PLJ 1992 Judgments

PLJ 1992 AJK 1 PLJ 1992 AJK 1 Present: S. MANZOOR hussain GiLANl, J KHALILUR REHMAN-Appellant versus REHMATULLAH-Respondent Civil Misc. No.48 of 1990, accepted on 3.11.1991. (i) Decretal Amount-- —Pre-emption-Suit for-Decree passed in and upheld upto Supreme Court-­ Withdrawal of decretal amount by appellant (decree-holder)-Effect of-Trial Court after declaring decree to have become final on deposit in time of decretal amount, became functus officio— Court had no authority to allow appellant or his attorney to withdraw decretal amount—Held: In absence of any penal provision in Order XX Rule 14 of CPC, pre-emptor (decree holder) cannot be deprived of fruits of legal victory for fault of court-Appeal accepted. [Pp.6&7]B&C (ii) Right of Piror Purchase Act, 1993 BK-- —S.21(5)(a)-Pre-emption-Suit for-Decree passed in and upheld upto Supreme Court-Withdrawal of decretal amount by appellant (decree-holder)--Effect of-Amount deposited by appellant in terms of decree remained with Court through out although under law, security was required to be with court during suit proceedings only and not during series of appeals-Purpose of security is only to guarantee or secure payment of costs of other side-Held: Penal provisions of Section 21(5)(a) of Act do not apply in this case. [P.4]A AIR 1924 Lahore 68 rel. Mr. M.Bashir, Advocate for Appellant. Mr. RiazAlam, Advocate for Respondent. Date of hearing: 13.11.1991. order Distric Judge Kotli vide his order and decree dated 15-09-1990 has refused to interfere in the order and decree passed by Sub-Judge Sensa on 6-8-1989, hence this appeal. 2. The facts briefly stated are that a decree of pre-emption was passed in favour of appellant by Sub-Judge Sensa on 29-12-1983 which stood confirmed upto Supreme Court as stated by the parties at bar, however, copies of judgment of Supreme Court and High Court are not available in record. The attorney of the appellant, through an application, withdrew the decretal amount from the Court of Sub-Judge Sensa, on 26-5-1988. An application was moved by Rehamtullah respondent before Sub-Judge Sensa on 23-01-1989, whereby the decree in favour of appellant was requested to be cancelled for the reason of his ithdrawal of decretal amount from the trial court. The learned Sub -Judge ordered the cancellation of decree on 6-8-1989, on the ground of withdrawal of decretal amount from the Court. An entry to that affect was made in the decree sheet. This order was challenged by appellant before District Judge Kotli who was also pleased to maintain the order of Sub-Judge Sensa by rejecting his appeal on 15-09-1990. 3. I have heard the learned counsel for the parties and have gone through the record. It may be mentioned at the very outset that the learned counsel for the parties have not diligently cared to place the relevant record on the file of the Court. The judgments of High Court'and Supreme Court, the application of he attorney of appellant whereby decretal amount is withdrawn and the power of attorney allegedly executed by the appellant, have not been placed on record. The Court expresses its concern over this inadvertance. 4. The upholding of the pre-empion decree ; n favour of appellant upto highest court is not denied by the parties and it is also admitted that the learned Sub-Judge was not seized with the matter at the time when he ordered withdrawal of amount in favour of pre-emptor's attorney. This aspect of the case has to be kept in view, while considering the arguments of the parties. The decree in favour of appellant had become final on 27-2-1984, when the appellant had deposited the pre-emption money in the trial court in compliance with the terms of decree, while last date for depositing the amount was 29-02-1984. The learned counsel for the appellant arguing his case submitted that while ordering cancellation of decree, the learned Sub-Judge Sensa did not give any opportunity of filing the objections to the appellant. He further contended that the withdrawal of decretal amount by the pre-emptor does not operate as cancellation of decree or dismissal of suit. The learned counsel relied upon PLD 1980 Peshawar 262 and PLD 1975 Lahore 524. The learned counsel for the respondent on the other hand referred to Section 21 (5) (a) of Right of Prior Purchase Act, which ordains dismissal of suit or appeal, if the amount is withdrawn by the plaintiff or appellant as the case may be. Reliance is placed on PLD 1980 Lahore 104 and 1991 SCMR 487. 5. I have duly considered the arguments of the learned counsel for the parties and gone through the record of the case and reports of the case law cited. The argument of the learned counsel for the appellant that appallant was not given a chance by Sub-Judge Sensa to file objections or explain his position is belied by record. The contents of the impugned order of Sub-Judge Sensa and order sheet maintained by learned Sub-Judge leave no doubt, that appellant was summoned and heard and the order was passed in his presence alongwith his counsel. However , express order to that extent is not passed, which hardly prejudices the appellant in view of his presence. As for the other legal point that withdrawal of the decretal amount does-not entail cancellation of a decree is concerned, it shall be considered alongwiih the arguments of the other side, which are contrary to appellant's assertion. 6. The provision of law which governs the matter, finds place in Section 21 (5) (a) of the Right of Prior Purchase Act, 1993 BK. For having a true perception underlying the provision, whole of the Section has to be read together, which deals with the amount of security and reads as: "21. Plaintiff may be called upon to make deposit or file security: (1) In every such suit the Court shall at. or at any time before, the time of settlement of issues, require the plaintiff to deposit in the Court such sum as is in the opinion of the Court equal to one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order; (2) In the case of an appeal, the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1); (3) Every sum deposited or secured under sub-section (1) or (2) shall be available for the discharge of costs; (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under sub-section (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be; (5) ( a ) If the plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal shall be dismissed; ( ft ) If any security furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case my be within a time to be fixed by the Court and if plaintiff fails to comply with such order, the suit or appeal shall be dismissed". The above provision of law slems out two very important points relevant at the moment, i.e. (a) It relates to the security to be furnished by the pre-emptor for discharge of costs; and (b) It operates either at pre-decretal stage, or, when the matter is taken in appeal by the plaintiff-pre-emptor. 7. The case in hand is that pre-emptor has successfully obtained the decree from the trial court and has been able to sustain it throughout. The amount deposited by him in terms of decree remained with the court throughout, though under law, the security was required to be with the Court during the suit proceedings only, not during the series of appeals that too, not filed by the preemptor-plaintiff. Security during the period of appeal is required in case the appeal is filed by the plaintiff-pre-emptor, and that too, if ordered by the appellate Court (in case he is unsuccessful in obtaining the decree from the trial court). In the instant case, the appeal was filed by the vendee, not by the plaintiff-preemptor. The purpose of the security is only to guarnate^ or secure the payment of costs of the other side and to avoid fictitious and vexatious pre-emption claims. The case in hand is altogether different. The appellant in this case has successfully protected decree in his favour throughout and is still pursuing it. He has never been ordered by any appellate court to file the security or to keep the security already deposited, with the Court. Moreover, none of the courts has burdened him with the costs, for which security is required under law. Hence the penal provisions of Section 21 (5) (a) do not apply in this case. I am supported in holding this view by AIR 1924 Lahore 68, which has almost identical facts, except that the amount in the case was withdrawn with the permission of the Court which was seized with the appeal. An objection was taken to the decree in favour of the pre-emptor decree holder on the ground that the withdrawal of sum entails the dismissal of the pre-emptors claim under provisions of Clause (a) of sub-section (5) of Section 22 of the Pre-emption Act 1913 (which is identical to Section 21 in the case in hand). It was held that: "We are satisfied, however, that the objection must be repelled. In the first place the pre-emptors are not the appellants in the case. In the second place the word 'so' in the clause cannot be ignored. The word refers to the preceding section and in the case of an appeal obviously relates to action taken by an appellate court under sub-section (2). In the present case there is no order by this Court under that sub-section. In the third place it is clear that the object of an order under Section 22 (1) is to guarantee vendees against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith and once the preemptor has obtained a decree, the need for a deposit no longer exists so far as the trial court is concerned. No doubt such deposits are available for the discharge of costs (Section-22 (3)) but such satisfaction is not the raisen d'etre of the deposit and there is nothing to suggest that a vendee appellant is entitled to any advantage of the kind. We have no hesitation therefore, in holding that Section 22 (5) (a) does not apply to the present appeal". The view quoted above is followed in PLD 1975 Lahore 524 and it is held that: "Moreover, the observations are applicable only when the plaintiff-preemptor is the appellant and he withdraws the money. In such an event, the suit or the appeal, as the case may be, has to be dismissed under the said clause, but if the plaintiff who is the successful pre-emptor is a respondent in an appeal the question of dismissal of the appeal does not arise. If there had been any intention on the part of the Legislature to make the withdrawal of the pre-emption money on the part of the respondent-pre-emptor militate against him, it could do so by providing in sub-section (5) (a) of section 22 that "if any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed, and if he is a respondent in an appeal, the appeal shall be accepted". Therefore, in the absence of any provision to that effect, it cannot be said that if the plaintiff-respondent withdraws the amount, the appeal should be accepted". I further find support from PLD 1980 Peshawar 262 referred by the learned counsel for the appellant. It is held that: "In this case the order of deposit had been made by the trial court and if the pre-emption amount had been withdrawn during the pendency of the suit only then the provision of sub-section (5) (a) to Section 23 could have been pressed into service. From the plain reading of the above Sub- Section, the conclusion that can be drawn is that the penal operation of sub-section (5) (a) to Section 23 is only attracted when the plaintiff-preemptor withdraws that amount during the pendency of his suit or appeal, as the case may be which he had deposited under sub-section (1) of Sub-Section (2) to Section 23 and unless in a case such a situation is available this provision will not be applicable. In this case fortunately the plaintiffpre-emptor had withdrawn the pre-emption money when his appeal was pending in the High Court and since there was no order by this Court for the deposit of the pre-emption amount no violation of the order of the High Court has taken place, therefore, the penal provision of sub-section (5) (a) ibid is not attracted to this case. Furthermore, it appears that the attention of the learned Judge in Chambers was not invited to the principles underlying the deposit of the pre-emption money. This deposit is secured only for the discharge of costs (sub-section (3)) to Section 23) and to protect the vendees from frivolous litigations". 8. The cases referred by the learned counsel for the respondent are distinguishable and are not applicable in the case before the Court. 9. Section 21 of the Right of Prior Purchase Act, deals with the amount of security for discharge of costs, while mode of payment of decretal amount, its deposit and the consequences of its non-compliance are regulated by Order 20 R. 14 CPC relevant for the purpose is reporduced as: "14 (1) Decree in pre-emption suit: Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchasemoney 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 clause (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". The last date, as mentioned somewhere above, for deposit of decretal amount by the pre-emptor was 29th February, 1984, who in compliance with the decree deposited the amount on 27th February, 1984, when it was rightly recorded in the decree sheet by the Sub-Judge that "Decree in favour of plaintiff-(Preemptor) and against the defendant-(Vendee) becomes final". The trial court after declaring the decree to have become final, became functus officio. The court had no authority to allow the appellant (Decree Holder) or his attorney (whose power of attorney is also not produced before the Court) to withdraw the amount. Moreover the decree of the trial court had merged into the decree of appellate courts. The title in the suit land had passed to the plaintiff decree holder in terms of Order 20 Rule 14 (1) (b) CPC and title to the decretal amount reciprocally passed to the judgment-Debtor-Vendee, on the finality of decree. The amount remains in trust for the Judgment-Debtor when decree in the pre-emption suit becomes final. The court could not order payment of amount in favour of Preemptor or his attorney as it stood decreed in favour of the Judgment-Debtor in lieu of the suit land. That is why there is no legal provision containing a penalty for withdrawal of decretal amount, as it could never be visualized that fault of paying the decretal amount (after finality of decree) can ever by committed by a court. In the absence of a penal provision, the Pre-emptor-Decree-Holder cannot be deprived of the fruits of its legal victory, for fault of the Court. This round of litigation has started simply due to over-stepping of its powers by the Sub-Judge by passing the void order and it cannot prejudice the successful Pre-emptor- Decree-Holder. 10. As a result, the appeal is accepted, the orders and decree under appeal are set aside and in exercise of powers vested in the Court under Section 46 of the Interim Constitution Act, 1974, Section 35 of the Courts and Laws Code Act and Section 151, CPC, it is ordered that the decree passed in favour of appellant dated 29-12-1983, shall remain operative and the appellant shall deposit the decretal amount within sixty (60) days from the date of this judgment, in the trial court, failing which the decree shall stand cancelled. In the circumstances of the case, no order as to costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1992 AJK 7 PLJ 1992 AJK 7 Present: S.MANZOOR HUSSAIN GILANI, J ALI HUSSAIN BUKHARI and 39 others-Petitioners versus AZAD JAMMU & KASHMIR GOVERNMENT, THROUGH CHIEF SECRETARY, and 2 others-Respondents Writ Petition No.83 of 1991, accepted on 5.12.1991. (i) Appointment-- —Appointment of respondent No.3 as Deputy Conservator of Forest- Challenge to-Whether Government has exclusive jurisdiction under Section 9 of Civil Servants Act, 1976 to post or transfer a civil servant against any post- Question of—Power of Government is subject to law and rules framed thereunder-Liability of civil servant to serve on any post, does not absolve him of possession of necessary qualification for post, nor authorise Government to post or appoint a person of general qualification against a professional post-­ Held: Section 9 does not apply to professionals such as Engineers, Doctors, Natural Scientists etc. except inter-se transfer. [Pp.ll&12]D (ii) Jurisdiction-- —Appointment of respondent No.3 as Deputy Conservator of Forests- Challenge to—Whether High Court has no jurisdiction to entertain writ petition—Question of—Contention that after establishment of Service Tribunal, jurisdiction of High Court is excluded under Section 47 of Interim Constitution Act, 1974—A perusal of Section 47(2) of Constitution reveals that jurisdiction of High Court is excluded in matters to which jurisdiction of Tribunal extends- -Section 4 of Service Tribunal Act, 1975 vests jurisdiction in Tribunal in respect of matters of terms and conditions of civil servants-Held: Petitioners having challenged authority of Government in travelling beyond rules by appointing respondent No.3 as D.F.O., have no alternate remedy except invoking jurisdiction of High Court. [Pp.9,10&ll]A,B&C (iii) Quo Warranto- —Appointment of respondent No.3 as D.F.O.-Challenge to-Whether writ of quo warranto lies and can be issued—Question of—Appointment of respondent No.3 is challenged on ground that he is not qualified to hold post of D.F.O.- Any person can move High Court to challenge un-authorised occupation of a public office under Section 44(2)(b)(ii) of Constitution which authorises, rather obliges High Court to require such person to show under what authority of law, he claims to hold that office-Held: There is no doubt that respondent No.3 is holding a public office for which he is not qualified under Rules-Writ of quo warranto accepted. [Pp.l2,13&14]E,F&G PLJ 1990 AJK 36 (DB) rel. Kliawaja Shahad Ahmed, Advocate for Petitioners. M/s Muhammad Akram KJian and Sardar Muhammad Sadiq fOian, Addl. A.G. for Respondents. Date of hearing: 5.12.1991. judgment Mr. Muhammad Latif Khan, Perokar Forest, incharge prosecution branch, Bagh Division, is appointed, by transfer, as Incharge Forest Division, Muzaffarabad, vide order of the Government, No.2899-2907/91 dated 31.10.1991 (Annexure 'D') against the post held by petitioner No.l. 2. Forty Forest Officers of the cadre of Deputy Conservator of Forests and Assistant Conservator of Forests, have challenged the appointment of Mr. Muhammad Latif (respondent No.3) on the following grounds:- (a) That the Forest Officers of the rank of Assistant Conservator of Forests can only be appointed from amongst officers of the Forest Department possessing qualifications of B.Sc./M.Sc. Forestry whereas the nonpetitioner No.3 is not qualified to hold this post as he is not a Graduate in the subject of Forestry; and (ft) That the non-petitioner No.3 belongs to the prosecution Branch which does not fall in the cadre of petitioners. Similarly the petitioners do not have common interse seniority with non-petitioner No.3. 3. The case of the petitioners is that respondent No.3 was appointed as Forest Prosecutor in B-17 on 2.1.1980. The post against which he is appointed through the impugned order, is styled as Divisional Forest Officer in the administrative parlance and is filled in by a person of Deputy Conservator of Forests' cadre. The method of recruitment, minimum qualifications, age limit and other matters relating to the post are provided by the schedule annexed with the rules promulgated on 7th of May, 1984, called "the Azad Jammu and Kashmir Forest Department, Service Rules, 1984" (to be called as Rules). Under serial No.4 of the schedule annexed with the rules, the post can be filled in by "promotion on the basis of selection on merit-cum-seniority and fitness from amongst A.C.F." "with seven years service in the Department in B-17. Besides that, the incumbent must be B.Sc. (second class) having qualified departmental examination. The qualification prescribed for the post of A.C.F. referred in the above provision of the schedule, is "graduate (2nd class) in Natural Sciences, with two years successful training from P.F.I. Peshawar and M.Sc. degree in Forestry. If the post is to be filled in by promotion, the incumbent must be Forest Ranger in B-16 with three years service as such, besides being F.Sc. (2nd class) and having qualified departmental training. 4. Respondent No.3's appointment is challenged on the ground that he does not possess any of the qualifications prescribed by the Rules, as such, it is argued that, he is a usurper of the office of D.C.F. styled as Divisional Forest Officer. 5. The respondents, besides having refuted the averments made in the petition on facts through the written statement, have objected to the jurisdiction of the Court on the ground that the matter relates to the terms and conditions of the civil servant, hence the exclusive jurisdiction in the case vests in the Service Tribunal under Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. (To be called as Constitution hereinafter). On facts, it is stated that respondent No.3 was appointed as Sub Divisional Forest Officer in 1980 and in 984 the post was redesignated as Assistant Conservator of Forests. The rules, it is stated, do not apply to the case of the respondent, as he was appointed as Assistant Conservator of Forests prior to the making of the rules. Though, it is not denied by the respondent No.3 that he does not possess any degree in the Natural Sciences, even F.Sc., but it is stated that he is "LL.M., M.A. in Journalism, MA. In Islamiat and M.A. in Political Science" besides having 30 years experience in the Forest Department. 6. The learned Advocate representing the parties have argued the case at length. Written arguments have also been filed by the learned Advocate of respondent No.3. 7. I propose to dispose of the preliminary objection first. It is argued that after the establishment of the Service Tribunal, the jurisdiction of the High Court is excluded in the matters relating to the terms and conditions of civil servants. Transfer and posting being one of the terms and conditions of civil servants under Section 9 of the Civil Servants Act, 1976 (to be called as Act), is beyond the purview of jurisdiction of the High Court. The relevant part of Section 47 of the Interim Constitution Act, 1974, i.e. sub-section (2), is reproduced as follows:- "Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under sub-section (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment." Section 9 of the Civil Servants Act, 1976, relevant for the purpose, is reproduced as follows:- "Posting and Transfers.—Every civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir hi any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, or a local authority or a Corporation or a body set up or established by any such Government: Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been sntitled if he had not been so required to serve." 8. A perusal of sub-section (2) of Section 47 of the Constitution, reveals that the exclusion of jurisdiction of other Courts (including the High Court) operates "in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends". Section 4 of the Services Tribunal Act, 1975, determines the jurisdiction of the Service Tribunal. The relevant part of the section is reproduced as follows:- "Appeals to Tribunals.~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 including disciplinary matter 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 in a departmental authority is provided under any law, regulations or rules for the time being in force,! 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 period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred; (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; or A perusal of Section 4 of the Service Tribunal Act, 1975 categorically reveals that the jurisdiction of the Service Tribunal can be invoked by a civil servant aggrieved by an order passed by a departmental authority in respect of the terms and conditions of "his" service. When a civil servant challenges the right, qualification or mode of appointment of another civil servant without claiming any relief for himself, or when the power of any departmental authority is challenged on the ground of his travelling beyond the jurisdiction in appointing a civil servant, thf> jurisdiction in that case does not vest in the Service Tribunal, as it can be in.v d only when aggrieved person's terms and conditions of service are affected and not otherwise. The bunch of Forest officers in this case have challenged the authority of the Government in travelling beyond the rules by appointing respondent No.3 as Deputy Conservator of Forests (D.F.O.) and his qualification in holding the post, without claiming any relief for themselves, or complaint of their terms and conditions of service being affected. They have no alternate remedy, except by invoking the jurisdiction of the High Court. Moreover, an appeal before the Service Tribunal is also excluded in a case where a person is declared fit to be appointed or to hold a particular post, as the respondent No.3 has been. 9. As far the power of the Government to post or transfer a civil servant anywhere against any post, or, liability of the civil servant to comply with the order under Section 9 of the Act is concerned, there can be no dispute with the legal proposition. But the power of the Government is subject to the law and rules framed thereunder. The liability of the civil servant to serve on any post does not absolve him of possessing the necessary qualification for the post, neither does the power bestowed by the provision authorise the Government to post or appoint a person of general qualification against a professional post. Can an Electrical Engineer in B-20 be appointed against the post of a Surgeon in B-20 simply under the pretext that both are serving within the executive authority of the Government? The answer definitely would be No. The section does not apply to professionals, such as Engineers, Doctors, Natural Scientists etc except interse transfer. Had it been so, it would have been given over-riding effect with the words "notwithstanding anything contained in any other law or rule" A plethora of case law referred in support of exclusion of jurisdiction and power of Government 1 under Section 9, by the learned counsel for the respondent, is either not applicable I in the case or distinguishable. 10. Adverting to the case of respondent No.3, there is no doubt that as per certificates placed on the file, the respondent is in possession of various degrees in social Sciences, but the requirement of the rule is that a person to be appointed against the post of a Deputy Conservator of Forests or Assistant Conservator of Forests must possess a degree in the Natural Sciences, besides successful training from P FI Peshawar. Even in case of promotion from subordinate staff, one must be a Ranger in B-16 with three years service as such. The respondent has frankly admitted at the bar that he does not possess a degree in the Natural Sciences, neither has he completed training from any school of forestry. It is also not claimed by him that he has been promoted from the post of Ranger. The respondent rests his case on the ground that he was initially appointed as Sub Divisional Forest Officer and is designated as Assistant Conservator of Forests. There is no doubt of his having been appointed as Sub Divisional Forest Officer but it was for prosecution, as his order of appointment dated 2-1-1980 (Annexure-C) reveals. As for his assertion that he was designated as Assistant Conservator of Forests in 1984, though there is no order on the file as such, except a seniority list of the Forest Officers in which the name of the respondent finds place at serial number 23. Be that as he claims, the question is as to whether he automatically acquires all the qualifications which are required for the post of Assistant Conservator of Forests, simply for the reason that he is styled or named as such? It is not the mode in which a person is addressed, but it is the criteria, which determines his qualification or eligibility to hold or to be appointed to a post or assignment. The respondent cannot be clothed with the qualifications of Assistant Conservator of Forests or Deputy Conservator of Forests on the simple ground that any functionary of the Government has addressed him as such. The Court is obliged to see as to whether he possesses the qualifications for the post (to which) he is appointed. The record made available from both the sides speaks against the respondent. 11. This brings me to the last and the most important point as to the relief the Court can grant in this case. The appointment of the respondent, as said earlier, has been challenged on the ground that he is not qualified to hold the post of D.F.O. (Deputy Conservator of Forests). Any person can move the High Court to challenge the unauthorised occupation of a public office. The Court, on any such application, is not to see that the incumbent is holding the office under the order of a competent authority, but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office; the Court has also to see, if statutory provisions are alleged to have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provisions for appointment. A person seeking the redress need not be an aggrieved person. Section 44(2)(b)(ii) of the Constitution authorises, rather obliges the High Court, to require a person holding a public office to show under what authority of law he claims to hold that office, if the Court is of the opinion that, in the public interest, the legal position with respect to the alleged usurpation of a public office should be judicially declared. This provision of the Constitution deals with the power of the High Court to issue a writ of quo warranto. Examining the scope of Section 44(2)(b)(ii) of the Constitution, it is held in P.L.J. 1990 A.J.K. 36(DB) (KJi. Noorul Amin versus Col. (Rid) Muhammad Naqi Klian): "We propose to dispose of the preliminary objection first. Article 44(2)(b)(ii) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, postulates that the High Court may, on the application of any person, make an order requiring a peron holding or purporting to hold a public office, in connection with the affairs of the Azad Jammu and Kashmir, to show under what authority of law he claims to hold that office. The Constitution provides that any person may move the High Court to challenge the unauthorised occupation of public office by any person. It does not require that the person seeking redress of grievance against usurpation of public office must be directly a beneficiary of that public office, so much so to bring him within the scope of an aggrieved person as required in other provisions of this Article. The petition may be addressed under these provisions only in the case where a public office, franchise or liberty was usurped. Therefore, the objection that only an aggrieved party

may invoke the jurisdiction of the Court, in such situation, is unsustainable. These provisions of the Constitution, in fact, deal with the power of High Court to issue writ of quo warranto. A writ of quo warranto is issued on the satisfaction that a public office is occupied without lawful authority or it is usurped by a person. Therefore, in order to invoke the jurisdiction, it is least relevant to say that only an aggrieved person may address the Court for issuing the writ of quo warranto." In the case in hand, there is no doubt that respondent No. 3 is holding a public office for which he is not qualified under Rules and his appointment and continuance in the public office is without authority of law, consequently the order of ouster of respondent No. 3 from the office is a requirement of law. The case law referred by the learned counsel for the respondent on this point is of no help to him in view of above quoted judgment. • 12. It is, therefore, held that the respondent No. 3 Mr. Muhammad Latif Khan shall cease to hold the office of Deputy Conservator of Forests (Divisional Forest Officer) Muzaffarabad and is restrained from discharging any of the functions, rights or duties of the office in question. The person holding the office at the time the impugned order was issued, is allowed to occupy the office forthwith. The petition is accepted with costs. 13. Before parting with the case, it may be placed on record that in good old days, civil servants used to be appointed, posted or transferred in the public interest or iij the interest of the State. The level has come down to the interest of individuals now. The institutions must not be handed over to people not meant and trained for them, however, capable or indispensable they may be. Graveyard is full of capable and indispensable people. Adherence to rules make the institutions, which must be taken care of. Even a slightest departure from the rules, gradually leads to complete departure and ultimately lawlessness. If this practice is not curbed by a democratic Government, the beaurocracy will lead them to a point of no return. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 AJK 14 PLJ 1992 AJK 14 Present: abdul majeed mallick, CJ SAFDAR HUSSAIN SHAH-Appellant versus Mst. NISA_FATIMAH--Respondent Civil Appeal No. 55 of 1987, dismissed on 23.10.1991 Khula-- —Dissolution of marriage— KJiula-- Ground of—Whether ground of KJiula was available-Question oit-Kluila is an acknowledged kind of divorce in Islam-It is pronounced by court on satisfaction that on account of aversion of wife against her husband, it was impossible for spouses to reconciliate and live harmonious life within limits ordained by Allah-Circumstances in this case lead to an inference that respondent, in no circumstances, was willing to go back to her husband—Held: Evident inference flowing from inflexible attitude of wife reflects that she has developed aversion and hatred against her husband and it is conducive to future of parties to allow their separation by X/iw/a-Appeal dismissed. [Pp.l5,16&17]A,B&C PLD 1978 Lahore 1109 and PLJ 1984 SC (AJK) 60 rel. KJi. Abdus Samad, Advocate for Appellant. Kh. Muhammad Shaft, Advocate for Respondent. •Dale of hearing: 22.10.1991. order Mst. Nisa Fatimah and Safdar Hussain Shah were married in 1980. She brought a suit for divorce on July 2, 1983, on different grounds including cruelty, non-maintenance, non-performance of conjugal rights, non-payment of dower money and Khula. A counter suit was instituted on July 9, 1983 for restitution of conjugal rights. It was averred that the spouses lived together happily. A child was also born out of the wed-look, who later on died. Moazzam Shah, father of Mst. Nisa Fatimah, was a greedy person who took Rs. 10/12,000/- from Safdar Hussain Shah and thereafter declined to repay the same. The divorce suit was instituted in collaboration with other defendants. The husband endeavoured reconciliation with his wife and sent various delegations to bring her back but she was not allowed to return by her father and other defendants. Both the suits were consolidated and decided together. Sub Judge, Haitian, dismissed the suit for divorce and decreed the counter suit on January 2Q, 1987. On appeal, the learned District Judge reversed the finding of the Sub Judge and decreed the suit of Mst. Nisa Fatimah on the ground of Khula. The order of District Judge, passed on August 18,1987, has been assailed in the present appeal. 2. KJiawaja Abdus Samad, the learned Counsel for the appellant supported the finding of the learned Sub Judge and contended that there was no'tangible evidence in support of Khula. The contention was opposed by the learned Counsel for the respondent who supported the finding of the learned District Judge and emphasised that hatred between the spouses was proved by the evidence on record. On account of cruelty and ill treatment by the husband, Mst. Nisa Fatimah was not prepared for restitution of conjugal rights. 3. In view of the nature of the controversy raised before this Court, it was deemed expedient to make an effort to effect reconciliation and compromise between the parties, but without success. Keeping in view the accusation ascribed to Moazzam Shah, father of Mst. Nisa Fatimah, she was summoned in the Court for knowing her view point. She appeared before the Court and made a statement wherein she supported the accusation of cruelty and ill treatment, in additon to other allegations raised in the plaint. She stated categorically that she disliked her husband and was not prepared to go back to him. Safdar Hussain Shah reiterated the allegation ascribed to the respondents. 4. The sole point controverted between the parties confines to Khula. It has, therefore, to be ascertained as to whether there was enough evidence on record to sustain the impugned order of the District Judge. 5. Khula is an acknowledged kind of divorce in Islam. A distinct feature of divorce by Khula is that such divorce is pronounced by the Court on the satisfaction that on account of aversion of wife against her husband, it was impossible for the spouses to reconciliate and live a harmonious life within the limits ordained by Allah. The scope and object of divorce by Khula was considered in Bilqees Fatima's case, P.L.D. 1978 Lahore 1109 as: "Khula', a charter granted to wife-wife having fixed aversion to her husband and not possible for spouses to live within the limits of God-­wife, held, has a right to seek Khula' in the circumstances-Aversion immensely important in determination of dispute between the spouses." An identical view was taken in Muhammad Yusuf s case, P.LJ. 1984 S.C. (AJK) 60. The Supreme Court laid down the dictum as: "The superior Courts in Pakistan and Azad Kashmir are in agreement that if the wife is adament that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is a little choice for the Court except to grant a decree for divorce. Consequences in adopting any other course may be disastrous." When divorce is sought by Khula, it is enjoined upon the Court to satisfy its judicial conscience that there was sufficient evidence to conclude that wife justifiably developed aversion against her husband and in such position, if separation by Khula was not pronounced, she would be subjected to a harsh life in the shape of an unwanted union lor living all the time in separation, it is, therefore, expedient to resolve the controversy of Khula by resort to the evidence of the parties. Here, it is relevant to state that the circumstances constituting aversion of wife may vary from case to case but the substance of such ' circumstances must be enough to satisfy that there was a reasonable ground for developing aversion for wife against her husband. In present case, the circumstances leading to aversion are listed as: Mst. Nisa Fatimah ascribed ill treatment and cruelty to her husband, non­ payment of maintenance allowance and non-performance of conjugal rights. In her testimony, she deposed that the treatment of her husband was very cruel as she was subjected to beating by him. She lived n the house of her parents and wanted separation. In answer to a question in cross-examination, she admitted that she also moved an application against her husband at the Police station. According to the suggestion, her husband was arrested on her application. She denied the suggestion that she was persuaded by her parents to live separate from her husband. Safdar Hussain Shah also appeared as a witness. He refuted the allegations made against him and stated that an application on the allegation of breach of peace, under Section 107, Cr. P.C., was moved by Moazzam Shah, father of Mst. Nisa Fatimah, against him and he was arrested by the police. In his absence, his wife was taken away. She took away cash in the sum of Rs. 5,400/-and ornaments of the value of Rs. 3,000/-. He denied the suggestion that he treated ill to his wife and perpetrated cruelty. Mst. Nisa Fatimah appeared again as a witness to rebut the counter evidence. She reiterated the allegations ascribed to her husband and insisted on having developed aversion against him. It was deposed that she wanted divorce, otherwise she may commit suicide, as she despised her husband and at any cost, was not willing to go to him. She denied the suggestion of reconciliation. The other witnesses produced by the parties, too accepted that the spouses were living separately on account of strained relations. There was no direct evidence of maltreatment and cruelty (by violence), but the witnesses admitted that Mst. Nisa Fatimah always complained of ill treatment. In her statement before this Court, she again reiterated that she was not willing to restitution of conjugal rights as she disliked her husband on account of cruelty and maltreatment during the time, she lived with him. Safdar Hussain Shah, on the other hand, was prepared to take her back to live harmonious life. 6. The aforesaid circumstances lead to an inference that Mst. Nisa Fatimah in no circumstances, was willing to go back to her husband by forgetting the past unhappy events. Thus, the evident inference flowing from the inflexible attitude of the wife, reflects that she has developed aversion and hatred against her husband. In such situation, it is deemed conducive to the future of the parties to allow their separation by Khula. 7. The authorities cited in support of the appeal do not help the case of the appellant as the principle laid down therein supports the claim of the respondent. The appeal is, therefore, dismissed. The order of District Judge is upheld. No order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 AJK 17 PLJ 1992 AJK 17 Present: ABDUL MAJEED MALLICK, CJ KJiawaja EJAZ AHMAD-Petitioner versus CHAIRMAN, MIRPUR DEVELOPMENT AUTHORITY and another- Respondents Writ Petition No. 48 of 1990, dismissed on 23.11.1991 Termination— -—Temporary employee of Mirpur Development Authority-Termination of services of—Challenge to—Under terms and conditions of service, petitioner's service could be terminated without assigning any reason on payment of one month's salary-Chairman as delegatee of powers of Development Authority, was competent to pass impugned order-Appointment of petitioner having been made subject to approval of Development Authority and there being nothing on record to show that approval was obtained, appointment of petitioner was, prima facie invalid-Held: A temporary employee is not vested with a right to seek indulgence in exercise of writ jurisdiction-Petition dismissed. [Pp.l8,19&20]A,B,C,D,E&F PLD 1985 SC(AJK) 119 and PLD 1957 SC(Pak) 77 rel. Agha Ashiq Hussain, Advocate for Petitioner. Mr. M.Y.Surakhvi, Advocate for Respondents. Date of hearing: 23.11.1991. judgment Khawaja Ejaz Ahmed was recruited in the service of Mirpur Development Authority on February 6, 1989 vide order No. Admin-802/3/1134-44/89, in minimum pay scale of B-17. The appointment was made subject to approval of Mirpur Development Authority Board. He continued in the service of the Development Authority, when respondent No.l terminated his services with one month's pay in lieu of one month's notice, in the light of terms and conditions of service, on April 1,1990. This order has been assailed in the present petition. 2. Agha Ashiq Hussain, the learned Counsel for the petitioner contended that the order of terminatien of service of the petitioner was void for want of jurisdiction of the Chairman of the Authority. Reference was made to the rules pertaining to the service of the petitioner, sanctioned by the Government in 1988. Mr. Muhammad Yunus Surakhvi, the learned Counsel for the respondents supported the impugned order and argued that the Chairman of the Authority being delegatee of the powers of the Development Authority, was competent to pass the order in the manner of order under consideration. 3. The petitioner was appointed against the vacancy of Town Planner in Mirpur Development Authority. According to condition No.6 of terms and conditions described in the order of his appointment, it was postulated that the appointment was temporary but likely to be continued for indefinite period and was terminable without assigning any reason, during the period of probation. On successfully completion of the probationary period, he will be governed under the normal rules of the Authority, according to which one month's notice will be compulsory on either side in case the service is quitted or dispensed with, or one month's pay in lieu thereof will be given. In view of the aforesaid conditions offered by the Authority and accepted by the incumbent-petitioner, it is safe to hold that his appointment was purely temporary, terminable on one month's notice from either side, or one month's pay in lieu of one month's notice, as the case may be. This position has not been seriously contested by the learned Counsel for the petitioner. However, an objection to the impugned order as emphasised at the bar, was that the order of termination of service was passed without lawful authority. 4. Under the schedule attached with the rules applicable to service of Mirpur Development Authority employees, the service of the petitioner was terminable by the Authority and not by the Chairman. The objection, prima facie, is well supported by the rules. In answer to this objection, it was explained by the learned Counsel for the opposite side that the Chairman of the Authority was delegated its powers by the Authority in 1977 and by virtue of his position as the delegatee of the powers of the Development Authority, the Chairman was competent to pass the impugned order. 5. On going through the relevant resolution of 1977 whereby the powers of the Development Authority were delegated to the Chairman, it is satisfied that the Chairman was competent to pass the impugned order. The decision of the Chairman to act as delegatee of the Authority was also acknowledged by the Supreme Court of Azad Jammu and Kashmir in Abdul Malik's case wherein proposition relating to cancellation of allotment of plot was raised before the Court. 6. It is also noticed that the appointment of the petitioner was made subject to approval of the Development Authority. The order of appointment in Grade B- 17 was issue'd subject to approval of the Mirpur Development Authority Board. It is evident that the members of the Board agreed to the appointment of he etitioner but it was endorsed that the matter may be placed in the meeting for consideration and approval of the Board. We are not in possession of any document showing thereby that the order of appointment of the petitioner was ever included in the agenda of the meeting of the Development Authority Board for its consideration and approval. This suggests that the appointment of the petitioner, prima facie, was invalid. It is an accepted rule of law that when an order giving rise to a cause of action is illegal orjypid, the authority of the High Court cannot be invoked for the redress of the grievance. 7. It is already examined elsewhere that the petitioner was appointed temporarily. A temporary employee was not vested with a right to seek indulgence of this Court in exercise of writ jurisdiction. This view finds support from Muhammad Shaft's "case (PLD 1985 S.C. AJK 119). In para 9 of the judgment, Raja Muhammad Khurshid Khan, the learned Chief Justice, as he then was, observed as: T am also of the view that the petitioner being a temporary and not a permanent employee of the AKLASC, the action of termination of his service taken in accordance with the appointment order cannot be challenged by invoking extraordinary writ jurisdiction of the High Court. A temporary employee has no cause of action if his services are terminated in conformity with the terms of his agreement incorporated in the appointment order. It may be observed here that the petitioner was given one month's pay as stipulated under clause (6) of his appointment order. I am fortified in my view by a case reported as The Federation of Pakistan v. Mrs. A.V.Isaac. In this case, Muhammad Munir, CJ. (as he then was) speaking for the Court observed that "a temporary employee has no cause of action if his services are terminated in conformity with the terms of his agreement". An identical view was held in Siraful Islam's case (PLD 1957 Supreme Court (Pak) 77). iyir.Sirajul Islam was appointed to the post of Technical Officer in Radio Pakistan , on August 11, 1950. iJnder the terms and conditions of the service, his services were likely to be terminated at any time by giving him one month's notice without cause assigned or one month's pay hi lieu thereof. On completion of period of probation, he was appointed as Technical Assistant on March 25, 1951. On May 21, 1953, his services were terminated with immediate effect on payment of one month's salary to him, hi lieu of notice, by the Director General, Radio Pakistan. The order of termination of his service was challenged in writ before the High Court with success. In appeal, however, the order was reversed resulting in dismissal of writ petition, in the following words :— "On completion of training he was to be appointed as Technical Assistant in the scale mentioned in clause (3) of the Memorandum in a temporary capacity. The 4th clause of the Office Memorandum which made his services terminable at any time on a month's notice without assigning any cause was applicable to his employment ts a temporary Technical Assistant mentioned in clause (3). In other words, it fixed the period of the notice which was to be given to him to terminate his temporary employment as Technical Assistant. It is not claimed that he had in fact been confirmed as a Technical Assistant. Section 240 of the Government of India Act was not, therefore, applicable to the case because the termination of services was in accordance with the conditions on which the respondent had been temporarily employed and was not dismissal within the meaning of Section 240 of the Government of India Act. We, therefore, allow this appeal, set aside the order of the High Court and dismiss the respondent's application to the High Court". 8. The position of the petitioner in the case under consideration is quite identical to the position of Sirajul Islam, respondent in the aforesaid case. The appointment of the petitioner was purely temporary. According to the terms and conditions of his appointment, his service was likely to be terminated on one month's notice or pay in lieu of the notice. The order of termination of service of the petitioner passed by the Chairman, M.D A. in compliance with the terms and conditions of the service, was unassailable in writ petition. There is no force in the petition. It is, therefore, dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 AJK 21 PLJ 1992 AJK 21 Present: abdul majeed mallick, CJ FAZAL AHMAD-Petitioner versus ABRAR HUSSAIN and 16 others-Respondents Civil Revision No.40 of 1991, accepted on 11.12.1991 Civil Procedure Code, 1908 (V of 1908)-- —-O.IX R.3 read with O.XVII R.2--Civil suit-Dismissal for non-prosecution of- -Restoration of suit on Defendants' application-Challenge to~Whether suit could be restored on application of Defendants—Question of—Rules of procedure laid down under Code, do not empower defendants to seek restoration of suit for its disposal on merits-Under Rule 4 of Order IX, a plaintiff can apply for restoration of suit—Held: Point raised in petition that defendants cannot seek restoration of suit, is sustained-Petition accepted. [P.23]A&B Ch. Muhammad Yusuf, Advocate for Petitioner. Malik Muhammad Yusuf, Advocate for.Respondent. Date of hearing: 11.12.1991. order The petition is addressed against the order of learned Sub Judge, Kotli, passed on October 21, 1991, whereby the order of dismissal of suit for want of prosecution, passed on February 12,1991, was set aside. 2. Fazal Ahmed and another brought a suit for declaration and possession of the suit property, by setting aside the gift deed executed on November 8,1967, sale deeds executed on January 18, 1977, February 12, 1976, November 9, 1978 and December 3, : 1981. The defendant respondents were directed to lead their evidence in support of their respective claim. As no evidence was led on their behalf despite availing 7 opportunities, the suit was dismissed oh January 29,1985. This order was challenged in appeal before the learned District Judge where the appeal was accepted and the order of Sub Judge was aside, on January 30,1990. The order of learned District Judge was challenged in second appeal before this Court. The impugned order was reversed and the case was remanded to the learned Sub Judge for its disposal. The parties were directed to appear before the trial Court on December 10,1990. 3. It was observed that as some of the issues were to be proved by the defendant-respondents, as such they may also be allowed opportunity to lead their evidence if they so desired and then the case should be disposed of under law, without providing further opportunity of evidence to the plaintiffs. The file was received back in the trial Court on December 12,1990. Parties were summoned to appear on January 12,1991. The learned Counsel for the parties appeared on that day and the case was adjourned to January 20, 1991. Again, it was adjourned to February 5,1991. That day being closed day, the file was taken up on February 6. On that day, the learned Counsel for the defendants made statement whereby evidence of the defendants was closed and the case was adjourned for arguments on merits, to February 12,1991. On that day, the case was called many times but no one appeared on behalf of the parties, as such it was dismissed for want of prosecution. 4. On February 13, an application was moved on behalf of the defendants for restoration of the suit and its disposal on merits. Notice was issued to the plaintiffs who opposed the application for restoration as it was an exclusive right of the plaintiffs to seek restoration and not that of the defendants. The application was accepted in exercise of powers of review and the file was restored vide the impugned order. 5. It is contended by the learned Counsel for the petitioners that on dismissal of the suit for want of prosecution, the remedy of restoration was to be availed by the plaintiffs alone and not by the defendants. As the impugned order was passed on the application for restoration, of the defendants, it was a bad order in law, necessitating intervention of this Court. Malik Muhammad Yusuf, the learned Counsel for the respondents supported the impugned order and emphasised that the suit was to be disposed of on merits irrespective of absence of he plaintiffs, in the light of the judgment of this Court. Moreover, it was argued that in case the suit was not disposed of on merits by the trial Court, it shall allow the plaintiffs to bring a fresh suit on the same cause of action, resulting in harassment and detriment to the interest of the defendants. 6. The relevant provisions of law applicable to such situation are postulated under Order 17, Rufple 2 and Order 9, Rule 3, CPC. Order 17, Rule 2 postulates that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf vide Order 9 or make such other order as it thinks fit. The term "hearing of the suit" has been construed as a stage effective nd germane to progress of the matter. It included determination of questions resulting in final disposal of the suit, examination of plaintiff to enable the Court to frame issues, filing of written statement, hearing of arguments and rendering of judgment. In the present case, the proceedings were at»the final stage of hearing of the arguments, to render the final judgment. It was thus, a stage which fell within the ambit of the term "hearing of the suit". 7. Rule 3 of Order 9, provides that where neither party appears when the suit is called on for hearing, the Court may riiake an order that the suit be dismissed. So far and so forth, both the parties agreed that action of the Court was not violative of lasjF/Malik -MuhaTnmad Yusuf, the learned Counsel for the respondents, has taken an exception to the rule in the light of the order of this Court. It was suggested that once this Court directed that the suit may be disposed of on merits, the trial Court should iaveilone so instead of dismissing it for want of prosecution. 8. A perusal of the order of this Court passed on November 25, 1990, reflects that the trial Court was directed to dispose of the matter as required by law. There was no mandatory direction that the Court must decide the case on merits irrespective of the fact that the parties or either of them appeared to prosecute the matter or not. Reference in the order of this Court to decide the case under law, obviously, empowered the Court to dispose of the case in the light of the provisions of law applicable at the relevant stage. Therefore, dismissal of the suit under Order 17, Rule 2, read with Order 9, Rule 3 of the Code is not derogatory to the discretion of the Court. ; 9. It is interesting to note that instead of the plaintiffs, an application for restoration of the suit was filed by the defendants. The rules of procedure laid down under the Code do not empower the defendants to seek restoration of suit for its disposal on merits. The provisions of Rule 4 of Order 9, relevant to the proposition under consideration, provide that the plaintiff may apply for restoration of the suit and if he satisfies the Court that there was sufficient cause for his absence on the date of hearing, the Court may set aside the order of dismissal and appoint a day of proceeding with the suit. The contention of the learned Counsel for the petitioner finds full support from the aforesaid provisions of law. 10. The point raised in the petition and canvassed in the arguments by the learned Counsel for the petitioner is, therefore, sustained. The petition is accepted and the impugned order is set aside. (MBC) "~ (Approved for reporting) Petition accepted.

