5. So far as Civil Review Petitions No.80 and 81 of 1990 are concerned, the law consistently laid down by this Court in approval of the practice of the courts in Punjab has been that unless the separate amount determined at the time of sale in B respect of each separate share is available, the sale is not considered divisible f r the purposes of avoiding pre-emptive claim. Nothing is to be left to an inference, to an ssumption or to general principles of Transfer of Property Act, and this was pointed out in Tota Ram and others v. Kundan and others (AIR 1928 Lahore 784) at page 785, in the following words:- "Our attention has been invited to a large number of rulings bearing upon the vexed question of whether the mere specification in the sale deed of the shares of the vendees in the property sold is sufficient to make the transaction a divisible one, or whether it is necessary that there should be a specification of not only the shares to be taken by the vendees, but also of the amounts to be respectively paid by them. The Allahabad High Court has taken the view that a specification of the share of each vendee in the property sold makes the transaction a divisible one, but this rule has not been adopted by the Punjab Chief Court". 6. This view received recognition of the Supreme Court in Abdullah and 3 other versus Abdul karim and others (PLD 1968 S.C.140) in the following words:- "Learned counsel appearing for the appellants in the High Court accepted the proposition that the sale would be divisible only if:- (1) the shares of the different vendees were specified and (2) the different vendees had contributed proportionately towards the sale price". 7. It was clearly laid down as the law of the land in Muhammad Klian versusAbdul Klialiq Khan (PLJ 1980 S.C.458) in the following words:- "...to find out whether uch a sale is divisible, the Court is to see two things viz (i) whether the share of each vendee is specified and (ii) whether the proportion of price contributed or paid by each endee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale " 8. Again, in the case of Wazir Muhainmad etc. versus Abdul Aziz and another (1982 S.C.M.R. 189) the same law was repeated in the following words:- "The superiority of the plaintiffs claim is disputed on the assumption that the sale was divisible, distinct and could be protected in the case of one of the vendees. This is said on the ground that out of 29 shares of Suleman sold 13 were to be shared equally by Wazir Muhammad and Nazir while 16 were of Ghulam Rasool, the sale consideration being 50,000. Such a sale was not divisible. The finding of fact concurrently recorded by all the Courts does not require interference". Similar was the recognition in Mangta versus Lab Din and others (1982 S.C.M.R.282) and Muhammad Ismail and others versus Karamat AH (PLD 1989 S.C.474=PLJ 1989 SC 382). Hence, no case is made out on this ground in these two Review Petitions (C.R.P.No.80 and 81 of 1990). 9. In the third review Petition (Civil Review Petition 99/1990), improvement in status of the vendee is claimed by the very sale which is the subject-matter f pre-emption claim succeeding partly. This legal point has also been answered and the answer has been followed without exception. For example in Ahmad KJian versus attarDin (PLD 1981 S.C. 148) the answer on the question of contiguity was given as hereunder:- "It is clear that the right vesting in the pre-emptor to claim a certain portion of the property on the ground of vicinage cannot be defeated retrospectively by the judgment of the Court to the effect that the right did not extend to certain other portion of the porperty, which could thus be allowed to remain with the vendee. The High Court seems to be right in taking the view that the decision of the Court in such a case leaving a part of the property with the vendee on the ground that the pre-emptor's right did not extend to it, should not be allowed to operate retrospectively so as to defeat the right of pre-emption existing on the date of the institution of the suit as well as at the time of the sale". In the cae of Gulzada versus Muhammad Usman through legal heirs and 6 others (PLD 1990 S.C.465), this proposition was affirmed. Hence, in view of the law laid down, there is no merit in this Civil Review Petition (C.R.P.No.99/1990) as well. 10. All the three review Petitions are hereby dismissed. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1991 SC 341 [Appellate Jurisdiction] PLJ 1991 SC 341 [Appellate Jurisdiction] Present: dr. nasim hasan shah, saad saood jan and rustan s.sidhwa, JJ. NUSRAT-Appellant . versus ZULFIQAR and others-Respondents Criminal Appeals Nos. 31 and 32 of 1984, partly accepted on 14.11.1990. [From judgment of Lahore High Court, dated 15.2.1983, passed in M.R. No.24 of 1982, Criminal Appeal No.24 of 1981 and Cr. Revision No. 1 of 1981]. (i) Sudden fight-- —Murder-Offence of~Conviction for-Challenge to-It is clear that deceased was first person to injure accused party and from nature of evidence and injuries on persons injured on both sides, case appears to be one of sudden fight where both parties having come across each other by chance, got involved in a fight over some squabble or quarrel, where both parties assaulted and injured each other with whatever weapons they had or could lay there hands on-Held: Convictions and sentences of appellants under Sections 302/34 and 323/34 PPC are not legally correct and deserve to be set aside. [P.346]B&C (ii) Sudden fight-- —Sudden fight and free fight-Distinction between-Sudden fight is that which enerally arises out of chance encounter, squabble or quarrel, where passions having been gnited, slightest blow or provocation results into a fight-Basic feature of a sudden fight is initial absence of pre-meditation to cause death or injuries-Absence of ommon ntention or common object is one of distinguishing features of a sudden fight-Free fight is where two opposing parties, after having made preparations to meet force ith force, go out with full planning is have a pitched battle-Held: This case is definitely not one of free fight. [P345]A PLJ1980Cr.C41n?/. Mr. A.Shakoor, Advocate, Supreme Court and Ch. Afditar All, AOR for appellant (in Cr.A. 31 of 1984). Mr. Nemat Khan, Advocate, Supreme Court, and Ch. Mehdi Khan Mehtab, AOR for respondents 1 to 3 (in CrA. 31/84) and for appellants (in CrA. 32/84). Mr. Gluilam Ahmad, Advocate, Supreme Court for State. Dates of hearing: 22 and 23.10.1990. judgment Rustan S. Sidhwa, J.~This judgment will dispose of Criminal Appeal No.32/1984 preferred by.Zulfiqar and Allah Ditta appellants (hereinafter referred to as "the appellants") against the judgment of a Division Bench of the Lahore High Court, Multan Bench, dated 15.2.1983 maintaining their convictions under sections 302/34 PPC, but altering their sentences to imprisonment for life under section 302/34 PPC and acquitting Shabbir accused by giving him the benefit of doubt and Criminal Appeal No. 31/1984 preferred by Nusrat appellant (hereinafter referred to as "the complainant") against the same judgment for the enhancement of the sentences of the appellants and 'for the conviction and sentence of Shabbir acquitted accused under sections 302/34 PPC and 323/34 PPC. 2. The occurrence took place on 12.12.1978 at 8.00 a.m. in a field situated in chak No.89/15-L in the area of police station Mian Channu. The FIR Ex PM waslodged by Nusrat PW8 the cousin of the deceased on the same day at 12.15 p.m. and was recorded by Muhammad Shafi SI/SHO, PW12. The distance between the place of occurrence and the police station is 25 miles. 3. The motive as alleged by the prosecution is -that the appellants and Shabbir acquitted accused suspected that Muhammad Nawaz deceased had illicit relations with their cousin namely Msf.Maryam. 4. The prosecution case is that at the eventful time, Muhammad Nawaz deceased, Nusrat PW8 arid Allah Ditta PW9 were present in Killa No.ll of rectangle No.48 owned by Nusrat PW8, when Allah Ditta accused armed with a chlntri, Zulfiqar accused armed with a hockey and Shabbir accused empty handed came there on bicycles, hich they threw on the road. Zulfiqar accused raised a lalkara to the effect that Muhammad Nawaz deceased would be taught a lesson for having illicit relations with Mtf.Maryam. At this, Muhammad Nawaz ran towards the west, followed by the accused who encircled him in killa No.15 of rectangle No.47 owned by Ahmed Janoo. Shabbir accused caught hold of the deceased and Zulfiqar accused gave a hockey blow on his head, followd by a chhuri blow on the back of right chest by Allah Ditta accused. As a result of these injuries, Muhammad Nawaz fell down and expired on the spot. When Allah Ditta PW9 tried to interfere, he too was injuried by Zulfiqar accused with his hockey. The occurrence was also witnessed by Farid (given up PW). It was further stated that the accused were also injured by Muhammad Nawaz deceased and Allah Ditta PW9 in their self-defence. After the occurrence, the accused ran away towards their dhari, leaving their bicycles on the spot. 5. On 13.12.1978 Dr. Shaukat Kanwal PW1 conducted the autopsy on the deadbody of Muhammad Nawaz deceased and found a lacerated wound 3V x 3/4" on the right side of the forehead and vertical stab wound 1" x 1/2" going into right chest cavity on the back of right chest. The blunt weapon injury had caused the fracture of the scalp. The stab wound was found to be sufficent to cause death in the ordinary course of nature. AH the injuries were anti-mortem. On the same day Dr.Shaukat Kanwal PW1 medically examined Allah Ditta accused and found a lacerated wound 1" x 1/2" x bone deep over the right eyebrow and an abrasion 1 3/4" x 3/4" on the left forearm, both of which simple injuries were found to have been inflicted within 24 hours. The same doctor also examined Zulfiqar accused the same day and found a lacerated wound 2V x 1/4" x bone deep on the left side of front of head and a bruise 7" x 5" on the lower left upper arm, both of which blunt weapon injuries were found to have been inflicted within 24 hours. The injury on the left upper arm was grievous. Shabbir accused was also examined the same day by the same doctor, who found a bruise 3" x 2" on the base of the right thumb and a bruise 3" x 1/4' on the lower left forearm, both of which simple blunt weapon injuries were found to have been inflicted within 24 hours. On the same day Dr.Muhammad Aslam Javed PW11 medically examined Allah Ditta PW9 and found a contused wound 2" x 1/4" x scalp deep on the middle of the head, hich simple blunt weapon injury was found to have been inflicted within 24-36 hours. 6. On 12.12.1978 Muhammad Shafi SI P.W12 recovered bicycles Ex P5 & P6 from the spot vide memos Ex PK & PL. On the same day he arrested Zulfiqar and Shabbir accused. Zulfiqar led to the recovery of hockey stick Ex P3, which was taken into possession vide memo Ex P4. On 13.12.1978 Allah Ditta accused was arrested. He led to the recovery of blood stained churn Ex P4, which was taken into possession vide memo Ex PN. 7. All the three accused in their statements under section 342 Cr.P.C. raised the plea of self-defence. Allah Ditta accused stated:- I and the other two co-accused were going to our shops at Addah Chhab. In the way the deceased along with her brother Haqnawaz and his cousin Yousaf who were all armed with dangs came out from a nearby field and not from Killa No.ll of square No.48. They all attacked us and injured us with their weapons. I picked up a small soti and used it in self-defence whereas Shabbir co-accused used his pen-knife taking it from his pocket in self-defence. We acted in the exercise of private defence of myself and in defence of other co-accused. In fact the deceased was bad character who had been teasing the women of the chak. He had teased Mst. Maryam on the previous evening and on that account Noor Din my brother had reprimanded him and given him beating. By way of revenge the following morning they attacked us. They had also snatched our cycles there. Zulifqar and Shabbir accused adopted the same version. The accused examined Noor Din in defence, who stated that prior to the occurrence there was exchange of some hot words between Mst. Maryam and Muhammad Nawaz deceased. On his inquiry Mst, Maryam told him that the deceased had teased her, whereas the deceased replied that he had simply cut a joke with her and that he gave a beating to the deceased on this account and that the deceased whilst leaving had threatened to avenge the insult. 8. The learned Judges of the High Court, keeping in juxta position the case of the prosecution and the defence, held that the evidence on the record and the s rrounding cirucmstances proved the case of the prosecution and they ccordingly convicted and sentenced Allah Ditta and Zulfiqar accused, as stated in para 1 above, and acquitted Shabbir accused. 9. Leave was granted to Nusrat complainant to consider whether the penalty of death given to Allah Ditta and Zulfiqar accused and the conviction of Shabbir accused by the learned trial Judge was not legally correct on the basis of the evidence on the record, and leave was granted to the appellants to consider whether their convictions and ntences were based on a proper appraisal of the evidence on the record. 10. On behalf of the appellants it is submitted that the case is one of free fight as both the parties duly armed fought with each other and that Zulfiqar appellant is therefore individually liable under section 325 P.P.C. for the grievous injury to the deceased and under section 323 PPC for the simple injury to Allah Ditta PW and Allah Ditta appellant is liable under section 304-1 P.P.C. for the fatal injury to the deceased and under section 325 P.P.C. for the simple injury to Allah Ditta PW. 11. On behalf of Nusrat complianant it is submitted that the case is not one of free fight, but even assuming it is so, the appellants and the acquitted accused would still e liable under section 302/34 P.P.C. and 323/34 P.P.C., as found by the learned trial Judge. It is further submitted that the acquittal of Shabbir is not justified in as much as section 34 P.P.C. was applicable and the said acquitted accused admitted his participation in the fight in his statement recorded under section 342 Cr.P.C. 12. The learned counsel for the State does not support both the appeals. 13. We have heard the arguments of the learned counsel for the appellants, the complainant and the State and have perused the record. The case is not of free fight, as urged by the learned counsel for the appellants. It is nobody's case that both the parties duly armed had come out to have a pitched battle, in the course of which they injured ch other. Even the appellants and the acquitted accused in their statements under section 342 Cr.P.C. refer to the complainant party as attacking them whilst they were going to their shops at Addah Chhab, during which occurrence in self-defence Allah Ditta appellant picked up a soti and Shabbir acquitted accused pulled out his pen-knife from his ocket in order to defend themselves. There is a world of a difference between a free fight and a sudden fight. Sudden fight is that which generally arises out of a chance ncounter squabble or quarrel, where passions having been ignited, the slightest blow or provocation results into a fight and both the parties assault or injure each other, with whatever weapons they have or can lay their hands on. The basic feature of a sudden fight is the initial absence of pre-meditation to cause death or injuries, due to the absence ; of time for reflection. The absence of common intention or common object is one of the distinguishing features of a sudden fight. However, a free fight is where two opposing parties after haying made preparations to meet force with force go out to face each other, with-full planning to have a pitched battle. The essential feature is that both the parties from the very start intend to and prepare themselves to fight, before going out to and actually having their pitched battle. The presence of common intention or common object is one of the distinguishing features of a free fight. Where both the opposing groups have the opportunity to have recourse to the protection of the public authorities, but resort to force, the members of both the groups and equally responsible for the total acts of their respective assembly. In this connection Mama v. State (PLJ 1980 Cr.C.41) may be referred, which appropriately explains the difference between a sudden fight and a free fight and the variable situations which arise in such cases. The case in hand is definitely not one of free fight and the arguments of the learned counsel for the appellants therefore have no merit and must be rejected. 14. Since the occurrence is admitted by the three accused the question that arises is whether, after placing in juxta position the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances, apart from any fair inferences which can be drawn therefrom, prove the prosecution case to the hilt or lead to the inference that the appellant's version is true or reasonably possible. On the side of the accused both the appellants and' the acquitted accused were injured and on the side of the complainant the deceased and Allah Ditta PW were injured. All the injuires on the accused's side were by blunt weapon and simple, excepting one on the left upper arm of Zulfiqar appellant that was found to be grievous. The two injuries on Muhammad Nawaz deceased were by blunt and sharp edged weapons and both were grievous. The injury on Allah Ditta PW was simple and by blunt weapon. According to the prosecution, Shabbir acquitted accused was the first person who caught Muhammad Nawaz deceased, whereafter Zulfiqar appellant gave a hockey blow to him on his right temple and Allah Ditta PW athhuri blow in his right chest. Nusrat PW8, however, in his examination-in-chief admits that Nawaz deceased in self-defence gave injury to Shabbir acquitted accused before he was over-powered and caught by him and that Allah Ditta PW whilst acting in self-defence gave injuries to Allah Ditta and Zulfiqar appellants. It is, therefore, clear that the deceased was the first person to injure the accused party and from the nature of the evidence and the injuries on the persons injured on both the sides, the case appears to be on&of sudden fight where both the parties having come across each other by chance, got involved in a fight over some squabble or quarrel, where both the parties assaulted and injured each other with whatever weapons they had or could lay. there hands on. In these circumstances, Zulfiqar appellant would be liable under section 323 P.P.C. for the blunt weapon injury on Allah Ditta PW and under section 325 P.P.C. for the blunt weapon injury on Nawaz deceased and Allah Ditta .appellant would be liable under section 304-1 P.P.C. for the fatal sharp edged weapon injury, on Nawaz deceased. Shabbir acquitted accused, according to the prosecution evidence, not having inflicted any injury to either the deceased or Allah Ditta PW would not be liable. In any case he was stated to be empty-handed. He is, therefore, not liable for any offence. The convictions and sentences of Zulfiqar and Allah Ditta appellants under sections 302/34 and 323/34 P.P.C. are therefore not legally correct and deserve to be set aside. 15. For the foregoing reasons, Criminal Appeal No.31/84 filed by Nusrat' complainant has no merit and is dimmissed. 16. Criminal Appeal No.32/84 filed by Zulfiqar and Allah Ditta appellants is partly accepted. Their convictions and sentences under sections 302/34 P.P.C. and 323/34 P.P.C. are set aside. Zulfiqar appellant is convicted under section 325 P.P.C. for the injury to, Nawaz deceased and under section 323 P.P.C. for the injury to Allah Ditta PW. He is sentenced under section 325 P.P.C. to seven years' R.I with a fine of Rs.5000/- or in default thereof to undergo further R.I. for a period of one year. Fine, if realized, shall be paid to the legal heirs of the deceased as compensation. He is sentenced under section 323 P.P.C. to six months' R.I. with a fine of Rs.500/- or in default thereof to undergo further R.I. for one month. Fine, if realized, shall be paid to Allah Ditta PW as compensation. Allah Ditta appellant is convicted under section 304-1 P.P.C. to ten years' R.I. with a fine of Rs.5000/- or in default thereof to undergo further R.I. for a period of one year. Fine, if realized, shall be paid to the legal heirs of Nawaz deceased as compensation. The sentences of Zulfiqar appellant shall run concurrently. The benefit of section 382-B Cr.P.C. shall be granted to the appellants, (MBC) (Approved for reporting) Convictions altered.

PLJ 1991 SC 346 [Appellate Jurisdiction] PLJ 1991 SC 346 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND NASIR ASLAM ZAHID, J. LAL and 3 others-Appellants versus REHMAT BIBI and another-Respondents Civil Appeal No. 294 of 1980, accepted on 2.2.1991 [On appeal from judgment dated 15.1.1975, of Lahore High Court, in R.SA. No. 329 of 1973]. Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (WP Ord. XIII of 1983)— —S.2-A-Agricultural land-Gift of-Challenge to-Section 2-A of Ordinance being etrospective, devolution even if it took place in 1940, would not be deemed to be under Custom-Held: Allah Ditta, male heir having acquired land under custom from person ho was Muslim, had, by virtue of sub-section (a) of Section 2-A, become an absolute owner of land as if such land had devolved on him under Muslim Personal Law- ppeal accepted and suit of appellant's side decreed. [Pp.349&350]A&B 1990 SCMR 1667 and PLD 1985 SC 407 rel. Mr. M.Munir Peracha, Advocate, Supreme Court, Mr. Muhammad Bilal, Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex-AOR for Appellants. Ch. M.Anwar Blunder, Advocate, Supreme Court and Ch. Ghulam Dastgir, AOR for Respondent No.l. Other Respondents: Ex-parte. Date of hearing: 2.2.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against a judgment of the Lahore High Court; whereby, the Regular Second Appeal arising out of a case of inheritance preferred by the appellant/plaintiffs' side, was dismissed. Earlier their suit and appeal had failed. Thus the appellant/plaintiffs have so far lost throughout. Leave to appeal was granted on noticing the facts and points relating to the plea of res judicata in this case involved then. The following pedigree-table prepared t ge-2 of the leave to appeal petition has been accepted by both the learned counsel for purpose only of understanding the controversy involved in this case. Leave to appeal was granted to examine the contention that "the learned Judge erred in holding that the suit of the petitioners (appellants' side) was arred by res judicata because the suit of Sardar had been dismissed on the ground that he was not collateral of Khan Chehl. Learned counsel for the appellants in order to overcome the respondents' plea of res judicata which prevailed with the learned Courts below relied on Allah akha vs. Siraj Din (PLD 1967 S.C. 559) to contend that the character of the suit of Sardar was different—based on customary rules and law while the present uit out of which this appeal has arisen was filed by the other collaterals in a different character. They, in fact, are now to be treated not merely as collaterals but esiduaries under the Islamic Law and though the mere change of nomenclature will not make much difference the character of their claim and right (is) also hanged. It is true that some of the observations made in this judgment as also Some subsequent decisions do support the learned counsel in this behalf. It is also correct that Sardar was non-suited on the ground that he was not then proved to be such a collateral who could have inherited the property. Learned counsel for the appellants says that he could not prove himself to be within the specified degree of collaterals. Now the question is not of any degree. Whether the plaintiffs and/or Sardar they would all be treated as residuaries. The limitation would be of remoteness i.e. the nearer excludes remoter. Be I hat as it may, learned counsel further contended that after the grant of leave to appeal in this case a major jurisprudential change having already take place by the enforcement of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983, this Court by its judgment in Abdul Ghafoor vs. Muhammad Shafi (PLD 1985 Supreme Court 407) has held that it is retrospective in operation. Thus, according to learned counsel for the appellants under section 2-A as introduced by the Ordinance, 1983 Allah Ditta shall be deemed to have inherited his property under Muslim Law and its devolution on his death would be in accordance with Muslim Law of inheritance. That being so l/4th of his inheritance would go to his widow-her heirs; out of the remaining 1/2 would go to Mst. Taleh Bibi as sister and through her to her heirs and the other l/4th will go to the residuaries including the plaintiffs. Learned counsel for the respondents in reply contended that Section 2-A deals with only alienations and the challenge thereto and does not change the nature of devolution under customary law as in present case on Allah Ditta's death in 1940. According to him Mst. Taleh Bibi had validly made the gift of the entire property to Mst. Hayat Bibi. Leaving aside the question whether on the basis of the assumptions made by the learned counsel Mst. Taleh Bibi was or was not a limited owner and whether or not she could make gift of the entire property the fact remains that Section 2-A as held in the case of Abdul Ghafoor being retrospective the devolution even if it took place in 1940 would not be deemed to be under custom. In several subsequent judgments of this Court including Ismail and another vs. Chulam. Qadir and others (1990 SCMR 1667) the view has been followed that Section 2-A has a strong retrospective effect. Regarding the second question also although none of the learned counsel has taken out the relevant decisions of this Court, it has already been held that the law as enacted in Section 2-A (a) contains a command that acquisition of agricultural land before the enactment of the 1948 Shariat Application Act by a male heir though in fact under custom from his predeccssor-in-interest (who was a Muslim) yet the heir "shall be deemed to have become on such acquisition an absolute owner of such land as if such land devolved upon him under the Muslim Personal Law". This command when applied to the present case would mean that Allah Ditta a male heir having acquired agricultural land under custom from the person who at the time of such acquisition was a Muslim; had by virtue of the deeming Provision in sub-section (a) of Section 2-A, become an absolute owner of the land as if such land devolved on him under the Muslim Personal Law. This is sufficient to repel the contention raised by the learned counsel that Section 2-A entirely deals with certain alienation and/or decrees. In the light of the foregoing discussion this appeal is allowed, the impugned judgment is set aside. The suit of the appellants' side is decreed in that the appellants' side as residuaries of Allah Ditta would inherit l/4th after his widow getting l/4th and his sister getting 1/2. This distribution of shares has been agreed to by both the learned counsel. The necessary mutations in the record of rights shall accordingly be made taking note of the normal rules of the Muslim Law of inheritance. Both the learned counsel stated that under this dispensation Sardar the son of Mahanda would also inherit alongwith Jalal and Lai. We leave these details to be worked out in the mutation proceedings which shall follow the law as laid down above. There shall be no order as to costs. (MBC) Appeal accepted. (Approved for reporting)

PLJ 1991 SC350 PLJ 1991 SC350 [Appellate Jurisdiction] Present: SHAFiUR rahman, S. usman ali shah and ali hussain qazilbash JJ. . MUHAMMAD YOUSAF CHAUHAN-Appellant versus . SARFRAZ KHAN JADOON and 2 others-Respondents Civil Appeals Nos. 328 and 329 of 1986, accepted on 9.1.1991. [From judgment of Federal Service Tribunal, dated 6.7.1985, passed in Appeal No.392(R) of 1984]. Seniority— —-Government servants-//Uc'r-5e seniority of-Determination of-Under Section . 8 of Civil Servants Act, 1973, seniority of appellant and respondent No.l has to be determined in grade/NPS-18 and it will count from date of appointment in that grade and that will make appellant senior to respondent No.l-Held: Instructions for preparing seniority list, on which reliance was placed by appellant, were framed by competent authority, had statutory effect of governing question of seniority and determined it in favour of appellant, • whereby no vested right of respondent No.l was violated-Both appeals accepted. [Pp.353&355]A,B,C&D Mr. M.Bilal, Senior Advocate, Supreme Court, and Mr. Gliulam Dastgir, AOR for Appellant (in CA. 328/86). Ch. Ijaz Ahmad, Deputy Attorney General for Pakistan, and Cli. AkhtarAli, AOR for Appellants (in C.A. 329/86). •Haflz S^4. Rahman, Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex- AOR for Respondent No.l (in both appeals). Date of hearing: 15.12.1990. judgment Shafiur Rahman, J.- Leave to appeal was granted both to the civil servant affected as well as the Federation of Pakistan to examine, under Article 212(3) of the Constitution, whether the Tribunal had correctly, by its judgment dated 6-7-1985, held that the Establishment Division Memorandum dated 7-6-1980 with regard to the principles for determining seniority of those absorbed on transfer from the surplus pool, had no statutory backing to affect the rights of respondent No. 1 in the seniority. 2. Two events preceded the transfer and absorption of the appellant in C-A.No. 382/86 (Mr. Muhammad Yusuf Chauhan) in the Education Division as a Research Officer. The first was an austerity measure on the directive of the President following the announcement of the Budget for the year 1979-80. As a measure of economy, posts had to be suitably reduced in each Department/Division. The other was the enforcement of the Metric System of Weights and Measures and the same subject was transferred for administration to the Provincial Government and then it was decided to phase out the Officers of the Industries Division employed on the work of Weights and Measures and to absorb them in other Departments of the Government. 3. Mr. Muhammad Yusuf Chauhan, one of the appellants, originally belonged to the Punjab Government and was employed there in the Education Department and was confirmed as such. He received a direct appointment through the Public Service Commission in NFS-18 in the Department of Weights and Measures under the Ministry of Industries on 23-11-1973. He was after the abolition or transfer of the functions of Weights & Measures Department to the Province, absorbed in the Ministry of Education on 1-4-1980 as Senior Research Officer in the same Scale of Pay in which he was earlier employed. The Establishment Division on 7th of June, 1980 enunciated its Policy of absorption and dealt with questions arising out of it. The two relevant provisions, for the purposes of this case are clauses (g) and (h) of the Memorandum dated 7-6-1980 and are reproduced hereunder:- "(g) The absorption/appointment of such Surplus persons who were holding regular posts before their being declared surplus, shall not be treated as ad-hoc. (h) The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed against an equivalent post and their pay shall be fixed under normal rules in consultation with the Audit/Finance Division." The Ministry of Education, in compliance with this directive, prepared the seniority list and allowed seniority to the appellant Mr. Muhammad Yusuf Chauhan (hereinafter referred to as the appellant) from the date of his appointment in NPS-18 which happened to be 23-11-1973. Sarfraz Khan Jadoon (respondent No.l) had joined the Ministry of Education as a Technical Assistant on 31-8-1963, after being selected by the Public Service Commission. He was promoted as Senior Research Officer in NPS-18 w.e.f. 16-4-1977. He was on accent of these dates placed junior. He took his grievance to the Service Tribunal and took a number of grounds but the Tribunal allowed his claim on the following grounds:- (i) "Had respondent No.3 been given seniority in the Ministry of Education with effect from the date of his appointment there, there would have been no controversy. A person transferred from one post to another equivalent post, under the general rules, gets his seniority from the date, of his appointment to- such other post and not from the date of his previous appointment. The only exception probably would be where a person is transferred from one Division to another Division along with post, work and duties. In the present case, the duties under the Ministry of Industries were quite different from those which were under the Ministry of Education. Respondent No.3, therefore, could not be placed senior to the appellant having joined the Ministry of "Education much later." (ii) "The order of the Government placing respondent No.3 senior to the appellant also offends the spitit of CSR 426, which under the heading COMPENSATION PENSION reads This provision clearly shows that the Government is not bound to give any appointment to a person who is selected for discharge owing to the abolition of even a permanent post. The Government can provide him with an equivalent post, but if it is not possible, he shall be entitled to compensation pension or the gratuity. He can also be appointed to another establishment even on a lower pay." (iii) "He cannot be given terms and conditions which affect other persons adversely." 4. Ch. Ijaz Ahmad, the learned Deputy Attorney General for Pakistan representing the Government and Mr. M. Bilal, Senior Advocate, the learned counsel for theappealing civil servant/appellant in C..A. 328/86, have contended that section 8 of the Civil Servants Act expressly provides that seniority shall not be a vested right. It follows, therefore, that the competent authority can frame rules,and alter the seniority of the individuals concerned. The Establishment Division was the competent authority in view f the provisions made in rule 5 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which makes the Establishment Secretary the appointing Authority in respect of posts in BPS-17 to 1.9 or equivalent. They have also pointed out that it has consistently been the practice of the Government to allow to such surplus civil servants the benefit of their past service on their absorption on new posts. It is not something new and unjust or oppressive to those already in Government s 5. It has to be kept in view that the dispute between the parties and the question of law arising out of it is of the year 1980. At that time section 8 of the Civil Servants Act, 1973 read as hereunder:- "8. Seniority.- (1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein .contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be. (2) Subject to the provisions of sub-section (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a service, grade or post shall be datermined as may be prescribed. (4) Seniority in the grade to which a civil servant is promoted shall take effect from the dale of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter sc seniority as in the lower grade." This section has two features relevant for the present case. The first is that not even by implication this provision shall be construed as conferring any vested right to a particular seniority on a civil servant. The second is that the seniority list that is required to be prepared under this law has to be prepared either of the service, or of the cadre or of the grade and no other. It was in 1984, that the word 'post' was added in substitution of 'grade'. The word grade had been defined in National Pay Scales Scheme as grades falling in one of the pay scales specified in those rules. On that principle, the seniority of the appellant and of the respondent No. 1 has to be detemined in grade/NPS-18 and it will count from the date of appointment in that grade and that will make the appellant senior to the respondent No.l, the appellant having entered in NPS-18 earlier to the respondent No 1. 6. As per rules referred to above, Establishment Division and the Establishment Secretary Inchargc of it is the competent authority for dealing with Officers in Grade-18. The directions of the Establishment Division relevant to the case, reproduced above, are unequivocal and permit the grant of such benefit to the appellant. Coming as they do from a competent authority and being general and uniform in nature, they take over, there being nothing contrary in the Rules. As early as in 1949, a similar instruction reproduced hereunder was issued:- (O & M Establishment Manual Volume III page 248-srl. No.8 refers): "As a result of the adjustments of surplus and deficits carried out after Independence, certain individuals who became surplus to the requirements of a particular Ministry/Department, etc., were transferred to other offices in which their services were required. Necessary instructions in regard to the fixation of their pay and condonation of break in service have already been issued in the Office Memoranda of the Ministry of Finance Nos.4587-EG-II/48 and 491-RII/49, dated respectively the 19th August, 1948 and the 18th March, 1949. A question has now arisen whether the surplus staff transferred from one office to another without break in their service, or in whose case the break in service has been condoned in the light of the insturctions referred to above, should be given the benefit of their previous service in the matter of (i) leave (ii) travelling allowance and joining time, and (iii) pension. It has been decided that during the period the staff in question remained surplus they should be considered to be on duty for the above purposes and, therefore, they should be given the benefit of their previous service in accordance with the relevant rules. 2. "It has also been decided that the previous service of the surplus staff in question should also count towards seniority in the grade concerned in office to which they have been transferred. Doubtful cases relating to their seniority should be referred to the Establishment Division direct. (Ministry of Finance Office Memorandum No.F.2(13)-R.II/49, : dated the 13lh July, 1949)". Another occasion for the same exercise arose when following the Constitution of 1962, reorganisation of the Central Government took place. The .detailed instructions appear at serial No.31 at page 267 of the O&M Establishment Manual (Volume III) and with regard to seniority, the following provision was made in sub-clause (iii) of clause (3):- "Thcir seniority in a grade vis-a-vis the Provincial Government servants in that grade shall be determined .with reference to their respective dates of continuous appointment to that grade. For this purpose, "Grade" may be defined broadly as consisting of a number of posts of the same category in the same class of service carrying the same duties and responsibilities and in a common scale of pay or in a comparable scale of pay". (Establishment Division Efficiency and O&M Wing, Memorandum No.l/12/62-IC(RP), dated the 17th November, 1962). Yet another occasion for such an exercise arose in 1971 with regard to employees coming over from East Pakistan and it was disposed of by the instructions with regard to seniority as hereunden- "The question of absorption and seniority of former employees of Government of East Pakistan and autonomous bodies who were on deputation to the Federal Government on 16-12-1971, and the question of seniority of Federal Government employees recruited on zonal/regional basis in the department of Federal Government located in East Pakistan has been under consideration of the Government for some time past. It has now been decided that such employees may be allowed to count their service rendered in former East Pakistan towards seniority in equivalent grades held by them under the Federal Government". (sl.No.162 ESTACODE, p.158, 1983 edition - O.M.No.2/28/78-RC (Estt), dated the 16th April, 1978). 7. II is lure that on the abolition of a post, if the services of the incumbent of that post are terminated and he, is not provided another employment, he cannot make a legal grievance of it. It is not his right to claim absorption or to be given seniority. What he can claim as a matter of right is provided in CSR426 which has already been taken note of in the impugned judgment of the Service Tribunal. We are examining here not the right of the civil servant but the power of, the Government or he competent authority to grant him. They arc not found to be limited in this case or in the number of cases and situations referred to above, As such, intervention by the Government which is remedial, does not effect any of the vested right of the other civil servants. They cannot stand up against it. The appointment rules as well as the Civil Servants Act provides transfer as one of the fi modes of appointment to a post. But none of these makes any rulets with regard to seniority on such transfer. The only rule in existence is with regard to the seniority in a grade and it commences on regular entery into that grade. For post, cadre and service , no rules of seniority have been framed for such transferees. May be such unforeseen situations, as have been described above, were kept in, calling for a special dispensation and for that purpose the field was left unoccupied by formal rules so as to be controlled by the competent authority as it considered just and proper. 8. We find that the instructions on which reliance was placed by the appellant and which was given recognition by the Establishment Division in preparing the seniority list were framed by the competent authority, had the statutory effect of governing the question of seniority and determined it in favour of the appellant, none of he vested rights of the respondent No.l being violated jn the process. 9. Both the appeals are allowed. The Judgment of the Service Tribunal s set aside and the seniority list as between the appellant - Mr.Muhammad Yusuf Chauhan and e respondent No.l - Sarfraz Khan Jadoon as prepared by the Department will hold the field. No order is made as to costs. (MBC) (Approved for reporting) Both appeals accepted.

PLJ 1991 SC 355 PLJ 1991 SC 355 [Appellate Jurisdiction] Present: MUI IAMMAD AFZAL ZULLAH CJ AND ABDUL QADEER ClIANDHV J. NOOR MUHAMMAD-Appellant versus THE STATE-Respondent Criminal Appeal No.79 of 1985, dismissed on 22.10.1990. [On appeal from judgment dated 8.7.1984, of Lahore High Court, in CrAppeal No.7-J of 1985J. Extra-judicial Confession- —Murder-Offence of-Conviction for-Challenge to-Although extra-judicial confession of co-accused was retracted, yet it is corroborated by 3 important circumstances-Coccused of appellant being wife of deceased, in normal cricumstances, would not only be knowing about facts immediately leading to death of her husband under same roof, ut would also be required to explain her innocence-Principle of last seen would also be applicable to her- Wajtakkar witnesses in their natural and un-impeachable depositions, ave furnished very strong corroboration-Held: Conviction of appellant is based on sound principle of appreciation of evidence in criminal cases-Appeal dismissed. [Pp.357&358]A&B Mr. Inamul Haq Mian, Advocate, Supreme Court for appellant. Mr. M.Nawaz Abbasi, A.A.G. Punjab, and Rao M.Yousaf Klian, AOR for respondent. Date of hearing: 22.10.1990. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court in a murder case is directed against the judgment of the Lahore High Court dated 8.7.1984 whereby the conviction of the appellant under section 302 PPC with sentence of life imprisonment and fine was upheld and his appeal was dismissed. The facts and points noted for leave to appeal are that Ala Muhammad deceased in |his case was the husband of Mst. Bhag Bhari. The case of the prosecution is that she developed illicit liaison with the appellant which came in the knowledge of the deceased. The deceased is said to have objected to this strongly preventing the appellant from visiting his dera. On 27th December, 1980, Mst. Bhag Bhari started crying in the middle of the night and proclaimed that deceased had died a natural death owing to illness. However, when the body of the edcceased was taken to his ancestral village the witnesses, on seeing the body found some marks of violence on it and suspected foul play. On questioning Mst. Bhag Bhari is said to have made an extra judicial confession in presence of Muhammad Hayat, PW, that by virtue of a plan she and the appellant, who was her paramour, committed the murder of the deceased. According to this extra judicial confession, the appellant came and waited outside the house of deceased, and when the latter went to sleep, Mst.Bhagh Bhari called him (the appellant) inside and while she held the deceased by his legs, the appellant throttled him and killed him. On the motive, i.e. that appellant and Mst. Bhagh Bhari were on illicit? terms the prosecution produced Sardar PW the father of the latter. Reliance was also placed on the testimony of two wajlakkar witnesses, namely, Muhammad Nawaz (PW) and Ata Muhammad PW, who testified that they met the appellant during the night of the occurrence and he told them that the debased was ill and he was coming from his house. Reliance was also placed on extra judicial confession of the appellant before witnesses. The trial court convicted both accused and sentenced them to life imprisonment, besides fine. Mst. Bhagh Bhari did not challenge her conviction. However, the appellant appealed but his appeal has been dismissed by a learned Single Judge of the Lahore High Court vide judgment dated 8th July, 1984. The appellant then sought leave to appeal from jail.In upholding the conviction of the appellant, the High Court, while rejecting the extra judicial confession of the apellant, has relied on the confession of the coaccused Mst. Bhag Bhari. The important question thought fit for consideration was whether this evidence was sufficient to sustain the conviction of the appellant on a capital charge. The evidence of Sardar, PW, is to the effect that Mst. Bhagh Bhari and the appellant were carrying on illicit relations and that in his presence the deceased had asked the appellant not to visit his dera. An important aspect of this case which seems to have escaped the notice of the High Court is. that the extra judicial confession made by the co-accused was retracted. Mst. Bhag Bhari pleaded her innocence at the trial. The wajtakkar evidence and the fact that there was illicit liaison between Mst. Bhag Bhari and the appellant can at best qualify as corroborative evidence. The retracted extra judicial confession is also not direct evidence of the commission of offence. The rule is well laid down that unless a retracted extra judicial confession of the co-accused is corroborated in material particulars it is not prudent to base conviction in a criminal case on its strength alone. There is no direct ocular testimony implicating the appellant in this case and therefore the question is whether the evidence produced by prosecution sufficiently corroborates the retracted confession of the co-accused in material particulars to be made the foundation of the conviction of the appellant". We have heard the learned counsel for the appellant as well as the learned Assistant Advocate-General and have gone through the relevant parts of evidence. The learned Assistant Advocate-General relying on some case law stated that the extra judicial confession even if retracted at the trial is good evidence and can be taken into account provided it satisfies the norms laid down in the precedent law. He has not gone into the question as to whether left alone such material would be treated as enough for furnishing "proof - as defined in the Law of Evidence or it can only be taken into account and further whether with or without corroboration. Thus we have examined this case with reference only to the point noted in the leave grant order "whether there was enough evidence/material to furnish sufficient corroboration to the retracted confession of the co-accused in this case (Mst.Bhag Bhari) on the assumption that in the facts and circumstances of this case corroboration was necessary". Be tha! as it may, we have found corroboration in 3 important circumstances. One. that Mst.Bhar Bhari was at the time of occurrence an inmate of the house who in the normal circumstances would not only be knowing about the facts immediately leading to the death of her husband under same roof; but also, would be required to explain and/or show her innocence in that behalf. This would not be so if another person more in authority and position would either independently or in addition to such an inmate; namely, the wife, would be present in such a house to be burdened with this responsibility. This is not the case here. Additionally another principle would come into play - Mst.Bhag Bhari would be such a person in relation to the deceased who would be treated as having"been last seen with him. She would be doubly required to explain the circumstances in which he met his fate. Thus this two way circumstance, establishing direct connection with the deceased, furnishes a very 'strong corroboration to the retracted confession of Msl.Bhag Bhari. The Wajtakkar witnesses of this case also are not only reliable but their natural and un-impcachable deposition furnished very strong corroboration. The appellant told.them at the Wajtakkar spot near the house of the deceased the same story which they received as information from Mst.Bhag Bhari. Both gave false causal connection and reason upto the death of the deceased and the language used by both was almost identical which establish pre and post planning. Ycl another item of corroboration, though this is not the last one, is that Mst.Bhag Bhari told a lie to the Wajtakkar witnesses regarding the illness of the deceased. Last but not least is what those who immediately reached the spot saw and heard, what Mst.Bhag Bhari stated to them forming a part of resgcstae, furnished further corroboration to the retracted extra judicial confession of Mst.Bhag Bhari. In the light of the foregoing discussion after hearing both the learned counsel we arc satisfied that the conviction of the appellant is based on sound principle of appreciation of evidence in criminal cases. No justification has been made out for interference. This appeal is liable to be dismissed. It needs to be observed here that no cogent reason has been advanced by the High Court for awarding lesser sentence of life imprisonment and fine. To say the least, it is not legally tenable. The learned trial Judge observed as follows in this behalf: - "This brings us to the sentence. Mst.Bhag Bhari accused has no doubt participated in this murder, but her role is that she caught hold of the deceased from his legs. Her role is no doubt active. She collaborated with Noor Muhammad accused. This killing was their joint adventure. She is female. I feel thai I should refrain from imposing death penalty on this lady. Then there is Noor Muhammad accused. He is a youngman. He describes his age as 33 years. He is married and has a family. It is infact a misfortune that this youngman somehow came into the contact with Mst.Bhag Bhari who is 50 years old lady. Nobody can say what was the actual reason for this passion but the two developed a liking for each other. There was a disparity of age between the two lovers. Mst.Bhag Bhari was far more senior in age to Noor Muhammad accused. This makes me believe that Noor Muhammad accused was because of his love and affection for Mst.Bhag Bhari, under the influence of the lady. Both had of course passion for each other but I gather that the love which Mst.Bhag Bhari had was more passionate and she must be more assertive. Noor Muhammad accused seems to have been so much influenced by this immoral relationship of his with Mst.Bhag Bhari that he went to the extent of taking the life of her husband. One can say in these circumstances that Noor Muhammad accused was not having a free mind. He was obsessed by unusual love that he had somehow developed for this old lady. For these circumstances I refrain from imposing death penalty on this accused as well. The alternative sentence which is. rigorous imprisonment for life is the befitting sentence to be imposed on both the accused. It is not shown that Mst. Bhag Bhari is possessed of sufficient means and, therefore, imposition of fine on her will not be justified". With respect, the High Court also seems to have upheld the reasoning for lesser sentence. In the facts and circumstances of this case the two accused conspired with each other for the prosecution of their illicit liaison and illegitimate pursuits with 'a view to murder her innocent husband. The obvious motive was absolutely enough to justify capital punishment. There is no need to discuss this aspect any further. Thi? Court has already in the case of Muhammad Bashir v. Tlie State (PLD 1982 Supreme Court 139) disapproved such approach in similar cases of murder as a result of illicit liaison and paramour connection and over ruled several earlier decisions of superior Courts. We, therefore, do not approve of the lesser sentence in this case. But this finding would not result in any tangible change because the High Court not having exercised its revisional jurisdiction so as to enhance the sentence, there is no appeal before this Court to examine this aspect any further. This difficulty becomes more vivid and gets pronounced importance in view of the last commutation of whole-sale universal death sentences. Even if the High Court would have sentenced the appellant to death in this case the same would have stood commutated. For all these reasons we leave this aspect of the case at that but with the foregoing remarks and observations. In the light of the foregoing discussion this appeal is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 359 PLJ 1991 SC 359 [Appellate Jurisdiction] Present: MUHAMMAD AFZA ZULLAH CJ AND ABDUL QADEER CHAUDHRY J. MUHAMMAD YOUSAF-Appellant versus THE STATE-Respondent Criminal Appeal No.135 of 1986, party allowed on 28.10.1990. [On appeal from judgment dated 4.9.1985 of Lahore High Court, in CrLAppeal No.661 of 1982]. Sudden fight-- —Murder-Offence of--Conviction for--Challenge to--It was not a case of free fight-It was a sudden affair without premeditation and case was of a sudden fight-Held: It was such a sudden fight which would clearly fall in exception 4 to Section 300 PPC-Conviction aiicred to that under Section 304 Part I PPC. [Pp.360&361]A Hafiz S~A. Rahman, Advocate, Supreme Court, for appellant. Mr. M.Nawaz Abbasi, A.A.G. Punjab for respondent. Date of hearing: 28.10.1990. judgment \ Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court is directed against the refusal by the High Court to interfere with the conviction of the appellant under ction 302/326 P.P.C. His appeal was dismissed and sentence of life imprisonment as well as 5 years R.I. with fine of Rs.2,000/- was maintained. The facts and points noted in the leave grant order are as follows:- Early in the morning on the 24th of February, 1981, a dispute arose over the utilization of the irrigation water between the complainant party and the accused party allegedly comprising six persons. Lathi blows were exchanged resulting in the death of one from the complainant side and injuries to four of the accused persons also. Fifteen injuries were received on the complainant side and sixteen by the accused side. The trial Court acquitted one of the accused (Ghulam Haider). The others were convicted under Sections 148 P.P.C., 307/149 and 302/149 P.P.C. On appeal, the High Court alter reappraising the evidence, reached the conclusion as hereundcr:- "On the complainant side Imam Bakhsh, Ahmad Khan, Muhammad Khan, Lai Khan, Muhammad Yousaf and Muhammad Aslam were injured. All of them including those who did not enter the witness box received 15 injuries in all. On the other hand, the appellants received 16 injuries in all. The circumstances of the case negate any pre-meditation or preparation on the part of the appellants. The presence of dangs and solas with both sides is not unusual circumstance. It was a sudden affair, in which passions were charged and a fight therefore, neither the complainant side nor the appellants can claim any right of self defence. Each one has to be punished for his individual act. The question of the common object of unlawful assembly docs not at all arise in such cases". The conviction and sentence of the appellant under Section 302 P.P.C.. was maintained. His conviction Under Section 307/149 P.P.C. was, however, converted into one under Section 326 P.P.C. and he was sentenced to five years' R.I. and a fine of Rs.2000/-. With regard to the other convicts, the sentence already undergone by them was considered sufficient and they were ordered to be released forthwith. In view of the positive findings of the High Court, the legal question whether it was not a fit case of benefit of Exception 4 to Section 300 P.P.C. and one under Section 304-1 P.P.C. and not of conviction under Section 302 and 326 P.P.C, required examination. Accordingly the appellant was granted leave to appeal. Learned counsel for the appellant has reiterated the points narrated in the leave grant order. The findings of the High Court noted and reproduced above clearly show that but for the use of the expression "free fight" therein, the case falls within Exception 4 to Section 300 P.P.C. After hearing the learned counsel we feel satisfied that it was not a case of free fight in which both the parties were determined after premeditation to give a fight to each other. On the other hand as found by the High Court it was a sudden affair without premeditation and the case was of a sudden fight and not of free fight. And further it was such a sudden fight which would clearly fall in Exception 4 to Section 300 P.P.C. Accordingly, the conviction under Section 302 P.P.C. is set aside and converted into conviction under Section 304 part I P.P.C. The appellant is awarded sentence of 10 years R.I. under Section 304 Part-I, P.P.C. The sentence of fine is increased to Rs.10,000/-. The fine shall be paid as compensation to the heirs of the deceased. The appellant shall suffer further R.I. for 3 years in default of payment of fine. The conviction under Section 326 P.P.C. apart from the afore noted considerations otherwise also is not maintainable because the injury caused by him for which this conviction was recorded would call for conviction under Section 325 P.P.C. Accordingly while maintaining the sentence of 5 years, the said conviction is altered from Section 326 to 325 P.P.C. Both the sentences shall run concurrently. Thus, with the above modification and alteration in conviction and sentences, this appeal is partly allowed. (MBC) (Approved for reporting) Conviction altered.

PLJ 1991 SC 361 PLJ 1991 SC 361 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry J. MUHAMMAD ASIF-Appellant versus THE STATE-Respondent Criminal Appeal No.147 of 1986, dismissed on 28.10.1990. [On appeal from judgment dated 12.5.1985 of Lahore High Court, Multan Bench, in Cr.A.No.109 of 1981]. Criminal Trial— —Murder-Offence of-Conviction for-Challenge to-Contention that in view, of large number of injuries, out of which many are serious, something extra­ ordinary must have appened before appellant inflicted these injuries and he should have been allowed due benefit in this behalf-Appellant not having taken Court into confidence, it is not ossiable to conjecture that if at all he was provoked, it must have been a sudden affair-It was for appellant, an inmate of house, to explaim how his wife met her death under ame roof- Otherwise too, rationale underlying concept of last seen should also be applicable-Held: No justification has been made out for interference with conviction under ection 302 PPC-Appeal dismissed. [P.362JA&B Hafiz S.A.Rahman, Advocate, Supreme Court, for appellant. Mr. M.Aslam Uns. Advocate, Supreme Court, for State. Date of hearing: 28.10.1990. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against refusal by the High Court to interfere with the conviction of the appellant under Section 302 P.P.C. and sentence of life imprisonment. His appeal in this behalf was dismissed. While granting leave to appeal it was noted that the conviction is based on the eye witness account furnished by the brother and mother of the deceased who is Mst.Amiran wife of the appellant; the recovery of blood stained hatchet at his instance and the reccovery of the blood stained chaddar and shirt from his person. The occurrence is of night - between llth/12th of January, 1978. When arrested after about a month he was found wearing such clothes which had some blood stains on them. Leave to appeal was granted to re-examine the evidence in order to see; whether, normal principles of appreciation of evidence in a criminal case were followed or not. There is force in the argument of the learned counsel that the motive evidence is weak and not much convincing. On the other hand relying on the number and nature of injuries which are large in number and many of them are serious he contended that something extraordinary must have happened before the appellant inflicted these injuries. Accordingly, as argued by him, the appellant should have been allowed due benefit in this behalf. When questioned as to what is the legal plea on account of which such circumstance by itself would be enough either to acquit the appellant or to alter his conviction to a lesser offence; learned counsel stated that it can be assumed that he must have been provoked to do such act of cruelty otherwise there is nothing on record to explain his conduct. The appellant was at liberty to state the reasons which led him to commit such a cruel murder. If it was on account of some grave provocation the same was not sudden. His conviction would not be altered from Section 302 to 304 Part I, P.P.C. He not having taken the Court into confidence, it is not possible to conjecture that if at all he was provoked it must have been a sudden affair. A possibility cannot be excluded that even if he had some lurking provocation which might also be grave, he might have planned the murder. With regard to the evidence suffices it to observe that it was for the appellant an inmate of house and it was for him to explain how his wife met her death under the same roof. Otherwise too the rationable underlying the concept of last seen should also be applicable. Accordingly, no justification has been made out for interference with the conviction under Section 302 P.P.C. He has already been awarded lesser sentence on account of similar considerations as pointed out by the learned counsel. No further benefit can be given to him except that if he has not been allowed the benefit of Section 382-B Cr.P.C. he shall be allowed the same. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 362 [Appellate Jurisdiction] PLJ 1991 SC 362 [Appellate Jurisdiction] Present; shafiur rahman, s.usman ali shah and ali hussain qazilbash JJ. BOARD OF INTERMEDIATE & SECONDARY EDUCATION, SARGODHA and anothcr-Appellants versus MUHAMMAD RAFIQUE-Respondent Civil Appeal No.286 of 1980, accepted on 21.11.1990. [From judgment of Lahore High Court, dated 5.4.1980, passed in I.CA. No.191 of 1980]. (i) Natural Justice-- —Unfair means-Complaint of-Disqualification of respondent-Setting aside of-Challcnge to-Appcal Bench of High Court has gone by proof of actual forgery of signatures hich was not matter in issue-It was obvious as a result of enquiry that result could not stand and it suffered from inherent taint which nothing could sanctify—Held: In such ituation, quashment of result should not have been interfered with—Appeal accepted. [P.366]C,D&E (ii) Natural Justice- —Unfair means-Complaint of-Disqualification of respondent-Setting aside of-Challengc to—Board had passed conditional order-It had affirmed finding of Disciplinary ommittee with condition that expert's opinion be obtained, if it is positive, then finding of Disciplinary Committee should stand, and if not, then candidate would stand xonerated-Held: It cannot be said that such an order violated either any law or any principle of law. [P.366]B (Hi) Natural Justice- —Unfair means—Complaint of—Disqualification of respondent—Setting aside of-Challcnge to-Summoning of witnesses necessarily entails expenses on their travelling and aily allowance—Amount (Rs:70/-) demanded is also not high, deterrent or punitive-Held: High Court has taken a view with regard to deposit of expenses of witness to be alled for cross-examination which cannot be supported in law or prevalent practice of courts and tribunals. [P.365JA Cli. Muhammad Farooq, Senior Advocate, Supreme Court for appellants. Respondent: Ex-parte. Date of hearing: 13.11.1990. judgment Shafiur Rehman, J.--Leave to appeal was granted to the Board of Intermediate & Secondary Education, Sargodha (hereinafter referred to as the Board) to examine whether the Board was justified in demanding a deposit of Rs.70/- as expenses from the students while allowing them an opportunity to cross-examine the Deputy Superintendent and other staff on duty in the examination Hall, and whether the Board had taken a decision with regard to the disqualificatior, of the respondent without conscious application of mind to all the facts. 2. In September, 1977, F.A./F.Sc. Examinations were being held under the supervision of the Board. The Controller of Examinations of the Board received secret information that answer books of certain candidates were being replaced/substituted at Examination Centre No.3, Bhalwal. At the stage the complaint was received (when) examination in only two papers namely, Chemistry Paper 'A' and Chemistry Paper 'B' were yet to be held. The Controller of the Board deputed an official of the Board to collect the scripts of the candidates from the aforementioned Centre directly and bring it to the office of the Examination Branch of the appellants. It was done and papers were got examined from the examiners in the normal course. It was detected that 19 candidates who had done very well in all other papers earlier held had done miserably in these two papers directly collected. This wide gap between their performance led to further enquiry and it was found that their earlier scripts did not bear the authorised signatures of the Deputy Superintendent of the Examination Hall as was required under the Rules. After a preliminary enquiry had been held and a prima-facie case was found, a charge-sheet was given to the respondent who was shown the material against him at the hearing and personally heard in the matter, and an Order was passed disqualifying him from four examinations i.e., Spring 1977 to Autumn 1978 and his result which had been announced in the meantime was quashed. The petitioner challenged this Order of the Board by a Constitution Petition (W.P.No.523 of 1979). The main ground which prevailed with the learned Judge in Chambers was that the respondent wanted to cross-examine the Deputy Superintendent of the Examination Hall whose signatures on the script were said to be forged to make the script non-genuine, but he could not do so because the rules required the deposit of a sum of Rs.70/- for the expenses of the witness. The learned Judge held as hereunder:- "In my view the petitioner had a legal right to cross-examine a witness who had deposed against him and to order him to deposit Rs.70/- in the account of the Board before he was allowed to cross-examine the witness tantamounts to refusing the opportunity to cross-examine the witness. This is contrary to the requirements 'of natural justice. This prima facie is not permissible in law. The rule framed by the Board on that account appears to offend the principles of natural justice. But without adjudicating upon the legality of the rule, this writ petition can be disposed of on another point". The decisive ground taken by the learned Judge in chambers for allowing the Constitution Petition was as hereunder:- "....the disputed signatures of the Deputy Superintendent which were alleged to have been forged by the petitioner were sent to the handwriting expert after the decision of the Board. In other words, the report of the handwriting expert was not before the Board, when it confirmed the decision of the Disciplinary Committee whereby the petitioner had been punished. Clearly the Board had decided the case without applying its mind to the facts of the case. It had prejudged the entire matter The Board's decision whereby it confirmed the finding of the Disciplinary Committee is accordingly declared to be illegal and without lawful authority". 3. The peal Bench of the High Court took up yet another ground for a, disposal of the matter by holding as hereunden- "It may be mentioned here that the case of the respondent has been that he never forged the signatures of the Deputy Superintendent, and if anybody else had forged the same then he was not concerned with that nor he could be held guilty on that account. The Disciplinary Committee never obtained the specimen signatures of the respondent as well as that of the Deputy Superintendent and sent the same to the Handwriting Expert to submit his report after due comparison with the alleged forged signatures on the answer books as to whether the respondent was guilty of forging the same. Further the Handwriting Expert was liable to be examined under the law in support of his report and if it had been against the respondent then he should have been given an opportunity of cross-examining the handwriting expert. In the absence of that it is difficult to uphold the decision arrived at by the Disciplinary Committee as well as the Board oflntcrmcdiate and Secondary Education". 4. The matter has come up for hearing cxparte against respondent. 5. Ch.Muhammad Farooq, Advocate, the learned counsel for the appellants has contended that all the three findings recorded by the High Court are not tenable in aw in view of the decisions of this Court given in the University of Dacca through its Vice-Controller and another v. Zakir Ahmad (PLD 1965 S.C.90), AkhtarAli v. lie University of the Punjab (1979 S.C.M.R. 549) and ShaukatAli v. The Controller of Examinations, University of the Punjab, Lahore and another (1981 S.C.M.R. 364). 6.The first question which needs examination is the vires of rule 22 which requires of a candidate summoning a witness on duty in the examination hall to deposit Rs.70/- towards his expenses. The learned Judge has not given a final opinion with regard to its vires but has considered it as destructive of the right of natural justice of hearing in the proceedings. It had to be noted in the context that the persons on duty in the examination hall are not either whole-time or part-time £ employees of the Board. They belong to other Departments. They are on the approved list of the Board and they are put on duty for short periods for the purposes of discharging such duties. They are not located at one station either. In such circumstances, the summoning of these witnesses necessarily entails expenses on their travelling and daily allowance. The charge sheet is issued against a candidate only after a prima-facie case has been found of his involvement in a case of unfair means. It is not the condition that when a witness is being examined and the candidate happens to be present, he can cross-examine him only on deposit of money. If that was so, it would certainly be a clog on his right and unreasonable but if his examination-in-chief or report is found on the record and the candidate wants to call him for cross-examination he has to deposit the expenses, the requirement of the deposit of expenses in such a situation would appear to be justified. The amount demanded is also not unreasonably high, deterrent or -, punitive. In the circumstances, the High Court has taken a view with regard to the deposit of the amount as expenses of the witness to be called for crossexamination or examination which cannot be supported in law or the prevalent practice of the Courts and Tribunals. 1. The Board had passed a conditional order. It had affirmed the finding of the Disciplinai) Committee with one condition that the expert's opinion be additionally obtained and if it was in conformity with the finding of the Disciplinary Committee, then the order should stand and if not, then the candidate would stand exonerated. There was nothing wrong in forming such an opinion or passing such an order. It only shows that the Board wanted to be doubly sure and to give every benefit to the candidate. It cannot be said that such an order violated cither any law or any principle of law. Such an order would actually show that the Board in passing this order paid full attention to the allegations, the requirements of the situation, of fairness and reasonableness in the proceedings. 8. The appeal Bench of the High Court has gone by the proof of actual forgery of the signatures. That was not the matter in issue. The matter in issue was whether genuine scripts of the candidate have been evaluated by the examiners in the earlier papers. The respondent himself was the beneficiary of the mal-practice. His participation in it has to be assumed just as a erson in possessio of the stolen goods soon after the commission of an offence of theft is sedclled with incriminating knowledge. In such cases to insist upon a direct evidence is to ask for the impossible. Such cannot be the demands imposed in domcslice enquiries relating to educational institutions where undeserved benefits obtained by fabrication, forgeries or substitution of records have to be aliened lo. 9. In rendering the judgments the value syslem prevailing in the society should not be disturbed on technical grounds. It was obvious as a result of the enquiry starting from the complaint to the evaluation of the scripts that the result could not stand and it suffered from an inherent taint which nothing ould sanctify. In such a situation, the quashment of ihe result should not have been interfered wilh. None of the courts have doubled ihe fact lhal ihe scripts, those that were earlier evaluated, were non-genuine. The only question to which the Courts addressed themselves was whether ihe respondenl was afforded adequate opportunily to meet the allegations and whether he was personally responsible/liable for such substilulion which was found lo exist as a fact. On thai depended the penal part of ihe order disqualifying the respondenl from fulure examinations. 10. We accept the appeal ex-parte, set aside the judgment and decree of the High Court and restore the order of the Board. No order is made as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 366 [Appellate Jurisdiction] PLJ 1991 SC 366 [Appellate Jurisdiction] Present: SHAFIUR REHMAN And ALI HUSSAIN QAZILBASH, JJ GULDAR KHAN--Appellant versus BALAKAMOON KHAN and 2 others-Respondents Civil Appeal No. 18 of 1987, accepted on 27.1.1991. [From judgment & decree of-Peshawar High Court, Dcra Ismail Khan Bench, dated 21.5.1986, passed in Civil Revision No. 124 of 1984] NWFP Pre-emption Act, 1950 (XIV of 1950)- —-S. 16-Pre-emption-Suit for-Dismissal of suit and affirmation by appellate court-In revision, High Court decreed pre-emption suit-Challenge to-Trial Court and first appellate court determined question of fact in favour of appellant-High Court ignored statement of Patwari, Roznamcha report, mutation entry and attestion of mutation while upsetting finding of fact—This is not fair reading of record and evidence—Ultimate transferee had to legally establish himself as having a superior or equal right of pre-emption-Held: Appellant, ultimate vendee, satisfied requirements and it was against him that pre-emptor had to compete to establish his subsisting superior right of pre­emption which he failed to do-Appeal accepted. [Pp.369,370,371&372]A,B,C,D&E 1985 SCMR 1425 & 1989 SCMR 119 discussed. Mr. Abdul Aziz Klwn Kundi, Advocate, Supreme Court, and Mr. Abdul Hamid Qitres/ti, AOR (absent) for Appellant. Mr. Z. Mahfooz Klian, Advocate, Supreme Court for Respondent No. 1. Respondents Nos. 2&3 Ex-parte. Date cf hearing: 19.1.1991. judgment Shatlur Rahman, J.-- The vendee/defendant was grnated leave to appeal against the judgment of the Peshawar High Court dated 21.5.1986 whereby the suit of the pre-emptor was decreed for the first time not extending to the vendee the benefit of Explanation added to Section 16 read with sub-section (1) of section 17 of the N.W.F.P. Pre-emption Act, 1950 (hereinafter referred to as the Act) notwithstanding the fact that the vendee had entered the arena within the period of limitation and before the institution of the suit. 2. On 14.9.1981, Nawaz Khan (respondent No.3) the original owner of the disputed property sold it by a registered deed to Sayed Gul Rehman Shah (respondent No.2). On 6.1.1982, Sayed Gul Rehman Shah (the vendee) resold the same property to Nawaz Khan (respondent No.3 - the original owner) by a registered deed. Thereafter, on 10th of March, 1982, a report was lodged on behalf of the appellant (Guldar Khan) that Nawaz Khan had sold the same property to him which was entered in the register of mutations on 19.3.1982 and the sale was attested by the Revenue Officer on 16.5.1982. In the meantime, the pre-emptor filed a suit on 6th of April, 1982 seeking a preferential right of pre­ emption against Sayed Gul Rehman Shah, the first vendee. On disclosure of the subsequent,transactions, the appellant was also impleaded and the contest took place with regard to the superiority of the right of pre-emption. The superior right of pre-emption of the plaintiff/respondent No.l was recognised as against ayed Gul Rehman Shah (respondent No.2) but not againt the appellant, observing as hereundcr:-"The first transaction took place within one year. The learned counsel for the contesting defendants has" referred PLD 1971 Lahore 171, which has held that "if a person ossessing superior right of pre-emption to the preemptor instead of buying the suit property privately brings a pre-emption suit, his suit will succeed and the pre-emptor will e non-suited. Consequently there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit roperty out of the court from the first vendee. It is also well- established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior ight to the pre-emptor, ante litem, so as lo defeat the pre-emtpor's claim provided the transaction is genuine. This being so, it will be inavoidable to permit a pre-emptor to defeat a person who Has a superior right of pre-emption and whom the suit property is re-sold within the period of limitation. Simply because the pre-emptor rushes to ourt immediately after a sale is e respectfully agree with the authority and hold that the plaintiff has got no superior right. The issue is decided in the negative". Hence, the trial Court dismissed the suit. 3. On appeal, the District Judge affirmed the judgment and decree of the trial court dismissing the appeal by observing as hereunden- "Only two points have been argued before me by the appellant; No. 1, the transfer in favour of defendant No.3 is not legal and No.2, no issue has been framed to the effect that the alleged transfer in favour of defendant No.3 is fictitious and thus not binding on the rights of the plaintiff. As far as the first point is concerned the property has been transferred to a person during the limitation who is a co-sharer and against whom the plaintiff has got no superior right of pre-emption. Moreover there is no bar on such transfer as it is a legitimate means to avoid pre-emption. All the transactions are within time and regarding the second point of framing the issues the plaintiff has not objected at the time when the issues were framed and uplill the time of the disposal of the suit, so this plea at this stage has got no force. As the appeal does not merit, it is hereby dismissed with no orders as to costs". 4. A Revision was filed against this decision. The learned Judge of the High Court did not recognise the very resale made in favour of the vendor Nawaz Khan or the sale by him in favour of the appellant by observing as hereunder:- "To appreciate the contention raised it may be pointed out that apart from the pleading of the parties and the copies of registered sale deeds and the revenue record placed on file there is no other evidence to prove re-sale of the suit land to the original vendor and of its further sale in favour of defendant No.3. Plaintiff has in his original plaint challenged the re-sale in favour of the vendor to be fictitious and of no legal effect on his right of pre-emption. Thereafter in his amended plaint, in which defendant No.3 was impleaded as a parly, the plaintiff challenged the sale made in his favour as "Benami" and fictitious. Though these transfers were seriously challenged and an issue No.7 was specially framed to this effect excepting the solitary statement of defendant No.3 no other evidence has been led in the case in proof of the subsequent transfers made after the sale in question. In this case plaintiff has pre-empted the first sale made in favour of defendant No.l within the statutory period of one year. Under the law, rc-salc of the land to the original vendor cannot be set up as a plea for defeating the plaintiffs suit for possession under Section 16 of the N.W.F.P. Pre-emption Act as transfer made in his favour can neither be termed to have been made in recognition of his superior right of pre-emption nor the sale made by such transferee in favour of defendant No.3 would be deemed to be the transfer by the vendee in favour of a person having equal or superior right to that of the plaintiff pre-emptor. In the absence of direct link or contract of sale between the original vendee and defendant No.3 the provision of law referred to above would not be attracted, if the plaintiff is proved to have a superior right of pre-emption against the original vendee". The Revision was accepted and the Pre-emption suit decreed by the High Court observing as hereunden- "For the reason slated above and for the additional reason that no evidence has been led by the defendants in proof of the transactions of resale to the vendor and of transfer in favour of defendant No.3, the finding of the Courts below on issue No.6, which is based on no evidence and misapplied (?) of law are unsustainable. Consequently this revision petition is accepted, the judgment and decree of both the Courts below are set aside and the plaintiffs suit is decreed as prayed for in the plaint on payment of Rs. 19,788.69. The parties are, however, left to bear their own costs". 5. The learned counsel for the appellant has contended that the resale in favour of Nawaz Khan was proved by the registered sale deed which was not repudiated by any better evidence and so was the sale in favour of the appellant by the statement of Patwari and the reports made and mutations attested as appearing in the Revenue record. The learned counsel for the appellant has heavily relied on a decision of this court in Sifalullali Klian and others v Mrs.M.U.Klialtak and others (1985 S.C.M.R. 1425) where ultimately the property had been transferred to one who had an equal or a superior right of pre-emption and that was done within the period of limitation though in the interregnum the transfer had taken place to others who had no such right of pre-emption at all. 6. The learned counsel for the respondent No.l has, on the other hand, supported the judgment of the High Court and proceeded to further contend that the transfer in favour of the appellant, if at all held made, would be after the institution of the suit. The suit was instituted on 6.2.1982 and the mutation was attested on 16.5.1982. Reliance is placed on Muhammad Najecb v Mst.Talat Shahnaz and others (1989 S.C.M.R.119). 7. A survey of the three judgments now under consideration shows that the trial court and the first appellate court determined the question of fact in favour of the appellant. They found established the resale in favour of the vendor which was given effect to by the registered deed and then another sale by the original vendor to the appellant given effect to by a report to the Patwari and attestation of the mutation. Surprisingly, the High Court in Civil Revision upset this concurrent finding of fact and this was done very casually by observing as hereunder:- "Though these transfers were seriously challenged and an issue No.7 was specially framed to this effect excepting the solitary statement of defendant No.3, no other evidence has been led in the case in proof of the subsequent transfers made after the sale in question". 8. In upsetting this finding of fact, the statement of the Patwari, the report recorded in the Roznamcha, the entry of the transaction in the mutation register 8 and the attestation of the mutation which all had come on record as evidence, was ignored. This is not a fair reading of the record and the evidence. 9. Another legal error in the judgment of the High Court, if we may say so with respect, is that the finding recorded as hereunden- "In the absence of direct link or contract of sale between the original vendee and defendant No.3 the provision of law referred to above would not be attracted, if the plaintiff is proved to have a superior right of pre­emption against the original vendee". This view, legally, is not in conformity with the law law laid down by this Court in the Case of Sifatidlah fOian and others, where the sale to an intermediary vendee was held to be not necessarily in recognition of superior right of pre­ emption as none was possessed by him; if and only if the ultimate legal vendee against whom the pre-emptor was to contest, happened to have a suprior right of pre-emption. 10. As regards the contention of the learned counsel for the respondent that the sale in favour of the appellant should have been taken on the strength of the decision in the case of Muhammad Najeeb to have been finalized when the mutation was attested on 16.5.1982 after the institution of the suit and not prior to it, is not very nsequential. The decision to which reference has been made is relatable to limitation provision in the law of pre-emption and it expressly mentions the attestation of the mutation s e starting point of limitation. Therefore, what precedes the attestation of the mutation is not at all relevant. Besides, in a case of sale to a person having a superior right f pre-emption, such attestation is not relevant but the date when the sale in fact takes place irrespective of the date of attestation. Independently of it, xplanation to Section 16 of the Act would permit such a sale within the period of limitation and the sale in favour of the appellant was in any case within the period of limitation, even if it be taken to be not before the institution of the suit, sections 16 and 17 of the Act are different in scope. Section 16 concerns itself with the stage of decree in a pre­ emption suit. Section 17, on the other hand, concerns itself with the stages prior to the stage of decree. Sub-section (1) refers to the stage prior to the institution of the suit and sub-section (2) relates to the position of the vendee up to the passing of the decree. In time-frame the two points dealt with may be quite apart. Section 16 contains the third principle of law peculiar to pre-emption claims namely, that the pre-emptor must have a subsisting right even at the stage of decree. Of the other two principles, the second finds mention in section 15 and this is common to all other civil claims that the cause of action or the right of pre-emption must exist at the time of the institution of the suit. If it is lost or not possessed at that stage too, then no suit shall lie. The instance where such, a right is lost has been specified in sub-section (1) of section 17 of the Act and this instance and not the principle, is peculiar to pre-emption Jaw. Sub-section (2) of section 17 of the Act deals with alteration and change in the status of the vendee and that was made by the N.W.F.P. P.v-cmption (West Pakistan Amendment) Act (VI of 1967) whereby the vendee is not permitted to improve his own status after the institution of a suit for pre-emption. In 1970, Muhammad Shuja and 4 others v Slier Afzal JOian and 2 others (PLD 1970 Peshawar 136) came in the field in which decision Peshawar High Court held that if the vendee by transferring the land in dispute to a person having equal or superior right to that of the vendee during the pendency of the suit brings it that person as a defendant in the case, then there was no prohibition against the employment of this method either in section 16 or section 17 of the Act. By this method, the first vendee, according to the High Court, could create a situation in which he would be able to say to the pre-emptor that he has not been able to maintain his superior right till the date of decree which he was bound to maintain under section 16 of the Act. It was to over-come this broad principle unlimited in point of time except the passing of decree, that Explanation to Section 16 was added by Act VIII of 1972 and there could be no other appropriate place for it except in section 16 in view of the background in which it came to be enacted. If the superior right was not asserted within the period of limitation, it was lost to the pre-emptor and there could be no question of recognising it beyond the period of limitation. This aspect of the principle of pre-emption law was violated by laying down the proposition in the broad term in which it was done and that was taken care of by the Explanation to Section 16 of the Act. 11. Subsisting right of pre-emption mentioned in section 16 of the Act has two features. One, that the pre-emptor keeps unaltered the basis, the nature and the character of his own right'of pre-emption with regard to the sale that he is pre-empting. The other that he maintains his comparative superiority against the person who is arrayed ultimately and legally against him in the matter of pre­ emption claim. Both these features of the subsisting right of pre-emption claim. Both these features of the subsisting right of pre-emption were recognised in Muhammad Shuja's Case by the Peshawar High Court. It was the second feature which required a clarification. The ultimate transferee had to legally establish himself as having a superior or equal right of pre-emption exercisable when the sale was made to him. 12. Applying the tests that are prescribed, we find that in this case the ultimate vendee i.e., the appellant satisfied the requirements and it was against him that the pre-emptor had to compete to establish his subsisting superior right of pre-emption. He has evidently failed to accomplish it. 13. A factual controversy was sought to be raised with regard to the contiguity of the appellant's land being restircted to only one Khasra Number and not the other and this was attempted to be done by reference to the statement of the Patwari and the Shajra Kishtwar, both part of the record in the case. This contention, however, does not find support from the statement of pre-emptor himself who admits that the appellant Guldar Khan has his land contiguous to the disputed land. 14. For the reasons given, the appeal is accepted. The judgment of the High Court is set aside and the judgments and decrees dismissing the pre-emption suit of the respondent No.l are restored. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 372 [Shariat Appellate Jurisdiction] PLJ 1991 SC 372 [Shariat Appellate Jurisdiction] Present: Dr. NASiM hasan shah chairman, SiiAFiUR reiiman, abdul oadeer chaudiiry, pir muhammad karam shah and maulana muhammad taqi usmani, JJ NUSRAT BAIG MIRZA-Appellant versus GOVERNMENT OF PAKISTAN and anothcr-Respondents Shariat Appeal No. 18 of 1.989, accepted on 20.2.1991 [Against judgment dated 14.6.1989, of Federal Shariat Court, in Shariat Petition No. K-l of 1989] Jurisdiction-- —Quota system for civil services—Repugnant to Injunctions of Islam-- Declaration of--Praycr for—Whether Sharial Court had jurisdiction—Question of-Main reason for rejection of petition by Federal Shariat Court was that impugned rules and memorandum were protected under Art. 27(1) of Constitution—Same cannot be held to be provisions of Constitution itself and their examination in light of Injunctions of Islam does not amount to examining a provision of Conslilution-Held: Federal Shariat Court has jurisdiction to entertain petition of appellant under Art. 203-D of Constitution. [Pp.374&375]A PLD 1986 SC 360 = PLJ 1986 SC 576 and PLD 1990 SC 99 = PLJ 1989 SC 600 rel. Mr. Nizam Ahmad, AOR (absent) for Appellant. Hafiz S.A. Rehman, Advocate Supreme Court and Ch. AkhtarAli, AOR for Respondent No. 1 Date oC Keating,-. 202.1991. judgment Muhammad Taqi Usmani, Member.— The appellant had moved the Federal Shariat Court under Article 203-D of the Constitution to challenge the Office Memorandum No.8/9/72-TRV dated 31.8.1973 and Rule 14 of the Sind CivU Servants (Appointment , Promotion and Transfer) Rules, 1973, prescribing the quota system in filling the vacancies under the Federal Government and Provincial Government of Sind, on the ground that they are repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah. 2. The grievance of the appellant was that the introduction and fixation of the above cited quola system in general and its further sub-division in the province of the Sind in particular has caused serious prejudice to most of the citizens of Pakistan and has deprived them of their rights protected by the Injunctions of Islam. 3. The learned Federal Shariat Court by means of order dated 14.6.89 dismissed the petition on the ground that the above-noted memorandum and the rules stand protected under Art.27(l) of the Constitution and the Federal Shariat Court had ao jurisdiction to examine the vires of the Constitution or the laws made thereunder. The relevant portion of the judgment is contained in Paras 8 and 9 and is re-produced below:- "8. Be that as it may, as the Memorandum pertains to allocation of seats for areas and classes we find no doubt that it is covered by Article 27 of the Constitution which reads as under:-"Arl.27(l).--No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding twenty years from the commencing day, posts may be reserved or persons belonging to any class or area to secure their adequate representation in the service of Pakistan 9. It is thus quite clear that the Memorandum does fall under the 1st Proviso to Article 27(1) and it is, therefore, beyond the jurisdiction of this Court in view of Article 2038 of the Constitution. The result is that we have no jurisdiction to entertain this petition before the year 1993, which is the period provided in the constitution itself to protect the quota or the allocation of posts for persons belonging to any class or area to secure their adequate representation in the service of Pakistan". 4. This appeal is directed against the aforesaid order of the learned Fedreal Sharial Court. 5. After hearing the learned counsel for the respondent No.l, we feel that the question of jurisdiction of the Federal Shariat Court and that of the Shariat Appellate Bench of this Court in connection with the laws made on the authority of a particular provision of the Constitution was thoroughly examined by the Shariat Appellate Bench of this Court in the case of Government of NWFP v Said Kamal Sliah (PLD 1986 S.C. 360=PLJ 1986 SC 576). The question in that case was whether or not Martial Law Regulation No.l 15 protected under Art.8(3)(b) of the Constitution and under certain other Articles of the Constitution could be examined by the Federal Shariat Court under rt. 203D. The Federal Shariat Court held that the laws protected under the Constitution enjoy the same protection as is given to the Constitution itself in Art. 203B(c) and, since the Federal Sharial Court had no jurisdiction to examine any provision of the Constitution, those lawa are also immune from its scrutiny. But this view was not upheld by the Sharial Appellate Bench of this Court and it was held that it is the provisions of the Constitution itself that are immune from the scrutiny of the Federal Shariat Court and not the laws made on the authority of any provision of the Constitution. The relevant portion of the judgment in said Kamal's case reads as follows:- "Wc do not think (hat any such bar in fact exists so far as the new Constitutional dispensation is conderned. As entirely new power was conferred on the Specified Courts or benches thereof. A test of repugnancy i.e., Injunctions of Islam was prescribed. This empowerment had its own inhibitions and limitations, and, but for these, it transcended all constitutional protections and safeguards. For example all laws, but not the Constitution, Muslim Personal Law, and law relating to the procedure of any Court or Tribunal" or, any fiscal law or law relating to the levy and collection of taxes and fee or banking or insurance practice and procedure" could be tested on this standard "notwithstanding anyting contained in the Constitution". To apply this test of repugnancy to the Constitution or a provision thereof is one thing and to apply this test to any other law, validated, continued or protected under the Constitution is another. The first in prohibited, the second is not. Article 269 of the Constitution declares inter alia all Martial Law Regulations "to have been validly made by competent authority and shall not be called in question in any Court or any ground whatsoever". In spite of such a comprehensive and complete bestowing of competency, validity and immunity they had to be protected by express provisions of Article 8(2)(b) against their inconsistency with Fundamental Rights. On the same reasoning if such laws were to be protected agamst the normative test of Injunctions of Islam, there had to be express provision in similar words for them in Chapter 3-A of - the Constitution. With such a categorical conferment of power, none of the inhibitions being attracted or applicable, it cannot be said that the Court was precluded from examining such laws directly or indirectly. The case of Mehreen Zainbunnissa, in the absence of a similar provision in Chapter 3-A as is to be found in Article 8(2)(b) of the Constitution cannot be brought in aid for implying restriction and limitations in the constitutional power". The same question was again discussed in the case of Qazilbash Waqf v Chief Land Commissioner, Punjab (PLD 1990 S.C. 99 = PLJ 1989 SC 600) and it was again found that in view of the non-obstante clause appearing in the Art.203- A the laws promulgated under or protected by any provision of the Constitution cannot be given the status f he "Constitution" itself as contemplated in Art.203- C. Hence they are not immune from their examination on the touchstone of the Holy Quran and Sunnah. 6. We notice that the Federal Shariat Court in the judgment under appeal • has clearly held that "the impugned memorandum fell in the category of usage having the force of law and therefore it could be considered by this Court under Article 203D" but the main reason given by the learned Federal Shariat Court for rejecting the petition of the appellant was that the impugned rules and memorandum were protected under Art.27(l) of the Constitution. This view of the Federal Sharial Court , as mentioned earlier, cannot be upheld in view of the judgment of this court quoted above. Even if it is proved that the rules and memorandum under consideration were framed under the authority of Article 27(1) of the Constitution, they cannot be held to be the provisions of the Constitution ilself and their examination in the light of the Injunctions of Islam does not amount to examining a provision of the Constitution. We, therefore, hold that the Federal Shariat Court has the jurisdiction to entertain the petition of the appellant under Article 203D of the Constitution and has the jurisdiction to decide whether or not the impugned laws are repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah. 8. For the foregoing reasons, we allow this appeal, set aside the judgment of the.Federal Shariat Court, and remand the case for adjudication on merits. (MBC) (Approved for reporting) Appeal Accepted.