PLJ 1992 AJK 23 PLJ 1992 AJK 23 Present: ABDUL MAJEED MALLICK, CJ muhammad SHARiF-Appellant versus Mst. afzaal bibi and 9 others-Respondents Civil Appeal No. 32 of 1991, dismissed on 19.12.1991. (i) Concurrent Findings- —Dissolution of marriage-Suit for-Suit decreed on basis of Wi«/a—Challenge to--In presence of concurrent findings of facts, it was necessary for appellant to satisfy that concurrent findings rested. on misreading, non-reading or misconstruction of evidence, but no such defect has been pointed out-Held: It is not expedient to interfere in concurrent findings of subordinate courts, in second appeal—Appeal dismissed. [P.26]E (ii) Judgment-- —Dissolution of marriage-Suit for-Suit decreed—Challenge to~Order XX Rule 5 of C.P.C. provides a guideline that in suits in which issues have been framed, it is enjoined tpun court to give decision on each issue-Decision must rest on reasons-Each issue is to be decided separately-In this case, issues Nos. 1 to 4 were disposed of together and decision was in favour of appellant- Issue of khula, on basis of which, decree was granted, was dealt with separately—Appellant was neither prejudiced nor suffered for miscarriage of justice in decision of issues Nos. 1 to 4 together-Held: No useful purpose would be served if case is remanded for re-writing of judgment by deciding each issue separately. [P.25]A,B&C PLD 1968 AJK 64 and 1982 CLC 888 rel. (iii) Khula- —Dissolution of marriage—Suit for—Suit decreed on basis of khula— Challenge to—Appellant has two other wives in addition to respondent No. 1 who have children—Respondent No. 1 has no child—Respondent No. 1 has repeatedly emphasized that she was not prepared to live with appellant as his wife- Appellant brought a suit against her for recovery of certain amount as value of ornaments and other articles allegedly taken by her—Held: .Circumstances mentioned in pleadings and evidence, were rightly considered enough to decree suit on ground of khula. ' IP.261D Raja ImdadAli fOian, Advocate for Appellant. Ch. Muhammad Taj, Advocate for Respondents. order Mst, Af/aal Bibi brought a suit for divorce, on the grounds of (i) cruelty, (ii) unequal treatment, (iii) 'laan'; and (iv) 'khula'. The suit was instituted on March 22, 1988. Muhammad Sharif brought a counter suit^for restitution of conjugal rights and perpetual injunction, on March 27, 1988. Both the suits were consolidated and the suit for divorce was decreed while the counter suit was dismissed, by the learned Sub Judge Bhimber, on January 5, 1991. The appeal preferred before the learned Additional District. Judge, Bhimber, by Muhammad Sharif, was dismissed. 2. Raja Imdad Ali Khan, the learned Counsel for the appellant contended that the decisions of the learned Sub Judge and Additional District Judge were derogatory to the rules of procedure as issues No. 1 to 4 were not decided separately. Moreover, there was no substance on the record in support of impugned order. Ch. Muhammad Taj, the learned Counsel for the respondents supported the impugned order and argued that the findings of the subordinate Courts being concurrent findings of facts, the second appeal was not maintainable. 3. Both the subordinate Courts were of the view that Mst. Afzaal Bibi, failed to prove the allegations of cruelty, unequal treatment and 'laan' etc., but, on account of evidence of the parties, it was sufficiently satisfied that the spouses would not restore matrimonial relations so as to live within the limits ordained by Almighty Allah, as such decree for divorce by 'khula' was granted. 4. The scheme of law relating to judgment and decree reflects that the Court has to give its findings on all material points constituting controversy between the parties, distinctly and separately. Such scheme was formulated to avoid confusion and ultimate prejudice resulting in miscarriage of justice. 5. Rule 5 of Order 20, CPC provides a guideline to the effect that in suits in which issues have been framed, it is enjoined upon the Court to give decision on each issue. The decision of the Court must rest on reasons. Each issue is to be decided separately, unless it is deemed sufficient that the finding upon any one or more of the issues would be sufficient for the decision of the suit. 6. In the present case, issues No. 1 to 4, the onus of which was placed on Mst. Afzaal Bibi, respondent, were disposed of together and the decision was recorded against the plaintiff-respondents. The issue of 'khula', on the basis of which the suit for divorce was decreed, was settled separately. It is based on reasons, resting on the evidence of the parties. Issues No. 1 to 4 which were disposed of together, were decided in favour of the present appellant. He has neither been prejudiced nor he suffered for miscarriage of justice. Obviously, the objection should not have been raised by the party which has not been prejudiced by the aforesaid irregularity of the trial Court. 7. In case the contention is upheld and the case is remanded for re-writing of the judgment by deciding each issue separately, it is agreed that no useful purpose would be served as those issues were already decided against the decree holder, who has no objection to the decision on the issues in the aforesaid manner. This view finds support from the case of Sh. Ghulam Ahmad (PLD 1968 AJK-64) decided by the Division Bench of this Court. It was a case wherein issues No. 5, 6 & 7 were decided collectively in derogation to the provisions of Rule 5 of Order 20, CPC. The suit of the plaintiff was dismissed. In appeal, among others, he objected to the collective decision of the aforesaid issues, resulting in prejudice to him. The objection was unsustained as, in view of the learned Judges, no prejudice was suffered by the plaintiff-appellant by such practice. An identical view was held in Muhammad Amin's case (1982 C.L.C. 888). It was a case where 3 suits were consolidated and issues were decided collectively in one of the suits. The objection to irregularity in disposal of the issues in absence of prejudice and miscarriage of justice, was turned down. 8, The finding on the issue of 'khula' was not seriously assailed. Besides that, it is on record that Muhammad Sharif has two other wives, in addition to Mst. Afzaal Bibi. They were married subsequently and were living with him. There were issues out of those marriages. Mst. Afzaal Bibi who was second wife of Muhammad Sharif as the first wife died earlier, was divorced and married to Muhammad Sharif 27 years before the institution of the suit. It is evident from the statements of Mst. Afzaal Bibi and other witnesses that Mst. Afzaal Bibi has no children while the other two wives have children from Muhammad Sharif. The psychological unbalance in relations between other wives and husband is understandable. She has repeatedly emphasised that she was not prepared to live with Muhammad Sharif as his wife. The witnesses who appeared on behalf of both sides, agreed that Mst. Afzaal Bibi was living separate from her husband. In order to accept her claim of harassment, embarrassment and dislike for the husband, it has to be accepted that Muhammad Sharif brought a suit against Mst. Afzaal Bibi for the recovery of Rs. 23,300/-, the value of the ornaments and other articles allegedly taken by her. His suit was dismissed on November 12, 1990. The litigation between the parties and circumstances mentioned in the pleadings and the evidence, were rightly considered enough to decree the suit on the ground of 'khula'. 9. In presence of concurrent findings of facts, it was necessary for the appellant to satisfy that the concurrent findings of facts of the subordinate Courts rested on misreading, nonreading or misconstruction of evidence. No such defect was pointed out at the bar. In this view of the situation, it is not deemed expedient to interfere in the concurrent findings of the subordinate Courts, in second appeal. There is no force in the appeal. It is, therefore, dismissed. No order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 AJK 26 PLJ 1992 AJK 26 Present: ABDUL MAJEED MALLICK, CJ national development finance CoRPORAnoN-Petitioner versus M/S LlPA SHOES LlMITED-Respondent Civil Revision No. 20 of 1991, dismissed on 21.12.1991 (i) Civil Procedure Code, 1908 (V of 1908)-- —-O. VII R. ll--PIaint-Rejection of--Prayer for-Refusal to reject plaint-­ Challenge to-District Judge dismissed application of petitioner as in his view, objection raised in application could not be raised without filing written statement-Held: Approach was erroneous as rejection of plaint could be sought on all or either of grounds described in Rule 11 of Order VII of C.P.C. at any stage of proceedings—Held further: Language used in Rule 11 does not specify a definite stage of proceedings for seeking rejection of plaint. [P.31JK (ii) Civil Procedure Code, 1908 (V of 1908)- —-O. VII R. ll--Plaint-Rejection of-Prayer for-Refusal to reject plaint- Challenge to~Objection is raised about jurisdiction of court-Contention that agreement in question related to advancement of loan and its recovery as postulated under Banking Companies (Recovery of Loans) Ordinance, 1979, a special law, and Special Court had jurisdiction to adjudicate claim—It is correct that an action for recovery of loan by a Banking Company against a borrower, or by a borrower against a Banking Company, was determinable by a Special Court, and jurisdiction of ordinary court was expressly barred, but no independent Special Court was created in AJK and District Judges were empowered to exercise powers of Special Court in this regard-Held: In case objection is sustained, even then suit is triable by District Judge in his capacity as Special Court. [Pp.30&31]F,G,H&J (Hi) Civil Procedure Code, 1908 (V of 1908)- —-O. VII R. 11-Plaint-Rejection of-Prayer for-Refusal to reject plaint- Challenge to-Objection was that suit was barred by law-Defendant has failed to elaborate as to how suit was barred by law-Held: Statement of facts listed in plaint, prima facie, does not hit suit on ground of limitation, [P.30JE (iv) Civil Procedure Code, 1908 (V of 1908)-- —O. VII R. ll~Plaint~Rejection of—Prayer for—Refusal to reject plaint-­ Challenge to-Other weak aspect of impugned order is that it was not self- speaking-A judicial order is never cryptic or obscure-Held: Order of District Judge is, therefore, not sustainable-Held further: Keeping in view interest of justice, it is deemed expedient to dispose of objections raised in application at this level instead of remanding case to District Judge for his reconsideration and fresh decision on objections-Petition dismissed. [P32]L,M&N (v) Civil Procedure Code, 1908 (V of 1908)-- —O. VII R. 11-Plaint-Rejection of-Prayer for-Refusal to reject plaint-­ Challenge to-Rejection of plaint is sought for want of cause of action- Expression "cause of action" does not include evidence appended with plaint or proposed to be adduced-Absence or presence of cause of action is to be decided from facts narrated in plaint and not from written statement-Suit is based on agreement which was undenied even in application under Order VII Rule 11 of CPC-Grounds raised in support of alleged claim in plaint, prima fade, constitute a cause of action-Held: Plaint was not liable to be rejected on this score. [Pp.29&301A,B,C&D PLD1981AJK16re/. Nemo, for Petitioner. Mr. Abdul Ghafoor Qureshi, Advocate for Respondent judgment M/S Leepa Shoes Limited, is a duly incorporated Company under the laws of Azad Jammu and Kashmir . National Development Finance Corporation, the petitioner, is also stated to be a Corporation established in Pakistan under the National Development Finance Corporation Act, 1973. 2. M/S Leeps Shoes Ltd. brought a suit for specific performance of agreement, made between the parties and for payment of damages, as consequential relief. The suit was instituted in the Court of District Judge, Mirpur, on May 7, 1991. It was averred that the plaintiff-Company set up an industry for manufacturing the shoes. It approached the defendant-petitioner for providing a facility of loan. On satisfaction by feasibility report and allied matters, the defendant-petitioner agreed to patronize and finance the plaintiff-company. It was alleged that the plaintiff-company went into commercial production in August, 1988. The finished products were handed over to the defendant-petitioner, in compliance with the terms of loan. Thus, the finished goods and the raw material remained in the custody of the defendant. The plaintiff, in order to meet its requirements, sought further financial assistance in the shape of loan, in the sum of Rs. 16.5 millions, from the defendant-petitioner. The defendant agreed to sanction Rs. 13.% millions, on February 6, 1990. The plaintiff furnished adequate security for the said loan. Nevertheless, it was averred that the amount of Rs. 13.96 millions, sanctioned as loan in favour of the plaintiff, was not released. In consequence of such default on the part of the defendant, the plaintiff suffered financial loss as described in the plaint. It was averred that the defendant was under legal obligation to perform its part of the contract as the plaintiff was ever willing to perform its part. Failure of the defendant to release the amount was ascribed as malafide. In view of the averments made in the plaint, it was explained that the plaintiff-company was constrained to bring an action against the defendant before the Court. 3. The defendant-petitioner filed an application before the learned District Judge, on June 8, 1991, seeking rejection of the plaint, under Order 7, Rule 11 read with Section 151, CPC. It was alleged that the plaint of the plaintiff-company did not disclose cause of action as such, it was liable to be rejected. It was further averred that in view of the statement of facts made in the plaint, the suit was barred by law. 4. The learned District Judge disagreed with the aforesaid contention of the petitioner, as such dismissed the application, vide the impugned order, passed on July 9,1991. This order has been assailed in present petition. 5. Before taking up the points raised in the petition, it is relevant to state here that the petition was presented in this Court by Mr. Farrukh Karim Qureshi, Advocate on September 26, 1991. On November 17, when the petition came up for hearing, Mr. Qureshi prayed for adjournment on the ground that the petition was to be argued by Mr. K.MA. Samdani, Senior Advocate. The request was granted and hearing was postponed to December 19. On that day, neither Mr. Samdani nor Mr. Qureshi had courtesy to put up their appearance and one Mr. Tariq Waheed who claimed as an Assistant of Mr, Samdani, put up his appearance, with a further oral request for adjournment. Mr. Waheed stated at the bar that the senior Counsel was pre-occupied and Mr. Qureshi had gone to England, as such they were unable to put up their personal appearance. 6. The present petition raises a small legal proposition relating to rejection of plaint for want of cause of action and limitation. Thus, it obviously deserves expeditious disposal. In this view of the matter, arguments were heard from the opposite side. 7. A plaint is to be rejected in the cases: (/) where it does not disclose cause of action; (if) where the relief claimed is under-valued and the plaintiff fails to correct the valuation within stipulated period fixed by the Court; (iff) where the plaint is written upon insufficiently stamped paper and plaintiff fails to supply the requisite stamp paper within the time fixed by the Court; and (/v) where the suit appears from the plaint to be barred by law. 8. In the present case, rejection of plaint was sought for want of cause of action and limitation. The ternTcause of action" has not been defined in the Civil Procedure Code. It is construed in its general sense and refers to averment of facts or state of facts stated in the plaint, giving rise to a claim or right of plaintiff, against the defendant, sufficient to enable the Court in rendering the judgment or to grant relief. Its scope and significance was considered by this Court in Mst- Resham Bibi's case (PLD 1981AJK -16): "—The expression "cause of action" used in the Code in its genersl sense, refers to and signifies averment of facts or state of facts, giving rise to a claim or right of the plaintiff, against the defendant, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim or right and infringement of a right. In order to ascertain the cause of action, it is incumbent upon the Court to apply its mind to the averment of facts, made in the plaint and conclude as to whether presuming the averments to be true, it can grant the relief to the plaintiff or not. In case it is not satisfied that on such presumption or on proving the allegations, relief can be allowed, it shall reject the plaint by invoking provisions of rule 11." It is relevant to state here that the expression "cause of action" does not include the evidence appended with the plaint or proposed to be adduced in support of respective claim of the parties. 9. The other aspect of the proposition is that while considering the point of cause of action, the Court has to decide the absence or presence of cause of action, from the Tacts stated in the plaint and not from the written statement. Thus, the facts stated in the plaint alone are to be construed to determine whether such facts constituted a cause of action or not. 10. In the present case, the plaintiff-Company brought action against the defendant-petitioner, on the basis of agreement to advance the financial facilities to plaintiff for providing sufficient security. The agreement in question was undenied even in the application, seeking rejection of the plaint. However, the grievance of the plaintiff was that the terms of agreement ought to be fulfilled by the defendant, were not being complied with despite the fact that the plaintiff performed his part of the contract. The grounds raised in support of the alleged claim in the plaint, prima facie, constitute a cause of action in favour of the plaintiff. Thus, the plaint was not liable to rejection on this score. 11. The next objection was that the suit was barred by law. The alleged agreement to provide financial facilities to the plaintiff by the defendant, was stated to have been made on February 6, 1990. The amount in question was to be released thereafter by the defendant to plaintiff. As the amount was not released in due time, in the light of the specified terms of agreement, it gave cause to plaintiff to bring an action against the defendant. The defendant-petitioner failed to elaborate as to how the suit was barred by law. The statement of facts listed in the plaint, prima facie, does not hit the suit on the ground of limitation. No other point was canvassed in the application or the revision petition for rejection of the plaint under the provisions of Rule 11, of Order 7, CPC. G 12. Another objection raised in the application confined to jurisdiction of the Court. It was averred that the agreement in question related to advancement of loan and its recovery, as postulated under the provisions of Banking Companies (Recovery of loans) Ordinance, 1979. This was a special law, as such according to the provisions of the Ordinance, a Special Court was empowered to adjudicate upon the claim filed by the Banking Company against a borrower or by a borrower against the Banking Company respectively. 13. It is correct that under the provisions of Banking Companies (Recovery of Loans)Ordinance, 1979, as enforced in Azad Jammu and Kashmir in 1980, an action For recovery of loan by a Banking Company against a borrower or by a borrower against a Banking Company, was determinable by a Special Court . The jurisdiction of ordinary civil Court was expressly ousted. On adaptation of the aforesaid law in Azad Jammu and Kashmir, no independent Special Court in the light of the said law, was created in Azad Kashmir. Nevertheless, it was deemed expedient to empower the District & Sessions Judges in all the Districts of Azad Jammu and Kashmir, to exercise the powers of Special Court (Banking Tribunal) hi that regard. This jurisdiction was conferred vide Notification No. Admin. A- 5/HC/Part-II/48-88 of February 8, 1989. It was postulated that the powers of the Special Court (Banking Tribunal) were conferred on the District and Sessions Judges, under the provisions of Section 2(iii) of Azad Jammu and Kashmir Banking Companies (Recovery of Loans) Act, 1980. As the jurisdiction of the Special Court was conferred on the District and Sessions Judge, that Court alone was competent to entertain and dispose of actions instituted under the provisions of Azad Jammu and Kashmir Banking Companies (Recovery of Loans) Act, 1980. The objection to jurisdiction, ordinarily, is raised .in written statement and the Court is called upon to decide the issue before proceeding further. But it is equally enjoined upon the Court to scrutinize the plaint before assumption of its jurisdiction. When it is satisfied that jurisdiction vested in the Court, only then process was issued to defendant. 14. The Court of District Judge is the principal Court of the District. Ordinarily, all actions of civil nature falling within its territorial jurisdiction are triable by the Court. In present case, the suit was instituted on the assumption that the Court of District Judge being the principal Court, was competent to try the suit. 15. The objection relating to jurisdiction of the District Judge was raised in i the application and the revision petition on the premises that the agreement under f consideration having been made between the Banking Company and borrower, was likely to be ordered to be performed by a Special Court under the Banking Companies (Recovery of Loans) Act and not by a Civil Court of ordinary jurisdiction. In case the objection is sustained, even then the suit is triable by the District Judge in his capacity Special Court. In that case, the plaintiff shall have to amend the name of the Court from District Judge to a Special Court and the forum shall remain the same. This is purely a clerical and procedural action, not necessitating rejection of the plaint or dismissal of the suit, as emphasised by the petitioner. The objection is disposed of accordingly. 16. The learned District Judge dismissed the application of the petitioner as, in his view, the objection raised in the application could not be raised without filing the written statement. The approach was erroneous as the rejection of plaint could be sought on all or either of the grounds described under Rule 11, Order 7, CPC, at any stage of the proceedings. The language used in Rule 11, does not specify a definite stage of the proceedings for seeking rejection of the plant. It is enjoined upon the Court to peruse the statement of facts listed in the plaint for its satisfaction as to whether the cause of action was available or not. The Court has to examine the pleadings to ascertain that the plaint was not barred by law, in addition to points of valuation of the suit and payment of stamp duty. Such scrutiny has to be made at the time of registration of the suit and prior to issuance of summons to defendant. When attention of the Court is invited to these points, it becomes all the more imperative to advert to the points for satisfaction. The other weak aspect of the impugned order is that it was not self-speaking. . |A judicial order is never cryptic and obscure. The order of the District Judge is, [therefore, not sustainable. 17. One of the measures to dispose of the petition was to reverse the order of the District Judge and remand the case for re-writing of the order, in the light of the objections raised in the application of the petitioner. The other adequate device was to decide all the objections in this Court, to avoid likely delay in the disposal of the suit. Thus, keeping in view the interest of justice, it is deemed expedient to dispose of the objections raised in the application at this level, nstead of remanding the case to the District Judge for his reconsideration and fresh decision on the objections. 18. As the objections raised in the application and the revision petition are not found sustainable, the petition is hereby dismissed. No order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 AJK 33 PLJ 1992 AJK 33 Present: KHAWAJA MUHAMMAD SAEED, J MUHAMMAD RAMZAN and 13 others-Petitioners versus A.J.K. GOVERNMENT, THROUGH ITS CHIEF SECRETARY, and 2 others-­ Respondents. Writ Petition No.40 of 1990, accepted on 10.3.1992. Land Acquisition Act, 1894 (I of 1894)-- —-S.12(2) read with Section 18-Land-Acquisition of~Non-issuance of notice under Section 12(2) of Act-Whether reference under Section 18 was timebarred-Question of-Additional Advocate General rightly conceded that Collector had not issued any notice as postulated under Section 12(2) of Act-­ It is an accepted principle of law that when some act is required to be done in a particular manner, then it should be done in that manner or not at all-Held: Petitioners were competent to file reference under Section 18 within six months from date of award of Collector and they have rightly filed reference within time but it was rejected on superficial gfounds of being time-barred— Petition accepted and case remanded. . [Pp.35,36&37]A,B&C AIR 1943 Madras 327 and PLD 1973 H.N. 124 rel. Mr Abdul Lattf Dutt, Advocate for Petitioners. Mr.Muhammad Akram Mughal, Additional Advocate General for Respondents. order The Commissioner, Azad Government of the State of Jammu and Kashmir issued a Notification under Section 4 of the Land Acquisition Act (hereinafter to be called Act), on 23rd of January, 1988 whereby declaring that the land measuring 5 kanals under survey numbers 17, 18 and 19 situate in village Mangraj Tehsil and District Mirpur was likely to be acquired at the public expenses for public purposes, namely, for the construction of Middle School along with the play ground at Mangraj. Thereafter, due to the urgency another Notification was issued under sub-Section (4) of Section 17 of the Act, whereby it was declared that due to the urgency of the project, the provisions of sub-Section (1) of Section 17 of the Act are applicable to the aforesaid land, therefore, in exercise of powers under sub-Section (4) of Section 17 of the Act, the Azad Jammu and Kashmir Government (respondent No.l), directed that the provision of Section 5 & 5(2) of the said Act, were not applicable to the said land. Keeping in view the above mentioned Notification, the Collector Land Acquisition Mirpur (hereinafter to be called Collector), started proceedings for acquiring the land mentioned above. An award was made by the Collector on November 7, 1989. The present petitioners filed objections before the Collector and requested him to send the same under Section 18 of the Act to the Court for adjudication. The Collector vide order passed on 15th of March, 1990, dismissed their application under Section 18 on the ground that it was barred by time, since it was not presented within six weeks of the making of the award. The order passed in this regard, is reproduced here:-- This order of the Collector has been challenged in the present writ petition. 2. It was argued by the learned Counsel for the petitioners that no notice as contemplated under Section 12(2) of the Act, was given by the Collector to the petitioners, as such the period of limitation in the circumstances, available to the petitioners for bringing the reference, was six months and not six weeks as held by the Collector. 3. Repudiating the arguments addressed by the learned Counsel for the petitioners, on the other hand, it was argued by the learned Additional Advocate General, that notice under Section 4 of the Act. was issued on 23rd of January, 988 by the Revenue Commissioner for Azad Jammu and Kashmir. The Department of Education was in severe need of land for the construction of middle school and play ground in village Mangraj. In this connection, a notice under Section 17(1) of the Act, was issued on 15th of February 1989. Objections were invited from the owners of the land under Sections 9 and 10 of the said Act. On August 5, and 19, 1989, objections were filed on behalf of the present petitioners. The Collector, on the basis of report made by the Chairman of the site selection committee, proceeded for acquisition of the land and vide award dated llth of December, 1989, the land in question was acquired. The learned Additional Advocate General was of the view that it was in the notice of the petitioners as they had filed objections that the land in dispute was needed to be acquired at public expenses for public purpose, as such there was no need to issue them any fresh or further notice. They should have themselves remained vigilant in the matter. A negligent party cannot claim any indulgence in the case of limitation. 4. The contentions of the learned Counsel for the parties have been taken into consideration and perusal of the file has been made with due care and caution. 5. With the help of the learned Counsel for the parties, I went through the record prepared and maintained by the Collector during the acquisition proceedings which was summoned on the request of the petitioners. 6. The learned Additional Advocate General has rightly conceded that Collector had not issued any notice as postulated under Section 12(2) of the Act. Even on record, the orders which were passed by the Collector, give no indication that he ever made any effort to issue any notice to the land owners, whereas it is an accepted principle of law that when some act, is required to be done in a particular manner, then that act should be done accordingly or not at all. As notice under Section 12(2) of the Act was not given by the Collector, therefore, in this limited compass, the only question which now requires to be decided is as to what was the period available to the petitioners in the circumstances for filing reference under Section 18 of the Act. 7. The question of limitation under the Act, came up for consideration in various authorities. It would be expedient to consider some of them. 8. In A.I.R. 1943 Madras 327 it was observed at page 330 as under:-- "Under Section 18 any person interested could make an application if the person making was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award or in other cases, within six weeks of the receipt of the notice from the Collector under S.12(2), or within six months from the date of the Collector's award, whichever period shall first expire". 9. Again, in PLD 1973 H.N. 124, it was observed as unden- "The law of limitation requires strict interpretation when it is applied against an admitted existing right of a citizen. Under sub-slause (b) of Section 18(2) the limitation shall be six weeks only if there is proof of "the receipt of notice from the Collector under Section 12, sub-section (2)". There is nothing in sub-section (b) to indicate that knowledge obtained in any other manner would also be covered by the first part of that clause or could be treated as substitute of the requirement provided therein for a notice under Section 12(2). Had it been the intention of the Legislature in such cases also to fix limitation of six weeks, then the acquisition of knowledge of the award by a party would have been specifically mentioned as another alternative in sub-Clause (b) or another sub-Clause would have been added". 10. From the above survey of case law, it is evident that the question of limitation for making reference is a mixed question of law and facts which cannot be decided in isolation only by keeping in view Section 18 of the Act. The proceedings conducted under Section 12 of the Act, by the Collector are to be taken into consideration. Under Land Acquisition Act, three periods of limitation have been provided, namely:- (i) if the aggrieved party or his recognized agent was present at the time of making of award, then reference can be made within six weeks from the date of the said award; (h) if the aggrieved party was not present either personally or through recognised agent on the day when the award was made, then under sub- Section (2) of Section 12 of the Act, a notice shall be issued to the interested party who may file reference within six weeks of the receipt of the notice; and (in) in absence of above mentioned two conditions, the reference can be filed within six months from the date of the award. 11. In the present case, although in strict law, there are sufficient reasons to set aside the entire land acquisition proceedings, but in view of the fact that a school building by the time, might have already been reared on the land, I.did not consider it proper to quash the entire proceedings. However, in the circumstances of this case, a true and proper construction of the provisions of Section 18 of the Act will meet the ends of justice. The petitioners were competent to file reference within six months from the date of the award of the Collector in the light of the facts of this case. The petitioners rightly have filed the reference within six months but it was rejected on superficial grounds of being time barred. This was not a correct view to take when the law expressly provided that an owner of the property is entitled to ask the Collector to refer the matter to a Court. The reference, as held earlier, was filed well within the period of limitation. The Collector had failed to issue notice under sub-Section (2) of Section 12 of the Act to the petitioners, whereas notice under Section 12(2) was mandatory in law. In its absence, the action under Section 11 of the Act shall have to be taken afresh so that a new award be made. This aspect of the case finds support from a case reported in P.L.D. 1970 Lahore 321. At page 329 it was observed as under:-- "There is no provision in the Land Acquisition Act for condoning delay in the presentation of an application under Section 18. Section 5 of the Limitation Act has not been made applicable but since Section 4 is applicable, the Collector has no choice when an application is presented to him six months after the making of the award but to dismiss the same as was done in this case. In this view of the matter, the giving of a notice under Section 12 is an imperative provision of law and read with the proviso to Section 18 it becomes obligatory upon the Collector to give such time as would leave enough respite to a person to file an application under Section 18 within a period of six months from the date of the making of the award. If such a notice is not given it would be a non-compliance with an obligatory part of the statute and the result would be that the award given by the Collector would be vitiated and action under Section 11 shall have to be taken afresh so that a new award be made". 12. In view of the above discussion, while accepting this writ petition with costs, I declare the award given by the Collector to be without lawful authority and of no legal effect. The case is remanded to the Collector Land Acquisition Mirpur for proceeding under Section 11 of the Act in accordance with law. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 AJK 37 PLJ 1992 AJK 37 Present: KHAWAJA MUHAMMAD SAEED, J IFTIKHAR HUSSAIN-Petitioner versus EXECUTIVE ENGINEER, P.W.D (HIGHWAY DIVISION), MIRPUR and 4 others—Respondents Writ Petition No. (not given) of 1992, dismissed on 15.1.1992. Writ jurisdiction— —Contract for carp-cuing, metalling of road-Grant of-Cancellation of contract—ChalienK to—Whether writ petition is maintainable—Question of— Petition kas been filed virtually for enforcement of contractual obligations- Held: Writ petition having been filed for enforcement of contractual obhgations, is not tenable under Section 44 of Interim Constitution Act, 1974- Petition dismissed. [Pp.38&39]A&B PLJ 1992 SC (AJK) 13. PLD 1969 Dacca 105, PLD 1966 Dacca 575 and PLD 1962 SClOS/tV. Mr.Muhammad Yunits Swakhvi, Advocate for Petitioner. order The brief, facts giving rise to this writ petition, as disclosed in the writ petition itself, are that petitioner who claims to be a State Subject and 'A' Class Contractor, got contract for metalling, carpetting and improvement of Ratta-Dhangali Road from Mile 5 to 9. Later on, work order was issued on March 4, 1991 (Annexure G/l). According to the petitioner, the completion period allowed to him was 24 months and the commencing date was fixed as March 16, 1991. Subsequently, in total disregard and in violation of the terms and conditions of the contract, respondent No.l, on 5th of January 1992, recommended to respondents No.2 and 3 that contract of the petitioner may be cancelled and the same may be given to some body else. He also recommended that the security amount deposited by the petitioner may also be confiscated. Consequently, on above recommendations, new tenders have been called for January 15, 1992 through advertisement appearing in Daily Jang Rawalpindi dated January 13,1992. 2. In support of the writ petition, the learned Counsel for the petitioner has agitated the following grounds:- (/) That the respondents have no jurisdiction to issue the impugned orders as the petitioner was supposed to have finalized the work within the stipulated period of 24 months; (ii) that the petitioner so far on the spot has completed the work amounting to Rs.18,00,000/- but due to non-cooperation of the incharge staff of the respondents, he has received the payment of only 8,00,000/-. It is desire of the petitioner that the project which is for the benefit and welfare of the public at large, should be finalized even before the stipulated time but the respondents, due to ulterior motives, want to allot the contract to some body else. This action of the respondents is clearly mala fide and injurious to the interest of the public at large; (hi) that the matter will be prolonged and the development work will be stopped in case the contract is allotted to any body else becuase it is quite natural that the new person/contractor will take some time to instal his machinary and to carry on the work; and (iv) that the respondents are not competent to give the work to any other person without first settling the work done by the petitioner. If the work is allotted to any other person, the petitioner will have to suffer irreparable loss. 3. In my view, the writ petition has been filed virtually for enforcement of the contractual obligations as such it is not tenable under Section 44 of the Interim Constitution Act of 1974. This view finds support from a case reported in PLD 1969 Decca 105. The question in that case came up for consideration as to whether a contractual obligation was enforceable by invoking writ jurisdiction of the High Court. After reviewing a number of authorities on the point, the learned Judges finally observed that under Section 98 of the Constitution, a right created by or under law and not a right created by a contract, is enforceable by resorting to the writ jurisdiction. 4. In a case reported as PLD 1966 Decca 575, the High Court declined to interfere in the order of cancellation of contract passed by the Deputy Commissioner on the ground that right based on a contract is not enforceable through writ petition under Section 98 of the Constitution. 5. In 1968 S.C.M.R. (?) the facts were that the Rehabilitation Authorities agreed to sell the evacuee land to the petitioner (therein) for a certain consideration for construction of a factory. Subsequently, the Rehabilitation department allotted a part of the property to another person in violation of the aforesaid agreement. The petitioner was also informed that he would retain the part of the property on payment of a certain amount of price for the same. The petitioner felt advised to prefer a writ petition before the High Court for the enforcement of the terms of the agreement. But the same was dismissed on the ground that writ jurisdiction could not be invoked for the enforcement of rights arising out of a contract. 6. In a recent authority titled "Azad Jammii and Kashmir Government v. Neelum Flour Mills" [Reported as PLJ 1992 SC (AJK) 13] the Azad Jammu and Kashmir Supreme Court has reaffirmed the same view. 7. In PLD 1962 SC 108 it was observed as under beamed Counsel then attempted to argue that his client had contractual rights, because he had been made to spend a lot of money on making the road bus-worthy and the understanding was that no other permit-holder would be introduced in this route. The short answer to this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction". 8. It may further be observed here that under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, a writ petition would lie only if no other adequate remedy is provided by law. For resolving the disputes arising out of breach of a contract, adequate remedy is available under the Specific Relief Act. 9. Therefore, without going into the merits of the writ petition, in the light of what has been discussed above, I dismiss the writ petition in limine. The petitioner, if so advised, may approach appropriate forum for enforcement of his rights, if any. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 AJK 39 PLJ 1992 AJK 39 Present: S.MANZOOR HUSSAIN GlLLANI, J ZAIGHAM SALIM KHAN-Appellant versus MUHAMMAD SALIM KHAN and another-Respondents Civil Appeal No.38 of 1991, dismissed on 5.12.1991 (approved for reporting on 29.3.1992). Res-judicata-- —-Status quo order-Grant of-Order vacated by District Judge in appeal- Challenge to-Whether suit was barred by principle of res-judicata—Question of-Entitlement of respondent No.l besides having been decided in suit filed by appellant himself, has been adjudicated upon and settled by High Court in a suit filed by Qari Muhammad Yasin and others—It definitely operates as a judicial precedent and appellant is precluded from challenging same-­ Confidence of public in Courts will shatter if settled matters are repeatedly re­ opened on one pretext or other-Held: There is no bar for High Court to intervene in exercise of its own powers and pass orders for preventing abuse of process of Court and to secure ends of justice-Suit of appellant before Sub- Judge Bagh, dismissed and appellant ordered to pay costs of Rs.15,000/- to respondent. [Pp.43,44&45]A,B,C&D PLJ 1983 SC (AJK) 103 rel. M/s. Sardar Rafique Mehmood KJian and Tabassum A/tab Alvi, Advocate for Appellant. - Sardar IQialil Klian, Advocate for Respondent No.l. order This appeal is directed against the order of District Judge Bagh dated 24.8.1991, whereby the order of Sub-Judge Bagh passed on 30.8.1990 was vacated. The learned Sub-Judge vide his order had ordered the respondent to maintain status-quo. 2. During the course of arguments on 30.9.1991, respondent had placed some orders relating to the suit land passed by various courts and administrative authorities, including High Court, on the file. After perusing the orders, it was deemed just to vacate the ad interim relief granted on 1.9.1991. A notice was also issued to the appellant to show cause as to why his plaint may also not be rejected or dismissed as frivolous and barred by law. The arguments in the case on this point were addressed by the learned advocates on 30.10.1991. During the course of arguments, it was brought to my notice that the order dated 30.9.1991, was appealed against before the Supreme Court. It was, therefore, thought proper to wait for the proper orders by the Supreme Court. The Supreme Court was pleased to observe, vide it's order dated 3.11.1991 that "it would be proper that learned Judge in the High Court should decide the matter before it is challenged in this Court. Leave is, therefore, refused in respect of Para 2 of the order of the High Court". 3. I have heard the learned counsel for the parties and perused the record, besides going through the orders passed by different courts with respect to the suit land. The facts, necessary for disposal of the case between the parties, are that appellant Zaighum Salim Khan filed a suit before Sub-Judge Bagh on 15.5.1982 seeking a declaration that grant of land comprising number khasra 396 measuring 4 marlas in favour of respondent is illegal and that he is owner of the land. The land in dispute is situated in a Nullah comprising number khasra 396. 8 marlas of land, out of this number khasra has been allotted in favour of appellant, while 12 marlas from the same survey number have been allotted in favour of Qari Muhammad Yasin and his brothers, who at the moment, are not before the Court. A litigation between the respondent and Qari Muhammad Yasin and his brothers has finally been concluded by this Court with respect to the suit land on 31.7.1991 by dismissing their claim. Respondent is also an allottee of 4 marlas of land out of this number khasra. Appellant as well as Qari Muhammad Yasin and others, who wanted to usurp the disputed land in the garb of their allotments, have resorted to a series of litigation against the respondent, either jointly or separately (though with a surreptitious collusion). Following is the detail:- (/) They had first filed a joint review petition before the Government against the grant of land in favour of respondent on which a Commission was appointed, who finally reported in favour of respondent and against the appellant and Qari Muhammad Yasin. This review petition was rejected through a Government orfler dated 4.12.1982; (//') Qari Muhammad Yasin and others challenged the grant of land in favour of respondent through a writ petition before the High Court, which was dismissed on 26.1.1983; ' (Hi) Appellant instituted a suit before Sub-Judge Bagh for a declaration that he is owner of the suit land and for possession, which was dismissed after regular trial on 29-7-1987, and the order was upheld by the High Court on 4-2-1990; (/v) A civil suit for a declaration and cancellation of the grant of disputed land in favour of respondent, in which appellant was a proforma respondent, having common interest with Qari Muhammad Yasin, was also dismissed on 3-12-1981 by Sub-Judge Bagh. The judgment was upheld by the learned Additional Distt Judge Bagh and High Court on 23-4-1988 and 29-5-1990 respectively. (The latter being an order of dismissal of appeal in default); (v) Qari Muhammad Yasin (an ally of appellant) again filed a suit of similar nature for the disputed land before Sub-Judge Bagh which was dismissed and appeal against the order was rejected by District Judge on 5-2-1991 and by High Court on 31-7-1991; (v/) The instant suit is sixth, in the series of attempt to usurp the land from the respondent. 4. Any order to be passed in this case has to be viewed in the light of above facts. Though the jurisdiction of this Court at the moment has been invoked against an order, whereby order of injunction in favour of appellant has been cancelled by District Judge Bagh, but the Court has noticed the above facts during the course of arguments and feels that it is the fittest case in which it should intervene for the ends of justice. A suit on behalf of appellant first instituted in the Court of Sub-Judge Bagh on 15-5-1982 and dismissed on 29-7-1989 having consumed about six precious years of the parties, was dismissed with these .observations: This order was upheld by the High Court. Another suit which was filed by Qari Muhammad Yasin and others in which appellant was proforma defendant, sharing common interest with Qari Muhammad Yasin, was also dismissed as stated above. Appellant (Proforma defendant in that case) had also appeared as witness on behalf of Qari Muhammad Yasin, plaintiff. The judgment wa.. also upheld upto High Court. Besides other facts, these two judgments operate as res judicata and therefore, the suit of the appellant before trial court is barred by law. An adjudication in an earlier case ordinarily may not operate as res judicata against the proforma defendant, but if it is apparent that the interest of proforma defendant was identical with that of the plaintiff, the decision operates as res judicata. I am supported in holding this view by AIR 1942 Calcutta-1, which reads as: "In order to apply the rule of res judicata as between co-defendants in a previous suit, three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. Even a proforma defendant is ordinarily bound by a decree which has been obtained in his presence. A decision in a former suit to which the proforma defendant was a proper party, which affects the interests of the proforma defendant operates as res judicata in a subsequent suit between the same parties even if no relief was claimed against the proforma defendant". 5. It was argued by the learned counsel for the appellant that as his earlier suit decided on 29-7-1989 was under Section 9 of Specific Relief Act, while the nature of the instant suit before trial court is different, hence according to the learned counsel the principle of res judicata does not apply in this case. He has referred to 1989 CLC-318. This authority does not find place in the relevant book. I have gone through the earlier judgment. Though the plaint apparently mentions Section 9, but it has been drafted, treated and tried as a regular suit for declaration, in which the entitlement of the parties and their right to possession of the suit land is also decided. Ordinarily under Section 9 of Specific Relief Act, the question of illegal dispossession has to be gone into and it is a summary procedure for possession. But when a suit has regularly been tried and all possible issues, e.g. proprietorship and the right of parties to possession etc. are decided, it cannot be said to be a suit of summary nature, as visualized by Section 9 of Specific Relief Act. A suit for a declaration with an extended scope (may it be under section 9 of Specific Relief Act) if substantially tried and decided, will operate as res judicata between the parties, if a subsequent suit with the identical facts and controversy is brought before the Court. Section 11 Explanation (III) CPC covers the case fully which reads as: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other". 6. In an other case which was instituted by Qari Muhammad Yasin and others against respondent and finally decided by the High Court on 31-7-1991, the right of respondent to the disputed land has been accepted. The Court would make a mockery of itself, if, a settled right of a party through an earlier order is reopened, simply on the pretext that some other person (especially one who has been in league with the judgment debtor in the former suit) has come afresh before the Court, unless earlier order is set aside in appeal. A judicial precedent in a case itself operates as res judicata, even if a person is not a party to that litigation. I am fortified in holding this view by AIR 1955 Supreme Court-481, relevant part reads as: "Where the Privy Council had construed a certain document, namely a will of a person not a party to that litigation, yet the decision operates as a judicial precedent". As the entitlement of the respondent and his right to the grant of the disputed land, besides having been decided in the regular suit filed by the appellant himself, has been adjudicated and settled by the High Court in a suit filed by Qari Muhammad Yasin and others, it definitely operates as judicial precedent and the appellant is precluded from challenging the same, as the right of the party has been settled on the construction of the documents challenged afresh before the trial court. The courts while deciding the cases, besides laying down the judicial precedents, settle disputes of the parties, and disputes, which relate to a piece of land, definitely affect the persons of the locality. The confidence of the public in the courts will shatter, if settled matters are repeatedly reopened just on one pretext or the other. It is the duty of every court to throw out a matter, when it is brought to its notice that the matter has once been settled. The parties cannot be allowed to reopen the settled matters on the flimsy legal or procedural techniques. The substance of the matter is of essence in a judicial administration not the technique, unless it goes to the root of the matter. Dispensation of justice is a sacred duty, which has to be performed in accordance with the provisions of law, with a human attitude. It is not a computerized function, but has to be performed keeping in view the human relations, affinity, mental attitude, conduct of the parties and nature of the case etc. It may be a business for the lawyers, petition writers, police and others, who are benefitted by the origin and continuance of disputes, but it is a sort of war between the parties. Courts have to keep in mind the horrifying effects of such a strive to put an end to it, moreso, when litigation is futile and flimsy. A prolonged false litigation first affects locally and when followed by one after other cases on the same subject between the parties, it shakes the confidence in the legal institutions and the system as a whole which ultimately affects the nation. It is the duty of the Courts to uphold the confidence of the general public in the national institutipns, the least one can do, is to stop the litigation like one in hand. 7. It it borne out from the record that'the appellant and the other party (Qari Muhammad Yasin and others) have changed the sides and have come under new pleas and pretexts before the Court to deprive the respondent of the fruit of his legal grant by harassing him through different processes of Courts. I think this is the fittest case, in which the Court should, in view of the circumstances stated above, invoke its inherent powers under Section 151 of CPC, read with Section 35 of the Courts and Laws Code Act 1949, which respectively read as follows: "151-Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary of the ends of justice or to prevent abuse of the process of the Court". "35 (1) Subject to such rules and regulations as the Azad Jammu and Kashmir Government may make, the High Court shall have superintendence and control over all courts for the time being subject to its appellate or revisional jurisdiction and all such Courts shall be subordinate to the High Court". In PLJ 1983 (S.C (AJ&K) 103, it was held: "8. We have here also the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 which invests the High Court with authority of superintendence and control over the Courts subordinate to it. Section 35 of the Courts and Laws Code Act 1949 gives wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. The prerogative and privilege of the High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under Section 115 CPC. This right imposes a corresponding duty to see that courts subordinate to it do not invade vested rights of subject by usurping jurisdiction. This view is supported by authorities as well. In AIR 1920 Pat. 568 (Brindaban Chandcr Choubey v. Gour Chandra Roy and others), it was observed: "It is the privilege and prerogative of High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further proceedings to be taken as justice may require". Therefore, in our view, the High Court in exercise of the powers of superintendence and control over the subordinate Courts under Section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act 1949, was competent to revise the order. Even otherwise too, it is not a case of total lack of jurisdiction. The High Court was competent even otherwise to exercise the revisional jurisdiction and we cannot find fault with the order simply on the ground that the order is defective, if the order can be saved under some other provisions of the law and does not suffer from total lack of jurisdiction. Reference may be made to PLJ 1982 SC (AJ&K) 97 (Sulaiman v. Khurshid). In this case it has been observed: "Where a Court does not lack in its inherent want of jurisdiction, but the procedure or mode of hearing, it adopts is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection on such defect or irreaularity touching upon the jurisdiction; later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it". 8. The contention of the learned counsel for the appellant that 'the trial court had almost completed the evidence and therefore, let that court decide the case on merits first', is untenable. There is no bar for this Court to intervene in exercise of its own powers, and pass proper orders for preventing the abuse of process of Court and to secure the ends of justice. The jurisdiction and powers of the High Court are not dependent upon the decision of the Trial Court. Whenever it comes to the notice of the High Court, that the process of a Court is being abused, it is its duty to intervene and secure the ends of justice. 9. Keeping in view the conduct of the appellant, I hereby dismiss the suit filed by the appellant before Sub-Judge Bagh. In view of the protracted collusive litigation at different forums, the appellant shall pay a sum of Rs. 15,000/- as costs to the respondent. The appeal against the order of District Judge Bagh dated 24- 8-1991, consequently also stands dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 AJK 45 PLJ 1992 AJK 45 Present: abdul MAJEED mallick, CJ SUPERINTENDING ENGINEER, ELECTRICITY, MIRPUR AND ANOTHER-Petitioners versus KASHMIR STEEL MILLS and another-Respondents Civil Revision No.33 of 1991, accepted on 16.2.1992 (approved for reporting on 24.3.1992) (i) Civil Procedure Code, 1908 (V of 1908)-- —O.I, R.10(2)—Civil suit—Application for being impleaded as defendant— Whether Superintending Engineer (Electricity) could be allowed to be impleaded as defendant-Question of-Order I, Rule 10(2) of C.P.C. empowers Court to join any person as defendant who ought to have been joined as such for his presence before Court being necessary in order to enable Court to settle and adjudicate upon question involved in suit effectively and completely—Held: Superintending Engineer being a necessary party, was eligible to seek his appearance before Court as defendant by arraying him as such-S.E. directed to move District Judge for impleading him as defendant. [P.50]F (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.IX. R.6~Civil suit-Non-appearance of defendants--£xparte order against- Challenge to-Order of exparte proceedings was recorded by clerk of Court and was signed by Presiding Officer-Application for setting aside exparte order was presented by a junior clerk who was neither party nor authorised agent of petitioners-It was not accompanied by affidavit-Interim orders show that defendants 1 and 3 were still being summoned for appearance and were not served till date of exparte order-Date on which exparte proceedings were ordered, was not date of hearing in suit—Held: Exparte proceedings against defendants 1 and 3 were patently unwarranted and as such illegal. [Pp.47,48&50]A,B&C PLD 1983 SC (AJ&K) 223 rel. (iii) Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.6-Civil suit-Non-appearance of defendants-£xpa/te order against- Challenge to-Suit was at stage of filing objections to miscellaneous application and defendants were not asked to file written statement at that stage-Despite exparte proceedings, defendants could join proceedings and present their written statement on next date for progress of suit—Held: Neither District Judge nor counsel for parties cared to appreciate situation of proceedings and unnecessarily indulged into ancillary proceedings resulting in present petition-­ Petition acccepted and exparte proceedings set aside. [P.50JD&E Mr.Muhammad Akhtar Chaudhry, Advocate for Petitioners. Ch.Muhammad Taj, Advocate for Respondents. order The petition is addressed against the order of learned District Judge, Mirpur, passed on November 14, 1991, resulting in dismissal of application to set aside the exparte proceedings. 2. Kashmir Steel Mills brought a suit for perpetual injunction against the Superintending Engineer (Electricity), Muzaffarabad, Executive Engineer i, Electricity), Mirpur and Azad Government of the State of Jammu and Kashmir through its Chief Secretary, in the Court of District Judge, Mirpur, on May 8, An application for interim relief was also moved. The Executive Engineer (Electricity) Mirpur, was duly served, as such he appeared in the Court on June 17, 1990 when the case was adjourned for presence of the other defendants. On August 25, 1991, as the defendants were absent, they were proceeded exparte and plaintiff was ordered to lead his evidence on the next date. On August 29, 1991, statement of plaintiff as witness was recorded when an application was moved on behalf of defendants to set aside the exparte proceedings recorded against them. The application was opposed. It was, therefore, dismissed for want of proper presentation and sufficient cause for the absence of the defendants on August 25, This order has been assailed in the present petition. 3. Mr.Muhammad Akhtar, the learned Counsel for the petitioners contended that the petitioners were present in the Court on August 25, 1991 and were sitting in the Retiring Room of the District Judge when the case was called on for hearing by the Clerk of Court, in his own office. The defendants not being aware of the calling of the case, could not put up their appearance personally before the Clerk of Court who recorded the impugned order of exparte proceedings. The application was moved on August 29, 1991 i.e. 5 days after the passing of the order of exparte proceedings, as such the application was within time and it well-explained the cause of absence of the defendant-petitioners. Ch.Muhammad Taj, the learned Counsel for the opposite side, controverted the aforesaid points and contended that none of the petitioners was present in the premises of the Court at the time when the suit was called on fof hearing therefore, exparte proceedings were correctly made against them. It was emphasised that the application to set aside the exparte proceedings was neither presented properly by the petitioners or through their authorised agent nor it contained sufficient cause for absence of the petitioners. It was argued that said application was not accompanied by an affidavit. 4. It appears from the record of the trial Court that the order of exparte proceedings was recorded by the Clerk of Court and was signed by the Presiding Officer. The application to set aside the exparte proceedings does not reflect presence of the petitioners in the Retiring Room of the Presiding Officer, as contended by the learned Counsel for the petitioners. The application is quite vague and ambiguous. It only shows that absence was not wilful. The representative of the petitioners was present in the Court who could not put up his appearance for lack of knowledge of calling of the case. The application was signed by the petitioners but the interim orders reflect that it was presented before the Court by Muhammad Yasin, a Junior Clerk. Muhammad Yasin was neither a party nor an authorised agent of the petitioners, as such presentation of the application, prima facie, was not made by the petitioners. The application was not accompanied by an affidavit. It is, therefore, rightly pointed out by the learned Counsel for the opposite side that the application, though moved within time, carried no satisfactory explanation relating to absence of the petitioners in the Court at the relevant time. The objection is, therefore, well founded. 5. Here, it is relevant to state that the Superintending Engineer (Electricity), Mirpur petitioner No. 1, is not party to the suit before the District Judge, as such exparte order was not passed against him. The petition against the impugned order to his extent, is not maintainable on that score. owever, an application was moved on his behalf before this Court to implead him as defendant, in the suit. This aspect of the case shall be dealt with next. 6. The relevant provisions relating to appearance of the parties and consequences of their non-appearance before the Court, are postulated under the purview of Order 9, CPC. The relevant rule of procedure which attracts to the position where the plaintiff appears and defendant does not appear when the suit is called on for hearing, is Rule 6. Under this rule, when it is proved that the summons has been duly served on the defendant and he has failed to appear when the suit is called on for hearing, the Court is empowered to proceed ex-parte against such defendant. Next, when it was not proved that the summons was duly served on the defendant instead of proceeding exparte due to failure of the defendant to appear before the Court when the suit is called on for hearing, the Court was enjoined to direct that second summons be issued for its service on the defendant. 7. In present case, the summons was shown to have been served on the Executive Engineer (Electricity), Mirpur, petitioner No.2, and not on Superintending Engineer (Electricity), Muzaffarabad and the Chief Secretary who represented the Government. The proceedings preceding to the order of August 25, 1991 reflect that defendants No.l and 3 were still being summoned for their appearance in the Court and by the time, they were not duly served. In this view of the matter, exparte proceedings against defendants No.l and 3 were patently unwarranted, as such illegal. 8. It would be useful to mention here that on June 19, one Muhammad Ishaque, an authorised agent of respondents No.l and 3 was recorded present but on that day, the Presiding Officer was on leave, as such the case was adjourned to July 16. On that day, again, the authorised agent of respondents No.l and 3 was recorded present and the Presiding Officer, again, was on leave, as such the case was adjourned to August 25. No authority of defendants No.l and 3 in the name of Muhammad Ishaque, or any other person was available on the file of the trial Court. This suggests that Muhammad Ishaque or someone else were not authorised by respondents No.l and 3 to put up his personal appearance on their behalf. 9. Rule 6(1), Order 9, CPC, as noticed earlier, refers to procedure where plaintiff appears and defendant does not appear. It provides the mode of proceedings to be carried by the trial Court in presence of respective conditions ihrstrated therein. When it is proved that the summons was duly served on the defendant and he failed to appear when the suit was called on for hearing and the plaintiff thereby appeared, the court was empowered to proceed exparte against the defendant. Here, reference to non-appearance of defendant was co-related to the term "hearing of the suit". The term "hearing of the suit" finds its mention under the provisions of Orders 9 & 17, Rules 2 and 3. It reflects that the Court has to dismiss the suit or to proceed exparte for want of appearance of the plaintiff and defendant when either of them failed to appear when the suit was called on for hearing. In other words, an action of dismissal of suit or exparte proceedings or exparte decree was permissible only when the party failed to appear on the day fixed for hearing of the suit. 10. The term "hearing" invariably received the attention of the superior judiciary of the Sub-Continent and the consensus is that it confines to the proceedings relating to progress in the suit and not to proceedings where only a step prior to the progress of the suit was to be taken. The proposition was elaborated in different cases decided by this Court and Supreme Court of Azad Jammu and Kashmir. Reference is made to Habib Bank's case (PLD 1983 S.C. AJ&K 223). It was a case for recovery of amount as damages instituted by Khawaja iMuhammad Ishaque against Habib Bank Limited. On the day when the order of exparte proceedings was passed, the case was adjourned for proper orders. On that day, the defendants were absent and they were proceeded exparte. The learned Chief Justice while dealing with Rule 6(1) of Order 9, CPC, observed:-- "S.Discussing the scope of Order IX, Rule 6(1) of the C.P.C. the Courts are practically one to observe that it is confined to the first hearing in the suit and does not,perse, apply to the subsequent hearings. The provisions under this order do not apply to a case (as the case is before us) in which plaintiff or defendant has already appeared but has failed to appear at an adjourned hearing of the suit". 11. The term "hearing" was further examined and construed as:~ 13. The word "hearing", it may be observed, has been defined nowhere in the C.P.C. As defined in Wharton's Law Lexicon it means "investigation of a controversy". The word "hearing" therefore, means taking of evidence or consideration of question relating to suit enabling the Judge to come to a final adjudication and not consideration of merely an ir'erlocutory matter. Where the wordings of the order indicate (as the case here is) fixation of date not for hearing but for consideration of merely an interlocutory matter ex parte order against the defendant cannot be passed on such a date and if it is done it being without jurisdiction is a nullity". As on the date when the exparte order was recorded, no progress in the suit was to be made as the suit was adjourned for proper orders, the order of setting aside exparte proceedings was maintained. 12. In present case, as noticed earlier, the Presiding Officer was on leave on two earlier dates to which the case was adjourned and again, proceedings were adjourned to August 25, 1991, for proper orders. Thus, the date August 25, 1991 was not the date of hearing in the suit, as such exparte proceedings on account of absence of the defendants were unwarranted and illegal. 13. The suit was at the stage of filing of objections to the miscellaneous application and defendants were not asked to file the written statement at that stage. Despite the fact that exparte proceedings were ordered against the defendants on August 25, 1991, they could join the proceedings on August 29, 1991 and present t.heir written statement for the progress of the suit. It appears that neither the learned District Judge nor the learned Counsel for the parties cared to appreciate the situation of the proceedings under consideration and unnecessarily indulged into ancillary proceedings resulting in present petition. 14. In this view of the matter, the petition is granted. The exparte proceedings recorded on August 25, 1991 are hereby set aside and the Executive Engineer, defendant No.2, who is already before the Court, is free to file his written statement on the next date of hearing. " 15. The Superintending Engineer, Mirpur (Electricity) as described earlier, moved an application to implead him as defendant. The application is covered by the provisions of Order 1, Rule 10(2), CPC. Sub rule (2) empowers the Court to join any person as defendant who ought to have been joined as such for his presence before the Court, being necessary in order to enable the Court to settle and adjudicate upon the questions involved in the suit effectually and corrfpletely. The Superintending Engineer (Electricity), Mirpur being a necessary party, was F eligible to seek his appearance before the Court as defendant, by arraying him as such. Nevertheless, this application is to be moved before the trial Court first and his Court can be approached only when such application is not adequately considered. Therefore, the Superintending Engineer (Electricity), Mirpur is directed to move the learned District Judge for impleading him as defendant, to enable him to prosecute the defence in the suit. The application is disposed of accordingly. No order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 AJK 50 PLJ 1992 AJK 50 Present: kiiawaja muhammad saeed, J MUHAMMAD RAMZAN and 13 others-Petitioners versus A.J.K. GOVERNMENT THROUGH CHIEF SECRETARY, and 2 others-­ Respondents Writ Petition No.40 of 1990, accepted on 10.3.1992 (approved for reporting on 25.4.1992). Land Acquisition Act, 1894 (I of 1894)- — S.18 read with Section 12(2)— Land— Acquisition of— Application for making reference— Dismissal of— Challenge to— It is an accepted principle of law that when some act is required to be done in a particular manner, then that act should be done accordingly or not at all-No notice under Section 12(2) having been given, petitioners were competent to file reference within six months from date of award of Collector and they rightly filed reference within time, but it was rejected on superficial grounds of being time-barred-Held: Award given by Collector is without lawful authority and of no legal effect. [Pp.52,53&54]A,B&C PLD 1970 Lahore 321 rel. Mr. Abdul LatifDutt, Advocate for Petitioners. Mr. Muhammad Akram Mughal, Addl A.G. for Respondents. judgment The Commissioner, Azad Government of the State of Jammu and Kashmir issued a Notification under Section 4 of the Land Acquisition Act (hereinafter to be called Act), on 23rd of January, 1988 whereby declaring that the land measuring 5 kanals under survey numbers 17, 18 and 19 situate in village Mangraj Tehsil and District Mirpur was likely to be acquired at the public expenses for public purposes, namely, for the construction of Middle School along with play ground at Mangraj. Thereafter, due to the urgency, another Notification was issued under sub-Section (4) of Section 17 of the Act, whereby it was declared that due to the urgency of the project, the provisions of sub-Section (1) of Section 17 of the Act are applicable to the aforesaid land, therefore, in exercise of powers under sub-section (4) of Section 17 of the Act, the Azad Jammu £nd Kashmir Government (respondent No.l), directed that the provision of Section 5 & 5(2) of the said Act, were not applicable to the said land. Keeping in view the above mentioned Notification, the Collector Land Acquisition Mirpur (hereinafter to be called Collector), started proceedings for acquiring the land mentioned above. An award was made by the Collector on November 7, 1989. The present petitioners filed objections before the Collector and requested him to send the same under Section 18 of the Act to the Court for adjudication. The Collector vide order passed on 15th of March, 1990, dismissed their application under Section 18 on the ground that it was barred by time, since it was not presented within six weeks of the making of the award. The order passed in this regard, is reproduced here:- This order of the Collector has been challenged in the present writ petition. 2. It was argued by the learned Counsel for the petitioners that no notice as contemplated under Section 12(2) of the Act, was given by the Collector to the petitioners, as such the period of limitation in the circumstances, available to the petitioners for bringing the reference, was six months and not six weeks as held by the Collector. 3. Repudiating the arguments addressed by the learned Counsel for the petitioners, on the other hand, it was argued by the learned Additional Advocate General, that notice under Section 4 of the Act, was issued on 23rd of January, 1988 by the Revenue Commissioner for Azad Jammu and Kashmir. The Department of Education was in severe need of land for the construction of middle school and play ground in village Mangraj. In this connection, a notice under Section 17(1) of the Act, was issued on 15th of February 1989. Objections were invited from the owners of the land under Sections 9 and 10 of the said,Act. On August 5, and 19, 1989, objections were filed on behalf of the present petitioners. The Collector, on the basis of report made by. tie Chairman of the site selection committee, proceeded for acquisition of the land and vide award dated llth of December, 1989, the land in question was acquired. The learned Additional Advocate General was of the view that it was in the notice of the petitioners as they had filed objections that the land in dispute was needed to be acquired at public expenses for public purpose, as such there was no need to issue them any" fresh or further notice. They should have themselves remained vigilant in the matter. A negligent party cannot claim any indulgence in the case of limitation. 4. The contentions of the learned Counsel for the parties have been taken into consideration and perusal of the file has been made with due care and caution. 5. With the help of the learned Counsel for the parties, I went through the record prepared and maintained by the Collector during the acquisition proceedings which was summoned on the request of the petitioners. 6. The learned Additional Advocate General has rightly conceded that Collector had not issued any notice as postulated under Section 12(2) of the Act. Even on record, the orders which were passed by the Collector, give no indication that he ever made any effort to issue any notice to the land owners, whereas it is an accepted principle of law that when some act is required to be done in a particular manner, then that act should be done accordingly or not at all. As notice under Section 12(2) of the Act was not given by the Collector, therefore, in this limited compass, the only question which now requires to be decided is as to what was the period available to the petitioners in the circumstances for filing I reference under Section 18 of the Act. 7. The question of limitation under the Act, came up for consideration in various authorities. It would be expedient to consider some of them. 8. In A.I.R. 1943 Madras 327 it was observed at page 330 as under:- "Under Section 18 any person interested could make an applicatibn if the person making was present or represented before»the Collector at the time when he made his award, within six weeks from the date of the Collector's award or in other cases, within six weeks of the receipt of the notice from the Collector under S. 12(2), or within six months from the date of the Collector's award, whichever period shall first expire. 9. Again; in P.L.D. 1973 H.N. 124, it was obrved as under:- "The law of limitation requires strict interpretation when it is applied against an admitted existing right of a citizen. Under sub-clause (b) of Section 18(2) the limitation shall be six weeks only if there is proof of "the receipt of notice from the Collector under Section 12, sub-section (2)." There is nothing in sub-Section (b) to indicate that knowledge obtained in any other manner would also be covered by the first part of that clause or could be treated as substitute of the requirement provided therein for a notice under Section 12(2). Had it been the intention of the Legislature in such cases also to fix limitation of six weeks, then the acquisition of knowledge of the award by a party would have been specifically mentioned as another alternative in sub-clause (b) or another sub-Clause would have been added." 10. From the above survey of case law, it is evident that the question of limitation for making reference is a mixed question of law and facts which cannot be decided in isolation only by keeping in view Section 18 of the Act. The proceedings conducted under Section 12 of the Act, by the Collector are to be taken into consideration. Under Land Acquisition Act, three periods of limitation have been provided, namely,-- (/) if the aggrieved party or his recorgnized agent was present at the time of making of award, then reference can be made within six weeks from the date of the said award; (ii) if the aggrieved party was not present either personally or through recognised agent on the day when the award was made, then under sub- Section (2) of Section 12 of the Act, a notice shall be issued to the interested party who may file reference within six weeks of the receipt of the notice; and (Hi) in absence of above mentioned two conditions, the reference can be filed within six months from the date of the award. 11. In the present case, although in strict law, there are sufficient reasons to set aside the entire land acquisition proceedings, but in view of the fact that a school building by the time, might have already been reared on the land, I did not consider it proper to quash the entire proceedings. However, in the circumstances of this case, a true and proper construction of the provisions of Section 18 of the Act will meet the ends of justice. The petit oners were competent to file reference within six months from the date of the award of the Collector in the light of the acts of this case. The petitioners rightly have filed the reference within six months but it was rejected on superficial grounds of being time barred. This was not a correct view to take when the law expressly provided that an owner of the property is entitled to ask the Collector to refer the matter to a Court. The reference, as held earlier, was filed well within the period of limitation. The Collector had failed to issue notice under sub-Section (2) of Section 12 of the Act to the petitioners, whereas notice under Section 12(2) was mandatory in law. In its absence, the action under Section 11 of the Act shall have to be taken afresh so hat a new award be made. This asspect of the case finds support from a case reported in P.L.D. 1970 Lahore 321. At page 329 it was observed as under. -"There is no provision in the Land Acquisition Act for condoning delay in the presentation of an application under Section 18. Section 5 of the Limitation Act has not been made applicable but since Section 4 is applicable, the Collector has no choice when an application is presented to him six months after the making of the award but to dismiss the same as was done in this case. In this view of the matter, the giving of a notice under Section 12 is an imperative provision of law and read with the proviso to Section 18 it becomes obligatory upon the Collector to give such time as would leave enough respite to a person to file an application under Section 18 within a period of six months from the date of the making of the award. If such a notice is not given it would be a non-compliance with an obligatory part of the statute and the result would be that the award given by the Collector would be vitiated and action under Section 11 shall have to be taken afresh so that a new award be made." 12. In view of the above discussion, while accepting this writ petition with costs, I declare the award given by the Collector to be without lawful authority and of no legal effect. The case is remanded to the Collector Land Acquisition Mirpur for proceeding under Section 11 of the Act in accordance with law. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 AJK 54 PLJ 1992 AJK 54 Present: khawaja muhammad saeed, J MUHAMMAD SHAHPAL QADRI and another-Petitioners versus A.K. GOVERNMENT CO-OPERATIVE BANK LTC). and 3 others- Respondents Writ Petition No.23 of 1991, dismissed on 29.3.1992 Azad Jammu & Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- —-S.44--Promotion of respondent No.4 as Deputy Manager of Bank-Challenge to-Whether writ petition is maintainable-Question of--There is no dispute that under A.K. Government Co-operative Bank Limited (Staff) Service Rules, 1984, appointment of officers of said Bank is required to be made by Board- Respondent No.2 has not followed spirit of Rules and procedure laid down in Rules-But petitioners should seek their remedy through representation before Board-Held: Petitioners have wrongly filed this writ petition as Bank is not amenable to writ jurisdiction-Petition dismissed. [Pp.58&59]A,B,C&D PLD 1985 SC (AJK) 119 rel. KJiawaja NoomlAmin, Advocate for Petitioners. Mr. Ghulam Mustafa Mughal, Advocate, assisted by Ch. Muhammad Akhtar, Advocate for Respondents. judgment Through this constitutional petition the petitioners have challenged the vires of the order of respondent No.2 dated 28th of February, 1991, whereby respondent No.4 was formally promoted as Deputy General Manager (Officer Grade-I) in EPS 18 in Azad Kashmir Government Cooperative Bank Limited (hereinafter to be called as Bank). 2. Admitted facts of the case briefly stated are that petitioners vide order dated 18th of July 1985 were directly recruited as Officers Grade II in NPS 17 in the aforesaid Bank, whereas respondent No.4 was also inducted in the Bank on the same day but as Officer Grade III in NPS 16. He was, later on, promoted as Grade II Officer on July I, 1989. On 18th of February 1991, through the impugned order, respondent No.2 formally promoted respondent No.4 as Deputy General Manager in the aforesaid Bank in NPS 18. The petitoners have challenged the validity of this order on the following grounds:- (/) That the promotion of respondent No.4 in B 18 as Deputy General Manager in the Bank was an injustice as he was much junior to the petitoners; (//) That he was not qualified to be appointed as Deputy General Manager, as he had not 2 years service in Grade 17; (Hi) That this appointment was made by the Registrar of the Bank and not by the Board, whereas under rules, all appointments of officers are required to be made by the Board. Therefore, the impugned order is without jurisdiction and bad in law. 3. In written statement filed by the respondents, the fact of promotion of respondent No.4 had not been disputed. However, the respondents have placed on record another order passed by one Syed Iftikhar Hussain in his capacity as Registrar Cooperative Societies, Muzaffarabad whereby respondent No.4 has been promoted as Deputy General Manager Zone 'B' Muzaffarabad in NPS 18 subject to the approval of the Board of Directors. In this view of the matter, the respondents have contended that promotion of respondent No.4 is an rrangement within the department against which the petitioners have got statutory remedy of representation. Without availing the same, they have wrongly invoked the constitutional jurisdiction of this Court. The respondents have pleaded that the Bank is an autonomus body. Its employees, therefore, could not claim status that of a public servant, therefore, writ jurisdiction as contemplated by the Interim Constitution Act of 1974 is not available to them. 4. The learned Counsel for the petitioners impeached the impugned order on the following grounds:- (a) That respondent No.4 being junior to the petitioners was illegally promoted in B 18 in supersession to them; (b) That the petitioners could only be ignored if on the basis of any fault the order of stoppage of their promotion would have been passed against them as a mater of punishment; (c) That respondent No.4 under the AK Govt; Cooperative Bank Limited (Staff) Service Rules of 1984, was legally inelligible and disqualified from being promoted as Deputy General Manager as such the order impugned in this writ petition, giving undue promotion to respondent No.4, is factually untenable and unsupportable; He relied on PLJ 1989 S.C. 13, P.L.J. 1989 Lahore 71(DB) and PLD 1989 Lahore 523; (d) That the impugned order has been passed in- flagrant transgression of Civil Servants Act of 1976 and the Appointment and Conditions of Service Rules, 1977. Moreover, it is violative of fundamental right uaranteed under the Interim Constitution Act, 1974. The learned Counsel relied on cases reported as PLD 1989 SC 75, PLD 1988 Karachi 169, PLJ 1989 Lahore 71, PLD 1989 Lahore 523, PLD 1990 Kar. 186, PLJ 1990 Quetta 36(DB), PLD 1989 Karachi 157 and PLD 1992 Karachi 54. 5. The learned Counsel for the respondents, while controverting the arguments of the learned Counsel for the petitioners argued:- (a) That the petitioners and respondent No.4 are in service of A.K. Government Cooperative Bank Limited which cannot be termed to be person performing functions in connection with the affairs of the State or local authority in terms of Section 44 of the Interim Constitution Act, 1974 and as such this petition is not competent. In this connection they relied on PLD 1953 Lah. 163, PLD 1965 SC (Pak.) 201, PLD 1961 SC 531. PLD 1959 SC 210. PLJ 1992 Karachi 29, 1971 SCMR 569, and 1971 SCMR 566.

•' That "he petitioners have a right of representation before the depinrr-.entaJ authority. Without availing that right they have wrongly okec! the constitutional jurisdiction of this Court; Thic alternatively, it was argued, the order of promotion of respondent No.4 is not final as the same has been passed subject to the confirmation .S the Board, therefore, the petitioners have, wrongly filed the present writ petition against the ad hoc arrangement: In support of this preposition, he has relied on an unreported judgment of the Supreme Court of Azcid Kashmir titled "Mahmoodul Hasan vs. A.K. Logging and I -jf.e considered the respective contentions of the learned Counsel for :rie r-iru;; 3^- r:.i'-e pe:-seci the record of the case carefully. T-e petitioners in this writ petition have challenged the legality of the passed by Syed Iftikhar 'Hussain in his capacity as General iT-i^er of AK Government Cooperative Bank Limited, which reads as under:- reci; respondents have relied on another order passed on 28th of February by Syed Iftikhar Hussain. This order this time was issued in his capacity as i ; :r;r ,:f the Bank in continuation of the previous order. This order is also 8. Unfortunately, the relevant law was not followed. There is no dispute that under the AK Government Cooperative Bank Limited, (Staff) Service Rules, 1984, the appointment of Officers of the said Bank is required to be made by the Board. Any authority of the Bank may, in urgent cases, pass any order of the appointment when other members of the Board due to some other business, are out ol Headquarters. But both the above reflected orders do not show that case of respondent No.4 was dealt as an urgent one. However, through the above A mentioned orders, the charge of the post of Deputy General Manager of the Bank was given to respondent No.4 whereas the qualification laid down for the said post under sub-Rule (2) of Rule 9 of the aforesaid Rules is minimum graduation with 10 years banking experience of which two years must be service in grade 17. The learned counsel for the petitioners was critical on the appointment of respondent No.4 on the ground that he did not fulfil the pre-conditions-as laid down by the Rules whereas the petitioners who were ignored, were fulfilling the qualifications as laid down by the Rules. 9. Latest order passed in favour of respondent No.4 on 28th of February 1991 placed on record by the respondents with written statement shows that the charge of the post of Deputy General Manager of the Bank for the time being, has been entrusted to respondent No.4 subject to the approval of the Board. Even this order as said in early part of this order did not show that this was passed due to some urgency. Respondent No.2 has not followed the spirit of the Rules and procedure laid down in the Rules. Rules framed and procedure laid down must necessarily be followed. If the Rules are not followed or procedure laid down in B the Rules is ignored, then there is no sense as to why Rules are framed. In this context, all the superior Courts have repeatedly held that when ome act is required to be done in a particular manner then that act should be performed in that way alone or not at all. In PLD 1980 Lahore 337, where decision was required to be taken by the Rules in the meeting of the Directors'but it was taken by circulation through signatures, the Court disowned such decision taken through circulation by holding that the same was bad in law because it was violative of Rules made for this purpose. 10. No doubt order of promotion ot respondent No.4 in B-18 is in derogation of established scheme of law of the Bank but at the same time, the petitioners should seek their remedy through representation before the Board. They have wrongly filed the present writ petition as the Bank is not amenable to the writ jurisdiction of this Court. Practically the Bank is controlled by the Board of Directors. Even the Rules which according to the petitioners were infringed were framed by the Board of Directors under bye-law No.17. The Board has reserved Us right of amending, modifying or deleting all or any of the Rules by a majority of two-third members present. Furthermore, the petitioners like other employees of the Bank were inducted in the service of the Bank on the basis of agreement. • 11. The Supreme Court of Azad Kashmir in a case titled "Muhammad Shaft v. Chairman A.K. Logging and Saw Mills Corporation" (PLD 1985 S.C. AJK 119), has discussed almost all authorities which were referred by the learned counsel for :r.e respondents during the course of arguments in this case. After critical survey ,.: in,- cute-law, finally at page 122 the Azad Kashmir Supreme Court observed as The above aspect unfortunately was entirely overlooked by the High C.:-_ri. It is not controverted that the petitioner is an employee of a corporation. He thus cannot claim for himself the status of a "civil servant' and as such the relationship between him and the corporation was to be regulated entirely by law of master and servant and ccnsurjtional safeguards available to the generality of "civil servant" will no: be available to him. Therefore, even if it be assumed for the sake of irzurr.ents that termination of the service of the petitioner was not valid, then his remedy is to sue for damages for wrongful dismissal and not for a declaration by invoking the writ jurisdiction of the High Court." Agaia. it was observed at page 125 as under:- "F:; :he jro'.e-s;ated reasons. I am of the considered view that the writ pctrJo". e%er, it ths grievances of the petitioner are considered ji remedy to be available. He had the remedy to sue [he rflcvar,: au:hor::ies b\ way of damages etc, and he is at liberty to do so £'. en ncv> if he so feels advised." 12. The same view was formed previously by the Supreme Court of Pakistan i~ ~ ;iii reported as 19?3 SCMR 156 that employees of National Bank are not eir.nied :.:• ir/. jk; ine constiiuiional jurisdiction. I find that all other cases referred to b;« i.-; learned co-ubsc! tor the respondents-, Mr. G.M. Mughal and Ch. Mur-^inaiaJ Akhiar. are more or less identical in as much as that the petitioners -a not governed by any statutory rule. 13. Keeping in view the above mentioned authorities it is held that in the absence of proof that any statutory duty is involved or that any legal right is required to be enforced or that the performance of public duty was being claimed a mandamus or an order of mandamus cannot issue consistent with the relevant practice/precedent. 14. In the aofresaid view of the matter, finding no force in this writ petition, the same stands dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 AJK--59 PLJ 1992 AJK--59 Present: Kl-I. MUHAMMAD SAEED, J ASGHAR Bl and 3 others-Appellants versus SETTLEMENT OFFICER, KOTLI, and 2 others-Respondents Civil Appeal No.88 of 1990, accepted on 21.5.1992. Decree— —Adverse possession—Admission by co-sharer of—Decree passed on basis of compromise and payment of Rs.4000/- in favour of respondent No.3- Challenge to-Azam Shah and respondent No.3 have deprived Government of stamp duty-Right of ownership in immovable property could be transferred through modes- recognised by law-Respondent No.3 brought a vague suit without description of property, wherein respondent No.2, only defendant, appeared, admitted claim and recieved Rs.4000/- in Court, at same time-. Decree was void ab-i/»f/0--Respondent No.ljyas sharer to extent of one-fourth • share in suit land and suit for adverse possession could be brought against all co-sharers which was npt done-Held: All proceedings were conducted by respondent No.2 and respondent No.3 agains; recognised norms of law and decree should have been set aside by Court below-Appeai accep:ed. [Pp.62«k63]A.B,Ci:D Raja Javed Akhtar, Advocate for Appellants. C/i. Muhammad Nasim Klian, Advocate for Respondents 2 & 3. order This appeal ls direciej ajzal-.-. :'r.e judgment and decree passed by the learned District Judge Koili d^ec Juh 1!. I'- 0 '-, -hereby he dismissed the first appeal of the appellants. 2. The facts aiving ri>.e nc ihc rrejcrr. c.;-::•:••• err. briefly scaled are that on June I 7 , 1%S. responden; No3 r:e_zn; i s~; a-iai-ist re:sp«c-Di£ai No.2 alleging therein that out of land falling under 'knew.at" Nc.l 'khata numbers 42 aad 44. he purchased land measuring 10 kanals for a sum of Rs.4000/- through oral sale from' respondent No.2 Azam Shah in Kharif 1953 and since then Munir Shah, Respondent No.3 having continued in possession for more than 12 years,- his possession has ripened into ownership by prescription extinguishing the title of derendant, Azam Shah. 3. At the time of presentation of the suit, it transpires that Azam Shah was also present in the trial Court who admitted the claim of Munir Shah as such on the same day, i.e. on June 11, 1968, he received Rs.4000/-,'before the'trial Court, therefore, on the basis of this admission a decree of ownership was allowed in favour of Munir Shah on the basis of adverse possession spreading over 12 years. 4. It is interesting to note here that along with the suit, no revenue record was appended. The trial Court, without taking into consideration the legality of the compromise, granted decree in favour ofMunir Shah. On the basis of this decree, in 'misl-e-Haqiyat' for the year 1970-71, the entries »\vere recorded in favour of Munir Shah. The present .appellants brought a suit in the trial Court on 23rd of April, 1983, whereby they challenged the correctness of 'Misl-e-Haqiyat' and the <•<• rrectness of the compromise decree allowed in favour of Munir Shah on June 17,1968. In the original suit it was contended that possession of this suit land lies with the plaintiff-appellant. However, subsequently, they sought permission to amend their suit through two different applications. Amendemnt was allowed by the trial Court. Therefore, amended suit was filed on 28th of September, 1986. After fulfilling all the requirements of trial the trial Court ultimately vide order dated January 30, 1989 dismissed the suit of the plaintiff-appellants. This judgment and decree was assailed before the learned District Judge Kotli who vide order dated July 10,1990 maintained the finding of the trial Judge. Hence the present appeal. 5. I have heard the learned Counsel for the parties and have very carefully perused the relevant record with the assistance of the learned Counsel. 6. It has been argued by the learned Counsel for the appellants that in the light of the revenue record which was appended with the suit by the plaintiffs, it reveals that Azam Shah alongwilh plaintiff-appellants and proforma respondents who are also entered as proforma defendants in the original suit, was a co-sharer in the suit land to the extent of one-fourth. Therefore, in these circumstances, the suit based on the ground of adverse possession should have been filed against ail the persons who were entered in the revenue record as owners, whereas in the present case, Munir Shah, brought a suit against Azam Shah who obtained Rs.4000/- in the Court of Sub-Judge and entered into compromise with plaintiff, Munir Shah and on the basis of this compromise, Munir Shah, obtained a decree on the same day. This illegal decree was given effect by the revenue staff. In support of his contention, he relied on Ex.PA., P.D. and P.E. He further argued that in the suit of Munir Shah, no survey number was given, which he had purchased from Azam Shah nor he had given any other description of the property in his suit that on what side of the rest of the land, he obtained ossession from Azam Shah in the year 1953 and continued in possession since then till the filing of the suit in 1968. He was therefore, of ihe view that this decree was wrongly given effect by the revenue authorities who on the basis of this decree, recorded the entries in the revenue papers in favour of Munir Shah, decree-holder. 7. As against this, it was argued by the learned Counsel for the respondents that in the suit filed by the plaintiff-appellants on 23rd of April, 1983, it is admitted in para 3 of the plaint that share of Azam Shah in the 'khewat' was more than 10 kanals out of which only 10 kanals of land through compromise, he surrendered in favour of Munir Shah. In this view of the matter, he urged that as Azam Shah out of his share had alienated land measuring 10 kanals in favour of Munir Shah, the plaintiff-appellants, had no cause of action either to challenge the decree or entries made in revenue papers on the basis of such decree. He further emphasized that suit filed oh 23rd of April, 1983 was brought beyond the prescribed period of limitation, as such it was rightly dismissed by the Courts below. 8. I have considered the respective contentions of the learned Counsel for the parties. 9. I am of the view that decree dated June 17, 1968, is a nullity in the eye of law. In fact, Azam Shah and Munir Shah have deprived the Government from stamp duty. Transfer of Property Act and Registrtation Act both were enforced in Azad Jammu and Kashmir from 1949. However, the Registration machinary was provided in 1950. In 1968, the machinary under the Registration Act was available everywhere in Azad Kashmir, therefore, the right of ownership in any immovable properly could have been transferred through modes recognized by law. 10. In the present case Munir Shah brought a vague suit before the trial Court on June 17, 1968, wherein the description of the property was not mentioned. Azam Shah who was arrayed as defendant in the suit appeared at the same time, and received a sum of Rs.4000/- from Munir Shah and admitted his claim. Therefore, on the basis of this compromise the learned Sub-Judge recorded decree in favour of Munir Shah on the same day. As this decree is void ab-initio, there-lore, the question of limitation in the circumstances, does not arise. 11. In the suit of the plaintiff-appellants filed on 23rd of April, 1983, through revenue record ExPA to PC it was proved beyond doubts that Azam Shah, along with the plaintiff-appellants and the proforma respondents was one of the sharers to the extent of one-fourth share in the suit land. If he was in exclusive possession of any part of the suit land, he could hare alienated the same through the mode recognized by law. Even he could have delivered Ibe possession of the specific land in favour of such vendee. But in the present case, he admitted the claim of Munir Shah and thus, helped him in obtaining a decree against the spirit of law. A suit bused on the basis of adverse possession could be brought against all the cosharers whereas without giving the description of the suit land in the suit and even without producing any copy of revenue record, Munir Shah filed a suit against Azam Shah alone and on the basis of his admission obtained compromise decree in his favour. All the proceedings were conducted by Azam Shah and Munir Shah against the recognized norms of law, therefore, this decree should have been set aside by the Courts below. But taking an erroneous view of the matter, the learned Sub-Judge has not only maintained this decree but has also maintained the entries made in the revenue papers on the basis of this decree and this view was wrongly confirmed by the first appellate Court. 