PLJ 1991 SC 375 [Appellate Jurisdiction] PLJ 1991 SC 375 [Appellate Jurisdiction] Present: SlIAFIUR REHMAN AND ALI HUSSAIN QAZILBASH, JJ GHULAM SARWAR-Appellant versus ABDUL JALIL and 2 others-Respondents Civil Appeal No. 386 of 1987, dismissed on 27.1.1991 [From judgment of Peshawar High Court, Abbottabad Bench, dated 16.5.1987, passed in Civil Revision No. 109 of 1983] (i) NVVFP Pre-emption Act, 1987 (X of 1987)-- —-S. 35(3) Pre-emption-Suit under Act of 1950-Repeal of Act-Whether sub­ section (3) of section 35 of 1987 Act was attracted-Question of-Section 35 of 1987 Act nvisages pendency of appeals and cases against judgments and decrees which have become final-Final means "judgment or decree which terminates action in court which enders it"-In this case, when Act of 1987 came into force, final judgments and decrees of two courts existed and indeed there was a decree in favour of pre-emptor by trial ourt—Held: Matter was rightly dealt with by High Court under Act of 1950, and Section 35(3) of Act of 1987 was not attracted. [Pp.378&379]A&B (ii) NWFP Pre-emption Act, 1950 (XIV of 1950)-- —S. 5(c)-Purchase of land for residential purposes-Pre-emption suit against- Whther sale was exempt from pre-emption-Question of-Vendees are all residents of village in sense that it is their native village and they have not taken up premanent abode elsewhere-They are out in connection with their service/employment-Their animus revertendi is not absent or lacking-Held: High Court has taken a correct view of situation-Appeal dismissed. [P.379]C&D JUDGMENT temporary absence and could not deprive them of their status of being residents of this village". It afforded the protection under Section 5(c) of the N.W.F.P. Pre-emption Act, and accepted the revision petition, setting aside the judgment and the decree of the Additional District Judge and restoring those of the learned trial Court. 4. Mr.Abdul Hakim Khan, Senior Advocate, the learned counsel for the appellant emphasised the fact that neither in the written statement nor in the statements made at the trial, any of the witnesses or attorney of the vendees made a statement that the vendees wanted to construct a house for the pur ose of ccupation. Unless that requirement of law was established and the need, the desire and the intention of occupying the house was brought on record, the satisfaction of the other ingredients of Section 5(c) of the N.W.F.P. Pre-emption Act, 1950 was not sufficient in any case to establish the claim so as to earn the protection of the law. The second contention of the learned counsel for the appellant and indeed a question of interpretation of law and of public importance is rooted in Section 35 of the N.W.F.P. Pre-emption Act, 1987 which repeals the N.W.F.P. Pre-emption Act, 1950 and deals with the pending proceedings. The exact submission of the learned counsel for the appellant is that it as sub-section (3) of Section 35 of the N.W.F.P. Pre-emption Act, 1987 and only a part of it which will apply. In so far as the revision pending before the High Court filed by the respondents, it shall be deemed to have lapsed and the further consequence provided therein that the suit of the plaintiff shall stand dismissed, is sought to be avoided on no principles except by observing that after the revision has lapsed there would remain nothing more to be done. 5. Mr.M.Munir Peracha, Advocate, the learned counsel for the respondents on the other hand contended that though specifically and literally reference to the self-occupation has not been made either in 'the pleadings or in the oral statements of the witnesses and the attorney, yet the fact remains that the protection against pre-emption was claimed as mentioned under Section 5(c) of the N.W.F.P. Pre-emption Act. 1950 and in the mutation itself it was mentioned that the property was being purchased for constructing a house. It was also an established fact that the area was small, that the three brothers were natives of this village and their anxiety to have a residence of their own when they had none earlier, would appear to be genuine and reasonable. To hold that they are not residents of the village only because they are in employment elsewhere and have not established a permanent residence elsewhere would be untenable, this being their native place/village and their father being still there and acting as their attorney. The whole impact of the material brought on record, according to the learned counsel for the respondents, is to establish fully the requirement of Section 5(c) of the N.W.F.P. Pre-emption Act, 1950 and nothing more was required to be done. 6. On the question of law the learned counsel for the respondents contended that consistent with the decisions of this Court, the word 'final' while the appeal is still pending should be given the same meaning which have been given by the Supreme Court in its decision InSardarAli and others v. Muhainmad All and others (PLD 1988 S.C. 287 = PLJ 1988 S.C. 224). Where a decree had been passed in favour of the pre-emptor only then the proceedings would continue to be governed by the law which stands repealed. 7. Taking up the purely legal question first namely, the impact of Section 35 of the N.W.F.P. Pre-emption Act, 1987 which was enforced on 28.4.1987 when the evision Petition was still pending in the High Court, one has to take notice of Section-35 which is reproduced in extcnso as hereunder:- "35. Repeal.~(l) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XIV of 1950), is hereby repealed. (2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such Law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately fore he commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act". This section envisages the pendency of appeals and cases against the judgments and decrees which have become final. Finality and pendency of appeal do not X ordinarilf go together. What is "final" cannot be the subject of appeal and what is subject of appeal cannot be "final". If we look to the legal definition of the words "final decision" as found in Black's Law Dictionary, this impression is dispelled. "Final deicision" has been defined as hereunder:- "Onc which leaves nothing open to further ispute and which sets at rest cause of action between parties. Judgment or decree which terminates action in Court which renders it. One which settles rights of parties respecting the subject-matter of the suit and which concludes them until it is reversed or set aside. The filing of signed findings and conclusions and order for judgment. ynonymous with final judgment or decree ". The same dictionary refers to the "final decision" and "final judgment". "Final judgment" has been defined as hereunder:- "One which finally disposes of rights of parties, either upon entire controversy or upon some definite and separate branch thereof. Judgment is considered "final" only if it determines the rights of the parties and disposes of all of the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy". Reading all these together, the conclusion which is inescapable is that the meaning which is to be given in this section is that the "judgment or decree which terminates action in Court which renders it". The question whether necessarily it must be a decree in favour of the pre-emptor is not a question which needs, examination in this case nor are we properly assisted to embark on that species of decisions. In this case that question does not arise at all. When the N.W.F.P. Pre­ emption Act, 1987 came into force, the final judgments and decrees of the two courts existed and indeed there was a decree in favour of the pre-emptor by the first appellate Court. Therefore, this was a matter which was rightly dealt with by the High Court under the N.W.F.P. Pre-emption Act, 1950 and sub-section (3) of Section 35 of the N.W.F.P. Pre-emption Act, 1987 was not attracted. 8. As regards the question of fact, we find that the High Court has taken a correct view of the situation. By seeking protection of Section 5(c) of the N.W.F.P. Pre-emption Act, 1950, the defendants/respondents pleaded all that was required to be pleaded by reference to the law. The cumulative effect of the evidence is that the vendees are all residents of this village in the sense that it is their native village and they have not took up permanent abode elsewhere. They are out in connection with their service/employment. Their animus revertendi is not found to be absent or lacking. They are found to have no other house inspite of the claim of the appellant that they wned three/four houses. No question was put to any of the witnesses to show that the house was not meant for the use or occupation of> the vendees. 9. In the circumstances and for the foregoing reasons, we find that the judgment and the decree of the High Court does not require interference and the appeal is dismissed with costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1991 SC 379 PLJ 1991 SC 379 [Appellate Jurisdiction] Present: SHAFiUR rahman and ali hussain qazilbash, JJ SHAHZAD GUL and another-Appellants versus ZfcARAT SHER-Respondent Civil Appeals Nos 21-P and 22-P of 1987, dismissed on 30.1.1991 [From judgment of Peshawar High Court, dated 26/28-5-1989, passed in C.R. Nos. 14 and 13 of 1976 respectively.] KharifCrop- — Kharif Crop—Commencing date of~Determination of—Under Para 25 of Land Reforms Regulation, 1972, superior right of tenant was recognized with effect from Kharif 1972-Decisions of courts vary from May to 1st of July as commencing date of Kharif-Section 30 of NWFP Tenancy Act and Section 47 of Punjab Tenancy Act give a fair indication that law relevant to tenants and tenancies has fixed 1st of May as dividing line between two crops—Held: Right of tenants under para. 25 of Land Reforms Regulation, 1972 will come into existence from 1.5.1972-Held further: Benefit of sales made in June 1972, in favour of tenants would accrue to them-Appeals dismissed. [Pp.381&382]A,B&C 1981 SCMR 1027, PLD 1983 SC 265, Law Notes 1968 Lah. 176,1980 Law Notes (Lah.) 120, PLD 1979 Lahore 23, PLD 1980 Rev. 84 ( Punjab ) and PLJ 1984 Peshawar 69 discussed. Mr. Aman Klwn, Advocate, Supreme Court, and Mr. Nur Ahmad KJian, AOR for Appellants. Mr. Z. Mahfopz Khan, AOR for Respondent. Date of hearing: 21.1.1991. Date of re-hearing; 26.1.1991. judgment Shafiur Rehman, J.~Leave to appeal was granted in both the appeals to examine whether the sales which were pre-empted having taken place on .6.1972 (in Civil Appeal No.21-P/87) and 21.6.1972 (in Civil Appeal No.22-P/87), the right available to a tenant under the Land Reforms Regulation, 1972 enforced on llth of March, 1972 granting such a right to the tenants as from Kharif 1972 was available to the purchaser of the property who is a aiant, against the preemptors. 2. In both the appeals the pre-emptors/plaintiffs are the appellants. In Civil Appeal 21-P/87, 7 kanals 11 marlas of land was purchased by Ziarat her which was pre-e pted by Shahzad Gul and Sarwar Khan/the appellants. The trial Court dismissed the pre-emptors' claim on the ground that they laim contiguity with the suit land while Khasra No.769-Shamilat was contiguous to the suit land and Ziarat Sher/the vendee was recorded as sharer in he. Shamilat. Hence, the pre-emptive claim of the pre-emptors was not found to be superior to that of the vendee. 3. In Civil Appeal 22-P/1987, the sale had taken place on 21.6.1972. The area sold was 4 kanals 6 marlas. The vendee was found to be a tenant f one Khasra No.1213/70 measuring 1 kanal 16 marlas and to that extent he was found to have superior right of pre-emption over that portion of the and as compared to the pre-emptors. The rest of the area was held to be pre-emptible and decree in terms thereof was granted on payment of the proportionate price. The appeal was dismissed by the District Judge so was the revision in both the cases. 4. Land Reforms Regulation, 1972 was enforced on lllh of March, 1972 and it did not recognise with immediate effect the superior most right f tenant to pre-empt the land forming his tenancy. The right was postponed to the future date namely Kharif 1972. The question as to when does Kharif 1972 commence has not been uniformly answered in the various decisions of the High Courts and this Court. In Zilladar v. Allah Banda and 5 others (1981 S.C.M.R. 1027) the sale was effected on 20th March, 1972. The Board of Revenue held that Kharif crop is sown in the month of May and harvested in September and October. The Supreme Court did not interfere with that finding holding that it was a finding of fact and not open to challenge. In Fazal KJwn and another v. Ghulam Rabbani (PLD 1983 S.C. 265), sale had taken place in 1971 and it was held that at the ime of s le in favour of the tenant benefit of the Land Reforms Regulation 1972 was newly promulgated Punjab Pre-emption Ordinance o.XXVII of 1990 - 26th November, 1990. It reads as follows:- "36. Saving:--(l) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending during the period from 1st August, 1986 and 28th March 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of commencement of this Ordinance, shall subject to sub-section (2), be decided afresh according to the provisions thereof. (2) Notwithstanding anything in Sections 13 and 31, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad' in the presence of two thereby truthful witnesses". According to the teamed counsel it has become open to the pre-emptors whose cases fall within the afore quoted saving provision to plead the fulfilment of the condition of 'Talb-i-Ishhad' even in cases which are pending before the Superior Courts or which stand already disposed of. Leaving aside the other aspects of this point which need not be touched as the same have not been argued by the learned counsel, one aspect thereof no doubt was discussed at length. It is the same which was discussed in the case of Ghiilam Qadir already referred in another connection reported in (PLD 1988 Supreme Court 701 = PLJ 1988 S.C. 573). When asked that unscrupulous litigants in pursuance of human greed and lust for unearned gain, as already noticed, would file false affidavits and take false pleas so as to obtain and/or preserve illegal gain, learned counsel contended that generally it would be so but there can be exceptional cases. We have doubts and they are not without foundations, because of what happened in the case of Ghulam Qadir. There is very strong possibility of false pleas and false affidavits being submitted. Learned counsel, accordingly, was told that if somebody takes such a plea and submits false affidavit in support thereof in this Court, we would seriously examine its factual worth and if it is found false, warning having already been administered, we might start taking serious punitive action. Learned counsel nevertheless did not agree on our assessment with regard to submission of false pleas and false affidavits and sought permission to ask his clients' position in this behalf. Some concerned persons, according to him, were not available and those who are available in the other case have not submitted the affidavits; although according to the learned counsel they wanted to do so. Instead the learned counsel made the request already noted for the disposal of these matters without going into this aspect of the matter any further. The respondents' side is not represented before us in these matters. Accordingly, these appeals and the Civil Miscellaneous application stand disposed of. There shall be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ1991SC385 PLJ1991SC385 [Appellate Jurisdiction] Present: saad saood jan, RusTAM S.SIDHWA and muhammad afzal lone, JJ. MAULA BAKHSH efc.-Appellants versus CUSTODIAN OF EVACUEE PROPERTY ^.--Respondents Civil Appeal No. 407 of 1980, partly accepted on 18.3.1991. [On appeal from judgment dated 20.5.1978, of Lahore High Court, :passed in W.P. N0.1118-R of 1976]. Adverse Possession- —Agricultural land given to non-Muslims under Section 71 of Land Revenue Act for recovery of arrears of land revenue-Whether their adverse possession , matured—Question of—Under sub-section (6) of Section 71 of Land Revenue Act, Collector has duty to take back possession from transferee after expiry of term, and restore it to land-owner—True owners, who had no control over exercise of powers by Collector, could not be made to suffer an injury for his ,, neglect—Held: Possession commencing under authority of Collector, does not transform into hostile one and ripen into title by mere length of occupation- Appeal accepted. [Pp.389&390]A&B Ch. Mushtaq Ahmad KJian, Advocate, Supreme Court, instructed by S, Abut Aasim Jafii, AOR for Appellants. Respondent No.l: Exparte. v v>/1 Mr. Zahid Hussain Khan, Advocate, Supreme Court, instructed by Mr 7/u^//imam, AOR (absent) for Respondent Nos. 2 to 4 Date of hearing: 183.1991. judgment Muhammad Afzal Looe, J.-This appeal by leave to appeal arises out of the judgment dated 20.5.1978 rendered by a Division Bench of the Lahore High Court, whereby order dated 24.6JL976 passed by the Custodian of Evacuee Property, declaring the land in dispute as non-evacuee property, was set aside. . The dispute between the parties relates to the land, measuring 17^1 r kanals, 16 marlas, situate in village Madh Hassan, Tehsil and District Rahimya Khan, which, according to the jamabandi for the year 1904, was owned by the non-Muslims to the extent of 2/24 share and the rest of it belonged tp the predecessors-in-interest of the appellants, the details whereof are given as under:- "Karim Bakhsh and Khawand Ditta in equal shares 4/24 shares. Jangla 9/24 Shares. ' Sojla and Rattan in equal shares 9/24 shares. Haman Mai, Adiamal Nahmal and Nad Ram non-Muslims in equal shares, 1/24 shares, and • Manu Ram non-Muslim 1/24 shares". 3. It is discrenible from the record before us that, vide Mutation No.71 attested on 26.10.1903, 4/24 shares of the land owned by Karim Bakhsh and Khawand Ditta, who were then minors, was sold to Haman Mai conditionally till they attained majority and ratified the sale. In those proceedings, before the Revenue Officer, Karim Bakhsh was represented by his mother Mrt.Fazil and Khawand Ditta by his uncle Ilahi Bakhsh. Evidently, the sale on behalf of the minors was void. Presumably, for this reason, as ndicated by the mutation proceedings dated 29.6.1904, this mutation was acted upon in the revenue record "Basiga Malgazari", Likewise, in respect of 18/24 share owned by Jangla, Sojla and Rattan, Mutation No.124 was sanctioned on 28.4.1904 in favour of Haman Mai holding that they were absconders. This mutation was also sanctioned Basiga Malgazari", obviously in pursuance of Section 71 of the Punjab Revenue Act 1887. Under this section, after the land revenue of a holding is in arrears, the Collector may transfer the holding to some other land owner of the estate, who is not a defaulter on the condition of his paying arrears before being put into possession of the land. he ransfer has to either till the end of the agricultural year in which the defaulter pays to the transferee the amount of the arrears, which the latter paid to the Collector, or for a erm not exceeding 15 years from the commencement of the agricultural year next following the date of the transfer. Seemingly, recourse to Section 71 had to be made by he land revenue authorities for the reason that Muslim owners aforesaid were absent from the village, and payment of the land revenue fell into arrears. It appears that he land continued "to remain in possession of Haman Mai even long after the expiry of the period : <Sryisaged by Section 71, but throughout, the names of the Muslim wners were; Snown in the revenue record in the column relating to ownership. 4. In the context of the controversy raised before us another "event worth consideration is the commencement of proceedings under Section 145 Cr.P.C., by Essa Mai, a nephew of Haman Mai against Rehm Ali S/o Jangla, resulting in affirmation of the possession of the non-Muslims, by order dated 23.6.1930 passed by the Criminal Court. Thereafter, the non-Muslims brought a criminal case under Section 447 PPC., against Rehm Ali, who was convicted On 14.12.1932. This conviction resulted in re-affirmation of the possession of the non-Muslim. Another transaction worth mentioning is the sale by Haman Mai to Major Saheb Yar Khan of 1/24 share of his proprietary rights in the land and ,11/24 of the possessory rights. This sale was evidenced by Mutation No.l, entered on 6.7.1934, and sanctioned on 25.11.1935. .On the death of Major Saheb Yar Khan, the land devolved on his two sons., namely, Muhammad Ibrahim, respondent No.2 herein, and Atta Muhammad. The latter sold his share to respondent Nos.3 & 4. 5. It will be seen, as observed earlier, that all along in the -land revenue record in the "ownership column" the names of the appellants' predecessors-ininterest continued to figure. The non-Muslims made an effort to have their names deleted and also succeeded in getting mutation No.4 entered in this behalf, but it was cancelled on 15.12.1938. Earlier, on 2.2.1936 Sojla and others filed a suit against Major Saheb Yar Khan, on the basis of their title, for possession of the land measuring 346 kanals, 4 marlas, forming part of joint kliata. It was claimed that they left their village in search of work and 11 years ago gave their land to Asir Mai defendant, for cultivation, subject to the condition that he would pay the land revenue and further pay their share of income to them on their return to the village, but in their absence he alongwith Haman Mai made unsuccessful attempt to get the land alienated in their names. This suit was dismissed on 19.12.1938, and a finding given that the land was in adverse possession of non-Muslims. Sojla and others did not challenge the dismissal of their suit through appeal. This decree, thus, attained finality. However, it was not given affect in the revenue record and the names of the Muslim owner continued to appear thereon. It is to be noticed that respondent No.2 and others also made a move to have their names substituted for that of Rehm Ah' and others on the plea that they were out of possession since long, the possession of Haman Mai, and for that matter of the vendee from him became adverse to them and matured into title in their favour by prescription. But, Mutation No.404 got entered by them in this respect was rejected by the Assistant Commissioner, Rahimyar Khan, vide his detailed order dated 16.4.1956. 6. One Haji Muhammad Qamar, who is not a party to the appeal before us, moved the Collector, Rahimyar Khan, that the appellants were in possession of the evacuee property unauthorizedly. This application was forwarded by him to the Deputy Custodian Evacuee Property under Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, and his opinion solicited as to whether the land could be allotted to the informer. The Deputy Custodian returned back the file to the Collector and maintained that the matter pertained to the Settlement and Rehabilitation Department. The Deputy Custodian's order is dated 17.1.1961. Earlier on 9.5.1960, the joint khata of the Muslims and non- Muslims was partitioned, with the result that the entire area covered by Mutations Nos, 71 & 124 was treated as evacuee property. This led the appellants to apply on 11.1.1961 to the Deputy Custodian, under Section 22 of the Pakistan (Administration of Evacuee Property) Act for declaration that the agricultural land, measuring 1741 kanals and 16 marlas, comprising their 22/24 share in the kliata was not an evacuee property. On the basis of the material before him, the Deputy Custodian held that the appellants' rights in the land in dispute were not affected by Mutations Nos.71 & 124; sale made by Haman Mai, in so far as it related to the land claimed by the appellants, was declared void and his possession not considered adverse to the appellants. The Deputy Custodian's decision is dated 14.4.1962, which was referred by him to the learned Custodian for confirmation. 7. Respondent No.2 and the vendees from Atta Muhammad preferred two separate appeals against the orders of the Deputy Custodian. These appeals and Reference made by the Deputy Custodian were heard together. The learned Custodian largely relied upon the Civil Court 's judgment dated 19.12.1938, and came to the onclusion that the Muslim share-holders i.e. predecessbrs-in-interest of the appellants lost their title in the land long before partition due to adverse possession of the on-Muslims. Consequently, by his order dated 27.5.1963 the learned Custodian accepted the appeals, declined to confirm the order of the Deputy Custodian and ismissed the appellant's application under Section 22 of the Act. 8. Aggrieved by the order dated 27.5.1963, the appellants filed Writ Petition Np.671-R/63, which was accepted on 6.4.1973 by a Division Bench of Bahawalpur Circuit of the Lahore High Court, and the order of the learned Custodian declared as without lawful authority and of no legal effect. Resultantly, k became incumbent upon the Custodian to decide the appeals and the Reference afresh. The reasons which prevailed with the High Court in interfering with the orders of the Custodian were that the land had been transferred to the non-Muslim "Basiga Malgazari", but no finding was recorded on the issue whether such transfer at its inception was awful and if it was lawful when did the transferee's possession became adverse to the real owners. The High Court noticed that Section 71 was never adverted to by any of the authorities below at any stage of this protracted litigation and the fact that the non-Muslims, who were co-sharers and held possession within defined limits, was ignored. 9. Pursuant to the remand order, after rehearing the case, the learned Custodian vide his order dated 24.6.1976 confirmed the Deputy Custodian's order dated 14.4.1962 and dismissed the appeal of the respondents on the ground that Mutation Nos.71 & 124 having been sanctioned "Basiga Malgazari'', the possession of Haman Mai was permissive and not on account of trespass into the land. It was maintained that real owners neither abandoned the land permanently nor the non- Muslims occupied the same against their wishes, but held it on payment of land revenue, on their behalf, and consequently their names continued to be entered in the revenue record, as owners. 10. Muhammad Ibrahim, respondent and the two vendees from Atta Muhammad, then filed Writ Petition No.ll8/R/76 to assail the validity of the Custodian's order. In the opinion of the learned Division Bench, which heard it, the possession of the non-Muslims was open, hostile and stood established by the Civil Court's judgment dated 19.12.1938, even if the initial possession was permissive and as co-sharers, by hostile steps of the non-Muslims, it became adverse to the real owners. It was held that though the Civil Court 's decree related to the land measuring 346 kanals, 4 marlas, its rationale would apply to the rest of the land as well. It was further observed that some land in the meanwhile was allotted to non-Muslims against which the appellants never agitated. This factor also influenced the decision of the High Court to raw an inference as to the loss of title of the real owners. 11. It is evident from the record before us, that Haman Mai acquired the possession of the land by virtue of Mutations Nos. 71 & 124 "Basiga Malgazari envisaged by Section 71 of the Land Revenue Act. Even if he was already in ossession, under a different character, upon his induction into the land "Basi a Malgazari" his possession became relatable to subsistence of a lawful title in the predecessors-in-interest of the appellants. Sub-Section (6) of Section 71 of he Punjab Land Revenue Act, 1887, lays down:- "When the transfer was for a term, the holding shall, on the expiration of the term, be restored by the Collector to the defaulter free of any claim on the part of the Government or the transferee for any arrear of land-revenue or rates and cesses due in respect thereof. Sub-Section (2) specifies the period of transfer, which as already observed, may be till the end of the agricultural year in which the defaulter-landlord pays the amount of arrears to the transferee. If it is not so, the transfer can last for a maximum period of 15 years. 12. Sub-section (6) enjoins a duty upon the Collector to take back the possession from the transferee after the expiry of the term, and restore it to the land owner. Anomalously, the period of transfer is not specified in the two mutations. This was an omission on the part of the Collector. But, the land owners could hardly be blamed for this failure of the Collector, nor would it immune him to carry into effect the provisions as to the restoration of possession. At the most, the transfer would be deemed to have endured for the maximum period of 15 years and thereafter in no case the Collector could disregard his statutory obligation, resulting in deprivation of the land owners of the possession. The true owners, who had no control over the exercise of powers by the Collector, could not be made to suffer an injury for his neglect. The provisions of Section 71 are confiscatory in character and in derogation of right to possess and enjoy one's property. In this view of the matter, it is abhorent to permit generation of mischievous consequences from the Collector's inaction, resulting in destruction of the rights of a true owner in his property by seting up a title in the transferee through adverse possession. The question is, what is the nature of the possession of a "transferee" of the holding under Section 71. It is obvious that the possession is taken over from the land owner by the Collector and passed on by him to the "transferee", who has to clear the arrears of land revenue. After the expiry of the term of transfer, the Collector is required to retrieve the possession and restore it to the land owner. The defaulter land-lower can pay to the transferee the arrears and get back the possession through the Collector at the end of the agricultural year in which payment is made. Upon the scheme of the section it can well.be • presumed that the "transferee" holds the land on behalf of the Collector; his possession is permissive and arises out of his agreement with the Collector, in pursuance of Section 71. The possession commencing under the authority of Collector does not transform into hostile one and ripen into title by mere length of occupation. Thus, the possession which in its inception is referable to operation of law and sub-servient to the title of the real owner, is to be presumed to continue as it began. 13. Even if it is assumed that a licencee can by prescription convert his permissive possession into an absolute ownership of the property, then a very clear cut and a positive disclaimer of title of the real owner and an adverse claim to his knowledge is essential. Such evidence is not forthcoming from the record, for throughout, in the revenue record the appellants' predecessors-in-interest were continuously shown as owners of the land; the attempts made for deletion of their names failed, and the possession of the non-Muslims all along bore the character of "Basiga Malgazarf. The High Court has not at all attended to the provisions of Section 71 and wrongly considered the Criminal Court's decisi n, in the proceedings under Section 145 Cr.P.C., and in the case under Section 447 PPC, as evidence of such' disclaimer pletely divorced from the vivid estrictions under Section 71 on the transferee's possession. It also overlooked the object and ingredients underlying the criminal proceedings under these provisions. It is correct that there was also a decree of the Civil Court holding the non- Muslim in adverse possession, but that decree was in respect of an area measuring 346 kanals, 14 marlas only. We are unable to understand as to how the rationaleof the decree could be extended to rest of the land, which was not subject matter of the suit and the title of the real owners extinguished. We regret our inability to ubscribe to the reasoning in this respect, whfch prevailed with the learned Judges hi the High Court. It is clear to us that regarding the land other than the one covered by the Civil Court 's decree, there was no clog on the title of the appellants. As regards the allotments, we are informed that these were made pendents lite and not confirmed. For all these reasons, the impugned judgment is set aside, and the order of the learned Custodian dated 24.6.1976, in so far as it relates to land other than B one covered by the Civil Court's decree dated 19.12.1938, is restored. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal partly accepted

PLJ 1991 SC 390 [Appellate jurisdiction] PLJ 1991 SC 390 [Appellate jurisdiction] Present: SHAFiuR rahman and ali hussain qazilbash, JJ MUHAMMAD ZAMAN and 8 others-Appellants versus ABDUL MALIK KHAN and 7 others-Respondents Civil Appeal No. 551 of 1988, accepted on 113.1991 [From judgment of Peshawar High Court, Abbottabad Bench, dated 22.1.1986, passed in Civil Revision No. 38 of 1980]. Redemption of mortgage- —Mortgage executed in 1894-Renewed in 1906-Redemption of-Challenge to-Acknowledgment of liability in respect of property or right, has necessarily to be made in writing signed by party against whom such property or right is claimed-Admittedly in this case, no such writing duly signed is available- Held: Contention that under section 8 of NWFP Restitution of Mortgaged Lands Act, 1950, period for redemption is necessarily extended upto 15 years, is erroneous-Appeal accepted and judgment of trial court restored. [Pp.392&395}A,B&C NLR 1984 Rev. 117 not approved. PLD 1983 Peshawar 58 approved. Maitlvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. M/4. Siddiqui, AOR (absent) for Appellants. Mr. Abdul Hakim K/ian, Senior Advocate, Supreme Court, and Mr. Manzoor Ilahi, £r-AOR for Respondent Nos. 4&6. Respondents Nos. 2,3,5,7 and 8: Ex-parte. Date of hearing: 11.3.1991. judgment Shafiur Rahman, J.-The plaintiffs/appellants happened to bfe the mortgagees under the defendants/ respondents on the strength of a mortgage deed executed in 1894 and renewed in 1906. It was to all appearances a usufructurary mortgage. The owners/mortgagors instituted proceedings under the North-West Frontier Province Restitution of Mortgaged Lands Act, 1950 (Act XXXII of 1950) seeking restitution of the entire mortgaged land without payment of any amount. Their claim succeeded only partly as noted by the trial court that "out of the area falling in suit khasra No.377 to 380,193/240 share and out of the area falling in suit khasra No.356 to 358, 73/120 share area has already been restituted/redeemed by the owner mortgagors defendants No.l to 8 through the orders of the Court of Collector Abbottabad certified copy of which is Ex.D.W.No. 1/1 which has already been incorporated in the revenue record through mutation No.295 and 296." Notwithstanding such redemption, the defendants/mortgagees instituted a civil suit from which this appeal has arisen claiming that the entire mortgage as originally existed remained unredeemed for over sixty years and they had on that account become full owners of the land of which they were mortgagees. The suit was contested but the learned Civil Judge allowed them relief only in respect of the property of which redemption had not been allowed by the Collector and to which more than sixty years' had elapsed, the mortgage remaining unredeemed all the while. 2. The plaintiffs, it appears, remained satisfied with the partial success. The defendnats/owners went up in appeal but met with no success. They filed a Revision which was allowed and the entire suit of the plaintiffs was dismissed. The ground for dismissal is reproduced as hereunder:- "Section 19 .of the Limitation Act, however, acknowledges acknowledgment in writing of a liability signed by the party or his agent against whom such property or right is claimed. Resale of mortgagee rights by the second mortgagee to the first mortgagee effected through mutation may not apparently fulfil the requirements of the section as the same are not signed by the vendor/mortgagor/second mortgagee. Nonetheless the mutations do contain the specific acknowledgement of. the original subsisting mortgage (?). Besides mutations are preceded by incorporation of a report by thepatwari under the signatures of the party to the transaction in the Raznamcha Waqiati which is further followed by specific acknowledgement/ admission by the vendor/mortgagor before the Revenue Officer. In N.L.R. 1984 Revenue 117 Gul Muhammad Khan, J. held that sale of mortgagee rights by oral mutation amounted to an acknowledgement and time for redemption would start running from the date of sale of mortgagee rights." 3. Maulvi Sirajul Haq, Advocate, the learned counsel for the appellants stated that the judgment of the High Court is violative of the express language of section 19 of the Limitation Act which it purports to interpret. The creation of sub-mortgage by mutations is not disputed. What is disputed is the acknowledgement in writing, signed by the party against whom the acknowledgement is to be enforced. He has also pointed out that the decision relied upon by the High Court namely,' Allah Bakhsh versus Member Board of Revenue, etc. (N.L.R. 1984 Revenue 117) proceeds on an actual assumption of the existence of a writing with signatures which assumption was demonstrated to be incorrect, so far as the facts of this case were concerned. 4. Mr. Abdul Hakeem Khan, Advocate, the learned counsel for the contesting respondents has on the contrary disputed the very ^mortgage being a usufructuary one and also claimed an extension in the period of limitation on account of the denial of relief to him under section 8 of XXXII of 1950. He has also pointed out that it was the defendants/respondents who had instituted proceedings under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (Act XIX of 1 64) in 1973 for the remainder of the land when the plaintiffs instituted the suit in order to thwart the restitution and redemption of the remainder. 5. It is correct that the High Court's judgment resulting in the dismissal of the suit is based entirely on section 19 of the Limitation Act which provides as hereunder:- "19. Effect of acknowledgment in writing.~(l) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an cknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgement is undated; oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation /.--For the purposes of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off; or is addressed to a person other than the person entitled the roperty or right. Explanation //.-For the purposes of this section, "signed means signed either personally or by an agent duly authorised in this behalf. Explanation ///.--or the purposes of this section an application for the execution of a decree or order is an application in respect of a right." "An acknowledgement of the liability in respect of uch property or right" has necessarily to be made in writing signed by the party against whom such property or right is claimed". Admittedly, in the case in hand no such riting duly singed is available. 6. In the case of Mst. Chandelinju and others versus Raghunatfisingh and others (A.I.R. 1952 Madhya Bharat 177) a Kliewat entry was verified and singed by the settlement officer and by the mortgagee who admitted therein the fact that he was in possession of the mortgage lands by virtue of a registered mortgage deed. On the mortgagee's death his sons applied for mutation in their favour stating in the application that they were mortgagees. The settlement entry and the application were made within 30 years of the date of execution of the mortgage. It was on the strength of such writings duly signed that both the kliewat entry and the application for mutation were held to amount to conscious acknowledgement of existing liability, so as to extend the period of limitation under Section 19 of the Limitation Act just reproduced above. 8. In the case of Allah Bakhsh (NLR 1984 Rev. 117) the reasoning was as hereunder:- "10. The question thus arising for determination is whether the time would start running from 1894 (the tune of the mortgage) or a subsequent date? It is clear from the Collector's order that mutation No.2876 dated 2nd February, 1917, of inheritance of the mortgage was attested in the name of Sobho, etc. mortgagee's sons. Then Bell Ram mortgagee died and mutation No.356 dated 2nd June, 1923 was attested in the name of his son. Then on the death of Sobho, a mutation of inheritance No.61 dated 26th March, 1939, was attested in his heirs' name. Similarly, the order dated 8th September, 1966, of the Collector mentions mutation No.1686 dated 3rd February, 1967, about sale of the mortgagee's rights. 11. It was held in Lala Ganga v. Lachman (1924) 85 I.C. 633 (All) that where a mortgage was recited in the Vajib-ul-arz prepared during a settlement, it was open to the Court to presume under section 144 of the Evidence Act that the recital constituted an acknowledgment, within the meaning of section 19 of the Limitation Act. The mutation dated 3rd February, 1907, is also a specific acknowledgement of the mortgage by the mortgagee and, therefore, the Additional Commissioner and the Member, Board of Revenue, ran in error in holding otherwise. Reference be made to M.CKadir v. Abdul Latif (PLD 1970 Kar. 708). The limitation thus had not run out. The mortgagor's right was in subsistence and the order of redemption was perfectly valid. In .any case, the order extinguishing his right was without authority and was a nullity." What the learned Judge deciding the case of Allah Bakhsh omitted to note was that in Lala Congo 's case mortgage was recited in the Wajib-ul-arz prepared during a ettlement effected under Regulation VII of 1822 as amended by Regulation IX of 1833, and the Wajib-ul-arz was attested and verified by the agent of the mortgagees. It as he writing and the signature both which made the entry of the Wajib-ul-arz operative as acknowledgement and not one independently of the other. 9. In the case of M.C. Kadir and Company referred to in the case of Allah khsh, a writing duly signed was available and the question was of its interpretation and effect, and the principles laid down were as hereunder:- "Next some rules have to be observed in construing a document which is set up as an acknowledgement of liability. One principle is, that the Limitation Act being a statute in derogation of the right to sue, exceptions in the Act must be construed liberally. A writing claimed to be an acknowledgement must, therefore, be interpreted liberally, so as to maintain the right to sue rather than in negation of derogation of such right The question then is, what is the reasonable test to determine whether a writing constitutes sufficient acknowledgement under secton 19 of the Limitation Act. Taking into consideration the rule laid down by the Judicial Committee inManiram Seth v. Seth Rupchand and in several other decisions reviewed above, according to which an admission of liability need not be expressed but may be inferred by implication from the language of the writing and the surrounding circumstances, we should think that the test is~(/) Whether there is admission of liability or of jural relationship;(//) Whether this admission is relatable to a subsisting liability or jural relationship, so that in the latter case, on ascertainment of facts constituting the jural relationship, as in the case of accounts between the parties, a debt 'or liability shall be found to exist against one or the other of the parties. This admission may be evident from the language of the writing itself, or may be inferred by implication, or by ascertainment from the surrounding circumstances if there (is) any ambiguity in the writing." 10. In case of Zarif K3\an and others versus Muhammad and others (PLD 1983 Peshawar 58) acknowledgement on the basis of the entries in the mutation register was directly brought under consideration and dealt with as hereunder:-"In the case in hand, in order to pover acknowledgment giving fresh start to the period of limitation, it is incumbent upon the mortgagors to prove the same within the four corners of the law relied upon. On going through the record of the case and the evidence produced by the parties acknowledgment as a question of fact was never specifically raised nor proved in the trial Court. The important ingredients for attracting the provisions of section 19 of the Limitation Act that the same must be in writing and signed by the person making it is totally missing. All the submortgages were created from time to time through mutation referred to above which are not required to be signed or thumb-impressed by the parties to the transaction. Mutations are the effect of the oral transaction entered into between the parties and reported to the relevant authority. Keeeping in view that the above- mentioned mandatory element of acknowledgment is missing in the present case, I have no hesitation in holding that the defendant appellants have utterly failed to prove a valid acknowledgment of the original mortgage giving fresh start of limitation under section 19 of the Act. The creation of sub-mortgage unless in writing and signed by the mortgagors (original mortgagees) and proved in Court of law as a fact does' not amount to acknowledgment within the meaning of section 19 of the Limitation Act." This, according to us, lays down the correct law on the question of acknowledgment and not the decision in the case of Allah Bakhsh. The learned counsel for the respondents attempted to avoid the claim of the plaintiffs in its entirety by contending that it was not usufructuary mortgage but only a sort of tenancy which was brought about and notwithstanding the original mortgage being time-barred, tenancy would continue. This has not been the question on which the suit or the defence has proceeded. We would not like to introduce a new dimension to the suit at this stage. 11. The other contention of the learned counsel for the respondents is that section 8 of Act XXXII of 1950 had by deferring the restitution to the expiry of 15 years to the sub-mortgage had necessarily extended the period for redemption of the mortgage itself by the number of years short of 15. This argument is erroneous because as between the owner mortgagor the sub-mortgagee, there was no privity of contract and acknowledgment such as may have the effect of extending the redemption period. What happened between the mortgagee and sub-mortgagees and the effect of restitution without payment, has nothing to do with the right of redemption on payment of whatever is due. Even on this reasoning by Act XIX of 1964, the Act XXXII of 1950 was repealed and substituted by another Act which permitted both redemption and restitution. The 15 years period claimed by the respondents also expired before the enforcement of Act XIX of 1964. 12. The learned counsel for the appellants could not point out how the redemption already ordered of a part of the land not affected by section 8 of Act XXXII of 1950 ould be avoided by them in seeking the declaration and the relief that they sought in the suit. 13. In the circumstances, we accept this appeal set aside the judgment of the High Court and restore that of the trial court as upheld in first appeal. No order is made as to costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 SC 395 PLJ 1991 SC 395 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN, S.USMAN ALI SHAH & ALI HUSSAIN QAZILBASH, JJ. Brig. SHER ALI BAZ-Appellant versus SECRETARY, ESTABLISHMENT DIVISION and 112 others-Respondents Civil Appeals Nos. 54 and 55 of 1987, dismissed on 13.11.1990. [From judgment of Federal Service Tribunal, dated 12.12.1984, passed in Appeals Nos. 90(R) and 110(R) of 1984]. (i) Interpretation of Statutes- —There is a very well entrenched principle of interpretation of statutes and statutory instruments and it is "Generalia specialibus non derogant" which means "General ords do not derogate from special provisions, or special provisions will control general provisions". [P.400]D 2 J & H 31, 54, 35 Ch D 389 and 16 CLR 468, 473 ref. (ii) Seniority- —Joint Secretaries-Appointment by lateral Entry-Whether appellants could count their service as Brigadier in Army towards seniority in civil ervice- Question of—There was, in rules, no comparison, no equation and no reference to any "Grade", "Scale" or "Rank" outside civil services-Rank of Brigadier was totally alien to rules in which "Grade" is defined and Act under which those rules were framed-Held: Seniority being not a vested right nder Section 8 of Civil Servants Act, 1973, principles of equivalence had not effect of prejudicially affecting anyone else already in service in or in competition or seniority. [Pp.399&400]A,B&C Mr. Abdul Hakeem KJian, Senior Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex-AOR for Appellants (in both appeals). Ch. Ijaz Ahmad, Deputy Attorney General for Pakistan and Ch. AkhtarAK, AOR for Respondents (in both appeals). Date of hearing: 28.10.1990. judgment Shafiur Rahman, J.~Leave to appeal was granted in these two appeals to examine whether Rule 9 of the Secretariat Group Service Rules/Para 10 of Establishment Division Office Memorandum No.2/2/75-ARC, dated 21st February, 1975, read with Presidential Order/Office Memo No.l6/4/79-AV dated 8th August, 1979, had not the effect of entitling the two appellants who had rendered Army service as Brigadier, to count such service for the purposes of seniority as Joint Secretary in the Federal Government after their appointment as Joint Secretaries. 2. Brigadier Sher Ali Baz, the appellant hi Civil Appeal No.54/1987 was commissioned in the Army in the year 1948 and rose to the. rank of Brigadier on 7-8-1970. He was seconded to the Federal Secretariat as a Joint Secretary on 1.9.1975. He appeared at the lateral entry examination of Joint Secretary, qualified it and was appointed so on 9.8.1976. His seniority was however, antedated to 30.7.1975 when a person junior to him in tHe lateral entry examination had been appointed. 3. Brigadier Abdur Rashid, the appellant in the other appeal (C~A.No.55/1987) was commissioned fn the Army in 1950. He rose to the rank of Brigadier (on) 2.10.1973 and took over on secondment as Joint Secretary on 7.10.1978. He was absorbed as Joint Secretary in the Secretariat Group on 9.10.1981 but was given his seniority from 7.10.1978 when he had come on secondment. 4. The two appellants felt that they had a case for claiming their seniority and service rendered as Brigadier hi the Army for the purposes of seniority as Joint Secretary when Cabinet Secretariat (Establishment Division) issued the Presidential Order which is as hereunder:- "Government of Pakistan Cabinet Secretariat (Establishment Division) No. 16/4/79-AV. Rawalpindi, the 8th August, 1979 The President has been pleased to approve the following 'principle of equivalence' between the rank held in the Defence Services with appointments in National Pay Scales:- Defence Service Rank Major General and equivalent. Brigadier and equivalent. Colonel (with 18 to 20 years commissioned service) and equivalent. Major and equivalent. Captain and equivalent and Lt. and 2/Lt. and equivalent. Grade-21 or 22 at the discretion of the Government. Grade-20. Grade-19. Grade-18. Grade-17. Sd/- (SHAHID HUMAYUN) Section Officer Tele: 67548. All Ministries/Divisions Islamabad/Rawalpindi/Karachi." 5. When the Seniority List (was) issued on 17.8.1981, they found that their earlier service as Brigadier was not reckoned. Brigadier Sher AU Baz represented against it in time. He received the rejection of his representation on 26.4.1982 and filed the appeal before the Tribunal on 25.4.1982. His appeal suffered from no defect of laches or limitation. 6. Brigadier Abdur Rashid did not approach the Tribunal after availing of the remedy of representation before the departmental authorities in time but when others om e considered junior were promoted on the basis of the seniority list of 17.8.1981 without his Army service being taken into account for the purposes of promotion he again represented and approached the Tribunal. The Tribunal found his appeal to be time barred but considered that as the position of seniority was somewhat uncertain and an identical matter was directly in issue in the other appeal, it condoned the delay and proceeded to dispose of both the appeals on merits. 7. The decision of the Tribunal, though each Member of the Tribunal has written a separate order, was unanimous that the appellants could not claim the benefit of service rendered as Brigadier. 8. Mr. Abdul Hakeem Khan, Senior Advocate, the learned counsel for the appellants has placed reliance on the fact that the rank of a Brigadier in the matter of remuneration and perquisites happened to be higher to that of a Joint Secretary to the Federal Government though the President by a specific Order equating it to the Joint Secretary rank had made the matters beyond challenge and there was a precedent of the Senior Administrative Officers being given their earlier seniority on appointment as Joint Secretary at least from the date that the National Pay Scales were introduced, i.e. 1.3.1972. 9. Ch. Ijaz Ahmed, the learned Deputy Attorney General for Pakistan has supported the judgment of the Tribunal and has further contended that the two appeals before it were incompetent; that of Brigadier Abdur Rashid being barred by time as held by the Tribunal itself and that of the other appellant (Brigadier Sher Ali Baz) being pre-mature as he filed it the very next day to the rejection of the representation against the seniority list instead of waiting for the requisite period. 10. The Secretariat Group to which the appellants belonged was constituted by an Office Memorandum relating to Administrative Reforms on 21st of February, 1975. Paragraph 4 and 10 of these instructions are reproduced hereunder as they are relevant:- "4. Joint Secretary:- Appointment to the post of Joint Secretary will be made as under: (/) By selection on the basis of examination and interview etc., held periodically for lateral entry to senior posts in the Federal Secretariat. (h) By horizontal movement of such Grade-20 officers of the various occupational groups as are recommended by Ministries/Divisions, Departments, Provincial Governments etc., and are found fit by the Central Selection Board." "10. Joint Secretary:- The seniority of Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiation in Grade-20." 11. This Office Memorandum was substituted by another Office Memorandum dated 12th of April, 1976 and the corresponding Paragraphs therein are Paras/Rule 4 and 9 reproduced as hereunder:- "4. Joint Secretary. -Appointment to the post of Joint Secretary will be made as under:- (/) By promotion of officers in the grade of Deputy Secretary on the recommendations of the Central Selection Board. (h) By horizontal movement of such Grade-20 officers of the various occupational groups as are recommended by the Ministries/Divisions, Departments, Provincial Governments etc. and are found fit by the Central Selection Board. (Hi) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc., as may be prescribed"."9. Joint Secretary.—The. seniority of a Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiation in Grade-20". 12. On 4th of October, 1977, were issued the principles of seniority of officers who had been inducted by the lateral entry into the Cadre and these are in the following terms (page 231 of ESTACODE -1989 Edition, Serial No.161):- "The fundamental rules regarding the seniority of officers inducted by lateral entry into civil cadres are based on the following considerations:- (i) the date of induction of the officer; (ii) the grade in which he is initially inducted; (Hi) his seniority in that particular grade in which he is inducted, is fixed with reference to his date of induction; and (/v) his seniority in his original service to which he belonged becomes irrelevant after he has been inducted into a civil cadre with effect from a particular date. 2. These are basic principles of induction of lateral entrants into civil cadres". The Rule of decision with regard to seniority is formally expressed in Rule 9 of the Secretariat Group Rules and it provides for continuous regular officiation in Grade-20. The word 'Grade' has been defined in the Civil Servants (Change of Nomenclature of Services and Abolition of Classes) Rules, 1973 in the following words:- "Grade" means a National Scale of Pay in which a post or group of posts is placed"; "Services" has been defined in the same Rules as "Civil Services of the Federation". Not only the Act under which these Rules were framed but the Rules themselves were confined in their operation to the civil services. There was no comparison, no equation and no reference to any 'Grade', 'Scale' or 'Rank' outside the civil services. Hence, the rank of Brigadier was totally alien to the rules in which the word 'Grade' is defined and also in the Act under which those Rules were framed. 13. The National Scales of Pay were also, as appears from Serial No.2 at page 403 of ESTACODE 1983 Edition, available only to civil servants as is indicated from the ollowing recital - "The President has been pleased to sanction the Scheme of National Scales of Pay, Allowances and other Fringe benefits for gazetted civil employees (other than teaching personnel) of the Federal Government, paid directly from the Civil Estimates or from the Defence Estimates as detailed below: " 14. It follows, therefore, that continuous regular officiation in Grade-20 would have application to no other Scale of Pay, remuneration, rank or other financial benefits except those that were made available to the civil servants and on that view of the matter, the rank of Brigadier would be wholly irrelevant for determining the seniority of the appellants. 15. Much strength is sought to be derived by the appellants from the equivalence formula of 8th August, 1979. It does not speak of the purpose for which this equivalence formula has been prescribed. It makes no mention of seniority or addition of the rank service in the comparable appropriate seniority in National Scales of Pay. It speaks of principles of equivalence between the rank held in Defence Services with the appointment in National Scales of Pay. This has not been interpreted even by the Department itself as entitling the persons to rank seniority on their absorption, appointment or induction into the appropriate grade in National Scales of Pay. It has not that effect in view of the formal rules framed on the subject and reference to which has been made and which provide so differently. It cannot be of avail for claiming benefit of rank seniority in the Army, Navy or the Air-Force in civil employment. 16. The appellants consider the principles of equivalence to be declaratory of the law of the land, so having retrospective effect. They consider it to be an eminently just and equitable dispensation by the President, well within his powers and obligations under Section 23 of the Civil Servants Act. Seniority being not a vested right (Section 8 of the Civil Servants Act), such a dispensation had not the effect, according to them, of prejudicially affecting anyone else already in the service in or in competition for seniority. 17. The dispensation invoked by the appellants is general. It deals with all the commissioned ranks of the army. It deals with all the Gazetted ranks of the Civil Service. It speaks of no object and purpose. It by itself achieves nothing. It has neither a beginning nor an end. There is a very well entrenched principle of interpretation of statutes and statutory instruments and it is Generalia specialibus non derogant meaning "General Words do not derogate from special provisions, or, "special provisions will control general provisions". This principle of interpretation found recognition in Fitzgerald v. Champneys (2 J & H 31), 54 quoted with approval in Re Smith's Estate, Clements v. Ward, 35 Ch D 389; Marbury v. Plowman, 16 CLR 468, 473) by Wood, V.C. in the following words:- In passing the special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated". 18. In the circumstances, such a general dispensation as has been invoked by the appellants cannot have the effect of displacing to any extent the special provisions, the specific and formal provisions already in existence with regard to the seniority of those entering laterally as Joint Secretary. The position of officers of Senior Administrative fficers Grade was altogether different. They were in the Civil Service. They were acting as Joint Secretaries and the change in nomenclature made no difference o them nor did the encadrization of Joint Secretaries. 19. The appeals have no merit and are dismissed with no order as to costs. (MBC) (Approved for reporting) Appeals dismissed

PLJ 1991 SC 401 [Appellate Jurisdiction] PLJ 1991 SC 401 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN, S. USMAN AU SHAH AND ALIHUSSAIN QAZILBASH, JJ. ABDUR RAUF KHAN-AppeUant versus GOVERNMENT OF NWFP and 3 others-Respondents Civil Appeal No.26 of 1987, accepted on 25.11.1990. [From judgment of NWFP Service Tribunal, Peshawar, dated 25.6.1984, passed in Appeal No.67 of 1981]. NWFP Senior Judicial Officers (Terms and Conditions of Service) Rules,1979- —R.5 read with Constitution of Pakistan, 1973, Article 175(3)—Additional District and Sessions Judges-Promotion to post of District and Sessions Judge-Whether commendation of High Court was binding on Governor-­ Question of-Rules recognised requirement of Article 175(3) of Constitution about separation of Judiciary— ppointment to post of Senior Judicial Officier in any capacity, had to be made under Rules on recommendation of High Court-Held: In subjecting recommendations of High ourt to further examination by Selection Board, and in not accepting recommendation of High Court, Governor has violated rules which have a constitutional backing and orce-Appeal accepted. [Pp.404&405]A,B,C&D Mr. Abdul Hakeem Kiian, Senior Advocate, Supreme Court and Ch. Akhtar All, AOR for Appellant. Mr. KG. Sabir, Advocate, Supreme Court, for Respondent No.l. Nemo for other respondents. Date of hearing: 17.11.1990 judgment Shafiur Rahman, J.-Leave to appeal was granted to a senior Judicial Officer of North-West Frontier Province under Article 212(3) of the Constitution to examine whether the appointments to the post of District & Sessions Judge were to be necessarily made on the recommendation of the High Court and whether the Provincial Government was justified in not abiding by the requirement. 2. On the 28th of June, 1981, the following notification (was) issued:- "No.SOI(S&GAD)4-96/79-II. In accordance with the provisions of rule 8- B(l) of the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, the Governor NWFP, is pleased to appoint Mr.Muhammad Nawaz Khan, Malik Muhammad Pervaiz and Miss Khalida Yousaf, Additional District & Sessions Judges (Grade-18) as District & Sessions Judges (Grade-19) on acting charge basis with immediate effect and until further orders". 3. The appellant submitted a representation to the Governor that he was recommended by the High Court for promotion to the post of District & Sessions Judge (Grade-19) and under the Rules applicable "the Governor had no choice, but to order accordingly and the Provincial Selection Board had no role to play, nevertheless the P.S.B. in flagrant disregard of the law and precedents proceeded in a manner "with total absence of power to deal with the case". Finding no relief, he approached the N.W.F.P. Service Tribunal which too rejected his claim and the decision of the Tribunal is based on the following findings:- (i) "The first point for determination is as to who was senior as Additional District and Sessions Judge. In this connection it may be mentioned that the three respondents were promoted as Additional District and Sessions Judges on regular basis with effect from 15.1.1979,11.1.1979 and 6.1.1979 while the appellant was appointed as Additional District and Sessions Judge on regular basis with effect from 3.11.1979". (i) "The word 'shall' used in the 2nd line of rule 4 does not mean that the Governor was bound to accept the recommendation of the High Court. If that was theintention of the rules then it would specifically have been mentioned in the rules that the Governor would be bound by the recommendation of the High Court. The rule as it is, merely lays down that the Governor is not to make promotions without first asking for the recommendation of the High Court. Rule 5(b) read in the light of the rule 4 clearly suggests that the Governor has to pass an order in his discretion after asking for and considering the recommendation of the High Court. This second contention of the. learned counsel is also, therefore, repelled". (Hi) "..rules of 1979 do not provide for any minimum or maximum length of service for promotion to the various grades and in view of Section 10 mentioned above the rules of 1975 to that extent will be applicable in the instant case. According to these rules the case had to be put up to the Provincial Selection Board as none of the officers .was eligible for promotion in view of their length of service and there is thus no force in this last contention of the learned counsel as well". A Member of the Tribunal who recorded a separate opinion made the following reservation:- "It may, however, be mentioned, rather clearly, that whenever regular promotions are made either before or after the completion of the required length of service fresh recommendations of the High Court shall be obtained which shall be placed before the "Competent Authority" with separate set of observations, if any, by the S&GAD or the Provincial Selection Board, but neither of these Advisory Bodies, shall with-hold the recommendations of the High Court when placing before the "Competent Authority" the promotion case of appellant and respondents No.2 to 4, for order". 4. Mr.Abdul Hakeem Khan, Advocate, the learned counsel for the appellant has reiterated his claim and the grounds as were put forward before the Service Tribunal and did not prevail there. 5. When this appeal came up for hearing at an earlier date, we found in the written statement of the Government a recital to the following effect:- "Para-3 and 4. Admitted to the extent that the appellant in the first instance was recommended by the Peshawar High Court for promotion as District & Sessions Judge but when it was pointed out to the High Court, that on the basis of seniority the appellant was not within the zone of promotion, the High Court recommended those Additional District & Sessions Judges who were senior to the appellant". To substantiate it, we called for the Record. We have been supplied a Working Paper dated 3.5.1981 which is called a "Supplementary Working Paper" signed by the Registrar of the High Court and it makes a mention of facts as hereunder:- "In continuation of our previous working paper and the recent development made in a meeting of the Provincial Selection Board held on 30.4.1981, the Chief Justice and Judges of the Peshawar High Court, Peshawar have been pleased to recommend the following Additional District & Sessions Judges (Grade-18 + Rs.220/- S.P) for promotion to Grade-19:- 1. Mr.Muhammad Nawaz Khan. 2. Malik Muhammad Pervez. 3. Miss Khalida Yousaf. This is being done for the reason that if for one reason or the other the officers previously recommended for Grade-19 are not found suitable for promotion to Grade-19 then the above mentioned three officers may be considered for promotion to Grade-19 as they are next senior in the seniority list". 5. If this is the only document with the Government for making the comments which it did before the Service Tribunal, then we are clear that the comments were factually incorrect and misleading and this should not have happened at the instance of a party to the proceedings, more so the Govern ent itself. The High ourt did not at any stage substitute its recommendations. On the contrary, it reiterated it even while submitting the alternative proposal. 6. In order to understand the issue involved, it is necessary to go through the rules applicable. In exercise of powers possessed by the Governor under sub­ section (1) of Section 26 of the North-West Frontier Province Civil Servants Act, 1973. (N.W.F.P. Act XVIII of 1973), the Governor framed on the 29th of August, 1979, the North-West Frontier Province Senior Judicial Officers (Terms and Conditions of Service) Rules 1979 (hereinafter referred to as the Rules). It came into force at once. In the definition clause, 'post' was defined to mean "a post of an Additional District and Sessions Judge or, as the case may be a District and Sessions Judge". Rules 5 and 10 which are relevant for the purpose of this appeal are reproduced hereunder in extenso:- "5. Method of recruitment.--^) Recruitment to posts under these rules shall be made n the following manner; (a) in the case of Additional District and Sessions Judges; (/) not less than two-third by promotion, on the recommendation of the High Court, from amongst the holders of the posts of Civil Judges who have rendered atleast five years service as such; and (//) not more than one-third by initial recruitment, in the manner specified in sub-rule (2), from amongst the members of the Bar with such qualifications and experience as specified in Rule 7, and (b) In the case of District and Sessions Judges, by promotion on the recommendation of the High Court, on the basis of seniority-cum-fitness, from amongst the holders of the posts of Additional District and Sessions Judges. (2) For filling up vacancies specified in sub-rule (l)(a) («') above, the High Court shall recommend the names of suitable candidates twice the number of vacancies to be filled and Government would make selection from amongst such candidates for appointment to the said posts". "10. General rules.--ln ah 1 matters not expressly provided for in these rules, the holders of posts under these rules shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them". 7. Rule 5 reproduced above had a constitutional backing. At the time when the rule was framed, though the Constitution had been kept in abeyance it contained a provision in Clause (3) of Article 175 that "the Judiciary shall be separated progressively from the Executive within five years from the com encing day". On this requirement the period of five years (which period has since been extended to fourteen years by P.O.14 of 1985) expired on 24th August, 1978. The Rules recognised his requirement of the Constitution and the separation constitutionally mandated demanded that the recommendation of the High Court should be treated as sacrosanct in the matter of Senior Judicial Officers appointment. The Service Tribunal has unfortunately used the word 'discretion' for Governor, which has an altogether different connotation. The discretionary functions of the Governor are specified in the Constitution. It is not possible to add to them by such dispensation. 8. The appointment to the post of Senior Judicial Officer, whether acting, officiating, temporary or in any capacity, had to be made under the Rules on the recommendation of the High Court. No departure can be countenanced under the Rules from the recommendation. If the recommendations are defective then the High Court can be called upon to reconsider it in the light of Rule and Regulations but nothing more can be done. It is for the High Court to determine as to who is more qualified to hold a Judicial post and as between the Governor and the High Court the recommendation of the High Court has to prevail. If anybody feels aggrieved by it, he may approach the Service Tribunal just as he can do if the grievance is against the Order of the Governor. It is clear to us that in subjecting the recommendations of the High Court to a further examination by the Selection Board and in not accepting the recommendation of the High Court in the matter of appointment, the Governor has violated the rules which have a constitutional backing and force. 9. In view of the existence of the Rules which were 'Special', recourse to the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, which are 'General' in character, was impermissible, and on the strength of Rule 10 of the Rules, Rule 8-A of the Appointment Rules also, was not attracted, for the purposes of making appointments not in conformity with the recommendation of the High Court. 10. In the circumstances, we allow this appeal, set aside the judgment of the Service Tribunal and grant necessary declaration to the appellant that the promotions made otherwise departing from the recommendations of the High Court are against law and would not impair the rights of the appellant in any manner whatsoever. No order is made as to costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 SC 405 [Appellate Jurisdiction] PLJ 1991 SC 405 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, ABDUL SHAKURUL SALAM AND MUHAMMAD rafiq tarar, JJ MAHIA and 5 others-Appellants versus SHAHIYA and 7 others-Respondents Civil Appeal No. 121 of 1987, dismissed on 8.5.1991. [On appeal from judgment dated 18.11.1979, of Lahore High Court, in RSA No. 687 of 1978] Inheritance- -—Murderer-Whether heirs of a murderer can inherit property of victim- Question of—Held: Even if there was some difference of opinion amongst Muslim Jurists on this question, it has been settled by Ordinance I of 1991 (commonly referred to as Qi&as & Diyat Ordinance), Section 317 of which has made a provision on question of succession whereunder murderer and his progeny are debarred to inherit property of victim—Appeal dismissed . [ Pp.406&407]A,B,C,&D PLD 1964 Lahore 451 discussed. Mr. M. Rashid Onightai , Advocate Supreme Court, instructed by Ch. Mehdi KJian Mehtab , AOR for Appellants. Respondents: Exparte . Mr. S.M. Masud , Advocate, Supreme Court asAmicus Curaie . Date of hearing: 8.5.1991. judgment Nasim Hasan Shah, J.-This appeal, by leave of this Court is directed against the judgement dated 18.11.1979 passed by the Lahore High Court whereby the appellants' Regular Second Appeal arising out of an inheritance case was dismissed. Mahia appellant was convicted under Section 302 PPC for the murder of his father Ramzan . His appeal partly succeeded. The conviction was altered to (section) 304 Part-II PPC and sentence was, accordingly, reduced. As for the facts, which form the background to the present litigation, it is sufficient to state that the case of inheritance of Ramzan deceased was ultimately decided against the appellants on the ground that the appellant No.l ( Mahia ) being himself the murderer of his father would be excluded from inheriting as a heir on the basis of the rule of Muslim Law of Inheritance that a murderer cannot inherit the property of his victim. So far as appellants Nos.2 to 6, who are the sons and daughters of appellant No.l are concerned they have also been deprived of the inheritance on the ground that although under the Family Laws Ordinance, 1961, after the exclusion of their father from inheritance, they as grand-sons and daughters of Ramzan would have ordinarily obtained their father's share, they could not avail of this benefit as the Muslim Law of Inheritance also deprives the progeny of a murderer in so far as inheritance of the victim is concerned. The High Court in coming to this conclusion relied upon Mst . Begtiman and 2 others vs. Saroo & another (PLD1964 (W.P.) Lahore 451) and Kenshava Kom Sanyellappa Hosmani & another vs. Girimallappa Somasagar (A.I.R. 1924 Privy Council 209) which enunciate the principle that a slayer is deprived of the inheritance of his victim and so also are his lineal descendants deprived. The relevant observations, in this connection, appearing in the case of Mst . Beguman & otliers vs. Saroo & anotlier (PLD 1964 Lahore 451) are as follows:- "Under the principles of justice, equity and good conscience, a murderer or his progeny cannot be allowed to benefit by his crime of murder. The murderer may be the father alone but if the descendants claim through him even though not merely from him their title becomes tainted as the source or the channel through which the inheritance has to flow to them becomes blocked and extirpated by reason of the crime committed by that source". Leave was granted by this Court as it was contended that there was a difference of opinion amongst the Muslim Jurists and Aima on the question whether the heirs of the murderer would also be excluded from inheritance and that this was a case of first impression so far as this Court was concerned. Today when the case has come up for hearing, the situation is altogether different. Even if there was some difference of opinion amongst the Muslim Jurists on this question but now this question is only of academic interest in Pakistan . The reason being that Ordinance I of 1991 (commonly referred to as the Qisas & Diyat Ordinance), which is now in force in Pakistan, has settled this controversy, if there was any, by a specific provision. By Ordinance I of 1991, Section 299 to Section 388 in Chapter XVI of the Code on the subject of "Offences affecting the Human Body" have been substituted by new provisions based on Islaimc Injunctions and Section 317 of theCode (as amended) has made a provision on the question of succession to persons committing qall and it is as follows:-. "317. Person committing qatl debarred from succession.- Where a person committing qatl-i-amd or qatl shibh-i-amd is an heir or a beneficiary under a will, he shall be debarred from succeeding to the estate of victim as an heir or abeneficiary". In this case under the final judgment of the High Court even if Ramzan cannot be treated as having committed qatl-i-amd , the offence found by the High Court to have been committed by him is a graver offence than the offence of Qatl-i-shibh-i-amd . This is defined in Section 315 of the Code (as amended) to mean-- "315. Qatl s/H"Wi-j-flwd .--Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd ." In view of these statutory provisions, the question no longer remains res integra . The result is that this appeal must fail and it is, accordingly, dismissed hereby. The parties are, however, left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 407 [Appellate Jurisdiction] PLJ 1991 SC 407 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and muhammad rafiq tarar, J IQBAL-Petitioner versus Mst . JINAN-Respondent Civil Petition No. 163-L of 1991, dismissed on 22.4.1991. [On appeal from judgment dated 15.12.1990 of Lahore High Court, in C.R. No. 2234 of 1990] Legal Aid Department- —Females—Property of—Usurpation of—During hearing of petition, it transpired that petitioner had obtained or even now is attempting to obtain property belonging to his sisters-Held: It is fit and proper, for doing complete justice, to refer question of property dealings between petitioner and his sisters inter-se, to Legal Aid Department of Pakistan Bar Council, for research/advice to any concerned person and/or further legal action, if necessary. [P.408]A PLD 1990 SC 1 rel . Sardar Mohabbat All Dogar , Advocate, Supreme Court, and Mr. Mahmood A. Qureshi , AOR for Petitioner. Respondent: Not represented. Date of hearing: 22.4.1991. judgment Muhammad Afzal Zullah , CJ.--This petition for leave to appeal is barred by time. It is dismissed, accordingly. However , it is observed that before it was noticed that the petition is time barred we had heard the learned counsel for the petitioner on merits in support of this petition and were unable to discover any infirmity, legal or otherwise in the impugned judgment. Thus there is no case on merits either. During the hearing of the petition it transpired that the petitioner had obtained or even now is attempting to obtain the property which belongs to his sisters including the respondent. They are several in number . It seems there have been several ups and downs in the will of the sisters to resist the claim of the petitioner. We questioned his learned counsel. He has perhaps succeeded in what could be treated as grabbing the property or atleast depriving his other sisters of their due share on one or the other pretext. This Court has in a recent judgment Ghulam All and 2 others vs. Mst . Ghulam Sarwar Naqvi and 2 others (PLD 1990 Supreme Court 1) laid down certain conditions regarding transactions between male and female, close Muslim relations, regarding ownership of property and its surrender/alienation inter-se. The case of the other sisters is not before us in this matter. By way of abundant caution, in view of certain consequential observation made in the case of Mst . Ghulam Sarwar Naqvi , we consider it fit and proper for doing complete justice to refer the question of property dealings between the petitioner and his sisters inter-se, to the Legal Aid Department of the Pakistan Bar Council for research/advice to any oncerned person and/or for further legal action, if necessary. The result of these investigations shall be sent to this Court. (MBC) Approved for reporting) Petition dismissed.

PLJ 1991 SC 410 PLJ 1991 SC 410 [Shariat Appellate Jurisdiction] Present: SHAFIUR RAHMAN AND PlR MUHAMMAD KARAM SHAH, JJ ZAHIRUDDIN-Appellant versus THE STATE-Respondent Criminal Appeal No. 6(S) of 1988, accepted on 16.2.1991.

[From judgment of Federal Shariat Court , dated 8.12.1987, passed in Criminal Appeal No. 214/1 of 1987] Benefit of doubt-- — Heroin-Recovery of-Conviction under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979--Challenge to— Held: After going through entire evidence, mainly documentary evidence, and defence of appellant, it is found that prosecution has not been able to establish case against appellant beyond reasonable doubt and appellant was entitled to be given benefit of doubt and acquitted on account of it-Appeal accepted. [Pp.410,414,415&416)]A&B Mr. Q.M. Salim, Senior Advocate, Supreme Court and Mr. Manzoor Ex-AOR for Appellant. Ch. Muhammad Aslam, Advocate, Supreme Court for Advocate General, Punjab . Date of hearing: 16.2.1991. judgment Shaflur Rahman, J.--Leave to appeal was granted to Zahiruddin convict under Article 4 of the Prohibition (Enforcement of Hadd) Order, !979 (hereinafter referred to as the Hadd Order) to reappraise the evidence with a view to examine the correctness of his conviction and sentence under Article 4 for which a sentnece of five years R.I. was ultimately imposed on him alongwith fine. 2. In view of the relaxation of rules ordered by the Hon, Chief Justice on 4.1.1991 about the hearing of such appeals by a Bench of three Judges of tEis Court, this appeal has come up before a Bench of two Judges for disposal and is being disposed of under the relaxed rules. clearance and Zahiruddin having provided the keys by which it was opened. Before the trial in both the jurisdictions i.e., the Customs and the criminal courts, the case against Buniad Ali, for reasons not very clear, was withdrawn by the Federal Government and only Zahiruddin was prosecuted. Three witnesses were examined by the prosecution; Inamul Haq (PW-1), the Customs Officer who made the recovery, Muhammad Taj (PW-3) being the A.S.I, who conducted the investigation and Muhammad Riaz (PW-2) who is the son of the Clearing Agent and was present at the time of recovery. Another witness Jamshed Iqbal mentioned in the proceedings was examined as a Court Witness (CW-1). In defence, one Mustjab, Officiating Superintendent Interpol was examined who produced a document Exh.DA with regard to prosecution of Nigerian passenger Mustafa Kadoro in Nigeria as a result thereof. 5. The plea of the appellant remained throughout one of denial and he made the following statement in respect of his involvement in the matten- "I am employed as Engineer in Nigeria for the last ten years. The elder brother of Mustafa Kaudoro namely Mujtaba Kaudoro is working in the same company where I am employed. Therefore Mustafa Kaudorq was known to me. Mustafa Kaudoro alongwith me purchased 20 or 25 dozens ci frames of glasses from a Shop at Kashmir Road Saddar Rawalpindi, lie told me that he had a licence with him and some complication might be created. I approached Buniad Ali Shah who is son of Supdt. of Custom, to help in this matter. I ar»d Buniad Ali Shah came to Islamabad Airport at 8 AM, on 14.4.85. Mustafa Kaudoro and Saeed had already got the booking of the attachecase, through Entol Booking Agency, and the attachecase was already sent to Custom Hall for custom clearance. I and Buniad Ali Shah contacted Jamshed clearing agent working in Pakistan baggage. He took passport and ticket of Mustafa Kaudoro and got the photostat of them. After completing the formalities he handed over the relevant papers to the Supdt. I and Buniad Ali Shah were waiting outside the custom hall near PIA building. At that time, Mustafa Kaudoro and Saeed Ahmad were also present there. Jamshad agent informed us that Deputy Supdt, Custom had informed him that he entrusted Inamul Haq for checking of attachecase, and also asked us to wait because Inamul Haq Inspector was not present there at that time. As Mustafa Kaudoro had and Saeed Ahmad had to go in the flight at 10 AM, therefore, he handed over attachecase to Jamshed for its clearance. At about 9.30 AM, Inamul Haq Inspector Custom came there and Jamshed handed over to him the relevant papers and the key. After that, Inamul Haq entered the custom hall alongwith us, and examined the suitcase. He torn out the cloth from the walls of the suitcase, and directed Jamshed to take the suitcase to Asstt. Collector Ibrar Ahmed and also directed us to reach there. Riaz Butt PW met us in the way, at the distance of about 330 yards from custom hall. I was arrested at about 10 or 10.30 AM. I was forced by Wasim Inspector to sign notice under Customs Act. I had no information or knowledge that there was heroin concealed in the suitcase and the heroin does not belong to me.Mustafa Kaudoro has been convicted, outside the country, but I do not know where he has been convicted. I am innocent and have been falsely implicated." . The trial Court believed the prosecution case by observing as hereunder:- "The prosecution version is that accused Zahiruddin produced the key of the suitcase. In order to prove this version, the prosecution produced two witnesses, who consistantly deposed that accused Zahiruddin produced the key of the suitcase. There is no major discrepancy in their statements. They are not inimical towards the accused. There is no chance of false implication. The report of Chemical Examiner is positive in connection with the heroin recovered from the suitcase. As such, taking into consideration the evidence on the record, and in the light of above discussion, I am conviced that the prosecution has succeeded to prove the charge framed against the accused beyond any shadow of doubt." It convicted the appellant under Article 4 of the Hadd Order and sentenced him to ten years R.I., 20 stripes and a fine of Rs.10,000/-. 7. The convict appealed to the Federal Shariat Court which rejected the appeal against conviction but reduced the substantive sentence to R.I. for five years (see PLJ 1988 FSC 23). The sentences of fine and whipping were, however, upheld. While concluding so, the Federal Shariat Court observed as hereunder:- "All that showed that the appellant was fully conscious of all the articles kept in the suitcase. It is also evident from the record that Mustafa Kaudoro to whom allegedly the suitcase belonged has been convicted for an offence under narcotics. It is admitted by the appellant that he was employed in Nigeria and was working in the same factory where the elder brother of Mustafa Kaudoro was working. All these facts give a clear indication that the appellant had a direct link with the gang of smugglers of Nigeria and he was fully aware of the contents of the suitcase when the very key was in his possession and when the suitcase was produced by him before the custom authorities." 8. Mr. Q.M.Salim, Senior Advocate, the learned counsel for the appellant contended before us that the documentary evidence presented at the trial showing that the suitcase belonged to the Nigerian passenger, that it was presented by him for clearance, that having acquaintance the appellant and Buniad Ali only assisted him in getting it cleared without knowing the secret compartments of the suitcase and the contents thereof. This absence of knowledge on their part is further borne out by the fact that Buniad Ali was the son of a Customs Superintendent who could not ordinarily associate in this enterprise if the two had known. Besides, Buniad Ali was not prosecuted for either the custom offence or the offence under the Hadd Order. Both the cases were withdrawn, so far as he was concerned. The explanation given by the appellant was plausible and consistent with his innocence as well as with the prosecution case as was presented before the trial court. 19. The distinguishing feature of the case of the appellant as against Buniad Ali is that he is accused of having handed-over the key by which the suitcase was opened for inspection at the customs counter. Zahiruddin (the appellant) has explained the circumstances and the circumstances part is not inconsistent with the prosecution case. The declarations etc., all had been signed by the passenger and the Shipper was also a different one than the appellant. The presentation of the suitcase at the counter in the company of Buniad Ali would not by itself incrimiate the appellant when there was a documented background of the criminality of the passenger and even for this transportation he stands convicted in Nigeria. The documents presented in defence throw some light on the circumstances in which this occurrence was detected. The document (Exh.DA) brought on record is an "Inter-pol" Islamabad document presented by the defence witness who is a functionary. It relates to the Police clearance of Koudoro 1 Mustafa on the date 14-4-1985 and mentions the implication of the three concerned therein as hereunder:- "Zaheer Ud Din, Saeed Ud Din The above named are hereby cleared, hence, they have no criminal record in Nigeria. Koudoro Mustafa The above named has been traced. He was convicted in 1982 for narcotics, and was sentenced two years imprisonment in Nigeria. He is heroin addict. Now he is under arrest. During interrogation he has revealed, that he had travelled to Pakistan April 1985. The suit case which was brought at Air Freight Unit Islamabad Air Port for export to Lagos belonged to him and the heroin concealed inside the suit case was purchased by him from Jaffer Khan of Bara Peshawar. He further revealed that Zahcer ud Din had nothing to do with the suit case and he was not aware about the heroin concealed inside the suit case. He came to the Air Port to help him because he had no export license for the optical frames. His statement is attached herewith for your record. Mrs. Esther Qalbode, Al Haji Daisi Kotoye, Miss Muibet and H~A.Qadri. The above mentioned Nigerians are the employees of Niger optical company at No.48 Unity Road, Ikeja Lagos. Verification of the conduct of these Nigerians has made, they are not involved in the smuggling of heroin in collaboration with Zaheer Ud Din and Saeed Ud Din. It is also verified in the light of particulars and documents supplied to us, that theseNigerians have travelled to Pakistan prior to each booking, but they are not narcotics traffickers. They are hereby cleared, hence, their FR is not traced in our CR. Regret for delay." The statement of Koudro Mustafa (Exh.DB) in these proceedings is in the following words:- "I travelled Pakistan in April this year with Saeed Ahmed to buy optical frames for the company. On 14th April 1985, I brought a suit case witli Saeed Ahmed at Islambad Air Port for booking to Nigeria. We contacted a customs agent through Zaheer Ud Din. After completion the papei work the agent asked us to wait custom Inspector incharge of export til' 8.30 A.M. as he had not arrived his duty then. I was in hurry. I left witli Saeed Ahmed to meet an appointment with M/S J.K. Overseas anc asked to the agent and Zaheer Ud Din to examine the suit case on my behalf. That suit case belonged to me and the heroin concealed inside the suit case was tor my own use, not for sale. Zaheer ud Din and his friend Buniad Ali Shah were not aware about the heroin concealed inside the suit case. They came to help me because I had no export License for the optical frames." 10. So far as the acquittal of appellant in the case under Customs Act is concerned, judgment dated 10.11.1990 rendered by the Special Judge Customs, Islamabad, has een made available and it concludes as hereunder:- "As is clear from the above, the real and the only culprit was Koudoro Mustafa and the remaining accused were arrested on the basis of suspicion. A perusal of the record shows that on 13.1.1991 my learned predecessor had acquitted Buniad Ali Shah accused on the basis of the statement of the learned SPP Customs, who was directed by the Federal Government to withdraw the prosecution against the said accused. It appears that such direction was issued in view of Ex.PA and Ex.DB, but curiously enough the Federal Governemnt did not order for the withdrawal of the case against Zahirud Din and Saeedud Din accused as their names are mentioned in both the said documents whereas the name ot Buniad Ali Shah is mentioned only in Ex.DA. So the case of Zahirud Din and Saeedud Din is better than that of Buniad Ali Shah who was acquitted about a year ago. As a result of the above discussion, Zahir Uddin and Saeed Uddin accused also deserve acquittal as there is no cogent evidence against them with the prosecution; rather the documents mentioned above absolve them of their participation in the commission of the offence. Hence they both are acquitted of the charge. They are already on bail (and) are discharged of their liability from the bail bonds," 11. After going through the entire evidence, mainly the documentary evidence made available and the defence of the appellant, we are clearly of the view that the rosecution has not been able to establish the case against the appellant beyond reasonable doubt and the appellant was entitled to be given the benefit of doubt and acquitted n account of it. Hence, we accept the appeal, set aside the conviction and sentence, and discharge him of the bail bond furnished by him. (MBC) Approved for reporting) Appellant acquitted.

PLJ 1991 SC 416 PLJ 1991 SC 416 [Appellate Jurisdiction] Present: SlIAFIUR RAHMAN AND ZAFFAR HUSSAIN MlRZA, Jj Mst. RAZIA KHATOON (deceased) through L.Rs--Appellant versus Dr. ROSHAN H. NANJI-Respondent Civil Appeals Nos. 64-K and 65-K of 1986, decided on 12.2.1991. [From judgment of High Court of Sindh at Karachi, dated 19.2.1984, passed in FRA Nos. 802 and 805 of 1983] (i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- S.14 read with National Registration Act, 1973 (LVI of 1973), Sections 9 & 11-Tenant-Ejectment of-Landlady attaining age of 60 years_-Ground of- Finding of Rent ontroller is positive and in affirmative—It is based on entries in National Identity Card and other material brought on record-Entries in National Identity Card were made at ime when law granting any such benefits was not in existence and when there was no such controversy which could have prompted landlady to give an incorrect age— eld: Entries of National Identity Card shall hold field unless they are rebutted by an equally good or better evidence which is altogether lacking in this case. [P.420JA (ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 14-Tenant-Ejectment of-Rejection of application-Challenge to –Two separate tenancies both of same character, i.e. residential or commercial, cannot be got vacated y recourse to section 14 of Ordinace-Held : Appellants being entitled to get only one shop vacated, appeal relatable to rent case earlier instituted, is to be accepted thereby xhausting right claimable under Section 14 of Ordinance and making it inexercisable in respect of other shop-­ Civil Appeal No. 64-K allowed and other appeal dismissed. [P.421]B&C Mr. Mansoorul Arfin, Advocate, Supreme Court and Mr. Nizam Ahmad, AOR for Appellants (in both appeals). Mr. K.B. Bhutto, Advocate, Supreme Court, and Mr. S. Anwar Ali, AOR for respondent in CA. 64-K of 1986). Mr.Naraindas Motiani, AOR for Respondent (in CA. 65-K of 1986). Date of hearing: 12.2.1991. judgment Shafiur Rahman, J.—These two appeals of a landlady by leave of the Court have come up to examine the following questions of law arising out of the Petitions for leave to appeal and during the course of the hearing of the appeals:- (1) Whether the High Court had correctly held that the predecessor-ininterest of the appellants failed to prove that having attained the age of sixty years, she was ntitled to invoke section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance)? (2) Whether an application under section 14 of the Ordinance by a widow for use of the demised premises for her children is maintainable? (3) Whether right to sue survives after her death during the proceedings? 2. On 5.12.1981, the appellant's predecessor filed two separate applications for eviction of the tenants in both invoking section 14 of the Ordinance. In Rent Application/Rent Case No.5330/81 leading to the present appeal No.64-K of 1986, shop No.2 in the building standing on Plot No.568-C, Central Commercial Area, Block-II P.E.C.H. Society, Karachi was the subject-matter in the tenancy of Dr.Roshan Nanji. In the other Rent Case (No.5331/81), shop No.l in the same building in the tenancy of Mr.Abdul Razzak was the subject matter of eviction. In both the applications in para 2, she took up the ground as hereunder:-"That the applicant has recently attained the age of 60 years. Photostat copy of the applicant's National Identity Card, issued on 27.5.1974 is attached herewith". The National Identity Card that was filed showed her age as 53 years, the date of application for the issuance of Card as 19.1.1974 and the date of its issuance as 27.5.1974. 3. In reply to this claim the contents of paragraph 2 of the application for ejectment were denied by both the tenants. Dr.Roshan H. Nanji (respondent in C.A.64-K/86) did not in the reply say anything more but Abdul Razzak (respondent in CA.65-K/86) stated that "the identity Card has been maneouvred by the applicant and it does not give correct date of birth of the applicant". The son and attorney of the applicant/landlady appeared and stated that she (his mother) was 61 years on 10.3.1982. In reply, in his Affidavit, Dr.Roshan Nanji stated "that the applicant has already attained the age of 61 years". Again in para 11 of his affidavit he stated as ereunder:-"That Mr.Hilaluddin the son of the applicant is of the age of 36 years and M.Sc. It is strange to know that he is still unsettled in his life and the applicant, now after attaining the age of 61 has the intention to settle him adequately in life". He also admitted in cross-examination as hereunder:-"I see Ex.HI and say that I reply the EX.O/1 by this letter of mine. It is correct to suggest that I have not denied and disputed the plea of attaining 60 years of age by the applicant in my Ex.III and written statement". 4. In the other application for eviction of respondent in C.A.65-K/1986, the attorney of Abdul Razzak/respondent/opponent in his Affidavit stated as hereunder- "That the age of the applicant at present is not less than 75 years. The age mentioned in the National Identity Card is fictitious and incorrect. It is denied that the applicant is aged 61 years as alleged". In cross-examination he admitted as hereunder:- "I do not possess any documentary proof in support of my statement that the applicant is of 75 years and more than that and not of 60 years. I cannot say if the National Identity Card of the applicant has not been cancelled till today". 5. The Rent Controller framed the following issues in the cases:- "1. Whether the application is not maintainable under section 14 of the Sind Rented Premises Ordinance, 1979? Whether the applicant requires the shop for the use of her son Hilaluddin?What should be the of ders?" The Rent Controller decided both the issues in favour of the landlady and directed the ejectment of the tenants. 6. The High Court first of all held that the appellant's predecessor-ininterest had failed to establish from the material on record that she had attained the age of sixty years and she was entitled to invoke section 14 of the Ordinance, by observing as hereunder:- "The respondent was not examined on commission therefore, respondent has failed to prove this issue and she is not entitled to avail the benefits of this section 14 of the Ordinance without proving the necessary requirement of the Section 14 of the Ordianance. However, Mr. Jamil learned counsel for Respondent submitted that she may be examined in this court and he wants to produce her but this verbal request was rejected as no such regular application was filed". The learned Judge in the High Court also went on to examine the bonafide of the requirement of the son of landlady for the two shops and found it not established. Hence, the relief was denied to her and both the Rent Appeals were^allowed. 7. Mr.Mansoorul Arfin, Advocate, the learned counsel for the appellants contended that the probative value of the National Identity Card has been recognised in Syed Akhtar Hussain Zaidi v Muhammad Yaqinuddin (1988 S.C.M.R. 753) in the Rent Control matters for purposes of section 14 of the Ordinance. The law laid down therein should have been followed. It has further been urged by him that in an application under section 14 of the Ordinance, the element of good faith should not have been examined and made the criteria and for this reliance was palaced on the decision of this Court in Bakhsh Elahi v'Qazi Wasif All (1985 S.C.M.R. 291). Besides, according to him, "personal use" as defined in section 2(g) of the Ordinance fully covered the cases of the appellants. It was also contended that the death of the landlady, after an eviction order had been passed by the Rent Controller, could not frustrate the order of eviction and this principle found recognition by this Court in Haji IbraJtim v S.Rehmatullah (represented by Legal Heirs) (1985 S.C.M.R. 241). 8. The learned cou sel for the respondents/tenants, contended that the expression "personal use" as mentioned in section 14 of the Ordinance had to be given meaning different from the definition contained in section 2(g) of the Ordinance, because otherwise the Scheme of section 14 itself gets disturbed and incongruity results in applying it. The learned counsel has relied on decisions of this Court in Lt.-Col. Nawabzada Muhammad Amir KJian v Tlie Controller of Estate Duty and others (PLD 1961 S.C. 119), Pakistan Tobacco Company Ltd. V Pakistan Tobacco Company Employee's Union, Dacca and others (PLD 1961 S.C. 403) and Iftikhar Ahmad and others v President, National Bank of Pakistan and others (PLD 1988 S.C. 53) in support of the proposition that a departure from the definition is permissible where the context so requires. He also contended that at no stage had the predecessor-in-interest of the appellants declared that she was not possessed of the property or was not in occupation of the property other than the one she was seeking eviction from. Without a declaration to that effect, the foundational requirement for seeking eviction of the tenants remained unsatisfied. Further it was contended that two different shops, subject-matter of different tenancies, could not be got vacated by recourse to section 14 and the choice at this stage cannot be left to the landlady/her successors, to the deteriment of the tenants. Finally it was contended that the proviso introduced by Sindh Rented Premises (Ilnd Amendment) Ordinance, 1980 dated 1.9.1980 will also apply because it was after becoming a widow that she had let out this property. In other words, the contention is that the act of letting out of the property after becoming a widow prevents her from availing of the right on attaining the age of sixty years as well because the proviso applies not to any particular category but to all the different types of right-holders taken as one category. 9. So far as the question of the landlady's attaining the age of sixty years and to be entitled on that account to avail of the remedy under section 14 of the Ordinance is concerned we find that the finding of the Rent Controller is positive and in the affirmative. It is based on the entries in the National Identity Card and the other material brought on record. The probative value of the National Identity Card has been recognised by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which ould have prompted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1973 (Act LVI of 1973) to declare on fidavit her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information, under section 9 of the Act. The Act also makes penal by clause (b) of section 11 making of any statement or furnishing of any information which is known or is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking. 10. As regards the contention of the learned counsel for the respondents that under the proviso to section 14 all the persons entitled under section 14 should be treated as one category and disqualification under one should entail the disentitlement under another, is in violation of the language of the proviso where the expression "as the case may be" has been used making the categories distributive and not combined into one. Disqualification in one capacity will not entail disqualification for all time and for availing of the right becoming available under a different category. 11. As regards the bonafides of the use of the son, in view of our decision in the case of Bakhsh Elahi (1985 S.C.M.R. 291) that could not have been made the basis for a decision against the landlady, if otherwise the requirements of section 14 of the Ordinance were found satisfied. 12. The contention of the learned counsel for the respondents that the efinition of "personal use" should be given a meaning different from the defined meaning, cannot prevail because the anomalies pointed out by him are intercategory and not intra category as described in section 14 of the Ordinance and we have already held that each category is to be taken as independent and not thrown or matched against the other. If we treat the enumerated category as distrributive and independent, then such comparison for showing anomalies would be impermissible, and no such anomalies are found within the category. 13. As regards the relief, we find that where two separate tenancies are involved, both of the same character i.e., residential or commercial, they cannot be got vacated by recourse to section 14 because a restricted right has been made available to a special category for a purpose. We find that in no other case referred to us, a right to get two such premises forming different tenancies, was ever recognised in proceedings under section 14 of the Ordinance. The case to which we are referred namely, Civil ppeals No.ll2-K/1987 and 113 -K/1987 (Muhammad versus Dilawar Klian Durrani and Dilawar KJwn Durrani versus Muhammad), three shops were got vacated but they formed the subject matter of one tenancy and not separate. Similarly, in C.P.LA. No.266-K/1987 (Bakar versus Mst. KJiatoon Hajin Kola alias Kala Begum) the tenancy was one and the shop had an internal partition so as to utilise it" as two. In Civil Appeals No.9-K/1982 and 10-K/1982 (Mst. Klmrshid Azmat All versus A.S.Mughal and Ayub Sultan, respectively) two flats had been got vacated by recourse to section 14 but an Objection on this ground was not taken nor decided. 14. Finding that the appellants were entitled to get only one shop vacated, we would allow the appeal relatable to rent control Petition 5330 of 1981 in possession of Dr.Roshan H.Nanji i.e., Civil Appeal No.64-K/1986, which happens to be in point of time according to serial number, an earlier instituted Petition, thereby exhausting the right claimable under section 14 of the Ordinance, making it inexercisable in respect of the other shop. In the circumstances, Civil Appeal No.64-K of 1986 is allowed. The judgment of the High Court is set aside and that of the Rent Controller restored. The other appeal, (Civil Appeal 65-K of 1986) in the circumstances of the case, stands dismissed. This Judgment is without prejudice to the other proceedings that have been taking place between the parties. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 SC 421 PLJ 1991 SC 421 [Appellate Jurisdiction] Present: SAAD SAOOD JAN, ABDUL SHAKURUL SALAM AND MUHAMMAD RAFIQ tarar, JJ COMMISSIONER OF INCOME TAX, LAHORE-Appellant versus M/s. NOORANI CALANDERING AND FINISHING MILLS, LYALLPUR-- Respondent Civil Appeal Nos. 352 and 523 of 1980, accepted on 6.5.1991. [On appeal from judgments and orders dated 22.2.1977, of Lahore High Court, passed in Tax Reference No. 221 of ,1971, and 15.10.1973 in Tax Reference No. 24 of 1967.] Income Tax Act, 1922 (XI of 1922)-- —-S.2(ll)-Reference to High Court-Answer of--Challenge to--Whether I.T.Q. while allowin change of "previous year" under section 2(11) of Act, can impose a condition to count entire period as one assessment year —Question of-If previous year ends on 31st of March and asessee wants to vary it so as to make it end on 30th June next, I.T.O has power to accord sanction to change on condition that previous year would consist of 15 months—Held: References are answered in terms that Income Tax Officer was justified and he passed orders within his statutory discretion-Appeals accepted. [P.424&425JA&B Ch. Muhammad Ishaque, Advocate, Supreme Court, instructed by Mr. M. Aslam, AOR for Appellant (in both appeals) Nemo for Respondent (in CA. 523 of 1980). Respondent: Ex-parte (in CA. 352 of 1980). Date of hearing: 12.3.1991. judgment Abdul Shakurul Salam, J.«This order will dispose of two appeals by leave bearing No.CA 352/80 and CA 523/80 as these involve the same question of law i.e. whether Income Tax Officer while allowing change of "previous year" under section 2(11) of the Income Tax Act can impose a condition to account the entire period as one assessment years. 2. The question has arisen in the following circumstances: The respondent in the first case closed its accounts on 31st March, for the assessment year 1960-61. It wanted to change the closing date to 30th June. It filed separate returns for the periods 1.4.1959 to 31.3.1960 and 1.4.1960 to 30.6.1960. The Income Tax Officer allowed the change on the condition that the account year was to be 15 months i.e. from 1.4.1959 to 30.6.1960. He assessed accordingly vide order dated 12.6.1963. In the second case the respondent filed returns of income, one for the assessment years 1959-60 and the other for 1959-60 (Supplementary), the respective accounting periods ending on 31st March, 1959 and 30th June, 1959. The Income Tax Officer framed a consolidated assessment for the charge year 1959-60 i.e. for fifteen months and ordered accordingly. On assessees appeals, the Appellate Assistant Commissioner held that "previous year" according to section 2(11) of the Income Tax Act could not be more than twelve months. Departmental appeals were dismissed by the Income Tax Appellate Tribunal (Pakistan) Lahore vide order dated 27.1.1966 and 12.6.1969. On Reference Applications, the Tribunal framed the questions "whether in the circumstances of the case the Tribunal was justified in holding that the Income Tax Officer cannot depart from the statutory definition of the 'previous year' while allowing the change of the same", and "whether the Income Tax Officer was not justified in framing one consolidated assessment for the income of fifteen months ending the 30th June 1959, relevant to the assessment year 1959-60". In both the cases the Lahore High Court held that while allowing change of the closing date the Income Tax Officer was not justified to depart from the statutory definition of "previous year" in section 2(11) of the Income Tax (Act) meaning twelve months. This is vide orders dated 22.2.1977 and 15.1.1973 respectively in the titled two appeals filed by the Commissioner of Income Tax. 3. Learned counsel for the appellant submitted that proviso to section 2(11) of the Income Tax Act has not been given proper and due effect which lays down that while allowing a change in the closing date the Income Tax Officer can put condition as he thinks fit. In the cases in hand, while so permitting the Income Tax Officer has added the extra three months in the 'previous year', otherwise these would go free and escape from assessment. He acted diligently and referred to some judgments, especially Estthuri Aswathaiah v Commissioner of Income Tax, Mysore, (1966) 60 ITR 411 (SC) which supports his contention. 4. No body appeared to oppose these appeals. 5. Section 2(11) of the Income Tax Act as far as relevant for these appeals is quoted as under: "2(11) (f) In respect of any separate source of income , profits and gains:- (a) the twelve months ending on the thirtieth day of June next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said thirtieth day of June, then at the option of the assessee the year ending on the date to which his accounts have been so made up: Provided that where in respect of a particular source of income, profits and gains an ssessee has been assessed, or where in respect of a business, profession or ocation newly set up an assessee has exercised the option under sub-cluse (c), he shall not in respect of that source or, as the case may be, business, profession or vocation exercise the option given by this sub-clause so as to vary the meaning of the expression 'previous year' as then applicable to him except with the consent of he Income-Tax Officer and upon such conditions as the Income-Tax Officer may think fit to impose; or in the case of any person, business or company or class of person, business or company such period as may be determined by the Central Board of Revenue or by such authority as the Board may authorise in this behalf and the period so determined may commence from any date preceding the date of such determination: or where a business, professsion or vocation has been newly set up in the financial year preceding the year for which assessment is to be made the period from the date of the setting up of the business or profession or vocation to the thirtieth day of June next following or to the last day of the period determined under sub-clause (b), or, if the accounts of the assessee are made up in respect of a period not exceeding twelve months from the date of the setting up of the business, profession or vocation and the ase is not one for which a period has been determined under sub-clause (b), then, at the option of the assessee, the period from the date of the setting up of the business, profession or vocation to accounts have been so made up: the date to which his Provided that when the date to which the accounts have been so made up does not fall between the setting up of the business, profession or vocation and the next following thirtieth day of June inclusive, it shall be deemed that there is no previous year for the said assessment year and the previous year which would otherwise have been determined according to the option exercised by the assessee shall be deemed to be the previous year for the next succeeding assessment year;" 6. Reading the afore-quoted several clauses together of section 2(11) of the Act it would be seen that the length of a previous year need not necessarily be 12 calendar months. Under section 2(ll)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or less than 12 months. Under section 2(ll)(i)(c), the period of previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this back ground, section 2(ll)(i)(a) may be considered. The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his "previous year". Once he has exercised this option the meaning of the expression "previous year" as applicable to him is determined, and he cannot exercise this option again so as to vary the meaning of the expression 'previous year' as then applicable to him except with the consent of the Income Tax Officer and upon such conditions as the Income-Tax Officer may think fit to impose" If the assessee wants to change the meaning of the previous year' as then applicable to him, he must obtain the consent of the Income-Tax Officer, and the Income Tax Officer may accord such consent on proper terms. The Income Tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the 'previous year' for the preceding year's assessment to the end of the new accounting year should be taken as the 'previous year' for the current assessment year. Therefore, if the previous year at any given time applicable to an assessee ends on 31st March and he wants to vary it so as to make it end on 30 th June next, the Income Tax Officer has power to accord sanction to the change on the condition that the 'previous year' would consist of the entire period of 15 months. The condition properly safeguards the interest of the revenue. Were he to sanction the change on the footing that the 'previous year' of the assessee in relation to the current assessment year would be the period of 12 months, the income of the preceding 3 months would escape taxation altogether. If it were to be as held by the Appellate Assistant Commissioner and upheld by the Tribunal that the Income Tax Officer can only grant sancalion on condition that the assessee should have two previous years, one consisting of a period of 3 months and the other ending after 12 months that would be an impossible situation as there can be no two "previous years" in respect of the same assessment year. The charge under section 3 for any assessment year is in respect of the income of the previous year. The concept of two previous years in relation to the same assessment year is contrary to section 3. 7. In view of the above, the two appeals are allowed. The references are answered in the terms that the Income Tax Officer was justified, and he passed orders within his statutory discretion. As nobody has appeared to oppose the appeals, there shall be no order as to costs. (MBC) (Approved for reporting) _ Both appeals accepted.