12. In view of the above observations, while accepting the appeal of the appellants, the judgments and decrees of the trial Court as well as that of first appellate Court are hereby set aside and it is held that decree obtained by Munir Shah respondent, on June 17, 1968 was a nullity and bad in law, as such is ineffective and inoperative against the rights of the plaintiff-appellants in the suit land. It is further held that the entries made in the record of rights on the basis of this illegal decree, are also of no legal consequence, as such are ineffective and inoperative- against the rights of the plaintiff-appellants. Consequently the appeal succeeds with costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 AJK 62 PLJ 1992 AJK 62 Present: ch. muhammad riaz akhtar, J RAH1M DAD and 3 others-Appellants Versus ABDUL KAREEM and 4 others-Respondents CivJ Appeal No.16 of 1991, dismissed on 24.5.1992 (approved for reporting on 20.7.1992). Limitation .Act 1908 (IX of 1908)-- —S I? read with Article 10 and Right of Prior Purchase Act, Section 29-Pre-eaipdoo—Suit far-Dismissal pf-Challenge to-Whether suit was time-barred- Quesiion of--Sale deed was executed on 5.7.1987 and suit was brought on 112,1989 after about 2 years and 3 months-Point that sale deed was concealed b> defendants, was not agitated in both lower Courts and cannot be allowed to be agitated during arguments-Even otherwise, a registered document being a public document, cannot be concealed-Under Section 18 of Limitation Act, limitation starts from date of knowledge in case of concealment of sale by fraud-Held: Sale deed being registered and its copy being available in office of Sub-Registrar, it cannot be said that defendants by way of fraud, concealed its knowledge from plaintiffs and they cannot avail benefit of Section 18 of LkcKiiion Act-Held further Sale deed having been followed by mutation, penc«ci of iiEtitatwn would start from date of registration under Article 10 of LseutMJeu acl ami suit was clearly time-barred-Appeal dismissed. [Pp.64,65&66]A,B,C,D&E PLD I%3 AJiK 79 and 1981 CLC 293 rel. ftc MsJmmmad Matloob Klian, Advocate for Appellants. Mr. LiisifQt Hiissa'm Mughal, Advocate for Respondents. judgment Tarc»j«fa tiLis appeal the appellants have challenged the validity of the eat aad Jeo-ee of the learned District Judge Kotli dated 31.7.1991, whereby of lie appellants was dismissed by the learned District Judge Kotli. — Tte tads forming the back ground of this appeal are. that the rsspcaaeats S»x2 :o 5 alienated the land measuring 35 kanals and 17 marlas to respciadeat So L Foe appellants plaintiffs pre-empted the sale deed through the •sat. faaod am 2-12.1985'. The defendants contested the suit and raised a preliminary abjeiijLM usk the suit of the appellants is time barred and the learned Sub Judge firisfcsa dac '.arious issues and issue No.4 was pertaining to the limitation. The kansssi Sob Jadgs heard the arguments on this issue and dismissed the suit of the appeiams bease a lime barred one. Feeling aggrieved from this judgment and dicrts of ciae fcaracd Sub Judge, the appellants filed an appeal before the learned Diana Judge Kodi mfcdh tc> met the same fate and was dismissed by the learned Decks Jadee. So tie iastaat appeal has been filed against this judgment and deorae of tibe Jeanred Diari-a Judge Kotli. 3. The learned counsel for the appellants argued that as the land in dispute was already under Ac possessktD of defendants, so it did not come in their notice, thai the land in dispute has been alienated by the defendants No.2 to 5 in favour of defendant No.l. He further contended that the defendants respondents kept all the proceedings of the sak secret from the plaintiffs for depriving, them from invoking their right of prior purchase. The defendants kept the sale deed concealed from the plaintiffs for preventing them from pre-empting the sale. When the plaintiffs came to know about the sale, they immediately filed the suit so the limitation will run from the date of the knowledge of the plaintiffs as prescribed in Section 18 of the Limitation Act. It was next contended by the learned counsel for the appellants that even otherwise, Article 10 was not applicable to the instant case, because in the instant case the land in dispute was already under the possession of defendant respondent No.4 and the mutation to the fact was attested on 16.10.1989, thus according to Section 29 of the Right of Prior Purchase Act the limitation will run from the date of mutation and not from the date of sale deed, so both the lower Courts have wrongly dismissed the suit of the appellants plaintiffs on the point of limitation. 4. On the other hand, the learned counsel for the respondents argued that the judgment and decree of the lower Courts is bas^d on sound and cogent reasoning and there is no question of the application of Section 29 of the Right of Prior Purchase Act because in the instant case, the sale deed was registered and the limitation will run from the date of the registration. He further submitted that no fraud has been committed by the defendants neither they concealed the sale deed, but the sale deed was registered one, hence there was no question of concealing of the saie deed. The suit of the plaintiffs appellants was hopelessly time barred, thus both of the lower Courts have rightly dismissed the suit of the appellants plaintiffs. 5. I have heard the learned counsel for the parties and perused the record of the. case. 6. The persual of the record shows that the sale deed was executed on 5.7.1987 and the suit was brought by the plaintiffs after the span of 2 years and 3 months on 2.12.1989, thus the suit of the appellants was time barred suit. 7. As this contention of the learned counsel for the appellants is concerned, that the sale deed was concealed by the defendants respondents from the appellants plaintiffs for preventing them irom invoking their right of prior purchase carries no substance. As this point is concerned, this point was not agitated by the learned counsel for the appellants in both of the lower Courts. A point which has not been pressed before the lower Courts cannot be agitated during the arguments in the appeal. 8. Even otherwise, the sale deed has nev^r been concealed by the respondents defendants because the sale deed was registered by the Sub Registrar. Any document which contains certificate of registration from Sub Registrar cannot be said to have been concealed by a party because the registration is notice to the General Public at large. The copy of any Registered document can be obtained from the office of the Sub Registrar. 9. Section 18 of the Limitation Act provides that where any person having a right to institute a suit has been kept ignorant from the knowledge of such right through some concealment by way of fraud, then the limitation will run from the date when this fraud firstly came to the knowledge of such person. Now the question arises that whether in the instant case, defendants practised any fraud and by way of that fraud kept the appellants plaintiffs ignorant from the execution of the sale or the sale was concealed by the defendants from the appellants by way of a fraud, nothing like such has been pleaded by the plaintiffs against the defendants. Any open act of a party cannot be said to be a fraudulent act of conccalement and is not covered by Section 18 of the Limitation Act. There must be some-thing done or said, which is directly intended to keep the appellants plaintiffs aloof from the knowledge of thier right to sue or apply. Mere inaction or neglisence of a party to take certain steps which may bring the transaction to the knowledge of the party or mere ingnorance of the plaintiff that certain cause of action has accrued to him would not constitute a fraud committed by the other party. In the instant case, the sale deed was registered as stated above and a copy of sale deed was available in the office of the Sub Registrar because the sale deed was a Public Document and if the appellants plaintiffs despite of this remained ignorant from the execution of sale deed, then it can be the negligence of the plaintiffs but it cannot be said that the defendants by way of fraud kept concealed the knowledge of the sale deed from the plaintiffs. As stated above, the sale deed was registered one and the registration is a notice to the General Public and the copy of the sale deed was available in a Public Office then it was an open act of the defendants and no one can call it the concealment by way of fraud from the plaintiffs, thus the plaintiffs cannot be allowed to avail the benefit of Section 18 of the limitation act for their negligence. As the case referred by the learned counsel for the appellants P.L.D. 1964 Pesh-224 is concerned, that is distinguishable and has no bearing on the facts of the present case. In that case the suit house belonged to one Ganga Bishan who mortgaged it in favour of Abdul Waheed respondent in lieu of Rs. 1700/- for a period of 12 years and the mortgage deed was executed on 26.3.1947 and was registered on 18.4.1948 and the respondent was put in possession of the suit house and on 24.5.1949 Ganga Bishan sold the equity of redemption in favour of Abdul V.'aheed for Rs. 99/- by means of a unregistered sale deed and in that case, it was agitated that there was a fraudulent concealment of this sale in favour of the respondent. In that case, the sale deed was not registered one, thus the house was secretly sold and prior to the sale, the mortgage was created for the purpsoe of concealing the sale whereas, in the instant case, the sale deed is registered one and the copy of the sale deed was available in a Public Office and nothing has been concealed in the present case, so this case is distinguishable and has no bearing on the facts of the present case. 10. As the second contention of the learned Counsel for the appellants is concerned, that article 10 will not apply but Section 29 of the Limitation (?) will apply carries no substance for the following reasons. In the instant case, the sale deed was registered one and wherever, the sale deed is registered then article 10 will come into play. It has been clearly provided in article 10 that where the subject of the sale does not admit of physical possession, the limitation will run from the date of the registration of the instrument of sale. 11. As the learned counsel for the appellants contended that the possession was already with the donee, thus it stands admitted that the sale deed does not admit the physical possession, so it is quite clear that the second portion of Article 10 will apply and the limitation will start from the date of the registration. 12. Article 10 of the Limitation Act postulates, that where the property which! is subject of sale deed, does not admit the physical possession or where on theJE date of sale, the property was akeady under the possession of tenant then! naturally subject matter of the sale will not admit of physical posssession, then one has to see that whether the deed of the sale has been registered or not. If the sale deed is registered then the limitation will be counted from the date of registration and the suit should be within a year from the date of the registration. This view finds support from P.L.D, 1963 AJK 79 and 198J C.L.C. 293. It has been held in the aforesaid reports that where the sale of land has been made by a registered sale deed and followed by a mutation, period of limitation will be counted from the date of registration and not from the date of sanction of mutation. It has been provided in Seciton 29 of the Right of Prior Purchase Act that it will only apply when Article 10 will not be applicable, wherever, the sale deed will be registered one then the Article 10 will apply and where the sale deed will not be a registered one and the sale has been made by some other way than the registered sale deed then Section 29 will apply. In the instant case, as stated above the sale deed was registered one thus there is no question of application of Section 29 of the Right of Prior Purchase Act. The ruling referred by the learned counsel for the appellants P.L.D. 1989 SC AJK 41, is also distinguishable because in that case tot) the sale was not made through a registered instrument thus that case has no bearing on the facts of the present case. The nutshell of the above discussion is that finding no force in this appeal, it is hereby dismissed with costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 AJK 66 PLJ 1992 AJK 66 Present: ABDUL MAJEED MALLICK, C.J. MUHAMMAD ASLAM and 5 others-Petitioners versus MAYOR, MUNICIPAL CORPORATION, MUZAFFARABAD, and 2 others-­ Respondents Writ Petition No. 64 of 1992, partly accepted on 9.7.1992 (') Aggrieved Person- —Business of beef and mutton selling—Agreement with respondent No. 3 giving him monopoly-Challenge to-Whether petitioners were not aggrieved persons and not entitled to invoke constitutional jurisdiction-Question of- Petitioners No. 1, 2, 4 and 5 were not included among persons carrying on business of beef and mutton and they are not covered by term "aggrieved person" as contemplated under Article 44 of Interim Constitution—Held: In presence of Petitioners 3 and 6 who are admittedly in business, petition is entertainable to their extent. [Pp.70&71]C&D (ii) Alternate Remedy- —Business of beef and mutton selling—Agreement with respondent No. 3 giving him monopoly-Challenge to-Whether writ jurisdiction could not be invoked alternate remedy being available to petitioners-Question of- Admittedly no rules or bye-laws have been framed thereby to appoint an appellate authority to redress grievance of aggrieved persons by order passed by a Council or its Chairman under provisions of Local Government Act-­ However. Government which is empowered to control actions of Council under Section 75 of Act, provided forurn for redress of grievance of pcuuoners. but it is yet to be seen as to whether such a forum was efficacious .;>,- r,,;.;--Held: Unless it is satisfied that forum of Government was, in fact, ifTi^cioui. it is not expedient to refuse relief in exercise of writ jurisdiction. [Pp.71&72]E&F liiii Azad Jaminu & Kashmir Interim Constitution, 1974— — Art. 4(S)--Business of beef and mutton selling— Agreement with respondent No. 3 giving him monopoly— Whether agreement offends against fundamental right of freedom of trade, business and occupation-Question of-By virtue of dgreemer.t. repondent No. 3 has entered into shoes of Corporation which is empowered under Local Government Act, 1990, to maintain its slaughter­ house within its territorial jurisdiction— Held: Act of Corporation to grant cocu.ia Tor use of slaughter-house to respondent No. 3, is not hit by rule of moc«.>pot> is comsmpiaied by Article 4(8) of Constitution-Held further: Second aspec: d kr.pLur.ed agreement in giving exclusive monopoly right to supply meet La ck> to respondent No. ? by excluding other meat-vendors, is hit by right of frcs end; sr.«Ji b^ine^-Respondcnts 1 and 2 directed to modify terms oi'a^cxJBfcJrt 4£fflorciJJi£jj.. [P.72]G&H (ivi Azaz }immm & Kjt&kmir Interim Constitution. 1974-- —Art a 1 —Easiness of b:.f inj -Lit-on selling-Aareement with respondent No. ? £?iiawr ain m",o--r"A xi-;r agreement offends against fundamental ndM of IresdoBU ct urahic. t»ijs-ja£ii ^ad occupjE son—Question of—Corporation is e irrasaw: ins a5adfc.irc> leader .\73-a Jammu and Kashmir Local Government Ac:. iiMj. but no ruks. i>e-uws and regulations have been framed—It is safe .;j coocluitk Lhai Municipal Corporation is not carrying out its functions to regulate trade or business within area of its jurisdiction in lawful manner—It is enjoined under proviso (b) to Article 4(8) that trade, commerce or industry has been regulated in lawful manner in interest of free competition therein and not otherwise-Held: Impugned action was not protected by proviso (b) to Article 4(8) referred to above. [Pp.69&70]A&B AIR 1950 SC 163 and AIR 1967 Punjab 32 re/. Mr. Ghulam Mustafa Mughal, Advocate for Petitioners. Mr. Nazir Ahmad Qadri, Advocate for Respondents. judgment The petitioners are resident of Muzaffarabad city. It is claimed that they are beef-vendors by profession. It is alleged that there was a continuous practice of selling the beef in the city, at individual level, in fair competition. Respondents No. 1 and 2 charged Rs. 'lOO/- per cattle head for the use of slaughter-house in Muzaffarabad city. The practice was discontinued as respondent No. 1 and 2 executed an agreement with respondent No. 3 on June 21, 1992, whereby respondent No. 3 was given monopoly in the use of slaughter-house and sale of beef and mutton in the city. This act of the respondents has been assailed on various counts, including violation of fundamental right No. 8, relating to freedom of trade, business and profession. The respondents in their written statement, repudiated the claim of the petitioners and sought dismissal of the petition on the grounds:— (i) Thai the petitioners were not aggrieved persons; («') that the petitioners are estopped by their conduct to assail the impugned order; and (Hi) that an alternate remedy for the redress of the grievance of the petitioners was available under law. 2. The learned Counsel for the petitioners contended that the impugned action of the respondents tantamounts to monopoly which was violative of right of free trade and business. It operated in the shape of a prohibition thereby depriving the petilioners to continue their business in question. Reference was made to AIR 1950 S.C. 163, AIR 1967 Pb. 32. AIR 1938 Patna 473, AIR 1934 Lahore 475 and PLD 1989 Karachi 404 (410). The learned Counsel for the respondents argued that the petitioners were not the beef-vendors as claimed by them. Petitioner No. 5 participated in the auction by giving second highest bid. Thus, by conduct, the petitioners were estopped from assailing the impugned action of the respondents. It was explained that the petitioners committed misconduct by not coming with clean hands in the Court as they suppressed the action of their participation in the bidding. Reference was made to PLD 1980 AJK -5, 1988 C.L.C. 645, PLD 1972 Karachi 119, 1968 S.C, M.R. 1378 and 1988 S.C. M.R. 1996. 3. The proposition controverted in the petition falls under the purview of right of trade, business or profession, as laid down under Article 4(8) of the Azad jammu and Kashmir Interim Constitution. The provisions laid down under the Constitution are in paramateria to the provisions of Article 18 of the Constitution of Islamic Republic of Pakistan. 4. It is postulated that every state-subject duly qualified as prescribed by law in relation to his profession or occupation shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. This right is subject to the restrictions:- (a) regulation of any trade or profession by a licencing system, or (b) regulation of trade, commerce or industry in the interest of free competition therein; or (c) carrying on, by Government or the Council, or by a Corporation controlled by the Government or Council, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons. 5. The condition precedent to exercise the right of freedom in profession, business or trade, therefore, is that such profession, business or trade shall be subject to law enforced thereby. The other restrictions are enunciated in clauses (a), (b) and (c). Under Clauses (a) and (b), the legislature is empowered to regulate trade, business of profession by licensing system or otherwise as it deems sstK purpose and objective of the aforesaid basic right. Clause (c) Government. Council or the Corporation controlled by '-l to cam 7 out any business or trade, to exclusion of other fbt—jmjr the jurisdiction described under clause (c), the provisions ""• 1 jbcwe, though empower the legislature to regulate the trade or business 1 minner. yet it postulates that trade or commerce shall be regualted in a of free competition therein. The provisions are, therefore, nugatory to tit camcspt of monopoly. The provisions permit the monopoly only to the -. Council or a Corporation controlled by them. Tie aocpe of these provisions was construed by late Mr. Justice M. u hss hoot -Constitution of Islamic Republic of Pakistan', at page 138 as:- "Manopaiits aiw competition.-- The provision permits the Governmet or a Gcwernemni controlled corporation to have a monopoly in any trade, business, industry or service, but it does not permit the State to confer any such privilege on a private person or a corporation, as any such measure would amount to an ouster of other citizens from the trade or industry. On the other hand, as would appear from proviso (b), the Government should, where a monopoly exists, regulate the trade or industry in the interests of free competition. The view taken in some case in India that where the State creatss a private monopoly, the Court has to determine whether the restriction thus imposed on the right of others to trade is in the interests of the general public, is not relevant to the interpretation of the present provision. It seems that in Pakistan a private mono'poiy ma\ be ^abilshcd by the grant of exclusive licence, if such tx'HfcS does &:•€ ccaiiia. \»iih any other constitutional provision. In some cstacs rise puNx -ciLfire ma;« require limits of the number of persons who may Cim oo a certain business or of the palces where it may be carried oa. la a w&U-kacwn case, the Supreme Court of the United States upheld i siiiiUe which had granted exclusive franchise to a slaughter house coBfauxy and ine legislature was held clearly to have had the power to idea, in ibe interes of public welfare, a person who should carry on the i. ie uk present case, the Corporation has granted a contract to respondent ?Va. i xe

p«uoLk auction, on account of his highest bidding in the sura of Rs, sCiliilA,; ,-, was a;.c: fr,.m July 1, 1992 till June 30, 1993. The respondent has Bern juiakaniSiid t oui^r.ciy carry on the business of beef-selling as required by CacpiiahiCKik. i,:; mtu tne ^w.^- and demand of cili/.ens of Muzaffarabad city. He ejs to sd "dlBe beif 'S optnir.g different shops in the city, in the light of the prrawsoBs, ,af iaj Jtr^-L^ra. 5> '.irtue of the agreement, the petitioners or any «lio" riiiBBni 1 irifc? s car-r.i.i£ un :he business of beef and mutton, is, thereby dfcartr dfcprwsd of ifes b^-jrjivs. The conditions laid down in the agreement, AereisMT. palonfc ka3 :o the aindasion that the action of the Corporation is in tie skape of lie •nOBopor c t rcis^bk by respondent No. 3, as an individual. Tie C:ffporatUB ts caeTCLSjng its authority under the provisions of Azad •dt kjskniir LocaJ Government Act, 1990. Section 89 of the Act Efeic Lae G^tmnjtent may make rules to carry out the purposes of the Act, Section 90 pertains to framing of bye-laws by the Council, w'nh the approval of the Government. Section 91 provides that the Council may make regulations to regulate the procedure in respect of all or any of the matters mentioned in Schedule-VHI. It is accepted to the learned Counsel for the respondents that by this time, no rules, bye-laws and regulations as required under the Act, have been framed. This suggests that the Corporation is carrying out its business, including the impugned action, without the assistance of its rules, bye-laws and regulations. It is, therefore safe to conclude that the Municipal Corporation is not carrying out its functions to regulate trade or business within the area of its jurisdiction in lawful manner. 10. Apart from the fact that the provisions of the Constitution do not conceive the scope of creation of monopoly in trade and business, yet in order to exercise an authority in the light of Proviso (b). posiualted under Article 4(8) it is enjoined thai the trade, commerce or industry has lo be regualted in lawful manner, in the interest of free competition therein and not otherwise. Thus, the impugned action was not protected even by the proviso referred to above. 11. An identical proposition was raised before the Supreme Court of India, in Rashid Ahmad's case (AIR 1950 S.C. 163). The Municipal Committee of Krishna city in U.P., by virtue of its bye-laws, empowered itself to grant monopoly lo a contractor to deal in wholesale transactions at the place fixed as a market. In the light of the aforesaid bye-law, it granted whole-sale business to the contractor. The action of the Committee was challenged and was set aside in exercise of writ jurisdiction invoked by the petitioner who was carrying out business in vegatables, within the municipal limits in the Town. It was observed that by virtue of bye-law referred to above, the Board became powerless to grant licence to the petitioner to carry on his business within the municipal limits, as it had refused to grant the licence. Thus, the petitioner was completely prohibited from carrying on his business. The relevant observation is reproduced:-- "Hcld, that the prohibition in bye-law 2, in the absence of any provision for issuing licence, became absolute and further the restrictions placed on the petitioner by bye-law 4 were more than reasonable restrictions as are contemplated by Art. 19(6) and, therefore, the bye-laws would be void under Art. 13 (1) of the Constitution." In the present case, so such bye-law has so far been framed by the Municipal Corporation which may empower it to refuse licence lo the individuals to sell beef and mutton in the city and to embark upon creating monopoly in an open auction, as it has been done in the present case. Therefore, the case of the Corporation is on much weaker footing as compared to the aforesaid case. An identical view was held in Malerkotla Municipality's case (AIR 1967 Punjab - 32). 12. Mr. Nazir Ahmed Qadri, the learned Counsel for the respondents raised premliminary objection and invited attention of the Court to the fact that the petitioners were not aggrieved to invoke the jurisdiction of this Court. Reference was made to omission on the part of the petitioners lo furnish the licences for selling beef and meat, as claimed by them in Mu/affarabad city. The contention of the learned Counsel for the respondents partly finds support from the record. It is evident from the record appended with the written statement that Abdul Rashid, petitoiner No. 3, and Muhammad Sadiq, petitioner No. 6, are listed from among ttg valid licences from respondent No. 1. Petitioners No. 1, 2LWBi5''«Ec net iaduded among the persons carrying on the business of beef ; ihe dry. These petitioners are, therefore, not covered by the term as contemplated under Article 44 of the Azad Jammu and Coostkuuon. EL He writ petition was originally moved by Muhammad Aslam and Abdul June 23. 1992. The written statement was filed by the respondents in which the aforesaid objection was taken. The petitioners, their weakness, thereafter brought-forth Abdul Rashid and "Saxfiq when they moved this Court for including them among the aggrieved persons. Therefore, it was at the late stage when oners So, 3 and 6 who in fact were dealing in meat as their business, were pMKsJ antanc tine petitioners Be that as it may, the fact remains that in presence a -safflui RjaaMB jsnd Muhammad Sadiq. who are admittedly in the business, in iasa,, toe peiiaoc U entenainable to the extent of these persons. suaKsi far:ber ikac the petitioners participated in the public woe :T Miitr cue duct they were estopped from assailing ie m Jack' : rscocd that Maqsud, petitioner No. 5, openly itas was the second highest bid in securing the . uk palm ipMiiiiii hi the name and style of 'Maqsud and Co', s d aflMHblloi linat lie icoordL Hi was not elaborated as to whether he other s .or iMrt-hoiders of the Company of 'Maqsud & Co' or is sasU-j^-Sc ;c the extent of Maqsud, petitioner No. 5. H»ar Aimoi Ca»irL line karncd Counsel for the respondents, inf Ae Cc«n to Scoioos. 75 and 86 of th'e Act and contended vested witii a right to seek remedy before the of the learaed Counsel, in presence of adequate and h, ifcr writ jaai&dktion could not be invoked. jol Scnaaa 75 rebtes to control over the activities of the Council. It van if in vie of ihe Government, anything done or intended to be » or go behalf of a Council, is not in conformity with law or is against imetcssl the Government may, by order:-- . autsfc "Jbe proceedings: aiape:d ±s execution of any resolution or order; ptoiiihE use doi.ng or anything proposed to be done; and neqairj tie Ccuncil to take such action as directed by it. aft;« pro«.ikkd forum of appeal, to an aggrieved person, against the osier fussed by a Council or its Chairman in pursuance of the Act or the rules or iwt-wms. befare the concerned authority, as prescribed by law. fc b iccepicJ that no rules or bye-laws have been framed thereby to apfooK jb appdtbte authority to redress the grievances of the aggrieved persons, a» iae crtbr passodi by a Council or its Chairman, under the provisions of the Act ar 3e Iwc^ However, the (jovernment which is empowered to control the a Lie Council under ihe provisions of Section 75, provided the forum for rsis :if jTi^'.^nce o! the petitioners. But it is yet to be seen as to whether such a forum was efficacious or not. Unless it is statisficd that the forum of the Government was, in fact, efficacious, in such situation, it was not expedient to refuse the desired relief lo the petitioners, in exercise of writ jurisdiction. There is no force in the objection. It is, therefore, repelled. 18. It was rightly pointed out that the petitioners very well knew that respondent No. 3 acquired interest by virtue of an agreement, to sell meat in Muzaffarabad city. The interest was acquired by giving bid in the open public auction. Maqsud and Co. also participated in the aculion by giving second highest bid. Thus, it was in the knowledge of the petitioners that the impugned agreement was already complete in all respects. This fact was suppressed in the unamended petition. Thus, petitioners No. 1 and 2 were guilty of suppression of this material act. They were obviously shown not lo have come in the Court with clean hands. The authority cited by the learned Counsel for the respondents was applicable to that extent. 19. The aforesaid analysis leads to the conclusion that respondent No. 3 has entered into the shoes of Corporation which is empowered by the provisions of Ihe Act to maintain its slaughter-house within its territorial jurisdiction. Thus, the G|act of the Corporation lo grant contract for the use of slaughter-house to respondent No. 3, is not hit by the rule of monopoly. Respondent No. 3 has to exercise his authority in Ihe manner and fashion as the Corporation acted in the past. 20. The second aspect of the impugned agreement is that respondent No. 3 is given right of monopoly to exclusively supply the meat in the city, by excluding the other meat-vendors. This part of the transaction is hit by the right of free trade and business, tl does not advance the cause of free competition and healthy trade. It is, therefore, directed that respondents No. 1 and 2 shall modify the terms of the agreement to enable such citizens who carried Ihe meat business in Muzaffarabad city under a valid licence, so that they were not prohibiled from carrying out their business. The agreement is, therefore, modifiable in the aforesaid maner. The desired writ is, therefore, issued accordingly. The petition is disposed of in the aforesaid manner. No order as to costs. (MBC) (Approved for reporting) Petition partly accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. (Lahore) 1 (DB) Present: muhammad mumr khan and rashid Aziz khan, JJ NAEEM-Appellant versus THE STATE--Respondent Criminal Appeal No. 420 of 1990 (also CrlA. Nos. 399, 654, 703, 380, 304,897, 789, 349 and 751 of 1990) accepted on 16.7.1991. Jurisdiction-- —Offence under Section 13 of Arms Ordinance, 1965-Recovery of Klashnikovs/sten-guns—Conviction for—Challenge to—Ordinances by which arms such as a "Klashnikov, a G-III Rifle or any type of assault rifle" were added in paragraph "C" of Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975, were not laid before appropriate Legislature after four months of their publication in Gazette of Pakistan, and as such, stood repealed as provided in Article 189 of Constitution--On dates of occurrence, i.e. dates of recovery of sten-guns /klashniksovs from appellants, neither Ordinances were alive nor proceedings under same were pending-Held: Trial of appellants for keeping unlicensed arms such as sten-gun and klashnikov which were introduced through Ordinances of 1988, was corum-non-judice- Appeals accepted. [Pp.2&3]A,B&C PLJ 1991 Cr.C. ( Lahore ) 187 (DB) ref. Nemo for Appellant. Nemo for State. Date of hearing: 16.7.1991. judgment Muhammad Munir Khan, J.--These ten Criminal Appeals No.420 of 1990, 399 of 1990, 654 of 1990, 703 of 1990, 380 of 1990, 304 of 1990, 897 of 1990, 789 of 1990, 349 of 1990 and 751 of 1990 arise from the judgment of learned Presiding Officers, Special Courts (Suppression of Terrorist Activities), Gujranwala, Lahore, Sargodha, Faisalabad, whereby they convicted the appellants namely Naeem on 21.6.1990, Abdul Razzaq on 23.5.1990, Kali Masih on 24.9.1990, Qaisar on 15.10.1990, Sajawal Din on 29.5.1990, Muhammad Mushtaq on 21.5.1990, Mazhar on 18.12.1990, Zakir Hussain on 19.11.1990, Babar Hussain on 5.6.1990 and Dildar on 18.11.1990 under Section 13 of the Arms Ordinance, 1965 on the charge of keeping with them unlicensed klashnikovs/Stenguns and bullets on 23.7.1989, 25.12.1988, 5.7.1987, 6.8.1989, 3.8.1989, 26.7.1989, 14.12.1989, 28.12.1989, 10.6.1988 and 8.10.1990, respectively, and sentenced them to various terms of imprisonment and different amounts of fine. Since common question of law relating to the jurisdiction of the Special Courts to try and convict the appellants on the charge of keeping unlicensed Klashnikov and Sten-guns has arisen in these appeals, so we propose to dispose of them through this single judgment. 2. After hearing the learned counsel for the parties, we feel persuaded to set-aside the convictions and sentences of the appellants for lack of jurisdiction of the Special Courts to try them for the offence's with which they were charged, so we need not set out the facts in detail and enter into the merits of the cases. 3. The learned counsel appearing for the appellants relied on cases Muhammad Asif v. Tfie Slate (1989 P.Cr.LJ. 1310), Muhammad Aslam alia s Sooba v. Tlie State [(1990 P.Cr.LJ. 704 (D.B)] and Bakhtiar Ahmad v. The State (PLJ 1991 Crl. Cases (Lahore) 187(D.B) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1988 (Ordinance XVII of 1988) and Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as a "Klashnikov", a "G-HI Rifle" or any other type of assault rifle", were added in paragraph "C" of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and as such the trial of the appellants by the Special Courts was without jurisdiction. The learned counsel appearing for the State in these appeals are not in a position to controvert them. [ 4. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid ordinances and also Ordinance No.X of 1989, Ordinance No.l of 1990, Ordinance No.XI of 1990 and Act V of 1990, published in the Gazette of Pakistan on 7.11.1988, 3.9.1989, 17.3.1990, 3.10.1990 and 16.6.1990 respectively and also the case law cited by the learned counsel for the appellants at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellants. Admittedly, Ordinance No.XVII of 1988 and Ordinance No.XXV of 1988 were not laid before the appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1990 (Ordinance I of 1990) was again promulgated on 17.3.1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinances could not remain intact. Finally, Suppression of Terrorist Activities (Special Courts) (Amendment) Act 1990 (Act No.V of 1990) was promulgated on 16.6.1990, in which the amendment introduced under Ordinance No.l of 1990 was kept intact. Be that as it may. the fact remains that on the dates of the occurrence, i.e. the dates of the recovery of the sten-gun/Klashnikov from the appellants, neither the Ordinance XVI. XVII and XXV were alive nor proceedings under these Ordinances, which by that time were deemed to have been replaced, were pending B adjudication against the appellants. This being the position, the trial of the appellants on the charges of keeping unlicensed Arms such as sten-gun and Klashnikov, which were introduced through Ordinances of 1988 was corwn-nonjiuiice. 5. Pursuant to the above discussion, all these appeals are accepted and the convictions and sentences of the appellants are set-aside. The trial Courts shall return the Challans against the appellants to the S.H.O. concerned for presentation before the Illaqa Magistrates/Assistant Commissioners concerned for trial, in accordance with law. The appellants who have been allowed bail by this Court shall remain on bail during their fresh trial. The appellants who are in jail will move applications for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 3 Present: ABDUL MAJEED MALLICK, CJ GHULAM MUSTAFA-Petitioner versus MUHAMMAD ISMAIL and 2 others-Respondents Criminal Revision No.9 of 1991, accepted on 28.9.1991. Criminal Procedure Code, 1898 (V of 1898)— —-S.133 read with Sections 137, 138 & 139-A--Passage for public use- Obstruction of—Conditional order passed by Magistrate recalled—Challenge to—Section 139-A postulates procedure prior to an inquiry into merits of case under Sections 137 and 138-When existence of public right is denied, Magistrate has to inquire into matter of denial-Respondents were to be questioned before proceeding under Sections 137 and 138-Held: Respondents or their counsel having not been questioned about existence of public right in passage in dispute, there was a clear departure from procedure as laid down under Section 139-A, and order was illegal—Petition accepted and case remanded. [Pp.4,5&6]A,B&C AIR 1930 Lahore 1046, AIR 1937 Lahore 676, AIR 1954 Orissa 210 and PLD 1958 Kar. 513 rel. Mir Kfialid Mahmood, Advocate for Petitioner. Ch.Muhammad Taj, Advocate for Respondents. Date of hearing: 28.9.1991. order Ghulam Mustafa, petitioner, moved S.D.M. Mirpur under Section 133, Criminal Procedure Code, and alleged that the passage used by public was obstucted by Muhammad Ismail, Muhammad Latif and Sabir, as such they were liable for causing public nuisance. The application was moved on January 26,1991 when, after making a preliminary inquiry, a conditional order was passed by the Magistrate. The respondents filed objections wherein they denied the allegation made in the application. The Magistrate proceeded under Section 137, Cr.P.C, and ordered the petitioner to lead his evidence. Ultimately, it was agreed, on May 23, that the Magistrate should visit the spot and dispose of the matter in the text of the actual position of the passage in dispute. Thus, on making spot inspection, on May 25, the Magistrate recalled the conditional order by directing the petitioner to seek redress of removal of obstruction in a civil Court. This order is assailed in the present petition. 2. The sole point addressed by the learned Counsel for the petitioner is that the Magistrate failed to comply with the provisions of Section 139-A, Criminal Procedure Code, as such the order was bad in law. Ch. Muhammad Taj, the learned Counsel for the opposite side, supported the impugned order. It was emphasised that the petitioner failed to prove the existence of public right in the passage in question, as such the application was rightly disposed of in the manner of the impugned order. 3. Section 139-A, Criminal Procedure Code, postulates procedur-e prior to an inquiry into the merits of the case, as envisaged under Sections 137 and 138. The object of the provision is to eliminate an elaborate inquiry regarding the rights of the parties. This is so, as when the existence of public right is denied, the Magistrate has to inquire into the matter of denial of public right and in case there is reliable evidence in support of such denial, the proceedings have to be stayed. Conversely, if there is no reliable evidence in support of the denial, the Magistrate has to embark upon an elaborate inquiry with regard to the rights of the parties. Thus, the legislature thought it fit to make the provisions mandatory. In the circumstances, it is enjoined upon the Magistrate, who made the conditional order, for the purpose of preventing obstruction, nuisance or danger to public in the use of any way, river, channel or place, to question the party against whom complaint is made and ask him as to whether he denied the existence of public right in respect of the subject of dispute. The respondents were to be questioned before proceeding under Section 137 or 138. The Concensus of judicial verdict provides ample support to the aforesaid view. The import of the provisions of Section 139-A, Cr.P.C., was construed in Hamid All's case, A.I.R. 1930 Lahore 1046, as; "In proceedings under Section 133 in respect of alleged public right of way, if the respondent denies the existence of the alleged right, subsequent proceedings under Section 137 are otherwise, ignoring the provisions of Section 139-A and without first coming to a finding under Section 139-A whether there is any reliable evidence in support of respondent's denial, are ultra vires." In Ata Mohammad's case, A.I.R. 1937 Lahore 676, Mr. Justice Blacker observed: "Where in a case a conditional order is passed against a person for obstruction of the public way under Section 133, Criminal Procedure Code, and in an enquiry such person denies the public right of way, the Magistrate must first take proceedings under Section 139-A, Cr.P.C." In Akulananda's case, A.I.R. 1954 Orissa 210, the learned Judge arrived at the conclusion: "The provisions of Section 139-A are mandatory and when the party appears in pursuance of order under Section 133 the Magistrate is bound under Section 139-A to ask the party whether he denies the existence of any public right of way and if there is such a denial the Magistrate should hold an enquiry and take evidence. If instead of ascertaining whether the party denies the existence of any public right the Magistrate hears the evidence of both parties and passes a final order under Section 137, the order cannot be supported." In Abdul Latifs case, P.L.D. 1958 Karachi 513, it was observed: "The learned Magistrate has also acted illegally in not complying with the provisions of Section 139-A, Cr.P.C. That section, inter alia, provides that the Magistrate shall on the appearance before him of the person against whom the order (under Section 133, Cr.P.C.) was made, question him as to whether he denied the existence of any public right in respect of... or place, and, if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. The learned Magistrate has not questioned the applicant as to whether he denied the existence of any public right in respect of the place where the mills are stayed. Conversely, if there is no reliable evidence in support of the denial, the Magistrate has to embark upon an elaborate inquiry with regard to the rights of the parties. Thus, the legislature thought it fit to make the provisions mandatory. In the circumstances, it is enjoined upon the Magistrate, who made the conditional order, for the purpose of preventing obstruction, nuisance or danger to public in the use of any way, river, channel or place, to question the party against whom complaint is made and ask him as to whether he denied the existence of public right in respect of the subject of dispute. The respondents were to be questioned before proceeding under Section 137 or 138. The Concensus of judicial %'erdict provides ample support to the aforesaid view. The import of the provisions of Section 139-A, Cr.P.C., was construed in Hamid All's case, A.I.R. 1930 Lahore 1046, as; "In proceedings under Section 133 in respect of alleged public right of way, if the respondent denies the existence of the alleged right, subsequent proceedings under Section 137 are otherwise, ignoring the provisions of Section 139-A and without first coming to a finding under Section 139-A whether there is any reliable evidence in support of respondent's denial, are ultra vires." In Ata Mohammad's case, A.I.R. 1937 Lahore 676, Mr. Justice Blacker observed: "Where in a case a conditional order is passed against a person for obstruction of the public way under Section 133, Criminal Procedure Code, and in an enquiry such person denies the public right of way, the Magistrate must first take proceedings under Section 139-A, Cr.P.C." In Akulananda's case, A.I.R. 1954 Orissa 210, the learned Judge arrived at the conclusion: "The provisions of Section 139-A are mandatory and when the party appears in pursuance of order under Section 133 the Magistrate is bound under Section 139-A to ask the party whether he denies the existence of any public right of way and if there is such a denial the Magistrate should hold an enquiry and take evidence. If instead of ascertaining whether the party denies the existence of any public right the Magistrate hears the evidence of both parties and passes a final order under Section 137, the order cannot be supported." In Abdul Latifs case, P.L.D. 1958 Karachi 513, it was observed: "The learned Magistrate has also acted illegally in not complying with the provisions of Section 139-A, Cr.P.C. That section, inter alia, provides that the Magistrate shall on the appearance before him of the person against whom the order (under Section 133, Cr.P.C.) was made, question him as to whether he denied the existence of any public right in respect of... or place, and, if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. The learned Magistrate has not questioned the applicant as to whether he denied the existence of any public right in respect of the place where the mills a situated, and since he had to proceed under Section 137, Cr.P.C. only after making inquiry as contemplated by the provisions of Section 139-A (1) of the Cr.P.C., the action taken by the Magistrate becomes illegal." 4. In present case, as noticed earlier, the respondents or their Counsel were not questioned about the existence of public right in the passage in dispute, so there was a clear departure, on the part of the Magistrate, from the procedure laid down under Section 139-A, Cr.P.C. The order was obviously illegal. However, it is noticed that in their objections, the respondents repudiated the allegations made by the petitioner in his application. Even if the aforesaid repudiation is taken as denial of existence of public right, even then it was essential for the Magistrate to hold an inquiry into the denial of public right and to give a conclusive finding on that score. The Magistrate, instead of holding an inquiry into the denial of public right and asking the respondents to provide proof in support of denial, thought it fit to inquire into'the merits of the case by visiting the spot. The proceedings are, therefore, vitiated. The order of the Magistrate is set aside and the case is remanded to the Magistrate for fresh proceedings from the stage he departed from the mandatory procedure envisaged by Section 139-A, Criminal Procedure Code. The petition is disposed of accordingly. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. (AJK) 6 Present: ABDUL MAJEED MALLICK, CJ GULZAR KHAN-Petitioner versus THE STATE-Respondent Criminal Reference No.48 of 1991, deceded on 3.10.1991. Bail- —Offence under Section 17(3) of Offences against property (Enforcement of Hudood) Ordinance, 1979-Bail-Prayer for-Difference of opinion between members of District Criminal Court-Reference to High Court-Rule applicable to grant or refusal of bail in a non-bailable offence, is covered by provisions of Section 497 of Cr.P.C-When there is no evidence constituting reasonable grounds to connect accused with offence, it is permissible to release him on bail—Alleged incident of looting innocent passengers of bus 1 took place on main motor road-Culprits of such an incident are not entitled to a lenient view-Case of co-accused who was released n bail, stands on a different footing-Held: Evidence accompanied by other surrounding circumstances, prima facie supports finding of District Qazi and petitioner is not eligible to be released on bail-Bail petition dismissed. [P.8]A,B&C Ch.Muhammad Taj, Advocate for Petitioner. Ch.Muhainmad Azam Klian, Additional A.G. for State. Date of hearing: 3.10.1991.' order The reference has been made by the District Criminal Court, Kotli, on account of difference of opinion between its members. It arises out of an application for release of the accused-petitioner on bail. The petitioner was arrested on the charge of Haraabah as contemplated under Section 17 (3) of Offences against Property (Enforcement of Hadood) Ordinance, read with Sections 341 and 34 of the Penal Code. The application was moved on August 29, 1991 and it was disposed of in the manner of the present reference on September 17, 1991. The learned Sessions Judge, a member of the District Criminal Court, allowed bail while the learned District Qazi, the other member declined to agree. 2. The alleged incident took place on August 9, 1991 at midnight (12.30) on Mirpur-Kotli road at Chowk Shaheedi in a jungle. According to the prosecution version, bus No. 8879/AJKB of Rakhial Transport Service carrying 27 passengers was going to Kotli. Aftab Ahmad was its driver. It was raining when it reached a place called Narian near Maholi, where a Suzuki was found blocking the road. 6-7 persons, with covered faces, directed the driver to stop the bus. The passengers were informed that the bus was stopped by the dacoits, as such they should take care of themselves. One of the dacoits, with covered face and carrying a Kalashnikov approached the bus and directed the driver and Muhammad Ishaque, conductor, along with 4-5 passengers occupying the second seat, to deboard the bus. A sum of Rs. 1600/- was extorted from the driver, in addition to Rs. 5,000/- from Muhammad Ishaque, conductor, by two culprits who carried revolvers. Cash was snatched from other passengers also. The total amount looted by the culprits was Rs. 10.450/-. The police force of police Post Nar arrived on the scene and recorded the statement of Aftab Ahmad, driver. The vehicle used by the culprits in the alleged offence was identified as a whitish cream colour Suzuki with a black plastic cover, embroided in flowers but without a number plate. 