PLJ 1991 SC 425 PLJ 1991 SC 425 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND SAAD SAOOD JAN, J, KHURSHID AHMAD and 4 others-Appellants versus Syed AKHTAR HUSSAIN GILANI and 4 others-Respondents Civil Appeal No.124 of 1989, accepted on 10.6.1991. [On appeal from judgment dated 21.12.1988, of Lahore High Court, in R.S A. 155 of 1985.] Punjab Pre-emption Act, 1913 (I of 1913)-- —S.3(5) read with Section 30—Pre-emption—Suit for—Whether sale through decree for specific performance is excluded from definition of sale-Question of-Held: It is obvious from definition of sale that sale through decree for specific performance has not been excluded from definition of sale-Held further: Sub-section (1) of Section 30 of Act also implies that an oral sale whereunder physical possession is delivered, is enough for treating such oral transaction as sale for purpose of Punjab Pre-emption Act, 1913. [P.427]A,B&C 1988 SCMR 1861 and PLD 1967 SC 411 reiterated Ch. Muzammal KJian, Advocate, Supreme Court, and Rana Maqbool Ahmad Qadri, AOR for Appellants. Ch. AsgharAli Bhatti, Advocate, Supreme Court, with Mr. Abdul Hayee Qazi, Advocate, Supreme Court and Mr. Ejaz Muhammad KJian, AOR (absent) for Respondents. Date of hearing: 10.6.1991. judgment Muhammad Afzal Zullah, CJ.~ This direct appeal is from the judgment dated 21.12.1988 of the Lahore High Court; whereby the respondents' Regular Second Appeal was allowed and the appellant/plaintiff/pre-emptors' suit was dismissed. Facts briefly stated are that the respondent/vendees had purported to become the owner after filing suit for specific performance which was decreed. It is admitted that after this decree the possession was taken over by the vendees' side. Not only this the entire sale price had also been paid—and according to respondents' learned counsel the payment was more than the sale price. This transaction was treated by the appellants' side as sale and was made subjectmatter of a suit for pr-emption. It was dismissed. However, the District Court decreed it while, as stated above, the High Court reversed this decree. The appellants then brought this direct appeal before this Court.The point which prevailed with the High Court raised from the respondents' side was that every decree for specific performance is in-effective until and unless a registered sale deed is executed thereafter. The appellants' contention that a decree for specific performance with transfer of possession amounts to sale as envisaged by the Punjab Pre-emption Act, was repelled. Learned counsel for the respondents while admitting that the possession had been transferred to the vendees and further that the sale price had also been paid, reiterated the point which prevailed with the High Court.It was ruled in Malik Tahir Ahmad v. Tanseef-ur-Rehman (1988 S.C.M.R. 1861) that in Punjab, sale by mutation in pursuance of decree for specific performance amounts to such sale which is not excluded by the definition of sale in Section 3(5) of the Punjab Pre-emption Act (I uf 1913) and that such a sale could be brought under a suit for pre-emption. The High Court veiw in the said case which was approved by the Supreme Court was as follow: - "In the decree for specific performance the vendor was directed to sell the property in accordance with the agreement. Since the sale of land could be legally made orally through mutation and the vendor could comply with the decree without the decree-holder having taken rcourse to execution of proceedings, therefore, the transfer of land by the judgmentdebtor/vendor through mutation in compliance with the decree was itself a sale; therefore, it was rightly pre-empted." Regarding nautre of transaction by way of mutation also the law is clear that the sale takes place not through mutation itself but it records, registers and attests oral transacton which is presumed to have taken place earlier. In pursuance of the same principle in the present case, for example, the transaction of sale would be constituted by the direction of the Court to the vendor to sell the property to the vendee/respondents' side, the vendor complying with this direction and making an oral sale to them by delivering the possession o,n receiving the sale price. All this as already noted was done in this case. Thus the oral sale was complete. If it is followed by mutation, it becomes the evidence of the oral sale and if it is not followed by a mutation, the pre-emptor can nevertheless maintain a suit of pre-emption on the basis of oral sale. Section 3(5) reads as follows:- DEFINITIONS Section 3. (1). (2). (3), (4). (5) 'sale' shall not include:- (a) a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer; (b) the creation of an occupancy tenancy by a landlord whether for consideration or otherwise;". It is obvious from the above\ definition that sale through decree for pecific performance has not been excluded from the definition of sale. Though sale in execution of a dcree for money has been excluded. Nor there is any indication in the ifinition that if a law permits sale without registration it will not be treated as sale for purpose of pre-emption. Section 30 of the Punjab Pre-emption Act also supports the foregoing assumption. It read as follows:- : ' "SECTION 30. Limitation. In any case not provided for by Article 10 of the Second Schedule (to) the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said Schedule, be one year: (1) in the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction, in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property; whichever date shall be the earlier; "(2) in the case of foreclosure of the right to redeem village immovable property or urban immovable property, from the date on which the title of the mortgagee to he property becomes absolute; "(3) in the case of a sale of urban immovable property from the date on which the vendee takes under the sale physical possession of any part of the property." The phrase " attestation (if any) of the sale by a Revenue Officer" contains the vital expression "if any". It implies that there can be a sale before the attestation by a Revenue Officer. Not only this a phrase in the next part of Sub­ section (1) of Section 30. "on which the possession of any part of such land or property also implies that a sale transaction which took place orally between the parties and whereunder physical possession is delivered, is enough for treating such oral transaction with delivery of possession as sale for porpose of the Punjab Pre­ emption Act. See also Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411). In the light of foregoing discussion this appeal is allowed and the impugned judgment and decree are-set aside. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 428 PLJ 1991 SC 428 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, RUSTAM S.SIDHWA AND MUHAMMAD afzal lone, JJ. MUHAMMAD BARAN and another-Appellants versus MEMBER (SETT & REH). BOARD OF REVENUE, PUNJAB , and 5 others-­ Respondents Civil Appeals Nos. 249 to 251 and 253 to 256 of 1986, dismissed on 29.4.1991. [On appeal from judgment dated 18.12.1982, in W.P. Nos.l037-R 973-R, 1041-R, 1007-R, 1022-R and 1023-R of 1977, of Lahore High Court, Lahore .] Fraud- —Repeal of Settlement laws-Cases involving fraud, forgery and misrepresentation not pending—Whether act open to scrutiny-Question of~ Contention that ases of fraud and forgery not pending at time of repeal, were safe from scrutiny either by Settlement Authorities or by High Court in its writ jurisdiction-Held: If llotments relied upon by appellants were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality, High Court would ot n exercise of its discretionary jurisdiction, annul order of Board of Revenue which exposed fraud and forgery, even if it was clearly without jurisdiction-Order of grant f leave to appeal withdrawn. [Pp.431,432&433]A,B,C&D PLD 1973 SC 236 and PLD 1982 SC 413 rel. Mr. S.M.Zafar, Senior Advocate, Supreme Court, and ma Muhammad Aslant Chaudhry, AOR for appellants (in CA. 249, 250 & 251 of 1986). Mr. Maqbool Elahi Malik, A.G. and Rao M. Yousaf Khan, AOR for respondents 1 to 4 (in CA. 249 of 1986) and for respondents 1 to 3 (in CA. 250 of 1986). Respondents Nos. 5 & 6: Ex-parte. Mr. Iqbal Ahmad Qureshi, AOR for respondents 7 to 11 (in CA. 249 of 1986). Mian Saeedur Rehman Farrukh, Advocate, Supreme Court and Ch. Mushtaq Ahmad, AOR, Mr. M. Zainul Abidin, Advocate, Supreme Court and Ch. Mehdi Klian Mehtab, AOR, and Mr. Maqbool Sadiq, Advocate, Supreme Court, and Mr. Ahmad Hassan Khan, Advocate, Supreme Court, for Intervenors (in CA. 249 of 1986). Rana MA.. Qadri, AOR, Mr. Maqbool Sadiq, Advocate, Supreme Court, S. Inayat Hussain, AOR (absent), Mr. Iqbal Ahmad Qureshi, AOR, Mr. Ahmad Hassan, Advocate, Supreme Court, Mian Saeedur Rehman Farrukh, Advocate, Supreme Court and Kh. Mushtaq Ahmad, AOR for Intervenors (in CA. 250 of 1986). Raja Abdul Razzaq, AOR for respondent No.l (in CA. 251 of 1986). Nemo for other respondents (in CA. 251 of 1986). Mr. S.Inayat Hussain, AOR (absent), Mian Saeedur Rehman Farrukh, Advocate, Supreme Court, and Kh. Mushtaq Ahmad, AOR for Intervenor (in CA. 251 of 1986). Mr. Muhammad Aslam Chaudhry, AOR for appellants (in CA. 253 of 1986). Rao M. Yousaf KJtan, AOR for respondents 1 to 4 (in CA. 233 of 1986). Mr. Maqbool Sadiq, Advocate, Supreme Court, Mian Saeedur Rehman Farrukh, Advocate, Supreme Court, and Kh. Mushtaq Ahmad, AOR for Intervenor (in CA. 253 of 1986). Ch. Qadir Bakhsh, Senior Advocate, Supreme Court, and Mr. M^Aslam Chaudhry, AOR for appellant (in CA. 254 of 1986). Rao M. Yousaf Klian, AOR for respondents 1 to 4 (in CA. 254 of 1986). Mr. Maqbool Sadiq, Advocate, Supreme Court,- Mian Saeedur Rehman Farrukh, Supreme Court, and Kii. Mushtaq Ahmad, AOR for Intervenor (in CA. 254 of 1986). Mr. Muhammad Aslam Chaudhry, AOR for appellants (in CA. 255 of 1986). Mr. TanvirAhmad, AOR for respondents 1 to 4 (in CA. 255 of 1986). Nemo for other respondents (in CA. 255 of 1986). Mr. Maqbool Sadiq, Advocate, Supreme Court, Mian Saeedur Rehman Farrukh, Advocate, Supreme Court, and Kh. Mushtaq Ahmad, AOR for intervenor (in CA. 255 of 1986). Ch. Qadir Bakhsh, Senior Advocate Supreme Court, and Mr. Muhammad Aslam Chaudhry, AOR for Appellants (in CA. 256 of 1986). Mr. Tanvir Ahmad, AOR for respondents 1 to 4 (in CA. 256 of 1986). Mian Saeedur Rehman Farrukh, Advocate, Supreme Court, and Kh. Mushtaq Ahmad, AOR for Intervenor (in CA. 256 of 1986). Date of hearing: 4.3.1991. judgment Muhammad Afzal Zullah, C J.~ These appeals through leave of the Court are directed against the judgment of the Lahore High Court; whereby Writ Petitions arising out of settlement cases filed by the appellants herein, were allowed with a direction for remand of the cases to the Member Board of Revenue. Leave to appeal was granted on noticing facts and points involved as under: "Facts giving rise to the present petitions are, briefly, that one Fayyazuddin (respondent No.4 herein), who was a claimant displaced person, got his claim verified to the extent of 7753 PIUs in 1973. Against this verified claim he was allotted land to the extent of 7700 units in Mauzia Charar, Tehsil and District Lahore. He then sold the said land to the present petitioners. Subsequently, on 3.7.1977 Member (Settlement and Rehabilitation) Board of Revenue, Lahore, issued a letter to the Deputy Commissioner, Lahore, wherein- allotments of Fayyazuddin (respondent No.4) and some others, made in different villages were declared as invalid and void ab-initio on the ground that they had obtained the same fraudulantly. "The petitioners who purchased land from Fayyazuddin, filed separate writ petitions before the High Court and of which were taken up together by a Division Bench of the High Court, which, by its judgments dated 18.12.1982, set aside the order of the Settlement Commissioner ; dated 3.7.1977, declaring it to'be without lawful authority and of no legal effect and remanded all the matters to the Member Board of Revenue for entrustment to the notified officer to ascertain the correct position. "The petitioners seek leave to appeal against the judgments of the High Court noted above. "The grievance of the petitioners is that the High ourt ould not remand the case to the Member Board of Revenue, because after the repeal of the relevant laws by Act (XIV) of 1975, w.e.f. 1.7.1974, no settlement officer or a notified officer' could assume jurisdiction in any settlement matter which was not pending on 1.7.1974, when the aforementioned Act, which, interalia repealed the Displaced Persons (Land Settlement) Act 1958, came into force. For this contention he relied on sub-section (2) of Section 2 of the aforementioned Act which reads as follows:- "2. 'Repeal of certain laws:- (1) The following Acts and Regulations are ' hereby repealed, namely:- (f) ................ (iv) Displaced Persons (Compensastion and Reh.) Act, 1958, and (v) the Displaced Persons (Land Settlement) Act, 1958.- (2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such rpeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers "" notified as aforesaid'. "The learned counsel argued that considering that the member Board of Revenue had revoked the said allotment in 1977, when the Act (XIV) of 1975 had already come into force, as is obvious that he (i.e. the Member Board of Revenue) had passed the order of revocation of the allotment of Fayyazuddin respondent was not pending in any court of law, no settlement officer or 'notified officer' had jurisdiction to deal with the matter. In support of this contention the learned counsel relied on Slier Afzal JQian and others v. Haji Razi Abdullah and others (1984 SCMR228). "As against this learned counsel for the respondent/Government Department submitted that Fayyazuddin had made an application (Ex.Pl) in 1973, to the Chief Settlement Commissioner praying for payment of cash compensation for his utilized PIUs and that this matter had not yet been disposed of -when his allotment in Mauzia Charar was revoked. On this basis he argued that the matter of allotment of land made to Fayyazuddin was still pending on 1.7.1974 when the Act (XIV) of 1975 came into force. "But according to petitioners' counsel as the order of allotment in favour of Fayyazuddin had been finally decided and stood unchallenged, the pendency of any ancillary matter cannot be said to have the effect of keeping the matter of allotment of land in his favour 'pending'. "After hearing the learned counsel for the parties \we feel that the matter needs further consideration. Leave is therefore granted for this purpose". Mr. S.M.Zafar who argued the main case while the other learned counsel appearing for the other appellants adopted his arguments, reiterated the point noticed in the leave grant order. He has addressed further arguments and cited case law to contend that after the repeal of Settlement Laws the only opening left by the legislature for dealing with the settlement cases was contained in Section 2(2) of the Repealing Act (XIV) of 1975 which is quoted in the leave grant order. According to him this small opening is possible only in pending cases as is provided in the first part of Section 2(2). He further agrued that the use of the expression "pending before the authorities" shall also control the jurisdiction and power of the High Court and the Supreme Court even if the matter is brought before them in Constitutional (Writ) jurisdiction. Learned counsel appearing for the respondents' side vehemently opposed the stand of the learned counsel for the appellants. They brought to our notice some of the allotments made to their clients even prior to the allotment made to the appellants' side and strongly asserted/levelled accusation of fraud and mis­ representation against the apppellants' side. When questioned as to why they kept silent for a long time their plea was that the allotments to the appellants' side were never brought to light and that it was in addition a clandestine affair. Mr. S.M. Zafar in return said that the allotments relied upon by the caveators might themselves be the result of fraud. He, however, did not argue the point that the appellants' side had not committed any fraud or forgery. The entire argument of Mr. Zafar is that all cases of fraud and forgery and mis-representation which were not pending at the time of repeal were safe from scrutiny either by the Settlement Authorities and even also by the High Court in its Writ jurisdiction. Therefore, the High Court by remanding the case to the Board of Revenue itself fell into error. It had no jurisdiction to re-open the subject of fraud and forgery because the cases were no more pending before any Settlement Authorities at the time Writ Petitions were entertained. Further, he stated that the only remedy for the victims of fraud would be by way of civil suits in the Courts of general jurisdiction. The High Court in its impugned judgment took a brief notice of the nature of fraud involved in this case. If what is stated in the impugned order of the High Court, orfor hat matter in the order of the Board of Revenue which was impugned before the High Court, is taken on its face value the appellants could not be granted any relief in exercise of Constitutional (Writ) jurisdiction. It will be so even if ere is some defect, legal or otherwise, in the orders impugned before the High Court in the said jurisdiction. See Begum Shams-un-Nisa v. Said Akbar Abbasi and another (PLD 1982 Supreme Court 413). It was held that even if the Chief Settlement Commissioner was not legally justified in declaring an action to be without lawful authority, the result sought to be achieved by the order of the Chief Settlement Commissioner nevertheless being just and proper and the effect of setting aside order of the Chief Settlement Commissioner being to restore unjust orders and actions of subordinate functionaries, the High Court, "ought not to have exercised its Writ jurisdiction, for bringing about such result since writ jurisdiction cannot be exercised in aid of injustice". It was also held that the High Court in exercise of the Writ jurisdiction is "not bound to interfere in all circumstances" even if the "order of the Chief Settlement Commissioner was not lawful". To the same effect is an earlier ruling of this Court in the well known case of Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236). In somewhat more strong phraseology, this Court had held that "an order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party or rather it causes (?) a manifest illegality, then the extraordinary jursidiction ought not to be allowed to be invoked. Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that" it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the latter was clearly without jursidiction". Putting this observation in juxta position to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth Millions by its own order, the High Court would not in exercise of its discretionary (Writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq All the latter "was clearly without jurisdiction". Assuming for the sake of arguments advanced that the Board of Revenue passed an illegal order as no proceedings were then pending and even if such order would have been without jurisdiciton, in the circumstances of this case, the High Court after correctly stating the legal position could withhold the relief in its entirety and could also dismiss the Writ Petiitons filed by the appellants as they had soiled hands. But the High Court did not adopt this course because it had refrained from examining the questions of fraud and forgery though there was no bar for it to have examined and uphold the finding by the Board of Revenue. However, to be fair to the learne.d counsel for the appellants, it is perhaps for this very reason that (the High Court did not give any finding on the question of fraud and forgery) he did not even assert that no fraud and forgery had been committed by the appellants side. At this stage, a short procedural question arises namely, whether the High Court in its Constitutional (Writ) jurisdiction can withhold the relief only in its entirety in the casss governed by the dictum referred to above in the cases of Raunaq Alt and that of Begum Shams-Un-Nisal The answer is very simple. As it is within the power and discretionary jursidiction of the High Court to withhold the entire relief, necessary corallary would follow that it may grant only a partial relief. In the present case the High Court instead of dismissing the appellants' Writ Petitions in their entirety, allowed only a partial relief to them; namely, re-examination of the issue of fraud and forgery in their presence; because the contention raised before the High Court was that they had not been afforded opportunity of hearing. It seems to be a fair approach to a case like the present one in which there are several other parties who claim to be allottees of the same land prior to its disputed allotment to the appellants. Not only this, the appellants have sold away the land to third parties, many of whom might be innocent purchasers. For example, one party which would be deeply interested in the result of this judicial exercise is the Cantonment Defence Housing Society- popularly known as Defence Society. For all the above reasons, this Court is not bound to set aside the order of the High Court, even if it suffers from an infirmity; which otherwise not only advances justice between the main parties but also is fair and proper, vis-a-vis, the interest of innocent purchasers. The effect of this restraint on the part of this Court would be that if the order of the High Court is upheld, it would mean that the remand order would be operative by virtue of the second part of Section 2(2) and the functionaries concerned would give effect to k notwithstanding any jurisdictional or other defect in the order of the Board of Revenue. In the light of the foregoing discussion these appeals merit to be dismissed. \ There are two ways of achieving the end result of fairness and justice in such like j difficult cases. One, to dismiss the appeal; and the other if there is any serious hurdle in doing so, the leave to appeal order can be withdrawn. Although there is no serious hurdle in dismissing these appeals as discussed and held above yet aD these cases can be disposed of by the withdrawal of the grant of leave to appeal I We order accordingly. Before closing this judgment it is necessary to take note of a very interesting feature of the arguments advanced in this case, vis-a-vis, the use of the word "pending" in the first part of section 2(2) and its avoidence in the second part. Nevertheless learned counsel for the appellants remained of the view that the word pending would also control the second part. In other words according to him both parts are to be read conjunctively. If that is so, according to him, the High Court would have no jurisdiction'to interfere with an order of a settlement authority even if obtained thrrough fraud if a case was not pending at the time when the High Court entertains the matter. If the word "pending" used in the first part is read, according to the interpretation by the learned counsel, as having controlling effect on the power and the jurisdiction of the High Court under Article 199 of the Constitution, to this extent such provision would (then) be controlling the jurisdiction and power of the High Court under Article 199. Admittedly the legislation in question is not of Constitutional nature through which the power of the High Court (this Court also) under Article 199 could be curtailed. The legislation in question to that extent would be ultra vires the Constitution. Article 199 of the Constitution is not subject to any law but is only subject to the Constitution. This aspect of the Provision and its interpretation was not brought under discussion during the hearing of the appeals, therefore, it will be unfair to the learned counsel to give a final decision on this question which in the circumstances of this case is no more necessary. This question might be examined in any other proper case There is another aspect also which needs brief notice. Learned counsel suggested that the parties at this stage might approach the Civil Court . It is doubtful whether the Court of general jurisdiction will be able to give proper relief to the parties in this case at this stage. Supposing it comes to the same conclusion as the High Court that the allegation of fraud and forgery has to be examined by the functionaries concerned, then it might not be possible for it to remand the case as the High Court did. Other difficulties might also arise, therefore, in the entire circumstances the approach of the High Court being fair and proper, is upheld. In the light of the foregoing discussion, findings, order and observations, all these appeals stand disposed of. There shall be no order as to costs. (MBC) (Approved for reporting) Order accordingly.

PLJ 1991 SC 434 (Appellate Jurisdiction) PLJ 1991 SC 434 (Appellate Jurisdiction) Present: dr. nasim hasan shah, abdul shakurul salam and muhammad afzal lone, JJ. GHULAM MURTAZA alias ZIAU-Appellant versus THE STATE-Respondent Criminal Appeal No.86 of 1987, accepted on 22.4.1991. [On appeal from judgment and order dated 30.4.1985 of Lahore High Court, passed in Crl. Appeal No. 602 of 1983] (i) Extra-judicial confession —Murder of a small girl-Conviction for-Challenge to—There is no eye­ witness-No recovery is effected from appellant to connect him with commission of crime-High ourt rejected evidence of PWs. 8 and 9 regarding extra-judicial confession~If two witnesses of extra-judicial confession were right, they would have certainly told their ousin (complainant) about that and latter would have got appellant arrested straightaway and not allowed him to remain in his dera for 13 days after occurrence-Held: igh Court rightly rejected evidence regarding extra-judicial confession. [P.438JA (ii) Last seen- —Murder of a small girl-Conviction for-Challenge to~In this case, no recoveries have been made from appellant, nor motive is alleged, though element of proximity is there-According to Prosecution evidence itself, appellant remained at dera of complainant and continued doing his routine work for 13 days from day of occurrence till day of his arrest~If witnesses of ' last seen had informed complainant, of last seeing deceased and appellant same day of occurrence, he would not have allowed ppellant to work at his dera and would have handed him over to police straight away-Held: Solitary statement of PW 7 of last seen together, cannot form basis for aintaining conviction of appellant-Appeal accepted. [Pp.439&440]B 1972 SCMR 15,1977 SCMR 20 and PLD 1977 SC 515 rel. S.Abnl Aasim Jaferi, A.O.R. for Appellant. Mr. S.D.Qureshi, Advocate, Supreme Court for State. Date of hearing: 22.4.1991. judgment Abdul Shakurul Salam, J.-.This is an appeal by leave in Criminal Appeal No.602 of 1983 and Murder Reference No.172 of 1983 decided by a learned Division Bench of the Lahore High Court on 30-4-1985. 2. Umar Hayat PW 6 lodged FIR Ex.P.B on 22-10-1981 at 5 PM at the Police Station Mot Mithan, District Sargodha saying that he is resident of Dera Aliana Dakhli Matila. He resides with his old mother who has very weak eye­sight. He is unmarried. He has a married sister Mtf.Sahib Bibi whom he had brought alongwith her two children Msf.Iqbal Bibi aged 7/8 years and Mrt.Naziran Bibi aged 3/4 years about 3/4 months ago for helping in the house. Today in the morning about 8/9 a.m his niece Mstlqbal Bibi aged 7/8 years had gone from the house to ease herself in the nearby sugarcane field. She did not come back till after noon. He alongwith his cousin Abdullah and Manzoor son of Jalal Muslim Sheikh started search. About 3.00 PM from inside the sugarcane field belonging to his uncle Mirza they found his niece Mrt.Iqbal Bibi lying dead. Her Shalwar having been removed was lying nearby. There were injuries on the mouth, on both sides of neck and chin. Blood was also coming out from her private parts. Some cruel person had committed rape and killed by strangulation his niece. The eceased had ear-rings which had been taken away. 3. After registration of the case Mashir Ali Shah S.I. PW 10 proceeded to the place where dead body was lying. He prepared injury statement ExPE and inquest report Ex.PF and sent the dead-body for postmortem examination. He recorded the statement of Manzoor Ahmed PW 7 on 23-10-1981 and of Muhammad nwar PW 8 and Ghulam Ali alias Gulla PW 9 on 24-10-1981. He arrested the appellant on 5-11-1981. After completing the investigation, the appellant was put to trial. 4. At the trial besides Umar Hayat complainant who reiterated the contents of FIR Ex.PB lodged by him and the medical evidence, PW 3, Muhammad Yousuf appeared to depose about the arrival of the police at the place of occurrence and recovery of Shalwar of the deceased. PW 7 Manzoor deposed having seen the deceased and the appellant standing near the sugarcane field of Mirza at about 8/9 a.m. on the day of occurrence i.e. 22.10.81. PW 8 Muhammad Anwar deposed that while Ghulam Ali PW 9 was sitting at his dera, the appellant came at about 9 p.m. on 24-10-1981 and confessed having committed rape on Mrt.Iqbal Bibi and then killing her and sought his help. He asked the appellant to come next day which he did not but came on 5-11-1981 when the witnesses produced the appellant at the Police Station. Ghulam Ah PW 9 supported him. The investigating officer Mashir Ah' Shah, S.I., appeared as-PW 10 and deposed about the investigation, recording of statement of Manzoor PW 7 on 23-10-1981 and of Muhammad Anwar PW 8 and Ghulam Ali PW 9 on 24-10-1981 and arrest of the appellant on 5-11-1981. 5. Appellant when examined under Section 342 Cr.P.C. denied the allegations against him and stated that his having been seen with the deceased before the occurrence was fabrication, denied having made any confession and gave the following statement in reply to question No.8 why this case against him: "I as well as Manzoor son of Jallah caste Muslim Sheikh Mst.Sabib Bibi wife of Riaz Muslim Sheikh and Mst. Jallo wife of Manzoor Mslim Sheikh resident at the dera of Ummar Hayat PW. When A/tfJqbal Bibi deceased was known to be missing I participated in searching for her and remained present at the dera and the surrounding area, busy in searching for her dead body. When her dead body was found on the pointing out of Mst. Sahib Bibi and Mst Julio Muslim Sheikh, mentioned above, the police were informed. The police apprehended the above mentioned Muslim Sheikh on suspicion. Like-wise, I and the other servants and moeens living at the dera of Ummar Hayat PW were also detained by the police. Interrogation continued for more than a week. At last the Muslim Sheikh were let off under the influence of some influential zamindars but I being a poor man was finally implicated in this case on the basis of false and fabricated evidence when the police failed to trace out the real culprits." In reply to question 9, has he to say anything else, he said: "I am innocent. Muhammad Anwar PW who is a dismissed police constable falsely involved me in this case in order of (?) help the police in showing that the case had not remained untraced." 6. The learned trial Court found the appellant guilty under Section 302 PPC and sentenced him to death subject to confirmation plus fine of Rs.10,000/- in default 2 years R.I. and u/S. 404 PPC and sentenced him to 3 years R.I. plus fine of Rs.2,000/- in default nine months R.I. This is vide order dated 1-10-1983. 7. On appeal the learned High Court rejected the, evidence of PW 8 Muhammad Anwar and PW 9 Ghulam Ali about the extra-judicial confession but relying on the evidence of PW 7 Manzoor who had deposed about having seen the deceased and the appellant in the morning near the sugarcane (field) and medical evidence, dismissed the appeal and confirmed the death sentence. This is vid order dated 30-4-1985. 8. At the leave stage it was urged on behalf of the appellant that "the mere fact that the accused-petitioner was seen standing near the deceased at about 9 a.m. on the morning of the occurrence is not by itself sufficient to hold that he had been proved to be the murderer beyond any shadow of doubt, without any further corroboration by recovery of articles belonging to the deceased or the extrajudicial confession (which has already been disbelieved by the Courts below)." Leave was granted to consider "whether the well established principles of appreciation of evidence in criminal cases, have been followed in this case." 9. Learned counsel for the appellant has submitted that the last seen evidence has been tendered by Manzoor PW 7. According to him, he had "informed Umar Hayat (the complainant) and Anwar PWs about his having seen the deceased and the accused together shortly before degarwela and after late pcshiwela. I made the statement before the Police at the same time when I had informed Anwar and Umar Hayat PWs because the Police had reached the spot simultaneously with my arrival there." He denied that his statement was recorded the next day of the occurrence viz 23-10-1981. He was duly confronted with his statement Ex.DA. Learned counsel also pointed out that the witness had admitted that he was a brother-in-law of Muhammad Anwar PW and a first cousin of the complainant Umar Hayat. He then referred to the statement of Muhammad Yousaf PW 3 who is the first cousin of die complainant Umar Hayat and Muhammad Anwar PWs. The witness had said that he and other witnesses were present when the Police recovered the Shalwar from the place of occurrence, that is, on 22-10-1981. He further stated that the appellant "was also present there at that time and he remained present at the Dera of the complainant till he was arrested by the Police about 13 days after the occurrence. He used to reside at the . said dera and was arrested from there. He continued doing routine work for Umar Hayat complainant till he was arrested." It was submitted that if the testimony of Manzoor PW 7 about the last seen were correct and he had informed the complainant on the day of occurrence or even a day later, the appellant who was around and with the complainant would not have been left to be arrested 13 days later. 10. Learned counsel for the State has supported the judgment under appeal. 11. At the outset it may be noted that there is no eye-witness. Nor any recovery has been effected from the appellant to connect him with commission of the crime. The learned Division Bench of the High Court has rejected the evidence of PW 8 Muhammad Anwar and Ghulam Ali PW 9 regarding extrajudicial confession on the ground that if the appellant had done so on 24.10.1981 they would have reported the matter to the Police and not waited till 5.11.1981 when he reappeared and was produced before the Police. Further, it may be noted that PW 8 Muhammad Anwar is first cousin of the complainant and so also is of Ghulam Ali PW 9. He admitted that he remained a police constable but said that he had resigned and denied the suggestion that he was dismissed. PW 9 Ghulam Ali admitted being a cousin f uhammad Anwar PW 8 and complainant Umar Hayat PW 6, and also that the mother of the deceased was his first cousin. Lastly, according to PW 3 Muhammad Yousuf who is a first cousin of Muhammad Anwar PW 8 and complainant Umar Hayat PW 6 and phopizad (father's sister's son) of Ghulam Ali PW 9, the appellant was present at the time of recovery of the Shalwar of the deceased by the Police, i.e., on 22.10.1981. He remained in die dent of the complainant and continued working there until he was arrested on 5.11.1981. If the two witnesses of the extra-judicial confession PWs 8 and 9 were right that the appellant had confessed before them on 24.10.1981 they would have certainly told their cousin Umar Hayat complainant about that and the latter would have got the appellant arrested straightaway and not allowed him to remain in his dera and work there until 5.11.1981 when he was arrested. In all the circumstances we are of the view that the learned High Court rightly rejected the evidence regarding the extra-judicial confession. 12. The learned High Court relied on medical evidence and "last seen evidence furnished by PW 7 Manzoor son of Bahawala for upholding the conviction of the ppellant. Medical evidence by itself would not connect the appellant with the crime. Therefore, it is the "last seen" evidence which has led to maintaining the conviction f the appellant. In this behalf reference may be made to precedents which lay down the principles governing the efficacy of such evidence. In the case of Karamat Hussain v. State (1972 SCMR 15) learned Chief Justice of this Court, Mr. Justice Hamoodur Rehman at p.19 of the report held that "if the extra-judicial confessions are disbelieved and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak ture, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In the case in hand, extra-judicial confession had been disbelieved, no recoveries were effected from the appellant nor any motive alleged against him. In the case of Nazo v. State (1977 SCMR 20) it was held that the evidence of a witness who had some connection with the deceased about having 'last seen' the deceased and the accused requires corroboration. In the present case, PW 7 Manzoor who deposed about last seeing the deceased and the appellant is a first cousin of the appellant and there is no corroboration of his evidence whatsoever. In the case ofRehmat v. State. (PLD 1977 SC 515) after a survey of precedents, the learned Chief Justice of this Court Mr. Justice Muhammad Yaqub Ali observed that: "On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion, such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the tune when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company. "In the present case there are no recoveries made from the appellant, nor motive alleged, though the element of proximity is there. Yet according to the prosecution evidence itself rather than the explanation of the appellant, the appellant remained at the dera of the complainant Umar Hayat PW 6 and continued doing his routine work from the day of occurrence 22.10.1981 until he was arrested on 5.11.81 according to PW 3, a first cousin of the complainant and if the witness of the last seen' PW 7 Manzoor had informed the complainant of last seeing the deceased and the appellant the same day of occurrence viz 22.10.1981 as he deposed, then the complainant would not have allowed the appellant to work at his dera and would have handed him over to the Police straight away. Further, the witness is a first cousin of the complainant and his testimony required corroboration as laid down in Nazo v. State (1977 SCMR 20) which is not there at all. The learned High Court fell in error in proceeding to examine this aspect of the case by holding that since there was no enmity with the appellant, the ipsi dbdt of the witness of the last seen together PW 7 Manzoor was sufficient to uphold the conviction of the appellant. Absence of the first was no guarantee about the truth of the latter. The evidence of Manzoor PW 7 about last seen together needed examination, analysis and critical appreciation. He was an interested witness being cousin of the complainant. If his testimony were correct, neither he nor his relative witnesses and certainly not his cousin complainant would have kept the appellant in his dera and allowed to bun to continue with his routine work for the next thirteen days. The conduct of all concerned would be most unnatural. Therefore, the solitary statement of PW 7 of last seen together in all the circumstances of the case cannot form safe basis for maintaining the conviction of the appellant in accordance with the principles laid down in the precedent cases noted above and the state of evidence on record. Hence, his I appeal is allowed. His conviction and sentence are, set I liberty forthwith if not required in any other case. (MBC) (Approved for reporting)

PLJ PLJ He shall be set at Appeal accepted PLJ 1991 SC 440 [Shariat Appellate Jurisdiction] Present: dr. nasim hasan shah, chairman, shafiur rahman, abdul qadeer chaudhry, pir muhammad karam shah and maulana muhammad taqi usmani, JJ FEDERAL GOVERNMENT OF PAKISTAN , THROUGH SECRETARY INTERIOR, ISLAMABAD-Appellant versus GOVERNMENT OF PUNJAB , THROUGH CHIEF SECRETARY and another—Respondents Shariat Appeal No.8 of 1989, dismissed on 33.1991. [On appeal from judgment dated 25.4.1989, of Federal Shariat Court , in S.S.M. No.270 of 1983]. Passport Act, 1974+(XXH of 1974- —S.8(2)-Power to cancel, impound or confiscate passport-Declaration of proviso to sub-section (2) of Section 8 of Act as repugnant to njunctions of Islam-Challenge to—Shariat Appellate Bench has held in a large number of cases that according to Injunctions of Islam, efore ny right of a person is affected adversely, he must be given an opportunity of showing cause against such an action—In this case, right of erson to travel freely is being adversely affected—Such a right is recognised by Holy Quran and Sunnah—Held: This right cannot be dversely affected without issuance of a proper show cause notice, but in a situation of emergency requiring immedajte action, prior pportunity of hearing may be dispensed with-Held further: This opportunity should be afforded at maximum within 14 days of impounding assport. [Pp.442&443]A&B PLD 1987 SC 304 and PLD 1988 SC 138 ref. Haflz S^l.Rahman, Advocate, Supreme Court, instructed by Mr. Manzoor Elahi, AOR for Appellant. Mr. Muhammad Nawaz Abbasi, AA.G. Punjab, instructed by Rao M. Yousaf Khan, AOR for Respondent No.l. Mr. MA.Qayyum Mazliar, AOR for NWFP Government. Date of hearing: 20.2.1991. JUDGMENT immediate action is necessary a passport can-be impounded for 24 hours and the notice for showing cause can be dispensed with but such opportunity of showing cause and of hearing be afforded to the affected passport-holder soon thereafter. Accordingly, a direction was issued that necessary modification/amendment in law on these lines should be carried out by the 30th of September, 1989, failing which the proviso in question shall cease to have effect. Hafiz SA. Rehman, learned counsel for the Federal Government, has submitted that a maximum period of four months is provided for administrative reasons in order to collect information against that individual who has to be provided and furnished grounds of his wrong doing, by the State. This argument seems to be misplaced as it assumes that action is taken first and the basis therefor gathered later, implying that the impugned action will be taken in the first place without any adequate material being in the possession of the authorities.In fact, there is a provision when action can be taken without issuance of a show cause notice in serious cases and this provision has not been declared to be against the Injunctions of Islam viz. Sub-section (3) of Section 8. It provides: "(3) If the Federal Government has reason to believe that the person in respect of whose passport it is proposed to make an order under sub­ section (1) is, or has been engaged in subversive activities or in activities which are prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power, it shall not be necessary to give to such person the notice provided for in sub-section (2) or to afford him an opportunity of being heard." In the situation now under consideration, a passport can be impounded for a period of 4 monhts without any show cause notice, but this Court has held in a large number of cases that according to the Injunctions of Islam before any right of a person is affected adversely he must be given an opportunity of showing cause against such an action and the Federal Shariat Court has cited the judgment in the case of Pakistan & others vs. Public at large & others (PLD 1987 S.C. 304 at pages 330/331) in this connection. In the present case, the right of a person to travel freely is being adversely affected. Such a right, it has been satisfactorily shown, is recognised by the Holy Quran and the Sunnah of the Holy Prophet. Hence we agree with the Federal Shariat Court that this right cannot be adversely affected wilhout issuance of a proper show cause notice. We also agree with the Federal Shariat Court that in case of emergency, action to impound the passport can be taken without a prior show cause notice but the requisite show cause notice should be issued soon after taking the action. In this case, the Federal Shariat Court has considered that 24 hours period is enough. We may here point out that in a situation of emergency requiring immediate action this Court has also held in the case of Province of Sindh vs. Public at large (PLD 1988 S.C. 138) that where taking of immediate action, as an emergent measure, is called for, prior opportunity of hearing may be dispensed with. However, such opportunity- shall be afforded as soon, thereafter, as is possible and we consider that this opportunity should be afforded at the maximum within 14 days of impounding the passport. In the result we would direct that the proviso to sub-section (2) of Section 8 should be amended as follows: "Provided that no such notice be given in the case of an order impounding a passport where immediate taking of action is necessary but such opportunity shall be afforded to the person whose passport has (been) impounded as soon as is possible thereafter but this period will not exceed more than two weeks, in any case." The necessary amendment, as indicated above, should be carried out by the 30th September, 1991, failing which the proviso to sub-section (2) of Section 8 shall cease to have effect. In the result the appeal is mainly dismissed, subject to the modification made in this Order. (MBC) Approved for reporting) Appeal dismissed.

PLJ 1991 SC 443 PLJ 1991 SC 443 [Appellate Jurisdiction] Present: muhammad ArzAL ZuLLAH, CJ and muhammad rafiq tarar, J PROVINCE OF PUNJAB, THROUGH SECRETARY, EDUCATION-- Petitioner versus MAHMOOD BEGUM, deceased, THROUGH HER L.Rs.-Respondents Civil Petitions Nos. 135-L and 136-L of 1991, dismissed on 21.4.19911 [On appeal from judgment dated 23.12.1990, of Lahore High Court, in F.A.O. Nos.41 and 97 of 1990.] Fair Compensation- —-Acquisition of property-Compensation for-Award of~Challenge to- Compensation of Rs.2302/- per mensem for a covered area of nearly 3387 Sq.ft. in city of Lahore, is hardly adequate—Admittedly, there would be no scope for downward re-determination of impugned compensation-though there is considerable chance of its increase-Provision of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, when tested upon touchstone of fundamental rights enshrined in Constitution, might have to be struck down—Held: There is no force in these petitions which should not have been filed by Government-Petitions dismissed. [Pp.444&445]A&B Mr. Abdul Maajid Sheikh, Advocate, Supreme Court and Rao Muhammad Yousaf fOtan, AOR for Petitioner. • Respondents: Not represented. Date of hearing: 21.4.1991. order Muhammad Afzal Zullah, CJ.~The Province of Punjab has sought leave to appeal; against determination by a learned District Judge, of fair compensation of requisitioned property which has also been upheld by the High Court. The amount fixed by the petitioner to be paid as compensation for a property the built up area of which at the time of requisitioning, 2165 sq.ft., was Rs.200/- per mensem in 1977. Two rooms with covered area of 1227 sq.ft. were built in 1986. Although there is a factual controversy as to who built it, the fact remains that same has also been taken into account for assessing fair compensation. The total area thus comes to more than 3387 sq.ft. for which the compensation of Rs.2302/- per mensem was determined to be paid since 1986. The payment of meagre amount of Rs.200/- per mensem to the respondent/widow till the end of 1985 has not been disturbed. Despite this somewhat unfair previous treatment to the respondent the petitioner for unexplainable reasons, has filed these petitions for leave to appeal. When trying to discover reasons the learned counsel appearing for the Government took a firm stand that even though he would not have liked to file such a petition the official concerned was sanguine about the need for filing these petitions. We are also surprised at the conduct of the official concerned.With regard to the merits there are two aspects of the case. One, whether we should grant leave to appeal and burden the widow with further litigation in this Court; when the compensation of Rs.2302/- per mensem for a covered area of nearly 3387 sq.ft. in the city of Lahore is hardly adequate, vis-a-vis, the prevailing market rate of rents for such a vast built up area. Admittedly, there would be no scope for downward re-determination of the impugned compensation-though there is considerable chance of its increase. The second aspect is of the law. The provisions enacted in 1956, prima-facie, might give some support to the arguments of the learned counsel that the amount regarding the built up area constructed prior to 1977 when the property was requisitioned, may not be increased. But there will be nothing to prevent, the proper determination of area constructed (1227 sq.ft.) in or after 1986. Fair compensation of this area alone would be more than the compensation impugned in these proceedings. Thus on these two considerations there wouid be absolutely no chance of ultimate success of the petitioner even if leave to appeal is granted; though there is serious possibility of the petitioner being burdened with heavy penal costs. There is third aspect of the matter also. The provision of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 when tested upon the touchstone of the fundamental rights enshrined in the Constitution might have to be struck down. While leaving this aspect at that I remark only, we do not find any force in these petitions which should not have' been filed by the Government and dismiss the same accordingly. It may be remarked that the learned counsel while explaining his position in filing these petitions after the announcement of the order stated that he had carefully studied the case and the law of 1956 and had also studied the law prevailing in India which has since been rationalized. We are placing this statement of the learned counsel on record so as to afford him protection against any discriminatary future treatment as a lawyer by the petitioner's functionaries. (MBC) (Approved for reporting) Both petitions dismissed.

PLJ 1991 SC 445 [Appellate Jurisdiction] PLJ 1991 SC 445 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and saad saood jan, J FAHEEMUDDIN-Appellant versus SABEEHA BEGUM and another-Respondents Criminal Appeal No. 128 of 1989, dismissed on 10.6.1991 fOn appeal from judgment dated 3.10.1991, of Lahore High Court, in Crl. Misc. No.223/Q of 1989] Aggrieved person/party- —-Offence under Section 6 of Muslim Family Laws Ordinance, 1961-- Conviction for-Challenge to—Whether second wife was not an aggrieved person/party to file omplaint-Question of-Contention of learned counsel that a second wife cannot be an aggrieved person if there is no permission under Section 6 of Ordinance, cannot be greed with-Before solemnizing contract of marriage, ladies do look at qualification of would be husband, amongst which an important one is that he should be bachelor and n­ attached-Held: Second wife is definitely a party and being an aggrieved person as also party, respondent had lawfully instituted proceedings before criminal Court-Appeal ismissed. [Pp.448&449]A,B&C Ch.Mushtaq Ahmad KJian, Advocate, Supreme Court and SAbul Aasim Jaferi, AOR for Appellant. Ch.KJialilur Rehman, Senior Advocate, Supreme Court and Sh.Salahuddin, AOR for Respondent No.l. Ch.MAnwar Ghumman, Advocate, Supreme Court, for Respondent No.2. Date of hearing: 10.6.1991. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court is directed against the judgment of the Lahore High Court; whereby the appellant's Petition under Section 561-A of the Code of Criminal Procedure was dismissed. The appellant who was already married, during the subsistence of the first marriage, solemnized another marriage without obtaining the permission of the arbitration council, under the Muslim Family Laws Ordinance, 1961. The respondent No.l who is the second wife filed the complaint under Section 6 of the Family Laws Ordinance before a Magistrate for prosecution and punishment of the appellant on the charge of having committed offence of marrying another wife during subsistence of the first marriage without the permission of the arbitration council. The trial Court found, prima-facie, enough substance in the complaint and the appellant was summoned to stand trial. Instead of facing the trial the appellant filed a direct petition in the High Court under Section 561-A Cr.P.C. for quashment of the proceedings before the Magistrate on the ground that the said proceedings amounted to abuse of process of law. The High Court dismissed the petition. Leave to appeal was granted to examine: whether the second wife "had no locus slandi to file a complaint for the alleged offence by the husband of polygamy as she is not an aggrieved person within the meaning of Section 6 of the Muslim Family Laws Ordinance because the said provision is intended for the protection of the rights of the first wife rather than that of the subsequent wife". Section 6 reads as foliows:- 6. (1) No man. during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state easons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application under sub-section (2), Chairman shall ask he applicant and his existing wife or wives each to nominate a representative, and the Arbitratrion Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions if any, as may be deemed fit, the permission applied for. (4) In deciding the application the Arbitration Council shall record its reasons for (he decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, in the case of West Pakistan to the Collector and, in the case of East Pakistan, to the Sub-ivisional Officer concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall; (a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both. Rules have been framed regarding the procedural aspects relating to prosecution, Rules 21 reads as follows:- (as amended for Punjab) "21. No Court shall take cognizance of any offence under the Ordinance or these rules, save on a complaint in writing by the aggrieved party, stating the facts constituting the offence". Learned counsel has raised two contentions in support of this appeal. One, that the respondent's second wife was not an aggiieved person. And secondly, that any and every person who felt "aggrieved" could not file a complaint, only a "party" could file a complaint. Dealing with the question of the grievance in this case we do agree with the learned counsel that when originally enacting, in all probability, the statutory protection was intended to be given to the first wife. But there is nothing in the language used in Section 6 which could be interpreted as having carried out such a limited intent. On the contrary the subject matter in Section 6 is treated in such a manner that any person could also in addition to the first wife make a grievance. And looking at the Schedule of the Criminal Procedure Code particularly the items relating to the offences created under Special Laws, the offence created by Section 6 could as well have been treated as a cognizable offence. If it would have been a cognizable offence the question of the condition regarding an aggrieved person filing a complaint would not have arisen. It appears, in Punjab the procedural restriction has been so as to avoid further complications in matrimonial matters. Whether or not such a restriction could be imposed under the authority of the Statute itself, the question has not been raised from the respondent's side and obviously the appellant would not be interested in raising it. We, therefore, leave it at that. Coming back to the question: whether or not the respondent's second wife was aggrieved by omission of the appellant in not obtaining the requisite sanction under Section 6, it will have to be kept in mind that the recent trend of authority by this Court is towards expansion of the connotation of the word "aggrieved" rather than restricting it. Indeed, this also appears to be the trend in many other civilised systems. Apart from the foregoing general consideration, we do not agree with the learned counsel that a second wife cannot be an aggrieved person if there is no permission under Section 6. Firstly, as has been alleged from the respondent's side in this case the appellant had made mis-representation about his first marriage. This would shatter the faith of a loving wife in her husband. His esteem may dwindle considerably in her view. This besides causing unhappiness to the husband would also cause serious grievance to the second wife whose expectations of a harmonious married life would suffer. Secondly, as a corollary from the foregoing, the act or omission of the husband in such a case in her view would amount to an offence as it is punishable as an offence. A respectable lady might feel a shock that she had been married to a criminal. Thirdly, and this is more important if the husband would have obtained requisite permission there can be visualised a possibility that she might have married him notwithstanding there being a first wife. But without such a permission she might not have married him for an obvious common place reason that she might also be treated as a criminal-- atleast by extending of vicarious liability as an accessory in a crime through abetment or otherwise. And lastly, there is possibility that of a would be second wife, deciding not to marry a man who is not only already married; but has also, declined or failed to obtain permission to marry, for the second time. In our society marriage by young un-married girls with widowers or with man having another wife under a subsisting marriage, to a considerable extent carries a stigma also for the second wife. It is so important in our society that some social workers and organizations try to influence and prevail upon the second would-be wives not to go through such a marriage as according to them it might prove harmful for both the wives or one of them on account of the nature of a husband in not being observant of limits of God in doing justice between them in accordance with Islamic principles. And above all the ladies before solemnizing the contract of marriage do look at the qualification of the would-be husband and amongst which an important one is that he should be bachelor and unattached. In the light of the foregoing we find no force in the arguments that the respondent, the second wife was not an aggrieved person. The second argument that the respondent was not a "party" is too technical to be given any importance. Word "party" in the Rule has been used in a general sense, meaning another person who feels aggrieved and has a direct connection with the marriage in question. The word "party" here is not confined only to the party before the Arbitration Council. This is so because in many cases and the present one is one of them the husband may not approach the Arbitration Council at all. Therefore, there will be no question of any person being aggrieved in the sense that the person should be a party to any previous proceedings. In so far as the complaint itself is concerned, before the filing of the complaint it cannot be imagined that the parties in that context would exist without the proceedings. Therefore, although the complainant would be a party to the criminal proceedings, prior thereto she would not be a party. Thus the word "party" is given extended meaning. We, therefore, hold that the second wife amongst others is definitely a party and being an aggrieved person-as also party, the respondent had lawfully instituted the proceedings before the Cruninal Court. This appeal, accordingly, fails and is dismissed. Appeal dismissed. (MBC) (Approved for reporting)

PLJ 1991 SC 449 [Appellate Jurisdiction] PLJ 1991 SC 449 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND SAAD SAOOD JAN, J ANJUMAN MASJID-I-FAROOQIA and 3 others-Appellants versus Mrt.FAZAL BEGUM and 3 others-Respondents Civil Appeal No.100 of 1989, dismissed on 10.6.1991 [On appeal from judgment dated 24.4.1983, of Lahore High Court, in R.S A. No.133 of 1981] Waqf Property-- —Suit for declaration that property was not waqf— Dismissal of suit by trial Court and lower appellate Court-Suit decreed by High Court in second appeal—Challenge to— here is no infirmity in judgment of High Court-It depends upon circumstances of each case as to whether long user of property was a waqf or not-Predecessor-in-interest f pondents might have used only rent of shops for purpose of spending on maintenance of mosque-Held: Plea of long user also has no force and is of no use to appellants- ppeal dismissed. [Pp.450&451]A&B Mr.S.M.Naseem, Advocate, Supreme Court and Rana MA. Qadri, AOR for Appellants. Mr.Shaukat AH Saqib, Advocate, Supreme Court and ChMAslam, AOR for Respondents 1 & 2. SAbid Nawaz, AOR for Respondent No.3. Date of hearing: 10.6.1991. judgment Muhammad Afzal Zullah, CJ.-- This is an appeal through leave of the Court. The facts and point noted for grant of leave are as under:- The appellants are the defendants in a suit filed by the respondents for declaration to the effect that the disputed property is not Waqf property and accordingly the disputed entries showing it as such required to be cancelled. The dispute relates to property consisting of 2 shops which were held to be WaqfAhlee-Islam by the first appellate Court. The case of the respondents was that the disputed property was purchased by their father from the Provincial Government in 1902. He constructed the shops and was owner thereof. On his death which took place on 24th December, 1910, the case of the respondents further was, the property devolved on them as his heirs. In 1968 when they intended to sell the property in question they learnt that it had been entered in the record of rights for the year 1917-18 maintained by respondent No.3, as a Waqf. They thus filed a suit for declaration to the effect that the said entry was illegal, void and ineffective on their rights. The present'appellants resisted the suit and pleaded that the disputed property was attached to a mosque and from times immemorial was being used as a Waqf. The trial Court dismissed the suit on limitation. The issue of Waqf was also held in favour of the aforesaid respondents. However, on cross-objections Additional District Judge came to the conclusion that the said property had been treated as a Waqf since long and also entered as such in the record of rights since 1917-18. Thus he reversed the findings of the trial Court on this point. But on the question of lins :ation upholding the view of the trial Court it was maintained that the property being Waqf was not in possession of the respondents and as the cause of action accrued to them in the year 1917-18 when the entry was made, the suit was barred bv time. Thus the first appellate court dismissed the appeal also on this groui, >n the RSA of the respondents as stated above, the High Court accepted tiie appeal; and, decided both the relevant issues in favour of the respondents. It was inter-alia argued by the learned counsel that long user as in the present case would make the disputed property a Waqf and in this connection he relied on Pir Rashid-ud-Daula etc. v. Chief Administrator Auqaf, West Pakistan (PLD 1971 Supreme Court 401). The real controversy as it has now emerged before this Court is: whether or not the predecessor-in-interest of the respondents had dedicated the property in dispute for cheritable purposes as a Waqf for the benefit of the mosque, adjacent to the shops in question. No doubt the findings of fact rendered by the two learned Courts befow were against the respondents, the High Court in a well reasoned judgment accepted their plea and decreed the suit. While the learned counsel for the appellants tried to show that the judgment of the High Court is based on misreading and non-reading of evidence, we have not been able to discover any such infirmity. Coming, lastly, to the question specifically noted in the order for grant of leave to appeal; namely, that long use of a property is by itself good evidence for declaring or treating a property as a Waqf, it has to be remarked tiiat it depends upon the circumstances of each case; as to whether the long user was as a Waqf or anjuman masjid-i-farooqia v. mst. fazal begum (Muhammad Afzal Zullah, CJ) S.C. 451 1991 not. And secondly, even if it is established that the long user was as of Waqf, it would depend upon the circumstances of each case; whether the property itself was treated as Waqf or its income only was being used for purp< >ses of Waqf. In this case the finding of the High Court on the first question is against the appellants. On the second question also we after going through the material on record have come to the conclusion that the predet t in interest of the respondents might have used only the rent of the shops pui; »sc of spending on and maintenance of mosque. Although there is some mater ml that this rent might also have been given to the Managers of the mosque for the same purpose but there is no evidence that, even the income was dedicated permanently for the maintenance of the mosque. Accordingly, the plea of long user also has no force and is thus of no use to the appellants. In the light of what is stated above there is no force in this appeal. It is dismissed with no order as to costs. Appeal dismissed. (MBC) (Approved for reporting)

PLJ 1991 SC 457 PLJ 1991 SC 457 [Appellate Jurisdiction] Present: dr. nasim hasan shah, ACJ, rustam s.sidhwa and muhammad afzal lone, JJ PIARA KHAN--Appellant versus BASHIR AHMAD--Respondent Civil Appeal No.464 of 1988, accepted on 28.7.1991. ( [On appeal from judgment dated 23.11.1982, of Lahore High Court, Multan Bench, in Civil Revision No.577/D of 1982.] Land Reforms Regulation, 1972 (MLR 115)-- —Para.25(3)(d) read with Punjab Pre-emption Act, 1913, Section 21-A?- Tenant—Purchase of land by-Pre-emption suit against-Decree of~Challenge to-Whether by urchasing land under his tenancy, appellant had lost his right under para 25(3)(d) of Regulation—Question of—According to Section 21-A of Punjab Pre-emption Act, 913, a pre-emptor cannot defeat a vendee by improving his status after sale and before institution of suit, but no such bar I exists to a vendee improving his tatus after sale but before suit for pfef emption is instituted—Held: Tenant's plea that superior right as tenant was available to him, was entitled to be accepted-ppeal allowed. [Pp.458,459&461]A,B&C i PLD1983 SC 181 rel. i;; 1 PLD 1983 SC 265 not approved. Mr. Riaz Anwar, Advocate, Supreme Court, instructed by Rana MA.Qadri, AOR (absent) for Appellant. Mr. Shamim Abbas Bukhari, Advocate, Supreme Court, instructed by 5. Abul Aasim Jafery, AOR for Respondent. Date of hearing: 20.11.1990. judgment Nasim Hasan Shah, ACJ.-This appeal, by leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court, Multan Bench, dated 23.11.1982 passed in Civil Revision N0.577/D/1982. The relevant facts are that the appellant purchased the land in dispute, of which earlier he was the tenant, on 12.9.1971. The sale gave rise (to) two pre- •y- emption suits; one was filed by respondent (Bashir Ahmad, respondent herein) and the other by Iqbal Ahmad Khan who later did not pursue the matter in higher forum and is now no longer in the picture. The respondent's suit was instituted on 12.9.1972. It was decreed by the trial Court and this judgment and decree was upheld by the District Judge,. Muzaffargarh in appeal and by the High Court in revision. Hence this appeal, by leave of this Cqurt. . Admittedly, the appellant was a tenant in the land in dispute at the time of sale namely 12.9.1971 which sale was challenged by Bashir Ahmad, respondent, by filing a suit on 12.9.1972. The learned Courts below decreed the suit of Bashir Ahmad on the ground that under the Land Reforms Regulation 1972 the superior right of pre-emption of a tenant has been acknowledged as from Kharif 1972 namely from 15th June, 1972 only. Since the impugned sale transaction took place on 12.9.1971 when he did not possess the superior right of pre-emption and this sale was questioned by the pre-emption suit filed on 12.9.1972 when he was no longer a tenant and had become an owner, the pre-emptor could succeed. The appellant had resisted the suit on the ground that at the date when the suit was instituted he had improved his status since he had been the tenant over the suit land right upto the sale transaction continuously since 1969. The case of Bashir Ahmad respondent, however, was that since according to the entry in the khasra girdawari the appellant was shown as a full owner of the land in Kharif 1972, having purchased the land in September, 1971, his tenancy had been converted into ownership by Kharif 1972. This plea was upheld and it was ruled that in so far as the appellant was no more a tenant of the suit land in Kharif 1972 his tenancy having been converted into ownership; he could not avail the benefit of the Land Reforms Regulation 1972, insofar as the first right of the pre-emption in respect of the land comprised in tenancy was conferred on a tenant as from Kharif 1972 [Section 25 (3) (d)] and not earlier. Accordingly, the appellant not being a tenant at the date of the institution of the suit whereas the respondent was a collateral of the vendor and had a superior right of pre-emption, his pre-emption suit was entitled to succeed. After having given my earnest consideration to the facts of this case and the law applicable thereto I have arrived at the conclusion that the tenant's plea was entitled to be accepted. Now if the sale had taken place on any date after 15th June, 1972, but before 12.9.1972, when the respondent's suit was filed, it is not seriously contested that the tenant could have successfully resisted the suit despite the fact that the tenant had become owner on account of purchase of the land comprised in his tenancy, earlier to the filing of the suit. This position is not conceded on account of the improvement of the vendee-tenant's position by virtue of the position of clause (d) of sub-section (3) of Section 25 of the Regulation, vesting the tenant with the first right of pre-emption in respect of the land comprised in the tenancy and putting him in the superior-most category of pre-emptors as from Kharif 1972. If this be so, then, in my humble view, the situation is not altered only because the impugned sale took place on 12.9.1971 ealier to the date of the enhancement in the status of the tenant which was enhanced as from Kharif 1972 i.e. as from 15th June, 1972 by the Land Reforms Regulation. This, in my opinion, is so because on the date the suit was filed (on 12.9.1972) the status of the tenant already stood enhanced and he could take advantage of the provisions of Section 21-A of the Punjab Pre-emption Act, 1913. According to this Section while a pre-emptor cannot defeat a vendee by improving his status after the sale and before the: institution of the suit, no such bar exists to a vendee improving his status after the sale but before the suit for pre-emption is instituted. Thus, if a vendee defendant improves his status after the date of the sale but before the institution of the suit he can rely on his improved status to defeat the suit of the pre-emptor. This Court in Muhammad KJian vs. Muzaffar (PLD 1983 S.C. 181) held that if a vendor sells the land to a tenant, the superior right conferred on the latter under Article 25 of the Land Reforms Regulation cannot be defeated on the ground that by the very same sale the rights of tenancy ceased to exist and, therefore, the tenant lost the superior rights conferred under the latter provision. M A.Zullah, J. (as his Lordship then was) speaking for the Bench said- "It is not denied that before the sale the defendant was a 'tenant' and qua him the plaintiffs had no preferential claim. This situation continued up to the time when the sale was to take place; because at the time of and 1 during the sale, the defendant remained a tenant. Even if for the sake of argument it is assumed that after the completion of sale in every respect, the tenancy right merged into ownership rights, that would in no way clothe the plaintiffs with superior right. The possibility of contemporaneous acquisition of superior right during the process of sale is too philosophical to be given any importance for the purpose of interpreting para 25 (3) (d)." However, another Bench of this Court in Fazal Khan vs. Ghulam Rabbani (PLD 1983 S.C. 265) took a slightly different view. In that case the sale in favour of the tenant of the land comprised in the tenancy was made on 12.7.1971 i.e. before the coming into force of the Land Reforms Regulation, 1972. The' suit for pre-emption was filed on 2.7.1972. The vendee resisted the suit pleading that at the time of sale, they being tenants of the suit land, had improved their status by virtue of the superior right of pre-emption created under Article 25 of the Land Reforms Regulation. This plea was not accepted and it was held that the question of improvement of status did not arise in this case because the vendee's rights as tenant after the sale got extinguished by merger of such rights into ownership rights and this occurred prior to enhancement (?) of the Land Reforms Regulation. Accordingly, he could not claim any right as tenant so as to be vested with a superior right of pre-emption created under Para 25 (3) (d) of the Regulation. The earlier decision in the case of Muhammad Klian vs. Muzaffar (PLD 1983 S.C. 181) was distinguished and it was observed that in the aforesaid case "this Court has held that if a vendor sells the land to a tenant the superior right conferred on the latter under Article 25 of the Land Reforms Regulation cannot be defeated on the ground that by the very same sale the rights of tenancy ceased to exist and, therefore, the tenant lost the superior rights conferred under the latter provision. If on the date of the sale the tenant has preferential right of preemption over all rights of pre-emption under section 15 of the Punjab Preemption Act, the vendor would be complying with the dictates of the general law of pre-emption in accepting the offer of a would be pre-emptor and selling the land to him." The view taken in the above case appears to be that the vendee tenant can assert a superior right of pre-emption only if he was already clothed with th improved status under the provisions of clause (d) of sub-section (3) of Section of the Regulation at the time of sale which was acquired by him on or after 15th June, 1972 and as the sale in this case had taken place on 2nd July, 1971 before acquisition of the improved status, the provisions of Section 25 (3) (d) of the Regulation were of no avail to him n my opinion, this does not appear to be a proper ppreciation of the rule laid down in the precedent case of Muhammad KJian (PLD 1983 S.C. 181). In the first place it omits from consideration the provisions of Section 1- f the pre­ emption Act, 1913. Secondly, full effect is not given therein to the principle that a pre-emptor to succeed should have superior right at the time of sale, at the time of suit and the time of decree. In the case in hand although the pre-emptor had a preferential claim at the time of the sale viz. -12.9.1971 but before the suk was instituted by im (on 2.7.1972), the tenant became vested with a superior right (as from 15th June, 1972). This improvement was not given consideration on the view that the tenancy ights got extinguished on account of the sale as they got merged with ownership rights. However, it was overlooked that it is the attempt to obtain ownership rights by urchase of the land in question that the pre-emption suit was occasioned which challenge could be defeated by virtue of the provision of Section 25 (3) (d) by the enant/owner, as under the said provision the first right of pre- " emption was conferred on him. I ideed, it is only when the sale made in favour of the tenant is challenged, hich sale in his favour results in his becoming an owner, that the occasion to press into service and to rely on his improved status that has been conferred on him under the rovisions of Section 25 (3) (d) of the Regulation comes into play. To hold that the rights conferred on tenants get extinguished by the sale in his favour so as to deprive him he possibility of relying on them to defeat the challenge to his newly acquired rights of ownership in the tenancy would make the rights conferred by Section 25 (3) (d) on him quite meaningless. Any such interpretation would be to nullify the full amplitude of the legislative intent namely to enable the tenant, inter-alia, to defend the sale from the attack of a pre-emptor, claiming superior pre-emptive rights. The effect of the -. view taken in the case of Fazal Klian (PLD 1983 S.C. 285) would be that a tenant would be able to avail of his superior pre-emptive rights only in suits for pre­ emption filed by him in respect of the sale made of the land comprised in the tenancy to others but he could not avail of them in defending a suit of pre­ emption whereby the sale thereof made in his favour is impugned. I do not think that this view is correct and a close scrutiny of the judgment delivered in Muhammad Khan's case (PLD 1983 S.C. 181) supports the view expressed above and also lays down the same principle. I am, therefore, inclined to follow the ratio of the said decision in letter and spirit. The result is that I would accept this appeal, set-aside the judgments of the Courts below and dismiss the suit of the pre-emptor, Bashir Ahmad (respondent herein). I would, however, leave the parties to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PJJ 1991 SC 461 [Appellate Jurisdiction] PJJ 1991 SC 461 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, RUSTAM S.SlDHWA AND MUHAMMAD AFZAL lone, JJ M.MUHAMMAD SADIQ and another-Appellants versus PUNJAB ROAD TRANSPORT BOARD, LAHORE, THROUGH ITS MANAGING DIRECTOR-Respondent Civil Appeal No.8 of 1987, accepted on 11.8.1991 [On appeal from judgment dated 18.11.1986, of Lahore High Court, passed in RFA No.120 of 1979]. Appeal- —Damages-Recovery of-Suit under Fatal Accidents Act-Suit decreed—High Court reducing amount of damages in appeal—Challenge to—Whether in absence of appellant nd respondent, appeal could be decided on merits-­ Question of--If appellant is absent, discretion is conferred on court to dismiss appeal under Order XLI Rule 17 of CPC-If ppellant appears but respondent does not appear, appeal can be heard ex-parte-A decree on merits is envisaged by Order XLI Rule 30 and hearing of both sides is condition recedent for such a decree-Held: High Court was not vested with authority to pass a judgment on merits despite default committed by appellants in failing to appear when ppeal was called for hearing-Appeal accepted and decree of trial court restored. [Pp.462&463]A&B Mr. Raflq Ahmad Bajwa, Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for Appellants. Rana Bashir Ahmad, Advocate, Supreme Court, and SAbul Aasim Jaferi, AOR for Respondent. Date of hearing: 13.11.1990. judgment Muhammad Afzal Lone, J.--This petition under Article 185(2) of thie Constitution arises out of a suit filed by the appellants against the respondent and Bchram Khan (not party to this appeal) under the Fatal Accidents Act for recovery of Rs.5,27,768.54, as damages, on account of the death of the appellants' daughter, namely, Mst. Parveen Akhtar, aged 22, in a road accident. The accident took place on 1-8-1974 on Ferozepur Road, Lahore, due to the negligence, rash and wrecklcss driving of bus by Behram Khan, driver, in the course of his employment under the respondent, to whom the bus belonged. The bus wrecklessly struck the scooter, resulting in instantaneous death of Mst. Parveen Akhtar and injuries to another daughter and son of the appellants, who was driving the scooter. The respondent in the first instance contested the suit but subsequently failed to enter appearance in the Court. Consequently, on 24-2-1979, on the basis of the material on the record, the trial Court passed an ex-parte decree against the respondent as well as the co-defendant Behram Khan for the entire suit amount. 2. The respondent filed an appeal in the High Court against the judgment and decree of the trial Court, which came up for hearing on 18-11-1986; the appellants ntered appearance through their Counsel but no-one appeared on behalf of the respondent-appellant. Instead of adjourning the appeal to procure the respondent's presence or dismissing the same in default, the learned Judges heard it on merits, upheld the findings that the accident occurred as a result of rash and negligent driving of bus by Behram Khan, in which Mst. Parveen Akhtar, who was employed as Technician in a local clinic, received fatal injuries and expired. 3. Both the defendants in the suit were thus held liable to pay damages to the plaintiffs/appellants. The High Court, however, disallowed the appellants' claim to the extent of Rs. 2,53,568/- and decreed the suit for Rs.1,74,200/-. The High Court's judgment and decree dated 18-11-1986 are under challenge in this appeal before us on the sole ground that when the respondent was absent, the High Court could proceed only under Order, 41, rule 17 CPC., dismiss the appeal for default in appearance or adjourn the case for respondent's appearance, but could not decide it on merits. Thus, the decision, on merits, in the submission of the learned Counsel, was wholly illegal. 4. oth the sides have been heard. If after admision of the appeal for regular hearing, on the adjourned date of hearing, the appellant is absent, under Order 41 rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order 41 rule 17 CPC is not intended to be imperative but is iscretionary. The dismissal for want of prosecution under this rule is not a decision on merits, and under Order 41 rule 19 on application of the appellant the Court can re-admit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his non-appearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex-parte. If the Court does not choose to dismiss the appeal, it has to be adjourned, but this rule nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order 41 rule 30 and hearing of both the sides is the condition precedent for such a decree. The Court can pass an ex-parte decree on merits in the absence of the respondent, but the decision on merits in the absence of the appellant is not permissible under CPC. No provision of law conferring such powers on the Court has been brought to our notice by the learned counsel for the respondent. The High Court, therefore, was not vestedwith the authority to pass a judgment on merits and partly accept the appeal despite the default committed by the appellants in failing to appear when the appeal was called for hearing. The impugned judgment and decree, therefore, cannot be sustained. This appeal is, therefore, accepted. The impugned judgment and decree are set aside and tttat of the trial Court restored, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 463 PLJ 1991 SC 463 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND SAAD SAOOD JAN, J MUHAMMAD BAKHSH (deceased) REPRESENTED BY HIS LEGAL HEIRS, and another-Appellants versus Mst. ZAINAB BIBI and 6 others-Respondents Civil Appeal No.445 of 1987, partly accepted on 15.6.1991 [On appeal from judgment dated 303.1980 of Lahore High Court, passed in R.S.A.No.45ofl965]. Gift- —Limited owner-Gift by in favour of her husband-Challenge to-Respondent No.l had acquired proprietory rights in 1956~Her power of alienation of land in dispute was governed by Section 30-A of Colonization of Government Lands Act-Held: Finding of Courts below that on acquisition of proprietory rights, she had become full owner, is clearly un-tenable—Held further: By operation of Section 2-A inserted in W.P. Muslim Personal Law (Shariat) Act, 1962, by Amending Ordinance XIII of 1983, succession to her father will begoverned by Muslim Personal Law and she being sole issue of her father, will be entitled to only one-half share in land in dispute, while remaining half will go to collaterals-Appeal partly accepted. [P.466JA Mian Saeedur Rehman Farrukh, Advocate, Supreme Court and Sh. Salahuddin, AOR for Appellants. Netno'for Respondents. Date of hearing: 15.6.1991. judgment Saad Saood Jan, J.-This is an appeal by special leave from the judgment dated 30-3-1980 of the Lahore High Court affirming the judgment of the Additional District Judge, Faisalabad, whereby the judgment of the Senior Civil Judge, Faisalabad, dismissing the suit of the appellants was upheld. 2. One Khair Din was granted occupancy rights in State land situate in ChakM No. 451/G.B. in Tehsil Samundri. He was governed by custom. In March 1928 he .._ made a will which was later registered, bequeathing his rights in the land to his only issue, namely, Mst. Zainab Bibi, respondent No.l. He stated in the will that Mst. Zainab Bibi would not have the power to alienate the rights but that on her death the same were to be inherited by her issues. He died on 13-6-194Q. In accordance with his will a mutation was attested in her favour. In 1956 she obtained proprietory rights in the land. On 18-4-1956, after the acquisition of proprietory rights, she made a gift of the entire land to her husband, Syed Abdul Karim, respondent No.2. 3. The appellants are the collaterals of Khair din in the second/third degree. On 25-7-1956 they filed a suit for a declaration that the gift would be oid and invalid after her death. The suit was dismissed by the trial Court with the finding that after the acquisition of proprietory rights Mst. Zainab Bibi became a full owner of the land in dispute and as such she was competent to make a gift. - The appellants filed an appeal before the Aditional District Judge but it w s ismissed. They then filed a second appeal hi the High Court, which too failed. 4. It is contended that despite the will made in her favour by her father Mst. Zainab Bibi continued to be a limited interest-holder and as such she was not competent to alienate the land by way of gift in favour of her husband. 5. At the time when Khair Din died, succession to tenan ies of land acquired in pursuance of a scheme framed under the Colonization of overnment Lands Act was governed by section 20 of the Act. This section reads as follows: "Subject to the proviso to section 14, when, after the commencement o this Act, any original tenant dies the succession to the tenancy shall ± devolve in the following order upon- (a) the male lineal descendants of the tenant in the male line of descent. (The term 'lineal descendants' shall include an adpoted son whose adoption has been ratified by a registered deed); (b) the widow of the tenant until she dies, or re-marries, or loses her rights under the provisions of this Act; (c) the unmarried daughters of that tenant until they die or marry, or lose their rights under the provisions of this Act; (d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to" say, his mother, his predeceased son's widow, his predeceased grandson's widow, his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family; (e) the successor or successors nominated by the Collector from among the persons enumerated in clause (d) of this section." It is not in dispute that at the time of his death in 1940 Khair Din did not have any heir who could be covered by clauses (a), (b) a d (c). The will made by him was in ubstance a nomination within the meaning of clause (d). This will so appear from the recital in the will that his daughter would not have any power of alienation. 6. In 1944, by Punjab Act VI of 1944, section 30-A was inserted in the Colonization of Government Lands Act. Subsection (1) of the new section reads as follows: "Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab) (Amendment) Act, 1944, proprietory rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same-- (a) if she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietory rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir; and (b) if the tenancy was first allotted on account of some male person, either to her, or to another female to whom she succeeded either directly or in a continuous line of female succession, as if the proprietory rights had been acquired by such male person and she had succeeded to such rights as his he and in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietory rights in question, the said rights shall devolve upon the persons who would be entitled to succeed, if such rights had been acquired by the last male tenant, or the male person on whose account the tenancy was first allotted, as the case may be." As Mst. Zainab Bibi had acquired proprietory rights in 1956 her power of alienation of the land in dispute was governed by this subsection. That being the legal position, the finding of the Courts below that on acquisition of proprietory rights she had become the full owner is clearly untenable. By operation of section 2-A as inserted by West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983) in the West Pakistan Muslim Personal Law (Shariat) Act, 1962, the succession to Khair Din will be governed by the Muslim Personal Law. Mst. Zainab Bibi being the sole issue of Khair Din will thus be entitled to only one-half share hi the land in dispute; the other half will go to the collaterals. In the circumstances the gift made by her in favour of her husband could not operate beyond her own share in the land in dispute. We would, therefore, partly accept this appeal and grant a declaration to the appellants that they are owners to the extent of one-half hi the land in dispute. There will be no order as to costs. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1991 SC 466 PLJ 1991 SC 466 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and muhammad rahq tarar, J SHAFAULLAH and 13 others-Petitioners versus SAIFUR REHMAN and 7 others-Respondents Civil Petition No.215-L of 1991, dismissed on 4.8.1991 [On appeal from judgment dated 20.1.1991, of Lahore High Court, in C.R.No.2726 of 1989]. (i) Adverse Possession-- —Adverse possession-Suit for-Dismissal of~Challenge to-Whether possession of petitioners was hostile and had matured-Question of—There are no circumstances in this case to show that for said period of 12 years (before partition), in fact and reality, possession of petitioners was hostile as open and as dishonest as is required in cases like present one-Petitioners did not dare to raise any claim of ownership through adverse possession so long as evacuees remained in Pakistan~If a suit would have been filed before 1947, undoubtedly petitioners would have lost it—Held: Neither there was any question of petitioners having matured title before partition against evacuees nor after partition against Custodian and/or Central Government-Leave refused. [P.468JB PLD 1991 SC 290 and PLJ 1981 SC 662 rel. (ii) Res-judicata-- —Adverse possession-Suit tor-Dismissal of~Challenge to—Whether suit was barred by principle of res-judicata-Question of-Custodian's verdict had become a part of ecree passed by civil court-Held: So long as it (decree of civil court) remained intact, it would also operate as res-judicata against petitioners in so far as second suit is oncerned. [P.468JA Awan Muhammad Hanif Klian, Advocate, Supreme Court, and Mr. Mahmood A.Qureshi, AOR for Petitioners. Respondents: Not represented. Date of hearing: 4.8.1991. order Muhammad Afzal Zullah, C J.- Leave to appeal has been sought against the dismissal by the High Court of petitioners' Civil Revision in a land dispute. The petitioners had filed a suit seeking declaration of title in evacuee land, on the basis of adverse possession. The suit which, was filed in late 1978 was dismissed in 1987. Their appeal and revision have' been dismissed on the finding that the claim of the petitioners on the basis of adversse possession is baseless and without any force. The land in dispute having been treated as evacuee stood settled on one Hussain Bai. It was alienated to Abdur Rehman in 1973. In the suit filed by the petitioners in 1978 it was claimed that they were in adverse possession since 1931 and the same had matured in 1943. The basis of this claim was that in Column of " It may be noted that prior to the filing of this suit the petitioners' predecessor had filed a similar suit on the same basis in 1957. The question was then referred to the Custodian Authorities under section 41 of the Administration of Evacuee Property Act, 1957. The reference was answered against the petitioners' predecessor. Accordingly, the suit was dismissed. In the present suit all the Courts have found concurrently against the petitioners on merits of the question of adverse possession. In the High Court the petitioners when confronted with the finality of the judgment rendered against the petitioners' predecessor in the earlier suit contended that the said decision of the Civil Court having been based on the decision of the "Deputy Custodian", it had not achieved finality. However, the learned Judge in the High Court repelled this as follows:- "This contention ignores the definition of the expression "Custodian" in section 2 of the Act. The expression "Custodian" was defined there to mean a Custodian of an Evacuee Property and included an Additional, Deputy or Assistant Custodian. Reference was then made to the rules made under an Act of 1948 for the contention that the decision of the Deputy Custodian was subject to confirmation by the Custodian. In view of the definition of "Custodian" in the 1957 Act, this contention must also In addition to the reasoning of the High Court it may be observed that the Custodian's verdict had become a part of the decree passed by the Civil Court . Accordingly, so long as it remained intact, it would also operate as res judicata against the petitioners in so far as the second suit is concerned. The learned Judge in the High Court further held that the land in question had remained vested in the Central Government till its transfer to Hussain Bai and further that no question of maturity of title adverse to the Central Government, would arise throughout this period. Learned counsel while admitting the effect of all these elements in the case, as going against the petitioners insisted that the initial adverse possession in 1931 should be deemed to have matured into perfect title in 1943. It is not that easy a matter as the learned counsel thought. The entry in the column of Lagan relied upon by the learned counsel is of no help to the petitioners; as admittedly the entry in the column of ownership contradicted the entry in the column of Lagan. There is no additional evidence to show that the presumption thus found in favour of the owners on acount of the entry, had to be ignored. Additionally there are no circumstances in this case to show that for the said period of 12 years in fact and in reality the possession of the petitioners was as hostile as open and as dishonest as is required in cases like the present one. See Mina Ghulam Hussain v. Ch. Iqbal Ahmad (PLD 1991 S.C. 290). So long as the evacuees remained in Pakistan and till 1947 there is no indication that the petitioners dared to raise any claim of ownership in their face and presence. If this alone was the basis of the petitioners' second suit which, as already held, was not at all competent, it was incumbent upon them to implead the evacuees as a party. If a suit would have been fileu before 1947-undoubtedly the petitioners would have lost it. And after the partition the combined reading of all the laws relating to evacuees and evacuee property, had the effect of almost repealing law relating to adverse possession; if not otherwise, at least by intendment. This proposition was approved in Jalal Shah v. Tlie Custodian (PLJ 1981 S.C. 662). There are many other cases to the same effect also which a counsel like the one appearing before us could have cited, if he decsired to do so. Thus neither there was any question of the petitioners having matured title before partition against the evacuees nor after partition against the Custodian and/or the Central Government. The High Court approach in this behalf being unexceptionable, leave to appeal, accordingly, is refused. (MBC) Approved for reporting) Leave refused.

PLJ 1991 SC 469 [Appellate Jurisdiction] PLJ 1991 SC 469 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL SHAKURUL SALAM, J' Mst. BADSHAH BEGUM-Appellant versus GHULAM RASUL and 4 others-Respondents Civil Appeal No.609 of 1989, accepted on 24.8.1991 [On appeal from judgment dated 4.3.1986, of Lahore High Court, in C.R. 775 of 1985] Gift- —Un-protected Muslim widow-Gift of land by-Challenge to—Whether gift was executed by her voluntarily or under coercion—Question of-Plea of appellant from ery beginning is that she was made to thumb-mark some documents in some different connection and no question ever arose of her making a gift in her (second) usband's favour-She is a childless widow and respondents are ready to allow her usufruct of suit property for her life time-­ It is absolutely clear from evidence that here was nobody with her to advise or protect her interests as against alienation through gift which admittedly deprived her of her valuable property rights—Held: ppellant was not protected in manner provided by Islam and relevant law-Appeal accepted and appellant's suit decreed. [Pp.471&472]A,B,C&D PLD 1990 SC 1=PLJ 1990 SC 139 rel. Mr, M.M.Saeed Beg, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Appellant. Mr. Zaki-ud-Din Pal, Senior Advocate, Supreme Court, and Mr. M-A.Qureshi, AOR for.Respondents 1 and 2. Nemo for other respodents. Date of hearing: 24.8.1991. judgment Muhammad Afzal Zullah, C J.-This Appeal through leave of the Court is directed against the dismissal by the High Court of the appellant's Civil Revision. The facts briefly stated are that the property in dispute belonged to Mst. Badshah Begum plaintiff/appellant. She had married Ghulam Ali after the death of her previous husband Ch. Daulat Khan. The suit property which the appellant inherited from her previous, husband on his death was purported to have been gifted by her in the name of her husband Ghulam Ali through a registered deed. Ghulam Ali died in 1969. The respondents' side is his successors; They posed themselves as owners of this property through succession opened on the death of Ghulam Ali. She objected but without any success. Then she filed a suit out of which the present appeal has arisen. Her plea of fraud and misrepresentation can be seen from the following narrative in her plaint: in detail. They, prima-facie, have not been satisfied in this case regarding the alleged gift made by Msf.Badshah Begum to her husband. The learned counsel for the respondents/successors-in-interest of Ghulam Ali while not denying the validity and application of the rule laid down in the case of Mst.Naqvi in such like cases, has tried to show that the safeguards spelt out in the said judgment have been satisfied in the present case With the help of the learned counsel, we have gone through the evidence. It is correct that the case of the respondents' was that she voluntarily out of free will gifted the suit property to her husband. And her plea was that she had been defrauded by him. Evidence was led from both the sides to rebut each other's case. It is also correct that the respondents' side examined an Advocate who proved the thumb impression of the appellant on a written statement filed on her behalf by the said Avocate in another suit regarding inheritance of her previous husband Ch.Daulat Khan. It is further undoubtedly correct that the transaction is evidenced by a registered deed. Therefore, it will have to be accepted that Mst .Badshah Begum did thumb mark the written statement filed on her behalf in the previous suit which did contain the admission that she had gifted the property involved in the present suit to her husband. It will also have to be admitted that she had appeared before the Registrar and did thumb mark the Registered Deed. There is ample evidence to prove these facts. But the question remains as to whether at that time when she appeared before the Registrar or she appeared before the lawyer, she was either a free agent or that she was not being duped by her husband, as in the case of Mst.Naq\'i, she was inveigled by her brothers. The plea of Mtf.Badshah Begum consistently from the very begirining is that she was made to thumb mark some documents which were represented to her to be in an other different connection and no question ever arose of her making a gift hi her husband's favour through these documents including the registered deed and/or the written statement. She is a childless widow and the learned counsel for the respondents has also offered a settlement formula; namely, that the respondents are ready to allow her the usufruct of the suit property for her life-tune. This type of relationship between the parties would show that if she would have willingly gifted the property she might have accepted such proposals. There is also no reason why she should tell a lie. But this all also is besides the point. Admittedly she was such a female Muslim who as held in Mst.Naqvi's case needed full protection and safeguard in so far as her property is concerned. It is absolutely clear from the evidence that there was nobody with her to advise or protect her interests as against the alienation through gift which admittedly deprived her of the valuable property rights. The lawyer who submitted a written statement on her behalf only stated that she had thumb marked it in his presence. That by itself would not show that she was the correct person. It has nowhere, been alleged that she was identified by such a person who had no interest against her in respect of the property in question. If Ghulam Ali her husband had then identified her before the lawyer this afforded no protection to her. Similarly, Jalal DW candidly admitted that when she had gone out of her house for purpose of executing the instrument in question she was accompanied by none else except by her donee husband. After hearing both the learned counsel at some length we are satisfied that the Muslim female involved in this case was not protected hi the manner provided by Islam and the relevant law as held in the cise of Mst.Naqvi. Accordingly, this appeal is allowed. The suit filed by the appellant is decreed. There shall be no order as to costs. , Before closing this judgment it needs to be clarified that when Ghulam Ali died, according to the statements made at the Bar, he left at least, generally speaking, two heritable properties.- one consisting of the suit property which is the subject-matter of the foregoing discussion and the other property which he owned Otherwise than through gift made by the appellant. Therefore, this judgment is confined only to that property which is the suit property and was the subjectmatter of the alleged gift made by Mrt.Badshah Begum in favour of Ghulam Ali. If Mst .Badshah Begum is entitled, as widow, to the other property of Ghulam Ali which is not the subject-matter of this case and this judgment, it will not create any bar to her obtaining her share as heir of Ghulam Ali in the other property. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 472 [Appellate Jurisdiction] PLJ 1991 SC 472 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL SHAKURUL SALAM, J MUHAMMAD RIAZ efc.-Appellants versus FATEH MUHAMMAD and others-Respondents Civil Appeal No.784 of 1989, partly accepted on 26.8.1991 [On appeal from judgment dated 17.5.1989, of Lahore High Court, in C.R. No.836-D of 1989.] Sinker- —-Pre-emption-Suit for-Dismissal of~Challenge to-Whether transaction of sale was severable and appellants had not sunk down by joining respondents Nos.3 to 6 who were not tenants-Question of~Admittedly two sets of vendees i.e. appellants on one hand and respondents 3 to 6 on other, purchased total land 50% each-Mot only share of each set of vendees is specified but also amount paid towards price by each set is specified—Held: Transaction relatable to appellants was eparate and severable-Appeal accepted to extent of one half share of transaction. [Pp.474&475]A PLD 1991 SC 210=PLJ 1991 SC 301 rel. S-AbulAasim Jaferi, AOR for Appellants. Ch. Nasnillah Warraich, Advocate, Supreme Court, and Rana M~A.Qadri, AOR for Respondents 1 and 2. Respondents 3 to 7: Exparte. Date of hearing: 26.8.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court arises out of a pre-emption matter. Leave to appeal was granted as follows:-"By registered sale deed the petitioners alongwith respondents No.3 to 6 purchased about 84 kanals and 6 marlas of agricultural land. In the sale deed the share of the petitioners was stated to be one half and the share of respondent No.3 to 6 was described to be the other half. The sale gave rise to two pre-emption suits; one filed by respondent No.l and 2 and the other brought by respondent No.7. The suits were defended by the petitioners and respondents No.3 to 6. The case of the petitioners was that they were tenants in the land in dispute and as such they had a better right to retain the land. Before the trial Court it was not disputed that at the time of the sale, the petitioners, were cultivating the land as tenants. However, it was found that respondents No.3 to 6 were strangers. The petitioners' defence of being tenants was rejected by the trial Court on the ground that by joining respondents No.3 to 6 in the sale they had relegated themselves to the status of non-tenants. "The trial Court found that both sets of pre-emptors were collaterals of the vendors but that respondents No.l and 2 were more closely related to' him than respondent No.7; accordingly, it decreed the suit of respondents No.l and 2 and directed them to deposit the purchase money by a specified date. It also directed that in case they failed to comply with this direction their suit would stand dismissed and that of respondent No.7 would be decreed. However, respondents No.l and 2 did deposit the purchase money within the specified time. Respondent N6.7 has now completely dropped out of the proceedings. The petitioners alone filed an appeal from the judgment and decree of the trial Court before the Additional District Judge, Gujrat. They again agitated the pleathat being tenants in the land in dispute they had a better right than respondents No.l and 2 to acquire the land. The learned Additional District Judge rejected their contention on the same ground which had prevailed with the trial Court, that is, by joining non-tenants with them in the sale they had sunk down to the position of non-tenants. From the judgment of the Additional District Judge, the petitioners preferred a revision petition before the High Court but it failed. They now seek leave to appeal from this Court "In support of this petition it is contended that in the sale deed the shares of the petitioner and of respondent No.3 to 6 were specifically mentioned, even though it was not stated therein that they had also separately contributed towards the purchase price, but evidence was led at the trial that both sets of vendees had separately paid their own parts of the sale price. In the circumstances, the sale deed recorded two separate and distinct transactions. Reliance was also placed on Secion 46, Transfer of Property Act which states that where immovable property is transferred for consideration by persons having distinct interest therein, the transferees are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and where such interests were of unequal value, proportionately the value of their respective interests. In the circumstances, it is argued that the High Court as well as the subordinate Courts erred in holding that the plea of being tenants in the land in dispute was not available to them to defeat the superior claim set up by respondents No.l and 2. The contentions raised in support of this petition need examination. The crucial question is whether the transaction of sale involved in this case could be and/or was in fact made up of two severable transactions. Amittedry, according to sale deed both the sets of vendees; namely, the appellants on the one hand and respondents No.3 to 6 on the other purchased the total area in question -50% each. The next question is: whether they also contributed the price/sale consideration in the same ratio. We with the help of the learned counsel of both sides have gone through the evidence. The registered deed is absolutely clear that both sets of vendees had taken one half of the land each - no more no less. An inadvertent mistake in one of the sentences of the statement of a witness in this behalf showing the share of respondents No.3 to 6, an iota less than the share of the appellants was an innocent inadvertent calculating mistake. The remaining statement as held is consistent with the entries in the registered deed. The dispute only is with regard to the share of the sale consideration while in the registered deed, according to learned counsel, one way of reading it would show that the amount of Rs.80,000/- was not divided into Rs.40,000/- each, according to the appellants' reading it was obviously mentioned that both the sets of vendees had paid the consideration also 50 per cent each. Even if there is some cloud in this behalf visible to the learned counsel for the respondents, which we remain unable to discover, the same got shed-off by elaborate statements made in that behalf which were subjected to piercing questioning. We are satisfied that in this sale not only the share of each set of vendees is specified but also the amout paid towards the price by each of these sets is also specified. Accordingly the transaction relatable to the appellants was separate and severable. The rule laid down in Mir Ahmad vs. Attaullah alias Atta Muhammad (PLD 1991 S.C. 210 =PLJ 1991 SC 301) stands satisfied. Accordingly, this appeal is allowed to the extent the land purchased by the appellants; namely, one half share of the total transaction. The remaining one half share of the total transaction shall remain with respondents/ successful pre-emptors. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1991 SC 475 [Appellate Jurisdiction] PLJ 1991 SC 475 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul shakurul salam, J KHUSHI MUHAMMAD-Appellant versus SAJJAD HUSSAIN and another-Respondents Civil Appeal No.604 of 1989, accepted on 28.8.1991. [On appeal jrom judgment dated 22.10.1989, of Lahore High Court, Multan Bench, in FAO No.3 of 1989]. Pre-emption- Pre-emption—Suit for-Decree passed in—Challenge to—Held: In peculiar circumstances of case, it would be proper that in order to obtain opinion of High Court on factual ontroversies involved in other relevant issues, case should be remanded to High Court-Appeal accepted and case remanded to High Court for decision afresh but appellant lowed to file cross-objections in order to do complete justice. [P.476JA&B Mr. Zahid Hussain Klian, Advocate, Supreme Court, and Rana Maqbool Ahmad Qadri, AOR for Appellant. Mr. S.M.Tayyab, Advocate, Supreme Court, and Ch. Mehdi KJtan Mehtab, AOR for Respondent No.l. Respondent No.2: Ex-parte. Date of hearing: 28.8.1991. judgment Muhammad Afzal Zullah, Cj.--This direct appeal arises out of a pre­ emption case. The appellant is the vendee/defendant. The respondents' suit was decreed in 1985. On appeal the decree in respondents' favour was set aside on a technical ground regarding deposit of security for the Za-e-Panjum. However, the District Court had upheld the judgment of the trial Court on other questions on merits relating, for example, to the superior right of pre-emption and estoppel. On respondents' appeal against the order of remand, before the High Court, the same was set aside on the findining that the approach of the learned trial Judge regarding the question relating to the deposit of Zar-e-Panjwn and/or substitution of the order for deposit by an order for security, was un-exceptionable. The High Court, however, without determining any further issues relating to the merits of the case other than the question of Zar-e-Panjum while setting aside the appellate order, restored the judgment and decree passed by the trial Court in favour of the respondent/pre-emptor. During the course of the arguments it transpired that the controversy in this case regarding Zar-e-Panjum has since been set at est in a similar case in Malik Barkat All Dogar vs. Muhammad Shaft and others (PLD 1990 Sureme Court 60 =PLJ 1990 SC 49). Learned counsel for the appellant realising that the said controversy being no more alive and the said judgment going against the appellant raised the question of prejudice to the appellant caused by the restoration of the tri^l Court's judgment and decree, by the High Court without hearing and decision on merits regarding the issues other than Zar-e-Punjum. Learned counsel for the respondent in principle did not disagree; but requested that this Court may decide those issues and save the parties from further litigation through a remand order. After hearing both of them, in the peculiar circumstances of this case, we feel that it would be proper that in order to obtain the opinion of the High Court on factual controversies involved in the other relevant issues, this Court should remand the case to the High Court. Accordingly, while setting aside the order of restoration of the trial court judgment and decree passed by the High Court, on accepting this appeal, we remand the matter to the High Court for decision afresh. In order to remove the formal difficulty regarding any technical objection, we in order to do complete justice, permit and direct the appellant to file a formal appeal/cross objection against the judgment and decree passed by the learned 8 Additional District Judge on 12.12.1988 in so far as the finding on facts and merits of the case were rendered against the appellant. In this context and the above explained circumstances, we further order the condonation of the delay and other formalities in this behalf. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 475 [Appellate Jurisdiction] PLJ 1991 SC 475 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul shakurul salam, J KHUSHI MUHAMMAD-Appellant versus SAJJAD HUSSAIN and another-Respondents Civil Appeal No.604 of 1989, accepted on 28.8.1991. [On appeal jrom judgment dated 22.10.1989, of Lahore High Court, Multan Bench, in FAO No.3 of 1989]. Pre-emption- Pre-emption—Suit for-Decree passed in—Challenge to—Held: In peculiar circumstances of case, it would be proper that in order to obtain opinion of High Court on factual ontroversies involved in other relevant issues, case should be remanded to High Court-Appeal accepted and case remanded to High Court for decision afresh but appellant lowed to file cross-objections in order to do complete justice. [P.476JA&B Mr. Zahid Hussain Klian, Advocate, Supreme Court, and Rana Maqbool Ahmad Qadri, AOR for Appellant. Mr. S.M.Tayyab, Advocate, Supreme Court, and Ch. Mehdi KJtan Mehtab, AOR for Respondent No.l. Respondent No.2: Ex-parte. Date of hearing: 28.8.1991. judgment Muhammad Afzal Zullah, Cj.--This direct appeal arises out of a pre­ emption case. The appellant is the vendee/defendant. The respondents' suit was decreed in 1985. On appeal the decree in respondents' favour was set aside on a technical ground regarding deposit of security for the Za-e-Panjum. However, the District Court had upheld the judgment of the trial Court on other questions on merits relating, for example, to the superior right of pre-emption and estoppel. On respondents' appeal against the order of remand, before the High Court, the same was set aside on the findining that the approach of the learned trial Judge regarding the question relating to the deposit of Zar-e-Panjwn and/or substitution of the order for deposit by an order for security, was un-exceptionable. The High Court, however, without determining any further issues relating to the merits of the case other than the question of Zar-e-Panjum while setting aside the appellate order, restored the judgment and decree passed by the trial Court in favour of the respondent/pre-emptor. During the course of the arguments it transpired that the controversy in this case regarding Zar-e-Panjum has since been set at est in a similar case in Malik Barkat All Dogar vs. Muhammad Shaft and others (PLD 1990 Sureme Court 60 =PLJ 1990 SC 49). Learned counsel for the appellant realising that the said controversy being no more alive and the said judgment going against the appellant raised the question of prejudice to the appellant caused by the restoration of the tri^l Court's judgment and decree, by the High Court without hearing and decision on merits regarding the issues other than Zar-e-Punjum. Learned counsel for the respondent in principle did not disagree; but requested that this Court may decide those issues and save the parties from further litigation through a remand order. After hearing both of them, in the peculiar circumstances of this case, we feel that it would be proper that in order to obtain the opinion of the High Court on factual controversies involved in the other relevant issues, this Court should remand the case to the High Court. Accordingly, while setting aside the order of restoration of the trial court judgment and decree passed by the High Court, on accepting this appeal, we remand the matter to the High Court for decision afresh. In order to remove the formal difficulty regarding any technical objection, we in order to do complete justice, permit and direct the appellant to file a formal appeal/cross objection against the judgment and decree passed by the learned 8 Additional District Judge on 12.12.1988 in so far as the finding on facts and merits of the case were rendered against the appellant. In this context and the above explained circumstances, we further order the condonation of the delay and other formalities in this behalf. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted. PLJ 1991 SC 476 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul shakurul salam, J MUHAMMAD HUSSAIN-Appellant versus ALLAH DAD and 13 others-Respondents Civil Appeal No.408 of 1989, accepted on 27.8.1991 [On appeal from judgment dated 22.3.1986, of Lahore High Court in C.R. No.725 of 1986]. Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.13 read with Order VIII R.lO-Ex-parte decree-Setting aside of- Application for-Dismissal of~Challenge to-Held: There was no order by court requiring defendant nder Order VIII of C.P.C. to file written statement—Appeal accepted and case remanded to trial court for decision on merits. [P.478JA&B Mr. Talib Hussain Rizvi, Advocate, Supreme Court and SAli Imam Naqvi, AOR for Appellant. Kh. Muhammad Farooq, Advocate, Supreme Court, and Malik Mehr Khan, AOR (absent) for Respondents Nos.l and 2. Respondents No.7 to 14: Ex-pane. Date of hearing: 27.8.1991. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court arises out of an ex-parte decree. Leave to appeal was granted as follows:- "Leave to appeal has been sought by the defendant in a suit for declaration; against the dismissal of his Civil Revision by the High Court. It had arisen out of the dismissal of his application for setting aside an exparte decree which, as contended by the learned counsel, was passed on a date when the suit was fixed for filing of the written statement only. Learned counsel contends that the legal question now stands settled that the date of filing of written statement is not a date of 'hearing'. Therefore, the suit could not have been decreed against the petitioner exparte for non-appearance on the date when only a written statement was to be filed. The question needs examination. Leave to appeal, accordingly, is granted". Learned counsel for the respondents as a preliminary submission stated that the assumption made in the leave grant order that the date of filing of the written statement is not a date of hearing and that the law stands now settled, needed to be verified with reference to the precedent law. The learned counsel for the appellant reiterating the position taken by him and recorded in the leave grant order in that behalf, stated that in this case it would not be necessary to go into the said question regarding the submission of the written statement. As according to him, the relevant date was not even fixed for the submission of the written statement. It was in fact for the submission of the eply to an application made by the respondents' side for grant of temporary injunction. He has produced the copy of the order-sheet, the examination of which has confirmed what the learned counsel for the appellant has stated. The learned counsel for the respondents after aving seen the copy of the order-sheet did not dispute that if the case was fixed for the submission of the reply to the said miscellaneous application then it was not a ate of hearing of thecase. He, however, tried to show that according to the provisions contained in the Civil Procedure Code regarding the submission of a written statement, the relevant date could also be treated as the one for the filing of the written statement.Firstly, we have not yet agreed with the learned counsel that a date or filing of the written statement has to be treated as a date for the hearing of the suit. And secondly, the order-sheet does not at all support the learned counsel for the respondents. Regarding the presumption that according to C.P.C. the defendant as required and could file a written statement on any of the dates fixed for t filing of the reply to a miscellaneous application. Suffices it to observe that there was no order by the Court requiring the defendant under Order VIII of the C.P. to file a written statement. Regarding the other categories of written statements,the argument of the learned counsel also has no force as it has to be establishedfrom the order-sheet that a particular date was fixed for the filing of any writtestatement as a reply to the plaint. See also Sakhawatuddui vs. Muhammad Iqbal (1987 S.C.M.R. 1365=PLJ 1987 SC 537). In the light of what has been stated above, there is no force in the arguments of the learned counsel for the repondents. This appeal is allowed, the impugned judgment is set aside and the case is remanded to the trial Court for decision on merits. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 SC 478 [Appellate Jurisdiction] PLJ 1991 SC 478 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH, CJ and abdul qadeer chaudhry, J GOVERNMENT OF PUNJAB , THROUGH SECRETARY, HEALTH DEPARTMENT-Appellant versus SALAMAT ALI KHAN-Respondent Civil Appeal No.l of 1990, partly accepted on 9.4.1991 [On appeal from judgment dated 8.11.1989, of Lahore High Court, in R.S A No.154 of 1988] Benefit of doubt- —Death of respondent's daughter due to negligence of medical staff-- Damages~Suit for—Decree passed in suit-Challenge to~Lady doctor who attended patient on her dmission in Hospital and had also prescribed and administered medicines, has not been examined as a witness-Original record has not been admitted as evidence--CM urported to have been issued by lady doctor Nargis, produced by respondent, does not pritna fade seem to have been issued by her—It is strange as to how this document Chit) came in possession of respondent and remained with him till late stage in trial—Its authenticity seriously remains in doubt-Held: For all these reasons, there is no alternative but to allow appeal only on extension of benefit of doubt—Held further: While stigma and finding of guilty is removed from appellant's functionaries, respondent s allowed to retain amount of damages already paid to him. [Pp.479,480]A,B&C Mr. M.Nawaz Abbasi, AA.G., Punjab , and Rao Muhammad Yousaf KJian, AOR for Appellant. Respondent is person. Date of hearing: 9.4.1991. judgment Muhammad Afzal Zullah, C J.- In this direct appeal by the Government wherein, the grant of damages in tort to the respondent amounting to Rs. 1,00,000/- on account of the death of his minor ailing daughter in the Mayo Hospital, Lahore, due to the negligence of the medical staff thereof, has been brought under challenge. No doubt the impugned judgment, prima-facie, appears to be un­ exceptionable as the functionaries of the appellant in the Service Hospital and the Mayo Hospital failed to save the life of the ailing child and a strong possibility cannot be excluded that the death was due to the gross negligence of the appellant's functionaries; namely, the doctors who purported to have dealt with the case. However, we have noticed that on account of certain procedural difficulties faced by the learned trial Judge for procuring and entetaining the most vital evidence oral and documentary, it has become possible to give a benefit of doubt to the appellant in so far as the conduct of its functionaries is concerned. This is so because relevant vital evidence has not been brought on record. Had the needful been done in this behalf and the said evidence would have been admitted there would have been both the possibilities of confirming the findings against the appellant or to set them aside. The latter could have been an equally strong possibility. The evidence which is not on record is two-fold. One, the lady Doctor Nargis, Medical Officer and who purported to have attended the patient on her admission and also purported to have prescribed and administered medicines, has not been examined as a witness. Similarly, the original record which could be procured and brought on the record of the trial Court in accordance with the normal procedure but with a little more effort, has not been admitted as evidence. A Chit purported to have been issued by lady Dr. Nargis produced by the respondent during the cross-examination of a witness shows as if it does not (prima-facie) seem to have been issued by her. It does conflict with some photo copies of the record. But there is no surety that this document produced by the respondent from his own possession at a very late stage was in reality in the hand­ writing of lady doctor Nargis. It is also strange as to how this document came in possession of the respondent and remained with him till a late stage hi the trial. Its authenticity seriously remains in doubt. For all these reasons there is no alternative but to allowthe appeal only on the extension of benefit of doubt. One of the procedural consequence amongst others i.e. extension of beneift of doubt as held in a criminal case Sher Hassan v. The State (PLD 1959 Supreme Court (Pak) 480) is that neither of the two alternatives will be deemed to have been established and further that either of those conflicting positions could be deemed to have existed. That being so, the appellant has been given only the benefit of this jurisprudential effect of benefit of doubt. One position as affirmed by the High Court going in favour of the respondent could also be correct, therefore, while the appellant succeeds on a legal and techical ground of extension of benefit oi doubt, as discussed above, on merits it remains partial success. Therefore, while the stigma and finding of guilty is removed from the appellant's own functionaries at the same time the respondent/plaintiff is allowed to retain the amount of damages which has already been paid to him and he has utilized the same for arranging the marriage of his other daughter. It may be clarified that even if the amount would not have been paid to the respondent and there would not have been any additional factor of his daughter's marriage we would have still allowed to him the benefit of receiving the amount as the appeal has been allowed only on benefit of doubt. Thus while partly accepting this appeal it is directed that the decretal amount which has already been paid to the respondent shall not be recovered from him. (MBC) (Approved for reporting) Appeal partly accepted

PLJ 1991 SC 480 [Appellate Jurisdiction] PLJ 1991 SC 480 [Appellate Jurisdiction] Present: dr. nasim hasan shah, chairman and abdul qadeer chaudhry and maulana muhammad taqi usmani, JJ SULTAN BIBI-Appellant versus IBRAHIM and two others-Respondents Criminal Appeal No.6(S) of 1989, decided on 9.4.1991 [Against judgment dated 5.11.1986 of Federal Shariat Court, in Crl. Appeal No.218/I of 1986.] (i) Pakistan Penal Code, 1860 (XLV of 1860)- — S.354 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 18~Modesty of woman-Outraging of— Conviction for-Distrinction between a case of outraging modesty or attempted rape—Act of violence or mischief to indignation or annoyance of a woman would constitute offence mentioned in Section 354 PPC-Actual intention of committing rape is not contemplated by this section-In attempt, accused commits some overt act towards achieving his object but cannot succeed due to interruption by some external facts and circumstances not connected with object of accused. [Pp.483&484]A&B (ii) Pakistan Penal Code, 1860 (XLV of I860)- — S354 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 18— Modesty of woman-Outraging of—Conviction for—Whether it was , a case of outraging of modesty or of an attempt to commit rape-Question of- Facts established on record are that girl was apprehended by two respondents who caught hold of her y arms, that she was dragged to sand dunes at a distance of 40 Karams, and that her Shatwar was removed by them-Her shirt was also torn in a struggle to save her from clutches of accused—Held: These series of acts would cq«»stfrne an offence under Section 18 of Hudood Ordinance-Held tether: Case sorely falls under Section 18 of Ordinance and order of Federal Shariat Court is '-not sustainable in law-Conviction altered at already undergone [Pp.484&485]C&D 1988 P.Gr.LJ 2364, 1984 SCMR 893, 1985 SCMR 997, PLD 1982 FSC 179 and 1973 SCMR 108 discussed. Sh. Zamir Hussain, Advocate, Supreme Court, and Ch. AkhtarAli, AOR for Appellant. Mr. M.Kowkab Iqbal, Advocate, Supreme Court/AOR for respondents 1 and Raja A.Ghafoor, Advocate, Supreme Court for State. Date of hearing: 5.3.1991. judgment Abdul Qadeer Chaudhry, J.- This appeal by leave of the Court is directed against the judgment of the Federal Shariat Court dated 5-11-1986 whereby the conviction of the respondents Nos. 1 and 2 under Sections 11 and 18 of the Hudood Ordinance (hereinafter referred to as the Ordinance) was set aside and they were convicted under Section 354 P.P.C. 2. The facts, in brief, are that Mst. Sultan Bibi PW.2 reported that 5/6 days prior to the occurrence, she was coming from Bhalla Village to the outside fields for grazing cattle. The respondents Muhammad Ibrahim and Mansab came out from the bushes. Ibrahim caught hold of her by arms. She got released herself and made scream on which both the accused dragged the complainant behind the sand dunes and forcibly untied her Shalwar. On alarm being raised by her, Muhammad Bilal and Khan Muhammad, residents of Bhalla who were working in the nearby fields came there. On seeing them, the accused ran away from the spot. During the struggle, her shirt had torn. The trial Court convicted the respondents under section 11 of the ordinance and sentenced them to imprisonment for life and fine of Rs. 5,000/- each or in default to undergo R.I. for 2 years and 30 stripes each. Each of them was also convicted under section 10(3)/18 of the Ordinance to suffer R.I. for twelve and a half years. The sentences awarded to Ibrahim were ordered to run concurrently. The benefit of Section 382-B Cr.P.C. was also given to the respondents. The respondents challenged their conviction before the Federal Shariat Court which set aside the conviction and sentence of both the accused under Section 11 of the Ordinance. The conviction under Section 10(3)/18 of the said Ordinance was converted into one under Section 354 P.P.C. and the sentence was reduced to 18 months' R.I. and fine of Rs. 2000/- or in default of payment of fine, to further undergo R.I. for three months each. In case of recovery of fine, Rs. 2000/- were ordered to be paid as compensation to the complainant. The trial Court as well as the Federal Shariat Court have accepted the prosecution case against the respondents. Mst, Sultan Bibi has corroborated the statement of fact recorded in the First Information Report. PW.5 Muhammad Bilal had witnessed the incident and supported the statement of the prosecutrix. 3. Leave to appeal had been granted to consider whether the case falls under Section 18 of the Ordinance or the conviction recorded under S. 354 PPC is legal. Leave s not sought against the acquittal of the respondents under Section 11 of the Ordinance. 4. Mst. Sultan Bibi had appeared as P.W2 and she had deposed that "Ibrahim accused caught me from arms but I relieved myself. Then both of them dragged me to the sand dunes at a distance of about forty karams when I raised alarm. Then Mansab accused caught me from arms. Ibrahim accused removed y shalwar as well as his own. I then again raised alarm by which Muhammad Bilal and Khan Muhammad were attracted to the spot. Seeing them coming, the accused released me and went away towards south. My shirt was torn in the scuffle". PW.5 Bilal deposed that "I alongwith Khan Muhammad was coming to my village Bhala. When we eached near Chasma Link Canal , we heard screams. e rushed towards the cries and saw that Mansab accused had caught hold of Sultan Bibi and her shalwar was removed". He further stated that "Mst. Sultan ) Bibi was lying on the ground and she was raising alarm. He also saw that the shirt of Mst. Sultan Bibi was torn". 5. The age of the girl at the time of recording the First Information Report was 10/11 years. 6. The reason which found favour with the Federal Shrriat Court in converting the conviction of the respondents under Section 354 PPC is as follows:- "Now the question is whether the appellants can be said to have attempted to commit Zina with the child. In the FIR Mst. Sultan Bibi has stated that she was made naked and laid on the ground, but she did not say that any of the appellants had also removed her shalwar. She was, however, confronted with the relevant portion of the FIR in which there was no mention of Ibrahim having removed her shalwar. Under this circumstance it is difficult to hold that the appellants intended to commit Zina with the child. In several cases of this nature we have held that the offender at the most may be said to have outraged modesty of the female, which is an offence punishable under section 354 PPC 1 . 7. Section 354 P.P.C. may be re-produced hereunder-"Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both". 8. The expression "outrage modesty" as contained in Section 354 PPC has not been defined anywhere. The act of violence or mischief to the indignation or annoyance f a woman would constitute the offence mentioned in Section 354 PPC. The actual intention of committing rape is not contemplated by Section 354 PPC. There is a thin line between an "assault" under Section 354 and an "attempt" as mentioned in Section 18 of the Ordinance. It is always a question of fact to be determined on the material on ecord keeping in view the attending circumstances of a particular case. In Corpus Juris Sccundum, Vol.22, the definition and distinction of "attempt" have been escribed in Section 73 and 75 in the following words:- "S.73.- An attempt to commit a crime may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime." "S.75.- An attempt to commit a crime consists of an intent to commit it, performance of some act toward its commission, and failure to consummate its commission." 9. In "attempt" the accused commits some overt act towards achieving his object but cannot succeed due to interruption by some external facts 'and cricumstances which are not connected with the object of the accused. He fails to attain the object through some independent circumstance. An accused who has made certain movements in execution of completing his design but failed to consummate the substantive offence due to the inervention of certain facts the attempt is complete. If the attempt had succeeded the natural result would be that the offence charged would have been committed. 10. Learned counsel for the respondents has referred to Mst.Saiqa v. The State (1988 P. Cr. LJ. 2364) wherein certain observation has been made while granting bail to the accused. Such observation is confined to that case and it cannot be extended to any other case. 11. In Muhammad Khan v. Tha State (1984 SCMR 893), the intention of the accused was frustrated by arrival of prosecution witnesses on spot. The conviction under Section 18 was maintained. 12. In Mureed Ahmad v. The State (1985 SCMR 997), it was observed that "a part of evey attempt at rape may include preparation and/or molestation, but it does not mean that it was not attempt. 13. In Shaukat v. The State (PLD 1982 FSC 179), according to the majority judgment, "attempt" means an intentional act with a view to attain a certain end but fails to consummate its commission because of the circumstances beyond the control of the offender. The words "any act" used in Section 511, PP.C. and Section 18 of the offence of Zina, Hadood Ordinance, exclude the notion that the final act short of actual commission is alone punishable but this expression will include any one of those cts whether first or the last forming part of series of act constituting attempt, if done with the necessary intention towards the commission of that offence". 14. In Abdul Majid v. The State (1973 SCMR 108), "ingredients necessary in an attempt to commit crime have been described as follows: (i) The intent to commit the crime, (if) performance of some act towards the commission of the crime, and (Hi) Failure to consummate its commission on account of the circumstances eyond the control of the offender." 15. n assault with the intention of committing rape is not contemplated by S. 354 PPC. An accused who has devised certain acts towards completing his design but cannot succeed due to the arrival of the prosecution witness, will be guilty under S. 18 of the Ordinance. In the present case, the facts established on record are that the girl was apprehended by the two respondents who caught hold of her by arms. She got herself released but the accused did not stop there. They dragged her to the sand dunes at a distance of about forty karams. One of the accused caught hold of the prosecutrix and the second removed her shalwar. PW. Bilal has stated that she was lying on the ground when he came to the spot after her alarm. Her shalwar had been removed by the respondents. The two Courts have accepted the prosecution version. But for the timely arrival of the witnesses, the accused persons would have succeeded in their object. The modesty of the girl had been outraged on the first act of the respondents when one of them caught hold of her by arms. The subsequent acts of the accused were in furtherance of their common object to commit rape. These acts of the accused could not minimise the gravity of the offence. The additional circumstance is that in the struggle to save her from the dutches of the respondents, her shirt was also torn. These series of acts would constitute an offence under Section 18 of the Ordinance. They had made attempts to commit rape on the person ofMst. Sultan Bibi. By no standard it can be said that all these acts only amounted to outrage the modesty of the girl. The case squarely falls under Section 18 of the Ordinance therefore the order of the Federal Shariat Court is not sustainable in law. We allow this appeal and convict the respondents 1 and 2 under Section 18 of the Ordinance. As regards, die sentence, the punishment provided under Section 10(3) shall not be less than four years nor more than 25 years and if the punishment is one of imprisonment, the accused shall also be liable to punishment of whipping numbering 30 stripes. The punishment under Section 18 extends to one hah 7 of the longest term provided for that offence, or with whipping, not exceeding thirty stripes, or with such fine as is provided for the offence, or with any two of, or all, the punishments. The three punishments are provided in Section 18 and such punishments may be awarded to an accused person under this section. No fine is provided in Section 10(3). We have now to consider as to what would be the appropriate sentence in the present case. The sentence of 18 months has been awarded under Section 354 PPC. We might have considered the enhancement of the sentence under S. 18 but apart from the fact that the fine has also been imposed against the respondents, they have already undergone the sentence imposed upon them. The date of the incident is 13-6-1984 and the Federal Shariat Court disposed of the appeal on 5-11-1986 and as per judgment of the Federal Shariat Court, the respondents had undergone their entire sentence and they must have been released in the year 1988. After the lapse of about 2 years, we do not consider it proper to enhance the sentence. Therefore, while convicting the respondents under Section 18, we maintain the sentence already imposed upon them. 16. The appeal is accordingly disposed of. (MBC) (Approved for reporting) Conviction altered.