3. The police followed the direction of the culprits and on their reaching Darman Darliah Gujran, they found the vehicle deserted and took it in their custody. An empty of 7.62 Kalashnikov was recovered from the site of incident in presence of Aftab Ahmad and Muhammad Ishaque. Muhammad Rashid, one of the culprits, was apprehended and the alleged looted amount in the sum of Rs. 1000/- was recovered from him. The present petitioner was arrested on August 21. He remained with the police for interrogation till August 31, whereafter he was sent to the judicial lock-up. The alleged looted amount in the sum of Rs. 1000/- was recovered from the petitioner. 4. Ch. Muhammad Taj, the learned Counsel for defence supported the finding of the learned Sessions Judge and contended that the accused was not named in the first information report as he was not identified at the time of the incident. The allegation of his absconsion was frivolous as he remained present in the village till the time of his arrest. The alleged identification parade, it was argued, due to delay, was of no legal value. The learned Additional Advocate General controverted the aforesaid points and opposed the release of the accused. It was emphasised that there was sufficient evidence which connected the accused with the alleged offence. Reference was made to the recovery of the vehicle used in the incident and identification of the accused by Muhammad Zaffar, a school 5. The rule applicable to grant or refusal of bail in case of non-bailable ffences, is covered by the provisions of Section 497, Criminal Procedure Code. In case of non-bailable offence, when there is no evidence constituting reasonable rounds to connect the accused with the alleged offence, it is permissible to elease the accused on bail. Conversely, when there exist reasonable grounds to onnect the accused with a non-bailable offence, the accused cannot claim bail as matter of right. Restrictions on bail are enforceable in case of an offence punishable with sentence of death or life imprisonment. In present case, the details of the ncident, prima facie, bring the whole matter within the purview of Section 17 (3) of Offences against Property (Enforcement of Hadood) Ordinance. The alleged incident took place on main motor road. The victims of the incident were innocent passengers of the bus. The manner of the alleged incident, prima fade, brings it within the purview of a heinous offence. It obviously threatens the road safety and journey through Azad Kashmir. Therefore, the culprits of such an incident are not entitled to a lenient view in the matter of their release on bail. 6. It is correct that Muhammad Rashid, one of the culprits apprehended by the police, was released on bail. The only evidence against that accused was the recovery of a part of the alleged looted cash. The case of the accused-petitioner stands on a different footing. The investigating agency recovered the vehicle used in the incident. It was admitted at the bar by the learned defence Counsel that the vehicle belonged to the petitioner. It tallied and resembled the description of the vehicle allegedly used by the culprits in the incident. At the time of its recovery, it was without a number plate. The recovery of the vehicle in the condition described by the investigating agency was not disputed by the defence. It was, thus, for the defence to explain as to how and why the vehicle was used in the alleged incident, without the knowledge and involvement of the accused. 7. Muhammad Zaffar, a school teacher of Nar, stated that he helped his father in running his shop. His father was Petrolium and oil vendor in Nar bazar. On the night of the incident, the witness was present in the shop at 11.30 p.m., when the accused purchased 10 litre petrol and was seen driving the vehicle in question. He was accompanied by another person. Amjad Hussain, Constable No. 264, made an identical statement immediately after the incident. This witness knew the accused personally and saw him driving the vehicle and passing through Nar bazar at 11.30 p.m. The aforesaid evidence, accompanied by other surrounding ircumstances, prima facie, support the finding of the learned District Qazi. Therefore, in presence of evidence listed above, the accused is not found eligible to release n bail. The finding of the learned District Qazi is, therefore, affirmed. The bail application is rejected. The reference is answered accordingly. (MBC) (Approved for reporting) Bail refused.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Lahore ) 9 (DB) Present: MUHAMMAD MUNIR KHAN AND RASHID AZIZ KHAN, JJ MUHAMMAD SAGHIR-Appellant versus THE STATE-Respondent Jurisdiction— —Klashnikov, magzirie etc. —Recovery of—Conviction for—Challenge tb~ Ordinances by which arms such as a "klashnikov, a G-III Rifle or any type of assault rifle" ere added in paragraph "C" of Schedule to suppression of Terrorist Activities (Special Courts) Act, 1975, were not laid before appropriate Legislature and as such, tood repealed as provided in Article 189 of Constitution-On date of recovery of klashnikov etc. from appellant, neither Ordinances were alive nor proceedings under ame were pending—Held: Trial of appellant on charge of keeping unlicensed Klashnikov etc. was corum-nonjudice- Appeal accepted. [Pp.lO&ll]A,B&C PLJ 1991 Cr.C ( Lahore ) 187 (DB) ref. Mr.M.D.Tahir, Advocate for Appellant. Mr^.H.Masood, Advocate for State. Date of hearing: 29.7.1991. judgment Muhammad Munir Khan, J.-This Criminal appeal arises from the judgment of learned Presiding Officer Special Court (Suppression of Terrorists Activities) Gujranwala, whereby he on 30.6.1990 convicted Muhammad Saghir appellant under Section 13 of the Arms Ordinance, 1965 and sentenced him to 7 years R.I. and a fine of Rs.10,000/-, in default thereof one year R.I. 2. The charge against the appellant was of keeping unlicensed Klashnikov Ex.Pl, magzine Ex.P2,15 bullets Ex.P3/l-15 and 45 live cartridges Ex.P8/l-45 on 13.2.1989. He denied the charge and claimed to be tried. 3. To prove its case, prosecution produced 3 witnesses namely Muhammad Razzaq P.W.I, Muhammad Arif, S.I. P.W.2 and Muhammad Yousaf, ASI, P.W.3. P.W.2 and P.W.3 stated that the Klashnikdv, bullets and cartridges were recovered from the appellant on 13.2.1989 for which he could not produce the license. 4. When examined under Section 342 Cr.P.C. the appellant denied the recovery of Kalashnikov and bullets, etc. He produced Khalid Pervez D.W.I in defence. 5. Believing the prosecution case and disbelieving the defence, the trial Court has convicted and sentenced him as stated above. 6. After hearing the learned counsel for the parties, we feel persuaded to set-aside the conviction and sentence of the appellant for lack of jurisdiction of the Special Court to try him for the offences with which he was charged, so we need not set out the facts in detail and enter into the merits of the case. 7. Learned counsel appearing for the appellant relied on cases Muhammad Asif v. The State (1989 P.Cr.LJ. 1310), Muhammad Aslam alias Sooba v. The State (1990 P.Cr.LJ. 704 (D.B) and Bakhtiar Ahmad v. Tlie State (PLJ 1991 Cr. Cases (Lahore) 187 (D.B.) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as "a Klashnikov", a "G-III rifle or any other type of assault rifle", were added in paragraph "C" of the Schedule to th Suppression of Terrorist Activities (Special Courts) Act 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellant and, as such, the trial of the appellant by the Special Court was without jurisdiction. The learned counsel appearing for the State in this appeal is not in a position to controvert him. 8. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance No.X of 1989, Ordinance No'.l of 1990, Ordinance XI of 1990 and Act of 1990, Published in the Gazette of Pakistan on 7.11.1988, 3.9.1989, 17.3.1990, 30.10.1990 and 16.6.1990 respectively and also the case law cited by the learned counsel for the appellant at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellant. Admittedly, Ordinance No.XVII of 1988 and Ordinance No.XXV of 1988 were not laid before the appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months as provided in Article 189 of the Constitution of Islamic Republic of Pakistan 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance 1990 (Ordinance I of 1990) was again promulgated on 17.3.1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinances could not re ain intact. Finally Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 (Act No.V of 1990) was promulgated on 16.6.1990, in which the amendment introduced under Ordinance No.l of 1990 was kept intact. Be that as it may, the fact remains that on the date of the occurrence, i.e. the date of the recovery of the sten-gun/klashnikov from the appellant, neither the Ordinance XVI, XVII and XXV were alive nor proceedings under these B Ordinances which by that time were deemed to have been replaced were pending adjudication against the appellant. This being the position, the trial of the appellant on the charge of keeping unlicensed Arms such as Sten-gun and Klashnikov, which were introduced through Ordinance 1988 was Corum-non- Judice. 5. Pursuant to the above discussion, the appeal is accepted and the conviction and sentence of the appellant is set-aside. The trial Court shall return the Challan against the appellant to the S.H.O. concerned for presentation before the Illaqa Magistrate/Assistant Commissioner concerned for trial in accordance with law. The appellant who has been allowed bail by this Court shall remain on bail during his fresh trial. The appellant who is in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C (Lahore) 11 Present: IJAZNISAR, J KHALID MUMTAZ-Petitioner versus HAMID ALI KHAN—Respondent Criminal Original No.52 of 1989, dismissed on 10.7.1991. ' Contempt of Courts Act, 1976 (LXIV of 1976)-- —-S.3-Criminal litigation between parties-Agreement in-Non-compliance of~ Whether case for contempt of court is made out-Question of~A perusal of compromise ndicates that it pertains to dispute of a civil nature—Settlement (agreement) was neither a part of proceedings of criminal appeal nor was arrived at with intervention of High Court-An undertaking, violation of which amounts to contempt of court must constitute a promise to court—Settlement injhis case does not amount to a romise to court—Held: No case of contempt ot court is made out-Petition dismissed. [Pp.l2&13]A,B,C&D Halsbury's Laws of England Vol.VII Para 51 rel. Mr.Riaz Kiani, Advocate for Petitioner. Ch.Muhammad Tufail Basra, Advocate for Respondent. Date of hearing: 25.5.1991. judgment This petition under Section 3 of the Contempt of Courts Act, 1976 arises out of the following facts: On 4.4.1981 Mr.Hamid Ali Khan respondent executed an agreement to sell a portion of House No.8-Friends Colony. Samanabad, Lahore in favour of Khalid Mumtaz petitioner. For some reasons it could not be acted upon which resulted in estrangement of relations between the parties and Mrs. Khalida Mumtaz wife of the petitioner got a case registered against Hamid Ali Khan respondent and others under Sections 148, 307, 380, 457/149 P.P.C. which culminated in his conviction and he was sentenced to various terms of imprisonment. Challenging his conviction and sentence Hamid Ali Khan etc. filed an appeal in the High Court, while Mrs. Khalida Mumtaz filed a revision for the enhancement of the sentence. At the time of the final hearing of the above matters the parties arrived at a compromise and placed on record a writing Exh.CW-1/1. By virtue of this compromise the earlier agreement to sell dated 4.4.1981 was rectified by the parties and Hamid Ali Khan agreed to execute sale deed in favour of Khalid Mumtaz on payment of the remaining sale price by him. They also undertook to withdraw cases pending against each other in different courts. The revision petition for the enhancement of sentence was not pressed and was accordingly dismissed. The appeal of Hamid Ali Khan and others against their conviction was, however, accepted on merits and they were acquitted of the charges. In the contempt application Khalid Mumtaz petitioner alleged that though he had taken all the necessary steps for the performance of the agreement dated 23.4.1989, Hamid Ali Khan respondent defied the undertaking given by him to the court and thereby committed contempt of this court. Hamid Ali Khan respondent contested the application. He admitted the execution of agreement dated 23.4.1989 but stated that it was not an undertaking to the court and as such did not amount to contempt of court. He further maintained that no order in terms of Order XXXIX Rules 1 & 2 C.P.C. had been passed of which he could be said to have committed any violation.The facts regarding the execution of agreement dated 4.4.1981, conviction of Hamid Ali Khan and others on criminal charges and the compromise dated 23.4.1989 are riot disputed between the parties. The document comprising the terms of compromise arrived at between the parties on 23.4.1989 is Exh.CW-1/1. Not only the agreement dated 4.4.1981 was rectified by the parties but the method of its performance was also settled by them. A perusal of the compromise Exh.CW-1/1 indicates that it pertains to the dispute of a civil nature. The parties were striving on certain rights and liabilities arising out of their mutual transactions. The law has not only laid down special provisions but also specific procedure for the enforcement of such a cause. The a~ agreement in question equires not only the determination of respective rights and - obligations of the parties but also involves various legal issues such as limitation,valuation for stamp duty and ourt fee, the executability or otherwise of the terms of agreement/settlement on legal or equitable premises etc. These and other allied issues can be ecided nly in civil proceedings by a competent court after detailed enquiry. Even otherwise the settlement was neither a part of the proceedings of the BJ criminal appeal nor was arrived at with the intervention of this court. The fact that the acquittal of Hamid Ali Khan and others was based on merits is sufficient to show that the compromise was not in direct relation to the proceedings of criminal appeal pending before this court. As such the document dated 23.4.1989, though made in court, cannot be termed as an undertaking given to the court. An undertaking the violation of which amounts to contempt of court must constitute a promise to the Court. The statement of the law as to undertakings that appears in Para-51 of Halsbury's "Laws of England" Vol.VII is, "the breach of an undertaking given to the court by a person or corporation, pending proceedings, on the faith of which the court sanctions a particular course of action or inaction, is misconduct amounting to contempt". In the present case the settlement does not amount to a promise to the court. The court had not sanctioned a particular course of action or inaction, nor was any order passed under Order XXXIX Rule 1 & 2 C.P.C. It the above circumstances no case of contempt of court is made out. Consequently the petition moved by Khalid Mumtaz is dismissed and the notice issued to Hamid Ali Khan is discharged. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 13 Present: MUHAMMAD MUNIR KHAN, J MUKHTAR AHMAD-Petitioner versus THE STATE-Respondent Criminal Misc.No.2624/B of 1991, accepted on. 3.8.1991. Bail- —Murder-Offence of~Bail~Prayer for~There is no direct evidence of commission of murder against petitioner, main evidence being extra-judicial confession allegedly made before witnesses, wherein he stated that deceased had attempted to commit sodomy with him, so he killed him with Sofa-Held: It can be said that there are easonable grounds to believe that petitioner has not committed murder and there is also a possibility of plea of self-defence raised by him before police immediately fter his arrest and also told by him to witnesses of extra-judicial confession, being true-Bail allowed. [P.14]A&B Ch.Muhammad Hussain Chhachhar, Advocate for Petitioner. Date of hearing: 3.8.1991. order This is an application for the grant of bail to Mukhtar Ahmad petitioner in a case under Section 302 PPC registered at Police Station Manga Mandi vide FIR No.115/91 dated 29.4.1991. The prosecution case is that the petitioner caused the death of Bashir Ahmad on the night between 28/29-4-1991 by giving him injuries with Sola. 2. The learned counsel for the petitioner submits that there is no direct evidence against the petitioner; that during the investigation, the police has collected extra judicial confession allegedly made before Jamal Din, Sain Gulab, Basharat Hussain and Amir Ali Khan on 29.4.1991 and that the circumstantial evidence collected by the police does not exclude the hypothesis of his innocence. The learned counsel for the State has opposed the bail petition. 3. I have considered the submissions made by the learned counsel with care. I find that there is no direct evidence of the commission of murder against the petitioner; that 'the main evidence against the petitioner is of extra judicial confession allegedly made by him before the witnesses; that in his extra judicial confession, the petitioner stated before the four witnesses that since Bashir Ahmad deceased attempted to commit sodomy with him, so he killed him b inflicting injuries with Sola. Muhammad Akbar ASI, after inspecting the police file, states that immediately after his arrest, the petitioner had taken the plea of self defence to the effect that the deceased had attempted to commit sodomy upon him, so he killed him. This being the position, it can be said that there are reasonable grounds within the meanings of Section 497 Cr.P.C. to believe that the petitioner has not committed the murder and there is also a possibility of the plea of self defence raised by him before the police immediately after his arrest and also told by him to the witnesses of extra judicial confession being true. 4. Pursuant to the above discussion, I feel that a case for the grant of bail to the petitioner has been made out, so he will be released on bail on his furnishing bail bond in the sum of Rs.20 ,000 /- with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Lahore . (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 14 Present: MUHAMMAD MUNIR KHAN, J ASHIQ HUSSAIN SHAH-Appellant versus THE STATE-Respondent Criminal Appeal No.678 of 1990 (also Cr A.Nos. 680, 471, 460, 363, 528 and 679 of 1990) accepted on 14.7.1991, Arms Ordinance, 1965 (W.P.Ord. XX of 1965)-- —S.13—Unlicensed sten-gun/klashnikov and bullets—Recovery of—Conviction for-Challenge to-Ordinances of 1988 admittedly were not laid before appropriate Legislature after four months of their publication in Gazette ofPakistan, and, as such, stood repealed as provided in Article 189 of Constitution-On dates of recovery f ten-gun/klashnikov from appellants, neither Ordinances were alive nor proceedings under same were pending-­ Held: Trial of appellants on charges of keeping nlicensed arms were corumnon-;u<#ce-Appeals accepted. [P.16]A,B&C PU 1991 Cr.C( Lahore ) 187 (DB) rel. Syed Nadeem Saqlain, Advocate for Appellant. Mr.Lai Din, Advocate for State. Date of hearing: 14.7.1991. judgment These seven Criminal Appeals No.678 of 1990, 680 of 1990, 471 of 1990, 460 of 1990, 363 of 1990, 528 of 1990 and 679 of 1990 arise from the judgment of Presiding Officers, Special Courts (Suppression of Terrorist Activities) Gujranwala, Sargodha, Lahore and Faisalabad, wherby they convicted the appellants namely Ashiq Hussain Shah on 29.7.1990, Muhammad Riaz on 19.5.1990, Ahmad Sher on 11.7.1990, Muhammad Amil on 25.7.1990, Khan Muhammad on 19.5.1990, Bashir Ahmad alias Nazir Ahmad on 16.8.1990 and Nasir Ahmad on 19.6.1990 under Section 13 of the Arms Ordinance, 1965, on the charge of keeping with them unlicensed Sten-gun/Klashnikov and bullets on 21.12.1989. 31.5.1989, 7.4.1989, 25.10.1989, 9.2.1990, 4.7.1987 and 16.12. 1988, respectively, and sentenced them to various terms of imprisonment and different amount of fine. Since common question of law relating to the jurisdiction of the Special Courts to try and convict the appellants on the charge of keeping unlicensed Kalashnikov and Sten-gun has arisen in these appeals, so we propose to dispose of them, through this single judgment. 2. After hearing the learned counsel for the parties, we feal persuaded to set-aside the conviction and sentences of the appellants for lack of jurisdiction of the Special Courts to try them for the offences with which they were charged, so we need not set out the facts in detail and enter into the merits of the case. 3. The learned counsel appearing for the appellants relied on cases Muhammad Asif v. The State (1989 P.Cr.LJ. 1310), Muhammad Aslam alias Sooba v. TJie State (1990 P.Cr.LJ. 704 (D.B) and Bakhtiar Ahmad v. The State (PLJ 1991 Crl. Cases (Lahore) 187 (D.B) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1988 (Ordinance XVII of 1988) and Suppression of Terorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as a "Kalshnikov", a "G-III Rifle" or any other type of assault rifle," were added in paragraph "C" of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and as such the trial of the appellants by the Special Courts was without jurisdiction. The learned counsel appearing for the State in these appeals are not in a position to controvert them. 4. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance No.X of 1989, Ordinance No.l of 1990, Ordinance No.XI of 1990 and Act V of 1990, published in the Gazette of Pakistan on 7.11.1988, 3.9.1989, 17.3.1990, 3.10.1990 and 16.6.1990 respectively and also the case law cited by the learned counsel for the appellants at the time of hearing of the case. We feel ersuaded to agree with the learned counsel for the appellants. Admittedly Ordinance No.XVlI of 1988 and Ordinance No.XXV of 1988 were not laid before he appropriate Legislature after four months of their publication in the Gazette | of Pakistan and, as such, stood repealed after the period of four months as j provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, j Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1990 (Ordinance I of 1990) was again promulgated on 17.3.1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinance could not remain intact. Finally, Suppression of Terrorist Activities (Special Courts) (Amendment) Act 1990 (Act No.V of 1990) was promulgated on 16.6.1990, in which the amendment introduced under Ordinance No.l of 1990 was kept intact. Be that as it may, the fact remains that on the dates of the occurrence, i.e. the dates of the recovery of the sten-gun/kalshnikov from the appellants, neither the Ordinance XVI, XVII and XXV were alive nor proceedings under these Ordinances, which by that time were deemed to have been replaced were pending B adjudication against the appellants. This being the position, the trial of the appellants on the charges of keeping unlicensed Arms such as sten-gun and klashnikov, which were introduced through Ordinances of 1988 was corum-nonjudice. 5. Pursuant to the above discussion, all these appeals are accepted and the convictions and sentences of the appellants are set-aside. The trial Courts shall return the Challans against the appellants to the S.H.O. concerned for presentation before the Illaqa Magistrates/Assistant Commissioners concerned for trial in accordance with law. The appellants who have been allowed bail by this Court shall remain on bail during their fresh trial. The appellants who are in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised. (MBC) (Approved for reporting) Appeals

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 17 Present: abdul majid tiwana, J ALLAH DITTA-Appellant versus THE STATE-Respondent Pakistan Penal Code, 1860 (XLV of 860)- —-S.161--Illegal gratification-Receipt of~Conviction for-Challenge to~ Contention that complainant did not own any land in village and that marcation was to be made by Girdawar and not by appellant—It is common nowledge that application for demarcation of land is made to ehsildar or Naib Tehsildar who marks it to Girdawar of Circle and latter invariably associates Revenue Patwari as record and other paraphernalia as chain, flags etc. are in his custody~In fact, Patwari is is real figure in demarcation proceedings and he is in bargaining position-Held: There is no substance in contention that demarcation was to be carried out by Girdawar and appellant had nothing to do with it. [P.26JG Pakistan Penal Code, 1860 (XLV of 1860)— —S.161 read with Constitution of Pakistan, 1973, Article 2-A and Enforcement of Shariah Act, 1991, Sections 2 & 4-Illegal gratification-Receipt of~ Conviction for--Challenge to—Contention that Islamic Law never accepted existence of a decoy witness and complainant being a decoy witness, his testimony cannot be made basis for appellant's convietion-Under Article 2-A of Constitution of Pakistan, 1973, read with Sections 2 and 4 of Enforcement of Shariah Act, 1991, High Court can examine true status of a decoy witness-­ Held: Any person who makes some efforts against monster of bribe, should not be dubbed as a decoy witness when method of laying trap to catch a bribe receiver is legally permissible in view of peculiar nature of crime necessitating special measures to tackle it-Held further: If some one, against heavy odds, plucks courage against any corrupt, official and moves official machinery against him to vindicate his own rights which also entails common good indirectly, he should not be maligned as a decoy witness, (Pf 20.22,23&24] A,B,D&E PLJ 1989 FSC 39 distinguished. NLR 1988 SD 117 and NLR 1988 SC 188 rel. (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S.161-Illegal gratification-Receipt of-Conviction for-Challenge to~ Contention that since Magistrate heading raid party, did not over-hear conversation between complainant and appellant, there was inherent defect creating doubt-Held: In this case, it was not necessary for Magistrate to over-hear conversation at time tainted money was changing hands because receipt of money by appellant from complainant, was an admitted fact, giving rise o two versions and their plausibility or otherwise which is to be judged by court, is a decisive factor—Appeal dismissed. [P.26&27JH&J (iv) Pakistan Penal Code, 1860 (XLV of 1860)- —S.161—Illegal gratification—Receipt -of—Conviction for—Challenge to—Had there been any enmity between complainant and appellant emanating from murder case, there could be no possibility of their being on speaking terms and having dealings inter-se—li complainant owed money to Lambardar of his village, why he should not have paid same to him directly instead of through appellant who was his alleged enemy-Held: Defence version that tainted money as given by complainant to appellant for payment to Lambardar, is unfounded and a mere concoction and prosecution version was decidely more plausible. ' [P.25JF (v) Words and Phrases- —Phrase "decoy witness"-Meaning of-Phrase "decoy witness" has nowhere been defmed-Held: A decoy witness means a witness who is set up by some agency to lure or entice another person to commit a crime with a view to involve him in that crime by participating in that unlawful transaction in such a manner that they almost become partners therein and after commission of offence, he gets him caught up and then becomes a prosecution witness to secure is conviction. [F.22JC MrAsif Saeed Kliosa, Advocate for Appellant. Mr.Bahauddin, Advocate for State. Dates of hearing: 12.5.1991 and 25.9.1991. judgment Allah Ditta appellant, who at the relevant time was Revenue Patwari of village Pir Ashab Daggar in District Bhakkar, was tried by the learned Special Judge, Anti-Corruption, Sargodha, on the charge of receiving a bribe of Rs.300/-, in connection with his official duty, from Muhammad Afzal complainant. On the conclusion of trial, vide his judgment, dated 1.6.1987, he was convicted under Section 161 PPC and sentenced to two months SI and a fine of Rs.3,000/- or in default to further undergo 1 \ months S.I. and the tainted money was directed to be returned to the complainant. 2. The prosecution case was that Muhammad Afzal complainant, in order to get a joint piece of land situated in the area of said village demarcated, made the application (Exh.PA.) to the Tehsildar, Bhkkar. He marked it to the Girdawar Circle, who, in order to carry out demarcation was to associate Allah Ditta Revenue Patwari, the appellant herein, with the demarcation proceedings. The complainant contacted the appellant for the demarcation and the latter demanded bribe. The complainant allegedly paid him a sum of Rs.500/- but the latter was not satisfied. On the repetition of demand for more bribe by the appellant, the complainant promised to pay a sum of Rs.300/- more but he also thought of reporting the matter to the Anti-Corruption Department. 3. Eventually on 5.6.1986 at 9 a.m Muhammad Afzal complainant reported the matter to Inspector Said Amir (PW. 3) of Anti-corruption Department, who recorded his statement (Exh.PB). On the basis of this statement he registered a case against the appellant under Section 161 PPC read with Section 5 (2) of the Prevention of Corruption Act, 1947. Then he referred the complainant to the Additional Deputy Commissioner (G) who 'deputed Malik Abdul Rashid, Magistrate 1st Class, Bhakkar, for further proceedings. He recorded the statement of the complainant, marked the currency notes of Rs. 300/- upplied by him, and halked out the programme for the raid by making him a decoy witness for passing the tainted money to the appellant. On the same day he fixed the time and place and Organized a raid party accordingly. 4. The Patwarkhana of the appellant, during those days, was located on the upper storey of the Chishti Hotel in Bhakkar City. In accordance with the agreed programme the complainant went up to the Patwarkhana, gave the agreed signal and the raid party headed by the Magistrate, which was waiting in the vicinity of the hotel, went upstairs and the Magistrate disclosed his identity. Under his order Inspector Said Amir. Circle Officer, searched Allah Ditta appellant and recovered from his possession the tainted currency notes. The appellant was taken into custody and after necessary investigation was sent up for trial to the court of learned Special Judge, Anti-corruption, Sargodha . 5. On the commencement of trial the appellant was charged under section 161 P.P.C and, on the denial of allegations contained therein, the rosecution led evidence by producing as many as six witnesses. To be a little more precise, Muhammad Afzal comlainant appearing as PW. 1 narrated the whole story from start to finish as referred to above. Constable Muhammad Afzal proved the recording of formal FIR on the basis of complaint (Exh.PE) and registration of the case. He was also member of the raid party and witnessed the recovery of the tainted currency notes from the appellant. He testified accordingly. Inspector Said Amir, Circle Officer of Anti-corruption Establishment, Bhakkar, as PW. 3 narrated his role in the case from the recording of the complaint till the investigation of the case. Malik Abdul Rashid Magistrate (PW. 4) gave the details of the receipt of the complaint, the organization of the raid party and of the raid proceedings. Inspector Mehr Khan PW. 5 had partly investigated this case and described his role as such. Allah Ditta arar, who at the relevant time was Tehsildar Bhakkar, deposed about the receipt of application (Exh.PA) for the demarcation of the land and his having marked the same to the Girdawar for demarcation. 6. The appellant, in his statement recorded under section 342 Cr.P.C, stated that Muhammad Afzal complainant had given him Rs. 300/-on the day of raid, with the remarks that this money was due from him (complainant) as debt to Ghulam Ali Lamberdar and others and he had received the same from the complainant for the purpose of delivering it to Ghulam Ali Lamberdar. He also alleged his false implication on account of enmity with the complainant. He produced Ghulam Ali Lamberdar (DW. 1) Muhammad Amin (DW. 2) and Muhammad Khadim (DW. 3) in his defence who supported his version. 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. The learned counsel for the appellant with reference to "Muhammad Iqbal alias Bala vs. The State" (PLJ 1989 FSC 39), an authority of the ederal Shariat Court, contended that Islamic law never accepted the existence of a decoy witness, as Mohammad Afzal complainant in this case was, and his testimony could not be made a basis for appellant's conviction because he (complainant) was almost a partner of the appellant in the crime as he had enticed or lured him to commit the offence if the same was proved to have been so committed. 9. The cited case was under the Prohibition (Enforcement of Hadd) Order, 1979, wherein a raid party consisting of Police and Excise officials had eputed an Excise Constable to purchase from the accused some quantity of heroin as a fake purchaser. He had accordingly purchased the same from him by ing him Rs. 30/-and brought it back to S.I.Qamar Zaman who had provided him the marked currency notes for purchasing it. Then the raid party raided the accused and recovered from his possession 250 grams of heroin besides some money, including the marked currency notes. He was prosecuted on these allegations and was convicted and sentenced under articles 3 and 4 of the said Order. On appeal where his conviction under article 4 for his having been found in possession of 250 grams of heroin was upheld, his conviction under article 3 for selling the heroin to the fake purchaser was set aside by the Federal Shariat Court. While disapproving the practice of procuring evidence against the accused by setting up a fake purchaser by the prosecuting agency by using their own man and money, it was observed as under:- "It is highly desirable that we should, as far as possible, try to eliminate an unethical or unworthy practice for procuring evidence against the accused. We can hardly lay hand on a single case, in Islamic history where punishment was awarded to the offender on the testimony of decoy witness or fake purchaser. On the contrary Islamic jurisprudence has introduced a revoluntary concept of, -^y^r//' to ensure a clean trial. A decoy witness or fake purchaser is a self-condemned liar. How his version can inspire confidence when tested on the touchstone o Secondly, prosecuting agency is a medium between State and the offender to secure justice in a case by marshalling all true evidence before the Qazi or the Court. When by using its own men as fake purchasers, the prosecuting agency itself renounc.es the role of an impartial investigating agency and adopts the role of an interested party pitched against the accused with the set object of securing conviction, the whole exercise becomes vitiated and open to question. We, therefore, cannot encourage the practice of a prosecuting agency sending its own man as a fake purchaser and then booking up the person as a seller of the narcotics." 10. In coming to this conclusion the learned Judges not only placed reliance on two authorities of foreign jurisdiction, one of Indian origin reported as AIR 1952 SC 332, and the other of British origin cited as (1947) 2 All England Reports 569, but they were also pleased to consider the principle of, -^r^ of Islamic law of evidence. They observed that Excise Constable, being a decoy witness or a bogus purchaser, his version could not inspire confidence when tested on its touchstone. No doubt, the august court laid down an important rule on a question of wider application but it may be pointed out, with respect, that the principle of purgation of witnesses ( •j?^ l '? J /-' ), as it appears from the Huddod Laws promulgated in 1979, is relevant only to the cases of Hadd and it has nothing to do with cases of Tazir and the case under their consideration was that of Tazir. 11. The complainant in this case, in order to get his land demarcated, had, on demand by the appellant, who figured matrially in the demarcation roceedings to be carried out by his senior, the Girdawar Circle, paid him Rs. 500/- as bribe and when the latter demanded Rs. 300/-more, he reported the matter to the Anti- Corruption Department which, under the supervision of a local Magistrate, laid a trap and got him caught red-handed while accepting illegal gratification from him. He was then cited as one of the prosecution witnesses. He deposed against him as such and the latter was convicted. 12. Thus the cited case is distinguishable from the one in hand inasmuch as in the former the Police-cum-Excise party itself had organised the raid after setting up a member of their staff as a bogus purchaser by providing him even the tainted money, while in the latter case, the complainant, being pestered by the appellant, himself went to the Anti-Corruption Department, lodged the complaint, requested them for its redress, supplied the tainted money of Rs. 300/-himself and then played the role assigned to him during the raid and recovery proceedings. So the role and status of Excise Constable in the precedent case was quite different from that of the complainant in this case and the latter can, by no stretch of imagination, be termed as a decoy witness, particularly when his role and conduct be judged hi the light of 'Shariah' which is now the supreme law of the land under the recently enacted Enforcement of Shariah Act, 1991, despite some of its apparent infirmities in the form of certain vague and exclusionary provisions aiming at saving the present political and economic system which is being perpetuated by a particular class to safeguard its own vested interest in violation of the basic concept of 'Shariah' embodied in God's explicit command in the Holy Quran:- Here I come across the question of jurisdiction and before proceeding further to examine the status of a ecoy itness in the light of Shariah, I would like to briefly dilate upon this aspect of the matter. 13. Under Article 203-G of the Constitution of 1973, the Federal Shariat Court has exclusive jurisdiction in certain matters and under Article 203-GG its decisions are binding on all courts, including the High Courts. So apparently the said decision of the Federal Shariat Court has a binding force so far as this court is concerned. But with the subsequent addition of Article 2-A to the Constitution and the recent enactment of the Enforcement of Shariah Act, 1991, the position seems to have radically changed. These provisions, particularly those of Article 2- A, have enlarged the jurisdiction of the High Court in matters relating to Islam to such an extent that in certain fields, where the jurisdiction of even Federal Shariat Court stands ousted, that of the High Court stands restored and enlarged. For instance, under Article 203-D read with Article 203-B (c) the Federal Shariat Court has no jurisdiction to examine the vires of Muslim personal law but under Article 2-A the High Court as held in Mirza Qamar Raza vs. Mst. Tahira Begum, etc. (PLJ 1988 Kar. 355) has the jurisdiction even to examine the vires of this law and it has declared section 7 of Muslim Family Laws Ordinance, 1961, as un- Islamic. The Federal Shariat Court in its ruling reported as Muhammad Sarwar etc. vs. The State (NLR 1988 SD 188) has specifically accepted the competency of the High Court in this field and relying on the aforesaid authority of Karachi High Court, has reiterated that section 7 ibid is ultra vires. I am, therefore, of the view B that under Article 2-A read with section 2 and 4 of the Enforcement of Shariah Act, 1991, this court can also examine the true status of a decoy witness in the light of Islamic Law or Shariah as a court of competent jurisdiction. 15. Now I proceed to examine, purely in the light of Shariah, the supreme law: whether Muhammad Afzal complainant in this case was a decoy witness? 16. The phrase 'decoy witness', has no where been defined. These are two separate words and in legal parlance this phrase is commonly used. The word 'decoy", as per Corpus Juris Secundum, means to allure into a net, ensnore, entice, entrap, to lead into danger by artifice. This term is used to denote a person employed by law enforcing agencies to obtain evidence upon which criminal prosecution is based. A decoy witness, therefore, means a witness who is set up by some agency to lure or entice another person to commit a crime with a view to involve him in that crime by participating in that unlawful transaction in such a manner that they almost become partners therein and after the commission of the unlawful act he gets him caught up and then becomes a prosecution witness to secure his conviction. 17. To my mind, the real test to judge: as to whether a person is a decoy witness or not, is his intention or ultimate aim. If his intention or ultimate aim is to get an innocent person entrapped, humiliated and convicted for some of his personal ends emanating from some ulterior motives such as to wreak his own from taking bribe, can, for no earthly reason, be termed as bribe giver ( (f) ) or partner in crime, merely by complaining to, and co-operating with, the official agency in trapping the bribe receiver because it is not his intention or ultimate aim to give him bribe, rather, his aim is to discourage or prevent him from indulging in this malpractice. If he pays or agrees to pay any part of the bribe, as in this case, he does so under 'Iztrar' or compulsion and is xecusable. Therefore, any person, who at any level makes some efforts against this formidable monster, should not be dubbed as a decoy witness, particularly when the method of laying trap to catch a bribe receiver is legally permissible in view of the peculiar nature of the crime, necessitating special measures to tackle it. To discourage corrupt State functionaries, especially at the higher level, who at public expense have become so fabulously rich that they are virtually rolling in wealth, such like measures need to be encouraged. It is a pitty that no serious effort has been made by any organ of State to squarely deal with this crime which has sucked the vitality of this nation. Trap-laying is one of the legally recognised methods of catching a bribe-receiver red-handed but it is made use of only against the petty officials like clerks, peons, constables and Patwaris (though the last one, so far his authority and mischief is concerned, is not petty), who generally bargain and receive the bribe personally, often for themselves and some time also for their seniors. The 'big fish', whether they are from politicians or bureaucracy (civil and military both), are not touched as their devices are more sophisticated and foolproof besides being horrifying and terrifying. For them there seems to be no law, no agency or organisation to catch hold of them and no court to try them. In fact, since the British days till now a particular class, rather, a few privileged families of feudal lords and business magnates, by exploiting the .poor masses with fascinating slogans, have hereditarily been the repositary of all political and regal powers and prowess. To save their self interest they have neither made or enacted any effective anti-corruption law, nor they have earnestly enforced the existing laws on the subject. To cap it all, whenever the occasion has amen to apply, enforce and interpret anti-corruption laws in the cases of often petty .officials, the same have often not been applied, enforced and interpreted in their true spirit and perspective. One can say without any fear of contradiction that special rules of evidence enacted in these laws, placing the onus, in certain events, on the accused to prove their innocence, have never been given effect on the basis of abstract principles which those statutory rules specifically sought to exclude. The result of the interplay of all these half­ hearted measures is now before us and we all are at bay, looking helplessly at the malody as incurable. 21. In a dismal situation like the one depicted above, if some one against heavy odds plucks courage against any corrupt official and moves official machinery against him to vindicate his own rights, which also entails common good indirectly, he should not be maligned as a decoy witness. 22. There is yet another aspect of the matter, perhaps more important than the ordinary transactions of bribe. We ad know that a host of intelligence agencies work for the defence and security of the State and to perform their duty internally as also externally they employ various methods and devices, including decoy witnesses. If we rule that the whole.process is un-Islamic, which in fact is not as this system has been in vogue eversince the advent of Islam for the larger interest of the State as a part of statecraft, then the entire system shall stand paralysed. We would not be able to punish the enemy agents, infiltraters, saboteurs and terrorists. So on the theory that "welfare of the people is the supreme law 1 we cannot condemn those who are working for their safety and security, as decoy witnesses when they entqr the witness-box to support a just cause. 23. Now I take up the next contention of the learned counsel for the appellant. After comparing the two versions of the incident, one pressed into service by the prosecution and the other put forth by the defence, he contended that the latter was more plausible than the former but even if there was any ifirmity therein, preponderance was to be given to the latter on the principle of benefit of doubt. He submitted that there was also an element of old animosity between the parties emanating from a murder case and in fact it was in that inimical background that the complainant got the appellant falsely implicated in this case. In this connection he referred to the cross-examination of the complainant. His second leg of argument was that in fact the complainant did not - own any land in the khata to be demarcated and the application made by him was only a ruse to involve the appellant in this case. 24. To my mind, there is no substance in the'above contentions of the learned counsel for the appellant. Had there been any enmity between the complainant and the appellant emanating from the murder case of a near relation of the former and its aftermaths still existed, there could be no possibility of thenbeing on speaking terms with each other and having dealings interse. In that event there could be no question of Lambardar's asking the complainant to give the money due from him to the appellant from whom he would receive or recover in due course and the complainant's all the way going from the village to the Patwar Kharia of the appellant at Bhakhar for that purpose and entrusting the money to his enemy for passing the same on to the Lambardar. If the complainant owed the money to the Lambardar of his village or of the adjoining village, why he should not have paid the same to him directly instead of through an intermediary, ho figured no where in that transaction, rather, he was his alleged enemy? The complainant by admitting a suggestion seems to have given a concession to the appellant in cross-examination from which the latter cannot be allowed to take any benefit of. The defence version was obviously unfounded and the defence evidence a mere concoction, prosecution version was decidedly more plausible. 25. The other argument of the appellant's counsel was equally fallacious. If the complainant did not own any land in the village or in any khata, there was no question of his going to the revenue authorities for its demarcation. He actually went there with an application Ex.PA which was duly entertained by the Tehsildar and admittedly marked to the Girdawar for demarcation. This fact by itself shows that the complainant wanted to get his land demarcated for whatever purpose he liked and his move in that respect was genuine. It is a matter of common knowledge .for all those who have rural background and having dealings with the revenue authorities on account of their owning some agricultural land, that an application for demarcation of the land made to the concerned revenue officer, Tehsildar or Niab Tehsildar incharge of the area, is marked to concerned Girdawar Circle for carrying out demarcation in the presence of the parties. The Girdawar Circle invariably associates the Revenue Patwari concerned with the demarcation proceedings as the record and other paraphernalia such as chain ( "—r-^' ), flags etc. are in the custody of the latter. In fact in the demarcation proceedings he is the central figure with whom the applicant has to come into contact hi this matter more than any one else in the revenue heirarchy. It is, therefore, the Revenue Patwari who is to chalk out the programme for the demarcation in consultation with the Girdawar Circle and he is to issue and serve notices on the parties and is to be present at the time of demarcation. Because of his pivotal position it is he who is in a bargaining position and actually strikes the deal and receives the money for himself and his highups i.e Girdawar Circle and some time for the revenue officer as well. In our set up, who does not know that he is the 'provider of the lien'. Therefore, whatever the appellant was doing was in line with the well established practice and there is no substance in the contention of the learned counsel for the appellant that the demarcation was to be carried out by the Girdawar Circle and the appellant, as a Revenue Patwari, had nothing to do with it. .26. As a last resort an effort was made by the learned counsel for the appellant to argue that it was necessary for the Magistrate heading the raid party to have over-heard the conversation between the complainant and the appellant but since he did not or could not do so, it was an inherent defect in the proceedings, creative of a doubt. He quoted a few precedents. There is no substance in this contention either. In my opinion, in trap cases it is fatuous to require or expect a Magistrate, who is also a judicial officer of considerable status and performing an onerous duty to help a person for a just cause, as discussed above, to conceal himself ignobly somewhere near the person to be raided for over-hearing the conversation between him and the complainant. Such a conduct is certainly below human dignity, much less for an officer of his status. This is not the requirement of the enacted law on the subject; nor it can be a rule of prudence; nor in the nature of the crime, which is highly secretive, this course is practicable; nor the bribe receiver and the bribe-giver, particularly the fomer, are expected to describe the money changing hands as bribe or &J&J . The former can receive the money even without uttering a single word because he can do so even by gestures of hands, nodding his head etc. In that situation what the Magistrate would be over-hearing? However, if in routine he happens to over­ hear the conversation, it is well and good, otherwise it cannot be made a condition precedent for a successful raid, nor failure to over-hear the conversation can entail any sort of doubt to be availed of by the accused. In this case, which was on different footing, it was even otherwise not necessary for,the Magistrate to over­ hear conversation between the appellant and the complainant at the time the tainted money was changing hands because the receipt of money by the former from the latter was an admitted fact, giving rise to two versions and their plausibility or otherwise, which is to be judged by this court, is a decisive factor. 27. In view of the above, there is no substance in the appeal and the same is r dismissed. Since the appellant is on bail, a copy of this judgment should be sent to J the learned District Magistrate, Bhakkar, who shall immediately cause his arrest | and send him to the prison for serving out his remaining sentence. As he hasjJ already been awarded ridiculously low sentence of imprisonment, including the one in lieu of fine, by the learned trial Judge, which only due to lapse of sufficient time that I have not deemed it proper to enhance, he shall not be entitled to the benefit of section 382-B Cr.P.C. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr. C ( Quetta ) 27 Present: MlR hazar KHAN KHOSO, CJ FARAMEZ-Pctitioner versus THE STATE-Respondent Criminal Revision No. 60 of 1991, dismissed on 1.9.1991. (i) Probation of Offenders Ordinance, 1960 (XLV of 1960)- —S. 3--Convict—Release on probation of—Application for—Dismissal of— Challenge to—Under sub-section (2) of Section 3, court of original, appellate or revisional jurisdiction before whom case comes for hearing, is competent to pass such order and once a matter is finally adjudicated upon by above said courts they cease to have jurisdiction to entertain application for release of convicts on probation, as indeed, they become functiis ofJlcio-HM: Petitioner having been convicted, moved application for release on probation, therefore, court had no jursidiction to accede to request of petitioner—Petition dismissed. [P.29&30JC&D 28 Cr.C. faramez v. the state PLJ (Mir Hazar Khan Khoso, CJ) (ii) Probation of Offenders Ordinance, 1960 (XLV of 1960)-- —S. 5 read with Prohibition (Enforcement of Hadd) Order, 1979, Article 4- Conviction under Article 4 of Prohibition Order—Release of petitioner n probation—Application for—Dismissal of—Challenge to—Court can make probation order in case of male person if he is convicted of an offence not falling under Chapter VI and VII of P.P.C. or under some other sections of P.P.C or offence punishable with death or transportation-Case of petitioner falls within category of offence punishable with death or imprisonment for life- -Held: Learned Judge has rightly observed that petitioner was not entitled or relief. [P.29]A&B Mr, Muhammad Sarwar Javed, Advocate for Petitioner. Date of hearing: 1.9.1991. judgment The facts giving rise to this revision petition are that on 10.7.1991 petitioner Faramez was convicted by the learned Adhoc Sessions Judge, Quetta for the offence under Article 4 of the Prohitition (Enforcement of Hadd) Order, 1979 arid sentenced to suffer three years imprisonment, five stripes and fine of Rs. 5000/- and in default of payment of fine to undergo three months, simple imprisonment.On 4.8.1991 an application under Section 4 of the Probation of Offenders Ordinance, 1960 was moved before the learned Sessions Judge for release of the convict on probation. Vide order dated 18.8.1991 the learned Judge rejected his application on the ground that he was charged for the offence which carries maximum sentence for imprisonment of life and same was not covered by the section. This order has been challenged before this court in revision petition. I have heard Mr. Muhammad Sarwar Javed, Advocate for the applicant. The crucial point involved in this petition is whether maximum sentence provided under penal section or sentence awarded to convict has to be considered for his release on probation under Section 5 of the Probation of Offenders Ordinance, 1960. To appreciate the point involved in this petition, it would be useful to reproduce section 5 which reads as under:— Section-5: (a) any male person is convicted of an offence not being an offence under Chapter VI or- Chapter VII of the Pakistan Penal Code (Act XLV f1860), or nder section 216A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455 or 458 of that Code or an offence punishable with eath or Transportation for life, or (b) any female person is convicted of any offence other than an offence punishable with death, A mere glance at the section reflects that a court is competent to make a probation order in case of male person when he is convicted for an offence which does not fall under Chapter VI, V4I of the PPC, or under Section 216A, 328, 382, 386, 387, 388, 389, 393, 397. 398, 399, 401, 402, 455 or 458 PPC or the offence punishable with death or transportation for life. In case of female person, if she is convicted for an offence other than' an offence punishable with death. Manifestly the case of the petitioner is not covered by the sections provided under PPC. It falls within the category of offence punishable with death or mprisonment for life. He was charged for an offence under Article 4 of the Prohibition (Enforcement of Hadd Order 1979) which carries maximum sentence of imprisonment for life. The learned Judge therefore, has rightly observed that as the applicant was charged for an offence carrying sentence of imprisonment for life, therefore, was not entitled for relief. Before parting with the judgment there is another important point relating to the jurisdiction of a court empowered under Section 3 of the Probation of Offenders Ordinance, 1960 to exercise jurisdiction for release of convict. Sub section (1) of the above said section defines the court and sub-section (2) confers authority on the court for release of convicts on probation. For reference sake Section 3 is reproduced as under:— 3. Courts empowered under the Ordinance-(l) The following courts shall be the courts empowered to exercise powers under this Ordinance, namely:— a) A High Court; b) a court of Sessions; c) a District Magistrate; d) a Sub Divisional Magistrate; e) a Magistrate of the 1st class; and f) any other magistrate specially empowered in this behalf. 2) A court may exercise powers under this Ordinance, whether the case cornels before it for original hearing or on appeal or in revision. 3) xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx Sub section (2) clearly visualizes the stages where a court can release a convict on probation. From the analysis of sub section (2) it emerges that acourt of original, appellate or revisional jurisdiction before whom case comes for hearing is competent to pass such order; and once a matter is finally adjudicated upon by above said courts, they cease to have jurisdiction to entertain an application for release of convicts on probation. Indeed courts after exhaustively exercising jurisdiction become functus officio to exercise the authority. In the case in hand the convict was sentenced on 10.7.1991. He moved application for his release on probation on 4.8.1991 therefore, court had no jurisidction to accede to the request of the petitioner. For the reasons shown hereinabove the Petition fails which is dismissed accordingly in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 30 [ Rawalpindi Bench] Present: Gut ZARJN KlAM. J ANWAR JAMAL HUSSAIN and another-AppclIants versus THE STATE-Respondcnt Criminal Appeal Nos. 157 and 158 of 1991 and W.P. Nos. 969 and 970 of 1991, decided on 25.9.1991. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 397 read with Customs Act, 1969, Section 156(1) (8) and Prohibition (Enforcement of Hadd) Order, 1979, Article 4-Heroin-Smuggling and possession of—Convictions under Customs and Prohibition Order—Prayer to order both sentences to run concurrently—If a person is already undergoing sentence and is subsequently sentenced to another term, such imprisonment is to commence after expiration of sentence in previous case—Only subsequent court can order sentence to run concurrently with previous sentence—No such order was made by courts trying offence under Article 4 of Prohibition rder- No appeal before Federal Shariat Court was filed by petitioners in writ petitions—Held: Neither under inherent powers under Section 61-A of Cr.P.C. nor under constitutional jurisdiction under Article 199 of Constitution, High Court can order such sentences to run concurrently—Writ petitions dismissed. [Pp.35&36]D AIR 1978 Delhi 114 rel (ii) Limitation Act, 1908 (IX of 1908)- —S. 5 read with Customs Act, 1969, section 156(l)(8)-Heroin-Smuggling of- Conviction under Customs Act, 1969—Appeal against—Condonation of delay in filing appeal—Appellate court has power to excuse and condone delay if.it is satisfied that appellants had sufficient cause or good reason for not filing appeal within time—Held: As appellants were foreigners and had none to look after their defence and advise them properly, delay in filing appeals by them is excused and condoned. [P.34]B (iii) Sentence-- -—Heroin-Smuggling of--Convicion under Custom Act, 1969-Appeals against- -Appellants having pleaded guilty, only .quantum of sentence or its legaltiy an be seen—Appellants hjve been tried, convicted and sentenced in separate trials by Special Judge (Customs) and Courts under Prohibition Order or possessing and attempting to smuggle heroin'out of Pakistan—Appellants are foreigners and students—They have already undergone a substantial ortion f their sentences-Held: Having regard to their being first offenders and also students, a reduction in sentences is called for-Conviction upheld but sentences educed to that already undergone. [Pp.34&35]A&C Mr. Abdul Latif Chaudhry, Advocate for Appellants. Mr. Muhammad Nawaz Abbasi, AA.G. for State. Date of hearing: 25.9.1991. judgment These two Criminal Appeals No. 157 of 1991 and 158 of 1991 and two Writ Applications No. 969 of 1991 and 970 of 1991 emerged from some-what indentical factual matrix and present common questions of law for determination, and, therefore, u would be appropriate to deal with and dispose them of together in one order. 2. Appellants/petitioners were tried, and, convicted in two different criminal cases and sentenced to various terms, payment of fines, and efault punishments. For the purpose of this order, the facts of the two cases in which the appellants/petitioners were convicted and sentenced on their plea of guilty need not be enumerated in full detail but only briefly to give a clear view of the events leading to their trials and convictions. 3. In Criminal Appeal No.157 of 1991, Anwar Jamal Hussain and Masud amad Abdullah were found to have secreted 45 packets and 39 ackets, respectively in their bodies. Upon medication, above packets in shape of capsules were taken out and found to contain 330 and 320 grams of heroin each respectively. Consequently, both the accused were arraigned for trial under Section 156(1) (8) read with Section 178 of the Customs Act, 1969 before Special Judge (Customs) in Special Case No.269/89. Both the accused confessed the charge and pleaded guilty to it.They admitted that they attempted to smuggle the above quantity of heroin out of Pakistan . Consequently, Special Judge (Customs) holding them guilty of the offence under Section 156(1) (8) read with Section 178 of the Customs Act, 1969, sentenced them to 4 years R.I. each, plus a fine of Rs. 10,000/- (Ten thousand) each, and, in default, to further undergo simple imprisonment for sk months each. In addition, Special Judge gave them benefit of Section 382-B, Cr.P.C. In the body of judgment, Special Judge observed that since application for release of convicts on probation. Indeed courts after exhaustively exercising jurisdiction become/w/zcftu officio to exercise the authority. In the case in hand the convict was sentenced on 10.7.1991. He moved application for his release on probation on 4.8.1991 therefore, court had no jurisidction to accede to the request of the petitioner. For the reasons shown hereinabove the Petition fails which is dismissed accordingly in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Quetta ) 36 (DB) Present: munawar ahmad mirza and iftikhar muhammad chaudhry, JJ LATIF-Appellant versus THE STATE-Respondent Criminal Appeal Nos. 41 & 44 of 1991 (M.R.05 of 1991), decided on 19.9.1991 Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 428 & 375(2)-Procedural defects-Rectification of--Powers of High Court-Held: Undisputedly Sections 428 and 375(2) of Cr.P.C. give plenary powers to High Court for rectifying procedural defects or allowing further enquiry or additional evidence which has bearing on guilt or innocence of accused, to avoid injustice to either party-Held further: Omission in separately allowing opportunity of cross examination to accused, is mainly of technical and procedural nature which needs to be rectified-Case remanded. [P.37&38]A,B&C AIR 1943 Calcutta 521 rel. Mr. Muhammad Aslam Chishti, Advocate for Appellant (in Cr. A.No. 41 of 1991). Malik Sultan Mahmood, Advocate for Appellants (in Cr. A. No. 44 of 1991). Mr. Salahuddin Mengal, A.A.G. and Mr. Akhtar Zaman, Advocate, Assistant Prosecutor, for State. Date of hearing: 19.9.1991. order Munawar Ahmad Mirza, J.--During course of arguments, learned counsel for convict/appellant pointed out that opportunity of cross-examining statement of P.W. 8 Saidan Marri has not been granted to convict/appellant Syed Hakim and Ghuiam Sakhi, who were represented by M/S W.N. Kohli and Syed Shabir Shah Advocates. Mr. Rafiq Ahmad Advocate who represented accused Latif and W.N. Kohli Advocate are present in the Court. We enquired from them about factual position, whereupon Mr. Rafiq Ahmad Advocate clarified that he was mainly representing convict Latif. However, in pursuance of order dated 16.5.1989 passed by trial court he appeared for pauper accused Syed Hakim and Ghulam Sahki till 4.9.1989 when inability to further represent them was disclosed to the trial court. Record indicates that thereafter M/s W.N. Kohli and Shabir Shah Advocates represented convicts (i) Syed Hakim and (ii) Ghulam Sakhi. Whereas Mr. W.N. Kohli Advocate expressed that some mistake or confusion appears on record, regarding non-availing of opportunity of cross examination on behalf of two convicts i.e. Syed Hakim and Ghulam Sakhi. In view of above situation we have heard learned counsel for parties on this aspect. Undisputedly Sections 428 and 375(2) Cr.P.C. enjoin plenary powers to this court for rectifying procedural defects or allowing further enquiry or additional evidence, which has bearing on the guilt or innocence of accused to avoid injustice to either party. In this view we are also supported by the observation in case Emperor Vs. Lai Mia (AIR 1943 Calcutta 521). Relevant observations are reproduced hereunder:- "The next point urged by the learned Deputy Legal Remembrancer is that the learned Judge having discovered these materials after the trial, he could do nothing in the matter and that this Court is also for the same reason powerless to use these materials in this reference and appeal. I am unable to accept this view. So far as I am aware there is nothing in the Code, or anywhere else which would prevent us from taking into consideration the facts brought to our notice by the learned Sessions Judge for the purpose of determining the proper course which we should follow in the light of these facts. It is a strange proposition to put before this Court that in a case where two persons have been sentenced to death it is powerless to act when it is apprised of the fact that valuable material which could and should have been put in evidence in favour of the accused was not put before the jury owing to the inaptitude of the lawyers for the accused or to the apathy or lack of vigilance on the part of the Judge. I hold the view that we can make full use of these materials before us for the purpose of doing justice. As an Appellate court, we can ourselves take additional evidence or direct such evidence to be taken under S. 428, Criminal P.C. As a court dealing with a reference under S. 374, Criminal P.C. we can make a further enquiry or take additional evidence or direct these things to be done by the Sessions Court under S. 375 Cr.P.C. It is therefore idle to suggest that we are powerless to do anything upon being apprised of the facts that valuable evidence in favour of the accused which could have been adduced has not been given. Mr. Muhammad Aslam Chishti learned counsel for convict/appellant Latif and Malik Sultan Mahmood counsel for pauper convict/appellants Syed Hakeem and Ghulam Sakhi submitted that facts of present case are distinguishable from facts in the aforequoted judgment. Firstly we do not find force in their contentions because legal position is crystal clear. This court has ample jurisdiction for holding further enquiry and recording additional evidence which will have bearing on the guilt or innocence of accused, with a view to promote ends of justice. Secondly omission in separately allowing opportunity of cross examination to accused under the circumstances is mainly of technical and procedural nature which needs to be rectified. . Thus visualizing all the aspects and to avoid injustice we are inclined to permit right of cross-examination to accused Syed Hakim and Ghulam Sakhi. For this purpose alone original record be remitted to learned Additional Sessions Judge-I, Quetta who will summon witness, Mr. Saidan Marri and allow cross-examination as observed above. Mr. W.N. Kohli Advocate undertakes to appear on behalf of accused Syed Hakim and Ghulam Sakhi, before the trial court for purpose of cross examining said witness, after obtaining necessary instructions. It is however, made clear that accused shall have the option of engaging any other counsel.But if they do not choose to exercise such option, then Mr. W.N. Kohli both in capacity as counsel of said convicts in the trial court or alternetely advocate for pauper accused as extended his services in that behalf.Trial court after completion of cross-examination as directed above, shall resubmit the record to this court for final disposal of reference. The appeals shall also come up alonglwith Reference for final disposal to a date in office. It is further directed that trial court should complete recording of cross-examination expediliously at the most within one month. (MBC) (Approved for reporting) Case remanded

PLJ 1992 Cr PLJ 1992 Cr.C .( Lahore ) 38 (DB) [ Bahawalpur Bench] Present: muhammad munir khan and khalid paul khawaja, JJ DOST MUHAMMAD alias DOSOO-Appellant versus THE STATE-Respondent Criminal Appeal No. ( Spl.Court Terrorist) 30 of 1991, accepted on 8.7.1991. Arms Ordinance, 1965 (XX of 1965)-- —S.13-A-- Klashnikov -Recovery of-Conviction for--Challenge to-Appellant has virtually been condemned unheard and has been convicted without there being a single word of evidence against him—Trial conducted by lower court seems to be a mockery of law-Special Judge has flouted all norms of fair trial and principles of natural justice-Held: Rushing through criminal cases involving life and liberty of individuals, always proves to be catastrophic and 8. The imposition of fine for violating the order of the Court, in the circumstances of the case was also uncalled for. 9. We are constrained to observe that rushing through criminal cases, involving life and liberty of individuals, almost always proves to be catastrophic. The present case may be cited as an apt example. When cases are disposed of in such a hasty manner merely to exhibit needless proficiency it does not create a good impression in the minds of the public, rather their confidence in the courts of law is irretrievably shaken and the noble purpose with which such laws are promulgated, is grievously frustrated. 10. Learned counsel representing the State had no hesitation in conceding that the impugned order being patently illegal was not sustainable in law. We , therefore, accept this appeal, set aside the impugned order and remand the case to the learned trial court for trial in accordance with the law. (MBC) (Approved for .reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Peshawar ) 41 Present: MUHAMMAD BASHIR JEHANGIRI, J NOORUL AMIN and 4 others-Petitioners versus SAID NAZIR and another-Respondents Criminal Misc. No. 24/Q of 1991, accepted on 8.7.1991. Criminal Procedure Code, 1898 (V of 1898)- —-S. 499 read with Section 497(5)--Bail bonds-Cancellation of-Order to deposit security in cash—Challenge to—Impugned order indicates as if Additional Sessions Judge was not disposing of an application for cancellantion of bail but was seized of security proceedings under hapter VIII of Cr.P.C. which squarely fall under magisterial powers—Held: Order requiring petitioners to deposit cash amount of Rs. 20000/- ach as security in bail matter, is in excess of jurisdiction vested in court of Sessions—Petition accepted. [P.43]A&B PLD 1956 Peshawar 65 not relevant. PLD 1955 Dacca 84,1970, P.Cr. L.J. 1256 and 1979 P Cr L J 427 ret. Mr. Yousaf Shah, Advocate for Petitioners. Mr. J.D. Akbarji, A.G. for State. Dale of hearing: 8.7.1991. judgment This is an application under Section 561-A Cr.P.C. for quashment of order dated 9.6.1991 of the learned Additional Sessions Judge-I, Swabi, whereby hedecided "to withdraw the bail bonds of the petitioners which seemed to be insufficient" and directed them to furnish fresh bail bonds in the sum of Rs. 50,000/- with two sureties each in the like amount "and Rs. 20,000/- cash per each accused to be deposited in the Government Treasury as a security of their peaceful behaviour." It was further observed that "in case they (the petitioners) repeat their belligerant behaviours the bail would be cancelled and Rs. 20,000/- each would be forfeited to'the State. 2. The facts giving rise to the present application are that the petitioners were charged under Section 334 of the Enforcement of Qisas and Diyat Ordinance 1991 by Said Nazir complainant for belabouring him with sticks and axes vide F.I.R. No. 173 dated 8.4.1991 registered at Police Station Swabi. They were, however, admitted to bail on 2.5.1991 by a Magistrate of First Class, Swabi. Said Naxir moved an application for cancellation of bail granted to he petitioners. It appears that during the pendency of this application the learned Addl. Sessions Judge-I observed that "the doctor presented the X-rays and report from which it is quite clear that the complainant has suffered three fractures in the legs and arm, therefore, the case falls within the four corners of Section 337 of the Enforcement of Qisas and Diyat Ordinance and that under sub-section 2F the punishment for which has been prescribed under Section 337F Paragraph 6 in respect of Munaqqila which extends to 7 years R.I. and Daman." 3. The learned counsel for the petitioners contended that the impugned order of cash deposit of Rs. 20,000/- for each of the petitioners suffered from serious legal infirmity and calls for interference by this Court under Section 561-A Cr.P.C. 4. The learned Advocate General attempted to defend the impugned order of the learned Additional Sessions by referring to the case of Umar Daraz KJian vs. Pakistan Government (PLD 1956 Peshawar 65). This authority, I am afraid, is not at all attracted to the facts of the case in hand. In the case of Umar Daraz Klian a bond to keep peace was forfeited by the Commission of an offence under Section 325 P.P.C., which, however, was allowed to be compromised by the Court and the accused was acquitted. Subsequently proceedings under ection 514 Cr.P.C., were initiated against them by the police and it was required of the Court that the three accused persons therein having committed the breach of peace by committing an offence under Section 325 P.P.C., had forfeited their bonds and, therefore, they were required to be penalised. The Magistrate concerned ordered the three accused to pay specified amount holding that they had caused breach of peace by committing an offence under Section 325 P.P.C., and in consequence thereof forfeited the bonds to the extent of the specified amount. After their appeals failed before the District Magistrate, in revision, Muhammad Shaft, J.C. as his Lordship then was, held that notwithstanding composition of the penalty of forfeiture of offence the bond could still be imposed if there was proof under Section 514 Cr.P.C. that the person bound down had in fact committed breach of peace. Obviously the proposition raised before me is quite different from that cited above. 5. The impugned order when read as a whole is indicative of the fact as if the learned Additional Sessions Judge was not disposing of an application for cancellation of bail but was seized of security proceedings under Chapter VIII in particular the provisions of Sections 107, 118 and 122 CrJP.C. which squarely fall under the magisterial powers, rather than Section 497(5) under which the learned Additional Sessions Judge was seized of the matter. 6. After the order of bail is passed the bonds are furnished under Sections 498 and 499 Cr.P.C. The interpretation of these two sections came up for consideration in: (1) Lathi Narayan Kimdu vs. Tlie Crown (PLD 1955 Dacca 84), (2) Abdul Ahad vs. Ttie State (1970 P Cr L J. 1256), and (3) Muhammad Riaz vs. Tlic State (1979 P Cr L J 427) wherein it was consistently held that Section 499 Cr.P.C. contemplates the execution of a bond and ot cash deposit and, therefore, ihc order to that effect being utterly against law was set aside. 7. In this view of the matter, the order dated 9.6.1991 requiring the petitioners to deposit cash amount of Rs. 20,000/- each as security in a bail matter being in excess of jurisdiction vested in the Court of Sessions, is hereby quashed. The application is accordingly accepted. The petitioners shall be released on bail on furnishing bail bonds in the sum of Rs. 50,000/- each in the like amount to the satisfaction of Assistant Commissioner, Swabi. (MBC) (Approved for reporting) Petition accepted

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 43 Present: ABDUL MAJEED MALLICK, CJ MUHAMMAD YOUSAF-Petitioner versus SHAZIA BIBI-Respondent Criminal Revision No.14 of 1991, dismissed on 16.11.1991 Maintenance— —Minor daughter-Grant of maintenance allowance to-Challenge to~Under Section 488 of Cr.P.C. Magistrate is enjoined upon to make order of onthly allowance for maintenance of a minor child by father-When father is physically fit and earns sufficiently, he is obliged to provide aintenance to his child-Petitioner is physically fit and able-bodied person-Held: To say that he has no sufficient means, is no ground to refuse maintenance llowance to minor daughter by petitioner-Petition dismissed. [P.44]A&B Mr. Abdul LatifDutt, Advocate for Petitioner. Ch. Muhammad Taj, Advocate for Respondent. Dale of hearing: 16.11.1991. order Sha/iu Bibi, minor daughter of Muhammad Yusuf petitioner, moved the learned Additional District Magistrate, Mirpur, under Section 488, Cr.P.C., on August 30, 1988 and prayed for grant of maintenance allowance @ Rs.400/- per month. Muhammad Yusuf, petitioner, her father, contested the application and explained that the mother of the minor secured divorce from him and the minor was living wilh her mother of her free will, as such he was not under duty to maintain her. It was further stated that he has no .sufficient means to pay the maintenance allowance. The learned Magistrate allowed the application by granting maintenance allowance @ Rs.250/- per month, with effect from the date of the application. The order was maintained in revision by the learned Session Judge, on August 20,1991. 2. It is well accepted legitimate right in Islam and common law, of child, to claim maintenance from the father. This right has been conferred on the child in consideration of enhancement of unity, harmony and affection between the parents and their children. The relationship of father and child, in fact, raises an edifice of family life, in society. This is why Almighty Allah has emphasised in Holy Qur'an as the duty of parents to maintain and bring up their children in a forthright manner. Thus, to seek maintenance during the minority is an independent legitimate right of a child against his father. 3. Section 488, Cr.P.C. postulates that when a person having sufficient means, neglects or refuses to maintain his child unable to maintain itself, it is enjoined upon the Magistrate to make an order of monthly allowance for the maintenance of such child. Reference to term "sufficient means" does not imply o physical means in the shape of property or earnings. Suffice it to establish that a father physically fit and able-bodied who ordinarily can earn his livelihood, is under duty to support his child. May be that a person does not work or earn enough to support his child but that by itself is no ground to decline aintenance allowance to minor. When father is physically fit and is able-bodied irrespective of the fact that he earns sufficiently or has sufficient physical means or not, he is obliged to provide maintenance to his child. 4. In the present case, it is not a case of the petitioner that he suffered from some physical handicap, as such is unable to pay the maintenance llowance. He is physically fit and able-bodied person. Therefore, to say that he has no sufficient means, is no ground to refuse maintenance allowance to the minor daughter by the petitioner. No other point was canvassed in support of the petition. There is no force in the petition. It is, therefore, dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 45 Present: ABDUL MAJEED MALLICK, CJ SHEROO KHAN--Appellant versus KALOO KHAN and 8 others-Respondents Criminal Appeal No.18 of 1988, dismissed on 19.10.1991 Appeal against acquittal- —Offence under Section 15 of Islamic Penal Laws Act read with Sections 447, 506, 147/148 of Penal Code-Acquittal of respondents under Section 249-A f Cr.P.C.-Challenge to-Delayed first information report is looked with suspicion—Delay in report, per-se is not deemed a ground for acquittal of accused, ut such delay is always taken into consideration alongwith other material particulars of prosecution case—In this case, delay is there and there are other actors also which support impugned order of acquittal—Held: Accusation ascribed to accused was groundless and there was no likelihood of conviction of ccused-Held further: It is well accepted rule that an order of acquitlal is not lightly interfered with unless it is found preposterous and perverse-Appeal ssed. [Pp.48,49&50]A,B,C&D Mr. Muhammad ArifKlwn, Advocate for Appellant. Sanlar Muhammad Yasin Mian, Advocate for Respondents. Dale of hearing: 19.10.1991. order The respondents were roped in a criminal case on the charges of causing hurt and trespass, as members of unlawful assembly, under Section 15 of the Islamic Penal Laws Act read with Section 447, 506, 147 and 148 of the Penal Code. They moved an application for their acquittal on account of groundless charges ascribed to them. The application was accepted and they were acquitted by the trial Court in exercise of powers under Section 249-A, Cr.P.C. The appeal is addressed against the order of acquittal, passed on March 10, 1988, on the following grounds:- (/) That the trial Court acted in a haste in acquitting the accused before recording the prosecution evidence; (») that the delay in the first information report was well explained but no attention was paid to it; and (Hi) that the Court ignored the fact that the complainant was in possession of the land since 1980, as this fact was satisfied by the Sub Judge, who also happened to be a Magistrate and member of the trial Court.The alcove mentioned objections were emphasised by the learned Counsel for the appellant with reference to 1976 P.Cr.LJ. 40, 1990 P.Cr.LJ. 113 and 1980 P.Cr.LJ. 191. The contentions were opposed by the learned defence Counsel. 2. A perusal of the record reflects that the alleged incident took place on November 1, 1981. It relates to land comprising survey number 253. According to prosecution, the appellant was in possession of the land as a tenant on behalf of Mst. Nazira Begum, one of the owners. The accused- espondents made trespass in the land by assaulting on the complainant and inflicted injuries on him by pelting stones. Thus, they were found liable on the aforesaid charges. The trial Court acquitted the accused as prima facie no case was made out against them. It was held that the report was made after considerable delay. Moreover, the accusation was not well established to result in conviction of the accused. 3. The provisions of Section 249-A, Cr.P.C. postulate that Magistrate is not prevented from acquitting an accused at any stage of the case if:- (/) after hearing the prosecutor and the accused, for reasons to be recorded, he considers that the charge is groundless; or (//) there is no probability of the accused being convicted of any offence. Chapter XX of the Criminal Procedure Code, which includes the provisions of Section 249-A, deals with the commencement of proceedings before the Court. Thus, reference is made to the provisions relating to trial of cases under this Chapter. The legislature introduced the provisions of Section 249-A by an amendment, to ensure speedy trial of criminal cases. Ordinarily, when Magistrate takes cognizance of an offence, he is enjoined upon to hold trial in the case and to decide it in the manner of acquittal or conviction. Thus, the Magistrate has to complete the trial by following the rules of procedure. The rule relating to trial was inflexible as the trial could not be dropped on either of the grounds described in Section 249-A unless it was finally concluded. As the procedure laid down in the Chapter was deemed inflexible and severe even in cases where the Magistrate felt satisfied that the charge was groundless or that there was least possibility of conviction of the accused, it was deemed expedient to enforce amendment for speedy disposal of cases. Thus, by virtue of the provisions, the Magistrate was vested with discretion to acquit an accused in a case where, in the opinion of the Magistrate, the charge was groundless or there was no likelihood of conviction of the accused of the alleged offence. 4. The scheme of law devised by the legislature empowers the Magistrate to acquit an accused at any stage of the trial. Reference to the term "any stage" denotes that the Magistrate is empowered to record acquittal in exercise of judicial discretion when either of the aforesaid reasons satisfied his judicial mind. Thus, the only conditions precedent in recording acquittal of an accused in exercise of powers under Section 249-A, Cr.P.C. were: (/") that in the opinion of the Magistrate, the charge was groundless; or (ii) that there was no probability of conviction of the accused of the alleged offence. These grounds obviously rested on the evidence placed before the Court. 5. The Magistrate takes cognizance of an offence on a complaint or police report, as the case may be. When a complaint is made, the Magistrate takes cognizance on making preliminary inquiry into the allegations made in the complaint. In case of police report, the report is submitted before the Magistrate in the light of the conditions laid down in Section 173, Cr.P.C. Such report is accompanied by the evidence collected by the investigating officer. So, in both cases, the Magistrate is always in possession of evidence of the prosecution and he is well in a position to pass appropriate order when called upon in exercise of powers under Section 249-A, Cr.P.C. 6. The first ground inviting attention of the Magistrate to record acquittal, pertains to the groundless charge. The word "charge", referred in 0 section, has been used in its ordinary dictionary meaning. Ordinarily, "charge" n ;ans "a formal accusation of criminal liability". According to Black's Law Dictionary, the word "charge" has been defined as: To impose a burden, duty, obligation, or lien; to create a claim against property; to assess; to demand; to accuse; to instruct a jury on matters of law. To impose a tax, duty, or trust. In commercial transactions, to bill or invoice; to purchase on credit. In criminal law, to indict or formally accuse". The aforesaid meaning of the word ocharge", lead to an inference that the Magistrate has been empowered to act in a criminal case at any stage, irrespective of the stage relating to examination of the accused and recording of prosecution evidence. 7. In present case, the accused were acquitted as in the opinion of the trial Court, there was delay in the first information report and the substance of accusation ascribed to them was not sufficient to result in their conviction. Mr.Muhammad Arif, the learned Counsel for the appellant emphasised that the trial Court misdirected itself in acquitting the accused on account of delay in the first information report. It was emphasised that the delay was well explained, as such the delay was not a sufficient ground for acquittal of the accused. 8. It is evident from the record that the alleged incident of trespass and assault took place on November 1, 1981. The report was made in writing on ovember 18. There was an evident delay of 17 days. The written report made by the appellant carried no explanation for the delay. However, in lice proceedings, it was explained that delay was made in order to obtain copies of the record of rights relating to the land, the place of incident. The copy of Khasra Girdawari for the year 1980-81 was issued by the Patwari on November 17. The (»7) that there was no probability of conviction of the accused of the alleged offence. These grounds obviously rested on the evidence placed before the Court. 5. The Magistrate takes cognizance of an offence on a complaint or police report, as the case may be. When a complaint is made, the Magistrate takes cognizance on making preliminary inquiry into the allegations made in the complaint. In case of police report, the report is submitted before the Magistrate in the light of the conditions laid down in Section 173, Cr.P.C. Such report is accompanied by the evidence collected by the investigating officer. So, in both cases, the Magistrate is always in possession of evidence of the prosecution and he is well in a position to pass appropriate order when called upon in exercise of powers under Section 249-A, Cr.P.C. 6. The first ground inviting attention of the Magistrate to record acquittal, pertains to the groundless charge. The word "charge", referred in tl • section, has been used in ils ordinary dictionary meaning. Ordinarily, "charge" n ;ans "a formal accusation of criminal liability". According to Black's Law Dictionary, the word "charge" has been defined as: To impose a burden, duty, obligation, or lien; to create a claim against property; to assess; to demand; to accuse; to instruct a jury on mailers of law. To impose a tax, duty, or trust. In commercial transactions, to bill or invoice; to purchase on credit. In criminal law, to indict or formally accuse". The aforesaid meaning of the word ccharge", lead to an inference that the Magistrate has been empowered to act in a criminal case at any stage, irrespective of (he stage relating to examination of the accused and recording of prosecution evidence. 7. In present case, the accused were acquitted as in the opinion of the trial Court, there was delay in the first information report and the substance of accusation ascribed to them was not sufficient to result in their conviction. Mr.Muhammad Arif, the learned Counsel for the appellant emphasised that the trial Court misdirected itself in acquitting the accused on account of delay in the first information report. It was emphasised that the delay was well explained, as such the delay was not a sufficient ground for acquittal of the accused. 8. It is evident from the record that the alleged incident of trespass and assault took place on November 1, 1981. The report was made in writing on November 18. There was an evident delay of 17 days. The written report made by the appellant carried no explanation for the delay. However, in police proceedings, it was explained that delay was made in order to obtain copies of the record of rights relating to the land, the place of incident. The copy of Khasra Girdawari for the year 1980-81 was issued by the Patwari on November 17. The other copies were issued on November 22, i.e. four days after making the report. These copies do not show as to when the appellant applied to obtain the same. 9. The first information report is deemed as the corner stone of b rosecution's case. Ordinarily, it is expected that the first information report should immediately follow the event. Delayed report is looked with suspicion as the concensus is that invariably the police records the first information report after making preliminary investigation. Thus, the sanctity of the report is tampered with. This is how and why the superior Courts insist that the report should be made promptly. 10. Delay in the first information report, per-se, is not deemed a ground for acquittal of the accused. But such delay is always taken into consideration long with oilier material particulars of the prosecution's case. When the first information report is found concocted or tampered with, in such case delay in making the report is always considered fatal. Conversely, when a report is considered valid and bonaflde, delay in the same, when explained, is not deemed fatal to the case of prosecution. Thus, the point of delay in the report is always considered in relation to the surrounding circumstances of the case. In present case, delay is there. It is also noticed that the copy of Khasra Girdawari was issued by ihe Patwari on November 17 but it does not explain as to when the Patwari was approached for the first time to issue the copy. Be that as it may, there are other factors also in this case which support the impugned order of acquittal. These factors are: a) The main charge ascribed to the accused is that they made trespass in the land, the place of incident. The land is covered under survey number 253. The Jamabandi placed before the Court by the prosecution shows the possession of the land by Jhandoo Khan, Jawahar Khan and Gul Ahmad Khan. All the aforesaid three persons are admittedly the elders of the accused persons. Their possession was entered with effect from Rabi 19(>9 till Rabi 1980. The complainant, according to his allegation, occupied the land in Kharif 1980 on behalf of A/tf.Nazira Begum, one of the owners. Thus, the Jamabandi, which carries the presumption of truth, prima facie, supports the possession of the accused party instead of the complainant; b) The report contained the names of 20 accused persons, including ladies. The investigating officer sent to trial nine accused only and dropped the rest for want of sufficient evidence. The trial Court also issued notice to nine accused. The nature of accusation is identical against all the 20 persons. The appellant felt satisfied with the trial of nine accused instead of I he 20 persons. No private complaint was addressed nor the attention of he trial Court was invited to the accusation against the other persons who were dropped from trial by the investigating agency. This suggests that 11 accused persons were roped in the case despite their innocence and non-participation in the incident; c) The key-notes of the site plan prepared by the Patwari, reflact that the initial quarrel took place amongst the ladies of the parties. It was shown that the ladies belonging to the group of the complainant party were packing the grass bundles when they were attacked by the ladies of the accused party. One of the ladies also received injuries. None of the ladies involved in the initial quarrel and having received injuries, was listed amongst the witnesses of the prosecution. The key-notes do not show that the complainant was assaulted by the accused. Rather, his presence was shown on the place of incident in the position of other eye-witnesses. This suggests that, prima facie, the story of assault on the complainant and infliction of injuries by pelting stones, was cooked up to establish the alleged passession of the complainant party in the land, the place of incident. During arguments, it was explained by the learned Counsel for the parties that civil litigation was also going on over the land in dispute. Both the parties alleged their possession over the land. Therefore, the criminal proceedings seem to be a part of the plan to establish possession over the land in question; and d) Mst. Nazira Begum, one of the owners of the land in dispute, was a necessary witness to support the prosecution's version. This was so, as according to the prosecution's case, the complainant occupied the land on behalf of MslNazira Begum. He occupied a secondary position to claim the possession. Thus, unless Mtf.Nazira Begum appeared in the Court to support the claim of possession of the land as alleged by the complainant, prosecution was not likely to succeed in conviction of the accusedrespondents. Thus, the inference flowing from the evidence placed before the Court, definitely supports the ultimate conclusion arrived at by the trial Court. The accusation ascribed to the accused was groundless and there was no likelihood of conviction of the accused of the alleged offence of trespass and causing hurt to the complainant. 11. The authorities relied on by the learned Counsel for the appellant do not support his contention. In Arbab Shah's case, 1976 P.Cr.LJ. 40, the order of conviction by the trial Magistrate was reversed into acquittal and delay in the first information report was taken into consideration along with other leading factors constituting the alleged accusation against the accused persons. The other two cases were also not of any help on account of distinguishable facts and different propositions of law. 12. It is a well accepted rule that an order of acquittal is not lightly interfered with unless it is found preposterous and perverse. The aforesaid analysis leads to the conclusion that the impugned order does not suffer from any of the aforesaid legal defects^ as such it does not warrant interference of this Court. The impugned order is sustained and the appeal is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C . (AJK) 50 Present: ABDUL MAJEED MALLICK, CJ MUHAMMAD NAEEM-Petitioner versus THE STATE-Respondent Criminal Revision No.66 of 1991, accepted on 19.11.1991 Bail-- —Attempt to murder-Case of-Bail-Grant of-Prayer for-Evidence does not disclose actual circumstances resulting in quarrel-Medico legal report does not, rima facie, disclose that injury caused by petitioner was dangerous to life- -Held: Aforesaid circumstances coupled with fact of age and profession of petitioner (student of 10th class) bring case within ambit of concession of bail admissible to him-Bail allowed. [P.51JA Mr. M.Y.Surakhvi , Advocate for Petitioner. Sardar Muhammad Sadiq Klian , Addl. A.G. for State. Mr. Alcemuddin , Advocate for Complainant. Date of hearing: 19.11.1991. order The accused-petitioner and one Muhammad Attique , his real brother, are facing charge of attempt to murder and causing hurt as postulated under Section 15, Islamic Penal Laws Act read with Section 307, APC. The alleged incident took place on October 6, 1991 at 7 A.M. in village Ag'har , where the parties resided. Muhammad Ellahi made a written report to the police wherein it was alleged that he stocked the grass on the site belonging to the mosque. Next morning, the accused objected to the use of the site for stocking the grass and Muhammad Atlique accused called Muhammad Aziz , his son, from his house and accused assaulted Muhammad Aziz . He was grappled by Muhammad Attique who asked Naecm , his brother, to finish him with knife. The accused inflicted stab wound on the neck of Muhammad Aziz on which he fell down and the accused disappeared from the scene. The incident was seen by the complainant, Nisar Ahmad and Aurang/cb . 2. The accused secured interim bail pre-arrest but subsequently, he was declined the concession of bail. On his arrest, he moved the Tehsil Criminal Court K.W ,E Bail Allowed