PLJ 1991 SC 485 [Appellate Jurisdiction] PLJ 1991 SC 485 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and muhammad afzal lone, J ABDUL HAMID SHAH and another-Appellants versus MUHAMMAD YAR and others-Respondents Civil Appeal No.1160 of 1990, partly accepted on 25.5.1991 [On appeal from judgment dated 6.11.1989, of Lahore High Court, Multan Bench, passed in Civil Revision No.l22/D of 1987.] (i) Easement Act, 1882 (V of 1882- —S.13-Easement--Right of--Claim of~A right of easement accrues in respect of property owned by someone else-Plea of right of easement would negate respondents' laim hat compound of market vested in them—Approximately 12 feet space inclusive of platform is available in front of each shop—For beneficial enjoyment of respondents' hops, use of 12 feet wide space comprising platform and passage is enough-Held: Appeal is accepted to extent that respondents' right of easement is confined only to latform and passage ranging between 10 to 12 feet. [Pp.488&489]B,C&D (ii) Necessary Party- —- Persons party to proceedings in Courts below-Erroneously not arrayed in petition for leave to appeal-Impleadment of~Prayer for—Six persons who were party to roceedings before courts below, errbneously could not be arrayed as respondents in petition for leave to appeal-Held: Their presence before Court is essential for proper djudication of controversy-Application allowed. [P.487JA Mr. Muhammad Rafiq Khan Chohan, Advocate, Supreme Court, instructed by Sh.Masud Akhtar, AOR (absent) for Appellants. Mr. Munir Ahmad Peracha, Advocate, Supreme Court, instructed by Ch. Akhtar AH, AOR for Respondents 1 to 3 and 5 to 14. Mian Zafar Yasin, Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for Respondent No.4. Date of hearing: 25.5.1991. judgment Muhammad Afzal Lone, J.-The facts are that a market by the name of Faridia Market, Chowk Qutab, Pakpattan, consisting of 13 shops constructed in pursuance of a plan sanctioned by the Municipal Committee, in semi-circular form, 'U' shape in appearance, originally belonged to Diwan Ghulam Qulabuddin, who was party to this litigation before the Courts below. He sold away these shops to the respondents and others; each one of them is vendee of one shop. In front of these shops is a raised platform 4 to 5 feet in width, which had been constructed by the original owner of the property, presumably at the time of construction of the market; across which lies an open space wherein he built two shops, facing the entrance of the market. This construction is also covered by a sanctioned plan. Claiming that the construction aforesaid was an infringement of the respondents' right to enjoy and use the open space described by them as a compound of the market, they filed a suit for declaration that the said compound was a part of their shops. Grant of mandatory injunction compelling Diwan Ghulam Qutabuddin or for that matter the appellants to remove malba of the said shops was also prayed for. Diwan Ghulam Qutabuddin contested the suit, as the appellants, who are vendees of the two shops from him, appeared on the scene at a later stage. 2. The trial Court in the first instance framed certain preliminary issues which arose out of the pleadings of the parties, but these were answered in favour of the respondents. On merits it was found that the respondents' version stood amply supported by the material on the record from which it was established that open space formed part of the shops. Accordingly, the suit was decreed on 5-3-1986. The appellants, who by then had stepped into the shoes of the Original owner, preferred an appeal against the judgment and decree of the trial Court, and the learned Additional District Judge who heard it, concurred with the findings recorded by the learned Civil Judge on all the issues and held that the compound in dispute was an integral part of Faridia Market, which was being used by the respondents and other shop keepers owning shops in the market without any let or hinderance for the last about 40 years and thus the compound could not be separated fom the market. In view of this finding, the appeal was dismissed vide judgment and decree dated 14-2-1987. 3. The appellants challenged the dismissal of their first appeal through a revision before the High Court. The learned single Judge observed that though in the plaint the respondents claimed ownership of the compound which they failed to prove, yet all the shop-keepers had also asserted its user and succeeded in establishing the same by oral and documentary evidence, which amply reflected that the compound exists as appurtenant to the shops and was required for the use thereof as a matter of necessity. hus, for the first time, the High Court returned a finding treating the compound as an easement of necessity for the shops. 4. The appellants have moved an application that six persons, particularized therein, nemely, Muhammad Sharif and others, who were party to the proceedings before the Courts below, erroneously could not be arrayed as respondents in the petition for leave to appeal. It has been thus prayed that their names may be brought on the record. Though this application has half .heartedly been opposed by the learned Counsel for the respondents, but we find that their presence before the Court is essential for proper adjudication of the controversy before us, particularly when they themselves are desirous to be impleaded as party and are also represented by a learned Counsel. This application is accordingly allowed. 5. In support of this appeal, the learned Counsel for the appellants has reiterated the stand taken by them before the learned lower Courts. In the first place it has been urged that the platform in front of each shop is part thereof and likewise the compound is an integral part of the Faridia Market and thus belongs to the respondents and other owners of the shops. However, on perusal of the title deeds of the respondents, we have hardly found any substance in their claim, both with regard to the platform as well as the compound, for, the ownership rights therein were never passed on to them by the vendee. In this respect the finding of the trial Court and the 1st Appellate Court, attributing the ownership of die compound to the respondents, is the result of sheet misreading of the sale deeds in their favour. Indeed, the sale deeds do not confer any right of ownership either in the platform or the compound hi the respondents. Faced with this situation, the learned Counsel for the respondents raised the plea of easment of necessity and submitted that the entire compound ever since the establishment of the market was all along used by them and their customers for approach to the shops and other purposes connected with then business. His contention was that the compound was absolutely necessary for use of the shops and running of business therein by the respondents. B 6. At the leave granting stage, it was pointed out on behalf of the appellants that in addition to the platform for use of the shop owners, a 12 feet wide passage had been allowed for the purposes of approach to the shops in question. Leave was granted to examine the issue, whether in the circumstances of the case any right of easement existed in favour of the respondents. Easement is a right possessed by an owner of property, or its beneficial enjoyment, appurtenant to a property owned by another person. A right of easement thus accrues in respect of the property owned by someone else. The plea of right of easement would thus negate the respondents' claim that the compound of the market vested in them. The position of the shops, the platform and the compound has been delineated in the site plan Exb. D-6, which is a copy of the Municipal record. This plan dearly indicates the existence of a 5 feet platform in front of the shops which runs alongwith the building line. We are : informed that some of the shop-keepers have amalgamated in their shops, the portion of the platform in front thereof. In between this platform and the construction in dispute located in the compound, lies a passage in semi circular shape parallel to the platform. According to the measurements recorded hi Exh. D-6 the width of the passage is 7 feet and that of the platform 5 feet. Thus, approximately, 12 feet space inclusive of platform is available in front of each shop. It may be observed that in leave granting order the description of the platform as being exclusive of 12 feet wide passage is not correct. In fact, both the platform and the passage in width jointly measured 12 feet. The right claimed by the respondents is the easement of necessity, envisaged by section 13 of the Easement Act 1882. For sustenance of such a claim, it must be shown that without enjoyment of such right, the property for the C beneficial user whereof, the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment of the said property would be rendered inconvenient. With this test in view, it cannot be said that for beneficial enjoyment of the respondents' shops, the use of the entire compound is absolutely necessary, 12 feet wide space comprising platform and the passage is enough to serve the requirements of the respondents. Learned Counsel for the respondents has, however, contended that the width of the platform and the passage at some places is 10 feet only. Even if it is so, due to encroachment by some of the shop-keepers, we do not think that small fall in width of the space presently available to the respondents, would militate against the beneficial enjoyment of the shops by them. It may be brought on the record that the learned Counsel for the appellants un-equivocally conceded the respondents' and other shop-keepers' right of easement of necessity to the extent of the platform and the passage aforesaid. For the foregoing reasons, this appeal is accepted to the extent that the respondents' right of easement is confined only to the platform and the passage, in all having width ranging between 10 to 12 feet. The judgment and decree passed by the High Court are altered accordingly, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1991 SC 489 PLJ 1991 SC 489 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL QADEER CHAUDHRY, J ABDUL HAMEED efc.-Appellants versus SETTLEMENT COMMISSIONER (L) and others-Respondents. Crvfl Appeals Nos.420 to 422 of 1988, partly accepted on 13.4.1991 [On appeal from judgment dated 13.5.1985, of Lahore High Court, in W.P. Nos.485-R to 487-R of 1967.] Settlement and Rehabilitation Matters- —Evacuee land-Allotment of-Challenge to-Sufficient material has not been brought on record to show as to how respondents' units came to be satisfied in estate in question, herefore, plea of appellants that they were sitting allottees in Chak, cannot be adequately adjudicated upon-Held: Interest of justice would be satisfied if, instead of remanding ase, land is equally distributed among parties~l/4th of land given to appellants while remaining 3/4th given to respondents' side, l/4th to each party. [Pp.491&492]A,B,C&D

KJi. Muhammad Farooq, Advocate, Supreme Court, and Slnayat Hussain Shah, AOR, (both absent) for Appellants (in all appeals). Ch. Ghulam Dastgir, AOR for Respondent No.4 (in CA. 420 of 1988). Nemo for other Respondents (in CA. 420 of 1988). Hafiz S-A.Rahman, Advocate, Supreme Court, and Mr. Ejaz M.Khan, AOR for Respondents 4 to 10 (in CA. Nos.421 and 422 of 1988). Nemo for Respondents 1 to 3 (in CA. Nos, 421 and 422 of 1988). Date of hearing: 13.4.1991. judgment Muhammad Afzal Zullah, CJ.-In these appeals, leave to appeal was grantdd on noticing the facts and points involved therein as under: The appellants are the claimant displaced persons and on migration to Pakistan were settled in Chak No. 151/G.B. Tehsil (now district) Toba Tek Singh, District Lyallpur. Their claim (duly verified) was transferred to Toba Tek Singh and in partial satisfaction of their claim allotments were made to them in the said Chak on 27-4-1954 and 3-6-1955 but about 545 units of the appellants' claim still remained unsatisfied and were pending in the said Chak. In District Lyallpur (now Faisalabad) certain State land had been sold to ' evacuees prior to Independence. It was not given effect to in the revenue record, as a result of which the land continued to be shown as State land. By a policy decision of the Chief Settlement Commissioner vide memo No. 2198-63/2597/RL dated 15-5-1963 the land were (was) declared to be evacuee property since 1-3-1947 as the sale of the said land in favour of the evacuee had been completed on payment of full price. The Deputy Settlement Commissioner (Lands), Faisalabad, was, therefore, directed to utilize the said land for allotment to displaced persons under the Rehabilitation Settlement Scheme. The appellants whose claim had been transferred to Chak No. 151/G.B. and who were sitting allottees in the said Chak became entitled to the transfer of the said land. However, the respondents made applications about the land in dispute and claiming status of informers asked for the transfer of the lands available in the above Chak.' This was accordingly done and the Deputy Settlement Commissioner (Lands), Faisalabad, passed orders in favour of the respondents to the effect that the land comprised hi square No.l, Killa Nos. 11, 12, 19, 20, 22 and 23 in Chak No. 151/G.B., being evacuee property should be taken away from the previous allottees and transferred to the respondents and a robkar was accordingly sent to the Chairman, Allotment Committee for the purpose of implementation of the orders. The appellants' appeal before the Additional Settlement Commissioner, Faisalabad , and their revision before the Settlement Commissioner, Sargodfia Division, were dismissed on 17-6-1964 and 19-1-1967. Their Writ Petitions too met the same fate on 13-5-1985. We have heard the learned counsel for the appellants and have gone through the orders of the relevant authorities. The learned counsel for the appellants has " vehemently submitted that the status of the disputed land was determined through a policy decision by the Chief Settlement Commissioner on 15-5-1963, therefore, the respondents could not be termed as informers and claim any superior right on that score for the reason that it was not on the basis of their applications or complaints that any alleged evacuee land was unearthed. Further, fliat no fraudulent allotment was brought to the notice of the Department. The appellants are claimants and are sitting allottees over the land. Their claim for allotment could not, therefore, be legally ignored. The main point argued by the learned counsel is that in the facts and circumstances of this case the appellants having made application for allotment of the land in question which had already been discovered as evacuee property, the respondents' side could not have been allowed the benefit of being Mukhbars. According to him the property was not dug out as a result of any mukhbari report or application. On the other hand it appears that while the appellants' side having got adjusted about 3/4th of their P.I. Units wanted only remaining l/4th to be adjusted. There is nothing on record to show that the major part of the respondents' units had similarly been adjusted and the land hi dispute has been given to them for satisfying their remaining insignificant or proportionately lesser number of P,I. Units. Sufficient material has not been brought on record to show as to fcow the respondents' units came to be satisfied in the estate in question. The plea of the appellants that they were prior sitting allottees in the Chak (as distinguished from allottees of the land in dispute) cannot adequately be adjudicated upon in absence of the circumstances in which the respondents' units were brought to this estate. Regarding the question of he respondents being Mukhbars their learned counsel also took up an alternative plea that in case it becomes necessary, they could have also been treated as ordinary pplicants for allotment of available land in the estate in question.After hearing both sides at length and keeping in view the paucity of material placed on record by the ppellants we consider it fit to offer to the respondents as well as the appellants' side to distrubute the land in question in equal shares; this being a better course, at this ate stage of land settlement; instead of imposing a decision on one or the other party who all admittedly are claimants. Learned counsel for the respondents accepted he proposal but the learned counsel for the appellants remained hesitant. In our view, the interest of justice would be satisfied if (instead of remanding the case for the sake of the appellants in the above noted circumstances, when they have themselves failed to place on record the necessary material) we finally decide the matter by equal distribution of the land amongst the concerned parties in this case. Both the learned counsel agreed that there are three on the respondents' side and one on the appellants' side.We, accordingly, while modifying the impugned judgment and all orders of the authorities concerned in this behalf direct that l/4th of the land would go to the appellants and the remaining 3/4th would be distributed l/4th each amongst the parties on the respondents' side. Thus the appeals are partly allowed. There shall be no order as to costs. (MBC) Orders accordingly. (Approved for reporting)

PLJ 1991 SC 492 PLJ 1991 SC 492 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND S. USMAN ALI SHAH, J MUHAMMAD SHARIF and others-Appellants versus THE STATE-Respondent Criminal Appeals No. 136 and 137 of 1986, dismissed on 8-1-1991 (approved for reporting on 12-5-1991) [On appeal from judgment of Lahore High Court, dated 8-4-1985, in Crl. Appeal No. 360 of 1983]. Pakistan Penal Code, 1860 (XLV of I860)- —S. 302/34--Murder~Offence of~Conviction for-Challenge to-Ocular evidence is furnished by two police officials who are not only natural witnesses but are also totally disinterested persons having no relationship with deceased lady nor having any animosity towards accused -Medical evidence and recoveries of various incriminating articles establish case against appellants- Held: There is no reason to disagree with High Court in upholding conviction of appellants earlier recorded by trial court-Appeals dismissed. [Pp.496&499]A&B Mr. Tariq Azam Chaudhry, Advocate, Supreme Court, Malik M. Khan Awan, AOR (absent) and C/i. Mehdi Klian Mehtab, AOR (absent) for appellants (in both appeals). Rao M. YousafKlian, AOR for State (in both appeals). Date of hearing 8-1-1991. judgment S. Usman Ali Shah, J.~Both the above noted criminal appeals by leave of this Court are directed against the judgment of the Lahore High Court dated 8-4-1985passed in Criminal Appeal No. 360/1983, whereby appeal of the appellants against their conviction and sentences was dismissed. Muhammad Hayat son of Nawab, Muhammad Hanif son of Ghulam Muhammad, Muhammad Siddique son of Ali Muhammad, Rehmat Ali son of Ghulam Muhammad, Mansha son of Taj Muhammad, Muhammad Rafique son of Haji Din Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Yaqoob son of Barkat, Abdul Aziz son of Haji Din Muhammad, Bashir Ahmad son of Amiruddin and Bashir Ahamd son of Haji Din Muhammad were tried by the learned Addl. Sessions Judge, Lahore on the charges under sections 302/148/332 read with Section 149 PPC vide F.I.R. No. 190 dated 5-7-1982, registered against them in Police Station Manga Mandi, Lahore. The learned trial Judge vide his judgment dated 15-6-1983 acquitted Muhammad Rafique son of Haji Din Muhammad, Abdul Aziz son of Haji Din Muhammad, Muhammad Hayat son of Nawab and Rehmat Ah' son of Ghulam Muhammad by extending them the benefit of doubt. By the same judgment, however, he convicted Bashir Ahmad son of Amiruddin, Bashir Ahmad son of Din Muhammad, Mansha son of Taj Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Yaqoob son of Barkat Ali, Muhammad Siddique son of Ali Muhammad and Muhammad Hanif son of Ghulam Muhammad and sentenced them under Section 148 PPC to two years R.I. each with a fine of Rs. 500/- each in default whereof to undergo six months R.I. each. All these seven accused were further sentenced to imprisonment for life each under Section 302 read with Section 149 PPC and were also fined each to Rs. 2000/- or to undergo one year further R.I. each in default of payment of fine. They were also sentenced to two years R.I. and a fine of Rs. 500/- each under Section 332 read with section 149 PPC. In default of payment of fine they were to suffer further R.I. for six months each. All these sentences were, however, directed to run concurrently. All the convicted accused submitted a joint appeal in the Lahore High Court and the learned single Judge of the High Court vide his judgment dated 24-3-1985 by accepting the appeal of Bashir Ahmad son of Amiruddin, Mansha son of Taj and Muhammad Yaqoob son of Barkat Ali, set aside their convictions and sentences and directed their immediate release if not required in any other case. The appeal of Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif son of Ali Muhammad, Muhammad Siddique son of Ali Muhammad and Muhammad Hanif son of Ghulam Muhammad was, however, dismissed. Their conviction under Section 148 PPC was set aside and instead they were convicted under Sections 302/34 PPC and 332/34 PPC. The sentences awarded to them by the trial Judge in these sections of law were, however, maintained. Dissatisfied with the conclusion of the learned Judge of the Lahore High Court, Muhammad Sharif, Muhammad Hanif and Muhammad Ali preferred in this Court joint appeal through the Superintendent Central Jail, Kot Lakhpat, Lahore and Bashir Ahmad also filed a similar appeal separately. Facts necessary for the disposal of the appeals in brief are that Mst. Sakina (deceased) was the wife of Muhammad Yaqoob acquitted accused. She deserted the house of her husband about two days prior to the occurrence. Muhammad Yaqoob her husband lodged a report in Police Station Manga Mandi regarding her abduction by Muhammad Shafi and another her co-villagers. This report was registered in the F.I.R. No. 93 dated 3-7-82 at the said police station. Subsequently, the accused party came to know that the abductee alongwith her minor daughter were lodged in the Dar-ul-Aman in Lahore and that her statement was to be recorded in the Court of the Illaqa Magistrate which is situated in the Town Hall, Lahore. On 5-7-1982 accordingly she under the escort of Raja Gul Akhtar, S.I. (PW-9) and Muhammad Ilyas constable (PW-2) was brought in the Court premises for recording her statement. It has been alleged that when she reached the Court compound of the Magistrate in the company of the said two police officials quite a few number of her relatives, men and women, cluding almost all the accused approached her and asked her to depose fore the Magistrate according to their wishes. From the evidence recorded in the case, according to some witnesses she agreed to give a statement in the a suggested by the said relations while some have deposed that she refused to accede to their wishes by saying that she would make a statement in the way sheliked. Her statement in any case was recorded by the Magistrate at 9,30 a.m. and ince there was a huge gathering of her relatives, the two police constables did not deem proper to take the risk of taking the lady in presence of the said gathering and awaited their disbursement. After the said gathering disbursed the two police officials made the deceased lady sit in the rear seat of a hired Tonga' of Abdus Sattar (PW-7) and started proceeding towards Dar-ul-Aman. They reached near 'Chouburji' at about 11.30 a.m. and when the Tonga took a turn on the road leading to Dar-ul-Aman, all of a sudden the eleven accused stopped the Tonga by taking Gul Akhtar, S.I. (PW-9) and Muhammad Ilyas (PW-2) by surprise. Bashir son of Din Muhammad, Sharif and Muhammad Siddique accused dragged Mst. Sakina down to the ground while she was sitting in the rear seat. In order to save herself from the clutches of these assailants she rail but was dropped face downwards on the heap of garbage whereafter Bashir son of Din Muhammad and Muhammad Sharif accused, who were armed with Carbines, fired a shot each at her back followed by Muhammad Siddique accused who gave her dagger blows on --x^ her back with which he was armed. Gul Akhtar S.I. (PW-9) in an attempt to'save the deceased lady from the clutches of the accused also received a 'Danda' blow on his left lower leg through hands of Hanif accused. Bashir son of Amiruddin accused also allegedly fired a shot in the direction of the police officials with a view to scarce them as a result whereof Muhammad Ilyas F.C. got injured on his hand through the pellets. The other accused were all the time raising 'lalkaras' out of whom Rafique, Hayat and Aziz were empty handed and Yaqoob was armed with a dagger and Mansha accused armed with a Carbine was firing in the air. As a result of these injuries caused to the deceased lady she died on the spot arid all the 11 accused left the scene of the occurrence. Gul Akhtar, S.I. thereafter sent a complaint Ex. P.B. to police station, Mozang whereupon a case was registered by ^. Muhammad Aslam, ASI at 12.20 p.m. through F.I.R. Ex.PB/1 under Sections ~~ 302/307/332/353/148 P.P.C. read with Section The accused at the trial claimed innocence and pleaded not guilty to the charges. With a view to establish its case the prosecution examined Muhammad Ilyas, F.C. as PW-2, Gul Akhtar, S.I. as PW-9, Abdus Sattar PW-7 as eye­ witnesses of the occurrence, Muhammad Anwar PW-8 as witness for the motive and Agha Ah' Nawaz PW-10 and Muhammad Iftikhar Hussain PW-14 in support of the various recoveries from the various accused. Doctor Muhammad Anees PW-3 and Doctor Muhammad Farooq PW-4 proved the medical reports in respect of the deceased lady and Muhammad Ilyas F.C. and Muhammad Gul Akhtar S.I. We have thoroughly scrutinized the conclusions arrived at by the trial Court as well as by the High Court. It is a well settled and consistent view of this Court that as an ultimate Court we must give due weight and consideration to the conclusions of the Courts below, when we feel satisfied that they are reasonable and are not the outcome of any disregard of any accepted principle regarding the appreciation of evidence. In this case we noticed that the very slightest doubt in favour of the person charged in the case has been extended by the learned High Court and although as we gather from the prosecution evidence, the way and the manner in which the deceased lady in the company of the police officials was chased and was done to death in a cruel manner, whether some of the accused were un-armed or were not armed with deadly weapons, the question of their forming unlawful assembly and in the common object of that assembly having committed the murder, is quite debatable both ways but in the interest of safer dispensation of justice and to exclude even the slightest chance of punishing any innocent individual the learned Judge in the High Court has correctly and for sufficient reasons come to a definite conclusion in holding Bashir Ahmad son of Haji Din Muhammad, Muhammad Sharif, Muhammad Siddique and Muhammad Hanif appellants for murdering the deceased lady in furtherance of their common intention. Muhammad Gul Akhtar, S.I. and Muhammad Ilyas F.C. can in no words be doubted as interested witnesses nor can their presence on the spot and witnessing the occurrence be doubted in any manner. Both these police officials confirmed the presence of a huge gathering in the premises of the Court of the Magistrate where the statement of the deceased lady was being recorded and, therefore, even if we entirely believe their statements regarding the murder of the deceased by all the accused in the circumstances of the case it has to be seen whether all the persons who even did not participate in any manner to facilitate the murder of the deceased lady can be saddled to have the common object with the real culprits in committing the murder of the deceased, because it is totally unbelievable that all those who had gathered at the time when the statement of the deceased lady was recorded had so gathered with the common object of doing away with the life of the said lady. In these circumstances the learned Judge in the High Court appears to have been rightly influenced by these considerations and he rightly upheld the convictions of those accused who physically and practically, participated in the facilitation and in the murder of the deceased lady. As we have observed earlier this Court is not supposed to interfere with the findings of the lower Courts, unless there is a serious defect hi the process by which the impugned finding has been arrived at as was held by this Court in a case reported as Noora and another v. The State (P.L.D. 1973 S.C. 469) the relevant part whereof reads as under:- "As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their finding where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below, but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is considered tenable, then k should be open to the Court to come to its own independent finding upon a reexamination of the evidence untrammelled by the opinion of the Courts below." In the instant case besides the ocular evidence furnished by Gul Akhtar S J. and Muhammad Ilyas F.C. who in the given circumstances are not only natural witnesses but are also totally disinterested persons having no relationship or connection with the deceased lady nor having any animosity towards the accused; the medical evidence and the recoveries of various incriminating articles at the instance and pointation of the accused fully establish the case against them and we see no reason to disagree with the learned Judge in the High Court in upholding their convictions earlier recorded by the trial Court. We are, however, constrained to remark that despite this Court's repeated observations regarding imposition of the normal penalty of death to those convicted for murders and to discredit the impression of marked tendency of inhibition or hesitation on the part of the trial Courts in awarding the said penalty, in this case both the trial Court and the learned Appellate Court failed to measure the actions of the accused/appellants in proper scales and failed to apply their minds reasonably in inflicting the normal penalty provided for such offences for obviously no reasons. The prosecution evidence in this case has sufficiently established that the accused uarty committed the murder of the deceased lady in a very cruel and gruesome manner. She was being taken in a 'Tonga' by police officials to the Darul Aman where she had been lodged. She had a minor daughter in her lap. She was waylaid by the accused party, dragged from the Tonga' and thereafter while she was in the process of fleeing away to protect herself from the clutches of a huge number of the accused persons, she was thrown face downwards on the heap of garbage and in a very callous manner she was fired at and was further given dagger blows. The accused in their conduct were all the way out to extinct her life and gave her so many blows with deadly for when we return to Him, we shall be stripped of all pretence, even such self deception as may satisfy us in this life. In addition to our above passing reference to the over all framework of the Divine Law, our conclusion would also find support from the relevant specific subject of injunctions of Islam. A little description thereof would be of some advantage here. Cases involving offences of human body are liable to the penalty of Qisas or Diyat and in alternative to Tazir. In the matter of decision of Tazir, penalty in murder cases, there is further consensus on the award of death penalty as Tazir in appropriate cases. Similar are the agreed conclusions barring certain microscopic differences on the award of Qisas or death penalty as Tazir in matters of collective participation of a murder of a single person. A group of assailants is thus so liable either individually or collectively to the death penalty as the role of a member of the "Group" would so warrant in the light of the available evidence. Again in seeking inspiration and guidance from such shariah provisions in the case in hand, we are not unmindful of the fact that the trial of the case was held under the then existing penal substantive and relevant procedural provisions. But here we would like to invite attention to the observation of this Court in the case "State v. Muhammad Bashir" PLD 1982 S.C. 139, where such a process of inspiration and guidance in murder cases from the relevant Quran and Sunnah law was approved. These are therefore, further circumstances which support our conclusion that the Courts below should not have hesitated in awarding the normal penalty of death. One may argue that since the deceased had deserted the house of her husband and was suspected of having eloped with Muhammad Shafi and another, her covillager, in such a situation family honour being involved, at the crucial time the accused had lost control and became violent thereby deprived of senses to measure their actions but this cannot be the case with all the accused in their common intention; particularly when the deceased at that time was not in the company of any of the alleged abductors nor has it been established through evidence that the deceased lady had eloped with the aforesaid Muhammad Shafi or someone else. More so as we gather from the evidence on record that the accused wanted the deceased to depose against said Muhammad Shafi while giving her statement before the Magistrate and it was on her refusal to follow their line of action that the accused party proceeded ahead and by waylaying the Tonga' they committed the murder of a helpless and weak sex in a very aggressive and shameful manner as if they were to conquer an enemy bunker. Even otherwise this Court has never considered taking of private revenge a mitigating circumstance in the matter of awarding lesser penalty where once this Court comes to a firm view that the murder is committed in a cold-blood and cruel manner. Reference with advantage may be made to Mokha v. Zulfiqar and 9 others (P.L.D. 1978 S.C. 10) and^« Khan v. The State (1980 S.C.M.R. 474). We therefore, consider that in the matter of awarding sentences the two Courts below have not acted in accordance with the well established and prescribed practice a required by the law. However, since there is no petition for the enhancement of the sentences before us we would not touch this aspect of the matter any more. For the foregoing reasons there is no substance in both the criminal appeals ib which are hereby dismissed. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1991 SC 499 [Appellate Jurisdiction] PLJ 1991 SC 499 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, ACJ, RUSTAM S.SlDHWA AND MUHAMMAD afzallone.jj JAFFAR ABBAS and two others-Appellants versus AHMAD and another-Respondents Civil Appeal No.200 of 1980, dismissed on 31.7.1991 [On appeal from judgment dated 27.6.1975, of Lahore High Court, passed in FAO No.141 of 1972). (i) Civil Procedure Code, 1908 (V of 1908)-- —O.XXXII R.7~Minor-Offer by attorney and counsel of minor—Whether leave of court under Order XXXII Rule 7 of CPC was necessary-Question of- -Object of rder XXXII Rule 7 in imposing restrictions on next friend or guardian of a minor, to enter an agreement or compromise on behalf of minor without leave of court, is to rotect minor's rights in suit from being adversely affected by negligence or wrongful act of guardian--In this case, interest of minor and two adult defendants is identical, ne of whom is mother and other uncle and guardian-od-//fe/n of minor-Held: Leave of court was not necessary and minor was bound by agreement. [P.504JD&E (ii) Civil Procedure Code, 1908 (V of 1908)- —O.XXXII R.7 and with OJOOH R3 and Evidence Act, 1872, Section 20» Minor-Offer by attorney and counsel of minor-Whether leave of court under Order XXXII Rule 7 of CPC was necessary-Question of-Offer was'made by attorney and counsel of minor for getting suit decided on statement on special oath by an outsider-Contention that offer amounted to an agreement and it adversely affected interest of minor, therefore leave of court was necessary- Role of Iftikhar Hussain (outsider) was in nature of a referee-His statement was an evidentiary admission and a form of proof-Held: Agreement by attorney and counsel of minor is not an agreement or compromise of such a character that leave of court under Order XXXII Rule 7 of CPC is necessary. [Pp.502&503]A,B&C ILR 27 Cal. 229, AIR 1930 Cal. 463, AIR 1936 Lah. 234 and PLD 1966 (WP) Pesh. 131 rel. Syed Muhammad AH Zaidi, Advocate, Supreme Court, instructed bySJnayat Hussain, AOR (absent) for Appellants. Mr. Asghar Ali Chaudhry, Advocate, Supreme Court, instructed by Sh. MasoodAkhtar, AOR for Respondent No.l. Respondent No.2: Ex-parte. Date of hearing: 25.11.1990. judgment Muhammad Afzal Lone J.--The respondents were plaintiffs in a suit for possession brought by them against the three appellants amongst whom appellant No.2 was then a minor. The dispute between the parties related to land measuring 104 kanals, situate in village Bhawan, Tehsil Chiniot, District Jhang, which originally belonged to the appellants' predecessor-in-intersest, namely, Shakir Hussain, who appointed one Iqbal Hussain as his Attorney. The respondents' case is that the said attorney entered into an agreement to sell the land to respondent No.l for a consideration of Rs.18,500/-; that he received Rs. 12,000/- in advance and handed over the possession. Subsequently, the remaining sum of Rs.6, 500/- was also paid to him. However, at a later stage, it transpired that the authority conferred on him by Shakir Hussain did not include the power to sell the land. As Shakir Hussain owned the transaction, on the asking of the respondents, in order to transfer the land, he got a mutation entered in their favour; as half of the consideration was contributd by respondent No.2, therefore, her name was also included in the mutation, but before Shakir Hussain could make a statement before the Revenue Officer for attestation of the mutation, he expired. The deceased had two sons Jaffer Hussain, appellant No.l and Nisar Hussain. The latter died and was survived by a minor son Saghir Hussain and a widow Ms/.Niaz Zohra, who are appellants No.2 & 3 herein. As the appellants repudiated the agreement for sale, the respondents filed a suit for declaration, which subsequently was converted into one for possession. The minor was sued through his uncle Jaffer Hussain, and an application under Order XXXII, rule 3 CPC., (was) filed alongwith the plaint. The appellants-defendants contested the suit and the two adults appointed one Nusrat Hussain as then- Attorney to represent them before the trial Court. It appears that before the trial Court, Jaffer Hussain continued to act through his Attorney as guardian ad-litem for the minor, though no formal order was made by the Court on the application. The attorney filed a joint written statement on behalf of the defendants including the minor. The trial Court framed several issues arising out of the pleadings of the parties and fixed the case for evidence. On 15-2-1971, which was the date for evidence, the Counsel for the defendants made the following statement before the trial Court which was also signed by Nusrat Hussain: "Iftikhar Hussain son of Bashir Hussain who is present in court has been the Mukhtar of Shakir Hussain deceased. The defendants will pay to the plaintiffs, within the period to be fixed by the Court the amount which Iftikhar Hussain may swear on the Holy Quran to have been received on account of the property in dispute from the plaintiffs. On the payment of the said amount the suit should be dismissed but if the said amount is not paid within the period fixed, the suit should be decreed." This offer was accepted by the respondents as well as Iftikhar Hussain. The latter made an Oath on Holy Quran that he received Rs.18, 500/- from the respondents for the sale of the land in their favour. The trial Court fixed 30-5-1971 as the last date for payment of this amount by the appellants to the respondents. But, on 22-2-1971 they moved an application before the trial Court objecting to the decision of the suit on the basis of special oath on the two grounds; firstly Nusrat Hussain was not granted any authority to have the suit decided on the strength of special oath; secondly, the agreement regarding such a decision of the suit was violative of Order XXXII, rule 7 CPC, as appellant No.2 was a minor and leave of the Court for entering into the agreement was not obtained. 2. The learned trial Court found that the terms of the power-of-attorney were so exhaustive that the Attorney stood clothed with almost all the powers enjoyed by he principal. The offer of the defendants' Attorney to be bound by the oath of Iftikhar Hussain was considered a mode of evidence for disposal of the suit. onsequently, he objections were turned down, and as the amount of Rs.18,500/- was not paid to the respondents within the time fixed by the Court, the suit was decreed hi their avour. The defendants went in appeal, which was accepted by the learned District Judge. In his opinion, the agreement entered into between the parties that the suit ould be decided in a particular manner required sanction of the Court under Order XXXII, rule 7 CPC. Resultantly, the judgment and decree of the trial Court were set side and the suit was remanded to the trial Court for decision afresh. 3. The respondents then preferred second appeal in the High Court. The learned Single Judge disagreed with the judgment of the First Appellate Court and took the view that the agreement between the parties to abide with the oath of a third person was merely an agreement relating to evidence to be given in the suit; such a matter fell within the discretion of the next friend of the minor to be exercised by him in the course of conduct of the suit; it was, therefore, not necessary for him to have approached the Court for grant of permission. On perusal of the contents of the deed of power-of-attorney the High Court maintained that the agreement in question fell within the competence of the Attorney. In view of these findings by judgment dated 27-6-1975, under challenge before us, through leave to appeal, the High Court set aside the order of the First Appellate Court and restored the judgment and decree of the trial Court. 4. Leave to appeal was granted to examine whether in this case the due compliance of law on the subject had taken place, and the offer made by the Attorney and the Counsel of the minor for getting the suit decided on admission with regard to the receipt of money by an outsider to the proceedings, related only to the mode of admitting evidence on record or went to the substance of the case. 5. It will be seen that Order XXXII, rule 7, CPC, prohibits the next friend or guardian of a minor in a suit, from entering into an agreement or compromise, with regard to the suit without leave of the Court. In this behalf the position taken by the appellants is that the offer made by their Attorney and Counsel, agreeing to the disposal of the suit, on the basis of the special oath of Iftikhar Hussain, which was accepted by the opposite side, amounted to an agreement falling within the mischief of Order XXXII, rule 7, that this rule is imperative; the agreement adversely affected the interest of the minor, but the leave of the Court was not obtained. Thus according to the appellants the agreement so far as it related to the minor, was wholly illegal. The expression "agreement or compromise," is not defined in the Code, but these words appear in the preceding part of the Code in Order XXIII, rule 3. When same words are used in different parts of an enactment, unless there is variation in the context in which they occur, conveying a different intent, the presumption will be that they carry the same meaning. The "agreement or compromise'Visualised by Order XXIII, rule 3 is such, that it is not contingent upon happening of another event, and upon the terms thereof a decree can straightaway be passed by the Court. Obviously, agreement in question is not the type of agreement, covered by Order XXIII, rule 3. 6. In law, a reference to an outside party for information on the m tter in dispute is receivable as an admission under section 20 of the Evidence Act against the party roposing the reference. This section provides: "Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions." The question as to whether or not the sale price of the property in dispute had been paid was within the knowledge of Iftikhar Hussain. It was a controversial issue between the parties. The suit was fixed for evidence. Instead of procuring a decision of the Court rendered after recording evidence of both the sides, the appellants' Attorney and their Counsel through their statement chose to request the Court to make reference to Iftikhar Hussain requiring him to make a disclosure on oath regarding the payment of the sale price and further agreed to be bound by such disclosure. The role of Iftikhar Hussain was, therefore, in the nature of a referee. The fact that he had to make statement on oath and he did make such a statement admitting the existence of the fact as to the payment of the sale price, does not alter the character of his performance as referee. His statement was an evidentiary admission and a form of proof. The agreement by Nusrat Hussain and the Counsel for the defendants with the respondents for decision of the suit on the footing of the statement of the referee, which is merely a mode of evidence, is not an "agreement or compromise" of such a character that leave of the Court under Order XXXII, rule 7 is necessary. 7. Over 90 years ago, somewhat similar situation arose before Calcutta High Court in Sheo Nath Saran Vs. Sukh Lai Singh (ILR 27 Cal. 229) and it was observed- "The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on oath taken in a particular form under the Oaths Act, stands on a very different ground from an agreement or compromise contemplated by S. 462 Civil P.C., of 1882, and that in such a case, the minor is bound by the consent of his guardian although given without the leave of the Court, provided that there is no fraud or gross negligence on the part of the guardian." This judgment was followed in Mahmmad Mahmud Choudhry Vs. Behary Lai Saha and others (AIR 1930 Calcutta 463) wherein the consent given by a guardian ad litem of two minor defendants without leave of the Court, to be bound by deposition on oath given by a plaintiff was held binding on the minors. We may also reproduce here with approval the following observations of the Full Bench of the Punjab Chief Court in Malik Sohrab Vs. Anokh Rai (18 P.R. 1891) quoted in the impugned judgment: "The function of a next friend is to conduct the case of the minor in Court, and, presumably, he is competent to do all that is usually incidental to the conduct of a suit in Court, without resorting to the court at every step in the proceedings, though such a presumption may arise in respect to unusual proceedings. It is difficult to suppose that the leave of the court is to be sought before the next friend can enter into an agreement with a pleader to appear, plead and act, on behalf of the minor, or agree to an adjournment, or to admit particular facts without proof, under section 58 of the Evidence Act, or to admit the genuineness of documents, so as to dispense with formal proof. And there is certainly no ground for holding that the next friend must require the leave of the court as to the witness to be called, or the documents to be produced, as evidence for the minor. On the other hand, there are agreements in reference to suit, especially these which tend to withdraw the suit from decision by the court, to which the leave of the court may properly be regarded as requisite such are, an agreement to refer to arbitration, or an agreement contemplated by Section 375, Civil Procedure Code, whereby the suit is adjusted wholly or in part." On the rectitude of this judgment, in Nihala Vs. Bhagwana and another (AIR 1936 Lah. 234), willingness of next friend of a minor to relinquish minor's claim without leave of the Court, should the opposite side make an oath, was considered merely a method of proof adopted by the next friend which did not suffer from any illegality. This view was followed by Peshawar High Court in Niaz All Vs. Yasin and others (P.L.D. 1966 (W.P) Peshawar 137). We entirely agree with the view expressed in these judgments. 8. The object of Order XXXII, rule 7 CPC., in imposing restriction n the powers of next friend or guardian of a minor, to enter into an "agreement or compromise" on behalf of the minor, without leave of the Court recorded expressly, is to rotect the minor's rights in the suit from being adversely affected by negligence or wrongful act of the guardian. While allowing leave, the Court should bear in mind the nterest of the minor and see that the compromise is beneficial to him. In this case the interest of the minor and the two adult defendants is identical; one of whom is his other and the other uncle and guardian ad litem. There is absolutely no allegation that the guardian acted negligently or was in collusion with the opposite side. Upon the facts f the case and the law on the subject, we are of the view that the leave of the Court was not necessary and the minor was bound by the agreement In our opinion, the judgment of the High Court is correct. It is accordingly affirmed. This appeal is, therefore, dismissed, but the parties are left to bear their own costs, as seemingly there is no reported judgment of this Court on the point urged in this appeal. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 504 PLJ 1991 SC 504 Present: SHAFiuR rahman, ALi HussAiN qazilbash, abdul qadeer chaudhry, ajmal mian and muhammad afzal lone, JJ. z -Appellant versus FAIZ AHMAD and others—Respondents. Criminal Appeal No.15 of 1986, dismissed on 7.6.1991. [From judgment/order of Lahore High Court, dated 25.1.1986, passed in Crl. Revision No.18 of 1986.] (i) Criminal Procedure Code, 1898 (Vof 1898)- -—8.340(2) read with Constitution of Pakistan, 1973, Article 13--Accused-Statement on oath by-Whether statement of accused under Section 340(2) of Cr.P.C. is compulsory-Question of-Constitution provides that an accused shall not be compelled to make a statement on oath and this right is guaranteed to him by way of a Fundamental Right-Any law providing otherwise would be ultra vires-Weld: Consistency with paramount law demands that Section 340(2) of Cr.P.C. should be interpreted as only conferring a duty or power on Court to inform accused that he has a right under law to make a statement on oath, and it is his option with no risk attaching it to either make that statement or not to make that statement. [P.513]C&D (ii) Criminal Procedure Code, 1898 (V of 1898)- -—5.340(2) read with Section 343--Accused-Statement on oath by~WhetherM tatement of accused under Section 340(2) of Cr.P.C. is compulsory—Question of--If an ccused is mandated to make a statement on oath under Secjfion 340(2) or if he is told that if he does not make that statement, inference will be drawn against him, he will ome under a pressure which will violate requirements of Section 343 Cr.P.C.-Held: Interpretation of Section 340(2) Cr.P.C. has to be that it has no compulsive effect on ccused-Held further: All that Court can do is to ask him whether he will like to make a statement; on oath, and no adverse inference can be drawn if he does not opt |o make statement. [P.512JB (iii) Interpretation of Statutes- —Statutes-Interpretation of-Principles of--It is a recognised principle of. interpretation that if a provision of law is presenting some difficulty, it has to be so interpreted as to armonize with other provisions of Act of which it is a part-Second principle is that provisions of any particular Act are to be so interpreted as to harmonize and to remain onsistent with other laws having a elevance or nexus with law sought to be interpreted-Third principle is that all laws in field are to be so interpreted as to harmonize with aramount law to : which they must ordinarily conform and if they do not conform, they are struck down as ultra vires paramount law. [P.512JA Syed Abul Aasim Jaferi, AOR for Appellant. Sh.Zamir Hussain, Advocate, Supreme Court and ChAkhtar All, AOR for Respondents Nos. 1 to 4. Ch.Ijaz Ahmad, Deputy Attorney General on notice. Date of hearing: 9.1.1991. judgment Shafiur Rahman, J.--Leave to appeal was granted to examine the following questions of law of public importance arising in the appeal:- "Whether amended Section 340(2) of the Code of Criminal Procedure and Article 44 of the Qanun-e-Shahadat Order, 1984, have retrospective effect? Whether the conflict of authority as appearing from the case law cited is reconcilable? and Lastly, whether, as contended by the learned counsel for the petitioner, the laws relied upon by him have changed a basic principle of criminal jurisprudence namely, that the prosecution shall prove its case and the accused would not be burdened with the proof of his innocence in such a way that the accused would now be burdened with some responsibility to reach the truth regarding his guilt or innocence"? 2. The factual background giving rise to these law points is that on 10.6.1982, Mst. Pathani, the mother of the appellant was murdered. For this, the first four respondents (hereinafter referred to as the respondents) were tried. On conclusion of the prosecution evidence, these respondents made an application seeking exemption from making statement on oath as was then required by the amended sub-section (2) of Section 340 Cr.P.C., the amendment having been introduced on 21.2.1985 by Ordinance No.XII of 1985. In support of their application they relied on decision in State v. KJian Muhammad (NLR 1985 Criminal - Lahore 710). he trial Court disposed of this application by an Order ated 14.1.1986, the relevant portion of it is as herunder:- "I have gone through this authority and it supports the learned counsel for the accused, wherein it has been held that this change in the law is not merely procedural, but affects the substantive right of the accused and thus cannot act in retrospect. I would, therefore, not compel the accused to make statement on oath, but if they choose to do so, in their defence, I would not stop them either". 3. Aggrieved, the appellant filed a criminal revision in the High Court which did not succeed. The operative part of the High Court's order was as hereunder:- "In this case, the accused/respondents are alleged to have committed offence under Sections 302/34/109 PPC, on 10.1.1982, in respect of which the petitioner fileda private complaint on 22.10.1984. On the date when the offence took place and the private complaint was lodged, neither sub­ section (2) of Section 340 of the Code of CriJinal Procedure was amended nor was Qanun-e-Shahadat Order, 1984, enacted. On the date when the offence took place and the private complaint was lodged, the accused/respondents had acquired the right under the old sub-section (2) of Section 340 of the Code to either appear or not to appear in their own defence. This being a right vested in the accused/respondents by virtue of the unamended Section 340 of the Code, could not be taken away by the newly amended sub-section which was enacted as late as on 21.2.1985. This matter has been considered in KJian Muhammad's case 'NLR 1985 Cr.710' which I consider is the correct exposition of the law in the matter. In this view of the matter, there is no merit in this petition, which is dismissed in limine". Subsequent decisions of the .various High Courts show a wide divergence, at times contrariety in deciding the law points noticed in this appeal. This factor alone, and by itself justifies an authoritative pronouncement on the subject. 4. A brief historical view of the subject appears to be necessary for placing the issues raised in their correct perspective. 5. Section 3 of Act XV of 1852 (Evidence Act) recognized that an accused in a criminal case was not a competent or compellable witness to give evidence for or against himself. The provision was repealed by the Evidence Act, 1872 (Act I of 1872). In the meanwhile, Sections 203 and 204 of the Criminal Procedure Code enacted in 1861 provided that no oath shall be administered to the accused and that it shall be in the discretion of the Magistrate to examine him. Criminal Procedure Code of 1872 by its Section 250 made a general questioning of the ccused, after the witnesses for fhe prosecution had been examined, compulsory and Section 345 thereof provided that no oath or affirmation shall be administered to the cused person. 6. Section 5 of the Oaths Act enacted in 1873 (Act X of 1873) while enumerating persons by whom oaths or affirmations must be made, contains a reservation as hereunder:- "Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person 8. Section 7 of the Prevention of Corruption Act made accused a competent witness on his own application in respect of offences under that Act. 9. By Law Reforms Ordinance, 1972 (Ordinance XII of 1972) subsection (2) of Section 340 was substituted as hereunder:- "Any person accused of an offence before a criminal Court or against whom proceedings are instituted under this Code in any such Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial: Provided thathe shall not be called as a witness except on his own request; (a) his failure to give evidence shall not be made the subject o any comment by the prosecution or give rise to any presumption against him or any person charged ried together with him at the same trial, and (b) he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence wi charged or for which he is being tried, or is of bad character, unless- /) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or (//)he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or (iif) he has given evidence against any other person charged with or tried for the same offence". 10. Constitution of Pakistan, 1973 by its Article 13 provides as hereunder:- "13. Protection against double punishment and self incritnination.~No person— (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself. 11. In U.K. and America , this principle had the following historical background: - "5. In English law, this principle of protection against self-incrimination had a historical origin. It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal jurisdiction. This came to a head in the case of — 'John Lilburn 3 State Trials 1315(/1)', which brought about the abolition of the Star Chamber and the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This principle, in course of time, developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents. A change was introduced by the Criminal Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he applied for it. But so far as the oral testimony of witnesses and the production of documents are concerned, the protection against self-incrimination continued as before. (See Phipson on Evidence, 9th Edition, pp. 215 and 474). 6. These principles, as they were before the statutory change in 1898, were carried into the American legal system and became part of its common law. (See Wigmore on Evidence, Vol.VIII pp.301 to 303). This was later on incorporated into their Constitution by virtue of the Fifth Amendment thereof. The language of the Fifth Amendment was considered by the American Courts as being wide enough to cover all the aspects of the principle of protection against self-incrimination as administered under the English common law including oral testimony of witnesses and production of documents. (See Wills on Constitutional Law, pp. 518 and 519)". [See M.P.Shanna and others v, Satish Chandra, District Magistrate, Delhi and others (AIR 1954 S.C. 300 at 302 and 303)]. 12. In our country, as a part of the process of Islamization of laws, the Council of Islamic Ideology prepared a draft Ordinance on Islamic Law of Evidence in 1982. Its Sections 61 to 63 had the following provisions on the subject:- "61. Oath to the Accused in case of Qatl.-(l) The accused shall, on demand by the complainant, be given oath when no proof is available in a murder case. (2) The accused shall not be subjected to qisas ((J&) if he refused to take oath in a case relating to Qatl-e-amd ( •£'), but shall be kept in custody till either he akes oath or pleads guilty. (3) Excepting Qatl-e-amd ( •/- ^ ), in cases relating to other kinds of qatl, the accused shall, if he refuses to take oath, be punished with diyat, and may, having regard to the circumstances of the case, also be liable to ta'zir under the law of Qisas and Diyat. 62. Oath in cases relating to Qat'-e-A 'z0.--(l) The accused shall, on demand by the complainant be given oath when no proof is available in a case relating to qat'-e-a'za (ifl &> amputation of limbs) liable to qisas, and if he refuses to take oath shall be punished with qisas. (2) The accused shall, on demand by the complainant be given oath when no proof is available in a case relating to qat'-e-A'za ( (fc>/ gk . amputation of limbs) not liable to qisas, and if he refuses to take oath he shall be punished with "ursh, and the Court may, having regard to the circumstances of the case, award him ta'zir under the Law of Qisas and Diyat. 63. Oath in cases liable to Ta'zir.~The accused shall, on demand by the complainant, be given oath when no proof is available in a case liable to ta'zir, and if he efuses to take oath shall be liable to ta'zir. Provided that no oath shall be given in cases where ta'zir is imposed. as a haqq-u-Allah ( JZJt & the right of Allah)". 13. The Pakistan Bar Council in its published report on the Draft Law of Evidence Ordinance, 1982 and the Evidence Act, 1872 offered the following comments on it:- (Hi) he has given evidence against any other person charged with or tried for the same offence". 18. Section 343 of the Criminal Procedure Code which has remained unaltered all along provides as hereunder:- "Except as provided in Sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge". Sections 337 and 338 Cr.P.C. referred to relate to tendering of pardon to accused and accomplices on certain conditions. 19. In this background of law the question as to what is the import, effect and implication of these amendments made hi Section 340 of the Criminal Procedure Code has on the rights of an accused facing trial has come up for consideration. 20. It is a recognized principle of interpretation of statutes that if a provision of law is presenting some difficulty in interpretation, it has to be so interpreted as to harmonize with the other provisions of the Act of which it is a part. It is only when there is a manifest and established failure to harmonize it with the other provisions that it either prevails over other provisions or yields to the other provisions. The second principle of interpretation of statutes, relevant to the case, is that the provisions of any particular Act are to be so interpreted as to harmonize and to remain consistent with the other laws having a relevance or nexus with the law sought to be interpreted. Finally, the third principle, attracted here, is that all laws in the field are to be so interpreted as to harmonize with the paramount law to which they must ordinarily conform and if they do not conform, they are struck down as ultra vires the paramount law. 21. The Criminal Procedure Code, of which Section 340(2) forms a part, has two indicators of importance to the case. The first indicator is found in sub-section (4) of Section 342 Cr.P.C. to the effect that "except as provided by subsection (2) of Section 340, no oath shall be administered to the accused". The other indicator is in the ubsequent section which says "except as provided in Sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge". If an accused is mandated to make a statement on oath under Section 340(2) Cr.P.C. or if he is told that if he does not make that statement the inference will be drawn against him, he will come under a pressure which will violate requirements of Section 343 Cr.P.C. Therefore, the interpretation of Section 340(2) Cr.P.C. has to be that it has no compulsive effect on the accused.. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case, to make a statement or not to make a statement on oath. No adverse inference'can be drawn if he does not opt to make a statement. 22. This interpretation finds farther support from the Qanun-e-Shahadat Order, 1984 referred to. Article 44 of it makes the accused liable to crossexamination and that liability arises only when an examination-in-chief. of the accused takes place and in no other case. Article 133 of the same Order/law provides "witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined". This liability to cross-examine under Article 44 will arise only when the examination-in-chief takes place, and that too at the bpdon of the party seeking cross-examination. In case the accused opts not to give a statement on oath in examination-in-chief, there cannot arise independently of such examination-inchief a question of his cross-examination. 23. Finally, the Constitution provides that an accused shall not be compelled to make a statement on oath and this is guaranteed to him by way of a Fundamental Right. Any law providing otherwise would be ultra vires, any interpretation of the law contravening it cannot be allowed to stand, Consist ncy with the paramount law, therefore, demands that subsection (2) of Section 340 should be interpreted as only conferring a duty or a power on the Court to inform the accused that he as a right under the law to make a statement on oath and it is is option with no risk attaching it to either make that statement or not to make that statement. 24. In that view of the matter and it being a right of the accused, the Court may in a given case omit to inform it and it will depend upon the facts of each case whether such omission has resulted in prejudice to the accused or miscarriage of justice. This being the right conferred on the accused, not affecting the substantive proceedings in the matter, will be treated as procedural and shall apply also to all pending cases. If in any case, there has been omission to inform the accused that D he had been conferred such a right, it will not make much difference because even prior to this amendment, he had a right whereunder he could in writing opt to make a statement on oath. The re- xisting right already being there, with the . nly difference that now a duty is cast on the court to elicit the option from the accused, in substance there is not much ifference. Hence, no case of any prejudice, retrial or re-examination of the accused in such cases arises unless the facts of the case-make it necessary. 25. A question may arise with regard to the nature and extent of the option of the accused under subsection (2) of section 340 of the Criminal Procedure Code. In the case in hand it does not. An answer to it is found in the following commentary in American Jurisprudence (21A Am Jur 2d - S 710) at page 129:- "A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, nd that waiver is no less ffective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. His voluntary offer f testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between them all. The waiver by the accused is not partial. Having once cast aside the cloak of immunity, he may not resume it at will whenever crossexamination may e inconvenient or embarrassing". 26. In the circumstances, and for the foregoing reasons, the questions of law are answered as hereunder:- (»') The amendments are procedural, so it will apply to all pending proceedings; (//) the view that on the strength of these provisions the accused can be compelled to rn^ke a statement on oath or that on his failure to do so he can be sent to prison or that adverse inference can be drawn against him is not correct; and (Hi) the prevailing criminal jurisprudential standards have not been unsettled by these amendments. 27. The appeal is, therefore, dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 514 PLJ 1991 SC 514 [Appellate Jurisdiction] Present: ZAFFAR HUSSAIN MlRZA, NAIMUDDIN AND AJMAL MlAN, JJ METALEX CORPORATION LTD.-Appellant versus COMMISSIONER OF SALES TAX-Respondent Civil Appeal No.201-K of 1984,. decided on 265.1991. [From judgment dated 22.12.1983 of High Court of Sindh, in Sales Tax Reference No.103 of 1973.] (i) Sales Tax Act, 1951 (II of 1951)-- —S.3(l)(e)--Electric fans-Manufacturing of-Raw material-Sales tax on~ Challenge to~Under Section 3(l)(a) of Act, fans manufactured by appellant were liable to tax efore they were exempted from such payment on 15.6.1965- -Raw material imported by appellant was exempted under Section 7 of Act-­ Held: Raw material lying in tock of appellant on 15.6.1965 as well as raw material used in fans on which work was in progress on said date was exempt from sales tax because stage or event at hich sales tax was payable, had already passed. [P.520,521&522]B&C PLD 1986 SC 731 = (1986) 54 Taxation 53 rel. (ii) Sales Tax Act, 1951 (II of 1951)-- —S.3(l)(e)~Electric fans-Manufacturing of~Raw material-Sales tax on— Challenge to -Whether clause (e) of Section 3(1) added by Finance Ordinance, 1967, was procedural and could be given retrospective effect- Question of~Clause (e) was added to Section 3 which is a charging section—In past, in such events, sales tax was not payable but after addition of clause (e) in 1967, it became payable-Held: Clause (e) of Section 3(1) of Act was wrongly termed as procedural and it could not be given retrospective effect. [P.518&519JA Mr All Amjad, Advocate, Supreme Court, and Mr.Nizam Ahmad, AOR for Appellant. Mr.Shaikh Haider, Advocate, Supreme Court and Mr.Muzaffar Hassan, AOR for Respondent.

Date of hearing: 26.5.1991. judgment Naimuddin, J.-In this appeal, by leave, the judgment of the High Court of Sindh dated 22.12.1983 passed in Sales Tax Reference No.103 of 1973, is impugned in the following circumstances: 2. The appellant is an assessee, carrying on business of manufacture and sale of electric fans. For the financial year 1965-66 the appellant obtained manufacturing licence under Section 8 of the Sales Tax Act, 1951. 3. After obtaining the licence, the appellant purchased raw m terial for the manufacture of electric fans and other goods from time to time. On the sale of raw material purchased by the appellant, no sales tax was charged as the appellant was a licenced manufacturer. However, the appellant was charged to sales tax on finished goods. 4. On 15.6.1965, the fans were exempted from payment of sales tax. Therefore, while framing assessment for the year 1964-65 on 14.5.1970 the Sales Tax Officer required the value of the raw material (/) lying in its stock n 15.6.1965, (ii) value of taxable raw material used in the fans on which work was in rogress on the said date and (///') the raw material already used in the manufacture of fans upto June, 1965. The appellant by its letter dated 20.5.1970 informed the Sales Tax Officer that it could not furnish the value of the stock as on 15.6.1965 as the closing date of account was 31st March every year and also contested the chargeability of such raw material to sales tax. 5. The Sales Tax Officer, therefore, proceeded to assess the raw material remaining un-used on 15.6.1965 at Rs.31,96,355/- and the raw material used in the manufacture of fans lying in the stock at Rs.4,46,000/- and the value of raw material used in finished goods which were in the process of manufacturing on 15.6.1965 at Rs.6,66,850/-. He accordingly determined the sales tax payable on these items at Rs.51,858/-. 6. Against the assessment order the appellant filed an appeal before the Income Tax appellate Tribunal, but the Tribunal dismissed the same holding that the raw material mentioned above was chargeable to tax and remanded the case for re-determination of the value of raw material as the estimated value was excessive. The Tribunal also held that clause (e)' of Section 3(1) of the Sales Tax Act, which was added by Finance Ordinance, 1967, being procedural, was applicable to the case. This led the appellant to file an application under Section 17(1) of the Sales Tax Act, raising the following questions: "1. Whether in the facts and circumstances of the case the Tribunal is right in holding that: (/) raw material purchased by appellant and lying in stock on 15.6.1965; (if) raw material used in the finished goods lying in stock un-sold on 15.6.1965, and (Hi) raw material used in semi-finished goods under process on 15.6.1965, which were purchased without payment of Sales Tax on the strength of Manufacturer's Licence became liable to Sales-tax in the hands of the applicant on exemption of electric fans from payment of Sales-tax by S.R.O. 475(K)-65 dated 14.5.1965? 2. Whether in the facts and circumstances of the case the Tribunal is right in holding that clause (e) of Section 3(1) of the Sales Tax Act, 1951 introduced for the first time by Finance Ordinance, 1967 is a measure of procedural or remedial nature and is, therefore, retrospective in application? 3. Whether in the facts and circumstances of the case the Tribunal is right in holding that because at the time the Sales Tax Officer levied sales-tax on raw materials, Clause (e) of Section 3(1) of the Sales Tax Act had come into force, the Sales Tax Officer was right in assessing and levying salestax thereon even though the raw materials were purchased in 1964-65 and even though the applicant was not the manufacturer-of such raw materials? 4. Whether in the facts and circumstances of the case the Tribunal is right in holding that Clause (e) of sub-section(l) of Section 3 of the Sales Tax Act 1951 as inserted by Finance Ordinance, 1967 applies to the raw materials which were purchased without payment of Sales Tax on the strength of a valid manufacturer's licence granted under Section 8 of the Sales Tax Act utilised and to be utilised for the manufacture of goods which were taxable at the time of purchasing and/or of utilisation but became exempt as a result of Statutory amendment"? 8. The High Court examined the above questions and by a detailed judgment, impugned in this appeal, answered the question No.l in the affirmative and questions Nos. 2 to 4 in the negative, and in effect up-held the order of the Tribunal although for different reasons. 9. Leave to appeal was granted to consider the submission that the High Court erred in holding that "Once it is established that the raw material has been used in goods which were exempt from sales tax, those raw materials will not be treated as partly manufactured goods and lose the character due to which the exemption is granted" and further submission that the condition for exemption of sales-tax on raw material used in partly manufactured goods are to be fulfilled at the time of purchase, and any subsequent exemption of the end product will not nullify the exemption which was legitimately claimed and granted at the time of purchasing the raw material. Before examining the submissions it is necessary to set out the relevant provisions of Section 3 and 4 of the Sales Tax Act, 1951, as existing at the relevant time: "3(1) There shall be levied and collected a tax on the value ofll goods produced or manufactured in Pakistan , payable by the manufacturer or producer; (a) all goods imported into Pakistan, payable by the importer; (b) all goods sold by a licensed whole-saler, payable by the lic nsed whole-saler; (c) such goods or classes of goods as the Central Government may, by notification in the official Gazette, specify in this behalf which are exported from Pakistan , payable by the exporter. 4. Notwithstanding anything contained in Section 3, the tax shall not be payable on~ (a) goods sold by a licensed manufacturer to another licensed manufacturer if the goods are partly manufactured goods; or (b) goods imported by a licensed manufacturer if the goods are partly manufactured goods; or (c) goods imported by a licensed wholesalar; or (d) goods sold by a licensed manufacturer to a l censed wholesaler or a licensed exporter; or (e) goods sold by a licensed wholesaler to licensed manufacturer if the goods are partly manufactured goods; or (/) goods sold by a licensed wholesaler to another licensed wholesaler; provided that if a licensed wholesaler sells goods to another licensed wholesaler at a price less than the value upon which the tax would be computed under Clause (Hi) or clause (iv) of Sub-section (3) of Section 3, the vendor shall forthwith become liable to pay the tax upon the difference between such value and his sale price. Provided further that if a licensed manufacturer sells to any person other than a licensed manufacturer partly manufactured goods on which no sales tax had been paid by him either at the time of their import or purchase from another licensed manufacturer or a licensed wholesaler, or a licensed exporter sells within Pakistan the goods purchased by him without payment of sales tax, he shall pay the amount of sales tax which would, but for the exemption granted by this section, have been payable by him within seven days of the date on which the sale was made". 10. Clause (e) was added to Section 3(1) of the Act by Section 8 of Finance Act, 1967 (Act XII of 1967), which reads as follows: "(e) such goods or classes of goods purchased without payment of sales tax by a licensed manufacturer or producer of taxable goods as are not used in the manufacture or production of taxable goods, payable by such manufacturer or producer". 11. In the present case the appellant is a licensed manufacturer of fans in Pakistan. Therefore, sales tax was leviable and was collected from the appellant on the fans manufactured by him till fans were exempted from payment of sales tax on 14.6.1965. But, the tax on raw material imported by the appellant was exempted by the Government from payment of sales tax under Section 7 of the Act. However, once the end product was taxed the raw material on which sales tax was not paid could be taxed in the event of licensed manufacturer provided clause (e) of sub-section (1) of Section 3 was in existence. But, clause (e) was inserted by the Finance Act, 1967. The Tribunal considering it to be procedural applied it retrospectively and therefore upheld the levying of sales tax on the raw material lying as such on 15.6.1965 and used in the fans on which work was in progress and the raw material already used in the manufacture of fans upto June, 1965. 12. However, in our opinion, the provisions of clause (e) of sub-section (1) of Section 3 of the Act were wrongly termed as procedural. This clause was added in Section 3 of the Act. Section 3 is a charging section. Originally .it contained 4 clauses, which provided levy and collection of sales tax in 4 different events o stages. By incorporating clause (e) in Section 3(1) of the Act, such goods or classes of goods purchased without payment of sales tax by a licensed manufacturer or producer of taxable goods as were not used in the manufacture or production of taxable goods were brought under the charge and the manufacture or the producer was made liable to pay sales tax on such goods. Therefore, in the past in such events sales tax was not payable, but after the addition of clause (e) in 1967, it became payable. However, this clause was not given retrospective effect. 13. Before the learned Division Bench of the High Court the case of Commissioner of Sales Tax v. Muhammad Hussain & Company (1974) 29 Taxation 44, was cited on behalf of the appellant. In this case the facts were that an assessee was running a tannery and holding manufacturing licence under Section 8 of the Sales Tax ct. It mported chemicals without payment of sales tax on the ground that they were partly manufactured goods which were required for use and consumption by the assessee in its own factory in manufacturing tanned leather. The assessee sold a part of the manufactured tanned leather locally. It also exported a part of the manufactured leather which was exempt from payment of sales tax on its exportation during the relevant years. The Sales Tax Officer held that the goods exported were exempt from payment of sales tax, but the raw material like chemicals etc. originally imported free of tax and used by the assessee in manufacturing tanned leather exported without payment of tax, would be taxable. Accordingly, he levied tax on these chemicals. The assessee in that case filed an appeal before the Appellate Assistant Commissioner, which was allowed. That order was also up-held by the Tribunal. The Revenue filed a reference under Section 17(1) of the Sales Tax Act and referred the following question: "Whether the Tribunal was right in giving a finding that no sales tax is leviable under the Sales Tax Act on the facts and circumstances of this case in respect of the raw material which after having been imported without payment of sales tax by the respondents, licensees under Section 8 of the Sales Tax Act, was used for the manufacture of goods which were exported"? 14. The learned Division Bench, after considering the provisions of the Sales Tax Act, observed that in the scheme of the said Act there is a distinction between the chargeability and payability and further held that the goods might be chargeable to tax but payability might be exempted and on this basis the machinery provided for ecovery of tax cannot be brought into operation, and the uestion was answered in the affirmative. However, the High Court in the present case relied on the following bservations made in the cited case: "The answer to the question referred to us shall depend on the interpretation of those provisions on which both the parties have relied before us. In general there are three stages in the administration of a taxing statute. The liability is imposed by the charging section. Then there are machinery rovisions roviding for the assessment to enable the iability to be quantified. Lastly there are the provisions for the collection and payment for the tax enforced against the subject " And observed as follows: This distinction runs through the whole of the Sales Tax Act, 1951 as well. Studied in this light, Section 3(l)(fe) of the Act creates the liability and lays down that the tax shall be "levied and collected" on the value of all goods imported into Pakistan payable by the manufacturer. In other words thereby all goods imported into Pakistan are subject to tax. But Section 4(b) lays down that notwithstanding anything contained in Section 3 the tax shall not be "payable" on goods imported by a licensed manufacturer if the goods are partly manufctured goods. This section only means that although the goods imported into Pakistan are without any exception subject to the tax but the actual payment of the tax on the partly manufactured goods by the licensed manufacturer is excused. In this connection Section 7(1) lays down that the Central Government may, by notification in the official Gazette, exempt any goods or class of goods or any person or class of persons from the tax "payable" under this Act This provision further fortifies us in the conclusion that under the Act the liability to the tax must be distinguished from the payability of the tax. There is no inconsistency in this and the two things are quite compatible with each other. Indeed the question as to the payment of tax and its exemption from the payment can arise only after the charge and the liability to tax has been created. Section 3 of the Act subjects to the tax all goods mentioned therein and lays down that there shall be levied and collected a tax on them. But notwithstanding anything contained in Section 3 the tax shall not be payable on certain transactions enumerated in Section 4 of the Act. Inspite of the liability to tax its payment may be exempted. The exemption from payment may be allowed although undoubtedly the goods are subject to the tax imposed on them under Section 3 of the Act". The High Court disagreeing with the observations made in the cited case further observed as under "In this connection Section 4(2?) provides that the tax shall not be payable on goods imported by a licensed manufacturer if the goods are 'partly manufactured goods'. As already mentioned above Section 2(12) defines "partly manufactured goods" to mean only goods which are to be incorporated into and form a constituent or component part of an article which is "subject to the tax". In the context the expression 'subject to the tax 5 , has reference to Section 3 to mean charged to tax under it". 15. However, we think that the High Court in the case in hand while relying on Section 13 of the Act as to chargeability of the sales tax on the raw material or goods which were exempt from payment of sales tax erred in ignoring the fact that under Section 3(1). of the Act sales tax was leviable and was collectable at the relevant time on the value of the raw material or goods as provided in clauses (a), (b), (c) and (d). Accordingly, under clause (a) of Section 3(1) of the Act, the fans manufactured or produced by the appellant were liable to tax before they were exempted from such payment on 15.6.1965. The raw material imported by the ppellant, ho as a licensed manufacturer, was exempted under Section 7 of the Act. Therefore, it is clear that in the event and at the stage when the appellant imported the raw material it ualified for exemption from payment of sales tax and there was no provision in the Act to tax such goods at any subsequent stage. If at the time of import there was no xemption from payment of sales tax as provided in Section 4(b) of the Act, the appellant would have paid sales tax in accordance with Section 3(l)(fl). But, once that stage r vent passed subsequently, because the fans were also exempted from payment of sales tax, chargeability of sales tax on such goods could not revive in the absence of an express provision to that effect in Section 3 of the Act, which was amended after two years after the relevant time, but without giving to it any retrospective effect. Thus, in ur opinion Commissioner of Sales Tax v. Muhammad Hussain & Co. (Supra) was applicable to the case in hand. 16. The learned High Court in the judgment under appeal, relied on (1) S.Muhammad Din & Sons v. Sales Tax Officer, Special Circle (PLD 1977 Lahore 1225), (2) Colony Textile Mills Ltd. v. Commissioner of Sales Tax (1975) 32 Taxation 282, and (3) M/s. Paracha Textile Mills Ltd. v. Commissioner of Income Tax (1980 PTD 17). However, all these cases are distinguishable on facts as well as on the principle decided therein. Indeed, in none of those cases Section 4(fc) came up for interpretation. 17. However, we are fortified in our view by a recent judgment of this Court in Commissioner of Sales Tax v. M/s. Sliaiq Corporation Limited (PLD 1986 SC 731; (1986) 54 Taxation 53). Although this case relates to partly manufactured goods which had been assimilated in the production of the fans and, therefore, partly apply to the resent case, because in this case also sales tax was levied on the goods which were imported by the appellant and had already been assimilated in the fans on 14.6.1965 for e reason that they had lost their original shape and could not be subjected to any event as prescribed nder Section 3(l)(fc) of the Act. It may be pertinent if the relevant protion of the judgment is reproduced here. It reads as under:- "Now coming to the facts of the case, the assessee was a licensed manufacturer of electric fans and was exempt from the payment of tax on partly manufactured goods imported for being incorporated into the endproduct under Section 4(b) of the Act. The partly manufactured goods in normal course were leviable to charge under Section 3(l)(ft) and the stage at which the sales tax was payable was after import but before clearance by the Customs authorities under Section 5(l)(fe) of the Act. That stage had passed away. The partly manufactured goods had been assimilated in production of fans, and the critical date on which these were sought to be assessed for payment of tax was the closing date, that is, 14th June, 1965. On that date they had lost their original shape and could not be subjected to any event as prescribed under Section 4(l) and (i>) of the Act. That being so they were not liable to the payment of the tax. In this context the High Court rightly decided the case on the basis of the two judgments cited above while distinguishing Noorani Cotton Corporation's case". 18. This case will also apply to the raw material lying in stock of the appellant on 15.6.1965 as well as the raw material used in the fans on which work was in progress on the said date because the stage or event at which the sales tax was payable had already passed. 19. We may also refer to the judgment of this Court in Commissioner of Income Tax, East Pakistan v. M/s. Ayurvedic Pharmacy (Dacca) Ltd. & others (PLD 1970 SC 93), in which the provisions of Section 3(1) of the Sales Tax Act as well as the question of exemption alongwith another question of turn-over came up for consideration. In this case it was observed by Abdus Sattar, J – Hamoodur Rahman, CJ and M.R.Khan, J, agreeing - as follows: "Once some goods have been exempted under Section 7, they go out of the purview of the Act and their gross takings cannot be taken into account for any of the purposes of the Act hi the absence of express words permitting the same". 20. It may be of advantage if we here recall the following observation of Rowlett, J, in the case of Tlie Cape Brandy Syndicate v. The Commissioner of Inland Revenue (12 Tax Cases 358) "That in taxation you have to look simply at what is clearly said. There is no room for any intendment; there is no equity about a tax: there is no presumption as tax; you read nothing in; you imply nothing, but you look fairly at what is said and at what is said clearly and that is the tax". 21. Therefore, for all these reasons, we set aside the impugned judgment and opinion of the High Court so far as it answers the question No.l and we answer it in the negative but so far as it answers the questions Nos.2, 3 and 4 in die negative, we agree with the High Court. However, in the circumstances of the case, we leave the parties to bear their own costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 SC 522 PLJ 1991 SC 522 [Appellate Jurisdiction] Present: Dr. NASIM HASAN SHAH AND RUSTAM S.S1DHWA, JJ MALHI KHAN-Appellant versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE, and 2 others-Respondents Civil Appeals Nos.452 of 1987 and 67 of 1991, accepted on 29.6.1991. [From judgments of Lahore High Court, dated 11.5.1986 and 1.12.1980 respectively passed in W.P.No.8445 of 1980 and R.S A. 173 of 1974.] Land Reforms Regulation, 1972 (MLR 115)- —Para.25(3)(d) read with Punjab Pre-emption Act, 1913, Section 8 and Constitution of Pakistan, 1973, Article 143--Pre-emption-Suit for—Whether certain area having een excluded from right of pre-emption under Section 8(1) or 8(2) of Act, 1913, tenant's suits for pre-emption under para.25(3) (d) can succeed—Question of~According o para.3 of MLR 115, provisions of Regulation have over-riding effect--MLR 115 is a Federal.Law whereas Punjab Pre-emption Act, 1913 is a Provincial Law-Article 143 f Constitution provides that in case of conflict between Federal and Provincial Law, former shall prevail-Held: There is conflict between para 25(3) of MLR 115 and Section 15(c) of Pre-emption Act, 1913 and former provision will prevail—Held further Right of pre-emption granted by MLR 115 cannot be frustrated or whittled down y Section 8 of Punjab Pre-emption Act, 1913-Both appeals accepted. [P.526,528,529&530]A,B,C,D&E 1979 CLC 284 approved. Ch.Khalilur Rehtnan, Senior Advocate, Supreme Court, and Mr.M^4..Qwvshi, A.O.R. with Mr. M^shraf Wahla, Advocate, Supreme Court, for Appellant (in CA.452 of 1987) Respondent No.l: Ex-parte (in CA. 452 of 1987). Gi.M.Farooq, Advocate, Supreme Court, and S-Abul Aasim Jaferi, A.O.R. for Respondents 2 & 3 (in CA.452 of 1987). Ch.KJialilur Rchman, Senior Advocate, Supreme Court, and Sh.Salahuddin, A.O.R. for Appellant (in CA. 67 of 1991). Mr.Irshad Ahmad Qureshi, Advocate, Supreme Court, for Respondents (in CA.67 of 1991). Date of hearing: 10.6.1991. judgment Rustam S. Sidhwa, J.-This judgment will dispose of civil appeal CA. 452/1987 preferred by Malhi Khan against the judgment of a learned Single Judge of the Lahore High Court dated 11.5.1986 dismissing his writ petition and civil appeal CA. 67/1991 preferred by Sardar Muhammad against the judgment of a learned Single Judge of the same High Court dated 1.12.1980 accepting the appeal of the legal representatives of Noor Ahmad deceased, and others, respondents, and restoring the judgment of the trial Court. 2. The brief facts of the case with regard to civil appeal CA. 452/1987 are that Abdul Karim and Rehm Din, respondents Nos. 2 and 3, purchased land measuring 69 kanals 5 marlas comprising khasra Nos. 234, 2148, 235, 236, 237, 241, 248, 249 min, 250 min and 251 as shown in Register Haqdaran Zamin for Civil Appeals Nos.452 of 1987 and 67 of 1991, accepted on 29.6.1991. [From judgments of Lahore High Court, dated 11.5.1986 and 1.12.1980 respectively passed in W.P.No.8445 of 1980 and R.S A. 173 of 1974.] Land Reforms Regulation, 1972 (MLR 115)- —ParaJl5(3)(d) read with Punjab Pre-emption Act, 1913, Section 8 and Constitution of Pakistan, 1973, Article 143-Pre-emption-Suit for—Whether certain area having een xcluded from right of pre-emption under Section 8(1) or 8(2) of Act, 1913, tenant's suits for pre-emption under para.25(3) (d) can succeed—Question of~According to ara.3 of MLR 115, provisions of Regulation have over-riding effect~MLR 115 is a Federal.Law whereas Punjab Pre-emption Act, 1913 is a Provincial Law-Article 143 of onstitution provides that in case of conflict between Federal and Provincial Law, former shall prevail-Held: There is conflict between para 25(3) of MLR 115 and Section 5(c) of Pre-emption Act, 1913 and former provision will prevail-Held further Right of pre-emption granted by MLR 115 cannot be frustrated or whittled down by Section 8 f Punjab Pre-emption Act, 1913-Both appeals accepted. [P.526,528,529&530]A,B,C,D&E 1979 CLC 284 approved. Ch.Khalilur Rehman, Senior Advocate, Supreme Court, and Mr.M~A.Qureshi, A.O.R. with Mr. M-Ashraf Wahla, Advocate, Supreme Court, for Appellant (in C A.452 of 1987) Respondent No.l: Ex-parte (in CA. 452 of 1987). Ch.M.Farooq, Advocate, Supreme Court, and S^Abul Aasim Jaferi, A.O.R. for Respondents 2 & 3 (in CA.452 of 1987). Ch.Khalilur Rehman, Senior Advocate, Supreme Court, and Sh.Salaliuddin, A.O.R. for Appellant (in CA. 67 of 1991). Mr.Irshad Ahmad Qureshi, Advocate, Supreme Court, for Respondents (in CA.67of 1991). Date of hearing: 10.6.1991. judgment Rustam S. Sidhwa, J.~This judgment will dispose of civil appeal CA. 452/1987 preferred by Malhi Khan against the judgment of a learned Single Judge of the Lahore High Court dated 11.5.1986 dismissing his writ petition and civil appeal CA. 67/1991 preferred by Sardar Muhammad against the judgment of a learned Single Judge of the same High Court dated 1.12.1980 accepting the appeal of the legal representatives of Noor Ahmad deceased, and others, respondents, and restoring the judgment of the trial Court. 2. The brief facts of the case with regard to civil appeal CA. 452/1987 are that Abdul Karim and Rehm Din, respondents Nos. 2 and 3, purchased land measuring 69 kanals 5 marlas comprising khasra Nos. 234, 2148, 235, 236, 237, 241, 248, 249 min, 250 min and 251 as shown in Register Haqdaran Zamin for 1971-72 of Mourn Gulabpura, Tehsil and District Gujranwala from Muhammad Jehangiruddin Khan and others for a sum of Rs 2,00,000/- (two lacs) vide registered sale deed dated 23.4.1976. Malhi Khan, appellant, who was a tenant of the land measuring 62 kanals 13 marlas, filed a suit for possession through pre­ emption in the Court of A.C./Collector, Gujranwala , on 30.3.1977. On 4.4.1977 the disputed land, which originally stood within the limits of the Gujranwala Cantonment, was excluded from such limits. The respondents Nos. 2 and 3 filed their written statement on 17.5.1977 objecting that originally as the land in dispute was within the limits of Gujranwala Cantonment, the same was not pre-emptible. The suit was decreed by the learned A.C./Collector vide his judgment dated 19.2.1979. Respondents Nos. 2 and 3 challenged the same in appeal before the learned Additional Commissioner, Revenue, who dismissed the appeal on 9.9.1979. Respondents Nos. 2 and 3 further challenged the judgments and decrees of the Courts below in revision before the learned Member, Board of Revenue, respondent No. 1, who, by his order dated 24.7.1980, accepted the revision netition and set aside the judgments and decrees of the Courts below. Being aggrieved by the said judgment, the appellant filed a writ petition in the High Court, which was dismissed by a learned Single Judge on 11.5.1986. The learned Judge held that the disputed land originally stood within the limits of Gujranwala Cantonment on the date that the sale took place and the suit was instituted, but that the said land having been excluded from the said Cantonment limits on 4.4.1977 the pre­ emption suit was only competent on the date the decree was passed. Since the appellant did no hold the right to pre-empt on the date of sale, the date of institution of suit and the date of the final decree, the appellant was not entitled to succeed. Being aggrieved by the said decision, the appellant petitioned this Court for leave to appeal, which leave was granted to consider the question whether para 25 (3) (d) of MLR 115 which conferred the right of pre-emption on the tenant overrode in express words all other laws and whether the provisions of the Punjab Pre-emption Act, 1913, could not therefore limit, control or whittle down that right. 3. The brief facts of the case with regard to civil appeal CA. 67/1991 are that 50 kanals 9 marlas of agricultural land in chak No. 258/RB, Tehsil and District Lyallpur, was sold to Noor Ahmad and others, respondents, vide mutation No. 1250 attested on 26.10.1972. On 24.11.1972 the appellant filed a suit to pre­ empt the said sale. At that time a notification issued in the year 1944 under section 8 (2) of the Punjab Pre-emption Act, 1913 was operative which exempted lands to which the Colonization of Government Lands (Punjab) Act, 1912 had been made applicable, from pre-emption. Admittedly, the lands in dispute were within the local area to which the Colonization of Government Lands (Punjab) Act, 1912, had been made applicable. The respondents filed their written statement and claimed that the lands were not pre-emptible on the date of sale and the date of suit and therefore could not be pre-empted. The notification of 1944 was rescinded on 19.2.1973. The learned Civil Judge, Lyallpur dismissed the appellant's suit on 12.12.1973. Being aggrieved, the appellant preferred an appeal, which was allowed by an Additional District Judge, Lyallpur , on 27.4.1974. The respondents thereupon filed a regular second appeal before the Lahore High Court, which was accepted by a learned Single Judge on 1.12.1990. The learned Single Judge held that the right of pre-emplion conferred on the appellant under MLR 115 could not be enforced in the presence of a notification issued under section 8 (2) of the Punjab Pre-emption Act, 1913, which exempted the land from pre-emption and that the provisions of the Pre-emption Act did not stand excluded by MLR 115. Being aggrieved by the said judgment, the appellant petitioned this Court for leave to appeal, which leave was granted, as leave had been granted by this Court in Malhi Khan's case. 4. On behalf of the appellants/tenants it is submitted that the first right of pre-emption granted to a tenant in respect of the lands comprised in his tenancy by the provisions of para 25 (3) (d) of the Land Reforms Regulation, 1972, (hereinafter referred to as "MLR 115") is an independent right and the provisions of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with the right granted under the said para, fail and cannot be enforced. It is further submitted that any part of the provisions of sections 4, 6 or 15 of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with para 25 (3) (d) of MLR 115, would have no effect, in the presence of para 3 of MLR 115, which reads as follows: - The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document." It is also contended that the provisions of MLR 115, which is a federal enactment, shall prevail and the provisions of the Punjab Pre-emption Act, which is a provincial enactment, shall, to the extent of the repugnancy, be void, in view of the provisions of Article 143 of the Pakistan Constitution, 1973. It is lastly submitted that cases titled Muhammad KJian v Abdul Khaliq KJian (PLD 1981 S.C. 155) and Noor Ahmad Shah v Member Board of Revenue (1981 SCMR 337) are distinguishable, as they deal with procedural matters, such as limitation and deposit of pre-emption money in Court, and that in effect the most relevant case on the point is Muhammad Yousuf v Board of Revenue (1979 CLC 284 Lah), which has clearly held that para 25 (3) (d) of MLR 115 cannot be over-ridden by other statutes or notifications. 5. On behalf of the respondents it is submitted that following the rule laid down in Muhammad Klian's case, (PLD 1981 S.C. 155) that in all matters not covered by para 25 (3) (d) of MLR 115, the provisions of the Punjab Pre-emption Act, 1913, apply, and since it is necessary under the said enactment to show that the pre-emptors had e right of pre-emption at three stages, namely, on the date of sale, on the date of institution of suit and on the date of decree, the said principle was applicable to the cases in instance and since the appellants were not able to show such a right, they were legally and validly non-suited. It is further ubmitted that since the said para only grants a preferential right of pre-emption to a tenant in respect of the land under his tenancy and does not refer to a host of other matters, the basic law granting pre-emption rights to sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will have to be applied, to the extent to which it is not inconsistent with the Regulation. It is, therefore, contended that the said para cannot be said to be a law which regulates or provides any procedure to enforce a right of pre-emption, other than granting a preferential pre-emptor status to a tenant with regard to the land comprised in his tenancy, and therefore the provisions of the Punjab Pre-emption Act, 1913, would apply and where Section 8 excludes any property from pre-emption, the said exclusion would prevail. 6. We have heard the arguments of the learned counsel for the appellants and the respondents and have perused the record. The only point for determination in these appeals is whether, in view of the exclusion of certain areas from the right of pre-emption, under Section 8(1) of the Punjab Pre-emption Act, 1913, or the declaration by notification that in any local area or with respect to any land or property or class of land or property, no right of pre-emption or only such limited right shall exist, as stated in Section 8(2) of the Punjab Pre-emption Act, 1913, the tenants' suits for pre-emption under para 25(3)(d) can succeed. Before dealing with the legal issue, it is necessary to set down certain provisions of MLR 115 and the Punjab Pre-emption Act, 1913, which are relevant MARTIAL LAW REGULATION 115 Para 2(4)"Land" means land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such land. Para 3. The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document. Para 25.(1) ............................ (2) ............. - ....... (3) («) ............... (d) Subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy". PUNJAB PRE-EMPTION ACT, 1913 Section 4. The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or foreclosures of the rights to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale. Section 6. A right of pre-emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations contained in this Act. Section 8. (1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre-emption shall exist within any cantonment. (2) The Board of Revenue may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre­ emption or only such limited right as the Board of Revenue may specify, shall exist. Section 15. Subject to the provisions of Section 14 the right of pre­ emption in respect of agricultural land and village immovable property shall vcst:- (0) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly: - firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly, in the persons, but included under firstly or secondly above, in order of succession, but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thridly shall read as follows: - thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold;fourthly, in the co-sharers; (c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it:- firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors; secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate;thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property in the tenants (if any) having rights of occupancy in such land or property; fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation. In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word 'agnate' in this section shall mean the agnates of the person through whom she has so succeeded.8. Para 3 of MLR 115 inter alia states that the provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary contained in any other law, or in any rule of custom or usage. It is clear that MLR 115 is a Federal Law and the Punjab Pre-emption Act, 1913, is a provincial law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of .a Federal Law, then the Federal Law shall prevail and the Provincial Law shall, to the extent of the repugnancy or conflict, be void. In Rahim Baklish v. Gul Muhammad (PLD 1968 Lah. 907), a decree for possession of land was not allowed to be executed, as it had the effect of frustrating the provisions of M.L.R. 64, which contained a similar provision as in M.L.R. 115. In Muhammad Chios v. Member, Federal Land Commission (PLD 1975 Lah. 399), the provisions ofM.L.R. 115 were allowed to prevail against its conflict with the provision of 1 - ~ Muhammad Law. 9. In matters of pre-emption, amongst others, the following questions arise: (/) What is the right of pre-emption? (a) To what property it is applicable? wi)_ To what transactions it is applicable and (/v) Who are the persons entitled to such a right? These are all substantive questions as they relate to the nature of rights, their xtent and enforcement. They are not procedural matters. Para 25(3)(<Q of MLR 115 does not define what is the right of pre-emption. However, it does describe the roperty ich it is applicable, namely, land held by the tenant which comprises his tenancy. "Land" is defined in para 2(4) as land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such lands. Para 25(3) (d) does not determine to what transactions the right is applicable. It however determines the person entitled to the right of pre-emption, namely, the tenant of such land. Turning to the Punjab pre-emption Act, one finds that Section 4 determines what is the right of pre-emption. It is the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales- or right of foreclosure or to redeem such property. Section 6 deals with the type of property to which pre-emption is applicable. It states that such right shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations contained in that Act. Sections 3(5), 4,8(2) and 9 deal with the types of transactions which are subject to or exempt or excluded from pre-emption. Section 15 deals with the types of persons who are entitled to claim such a right. It gives a list of such persons in order of priority. 10. Keeping both the provisions of the law as contained in MLR 115 and the Punjab Pre-emption Act in juxtaposition, we find that there is inconsistency in respect of the persons who are entitled to pre-empt agricultural land and the nature of the property to which pre-emption is applicable. Under para 25(3)(d), the tenant has the prior right of pre-emption. Under Section (15(c) of the Punjab Pre-emption Act, an occupancy tenant has the right of pre-emption in the lower order of scale, much below many others apart from others. There is thus a conflict between the two and the provision of Para 25(3) (d) will prevail, placing the enant at the highest order in the scale of persons entitled to pre-empt over and above those given in Section 15 of the Act. However, what is relevant in these appeals is the nature of the property to which pre-emption is applicable. Under Para 25(3) (d) the said property is land comprising the tenancy of the tenant. Under the Punjab Pre-emption Act, it is agricultural land and village immovable property, subject to all the other provisions and limitations contained in the Act. Under Section 8 of the Act, both land and types of transactions can be excluded from the purview of pre-emption. In view of this conflict vis-a-vis land, the provision of Para 25(3)(J) shall prevail. In these circumstances, the land comprised in the tenancy of the tenants, which is the property to which the right of pre-emption has been given, cannot be destroyed by any provision of the Punjab Pre-emption Act which has the effect of taking away the right of pre-emption applicable to that property. Such a right granted by MLR 115 cannot be frustrated or whittled down by the provisions of Section 8 of the Punjab Pre-emption Act. The view taken in this respect by the Lahore High Court in Muhammad Yousuf s case (supra) appears to be appropriate and correct in the circumstances. Excluding these two matters where the special law will prevail, regarding other matters, as held by this Court in Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 S.C. 153, 163), the basic position will remain, namely, that the law granting right of pre-empting sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will prevail. Thus matters such as what is the right of pre-emption, to what transactions it can or cannot be enforced, how the right will be enforced in respect of joint tenants, what is the procedure for the determination and enforcement of such a right, etc, will be governed by the Punjab Pre-emption Act, 1913. We may now discuss the cases cited by the learned counsel for the parties, Muhammad Khan's case (supra) dealt with the question whether the pre-emption suits were time barred. Noor Ahmad Shah's case (1981 S.C.M.R. 337) dealt with the deposit of pre-emption money. Both suits dealt with matters of procedure and not substantive rights.No conflict of laws was involved. They are thus distinquishable. For the foregoing reasons, we hold that the appellants, who were the tenants of the lands comprised in their tenancy, had the right to pre-empt the same, notwithstanding the notifications issued under sub-sections (1) and (2) of Section 8 of the Punjab Pre-emption Act, and so long as they were tenants on the date of sale, there rights to pre-empt crystalised and became enforceable and any rule or principle emanating out of the Punjab Pre-emption Act that they had to hold their rights as such tenants on the date of suit or decree, being in violation of para 3 of MLR 115, cannot prevail. The right of pre-emption under para 25(3)(<0 of MLR 115 is not a piratical right, but one founded in socio-economic reform, to give to the tenant, who has put his blood and sweat on the land, the first right to purchase the same. Though this right has now been declared unlslamic, the future Islamic Jurist shall have to resort to Ijtehad to bring this right back, if meaningful land reforms are to be reinstated. n the above circumstances, we accept both the appeals, set aside the impugned judgments of the High Court and restore that of the Assistant Commissioner/Collector, dated 9.2.1979 in civil appeal CA.No.452 of 1987 and that of the Additional District Judge, Lyallpur, dated 27.4.1974 passed in civil appeal CA. No.67 of 1991, decreeing both the uits. (MBC) ( Approved for reporting) Both appeals accepted.

PLJ 1991 SC 522 PLJ 1991 SC 522 [Appellate Jurisdiction] Present: Dr. NASIM HASAN SHAH AND RUSTAM S.S1DHWA, JJ MALHI KHAN-Appellant versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE , and 2 others-Respondents Civil Appeals Nos.452 of 1987 and 67 of 1991, accepted on 29.6.1991. [From judgments of Lahore High Court, dated 11.5.1986 and 1.12.1980 respectively passed in W.P.No.8445 of 1980 and R.S A. 173 of 1974.] Land Reforms Regulation, 1972 (MLR 115)- —Para.25(3)(d) read with Punjab Pre-emption Act, 1913, Section 8 and Constitution of Pakistan, 1973, Article 143--Pre-emption-Suit for—Whether certain area having een excluded from right of pre-emption under Section 8(1) or 8(2) of Act, 1913, tenant's suits for pre-emption under para.25(3) (d) can succeed—Question of~According o para.3 of MLR 115, provisions of Regulation have over-riding effect--MLR 115 is a Federal.Law whereas Punjab Pre-emption Act, 1913 is a Provincial Law-Article 143 f Constitution provides that in case of conflict between Federal and Provincial Law, former shall prevail-Held: There is conflict between para 25(3) of MLR 115 and Section 15(c) of Pre-emption Act, 1913 and former provision will prevail—Held further Right of pre-emption granted by MLR 115 cannot be frustrated or whittled down y Section 8 of Punjab Pre-emption Act, 1913-Both appeals accepted. [P.526,528,529&530]A,B,C,D&E 1979 CLC 284 approved. Ch.Khalilur Rehtnan, Senior Advocate, Supreme Court, and Mr.M^4..Qwvshi, A.O.R. with Mr. M^shraf Wahla, Advocate, Supreme Court, for Appellant (in CA.452 of 1987) Respondent No.l: Ex-parte (in CA. 452 of 1987). Gi.M.Farooq, Advocate, Supreme Court, and S-Abul Aasim Jaferi, A.O.R. for Respondents 2 & 3 (in CA.452 of 1987). Ch.KJialilur Rchman, Senior Advocate, Supreme Court, and Sh.Salahuddin, A.O.R. for Appellant (in CA. 67 of 1991). Mr.Irshad Ahmad Qureshi, Advocate, Supreme Court, for Respondents (in CA.67 of 1991). Date of hearing: 10.6.1991. judgment Rustam S. Sidhwa, J.-This judgment will dispose of civil appeal CA. 452/1987 preferred by Malhi Khan against the judgment of a learned Single Judge of the Lahore High Court dated 11.5.1986 dismissing his writ petition and civil appeal CA. 67/1991 preferred by Sardar Muhammad against the judgment of a learned Single Judge of the same High Court dated 1.12.1980 accepting the appeal of the legal representatives of Noor Ahmad deceased, and others, respondents, and restoring the judgment of the trial Court. 2. The brief facts of the case with regard to civil appeal CA. 452/1987 are that Abdul Karim and Rehm Din, respondents Nos. 2 and 3, purchased land measuring 69 kanals 5 marlas comprising khasra Nos. 234, 2148, 235, 236, 237, 241, 248, 249 min, 250 min and 251 as shown in Register Haqdaran Zamin for Civil Appeals Nos.452 of 1987 and 67 of 1991, accepted on 29.6.1991. [From judgments of Lahore High Court, dated 11.5.1986 and 1.12.1980 respectively passed in W.P.No.8445 of 1980 and R.S A. 173 of 1974.] Land Reforms Regulation, 1972 (MLR 115)- —ParaJl5(3)(d) read with Punjab Pre-emption Act, 1913, Section 8 and Constitution of Pakistan, 1973, Article 143-Pre-emption-Suit for—Whether certain area having een xcluded from right of pre-emption under Section 8(1) or 8(2) of Act, 1913, tenant's suits for pre-emption under para.25(3) (d) can succeed—Question of~According to ara.3 of MLR 115, provisions of Regulation have over-riding effect~MLR 115 is a Federal.Law whereas Punjab Pre-emption Act, 1913 is a Provincial Law-Article 143 of onstitution provides that in case of conflict between Federal and Provincial Law, former shall prevail-Held: There is conflict between para 25(3) of MLR 115 and Section 5(c) of Pre-emption Act, 1913 and former provision will prevail-Held further Right of pre-emption granted by MLR 115 cannot be frustrated or whittled down by Section 8 f Punjab Pre-emption Act, 1913-Both appeals accepted. [P.526,528,529&530]A,B,C,D&E 1979 CLC 284 approved. Ch.Khalilur Rehman, Senior Advocate, Supreme Court, and Mr.M~A.Qureshi, A.O.R. with Mr. M-Ashraf Wahla, Advocate, Supreme Court, for Appellant (in C A.452 of 1987) Respondent No.l: Ex-parte (in CA. 452 of 1987). Ch.M.Farooq, Advocate, Supreme Court, and S^Abul Aasim Jaferi, A.O.R. for Respondents 2 & 3 (in CA.452 of 1987). Ch.Khalilur Rehman, Senior Advocate, Supreme Court, and Sh.Salaliuddin, A.O.R. for Appellant (in CA. 67 of 1991). Mr.Irshad Ahmad Qureshi, Advocate, Supreme Court, for Respondents (in CA.67of 1991). Date of hearing: 10.6.1991. judgment Rustam S. Sidhwa, J.~This judgment will dispose of civil appeal CA. 452/1987 preferred by Malhi Khan against the judgment of a learned Single Judge of the Lahore High Court dated 11.5.1986 dismissing his writ petition and civil appeal CA. 67/1991 preferred by Sardar Muhammad against the judgment of a learned Single Judge of the same High Court dated 1.12.1980 accepting the appeal of the legal representatives of Noor Ahmad deceased, and others, respondents, and restoring the judgment of the trial Court. 2. The brief facts of the case with regard to civil appeal CA. 452/1987 are that Abdul Karim and Rehm Din, respondents Nos. 2 and 3, purchased land measuring 69 kanals 5 marlas comprising khasra Nos. 234, 2148, 235, 236, 237, 241, 248, 249 min, 250 min and 251 as shown in Register Haqdaran Zamin for 1971-72 of Mourn Gulabpura, Tehsil and District Gujranwala from Muhammad Jehangiruddin Khan and others for a sum of Rs 2,00,000/- (two lacs) vide registered sale deed dated 23.4.1976. Malhi Khan, appellant, who was a tenant of the land measuring 62 kanals 13 marlas, filed a suit for possession through pre­ emption in the Court of A.C./Collector, Gujranwala , on 30.3.1977. On 4.4.1977 the disputed land, which originally stood within the limits of the Gujranwala Cantonment, was excluded from such limits. The respondents Nos. 2 and 3 filed their written statement on 17.5.1977 objecting that originally as the land in dispute was within the limits of Gujranwala Cantonment, the same was not pre-emptible. The suit was decreed by the learned A.C./Collector vide his judgment dated 19.2.1979. Respondents Nos. 2 and 3 challenged the same in appeal before the learned Additional Commissioner, Revenue, who dismissed the appeal on 9.9.1979. Respondents Nos. 2 and 3 further challenged the judgments and decrees of the Courts below in revision before the learned Member, Board of Revenue, respondent No. 1, who, by his order dated 24.7.1980, accepted the revision netition and set aside the judgments and decrees of the Courts below. Being aggrieved by the said judgment, the appellant filed a writ petition in the High Court, which was dismissed by a learned Single Judge on 11.5.1986. The learned Judge held that the disputed land originally stood within the limits of Gujranwala Cantonment on the date that the sale took place and the suit was instituted, but that the said land having been excluded from the said Cantonment limits on 4.4.1977 the pre­ emption suit was only competent on the date the decree was passed. Since the appellant did no hold the right to pre-empt on the date of sale, the date of institution of suit and the date of the final decree, the appellant was not entitled to succeed. Being aggrieved by the said decision, the appellant petitioned this Court for leave to appeal, which leave was granted to consider the question whether para 25 (3) (d) of MLR 115 which conferred the right of pre-emption on the tenant overrode in express words all other laws and whether the provisions of the Punjab Pre-emption Act, 1913, could not therefore limit, control or whittle down that right. 3. The brief facts of the case with regard to civil appeal CA. 67/1991 are that 50 kanals 9 marlas of agricultural land in chak No. 258/RB, Tehsil and District Lyallpur, was sold to Noor Ahmad and others, respondents, vide mutation No. 1250 attested on 26.10.1972. On 24.11.1972 the appellant filed a suit to pre­ empt the said sale. At that time a notification issued in the year 1944 under section 8 (2) of the Punjab Pre-emption Act, 1913 was operative which exempted lands to which the Colonization of Government Lands (Punjab) Act, 1912 had been made applicable, from pre-emption. Admittedly, the lands in dispute were within the local area to which the Colonization of Government Lands (Punjab) Act, 1912, had been made applicable. The respondents filed their written statement and claimed that the lands were not pre-emptible on the date of sale and the date of suit and therefore could not be pre-empted. The notification of 1944 was rescinded on 19.2.1973. The learned Civil Judge, Lyallpur dismissed the appellant's suit on 12.12.1973. Being aggrieved, the appellant preferred an appeal, which was allowed by an Additional District Judge, Lyallpur , on 27.4.1974. The respondents thereupon filed a regular second appeal before the Lahore High Court, which was accepted by a learned Single Judge on 1.12.1990. The learned Single Judge held that the right of pre-emplion conferred on the appellant under MLR 115 could not be enforced in the presence of a notification issued under section 8 (2) of the Punjab Pre-emption Act, 1913, which exempted the land from pre-emption and that the provisions of the Pre-emption Act did not stand excluded by MLR 115. Being aggrieved by the said judgment, the appellant petitioned this Court for leave to appeal, which leave was granted, as leave had been granted by this Court in Malhi Khan's case. 4. On behalf of the appellants/tenants it is submitted that the first right of pre-emption granted to a tenant in respect of the lands comprised in his tenancy by the provisions of para 25 (3) (d) of the Land Reforms Regulation, 1972, (hereinafter referred to as "MLR 115") is an independent right and the provisions of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with the right granted under the said para, fail and cannot be enforced. It is further submitted that any part of the provisions of sections 4, 6 or 15 of the Punjab Pre-emption Act, 1913, to the extent to which they are in conflict with para 25 (3) (d) of MLR 115, would have no effect, in the presence of para 3 of MLR 115, which reads as follows: - The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document." It is also contended that the provisions of MLR 115, which is a federal enactment, shall prevail and the provisions of the Punjab Pre-emption Act, which is a provincial enactment, shall, to the extent of the repugnancy, be void, in view of the provisions of Article 143 of the Pakistan Constitution, 1973. It is lastly submitted that cases titled Muhammad KJian v Abdul Khaliq KJian (PLD 1981 S.C. 155) and Noor Ahmad Shah v Member Board of Revenue (1981 SCMR 337) are distinguishable, as they deal with procedural matters, such as limitation and deposit of pre-emption money in Court, and that in effect the most relevant case on the point is Muhammad Yousuf v Board of Revenue (1979 CLC 284 Lah), which has clearly held that para 25 (3) (d) of MLR 115 cannot be over-ridden by other statutes or notifications. 5. On behalf of the respondents it is submitted that following the rule laid down in Muhammad Klian's case, (PLD 1981 S.C. 155) that in all matters not covered by para 25 (3) (d) of MLR 115, the provisions of the Punjab Pre-emption Act, 1913, apply, and since it is necessary under the said enactment to show that the pre-emptors had e right of pre-emption at three stages, namely, on the date of sale, on the date of institution of suit and on the date of decree, the said principle was applicable to the cases in instance and since the appellants were not able to show such a right, they were legally and validly non-suited. It is further ubmitted that since the said para only grants a preferential right of pre-emption to a tenant in respect of the land under his tenancy and does not refer to a host of other matters, the basic law granting pre-emption rights to sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will have to be applied, to the extent to which it is not inconsistent with the Regulation. It is, therefore, contended that the said para cannot be said to be a law which regulates or provides any procedure to enforce a right of pre-emption, other than granting a preferential pre-emptor status to a tenant with regard to the land comprised in his tenancy, and therefore the provisions of the Punjab Pre-emption Act, 1913, would apply and where Section 8 excludes any property from pre-emption, the said exclusion would prevail. 6. We have heard the arguments of the learned counsel for the appellants and the respondents and have perused the record. The only point for determination in these appeals is whether, in view of the exclusion of certain areas from the right of pre-emption, under Section 8(1) of the Punjab Pre-emption Act, 1913, or the declaration by notification that in any local area or with respect to any land or property or class of land or property, no right of pre-emption or only such limited right shall exist, as stated in Section 8(2) of the Punjab Pre-emption Act, 1913, the tenants' suits for pre-emption under para 25(3)(d) can succeed. Before dealing with the legal issue, it is necessary to set down certain provisions of MLR 115 and the Punjab Pre-emption Act, 1913, which are relevant MARTIAL LAW REGULATION 115 Para 2(4)"Land" means land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such land. Para 3. The provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document. Para 25.(1) ............................ (2) ............. - ....... (3) («) ............... (d) Subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy". PUNJAB PRE-EMPTION ACT, 1913 Section 4. The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or foreclosures of the rights to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale. Section 6. A right of pre-emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations contained in this Act. Section 8. (1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre-emption shall exist within any cantonment. (2) The Board of Revenue may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre­ emption or only such limited right as the Board of Revenue may specify, shall exist. Section 15. Subject to the provisions of Section 14 the right of pre­ emption in respect of agricultural land and village immovable property shall vcst:- (0) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly: - firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly, in the persons, but included under firstly or secondly above, in order of succession, but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thridly shall read as follows: - thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold;fourthly, in the co-sharers; (c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it:- firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors; secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate;thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property in the tenants (if any) having rights of occupancy in such land or property; fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation. In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word 'agnate' in this section shall mean the agnates of the person through whom she has so succeeded.8. Para 3 of MLR 115 inter alia states that the provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary contained in any other law, or in any rule of custom or usage. It is clear that MLR 115 is a Federal Law and the Punjab Pre-emption Act, 1913, is a provincial law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of .a Federal Law, then the Federal Law shall prevail and the Provincial Law shall, to the extent of the repugnancy or conflict, be void. In Rahim Baklish v. Gul Muhammad (PLD 1968 Lah. 907), a decree for possession of land was not allowed to be executed, as it had the effect of frustrating the provisions of M.L.R. 64, which contained a similar provision as in M.L.R. 115. In Muhammad Chios v. Member, Federal Land Commission (PLD 1975 Lah. 399), the provisions ofM.L.R. 115 were allowed to prevail against its conflict with the provision of 1 - ~ Muhammad Law. 9. In matters of pre-emption, amongst others, the following questions arise: (/) What is the right of pre-emption? (a) To what property it is applicable? wi)_ To what transactions it is applicable and (/v) Who are the persons entitled to such a right? These are all substantive questions as they relate to the nature of rights, their xtent and enforcement. They are not procedural matters. Para 25(3)(<Q of MLR 115 does not define what is the right of pre-emption. However, it does describe the roperty ich it is applicable, namely, land held by the tenant which comprises his tenancy. "Land" is defined in para 2(4) as land which is not occupied as the site of town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, and includes the sites of buildings and other structures on such lands. Para 25(3) (d) does not determine to what transactions the right is applicable. It however determines the person entitled to the right of pre-emption, namely, the tenant of such land. Turning to the Punjab pre-emption Act, one finds that Section 4 determines what is the right of pre-emption. It is the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales- or right of foreclosure or to redeem such property. Section 6 deals with the type of property to which pre-emption is applicable. It states that such right shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations contained in that Act. Sections 3(5), 4,8(2) and 9 deal with the types of transactions which are subject to or exempt or excluded from pre-emption. Section 15 deals with the types of persons who are entitled to claim such a right. It gives a list of such persons in order of priority. 10. Keeping both the provisions of the law as contained in MLR 115 and the Punjab Pre-emption Act in juxtaposition, we find that there is inconsistency in respect of the persons who are entitled to pre-empt agricultural land and the nature of the property to which pre-emption is applicable. Under para 25(3)(d), the tenant has the prior right of pre-emption. Under Section (15(c) of the Punjab Pre-emption Act, an occupancy tenant has the right of pre-emption in the lower order of scale, much below many others apart from others. There is thus a conflict between the two and the provision of Para 25(3) (d) will prevail, placing the enant at the highest order in the scale of persons entitled to pre-empt over and above those given in Section 15 of the Act. However, what is relevant in these appeals is the nature of the property to which pre-emption is applicable. Under Para 25(3) (d) the said property is land comprising the tenancy of the tenant. Under the Punjab Pre-emption Act, it is agricultural land and village immovable property, subject to all the other provisions and limitations contained in the Act. Under Section 8 of the Act, both land and types of transactions can be excluded from the purview of pre-emption. In view of this conflict vis-a-vis land, the provision of Para 25(3)(J) shall prevail. In these circumstances, the land comprised in the tenancy of the tenants, which is the property to which the right of pre-emption has been given, cannot be destroyed by any provision of the Punjab Pre-emption Act which has the effect of taking away the right of pre-emption applicable to that property. Such a right granted by MLR 115 cannot be frustrated or whittled down by the provisions of Section 8 of the Punjab Pre-emption Act. The view taken in this respect by the Lahore High Court in Muhammad Yousuf s case (supra) appears to be appropriate and correct in the circumstances. Excluding these two matters where the special law will prevail, regarding other matters, as held by this Court in Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 S.C. 153, 163), the basic position will remain, namely, that the law granting right of pre-empting sales of agricultural land in the Punjab, which is the Punjab Pre-emption Act, 1913, will prevail. Thus matters such as what is the right of pre-emption, to what transactions it can or cannot be enforced, how the right will be enforced in respect of joint tenants, what is the procedure for the determination and enforcement of such a right, etc, will be governed by the Punjab Pre-emption Act, 1913. We may now discuss the cases cited by the learned counsel for the parties, Muhammad Khan's case (supra) dealt with the question whether the pre-emption suits were time barred. Noor Ahmad Shah's case (1981 S.C.M.R. 337) dealt with the deposit of pre-emption money. Both suits dealt with matters of procedure and not substantive rights.No conflict of laws was involved. They are thus distinquishable. For the foregoing reasons, we hold that the appellants, who were the tenants of the lands comprised in their tenancy, had the right to pre-empt the same, notwithstanding the notifications issued under sub-sections (1) and (2) of Section 8 of the Punjab Pre-emption Act, and so long as they were tenants on the date of sale, there rights to pre-empt crystalised and became enforceable and any rule or principle emanating out of the Punjab Pre-emption Act that they had to hold their rights as such tenants on the date of suit or decree, being in violation of para 3 of MLR 115, cannot prevail. The right of pre-emption under para 25(3)(<0 of MLR 115 is not a piratical right, but one founded in socio-economic reform, to give to the tenant, who has put his blood and sweat on the land, the first right to purchase the same. Though this right has now been declared unlslamic, the future Islamic Jurist shall have to resort to Ijtehad to bring this right back, if meaningful land reforms are to be reinstated. n the above circumstances, we accept both the appeals, set aside the impugned judgments of the High Court and restore that of the Assistant Commissioner/Collector, dated 9.2.1979 in civil appeal CA.No.452 of 1987 and that of the Additional District Judge, Lyallpur, dated 27.4.1974 passed in civil appeal CA. No.67 of 1991, decreeing both the uits. (MBC) ( Approved for reporting) Both appeals accepted. PLJ 1991 SC 531 [Appellate Jurisdiction] Present: muhammad AFZAL ZuLLAH, CJ and saad saood jan, J MUHAMMAD AZIZ and another-Appellants versus Syed HAIDER ALI SHAH and 3 others-Respondents Civil Appeals Nos.35,28 & 18 of 1989 and 730 of 1988, dismissed on 9.6.1991. [On appeal from judgments of Lahore High Court, dated 22.10.1988 in R.S A. 165 of 1987,72.1989 in FAO 109 of 1983,12.11.1988 in C.R. 2236-D of 1986 and 13.10.1984 in R.S A. 297 of 1984.] Pre-emption- —Pre-emption-Suits for~No decree passed before 31.7.1986—Prayer for observation to preserve rights of plaintiffs under present statutory dispensation-No decree aving been passed in favour of plaintiff before target date, they cannot succeed-Held: If plaintiffs have any rights under present statutory dispensation on law of pre- mption, they should not be deprived of them but they should be put on caution against raising false pleas and stating incorrect facts. [P.531&532JA&B PLJ 1988 SC 224 ref. Mr.Tanvir Ahmad, AOR for Appellants (in CA. 35 of 1989). MrJqbal Ahmad Qureshi, AOR (absent) for Respondents 1 to 4 (in CA. 35 of 1989). Ch.M.Hayat, Advocate, Supreme Court, and Rana M~A.Qadri, AOR for Appellant (in CA. 28 of 1989). Ch^khtarAti, AOR (absent) for Respondents (hi CA. 28 of 1989). MrS.M.Rasheed, Advocate, Supreme Court, and Ch.Mehdi Khan Mehtab, AOR for Appellant (in CA. 18 of 1989). Mr.Taqi Ahmad Khan, Advocate, Supreme Court, and S~Abul Aasim Jaferi, AOR for Respondents (hi CA. 18 of 1989). Ch.Ghulam Rasool Warraich, Advocate, Supreme Court, and S^A^Abid Nawaz, AOR for Appellant (in CA. 730 of 1988). Qazi M.Saleem, Senior Advocate, Supreme Court, and Ch. Mehdi Khan Mehtab, AOR for Respondent No.l (in CA. 730 of 1988). Namo for others (in CA. 730 of 1988). Date of hearing: 9.6.1991. judgment Muhammad Afzal Zullah, CJ.-In these four appeals learned counsel for the appellants stated and admitted that no decree having been passed in favour of the appellant/plaintiffs before 31st July, 1986, they cannot succeed on the pleas raised in these matters. The position taken by the learned counsel is reasonable. After the decision in the case of Sardar All v. Muhammad All (PLJ 1988 SC 224), for sometime undoubtedly the law remained un-settled; but now, it stands settled by severaljudgments of this Court following the judgment passed in Review by the Shariat Appellate Bench of ibis Court and other judgments by the other Benches of this Court; which reiterate the said view. One learned counsel, however, stated that some observation be made for preserving the rights of the plaintiffs under the present statutory dispensation on the law of pre-emption. We have no hesitation that if the plaintiffs have any rights they should not be deprived of them but as held in several other similar cases they should be put on caution against raising false pleas and stating incorrect facts. An advice otherwise should not be given to them; as, it might result in hardship, expense and humiliation. Secondly, the parties like the plaintiff/appellants hi such like cases should be given proper advice regarding the development of this branch of law. For example, the recently announced judgment of the Federal Shariat Court has further annulled some of the latest Punjab Law as being repugnant to the Injunctions of Islam as contained in the Quran and Sunnah. Similarly it is the B duty of the gentlemen of the Bar to study the case law on Islamic Law of pre­ emption more carefully than it was necessary earlier. It is available in the precedent law of pre-independence India - particularly from Allah Abad High Court and is now abundantly available from our own High Courts of Sind and Baluchistan . There this law has been successfully applied for long time by the Civil Courts. As a result of very scrupulous adherence to Islamic Law and Principles in the field of Shufa, frivolous litigation in this field was controlled many years ago. And it is for that reason that the cases coming to the Courts in the said two Provinces on the subject of pre-emption were very small in numbers as compared to Punjab and N.W.F.P., where the laws enacted on the basis of other considerations and in the spirit of anglo saxon jurisprudence, gave rise to unscrupulous and uncontrolled litigation. With the foregoing remarks these appeals are dismissed. There shall be no order as to costs. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1991 SC 532 [Appellate Jurisdiction] PLJ 1991 SC 532 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND ABDUL SHAKURUL SALAM, J MUHAMMAD IQBAL-Appellant SC versus Mst. ROSHAN BIBI-Respondent Civil Appeal No.791 of 1989, dismissed on 27£.1991. [On appeal from judgment dated 123.1989, of Lahore High Court, in C.R. 420-D of 1989.] Redemption of mortgage™ —Declaration—Suit for-Decree passed in and affirmed in appeal and revision- Challenge to-Period fixed in mortgage deed was 40 years prior to which respondent ady could oot have sought redemption—It appears as if she must have been inveigled into such an unfair agreement—Possibility cannot be excluded that period so ixed in 1960 was so fixed to visualise that respondent lady may not be able to survive-Appeal dismissed. [P.534&535JA&B PLJ1990SC13//. Mr.Naveed Shehtyar, Advocate, Supreme Court, and Mr.Mahmood A.Qunshi, AOR for Appellant. MrSamad Mahmood, Advocate, Supreme Court, and Sh. Salahuddin, AOR for Respondent. Date of hearing: 27.8.1991 judgment Muhammad Afzal ZuIIah, C J.~This appeal through leave of the Court is directed against the judgment dated 123.1989 of the Lahore High Court; whereby the appellant's Civil Revision arising out of a suit for declaration was dismissed. Leave grant order is as follows:- The dispute between the parties in this petition for special leave to appeal is in respect of a house situate in Gujrat City . It was evacuee property and was transferred to the respondent by the settlement authorities. On 27.5.1960, she mortgaged it with possession with the petitioner for a sum of Rs.6000/-. Later, by a sale deed dated 21.11.1966, she allegedly sold it to the petitioner for a sum of Rs.7000/-. "On 2.1.1984, she filed a civil suit seeking declarations to the effect that she was still the owner of the house in dispute and that the sale deed allegedly executed by her was bogus and a forgery. By way of consequential relief, she sought possession of the house on payment of the mortgage amount. The suit was resisted by the petitioner. After considering the evidence of the parties, the trial Court held that the sale deed was a forgery. Accordingly, it decreed the suit and directed the petitioner to hand over possession of the house to the respondent after receiving the mortgage amount and the expenses he had incurred in reconstructing the same. The petitioner filed an appeal which was dismissed by Additional District Judge at Gujrat. He then filed a revision petition in the High Court but that too met with no success. He now seeks leave to appeal from this Court. "In support of this petition, learned counsel for the petitioner states that even though the sale deed had been found to be a forgery, yet there was no dispute about the genuineness of the mortgage deed. In accordance with the terms of the mortgage deed the right of redemption could not be exercised before the expiry of 40 years. That being so, the direction given by the Courts that he should surrender the possession of the house after receiving the mortgage amount, even though the period of 40 years had not expired, was clearly illegal. "The contention raised by the learned counsel for the petitioner needs examination". Learned counsel for the appellant raised two-fold contention. One, that the redemption could not take place prior to the expiry of 40 years period mentioned in the mortgage deed. And secondly, that there was no justification for withdrawing the relief granted by the trial Court to the appellant regarding the compensation for the construction/re-construction by the appellant in the property in dispute. In so far as the first contention is concerned, we having seen the mortgage deed are of the view that the period fixed in the mortgage deed; namely, 40 years prior to which the respondent lady could not have sought redemption is not only very harsh but also un-conscionable. And when looked at the fact that this extra ordinary concession was being obtained from a female, it appears as if she must have been inveigled into such an unfair agreement. One possibility cannot be excluded that the period was so fixed in i960 so as to visualise that the respondent lady may not be able to survive the period fixed in the mortgage deed. And if, she would have died what could have happened as a consequence, vis-a-vis, the mortgage deed, need not be imagined. We are satisfied that the mortgage deed in question is hit by the rule laid down in the case of Ghulatn AH v. Mst. Ghulam Sarwar NaqviffLJ 1990 SC 139). Accordingly, the condition relied upon by the learned counsel and regarding which leave to appeal was granted shall not operate against the respondent. The first argument stands repelled. The second argument was not considered fit enough to grant leave to appeal in that behalf. However, we questioned the learned counsel about the amount spent by the appellant's side on the construction. According to him it is not only the claim of the petitioner but "also the admission of the lady respondent that about Rs.4,00,000/- were incurred on the reconstruction. When questioned about the area and the total number of rooms, the learned counsel, after receiving instructions from his client, replied that the construction is of 3-4 rooms in a plot of about 5 marlas. The area, however, was disputed as being 3-4 marlas. The construction was allegedly made about 20 years ago. If this is the construction, the admission of the amount (asserted by the appellant's side) made by the lady is another proof positive of the fact that she must have been misled to make such a statement. The claim made by the appellant besides being extra ordinary was not made a point for grant of leave to appeal. There is no force in this appeal. The same, accordingly, is dismissed. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 535 PLJ 1991 SC 535 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH, CJ and abdul shakurul salam, J ALTAF HUSSAIN-Appellant versus ABDUL MAJEED-Respondent Civil Appeal No.789 of 1989, dismissed on 27.8.1991. [On appeal from judgment dated 3.5.1989, of Lahore High Court, Multan Bench, in R.S A. No.4 of 1982.] Concurrent findings- —Pre-emption—Suit for-Whether custom of pre-emption prevailed in locality wherein suit property is located—Question of~There is very strong evidence relied upon by rict Judge and High Court in rendering concurrent findings of fact in favour of respondent/plaintiff-Held: While holding that there is no justification to set aside concurrent ings of fact rendered against appellant, it is necessary to observe that it is not always necessary that a son, when filing a suit for pre-emption, would be doing so either in ollusion with father/vendor or for benefit of a person other than pre-emptor—Appeal dismissed [Pp.536&537]A,B,C&D Mr.Riaz Anwar, Advocate, Supreme Court, and Mr.Mahmood A. Qureshi, AOR for Appellant. Mr.Saeed Akhtar, Advocate, Supreme Court, and S.Inayat Hussain, AOR for Respondent. Date of hearing: 27.8.1991. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court is directed against the dismissal of appellant's Regular Second Appeal by the High Court. Leave to appeal was granted as follows:- "Abdul Majeed filed a suit for possession through pre-emption hi the Court of Senior Civil Judge, Multan . It was contested. Issues framed. On 4.2.1978 the suit wasdismissed. "On appeal, the District Judge upset the judgment of the trial Court and decreed the suit. This led to the filing of a regular second appeal. That was dismissed byjudgment dated 3.5.1989. same. The petitioner filed an appeal which was dismissed by Additional District Judge at Gujrat. He then filed a revision petition in the High Court but that too met with no success. He now seeks leave to appeal from this Court. "In support of this petition, learned counsel for the petitioner states that even though the sale deed had been found to be a forgery, yet there was no dispute about the genuineness of the mortgage deed. In accordance with the terms of the mortgage deed the right of redemption could not be exercised before the expiry of 40 years. That being so, the direction given by the Courts that he should surrender the possession of the house after receiving the mortgage amount, even though the period of 40 years had not expired, was clearly illegal. "The contention raised by the learned counsel for the petitioner needs examination". Learned counsel for the appellant raised two-fold contention. One, that the redemption could not take place prior to the expiry of 40 years period mentioned in the mortgage deed. And secondly, that there was no justification for withdrawing the relief granted by the trial Court to the appellant regarding the compensation for the construction/re-construction by the appellant in the property in dispute. In so far as the first contention is concerned, we having seen the mortgage deed are of the view that the period fixed in the mortgage deed; namely, 40 years prior to which the respondent lady could not have sought redemption is not only very harsh but also un-conscionable. And when looked at the fact that this extra ordinary concession was being obtained from a female, it appears as if she must have been inveigled into such an unfair agreement. One possibility cannot be excluded that the period was so fixed in 1950 so as to visualise that the respondent lady may not be able to survive the period fixed in the mortgage deed. And if, she would have died what could have happened as a consequence, vis-a-vis, the mortgage deed, need not be imagined. We are satisfied that the mortgage deed in question is hit by the rule laid down in the case of Ghulam Alt v. Mst. Ghulam Sarwar NaqviffU 1990 SC 139). Accordingly, the condition relied upon by the learned counsel and regarding which leave to appeal was granted shall not operate against the respondent. The first argument stands repelled. The second argument was not considered fit enough to grant leave to appeal in that behalf. However, we questioned the learned counsel about the amount spent by the appellant's side on the construction. According to him it is not only the claim of the petitioner but 'also the admission of the lady respondent that about Rs.4,00,000/- were incurred on the reconstruction. When questioned about the area and the total number of rooms, the learned counsel, after receiving instructions from his client, replied that the construction is of 3-4 rooms in a plot of about 5 marlas. The area, however, was disputed as being 3-4 marlas. The construction was allegedly made about 20 years ago. If this is the constuction, the admission of the amount (asserted by the appellant's side) made by the lady is "Altaf Hussain now seeks leave to appeal against the aforesaid judgment of the Lahore High Court, Multan Bench."The dispute pertains to house No.339, Ward No.8-M, Gujjar Khadda, Mauza Taraf Ismail. "Learned counsel contended, inter alia, that the evidence led by the respondent-plaintiff was not sufficient to prove the essential ingredients of the custom. Hence the first appellate Court and the High Court erred in law in upsetting the finding of the trial Court pertaining to issue No.7, which was, "Whether the custom of pre-emption prevailed in the locality wherein the disputed house is situated? "The matter needs examination. Leave is accordingly granted". The only question to be decided is: whether, in this pre-emption matter 1 relating to n rban property, the custom of pre-emption prevailed in the locality [wherein the suit property is located? The two higher Courts i.e. the District Court and the High Court have held in favour of the respondent/plaintiff/pre-emptor that the suit property was located in a Mohallah which is included in Taraf Saddu Hasam wherein admittedly the custom of pre-emption did prevail. According to the appellant the property and the Mohallah concerned is situate in Taraf Ismail where no custom of pre-emption prevailed. Learned counsel for the appellant has raised all the arguments regarding the appreciation of evidence. It is not a case either of misreading or non-reading thereof. However, we in order to further satisfy ourselves, have gone through the relevant parts of the evidence relied upon or referred to by the learned counsel for the appellant. On the one hand there is very strong evidence in the form of a Municipal certificate prepared by the Patwari concerned and authenticated by a responsible Municipal Officer together with other supporting evidence which has been relied upon by the District Judge and the High Court in rendering concurrent findings offact in favour of the respondent/plaintiff, while on the other hand there is, prima-facie, strong evidence in favour of the appellant in the testimony of the Vendor (father of the appellant) who in his last answer to the question in examination-in-chief answered in the affirmative that; the suit property is situate in Taraf Ismail. This admission undoubtedly was with a view to see that the opponent of his son/pre-emptor must succeed. However, in so far as this statement is concerned it gives no benefit to the appellant as in cross-examination the father/vendor was compelled to admit that he notwithstanding being father had nursed an element of ill-will against his own son. His testimony, therefore, on the question in issue has (rightly) not been given muchimportance. While holding that there is no justification for this Court to set aside the concurrent findings of fact rendered against the appellant by the two higher Courts as compared to the trial Court we consider it necessary to observe that it is not always necessary that a son when filing a suit for pre-emption would be doing either in collusion with the father/vendor or for the benefit of a person other than the pre-emptor, and further that it depends upon the circumstances of each case. As result we dismiss this appeal with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 SC 537 PLJ 1991 SC 537 [Appellate Jurisdiction] Presentmuhammad afzal zullah CJ, saad saood jan and muhammad rafiq tarar, JJ GHULAM ABBAS-Petitioner versus MAZHAR ABBAS and another-Respondents Criminal Petition No.310-L of 1990, dismissed on 12.5.1991. [On appeal from Judgment, dated 10.6.1990, of Lahore High Court, in Criminal Appeal No.541 of 1987.] (i) Enhancement of sentence- —Murder-Offence of--Conviction for--Enhancement of sentence from life imprisonment to death sentence-Prayer for—In a case for enhancement of sentence where it depends upon indings of fact, or reversal thereof, ordinarily findings of fact would not be reversed-Held: In matters for enhancement to death penalty (or for setting aside acquittal) unless amongst thers, there is either misreading on non-reading of evidence on a very substantial point or there has been a miscarriage of justice, ordinarily there is no interference-­ Petition deserves ismissal [P.540]A&B PLD 1967 SC 185 1970 SCMR 688 and 1985 SC 11 discussed, (ii) Pakistan Penal Code, 1860 (XLVof 1860)- —S.300, Exceptions 1 & 2~Murder-Offence of—Conviction for—Enhancement of sentence from life imprisonment to death penalty—Prayer for—Exception 1 under Section 300 PPC rovides that culpable homicide shall not amount to murder if offender causes death while deprived of power of self-control by grave and sudden provocation~If condition of suddenness is not established but provocation is proved as grave, accused shall not be entitled to benefit under exception but he might be given lesser sentence under Section 302 PPC -Exception 2 relates to right of private defence~If conditions of exception 2 are satisfied, offence shall be altered to Section 304 Part I but if only some of conditions are satisfied, sentence could be reduced to lesser penalty. [Pp540&541}C Raja Muhammad Anwar, Senior Advocate, Supreme Court, and MrMuhammad Aslam Chaudliry, AOR for Petitioner. Respondents: Not represented. Date of hearing: 12.5.1991. order Muhammad Afzal Zullah, C J.~This petition for leave to appeal is directed against judgment of the Lahore High Court dated 10.6.1990; whereby, in a case of murder the sentence of death awarded to the convict/ respondent No.l was reduced to imprisonment for life. The petitioner has sought enhancement and restoration of the sentence to death. The plea which prevailed with the High Court was that the accused/convict "considered the deceased responsible for the death of his uncle". Earlier while accepting the prosecution case on the question of motive the learned Judges of the High Court had observed as follows:- "The motive is not disputed by the appellant. He has admitted that his uncle was murdered for which the deceased was tried and acquitted". In the F.I.R. also the motive mentioned is that the deceased was accused of the previous murder but he was honourably acquitted" uTl^/'' ^^^ • Learned counsel for the petitioner has contended and rightly so that there is considerable case law in support of the proposition that where murder is committed out of a sense of honour and family need on account of or rather in pursuance of the norms of human behaviour in a particular area, lesser'penalty might be more appropriate. In this line of authority learned counsel has cited the well known case ofAjun Shah v. The State (PLD 1967 Supreme Court 185) and others. The other line of authority is to the effect that private revenge cannot be regarded as a mitigating circumstance, learned counsel has cited the case ofMehr Muhammad and another v. The State (1970 S.C.M.R. 688) and a large number of cases falling in that line of authority. The learned counsel also stated that he has prepared the following list of cases which may fall in either line: 1. Mureed Ahmad v. The State (1987 S.CM JL 429) 2. Muhammad Din v. The State (1985 S.C.M.R. 625) 3. Muhammad Aslam v. The State (PLD 1985 S.C. 257) 4. Pervaizv.The State (1984 S.C.M.R. 848) •5. Muhammad Aslam alias Chhachhi v. The State (1982 S.CM.R. 1029) 6. All Khan v. The State (PLD 1980 S.C. 109) 7. Mokha v. The State (PLD 1978 S.C.10) 8. Mehr Muhammad and another v. The State (1970 S.CM.R. 688) 9. Ajun Shah v. The State (PLD 1967 S.C. 185) It will be of advantage to note what the learned Judges in the case of Ajun Shall also thought to be an element of revenge in cases like the present one. It was held that the convict in that case whose sentence of death had also been confirmed by the High Court, was a product of environment and the circumstances hi which he committed the act of murder were such that he had not only treated it as a matter of honour and tradition but also of "family duty to avenge the murder". In that very ase a further caution was given that the honourable Judges should not be deemed to have suggested even "for a moment that private revenge can be regarded as a mitigating circumstance". What they took pains to emphasize was that "the question of sentence in each case must depend upon he facts of the case" and that in the particular case (Ajun Shah) the criminality was not of a kind which could be visited with extreme penalty. The Supreme Court also visualised that if the circumstances noticed by the Supreme Court and mentioned in their judgment had been brought to the notice of the learned Judges of the High Court "perhaps they would not have confirmed the sentence of death". Accordingly the sentence was reduced to the lesser of the two penalties. This would show that in the case of Ajun Shah also an element of personal and private avenge noted in the case of Mehr Muhammad, was involved. Nevertheless in one case the sentence was reduced to the lesser penalty while hi the other it was considered as a matter of surprise "that the High Court did not in a case of this nature, think it fit to issue a rule for enhancement of sentence. But since there is no application before us either by the State or by the private informant for enhancement of sentence we do not desire to say anything further on this question". As is sometimes thought by some Members of the Bar, there is no conflict of authority on the subject under discussion. It was explained very vividly in the case alAjun Shah that the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such like cases. Tiie ratio in all these cases being that it depends upon the circumstances of each case to determine the very delicate balance between whether family honour and duties over took the human thought and action and whether the private revenge predominantly overtook such thought and action. To put it otherwise it is very delicate process of making a judgment and rendering a decision on such like most painful situations. The Judge has to go through the process of rationalization, and psychological analysis. By experience and knowledge of human nature he decides a difficult point: whether the family honour or for that matter a duty ends and private revenge takes over. In one case the lesser penalty and in the other the extreme penalty is then awarded. It also depends upon the stage when the question more seriously arises. If it is before the trial Court, the exercise for determining the sentence would be very extensive and the decision will be very much difficult either way. In the High Court the exercise is of a different nature to some extent. Again the shade of responsibility would be different when it is a question of confirmation of the death sentence than, when it is question of enhancement of the sentence, to death sentence. In the latter case the Judge may not like to be treated as a hang man; yet as warned in the case of Mehr Muhammad already noticed, such like considerations should not weigh with the Judges. At the Supreme Court level and to an extent at High Court level also while upholding death sentence it is governed by different principles and manner of judicial exercise; the reversal to the lesser penalty or enhancement to death sentence, are governed by other principles. These latter principles partake of all those rules which have been tabulated from the mass of case law in the case of Ghulam Sikandar v. Mamraz Khan and others (PLD 1985 S.C. 11). As in the case for enhancement of sentence where it depends upon he findings of fact or reversal thereof, ordinarily findings of fact would not be reversed. In matters like the present one for enhancement to death penally (or for setting aside acquittal) unless amongst others there is either misreading or non-reading of evidence on a very substantial point and/or there has been a mis­ carriage of justice ordinarily there is no interference. One test to determine: whether, there has been mis-carriage of justice would be to answer a further question; whether, the view taken by the lower Court on question of acquittal or reduction of sentence was impossible? In this case none of the tests is satisfied. We in the light of the foregoing discussion are unable to agree with the view that where ever private revenge forms an element in the crime the same by itself should prevent the Court from doing justice in matter of sentence as was done in the case ofAjun Shah and scores of other cases. This petition, therefore, merits dismissal. Before closing this order we would like to make two more remarks in the context of the subject under discussion. One, that in every case of sudden fight a definite element of revenge of graver or lesser intensity is involved. When it is grave it projects itself in the form of cruelty or un-usual act which may also be accompanied by undue advantage. When the intensity is lesser there are no such elements in the conduct of the accused. In the former case the accused could lose the right to lesser offence under Section 304 Part I PPC if the initial charge is of murder under Section 302 PPC. But in every such case the penalty of death is not always awarded. It has been ruled in a number of cases by the superior Courts that in case some of the conditions in the exceptions to Section 300 PPC are substantially satisfied but others are not then the least that the Court can do in such a difficult situation is that it may award lesser sentence but under the charge of murder; because, for acquittal from that charge and conviction for the lesser offence under Section 304 Part I PPC, all the conditions of an exception must be satisfied. Similar examples can be cited from the other exceptions under Section 300 PPC. Exception 1 provides that culpable homicide shall not amount to murder if the offender while deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation Supposing in a given case the condition of suddenness is not established but that of the provocation being grave is satisfied the accused shall not be entitled to the benefit under the exception. He, if convicted under Section 302 PPC might be given lesser sentence on account of one of the conditions of the exception having been satisfied. Similar example can be cited regarding exception No.2 which relates to exceeding the right of private defence. In a given case if the conditions of exception 2 are satisfied the offence shall be altered to Section 304 Part I PPC but in case some of the conditions are satisfied and the others are not satisfied, while maintaining the conviction under Section 302 PPC the sentence could be reduced to the lesser penalty. These principles could apply mutatis mutandis to the cases of the present type as an element of revenge is inherent in all these I exceptions. In the light of the foregoing discussion this petition is dismissed and leave toappeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1991 SC 541 PLJ 1991 SC 541 [Appellate Jurisdiction] Present: Dr. nasim hasan shah, abdul SHAKURUL salam and muhammad ajzal lone, JJ QADIR and another-Appellants versus THE STATE-Respondent Criminal Appeal Nos.142 & 143 of 1987, accepted on 28.4.1991. [On appeal from judgment and order of Lahore High Court, dated 1.7.1985, in Criminal Appeal No.238 of 1983.] Criminal Procedure Code, 1898 (V of 1898)-- —S382-B—Murder-Offence of-Conviction and sentence for life imprisonment-whether benefit of Section 382-B is not available to a person who is awarded life mprisonment-Question of-Beneficial provisions need to be construed liberally-Provision of Section 382-B makes no distinction between imprisonment for life or for horter period—Held: Imprisonment is imprisonment whether f or iif e or a shorter period-Benefit of Section 382-B of CrP.C. allowed. [Pp.542&543]A,B&C PLD 1964 Lah. 461 over-ruled. Mr^4..RArshud, Advocate, Supreme Court for Appellants. Mr.CM. Latif, Advocate, Supreme Court for State. Date of hearing: 28.4.1991. judgment Abdul Shakurul Salam, J.-This appeal by leave arises on the following circumstances:- 1. Qadir and Bashir appellants were found guilty under Section 302/34 PPC for murdering Yaseen and under Section 307/34 for murderous assault on Irshad PW 7. They were sentenced for the former offence under Section 302/34 PPC for imprisonment for life and fine of Rs.1,000/- each, in default of payment of fine to further four months rigorous imprisonment. Under Section 544-A Cr.P.C. they were ordered to pay compensation of Rs.5000/- each, in default of payment to suffer six months rigorous imprisonment each. If compensation realized it was to be paid to the heirs of the deceased. For the latter offence under Section 307/34 PPC., they were sentenced to four years rigorous imprisonment each and fine of Rs.500/- each, in default of payment of fine, to further suffer three months R.I. each. Under Section 544-A Cr.P.C. they were ordered to pay compensation of Rs.500/- each, in default to suffer further three months rigorous imprisonment each. If compensation realized it was to be paid to Irshad PW. Both the substantive sentences of imprisonment were to run concurrently. Further, it was ordered that "the period during which the accused have already been in judicial lock up in this case, shall be counted towards their sentence of imprisonment". This is vide order of the learned Sessions Judge, Okara, dated 24.4.1983. 2. While dismissing the appeal of the convicts, a learned Judge of the Lahore High Court though observed that 'I feel that Section 382-B Cr.P.C. is applicable to life cases', yet in view of Full Bench of the High Court reported Zulflqar AH . The State (PLD 1964 Lah. 461) wherein it was laid down that benefit of Section 382-B CrJP.C. cannot be granted to a person who is sentenced to imprisonment for life as the latter imprisonment is distinct from other sentences of imprisonment, the learned Judge revoked the benefit of Section 382- B Cr.P.C. granted to the appellants by the learned trial Court. This is vide order dated 1.7.1985. 3. Leave was granted by this Court "to consider the question of applicability of provisions of Section 382-B Cr.P.C. to cases of persons sentenced to imprisonment for life", vide order dated 14.6.1987. 4. Learned counsel for the appellants tried to contest the conviction on merit but this he cannot do as lerve was granted to consider the question of applicability of Section 382-B Cr.PC only. In this behalf he contended that the provision does not make any distinction whether the sentence of imprisonment is for life or shorter period. Secondly, this Court has been granting benefit of Section 382-B Cr.PC in cases where persons have been sentenced to imprisonment for life. Section 382-B Cr.PC provides as follows:- "Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence". It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial of released on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration hi computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which rquires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to be construed liberally. These are axiomatic principles. Keeping the aforesaid in view, since the provision makes no distinction whether the sentence to be passed is for imprisonment for life or for shorter period, thebenefit granted to an accused that the period during which he was detained in custody shall be taken into consideration need not be whittled down. The learned Judge in the High Court withdrew the benefit of Section 382-B Cr.PC granted to the appellants by the learned trial Court in view of the Full -Bench decision of the High Court in the case of ZulfiqarAli v. The State (PLD 1984 Lah. 461) wherein it was laid down that benefit of Section 382-B Cr.PC was not available to an accused person who was sentenced to imprisonment for life. It may, however, be noted that in the precedent case this question was not directly involved. The accused in that case was sentenced to imprisonment for 10 years. Secondly, the distinction drawn between a sentence of imprisonment for life or imprisonment for a shorter period is rather specious. Imprisonment is imprisonment - whether for life or for a shorter period. This Court has consistently been granting benefit of Section 382-B Cr.PC to a convict sentenced for imprisonment for life in its ordinary criminal jurisdiction. n view of the above, the order of the learned Judge of the High Court | withdrawing the benefit of Section 382-B Cr.P.C. granted to the appellants by thelearned trial Court is set aside and that of the learned trial Court restored with the result that the appellants shall be given the benefit of Section 382-B Cr.PC in computing the period of imprisonment to be suffered by them. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 SC 544 PLJ 1991 SC 544 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND SAAD SAOOD JAN, J Mirza BASHIR MUHAMMAD and others-Appellants versus MUHAMMAD ALI and others-Respondents Notice in Civil Appeal No.633 of 1988, decided on 17.6.1991. (i) Security- —Supreme Court—Appeal to-Non-deposit of security-Effect of—Question of security is one of discretion and affecting rights of a party-Held: It is considered proper to ondone delay in depositing security-Time for depositing security extended. [P.547JA (II) Supreme Court Rules, 1980- —O.IV R.15 read with Legal Practitioners and Bar Councils Act,1973, Section 23~Supreme Court-Appeal to~Person filing appeal not Advocate of Supreme Court-Effect f-When called upon to explain, respondent candidly and frankly stated that he was not aware of law that an appeal in Supreme Court can only be filed by an Advocate on ecord or in person—He was profoundly sorry for it and thus he also apologised-President of Bar Association recommended a lenient view to be taken-Held: On ecommendation of President of Bar Association, lenient view is taken and delinquent is burdened with token cost of Rs.50/- each to be paid to Presidents of two Bar Associations. [Pp.547&548]B&C Nemo for Appellants. Mr. SM.Zamir Zaidi, Advocate, Supreme Court for Respondent Nos. 4&5. Nemo for other respondents. Mr. M.Saeed Ansari, President High Court Bar Association Mirza Rashid Ahmad Raza, Advocate, High Court (on Notice). Mr.M~A.Qureshi, Advocate, AOR Association. Date of hearing: 17.6.1991. order Muhammad Afzal Zullah, CJ.--This case has been taken up against Mirza Muhammad Rashid Ahmad Raza, Advocate High Court who in an irregular and improper manner filed a petition in this Court despite the fact that he is not an Advocate-on-Record nor has he ever been allowed to practise as an Advocate of this Court. The note submitted by Assistant Resgistrar, Lahore and another note submitted by the Registrar of this Court, on the above question as also the failure of the appellants to deposit the amount of security well in tune, are reproduced below:- The petition out of which the present appeal has arisen was filed on 18.7.1982 by Mirza Bashir Muhammad and two others through Mirza Muhammad Rashid Ahmad Raza, Advocate high Court (their special attorney who is also son of petitioner No. 1). Alongwith the petition a special power of attorney whereby Mirza Muhammad Rashid Ahmad Raza, Advocate was authorised by the petitioners/appellants to pursue the case was also filed. By this special power of attorney the special attorney namely Mirza Muhammad Rashid Ahmad Raza, Advocate (not of the Supreme Court) was authorised to pursue the case by way of appointing an Advocate on Record to file the petition La the Supreme Court as according to Rule 5, Order VII, Supreme Court Rules, 1980 the petition could only be filed by the party in person or through an Advocate on Record duly appointed by the party. This fact was not taken notice of at any stage. Even at the time of hearing of the petition (i.e. on 14.9.88) this fact was not brought to the notice of the Court and the presence of Mirza Mohammad Rashid Ahmad Raza (Advocate) was shown as "In person" although he was not the petitioner and further there was no application on the file requesting permission to argue the case as a special attorney of the petitioners. Consequently leave to appeal was granted and the petitioners were directed to furnish security in the sum of Rs. 5000/-. "Mirza Mohammad Rashid Ahmad Raza filed a challan in the Supreme Court as a proof that the security amount has been deposited. On scrutiny it was found that the security amount had been deposited in the National Bank of Pakistan Okara whereas it should have been deposited in the State Bank of Pakistan as required under Order XIII, Rule 8 of the Supreme Court Rules, 1980. This challan was returned to him on 18.10.1988. It was further noticed that Mirza Mohammad Rashid Ahmad Raza who had filed the petition and also appeared before the Court at the time when leave to appeal was granted, was in fact not an Advocate of the Supreme Court and as such he could not plead or argue the case as special attorney of the petitioners before the Supreme Court. In the office note it was pointed out that the petition had not been properly filed and argued. "On 22.2.1990 a notice was issued to the petitioners/appellants informing them that the security amount which was to be deposited within 30 days from the grant of leave to appeal had not been deposited and that in case the said security amount had been deposited a proof to this effect may be submitted within a fortnight. A copy of this notice was also sent to the special attorney (Mirza Mohammad Rashid Ahmad Raza). In reply to this aotice Mirza Mohammad Rashid Ahmad Raza sent a letter stating that the security had been deposited in the State Bank of Pakistan but he did not submit any proof to show that the security had been deposited by him as required by the Supreme Court Rules, 1980. On 27.5.1991 the appeal was fixed before the Court but was adjourned. It is therefore, submitted that the special attorney Mirza Muhammad Rashid Raza (Advocate High Court) under the special power of attorney could only engage an Advocate on Record to file the petition in Supreme Court on behalf of the petitioners under Rul 5, Order VII Supreme Court Rules 1980 but could not file the petition "In person" as petitions, appeals or other documents can only be presented in person by the party or by an Advocate-on-Record duly appointed by the party. 'Under Rule 15 Order IV, Supreme Court Rules 1980 no Advocate other than the Advocate-on-Record is entitled to act for a party in any proceedings in the Court. Under the proviso to Section 23 of the Legal Practitioners and Bar Councils Act 1973 the right of a person to appear, act and plead before the Court is subject to the Supreme Court Rules. And under Section 28 of the Legal Practitioners and Bar Councils Act 1973 a person shall be qualified to be admitted as an Advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court. Under Section 22 of the Act no person is entitled to practice the profession of law unless he is an Advocate. The word "Advocate" as interpretted in O.I. Rule 1, SCR 1980 means a person entitled to appear and plead before the Supreme Court. Under the proviso of Section 23 of the Act "No person shall call himself or hold himself out as an Advocate of the Supreme Court until he has signed the Role of Advocates kept under the Rules of the Supreme Court and the right of a person to appear, act and plead before that Court shah" be subject to the said Rules. "So far as Mirza Muhammad Rashid Ahmad Raza is concerned he could not file and appear before the Court under special power of attorney as the petition could only be filed by the petitioners in person or by an Advocate-on-Record who could be appointed by him under special power of attorney obtained from the petitioners. "He not being an advocate of the Supreme Court could not appear and argue the case of the petitioners showing himself "in person". Moreover, if he was to appear as special attorney of the petitioners he should have first bring (?) this fact to the kind notice of the Court and should not have get (?) his attendance marked "in person". "So far as the security is concerned it has not been deposited in the State Bank of Pakistan under the Head of the Supreme Court. He deposited the security in the National Bank of Pakistan where the Supreme Court does not have any account. Therefore, there are two deficiencies in this appeal firstly the petition out of which the present appeal has arisen was not properly filed and argued, and secondly the security has not been deposited, as it has not been deposited in the State Bank of Pakistan as required by the Supreme Court Rules, 1980." "There are two points in this case, namely;- (/) whether the security amount of Rs. 5,000/- was deposited within the prescribed period of 30 days; and (»') whether Mirza Muhammad Rashid Ahmad Raza could file the •petition and appear before the Court on behalf of the appellants on the basis of general power of attorney. "As regards the security amount, leave to appeal was granted in this case on 14th September, 1988 and the security amount of Rs. 5,000/- was required to be deposited within the period of one month from the date of grant of leave to appeal. No proof has so far been produced on behalf of the appellants for the deposit of the security amount in the State Bank of Pakistan under the relevant Head, but it appears from the Pass Book of the Treasury Officer, Lahore, that the security amount was deposited on 29th Nov., 1988 i.e. 2 1/2 months after the date of grant of leave to appeal. Under rule 7, Order XIII, Supreme Court Rules, if the security amount is not deposited within a period of one month from the date of grant of leave to appeal, the leave stands rescinded unless otherwise ordered by the Court. Therefore, leave to appeal in this case stood rescinded and the appellants have taken no step to get the delay condoned by the Court. "On the second point, it is submitted that Mirza Muhammad Rashid Ahmad Raza could not himself file the petition for leave to appeal and appear before the Court on behalf of the petitioners/appellants on the basis of general power of attorney given to him by the petitioners/appellants. He should have engaged an Advocate-on-Record/Advocate to do so in this Court. It is provided in rule 5, Order VII of the Rules that "all plaints, petitions, appeals and other documents shall be presented in-person by the party or by an Advocate-on-Record duly appointed by the party". The definition of the "Party" given in Order I of the Supreme Court Rules, does not include a person holding a special power of attorney. "Therefore, filing of the petition for leave to appeal by Mirza Muhammad Rashid Ahmad Raza was irregular as was his appearance before the Court on behalf of the petitioners/appellants. However, this irregularity may be condoned and at the appeal stage he may not be allowed to appear before the Court on behalf of the appellants. He may be required (1) to engage an Advocate-on-Record/Advocate of this Court to appear and plead before the Court on behalf of the appellants; and (2) to move the Court for condonation of delay in depositing the security amount." otice was issued to the President of the High Court Bar Association as well as to the President of A.O.Rs. Association to assist the Court on both the above issues. The question of security is one of discretion and affecting rights of a party, i We considered it proper to condone the delay in depositing the same. The time \ for depositing the security amount is extended. Let it be deposited now. On the other question which is very serious, the President of the High Court Bar Association addressed elaborate arguments to support his plea that there cannot be any agent between the litigant and the Court in addition to those permitted under the Rules. He by making reference to Order IV Rule 26, Order VII Rule 5 and Order XVII Rule 4 contended that a petition could be filed in this Court either by a litigant hi person or by an A.O.R. Intermediary agents as the respondent acted, in this case for the appellants, when filing the petition for leave to appeal, is not visualised by the Rules. Arguments were also advanced by Mr. Mehmood A.Qureshi the President of the A.O.R. Association. Both the learned counsel relied on M. Krishnammal Vs. T. Balasubramania Pillai, Power of Attorney Agent ofM. Krishnammal (A.I.R. 1937 Madras 937). Mr. Asad Ullah Siddiqui, a senior Advocate of this Court who was present in connection with another case also supported the learned Presidents of the respective Bars and cited Syed Muhammad Hussain Vs. Messrs Pakistan Tobacco Co. Ltd. and another (PLD 1980 Supreme Court 80) in support of their position. The plea of the respondent that although he himself is not a party in the case he innocently acted as agent for his father who is one of the appellants, was also adversely commented upon by all the learned counsel. He further stated that he had earlier also filed a petition on behalf of his father which was dismissed. He tried to make use of this additional factor as a support for his alleged impression that the Rules of the Supreme Court did not prohibit it. According to both the Presidents of the Bar Associations the Rules did not make any distinction between litigant client who is related to a counsel and the one who is not related. Accordingly, all of them insisted that unless the appellants in this case want to appear in person and not through the agency of the respondent, if they want somebody else to act on their behalf he has to be an A.O.R. of this Court who would either appear as Advocate of the Court which is permissible under 1980 Rules of this Court or he would engage another counsel. When called upon to explain, the respondent candidly and frankly stated that B he was not aware of the law on the point and that he has committed a mistake. He was profoundly sorry for it and thus he also apologised. The President of the Bar Association then made a statement that he personally knew the respondent and that he would recommend that a lenient view be taken otherwise he might lose his right to practice in the High Court also. He personally took the responsibility about the conduct of the respondent. We while holding that the respondent illegally and improperly acted on behalf of the appellants in this case as an agent for filing the petition in this Court and then pursuing it without engaging an A.O.R. even till today, however, on the recommendation of the President of the Bar Association, which is permissible for the Court to entertain in matters of discipline including those like the present one as well as those of contempt because all of them involve an element of assurance for future, take a lenient view of the matter. He is burdened with token cost of Rs. 50/- each to be paid to the two Presidents of the two Bar Associations. He and the appellants are further directed to immediately make arrangements for engaging an A.O.R. if the appellants want to be represented through duly constituted agent before the Court. And further if it is intended to engage any other Advocate of this Court to argue the matter, the processing in that behalf should also be completed as soon as possible. The deposit for security has already been directed. This disposes of the notice against the respondent. The appeal shall now come up for hearing as already fixed. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 SC 548 PLJ 1991 SC 548 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH, CJ and abdul shakurul salam, J SECRETARY, BOARD OF REVENUE PUNJAB, LAHORE and another- Appellants versus KHALID AHMAD KHAN-Respondent Civil Appeal No.496 of 1988, decided on 22.8.1991. [On appeal from judgment dated 9.10.1982, of Lahore High Court, in C.R. No.l358-D of 1982.] Civil Procedure Code, 1908 (V of 1908)- —O.VIII R.10--Non-submission of written statement-Pronouncement of judgment-Challenge to~Rule laid down by Supreme Court in Sakhawatuddin's case regarding "requirement" of court and a speaking order in that behalf is lacking in this case-Accordingly impugned judgments merited to be set-aside-Amount involved is only Rs.15000/- and appellants seem to have already spent much more than what they had to pay to decree-holder out of public exchequer as expenses on this litigation-Held: Although law point has been decided in favour of appellants, yet in interest of justice to avoid further heavy burden on public exchequer if case starts afresh before trial court, there is no alternative but to withdraw leave grant order. [P.SSQA&B PLJ 1987 SC 537 rel. Sh-Abdul Majid, Advocate, Supreme Court, and Rao Muhammad Yousaf Khan, AOR for Appellants. Nemo for Respondent. Date of hearing: 22.8.1991. judgment Muhammad Afzal Zullah, C J.-This appeal through leave of the Court is directed against the dismissal of the appellants' Civil Revision by the High Court It had arisen out of the pronouncement of judgment under Order VIII Rule 10 C.P.C. on the non-submission of written statement by the appellants as defendants in a' suit for recovery of money. Leave to appeal was granted to examine: "whether, the learned lower Courts acted in accordance with the law declared in Sakhawatuddin Vs. Muhammad Iqbal (PLJ 1987 SC 537). The relevant part in the case of Sakhawatuddin relied upon by the learned counsel for the appellants reads as follows:- "it is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant. As a right without any formal permission of the Court. (Rule 1). When it is so required by the Court to file a written statement. (Rule 1 and Rule 9) (1) When under some circumstances it is by the leave of the Court. (Rule 9) "It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos. 1 and 3 above. But penal consequences of 'pronouncement of judgment against' him when the defendant fails to file written statement when 'so required' - - as is indicated in item No. 2 above, would follow. - - "There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was 'required', by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word 'required' is not without significance. It does not permit a routine order without application of mind to the 'requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under rule 9, that would not satisfy the law regarding the 'requirement' of the Court. It is only the written statement which is 'required' and that too by 'the Court' by a speaking order, which would entail the penal consequences of Rule 10. In these two cases it has been admitted before us that these requirements have not been fulfilled". We having perused the relevant Order-sheet, are satisfied that the rule laid down by this Court reproduced above regarding the "requirement" of the Court and a speaking order in that behalf is lacking in this case. Accordingly, the impugned judgments merited to be set aside. But the matter does not end here. As is obvious from the facts of this case the amount involved is only Rs. 15,000/-. The decree passed in respondent's favour is based on the norms of justice. We also noticed that the appellants seem to have already spent much more than what they had to pay from public exhequer to the respondent/decree-holder, as expenses on this litigation. This, of course, includes the payment of fees to both .the learned counsel who have appeared before us. It is strange that instead of paying Rs. 15,000/- as judgment-debt to the respondent towards the discharge of the decree in case where substantial justice has been done, the Government has chosen to spend much more on this litigation. Accordingly, although the law point has been decided in favour of the appellants yet in the interest of justice we do not want to inflict further heavy burden on the public exchequer; which would indeed be burdened with more expenses. It is not known how much the appellants would have to spend if the case starts before the trial Court afresh and reaches its logical conclusion. In the light of what has been stated above we are left with no alternative but U to withdraw the leave grant order and dispose of the matter accordingly. There | shall be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1991 SC 550 PLJ 1991 SC 550 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND A.S. SALAM, J Mst. GHULAM FATIMA and another-Appellants versus Mst. SABLAN and 7 others-Respondents Civil Appeal No.400 of 1989, accepted on 20.8.1991. [On appeal from judgment dated 26.10.1985, of Lahore High Court, Multan Bench, in FA.O. No.40 of 1982.] Civil Procedure Code, 1908 (V of 1908)- —O.X R.4(2)—Appearance of plaintiff in person—Failure to comply with order- -Consequences of~It is obvious from language of O.X R.4(2) that even when, after due inquiry, court comes to conclusion that there was no lawful excuse for party in default, it is discretionary with court either to pronounce judgment or pass some other order-Held: Admittedly parties concerned are females and one of them was admittedly a minor, therefore, it was not at all a fit case for exercise of discretion against both female plaintiffs-Held further: As it has not been established beyond reasonable doubt that all necessary conditionscontained in O.X R.4(l) stood satisfied, order passed by trial Court and restored by High Court, cannot be sustained-Appeal accepted. [P.552JA&B PLJ1990SC139re/. Malik Muhammad Nawaz, Advocate, Supreme Court, and Mr.Tanvir Ahmad, AOR for Appellants. Mr.Zafar Yasin, Advocate, Supreme Court, and Mr.Ejaz Ahmad Khan, AOR for Respondents 1, 3 & 4. Other Respondents: Ex-pane Date of hearing: 20.8.1991. judgment Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court is directed against the acceptance by the High Court of first appeal against an order filed by the espondent/defendants' side before it. Leave to appeal was granted to the plaintiffs' side in the following circumstances: ">• During the trial of the suit the appellants as plaintiffs were required to appear personally "so as to answer certain questions". The order in this behalf was purported to have been passed under Order X Rule 4(2), C.P.C. On their assumed failure to comply with the said order consequential penal action was taken against them and they were non-suited. It may be mentioned here that the appellants who allegedly were minors at the relevant time and being ladies had suffered similar treatment before a forum of the Revenue hierarchy. At that stage also their case could not be decided on merits. Their case having met the same fate before the Civil Court , they filed an appeal before the District Court which was accepted and an order of remand was passed for further proceedings. The respondents' appeal against the said order was allowed by the High Court on the same ground as it prevailed with the learned trial Judge. It has been observed In the impugned judgment as follows:- "The absence of the next friend of Lai Khatoon and Ghulam Fatima on two dates when they were ordered to appear in person entailed the penalty embodied in Order X Rule 4(2) of the C.P.C. I, therefore, accept this first appeal against order ". Leave to appeal was granted to examine: "whether, the question of exercise of discretion allowed by the second part to Sub-rule (2) of Rule 4 of Order X C.P.C. did not require the Court to examine it specifically; whether, the discretion should be exercised against the plaintiffs females; in the circumstances of this case". Order X C.P.C. reads as follows:- "Order X. Examination of Parties by the Court: "4. Consequence of refusal or inability of pleader to answer.~() Where the pleader of any party who appears by a pleader or any such person to answer any aterial question relating to the suit which the Court is of opinion that the party whom he represents ought to anwer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in parson on such day. "(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit". It is obvious from the language used in Sub-rule (2) of Rule 4 that even when after due inquiry the Court comes to the conclusion that there was no lawful excuse for the party hi default, it is discretionary with the Court either to pronounce the judgment against that party or make such order in relation to the suit as it thinks fit. In this case admittedly the parties concerned are females and even if the question of minority of one of them at the relevant stage is not clear, the other was admittedly a minor, therefore, it was not at all a fit case for exercise of discretion against both the female plaintiffs. See Ghulam Alt and 2 others v. MsLGhulam SarwarNaqvi (PLJ 1990 Supreme Court 139). There is another aspect of the matter. Sub-rule (2) of Rule 4 is admittedly a penal provision and has to be construed accordingly. Therefore, (/) the non-compliance; as well as (h) the lawfulness of the order passed under Sub-rule (1), has to be strictly established. Learned counsel appearing for the respondents in this case to be fair to the female plaintiffs, candidly admitted that it was not very clear: whether, the counsel of the plaintiffs and/or the person who represented them for instructing and accompanying the lawyer had in fact refused or had shown their in-ability "to answer any material question relating to the suit". All these and other conditions particularly those requirements which have been underlined, needed to be satisfied before taking penal action under Sub-rule (2) of Rule 4 C.P.C. As it has not been stablished, beyond reasonable doubt, that all the necessary conditions contained hi Sub-rule (1) of Rule 4 stood satisfied in this case, therefore, for this additional eason also order passed by the trial Court and restored by the High Court cannot be sustained. This, appeal is allowed. The case is remanded to the trial Court for trial f the suit on merits in accordance with the law. There shall be no order to costs. (MBC) (Approved for reporting) Appeal accepted Here in italics THE END

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 17 [Punjab Service Tribunal, Lahore] Present: muhammad mehmud aslam pirzada, chairman and abdul hamid khan, member MUHAMMAD ASHRAF-Appellant Versus MUMBER (REVENUE) BOARD OF REVENUE, and another-Respondents Appeal No. 105 of 1990, accepted on 22.7.1990 Service Appeal-- -—Chowkidar-Removal from service of-Challenge to~Non-supply of copy of enquiry report—Effect of—While serving show cause notice on appellant, authorised officer did not supply him copy of enquiry report-Omission means that a fair procedure was not adopted and adequate opportunity was not given to accused civil servant of presenting his case before authorised officer-It is misconception that copy of enquiry report could be supplied only in cases where major penalty is to be imposed-No proper notice was given to appellant by appellate authority and appeal was not disposed of on merits-Sufficient and genuine efforts were not made to make contact with appellant and notice was not even published in newspapers to complete formality-Held: These are material omissions which have rendered proceedings invalid—Appeal accepted. [Pp.l8&19]A,B&C PLD 1981 SC 545 rel. Mr. Muhammad Yasin Bhatti, Advocate for Appellant. Mr. Manzoor Hussain, District Attorney for Respondents. Date of hearing: 25.6.1990 judgment Abdul Hamid Khan, Member .-Muhammad Ashraf, ex-Chowkidar, Commissioner's Office, Faisalabad has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974 against the order dated 29.8.1988 passed by the Commissioner, Faisalabad (Respondent No.2) under which the major penalty of removal from service was imposed on him and order dated 12.9.89 under which his appeal against the order of the Commissioner, Faisalabad was filed by the Member (Revenue). B.O.R. (Respondent No.l). 2. It is stated that while in service the appellant had permitted his quarter situated in the premises of the Commissioner's Office to be used for immoral purposes by one Sardar Muhammad Dogar, a Police Official who was then posted as Gunman to the D.C. Faisalabad. During a raid conducted by the Police. Sardar Muhammad Dogar and a woman were found in compromising position in the appellant's quarter. A departmental enquiry was held against the appellant under the Punjab Civil Servants (E&D) Rules, 1975 as a result of which he was found guilty and was awarded the major penalty of removal from service by respondent No.2 who was the authority in this case. The appeal filed by him against the above order before respondent No.l (Appellate Authority) was filed as the appellant's address was not known and the summons could not be served on him. 3. We have heard the counsels of both the parties and have also carefully perused the relevant record produced before us. The learned counsel for the appellant has contended that the impugned orders are void ab initio and liable to be struck down on the following grounds: (/) The enquiry officer had not recorded the statements of many crucial witnesses such as Sardar Muhammad Dogar etc. (h) The appellant had been prevented from cross examining some of the witnesses and from producing defence witnesses. (Hi) He was not supplied a copy of the enquiry report alongwith the show cause notice. (iv) The immoral act on the part of the police official, Sardar Muhammad Dogar, had not been proved by any enquiry conducted by the police nor was a case registered against him under the Hudood Ordinance. (v) The Appellate Authority (Respondent No.l) did not issue any notice for disposal of the appeal and filed it in the absence of the appellant without going into its merits. 4. The learned D.A. valiantly fought to rebut the above contentions of the learned counsel for the appellant and put up a strong defence on behalf of the respondents. We, however, do not feel inclined to accept his point of view on two important objections raised by the learned counsel for the appellant. It is on record that while serving the show cause notice on the appellant before recommending to the authority the imposition of major penalty, the authorized officer did not supply the accused civil servant with a copy of the enquiry report. According to the learned counsel for the appellant, it was incumbent on the authorised officer to provide a copy of the enquiry report alongwith a show cause notice and that this lapse on the part of the authorised officer has seriously A prejudiced the defence of the appellant. He contended that this was a material irregularity which has vitiated the proceedings. The omission means that a fair procedure was not adopted and adequate opportunity was not given to the accused civil servant of presenting his case before the authorised officer. Even though the provision of supply of enquiry report may not be mandatory or a statutory requirement but it can be enforced on the ground of fairness and avoidance of prejudice to the officer. In Syed Mir Muhammad's case (PLJ 1981 SC. 545) it was held that non supply of the enquiry report had materially prejudiced the officer. In the instant case too we find that the non supply of the enquiry report has prevented the appellant from knowing the grounds on which the enquiry officer had based his findings. 5. In their written objections the respondents have defended the omission by saying that "as the case came within the purview of major penalty the authorised officer is not supposed to provide a copy of the enquiry report ....... ". This is a fallacious and distorted view of the rules. The fact is that the appellant was entitled to receive a copy of the enquiry report irrespective of the nature of the punishment proposed, whether it was a case of major penalty or one of minor penalty, on the ground of fairness and avoidance of prejudice. This Tribunal has already held in its judgment in appeal No.568/1068/88 (Syed Nasir Abbas, Assistant Engineer, Public Health Engineering Department Versus Secretary to Government of the Punjab, Housing & Physical Planning Department etc.) that: The E&D rules are silent on the question of supply of enquiry report to the accused officer alongwith the show cause notice. However, this being a principle of natural justice, the requirement should be considered to be implied in the statute. In Maudoodi's and Zahir Ahmad's cases the courts have observed that the principles are only presumptions and express words in an Act can exclude them. The point was further elaborated in the case of Commissioner of Income Tax Vs. Fazlur Rehman (PLD 1964 SC. 410) wherein it was observed that the rules of natural justice are to be read as part and parcel of every statute unless and until there is a specific provision in a particular statute to the contrary". 6. It is a misconception that copy of the enquiry report could be supplied only in cases where major penalty is to be imposed. No distinction is to be made between a major or a minor penalty for supplying a copy of the enquiry report or any material document which is made the basis of enquiry or imposition of a penalty. This is thus a very material flaw which has rendered the recommendations of the authorised officer and the ultimate order passed on their basis by the authority invalid. 7. Another important lacuna in these proceedings is the fact that no proper notice was given to the appellant by the appellate authority (MBR/Respondent No.l) before filing the appeal which in any case was not disposed of on merits. It was explained by the learned District Attorney that efforts were made by the Commissioner's Office to trace out the appellant at his given address but the notices issued from the MBR's Office could not be served on him as having vacated his official residence the appellant was not available there. It was, therefore, concluded that as the appellant's present address was not known the summons could not, therefore, be delivered to him. In these circumstances the appellate authority decided to file the appeal. It is apparent that sufficient and genuine efforts were not made to make contact with the appellant. His service book was available with respondent No.2 and the summons could have been sent' on the address of the appellant given in the service book. Alternately, a notice could conveniently be published in the newspapers to complete the formality and meet the ends of justice. This omission on the part of the appellate authority has deprived the appellant of an opportunity of putting up his defence and make his submissions in person. This again is a material omission which has rendered the proceedings invalid. 8. For all these reasons, we accept the appeal and set aside the impugned orders passed by the respondents and remand the case back to the authorized officer who should conduct the proceedings denovo from the point where the first defect occurred i.e. he should serve a fresh show cause notice on the appellant with which a copy of the enquiry report should also be attached. The period of absence after the appellant's removal from service is left to be determined by the competent authority. There will be no orders as to costs. (MBC) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 23 [Service Tribunal, Azad Jammu & Kashmir, Muzaffarabad] Present: SARDAR MUHAMMAD SAJAWAL Kl-IAN, CHAIRMAN AND RAJA muhammad ashraf kayani, member Raja MUHAMMAD SIDDlQUE-Appellant versus SUPERINTENDENT OF POLICE (RESERVE) MUZAFFARABAD and 2 others—Respondents Service Appeal No. 442 of 1989, dismissed on 2.9.1990 Limitation- ---Police employee—Compulsory retirement of—Challenge to—Time barred appeal—Contention that no limitation runs against void order—It is true that limitation does not run against an order which is passed without jurisdiction and is held ab-initio void, provided it is not conveyed to affected person-An order which is passed, can create consequences, therefore, there cannot be a hard and fast rule that a void order must also be struck down-In fact limitation starts running against an aggrieved person from date he gets knowledge of order which is ab-initio void and is arbitrarily passed against him-Held: In view of peculiar circumstances of case and in view of fact that no application for condonation of period lapsed, has been made, appeal is rejected. [P.26]A&B Sardar Rafique Mahmood, Advocate for Appellant. Raja Muhammad Hanif Khan, Advocate for Respondents. Date of hearing: 2.9.1990 judgment Sardar Mohammad Sajawal Khan, Chairman.-Raja Mohammad Siddique Khan a retired Head Constable has brought this appeal before this Tribunal to impugn the order dated 01.11.1984 of Superintendent of Police, Muzaffarabad (respondent No. 1) by which he was punished and compulsorily retired from service. Through this appeal he also impugns the order dated 24.9.1988 of Deputy Inspector General of Police (respondent No.2) and the order dated 29.5.1988 of Inspector General of Police (respondent No. 3) by which his appeal and representation against his compulsory retirement were rejected by them. 2. The relevant facts submitted by the appellant in the memo of his appeal are that on 28.6.1983 he was placed under suspension and was supplied with a charge sheet containing some unfounded and baseless charges. He submitted his reply to the charge sheet but the Inquiry Officer without associating him in the inquiry proceedings recommended against him the punishment of stoppage of promotion for 2 years. The Superintendent of Police (respondent No.l) contrary to the recommendations of the Inquiry Officer issued him a show cause notice without mentioning therein the punishment proposed to be awarded to the appellant by the Inquiry Officer and without affording him an opportunity of being heard awarded him the punishment of compulsory retirement under the impugned order. The appellant brought numerous representations and applications before respondents No. 2 and 3 against the said order of his illegal retirement but according to the appellant, he was not informed about the decision taken thereon till 8.6.1989 when it was communicated to him through a registered post that his representation was rejected. The appellant seeks the reversal of the impugned orders on the following grounds:- (a) that the impguned orders are void ab-initio because there does not exist any provision in the relevant Police Rules or Police Act, as to punishment of compulsory retirement. The Superintendent of Police (respondent No.l) held no powers to make the order of compulsory retirement against the appellant and as such the impugned order being illegal and without jurisdiction is not maintainable. (b) that the appellant was condemned unheard and was not afforded an opportunity to produce evidence in rebuttal. (c) that the impugned order is against all the norms of justice and equity and is not maintainable on that account. 3. It is prayed by the appellant that the impugned order dated 1.11.1984 made by respondent No. 1 and the impugned orders dated 24.9.1988, 29.9.1988 and 29.5.1989 of respondents No. 2 and 3 may be set aside and the appellant be ordered to be reinstated on his post. 4. It is submitted on behalf of the respondents that the impugned order dated 1.11.1984 made by Superintendent of Police (respondent No.l) Mu/.a!farabad was delivered to the appellant in the Wing Office at Mirpur and in compliance with that order the appellant had deposited his uniform and other store articles on 25.11.1984. After having received his pension, he deliberately missed the opportunity of filing his appeal against the impugned order at the proper time before Deputy Inspector General of Police and thereby had impliedly accepted his retirement. It was after a long time he submitted a time barred appeal direct to Inspector General of Police which was dismissed by him for being time barred and incompetent. The order of Deputy Inspector General of Police made on appeal is final and no revision or representation before the next higher Officer was competent. The appellant has been making repeated applications and the same were also dismissed under the impugned orders dated 29.9.1988 and 29.5.1988 about which the appellant was duly informed well in time.The appeal at this forum is also time barred and is not maintainable in its present shape. 5. We have heard the arguments as were addressed at the bar by the learned counsel of each party and have also examined the record of service of the appellant as was maintained in the office of Inspector General of Police. The appellant has not mentioned the detail of charges in his appeal although the same are contained in the impugned order made by Superintendent of Police (respondent No. 1). The main charge brought against the appellant is that he posted an application to Superintendent of Police (Reserve) (respondent No.l) from the post of Derra Sher Khan alleging therein that he was deprived of his promotion while corrupt and inefficient Head Constables junior to him were promoted. He also complained it to Superintendent of Police (Reserve) that Mohammad Hanif his orderly Head Constable had demanded from him a sum of Rs. 5QO/- as illegal gratification for the selection grade to be granted to him and he missed that chance because he had failed to fulfil his demand. The charge sheet as was supplied to the appellant is not on the file and presently it is not possible to ascertain about other contents of the charge sheet. The inquiry report is also not available on the file. There is no doubt in it that the Police Rules nor the Police Act as are enforced in the State of Azad Jammu & Kashmir do not prescribe compulsory retirement as a penalty for being awarded to a Police Officer held indisciplined and for that reason the impugned order dated 1.11.1984 made by Superintendent of Police Muzaffarabad (respondent No.l) is undoubtedly without jurisdiction and ab-initio void. Under the Police Rules, the appellant was entitled to bring an appeal against the said illegal order before the respective Deputy Inspector General of Police within a period of one month but he failed to avail of his remedy at the proper time and brought a time barred appeal before Inspector General of Police which was dismissed on 23.7.1986. Subsequently, he made repeated applications to the Prime Minister and other quarters for his re-instatement but to no avail. 6. This fact is well established that he brought a time barred appeal before Inspector General of Police on 13.11.1985 long after the period provided for filing appeal before Deputy Inspector General of Police. The appellant is not correct that he was not informed about the decisions taken on his appeal and representations as were submitted by him to Inspector General of Police.In his application for mercy addressed to the Inspector General of Police it is accepted by him that all his applications dated 5.7.1985, 1.7.1986 and 6.8.1986 were rejected and this alone is the sufficient proof of the fact that he knew the fate of his applications long before 2nd of February, 1987. Apart from that his application dated 2.9.1988 was treated as appeal and decided on merits by Deputy Inspector General of Police vide order Book No. 203 dated 24.9.1988. 7. The appeal of the appellant at this forum is dated 1.7.1988 which is hopelessly time barred. It is contended that no limitation runs against an ab-initio void order and as such the present appeal is within time. It is very true that limitation does not run against an order which is passed without jurisdiction and is held ab-initio void provided it is not conveyed to the affected person. But we cannot contribute to this view that an aggrieved person does have the limitation to seek his remedy at law at any time at his sweet will. It may be noted here that the assumption about a void order to be struck down regardless of the consequences of its decision is totally a fallacy because it is so illegal that it does not exist in the eye of the law. But this does not alter the fail (?) that it was passed and by describing it as void, courts cannot alter the fact that the order was passed. An order which is passed can create consequences, therefore, there can not be a hard and fast rule that a void order must also be struck down. (PLD 1959 S.C. (Pak) 104). In fact, the limitation starts running against an aggrieved person from the date he gets knowledge of the order which is ab-initio void and is arbitrarily passed against him. In the instant appeal the appellant was informed about the impugned order passed against him well in time and he submitted his pension claim for being sanctioned in his favour. Again he was also informed of the result of his appeal and applications. 8. In view of the peculiar circumstances of the case and in view of the fact that no application has been made for condonation of the period lapsed, we reject this appeal. No order as to the costs. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 30 [Punjab Labour Appellate Tribunal, Lahore] Present: JUSTICE (RETD.) M. ABDUL GHAFOORKHAN LODHI ELAHI BAKHSH-Appellant versus PROJECT DIRECTOR, CO-OPERATIVE KARKHANA ALAAT-E-ZARI, BAHAWALPUR-Respondent Appeal No. BR-360/90-Punjab, accepted on 17.10.1990 (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.'25-A-Employee-Termination of service of-Grievance petition-Dismissal of—Challenge to—Enquiry proceedings and enquiry report were got proved from RW1, Stenographer-He was not person who had held enquiry, so he could not prove enquiry-Other defect is that enquiry proceedings do not bear signatures of enquiry officer and it is not known who had held enquiry-No opportunity was given to appellant to prepare case to defend himself in enquiry since on same day on which he submitted his reply to charge sheet, eqquiry was held-Held: On basis of such an enquiry, appellant could not be removed from service. [Pp.32&33]B (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.25-A read with Sections 6&7—Employee—Termination of service of— Grievance petition-Dismissal of-Challenge to-Objection that since grievance petition was brought in Junior Labour Court and during its pendency, Junior Labour Courts were abolished and afterwards Sections 6 and 7 of IRO were deleted without substituting any other sections and without inserting any saving clause, petition stood abated—Held: On abolition of Junior Courts, cases pending there, stood transferred to Labour Courts and no question of abatement arises—Appeal accepted and appellant re-instated without back benefits. [P.33]C,D&E (iii) Limitation Act, 1908 (IX of 1908)- —S.5 read with Industrial Relations Ordinance, 1969, Section 25-A-Employee- -Termination of service of-Challenge to-Whether appeal was time barred- Question of-Usually Labour Courts do not fix any date for collection of copy and appellant rightly stated that no date for collection of copy was given to him-So even if it be said that appellant did not go for collection of copy before 20.6.1990, he was not at fault since he was not called upon to appear for this purpose-Held: Excluding days spent from date of application for copy to date on which it was actually delivered, appeal is not time barred. [Pp.31&32]A Mr. M. Shamsher Iqbal Chughtai, Advocate for Appellant. Mr. Masud Ashraf Sheikh, Advocate for Responden . Date of hearing: 14.10.1990. judgment This is an appeal directed against the decision dated 11.4.1990 recorded by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby the grievance petition of the appellant for his reinstatement in service has been dismissed. 2. The facts are that the appellant, who was a helper, was issued a charge sheet on the allegations that he did not work, came late, remained absent and instigated the other workers to go on strike. 3. An objection was raised by the learned counsel for the respondent that the appeal was time barred and there was no good ground for condonation of delay. On the point the appellant came in the witness box and deposed that after he had applied for the copy on 5.5.1990 he had been going to the learned lower court for the collection of the copy but Ghulam Hussain, Ahlmad, who had to deliver the copy, was not present on account of his marriage and the copy was delivered to him on 20.6.1990. In answer to a court question the appellant stated that he was not given any date for the collection of copy. In the seal affixed on the copy the date of preparation of the copy is given as 9.5.1990 and the date of delivery of the copy is 20.6.1990. Usually the Labour Courts do not fix any date for the collection of copies, therefore, the appellant rightly stated that no date for collection of copy was given. On behalf of the respondent Mr. Shahid Akhtar,. Stenographer, has been examined, but he has not been able to rebut this part of the statement of the appellant wherein he said that no date for the collection of copy was given to him. So even if it be said that the appellant did not go to the learned lower court for the collection of copy before 20.6.1990, he was not at fault since he was not called upon to appear on 9.5.1990 for the collection of copy. Excluding the days spent from the date of the application for copy was given, to the date, on which the copy was actually delivered, the appeal is not time barred. The application for copy was given on 5.51990 and the copy was delivered to the appellant on 20.6.1990. The date of the impugned decision is 11.4.1990 and the appeal was lodged on 23.6.1990. The appellant brought application for condonation of delay, but since there was no delay, the application for condonation of delay appears to have been made as a precautionary measure. The appeal, therefore, is treated as within time. 4. The legal objections raised by the learned counsel for the respondent before the learned lower Court were rejected. The grievance petition has been dismissed by the learned lower court on the ground that the order of termination was impugned on the ground that no reasons were assigned, although certain assertions were made challenging the validity of the enquiry. It has been observed by the learned lower court that explicit reasons are given in the order oftermination. No finding has been recorded by the learned lower court with regard to the assertions of the appellant about the validity of the enquiry. Learned counsel for the respondent has argued that since in the grievance petition legality or otherwise of the enquiry was not challenged, therefore the learned lower court rightly did not touch that matter. The provision of section 25-A(4) of the Industrial Relations Ordinance, 1969 is a double check upon the proceedings made by the employer to dispense with the services of his employee. Sub-section (5) of section 25-A reads as underp­ in adjudicating and determining a grievance under sub-section (4) a Labour Court shall go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case." It was thus the duty of the learned lower court to go into all the facts of the case and examine whether the enquiry had been properly held giving the appellant opportunity of defending himself. A perusal of the enquiry proceedings shows that the appellant did not participate in the enquiry. There is no order on the enquiry file that the appellant had refused to participate. The appellant had come in the witness box before the learned lower court and deposed that he was asked to sit outside and wait and thereafter the order of dismissal was announced to him. Learned counsel for the respondent has argued that since the appellant stated in his statement that the enquiry was held against him, it is clear that actually the enquiry was held. Merely holding of enquiry is not the requirement of law but the person against whom an enquiry is being held is to be allowed to participate in the enquiry and given an opportunity to cross examine the witnesses and to produce his defence. Learned counsel for the respondent says that the statement of the appellant that he was asked to sit outside and then order of dismissal was announced to him, is false. A statement cannot be declared as false unless it has been rebutted by some cogent evidence. The solitary witness examined on behalf of the respondent deposed in cross examination that he was not present at the tune of enquiry. Therefore, whatever he stated in examination-in-chief was wrong and did not rebut the statement of the appellant. The enquiry proceedings and the enquiry report were got proved from RW-1 stenographer. Since RW-1 was not the person who had held the enquiry, he could not prove the enquiry. No reason was given by RW-1 why the enquiry officer was not examined. RW-1 stated that the statements of the witnesses were recorded by him (he means to say enquiry officer) but when in cross examination he admitted that he was not present when the enquiry was held, it is apparent that he did not personally know that the statements of the witnesses were recorded by the enquiry officer. The other defect is that the enquiry proceedings do not bear the signatures of the enquiry officer and it is not known who had held the enquiry. The other glaring defect is that the charge sheet was issued on 10.10.1974. The appellant gave reply on 12.10.1974 and on the same day he was dismissed, meaning thereby that on the date on which he submitted reply the enquiry was held and order of dismissal was recorded. No opportunity was given to the appellant to prepare the case to defend himself in the enquiry. Since on the same day on which he submitted his reply to the charge sheet enquiry was held, it is apparent that he was not afforded opportunity to appoint any assistant. On the basis of such an enquiry the appellant could not be removed from service. 5. The legal points raised by the respondent before the learned lower court which had been decided against him have been reargued before me by the learned counsel for the respondent First objection was that Karkhana Alaat-e-Zari was taken over by the Agriculture Department of the Government on 1.11.1976, but the Government was not impleaded as party. The other objection was that at the time the grievance petition was lodged, Karkhana Alaat-e-Zari was being run by the Administrator, Cooperative Development Fund and .Projects under the West Pakistan Cooperative Board (Dissolution) Act, 1966, therefore, the Administrator, Cooperative Development Fund and Project was a necessary party. In the written statement no such objections were raised, therefore, at the argument stage in the learned lower court and at the appellate stage the respondent cannot raise such questions of fact. The learned lower court thus rightly repelled back the above mentioned objections. The other objection raised before the learned lower court by the learned counsel for the respondent was that since the grievance petition was brought in the Junior Labour Court and in its pendency the Junior Labour Courts were abolished and afterwards sections 6 and 7 of the Industrial Relations Ordinance, 1969 were deleted by Order XI of 1977 without substituting any other sections and without inserting any saving clause, the petition stood abated. The argument was rightly repelled back by the learned lower court. Just as argued by the learned counsel for the respondent, on the abolition of Junior Labour Courts, the cases pending there stood transferred to the Labour Courts, therefore, the said Courts became competent to decide the cases and no question of abatement arises on the abolition of Junior Labour Court. There was no occasion and necessity to insert any clause saving the pending cases, because they already stood transferred to the Labour Courts on the abolition of Junior Labour Courts. 6. So far as back benefits are concerned, the appellant is not entitled to the same, because neither in his grievance petition, nor in his statement he urged that he remained without any earnings during the period of dismissal. 7. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision of the learned lower court, the appellant is directed to be reinstated in service without back benefits. (MBC) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 34 [Service Tribunal, Azad Janiinu & Kashmir, MuzafTarabad] Present: sardar muhammad sajawal khan, chairman and raja muhammad ashraf kayani, member Ch. GHULAM NABI-Appellant versus AZAD JAMMU & KASHMIR GOVERNMENT, THROUGH CHIEF SECRETARY, and 8 others-Respondents Service Appeal No. 369 of 1987, dismissed on 15.1.1991 (i) Limitation— —Government servants—Promotion of respondents 2 & 3 to posts of Section Officers-Challenge to-Whether appeal is time-barred-Question of—Present appeal was filed on 24.6.1987 while order impugned in it, is dated 24.12.1986- A review petition before Prime Minister was brought by appellant on 24.1.1987 and same having not been decided within stipulated period of 90 days, he brought this appeal at this forum-Appellant was required to bring his appeal within a period of 30 days from date of expiry of stipulated period of 90 days, but he did so after lapse of 148 days-Held: Appeal is hopelessly time barred and merits dismissal on that account-Appeal dismissed. [Pp.37&38]D&E (ii) Promotion- —Government servants-Promotion of respondents 2 & 3 to posts of Section Officers-Challenge to-Whether promotion of respondents 2 & 3 was repugnant to rules-Question of-There is no denying fact that respondents 2&3 had qualified themselves for post of Section Officers long before enforcement of Section Officers (Service) Rules, 1978-Grievance of appellant is that respondents had not passed competitive test prescribed under provisions of aforesaid rules and respondent Government committed error in making promotion of respondents 2 & 3 on basis of panel of candidates approved in 1977—Competitive test was held in 1977 by Selection Board under rules then in force—Appellant did not choose himself to qualify test—Held: Respondent Government, by accepting respondents 2 & 3 for their appointment as Section Officers, has not committed any breach of rules and their promotion does not seem to be repugnant to provisions of Section Officers (Service) Rules, 1978. Pp.36&37]A,B&C Sardar Rafique Mahmood, Advocate for Appellant. Additional Advocate General for Respondent No. 1. Mr. Ishfaq Hussain Kayani, Advocate for Respondents 2 & 3. Date of Hearing: 15.1.1990. judgment Sardar Mohammad Sajawal Khan, Chairman.—This is an appeal by Ch. Ghulam Nabi, Section Officer Industries Department by which he has impugned the orders dated 19.3.1986 and 24.12.1986 passed by Services and General Administration Department in regard to the promotion of respondents .No. 2 and 3 as Section Officer in the Civil Secretariat. The appeal was originally borught to this Tribunal on 23.6.1987 but it was subsequently amended with the permission of this Tribunal and resubmitted as an amended appeal by which the name of Abdul Hameed Tahir, Section Officer was substituted instead of All Mohammad Khan, Section Officer apart from bringing on record the names of respondents No. 4 to 9 as proforma respondents. Through the amended appeal, the appellant sought for relief against respondents No. 1 to 3 while making a submission to the effect that the respondents No. 4 to 9 were proforma type respondents and he would not be seeking any relief against them. 2. The relevant facts to be briefly stated are that the appellant was employed in the Ministerial Service of the Secretariat of Azad Government. In the year 1960, when Section Officer's appointment Scheme was introduced in Azad Kashmir, the appellant held the post of Section Clerk and in the seniority list of Section Clerks he held position No.4. In 1961, some senior clerks were promoted as Section Officers without looking into the seniority list and the appellant represented to the authorities concerned against illegal promotion of the Section Clerks contrary to the seniority list but it was to no avail. However, the appellant was subsequently promoted as Private Secretary in grade 16 on 17.12.1980 and then as Section Officer on 3.3.1981 subject to the confirmation by Selection Board. On 19.3.1986 the appellant was summoned to his Office by the Chief Executive (Prime Minister) and was told by him that the promotion of some Section Officers would take place on the basis of panel prepared and approved in 1977 without disturbing his appointment which was on ad-hoc basis. The grievance of the appellant is that the respondents No. 2 and 3 junior to him and had no merits to be placed against permanent seats of Section Officers on the basis of qualifying a test and interview held in the year 1977 long before the enforcement of Azad Jammu and Kashmir Secretariat (Secti )n Officers) Service Rules, 1978 (hereinafter to be referred as Section Officer's Service Rules 1978). According to the appellant, the panel of Section Officers approved in the year 1977 had no relevancy to be made applicable for appointing new Section Officers after the enforcement of Section Officers (Service) Rules, 1978. It is further submitted by the appellant that immediately after the enforcement of Section Officers Service Rules, 1978, the appointments of Muhammad Saeed Qadri, Ghulam Qadir Khan, Mohammad Rafique Butt, Mohammad Hussain Khan and Shukir Din Katal were ordered as Section Officers under those rules. But in case of respondents No. 2 and 3 the application of those rules was ignored and they were malifidely benefitted by accepting a panel of the candidates approved for the posts of Section Officers in the year 1977. The order of promotion of respondents being illegal, the respondents No. 2 and 3 were illegally confirmed against the posts of Section Officers from the date of their appointment while the appellant having not been provided with an opportunity of qualifying the test prescribed for promotion to the post of Section Officer suffered a set back and was confirmed at a belated stage on 14.2.1989 loosing his inter-se seniority over the respondents No.2 and 3. In the cadre of Section Officers the appellant felt aggrieved by the aforesaid order of promotion of the respondents No. 2 and 3 and brought a review petition on 24.1.1987 before the Prime Minister of Azad Government for the redress of his grievance but it was not decided by the then Prime Minister within the stipulated time and the appellant ultimately had to invoke the jurisdiction of this Tribunal unde/ Section 4 of Service Tribunal Act, 1975. 4. It is prayed by the appellant that by accepting his appeal the impugned orders dated 19.3.1986 and 24.12.1986 by which the respondents No.2 and 3 were promoted to the post of Section Officers may be set aside and his grievances may be redressed. 5. The appeal was admitted for regular hearing by a short order dated 18.11.1987 by the then Chairman of this Tribunal and by the same order, the respondents were asked to file their written statements. In their written statements, the respondents denied the allegations of violating any rule of procedure in regard to the promotion of respondents No. 2 and 3 and asserted that they secured prompotion after having qualified a competitive test by which their names were placed on the panel of approved candidates for the post of Section Officers. The appellant was also in Secretariat Service at that tune but he did not choose to appear in the test to qualify himself for the post of Section Officers. It was further claimed by the respondents that the impugned orders were made by the respondent Government after hearing the appellant and giving due consideration to his case of promotion on merits. The appointment of respondents was considered in the meeting of Selection Board held on 19.3.1986 and they were selected for the post of the Section Officers in view of the fact that they were the approved candidates placed in the waiting list for promotion. The appellant has not challenged the order No. Admin 3522-56/77 dated 21.2.1977 by which the aforesaid panel was prepared for filling the vacancies of Section Officers on the basis of a competitive examination. The appointments of Mr. Saeed Qadri and others were ordered by way of stop-gap arrangement without disturbing the existing position of the respondents. 6. The arguments were addressed at the bar by the learned counsel of each party. We have carefully examined the appeal file and the relevant record produced before the Tribunal by either parties. There is no denying the fact that the respondents No. 2 and 3 had qualified themselves for the post of Section Officers in the Civil Secretariat long before the enforcement of Section Officers (Service) Rules, 1978. The grievance of the appellant is that since the respondents had not passed the competitive test prescribed under the provisions of the aforeasid rule, the respondent Government committed error in making the promotion and appointment of the respondents No. 2 and 3 on the basis of the panel of the candidates approved in the year 1977. In this context it may be noted here that by virtue of Section 4 of Civil Servants Act, 1976 as enforced in the State, the terms and conditions of the Civil Servants have been prescribed by Rule 9 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Sub-section (2) of Section 23 of the Civil Servants Act provides a 'Saving Clause' to the effect that till the rules under the Civil Servants Act, 1976 are framed and enforced any rules, regulations, orders, or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an Authority competent to make them and enforce immediately before the commencement of that Act shall, in so far as such rules, regulations, orders are not inconsistent with the provisions of that Act shall be deemed to have been made under that Act. It follows that the rules and the instructions immediately enforced before the enforcement of the Civil Servants Act were kept alive till the framing of new rules under the Civil Servants Act. The Civil Servants Act has not out-rightly repealed the relevant rules and regulations as were previously applicable in regard to the terms and conditions of service of the civil servants. If any competitive test was held in the year 1977 by the Selection Board, it was held under the rules then enforced, and the panel of approved candidates prepared by an institution like Selection Board in regard to promotion of respondents cannot be held ineffective simply for the reasons that previous rules were superseded by new rules of procedure. A copy of the relevant panel bearing Services and General Administration Department No. Admin/3581-86 dated 21.2.1977 placed on the file shows that it was made applicable to future vacancies of Section Officers in the Civil Secretariat and it was not annulled, superceded, or over ruled by Section Officers (Service) Rules, 1978. In our opinion, the respondent Government by accepting the respondents No. 2 and 3 for their appointment as Section Officers has not committed any breach of the rule nor we find the impugned order to be suffering from any inconsistency with the Section Officers (Service) Rules, 1978. In numerous cases it has been held that the rules also include administrative instructions by the rules making Authority competent to alter or amend the rules (P.L.D. 1964 S.C. 21) and providing vacancies of Section Officers to respondents No. 2 and 3 was difinitely a responsibility of the Respondent Government itself to fulfil. Therefore, we are of the view that the instructions issued by Services and General Administration Department on 19.3.1986 in regard to promotions of respondents No.2 and 3 do not seem to be repugnant to the provisions of Section Officers (Service) Rules, 1978. 7. It is also apparent from the record that the appellant did not choose himself to qualify the test which was prescribed in the year 1977 for promotion of suitable candidates from among the ministerial staff of the Civil Secretariat. If the respondents No. 2 and 3 had joined the qualifying test and after having qualified the same were placed on the panel of approved candidates they had, of course, achieved senior position than that of the appellant who did not join the competitive test which was open for him also. If the appellant had any grievance about the selection of respondents for being placed on the panel of approved candidates to be promoted to the posts of Section Officers, he must have taken care at the proper time for availing of this remedy at law. His appeal at this belated stage cannot remedy the old wrongs which he undoubtedly suffered because of his own indolence. The law helps the violent and not the indolent. 8. The present appeal was brought by the appellant before this Tribunal on 24.6.1987 while the order impugned in it is dated 24.12.1986. Originally, the appeal was directed against the order of promotion of Ali Mohammad Khan and Mohammad Abdullah, Section Officers of the Civil Secretariat. But subsequently, the appeal was amended with the permission of this Tribunal and an amended appeal was filed on 18.11.1987 by which the name of respondent Ali Mohammad Khan was substituted by Abdul Hameed Tahir and the names of some proforma respondents were brought on the .appeal. A review petition before the Prime Minister was brought by the appellant on 24.1.1987 and the same having not been decided within the stipulated period of 90 days, the appellant brought this appeal at this forum. The appellant was required to bring his appeal at this forum within a period of 36 days from the date of expiry of the stipulated period of 90 days for the decision of his review petition by the Departmental Authority on which he had filed review petition for availing of his Departmental remedy viz 24.1.1987. But unfortunately, it was brought to this Tribunal after lapse of 148 days which is definitely time barred. There is no application for condoning this much delay in favour of the appellant nor the appellant has placed any material on the file constituting sufficient cause for that delay. The name of Mr. Abdul Hameed Tahir (respondent No.2) was brought on. the record on 18.11.1987 for the first time and so the appeal brought against him shall not date back to the date of presentation of original appeal viz 24.6.1987. So the appeal brought against Abdul Hameed is of remoter date than that of the original appeal. In both the cases the appeal is held hopelessly time barred and merits dismissal on that account. Apart from that, the appellant also failed to challenge the impugned order in his review petition before Prime Minister so far as it related to the promotion of Mr. Abdul Hameed Tahir (respondent No.2). The name of respondent No.2 was substituted against Ali Mohammad Khan .Section Officer long after the filing of the present appeal. So the appeal brought against Mr. Abdul Hameed Tahir to this Tribunal without firstly impleading him as a necessary party in the review petition before the Prime Minister shall also be held not maintainable on account of the fact that to his extent, the appellant failed to avail of the Departmental remedy essential for invoking the jurisdiction of this Tribunal. 9. The upshot of the above discussion is that we find no force in this appeal and the same is hereby dismissed. No order as to the costs. (MBC) Appeal dismissed