PLJ 1992 Cr PLJ 1992 Cr.C. ( Peshawar ) 55 [Abbottabad Bench] Present: mahbub An khan, J AYUB--Petitioner versus THE STATE-Respondent Criminal Misc. No.154 of 1991 accepted on 11.11.1991 Criminal Procedure Code, 1898 (V of 1898)-- —S.344 read with Section 497-Bail cancelled by High Court and petitioner committed to custody-No remand taken afterwards-Whether detention of petitioner in jail was illegal—Question of—Admittedly no remand of accused- Petitioner was obtained after he was committed to custody on 2.6.1991- Remand obtained afterwards on 9.10.1991 would not cure damage already done to petitioner by his illegal detention in Jail on and after 2.6.1991 and that period of illegal detention cannot be converted into a legal detention by subsequently obtaining a remand order-Held: There will be no option but to release etitioner on bail-Bail allowed. [Pp.56&57]A&B Mr. Saccd Akhtar KJian, Advocate for Petitioner. Mr. Muhammad Aslam KJtan, AA.G. for State. Mr. Abdul Hamid Qureshi, Advocate for Complainant. Dale of hearing: 6.11.1991. judgment Accused petitioner Ayub was admitted to bail in a murder case by the learned Additional Sessions Judge, Haripur on 1.11.1990. At the request of Myf.Mehlab Jan widow of the deceased this bail was later on recalled by me on 2.6.1991 and the accused was committed to custody. An application has been moved on 13.7.1991 on behalf of the accused petitioner that after 2.6.1991 no judicial remand for custody of the accused has been obtained under Section 344 Cr.P.C. and the petitioner is under illegal detention since thereafter. 2. I have heard Mr.Saeed Akhtar Khan, Advocate, for the accusedpetitioner, Mr. Abdul Hamid Qureshi, Advocate, for the lady complainant and Mr.Muhammad Aslam Khan, A.A.G. for the State. A perusal of the record would indicate that on the cancellation of his bail on 2.6.1991 by this court the accused was arrested forthwith. Thereafter on 9.7.1991 the petitioner moved an application before the Ilaqa Magistrate that he has not been produced before any court for obtaining a judicial remand as required by Section 344 Cr.P.C. since after his aforcsaiil detention. The learned Magistrate on this called an explanation of the Superintendent Jail. He made a report on 10.7.1991 and stated that since after the detention of the accused on 2.6.1991 he was not produced before any court for remand. 3. In this back ground of the case it would be advisable to reproduce the text of Section 344 of the Code of Criminal Procedure: "344. Power to postpone or adjourn proceedings: (1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Remand: Provided that no Magistrate shali remand an accused person to custody under this section for a term exceeding fifteen days at a time. (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate. Explanation: Reasonable cause for remand. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand". This section connotes that in a given situation when it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by an order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit and for such time as it considers reasonable, and may by a warrant remand the accused if in custody. This further states that no Magistrate shall remand an accused person to custody under this section for a term exceeding 15 days at a time and such an order shall be in writing and signed by the Presiding Judgeor Magistrate. In the instant case admittedly no remand of the accused under Section 344 Cr.P.C. had been taken after he was committed to custody on 2.6.1991 on the order of this Court. The petitioner's detention in jail without an order under Section 344 Cr.P.C. of a court of competent jurisdiction would be, therefore, absolutely illegal. The learned counsel for the accused in this view of the matter has placed reliance on the following case law as reported in 1985 P.Cr.LJ. 603, 1990 P.Cr.LJ. 1831, P.L.D. 1989 Peshawar 43, 1979 P.Cr.LJ. 1069 and an unreported judgment of this Court delivered by my brother MrJustice Nazir Ahmad Bhatti, J. on 23.9.1989 in Cr.M.No.147 of 1989. All these judgments cited at the bar speak on the importance of the subject and are unanimous on the point that in case of absence of a proper remand order under Section 344 Cr.P.C. by a competent court the detention of an accused person shall be illegal. 4. The argument put forth by the learned counsel appearing on behalf of the complainant party, tnat an application like this should have been initially filed before the court of a Magistrate is of no consequence. I am told that after the illegal confinement of the accused in custody for quite some time the local police has obtained his judicial remand on 9.10.1991 for the first time which had expired on 24.10.1991 and thereafter another order was obtained till 6.11.1991. 6. Be this as it may. But it would not be able to cure the damage which had been already done to the accused petitioner by his illegal confinement in jail on and after 2.6.1991 and that period of illegal detention cannot be converted into a legal detention by subsequently obtaining a remand order on 9.10.1991 which had been in fact procured in view of the pendency of the instant petition before this Court. In this view of the matter, there would be no option with me but to release the accused petitioner on bail, on his furnishing security bonds in the sum of Rs. One Lac with two sureties each in the like amount and to the satisfaction of Ilaqa Magistrate. 7. Since the local police did not care to obtain orders for judicial custody of the petilioner from a court of competent jurisdiction as required by law, the Inspector General of Police, N.W.F.P. may be asked to fix responsibility for the non-compliance of the mandatory provisions of law on the police officer who was required to do so and to proceed against him in the interest of service discipline in accordance with law-rules. (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Peshawar ) 57 [Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRI, J MUBARIK KHAN-Petitioner versus THE STATE-Respondent Criminal Misc. No.187 of 1991, dismissed on 22.10.1991 Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A--Vehicle used in heinous crime—Custody of-Refusal of-Challenge to-It is case of prosecution that accused Aurangzeb attempted to commit offences of abduction and zina in and by virtue of vehicle itself—Vehicle has been impounded for parking in police station concerned—Held: No illegality in ' impugned order has been pointed out particularly when vehicle had been allegedly used as a means towards ccomplishment f crime of a very heinous nature-Petition dismissed. [P.58]A Sycd Shahir Hussain Shah, Advocate for Petitioner. Dale of hearing: 22.10.1991. order The petitioner is aggrieved by the orders dated 10.9.1991 and 21.9.1991 respectively passed by a learned Magistrate of the First Class, Haripur, and the learned Additional Sessions Judge-I, Haripur refusing to give custody of Suzuki Pick-up No.PRF-7537 to the petitioner. 2. Brief facts giving rise to this petition are that on 30.8.1991 at 08-30 hours, one Aurangzeb alias Toru attempted to abduct Mrt.Sajida Parveen and Farzana Shaheen when they had boarded the aforesaid Suzuki Pick-up for visiting the Jail Hospital. The two females appeared to be the lone travellers on account of which perhaps the aforesaid driver took undue advantage and instead of dropping them in front of the Hospital sped away the Pick-up towards Khanpur. The females, in order to save their modesty and honour, had jumped from the running vehicle sustaining grievous injuries including one fracture each. 3. The learned Additional Sessions Judge declined the interim custody of the vehicle to the petitioner on two-fold grounds: firstly that it had been used in a heinous crime and, secondly, that the petitioner could not substantiate by documentary evidence his title thereto. 4. The learned counsel appearing on behalf of the petitioner has reiterated his contention which he had earlier raised before the learned Additional Sessions Judge that the abduction was the individual act of the driver for which the owner of the vehicle could not be made to suffer. 5. The sole point for determination in the pesent case is as to whether the petitioner is entitled to the interim custody of vehicle pending trial of urangzeb alias Toru on the serious charge of attempting to commit the offences of 'abduction' and 'zina' in very shuddering circumstances. It is not a case under Section 523 Cr.P.C., of disposal of property simpliciter seized during the investigation and referred to the Magistrate concerned who could pass an appropriate order thereon. On the contrary, it is the case of the prosecution that the accused had committed the offence in and by virture of the vehicle itself. The vehicle in which the two females were seated "appeared to have been used for the commission of offence" occurring in Section 516-A Cr.P.C. No doubt, the interim custody of the vehicle was refused to the petitioner. Nonetheless, the vehicle has been impounded for parking in the Police Station concerned. Neither the learned counsel for the petitioner could point out any illegality in the impugned order nor I could detect one particularly when the vehicle had been allegedly used as a means towards the accomplishment of the crime of a very heinous nature. The petitioner has also not been able to place on record documents to substantiate his claim to the vehicle. Thus the grounds which found favour with the learned revisional Couri in not entertaining the petitioner's prayer are unexceptionable. 6. For the foregoing reasons, I find no substance in this petition under Section 561-A Cr.P.C., which is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Peshawar ) 59 Present: MUHAMMAD BASHIR JEHANGIRI, J NADIR KHAN--Petitioner versus THE STATE-Respondent Criminal Revision No.34 of 1991, accepted on 28.9.1991 Criminal Procedure Code, 1898 (V of 1898)-- —-S.514 read with Section 499-Bail bond-Cancellation of--Recovery of surety amount from person who verified sureties-Challenge to-Whether amount of surety can be recovered from person verifying surety bond-Question of-Law conl em plates a personal bond on behalf of surety for appearance of accused n court—It is surety and not verifier of his person nor verifier of his means to pay amount of surety bond who is liable to pay forfeited amount of bond-Held: rson verifying surety bond does not seem to be covered by Section 514 so as o be made liable to pay amount equal to amount of bond which he verified— etition accepted. [P.60]A&B PLD1972AJ&K42/-C/. Mr. M.Asif K )ian , Advocate for Petitioner. Mr. Shahabuddin Burq, OSD for State. Dale af hearing: 28.9.1991. judgment Nadir Khan, petitioner, verified the bonds in the sum of Rs.15,000/- exccutcd by Musafir Khan and Abdul Maboob sureties in a case against one Abdullah under Sections 379, 377 and 411 P.P.C. The accused failed to appear before the trial Court and in consequence the bonds were forfeited and the sureties were called upon to pay the amount or show cause why it should not be paid. The evidence that was recorded revealed that neither of the sureties, namely, Musafir and Abdul Maboob were possessed of any landed property. Likewise Nadir Khan was also proved to have owned some landed property at the time of verifying the two sureties but when bonds of sureties were foreited, he was also no- more owner of any landed property. The bonds Ex.f •A furnished by the sureties further demonstrated that Malik Nadir Khan, petitioner, had verified that they were owners of landed property. The learned Additional Sessions Judge, who was seized of the case, forfeited the bonds and then issued notice to the petitioner and directed him "to pay the said amount or in default to undergo simple imprisonment for one year". . 2. Mr.M.Asif, the learned counsel for the petit oner, while referring to the authority of Ghulam Qadir v. Sarkar (PLD 1972 Azad J & K 42) contended that Section 499 Cr.P.C. which deals with furnishing of bonds refers only to sureties taking responsibility for the appearance of the accused in accordance with the terms of the said bonds executed by them and that the section does not, therefore, cover a person like the petitioner who obviously is not a surety within the contemplation of the aforesaid section. According to him, in the precedent case of Ghulam Qadir it has also been held that the language of the Forms provided for in Schedule V to the Code of Criminal Procedure does not spell out any provision for verification. 3. Mr.Shahabuddin Burq, the learned counsel for the State, has opposed this revision petition and submitted that the petitioner having wrongly verified the fact knowing fully well that the sureties who furnished bonds for the accused were not possessed of any property to pay the amount in case of forfeiture and, therefore, he was also like the sureties liable to pay the amount of bonds. 4. In Ghulam Qadir's case which is on all fours, Khawaja Muhammad Yusuf Saraf, J., as his Lordship then was, furnished the following answer to the question as to whether, apart from other implications, the verification can be treated as a bond enforceable under Section 514 Cr.P.C.:~"It seems to me that as the said' verification is not provided for by the Criminal Procedure Code, it is not a bond executed under the Code and hence does not attract the application of Section 514 Cr.P.C.".Respectfully subscribing to the view taken in the case of Ghulam Qadir, I am of the considered opinion that the law contemplates a personal bond on behalf of the 'surety' for the appearance of 'accused' in a Court which would be seized of the criminal case against him. It is the surety, and not the verifier of his person nor the verifier of his means to pay the amount of the bond who is liable to pay the forfeited amount of bond. He may be liable for any offence for wrong verification of the capacity of the surety furnishing bond under Section 514 Cr.P.C. but such verifier of the bond does not seem to be covered by that section so as to be made liable to pay the amount equivalent to the amount of bond which he verified. 5. For the foregoing reasons, while accepting the revision petition, I set aside the order of forcfeiture and sentence of his imprisonment passed by the learned Additional Sessions Judge, Peshawar on 30.5.1991. The petitioner shall be set free immediately if he is not undergoing imprisonment or jail custody in any other case. But this order would not operate to absolve the petitioner from any other offence which he may have committed by wrong verification of the bonds executed by the sureties aforesaid. The learned Additional Sessions Judge may, if he deems appropriate, initiate proceedings against the petitioner for any offence which the petitioner might have committed under any law for the time being in force. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Karachi ) 61 Present: QAISER AHMAD HAMIDI, J MUHAMMAD ARIF-Appellant versus THE STATE-Respondent Spl. Criminal Appeal No.25 of 1991 dismissed on 15.9.1991 (i) Criminal Procedure Code, 1898 (V of 1898)-- —S.382-B-Conviction under Section 156(1)(8) of Customs Act-Appeal against- -Whether benefit of Section 382-B was mandatory-Question of--Scope, mp. –rt and scheme of Section 382-B were examined by a Division Bench and it was held that benefit of Section 382-B is not extendable mechanically or as matter of course-It is only when court is satisfied that accused/convict is, in no manner, to be blamed for delay that benefit can be extended-Appeal dismissed. [Pp.62,63&64]D&E PLD 1984 Lahore 204,1985 MLD 641,1987 P Cr L J 855 and 1988 PCrLJ 1567 rel. (ii) Limitation Act, 1908 (IX of 1908)-- —S.5 read with Criminal Procedure Code, 1898, Section 412-Criminal appeal-­ Delay in filing of-Condonation of-Prayer for-Appellant pleaded guilty and accepted verdict of court, but he woke up from sound slumber and filed appeal which is time barred by more than eleven months-Appellant could have preferred jail appeal if he was not in a position to engage an advocate-Court can excuse delay and admit a time-barred appeal for sufficient reasons—Held: No sufficient reasons exist in this case and abnormal delay in filing appeal cannot be condoned-Held further: Only extent or legality of sentence could be assailed in such appeal but leniency has already been shown to appellant. [P.62]A,B&C Sardar Muhammad Ishaq, Advocate for Appellant. Mr. All Nawaz Dahraj, Advocate for DAG for State. Date of hearing: 8.9.1991. judgment Appellant Muhammad Arif was tried for the offence under Section 156(1)(8) of the Customs Act, 1969, by MrNazim Hussain Siddiqui, Special Judge (Customs & Taxation) Karachi, who found him guilty for the said offence and vide judgment dated 24.7.1990 sentenced him to suffer R.I. for three years and to pay a fine of Rs.100,000/- (Rs.one lac) or in default to suffer R.I. for one year. 2. On 17.3.1990 at about 5 A.M. the appellant was intercepted at Terminal III, Karachi Airport while leaving for Amman by flight No.191, and from his possession 2300 grams of powder of heroin was secured. Such inventory was prepared by Nasir Hamid Khan, Preventive Officer, Pakistan Customs and notice under Section 171 of the Customs Act, 1969, was served upon him. After usual investigation the appellant was sent up to stand trial. 3. At the trial the appellant pleaded guilty. The learned Special Judge accepted his pica and took a lenient view for the following reasons :— "Accused pleaded guilty to the charge voluntarily. He has also filed an application Ex.3-B, in which he pleaded guilty and prayed for lenient view. His plea of guilt is not because of any inducement, threat or promise from any quarter. On the contrary, it is for the reason, that, now, he has realised, that he had committed the said offence. Today, in Court also, he expressed remorse for having committed the said offence. Accordingly, I convict accused Muhammad Arif under Section 156(1)(8) of the Cusoms Act, 1969 and sentence him to suffer R.I. for three years and to pay fine of Rs.100,000/- (Rupees one lac), or in default thereof to suffer R.I. for one year. The punishment awarded would meet the ends of justice". 4. The appellant accepted the verdict. He, however, woke up from soundb lumber on 26.8.1991 when he filed this appeal through his counsel which is time barred by more than eleven months. The grounds on which the condonation of the delay in filing this belated appeal are sought are two-folds, firstly, the poverty of the appellant, and secondly the refusal of Superintendent Central Prison Karachi to forward his appeal. Both these grounds are not tenable. Poverty is no excuse to file an appeal after the expiry of appeal period by eleven months. The appellant could have preferred a jail appeal if he was not in a position to engage an advocate. Again there is no reason as to why the Superintendent, Central Prison Karachi, would have refused to forward his appeal, if he was really interested to do so. 5. The provisions of Limitation Act, 1908, are designed to discourage litigation of this nature, which are based on considerations of public policy and expediency. This Court can excuse the delay and admit a time barred appeal for sufficient reasons. No sufficient reasons, however, exist in this case and the abnormal delay in filing the appeal, therefore, cannot be condoned. 6. Section 412 Cr.P.C. again bars this appeal as by pleading guilty to the n charge the appellant has waived his right to question the legality of conviction. MThe extent or legality of the sentence could be assailed in such appeal, but I leniency was already shown to appellant. 7. Finally, there survives the question whether the benefit of Section 382-B Cr.P.C. which was not extended to appellant is a mandatory requirement. The 0 scope, import and scheme of Section 382-B, Cr.P.C. v.cre examined by a Division Bench in Aslam Paivaiz v. Tlie State, reported in P.L.D. 1984 Lahore 204, wherein it was held that benefit under Section 382-B, Cr.P.C. is not extendable mechanically, or as a matter of course. A burden lies on the accused or convict to satisfy the Court that the delay in trial was not the result of his dilatory tactics, but occasioned solely on accout of law's delay. This of necessity would require some sort of inquiry by the Court for its judicial satisfaction. It is only when the Court is satisfied that the accused/convict is in no manner to be blamed for the delay, that the Court would order that period of his custody in jail for the offence in respect of which the sentence of imprisonment is being passed be treated as period already undergone, or in view of such period the Court may correspondingly award lesser sentence of imprisonment. While analysing the scheme of Section 382-B Cr.P.C., it was observed that this provision does not stand on the footing of those mandatory provisions which affect the jurisdiction of the Court in the category of incurable illegalities. 8. While examining the implications of Section 382-B, Cr.P.C. in Nathu Klian v. Tlic State, reported in 1985 M.L.D. 641, it was remarked that although word 'may' used in Section 382-B, Cr.P.C. has been substituted by word 'shall' yet it is subject to judicial discretion and in an offence of rape ; accused, on technical ground, cannot claim benefit as a matter of right. 9. Looking to the gravity of offence, the accused was deprived of benefit under Section 382-B, Cr.P.C. in Rehmat Slier v. Tlie State, reported in 1987 P.Cr.LJ. 855. 10. This view was followed by Sajjad Ali Shah, J. (as he then was) in Islamuddin v. Tlie State , reported in 1988 P.Cr.LJ. 1576. I cannot do better than quoting his Lordship's observation in extenso :— "The question that arises for consideration is whether Section 382-B, Cr.P.C. provides that if such request is made for the benefit of reduction of sentence invariably every request is to be granted or the Court has power to refuse such request as well. Section 382-B, Cr.P.C. has been added by Law Reforms Ordinance and perusal of the language contained therein shows that it has been made mandatory for the Court at the time of passing sentence to take into consideration the period, if any, during which accused was detained in custody. The word used is 'shall' which makes it mandatory, but this applies only for the purpose of taking into consideration the period, accused had remained in custody as undertrial prisoner. It does not necessarily mean that in every case the request is to be granted. It further appears from the language used in this section that it has been left open to the trial Court to grant this benefit in appropriate cases and it is not necessary that whole period, the accused remained underlrial prisoner, is to be deducted, but even part of it can also be deducted. The object of this section is to compensate the accused if he has remained incarcerated for long period as undertrial prisoner and bail was not granted to him. In that context such benefit could be given to him for the whole period or part of it while he remained in detention during the trial and further such benefit could be given in appropriate cases and not necessarily in all cases. It is imperative for the trial Judge to consider this question, but it is further discretionary matter to grant the request or not depending upon the peculiar circumstances of the case". 11. On all the above scores the appeal is liable to be dismissed and is accordingly dismissed in limine alongwith M.A.No.1309 of 1991. The appellant be informed accordingly. (MBC) (Approved for reporting) • Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Lahore ) 64 [ Multan Bench] Present: fazal KARIM, J Sh. MUHAMMAD SHAF1QUE and another-Petitioners versus ABDUL HAMID and another-Respondents Criminal Misc. No.30/Q of 1988, accepted on 17.9.1991 Criminal Procedure Code, 1898 (V of 1898)- —S.561-A-Complaint case under Sections 384,420,468,471/34 PPC- Quashmcnt of--Prayer for~High Court is vested with powers under Section 561-A to quash proceedings if it is satisfied that a false complaint has been brought and process of court was being abused not to advance interest of justice but to subject accused persons to unnecessary harassment~If subject matter of criminal proceedings is a dispute of civil nature, criminal proceedings will be quashed-Held: Facts of this case leave one with clear impression that respondent's criminal complaint was made to exert pressure to achieve an improper end and is abuse of process of court—Complaint quashed. [Pp.68,69&70]A,B,C&D 1968 SCMR 1256,1977 2 All ER 566 and 1987 SCMR 795 rel. Sahibzada Farooq All and Mr. Iltaf Ibrahim Qureshi, Advocates for Petitioners. Mr. Sardar Mahboob, Advocate for Respondent No.l. Mr. Nafees Ahmad Ansari, A.A.G. for State. Dale of hearing: 12.6.1991. judgment This will dispose of Crl.Misc.Nos.30-Q and 34-T and TA. 91-C of 1988. 2. The facts giving rise to these petitions are these. Sh.Muhammad Shafique, the first petitioner in Crl.Misc. No.30-Q of 1988, is &, dealer in agricultural pesticide medicines and has his place of business in Sukkur, Sindh; the third petitioner, Ijaz Akram, is the owner of Sohail Popular Traders and has his place of business in Mian Channu, District Khanewal, and the second petitioner, Nisar Ahmad Qureshi, a resident of Quetta, is stated to be a friend of the first petitioner. By means of builty No.962 dated 17.2.1987, Sh.Muhammad Shafique (hereinafter to be referred to as the first petitioner) despatched pesticide medicines comprising 444 cartons by means of Truck No.1417 MNG of the Sind Hazara Goods Transport Company of the value of Rs.15,62,260/- to Sohail Popular Traders Mian Channu. As the goods did not reach the consignee, the first petitioner had a case under Sections 407, 420 & 406 of the PPC registered at P.S. B-Division Sukkur on 12.3.1987. The Sukkur police started the investigation of the case and in that connection visited Mian Channu. They found that the consignment had been "fraudulently received" by the respondent, Abdul Hameed, (to be referred to as the respondent) "as against Ijaz Akram owner of Sohail Popular Traders". The police arrested the respondent, produced him before the Resident Magistrate and the latter released him on bail on 21.3.1987. On 20.3.1987, the first petitioner and the respondent executed two arbitration agreements, agreeing to refer their dispute to arbitration; the first petitioner nominated Master Muhammad Saeed and Nazar Abbas as his arbitrators and the respondent nominated Muhammad Sarwar Ghazi and Rafi Anwar Chohan as his arbitrators. The arbitrators, in their turn, appointed Ch.Farzand All as the umpire. The arbitrators met on 21.3.1987 and after hearing the parties, found: 1. that the respondent had bu iness dealings with Sh.Majid of Sukkur and that the latter owed a sum of Rs.6,50,000/- to the respondent; 2. that the said Sh.Majid had informed the respondent that he had despatched the goods and that he should receive them; 3. that it was on that representation of Sh.Majid that the respondent had received the goods; and 4. that the respondent had paid, on being told to do so by Sh.Majid, a sum of Rs.3,00,000/- to the first petitioner. The arbitrators decided that the respondent would keep the pesticide medicines worth Rs.3,00,000/- and deliver the remaining pesticide medicines to Mcssers Sohail Popular Traders; that the respondent should pay Rs.15,000/- to the first petitioner on account of expenses and that the respondent should, after deducting the amount of his commission, pay the value of the remaining goods to the first petitioner. 3. 1 n pursuance of this arbitration award, the first petitioner executed an agreement dated 22.3.1987, saying that the dispute in regard to the pesticide medicines of the value of Rs.11,36,470/- had been resolved between him and the respondent; that he had received Rs.4,36,470/- from the respondent and that the respondent had executed in his favour a pronote dated 22.3.1987 regarding the remaining sum of Rs.7,00,000/-. The agreement went on to say that out of those 7,00,000/-, Rs.1,63,530/- would be paid in cash by 30.3.1987 and that the remainder would be paid to him by 31.7.1987. This agreement was attested by Rafi Anwar and Muhammad Sarwar Ghazi. It appears that later a sum of Rs.1,53,530/- (instead of the agreed sum of Rs.1,63,530/-) was paid by the respondent by means of a cheque dated 19th of April, 1987. 4., The respondent filed a complaint on 18.7.1987 against the first petitioner, Sh.Muhammad Shafique, and three others, named Nisar Ahmad Qureshi, Abdul Majid and Ijaz Akram under Sections 468, 471, 384, 500, 506 and 420 of the PPC and instituted a suit for the recovery of Rs.20,23,712/- on 21.7.1987. Both the suit and the complaint were founded on subsequently the same facts. They can be shortly stated as follows. The respondent had business dealing with one Abdul Majid of Sukkur. The latter and the first petitioner were business partners and Nisar Ahmad Qureshi, petitioner, was their friend. The respondent had paid Rs.5,99,304/- to Abdul Majid and he had promised to supply him pesticide medicines but did not do so during the year 1986. On 16.2.1987, the respondent met Abdul Majid in Sukkur and asked for the return of his money. At that time, the petitioners, Sh.Muhammad Shafique, Nisar Ahmad Qureshi and Ijaz Akram, also happened to be with Abdul Majid. They assured the respondent that Abdul Majid would supply pesticide medicines to the respondent. On 19.2.1987, the respondent was informed by Asif Iqbal Manager Mian Channu Goods Transport Company that his goods had reached from Sukkur and that he should receive them. The respondent, however, found that the consignor of the goods vide builty No.962 dated 17.2.1987 was the first petitioner and the consignee of the goods was Sohail Popular Traders Mian Channu. The respondent contacted Abdul Majid on telephone, telling him that the builty was in sombody else's name, yet he had asked him to receive the goods. Abdul Majid and Sh.Muhammad Shafique, petitioner, however, told him that the goods were intended for him and that he should take their delivery and send a sum of Rs.3,00,000/- to the first petitioner. This whole talk was tape-recorded. Later, the respondent received the goods and on 26.2.1987 sent the sum of Rs.3,00,000/- to the first petitioner through the United Bank Limited. There was then some dispute on the payment of commission; the respondent thought that a sum of Rs.2,00,000/- was due to him and the same should be paid to him. This led to some threats from the first petitioner. On 19.3.1987, the respondent and his son were taken to the police station Mian Channu by an ASI, who was accompanied by the first petitioner and his son. There the respondent learnt that on 12.3.1987, the first petitioner had a case under Sections 406, 407 and 420 of the PPC registered against him at Sukkur. The respondent and his son Asif Iqbal were produced before the Resident Magistrate and he released them on bail on 21.3.1987. 5. On 21.3.1987, when the respondent was in police custody, Sh.Muhammad Shafique, Nisar Ahmad Qureshi and Ijaz Akram met him and threatened him with serious consequences, if he did not pay the entire value of the goods; they suggested that he should have the dispute resolved through arbitration. The respondent told them to contact his brother, Abdul Rahim. On the same day, the arbitration agreement referred to above was written. The arbitrators decided the matter and in pursuance of the arbitration award, documents referred to above were written, namely, the agreement by the first petitioner acknowledging the receipt of Rs.4,36,470/- and the pronote promissing to pay Rs.7,00,000/- from the respondent, out of which Rs.1,63,530/- were t be paid by 30.3.1987 and the remainder by 31.7.1987. Accordingly, a sum of Rs.1,53,530/- was paid by the respondent to the first petitioner on 19.4.1987. At the time of that payment, the first petitioner had promised to return an agreement dated 17.2.1987, which Ijaz Akram had allegedly executed in favour of the first petitioner, but on the inquiries made by the respondent, it transpired that no such agreement existed. 6. It was, therefore, the respondent's case in the complaint that the agreement dated 17.2.1987 had been forged and a forged agreement had been produced before the arbitrators and that the accused persons had, by fraud and intimidation, received a large sum of money from the respondent and had also obtained the pronote for Rs.7,00,000/-. It was also said that the criminal case against the respondent was a false case and was cancelled and that owing to that false case the respondent had suffered in reputation and business goodwill. 7. It ought to be mentioned here that the sum of Rs.20,23,712/- claimed in the civil suit of the respondent was made up of Rs.1,23,712/- allegedly paid by the respondent in excess of the sum due, Rs.10,00,000/- for loss of business goodwill, Rs.2,00,000/- on account of physical and mental torture suffered by the respondent on account of the false criminal case, Rs.5,00,000/- on account of loss in business suffered by Asif Iqbal and Rs.2,00,000/- on account of other physical and mental sufferings. 8. It is stated that the petitioners had been summoned to stand their trial but had not yet entered appearance before the trial Magistrate. Although, according to the complaint, the criminal case against the respondent in Sukkur had been cancelled, yet learned counsel for the parties agreed before me that case was pending and that a petition under Section 561-A of the Cr.P.C. seeking its quashment was pending decision. 9. Learned counsel for the petitioners maintained that it was the respondent Abdul Hamid who had committed fraud by receiving the goods of the first petitioner, knowing that the consignee of the goods was Popular Traders Ghalla Mandi Mian Channu. In any case, so argued the learned counsel, the dispute between the parties was a dispute of civil nature and it would be abuse of the process of the Court to allow the respondent to have that dispute resolved through criminal proceedings. In the alternative, learned counsel for the petitioners argued that as the questions raised in the criminal case and the civil suit are the same, the proceedings of the criminal complaint should be stayed under Section 561-A of the Cr.P.C. For his contention, learned counsel relied upon N. Manak Ji v. Fakhar Iqbal and another (1969 P Cr. L J 411). While the learned Assistant Advocate General agreed that the dispute subject-matter of the complaint was a dispute of civil nature, learned counsel for the respondent argued that the facts stated in the complaint disclose the commission of offences mentioned therein and in any case, the questions to be tried in the complaint are questions of fact and cannot be decided without evidence. According to him, the proper remedy for the petitioners is an application under Section 249-A of the Cr.P.C. 10. It is well settled that the power under Section 561-A of the Cr.P.C. is an extra-ordinary power; that every case should be allowed to proceed according to law and that resort to the provisions of Section 561-A of the Cr.P.C. "should not be lightly made, as this would circumvent the due process of law". However, each case "must be judged on its own special facts and circumstances" and there is power "vested in the High Court to quash criminal proceedings, if it was satisfied that a false complaint had been brought and the process of Court was, therefore, being abused, not to advance the interests of justice but to subject the accused persons to unnecessary harassment". (See Raja Haq Nawaz v. Subedar Sakhi Muhammad and others - 1968 SCMR 1256). 11. The power, which Section 561-A of the Cr.P.C. recognizes to exist in the High Court to prevent abuse of the process of any Court is an inherent power. The reason why this power exists was stated by Lord Denning MR in Goldsmith v. Sparing; Ltd. (1977 2 All ER 566, 574):- "In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervente to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. Sometimes abuse can be shown by the very steps being taken in the courts" At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself, then it is a wrong known to the law. This appears distinctly from the case which founded this tort. It is Grainger v. Hill ((1838) 4 Bing NC 212) which arose out of the old process of capias. The plaintiff recovered damages for abuse of the process. It had been abused because it had been taken, as Tindal CJ said: 'to effect an object not within the scope of the process ': and as Bosanquet J said: 'the process was enforced for an ulterior purpose'". 12. It is on this principle that it has been held that if the dispute subjectmatter of the criminal proceedings is a dispute of civil nature, the criminal proceedings will be quashed under Section 561-A of the Cr.P.C. (See Muhammad Ali and another v. Assistant Commissioner, Narowal and another-1981 SCMR 795). 13. Now the facts, which stand out clearly, are that pesticide medicines of the value of Rs.11,00,000/- or more were despatched by means a truck from Sukkur by the first petitioner for Sohail Popular Traders Mian Channu; that those goods were received by the respondent, knowing that the goods were intended for Sohail Popular Traders Mian Channu and not for him; that a case under Sections 420, 407 etc. of the PPC was registered against the respondent at Sukkur on 12.3.1987; that in connection with that case, the respondent was arrested in Mian Channu by an ASI on 19.3.1987; that the first petitioner had xecuted an agreement on 20.3.1987 and the respondent on 21.3.1987 referring the dispute to arbitration; that the first petitioner had nominated Master Muhammad Saeed and Nazar Abbas as his arbitrators and the respondent had nominated Muhammad Sarwar Chohan and Rafi Anwar; all residents of Mian Channu; that the arbitrators had, in their turn, appointed Ch. Farzand as umpire and that the arbitrators entered upon the reference and gave a unanimous award on 21.3.1987 resolving the dispute in the manner stated above. 14. Through it was said that when the respondent was approached by the petitioners for the matter to be referred to arbitration he was threatened that if he did not agree, he would suffer humiliation, yet it does not appear to be the case of the respondent that he had not entered into the arbitration agreement of his own accord. He had referred, the petitioners to his brother Abdul Rahim and it was probably on his intercession that the arbitration agreements were executed. Nor does it appear to be the respondent's case that he had not taken part in the arbitration proceedings. The arbitrators nominated both by he first petitioner and the respondent were all from Mian Channu, to which place the first petitioner was obviously a complete stranger. That the respondent has no grievance to make against the arbitration agreement and arbitration award is also clear from the fact that he has not challenged them in any court of law. Even in the civil suit, no allegations going to their validity were made. Not only that but the espondent had, by executing a pronote in as big an amount as Rs. 7,00,000/- and paying part of it, Rs. 1,53,530/-, also acted upon the arbitration award. The agreement dated 17.2.1987 (in) which it was said that first petitioner had promised to deliver to therespondent and which was later found to be a forged document was an agreement between the first petitioner and Ijaz Akram. Its copy has not been placed on the record and it is not known what it was about. 15. This is, therefore, one of those exceptional cases, in which the facts leave one with the clear impression that the respondents criminal complaint dated 18.7.1987 was made to exert pressure to achieve an improper end and is, therefore, abuse of the process of the Court. It was a counterblast to the criminal case against the respondent registered at Sulckur on 12.3.1987 and was a means, and if I may say so, unfair means, to resolve a dispute of purely civil nature, namely, whether the payments made or promised to be made by the respondent to the first petitioner were or were not due to him in pursuance of the arbitration agreements and the award referred to above. It is also plain that whether or not the criminal proceedings against the respondent pending at Sukkur are false and the resulting arrest of the respondent and his son at Mian Channu can give rise to a cause of action under Sections 500 and 506 of the PPC is a question, which must wait till the decision of the Court in those proceedings. 16. In the result, the complaint case dated 18.7.1987 against the petitioners is hereby quashed. Consequently, transfer application No.34-T of 1988 is dismissed as having become infructuous. 17. Learned counsel for the petitioners did not press T.A. No.91-C of 1988. It is dismissed as withdrawn. (MBC) (Approved for reporting) Proceedings quashed.

PLJ 1992 Cr PLJ 1992 Cr.C.( Lahore ) 71 Present: muhammad munir khan, J AHMAD DIN--Appellant versus THE STATE-Respondent Criminal Appeal No.888 of 1989, accepted on 10.6.1991. Pakistan Penal Code, 1860 (XLV of 1860)-- —S.161—Illegal gratification—Receipt of—Conviction for—Challenge to— Statements of prosecution witnesses suffer from material contradictions-It is doubtful that appellant had received tainted currency notes as illegal gratification—Magistrate and Inspector Police did not hear any conversation between complainant and appellant before money changed hands—Appellant has not denied to have received tainted money but his explanation from time of raid upto last was that complainant had given this amount to him for giving same to Ghulam Rasul—Statement of decoy witness cannot and should not be accepted without independent corroboration which is not there—Held: There is no satisfactory basis to uphold conviction-Appeal accepted. [Pp.73&74]A&B Mr.Ghulam Hussain Qureslii, Advocate for Appellant. Mr.S.D.Qureshi, Advocate for State. Date of hearing: 10.6.1991. judgment This Criminal Appeal No: 888/89 arises from the judgment of learned Special Judge Anti-Corruption, Lahore, whereby he on 12.12.1989 convicted Ahmad Din appellant under section 161 P.P.C. and sentenced him to 6 months R.I. and a fine of Rs. 2000/-or in default thereof 2 months R.I. 2. The charge against him was that he demanded illegal gratification and received Rs. 4400/-as illegal gratification from Muhammad Siddiq complainant on different dates, which were subsequently recovered from him by the Anti- Corruption Police and the Magistrate. The allegations are that he received Rs. 3900/-before raid and Rs. 500/-on 6.1.1988 just before the raid. He denied the charge and claimed to be tried. 3. To prove its case, prosecution produced 5 witnesses. Muhammad Siddiq complainant appeared as P.W. 4. He stated that Ahmad Din appellant was working as Girdawar Qanungo. He demanded bribe from him in a demarcation matter. Before the date of raid, he received Rs. 2900/-from him in the village and Rs. 1000/-in Lahore Hotel, Lahore and Rs. 500/-at the time of raid, which were recovered from him by the Magistrate. Javed Iqbal P.W. 1 stated that in his presence, the appellant had received Rs. 1000/-as illegal gratification in his ffice (and) also received Rs.2900/- as illegal gratification rom the complainant, before raid. It may be noted that in his statement before the police, copy Ex.DA, this witness had stated that Rs.1000/ -were received by the appellant from the complainant in the premises of District Courts. The witness further stated that during investigation, the appellant had got recovered Rs. 3900/-from his house which were taken into possession by the appellant vide memo x.PW /1 attested by him. Liaqat Ali P.W. 3 is witness of the receipt of Rs. 3900/-by the appellant from the complainant before raid. He stated that Muhammad Siddiq complainant had paid Rs. 2900/-to the appellant in Lahore Hotel, Lahore and 5/6 days thereafter he paid Rs. 1000/-to him (appellant) in the premises of District Courts in his presence and that during investigation the appellant got recovered Rs. 3900/-from a Box lying in his house which were taken into possession vide memo Ex.PW 1/1 attested by him. Muhammad Ashraf Yousafi Magistrate P.W. 2 and Zulfiqar Ali, DSP., P.W. 5 were produced to prove raid proceedings, receipt of Rs. 500/--as illegal gratification by the appellant and subsequent recovery of tainted currency notes and of Rs. 3900/-from the appellant. They supported the prosecution case. They stated that within their view, the appellant had received Rs. 500/-from Muhammad Siddiq which were recovered from his possession. 4. When examined under section 342 Cr.P.C., the appellant denied all the incriminating circumstances. Admitting the receipt of the tainted currency notes of Rs. 500/-from the complainant and the recovery thereof from him by the Magistrate, he (appellant) explained that Muhammad Siddiq had given him Rs. 500/-for passing on to Gulam Rasool whom he owed the same. He produced Hamid Ghaffar D.W, 1, Sher Muhammad D.W. 2 and Gulam Rasool D.W. 3. He as D.W. 4, gave evidence on Oath in. disproof of the charge against him. 5. Believing the prosecution case and disbelieving the defence version, the learned trial Court has convicted and sentenced the appellant as stated above. 6. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubts; that the Magistrate and the Inspector had not heard conversation between the appellant and the complainant at the time of raid; that Javed Iqbal P.W. 1 and Liaqat Ali P.W. 3 are interested witnesses and that the statements made by them suffer from material contradictions and that there is reasonable possibility of the defence version being true. Conversely, the learned counsel for the State has supported the conviction and sentence of the appellant. 7. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the appellant. According to the prosecution case, the appellant had received Rs. 2900/-as illegal gratification from the complainant before the date of raid in the presence of Javed Iqbal, P.W. 1 and Liaqat Ali P.W. 3. I find that the statements' of these witnesses suffer from material contradictions inasmuch as, Javed Iqbal P.W. 1 'stated that Rs. 2900/-were paid to the appellant in Lahore Hotel, Lahore and Rs. 1000/-were paid to him in his Office. Muhammad Siddiq P.W. 4 stated that at the time of the payment of Rs. 2900/-to the appellant Javed Iqbal P.W. was not present, and that Rs. 1000/-were paid to the appellant in Lahore Hotel Lahore. Liaqat Ali P.W. 3 stated that Rs. 1000/- were paid to the appellant in the premises of District Courts and Rs. 2900/-were paid to him in Lahore Hotel Lahore. Muhammad Siddiq complainant stated that Rs. 2900/-were paid to the appellant in the village. I iaqat Ali P.W. 3 is uncle of the complainant. The complainant was tenant of Javed Iqbal P.W. 1. There was no independent/Official witness at the time of the payment of Rs. 2900/-as illegal gratification by the complainant to the appellant. For these reasons, I feel that the prosecution has failed to prove beyond reasonable doubt the receipt of Rs. 2900/- as illegal gratification by the appellant. 8. Adverting to the allegations of the receipt of Rs. 500/-as illegal gratification by the appellant from the complainant on the day of raid, I find that it is doubtful that the appellant had received the tainted currency notes of Rs. 500/- as illegal gratification. The reasons are that the Magistrate and the Inspector Police did not hear any conversation between the complainant and the appellant before the money changed hands. The appellant has not denied to have received the tainted money from the complainant at the time of raid. His explanation from the time of raid upto the last was that the complainant had given him Rs.500/- for giving to Ghulam Rasool and that just after the raid, the Magistrate recorded the statement of the appellant Ex. PW. 2/3, in which he stated:- He stuck to this statement at the time of recording his tatement under Section 342 Cr.P.C. and his statement on Oath under Section 340(2) Cr.P.C. Since the Magistrate and the Inspector had not heard the talk between the complainant and the appellant at the time f raid, therefore, the reasonable possibility that the appellant might not have received the tainted money as illegal gratification and might have received the same for passing on to Ghulam Rasool, cannot be excluded. Furthermore, on the nature of the transaction, the statement of the decoy witness remains in field which, in the circumstances of the case, cannot and should not be acted upon without independent orroboration, which I do not see in the case in hand. So, there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted. The conviction and sentence f the ppellant s set-aside. He is on bail. He stands discharged of the bail-bonds. 9. The trial Court had directed that the currency notes Ex.Pl to P20 valuing Rs.4400/- belonged to the complainant and the same be returned to im. Learned counsel for the appellant has claimed Rs.3900/- on the ground that the appellant having been acquitted of the charge is entitled to the return of the same. Admittedly, the currency notes Ex.Pl to P20 valuing Rs.3900/-) were produced before the police by the appellant. There is nothing in evidence to show that these currency notes Ex.P6 to P20 were paid by the complainant to the appellant. Furthermore, the legations of the receipt of Rs.3900/- by the appellant from the complainant before raid date have not found favour with this Court. In these circumstances, I feel that the appellant is entitled to the return of urrency notes Ex.P6 to P20 to him. So the order of the trial Court to the extent of the direction for payment of Rs.4400/- is modified. It is directed that the tainted currency notes Ex.Pl to P5 worth Rs.500/- will e eturned to the complainant and the remaining currency notes Ex.P6 to P20 will be returned to Ahmad Din appellant. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr. C ( Lahore ) 75 Present: S.M. zubair, J RIAZ MAHMOOD BUTT alias TOWNA-Petitioner versus THE STATE-Respondent Criminal Misc. No. 2554/B of 1991, dismissed on 19.11.1991. Bail- —-Offence under Sections 302/324/34 PPC--Bail--Grant of--Prayer for—Court is bound to give due regard and weight to opinion of police officer provided it is based on concrete material-In this case opinion of .P City is based on oral assertions of certain persons who are neither witnesses nor residents of nearby vicinity whereas eye-witnesses in their statements .under Section 161 Cr.P.C have supported prosecution ersion-Bail refused. [P.76JA & B 1983 P.Cr.LJ. 502 followed . Mr. Zafar Pasha Chaudhry, Advocate for Petitioner. Mr. Masood Sadiq Mirza, Advocate for State. Mr. S.M. Nazim, Advocate for Complainant. Date of hearing: 19.11.1991. order Riaz Mahmood Butt alias Towna, petitioner, who is involved in a case under sections 302/324/34 PPC, arising out of FIR No. 104/91, dated 17-4-1991, registered at Police Station Shad Bagh, Lahore, seeks to be released on bail. The allegation against the petitioner is that he fired at Saeed-uz-Zaman, which hit him on his chest and a minor girl named Amina also suffered an injury. Learned counsel for the petitioner claims bail on the ground that the petitioner was found innocent by the S.P. (City) Lahore , during the course of investigation, hence his case falls within the ambit of further inquiry and he is entitled to bail as a matter of right. Placed reliance on Zimni No. 32 dated 30.6.1991 of the S.P.City, and also the affidavit of one Abdul Waheed, father of minor girl Mst. Amina, who was allegedly injured in the occurrence. In the affidavit the deponent has stated that he told the persons present at the spot that some unknown person after injuring his daughter and Saeed uz aman had decamped in the darkness of night. On Court's direction, the S.P. City, Lahore has appeared. He submitted that he examined five persons, namely, Muhammad Siddique, Rauf Ahmad, Tariq ahmood, Muhammad Bashir and Ghulam Muhammad, who deposed that the petitioner came at the spot when the incident was over. He further submitted that after secret and open enquiry he came to the conclusion that the petitioner did not join hands with his co-accused and arrived at the spot immediately after the occurrence and that is why his name has been mentioned in the FIR. 4. Learned counsel for the State assisted by the learned counsel for the complainant has urged that opinion of the police officer per se is not binding on the Court, but deserves to be given serious consideration and great weight, of course, depending upon the material on the basis of which this opinion is formed. Learned counsel for the complainant also submitted that opinion of the police officer is not binding on the Court, but the Court is required to probe into the matter further to find out whether this opinion is based on some concrete facts or not. 5. After hearing the learned counsel for the parties and perusing the police record I find substantial force in the submission of the learned counsel for the State and the complainant that the Court is bound to give due regard and weight to the opinion of the police officer, provided it is based upon certain concrete material. The examination of Zimni No. 18 and the one referred to above, on the basis of which the S.P. City came to the conclusion that the petitioner was involved falsely in this case, reveals that it depends on the oral assertions of certain persons, who are neither the witnesses nor residents of nearby vicinity, whereas the eye-witnesses in their statements under section 161 Cr. P.C. have supported the prosecution version in the F.I.R. In Barkha and another Vs. The State (1983 P.Cr.LJ. 502), the eye-witnesses in their statements under section 161 Cr.P.C. supported the allegation in the F.I.R. Certain respectables of the village who had not seen the occurrence and had no knowledge of whereabouts of accused at time of occurrence, deposed about the innocence of the accused. It was held that the evidence of the respectables of the village is hearsay evidence and should have no persuasive value even during the investigation of a case. Ultimately, the learned Judge declined to admit the accused to bail, as direct evidence connecting him with the crime was available. 6. Following the observations in the above referred case coupled with the fact that the trial has commenced, I do not think it desirable to enlarge the petitioner on bail. The under consideration petition is accordingly dismissed. (MBC) (Approved for reporting) Bail refused.