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 38 [Sindh Labour Appellate Tribunal at Karachi] Present: JUSTICE (RETD.) AHMAD ALI U. QURESMI SIBTE ZAHID NAQVI-Petitioner versus THE VTH SINDH LABOUR COURT AT KARACHI and 4 others-­ Respondents Revision Application No. Kar. 245 of 1990, dismissed on 28.11.1990 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —-S. 25-A Grievance petition-Engagement of Advocate by Secretary K.E.S.C.- Challenge to-Whether Secretary had no authority to engage and authorise Advocate-Question of-Under Article 78(8) of Articles of Association, Director has general powers to appoint legal practitioners for representing company, but under Article 75, he has powers to depute such of his powers and duties, as by Act, need not be performed personally-Whether Secretary was authorised to defend grievance petition and engage Advocate either by any resolution of Board of Directors or by rules or he has engaged Advocate on his own authority, is a question of fact and can be decided in final decision only after such issue is framed and evidence is recorded by Labour Court-Held: Labour Court has given cogent reasons for rejecting application of applicant " and there is no necessity to interfere with impugned order. [P.39]A Mr. Sibte Zahid Naqvi, Applicant in person. Date of hearing: 28.11.1990. decision This is an application moved by the applicant vSibte Zahid Naqvi in which he has made several prayers. He has prayed that the order of the learned Labour Court, dated 20.10.1990 be revised and its legality, correctness and propriety may be considered. He has also requested the Tribunal to proceed under the Contempt of Courts Act against the learned Presiding Officer of the Singh Labour Court No. V at Karachi as well as against the three officers of the K.E.S.C. 2. I have heard Mr. Sibte Zahid Navqi, the applicant in this case. The contention of Mr. Sibte Zahid Naqvi before the learned Labour Court was that the Secretary of the K.E.S.C. who had engaged and authorized the Advocate to appear before the learned Labour Court had no powers to so engage the Advocate because the grievance application was filed against the K.E.S.C. through its Managing Director. He further contends that the Secretary and other officers of the K.E.S.C. by appearing and appointing the Advocate in Court had in fact interfered in the judicial process and, therefore, they had committed the Contempt of Court. 3. Mr. Sibte Zahid Naqvi, had relied upon the" decision of a learned Single Judge of Sindh High Court in the case of Abnbakar Saley Mayet versus Abbot Laboratories and another, reported in 1987 C.L.C 367; wherein it has been held that the company cannot orally authorise another person to sign a plaint on its behalf and even subsequent ratification would not cure illegality committed at time of institution of suit and the business of company/corporation has to be run under its Articles of Association. His Lordship had also considered the provision of Order XXIX C.P.C. and have (?) held that it only authorizes the person mentioned therein to sign and verify the plaint on behalf of the Company. 4. In the instant case, the question at issue is whether the Secretary had the power to engage an Advocate. Under Article of Association produced by Mr. Sibte Zahid Naqvi, under Article 78(8), apart from the general powers conferred by Article 75, the Director has got powers to appoint legal practitioners for representing the company in legal proceedings. However, under Article 75, the Director has powers to depute such of their (?) powers and duties as by the Act need not be performed personally to the Managing Agents. However, it is a question of fact as to whether the Secretary was authorized to defend the grievance application and engage Advocate either by any resolution of Board of Director or by rules or he has engaged Advocate on his own authority. This question can be decided in the final decision only after such issue is framed and after evidence is recorded by the learned Labour Court . At this stage, I find that the learned Labour Court has given cogent reasons for rejecting the application of the applicant and I do not find it necessary to interfere with the said order in the! exercise of rcvisional jurisdiction of this Tribunal. 5. I also do not find that any contempt of Court had been committed to warrant any action against the respondents. The application is, therefore, dismissed. (MBC) Revision dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 40 [Sinclh Labour Appellate Tribunal at Karachi] Present: JUSTICE (RETD.) AHMAD ALI U. QURESHI SUPERINTENDENT, TELEGRAPH WORKSHOP, KOTRI-Appellant versus NIHAL AHMAD-Respondent Appeal No. Hyd. 95 of 1990, dismissed on 18.11.1990 Superannuation-- —-Employee-No entry of age made in service book at time of entry into service—Certificate of doctor about age—Whether date of superannuation could be fixed on doctor's certificate—Question of—Best evidence would be date of birth entered in record of service at time of entry of employee in service—No such entry was made—Respondent was referred to Medical Officer after 22 years and on his report that according to appearance he was of 45 years in 1973, date of birth was calculated-Service book of appellant was not produced—Copy of service book produced by respondent shows his date of . birth as 2.5.1928 as verified by Civil Surgeon, Hyderabad, but this entry was scored off and instead of it, an entry in red ink as 19.11.1933 was made—No evidence has been produced by appellant except certificate of Civil Surgeon to show that respondent had attained age of sixty years on 22.5.1988—Held: There is no merit in'appeal—Appeal dismissed. [Pp.41&42]A,B&C Mr. Muhammad Ahmad Siddiqui, Advocate for Appellant. Mr. M. BashirAwan, Advocate for Respondent. Date of hearing: 18.11.990. decision This is an appeal against the order, dated 15.1.1990. passed by learned Presiding Officer, Sindh Labour Court No. VI, Hyderabad, whereby he allowed grievance petition filed by the respondent and ordered his reinstatment in service with consequantial back benefits. 2. The brief facts of the case are that the respondent was retired from service from 22.5.1988 on allegedly attaining the age of sixty years. The respondent claims that his date of birth, according to service book, was 19.11.1933 and therefore his retirement on 22.5.1988 on the ground of allegedly attaining the age of sixty years was illegal. After serving grievance notice upon the respondent he filed grievance petition. The appellants, however, claimed, that age of the respondent was entered in service book on 22.5.1973 on the basis of medical certificate which showed his age to be 45 years and that entry with regard to his date of birth as 19.11.1933 who (?) forged and that on 26.3.1987 the respondent had moved an application for encashment of L.P.R. 3. I have heard Mr. Mohammad Ahmad Siddiqui, learned Advocate for the appellants and Mr. M. Bashir Awan, learned counsel for the respondent and have also gone through the record and proceedings of the case. 4. The only point at issue is as to when the respondent would attain the age of sixty years. The best evidence in such case would be the date of birth entered in the record of service at the time of entry of the employee in the service. It appears that no entry of age was made at the time of the entry in service of the respondent which was 1.6.1954. It appears that in 1973 he was referred to the Medical Officer, who issued certificate which is Annexure R-2 certifying him 'fit for service' and it further showed that his age, according to appearance of respondent, was 45 years. It will be clear from this certificate that opinion with regard to age was formed by the Doctor on the basis of appearance of the respondent and not on the basis of sciphication test, X-Rays or any other scientific method. Such an opinion cannot be considered to be a correct base of determination of age. The service book of the respondent which was admittedly kept by the appellants, had not been produced. They allege that it has been misplaced or that it has been taken away by the respondent through his daughters who are working in the Department. However there is no such evidence that the service book was taken away by his daughters. It was duty of the appellants to have kept in safe custody the record of the employees, which is a valuable document and its non-production would raise presumption against the appellants. The respondent has produced copy of service book which he was given by the appellants. In this service book, the age of respondent is first entered as 2.5.1928 as verified by Civil Surgeon Hyderabad. This entry was made on 22.5.1973. However this entry was scored off and another entry in 'red ink' was made showing date of birth as 19.11.1933. This corrected date was also signed by'Superintendent' Telegraph Workshop, Kotri' and is dated 10.9.1973. This 'Service Book' is Ex-A/22. The respondent has also produced 'Identity Card' Ex.A/21 issued by the Assistant 'Superintendent, Telegraph Workshop, Kotri in which also his date of birth is shown on (?) '1933'. As against this evidence produced by the respondent, which are documents issued by the appellant's Department, the appellants have produced no evidence except the certificate of Civil Surgeon to show that the respondent had attained the age of sixty years on 22.5.1988. I have already pointed out that this certificate cannot be considered as an authentic evidence of age. The appellants claimed that the respondent had moved application on 26.3.1987 for encashment of L.P.R. but even that application had also not been produced by the appellants. It may also be pointed out that prior to his retirement viz on 25.4.1988, the respondent had vide Annexure A-3 raised objection that his date of retirement was not 22.5.1988 but that he had five years more to serve. However no further enquiry was made to ascertain the correct date of birth of the respondent but basing their opinion on the certificate issued by the Civil Surgeon in 1973 the respondent was reitred. 5. The only evidence produced by the appellants is R/29 issued in July, 1976 under which the upper age limit of various employees was relaxed for the purpose of their entry in service. This letter covers hundreds of employees including the respondent. The copy of this letter is shown to have been sent to 'all concerned' but neither respondent was confronted with this letter nor there is any proof to show that it was served upon the respondent. This letter was produced by one Mohammad Khan, a witness of the appellant. It appears, that the appellant's Department is not working (in) accordance with rules. As pointed above the age of the appellant or other employees was not determined at the time of their entry in service. The appellant entered in service in 1954 but his age, for the purpose of entry in service, was relaxed after 22 years in 1976. Such a document would not be in accordance with the rules and regulations and has no evidentiary value. Even otherwise it docs not show as to what was exactly the age of the respondent. 6. In view of the above discussion 1 see no merits in this appeal, which is, accordingly, dismissed. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 42 [Sindh Labour Appellate Tribunal at Karachi ] Present: JUSTICE (RETD.) AHMED ALI V. QURESHI RAFIULLAH-Appellant versus MANAGER, M/s. WESTERN PAKISTAN TANNERIES, HYDERABAD- Rcspondcnt Appeal No. Hyd. 490 of 1989, accepted on 29.11.1990 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S. 25-A-Grievance petition-Dismissal of-Challengc to-Whether appellant had tendered resignation—Question of—Appellant has stated on oath that signatures or thumb impression on photostat copies of resignation and receipt of dues, are not his—Respondent's witness does not state that appellant had signed and thumb-marked documents in his presence or that he was conversant with his signatures—Labour Court was not in a position to compare thumb impression and has refrained from giving any opinion on that point- Burden of proof was upon respondents in face of denial by appellant about signatures and thumb-impression—Respondents failed to discharge this burden-Held: It is not proved that appellant had tendered his resignation or received dues or that signatures on alleged letter of resignation or receipt, are of appellant-Appeal accepted. [Pp.43&44]A,B&C PLD 1982 SC (AJ&K) 89 and AIR 1922 Cal. 12 rel. Mr. Ahsamtl Haque Siddiqui, Advocate for Appellant. Mr. S. Fasahal Hussain Rizvi, Advocate for Respondent. Date of hearing: 17.11.1990. decision This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No.VI at Hyderabad, dated 25-10-1989, whereby the grievance application of the appellant was dismissed. 2. The case of the appellant, in brief, is that he was a permanent workman employed by the respondents and was gate-stopped on 15.9.1988; 16.9.1988 and 17.9.1988. Whereupon, he wrote to the respondents, who had informed him that he had resigned from the service and his resignation had been accepted. The appellant alleged that he had not tendered his resignation. He, therefore, after serving the grievance notice upon the respondents, filed the grievance petition. 3. I have heard Mr. Ahsanul Haque Siddiqui, learned Advocate for the appellant and Mr. Syed Fasahat Hussain Ri/vi, the learned Advocate for the respondents and have also gone through the record and proceedings of the case. 4. The only point to be considered is whether the appellant had tendered his resignation. The respondents had produced photostat copy of the resignation Exbt.R-2 and photostat copy of the receipt of the dues Exbt.R-3. The appellant was confronted with these documents and he had denied his signatures and thumb impression upon these documents. Therefore, the respondents had moved an application that the specimen signatures of the appellant be obtained and Exbts. R-2 and R-3 be referred to the hand-iwriting expert. They also produced the originals of those documents. The appellant gave no objection to this application and also gave his specimen signatures and thumb impression which are at pages 47 and 49 of the R&P.However, subsequently the respondent moved another application on 2.10.1989, whereby they withdrew their application for referring the disputed documents to the hand-writing Expert which was allowed by the learned Presiding Officer. The learned Presiding Officer, however, compared the specimen signatures with the signatures on the disputed specimen signatures. 5. There is word on oath of the appellant that the signatures or thumb impression on these documents were not his, against the word of the respondents' witness, Muhammad Sadiq. Muhammad Sadiq, however, does not state, that the appellant had signed the documents or thumb marked them in his presence. Nor does he state that he was conversant with the signatures of the appcllant,.The respondents were, conscious of the fact that they had no evidence to prove the signatures on the disputed document to be of the appellant and, therefore, applied for sending them for expert opinion. The fact that they withdrew the request for sending the disputed signatures to the Expert would raise adverse presumption against the respondents. No doubt, the learned Labour Court has got powers to compare the signatures himself. But in the instant case, it was not only the comparison of signatures, but, it was also the comparison of the thumb impressions on the disputed documents which the respondents claim to be of the appellant. The learned Labour Court was not in a position to compare the thumb impression and, therefore, has refrained from giving any opinion on that point. 6. Mr. Ahsanul Haque Siddiqi, the learned Advocate for the appellant has relied upon the decision in the case of Subedar Fazal Hussain versus Qazi Muhammad Bashir and 12 Others, reported in P.L.D.1982 S.C. (AJ&K) 89; wherein it is held as under:- "It is an accepted principle of law that the expert's evidence must always be received with great caution especially the opinion of handwriting experts. The Court should not surrender its own opinion to that of experts who are called before it. Although such evidence has to be received with great caution, yet the evidences and reasons, on which it is based, are entitled to a careful examination before rejection. The most important things, in such like cases to be examined, are the general characteristics, formation of letters in the handwriting (questioned or admitted), fixed pen habits and mannerism. The identity or resemblance in handwriting has to be found out on the value of the effect of various considerations arising from individual characteristics which have been embodied in the technical language of experts. It is also settled that mere ' resemblance between two writings is not sufficient to create the conviction that they were written by one and the same person. In the world of today,which has shown much advancement in every direction it is not difficult to forge the handwriting of a person in such a manner as to make it impossible for even the most acute and experienced Judge to discriminate between the false and the true." 7. Thus the evidence of hand-writing expert is also to be treated with caution. The casual opinion of the learned Presiding Officer that signatures tally, without giving any details as to in what characteristics the signatures tally, would not be sufficient to hold that-the signatures and the thumb impressions on the disputed documents were of the appellant. The burden of proof was upon the respondents in the face of denial by the appellant about the signatures and thumb impression. The respondents failed to discharge this burden. This failure is more conspicuous in view of the fact, that they withdrew their application for referring the disputed documents for expert opinion, thus raising presumption under the law against them. 8. In this connection, reference may also be made to the case of Sarojini Dassi versus Han Das Chose, reported in A.I.R. 1922 Calcutta 12 wherein it is held as undcr:- "Although from the dissimilarity of signatures a Court may legitimately draw the inference that a particular signature is not genuine because it varies from an admittedly genuine signature, yet resemblance of two signatures affords no safe foundation that one of them is genuine." 9. Considering all the facts discussed above and the circumstances of the instant case, I am not satisfied that the appellant had tendered his resignation and had received the dues or that the signatures on the alleged letter of resignation or receipt are of the appellant. I, therefore, set aside the impugned order of the learned Labour Court and order the re-instatement of the appellant with full back benefits. Orders to be implemented within one month. (MBC) Appeal accepted

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 44 [Punjab Service Tribunal, Lahore] Present: MUHAMMAD MEHMOOD ASLAM PIR7ADA, CHAIRMAN, AND ABDUL hamid khan, member MUKHTAR HUSSAIN-Appellant versus DEPUTY INSPECTOR GENERAL OF POLICE, BAHWALPUR RANGE , and another—Respondents. Appeal No.710 of 1989, accepted on 23.10.1990. Enquiry. —Police Official-Stoppage of increments of-Challenge to-No regular enquiry was actually conducted by D.S.P (Legal)—In fact, enquiry was in nature of preliminary investigation in which it was not incumbent on investigating officer to associate appellant with proceedings, resultantly, there was no occasion and authority was under no obligation to supply a copy of enquiry report to appellant—However, authority, while passing orders imposing penalty on appellant, has stated in so many words that D.S.P. (Lagal) was to hold a regular enquiry—Held: Since decision of authority, i.e. respondent No.2 is based on an assumption which is factually incorrect, entire proceedings have been rendered invalid—Held further: Increments can only be stopped without cumulative effect-Appeal accepted and case remanded. [P.46JA&B Mr. M.Rahim, Advocate for Appellant. Mr. ManzoorHussain, District Attorney for Respondents. Date of hearing: 10.10.1990. judgment Mr. Muhammad Mehmood Aslam Pirzada Chairman—Mukhtar Hussain A.S.I, has filed this appeal under Section 4 of Punjab Service Tribunals Act,1974 against the impugned orders dated 21.7.1988 and 14.9.1989 passed by the respondents. The appellant has impleaded the D.I.G. Police Bahawalpur Range, Bahawalpur and Superintendent of Police, Bahawalpur as respondents. Through this appeal the appellant has prayed that impugned orders passed by the respondents be set aside. Salient features of this appeal are that the appellant was served with show cause notice on the charge that on 23.3.1988, while on duty in 'Jumma Bazar' he got Bashir Ahmad Shopkeeper beaten by his subordinate constables. The said Bashir Ahmad was not only beaten but was also forcibly dragged to Police Station Civil Lines where the appellant recorded an incorrect report dated 25.3.1988. Appellant submitted his explanation in reply to the show cause notice and a regular enquiry was conducted. The enquiry officer found him guilty. Appellant was given personal hearing and respondent No.2 (authority) vide his impugned order dated 21.7.1988 awarded him the penalty of stoppage of increments for 3 years. The appellant filed an appeal before respondent No.l which was rejected vide impugned order dated 14.9.1989. We have heard the learned counsel for the parties at length and perused the record with the assistance of the representatives of department with care. The main contention of the learned counsel for the appellant is that although general proceedings were intiated in this case yet neither the appellant was charge sheeted nor any opportunity of defence was afforded to him and as such the entire proceedings were illegal. Reliance was placed by him on the impugned orders dated 21.7.1988 passed by respondent No.2 wherein it has expressly been mentioend that the D.S. (Legal) had held a regular enquiry in the matter but the appellant was not associated with it. The learned counsel further stated that a copy of the enquiry report was also not supplied to the appellant which has prejudiced him in the defence of his case. He therefore, concluded that these material deficiencies have rendered the enquiry proceedings invalid. He further submitted that the punishment of stoppage of annual increments was also illegal because it cannot be imposed with cumulative effect. The learned District Attorney vehemently opposed the above contentions and argued that the impugned orders passed by respondents in the light of comments/report furnished on behalf of respondents be allowed to stand. We have given our anxious thought to the submissions advanced by the learned counsels for the parties and find that no regular enquiry was actually conducted by the "D.S.P. (Legal). In fact, this enquiry was in the nature of a preliminary investigation in which it was not incumbent on the investigating officer' i.e. D.S.P. (Legal) to associate the appellant with the proceedings, Resultantly, there was no occasion and the authority was under no obligation to supply a copy of the enquiry report to the appellant. However, we find that the authority while passing the orders imposing the penalty on the appellant has stated in so many words that the D.S.P. (Legal) was to hold a regular enquiry. The Enquiry Officer D.S.P. (Legal) submitted his findings/report on 23.3.1988 which he found guilty him" (?) Since the decision of the authority/respondent No.2 is based on an assumption which is factually incorrect, the entire proceedings have therefore, been rendered invalid. Further the punishment awarded by the authority is also illegal because increments cannot be stopped with cumulative effect as no such punishment is provided in the E & D Rules. The increments can only be stopped' without cumulative effect. In view of the deficiencies in the impugned order dated 25.6.1988 of the authority/respondent No.2 discussed above, we accept the appeal, set aside the impugned orders and remand the case to the authority to pass orders afresh in accordance with law. There are no orders as to costs. Copies of the signed judgment be released to the parties according to the procedure of the Tribunal. (MBC) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 46 [Punjab Service Tribunal, Lahore ] Present: MUHAMMAD MEHMOOD ASLAM PIRZADA, CHAIRMAN. ZAFAR IQBAL-Appellant versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and another—Respondents. Appeal No.924/1229 of 1984, dismissed on 30.1.1990. Civil Services. —Tehsildar-Dismissal from service of--Challenge to-Appellant was given full opportunity to defend him—Procedure prescribed by Punjab Civil Servants (E&D) Rules, 1975, was fully complied with during course of proceedings conducted agaist appellant-Charge for which appellant was penalized by respondents, stands fully proved against him on record-He was dismissed from service on charge of committing offence of moral turpitude-Acquittal of appellant will not affect outcome of departmental proceedings—Held: Appellant's act is so grave that he deserves no leniency-Appeal dismissed. [Pp.48&49]A Mr. SAqa Asif Jaffery, Advocate for appellant. Mr. A.G. Hwnayim, District Attorney for Respondents. Date of hearing: 9.1.1990. judgment Zafar Iqbal, Ex-Tehsildar, Chicha-watni has filed this appeal under Section 4 of Punjab Service Tribunals Act 1974 against the impugned orders dated 22.7.1984 and 13.5.1985 passed by the respondents. Appellant has also impleaded Member (Revenue ) Board of Revenue, Punjab Lahore and Full Board of Revenue, Punjab, Lahore as respondents. By virtue of this appeal the appellant has prayed that impugned orders passed by the respondents be set aside and appellant be reinstated in service. Brief facts of this appeal preferrably are that Commissioner Multan, Division was appointed as authorised officer who chargc-sheated the appellant as unden- "(/) that while posted as Tehsildar Chichawatni, he permitted one Iqbal Hussain, a relative of Malik Riaz Hussain, the then Assistant Commissioner, Chichawatni, to live with him in a Government accommodation situated adjacent to the quarter of Syed Abid Hussain Shah the then Naib Tehsildar, Chichawatni. He and Iqbal Hussain developed illicit relations with Mst.Sajida Abid, the daughter of the said Naib Tehsildar, while his personal servant Khurshid also developed illicit relations with her maid servant named Mst.Sabbi; (//) that according to the statements of Mst.Sajida Abid and Mst. Sabbi, as recorded by Mr.Muhammad Iqbal Khan, Assistant Commissioner/Magistrate 1st Class, Chichawatni, under Section 164 Cr.P.C. on 13.8.1982 he and Iqbal Hussain abducted both the unmarried girls in Car.No. VR. 4003 to Khanewal Railway Station alongwith his servant namely Khurshid on 25.6.1982. He and his servant came back to Chichawatni while Iqbal Hussain took both the girls to Karachi by train. They flayed there in a hotel where Iqbal Hussain raped Mst.Sajida Abid for three or four days and later on forcibly got her signatures on a Nikah Nama; (Hi) that he also reached Karachi subsequently and took Mst.Sajida Abid to some house and raped her on the assurance that he would be helping her monetarily because Iqba; Hussain had run short of money; (iv) that according to the statement of Mst.Sabbi as recorded by the Assistant Commissioner, Chichawatni, on 13.8.1982 she had been raped by Khurshid his personal servant; and (v) that F.I.R. No.275/82 dated 7.8.1982 under section 10/11 Zina Ordinance was lodged agamst lqr>."' Hussain and him in Police Station Chichawatni. Appellant was required tc _.uomit his written defence before Mr.Muhammad Saeed Shami, Assistant Commissioner, Khanewal who was appointed as enquiry officer in this case. The enquiry officer after holding complete enquiry submitted his report dated 31.3.1984 to Commissioner Multan Division who after hearing the appellant observed that the charge has been fully proved against him and recommended that the appellant be awarded major penalty of dismissal from service. Member (Revenue) Board of Revenue, Punjab, Lahore (Authority) after hearing the appellant and going through the reply of the appellant awarded him the penalty of dismissal from service vide order dated 22.7.1984. The appellant preferred an appeal before respondent No.2 who rejected the same vide order dated 13.5.1985. Hence this appeal. I have heard the learned counsel for parties at length and perused the record minutely with the assistance of the representative of the department with care. The impugned orders dated 22.7.1984 and 13.5.1985 have been vehemently assailed by the learned counsel for the appellant, mainly on the following grounds: - (a) That no enquiry report was provided to the appellant as laid down in Mir Muhammad case by the Supreme Court of Pakistan reported as PLD 1981 SC 1976. (b) That the appellant was not provided any opportunity according to the prescribed procedure laid down under Punjab Civil Servants (E & D.) Rules 1975, (c) That mendatory provisions as envisaged by law while conducting the proceedings have been violated. In support of the contentions advanced on behalf of appellant's counsel reliance has been placed on the following judicial pronouncements: (0 1985 SCMR 1062. (h) PLD 1981 SC 176. (Hi) PLC 1981 (CS) 601. (iv) PLC 1980 (CS) 213. Conversely learned District Attorney seriously opposed the above mentioned contentions of the learned counsel for the appellant and contended that impugned orders passed by the respondents are lawful and in order, as such may be allowed to be up-held. Reliance has been placed on 1989 SCMR 183. After going through the whole file, I have given my anxious thought to the submissions advanced by learned counsel for the parties and find that contentions advanced by the learned counsel for the appellant have been thoroughly dealt with by the respondents in their respective judgments^Learned counsel for the appellant has failed to pin-point any discrepancy of law or of fact or violation of any rule in the impugned orders passed by respondents. On a careful perusal of the facts of this case I find that appellant was given full opportunity to defend him. Moreover the procedure prescribed by the Punjab Civil Servants (E & D) Rules 1975 was fully complied with during the course of proceedings conducted against the appellant. I do not find any material irregularity in the proceedings as such I find that impugned orders passed by respondents are un-exceptionable either on facts or on law. Further more the charge for which the appellant was penalized by the respondents stands fully proved against him on record and learned counsel for the appellant has failed to rebut the same. I also find that appellant was dismissed from service on the charge of committing offence of moral turpitude. He committed such an act which has not only disgraced him in the society but has also brought bad name to the department. No doubt appellant was acquitted but the fact remains that case was registered against him and the same will not affect the out-come of departmental proceedings as the appellant was proceeded (against) on merits. During the course of arguments appellant has failed to point out that why he was falsely involved in the case by the complainant who had no malice or personal annoyance against him. The appellant's act is so grave that he deserves no leniency. Viewed in the aforesaid contest I find no reason to interfere with the impugned orders so passed by the respondents. Resultantly the appeal filed on behalf of the appellant having no merits is dismissed with no order as to costs. Copies of the signed judgment be released to the parties according to the procedure of the Tribunal. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Labour) 49 [Punjab Labour Appellate Tribunal, Lahore] Present: JUSTICE (RETD.) M. ABDUL ghafoor lodhi ZAHID MIRZA-Pelitioner Versus DIRECTOR (ADMN) WASA, L.D.A., Lahore and another-Respondents Revision No. 75 of 1991, accepted on 6.3.1991 Back beneflts- —Grievance petition-Acceptance of-Back benefits awarded-Counsel for aggrieved employee filing compromise foregoing back benefits-Acceptance of compromise-Challenge to-Khawaja Tariq Masood ceased to be counsel for petitioner so far as question of discharge of back benefits is concerned-What he did, was not on behalf of petitioner—Compromise foregoing back benefits should have been from petitioner—Even if it be accepted that in reality there was some compromise between parties, safest course was to effect same during pendency of an appeal—Even during pendency of grievance petition, a compromise could be effected on statements of parties—Held: Evidence produced by respondents does not inspire confidence and lower court erred in accepting same-Revision accepted and case remanded for determination and recovery of back benefits. [Pp.51&52]A&B Mr. H.R. Haider, Advocate for Petitioner. Mr. Mahboob Ahmad, Advocate for Respondents. Date of hearing: 4.3.1991 judgment This is a revision reporting that the order dated 8.1.1991 recorded by the learned Presiding Officer, Punjab Labour Court No.2, Lahore, whereby the petition brought by the petitioner under section 51 of the Industrial Relations Ordinance,1969 for the determination and recovery of back benefits was dismissed, is without jurisdiction and of no legal effect. 2. The facts are that the petitioner had been removed from service and his petition brought under section 25-A of the Industrial Relations Ordinance, 1969 was accepted and he was directed to be reinstated in service with back benefits. The case of the respondents is that after the petitioner was directed to be reinstated in service with back benefits and before he was given duty, Kh.Tariq Masood, Advocate, who was counsel for the petitioner in the grievance petition. had asked RW-2, Assistant Director that if the order of reinstatement with back benefits passed in favour of the petitioner was not challenged in appeal and duty was given to the petitioner, he would forego his right to back benefits and that this offer was accepted, whereupon the petitioner had brought Ex.R-1 bearing his signatures and the signatures of his counsel Kh.Tariq Masood and thereupon he was given duty. The petitioner denies his signatures on Ex.R-1 and denies to have asked or authorised Kh. Tariq Masood, Advocate, that if no appeal was preferred and duty was given to him he was prepared to forego back benefits. 3. The petitioner has appeared as his" own witness as PW-1, wherein he denied to have asked Kh.Tariq Masood, Advocate, that if the ordei of reinstatement was not challenged in appeal by the respondents, he would forego back benefits. To rebut his statement Mr. Abdul Ham id Tanvir, Senior Clerk, Wasa, L.D.A. (RW-1), Mr.Hafeez Qureshi, Assistant Director (RW-2) and Kh. Tariq Masood, Advocate (RW-3) were examined. Before the petition under section 51 was brought, the petitioner had brought an application for contempt of court, which was filed as the question of discharge of back benefits was involved. which needed evidence. While filing the contempt petition it was remarked that the petitioner may, if so advised, seek judicial remedy separately with regard to his right to recover back benefits. 4. It has been argued by the learned counsel for the petitioner that the order of reinstatement with back benefits passed by learned Labour Court No.2, had become final as is provided by section 37(4) of the Industrial Relations Ordinance,1969 and neither the said question could be re-opened, nor such a plea could be taken in answer to the petition brought under section 51 of the Industrial Relations Ordinance,1969. The argument has no force. If a plea of discharge is taken in answer to an application brought under section 51, it is to be decided by the court as an incidental question. There can be no other forum except the court which is proceeding with the petition brought under section 51 to entertain and decide the question of discharge. If it is held that no such question can be raised, it would mean that even though after the decision of the grievance petition any amount is paid, the same cannot be adjusted and the employer is liable to pay the back benefits doubly. 5. The argument of the learned counsel for the petitioner, however, is not without force that Kh.Tariq Masood, Advocate, had ceased to be a counsel for the petitioner so far as the question of discharge of back benefits is concerned. The powers given in the power of attorney with regard to compromise etc. can be exercised when some matter is pending in the court and not after the matter has been decided. No special power of attorney for the purpose of discharge of back benefits was executed by the petitioner in favour of Kh.Tariq Masood, Advocate. In the existence of such a special power of attorney, no doubt, it could be said that the said Advocate had authority to have a talk with the respondents with regard to the discharge of back benefits. So whatever Kh.Tariq Masood, Advocate, did, it was not on behalf of the petitioner. So far as Ex.R-1 is concerned, it should have been from the petitioner since it was he who is alleged to have foregone his right for back benefits. The wording of Ex.R-1 clearly shows that it was fiom Kh.Tariq Masood for the petitioner. The signatures purporting to be of the petitioner do not appear on the right place. Usually the signatures of the executant are under the writing but in the present case the alleged signatures of the petitioner appear on the left margin. There is no explanation to it. Since it was an agreement between the petitioner and the respondents, the petitioner should have been its executant. A leading lawyer like Kh.Tariq Masood is expected tabe aware of the legal position that after the decision of grievance petition he had no power to act as attorney of the petitioner out of court. If during the pendency of some case in which Kh.Tariq Masood had been a counsel, of course, it could be believeable that he had under the instructions of the petitioner prepared the writing. So far as RW-2 is concerned, he being the Assistant Director Legal was to great extent an interested witness. It was expected from him to have insisted that the writing Ex.R-1 should have been from the petitioner bearing his signatures on the right place. Since he was employed to assist Wasa, L.D.A. on the legal side, he is expected to know the legal repurcussions and niceties and it cannot be said that he failed to understand the importance of Ex.R-1. So far as RW-1 is concerned, he being an employee of the respondents may be said to be an interested witness. Even if it be accepted for a moment that in reality there was some compromise between the parties, the safest course for both the parties was to effect the compromise in the pendency of an appeal^ The respondents should have preferred an appeal within limitation and during the pendency of the appeal the statement of the petitioner could be got recorded to the effect that he wanted to forego his right of back benefits if the appeal was withdrawn or the order of the learned lower court was modified disallowing back benefits to him. No court fee is paid on the memorandum of appeal, therefore, the respondents were not likely to incur any expenses. Even during the pendency of the grievance petition a compromise could be effected between the parties and on the statement of the parties the respondent could have reinstated the petitioner without back benefits. The fact that Ex.R-1 is not from the petitioner but from Kh.Tariq Masood, Advocate, coupled with the fact that no compromise took place during the pendency of the grievance petition and the method of effecting compromise after preferring an appeal was not adopted, clearly shows that the plea that the petitioner had foregone his right of back benefits after the decision of his grievance petition, is not correct. Since the petitioner was denying the factum of compromise, he could only himself come in the witness box to say in the negative and could not produce any other evidence. The evidence produced by the respondents, which has been scrutinized and discussed above, does not inspire confidence, and the learned lower court erred in accepting the same. 6. As a result of. the observations made above, the revision is accepted and setting aside the impugned order of the learned lower court, the case is remanded for determination and recovery of back benefits. Nemo for the parties. (MBC) Revision accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 52 [Service Tribunal, Azad Jummu & Kashmir, Mazaffarabad] Present: SARDAR muhammad sajawal khan, chairman, and raja muhammad ashraf kay am, member Syed WASEEM HUSSAIN SHAH-Appellant versus REVENUE DEPARTMENT, AZAD JAMMU & KASHMIR, and another- Respondents Service Appeal No. 384 of 1987, dismissed on 12.11.1990 Seniority —Government servants-Seniority of-Determination of-Only question which needs determination is that whether respondent No.2 is senior to appellant as Girdawar or not—Appellant seems to have been misconceived by an entry inadvertantly made by Collector which was afterwards rectified through corrigendum and appellant was declared to have been promoted as Girdawar w.e.f. 23.3.1973-Appellant was promoted as Girdawar on 20.11.1975-HeId: Appellant cannot be held senior to respondent No. 2—Appeal dismissed. [P.53]A Syed Nazir Hussain Kazmi, Advocate for Appellant. Raja Muhammad HanifKJian, Advocate for Respondent No.2. Date of hearing: 12.11.1990. judgment Raja Muhammad Ashraf Kayani, Member.--The appellant, Syed Waseem Hussain Shah, Girdawar has brought the present appeal under Section 4 of Service Tribunal Act, 1975 in which he has impleaded Revenue Department through Commissioner Revenue and Mr. Mohammad Younis Khan Naib Tehsildar as respondents. By virtue of this appeal the appellant has prayed that the order dated 5.12.1987 passed by the Commissioner Revenue be set aside and he be promoted as Naib Tehsildar. 2. The facts giving rise to the present appeal to be briefly stated are that the respondent No.2 and the appellant were appointed as Patwari in the Revenue Department on 19.9.1964 and 10.9.1966 and were promoted as Girdawar in Revenue Department and Settlement Department on 22.3.1973 and 20.11.1975 respectively. But while determining the inter-se seniority among Girdawars of Revenue Department posted in District Poonch, the date of promotion of respondent No.2 as Girdawar was recorded as 17.5.1977 in the order No.732- 41/S.O/77 dated 17..7.1977 passed by the Collector District Poonch. The appellant preferred an appeal before the Commissioner Revenue and prayed that he be declared senior to the respondent No.2 as Girdawar but it was turned down through the impugned order and hence this appeal. 3. The appeal was admitted for regular hearing on 20.1.1988. The respondent No. 1 failed to appear before this Tribunal despite valid service and was proceeded ex-parte while respondent No. 2 submitted his objections that the appeal was frivolous and was not maintainable for being time barred. 4. We have beared the parties and perused the record. The learned counsel confined their arguments to the pleadings of the parties. The order dated 20.5.1974, passed by Collector, District Poonch was also referred to by the learned counsel for respondent No. 2 by which the respondent No. 2 was declared senior to the appellant. 5. It has been frankly conceded by learned counsel for the appellant that as Patwari, the respondent No.2 was senior to his client but his contention is that after his promotion as Girdawar, his client stood senior to the respondent No. 2. It is contended by the learned counsef for appellant that the appellant was promoted as such on 17.7.1977, therefore, the appellant was decidedly senior to respondent No. 2 and he was due to be promoted as Naib Tehsildar earlier to the respondent No.2. But on behalf of respondent No. 2 it is argued that he was senior to the appellant and was promoted as Girdawar on 25.1.1973, whereas the appellant's promotion to the post of Girdawar in Settlement Department was ordered on a subsequent date viz 20.11.1975. It is further submitted by the learned counsel for the respondent No. 2 that order dated 17.7.1977 passed by the Collector District Poonch, was rectified through a corrigendum issued by the Office of Commissioner Revenue Department on 21.6.1979, and the respondent No.2 was held duly promoted as Gridawar from 23.3.2973. The respondent No. 2 was also held senior to the appellant by the Collector Poonch vide Order No. 856/S.Q/74 dated 20.5.1974 and he being senior to appellant was rightly promoted as Naib Tehsildar as against the appellant. 6. We have given our earnest consideration to the arguments of either side and have also go'ne through the record placed before us. The only question which needs determination in this appeal is that whether the respondent No. 2 is senior to the appellant as Girdawar or not? It is well established from the record that respondent No. 2 was promoted by Collector District Poonch vide No. 61- 64/S.Q/73 dated 25.1.1973 as Nazir and thereafter he was transferred as Office Qanoongo, Tehsil Haveli vide order No. 345-47/GB/73, dated 22.3.1973. The appellant seems to have been misconceived by an entry which was perhaps made inadvertantly by the Collector Poonch while determining the inter se seniority of the Girdawars of his District wherein the date of promotion of the respondent No. 2 was recorded as 17.5.1977. This mistake, however, was brushed aside through a corridgendum dated 12.6.1979 whereby the respondent No. 2 was declared to have been promoted as Girdawar w.e.f. 23.3.1973. The appeallant was promoted as Girdawar in Settlement Department on 20.11.1975 and was transferred by Collector District Poonch as Girdawar B-5 in Revenue Department vide Order No. 688-96/S.Q./82, dated 12.4.1982. The appellant, therefore, could not be held senior to the respondent No. 2 in the cadre of Girdawars. Apart from that the promotion of respondent No. 2 was never challenged before any competent authority by the appellant. The appellant in the circumstances cannot be allowed any benefit of an entry which was inadvertantly recorded in the impugned seniority list. 7, For tfie foregoing reasons the appeal being devoid of force is dismissed. No order as to the costs. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Labour) 54 [Sindh Labour Appellate Tribunal at Karachi ] Present: JUSTICE (RETD.) AHMED ALI U. QURESHI NEK DAYER-Appellam Versus TRUST CERAMIC INDUSTRIES, KARACHI-Respondent Appeal No. Kar-78 of 1990, dismissed on 29.11.1990 Industrial Relations Ordinance, 1969 (XXIII ot'1969)-- —S.16(5)(b) read with Section 25-A-Employee-Misconduct by-Dismissal from service of-Challcnge lo-Dclay in filing appeal-Condonation of-Prayer for-Contention that on receipt of telphonic message about murder of his father-in-law, he had to leave for Swat, hence there was delay in filing appeal- Apart from word of appellant, there is no evidence in support of his averments—No FIR with regard to alleged murder or even a certificate from Headman or Tribal Chief was produced-Copy of impugned order was delivered to him on 14.2.1990 whereas he left for Swat on 26.2.1990-He had enough time to gel appeal prepared and filed within this period-Held: Burden of proof was on appellant to explain delay and to show that it was for reasons beyond his control-Appeal dismissed as time-barred. [P.55JA&B Mr. Muhammad Shafiq Qureshi, Advocate for Appellant. Mr. S.S. Jehangir, Advocate for Respondents. Date of hearing: 20.11.1990. decision This is an appeal against the order, dated 11.2.1990, passed by learned Presiding Officer, Sindh Labour Court No.IV, Karachi , whereby the grievance petition filed by the appellant was dismissed. 2. The Biref facts of the case are that the appellant was admittedly a workman employed by the respondents. On 16.7.1988 he is alleged to have picked up a quarrel with Kiln Foreman Taj Muhammad, who was also President of C.B.A., and used abusive and filthy language against him and also threatened him with dire consequences. Taj Muhammad filed complaint with the management whereupon the appellant was charge sheeted on 18.7.1988. After domestic enquiry in which he was found guilty of the alleged charges, he was dismissed from service vide order, dated 3.8.1988. After serving grievance notice upon the respondent the appellant filed grievance petition before the Labour Court . 3. I have heard Mr.Muhammad Shafiq Qureshi, learned Advocate for the appellant and Mr.S.S. Jchangir Khan, learned counsel for the respondents and have also gone through the record and proceedings of the case. 4. A preliminary objection is raised by the respondents that the appeal is time-barred. The impugned order was passed on 11.2.1990 Appellant applied for copy on 14.2.1990 and he was delivered the copy on the same day. However he filed appeal on 24.3.1990. He would be given one day as time for obtaining copy and therefore appeal had to be filed by him on or before 13.3.1990. However he filed appeal after lapse of 11 days. He also moved application under section 16(5)(b) of I.R.O., 1969, for condonation of delay of ten days- on the ground that on 23.2.1990 he received telephonic message that his father-in-law had been murdered and therefore he went to his home town from where he returned on 20.3.1990. He contacted his Advocate, who prepared appeal on 23.3.1990. 23 rd being 'Friday', he filed appeal on 24.3.1990. Mir Murtaza Ali, Factory Manager of the respondents had filed counter-affidavit challanging the averments made by the appellant in his affidavit. 5. Apart from the word of the appellant there is no evidence in support of his averments. No. 'F.I.R.' vviih regard to alleged murder or even a 'certificate from the Head Man or Tribal Chief was produced with regard to the alleged murder of the appellants father-in-law. Besides the copy of order was delivered to him on 14.2.1990 whereas he is alleged to have left for 'Swat' on 26.2.1990. He had enough time to get the appeal prepared and filed within this period as his counsel in the lower Court and in appeal is same. He need not have waited upto the last moment. He is alleged to have received telephonic massage on 23rd February and left for Swat on 26.2.1990. Knowing about his alleged custom he could have got the appeal prepared and filed before he left Karachi . He has not even produced any 'ticket' or 'Railway Voucer' about his alleged journey to Swat. According to him as per custom, he had to remain in Swat in mourning for 'Forty days'. Admittedly he returned before forty days expired viz on 23.3.1990. If he did not strictly abide by the custom he could have come even earlier in order to file appeal within time. 6. The burden of proof was upon the appellant to explain the delay in filing appeal and to show that the delay was for the reason beyond his control. Apart from the fact that there is no evidence in support of the averment made by the appellant in his affidavit, in support of 'Application for Condonation of Delay' the fact remains that appellant could have come earlier to file the appeal within time or could have filed appeal before he left Karachi. The appeal is time-barred and therefore dismissed as such. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 58 [Punjab Service Tribunal, Lahore] Present: MUHAMMAD MlillMOOD ASLAM PlRZADA, CHAIRMAN AND ABDUL hamid kuan, member Sh. ABDUL GHANI-Appellant versus SECRETARY, HOUSING, ENVIRONMENTAL & PHYSICAL PLANNING DEPARTMENT and another-Respondents Appeal No. 46 of 1989, dismissed on 23.10.1990 — Civil Services— —Government servant-Removal from service of--Challenge to-Appellant was due to resume his duty on 1.7.1987 after expiry of medical leave-His request for sanction of L.P.R. with effect from 1.7.1987 was contrary to instructions on subject—He also became guilty of un-authorised absence from duty—Held: There is no reason to interfere with impugned orders passed by respondents- Appeal dismissed. [Pp.59&60]A,B,C&D Mr. Muhammad SadiqAbbasi, Advocate for Appellant. Mr.A.G. Humaviin, District Attorney for Respondents. Date of hearing: 27.9.1990. judgment ShAbdul Ghani has filed this appeal under Section 4 of the Punjab Service Tribunals Act 1974 against the impugned orders dated 20.10.1988 and 29.11.1988 passed by respondents. The appellant has impleaded the Secretary, Housing Environmental and Physical Planning and Province of Punjab through Chief Secretary, Punjab Lahore as respondents. Through this appeal the appellant has prayed that the impugned orders passed by respondents be set aside and his appeal be accepted. 2. Salient features of this appeal preferably are that after the expiry of medical leave which ended on 30.6.1987 the appellant did not report for duty to the Secretary MP & EP Department, Lahore and instead applied on 10.1.1988 for L.P.R. w.e.f. 1.7.1987. Since he had stayed away from duty w.e.f. 1.7.1987 he was considered absent without permission. In any case under the rules L.P.R. could not be sanctioned in conjuction with any other kind of leave. Charge sheet and statement of allegations were served on the appellant and an Enquiry Officer was appointed who after holding the enquiry found the accused official guilty of the charge. The authority after observing the legal formalities and agreeing with the findings of the Enquiry Officer and recommendations of the authorised officer imposed the major penalty of removal from service vide his impugned order dated 20.10.1988. The appellant filed a departmental appeal which was rejected vide impugned order dated 29.11.1988. 3. We have heard the learned counsels for the parties at length and perused the record with the assistance of the representatives of the department. 4. The main contention of the learned counsel for the appellant is that the procedure incorporated in the Punjab Civil Servants (E&D) Rules 1975 has not at all been adopted during the enquiry proceedings. Conversely, the learned District Attorney vehemently opposed the appeal and argued that in the light of comments/report furnished on behalf of respondents the impugned orders passed by the respondents may be allowed to stand. 5. We have given our anxious thought to the submissions advanced by the learned counsels for the parties and find that the appellant was due to resume his duty on 1.7.1987 after the expiry of medical leave. The appellant's request to sanction L.P.R. w.e.f. the same date i.e. 1.7.1987 was contrary to the instructions on the subject and could not therefore be accorded to. These instructions are reproduced below:- "Any official opting to proceed on retirement has to intimate to his Appointing Authority at least three months in advance of the date from which he wishes to retire". 6. The application for L.P.R. submitted by him was also against the provisions of Rule 25 of the Revised Leave Rules 1981 which reads as under:- "Provided that leave preparatory to retirement shall not be combined with any other kind of leave". 7. Thus not only that, his request was against rules but in the process he also became guilty of authorised (?)'absence from duty. 8. As far as the departmental proceedings in this case are concerned we find that these have been conducted in accordance with the procedure incorporated in the Punjab Civil Servants (E&D) Rules 1975. 9. Viewed in this context we find no reason to interfere with the impugned orders passed by respondents and as such dismiss the appeal with no orders as to costs. 10. Copies of signed judgment be released to the parties according to the procedure of the Tribunal. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour)60 [Sindh Labour Appellate Tribunal at Karachi] Present: justice (retd.) ahmad ali u.qureshi J K.M.C. SANITARY & GENERAL EMPLOYEES UNION, THROUGH ITS JOINT SECRETARY-Applicanr versus KHALID NAFEES and 25 others-Respondents Revision Application No. Kar.341 of 1989, dismissed on 27.11.1990. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.8(7)--Change in office-bearers of union-Change duly registered by Registrar-Appeal against-Refusal of Labour Court to set aside change— ' Challenge to-Labour Court has power to interfere only in Iwo cases, namely (1) when there is dispurtowith regard to change of office-bearers,, and (2) where Registrar refuses to register change in office-bearers—Labour Court has no power to cancel change in office-bearers registered by Registrar—In this case, ap'peal was filed by union through its Joint Secretary and not by Joint Secretary in his capacity as office-bearer of union-Held: Appeal has rightly been rejected by Labour Court. fPj.61&62]A&B PLJ 1979 Tr.C (Labour) 245,1979 PLC 96 and 1980 PLC 908 rel. Ch. Latif Saghai; Advocate for Applicants. Mr. M.M.Jeelani, Advocate for Respondents. Date of hearing: 27.11.1990. decision This is a revision application against the order, dated 8.7.1989, passed by the learned Presiding Officer, Sindh Labour Court No.IV at Karachi, whereby the appeal filed by the applicants under Section 8(7) of the Industrial Relations Ordinance, 1969, was dismissed. 2. It appears that the K.M.C. Sanitary & General Employees Union applied to the Registrar, Trade Unions on 4.2.1988, for effecting the change in office­ bearers as a result of the alleged decision taken in the general body meeting allegedly held on 8.1.1988; which change was duly registered by the Registrar. This application for change was made by the respondent No.6, as the General Secretary of the union. He also was the General Secretary of the union even prior to the change in the office-bearers. The Union, through its Joint Secretary, S.M. Ishaq filed an appeal before the learned Labour Court under sub-section (7) of Section 8 of the Industrial Relations Ordinance, 1969, disputing the fact that any meeting of the general body was held and, therefore, made a prayer in an application that the Labour Court may set aside the change received by the Registrar, Trade Unions on 4.2.1988, as being of no legal consequence. 3. I have heard Mr. Latif Saghar, the learned Advocate for the applicants and Mr. M.M. Jeelani, the learned Advocate for the respondents and have also gone through the record and proceedings of the case. 4. To appreciate the respective arguments of the parties it is necessary to re-produce sub-section (7) of Section 8 of the Industrial Relations Ordinance, 1969, which reads as under:- "In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under sub-section (5) any officer or member of the trade union may apply or appeal to the Labour Court, who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the Constitution or in the officers of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh election of the union under his supervision." In many publications word 'apply' which is under-lined by me in the sub­section reproduced above has been omitted, but, in fact the sub-section reads as reproduced above. 5. On the bare reading of this sub-section, it would be seen that the Labour Court has power to interfere only in two cases; namely, (1) when there is a dispute with regard to the change of office-bearers or (2) where Registrar refuses to register the change in office-bearers or alteration in the Constitution under sub­ section (5) of Section 8. In case of refusal by the Registrar to effect the change in the office-bearers or alteration in the Constitution under sub-section (5), the Labour Court can direct the Registrar to effect the change in the office-bearers or alteration in the Constitution. In the case of a dispute in relation to change (in) the office-bearers, if the Labour Court is satisfied that there is a genuine dispute, it can for the reasons, to be recorded, order the Registrar to hold fresh elections. This sub-section does not give the powers to the Labour Court to cancel the change in the office-bearers registered by the Registrar. Furthermore, it will be found that two words are used, namely, 'apply' or 'appeal'. Similalry later on words 'application' or 'appeal' are used. In my humble opinion, an application would be in respect of the dispute with regard to the change in the office-bearers whereas appeal would be against the order of Registrar refusing to register the change. The Law does not require the Registrar to intimate the registration of change in the office-bearers. In the case of Asmat Javed, President of P.IA.C. Employees' Union (Regd.) Karachi versus Raftq Ahmad and another, reported in 1979 P.L.C. 96, the learned National Industrial Relations Commission has held that appeal to the Labour Court was admissible only against refusal of Registrar to register change in officers as -intimated by the Union, but, no appeal, however, lies against Registrar's decision to register such a change. Similar view has been held by the learned Punjab Labour Appellate Tribunal in the case of Ch. Dost Muhammad and others versus Syed Muzaffar Hussain Shah, reported in 1980 P.L.C. 908. 6. On a plain reading of sub-section (7), it will be seen that application or appeal has to be filed only either by officer or by a member of the trade Union. In the case of Muhammad Shaft versus Employees union, Hysons Sugar Mills, KJianpur and another, reported in P.L.J. 1979 fr.C. (Labour) 245; it was held by the learned Punjab Labour Appellate Tribunal that appeal by union and not by office-bearers was not envisaged by Section 8(7). The appeal was accepted by the Labour Court, but in revision it was dismissed by Labour Appellate Tribunal. 7. In the present case, the appeal was filed by the union through its joint Secretary and not by the Joint Secretary in his capacity as office-bearer of the union or in his capacity as member of the union. As such, it has been rightly rejected by the learned Labour Court . 8. Mr. Ch. Lalif Saghar, the learned Advocate for the applicant contends, that this appeal should be treated as application with regard to dispute of the change of the office-bearers and the Labour Court should have, after recording evidence, ordered the holding of fresh elections. However, as pointed above, even that application has to be filed by the officer or member of the union and not by the union itself and furthermore there is no such prayer in the application for holding fresh elections. This contention of Mr. Latif Saghar, therefore, has got no force. Even, otherwise, the elections allegedly held on 8.1.1988 were for 2 years and Mr. M.M. Jeelani, the learned Advocate for the respondent states that fresh elections would be held in January, 1991. The applicant, if he so desires, may requisition the session of the General Body for holding fresh elections. I find no reason to interfere with the impugned order in the exercise of the suo moto revisional jurisdiction of this Tribunal and, therefore, would dismiss the revision applicaton. (MBC) Revision dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 63 [Federal Service Tribunal, Islamabad] Present: justice (RETD) syed ally madad shah, chairman, salahuddin chaudhri, and rasheeduddin arshad, members ABDUL QAYUM-Appellant versus CHIEF JUSTICE, FEDERAL SHARIAT COURT and others-Respondents Appeal No.l79(R) of 1989, dismissed on 31.12.1990 Jurisdiction-- -—Employee of Law Division-Deputation to Federal Shariat Court-­ Repatriation of-Challenge to-Whether Tribunal has jurisdiction to entertain appeal-Question of-Contention that appellant's appointment in Federal Shariat Court was on regular basis and he could not be repatriated to his parent department~By virtue of Article 208 of Constitution, Federal Shariat Court is empowered to make rules regarding its officers and servants and it has made requisite rules known as "Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982-Since officers and servants of Federal Shariat Court are appointed by that Court, they are not "civil servants" within definition of term contained in Civil Servants Act, 1973—Held: Tribunal has no jurisdiction to entertain appellant's appeal and give him relief-Appeal dismissed. [P.64JA Mr. Fazal Elahi Siddiqi, Advocate for Appellant. Sardar Muhammad Amir Akbar Kltan, Standing Counsel for Respondents. Date of hearing: 3.12.1990. judgment Justice (RETD) Syed Ally Madad Shah, Chairman:-Appellant Mr. Abdul Qayyum was serving as a Stenographer (grade 14) in the Law Division when he was appointed as a temporary Private Secretary (Grade 16) in the Federal Shariat Court with effect from 1.6.1980. Notification of his appointment, as such, was issued on 20.8.1980. He continued serving there until order of his repatriation to his parent department was issued by the Federal Shariat Court under U/o No.l(51)/80 Admn. FSC, dated 24.1.1989. He preferred departmental appeal against the said order to the Full Bench of the Federal Shariat Court on 12.2.1989, representing that he had become regular employee of the Federal Shariat Court and he was not to be reverted to the Justice Division. His appeal was not entertained by the Federal Shariat Court despite his repeated efforts. Ultimately, he preferred this appeal on 10.6.1989 to seek following relief: - "the impugned order of the appellant's reversion from the post of Private Secretary (B-17) of the Federal Shariat Court to the post of Stenographer (B-16) in the Justice Division may be set aside being void and without lawful authority and the appellant may be declared as regular Private Secretary of the Federal Shariat Court and ordered to continue as such with effect from the date of his illegal reversion with all consequential benefits." 2. The contention of the appeallant is that his appointment in the Federal Shariat Court was on regular basis and he had become regular employee of the Federal Shariat Court and he could not be repatriated to the Justice Division. Since the appellant claims to be a regular employee of the Federal Shariat Court, there arises a jurisdictional question whether the appellant is a 'civil servant' to seek relief from this Tribunal. By virtue of Article 208 of the Constitution, the Federal Shariat Court is empowered to make rules providing for the appointment of its officers and servants and to provide for the terms and conditions of their employment. The Federal Shariat Court has made the requisite rules known as "The Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, 'Civil servant' defined in clause (b) of sub-section (1) of Section 2 of the Civil Servants Act, 1973 means a person who is a member of an All-Pakistan service or of a civil service of the Federation; or who holds a civil post in connection with the affairs of the Federation, including any such post connected with the Defence except (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract or on work-charge basis or who is paid from the contingencies; (iii) or a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923. It is provided under Section 5 of the Civil Servants Act, 1973 that appointments to an All-Pakistan service or to a civil service of the Federation or to a civil post in connection with affaris of the Federation, including any civil post connected with the Defence, shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf. Since the officers and servants of the Federal Shariat Court are appointed by the Federal Shariat Court, they are not 'civil servants' within the definition of the term contained in the Civil Servants Act, 1973. Jurisdiction of the Service Tribunal extends to the civil servants only. Thus, this Tribunal does not have jurisdiction to entertain the appellant's appeal as framed, and give him relief prayed for. The appeal is, therefore, dismissed, with no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 64 [Federal Service Tribunal, Islamabad] Present: justice (retd) syed ally madad shah, chairman, and rasheeduddin arshad, member MAQSOOD AHMAD RAHI-Appellant versus SECRETARY, POPULATION WELFARE DIVISIONS, ISLAMABAD and 2 others-Respondents Appeal No.432(R) of 1989, dismissed on 13.12.1990. Jurisdiction- —Government servant—Entry as civil servant. under Federal Government-­ Transfer to Provincial Government later on-Seniority determined-Challenge to—Whether Tribunal has jurisdiction to entertain appeal-Question of- Appellant entered service in Family Planning Organisation and did acquire status of civil servant under Federal Governmerit-His services were transferred to Punjab Government under Section 8 of 1983 Ordinance—Held: Appellant ceased to be a civil servant under Federal Government and he cannot maintain this appeal before Tribunal—Appeal dismissed. [Pp.67&69]A,B&C Mr. Abdul Hakeem Klian, Advocate for Appellant. Respondents 9,13,14,38 and 41 in person. Date of hearing: 10.12.1990. judgment Justice (Retd) Syed Ally Madad Shah, Chairman:- Appellant Mr. Maqsood Ahmed Rahi belongs to the Population Welfare Programme service, which was introduced, although in a different name, at the provincial level, under the First- Five Year Programme (1960-65). He was initially appointed as a Family Planning Supervisor by the District Family Planning Board, Rawalpindi, under ofhce order No.l55/FP, dated 1.7.1965. The designation of the post was changed from time to time. Under the Second Five Year Programme, a Family Planning Council was established at the Centre. In the year 1970, the whole set up of the Family Planning Programme under the Boards and the Family Planning Council was federalised under the name "Population Welfare Programme" under the Population Planning Division and the services under the Boards and the Councils were integrated into one service and fresh appointment orders were issued. In order to give statutory recognition to the service, an Ordinance called the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 was promulgated on 11.5.1981, whereunder certain procedure was laid down for restructuring and reorganisation of the service in the Population Welfare Programme and those who could qualify for retention in service were issued appointment orders, while the services of those who could not qualify or who could not be absorbed for want of vacancies were terminated. The appellant was amongst those who could qualify for absorption in service and was accordingly appointed in grade-17 with effect from 10.3.1981 vide notification No.3-38-81-Imp dated 28.11.1981. The appellant had earlier filed an appeal No.92 (R)/80 before this Tribunal for determination of his seniority. His appeal was allowed by judgment dated 22.2.1982 and it was directed that the competent authority should proceed to prepare the seniority list in accordance with Section 8 of the Civil Servants Act, 1973 read with Section 8 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981. Accordingly, a final integrated seniority list of grade-17 officers in/under the Population Welfare Division was circulated on 16.3.1982. The appellant's name was mentioned therein at S.No.14. Subsequently, an Ordinance No.XIX of 1983, known as Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983 was promulgated on 2.8.1983, whereunder the field activities of the Population Welfare Programme were transferred to the Provincial Governments along with the serving staff who had entered the service at the inception of the programme under the respective Provincial Boards. As a resultant measure a provisional seniority list of officers in B-16, 17, 18, 19 and 20 in/under the Population Welfare Division was issued on 24.10.1983 in supersession of the seniory list issued on 16.3.1982. The appellant filed objections with the Population Welfare Division on 7.1.1984. By virtue of de-centralisation of the field activities of the Programme under the 1983 Ordinance, as aforesaid, the Government of the Punjab published a provisional seniority list of the officers allocated to the Province of Punjab on 26.5.1986. The appellant's name appeared at S.No. 64. The appellant made representation to the Director General/Secretary, Punjab Population Welfare Office, Lahore on 2.6.1986. His representation remained un-respondcd to. The appellant moved a miscellaneous apPlication No.157/86 in his decided appeal No.92(R)/80 on 23.7.1986 for taking contempt in court action against the respondent Government for having violated the order of the Tribunal for preparing seniority list, as directed. The application was dismissed by a Full Bench of this Tribunal by order dated 20.8.1988, although some interim orders were passed earlier. The appellant filed a petition for leave to appeal before the Supreme Court. His petition was dismissed by the Supreme Court by order dated 10.10.1989. He then preferred this appeal on 26.10.1989 with the following prayer:- "It is respectfully prayed that on acceptance of this appeal, the provisional seniority list Annexure IV may be graciously declared without legal authority and direction be given that final integrated seniority list dated 16.3.1982 Annexure II, stands restored and the case of the appellant for promotion may be decided accordingly." 2. The appellant has impleaded the Federation of Pakistan, through Secretary, Population Welfare Division; Director General/Secretary, Planning and Development Department Population Welfare Programme, Lahore , and the Secretary, Establishment Division, Government of Pakistan; and 64 Grade 17 officers in the Population Welfare Programme, Punjab as the private respondents. 3. The main grounds urged by the appellant are that he had become civil servant under the Federal Government, in pursuance of the provisions of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 and his services could not be transferred to the Government of the Punjab even under the provisions of the Transfer of Population Welfare Programme (Field Activities) Ordinance No.XIX of 1983, and the Punjab Government was not competent to have issued impugned seniority list in respect of officers who were transferred under the 1983 Ordinance and reference has been made to a decision of the Punjab Service Tribunal in case No.278 of 1986 dated 8.10.1986. 4. The appeal has been contested by the Federal Government. The Punjab Government has not contested. Amongst the private respondents, only respondents 4, 5, 8, 9,10, 12,13, 15, 19, 20, 21, 22, 24, 25, 26, 30, 31, 34, 37, 38, 39, 41, 46, 49, 53, 54 and 55 have filed written objections. They have raised legal pleas that the appeal is not maintainable in as much as that the appellant is not a civil servant under the Federal Government and the appeal is also time barred and also that the appellant has not signed the appeal himself. They have also contested the appeal on merits. The respondents No.14, 18, 31, 32, 35, 36 and 44 have filed ; separate, written statements in support of the case of the appellant. The rest of the private respondents have chosen to remain ex-pane. 5. At the hearing, Mr. Abdul Hakeem Khan, Advocate appeared for the appellant. The appellant too was present. The Federal Government was represented by Mr. Syed M Ilyas, Section Officer, Population Division & Mr. Aftab Mahmud, Section Officer, Establishment Division. Mr. Hamid Nawaz Khan, Assistant District Population Officer, Rawalpindi appeared on behalf of the Punjab Government. From amongst the private respondents, only respondent No.9,13,14, 38 and 41 have appeared and none else. 6. The learned counsel for the appellant has reiterated the same grounds urged in the appeal. Briefly tracing the history of the service in the Population Welfare Planning Programme, he has contended that the appellant became civil servant under the Federal Government in pursuance of the provisions of Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (hereinaftr referred to as the 1981 Ordinance) and his status as such, did not change consequent to the transfer of field activities of the Programme to the Provincial Governments under the provisions of Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983 (hereinafter referred to as the 1983 Ordinance). He has urged that the appellant is entitled to count his seniority as a civil servant under the Federal Government and he retains his position that was assigned to him in the seniority list issued in the year 1982 as directed by this Tribunal in its judgment in appeal No.92 (R)/80 and the seniority list issued subsequently is of no effect. To meet the objection of limitation, he has advanced the plea that after the circulation of the seniority list published in 1986, the appellant approached this Tribunal for taking action against the violation of its judgment in appeal No.92(R)/80 by undoing the seniority list published in 1982 and the delay so occasioned is condonable and condonation application has been filed. 7. Since the Government side was not represented by any Advocate, the departmental representatives could not render proper assistance. They simply relied on the written objections. Only private respondent Mr. M.S.Qureshi put up resistance at the hearing of the appeal. He raised the question of maintainability of the appeal on the ground that the appellant could not invoke the jurisdiction of this Tribunal as he had ceased to be a civil servant under the Federal Government consequent to his transfer to the Punjab Government under the provisions of Section 8 of the 1983 Ordinance. He has made reference to the decision of this Tribunal in the case of Sardar Ahad Bakhsh KJian Kliitran (Appeal No.319 (R)/87) decided on 27.8.1989. He has pointed out that the appeal before the Supreme Court bearing No.691-R of 1989 against that judgment was withdrawn by the appellant therein, namely Sardar Ahad Bakhsh Khan Khitran as per order of the Supreme Court dated 18.3.1990. However, he supported the appellant's plea that he is a civil servant under the Federal Government as he himself claimed to be the civil servant under the Federal Government. He also opposed the appeal on merits as well. He also urged that the appeal is time barred as the seniority list was published in 1986 and the appeal has been filed in 1989. 8. The first and foremost question for determination is whether the" appellant is a civil servant under the Federal Government as to invoke the jurisdiction of this Tribunal. The history of the service of the appellant has been outlined above. He enterted the service in the Family Planning Organisation on his appointment made by the Family Planning Board, Rawalpindi . He did acquire the status of a civil servant under the Federal Government under the provisions of 1981 Ordinance. His services were transferred to the Punjab Government under the provisions of Section 8 of 1983 Ordinance. Section 8 reads as unden- "8. Transfer, etc. of employees.-(l) Notwithstanding anything contained in any contract or agreement or in the conditions of service, an employee shall be retained in the Population Welfare Division or transferred to the Provinces as follows:- (a) an employee who was recruited or appointed by the Council shall be retained in, or, as the case may be, stand transferred to the Population Welfare Division: (b) an employee who was recruited by the Board shall be retained in, or, as the case may be, stand transferred to the Province in which he was originally recruited: (c) an employee who was originally recruited by the Board but subsequently appointed by the Council shall be retained in, or, as the case may be, stand transferred to the Population Welfare Division: (d) an employee shall, if he was recruited for the Population Welfare Division, be retained in that Division and, if he was recruited against a post in a Province, stand transferred to the Province of his domicile; and (e) a female employee who is married or a widow may be allowed the option to be transferred to the Province of the husband or later husband's domicile: Provided that the Provincial Government of the Province in which an employee who is to be so transferred to the Population Welfare Division or to another Province is serving immediately before the commencement of this 'Ordinance may retain the services of such employee for such period as may be agreed upon between the Provincial Government and the Population Welfare Division or, as the case may be, the Government of the other Province to which he is to be transferred: Provided further, that the services of an employee, who immediately before the commencement of this Ordinance was working in relation to any of the functoins of the Federal Government under the Ordinance, shall be retained by the Federal Government in consulation and with the agreement of the Provincial Government concerned. (2) Every employee referred to in sub-section (1) shall be entitled to the same terms and conditions of service with respect to grade, remuneration, leave and pension to which he was entitled immediately before the commencement of this Ordinance. (3) Unless otherwise directed by the Provincial Government, all authorities and officers and ministerial staff exercising powers and functions immediately before the date of transfer shall, as from that day, continue to exercise their respective powers and functions. (4) No employee referred to in sub-section (1) shall be entitled to any compensation because of his transfer by virtue of or under, the provisions of this Ordinance." Provisions of Section 8 of 1983 Ordinance, reproduced above, were thoroughly examined by a Full Bench of this Tribunal in the identical case of Sardar Ahad Bakhsh Klian Kliitran in appeal No.319 (R)/87, decided on 27.8.1989, and it was held that officers transferred to Provincial Governments under the provisions of Section 8 of 1983 Ordinance had ceased to be civil servants under the Federal Government and they had become civil servants under the respective Provincial Governments and the appeal was dismissed mainly on that ground. A petition No.691-R of 1989 was filed in the Supreme Court for permission to file appeal against that decision but the petition was withdrawn later and that judgment holds the filed. The learned counsel for the appellant did not advance any argument which could pursuade us to hold a different view. Following the decision of the Tribunal in the said case of Sardar Ahad Bakhsh KJian KJiitran in appeal No.319 (R) 1987, we hold that the appellant is not a civil servant under the Federal Government and he cannot maintain this appeal before this Tribunal. 9. Question of limitation is also involved in this appeal but since we have held that the appeal falls beyond the jurisdiction of this Tribunal, we refrain from recording any finding on the question of limitation, lest it might cause prejudice to the appellant's case if taken to any other forum. 10. The appeal also apparently involves the question of non-maintainability on the ground that it is directed against a provisional seniority list in the light of the decision of the Supreme Court in the case of S.M.H. Rizvi V. Maqsood Ahmad (PLD 1981 SC 612). 11. Consequent to the findings that the appellant ceased to be a civil servant under the Federal Government on his transfer to the Provincial Government of the Punjab under the provisions of 1983 Ordinance, the appeal is not maintainable being without jurisdiction and, therefore, we should not go into the merits of the case. 12. The appeal is dismissed as being without jurisdiction, but with no order as to costs. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Misconduct) 69 [Before Disciplinary Committee of Pakistan Bar Council] Present: dr. nasim hasan shah, chairman, sharaf faridi, ch. muhammad ashraf waiilaii, abdul hakeem kundi and muhammad younus bhatti, members C/z.KARAM ELLAHI BHATTI-Appellant versus PAKISTAN BAR COUNCIL, RAWALPINDI and another-Respondents Appeal No.--Nil, dismissed on 8.9.1990 [Against order dated 14.3.1990, of Tribunal of Pakistan Bar Council.] (i)Jurisdiction— —Advocate-on-Record-Misconduct by-Suspension of licence-Challenge to- Whcther Pakistan Bar Council has exclusive jurisdiction to proceed against an Advocate-on-Record if matter pertains to proceedings before Supreme Court- -Qucstion of-It is agreed that Pakistan Bar Council has jurisdiction to hear and decide complaint against an Advocate-on-Record and Supreme Court does not have exclusive jurisdiction in this behalf—It is also agreed that appellant deserves lesser pcnanlty-Held: However, finding that Pakistan Bar Council has exclusive jurisdiction to enrol and take disciplinary action against Advocates of Supreme Court including Senior Advocates and Advocates-on- Record is not concurred with—Held further: Finding that "amendment made in Pakistan Supreme Court Rules in pursuance of amendment introduced in 1985 in Act of 1973 and retention of Rule 30 of Order IV in said Rules, is neither in accordance with Constitution nor law", is also not concurred with. (Per Nasim Hasan Shah, Chairman). [Pp.73&74]E&F (ii) Jurisdiction-- —Advocate-on-Record-Misconduct by-Suspension of licence of-Challenge to—Whether Pakistan Bar Council has no jurisdiction to proceed against an Advocate-on-Record if matter pertains to proceedings before Supreme Court- -Qu'estion of-lt is Pakistan Bar Council who is to maintain Roll of Advocateson-Record apart from Advocates of Supreme Court and Senior Advocates under Section 23 of Legal Practitioners & Bar Councils Act, 1973-Similarly, Section 28 speaks ol its jurisdiction and authority to enrol an Advocate of Supreme Court—Section 36 empowers it to issue certificate of enrolment-­ Held: A bare reading of Chapters VI and VII of Act leaves no room for any doubt that Pakistan Bar Council has exclusive jurisdiction to enrol and take disciplinary action against Advocates of Supreme Court including Advocateson-Record-Held further: Order IV Rule 30 of Supreme Court Rules does not effect jurisdiction of Paksilan Bar Council-Finding of Tribunal upheld but lesser penalty awarded. (Per majority). [Pp.72&73]A,B,C&D Ch. Chulam Ahmad Bliaiti, Advocate for Appellant. Muhammad Iqbal, Respondent No. 2 in Person. , Mr. Muhammad Nawaz Abbasi, A.A.G. or behalf of A.G. Punjab. Date of hearing: 8.8.1990. ordhr Mohammad Younus Bhatti, Member.-The appeal was disposed of through a short order dated 8.8.1990. Now we propose to give the reasons therefor. This Appeal has been directed against the order dated 14.3.1990 passed by the Tribunal of the Pakistan Bar Council whereby the Appellant Mr. Karam Elahi Bhatti, AOR, Supreme Court, has been suspended from practise for a period of one and half years and also has been burdened with a cost of Rs. 10,000/- to be paid to the Respondent/Complainant. 2. Facts as noted in the impugned order are that the Complainant- Respondent No. 2 engaged Late Syed Riax Ahmad Pirzada, Advocate, Supreme Court, for filing a Petition for Special Leave to Appeal against a decision of the Lahore High Court dated 4.12.1985 whereby a Regular Second Appeal from the Judgment of the 1st Appellate Court, confirming the Judgment & Decree passed by the Civil Judge against the Appellant for a sum of Rs. 24500/- in a suit filed by his wife, had been dismissed. Mr. Pir/ada had in turn engaged Mr. Karam Elahi Bhatti as A.O.R. A Petition for Special Leave to Appeal was drafted on 1st of March, 1986 and alongwith a stay application was filed on 3rd of March, 1986. It was returned to the Advocate-on-Record and thereafter not filed after removing the objections till long after in September, 1987. When the matter came up for hearing before the Supreme Court on 5.10.1987, leave to appeal was refused because it was found that the petition was barred by 430 days and there was no explanation for the delay. 3. The matter was referred to the Tribunal of the Pakistan Bar Council, who after recording the evidence as produced by the parties passed the impugned order. 4. It has been contended on behalf of the appellant that since the entire process of registeration, working and removal of an Advocate-on-Record is done by the Supreme Court and the Pakistan Bar Council has nothing to do with it, as such the Tribunal and no jurisdiction to hear and decide the Complaint of misconduct against an Advocate-on-Record. It has further been contended with reference to Rule 30 of Order IV of the Pakistan Supreme Court Rules that the Pakistan Bar Council is not competent to proceed against an Advocate-on-Record if the matter pertains to the proceedings before the Supreme Court and not having been referred to the Pakistan Bar Council. Since the matter has not been referred by the Supreme Court in the instant case, as such the entire proceedings taken by the Tribunal are illegal and without jurisdiction. On merits of the case it has been argued that no misconduct or negligence whatsoever has been proved on the record and the order impugned is a result of misreading of evidence. Finally the learned Counsel for the Appellant has slated that punishment is too harsh in as much as the Complainant at the most has suffered a loss of Rs. 25,000/- as a result of alleged misconduct of the Appellant whereas the Appellant has been suspended from practise for one and a half years apart from imposition of Rs. 10,000/- as fine which in no way is justifiable in the circumstances of the case. 5. The learned Assistant Advocate-General appearing on notice under Rule 124, of the Pakistan Legal Practitioners & Bar Councils Rules, 1976 has argued while relying on Section 2(a), Section 21 and Section 28 of the Legal Practitioners & Bar Councils Act, 1973 (hereinafter called the Act 1973) that it is the Pakistan Bar Council alone who is competent to hear the Disciplinary Complaints against the Advocates Supreme Court, Senior Advocates as well as Advocates-on-Record. It is further argued that the Supreme Court has to only frame Rules laying down the conditions to be fulfilled by a person for admission as an Advocate of the Supreme Court. However, it is the domain of the Pakistan Bar Council to enrol an Advocate of the Supreme Court. It is further contended that the Advocate-on- Record has to be Advocate Supreme Court first and is also covered by clause (d) Section 21 and as such the tribunal has rightly taken the cognizance of the matter. On merits of the case he submits that the punishment awarded to the Appellant is harsh and it should be reduced. 6. We have also heard the Complainant-Respondent No. 2 who submits that the order of the Tribunal is quite right in the circumstances of the case and no fault can be found with it. 7. The term 'Advocate' has been defined in Section 2 (a) of the Legal Practitioners & Bar Councils Act, 1973 which reads:- 2(a) "advocate" means an advocate entered in any roll under the provisions of this Act; Similarly the classes of Advocates have been described in Section 21 of the said Act which is as unden- "S.21 Classas of Advocates:- There shall be the following four classes of Advocates, namely:- (a) Senior Advocates of the Supreme Court; (b) Advocates of the Supreme Court; (c) Advocates of the High Court, and (d) other Advocates." Although 'Advocate-on-Record' does not find mention in the said Section, yet clause (d) thereof certainly covers this class of Advocates as well. Further Section 23 of the 'Act 1973' provides:- S.23 Preparation etc of roll of Advocates of the Supenne Court. The Pakistan Bar Council shall prepare and maintain a Roll of Advocates of the Supreme Court on which shall be entered the names of- (a) all persons who were, as advocates, senior advocates or advocates on record, entitled to practise in the Supreme Court immediately before the commencement of the Bar Councils and Legal Practitioners (Amendment) Act, 1978; and all persons who are admitted as advocates of the Supreme Court under the provisions of this Act: Provided that no person shall call himself or hold himself but as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court, and the right of a person to appear, act and plead before that Court shall be subject to the said Rules.It is thus clear that it is the Pakistan Bar Council who is to maintain the Roll of Advocates-on-Record apart from Advocates of Supreme Court and Senior Advocates. Similarly Section 28 of the 'Act' speaks of the jurisdiction and authority of the Pakistan Bar Council to enrol an Advocate of the Supreme Court. Section 30 of the 'Act' provides that an application for admission as an Advocate of the Supreme Court shall be made in the prescribed form to the Pakistan Bar Council. Section 34 of the 'Act' authorises the Pakistan Bar Council to prescribe and receive the fee for enrolment as an Advocate of the Supreme Court. Lastly Section 36 empowers the Bar Council to issue certificate of enrolment. The combined effect of all the above provisions is that the jurisdiction and authority to enrol an Advocate, of the Supreme Court, (a Senior Advocate, or an Advocateon-Record) lies with the Pakistan Bar Council alone. 9. Article 191 of the Constitution of the Islamic Republic of Pakistan 1973, provides:- "Subject to the constitution and law, the Supreme Court may make Rules regulating the practice and procedure of the Court."There can be no second opinion that the law referred to in this Article is the •Legal Practitioners & Bar Councils Act, 1973'. Chapter VII of the Act 1973 deals with the conduct of Advocates, and jurisdiction of Bar Council to entertain and adjudicate upon the Complaints against the Advocates and to punish those found guilty of misconduct. A bare reading of Chapters VI & VII of the 'Act 1973' leaves no room for any doubt that the Pakistan Bar Council has the exclusive jurisdiction to enrol and take disciplinary action against the Advocates of the Supreme Court including Senior Advocates and Advocates-on-Record. 10. In the year 1985, however, certain amendments were introduced amongst others in Chapters VI and VII of the 'Act 1973' whereby the enrolment and disciplinary matters of Advocates Supreme Court were taken out of the jurisdiction of the Pakistan Bar Council and entrusted to the Supreme Court, but subsequently in tne year 1988 the amendments were withdrawn and the powers of the Pakistan Bar Council amongst others regarding these two matters were also restored. Amendments made in the Pakistan Supreme Court Rules in pursuance of the amendments introduced in 1985 in I he 'Act 1973' and retention of Rule 30 of Order IV in the said Rules, is therefore neither in accordance with the Constitution nor the law i.e., Legal Practitioners & Bar Councils Act, 1973. 11. Be that as it may, the Rule 30 of Order IV of the Supreme Court Rules, also visualises the reference by the Supreme Court to the Pakistan Bar Council for taking appropriate disciplinary action by it, against an Advocate Supreme Court. It is thus clear that the jurisdiction of the Pakistan Bar Council is not affected even by the power enshrined in the above said Rule. The first two arguments made on behalf of the Appellant, are thus misconceived. 12. Coming to the third argument, i.e. on merits of the case we are not convinced by the arguments raised by the leanred Counsel for the Appellant and we find on persual of the record that no exception can be taken to the finding recorded by the Tribunal. However, we find considerable force in the last argument of the learned Counsel for the Appellant that the punishment awarded to the Appellant is somewhat harsh. We are also conscious of fact that the Advocates have to be very careful in handling and conducting their cases and should be shown no leniency if found guilty of misconduct and negligence in the preformance of their duties. When the case is examined in the light of the 'doctrine of proportionality', we find that the ends of justice can be met by awarding lesser penalty. Therefore, we reduce the period of punishment of the appellant of suspension from practise to a period for which the Appellant already remained suspended. The sentence with regard to payment of fine is set aside. Justice Dr. Nasim Hasan Shah, Chairman:-- I agree that the Pakistan Bar Council has the jurisdiction to hear and decide the complaint against an Advocate-on-Record and the Supreme Court does not have the exclusive jurisdiction in this behalf. I also agree that the appellant deserves the lesser penalty. I would, however, calrify that I do not concur with the finding that "the Pakistan Bar Council has the exclusive jurisdiction to enrol and take disciplinary action against the Advocates of the Supreme Court including Senior Advocates and Advocates-on-Record" (underlining is mine). Nor with the finding that "the amendment made in the Pakistan Supreme Court Rules in pursuance of the amendment introduced in 1985 in the Act of 1973 and retention of Rule 30 of Order IV in the said Rules is neither in accordance with the Constitution nor the law i.e. Legal Practitioners & Bar Councils Act 1973". It is, in my opinion, unnecessary to give detailed reasons in this behalf, because, in my view, the above findings are really not essential for determination of this appeal as the finding that the Pakistan Bar Council does have the jurisdiction to hear and decide the complaint of misconduct of an Advocate-on-Record is sufficient to dispose of this appeal. With these observations I agree with the ultimate order proposed by my learned colleague Mr. Muhammad Younus Bhatti that the period of punishment of the appellant of suspension from practice shall be reduced to the period that he has already remained suspended from practice and the sentence with regard to payment of fine shall be set-aside. (MBC) • Lesser penalty awarded.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 74 [Punjab Service Tribunal, Lahore] Present: muhammad MAIIMUD aslam pirzada, chairman CH. MUHAMMAD RAFIQUE MAJITHIA-Appellant versus GOVERNMENT OF PUNJAB , THROUGH SECRETARY, S.G.A & I DEPARTMENT, and another-Respondents. Appeal No.798/392 of 1987, dismissed on 15.12.1990. Adverse Remarks— —-Adverse remarks-Expungment of-Refusal of-Challenge to-Impugned adverse remarks were recorded by Inspection Judge which apear to be an honest assessment of work and conduct of appellant-In absence of any personal motive alleged against reporting officer, no exception can be taken to recording of adverse remarks against appellant-Bar Resolution and affidavits of Advocates placed on record of appeal, lose all significance inasmuch as such like commendatory documents can be easily managed by a judicial officer-­ Held: Appeal is devoid of any merits-Appeal dismissed. [Pp.75&76]A,B&C PLD 1986 SC 684 rel. Mr. Muhammad Sayeed Akhtar, Advocate for Appellant. Mr. A.G. Humavun, District Attorney for Respondents. Date of hearing": 24.11.1990. Here in italics judgment Ch. Muhammad Rafique Majithia, Additional District & Sessions Judge has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Government of the Punjab through Secretary, S.G.A. & I Department and the Registrar Lahore High Court, Lahore as respondents. Through this appeal the appellant has prayed that impugned adverse remarks pertaining to the period from 1.1.1985 to 4.5.1985 conveyed to him be expunged and order dated 8.8.1987 passed by respondent No.2 rejecting his representation, be set-aside. 2. Brief facts of this case are that the appellant was communicated adverse remarks in his ACR which are reproduced below: PART III ATTITUDE 3. Integrity Below average a) General PARTY. a. Penpictiire. Integrity of the officer in the estimation of the local bar is not enviable. 3. The appellant filed a representation before respondent No.2 which was rejected vide order dated 8.8.1987. Hence this appeal. 4. I have heard the parlies at length with the assistance of departmental representatives. 5. The main contention of the learned counsel for the appellant is that the impugned adverse remarks are vague and against the facts. On the other hand learned" counsel appearing on behalf of respondent No.2 and learned D.A. have fully supported the case of respondents and submitted that remarks are fully justified and may be allowed to stand on the ACR of the appellant. 6. I have given my anxious thought to the submissions advanced by the learned counsel for the parties and find that the impugned adverse remarks were recorded by MrJustice Sh.Kha/.ir Hayat who was the Inspection Judge for Muzaffargarh at the relevant time. The remarks appear to be. an honest assessment of the work and conduct of the appellant which otherwise came under review before the High Court from time to time and can also be based on credible information recieved from the Members of the Bar. During the period under report the conduct of the appellant also came under judicial scrutiny in Crl. Misc. No.405/B-1985 which was a petition for cancellation of bail before arrest in a case U/S 302 PPC granted by the appellant by order dated 4.4.1985 and while cancelling the bail of respondents it was noticed by the High Court in order dated 1.6.1985 that the conduct of the appellant was objectionable as he failed to observe normal practice of the Court in making necessary inquiry and requisite certificate as to the disposal of a previous application by the Sessions Judge and pending the petition for cancellation of bail in the High Court granted bail after arrest to the other accused in the cross case by order dated 2.5.1985 and this was done apparently in order to take the sting out of the case and to satisfy the complainant party. The conduct of the appellant, it was observed must be condemned as most reprehensible and a copy of the order dated 1.6.1985 passed in the cited case was ordered to be sent to the Registrar Lahore High Court for placing the same on the personal file of the appellant. In the absence of any personal motives alleged against the reporting officer, to which there is not an iota of indication in the memorandum of appeal, no exception can be taken to the recording of the adverse remarks against the appellant. The representation of the appellant was rejected by the Judges of Lahore High Court which evidently showed the justification of the remarks and in view of the dictum of the Supreme Court of Pakistan in the case reported as Government of the Punjab vs. Ehsanul Haq Sethi (PLD 1986 SC 684) this is to be given to (?) the highest consideration as emanating from the Judges of Lahore High Court who are supposed to have made an honest assessment of the work and quality of appellant in the judicial hierarchy. 7, Viewed in this context the copy of Bar Resolution and affidavits of advocates placed on the record of the appeal lose all significance inasmuch as such like commendatory documents can be easily managed by a judicial office. The plea of the appellant that during the entire service he did not earn adverse remarks is destructive of itself and goes to prove that so long as he performed his judicial functions in a befitting manner he was awarded good reports and duiing the period under report when his work and conduct-in the assessment of High Court was not satisfactory, he earned adverse remarks. In the light of above discussion this appeal is deviod of any merits and the same h dismissed with no order as to cost. Copy of signed judgment be released to the parties according to the procedure of the Tribunal. (MBC) ppeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 76 [Sindh Labour Appellate Tribunal at Karachi] Present: justice; (retd). ahmed ali U qureshi ABDUL LATIF SHEIKH-Appellant versus GENERAL MANAGER/PERSONNEL, PAKISTAN RAILWAYS, LAHORE and another-Respondents Appeal No. Kar. 206 of 1990, dismissed on 26.11.1990. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.25-A-Worker of Railways-Reversion of-Challenge to-Whether any specific form of grievance notice is prescribed-Question of-Appellant was reverted on 8.9.1989 against which he filed departmental appeal on 12.9.1989 and also sent a reminder on 3.12.1989-Departmental appeal having not been decided, he filed grievance petition on 5.5.1990-Admittedly no grievance notice was given by appellant—Held: No specific form of grievance notice having been provided under IRO, even departmental appeal and subsequent reminder could be considered as grievance notice. [P.77JA 1981 PLC 605. (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.25-A--Worker of Railways-Reversion of--Challenge to~Whether delay in filing grievance petition should be condoned—Question of—In his application for condonation of delay appellant has stated that he being on sick leave and undergoing treatment of a doctor, was declared fit for duty on 3.4.1990—He has not stated therein that because of sickness, he was not able to file grievance petition-He has not explained delay from 3.4.1990 to 5.5.1990- Held: Grievance petition has rightly been dismissed by Labour Court as timebarred. [P.78JC (iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.25-A(4)-Worker of Railways-Reversion of-Challenge to-Whether grievance petition was time-barred—Question of—Grievance petition has to be filed within 2 1/2 months from date of grievance notice even in case no reply is received-Held: Even if departmental appeal or reminder are considered as grievance notice, still grie% ; ance petition would be time-barred. [Pp.77&78]B Mr. M A.Hassan Malik, Advocate for Appellant.' Ch. Latif Saghar, Advocate for Respondents. Date of hearing: 26.11.1990. decision This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No.V at Karachi, dated 30.9.1990; whereby the grievance petition of the appellant was dismissed on the ground that it was time-barred. 2. 1 have heard Mr. M.A. Hassan Malik, the learned Advocate for the appellant and Mr. Latif Saghar, learned Advocate for the respondents. 3. Admittedly, the appellant was reverted on 8.9.1989, which order of reversion he had challenged in the grievance petition. He had filed departmental appeal on 12.9.1989 and also sent a reminder on 3.12.1989. But, the departmental appeal was not decided, therefore, he filed grievance petition on 5.5.1990. Admittedly, except the departmental appeal and the reminder, no other grievance notice was given by the appellant to the respondents. It is contended by Mr. M.A. Hassan Malik, the learned Advocate for the appellant that no specific form of grievance notice is provided under the Industrial Relations Ordinance, 1969 and even the departmental appeal and the subsequent reminder could be considered as grievance notice. He has relied upon certain Case Law in his support. In a case of Habibullah versus Divisional Superintendent, Pakistan Railways etc., reported in 1981 P.L.C. 605, a learned Single Judge of Quetta High Court has held that even a mercy petition submitted after departmental appeal; could be regarded as sufficient compliance of Section 25-A, I.R.O. 1969. I am in agreement with the view of the learned Single Judge of High Court of Quetta as well as with the contention of Mr. Hassan A.Malik. \ 4. However, under sub-section (4) of section 25-A, I.R.O. 1969, the grievance petiton has to be filed within 2 1/2 months from the date of the grievvance notice even in case no reply is received. If the departmental appeal, dated 2.9.1989 or the reminder, dated 3.12.1989. are considered as grievance notices, still the grievance petition filed on 5.5.1990 would be time-barred. The contention of Mr. Hassan A.Malik that his duty report, dated 5.4.1990, be taken as grievance notice is not tenable because by this application, he had only reported for duty and did not seek any redress against the reversion. 5. The next contention of Mr. Hassan A.Malik is that the appellant had fallen sick and, therefore, he had moved an application for condonation of delay. In this application for condonation of delay also, the appellant has not specifically stated the reasons for delay. He has only stated in paras 3 and 4 of his application that being on sick leave and undergoing treatment of a doctor, he was declared fit for duty on 3.4.1990 and, therefore, reported for duty on 5.4.1990. He has not stated therein that because of his sickness, he was not able to file the grievance petition. Even, if this reason is accepted, still on his own showing the appellant was declared fit for duty on 3.4.1990, but, he did not file his grievance petition till 5.5.1990. He has not explained this delay from 3.4.1990 to 5.5.1990. He has relied upon a decision of this Tribunal, reported in 1990 P.L.C. 763, wherein an application for condonation of delay was moved on the ground of illness which was supported by medical certificate and there was no counter-affidavit filed in - rebuttal, therefore, the delay was condoned. However, in this case, the appellant had not filed any affidavit stating that he could not file the grievance petition because of his illness. He had filed an affidavit which is in fact in support of his application for ad-interim injunction. Besides, as pointed above, even, if his sickness is considered as good ground of delay, that ground did not exist after 3.4.1990, when he was certified to be fit. There being no valid reason for delay from 3.4,1990 to 5.5.1990, the grievance petition has rightly been dismissed by the learned Labour Court as being time-barred. I see no merit in this appeal, which is dismissed accordingly. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 78 [Service Tribunal, Azad Janmui & Kashmir, Muzaffarabad] Present: sardar muhammad sajawal khan, chairman and raja Mui iammad ashraf kayani, member MUHAMMAD AFSAR KHAN--Appellant versus INSPECTOR GENERAL OF POLICE and another-Respondents Service Appeal No.424 of 1989, dismissed on 23.12.1990. Senior! ty-- —Police-Subordinate service of-Seniority of employees-Determination of-In upper subordinate police service, seniority between contesting parties is to be settled by dates of confirmation and seniority inter-se of several police officers is to be reckoned from date of their confirmation on post held by them—On post of Sub-Inspector, respondent No.2 held senior position as against appellant as per record-Appellant filed appeal against impugned order on 26.2.1989 while impugned order was passed on 11.12.1986—Held: Appellant brought his appeal to Service Tribunal after it had become completely time-­ barred—Appeal dismissed. [Pp.81&82]A Sardar Raflque Mahmood, Advocate for Appellant. Mr. Abdul RashidAbbasi, Advocate for Respondents. Date of hearing: 23.12.1990. judgment Sardar Mohammad Sajawal Khan, Chairman.--The appellant was an employee of Police Department and was posted as Inspector of Police in Reserve Police at Rawalakot. He has brought this appeal to impugn the order dated 11.12.1986 of Inspector General of Police (respondent No.l) by which Ch. Nawab Khan respondent No.2 was declared senior to him and order dated 28.1.1989 by which his representation before respondent No.l was rejected. The appellant has impleaded Inspector General of Police as respondent No.l and Ch. Nawab Khan as respondent No.2 for seeking his relief against them. 2. The facts of the case to be briefly stated are that both the appellant and the respondent No.2 are employees of the Police Department and at the relevant time were posted as Inspectors of Police in the Police Force (Reserve Branch). According to the pleadings of the parties the appellant joined service of the Police Department in the year 1955 A.D. He was promoted as A.S.I, on 1.8.1971 and Sub-Inspector of Police on 1.2.1974. Subsequently, he was once again promoted as Inspector of Police on 3.11.1982 vide order Book No.444 dated 3.11.1982 (Anex A). Ch. Nawab Khan respondent No.2 joined Police service as Head-Constable on 13.4.1961. He was promoted as A.S.I, on 1.7.1967 and Sub-Inspector of Police on 2.8.1971. He was also promoted as Inspector of Police on 22.12.1982 vide order Anex "B'. The claim of the appellant is that since he was promoted as Inspector on 3.11.1982, he was decidedly senior to respondent No.2 but under the impugned order dated 11.12.1986 Ch. Nawab Khan respondent No.2 was declared to be senior to him and his promotion was also ordered to take .affect retrospectively w.e.f 3.11.1982. Being aggrieved of the aforesaid order, the appellant brought a representation before the Inspector General of Police for reconsideration of the matter but to no avail and as a last remedy he has invoked the jurisdiction of this Tribunal for setting aside the impugned orders on the following grounds taken by him in his memo of appcal:- (/) that the appellant was promoted as inspector on 3.11.1982 and the respondent on 22.12.1982 and as such the appellant was senior to respondent No.2 so far as the seniority of both the Officers inter se was concerned. (//) that the representation of the respondent by which he had challenged the promotion of the appellant was since long disposed of and the matter was finally closed. But the respondent No.2 instead of filing an appeal before this Tribunal brought an appeal before the Minister of Police Department who had only invited comments from respondent No.l. But the respondent No.l instead of submitting his comments about the. promotion of the appellant and dropping respondent No.2 ordered the promotion of respondent No.2 w.e.f the same date on which the appellant was promoted and also declared him senior to the appellant under the impugned order. (Hi) that the averment of respondent No.l to the effect that the respondent No.2 was senior by length of service is against the sendee record and also against the law. In fact the appellant joined police service on 26.8.1955 and the respondent No.2 on 23.10.1955. (n>) that the appellant was not provided with an opportunity of being heard before passing the impugned orders. (v) that the impugned orders were passed with malafide intention to deprive the appellant of his future service career and to help the respondent No.2 against law and facts. 3. The appeal was admitted for regular hearing by a short order dated 21.3.1989 of this Tribunal. The objections put in by the respondent's counsel are that the appeal is incompetent at this forum for the reasons that appellant failed to avail of the departmental remedy available to him before invoking the jurisdiction of the Tribunal. The appeal is time barred and the time spent by the appellant in pursuing a remedy which was not available to the appellant is not condonable. The appellant is not an aggrieved police servant and his appeal is not maintainable on that account. The appellant is not entitled to any relief. 4. It is prayed by the appellant that the impugned orders of respondent No.l dated 11.12.1986 and 28.1.1989 may be set aside and the appellant be given seniority against respondent No.2. 5. We have heard the arguments addressed by the learned counsel of each party. We have also examined the service record of both the parties as was provided by the Central Police Office. It is duly entered in the 'Amatnama' of Ch. Nawab Khan respondent No.2 that he had joined Police service on 23.10.1955 as Foot Constabe. He was promoted as A.S.I, on 1.7.1967 and Sub-Inspector of Police on 1.2.1974 but the order of his promotion as Sub-Inspector of Police was subsequently given retrospective effect w.e.f. 2.8.1971 and he was confirmed on his post with effect from the same date. He was temporarily promoted as Inspector of Police w.e.f. 22.12.1982 but this order of his promotion was subsequently amended and his promotion was ordered to take retrospective effect from 3.11.1982 and was also confirmed against the post of Inspector Police from the said date. The appellant joined Police service as early as 26.8.1955 as a Police Constable and was allotted constabulary No.462. He was promoted as Head Constable on 1.7.1961 and as A.S.I. w.e.f. 1.8.1971. Later on, he was promoted as Officiating Sub- Inspector of Police w.e.f. 1.2.1974 and was confirmed against that post w.e.f. the said date although no separate order was made in that behalf. Subsequently, he was promoted to the post of Inspector of Police temporarily on 3.11.1982 and was confirmed against that post also w.e.f the same date vide order Book No.447 dated 17.12.1984. 6. The points for determination which culminate out of the pleadings of the parties are that whether the appeal is within time and whether the Inspector General of Police held the powers to make the impugned order without giving a notice of hearing to the appellant. The next point for determination is that whether the impugned order was rightly made keeping in view the seniority of the appellant and that of respondent No.2. In the Police service, the seniority of subordinate Police Officers below to the rank of A.S.P. and D.S.P is determined in the light of Police Rules, 1934 as are applicable to Police Service of Azad Government of Jammu and Kashmir State. Sub-Rule (3) of Rule 12-2 of said Rules provides how the seniority of subordinate Police Officers will be reckoned. The relevant rule is reproduced below for guidance:- "12-2. (3) Seniority, in the case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by dates of confirmation, the seniority inter-se of several officers confirmed on the same date being that allotted to them on first appointment: Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmed, regain the seniority which he originally held vis-a-vis any officer promoted or confirmed before him during his deputation." A plain reading of the above rule of law makes it very clear that in the upper subordinate Police service, the seniority between the contesting parties shall be settled by dates of confirmation and that the seniority inter-se of several Police Officers shall be reckoned from the date of their confirmation on the post held by them. Since both the contesting parties are the members of regular Police service, therefore, their inter-se seniority on the post held by them immediately before their promotion shall be an important factor to be given due consideration for the disposal of the present appeal. It is well established from the personal record that while on the post of sub-Inspector Ch. Nawab Khan respondent No.2 because of his earlier entry in the rank and grade of a Sub-Inspector of Police held senior position as against the appellant.. He was raised to the post of Sub-Inspector w.e.f. 2.8.1971 while the appellant was promoted to that post on 1.2.1974 and there could be no two opinions about it that Ch. Nawab Khan respondent No.2 held senior position at the relevant time also when the promotion of the appellant was ordered. The promotion of respondent No.2 was also ordered after one and half months and under the impugned order at a very belated stage, his promotion was given retrospective effect from 3.11.1982 the date on which the appellant was promoted and by doing that he was also declared senior to the appellant. The grounds that urged respondent No.l to make the order definitely carry weight which if not reviewed, would have placed respondent No.2 junior to the appellant for the whole period of his service leaving aside the question whether he could make that order at a belated stage without issuing a notice to the appellant. The Police Rules do not provide any departmental remedy to be availed of by a subordinate police officer against such order as may be affecting his seniority and promotion to the next higher grade. Under such circumstances, we find the provisions of the A/ad Jammu and Kashmir Civil Servants (Appeal) Rules, 1982 (herein after to be referred as Appeal Rules, 1982) much relevant to be made applicable to the present case also. It is manifestly clear that the impugned order was made by the Inspector General of Police (respondent No.l) on a petition which was referred to him by the Minister incharge of the Police Department. Under Rule 3 of Appeal Rules, 1982, the appellant, if aggrieved, was entitled to bring an appeal to the next higher authority within a period of 60 days. But instead of choosing the right course of action, he submitted a representation to the same authority who had made the impugned order. He waited for more than two years for the result of his representation. He has brought his appeal against the impugned order before this Tribunal on 26.2.1989 while the impugned order against him was made long before on 11.12.1986. This shows that he has brought his appeal to this forum after it had become completely time barred. The appellant has not proved any malice on the file against the respondents and the appeal also fails on that account. 7. The upshot of the above discussion is that the appeal fails and the same is hereby dismissed. No order as to the costs. (MBC) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 82 [Sindh Labour Appellate Tribunal at Karachi] Present: JUSTICE (RETD) AHMAD ALI U. QURESIII. S. RIFFAT ALI-Appellant Versus M/S MACDONALD LAYTON & COMPANY-Respondent Appeal No. Kar.271 of 1990, dismissed on 30.4.1991. (i) Retrenchment— —Employee of company—Retrenchment of—Challenge to—Contention that instead of retrenching appellant, he should have been reverted to post of Accounts Assistcnt-This contention was repelled by Labour Court-There is no evidence in this case that appellant retained a lien on post of Accounts Assistant after his promotion as Junior Assistant Accountant—Held: Contention of appellant has riehlly been rejected by Labour Court. [Pp.83&84]A PLJ 1987 SC 581 rel. (ii) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ord. VI of 1968)-- —S.O.12(3)-Employee of company-Retrenchment of-Challenge to-Whether provisions of S.O.12(3) have not been complied with—Question of—S.O.12(3) requires that services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state reason for action taken— Impugned order shows that appellant had become superfluous and, therefore, his services were no longer reguired—Held: Impugned order appears to comply with provisions of S.O.I2(3). [P.84]B&C (Hi) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968(W.P. Ord. VI of 1968)-- —S.O.13 read with S.0.12(3)—Employee of company—Retrenchment of— Challenge to—Appellant had been retrenched from service in accordance with S.O.13 as he could not name any person in his category who was junior to him and was retained in service—Termination order is also in accordance with requirements of S.O. 12(3)—Appellant does not allege any malafide against respondent and admits that all Junior Assistant Accountants were retrenched— Held: Retrenchment order passed by respondent is bonafide and does not call for any interference by Labour Court or Tribunal. [P.85JD Mr. M.Iqbal Aqcel, Advocate for Appellant. Mr. S.M.Yaqoob, Advocate for Respondent. Date of hearing: 23.4.1991. dhcision This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No.III at Karachi, dated 13-11-1990. whereby grievance petition of the appellant wa c dismissed. 2. I have heard Mr.Mohammad Iqbal Aqecl, learned Advocate for the appellant and Mr.S.M.Yaqoob, learned counsel for the respondents and have also gone through the record and proceedings of the case. 3. The brief facts of the case appear to be that the appellant was employed as Accounts Assistant by the respondents on 9-3-1977 but was later on promoted as Junior Assistant Accountant, when his services were terminated on 31-8-1987 on account of redundancy. Being aggrieved by this order he served grievance notice upon the respondent and then filed the grievance petition. 4. The main contention of the appellant is, that some persons junior to himj have been retained and the provisions of Standing Order 12(3) have not been strictly complied with. In his affidavit-in-evidence he has specifically mentioned the name of Mr.Raees Ahmad Jafri but he had admitted that he was Accounts Assistant. It may be pointed that the appellant was admittedly promoted as Junior Assistant Accountant and therefore Mr.Raees Ahmad Jafri could not be said to be belonging the same category as the appellant. In his cross-examintion the appellant has admitted that all the three Junior Assistant Accountants were retrenched alongwith him within a few days. It is contended on behalf of the appellant, that instead of retrenching him he should have been reverted to the post of Accounts Assistant. The learned Labour Court has repelled this contention of me appellant and has relied upon the case of Utility Stores Corporation of Pakistan Limited - Vs.- Punjab Labour Appellate Tribunal & Others PLJ 1987 Supreme Court 581. In that case their lordships considered the plea of the supervisors, who were promoted as Supervisors from Salesmen and whose posts of Supervisors were abolishad, that instead of retrenchment they should have been reverted back as salesmen. This contention of the Supervisors was repelled by their lordships of the Supreme Court who held that the 'right to be reverted to the posts of Salesmen, from which post they were pormoted to the posts of Supervisros, depended on as to whether they retained their lien on the posts of Salesmen, on being promoted as Supervisors'. There is no evidence in the instant case also that the appellant, retained a lien on the post of Accounts Assistant after h's pormotion as Junior Assistant Accountant. As such this plea of the appellant has rightly been rejected by the learned Labour Court. 5. The next question that requires consideration is whether order terminating the services of the appellant complied with the provision of Standing Order 12(3) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 which requires, that "services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken." The very language of this Standing Order shows that even in the case of retrenchment, the order has to be passed in accordance with the provision of Standing Order 12(3). 6. In the instant case the letter of terminaion of srvice of the appellant reads as under:- "We regret to advise that due to redundancy your services are no longer required and as such are terminated with immediate effect. However, you will not be required to serve the notice period and will be paid one month's pay in lieu of therof. You may collect your final dues, if any, from our H.O. Accounts Deptt. on production of usual clearance certificate." The only reason for termination of service of the appellant is shown to be 'due to redundancy his services were no longer required'. Word 'redundant' has been defined in the Chambers 20th Century Dictionary to mean:- "Overflowing; copious; overcopious; superfluous; of workers no longer needed and therefore dismissed". This order would, therefore, show that the appellant had become 'superfluous'and therefore his servises were no longer needed. This order appears to comply with provision of Standing Order 12(3). 7. It is submitted by Mr.S.M.Yaqoob, learned counsel for the respondents that after the appellant had taken his 'full and final dues' he ceased to be an aggrieved person and therefore he had no right to file the grievence petition. In the cross-examination respondent stated that he had taken Provident Fund., but contended that it was not full and final settlement as he was not paid the profit. He has examined one Iftikhar Ahmed, Accountant in the respondent firm who has stated that the Provident Fund, which workers contributed was doubled by the equal amount of the Company and was invested in Government Securities and that the interest earned after such investment was distributed among the contributors every year. He has further stated, that the Provident Fund does not carry any profit or interest from any other source. He further stated, that the respondent regularly paid the interest of Provident Fund to the applicant, till the applicant refused to accept the interest on the Provident Fund vide Ex.3/C. He states that letter Ex.3/A dated 2-9-1987 was prepared at the request of the applicant showing full and final settlement after his termination. Thus the appellant had received full and final settlement and no dues remained outstanding against the respondents. 8. In the case of Rchman - Vs.- Sind Labour Appellate Tribunal & Others 1983 PLC 210 a Division Bench of Sind High Court held that:- "Whcre amount representing accrued wages, notice salary and provident fund collections were tendered through cheques by employer alongwith termination order and such cheques were accepted and encashed by workman without demur, his right to invoke jurisdiction of Labour Court stood extinguished." 9. From the above discussions it will be seen that the appellant had been retrenched from service in accordance with Standing Order 13 as he could not name any person in his category, who was junior to him but was retained in service. His plea that he should be reverted as Accounts Assistant was rightly rejected by the learned Labour Court. The termination order of the appellant is also in accordance with the requirement of Standing Order 12(3). He does not allege any malafide against the respondents, rather admits in the cross- examination that all the junior Assistant Accountants were retrenched. He has D further admitted that gradually, by advancement of small construction companies, the work of respondent company reduced. He further admitted that respondent company had been bringing retrenchment on various occassions for the last several years. He has also admitted that the project of Crescent Textile Mills, Faisalabad where he was working had been completed. Thus the 'retrenchment order' passed by the respondents is bonafide and docs not call for any interference by the Labour Court or by this Tribunal. 10.1 find no merit in this appeal which is, therefore, rejected. (MBC) Appeal dismissed.

PU 1991 Tr PU 1991 Tr.C (Services) 85 [Federal Service Tribunal, Islamabad] Present: justice (Rirrn) syi-d ally madad shah, chairman MUHAMMAD ARIF KAYANI-Appellant versus CHAIRMAN, FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and others—Respondents Appeal No.l7(R) of 1989, dismissed on 12.1.1991 (i) Seniority- —Government servants-Seniority of-Determination of~Whether appellant ranks senior to respondents—Question of—Record shows that respondents 3 to 6 were regularly appointed as Assistants earlier than regular promotion of appellant as an Assistant-It is settled law that ad-Hoc service would not count for purpose of seniority—Held: Respondent No. 3 shall recken his seniority from date of his regular appointment viz. 9.1.1984, but he will not lose his seniority above appellant—Appeal dismissed. [P.89&90]B,C&D 1982 SCMR 408 and 1989 SCMR 935 rel. (ii) Seniority- —Government servants—Seniority of—Determination of—Whether general principle that persons promoted as a regular manner in a particular year, shall, as a class, be senior to those appointed by direct appointment ia same year, is applicable—Question of—Promotion of appellant as an Assistant was regularised with effect from 1.6.1984 whereas ab-hoc appointment of respondent No.3 made with effect from 20.4.1982 was regularised with effect from 9.1.1984—In seniority list, dates of entry in service of respondents 4,5 and 6 are shown as 19.1.1984, 24.1.1984 and 20.3.1984 respectively-On general principles of seniority in 1987, appellant was placed above respondents—Held: On representation of respondents, position was changed subsequently and general principle of seniority that promotees in same year shall rank senior to direct appointees, is not applicable. [P.88JA Mr. Fazal Hussain Cliaudlvy, Advocate for Appellant. Sardar Muhammad Amir Akbar Klwn, Standing Counsel for Government, for Respondents 1 & 2. Mr. Shah Abdur Rasliid, Advocate for respondents 3 to 6. Date of hearing: 9.12.1990. judgment Appellant Muhammad Arif Kayani, an Assistant in the Federal Public Service Commission, has preferred this appeal for determination of his seniority vis-a-vis the respondents 3, 4, 5 and 6 (M/s M.Saleem Khan, Muhammad Aslam Choudhry, Shujaat Hussain and Sher Zaman). 2. The case of the appellant, briefly stated, is that he, while serving as Upper Division Clerk (UDC) in the Federal Public Service Commission, was promoted to officiate as Assistant (graclc-11) with effect from 1.4.1982 (FN) against a short term vacancy as per office order No.l48/82, dated 1.4.1982. Later, he was allowed to continue to officiate as an Assistant on temporary basis until further orders vide office order No.297/82, dated 28.6.1982. Ultimately, his promotion was regularised as an Assistant with effect from 1.6.1984 as per office order dated 16.12.1984. The respondent No.3, Salcem Khan, was directly appointed as an Assistant in the Federal Public Service Commission on adhoc basis with effect from 20.4.1982. His appointment as Assistant was regularised with effect from 9.1.1984 after competing for regular appointment. The respondents No.4, 5 and 6 were appointed still later. In seniority list of Assistants circulated on 7.4.1987, the name of the appellant was enlisted above the names of the respondents 3,4, 5 and 6. To his surprise, the name of the respondent No.3 was mentioned above his name in the tentative seniority list of Assistants circulated on 9.1.1988, showing the date of his entry in the service as Assistant as 20.4.1982 instead of 9.1.1984. He made representation on 1.2.1988 against his down-grading in the seniority list. The tentative seniority list was finalised and it was circulated on 13.9.1988 maintaining the same position of the appellant and that of the respondents as was indicated in the tentative seniority list. Even the names of the respondents 4, 5 and 6 were placed above him. He preferred departmental appeal on 26.9.1988. Awaiting decision on his departmental appeal for a statutory period of more than 90 days, he filed this appeal on 24.1.1989. 3. The grounds urged by the appellant are that his promotion as Assistant was regularised with effect from 1.6.1984, whereas the adhoc appointment of the respondent No.3 as Assistant with effect from 20.4.1982 was regularised with effect from 9.1.1984 and he (the appellant) being the promotee of the same year was entitled to priority in seniority over the direct recruits of the same year in accordance with the general principles of seniority and, in no case, the respondent No.3 could reckon seniority on the basis of his adhoc appointment. He has also contended that by virtue of his position above that of the respondents 3, 4, 5 and 6 in the seniority list upto 1988, he had acquired vested right of seniority and he could not be deprived thereof by mere antedation of the dates of entry in the service of the said respondents. 4. The appeal is directed against the Federal Public Service Commission and the Establishment Division, as respondent No.l and 2; and the respondents 3 to 6, already named above. They have filed written objections. 5. In their written objections, the respondents 1 and 2 (FPSC and the Establishment Division respectively), preliminary objections have been taken that the appeal is not maintainable as framed and filed in as much as that the appellant has no legal cause of action and the appeal is time barred too. They have urged that the appellant was promoted as Assistant when no post of Assistant was available and the appellant was allowed to continue as Assistant in contravention of the rules. They have taken the si and that the competent authority can rectify the error at any time in the public interest. They have stated that the seniority list of Assistants was under consideration of the Establishment Division and the Federal Public Service Commission, and the Commission constituted a Seniority Committee which formulated a revised seniority list based on the withdrawal of FPSC letters dated 7.10.1987 and 4.11.1987 but that seniority list had been kept in abeyance due to certain objections by the Establishment Division and the seniority list circulated on 13.9.1988 held the field until adjudication by the Tribunal. As regards the factual aspect of the case, the chronological history of the appellant's service and that of the respondent No.3 given by the appellant has been confirmed but it has been added that the appellant's promotion as Assistant was irregular as there was no vacancy therefor. It has further been stated that the seniority list of the Assistants was revised as it was to be prepared in accordance with the specific rules of seniority, published at S.No.46 of Establishment Manual Volume-II (Pages 316 to 318), providing that the seniority was to be reckoned from the date of regular appointment/promotion irrespective of the fact that the appointment, promotion was during the same year or in different year and, therefore, the respondents 3 ic 5 ranked senior to the appellant and that position was reflected in the seniority list circulated on 19.1.1988 and 13.9.1988. 6. The respondents 3 to 6 too have questioned the competency of the appeal and further contended that it is time barred and also that it is liable to be dismissed on account of misjoinder of parties and causes of action. They have further contended that the promotion of the appellant was irregular as no post for promotee, was available. They have stated that the respondent No.3 was appointed as Assistant on 20.4.1982 but his appointment was mistakenly shown as adhoc on the assumption that no vacancy for the persons of Punjab domicile was available, although there was a vacancy for Punjab domicile and it was in that context that his appointment was subsequently regularised with effect from 20.4.1982 and he was given seniority accordingly. They have also made mention that seniority lists were revised and representations were made etc. They have also contended that the seniority was to be determined in accordance with the Office Memorandum No.6/l/649-ME dated 2.5.1951, published in the Establishment Manual Volume-II at pages 316 to 318. 7. Two issues are involved in this appeal; one that of inter-se seniority of the direct recruits and the promotecs; and the other of conversion of adhoc appointment of the respondent No.3 into regular appointment. As regards the first issue, the undisputed facts are that the promotion of the appellant as an Assistant was regularised with effect from 1.6.1984; whereas the adhoc appointment of the respondent No.3 made with effect from 20.4.1982 was regularised with effect from 9.1.1984. As per entries in the seniority list circulated on 13.9.1988, the dates of.entry in service of the respondents 4, 5 and 6 are shown as 19.1.1984, 24.1.1984 and" 20.3.1984 respectively. Thus keeping aside the regularisation of the appointment of the respondent No.3 from back date, the promotion of the appellant to the post of Assistant and the regular appointment of the respondents 3 to 6 as Assistants took place in the same year viz. 1984 and the appointments of the respondents were earlier in time than the promotion of the appellant. However, the appellant was placed above the respondents in the seniority list circulated in the year 1987 on the basis of general principles of seniority published in ESTACODE (1989 edition) at pages 225 onwards providing that officers promoted to the higher grade in a continuous arrangement and as a regular manner in a particular year shall, as a class, be senior to those appointed by direct appointment in the same year. This position was changed subsequently on the representations made by the respondents that they belong to the ministerial service in the Secretariat and their seniority was to be determined in accordance with the rules of seniority contained in office Memorandum No.6/l/649-ME, dated 2.5.1951 published in the Establishment Manual Volume II, at pages 316 to 318. The relevant provision appears in paragraph 5, reproduced below:- "In the grade of Assistants and Upper Division Clerks, permanent and quasi-permanent vacancies are filled partially by direct recruitment and partially by promotion - vide paragraphs 8-10 of the Establishment Division Office Memorandum No.54/2/48-Est. (M.E), dated the 21st November, 1949 (Chapter XXII). In such a case, the seniority of candidates should be determined accordingly as the vacancy to be filled by direct recruitment or that to be filled by promotion occurred earlier in accordance with the roster prescribed in paragraph 10 of the Office Memorandum referred to above. For instance, if two permanent or quasi-permanent vacancies occur in a Division/Department in the grade of Assistant and the first vacancy is, in accordance with the roster referred to above, meant for a direct recruit, the direct recruit should rank in seniority above the departmental candidate (i.e. the candidate appointed by promotion or transfer under the rules) even though the former joins his post after the departmental candidate has been promoted. Temporary service rendered by a departmental candidate is not taken into account for the purpose of seniority when he is appointed on a permanent or a quasi-permanent basis. (Attention is also invited to paragraph 6 below)" 8. The provision of paragraph 5 of the aforesaid Memorandum dated 2.5.1951 apart, the events of the promotion of the appellant and the appointment of the respondents 3 to 6 as Assistants reveal that the respondents 3 to 6 were regularly appointed as the Assistants earlier than the regular promotion of the appellant as an Assistant. There is no evidence that the post the appellant was promoted to as an Assistant on regular basis was available for promotion from any earlier date. In that context, the respondents 3 to 6 stood senior to the appellant. Since the appellant and the respondents are governed by specific rules of seniority contained in the Office Memorandum dated 2.5.1951, the general principles of seniority that promotees of a particular year shall reckon seniority over the direct recruits of that year would not be applicable in their case. 9. As regards the other issue of the regularisation of adhoc service of respondent No.3, it is a settled law that adhoc service would not count for the purpose of seniority. Reference in this respect may be made to the cases reported in 1982 SCMR 408 and 1989 SCMR 935. Of course a plea has been advanced by the respondent No.3, which has been supported by the department, that the respondent No.3 having domicile in Punjab was appointed on adhoc basis against a post allocated to Sind Rural, but it transpired later that some posts in Punjab quota were also available at the relevant time and his appointment, therefore, was regularised against one of those posts from the date of his actual entry in service viz. 20.4.1982. "Ad-hoc" appointment is defined at clause (a) of sub-section (1) of Section 2 of the Civil Servants Act, 1973, as an appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. It follows that the appointment of the respondent No.3 on ad hoc basis was made in a manner otherwise than in accordance with the prescribed method of recruitment. He was actually put under a test for regularisation of his service in the year 1984 and he was then given regular appointment with effect from 9.1.1984. In the circumstances, his appointment as an Assistant could not be regularised with retrospective effect and he shall reckon his seniority from the date of his regular appointment viz. 9.1.1984. However, he will not lose his seniority above the appellant for the reasons stated above. 10. The respondents have taken two preliminary objections against the appeal, one that of time bar, and another that other persons likely to be affected by the relief sought by the appellant have not been impleaded as respondents. The question of limitation stands explained in the way that the appellant's name was shown above the names of the respondents in the seniority list published in April 1987 but it was changed in the tentative seniority list circulated on 9.1.1988 and finalised on 13.9.1988. He made departmental appeal on 26.9.1988 and awaiting decision thereon for a statutory period of 90 days, he preferred this appeal on 24.1.1989 which was within the requisite period of limitation. The appeal, therefore, .does not suffer from time bar. As regards the second .objection, the appellant entertains grievance against the entry made in the seniority list published on 13.9.1988, wherein his name appears at S.No.44, whereas the names of the respondents 3, 4, 5 and 6 appear at S.Nos. 33, 38, 39 and 42 respectively and the persons whose names appear at S.Nos. 34, 35, 36, 37 and 40, have not been made party. Unless -they were made party, the appellant could not maintain the appeal as to have gained the seniority over the respondents. However, the learned counsel for the appellant contended that the appellant did not claim seniority over those persons and, therefore, they were not necessary parties, and what he seeks to be done is that the respondents' names should be placed below his name. This proposition loses sight of the anomaly of bringing down the respondents below those persons who did not challenge their seniority position. The appeal is, therefore, not maintainable on that ground. 11. For the resons recorded above, the appeal has no merit and it is also not maintainable for non-joinder of necessary parties and is dismissed as such, with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 97 [Federal Service Tribunal, Islamabad] Present: maj. GEN. ch. A. rahman KHAN H I(M) AND MlSBAHULLAH KHAN , members NISAR AHMAD-Appellant versus SECRETARY, MINISTRY OF INTERIOR and another-Respondents Appeal No.l69(R) of 1990, dismissed on 29.1.1991. Reversion— —Appellant temporarily promoted as Accountant—Reversion of—Challenge to- -Certain irregulrities were committed by respondent No.2 which' made promotion order unlawful ab m/rio-Departmental Promotion Committee was not empowered to lay down any date limiting probation period of appellant's temporary promotion—Respondent No.2 was not empowered to promote appellant against vacancy of direct recruitment quota and relax qualification-­ Held: Original promotion order of appellant being unlawful ab-initio, is a nullity hi eyes of law and so it ceases to exist-Appeal dismissed. [Pp.99&100]A,B,C&D Appellant in person. Mr. Masood Ahmad Khan, Assistant Director, FIA, Deptt. Representative. Date of hearing: 20.1.1991. judgment Mr.Nisar Ahmad, Assistant (B-ll), the appellant, F.1A. Headquarters, Islamabad, by way of this appeal has challenged the order of his reversion from the post of Accountant (BS-16) to which he was promoted vide order, dated 18.12.1988. It was submitted by the appellant in person that he was reverted to the post of Assistant (BS-11) with effect from 15.2.1990 without serving any show cause notice under the provision of Section 12 of Civil Servants Act, 1973 vide order, dated 17.2.1990. His departmental appeal, dated 28.2.1990 to Secretary, Ministry of Interior, Respondent No.l was rejected vide order, dated 7.4.1990. 2. The appellant in person submitted that vide order, dated 18.12.1988 he was promoted as Accountant (BS-16) on purely temporary basis till 31.10.1989 on the recommendations of the Departmental Promotion Committee and, thereafter, his promotion was to be considered as regular against the post available in the Federal Investigation Agency, Training Institute; Islamabad. The relevant extract of the Notification, dated 18.12.1988 is reproduced below: - "Consequent upon the approval of the competent authority Mr.Nisar Ahmad, Assistant (BS-11) at present working in the Accounts Branch is promoted and appointed as Accountant (BS-16) on purely temporary basis till 31.10.1989 after which his promotion will be considered as regular against the post available in the F.lA. Training Institute, Islamabad with effect from the date he takes over the charge after issuance of the notification. He will, however, work at F.I.A./H.Q, but draw pay against the post of Accountant (BS-16)". 3. In view of the above, it was contended by the appellant that his promotion to the post of Accountant (B-16) was regularised accordingly. He, therefore, had acquired vested right to the post of Accountant (BS-16) and could not be proceeded against under Section 12 of the Civil Servants Act, 1973. The •order, dated 17.2.1990 of his reversion to the post of Assistant (BS-11) is illegal ab initio and unmaintainable under the law. 4. The appellant in person further submitted that the post against which he was promoted was out of the promotion quota and, therefore, he did not have to qualify S.A.S. Examination. The recommendations of the D.P.C. declaring him fit for promotion to the post of Accountant (BS-16) against the promotion quota was the lawful criteria to be followed under the existing promotion policy. The relevant extracts of the minutes of the D.P.C. held on 15.12.1988 in this regard, are reproduced below: - xxx xxx 1. xxx xxx 2. xxx xxx 3. The committee after going through the service record of Mr.Nisar Ahmad has found him fit for promotion as Accountant (BS-16) on purely temporary basis till 31.10.1989, after which his promotion will be considered as regular". 5. Under the circumstances, it was strongly contended by the appellant in person that the impugned order of his 'reversion', dated 17.2.1990 be set-aside and he be reinstated as Accountant (BS-16) with full back benefits. 6. The representative of the respondent department submitted that the appellant was promoted as Accountant (BS-16) against the post of direct recruitment instead of promotion quota on purely temporary basis vide order, dated 18.12.1988. Since the appellant did not possess the qualification of S.A.S. Examination which is mandatory for promotion to the post of Accountant (BS- 16), he was ordered to be reverted under Section 12 of the Civil Servants Act, 1973, which does not envisage any notice. Moreoever, the vacancy against which the appellant was promoted belonged to the direct recruitment quota and so he could not be regularised after 31.10.1989 as mentioned in notification, dated 18.12.1988. It was, therefore, prayed that the reversion order, dated 17.2.1990 be upheld and the appeal be dismissed accordingly. 7. We have heard the arguments of both the parties and perused the record presented to us carefully. We are of the firm view that certain irregularities have been committed by the Respondent No.2 which made the promotion order of the appellant, dated 18.12.1988, as unlawful ab initio. The D.P.C. in its meeting dated 15.12.1988 had acted beyond their jurisdiction to have laid down the date recommending him to be considered as 'regular' i.e. after 31.10.1989. The D.P.C. is only empowered to make following recommendations on any candidate whenever considered for promotion: "(a) declare him fit or unfit for promotion; (b) defer him for promotion; (c) supersede him for promotion. (Guidelines for Departmental Promotion Committee/Central Selection Boards) - (Esta Code page 165 of 1983 Edition). 8. The D.P.C. was not empowered to lay down any date limiting his probation period of temporary promotion as laid down under the rules or considering him regularly promoted automatically as in the case of the appellant's notification cited above. 9. Since the appellant was promoted as Accountant (BS-16), he had acquired a vested right and, therefore, must have been served a show cause notice before ordering his reversion. The fact that he was not a temporary incumbent after 31.10.1989, he could not be reverted under Section 12 of Civil Servants Act, 1973. The promotion of tht appellant ought to have been ordered keeping in view of the policy laid down by the Auditor General in its Memo No.942-GB-HI/24-73- Vol.IV,.dated 20.10.1983. In view of the clarification given in this memo there was no reason for the respondents to order the promotion of the appellant without adhering to the procedure laid down in such cases. The Respondent No.2 was not empowered to promote the appellant against the vacancy of direct recruirement quota and relax the qualification. 10. In view of the above facts, in our opinion, the original promotion order of 01 the appellant issued by Respondent No.2 is unlawful ab initio. It, therefore, is a Inullity in the eyes of law and so ceases to exist. .1. As a result, the appeal before us fails. The impunged order of the appellate authority, Respondent No.l dated 7.4.1990 is upheld. 12. No order as to costs. 13. Parties be informed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 100 [Federal Service Tribunal, Islamabad] Present: justice (RETD). SYED ally madad shah, chairman and maj. gen ch. A rahman khan, HI (M), member. MAAZULLAH KHAN-Appellant versus ADMINISTRATOR, ISLAMABAD CAPITAL TERRITORY and 2 others-­Respondents Appeal No.l72(R) of 1990, accepted on 23.2.1991. Repatriation- : —Appointment of appellant as Soil Conservation Assistant-Repatriation to Islamabad Capital Territory-Executive authority of Federation in respect of Islamabad Capital Territory vested in President-It was to be exercised through Pakistan Agricultural Research Council-In exercise of this power, appellant was appointed by PARC on recommendation of Departmental Promotion Committee-President's order dated 1.9.1987 was later on rescinded and servicess of employees of Soil Conservation Department were transferred to Islamabad Capital Territory-Held: Ruling given by Establishment Division was not correct and impugned order of repatriation of appellant is set aside. [Pp.l04&105]A Raja Muhammad Asghar Khan, Advocate for Appellant. Date of hearing: 13.1.1991. judgment Justice (Retd) Syed Ally Madad Shah, Chairman.-The President made following Order No.18 of 1980, called as the Islamabad Capital Territory (Administration) Order, 1980 (hereinafter referred to as the Order), in respect of exercise of executive authority of the Federation in respect of Islamabad Capital Territory: THE ISLAMABAD CAPITAL TERRITORY (ADMINISTRATION) ORDER, 1980". "PRESIDENT'S ORDER No.18 OF 1980". In pursuance of the Proclamation of .the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No.l of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Orden- 1. Short title and Commencement.--(l) This Order may be called the Islamabad Capital Territory (Administration) Order, 1980. (2) It shall come into force on the first day of January, 1981. 2. Exercise of executive authority of the Federation.—The executive authority of the Federation in respect of the Islamabad Capital Territory shall be exercised by the President, either directly or, to such extent as he thinks fit, through an Administrator to be appointed by him. 3. Certain persons to continue to serve in Islamabad Capital Territory.-- Such persons serving under the Government of the Punjab in, or in connection with the affairs of the Islamabad Capital Territory immediately before the commencement of this Order as may be determined by the Federal Government shall, notwithstanding anything contained in any law or in the terms of their appointment or their conditions of service, continue to serve in, or in connection with the affairs of, the said Territory, until further orders. GENERAL M.ZIA-UL-HAQ President Following proviso was added to Article 2 of the Order under the Islamabad Capital Territory (Administration) (Amendment) Order, 1987: "Provided that the President may, at any time by order in writing-­ fa) direct that the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to any matter specified in the Order shall, subject to such conditions and limitations as may be specified therein, be exercised by such authority established by or under any law as may be so specified; and (b) transfer the services of any person or class of persons employed in the Islamabad Capital Territory in connection with the matters aforesaid to the authority specified in the order under paragraph (a)". 2. In exercise of the powers conferred under proviso to Article 2 of the Order, the President made following order dated 1.9.1987, reproduced below: -"GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR" Islamabad, the Is September, 1987. ORDER S.R.O.No.717.--In exercise of the powers conferred by the proviso to Article 2 of the Islamabad Capital Territory (Administration) Order, 1980 (P.O.No.18 of 1980) the President is pleased to:- (a) direct that the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to the Departments specified in the table below shall be exercised by the Pakistan Agricultural Research Council; and (b) transfer the services of all persons employed in the aforesaid Departments to the Pakistan Agricultural Research Council. TABLE (/) Agriculture Department. (h) Soil Conservation Department. (Hi) Livestock and Dairy Development Department, (iv) Fisheries Department, (v) Cooperative Department. Sd/- MIRZA KAREEM BAIG DEPUTY SECRETARY The aforesaid Order dated 1.9.1987 was rescinded by the Order dated 15.11.1988 which too is reproduced r>,low:- GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR Islamabad, the 15th November, 1988. ORDER S.R.O.1043(l)/88.~In exercise of the powers conferred by the proviso to Article 2 of the Islamabad Capital Territory (Administration) Order, 1980 (P.O. No.18 of 1980), the President is pleased to:- (a) direct that the orders issued under SRO 717(I)/87 dated 1st September, 1987 are hereby rescinded with immediate effect and the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to the Departments specified in the table below shall be exercised by the Administrator, Islamabad Capital Territory; and (b) transfer the services of all persons employed in the aforesaid Department to the said Administration. TABLE (/) Agriculture Department. (h) Soil Conservation Department. (Hi) Livestock and Dairy Development Department. (iv) Cooperative Department. (v) Fisheries Department. Sd/- FAZAL NABI DEPUTY SECRETARY 3. By Memorandum dated 11.7.1988 issued by the Pakistan Agricultural Research Council (hereinafter referred to as the PARC), the appellant was appointed as a Soil Conservation Assistant (BPS-17) in the Soil Conservation (ICT) Islamabad Capital Territory . By virtue of the order dated 15.11.1988, reproduced above, the appellant stood transferred to serve under the Administrator, Islamabad Capital Territory, under office order dated 30.11.1980. A question arose whether the appellant could continue serving in the Soil Conservation Department after transfer of its administrative control to the Administrator, Islamabad Capital Territory. The matter was referred to the Establishment Division. The Establishment Division informed the Interior Division under Office Memorandum dated 3.1.1990 that the appointment of the appellant by the PARC, an autonomous body, against a civil post was not made in accordance with the Rules 6 and 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and there was no provision for relaxation of the rules and, therefore, his appointment against a civil post and also his subsequent transfer to Islamabad Capital Territory Administration were irregular and the PARC may be asked to take him back and adjust him in the Council administration against any BPS-17 post. Accordingly, the appellant was repatriated to the PARC under letter dated 13.1.1990. The PARC did not accept the appellant and they informed the Director (Administration), Islamabad Capital Territory, under letter dated 31.1.1990, that the appellant was appointed as a Soil Conservation Assistant in the Soil Conservation Department by the PARC in exercise of the executive authority delegated to PARC vide SRO No.717(l) 1987, dated 19.9.1987 and he stood transferred alongwith the post to the Islamabad Capital Territory. The appellant made representation dated 16.1.1990 against the order of his repatriation. There was no response to his representation. He preferred appeal No.85(R)/1990 which was dismissed in limine by the Tribunal as it had been filed before the expiry of requisite period of 90 days of making the representation. He then preferred this appeal on 7.5.1990 to seek the following relief:- "It is, therefore, respectfully prayed that the appeal may be accepted, the impugned order of repatriation of the appellant may be set aside with all consequential benefits and he may be declared to be employee of the Federal Govt. under the President's Order". 4. The appellant has assailed the order of his repatriation to the PARC on the grounds that his appointment was made by PARC in exercise of the powers of the executive authority of the Federation delegated thereto and by virtue of his transfer to the Islamabad Capital Territory by order of the President he had become a civil servant from the day of his appointment. 5. The respondents have resisted the appeal contending that the appointment of the appellant by the PARC was not in accordance with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and, therefore, he could not be retained in service in the Soil Conservation Department on its transfer to the Islamabad Capital Territory and he had to be repatriated to the PARC for his absorption there. 6. The appeal was argued by Raja Muhammad Asghar Khan, Advocate for the appellant. The respondents were represented by Mr.Muhammad Arshad Khan, Assistant Agricultural Engineer Soil Conservation Department, ICT and Mj.Ghayyur Abbas, an Assistant of the Establishment Division. 7. The events in the background of the appeal have been stated above. The executive authority of the Federation in respect of Islamabad Capital Territory vested in the President under the Order, as amended. The President, in exercise of the powers conferred by the proviso to Article 2 of the Order, directed under order dated 1.9.1987 that the executive authority of the Federation in respect of Islamabad Capital Territory, relating to the Soil Conservation Department and some other Departments, should be exercised by the PARC. It was in exercise of those powers that the PARC made appointment of the appellant against one vacant post of Soil Conservation Assistant (BPS-17) as per Memo dated 11.7.1988 (Annexure A) which bears out that the appellant's appointment was made on the recommendations of the Departmental Promotion Committee and with prior approval of the competent authority in the Council. The order of 1.9.1987 was later rescinded vide order dated 15.11.1988 whereunder it was specifically mentioned. that services of all persons employed in the Soil Conservation Department and other departments mentioned therein stood transferred to the Administrator, Islamabad Capital Territory , who was authorised to exercise the executive authority of the Federation in respect of those departments. It follows that the appointment of the appellant was made in the Soil Conservation Department under the executive authority of the Federation exercised by the President through the PARC under the Order (i.e. the Islamabad Capital Territory (Administration) Order 1980). The appointment of the appellant was, therefore, deemed to have been made in accordance with law and his services stood transferred to the Administration of the Islamabad Capital Territory by operation of Presidential Order and he was and is deemed to be a civil servant. The ruling given by the Establishment Division was, therefore, not correct and the impugned order of repatriation of the appellant is set aside. The appellant shall be taken in service in the Soil Conservation Department under the Islamabad Capital Territory Administration, and he shall be entitled to all the back benefits as if he had not been relieved of the job under the impugned order. No order is made for costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 105 [Punjab Service Tribunal, Lahore ] Present: MUIAMMAD MAHMUD ASLAM PIRZADA, CHAIRMAN Ch. MUHAMMAD SHAFI--Appellant versus ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF PUNJAB and another—Respondents. Appeal No.3 of 1989, accepted on 19.3.1991. Adverse Remarks-- —Adverse remarks—Expungment of—Prayer for—Appellant has unblemished career as a Government servant spreading over 35 years-Remarks "unlikely to progress further" are not consistent—Held: Respondents have failed to justify these adverse remarks which arc liable to be expunged-Appeal accepted. [P.106JA&B Syed Jamshed All Shah, Advocate for Appellant. Mr.A.G.Hwnayun, District Attorney for Respondents. Date of hearing: 12.3.1991. judgment Chaudhry Muhammad Shafi, Controller of Weights and Measures, Government of the Punjab has filed this appeal under Section 4 of the Punjab Sen-ice Tribunals Act 1974 in which he has impleaded the Additional Chief Secretary, Government of the Punjab, SGA & 1 Department and Secretary to Government of the Punjab, Labour Departm'ent as respondents. The appellant has prayed that the adverse remarks relating to the period from 1.1.1987 to 31.12.1987 communicated to him be expunged and order dated 23.11.1988 passed on the representation of the appellant by the respondent No.l, be set aside. 2. Brief facts of the case are that the appellant was conveyed the adverse remarks recorded in the A.C.R. for the period 1.1.1987 to 31.12.1987 which are reproduced below:- (a) "Unlikely to progress further". (b) "There were complaints against his integrity, he was cautioned and ultimately transferred to HQ. Should be kept away from the field". The appellant made a representation before the Respondent No.l, against the said remarks on 6.4.1988 which was rejected and conveyed to him through letter dated 3.12.1988. Hence this appeal. I have heard the parties at length with the assistance of the departmental itativcs. 4. The main contention of the learned counsel for the appellant is that in the entire service career of 35 years appellant's record is perfectly neat and clean except the impugned adverse remarks. Further argued that the remarks are totally unjustified and there is no material on the record to support the said remarks. On the other hand the learned District Attorney has seriously supported the case of the respondents and contended that the remarks be allowed to stand in the light of the comments/report furnished on behalf of the respondents. 4. 1 have given my anxious thought to the arguments advanced by the parties and have also perused the record of the case carefully. I find that the appellant has unblemished career as a Government servant spreading over 35 years. As for the remarks "unlikely to progress further" it is noteworthy to mention that these are not consistent and Respondent No.2, even did not disagree with the assessment of the Reporting Officer regarding quality and output of work of the appellant. In fact he agreed with what was recorded by the Initiating Authority regarding appellant's work, conduct and integrity. Even Minister for Labour during his visit to the area of appellant's jurisdiction had appreciated the work and conduct of the appellant. I also find that the remarks in the pen picture are unjustified on account of the fact that from Gujranwala , the appellant was shifted as Controller, Weights and Measures Punjab which is a position of higher responsibility. Countersigning Authority has also incorrectly recorded that the appellant was cautioned because if he had received complaints about the appellant's integrity the only proper course would have been to have an Enquiry into the matter to find out the truth and to provide an opportunity to the appellant to explain his position but this was never done as no complaint has been placed on record by the respondents to substantiate this plea. As for the impugned adverse remarks that the appellant was transferred to headquarter, it is added that ten Joint Directors were transferred and appellant was one of them. On careful perusal of the facts of the appeal and keeping in view the above discussion 1 hold that respondents have failed to justify these remarks in their parawise comments/report and as such the remarks conveyed to the appellant are unjustified and are liable to be expunged. 6. In view of the above analysis of the case, I accept the appeal, set aside the impugned orders and direct that the adverse remarks recorded in the A.C.R. of the appellant for the period from 1.1.1987 to 31.12.1987 be expunged and struck off from the A.C.R. of the appellant. There is no order as to costs. Parties be informed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 106 [Punjab Service Tribunal, Lahore ] Present: muhammad mahmud aslam pirzada, chairman -Appellant versus I.G.POLICE, PUNJAB, LAHORE and two others-Respondents Appeal No.616 of 1990, dismissed on 9.3.1991. Adverse Remarks-- —Adverse remarks—Expungment of—Prayer for—Appellant was rotated at different places because wherever he was posted, he created problems for senior officers-At Police Station Yazman, even a strike was organised against his misbehaviour and high-handedness—This brought a bad name for entire Police force—Assessment of Reporting Officer in rating appellant "poor" as SHO is correct—Held: Appeal is devoid of any cogent reason as impugned remarks were purely recorded on merits—Appeal dismissed. [P.108]A Mr. M. Rahim, Advocate for Appellant. Mr. A.G. Hiimavun, District Attorney for Respondents. Date of hearing: 14.2.1991. judgment Munawar Ahmad Leghari. Inspector of Police has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the I.G. of Police, Punjab . Lahore , D.I.G. of Police, Bahawalpur Range , and Fayyaz Ahmad Mir formerly Superintendent of Police, Bahawalpur as respondents. Through this appeal the appellant has prayed that the impugned adverse remarks pertaining to the period from 1.1.1987 to 14.9.1987 conveyed to him be expunged and the order dated 2.6.1990 whereby the representation of the appellant was dismissed be set-aside. 2. Brief facts of this case are that the appellant was communicated the following adverse remarks in his Confidential report mentioned above: 1. Devotion'to duty. Below average. 2. Drill and discipline. Below average. 3. Behaviour with public. Below average. 4. Integrity. 'D' (Poor). 5. Performance as Crime Below average. Control Officer. 6. In detection of cases traced. Poor. 7. Recovery of stolen properly. Poor. 8. Rating as an SHO if so Poor, appointed. 9. Fitness for retention after 25 Unfit, years. 10. Fitness for promotion. Unfit. 11. Class of report. 'D'Poor. 12. GENERAL REMARKS. A discredit to the Department. He frequently was found guilty of burking, was reputed to be very corrupt and was totally indiscipline. There was a strike against his misbehaviour and misdeeds. Not for SHO posting. The appellant filed a representation before respondent No.l which was rejected on 2.6.1990. Hence this appeal. 3. I have heard the parlies at length with the assistance of the departmental representatives. 4. The main contention of the learned counsel for the appellant is that the adverse remarks conveyed to the appellant for the period commencing from 1.1.1987 to 14.9.1987 arc out of malice and without justification. Conversely the learned Dis'ric! Attorney has seriously opposed the appeal and submitted that the remarks are fully justifed and may be allowed to stand. 5. I have given my anxious consideration to the arguments advanced by the parties and find that the appellant had to be rotated at different places because wherever he was posted he created problems for the senior officers. Moreover i according to the figures with regard to appellant's work and conduct at Police Stations Dora Nawab Sahib and Yazman, there were complaints from public and at Police Station Yazman even a strike was organised against the appellant's misbehaviour and highhandedness. This brought a bad name for the entire police force. It has also been stated that there was no problem in Yazman area during the posting of the previous SHO. It is also noteworthy to mention that the appellant under police proceedings was punished seven times during the period under report. It was on account of his conduct and reputation that even the Range DIG described him as unfit for posting as SHO. I also find that the assessment of the Reporting Officer in rating the appellant "Poor" as SHO is correct as three thefts were reported in the area of Police Station Yazman but he refused to register the cases and it was only on the intervention of the senior officer who got the cases registered and the situation was saved. The drill and discipline were assessed as "Below Average" because the appellant had never attended any weekly parade in Police Lines and he was frequently found absent from his place of posting. As such his discipline also remained unsatisfactory. The reporting officer (respondent No.3) has based his report regarding fitness for promotion and retention in service beyond 25 years on the fact that he was reported to be corrupt, his integrity was categorised as 'D' and behaviour of appellant with public as "Below Average". Respondent No.l while disposing of the representation of the appellant has thoroughly examined the service record of the appellant and has rightly rejected the departmental appeal on merits. On scrutiny of the record 1 find that the present appeal is devoid of any cogent reasons as the impugned remarks for the period from 1.1.1987 to 14.2.1987 were recorded purely on merits. Consequently, I find no merit in this appeal which stands dismissed with no order as to costs. Parties to be informed. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 109 [Service Tribunal, Azad Jammu & Kashmir , MuzafTarabad] Present: sardar muhammad sajawal khan, chairman and raja muhammad ashraf kayani member. Khawaja MUHAMMAD MUMTAZ-Appellant versus SECRETARY, EDUCATION, AJ&K, MUZAFFARABAD and another- Respondents Service Appeal No.456 of 1989, dismissed on 25.5.1991. Disability Pension— —School teacher-Retirement on medical ground of~Disability pension-Grant of-Prayer for-There is no denying fact that at time of entry into service, appellant was not suffering from any disease-Appellant having been found a patient of "schizophrenia", was correctly declared by Medical Board to be unfit for service-He Was allowed service pension-Held: Question whether appellant is entitled to disability pension in addition to service pension already granted to him, is yet to be determined by Department-Appeal dismissed. [Pp.llO&lll]A&B Mr. M, Tabassum A/tab AM, Advocate for Appellant. Raja Muhammad HanifKJian, Advocate for Respondents. Date of hearing: 25.5.1991. judgment Sardar Mohammad Sajawal Khan, Chairman:~The instant appeal is directed against the order of Director of Schools vide No.4190-91/89 dated 27.4.1989 whereby the appellant was retired from his service on pension due to the mental disability caused by a disease named 'Schizophrenia'. The appellant has im pleaded Secretary Education and the Director of Schools as respondents for seeking his remedy against them. 2. The facts of the case as are contained in the memo, of his appeal, the appellant was employed as Primary Teacher in the Education Department of Azad Jammu and Kashmir and was posted in the Primary School at Haitian Balla. The appellant joined his service in the Education Department on 9.1.1977 after he was medically examined by the Civil Medical Officer and District Medical Officer Muzaffarabad who declared about him vide a Medical Certificate issued on 5.11.1978 that he was having no disease or bodily infirmity at the date and time of his entry in service. In the year 1985 the appellant was medically examined and he was for the first time found to be suffering from 'Schizophrenia'. He remained under treatment in different hospitals and was ultimately retired from service w.e.f. 13.12.1988 on the basis of report dated 13.11.1988 of the Medical Board constituted by the Director of Health Services. The appellant was granted invalid pension at the rate of Rs.374/- per month from 14.12.1988 to 16.1.1989 and Rs.187/- per month from 17.1.1989 till death after deducting commutation pension. But the appellant feeling dissatisfied with the order of pension allowed to him brought an appeal against that order before Secretary Education (respondent No.l). His appeal before Secretary Education \vas not successful and he brought second appeal before this Tribunal under Section 4 of the Service Tribunal Act, 1975. 3. The appellant has prayed for the following reliefs to be granted to him inter-alia:- (/) that the appellant was appointed as Primary Teacher on 9.1.1977 and after his appointment he was declared fit for service by the Civil Medical Officer, Muzaffarabad on 5.11.1978; ' (h) that the opinion of Major Abdul Hameed, Psychiatrist, Medical Officer and Medical Board dated 3.9.1988 and 13.11.1988 respectively that the appellant was suffering from 'Schizophrenia' since 1975 be declared ab-initio void for being against the true facts; (hi) that the appellant became patient of 'Schizophrenia' for the first time in the year 1985 during his s&rvice in the Education Department, therefore, he is entitled to get full pension; (iv) that the orders of respondents Nos.l and 2 dated 27.4.1989 and 21.9.1989 be set aside for being illegal; (v) that the respondent, No.2 be asked to prepare a new pension case of the appellant. 4. The appeal was admitted for regular hearing by a short order dated 28.11.1989 of this Tribunal and the respondents were called upon to submit their objections, if any. The objections filed on behalf of respondents are that the appellant was granted pension on the report of Medical Board which was constituted by the Health Department under the Chairmanship of Lt.Col. Masoodul Hassan, Commanding Officer C.M.H., Muzaffarabad. The Medical Board in its meeing held on 3.9.1988 endorsed the report of Major Abdul Hamid Chaudary, Psychiatrist (Specialist) who had held it that the appellant was suffering from 'Schizophrenia' for the last 13 years and was totally incapacitated/unfit for further service of the Department. Accordingly, the appellant was retired from service under the impugned order. It is essential to note here that the comments offered by the Department concerned were placed on the file without shaping them in a legal form by the learned Advocate appearing for the respondents. The version of the Department is almost obscure and the controversial points are not highlighted because of the poor pleading and representation of actual factsi 5. We have carefully examined the appeal file and the personal file of the appellant prepared in the office of District Education Officer of Schools. We have heard the arguments as were addressed to this Tribunal by the learned counsel of the parties. There is no denying the fact that the appellant was not suffering from any disease whatsoever on 9.1.1977 when he joined the service of Education Department. Therefore, any opinion against the original Medical Certificate obtained from the appellant at the time of his entry in the service of the Department cannot be repudiated even by a report of the Psychiatrist obtained after a long interval of about 12 years. We cannot agree with this view of the Education Department that the report of Major Abdul Hamid Chaudhar'y 1991 muhammad mumtaz v. secretary education, AJ&K Tr.C. Ill (Service Tribunal, AJ&K, Muzaffarabad) Psychiatrist had shown the appellant to be a patient of 13 years 'Schizophrenia'. In fact the said 'Psychiatrist' has made the entry of 13 years in the description roll of the patient which he might have picked up from the statement of the patient (appellant) or from the statement of his some near relative attending him before 'Psychiatrist'. Anyhow this fact is well established that the appellant having been found a patient of 'Schizophrenia' was correctly declared by Medical Board to be unfit for service and for that reason he was perhaps allowed invalid pension by his Department. 6. The most unfortunate aspect of the case is that the appellant because of his mental disturbance and because of the fact of poor pleading of his case could not bring his case in the proper form before this Tribunal. The appellant is claiming declaration about the full pension on medical grounds. We are afraid, full pension is nowhere provided on medical grounds in the relevant pension rules. The appellant has been granted service pension for his having completed pensionable service for more than 10 years. It is pertinent to note here that commutation of pension is allowed only in case of service pension and not for disability pension. The report of Medical Board, no doubt, places the disease of the appellant in class 'A' of wound. But the appellant has not been granted disability pension on that report of the Medical Board nor he has himself submitted any claim for that before his Department. The question whether he is entitled to disability pension in addition to the service pension already granted to him is yet to be determined by the Department. Since no relief has been claimed by the appellant before Secretary Education (respondent No.l) he definitely having no cause of action to seek his relief in law without firstly putting his claim before the Department for grant of disability pension under rules. The present appeal is misconceived and the same is hereby dismissed. No order as to the costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 111 [Punjab Labour Appellate Tribunal, Lahore] Present: JUSTICE (RETD) M. ABDUL GHAFOOR KHAN LODHI. MIR LIAQAT ALI-Appellant versus PROFECT DIRECTOR, CO-OPERATIVE KARKHANA AALAT-E-ZARI, BAHAWALPUR-Respondent Appeal No.315 of 1990, accepted, on 17.6.1991. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S.25--A(6)-Worker-Removal from service of~Challenge to~Whether fresh grievance notice was necessary after abolition of Junior Labour Courts-­ Question of~According to deleted sub-section (6) of Section 25-A, there was no need of service of grievance notice if grievance petition was brought within two months of accrual of grievance—Held: Since petition was brought within two months, it cannot be said that after deletion of sub-section (6) of Section 25-A, workers should have withdrawn cases and after giving grievance notice, brought fresh petitions-Held further: Since appellant was removed from service without holding proper inquiry, he is entitled to be re-instated in service. [Pp. 113&1141B&C (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- —S.37(3) read with Section 25-A (1) and (3)--Worker--Removal from service of--Challenge to~Objection that appeal should have been filed by appellant in person-Section 37 is quite separate and distinct from Section 25-A (1) and (3)~By no stretch of imagination, section 37 (3) can be interpreted to have same meaning as section 25-A(l) and (3) may bear-Held: There being no provision in Section 37(3), it cannot be interpreted to mean that appeals are to be presented by aggrieved persons in person and not by their agents or lawyers. [P.112JA Mr. M. Shamsher Iqbal Chughtai, Advocate for Appellant. Mr. Masud Ashraf Sheikh, Advocate for Respondent. Date of hearing: 8.6.1991. judgment The appeal captioned above emerges from the decision dated 11.4.1990 recorded by the learned Presiding Officer, Punjab Labour Court No.8, Bahawalpur, whereby the grievance petition of the appellant for his reinstatement in service was dismissed, 2. An objection has been raised by the learned counsel for the respondent about the competency of the appeal. The objection is that the appeal was not presented by the appellant in person and the lawyer namely Mr.M.Shamsher Iqbal Chughtai, who presented the appeal, had no authority in that behalf. The line of argument of the learned counsel for the respondent is that sub-section (3) of Section 37 of the Industrial Relations Ordinance, 1969 is to be read alongwith sub­ section (1) of Section 25-A of the said Ordinance. Since according to sub-section (1) of Section 25-A, a grievance notice is to be given by the worker in person and the grievance petition too is to be presented in person, similarly the memorandum of appeal is also to be presented by the appellant himself. The argument has no force. Section 37 is quite separate and distinct from Section 25-A (1) and 25-A (3). By no stretch of imagination Section 37(3) can be interpreted to have the same meaning as sub-sections (1) and (3) of Section 25-A may bear. It is expressly provided in sub-section (1) that the grievance notice is to be served by the worker in person. The honourable Lahore High Court has directed that sub-section (3) of Section 25-A is to be read alongwith sub-section (1) and since the latter sub­ section says that the grievance notice is to be given by the worker in person, the grievance petition is also to be presented by the worker in person. There being no such provision in sub-section (3) of Section 37, it cannot be interpretted to mean that the appeals are to be presented by the aggrieved persons in person and not by their agents or lawyers. I, therefore, overrule the objection and hold that the appeal is competent. 3. So far as the merits of the case are concerned, there is no inquiry notice on the record, which shows that without issuing any notice the inquiry was held. In reality no inquiry was held since no witness was examined. Ex.R.2 is inquiry report and not inquiry proceedings. Feeling that the respondent has no case, the learned counsel for the respondent tried to defeat the appellant on other grounds. It has been argued that the grievance petition was brought in the Junior Labour Court without service of grievance notice within two months of the accrual of the grievance and since the case could not be decided by the Junior Labour Court, the appellant should have served a grievance notice after sub-section (6) was deleted and the Labour Courts were authorised to decide the pending petitions. On the face of it the argument has no force. According to the deleted sub-section (6) of Section 25-A, there was no need of service of grievance notice if the grievance petition was brought within two months of the accrual of the grievance. Since the petition was brought within two months of the accrual of the grievance it was valid and after the Junior Labour Courts ceased to exist, the Labour Courts got the jurisdiction to decide the pending cases and by no stretch of imagination it can be said that after the deletion of sub-section (5) of Section 25-A, the workers should have withdrawn the cases and after giving grievance notices brought fresh petitions. The objection, therefore, is over-ruled. 4. The other point raised by the learned counsel for the respondent is that the work for which the appellant was employed was given to the Agricultural Department on 1.11.1976 during the pendency of the grievance petition and a Board was created providing that it would be run by the Administrator but the Administrator was not made a party. No doubt there is a provision that an Administrator would be appointed, but no order or letter was brought on the record by the respondent to show that actually an Administrator was appointed. Unless it had been proved that an Administrator was appointed, no question of impleading the Administrator could arise. The other thing is that according to Order XXII rule 10 C.P.C., the proceedings can be defended by the existing party unless the person upon whom any interest has devolved, conies forward. 5. The other point is that the Agricultural Department took up the assets and not liabilities, therefore, Agricultural Department is not liable to reinstate the appellant. This argument too has no force. The appellant and other workers were not party to the agreement, by which the Project was given to the Agricultural Department, therefore, any agreement made between the employer of the appellant and the Agricultural Department would not adversely affect the rights of the workers. Even if the Agricultural Department did not take up the liabilities, since the appellant was a confirmed employee of the respondent, the respondent is liable to implement the order of the court if the appellant is directed to be reinstated in service. Since there was no privity of contract of service between the appellant and the Agricultural Department, the appellant rightly sued the Project Director, Cooperative Karkhana Alaat-e-Zari who is responsible for the wrong order of removal from service of the appellant. 6. It has also been argued that the Agricultural Department has created new posts and the post held by the appellant is not now existing and, therefore, he cannot be reinstated in service. This argument also has no force. Since the appellant was wrongly removed from service without holding any proper inquiry and proving the charges against him, he is entitled to be reinstated in service and the Agricultural Department, as transferee of the interest, is liable to provide service and in the alternative the respondent, who had passed wrong order of the removal from service, is liable to reinstate the appellant. 7. Since without holding proper inquiry and proving the charges the appellant was removed from service, he is entitled to be reinstated in service. However, he is not entitled to back benefits since in his statement he did not urge that he had remained without any earnings from the date of his removal from service. 8. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision of the learned Lower Court and the order of removal from service of the appellant, his grievance petition is accepted and he is directed to be reinstated in service without back benefits. Mr.Nazir Ahmad job clerk for the respondent. (MBC) (Approved for reporting) Appeal accepted

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 114 [Punjab Service Tribunal, Lahore] Present: muhammad MEiiMUD aslam pirzada, chairman MUHAMMAD SAGHIR ANWAR-Appellant versus MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 5 others-­Respondents Appeal No.677 of 1988, dismissed on 26.5.1991. Seniority-- —Government servants—Seniority of—Determination of—Appellant was appointed by Additional Commissioner (Consolidation) and his appointment was only for Consolidation Wing as latter has no authority to appoint staff for office of Commissioner-Appointing authorities in respect of employees of Consolidation Office and Commissioner's Office are separate-Held: Appellant's name was rightly removed from seniority list (of employees of Commissioner's Office) and he was deconfirmed in accordance with Government instructions—Appeal dismissed. [P.116]A&B M/s. Muhammad Hussain KJian, and Malik Ghulam Yasin, Advocates for Appellant. Ch. Manzoor Hussain, District Attorney for Respondent. Date of hearing: 30.4.1991. judgment Mohammad Saghir Anwar, Junior Clerk has filed this appeal Under Section 4 of the Punjab Service Tribunals Act 1974 against the impugned orders dated 8.10.1988 and 27.9.1987 passed by the respondents Nos.l and 2. The appellant has impleaded the Member Board of Revenue, Punjab, Lahore, Commissioner Sargodha Division, Sargodha, Rana Mohammad Saleem, Abdul Khaliq, Zafar Iqbal and Nawab Falak Sher, Junior Clerks as respondents. Through this appeal, the appellant has prayed that the impugned orders dated 8.10.1988 and 27.9.1987 passed by the respondents Nos.l and 2 be set aside and the appellant's senioritycum-confirmation may be restored. 2. The relevant facts for the disposal of the present appeal are that the appellant was temporarily appointed by the Additional Commissioner (Consolidation) as Junior Clerk on 18.11.1978, was confirmed by respondent No.2 with effect from 3.7.1982. The appellant was included in the seniority list of Ministerial staff of Commissioner's office and was placed at Sr.No.35. The respondents Nos.3 to 6 filed a representation against the seniority of appellant claiming therein that appellant should not have been included in the seniority list of employees of Commissioner's Office Sargodha. On this, the advice of the Member, Board of Revenue, Punjab was solicited who vide their Memo. No.2765- 86/4036-E(M)II, dated 14.12.1986 intimated as under:- "Mr.Saghir Anwar, Junior Clerk, was appointed by the Additional Commissioner (consolidation) against temporary post which occured on the Consolidation side. He should not have been included in the Seniority list of employees of Commissioner's Office, Sargodha Division". 3. The appellant was served with a notice as to why he should not be deconfirmed and his name removed from the seniority list of the Junior Clerks of the Commissioner's Office Sargodha to which his reply was received. Respondent No.2 after hearing the appellant deconfirmed him and removed his name from the seniority list of the junior clerks of Conimissioner's Office, Sargodha. The appellant feeling aggrieved filed a representation before respondent No.l (Member Board of Revenue Punjab) which too was dismissed. Hence this appeal. 4. I have heard the learned counsels for the parties at length and perused the record with the assistance of the representatives of the department with care. 5. During the course of arguments, learned counsel for the appellant has contended that the respondents Nos.l and 2 failed to appreciate the leagal and factual position which has resulted in wrong order of deconfirmation and removal of the name of the appellant from the Seniority List. Further argued that the respondent No.2 failed to apply independent mind to the facts of the case. 6. Coversely, learned District Attorney seriously opposed the appeal and submitted that the impugned orders passed by the respondents be allowed to stand in the light of the comments/report furnished on behalf of respondents. 7. After having gone through the file, I have given anxious thought to the submissions advanced by the learned counsels for the parties and find that the appellant was allowed to work as Junior Clerk with PA. to Commissioner and thereafter posted as Junior Clerk Revenue Branch etc. by way of internal arrangement and was not absorbed on regular basis. I also find that the Consolidation side is a separate wing and the Additional Commissioner (Consolidation) is appointing authority only in respect of the staff wroking in the Consolidation Wing. The appellant was appointed by the Additional Commissioner (Consolidation ) and his appointment was only for Consolidation Wing as the Additional Commissioner (Consolidation) has no authority to appoint the staff for the office of the Commissioner. It is also added that the Consolidation Wing of the Division is a separate office for which separate funds are allocated to meet the expenditure on Consolidation side whereas the office of the Commissioner, Sargodha Division is a separate wing and separate funds on permanent basis are allocated for the establishment of the Commissioner's office. The officials of Consolidation Wing whenever they are required to work in the office of the Commissioner, Sargodha Division, they still remain employees of the Consolidation Wing and they cannot be treated as permanent employees of the Commissioner's office. The appellant's appointment in the office of Additional Commissioner (Consolidation) Sargodha Division was purely for the establishment of that office which cannot be merged in the establishment of Commissioner, Sargodha Division which is of a permanent nature. It is also added that the appointment authority in case of employees of Commissioner's office is separate whereas the competent appointing authority in case of appointment of staff of Consolidation office is separate. Respondent No.2 after considering the merits of the case as well as hearing the appellant correctly passed the order dated 27.9.1987 in accordance with law. 8. I do not find any illegality or irregularity on the point of law or facts in the impugned orders passed by the respondents. The appellant's name was rightly removed from the seniority list and the appellant was deconfirmed in accordance with the government instructions received in this context. The instant appeal has no merits which stands dismissed with no orders as to costs.Parties be informed accordingly. (MBC) (Approved for reproting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 117 [Federal Service Tribunal, Islamabad ] Present: justice (retd.) SYED ally madad shah, chairman and rasheeduddinarshad, member MAQBOOL AHMAD-Appellant versus MILITARY ACCOUNTANT GENERAL, RAWALPINDI and 2 others- Respondents Appeal No.ll3(R) of 1990, dismissed on 3.3.1991. Probationer— ---Probationer Accountant-Failure to pass departmental examination by-­ Termination of services of—Challenge to—Appellant has challenged vires of terms and conditions laid down for appointment of probationer Accountants— Those rules have been framed under provisions of Rule 3(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973-Held: Rules do not seem to be repugnant to Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and Civil Servants, Act, 1973-Appeal dismissed. [P.118]A Appellant in person. Hafiz S.A, Rahman, Standing Counsel for Government. Date of hearing 22.1.1991. judgment Justice (Retd.) Syed Ally Madad Shah, Chairman.-Appellant Mr.Maqbool Ahmad was appointed as a Probationer Accountant vide appointment letter dated 9.2.1988. The terms and conditions of his service are contained in his letter of appointment and another document annexed thereto as Annexure 'A'. One of the terms and conditions of the appointment contained in the Annexure was that the probationer had to take successive Accounts Promotion Examination comprising of two parts and in case he did not pass the required examination his services were liable to be terminated. To his misfortune, he could not pass the required examination. He was, therefore, issued a letter dated 24.10.1989 that it had been decided that he may be discharged from service unless he would give option for accepting a post of Senior Auditor on prescribed terms and conditions. He made departmental appeal to the Financial Adviser (Military Finance), Finance Division, on 22.11.1989. He was informed under letter dated 21.2.1990 that his appeal was considered by the Secretary Defence and it was rejected. He then preferred this appeal on 22.3.1990 to seek the following relief: "It is respectfully prayed that the record of the case may be summoned and respondents 1 and 2 may be directed to bring the rule in conformity with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and forego the requirement of passing Accounts Promotion Examination in the case of Probationer Accountants/direct inductees through the Federal Public Service Commission and also the M.A.G. (Respondent No.l) may be directed to reinstate appellant's service as Accountant (B-16) with all consequential benefits (e.g. seniority and increments etc.)". 2. The main grounds urged by the appellant are that he was selected by the Federal Public Service Commission after having passed the requisite examination and, therefore, he was not liable to have passed any departmental examination, which was meant for only the departmental candidates and not for the candidates selected by the Federal Public Service Commission. He has also urged that the Military Accountant General was not competent to have laid down any terms and conditions in violation of the provisions of the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 in respect of the candidates appointed through selection by the Commission. He reiterated the same grounds at the hearing of the appeal, which he argued himself. 3. The respondents have opposed the appeal contending that the appellant was appointed on probation and he had failed to pass the examination he was required to pass under the requisite 1 rules, made under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. According to them, the appellant could not take exception to the rules he had given undertaking to abide by. They have taken the plea that the appeal is not maintainable. The same grounds were urged by the learned Standing Counsel having appeared on behalf of the respondents. 4. The appellant had preferred similar appeal, being appeal No.261(R)/89 on 2.9.1989. His appeal was dismissed in limine by order dated 13/14.11.1989 on the ground that it had been filed without availing of remedy of departmental appeal. He preferred departmental appeal on 22.11.1989. He filed this appeal after rejection of his departmental appeal as per communication of the decision to him under letter dated 21.2.1990. 5. In this appeal, the appellant has challenged the vires of the terms and conditions laid down for the appointment of the probationer Accountants. Those rules have been framed under the provisions of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The appointment of the appellant was to be regulated by those rules which have been made under the statutory law. According to those rules, he had to pass the examination during the period of probation but he could not. The rules relating to method, qualifications and other conditions impugned by the appellant do not seem to be repugnant to the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the Civil Servants Act, 1973 and his appointment was regulated by those rules and he has no case to challenge those rules. Thus, there is no merit in appeal and it is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 119 [Federal Service Tribunal, Islamabad ] Present: justice (RETD) SYED ally MADAD shah, chairman and rasheeduddin arshad, member MUHAMMAD HAYAT--Appellant versus SECRETARY, TOURISM DIVISION, ISLAMABAD and 2 others-­ Respondents Appeal No.435(R) of 1989, accepted on 26.2.1991. Selection Grade- —Selection grade-Grant of~Challenge to~It appears from opinion of Justice Division that by-passing of appellant in granting selection grade, was not in accordance with law-Subsequent events would not deprive appellant of his due promotion to selection grade on basis of seniority list which subsisted at relevant time-Appeal accepted and selection grade granted to appellant. . [Pp.l23&124]A,B&C Raja Muhammad Asghar KJian, Advocate for Appellant. MrAminurRehman Khan, Advocate for Respondent No.3 Date of hearing 20.1.1991. judgment Justice (Retd.) Syed Ally Madad Shah, Chairman.-Appellant Muhammad Hayat and respondent No.3 Mrs. Nighat Nawaz have been serving in the Tourism Division since 25.3.1980. In the final seniority list of the Assistants published by the Tourism Division on 7.5.1985, the appellant was placed at S.No.10, while the respondent No.3 was placed at S.No.12. By notification dated 7.4.1988, published in the gazette of Pakistan Extra-ordinary Issue of 10th April, 1988, in pursuance of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, certain percentage of the posts of the Assistants were placed in selection grade. Consequent to retirement of one Superintendent (BPS- 16) by name Mr.S.K.H. Zaidi, with effect from 14.6.1988, a post of Assistant in selection grade (BPS-15) became available. The appellant and the respondent No3 were in the field. The matter was referred to the Departmental Promotion Committee comprising Mr.Shakeel Ahmad, Joint Secretary, as the Chairman, Mr .Shah Alam Khan, Economic Analyst, and Mr.S.M.H. Zaidi, Deputy Secretary, as Members. The Committee held its meeting on 5.6.1989. The Chairman of the Committee Mr.Shakeel Ahmad and Mr.S.M.H. Zaidi, Member, approved the respondent No.3 for her promotion to selection grade on over-all merit basis, while the other Member Mr.Shah Alam Khan dissented, holding the view that the promotion to the selection grade was to be made on scniority-cum-fitness basis and, therefore, the appellant was entitled to the selection grade in accordance with the rules. The matter was referred to the Secretary for decision and he agreed with the majority opinion. Accordingly, the respondent No.3 was placed in selection grade (BPS-15) vide office order dated 28.8.1989. The appellant preferred departmental appeal to the Secretary, Tourism Division on 9.9.1989. He was informed under Memo datpd 3.9.1989 that his representation was in contravention of the provisions of the Civil Servants Act, 1973 and the Civil Servants (Appeal) Rules, 1977 and it had been turned down. He then preferred this appeal on 30.10.1989 for setting aside the promotion of the respondent No.3 to the selection grade as Assistant and his consideration therefor. 2. The case of the appellant is based on the notification of 7.4.1988, whereunder promotion of an Assistant to the selection grade is provided by seniority-cum-fitness. The appeal is directed against the Secretary, Tourism Division, Joint Secretary, Tourism Division, and Mrs. Nighat Nawaz. Only Mrs. Nighat Nawaz (the respondent No.3) has filed written objections and also resisted the appeal at its hearing. The Departmental Promotion Committee (hereinafter referred to as the DPC) dealt with the case in the following manner. The observations of the Committee in respect of promotion to the post of selection grade Assistant (BPS-15) are reflected in paragraph 3 of the minutes of the meeting as under:- "As regards promotion to the post of Selection Grade Assistant (BPS-15), the Departmental Promotion Committee could not take a unanimous decision. The Chairman and one Member Lt.Col. (R) S.M.H. Zaidi were of the view that although Selection Grade was to be allowed on the basis of Seniority-cum-fitness in accordance with rules, yet the Establishment Division had themselves impressed upon all Departmental Promotion Committees vide their O.M. No.54/26/50-ME dated 22nd May, 1951 that the standard of fitness should be a very high one if efficiency was not to suffer. It was noted that Mr.Mohammad Hayat, Assistant and Mrs. Nighat Nawaz, Assistant, having been rendered surplus in the Planning Division, had joined the Tourism Division on the same date (25.3.1980) i.e. the date from which their seniority was reckoned in this Division; and as such, Mr.Muhammad Hayat, Assistant had only a slight edge over the lady so far as seniority was concerned. It was further noted that Mrs. Nighat Nawaz had a clear edge over her senior in view of her higher qualifications and a consistently maintained "Very Good" record of service. She was also a direct recruit while Mr.Muhammad Hayat was a promotee. Accordingly, the Chairman and Lt.Col. (R) S.M.H. Zaidi recommended the grant of selection grade to Mrs. Nighat Nawaz. However, one Member viz. Mr.Shah Alam Khan differed with this view and held that the rule of seniority-cum-fitness was quite clear which could not be over-looked. He was of the opinion that since Mr.Muhammad Hayat, Assistant was senior in service as well as in age to Mrs.Nighat Nawaz, the former should not be ignored in preference to the latter. He furl her said that seniority must be maintained in the present case as had been the past practice in the Tourism Division. (He has also recorded a note of dissent which is placed below for perusal). Ultimately, it was decided to leave the final decision in this case at the discretion of the Secretary who is the competent authority in this case". The dissenting note recorded by Mr.Shah Alam Khan, Member of the Committee, reads as under:- "1. Note of Dissent. According to rules of promotion for the Selection Grade Assistant, seniority-cum-fitness is the criteria for promotion. 2. Seniority. All members agreed that Mr.Muhammad Hayat was senior to Mrs.Nighat Nawaz as per list maintained by the Tourism Division. 3. Fitness. Mr.Hayat got one very good report and four good reports. In my opinion, Mr.Hayat is fit for promotion. In support of my argument it is submitted that even in case of promotion from BPS-18 to BPS-19 officers where merit is the only criteria for promotion, good reports are considered as a very high standard of efficiency and officers have never been ignored if they have obtained good reports. The grading system which has been introduced by the Establishment Division in order to determine the merit also allocated 7 marks out of 10 to a good report or in other words 70% marks. It is evident that 70% marks are so high that the advice of the Establishment Division regarding high standard of efficiency is automatically complied with if gradation system is followed which is more objective than subjective. 4. A recent case of promotion of this Division from BPS-18 to BPS-19 was submitted to the Establishment Division (F/C). An officer who had obtained the following gradation in his ACR was considered fit for promotion by the Selection Board:- Outstanding. Good. Average. (Part Reports V.Good, Good). (Part Report Good, Average). "l5 He secured 64.4% marks inspite of the fact that he earned 5 average reports and 7 good reports and found fit for promotion to BPS-19. It is evident that an official who has earned 4 good and one very good report cannot be ignored simply on the basis that the official junior to him has earned four very good reports and one good report. Such supersession has never been allowed even in cases which are decided purely on merit instead of fitness. 5. I am of the view that Mr.Hayat cannot be superseded because he is fit for promotion and is also senior to Mrs.Nighat. Secretary may like to consider this issue in the light of the prevailing rules and also the system of gradation which the Establishment Division has evolved for providing guidelines to the Selection Committee to avoid subjective decisions in all promotion cases. 6. Submitted for consideration, please". 3. It would appear from the minutes of the meeting held by the DPC, including the note of the dissenting Member, that the Committee was conscious of the provisions of the rules that promotion to the post of selection grade of the Assistant was to be made on the basis of seniority-cum-fitness. The view adopted by the majority of the Members of the DPC does not seem to be in consonance with the spirit of the dictum "seniority-cum-fitness" and is constituted deviation from strict observance of the rules and preference was given to comparative merit and the appellant's "edge" of seniority over the respondent No.3 was side-tracked, whereas the dissenting Member's note highlighted strict adherance to the rule of promotion by seniority-cum-fitness. Of course, the opinion of the majority should ordinarily prevail, provided it is based on sound consideration. In the instant case, the competent authority did not over-rule the majority view and allowed selection grade to respondent No.3. The appellant has placed on record a photostat copy of the opinion of the Justice Division in the appellant's case. It is reproduced below; "23. In this case, we agree with the views of the Establishment Division that the promotion case should have been considered on the basis of seniority-cum-fitness as mere academic qualifications are not sole criteria for determining-comparative merits. Merits include experience, seniority competence, rectitude and service record in addition to academic qualification. If some authority is needed then 1980 PLC (CS) 466 is an authority on the point. 24. In this case the appellant, it appears, was senior to respondent No.2 and there seems nothing against him in his service record rendering him ineligible for the promotion to the post of Selection Grade Assistant which admittedly had to be made on the basis of seniorrity-cum-fitness. The administrative Division had admitted all the averments made in the memo of appeal and only basis on which respondent No.2 has been promoted to the post of selection grade Assistant is that she holds Master's Degree in Economics whereas the appellant was simply a Matriculate. It is pointed out that Master's Degree in Economics is not the requisite qualification for the post and the promotion to the post of Selection Grade Assistant is to be made from amongst the eligible Assistants on the basis of seniority-cum-fitness. Thus the case of the appellant was not properly considered by the DPC and the decision was taken rather on the basis extraneous considerations which were not relevant so far as the conditions for promotion to the post of Selection Grade Assistant were concerned. Accordingly, in our opinion, the claim of the appellant is genuine and may be conceded because the decision of the DPC in this case will not stand test of judicial scrutiny of the Service Tribunal. Sd/- Muhammad Azam Warriach Assistant Draftsman 4th June, 1990. Solicitor: 25. In view of what is stated in para 16/N, the appeal is not defendable. Sd/- SA.M.Wahidi Solicitor 4.6.90". It would thus appear that by-passing of the appellant in grant of selection grade U was not in accordance with law. ' 4. The learned counsel for the respondent No.3 did urge that the appellant was wrongly placed senior to the respondent No.3 and the appellant's seniority vis­ a-vis the respondent No.3 was recast as per circular dated 2.4.1990, whereby the respondent No.3 was placed at S.No.2 and the appellant was assigned seventh position. The subsequent events would not deprive the appellant of his due promotion to the selection grade on the basis of the seniority list which subsisted at the relevant time. 5. The respondent No.3 has challenged the maintainability of the appeal on the ground that it is hit by provisos (a) and (b) of Section 4 of the Service Tribunals Act, 1973. Proviso (a) bars the filing of an appeal in a case where departmental appeal lies and such appeal has not been filed. In the instant case, the appellant did prefer an appeal to the Secretary, Tourism Division on 9.9.1989. His appeal was turned down on the ground that it was in contravention of the provisions of the Civil Servants Act, 1973 and the Civil Servants (Appeal) Rules, 1977, but the ground of its being in contravention of the Civil Servants Act, 1973 and the Civil Servants (Appeal) Rules, 1977 was not disclosed. It appears that this objection was taken on the basis of proviso contained in Section 22 of the Civil Servants Act, 1973 relating to the right of appeal or representation, that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade and similarly is laid down in proviso to Rule 4 of the Civil Servants (Appeal) Rules, 1977. There is also bar under proviso (b) to sub-section (1) of Section 4 of the Service Tribunals Act, 1973, to the prefering of an appeal to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or to hold a particular post or to be promoted to a higher grade. But that immunity to the orders or decisions of a departmental authority in respect of promotions extends to the orders or decisions which do not involve violation of law but where an order or decision is violative of any law, the jurisdiction of the appellate forum does not stand ousted. Reliance in this respect is placed on PLD 1990 SC 612. 6. For the reasons recorded above, the appeal is allowed and it is directed that the appellant shall be placed in selection grade of the Assistant (BPS-15) from the date the respondent No.3 was placed in the said selection grade. He shall be entitled to the monetary benefits accordingly. No order is made for costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 124 [Service Tribunal, Azud Jaiiimu & Kashmir , MuzulTarubad] Present: SARDAR MUHAMMAD SAJAWAL Kl-lAN, CHAIRMAN AND RAJA muhammad asiiraf kiani, member JAMILA FAZAL-Appellant versus A.J.K.GOVERNMENT, THROUGH CHIEF SECRETARY-Respondent Appeal No.485 of 1990, dismissed on 4.7.1991 Officiating appointment-- —Officiating appointment as Headmistress-Later on promotion as Headmistress on regular basis-Whether promotion could be treated from •date of officiating appointment-Question of-Under Section 11 of A.J.K. Civil Servants Act, 1976, a Civil servant appointed to a higher post on ad-hoc or officiating basis, is liable to reversion to his lower post or grade without notice —Held: Appointment on officiating basis confers no right whatsoever—Appeal dismissed. [P.125JA&B Sardar Rafiqiie Malimood, Advocate for Appellant. Syed NazirHussain Kazmi, Advocate for Respondent. Date of hearing: 4.7.1991. judgment Raja Mohammad Asliraf Kayani, Member.—Facts giving rise to the instant appeal are that vide order dated 27-01-1985 (Annexure 'A') Jamila Fazal, appellant a senior Teacheress Selection Grade B-17 was appointed, in her own pay and scale, on officiating basis against the post of Headmistress, Girls High School Kot Kaumi. The appellant, however, on the recommendation of Selection Board No.2 was promoted as Headmistress alongwith others vide impugned order dated 19-9-1989 (Annexure 'C'). A review petition (Annexure 'D') was preferred on 15-11-1989 that the appellant may be promoted as Headmistress w.e.f 27-01-1985 but the same was not decided within stipulated period of 90 days, therefore, the appellant has preferred to invoke the jurisdiction of this Tribunal under Section 4 of Service Tribunal Act, 1975. 2. The respondent/Government has contested the appeal and put in a written statement in which it has been pleaded that the appeal is liable to be dismissed on account of limitation as well as on merits. 3. We have heard the parties and have also perused the relevant record of the case. The grievance of the appellant is that she should have been promoted as Headmistress on regular basis w.e.f 27-01-1985 i.e from the date she was appointed as officiating Headmistress. 4. The preliminary objection pertaining to the limitation raised by the respondent is baseless as the appellant has filed the instant appeal with this Tribunal on 13-03-1990. The review petition dated 15-11-1989 was not decided within prescribed period of 90 days and hence the present appeal being filed within next 30 days is held to be within timem therefore, the objection is repelled. 5. The next point for the determination is whether the appellant was entitled to be promoted as Headmistress from the date of her officiating appointment in that capacity. The order dated 27-01-1985, whereby the appellant was appointed as Officiating Headmistress was a stop-gap arrangement in its nature which tantamounts to ad-hoc or officiating appointment while a civil sen-ant appointed to a higher post or grade on ad-hoc or officiating basis is liable to reversion to his lower post or grade without notice under Section 11 of Azad Jammu and Kashmir Civil Servants Act, 1976 which reads as under:- \Jteversion in a lower grade or service:- A Civil Servant appointed to a higher post or grade on ad-hoc or officiating basis shall be liable to reversion to his lower post or grade without notice. 6. Since the appellant was holding the post of Headmistress purely on officiating basis which confers no right whatsoever, therefore, in view of the matter the appeal being devoid of force merits dismissal and the same is hereby dismissed. No order as to costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1991 T PLJ 1991 T.Cr.C. (Labour) 128 [National Industrial Relations Commission, Islamabad ] Present: MAHMOOD AKHTAR, SENIOR MEMBER Mian PERVAIZ AKHTAR-Petitioner versus GENERAL MANAGER/CHAIRMAN, SPORTS COMMITTEE, H.B.F.C. ZONAL OFFICE, LAHORE and two others-Respondents Case No.4A(479)/90-L/24(390)/90-L, dismissed on 8.8.1991 Unfair Labour Practice- —Appointment of respondent No.3 as captain of cricket team-Challenge to~ Whether it is a case of unfair labour practice-Question of~It is not a case of infringement of Section 34 of I.R.O. because neither petitioner nor staff union occupy status of C.BA.~No right, guaranteed to petitioner by any law, settlement or award, having been infringed, it is not a case of violation of section 54-A of IRO-It was not term or condition of employment of petitioner that he shall be appointed captain of cricket team-Held: By not appointing jjetkioner as captain of cricket team, no unfair labour practice was , committed-Petition rejected under O.VII R.ll (d) of C.P.C. [Pp.l29&130]AB&C Mr.Saleem Baig, Advocate for Petitioner. Mr.H.R.Haider, Advocate for Respondents. Date of hearing: 8.8.1991. order Petitioner Mian Pervaiz Akhter Superintendent claims to be employed "on sports basis to play cricket in the HBFC Cricket Team and to hold the position is one of the terms and conditions of his emplyment." He was named "captain in various domestic tournaments on the basis of his merit". He claims to be a workman and Deputy General Secretary of the HBFC Staff Union. It is alleged that petitioner was appointed captain of the cricket team by Chairman Sports Committee vide office order No. 353 dated 4.9.1989. But "as a measure of victimization the respondents in connivance with each other have been taking steps to victimise the members of HBFC Staff Union. The respondent No. 2, once again pressurised respondent No.l to appoint a member of his union namely Mr.Sarfraz Azara as the Captain". Consequently respondent No.l appointed respondent No.3 as Captain of HBFC Cricket Team vide office order No.812 dated 22.3.1990, which order states that respondent No.3 was named as captain on the decision of the Sports Committee. The petitioner challenges the existence of any such decision and prays that respondents be directed not to commit further acts of unfair labour practice, and not to victimise the petitioner in respect of his right to lead the HBFC Cricket Team as a captain. He further seeks quashment of impugned order dated 22.3.1990. 2. I have had the respondents submit their written statement, and parties their arguments on maintainability of the petition. Learned Counsel for the petitioner addressed oral arguments. Learned Member Lahore had earlier suspended the operation of impugned order on 14.4.1990 and directed the parties to appear before learned Member-I, when learned Member-1 left his charge this file was assigned to me. 3. This petition is not maintainable before the Commission because according to section 22A (8) (g), the Commission can deal with cases of unfair labour practice on the part of employer in the manner laid down under Section 25-A or Section 34 or in such other way as may be prescribed....". 4. This obviously is not a case of infringement of section 34 because neither the appellant (?) nor admittedly the staff union occupy the status of CBA which is a pre condition to bringing the case under Section 34. Similarly since no right guaranteed to the petitioner by any law, settlement or award has been infringed, this is also not a case of violation of section 25 (ibid). This is also not a case of likely unfair labour practice which could fall under the jurisdiction .of the Commission being a case to be dealt with ...."in such other way as may be prescribed" because Regulation 32 (1) of the NIRC (Procedure & Functions) Regulations, 1973, concerns itself with reinstatement of a workman after punishment has been awarded for unfair labour practice. The present case obviously seeks no such remedy. Regulation 32 (2) (ibid) relates to unfair labour practices which are likely to occur and gives prohibitory powers where an unfair labour practice is likely to occur. In this case the impugned order having already been passed, the so called "unfair labour practice" had already occurred. The adinterim order dated 14.4.1990 could not therefore have been legally passed. 5. But, is appointing respondent No.3, as a Captain of the Cricket Team, an unfair labour practice on the part of employer? 6. Section 15 (1) gives various kinds of unfair labour practice on the part of employer as denoted by various clauses thereof. The only clause vigorously pressed into service is clause (c) which is reproduced below: "15 (1) No employer shall (a) -- (b)

(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not, a member or officer of a trade union, or" Now, it was not the term or condition of employment of the petitioner, that he |c shall be appointed captain of the cricket team. There was thus no question of his being discriminated in respect of his employment, promotion, condition of employment or work. If it is true that he was appointed on 'sports basis' even then that employment did not carry any stipulation to be appointed Captain of the Team, and no unfair labour practice was committed perse. 1. The petition being not maintainable is rejected under Order 7 Rule 11 (d) CPC. (MBC) (Approved for reporting) Petition rejected.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 130 [Punjab Service Tribunal, Lahore] Present: muhammad mahmud aslam pirzada, chairman S. MUBASHIR HUSSAIN-Appellant versus THE ACCOUNTANT GENERAL, PUNJAB, LAHORE and 2 others-­Respondents Appeal No.309 of 1990, accepted on 29.4.1991. Secretariat Pay Scale- —Former Bahawalpur PWD Secretariat-Employee of--Whether entitled to Secretariat Pay Scale—Question of—Finance Department gave sanction for grant of Secretariat consolidated pay scales to all such officials who were serving in former Bahawalpur Irrigation Secretariat-Name of appellant was included in list approved by Finance Department-Department as well as Accountant General, Punjab fixed/verified pay of appellant in Secretariat Pay Scales and made entries in Service Book—Held: Appellant being employee of defunct Bahawalpur State PWD Secretariat, is entitled to Secretariat Pay Scale-Appeal accepted. [Pp.l33&134]A&B Mr. Muhammad Nawaz Nizami, Advocate for Appellant. Mr. A.G. Humayun, District Attorney for Respondents. Date of hearing: 9.4.1991. judgment S. Mubashir Hussain, Superintendent (Retd) has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Accountant General, Punjab, the Senior Most Staff Officer, Office of Chief Engineer Irrigation, Bahawalpur and Chief Engineer Irrigation, Bahawalpur as respondents. Through this appeal the appellant has prayed that the impugned orders passed by respondents be declared as illegal and void having no effect on the rights of the appellant and declaring the appellant to be entitled to Secretariat scales of pay as already fixed by the Department/Accountant General, Punjab, Lahore , and drawn by the appellant till his retirement. 2. The brief facts of the case are that the appellant being an employee of the former Irrigation Department of the £Jt-Bahawalpur State was posted as Stenographer in the office of the Chief Engineer-cu/»-Secretary P.W.D. Ex- Bahawalpur Stale and became an employee of the West Pakistan Government at the time of integration of One Unit. Ultimately he retired from the post of Superintendent, Office of the Chief Engineer, Irrigation, Bahawalpur Region, with effect from 28.11.1987. The Government of West Pakistan Finance Department vide their policy letter No.l359-FEI-56 dated 15-12-1956 permitted the grant of Secretariat scales of their unit of origin to the Secretariat employees or the employees of the combined Secrctariat-c«/7i-Head of Departments/offices of the Integrating Units, but this letter did not come to the notice of the appellant. The appellant being a confirmed Stenographer in the former Bahawalpur PWD Secretariat w.e.f. 1.3.1952 and fulfilling all the conditions for the Secretariat pay seals as provided in the Finance Department letter No.l359-FEI-56 dated 15- 12.1956 was entitled to continue to draw the consolidated pay scales sanctioned for the ministerial establishment of the West Pakistan Secretariat in terms of Item 1 of the said letter. The pay scales were revised in the year 1959 and options for the new pay scales were invited. The Bahawalpur Irrigation Region had not taken any action in pursuance of Finance Department letter dated 15.12.1956, nor this letter was in the knowledge of the appellant. The appellant exercised the option according to the prevailing circumstances at that time. The case of secretariat pay scales to the employees of former Bahawalpur PWD Secretariat was decided on 24.12.1965 vide Finance Department No.l3/3-SO-III(E)/64 dated 24.12.1965 and in pursuance of this letter and Secretary to Government of Punjab Irrigation and Power Department letter No.l2/13-SO-HI(E)/64 dated 20.8.66 in which it had been stated that the officials who were serving in the former Irrigation Secretariat of the former Bahasvalpur Government on 13.10.1955 were entitled to the Secretariat pay scales of their unit of origin, the Department/Audit Office fixed the pay of the appellant. As the appellant was serving in the Irrigtion Secretariat of the former Bahawalpur State before integration in permanent capacity so protection given to the appellant was effective by making entry in the service book and in consequence thereof the appellant was allowed to draw the pay scale prescribed for the Secretariat employees of the Government of(sic) the appellant and the Accountant General Punjab vide his letter No. Reord/BWP/Misc:CD/ 9057 dated 18.12.1984/20-12.84 made certain queries from the Superintending Engineer, Irrigation, Bahawalpur and also advised certain steps. The appellant feeling apprehended some adverse decisions filed an appeal to the Secretary to Government of the Punjab, Irrigation & Power Department, Lahore and requested for relaxation to re-exercise the option for the existing scales of pay. After receiving refusal from the Finance Department, Government of the Punjab, Lahore , the appellant filed an appeal before the Punjab Service Tribunal which was dismissed being premature. The appellant feeling aggrieved applied for leave to appeal before the Supreme Court but the leave to appeal was refused. The Supreme Court held in the decision dated 31.7.89 as under:- "It has already been indicated by reciting the facts that by his representation last made, he was seeking relaxation of the Rules and the relaxation having been refused, he cannot claim it as a matter of right. The earlier order is not a determinative order but only asking for certain information from the Department concerning the question of fixation of pay as such. In the circumstances no question of law of public importance arises which may require further examination. As and when a final order is passed adverse to the terms and conditions of the service of the petitioner, he may seek appropriate redress." 3. In the light of the judgment of the Supreme Court it is clear that no final order has been passed by the Department adverse to the terms and conditions of the service of the petitioner. In view of the judgment of the Supreme Court the appellant gave an application to the Chief Engineer, Irrigation Bahawalpur (Respondent No.3) with the request that he may be given pension on the last pay drawn in Secretariat pay scales. The Chief Engineer Irrigation took up the matter with the Accountant General Punjab (Respondent No.l) vide his letter No.AI/89/1399 dated 14.1.1990 with reference to his letter No.Reorg/BWP/Misc:CD/9057 dated 20.12.1984 accepting the claim of the appellant, but the Accountant General Punjab did not accept the entitlement of Secretariat Pay Scales to the appellant vide his letter No. PF/HM/No.2876 dated 8.4.1990. Resultantly the Senior Most Staff Officer, Office of the Chief Engineer Irrigation, Bahawalpur (Respondent No.2) issued orders of recovery of overpayment on account of Secretariat pay scales amounting to Rs. 1,28,542/77 from pension/gratutity of the appellant vide his No.AI/90/10580-84/P.F dated 17.4.1990. Feeling aggrieved the appellant preferred an appeal to the Chief Engineer Irrigation, Bahawalpur (Respondent No.3) against the orders of Respondent No.2 on 18.4.1990. The Chief Engineer Irrigation (Respondent No.3) rejected the appeal vide his NoAI/9011567-71 dated 3.5.1990. Hence this appeal. 4. I have heard the learned counsel for the parties at length and perused the record with the assistance of the representative of the Department with care. 5. During the course of arguments learned counsel for the appellant has contended that the Accountant General, Punjab, (Respondent No.l) himself admitted in his letter dated 20.12.1984 that the appellant was entitled to the protected Secretariat Pay scales and on the basis of the said fixation the appellant has been drawing his pay since so fixed. Further argued that there is no fault on the part of the appellant as there was uncertainty with regard to exercising option on the basis of different circular letters which were never circulated to the appellant. However, in view of the "fast letter the Finance Department West Pakistan dated 24:12.1965 the Secretary to Government of the Punjab, Irrigation and Power Department letter dated 20.8.66 the pay of the appellant was fixed by the Accountant General, Punjab in the Secretariat pay scales and he enjoyed the same. The reliance of Accountant General Punjab Lahore on Finance Department letter No.F.D.I(PR)3-7/59 Vol: III-S.R.II(383)/69 dated 15.4.1969 is absolutely wrong as this being an Executive order could not be effective retros­ pectively, and the appellant was correctly awarded the secretariat pay scale in accordance with Government instructions much before issue of the above letter. Conversely learned District Attorney opposed the appeal and argued that the Accountant General, Punjab in his letter dated 20.12.1984 has taken a stand that the appellant after the introduction of West Pakistan Non Gazetted Civil Service Pay Revision Rules, 1959 effective from 14.10.1955 opted for the prescribed pay scale of West Pakistan and did not retain the scales of his" unit of origin and as such he had lost his entitlement regarding protection of Secretariat pay scale in terms of Finance Department letter No. F.D.I.I,(PR)73-75/59 Vol.III/SR- II(383)/69 dated 15.4.1969. 6. I have given my anxious thought to the submissions advanced-by the learned counsel for the parties and find that the view of Accountant General, Punjab, Lahore (Respondent No.l) is riot correct in view of the fact that the case of the former Bahawalpur PWD employees for entitlement and allowing the protected Secretariat pay scale was taken up with the Finance Department very late. The Finance Department gave sanction for grant of secretariat consolidated pay scales to all such officials who were serving in the former Irrigation Bahawalpur Secretariat vide their No.l2/13-SO;III(E)/64 dated 24.12.1965. As the name of the appellant was included in the list approved by the Finance Department, the department as well as the Accountant General, Punjab Lahore fixed/verified the pay of the appellant in the Secretariat Pay Scales and made entries in the Service Book.. All this shows that the appellant was correctly given the Secretariat pay scale and any old option should not debar the appellant from his legitimate rights as the same option was also available when the Finance Department accorded sanction in the year 1965, and pay fixed and verified by the Accountant General Punjab, on 8^.1969. .Moreover, the appellant was getting pay in Secretariat pay scale before issuafic© of the .Finance Department letter dated 15.4.1969. Therefore this letter cannot become effective from retrospective date. The observation of respondent No.l is also not correct in view of the judgment of the Punjab Service Tribunal, Lahore in appeal No.27/689 of 1976 in case of Mr. Abdul Wajid Ghauri, Administrative Officer Bahawalpur Irrigation Zone vs. Chief Engineer, Irrigation Bahawalpur and others. The appellant was correctly awarded the Secretariat pay scale. The appellant being employee of the defunct Bahawalpur State P.W.D. Secretariat is entitled to the Secretariat scale and the option exercised in 1959 was of no effect whatsoever to the adverse interest of the appellant in view of the instructions contained in letters referred to above, particularly when none of the orders was ever communicated to the appellant, specially in the circumstances when all other colleagues of the appellant have been allowed the Secretariat scales of pay. 7. Viewed in this context the orders bearing Accountant General, Punjab No.Re-Org/BWP/Misc:CD-905 dated 20.12.1984 and No.PF/HM/2876 dated 8.4.1990, Senior Most Staff Officer Irrigation Bahawalpur NoAI/90/10580-84/PF dated 17.4.1990 and Chief Engineer Irrigation Bahawalpur NoAI/90/11567-71 'dated 3.5.90 are set aside as being illegal and void having no effect on the rights of the appellant and the appellant is legally entitled to the Secretariat scale of pay as already fixed by the Department/Accountant General, Punjab, Lahore and drawn by the appellant till his retirement. Consequently I accept the appeal with no order as to costs. Parties be informed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C (Labour) 134 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RETD) M. abdul ghafoor khan lodhi PROJECT DIRECTOR, KARKHANA ALAAT-E-ZARI, AGRICULTURAL DEPARTMENT, GOVT OF PUNJAB, BAHAWALPUR-Appellant versus ABDUL AZIZ-Respondent Appeal No.267 of 1991 (also Appeal No.265 of 1991) decided on 24.7.1991 (i) Back benefits- —Store-keeper-Dismissal from service of--Re-instatement ordered by Labour Court-Challenge to--Whether respondent was entitled to back benefits-­ Question of-It is true that after his dismissal, respondent had taken up service with P.R.T.C. but he has given difference of pay-Held: Respondent is entitled to difference of emoluments which he was getting from appellant and after his termination from G.T.S. [P.139]G&H (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- —S.25--A(6)&(7) read with General Clauses Act, 1897, Section 6(b)--Storekeeper-Dismissal from service of-Re-instatement ordered by Labour Court- Challenge to—Contention that sub-section (6) having been omitted and sub­section (7) not existing, grievance petition,,ef respondent could not proceed-Pending cases are saved by clauses (b) and (c) of Section 6 of General Clauses Act-Held: Repeal of sub-section (6) of Section 25-A of IRO cannot adversely affect petitions brought under said provision and they would be continued to be decided on merits. [Pp.l38&139]E&F (iii) Necessary or proper party-- —Store-keeper—Dismissal from service of~Re-instatement ordered by Labour Court-Challenge to-Contention that Karkhana was taken over by Punjab Government, therefore, it was necessary for respondent to implead Punjab Government-It is apparent from order of dismissal that it was passed by Project Director-Held: Since at time cause of action arose, Punjab Government had not come into picture, it was neither a proper nor necessary party. [P.137]C (iv) Question of fact- —Store-keeper-Dismissal from service of-Re-instatement ordered by Labour Court-Challenge to-Contention that Karkhana Alaat-e-Zari is neither an industrial nor a commercial establishmeiu -No such objection was taken in written statement-Held: Point whether Firkhana is or is not an industrial or commercial establishment, requires evidence and thus cannot be entertained at appellate stage. [P.137JB (v) Re-instatement-- —Store-keeper-Dismissal from service of-Re-instatement ordered by Labour Court-Challenge to--Argument that after taking over by Government, new posts were created and employees were newly appointed, respondent could not be re-instated in service-When an establishment is taken over by another body, labour goes with work and no question of creation of new posts arises— New comer cannot only take assets but takes liabilities also—Held: Since Government is running Karkhana, of which respondent was a permanent employee, he has a right to be re-instated in service. [Pp.l37&138]D (vi) Workman-- —Store-keeper-Whether covered under definition of workman-Question of~ According to difinition of workman given in Section 2(xxviii) of IRO, even a supervisor is covered by it unless it is proved that his wages per month were in excess of Rs.800/--Held: Lower court rightly held that respondent was a workman—Held further: Respondent is covered by definition of workman given in Standing Orders Ordinance, 1968 even. [Pp.l36&137]A M/s Masud Ashraf Sheikh and Muhammad Akram, Advocates for Appellant. Mr. M.Shamsher Iqbal Chughtai, Advocate for Respondent. Date of hearing: 17.7.1991. judgment The appeals captioned above arise from the decision dated 8.4.1991 recorded by the learned Presiding Officer, Punjab Labour Court No.6, Bahawalpur, whereby accepting the grievance petition of Abdul Aziz (hereinafter called as the respondent) he was directed to be reinstated in service without back benefits. The Project Director, Karkhana Alaat-e-Zari, Bahawalpur (hereinafter described as the appellant) has challenged the direction of reinstatement, whereas the respondent has claimed back benefits in his appeal. Since both the appeals arise from the same decision they are being disposed of together through tnis single judgment. 2. The respondent was a store keeper. The allegations made against the respondent as contained in the charge sheet, copy of which is Ex.P-9, were that he used to instigate the workers to go on illegal strike, that he used to develop ill-will between the workers so that they might fall out with each other, that often he was late, that he did not discharge his duties according to the instructions, that his work with regard to accounts was not satisfactory, that he was not submitting fortnightly sales statement for six months, which displayed that he was not taking interest in the work, that his behaviour with the workers and the staff was improper, and that he had damaged electric meter installed in the quarter. Exparte inquiry was held, which culminated in the dismissal of the respondent from service. 3. Learned counsel for the appellant has argued that the respondent as store keeper was not covered by the definition of workman, that Karakhana Alaat-e- Zari was neither an industrial establishment nor a commercial establishment, and that Karkhana Alaat-e-Zari was taken over by the Punjab Government, therefore, the said Government was a necessary party but it was not impleaded as such. 4. So far as the point whether the respondent was covered by the definition of workman is concerned, no doubt the respondent admitted that there were assistant store keepers and helpers under him and RW-2 deposed to that effect, but according to the definition of workman given in section 2(xxviii) of the Industrial Relations Ordinance, 1969, even a supervisor is covered by the definition, unless it is proved that his wages per month were in excess of Rs.800/-. The relevant portion of the definition reads as, "Worker and workman means any person not falling within the definition of employer who is employed (including employment as supervisor or an apprentice) in an establishment or industry. It is apparent that even a supervisor, if he is not covered by the definition of employer, is a workman. Clause (b) is an exception to the defmitipn which says, But it does not include any person ~ (b) who being employed in a supervisory capacity draws wages exceeding Rs.800/- per mensem". Since there is no evidence about the wages of the respondent, he does not stand ousted under exception (b) from the definition of workman. The learned lower court, therefore, rightly held that the respondent was a workman. In the written statement it has not been made clear whether the respondent is iiot a workman according to the definition given in the Industrial Relations Ordinance, 1969 or in the Standing Orders Ordinance, 1968. Since at the time the respondent was dismissed from service, Karkhana Alaat-e-Zari had not yet been taken over by the Punjab Government, Standing Orders Ordinance, 1968 was applicable to it. Making entries in the relevant register of the articles coming in the store and the ones which are issued from the store, can be the duty of a store keeper, in the absence of any evidence that some other person had been doing this clerical work. There is no evidence that any clerk was given to the respondent. So the clerical duties were being performed by him. No doubt, there were helpers under him but there is no evidence that they were literate persons and had been doing clerical work. Since the articles are brought and kept in the store and are issued away from there, therefore, some person is needed to carry the articles at the time they are brought to the store and at the time they are issued. The helpers, therefore, may be performing mannual duty but so far as clerical duties are concerned, the same can be performed by a literate person. Thus the respondent is covered by the definition of workman given in the Standing Orders Ordinance, 1968 also. 5. Suffice it to say with regard to the argument of the learned counsel for the appellant to the affect that Karkhana Alaat-e-Zari is neithr an industrial establishment nor a commercial establishment, that no such objection was taken in the written statement. Learned counsel says that since this question touches the jurisdiction of the court, it can be raised at the appellate stage as well. A legal point which does not require evidence touching the jurisdiction of the court may be raised at any stage, but a point involving a question of fact, which can be proved by some evidence, can be raised only in the pleading, and not at the appellate stage. The point whether Karkhana Alaat-e-Zari is or is not an industrial or commercial establishment requires evidence and thus cannot be entertained at the appellate stage catching the respondent unaware. 6. As mentioned above, it has been argued by the learned counsel for the appellant that as at the time the written statement was filed Karkhana Alaat-e- Zari was not being .controlled by the Project Director but was taken over by the Punjab Government, therefore, it was necessary for the respondent to implead the Punjab Government and in the absence of the said party, the petition was not maintainable. On the face of it the argument has no force. This is not the case of the appellant that at the time dismissal order was passed against the respondent Karkhana Alaat-e-Zari was being run by the Government, rather it is apparent from the order of dismissal that it was passed by the Project Director. Since at the time the cause of grievance arose to the respondent the Punjab Government had not come into the picture, it was neither a proper nor a necessary party. 7. It has also bee argued that after Kharkhana Alaat-e-Zari was taken over by the Government, new posts were created and the employees were newly appointed, therefore, the respondent could not be ordered to be reinstated in service. When an establishment is taken over by another body, the labour goes with the work and no question of creation of new posts arises. New comer cannot only take the assets but takes the liabilities also. Permanent employees cannot be terminated without any just cause. Of course if the work for which they were employed comes to an end and the employer decides not to continue the same, the services of such employees may be terminated but this is not the case of the appellant that Karkhana Alaat-e-Zari was closed, but rather as noticed above, the case of the appellant is that it was taken over by the Government. Since the Government is running Karkhana Alaat-e-Zari, of which the respondent was a permanent employee, he has a right to be reinstated in service. This is true that the learned lower court has not recorded finding on the point, but since the learned counsel for the appellant has been heard at length and he has not been able to satisfy, the mere fact that the learned lower court did not record finding is not sufficient to set aside the impugned decision of the learned lower court. 8. The other point argued by the learned counsel is that hi Ex.R-8 which is a proforma for appointment, the respondent urged while applying for service to GTS Multan that he had resigned the post with Karkhana Alaat-e-Zari, he had no right of reinstatement. This is true that a person who admits that he has resigned cannot ask for reinstatement but since the 'case of the appellant is not that the respondent had in reality resigned and since this is an admitted fact that on the ground of certain allegations the respondent was dismissed from service, he was entitled to challenge the order. It appears that he did not mention hi proforma Ex.P-8 that he was a dismissed employee thinking that if he had done so, he would not be taken in service by the G.T.S. 9. The other argument of the learned counsel for getting the grievance petition of the respondent dismissed is that sub-section (6) was omitted from section 25-A of the Industrial Relations Ordinance, 1969 and at that time section 7 was not easting and was inserted afterwards, therefore, the grievance petition of the respondent could not proceed. The argument has no force. This is true that sub-section (6), according to which, if within two months of the termination of E service the grievance petition was brought, it was not necessary to serve a grievance notice and the grievance petition could be brought directly, but after the deletion of sub-section (6) the case could not be dismissed, because according to section 6 of the General Clauses Act, the pending cases are saved. Clause (b) of section 6 of the General Clauses Act applies, which reads as under:- "The repeal shall not (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder." Clause (c) of section 6 is also attracted which reads as, "(c) any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". According to clause (b), the repeal of sub-section (6) of section 25-A cannot adversely affect the petitions brought under the said provision and they would continue and be decided on merits. According to clause (c), the respondent got a right under the repealed sub-section (6) to bring grievance petition within two month of the removal from service without serving a grievance notice. He had brought the grievance petition under sub-section (6) and thus it could continue for being finally decided, irrespective of the fact that sub-section (6) had been repealed. 10. It has been argued that the respondent was duly served with a notice of inquiry which was held on 20.2.1975, therefore, on account of his absence exparte inquiry was rightly held. This is true that he had been informed that the inquiry would be held on 20.2.1975 and he was asked to produce evidence but the time was very short during which he could not prepare the case to defend himself against the prosecution and to produce his defence. The notice was served on 19.2.1975 and the inquiry was to be held just on the following day. It appears that since unreasonably the time was very short, he decided not to participate in the inquiry. He was prejudiced by exparte inquiry and thus was condemned unheard. 11. So far as back benefits are concerned, it has been argued that according to the respondent's own showing he was employed with PRTC and, therefore, he was rightly disallowed back benefits. This is true that after the respondent was dismissed from service, he had taken up service with PRTC but he has given the difference of his pay in his statement prepared by him which is Ex.F-18. He was entitled to the difference of pay. 12. As a result of the observations made above, the appeal of the appellant fails and is dismissed. The respondent is entitled to the difference of the emoluments which he was getting from the appellant and after his termination from the GTS and to this extent his appeal is accepted and the impugned decision is modified. Mr. Nazir Ahmad Job clerk for the appellant. Respondent in person. (MBC) (Approved for reporting) Orders accordingly.

139 [NWFP Service Tribunal, Peshawar] 139 [NWFP Service Tribunal, Peshawar ] Present: MUHAMMAD SIDDIQUE KHATTAK AND TAJ MUHAMMAD KHAN, members D/-.NOOR KHAN WAZIR-Appellant versus GOVERNMENT OF NWFP, THROUGH CHIEF SECRETARY, and another- -Respondents Appeal No.28 of 1989, accepted on 5.5.1991. (i) Adverse Remarks-- —Adverse remarks-Expunction of--Prayer for~Had adverse remarks been communicated in time, appellant, a young doctor, would have reformed himself—Un-communicated remarks have no value for purpose of promotion and same could not be taken into account against appellant-Held: Adverse remarks about appellant's integrity and bad reputation for corruption could not be established in inquiry against him—Adverse remarks ordered to be expunged. [Pp.l45&147]E,F&G PLD 1978 Lahore 581,1980 PLC (CS) 384 & 558,1981 PLC (CS) 854 and 1983 PLC(CS)303& 522 re/. (ii) Appeal-- —Service appeal-Maintainability of-Challenge to-Objection is that appeal is not competent-Held: Expunction of adverse remarks and withholding of promotion on account of adverse entries in A.C.Rs come within terms and conditions of service and Tribunal is competent to entertain such appeals under Section 4 of NWFP Service Tribunal Act, 1974. [P.144JB (iii) Appeal- —Supersession and withholding of promotion-Challenge to—Whether appeal is hit by Section 22 of NWFP Civil Servants Act, 1973 read with Section 4(b) (i) of NWFP Service Tribunal Act-Question of-Appellant has been superseded in promotion on basis of adverse remarks which were never communicated to him—Held: Appellant has a definite cause of action and objections are rejected. [P.144JC (iv) Limitation- —Adverse remarks—Expunction of—Prayer for—Whether appeal is timebarred-Question of~No record is produced by respondents regarding communication of adverse remarks to appellant-Letter of rejection of appellant's departmental representation communicated to appellant on 26.12.1988, was received by him on 1.1.1989 and appeal was filed on 26.1.1989- Held: Objection is over-ruled. [Pp.l43&144]A 1987 PLC 776 rel . (v) Natural Justice- —Promotion—Withholding of—Adverse remarks communicated late to appellant -Effect of—Adverse remarks were communicated to appellant much after he was considered for promotion but overlooked on account of adverse remarks in his A.C.Rs—This means that appellant was condemned unheard-­ Held: Appellant could not be condemned for promotion on basis of adverse remarks which were not communicated to him-Held further: Such action on part of respondents was unjust and unfair. [P.144JD Mr.Sher Zaman Kundi, Advocate for appellant. MrAsifShah, Govt. pleader for respondents. Date of hearing: 5.5.1991. judgment Muhammad Siddique Khattak, Member:--This is an appeal filed by Dr.Noor Khan Wazir, against the order of respondent No.2, dated 26.12.1988, received by him on 1.1.1989, whereby his representation for the expunction of adverse remarks from his ACRs for the period from 1970 to 1974 was rejected. It has been prayed that the adverse remarks may be expunged from his ACRs and he may be given his due seniority from the date his junior was promoted. 2. Brief facts of the case, as brought out in the appeal, are that the appellant joined the Health Department as Medical Officer on 26.12.1960, was selected by the Former West Pakistan Public Service Commission as Medical Officer, on 25.6.1964 and was confirmed w.e.f 8.3.1965 vide notification dated 1.8.1968. After the disintegration of one Unit, a seniority list of the Junior Class-I (now BPS-17) Medical Officers was drawn up in 1974 wherein some Medical Officers junior to the appellant were placed senior to him. Feeling aggrieved with that list he made a representation but there was no response from the department till 1976. The appellant was apparently superseded on account of certain adverse entries in his Annual Confidential Reports as is evident from memo No.3328/50-H-IV/70 dated 4.3.1976. Though the adverse remarks pertain to the period from 1970 to 1974 but these were communicated to the appellant in one lot in 1976 vide letter quoted above against which a representation was made by the appellant to respondent No.2 on 12.3.1976 (Annexure-B) on file. That the appellant has vigorously been pursuing his case for the expunction of the adverse remarks from his ACRs and restoration of his due seniority but there was no response till 1988. He was however promoted to BPS-18, vide Notification dated 17.11.1986. The appellant made yet another representation dated 26.1.1987, reminding and requesting the respondent department for settling his case one way or the other as it was hanging for such a long time. Respondent No.2 vide his letter No.N/6/SOG(H) A.C.R. dated 26.12.1988 informed the appellant that his representation was earlier considered and filed. This order was conveyed to him on 1.1.1989 through the Principal Khyber Medical College Peshawar (Photo copy at Annexure-D). 3. Feeling aggrieved with this order the appellant, having no other option, has come in appeal to this Tribunal on the grounds that the adverse remarks in his ACRs are in violation of the rules and instructions of the Government issued from time to time, hence these are of no legal effect. The respondents, according to the appellant, have failed to communicate the alleged adverse remarks to the appellant in time, these have no evidentiary value and that neither the Reporting Officer nor the Countersigning Officer have acted in a manner prescribed by law and they have also failed to justify the adverse remarks which have been made with malafide intentions. That the appellant has been condemned unheard and this amounts to violation of the principle of natural justice. The illegal acts of the respondents have prejudiced his service career and deprived him of his legal rights, therefore, the adverse entries are liable to be expunged. The appellant has prayed that the same may be expunged and he may be allowed his due seniority. 4. Respondents No.l and 2 in their parawise comments have raised preliminary objections on the appeal, stating that it is time barred, it is not competent, the appellant has got no cause of action as promotion to the higher post from a retrospective date cannot be claimed as a matter of right, it is bad for non joinder of necessary parties. 5. Contesting the appeal on factual side, it has been submitted that during the year 1974, he was considered for promotion alongwith others from BPS-17 to BPS-18, against 40% quota but he was not promoted due to his un-satisfactory record of service, therefore, his juniors, who were promoted in 1974, superseded him. His case was summoned by the Chief Minister, who after perusal of the case, made certain observations, which were conveyed to the Health Department on 21.1.1975. He was promoted w.e.f. 17.11.1986 from BPS-17 to BPS-18, so his seniority would be reckoned from the date he assumed charge against BPS-18 post. That the adverse remarks were not expunged, therefore, his promotion could not be made earlier. That the appellant was informed that his representation for expunction of the adverse remarks was considered and filed. There was no violation of the rules on the part of the Reporting Officer and the Countersigning Officer, as alleged by the appellant, who recorded adverse entries in the ACRs of the appellant. The instructions referred to in the appeal, provided that the adverse remarks should be communicated to the officer concerned even at the belated stage. The adverse remarks communicated later are not violative of the instructions of the Government. As reflected in the remarks in the confidential reports, the performance of the appellant was far from satisfactory. There is no provision for personal hearing in settling representations against adverse remarks. The appellant was not enjoying good reputation and was declared unfit for promotion, the adverse remarks recorded in his ACRs for the period from 1970 to 1974 were not expunged, therefore, he has no case and his appeal is liable to dismissal. 6. All those Medical Officers who could be affected in case the prayer of the appellant was accepted were impleaded as necessary parties to the appeal under the directive of the Tribunal, and except Dr. Shah Nam Badshah respondent No.127, Dr. Muhammad Nawaz, respondent No.96, Dr. Sardar Shah, respondent No.136, Dr. Waris Khan Mahsood respondent No.18, no one submitted his parawise comments on the appeal, or contested it. These respondents have raised preliminary objections on the appeal, stating that the appeal is hit by limitation, it is not competent, the appellant is estopped by his own conduct to bring this appeal. On the factual side, due to lack of knowledge, they have not been able to contest the points raised in the appeal. 7. Arguments of the counsel for the parties heard and record perused. Counsel for the appellant submitted that the adverse remarks were given to the appellant in the years 1970 to 1974 and 1975 but these were communicated to him in one lot in 1976, when his promotion case had already been processed and because of the adverse remarks in his ACRs, he was not found fit for promotion and he was superseded. He submitted that the adverse remarks for the years 1970 and 1971 were recorded by one officer namely Doctor Muhammad Yousaf. If the Reporting Officer gave him adverse remarks for the year 1970, then for the next year i.e. 1971, the appellant should have been shifted to the administrative control of any other officer. Leaving him at the mercy of the same officer who gave the appellant adverse remarks during the previous year was an injustice with him and was violative of the instructions on the subject. Again for the period from September, 1973 to July, 1975, the appellant was given adverse remarks for three consecutive years and after an adverse report for the year 1973 the appellant should have been transferred to some other place outside the jurisdiction of the reporting officer, but this was not done. He submitted that the appellant was considered for promotion in 1974 and at that time the adverse remarks had not been cemmunicated to him, so these had no impact whatsoever on his promotion as under the instructions of the Government such uncommunicated adverse remarks have no value, therefore, withholding of promotion on account of the uncommunicated adverse remarks was not justified at all. Those remarks were communicated in 1976 and the appellant made representation for the expunction of the same, but no decision could be taken thereon for 12 years. The whole matter was dealt with lightly without considering the fact that the service career of an officer hinged on it. He further submitted that the adverse remarks were not communicated to the appellant in time, and his representation for the expunction of the same could not be decided till 1988 with the result, the appellant was subjected to an unbearable mental torture. 8. Government Pleader, in contesting the appeal, stated that the adverse remarks pertain to the years 1970 to 1975, though communicated belatedly, but nevertheless this late communication does not under-mine its value unless these are expunged. The appellant was promoted in 1986, so these remarks were no more operative now, because these could not stand in his way any longer, therefore, his prayer for its expunction now has become immaterial. There is no final order which could be challenged by the appellant. His promotion from a retrospective date would affect the seniority of many officers which would neither be desirable nor in the interest of the department. He submitted that giving him promotion and that too from the retrospective date is not within the jurisdiction of the Tribunal as in such like cases its jurisdiction is barred by clause 4(5) of the NWFP Service Tribunal Act 1974. 9. We have carefully examined the arguments advanced for and against the case. First we would like to deal with the preliminary objections raised on the appeal. First objection is that the appeal is time barred, because the adverse remarks were communicated to him in 1976 against which the appellant made a representation. If he did not receive the reply within the prescribed period, he should have approached the proper forum for seeking remedy to his grievance, since he did not make any appeal in the prescribed period, therefore, his appeal filed in 1989 after about 13 years, is hit by limitation. On the other hand the appellant holds that since he could not receive any order or reply to his representation, therefore, he could not approach any forum before receiving a response from the respondent department. We feel that there were two options open to the appellant, namely either to approach the proper forum after the lapse of the prescribed period or wait till a reply to his departmental representation was received by him. The respondent department in their letter dated 26.12.1989, have stated, "that representation of Dr. Noor Khan Wazir was earlier considered and filed by the competent authority. There is no provision for a second representation/review petition under the rules, therefore, the second representation of Dr. Noor Khan Wazir, cannot be considered". (Annexure-D on file). This letter was received by the appellant on 1.1.1990 against which the present appeal has been filed. The appellant denied the receipt of any reply to which reference was made by the respondent department in its letter, therefore, they were asked to produce a copy of the letter through which such a reply was given. There is no mention of such a reply in the parawise comments except that his case was summoned by the Chief Minister and the views of the Chief Minister were conveyed to the Health Department by the S&GAD on 21.1.1975. Further movement of this letter, as to whether it was sent by the respondent department to the appellant or not, but their silence is pointer to the fact that it was not sent to the appellant. Had they sent it, they would have surely indicated the number and date of the letter through which the appellant was informed of the fate of his representation. 10. In their comments, the respondents have averred that the appellant has himself admitted in his appeal that he was informed about the rejection of his representation, but on going through the appeal we have come across nowhere, where such admission of the receipt of any reply to his representation, was made by him. When we pressed the respondent department to produce documentary proof of the reply sent to the appellant, they submitted that "due to bifurcation of Health, Education and Social Welfare Departments in 1975, some files/record of the Health Department including the okl/previous volume of Dr. Noor Khan Wazir's Personal File relating to the correspondence of expunction of adverse remarks recorded in his Annual Confidential Reports for the years 1971, 1972, 1973 and 1974, were mis-placed and have not been traced so far. Hence no written proof be produced to the effect, that representation of Dr. Noor Khan Wazir had been considered earlier and filed by the competent authority, as stated in this department letter of even number dated 26.12.1988" (their letter is placed on the file at Annexure-X). Without questioning the reasons for the non production of the relevant record, we would like to observe that in the absence of any solid proof in support of the claim of the respondent department that his earlier representation was considered and filed and he was informed of the fate of his representation, cannot be accepted and the reply contained in their letter dated 26.12.1988 would be construed to be the letter of rejection of his departmental representation against which the appellant has come in appeal. This letter was received by him on 1.1.1989 and he filed the appeal on 26.1.1989, which is well within time. This objection is therefore, overruled. Reliance is placed on PLC - 1987 - 776 (Part-I) for these views. 11. Second objection is that the appeal is not competent. Expunction of adverse remarks and withholding of promotion on account of the adverse entries in the ACRs come within the terms and conditions of service and the Tribunal is competent to entertain such appeals under clause 4 of the NWFP Service Tribunal Act 1974. This objection is, too, overruled. 12. The third objection is that the appeal is hit by Section 22 of the NWFP Civil Servants Act 1973 read with Section 4(b)(/) of the NWFP Service Tribunal Act, 1974. This objection is not valid as, here, there is no question of determining the fitness of the appellant for holding a particular post or promotion to a higher post, here the question is supersession of the appellant by his junior officers and withholding of promotion from him on the basis of the adverse remarks which were never communicated to him and which, according to the appellant, had no impact whatsoever on his promotion having not been communicated to him. The appellant has a definite cause of action as he has been superseded in promotion and he has impleaded all necessary parties, therefore, the fourth and fifth objections, being not valid, are rejected. 13. Having disposed of the preliminary objections, we revert to examine the merits of the case. As submitted by the respondent department, the appellant was considered for promotion from BPS-17 to BPS-18 in 1974, against 40% quota but he was not promoted because of the adverse remarks in his Character Roll. Again it is submitted that since the adverse remarks in the ACRs were not expunged, therefore, the question of his promotion earlier (than 1986) does not arise. As regards his seniority it is stated, that it would be considered from the date he took over charge in BPS-18 as a result of his promotion. Thus to say it in unequivocal terms he was due for promotion in 1974, but his promotion was withheld on the grounds of adverse entries for four years i.e. 1971,1972,1973 and 1974 which were communicated to him in one lot in 1976, under covering letter No.3328/SHO- IV/70, dated 4.3.1976, much-after he was considered for promotion but overlooked on account of the adverse remarks in his ACRs. This means that the appellant was condemned on the basis of the adverse entries which were not communicated to him. According to the Government instructions the appellant could not be condemned for promotion on the basis of the adverse remarks which were not communicated to him. Thus such an action on the part of the respondent department was unjust and unfair. 14. Going back to the nature of the adverse remarks these in the year 1970 were not so damaging. Had these been communicated in time and had he been alerted to his draw-backs, being a young Doctor, he would have surely responded to it and would have mended Jiis ways. The main purpose of communicating the adverse remarks to the officer concerned is to enable him and give him a chance of reforming himself. Relevant paras from 'A guide to performance evaluation' are reproduced below to make the point clear. (»') As a general rule in no case should an officer be kept in total ignorance for any length of time that his superiors after sufficient experience of his work are dissatisfied with him; in cases where a warning might eradicate or help to eradicate a particular fault, the advantages of prompt communication are obvious; where criticism is proposed to be withheld, the final authority to consider the report should record instructions, with reasons, according to the period for which communication is to be kept back. (///) (A) Adverse remarks should be communicated to the officer concerned, namely (?) to enable the officer to make efforts for improvement; (B) when any adverse remark is made, in the confidential report of any officer, a copy of the whole report should be furnished to him at the earliest opportunity, and in any case within one month from the date the report is countersigned, with a D.O. letter a copy of which should be signed and returned by him in acknowledgement of the report. A serious view should be taken of any failure on the part of the officials concerned to furnish a copy of the report containing adverse remarks to the officer reported upon within stipulated period; Nevertheless, the adverse remarks should be communicated to the officer concerned even at belated stage. (iv) The Reporting Officer should specially, state whether the defects reported have been already brought in another connection to the notice of the officer concerned. (w7/_) the effect, of the communication of adverse entries should be carefully watched and the reporting officer should, when drawing up a report in the next year, state whether the officer reported on has or has not taken steps to remedy defects to which his attention was drawn in a previous year. Such remarks should also be communicated. From the above it is quite clear that the adverse remarks are to be communicated in tune and that the effect'of the communication of the adverse remarks is to be watched carefully. When drawing up report in the next year the reporting officer should state whether the officer reported on has or has not taken steps to remedy defects to which his attention was drawn in the previous year. In this case the confidential report for the' year 1971 was written by Dr. Muhammad Yousaf, Agency Surgeon South Waziristan Wana, giving the appellant adverse remarks. The appellant was rated "very good" for the period from 1.1.1971 to 26.7.1971 perhaps under the administrative supervision of some other officer but for the remaining period of the year i.e. 27.6.1971 to 31.12.1971 the appellant again came under the administrative control of Dr. Muhammad Yousaf who gave him a damaging report declaring him unfit for further promotion. Neither the remarks or the year 1970 were communicated to the appellant nor any warning was given -"» to him to reform himself. Remarks for the period from 1.1.1972 to 31.12.1972 are "that the officer has a bad reputation for corruption". These remarks are recorded by Dr. Muhammad Anwar and countersigned by Col. M Aslam, the then Director Health Services. For the period from 1.1.1973 to 4.9.1973, he was rated as "Average" by Dr. Muhammad Anwar, but the Countersigning Officer (Dr. Col. Muhammad Aslam) remarked that "the officer has a reputation of being corrupt". The first Countersigning Officer for these two periods was Dr. Col. Muhammad Aslam and he was working as Director Health Services NWFP. A question arises that if the appellant had the reputation of being corrupt, which of course is quite a serious charge, then why these remarks were not communicated to the appellant by the Countersigning Officer in the capacity of Director Health Services. If he levelled this charge against the appellant all by himself, why did he not take the trouble of ordering a thorough inquiry into it against the appellant and why did he fail to initiate a departmental action against him. Charge of being a corrupt officer is levelled against the appellant for two consecutive years but he does not know about it. Is not it strange? Did the Director Health Services being the Administrative Head of the Health Department absolve himself of his duties by giving these remarks in the Annual Confidential Report of the appellant and then doing nothing further? Did he feel at rest after giving these remarks in the Confidential Reports? Col. Dr. Muhammad Aslam was an outsider to the Department, he either did not consider himself accountable to any one, or he did not care for the observance of the Government instructions on the subject, . otherwise he would not have behaved so irresponsibly. 15. Now coming to the adverse reports for the years 1973, (16.9.1973 to 31.12.1973), 1974 and 1975 (1.1.1975 to 6.7.1975), these were written by Dr. Abdullah Jan Khalil Medical Superintendent D.H.Q. Hospital Bannu. These reports are for three consecutive years. After the first adverse report the respondent Department was bound to transfer the officer from the charge of the . Reporting Officer as required under the instructions for writing confidential reports, but the respondent department failed to do so, rather kept the appellant for three consecutive years under the same Reporting Officer, who haunted him for all these years without giving him a single piece of advice during all this time to reform himself. The question again is as to why departmental action was not initiated against the appellant for the charges of corruption. The respondent dep'aftment has no record to show as to whether any inquiry on this charge was initiated or not against the appellant. The appellant has however, in para-7 of the explanation to the adverse remarks communicated to him in 1975 submitted that "so much so and notwithstanding the above the officer was still labouring to put me in trouble by allegating me of (bringing against me) various charges and conducting inquiries. By the grace of God as I was innocent nothing was proved and the case was filed vide Secretary Health letter No.3328/H&SW/70 dated 8.6.1974". This statement of the appellant could not be rebutted by the respondent department due to non-availability of the relevant record therefore, we conclude that inquiry into the charges was conducted and the case filed because the charges could not be proved against him. If such was the position, then the adverse remarks should have been expunged when the charges could not be proved in an "^ inquiry. 16. So far as the value of the uncommunicated adverse remarks on promotion is concerned, the same has no value whatsoever, for the purpose of promotion as is evident from West Pakistan circular letter No.S(R)1487/4-l/69 SO-XIII, dated 12.7.1969 wherein it has been laid down that "confidential report containing adverse remarks should not be taken into consideration until they have been communicated to officer concerned and decision is taken on representation if any". The confidential reports of the appellant from 1961 to date, except the adverse remarks discussed above, are either good or very good with three satisfactory reports for the years 1977, 1979 and 1980 therefore, the adverse remarks which had not been communicated could not be taken into account against the appellant. We rely for these views on the following authorities:- PLD 1978 Lahore 581 1980 PLC (CS) 384 and 558 1981 PLC (CS) 854 1983 PLC (CS) 303 and 522 17. To sum up the above discussion, the adverse remarks generally were about the appellant's integrity and bad reputation for corruption but these could not be established in the inquiry against him. In the circumstances we accept the appeal and direct that the adverse remarks for the years 1971, 1972, 1973, 1974 and 1975, having not been communicated in time, be expunged from the Character Roll of the appellant. We further direct that the appellant be considered for promotion from BPS-17 to BPS-18 from the date his junior officers were promoted considering that the adverse remarks did not exist in the Character Roll. Parties are left to bear their own costs and the file be consigned to the record. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 147 [Federal Service Tribunal, Islamabad ] Present: JUSTICE (RETD.) SYED ALLY MADAD SHAH, CHAIRMAN, AND MAJ.GEN. Cn. A. rahman khan, HI(M), member SAFIR AHMAD KHAN-Appellant versus SECRETARY, DEFENCE DIVISION, and 4 others-Respondents. Appeal No.32(R) of 1990, partly accepted on 9.7.1991. Pension- —Government servant on deputation to Air Force-Repatriation to parent department-Retirement from service and grant of pension to-Determination of—Appellant served with PAF on secondment for a long period and earned promotions there, but was reverted to his parent department at verge of his retirement—Pay fixed on his repatriation to his parent department was much less than that he had last drawn in PA.F.-Pension was counted on pay last drawn by appellant in his parent department—Held: Appellant is entitled to get pension on average of emoluments for 12 months preceding his retirement as if he had not gone on secondment, giving due consideration to his plea of move-over to next grade also-Appeal partly allowed. [Pp.l50&151]A,B&C Mr-Amimtr Rehman KJian, Advocate for Appellant. Hafiz S~A. Rahman, Standing Counsel for Respondents. Date of hearing: 8.7.1991. judgment Justice (Retd) Syed Ally Madad Shah, Chairman:--Appellant Mr.Safir Ahmad Khan, a retired Meteorologist, has preferred this appeal for determination of his pension. 2, The appellant was appointed as a Professional Assistant in the Pakistan Meteorological Department on 3.4.1954. He was promoted as an Assistant Meteorologist on 6.1.1962. He was seconded to serve with the Pakistan Air Force, on deputation, with effect from 11.8.1965. He was appointed there as a commissioned Pilot Officer. He was promoted as a Flying Officer in 1967. He earned further promotion as Flight Lieutenant in 1968. He earned yet another promotion as a temporary Squardon Leader in 1974 and was later made substantive Squardon Leader with effect from 11.1.1977 and continued serving as such until he was reverted to his parent department as a Meteorologist with effect from 16.7.1988. He retired on superannuation on 10.8.1988. His pension was calculated at Rs.3130/- on the basis of last pay drawn. Finding the pension so determined as less beneficial, he made representation dated 26.9.1989 for redetermination of his pension on the average of the pay drawn by him during the preceding 12 months. Getting no response to his representation, he preferred this appeal on 21.1.1990 for re-determination of his pension. 3. The appellant has based his claim on Finance Division Office Memorandum No.F.10(4)-Reg.(6)/86,' dated 1.7.1986, which is reproduced below:- SUBJECT: CALCULATION OF PENSION ON LAST PAY/EMOLU­ MENTS DRAWN. The undersigned is directed to state that under the existing rules, pension is calculated on the average emoluments drawn during the last 36/12 months of service. The President has been pleased to decide that w.e.f. 1st July, 1986, the pension of a civil servant who shall retire on or after this date shall be calculated at the existing rate on last pay/emoluments drawn provided the post has been held by him on a regular basis. Otherwise pension shall be calculated on average emoluments as admissible prior to the issue of this Office Memorandum. 2. The existing employees shall have the option to have their pension calculated either on the basis of last pay/emoluments drawn or on 12 months average emoluments whichever is more beneficial to them. No option will, however, be available to persons entering service on or after 1st July, 1986 and in their case pension shall be calculated at the prescribed rate on last pay/emoluments drawn". The appellant has stated that he had exercised option under the aforesaid Office Memorandum for calculation of his pension on the basis of last 12 months average pay drawn by him, as per letter dated 12.10.1988. The option exercised by him is contained in paragraph 2 of the letter which reads as under :- "2. Under the provision of Government of Pakistan, Finance Division (Regulation Wing) No.F.10(4)Reg.(6)/86, dated Islamabad, the 1st July, 1986 paragraph-2,1 am entitled for pension to be calculated on the basis of last 12 months average pay if beneficial to me and as such my average pay for the last 12 months actually drawn by me (from 10.08.1987 to 9.8.1988) Civil as well as Military, will be Rs.5357.69 per month and my pension will be computed as Rs.3750.38. Allowing 9% on this for my four years service beyond 30 years it will come to Rs.4050.38 per month". According to the appellant, he had last drawn his pay, on deputation, at Rs.5155/- exclusive of the allowances, and the last pay drawn by him as a Meteorologist in the Meteorological Department on the eve of his retirement was Rs.4007/-. His grievance is that instead of calculating the pension on the average of the pay drawn by him during the preceding 12 months, his pension was calculated on the basis of the pay last drawn by him as a Meteorologist and he has been put to loss. 4. The respondents have resisted the appeal. Their contention is that on reversion of the appellant from Pakistan Air Force on 16.7.1988, his pay was fixed as a Meteorologist at Rs.4007/- and the pay last drawn by him was that much viz. Rs.4007/- and his pension was correctly calculated on the last pay drawn by him. According to them, the pension of the appellant was to be calculated on the basis of last pay draw by him or on the average of his pay for 12 months against his substantive appointment, whichever was more favourable to him, and incidentally the pay last drawn by him was equal to the average of his 12 months pay on the permanent appointment as the Meteorologist and his pension was calculated accordingly and no loss was sustained by him. 5. The learned counsel for the appellant urged that pension of the appellant was to be calculated on the pay he had drawn over for 12 months immediately preceding the date of his retirement i.e. the pay he had drawn while serving with the Pakistan Air Force and the pay he drew in the Meteorological Department on his reversion to that department during the 12 months preceding his retirement and by actual calculation, his average pay would have been more than Rs.4007/- and his pension should have been calculated accordingly on the basis of Office Memorandum dated 1.7.1986. He placed reliance on the provisions of FR-9(20) and CSR-486 and 490. On the other hand, the learned counsel for the respondents contended that the pension of the appellant was to be determined on the basis of the pay last drawn by him in the Meteorological Department in view of paragraph 13 of the terms and conditions laid down in the instructions for grant of Short Service Commission in the Meteorological Branch of the Royal Pakistan Air Force to Government servants holding civil appointments in the Pakistan Meteorological Department and his pension was calculated accordingly. 6. Undisputedly, the appellant served with the Pakistan Air Force on secondment for a long period from 11.8.19.65 to 15.7.1988 and earned promotions and reverted to his parent department on the verge of his retirement on superannuation and actually retired from service on 10.8.1988. He had last drawn his pay with the Pakistan Air Force at Rs.5155/-, besides allowances, and his pay, on his repatriation to the parent department, was fixed at Rs.4007/-. Obviously, the pay fixed in his parent department on his repatriation was much less than that he had last drawn with the Pakistan Air Force. There is no dispute that the pension of the appellant was to be determined in accordance with the Finance Division O.M. dated 1.7.1986, reproduced above. Since he had opted for drawing his pension in accordance with the existing orders, i.e. on the average of pay of preceding 12 months, his pension had to be determined accordingly. However, there is dispute as to which pay of the appellant for the 12 months preceding his retirement was to constitute the base for calculation of his pension. In other words, whether the pay actually drawn by him during the preceding 12 months during his service with the Pakistan Air Force and the parent department was to form the basis, or whether the pay he would have drawn during the preceding 12 months in his p'arent department had he not remained outside his parent department on secondment. This question finds answer in paragraph 13 of the instructions for grant of Short Service Commission in the Meteorological Branch of the RPAF to Government servants holding civil appointments in the Pakistan Meteorological Department, reproduced below :- "13. Retention of Lien. During the period of their employment with the RPAF they will be allowed to retain a lien on their permanent civil appointment under the normal rules; their RPAF service will count towards increments of civil pay, promotion and pension or gratuity (as the case may be) in their parent department. The necessary contributions in respect of pension will be paid to the parent civil department concerned by the Defence Service Estimates, in the manner indicated in the Fundamental Rules, unless orders to the contrary exist in any case or class of cases". It is quite clear that the service of the appellant during his secondment to the Pakistan Air Force was to be counted as his service in the parent department for the purposes of increments in civil pay, promotion, pension and gratuity and his pay on his secondment to the Pakistan Air Force did not count for the determination of his pension and/or gratuity etc. It is, therefore, not necessary to advert to the provisions of CSR 486 or 490. It would be worth-while to mention here that the appellant was given proforma promotion from the post of Assistant Meteorologist to that of the Meteorologist (Grade 17) alongwith some other colleagues vide office order dated 11.8.1977. It follows that the pension of the appellant was to be calculated on his presumptive pay he had drawn during the 12 months preceding his date of retirement on superannuation as if he had served in the parent department. During the course of arguments, the learned counsel for the appellant and even the appellant himself stated that in case his pension was to be calculated on the basis of the pay he had drawn in his parent department during the preceding 12 months, his pay had to be re-calculated while giving him benefit of move over he was entitled to on having reached the maximum presumptive pay in grade 17 on 1.7.1983 as per letter dated 26.5.1987 issued from the office of the Accountant General, Pakistan Revenues (Sub-Office) Quetta, a copy whereof has been filed at the hearing of the appeal. There can be no two opinions that the pay of the appellant in the civil employment shall have to be determined in accordance with the relevant rules as if he had not gone outside the department to serve on secondment, including the benefit of move over if found entitled to. This argument was made as an alternative to the assertion of the appellant that his pension should have been calculated on the pay he had actually dravni during 12 months preceding the date of retirement wherever he was. As discussed above, the appellant was and is entitled to get the pension on the emoluments counting for pension he had drawn during the period of 12 months preceding the date of his retirement on superannuation as if he had not gone on secondment and had served in the parent department until his retirement. 7. In the result, the appeal is allowed to the extent that the pension of the appellant shall be determined on recalculation of his pay as if he had continued serving in the parent department until his retirement and working it out on the average of the pay he had drawn as such during the 12 months preceding the date of his retirement, while giving due consideration to his plea for allowing him move over also to BPS-18 with effect from 1.7.1983. (MBC) (Approved for reporting) Appeal partly allowed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 153 [Service Tribunal, Azad Jummii & Kashmir , Muzuffarabad] Present: sardar muhammad sajawal khan, chairman and raja muhammad ashraf kayam, member Sycd BASHIR HUSSA1N SHAH-Appellant versus INSPECTOR GENERAL OF POLICE and 2 others-Respondents Sen-ice Appeal No.488 of 1990, dismissed on 27.7.1991. Appeal- ----Head Constable of Police-Compulsory retirement of-Challenge to- Whether appeal is not maintainable—Question of—There is nothing on file to prove that appellant had availed of remedy of departmental appeal-It was for appellant to prove that he had filed departmental appeal-Held: Appellant haiing not availed of departmental remedy before filing this appeal, present appeal is not maintainable. [P.155JA Raja Muhammad Hanif KJian, Advocate for Appellant. Sardar Muhammad Sadiq KJian, Additional Advocate-General for Respondents. order Sardar Muhammad Sajawal Khan, Chairman.—The instant appeal has been brought by Sycd Bashir Hussain Shah (Rtd) Head-Constable against the order of his compulsory retirement dated 15.8.1983. The order was made by Ch.Sarfraz Ali the then Superintendent of Police (Reserves) Muzaffarabad. The appellant has impleaded the Inspector General, Deputy Inspector General and Superintendent of Police (Reserves) Azad Jammu and Kashmir Government Muzaffarabad for seeking his relief against them. 2. The relevant facts as contained in the memo of appeal are that the appellant was employed as Police Constable in Reserve Police in the year 1961 and was subsequently promoted as Head Constable in that Force. In July, 1983 he was falsely involved in a criminal case and he was forced to go on leave for attending the investigation proceedings initiated against him by the local Police and the subsequent proceedings before the Court to which he was challaned. Originally the leave was granted to him but later on he was charge sheeted for his absence without leave and was compulsorily retired from service. The appellant brought his appeals before the Deputy Inspector General and Inspector General of Police against the order of his compulsory retirement but no decision of the said appeals was taken and communicated to him till 21-4-1990. The appellant got the information as to the dismissal of his appelas before the Inspector General of Police through a copy of letter No.704 dated 13-1-1990 of Central Police Office, Muzaffarabad which was delivered to him on 21-4-1990. It is claimed by the appellant that his appeal before this Tribunal is within time from the date of communication of decision of rejection of his appeal by the Inspector General of Police. In the memo of his appeal, the appellant has taken the following grounds for his reinstatement on his post:- (/) that lie was not associated with the inquiry under Police Rules 16-24; (ii) that no show cause notice was issued to him before recroding the impugned order of his retirement; (Hi) that he was not afforded an opportunity of cross examining the witnesses appearing against him before the Inquiry Officer; (/v) that he was retired from service illegally on the basis of inquiry report prepared in his absence without giving him a chance of confronting the allegaions brought against him; (v) that the punishment of compulsory retirement is not provided in the Police Rules and hence the impugned order is not maintainable for being ab-inilio void. 3. It is prayed by the appellant that the impugned order of his compulsory retirement be set aside and he may be reinstated on his post with all the back benefits of his service. 4. The appeal was admitted for regular hearing by an order of this Tribunal dated 16.6.1990 and the respondents were asked to file their objections if any as to why the impugned order should not be vacated. In their objections, it was submitted by the respondents that the appeal was time barred and meriting dissmissal because the appellant had failed to avail of departmental remedy before invoking the jurisdiction of this Tribunal against the punishment of his compulsory retirement. 5. We have considered the arguments as were addressed by the learned counsel of each parly. The personal file of the appellant produced by the Police Department was also examined. The learned counsel for the appellant has invited our attention to the relevant chapter of punishment of Police Rules and has argued it that the compulsory retirement is not the punishment provided in the aforesaid rules and hence the impunged order being ab-initio void is not maintainable. We agree with the learned counsel for the appellant that compulsory retirement is no where provided to be the punishment for being awarded to a Police employee on proof of his misconduct or indisciplined attitude. In this appeal the important question to be determined by this Tribunal is that whether the appellant has availed of his departmental remedy before invoking the jurisdiction of this Tribunal under Section 4 of Service Tribunal Act and if the reply is found in affirmative, the next question for determination would be that whether the appeal was hit by the law of limitation. 6. After having carefully examined the appeal file, we find that except the affidavit, there is nothing on the file to prove the factum that the appellant earlier to the filing of the present appeal had availed of the departmental remedy available to him under the rules. Although the respondents have not filed any counter affidavit for controverting the contents of the affidavit yet we feel convinced to observe that it was the duty of the appellant to prove it on the file that he had actually availed of the departmental remedy well in time. The appellant by not submitiing copies of the departmental appeals, alongwith the present appeal has himself brought us to believe thai he had made no appeal before the Deputy Inspector General of Police. He may have made an application for revision to Inspector General of Police but I here is no second appeal provided in Police Rules. If for any reason it is accepted that he hud brought any appeal before the Inspector General of Police against the aforesaid order even then we cannot be sure of it that the present appeal is within time because it was for the appellant to produce all the record in support of his assertion that he had filed an appeal before Inspector General of Police and its decision was not communicated to him till 21.4.1990. The appellant has himself belied his stand that he had availed of the departmental remedy by including the fact in the memo of appeal for having submitted an appeal to the Inspector General of Police against the impugned order while no such appeal was allowed in the relevant rules and if he has been prosecuting any appeal before Inspector General of Police after by­ passing the next higher authority who was Deputy Inspecter General of Police in his case even then he is not entitled to get the time lost in pursuing his remedy before an Officer not competent to entertain appeal. It is pertinent to note here that the filing of appeal is not itself the compliance of the rules of law and the appellant was required to pursue that remedy of the appeal till its decision by the appellate authority. Therefore, we arrive at this conclusion that in fact the appellant has not availed of the departmental remedy before filing the present appeal and for that reason the present appeal was not maintainable. 7. It is next argued that the impugned order being void ab-initio, the period of limitation does not run against such order and remedy available before this Tribunal is not time barred. It is, no doubt, that an order passed by a public Officer without jurisdiction is regarded as ab-initio void order. But the consequences arising out of such an order cannot be brushed aside if the remedy available at law is not availed of t the proper time. The appellant had knowledge of it that he was compulsorily retired and despite of that he failed to avail of his departmental remedy at the proper time. The period of limitation provided in Azad Jammu and Kashmir Appeal Rules is 60 days for an appeal against the original order and 30 days to bring an appeal before this Tribunal against the final order of the appellate authority. The appellant has brought his appeal to this Tribunal after a period of six years and has rendered himself to be dis-entitled to get any benefit even out of the omnibus article of the Limitation Act which is, of course, not applicable to the present case. 8. In view of the above discussion, we find the appeal as hopelessly time barred and the same is hereby dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 156 [Punjab Service Tribunal, Lahore ] Present: MUHAMMAD MAHMUD ASLAM PIRZADA, CHAIRMAN AND MALIK abdul Aziz, mamber MANZOOR AHMAD-Appellant versus COMMISSIONER, GUJRANWALA DIVISION and 2 others-Respondents Appeal No.51/578 of 1988, dismissed on 24.7.1991 Removal from service— —Patwari-Concealment of true facts by-Fresh mutation entered to deprive vendees-Removal from service of-Challenge to-Appellant wrongly and with ulterior motive, entered Mutation of inheritance No.230 in 1986 in order to deprive vendees of Mutation No.42 of 1974, of their valuable legal rights-­ Charge against appellant stood proved from record beyond any doubt-Held: There is no illegality on point of law or fact or any illegal exercise of jurisdiction in impugned orders—Appeal dismissed. [P.158JA&B Mr.M.D.Tahir, Advocate for Appellant. Ch.Manzoor Hussain, District Attorney for Respondents. Date of hearing: 27.5.1991. judgment Mr. Muhammad Mahmud Aslam Pirzada, Chairman.-Manzoor Ahmed (formerly Patwari) has filed this appeal under Section 4 of the Punjab Service Tribunals Act, 1974 against the impugned orders dated 8.7.1987 and 1.11.1987 passed by the respondents No.2 & 1 respectively. The appellant has impleaded the Commissioner, Gujranwala Division, Gujranwala, Assistant Commissioner/Collector, Sub-Division, Narowal, District Sialkot and the Tehsildar Narowal as respondents. The appellant has prayed that the impugned orders passed by respondents be set aside and the appellant be reinstated in service. 2. The relevant facts for the disposal of this appeal are that the appellant was charge sheeted by the respondent No.2 as under:- 3. The Assistant Commissioner, Narowal Sub-Division (Respondent No.2) had appointed the Tehsildar, Narowal (Respondent No.3) as Enquiry Officer who after holding an equiry had held the appellant guilty of the above noted charges vide his Enquiry report dated 24.5.1987. The Assistant Commissioner, Narowal Sub-Division (Respondent No.2) after due proceedings and agreeing with the Enquiry Officer passed his impugned order dated 8.7.87 concluding para of which is reproduced below: - While perusing the impugned order dated 8.7.87 of the Assistant Commissioner Narowal Sub-Division (Respondent No.2) in the above quoted order the word ^g-^'U'^ appeared to have been interpolated/over written into the word <_fX^ which was not taken note of by the Commissioner, Gujranwala Division (Respondent No.l). Against the impugned order dated 8.7.1987 of Respondent No.2 the appellant preferred an appeal before the Commissioner, Gujranwala Division (Respondent No.l) which was rejected vide impugned order dated 1.11.1987. Hence this appeal. 4. We have heard the learned counsel for the parties at length and carefully perused the record with the assistance of the representative of the Department. 5. During the course of arguments the learned counsel for the appellant contended that the impugned order passed by the Assistant Commissioner/Collector (Respondent No.2) was void as no show cause notice was issued to the appellant nor he was provided any opportunity of personal hearing. He also contended that the enquiry officer did not examine any witness before submitting the enquiry report and as such substantial injustice was done to the appellant. 6. Conversely the learned District Attorney rebutted from the relevant record all the above contentions raised by the learned counsel for the appellant and contended that the appellant was proceeded against departmentally by the respondents strictly in accordance with the procedure laid down under the Punjab Civil Servants (E&D) Rules, 1975. He asserted that the appellant had willfully concealed the correct decision of inheritence mutation No.41 regarding Dilmir deceased and wrongly entered the subsequent inheritance mutation No.230 regarding the same deceased Dilmir definitely with the ulterior motive of depriving the vendees of mutation No.42 of their valuable rights. Learned District Attorney prayed that the impugned orders passed by respondents be allowed to stand in the light of comments/report furnished by the respondents. 7. After having heard the parties and having gone through the record we find that the appellant wrongly entered on 8.12.1986 the legal heirs of the deceased Dilmir in mutation No.230 in contradiction of those entered, verified and sanctioned in mutation'No.41 much earlier on 24.10.74 which was never challenged by any one in any forum. It was merely reviewed due to the sole technical reason that at one stage "status quo" had been ordered by the Honourable High Court in some writ petition. Thus the appellant concealed the correct decision of original inheritance mutation No.41 regarding Dilmir deceased and wilfully and wrongly entered a new inheritance mutation No.230 of the same deceased Dilmir showing some altogether different persons as legal heirs of Dilmir deceased, obviously for ulterior motives. It is quite clear that mutation No.230 was wilfully and wrong-fully entered by the appellant contrary to mutation No.41 in order to deprive the vendees of mutation No.42 of their valuable legal rights. Thus we find that the above quoted charge against the appellant stood proved from the record beyond any doubt. After having checked up the record we find no illegality on the point of law or fact or any illegal exercise of the jurisdiction in the impugned orders passed by respondents. Appellant's counsel has failed to pin point and establish any legal defect in the departmental proceedings undertaken by the respondents against the appellant which might have prejudiced any right of the appellant. 8. Thus in the above stated circumstances the appeal has no merit and we find no cogent grounds to interfere with the impugned orders passed by the B Assistant Commissioner/Collector, Narowal Sub-Division (Respondent No.2) and the Commissioner, Gujranwala Division, Gujranwala (Respondent No.l). Resultantly the appeal is dismissed with no order as to costs. Parties be informed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C (Services) 159 [Service Tribunal, Azad Jammu & Kashmir, Muzaffarabad] Present: SARDAR muhammad sajawal khan, chairman, and raja muhammad ashraf kayani, member MEER ZAMAN--AppeUant versus AJK GOVERNEMNT, THROUGH CHIEF SECRETARY, and 3 others-­ Respondents Service Appeal No.528 of 1991, dismissed on 31.7.1991. (it Azad Jammu & Kashmir Civil Servants (Efficiency & Discipline) Rules, 1977- —R.2(l)(c)~Government servant-Disciplinary action against-Challenge to~ V»Tiether inquiry proceedings conducted against appellant were in violation of E&D Rules- uestion of-Functions of Authority and that of Authorised Officer are different in nature and distinguishable-But under proviso to clause (c) of Rule 2(1), Authority can also function as Authorised Officer—Held: In this case, Authority was also empowered to act as Authorised Officer under Government order, therefore, objection is not tenable. [P.161JA (ii) Limitation Act, 1908 (IX of 1908)-- —S.14~Government servant-Disciplinary action against-Challenge to~ Whether time spent by appellant in prosecuting second appeal before Secretary Revenue, was debitable-Question of-Office of Secretary Revenue is not a wrong forum and only a court of law which does not have jurisdiction of entertaining an appeal is held to be wrong forum-Section 9 of Service Tribunal Act provides application of Sections 5 and 12 of Limitation Act, 1908- -Held: Application moved before this Tribunal under Section 14 of Limitation Act is misconceived and is not maintainable. [Pp.l61&162]B AIR 1927 Lahore 186 rel. Kh. Abdus Samad, Advocate for Appellant. Mr. Mushtaq Farooq, Advocate for Respondents. Date of hearing: 31.7.1991. judgment Sardar Muhammad Sajawal Khan, Chairman.-The relevant facts of the case are that Meer Zaman, Patwari was posted in Tehsil Athmaqam to work with the Settlement Staff deputed for settlement operation in that Tehsil. During his posting as such, he was found absent from his duties. He was proceeded against under Azad Jammu and Kashmir Civil Servants Efficiency and Discipline Rules, 1977 (hereinafter to be referred as E&D Rules) and supplied with a charge sheet by the Collector who at the relevant time held both the functions of Authority and that of Authorised Officer in case of the appellant. Mr Ali Akbar Shah, Tehsildar Settlement Operation Athmaqam was appointed as Inquiry Officer to probe into the charges brought against the appellant. In his report, the Inquiry Officer exonerated the appellant of the charge of absence but found his performance below average. He reported that the appellant was careless and guilty of dereliction of his duties. Under the impugned orders the Settlement Officer awarded him the punishment of censure, stoppage of one annual increment. He also ordered that the period of his suspension from 10.9.1988 to 5.1.1989 be treated as leave without pay. Being aggrieved by the aforesaid order, the appellant brought an appeal before the Additional Commissioner Settlement and by his order dated 16.1.1990 he reduced his punishment to the extent that instead of full period of suspension being treated as leave without pay, only 15 days out of that be treated as leave without pay and the rest of the period as leave whatever found due to the appellant. The appellant was not satisfied even with the appellate order of the Additional Commissioner and he brought a second appeal before the Secretary Revenue Azad Government for the redress of his grievances. The appellant has been prosecuting his appeal before the Secretary Revenue till 8.12.1990 without ascertaining the fact whether it was provided by the relevant service rules. After his appeal was dismissed by the Secretary Revenue, the appellant brought the present appeal in this Tribunal under Section 4 of Service Tribunal Act, 1975. 2. In the memo of his appeal before this Tribunal, the appellant has submitted that he was exonerated by the Inquiry Officer of the charges brought against him but despite of that he was punished under the impugned order by the Collector (Settlement Officer). It was further submitted by him that the impugned order was not maintainable for the following reasons inter-alia:- (i) that no proper inquiry was conducted in his case and the provisions of E&D Rules, 5,6 and 7 were not followed in his case; (u) that the Inquiry Officer was the same Officer who had initially made the report of his absence and dereliction of his duties by the appellant. Therefore, the inquiry proceedings having been conducted in'violation of E&D Rules are vitiated and the impugned order made on the basis of that inquiry is not maintainable; (/u) that no copy of inquiry report was supplied to the appellant and he was condemned without issue of show cause notice. It is prayed by the appellant that the punishment awarded to him under the impugned orders referred to above be set aside. 3. The appeal was admitted for regular hearing by an order of this Tribunal dated 13.2.1991 and the respondents were summoned for their objections, if any. But they failed to appear before this Tribunal despite of service of notices upon them and ex-pane proceedings were taken against them. However, the Additional Commissioner Settlement submitted his comments through the Registrar of this Tribunal and the same were placed on the file. Later on Kh.Mushtaq Farooq, Advocate was permitted to join the proceedings on behalf of the respondents and he assailed the appeal almost on the same grounds as were taken in the comments offered by the Additional Commissioner Settlement. In his comments, the Additional Commissioner Settlement has stated it that the allegations brought against his Department by the appellant were false, baseless and unfounded. He farther pointed out that the present appeal being barred by limitation was not maintainable. 4. We have examined the record on the file and have also considered the arguments as were addressed by the learned counsel for the parties. It is argued on behalf of the appellant that the inquiry was not properly conducted and the Inquiry Officer being the same Officer who had earlier initiated complaint against the appellant was not competent to make the inquiry in case of the appellant. According to him, the Authority making the impugned order of punishment could not function as Authorised Officer and Authority at one and the same time. The appointment of Inquiry Officer and acting of Authority as Authorised Officer against the mandatory provisions of Rules 5 and 6 E&D Rules have prejudiced the appellant and the entire inquiry proceedings against him were vitiated. The learned counsel relies upon an unreported case of this Tribunal entitled Bashir Ahmad Jaffri versus Azad Government. He has also moved an application to the effect that the period spent by the appellant in prosecuting his appeal before the wrong forum be excluded from barring the limitation period prescribed for this appeal. 5. We have verified it from the record that the Inquiry Officer was not the same Officer who had earlier made complaint against the appellant. The actual fact is that, the complaint was moved by Girdawar Halqa and it was forwarded to Settlement Officer by Mr. Abdul Qayyum the then Tehsildar Settlement while Syed Ali Akbar Shah Tehsildar who had subsequently taken over from Mr Abdul Qayyum, conducted the inquiry proceedings against the appellant. Hence the objection that the Officer conducting the inquiry was also a complainant is held devoid of force and is repelled. 6. We quite agree that the functions of Authority and that of Authorised Officer are different in nature and distinguishable. But under proviso to clause (c) of Sub-Rule (1) Rule 2 of E&D Rules, the Authority can also function as Authorised Officer in the cases where the designated Authorised Officer is not available to carry out his job. In the instant case, the Authority was also empowered to act as Authorised Officer under Government order NO.S&GAD/SO/51/297-308/83 dated 15th September, 1983. Therefore, this second objection is also not tenable. 7. The next point for determination is that the period spent in prosecuting of appeal before a wrong forum may be excluded from being counted in the period of limitation prescribed for filing this appeal in this Tribunal. The learned B counsel relies upon an unreported Judgment of the Hon'ble Supreme Court given in the case entitled Rang Baz Khan versus Raja Muhammad Azam Khan and thers. It is submitted by the learned counsel for the appellant that after a remedy of first appeal is availed of by an aggrieved civil servant, his next departmental remedy is by way of appeal/representation before the next higher authority under Rule 8 Sub-Rule 2 of Appeal Rules, 1982 and as such the period of limitation for filing appeal before this forum was not lost. However, if the period so spent is considered as lost, even then it may be condoned under Section 14 of the limitation Act because the appeal was prosecuted before a wrong forum. We are sorry to note here that the law laid down by the Hon'ble Supreme Court in the case cited above is that a representation brought before next higher authority is also a departmental remedy and the period spent in prosecuting of that remedy would be debitable towards the limitation period. But the present case is distinguishable from that case because here a second appeal was brought before Secretary Revenue by the appellant after his appeal before the Additional Commissioner Settlement had been dismissed on merits. It will be a misleading argument if we are asked to treat an appeal as a representation before the Secretary Revenue at this stage. In civil appeal No.18 of 1989 entitled Raja Lai Khan versus Secretary Revenue, the Hon'ble Supreme Court has held the similar view that a second appeal not provided by any rule of law is not a departmental remedy and the period spent in prosecuting that appeal cannot be permitted to be excluded out of the period of limitation allowed for an appeal being brought before this Tribunal. Section 9 of Service Tribunal Act provides the application of Sections 5 and 12 of limitation Act, 1908 as adopted by the respondent/Government in respect of an appeal before this Tribunal. It will be essential to note here that the Office of the Secretary Revenue is not a wrong forum and only a Court of law which does not have the jurisdiction of entertaining an appeal is held to be a wrong forum (AIR 1927 Lahore 186). Hence the application moved before this Tribunal under Section 14 of the Limitation Act is misconceived and is not maintainable. The instant appeal was required to be brought before this Tribunal after 30 days from the date of the final order dated 16.1.1990 passed on appeal by the Additional Commissioner Settlement Muzaffarabad but it was filed in this Tribunal on 10.1.1991 after the lapse of one year from the date of the appellate order. Hence this appeal is hopelessly time barred. 8. It is next argued that the provisions of E&D Rules in relation to authorising an Authority to act as an Authorised Officer in addition to his own duties is against the principle of natural justice and is a bad rule of law. Hence the relevant rule inserted in the definitions under Rule 2 (1) (c) be struck down. This Tribunal is the creation of Service Tribunal Act, 1975 which is a special Act and it has no powers beyond Section 5 of the aforesaid enactment referred to. Section 5 provides an appeal before this Tribunal to an aggrieved civil servant against the final order of a departmental Authority. Hence there being no provisions of law, we have no powers to struck down any rule of law held violating the principles of natural justice. 9. The Efficiency and Discipline Rules do not provide supply of a copy of inquiry report to the accused civil servant and instead of isssue of show cause notice personal hearing has been provided to that civil servant. In case of the appellant he was afforded a chance of personal hearing by the Authority and hence no violation of E&D Rules has taken place. 10. For the above reasons, the appeal fails and the same is hereby dismissed. No order as to costs, MEC) (Approved for reporting) Appeal dismissed.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 163 [Federal Service Tribunal, Islamabad ] Present: JUSTICE (RETD). SYED ALLY MAD AD SHAH, CHAIRMAN, AND MlSBAHULLAH KHAN, MEMBER MUHAMMAD ISMAIL-Appellant versus CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA and 2 others- Respondents. Appeal No.211 (R) of 1990, accepted on 13.7.1991 Seniority-- —Employee of Rawalpindi Electric Power Company—REPCO taken over by WAPDA under M.L.O.55--Appellant superseded by respondent No.2 and 3 as a result of separate seniority list-Challenge to-Appellant was senior to respondent Nos. 2 and 3 in combined seniority list first prepared-Later on separate seniority lists, of WAPDA employees and REPCO employees were prepared in pursuance of a bipartite agreement between WAPDA and Pakistan WAPDA Hydro Electric Central Labour Union whereby two separate seniority lists were prepared-REPCO not being party, decisions taken at meeting were not binding on it-Held: Combined seniority list prepard earlier, should have been maintained and promotions should have been made in accordance therewith. [Pp.l64&165]A Mr. Mansoor Ahmad, Advocate for Appellant. Mr. M. SadiqAbbasi, Advocate for WAPDA. Respondent No.2 in person. RespondentNo.3 absent. Date of hearing: 12.6.1991. judgment Justice (Retd) Syed Ally Madad Shah, Chairmanr-Appellant Mohammad Ismail is a Meter Mechanic, WAPDA. He has preferred this appeal against his supersession by the respondents 2 and 3 (Fayyaz Ahmad and Rehmat Ali respectively). 2. The case of the appellant, as stated in the memo of appeal, is that he joined service as a Meter Tester with REPCO (Rawalpindi Electric Power Company) in the year 1978. After completing three years training course, he was appointed as a permanent Meter Tester with effect from 2.5.1981. The REPCO was taken over by the WAPDA in pursuance of Martial Law Order No-55 and he became employee of the WAPDA as a Meter Mechanic, a re-designated post. On reorganisation of the departments of the REPCO by WAPDA, the appellant was declared surplus while his junior Rahat Anwar was retained. He objected to such treatment and filed an appeal No. 220 (R)/84 before this Tribunal. His appeal was decided on 1.4.1987 and he was declared senior to Rahat Anwar and his seniority position was rectified. In the meanwhile, he was promoted as a Meter Mechanic in April, 1986. In the revised seniority list of Meter Mechanics, he was placed at S.No. 3, while the respondent No. 3 (Rehmat Ali) was assigned S.No. 4 and the respondent No. 2 (Fayyaz Ahmad) was placed at S.No. 5. However, the respondent No. 3 was promoted as Test Assistant in September, 1988 and the respondent No. 2 was promoted as Test Assistant on 27.2.1990, while he, i.e. the appellant, was ignored. He preferred departmental appeal on 8.3.1990. He was informed under letter dated 14.5.1990 that his appeal had been rejected. He then preferred this appeal on 10.6.1990 to seek the relief of promotion as Test Assistant from the dates his juniors, the respondents 2 and 3, were promoted. 3. The grievance of the appellant is that he was superseded at the time of promotion given to his juniors, the respondents 2 and 3, without disclosing any reason. On the other hand, the respondent WAPDA has contested the appeal contending that the appellant has claimed seniority on the basis of judgment of this Tribunal which was set aside by the Supreme Court by judgment dated 25.11.1990 in Civil Appeal No. 435 of 1987 and he lost his seniority. They have also taken the plea that a separate seniority list was prepared in respect of REPCO employees apart from the seniority list of the WAPDA employees and the REPCO employees were considered for promotion on the basis of their separate seniority list. According to them, the appellant and the respondent No.3 are borne on the seniority list of REPCO employees, while the respondent No. 2 is on the seniority list of WAPDA employees. The learned counsel appearing on behalf of WAPDA stated that the issue involved in this appeal was decided in appeals No. 6 (R)/90 to 14 (R)/90. The respondents Fayyaz Ahmad and Rehmat Ali have not filed written objections. Respondent Fayyaz Ahmad 'appeared at the hearing of the appeal and conceded that the appellant was entitled to seniority claimed by him, while the respondent Rehamat Ali has chosen to remain ex-parte. 4. The appellant has placed reliance on the seniority list, a photostat copy whereof has been filed at page 14 of the memo of appeal. The name of the appellant stands at S.No. 3, while the name of the respondent Fayyaz Ahmad is at S.No. 5 and that of respondent Rehmat Ali at S.No. 4. The dates of promotions of the appellant and the respondents 2 and 3 are indicated as 2.5.1981, 31.5.1981 and 20.5.1981. That was the position in the combined seniority list. Subsequently, separate seniority lists were prepared of the WAPDA employees and the ex- REPCO employees in pursuance of a bipartite agreement between the WAPDA and the Pakistan Wapda Hydro Electric Central Labour Union, whereby two seniority lists were prepared, one of the WAPDA employees and another of the ex-REPCO employees. It appears that the REPCO employees were not represented at the bipartite agreement made between the representatives of the WAPDA and the CBA of the WAPDA employees. The decisions taken at the meeting were, therefore, not binding on the ex-REPCO employees. Moreover, no criterion was laid down for determining the promotions of the WAPDA employees and the ex-REPCO employees. Since the REPCO was taken over along with the services of its employees by WAPDA, under Martial Law Order, ;ne combined seniority list which was prepared earlier should have been maintained and the promotions should have been given in accordance there-with. The appeal is, therefore, allowed and it is directed that the question of promotion of the appellant shall be decided on the basis of the combined seniority list. No order is made for costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1991 Tr PLJ 1991 Tr.C. (Services) 171 [Punjab Service Tribunal, Lahore ] Present: MUHAMMAD MEHMOOD ASLAM PlRZADA, CHAIRMAN, AND ABDUL hamid khan, member MUHAMMAD MUMTAZ-Appeilant versus DEPUTY COMMISSIONER/COLLECTOR, SARGODHA , and another- Repondents Appeal No. 121 of 1989, dismissed on 8.11.1990. Minor Penalty-- —Kanungo—Inefficiency of—Stoppage of two increments of—Challenge to- According to Land Records Manual, it is responsibility of field Kanungo to report certain matters to Tehsildar where he finds work of Patwaris not upto mark- Appellant was guilty of charge levelled against him-Held: There is no reason to interfere with impugned orders passed by respondents with exception that penalty awarded shall be treated as without cumulative effect. [P.172JA&B Mr. Ghulam Yasin, Advocate for Appellant. Mr. Manzoor Hussain, District Attorney for Respondents. Date of hearing: 29.10.1990. judgment Mr. Muhammad Mehmood As lam Pirzada Chairman.-Muhammad Mumtaz has filed this appeal under Scection 4 of Punjab Service Tribunals Act 1974 against the impugned orders dated 28.12.1986 and 3.5.1987 passed by the respondents. He has impleaded the Dy. Commissioner/Collector Sargodha and the Commissioner, Sargodha Division as respondents. By virtue of this appeal the appellant has prayed that the impugned orders passed by respondents be set aside. The relevanUfacts for the disposal of this appeal are that the appellant was ordered to be proceeded against under the Punjab Civil Servants (E & D) Rules 1975 by respondent No. 1 because while posted as Kanungo Consolidation Halqa Mauza Pindi Jauri he failed to check the Girdawari work of Kharif harvest. The respondent No. 1 (authority) appointed the Assistant Commissioner as authorized officer who in turn appointed the Resident Magistrate as enquiry officer. The appellant was charge-sheeted who submitted his written reply in which he did not plead guilty to the charge. The enquiry officer after conducting the enquiry proceedings opined that the charge was not proved against the appellant. However, the authorized officer dis-agroi-ing with the findings of the enquiry officer issued a show cause notice of peisonal hearing and after hearing the appellant in person observed that the appellant was supposed to check the girdawari work of Patwaris which he failed to do. The authorized officer sent his report dated 24.8.1988 holding the appellant guilty of inefficiency and recommended major penalty. The authority after observing the legal formalities vide his impugned order dated 28.12.1988 imposed the minor penalty of stoppage of 2 increments with cumulative effect. The appellant filed a departmental appeal before respondent No. 2 who vide his impugned order dated 3.5.1987 dismissed the same, hence this appeal. We have heard the learned counsel for the parties and minutely perused the .record with the assistance of the representative of the department. The main contention of the learned counsel for the appellant is that the appellant was illegally awarded the penalty of stoppage of 2 increments with cumulative effect. On the other hand, learned DA. seriously opposed the appeal and argued that the impugned orders passed by the respondents in the light of comments/report be allowed to stand. We have given our anxious thought to the submissions advanced by the learned counsel for the parties and find that according to the Land Records Manual it is the responsibility of the field Kanungo to report certain matters to the Tehsildar where he finds the work of Patwaris not upto the mark. On a careful perusal of the facts of this case we are of the considered view that appellant was responsible for checking the work of Patwaris and therefore uphold that the appellant was guilty of the charge levelled against him. In the light of above discussions we find no reason to interfere with the impugned orders passed by the respondents with the exception that the penalty awarded shall be treated as without cumulative, effect. Consequently the instant appeal stands dismissed in the above terms with no order as to costs. Copies of signed judgment be released to the parties according to the procedure of theJTribunal. (MBC) (Approved for reporting) Appeal dismissed. THE END