PLJ 1992 Cr PLJ 1992 Cr.C (Karachi) 76 Present: syed ABDUR rahman, J Syed SAGHIR AHMAD NAQVI-Applicant versus ''TAUDDIN and another-Respondents Criminal Original No. 23 of 1990, decided on 10.9.1991. (i) Contempt of Court- —Contemptuous paragraph in plaint-Notice of Contempt of Court-Issuance of~Application of contemner to summon defence witnesses including Presiding Judge of High Court, has been made only to delay, efeat and protract proceedings and publicise contempt-Conduct of contemner throughout contempt proceedings was reprehensible—Instead of submitting himself to mercy of court, contemner Advocate took up n arrogant and disrespectful attitude from very beginning-Paragraph 8 of plaint was drafted by contemner Dr. Hameed Ahmad Ayyaz, Advocate and Contemner Ziauddin has not disassociated himself from rafting of this para, nor has he submitted an apology-Held: Contemners' conduct throughout was such that they deserve no sympathy from court—Contemners convicted. [Pp.80,81,84&85]A&D (ii) Contempt of Court Act, 1976 (LXIV of 1976)- —S.4-Contemptuous paragraph in plaint—Notice of contempt of court- Issuance of--Objection that allegations contained in paragraph 8 of plaint are true and correct and, therefore, contempt proceedings cannot be taken against contemners—Truth or correctness of contemptuous statement cannot be treated as a defence in contempt proceedings-Held: Contemners had presented plaint containing culpable para, in Court of Senior Civil Judge to bring authority of a Court and administration of law into disrespect and disrepute, to lower authority of court and scandalize a Judge and thereby committed an offence under Section 4 of Contempt of Court Act, 1976. [Pp.81&84]B & C PLD 1950 B.J. 36, PLD 1980 Journal 65PLD 1961 SC 237, PLD'1973 Lahore 1,1969 P Cr LJ 920, NLR 1988 (Cr.) Kar. 709 (DB), PLD 1962 Lah. 335, PLD 1955 FC 98, PLD 1972 SC 115, PLD 1969 Lah. 495, PLD 1975 Lah. 534 and PLD 1970 SC 350 ref. Contemners Ziauddin and Dr. Hameed Ahmad Ayyaz, Advocate in person. Mr. S.Z-A. Qureshi, Advocate for AAG. Mr. Muhammad Sharif Advocate as amicus curaie. Date of hearing: 25.6.1991. judgment These contempt proceedings against Contemners Ziauddin and his Advocate Dr. Hameed Ahmed Ayaz have been initiated on a reference made by Civil Judge Mr. Saghir Ahmed Naqvi, which was admitted to regular hearing by my learned brother Mr. Justice Nasir Aslam Zahid on 7-10-1990 and notice was issued to the contemners to appear personally before this Court. 2. Brief facts of the case are that Contemner Ziauddin had filed Suit No. 694/1990 in the Court of Civil Judge No. 12, South, Karachi, through his advocate Contemner Dr. Hameed Ahmed Ayaz. On 23-8-1990 Mr. Saghir Ahmed Naqvi, who was link Judge of that Court, passed an order under Order-VII Rule-10 C.P.C. returning the plaint for presentation to the proper Court. The plaint was taken back but was filed again in the same Court after adding, inter-alia, a contemptuous para which reads as unden- "The learned Mr. Sagheer Ahmed Naqvi (XlVth Civil Judge, South, Karachi) deliberately, wilfully, intentionally, malafidely, corruptly and without jurisdiction passed an order in the Suit, returning the Plaint U/Order-7 Rule-10 C.P.C., for presenting the same before the proper forum, on the ground that the suit was, to be valued on the market price of the movable properties contained in the subject shop. The plaintiff is bound to exercise his right of appeal against the said order of the Link Judge, and also to avail his remedies for damages against the defendants abovenamed as well as the said Link Judge of this Honourable Court, in addition to invoking his relief U/S 219 P.P.C., at the appropriate time." 3. In response to the said notice, Dr. Hameed Ahmad Ayaz appeared before the Court on 28-10-1990, while Ziauddin appeared on 10-11-1990. Instead of tendering an apology or filing any reply, they resorted to dilatory tactics and filed Misc. Application No. 1854 of 1990. In this miscellaneous application the contemners contended that the contempt notices, which 'some-one in the Court office drafted, prepared, sealed and caused to be served purportingly contempt' notices upon the respondents' conveying that Mr. Justice Nasir Aslam Zahid has taken exception to the language used in paragraph 8 of the plaint which was reproduced in the said application for the sake of convenience, does not attract the provisions of Contempt of Court Act. Furthermore its cognizance was barred under Section-6 of the Contempt of Court Act as (/) the contents of para-8 of the plaint were true and correct, and (if) the alleged contempt was an offence punishable under P.P.C. It was, therefore, prayed that the contempt roceedings should be dropped. In support reliance was placed in the case of Ikratnullah vs. Ttie State (1969 P.Cr.LJ. S.C. 920) and in the case of NA. Gazdar vs. Hassan Akbar and others (1988 Cr. Kar. 709) (?). 4. Contemner Dr. Hameed Ahmed Ayaz, Advocate took up an arrogant attitude and insisted that his miscellaneous application be admitted to regular hearing and notice be issued thereof. Since the application was based on illegal and flimsy grounds and was made with the purpose of delaying, defeating and obstructing the proceedings and publicising the contempt, therefore, it was decided not to admit the same and not to issue any notice thereof. The contemners were asked to file reply to the contempt notices issued to them on which they requested for an adjournment to file written reply. The case was, therefore, fixed on 17-2-1991, on which date the contemner Ziauddin alone appeared, while contemner Dr. Hameed Ahmed Ayaz did not appear and sent an application for excusing his personal appearance on the ground that his son was kidnapped. Absence of contemner Dr. Hameed Ahmed Ayaz was excused for that date only and it was ordered that he should appear in person on the next date of hearing. On 3-3-1991 both the contemners appeared in person and filed written reply to the contempt notice. In the written reply it was stated that the proceedings were without jurisdiction, unlawfull, coram-non-judice, null and void and that Misc. Application No. 1854/1990 be treated as part of the reply. The contemners reproduced para-8 of the plaint and re-iterated that it was not contemptuous. It was, therefore, requested that the above miscellaneous application be allowed, notices be discharged and action be taken against the Civil Judge. Contemner Dr. Hameed Ahmed Ayaz also filed an application for stay of proceedings pending final disposal of the intra-court appeal filed by him against the order dated 3-3-1991. Arguments of Mr. Mohammad Sharif, Advocate, who was appointed Amicus-Curiae, were heard on 5-5-1991, so also the arguments of contemner Dr. Hameed Ahmed Ayaz. The Amicus-Curiae expressed the view that the contemners had committed gross contempt and were not at all entitled to the protection of any provision of Sec.-6 of the Contempt of Court Act and therefore, Court should proceed to punish them. The Court, therefore, did not consider it proper to drop the proceedings or to stay the same and decided to proceed with the case. Accordingly a charge was framed against the Contemners which reads as unden- "I, Justice Syed Abdur Rahman, Judge Sindh High Court, do hereby charge you; (1) Ziauddin s/o Abudl Aziz and (2) Dr. Hameed Ahmad Ayaz, Advocate, as follows:- That you on 27-8-1990 presented a plaint in the Court of Xllth Civil Judge (South), Karachi, para-8 whereof reads as under:- "The learned Mr. Sagheer Ahmed Naqvi (XlVth Civil Judge, South, Karachi) deliberately, wilfully, intentionally, malafidely, corruptly and without jurisdiction passed an order in the suit returning the plaint U/Order-7 Rule- 10 C.P.C. for presenting the same before the proper forum." The said words tend to bring the authority of a Court and the administration of law into dis-respect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office and thereby you have committed an offence punishable under Sec.-4 of the Contempt of Court Act, 1976 and within my cognizance. I direct that you be tried by me for the said offence." The contemners pleaded not guilty to the charge and claimed to be tried. Main points for determination in this case are; (1) whether the contemners have filed plaint containing the above words? and (2) whether the said words tend to bring the authority of a Court and the administration of law into dis-respect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office? 5. My findings on both these points are in the affirmative for the following reasons:- On 12-5-1991 Abrar Hussain, Clerk of Xllth Civil Judge South, Karachi was examined, who produced the file of Suit No. Nil/1990 filed by the contemners, containing the contemptuous para of the plaint. It contains the signatures of both the contemners. Thereafter statements of contemners were recorded under Section 342 Cr.P.C. In his statement contemner Ziauddin admitted having filed the plaint containing the contemptuous para and having signed and verified the same. In reply to the question as to whether para-8 of the plaint was in accordance with his instructions, he replied that he cannot say any thing in this regard. He did not offer to examine himself on oath, nor he wanted to lead any defence evidence. Contemner Dr. Hameed Ahmed Ayaz also admitted having filed the plaint and having signed the same. He, however, changed his stand and for the first time alleged that the plaint which he had drafted did not contain the disputed para-8. He offered to examine himself on oath and to lead defence. On 25th June, 1991 further statement of Dr. Hameed Ahmed Ayaz was recorded wherein he was asked as to whether he has made Misc. Application No. 1854/1990 and signed it which reproduces the disputed para-8 at page-2. He admitted having done so, but explained it that para-8 was copied by him from the record of the suit supplied to him by the Court. His denial was false and malafide on the face of it and was a brazen faced lie. His consistent stand in the Court throughout was that culpable para was true and correct and was drafted by him. In his further statement under Section 342 Cr.P.C. when he was confronted with previous application containing the culpable para, he had to admit having drafted the same, but took yet another false stand that he had copied it out from the copy of plaint supplied to him. From the above evidence it is proved beyond shadow of any doubt that the contemners had filed the plaint in above stated suit which contained words which tend to bring the authority of a Court and the administration of law into disrespect and disrepute and to lower the authority of the Court and scandalize a Judge in relation to his office. Dr. Hameed Ahmed Ayaz was then asked to step into the witness-box to examine himself on oath, but he refused to do so. He insisted that Court should pass order on his Misc. App/ication No. 1854/1990. 6. Contemner Dr. Hameed Ahmed Ayaz gave an application wherein the same legal pleas and allegations as mentioned above were repeated and a list of 13 witnesses was given which included the name f the undersigned (Syed Abdur Rahman, J.). Being of the opinion that the application to summon these witnesses including the Presiding Judge, has been made only to delay, defeat and protract the proceedings and publicise the contempt, the Court decided not to issue any summons to the so-called defence witnesses and reserved the case for pronouncement of Judgment. The conduct of the petitioner throughout the contempt proceedings was reprehensible. Instead of submitting an unconditional apology and throwing himself at the mercy of the Court, he took up an arrogant and disrespectfull attitude from the very beginning. He took the plea that whatever he had written in para-8 of the plaint was true and justified and instead of expressing sorrow for what he had done, he unwisely endeavoured to take protection behind legal provisions of Section-6 of the Contempt of Court Act, 1976 which did not apply to the case. He was unscrupulous to the extent that he took a summersault and denied that para-8 was not at all drafted by him and that it was subsequently forged and Introduced therein by the Court or some one else. However, when his own application admitting and reproducing that culpable para was brought to his notice, while recording his further statement under Section 342 Cr.P.C., he became further unscrupulous. He neither singed the statement, nor did he step into the witness-box to give evidence on oath as earlier desired by him. Then he gave an application for summoning as many as 13 defence witnesses which included Clerk Abrar Hussain, who was already examined as P.W. and to whom he had put questions through the Court, Mr. Rehamt Hussain Jafri, Judge Small Causes Court, Syed Asghar Ali Shah, Superintendent Crime Branch of this Court, Civil Judge Xlth South Karachi, District Judge, South Karachi, Mr. Mohammad Sharif Advocate/y4m/c»s Curiae, Mr. Z.H. Qureshi Advocate for the State and even the undersigned. Hence I was satisfied that the contemner did not want to bonafidely lead defence and has made this application only with a view to protract and prolong the proceedings and harass and bring into further disrepute and disrespect subordinate judiciary as well as superior Judges and had crossed all the limits of decency and morality. Hence I dismissed his application and reserved the case for announcement of Judgment. I am, therefore, satisfied that para-8 of the plaint was drafted by contemner Dr. Hameed Ahmed Ayaz. Coaccused/contemner Ziauddin has not dis-associated himself from the drafting of this para, nor has he submitted an apology. His attitude is also reprehensible. 7. Now I would advert to the legal objections raised by contemner Dr. Hameed Ahmed Ayaz. The first legal objection of contemner Dr. Hameed Ahmed Ayaz is that the allegations contained in para-8 of the plaint are true and correct and therefore, contempt proceedings cannot be taken against him. The objection of the contemner is not correct. The truth or correctness of the contemptuous statement cannot be treated as a defence in contempt proceedings. In the case of Crown vs. Abdul Rahman (P.L.D. 1950 B.J. 36) it was held that "establishing truth of allegations is no defence to the charge of contempt of Court. A libellous statement which amounts to interference with the Courts of justice amounts to contempt even though the defendant is prepared to justify the libel." Similar point had arisen in the case of State vs. Majeed Nizami (P.L.D. 1980 Journal 65), where it was held that "truth of accusation cannot be pleaded as defence in proceedings for contempt." In the case of Sir Edward Snelson Vs. Judges of the High Court of West Pakistan (P.L.D. 1961 S.C. 237) it was held that "plea of truth of offending matter is not admissible in cases of contempt of Court." It may be pointed out that Sir Edward Snelson was at that time Federal Secretary for Law to the Government of Pakistan and the allegation against him was that he had made certain statements during the course of a speech to which exception was taken by the Court which was of the view that it was contemptuous. Sir Edward Snelson was not allowed to raise the plea that the offending matter was true and consequently he was convicted and sentenced. In the case of State vs. Mujibur Rehman (P.L.D. 1973 Lah. 1) one of the reasons advanced by the respondents and their counsel for specification of the culpable portion of the article was that they could then be in a position to prove the truth of their allegation. It was held that "according to the settled law, it was not open to a contemner to plead justification of the contemptuous matter. Justification of the seditious or contemptuous matter is not allowed under the law because if this is done, the mischief shall be multiplied and the witnesses who appear in defence of an accused in a sedition case or a contempt matter shall repeat the same seditious and contemptuous matter in the witnesses-box with the result that the mischief, which the law intends to suppress, shall spread all the more wider and public confidence will be further undermined in the organs of the State." 8. The second legal objection was that the alleged contempt was punishable as an offence under PPC and therefore, its cognizance should not.be taken. In this connection it may be useful to reproduce the relevant portion of Section-6 of the Contempt of Court Act which reads as unden- "6. Bar to taking cognizance.--(I) No High Court shall take cognizance under this Act of a contempt alleged to have been committed in respect of a Court subordinate to it where the said contempt is an offence punishable under the Pakistan Penal Code (Act XLV of I860)." The case oflkramullah vs. State (1969 P.Cr.LJ. 920, which is also reported as 1969 S.C.M.R. 369) referred by the contemner, relates to a contempt imputed to the appellant which fell within the purview of Section 228 PPC and therefore, it was held that "High Court had no jurisdiction for proceeding in such case." The facts of that case are reproduced from the report as under:- "The appellant was alleged to have refused to receive certain papers sent by a lawyer Magistrate to the Court of the Sessions Judge, in connection with a petition pending in the latter's Court. On the facts being brought to the notice of the learned Sessions Judge, he proceeded to censure the appellant and directed that he should be transferred to the Court of a Sub-Judge. On hearing this order pronounced, the appellant is said to have become rude and to have exclaimed that he was being punished for no fault of his, simply because the Lawyer Magistrate who had complained against him, was related to the Chief Justice of West Pakistan. The appellant was reprimanded by the Sessions Judge and ordered to go out. It is stated that even thereafter he went on voicing his resentment in a loud tone in the verandah of the Court room for sometime. The Sessions Judge, therefore, charge-sheeted him for insubordination and rude behaviour and also reported his conduct on the telephone to the Additional Registrar of the West Pakistan High Court, Peshawar Bench. Later he submitted a full report of the incident to the Additional Registrar, which was put up before the Senior Judge of the Peshawar Bench, who ordered the issue of a contempt notice to the appellant." The case of Ikramullah vs. State is altogether distinguishable from the present case on the facts. The next case referred to by the contemner is of M.J A. Gazdar vs. Hassan Akbar (NLR. 1988 (Cr.) Kar. 709 (DB)). The same is also reported as 1987 M.L.D. Kar. 2169. This was the decision of a Division Bench of this Court of which I was also a member. The case of M.J.A. Gazdar is also . distinguishable from the present case. Contemner MJ.A. Gazdar had made certain allegations in his revision application which he had filed in this Court to which exception was taken and contempt notice was issued before disposing off the revision application. It was, therefore, held that in view of sub-section (3) of Section 6 of the Contempt of Court Act, cognizance could not be taken because the review proceedings had not bee finalised by the time the contempt proceedings against the contemner had been started. In the case of State vs. Abdul Azeez (PLD 1962 Lah. 335) the same question came for consideration and it was held that sub-section (3) of Section-2 of the Contempt of Courts Act 1926 means that if contempt of Court was committed with regard to a Court subordinate to the High Court and the act which constituted that offence was punishable under the Penal Code as contempt of Court, the power envisaged by the Contempt of Court Act shall not be exercised by the High Court. Sub-section (3) does not mean that if the act which amounts to contempt of Court is punishable under the Penal Code 1860 not as contempt of Court under Section 228, but as some other offence, jurisdiction of the High Court under the Contempt of Courts Act is ousted. Similar view was taken in Abdul Rasheed vs. Mehr Falak Sher (PLD. 1955 F.C. 98) where it was held that "offence punishable under the Penal Code" means offence punishable as contempt. The prohibition contained in sub-section (3) is limited in cases punishable under Section 228 PPC as contempt of Court, but not otherwise. The expression "offence punishable under the Penal Code" in sub-section (3) does not imply offence of every description punishable under the Code. In this connection it will not be out of place to refer to the case of Yousuf Ali Khan, a Legal Practitioner, of Lahore, who was in the habit of scandalizing Judges. He addressed a letter to the President of Pakistan deliberately levelling therein maliciously false allegation against Judges of superior Court. His action was held to have constituted a gross contempt. Reference is invited to the case of Attorney General Pakistan vs. Yousuf Ali Khan (P.L.D. 1972 S.C. 115). Yousuf Ali Khan had also made an application on behalf of his client wherein he had made wanton and reckless attacks on the integrity and dignity of the Court. He was held guilty of contempt and sentenced to one month's simple imprisonment and a fine of Rs. 1,000/-, in the case reported as State vs. Yousuf Ali Khan (P.L.D. 1969 Lah. 495). The same Advocate then made averments in an application in Court to the effect that "it is also apparent from his (Court's) evasive attitude and the ambiguous and evasive order passed that he intends to prevent framing of the only relevant issue and to make the petitioner suffer a loss of the case. It was held to be the direct attack on the conduct of Court attributing extraneous motive and suggesting to the Court to have incorrectly recorded the statement of counsel and therefore, constituted scandalous charge against the Court." The decision is reported in State vs. Yousuf Ali Khan (P.L.D 1975 Lah. 534). In this case Full Bench of Lahore High Court held Yousuf Ali Khan guilty of contempt and sentenced him to suffer simple imprisonment of three months and to pay a fine of Rs. 2,000/-which was ordered to run consecutively with another sentence of imprisonment which was awarded to the contemner in another case. Yousuf Ali Khan had also written a letter to a Judge privately which was couched in disrespectful and contemptuous language. It contained imputation against his conduct and behaviour in discharge of his judicial functions charging him with unfairness and intimidating him with personal harm and scandal if he did not desist from such behaviour, was held to amount to interference with due administration of justice and as such to grossest kind of contempt, as was held in the case of Yousuf Ali Khan vs. State (P.L.D. 1970 S.C. 350). I am, therefore, satisfied that the objection of the contemner that these contempt proceedings are incompetent because his action is punishable under P.P.C. has no force and cannot be entertained. Hence I am satisfied that the contemners had presented the plaint containing culpable para in the Court of Xllth Senior Civil Judge, Karachi on 27-8-1990 and the said words tended to bring the authority of a Court and administration of law into dis-respect and disrepute, to lower the authority of the Court and scandalize a Judge in relation to his office and thereby co'mmitted an offence under Section 4 of the Contempt of Court Act, 1976. The words used by contemners is contempt of the grossest nature. The contemners' conduct throughout was such that they deserve no sympathy from the Court whatsoever. I, therefore, convict both the contemners under Section-4 of the Contempt of Court Act and sentence each of them to suffer simple In this connection it will not be out of place to refer to the case of Yousuf Ali Khan, a Legal Practitioner, of Lahore, who was in the habit of scandalizing Judges. He addressed a letter to the President of Pakistan deliberately levelling therein maliciously false allegation against Judges of superior Court. His action was held to have constituted a gross contempt. Reference is invited to the case of Attorney General Pakistan vs. Yousuf Ali Khan (P.L.D. 1972 S.C. 115). Yousuf Ali Khan had also made an application on behalf of his client wherein he had made wanton and reckless attacks on the integrity and dignity of the Court. He was held guilty of contempt and sentenced to one month's simple imprisonment and a fine of Rs. 1,000/-, in the case reported as State vs. Yousuf Ali Khan (P.L.D. 1969 Lah. 495). The same Advocate then made averments in an application in Court to the effect that "it is also apparent from his (Court's) evasive attitude and the ambiguous and evasive order passed that he intends to prevent framing of the only relevant issue and to make the petitioner suffer a loss of the case. It was held to be the direct attack on the conduct of Court attributing extraneous motive and suggesting to the Court to have incorrectly recorded the statement of counsel and therefore, constituted scandalous charge against the Court." The decision is reported in State vs. Yousuf Ali Khan (P.L.D 1975 Lah. 534). In this case Full Bench of Lahore High Court held Yousuf Ali Khan guilty of contempt and sentenced him to suffer simple imprisonment of three months and to pay a fine of Rs. 2,000/-which was ordered to run consecutively with another sentence of imprisonment which was awarded to the contemner in another case. Yousuf Ali Khan had also written a letter to a Judge privately which was couched in disrespectful and contemptuous language. It contained imputation against his conduct and behaviour in discharge of his judicial functions charging him with unfairness and intimidating him with personal harm and scandal if he did not desist from such behaviour, was held to amount to interference with due administration of justice and as such to grossest kind of contempt, as was held in the case of Yousuf Ali Khan vs. State (P.L.D. 1970 S.C. 350). I am, therefore, satisfied that the objection of the contemner that these contempt proceedings are incompetent because his action is punishable under P.P.C. has no force and cannot be entertained. Hence I am satisfied that the contemners had presented the plaint containing culpable para in the Court of Xllth Senior Civil Judge, Karachi on 27-8-1990 and the said words tended to bring the authority of a Court and administration of law into dis-respect and disrepute, to lower the authority of the Court and scandalize a Judge in relation to his office and thereby coTnmitted an offence under Section 4 of the Contempt of Court Act, 1976. The words used by contemners is contempt of the grossest nature. The contemners' conduct throughout was such that they deserve no sympathy from the Court whatsoever. I, therefore, convict both the contemners under Section-4 of the Contempt of Court Act and sentence each of them to suffer simple imprisonment for a term of one month and to pay a fine fo Rs. 10,000/-(Rupees ten thousand) each. In default of payment of fine to suffer simple imprisonment for one month more. The sentence shall not be executed till 10-10-1991 on the accused furnishing surety and P.R. in Rs. 10,000/-(Rupees ten thousand) each to enable them to file appeal. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 87 Present: abdul majefd maujck,cj. STATE-Applicant versus JEHANDAD KHAN and 3 others-Respondents Criminal Reference No. 9 of 1991, decided on 9.12.1991. Confession- —Murder case-Confession by accused-Whether Court should convict accused on confession or should do so after recording evidence-Question of-Section 243 of Cr.P.C. postulates that when an accused pleads guilty of charge, Magistrate is enjoined upon to record plea of guilt in words of accused and if accused does not show sufficient cause as to why he should not be convicted, Magistrate may convict him accordingly-Scheme of law suggests to take necessary precaution while recording confession of accused-Legislature further conferred discretion on court to convict accused on such confession or to proceed to record evidence-Held: Trial Court, as a matter of precaution, is advised to proceed to record evidence in order to give decision on merits. [Pp.89&90]A,B,C&D Mr. Muhammad Akram Mughal, Additional Advocate General for State. Mr. Abdul Basil, Advocate for Complainant. Accused-respondents in person. Date of hearing: 9.12.1991. order This reference has been made by the District Criminal Court, Kotli, vide its order of February 23, 1991, on account of difference of opinion between the members of the Court on the question of conviction of Mst. Karim Jan and Mst. Nisaj Begum, accused, on their confession of the charge of murder of Muhammad Yaqub deceased, at the stage of their statements under Section 242, Cr.P.C. 2. A case was registered on the report of Sakhawat Khan, on the charge of murder of Muhammad Yaqub, deceased under Section 5, Islamic Penal Laws Act, on November 28, 1988. It was stated that Muhammad Yaqub deceased was brother of Sakhawat Khan. Muhammad Yaqub had no male issue out of his previous marriage. However, he had 3 daughters among whom Mst. Nisaj Begum was elder one. In order to marry Khudija, the step-sister of Muhammad Yaqub son of Kamma, he proposed the hand of Mst. Nisaj Begum, his daughter to Muhammad Yaqub. The aforesaid arrangement was carried through. Mst. Nisaj Begum was not happy in marriage, on account of old-age of her husband. She deserted her husband. She was sent back many times by her father. Khudija also reciprocated by leaving the house of her husband, the deceased. On November 26, Muhammad Yaqub, husband of Mst. Nisaj Begum, visited the house of the deceased to take his wife back, but he was sent back with the promise that Mst. Nisaj Begum will go to the house of her husband on November 28. On the night of November 27 & 28, at 2.30 A.M., it was alleged that Sakhawat Khan, complainant went out of his house to urinate when he heard cries of Mst. Nisaj Begum that some-one had killed her father. He found the dead body of the deceased soaked in blood. She told him that some 3 unknown persons killed her father. On completion of investigation, the prosecution challaned bdul Chafoor and Muhammad Saghir. They were examined under Section 242, Cr.P.C. on August 11, 1990. Subsequently, on the basis of the confession recorded by the Magistrate on December 20, 1990, the present accused were put to trial. Jehandad Khan and Mahboob pleaded not guilty, whereas Mst. isaj Begum and Mst. Karim Jan, daughter and widow of the deceased, pleaded guilty in their examination under Section 242, Cr.P.C. The trial Court was persuaded to record conviction of the accused who pleaded guilty. The learned District Qazi was of the view that the order of conviction should be passed after recording evidence of the prosecution. The learned Sessions Judge disagreed with the learned District Qazi and proposed to convict the accused who pleaded guilty at that stage. On account of difference in the aforesaid opinion, the reference was made. 3. The relevant provisions of law applicable to such situation have been provided under Section 243, Cr.P.C. It is postulated that when an accused pleads guilty of the charge, the Magistrate is enjoined upon to record the plea of guilt of the accused in the words of the accused and if the accused shows no sufficient cause as to why he should not be convicted, the Magistrate may convict him accordingly. The spirit of aw is that the confession of the accused should be reduced into writing, possibly in his own words, to enable the Court to ascertain the text of such confession, to reach the conclusion that such words constituted a legal confession, sufficient to record the conviction. On recording such confession, it was further enjoined upon the Magistrate or the Court to provide an opportunity to the accused pleading guilty, to show cause as to why he should not be convicted. When no sufficient cause was shown, the Magistrate or the Court was empowered to record conviction or to proceed to record evidence of the prosecution, as it deemed fit. 4. The scheme of law suggests to take necessary precaution while recording confession of an accused. This is so as, such confession was likely to result in his conviction. The confession by itself not having been deemed sufficient, the legislature further ensured that the words uttered by the accused should be reduced into writing, to assess whether such words or language were compatible with the alleged charge so as to constitute the confession. Moreover, the legislature further conferred discretion on the Court to convict the accused on such confession or to proceed to record the evidence. These precautions were enforced as, occasionally the confession was made under pressure, coercion, temptations and influences of external forces. Therefore, the Court has to be alert and be careful while recording the conviction of an accused on the basis of his confession. 5. In the present case, as noticed earlier, according to prosecution, Jahangir and Mahboob, accused were hired to murder Muhammad Yaqub deceased. Mst. Karim Jan and Mst. Nisaj Begum hired them for the job in consideration of Rs. 8,000/-. The lady accused are daughter and widow of the deceased. Jahangir is an old man. Mahboob is quite young. The lady-accused were read out the charge at the stage of their examination under Section 242, Cr.P.C. They admitted the charge as correct and said nothing beyond that.6. In view of the circumstances listed above, the trial Court, as a matter of precaution, is advised to proceed to record the'evidence of prosecution in order to give decision on merits, instead of recording conviction of the accused at this stage. The reference is answered accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 90 [ Bahawalpur Bench] Present: sajjad ahmad sipra, J NAZIR BEGUM-Petitioner versus MUHAMMAD IQBAL and another-Respondents [Criminal Original No.31 of 1989 (in C.R.No.180 of 1978), dismissed on 2.6.1991.] Contempt of Court- -—Status quo order-Grant of-Non-extension of-Whether there was any violation of status quo order-Question of~Order for maintenance of status quo was only uptil 24.11.1979 and it was not extended thereafter-If court wanted to extend interim order, a conscious order explicitly stating so, would have been passed by it-Held: Interim order passed for a limited period which was not extended, stood vacated by efflux of time and there was no violation of any order passed by High Court-Contempt notice discharged. [P.91]A ,B &C 1985 CLC 1995 rel Malik Rab Nawaz, Advocate for Petitioner. Ch.Naseer Ahmad, Advocate for Respondent No.l. Date of hearing: 2.6.1991. order The brief facts leading to the present Criminal Original are that in C.M.No. 258/1979/BWP in the connected Civil Revision No. 180/1978/BWP, the status quo was ordered to be maintained till 24.11.1979, vide order dated 21.10.1979. And that, thereafter, the civil revision petition in question was admitted to regular hearing and notice issued to the respondents, vide order dated 24.11.1979 but there was no explicit order, extending the order for maintenance of the status quo, as stated above. The said civil revision petition came up for hearing on various dates thereafter but even on the said dates of hearing there is no'order in respect of the extension of the slants quo. 2. However, the petitioner filed the present Criminal Original against the respondents on 26.9.1989 and on 9.10.1989 notice to the respondents was issued to show cause why they should not be punished under the Contempt of Court Act, 1976 and why the shops constructed in violation of this Court's order may not be demolished, by my learned brother Muhammad Sharif, J. (as he then was). 3. On 26.5.1991, the case was adjourned on the request of the learned counsel for the petitioner with the direction that he shall address the Court on the point whether or not the stay order in question dated 21.10.1979, ordering the maintenance of status quo till 24.11.1979 was explicitly or implicitly extended thereafter. 4. The learned counsel for the petitioner has been heard at length on the point stated above. The learned counsel has placed reliance upon Iftikhar All v. Javid Dastgir Mirza and 6 others (PLD 1975 Lahore 126) and Malik Shah Abdul Waheed v. Karachi Metropolitan Corporation and 4 others (1989 C.L.C. 440). However, the precedents relied upon are of no help to the present petitioner, as they deal with the infringement of the interim orders that were in existence and very much alive at the time of their violation by the respondents therein. In the present case, the order for the maintenance of the status quo was only up till 24.11.1979 and as it was not extended thereafter, therefore, it had ceased to be effective thereafter. Therefore, the violation alleged herein is not a violation of any order passed by this Court in the connected civil revision petition. It goes without saying that if the Court wanted to extend the interim order for the maintenance of the status quo, stated above, a conscious order, explicitly stating so, would have been passed by the Court. 5. Obviously, the interim order passed for a limited period which was not extended, stood vacated by efflux of time. In this respect strength is sought from Muzaffar Ali KJian v. Sindh Co-operative Housing Authority and 2 others (1985 C.L.C. 1995), wherein the learned D.B. had held that the status quo order passed for a limited period stood vacated if not extended, and the petition for contempt therein was dismissed. 6. In view of what has been stated above, the notice issued herein is hereby discharged and the present Criminal Original is hereby dismissed. 7. However, anything said herein shall not prejudice the case of the parties in respect of the disputed property or in respect of any relief tenable to any one of the parties in accordance with law, in respect of the complaint raised herein. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Cr PLJ 1992 Cr. C (Quetta) 91 (DB) Present: MUNAWAR AHMAD MlRZA', ACJ AND AMIRUL MULK MENGAL, J ABDUL MANNAN-Appellant • versus THE STATE-Respondent Criminal Appeal No. 48 of 1989, decided on 19.6.1991. (i) Criminal Trial-- —-Attempt to hijack plane-Offence of-Conviction for-Challenge to-- Testimony of prosecution witnesses has not been shattered despite lengthy cross-examination-Prosecution witnesses had no enmity with appellant to falsely implicate im-Possession of loaded pistol is not denied by appellant- Prosecution witnesses are independent, reliable and natural-Ocular evidence coupled with medical evidence, undisputedly establishes infliction of pistol injuries by appellant on person of ecurity guard Liaqat Hussain-Held: Appellant is responsible for commission of offences for which he has been convicted by trial court. [Pp.96&97]B&C (ii) Jurisdiction— —Attempt to hijack plane-Offence of-Conviction for-Challenge to-Whether Special Court constituted under Suppression of Terrorist Activities Act, 1975, had jurisdiction to try accused for offences under Section 307 PPC and section 13-E of Arms Ordinance—Question of—Amended provisions of schedule to Suppression of Terrorist Activities Act, 1975 would show that offences of murder and attempt to murder when committed in course of offence specified in paragraph (a) which includes hijacking, or offences covered by clauses (a), (b) and (c) relating to Explosive Substances Act and Arms Ordinance, shall be exclusively triable by Special Court-Held: All offences committed by appellant in attempting to hijack plane, were certainly triable by Special Court. [P.96]A (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 402-B-Attempt to hijack plane-Offence of-Conviction for-Challenge to- -Hijacking or attempt to commit hijacking are both punishable with death or life imprisonment-Contention that if an accused hijacks a plane, he is to be awarded death sentence but if he fails in attempt, he should be awarded alternative punishment otherwise alternative sentence shall lose its efficacy- Held: There is sufficient force in contention and alternative punishment of life imprisonment shall meet ends of justice in circumstances of case. [Pp.98&99]D,E&F Mr. Ehsanul Haq, Advocate for Appellant. Mr. Salahuddin Mengal, A.A.G for State. Dates of hearing: 27, 29 and 30.5.1991. judgment Munawar Ahmad Mirza, A.CJ.-Appellant Abdul Mannan was tried by Special Court of Baluchistan constituted under the provisions of Suppression of Terrorist Activities Act, 1975 for attempting to hijack P.I.A. flight No. PK-320 on pistol was supplied to me by one of the security officer. On saying of the authorities I pointed out the photo of Azhar Niaz, although he was not involved in the offence. Subsequently I was also compelled to falsely implicate Mushtaq Masih to the extent that he had'handed over the pistol to me in the toilet of passenger lounge, inspite of the fact (that) he too was not involved in the commission of the offence. I had taken the pistol in my shoe for safety purposes. It was un-licenced one. I concealed it in my shoe and went un-noticed. I had pistol with me to save myself from my enemies. I have enmity with Arbab Zahir. I have got enmity with Malik Abdul Wahab Pir Alizai also. One of the case is pending in the court of Sessions Judge under Section 307 P.P.C. I have also enmity with other tribes." Statement on oath of appellant was also recorded on the same date viz 12 6.1989. Relevant portion of his testimony is reproduced below: "I had enmity with Arbab Zahir, Malik Abdul Wahab Pir Alizai and also with other people of other tribes. I had cases with them which are pending before the court of Sessions Judge. I had kept the pistol for my protection. I used to carry it during journey. On that day I had concealed the pistol in my shoe. Security people had not seen it. I took my seat in the plane. I had taken break-fast in the plane. I went in the toilet for urinating. In the lounge of Airport I had taken out my pistol from the boot and kept in the upper pocket of my waist coat. When I came out of the toilet of aeroplane I tumbled down (and) the revolver fell down on the floor of the plane. It was seen by the co-pilot and the Air-hostess. Co­ pilot went inside the cockpit. The Air hostess went to the service cabin. I entered the cockpit, to explain (to) the pilot and crew there. I informed them that I was not a saboteour or hi-jacker. There were five persons sitting in the cockpit. I then came out from the cockpit to take my seat. As soon as I was trying to sit on my seat the person sitting near me got up, he pointed out his weapon at me. He asked me to drop my pistol. I told him that I was a passenger and he was too therefore I would not drop my weapon as it was against Pathan tradition. I told him that I will handover the pistol to the authorities at Airport, he fired at me which hit at the floor of the plane near the toilet. I kept my pistol in my pocket.He pounced upon me. I got hold (of) his hand wherein he was having the weapon. I took out my pistol and kept it on his head. I directed him that he should drop his pistol but he did not. I then kept my pistol in my pocket. I then got hold of his hand wherein he was holding the weapon. I twisted his hand towards his back. He fired it which hit his back. I had no intention to kill him". Similarly statements of co-accused under Sections 342 and 340(2) Cr.P.C. were recorded on 13.6.1989; wherein prosecution allegations were refuted. In defence, the transaction of offence in Para (a) or (b) or (c) of schedule are triable by Special Court . Therefore there is no defect in the conviction awarded to the appellant. We have carefully gone through available record and considered arguments raised by learned counsel for parties. Firstly taking up objection concerning jurisdiction for trying offence under Section 307 PPC etc. it may be seen that Ordinance-I of 1987 Suppression of Terrorist Activities (Special Court) (Second Amendment) Ordinance, 1987 introduced following amendment on 16th July, 1987 (i) PLD 1987 Central Statute-65 (ii), Ordinance XVII of 1988, P.L.D. 1989 Central Statute-12 (iii) Ordinance X of 1989 P.L.D. Central Statute 1990 P-2. Relevant amendment is reproduced below:- "2. Amendment of Schedule, Act XV of 1975.- In the Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975), in the Schedule, in paragraph (a) after sub-paragraph (ii), the following new sub-paragraph shall be inserted, namely:— "(ii-a) Section 302 or Section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to, or in combination withsuch offence". Perusal of above provision would show that offences of murder and attempt to murder when committed in the course of offence specified in paragraph (a) which amongst other includes hijacking; or offences covered by clause (a) or (b) and (c) relating to Explosive Substances Act and Arms Act shall be exclusively triable by the Special Court. In the circumstances we have no doubt that all offences committed by appellant in attempting to hijack the plane, Air Bus Flight PK-320 those were certainly triable by the Special Court . Objection in that behalf raised by learjicd counsel for appellant accordingly stands replied. Now reverting to merits, it may be seen that all the eye witnesses unambiguously co-firmed factum of appellant's taking out pistol and going to cockpit. The testimony of all these witnesses regarding attempt of appellant to hijack the plane has not been shattered despite lengthy cross examination. The prosecution witnesses had no enmity whatsoever with appellant and there was no motive to unnecessarily implicate him for the alleged offence. It is pertinent to mention here that appellant does not dispute possession of loaded pistol. In his statement on oath, appellant tried to explain that pistol was initially concealed by him in the shoes and by adopting various tactics had crossed security check. The plea of enmity with certain persons at Quetta introduced in his statements had neither been proved nor sounds plausible or confidence inspiring. There was no occasion to have fear or apprehension to life at the hands of any enemy not even travelling in the same flight. Evidently prosecution witnesses are independent, reliable and natural; thus their narration relating to incident in the light of attending circumstances is quite trust-worthy. All the three defence witnesses namely Raz Muhammad, Abdul Haq and Sanaul Haq examine'd by appellant merely mentioned about his enmity with Abdul Wahad and Arbab Abdul Zahir. Obviously mere inimical relations with certain persons, cannot justify action for illegally carrying unlicenced pistol in the plane. Similarly ocular evidence coupled with medical evidence undisputedly establishes infliction of pistol injuries by appellant at the person of security guard Liaqat Hussain. The above discussion leads to irresistible conclusion that appellant is responsible for the commission of offences for which he has been convicted by the trial Court. Learned counsel for appellant greatly stressed that since alternate punishment is provided by law and situation indicates that graver offences could also be possible therefore in such eventuality lesser punishment prescribed ought to have been awarded.We are now left with the question of quantum of sentence. For the sake of convenience the relevant section is reproduced below: -"402-B, Punishment for Hijacking.~VJ\ioevcr commits, or conspires or attempts to commit, or abets the commission of, hijacking shall be punished with death or imprisonment for life, and shall also be liable to forfeiture of property and fine". Section 4Q2-B, PPC is perhaps the only offence in Pakistan Penal Code, where an attempt to commit said offence also carries the same punishment as commission of the main offence. Commission of offence of hijacking or conspiracy to commit the said offence or attempt to commit offence of hijacking are punishable with death or transportation for life besides forfeiture of property and fine. Learned counsel for appellant on question of sentence submitted that the court must draw a distinction while awarding sentence to an accused person who actually hijacks and one who merely made an attempt in that behalf. However, on general principles the extenuating circumstances are taken into consideration by the court, such as young or extreme old age, provocation, commission of offence on the spur of moment etc. It may be observed that none of the said principles can possibly be applicable to a person who commits any of offence regarding hijacking, attempt to hijack or abetment for hijacking. Such discretion of awarding sentence, however, has to be exercised judicially. Counsel appearing for appellant emphatically canvassed that in fact object of legislature was to award death sentence to a person who in fact commits an offence of hijacking i.e. who unlawfully by use or show of force, by threats of any kind seizes or exercises control of an aircraft. According to him if the person fails in his attempt to hijack an aircraft then the proper punishment would be imprisonment for life. It is very difficult, in view of clear intention of legislature as manifested in Section 402-B, PPC to lay down a general rule to that effect. However, each case has to be seen in its peculiar circumstances and on its own merits. No hard and fast rule can be laid down in this regard. As was observed in case of Gurdev Singh vs. Emperor (AIR 1948 Lahore 58) that:-"It is impossible to lay down any general rule defining the classes of cases in which lesser sentence may be imposed though from time to time certain circumstances have been recognised by the Judges who had to consider this question as valid ground for imposing such sentence."As discussed hereinabove hijacking or an attempt (to) commit hijacking are both punishable with death or transportation for life. Thus as far as question of jurisdiction of trial court in passing death sentence under Section 402-B, P.P.C. is concerned, no exception can be taken to the same. We, in such view of the matter, inquired from learned counsel as to why the sentence of death be altered into imprisonment for life? The reply was that the legislature, in fact, by using word death or imprisonment for life has left a room for the court to pass either of the aforesaid sentences. Therefore, while passing the sentence of death i.e. the maximum punishment some reasons must be mentioned for justifying the same. In this regard our attention was drawn to the case of Hamam Singh vs. Emperor as reported in AIR 1926 Lahore 239 (2). In the aforesaid case it was inter alia observed that:- "It is possible that the offence is a very serious one but the courts below do not expressly say so and it is not difficult to imagine worst cases than that of the petitioner." Learned counsel while elaborating aforesaid ratio decidendi, submitted that if a worst case than that which in fact has been committed can be visualised or imagined, then alternative punishment as provided under law shall meet the ends of justice. He, therefore, submitted that if an accused person hijacks a plane, he is to be awarded death sentence but if he fails in his attempt and plane in fact is not hijacked although the accused has attempted to do so then the alternative punishment of imprisonment for life would be fair and proper because otherwise alternative sentence shall lose its efficacy. , We find sufficient force in the aforesaid arguments, but we want to observe in unequovocal terms that it can no't be laid down as a general rule to award lesser punishment in a case of attempt to hijack because some time worst cases even in attempt for hijacking could be possible. However, keeping in view the circumstances of the case and the fact that attempt of hijacking was failed by the chivalrous act of a security guard and effective response by other passengers, we are inclined to hold that alternative punishment of life imprisonment shall meet ends of justice in the circumstances of this case. We, therefore, convert the death sentence awarded to appellant by the Special Court under Section 402-B, P.P.C. into imprisonment for life. However, the sentence of fine and forfeiture of property imposed under Section 402-B, P.P.C. shall remain intact. Appellant, therefore instead of death, shall suffer imprisonment for life under Section 402-^, P.P.C. All other punishments awarded to appellant by the trial court under Section 307 P.P.C. and 13-E Arms Ordinance, 1965 are also maintained. It may further be observed that sentence of life imprisonment shall run consecutively as also held by the trial court in respect of other sentences, however appellant shall . be entitled to benefit of Section 382-B of Criminal Procedure Code. With above modification in sentence, the appeal filed by appellant stands rejected. (MBC) (Approved for reporting) Sentence altered.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 99 (DB) . Present: muhammad munir khan and rashid Aziz khan, JJ MUHAMMAD SAGHIR-Appellant versus THE STATE-Respondent Criminal Appeal No.520 of 1990, accepted on 29.7.1991 Arms Ordinance, 1965 (W.P. Ord. XX of 1965)-- —S.13--Unlicensed arms—Recovery of—Conviction for—Challenge to— Admittedly Ordinances XVII and XXV of 1988 were not laid before appropriate Legislature and stood repealed after four months as rovided in Article 189 of Constitution-On date of occurrence, said Ordinances were not alive—Held: Trial of appellant on charge of keeping unlicensed arms such as Sten-gun and Klashnikov, which were troduced through Ordinance 1988, was coram-non-judice~Appe&\ accepted. [Pp.lOO&101]A,B&C PLJ 1991 Cr.C. ( Lahore ) 187 (DB) ref. Mr. M.D. Tahir, Advocate for Appellant. Mr. A.H. Masood, Advocate for State. Date of hearing: 29.7.1991. judgment Muhammad Munir Khan, J.—This Criminal Appeal arises from the judgment of learned Presiding Officer, Special Court (Suppression of Terrorists Activities) Gujranwala, whereby he on 30.6.1990 convicted Muhammad Saghir appellant under Section 13 of the Arms Ordinance, 1965 and sentenced him to 7 years R.I. and a fine of Rs. 10,000/-, in default thereof one year R.I. 2. The charge against the appellant was of keeping unlicensed Klashnikov Ex.Pl, magazine Ex.P2, 15 bullets Ex.P3/l-15 and 45 live cartridges Ex.P8/l-45 on 13.2.1989. He denied the charge and claimed to be tried. 3. To prove its case, prosecution produced 3 witnesses namely Muhammad Razzaq P.W.I, Muhammad Arif, S.I. P.W.2 and Muhamamd Yousaf, ASI, P.W.3. P.W.2 and P.W.3 stated that the Klashnikov, bullets and cartridges were recovered from the appellant on 13.2.89 for which he could not produce the license. 4. When examined under Section 342 Cr.P.C. the appellant denied the recovery of Klashnikov and bullets, etc. He produced Khalid Perviz D.W.I in defence. 5. Believing the prosecution case and disbelieving the defence, the trial Court has convicted and sentenced him as stated above. 6. After hearing the learned counsel for the parties, we feel persuaded to set-aside the conviction and sentence of the appellant for lack of jurisdiction of the Special Court to try him for the offence with which he was charged, so we need not set out the facts in detail and enter into the merits of the case. 7. Learned counsel appearing for the appellant relied on cases Muhammad Asif vs. The State (1989 P.Cr.LJ. 1310), Muhammad Aslam alias Sooba vs. The State (1990 P.Cr.LJ. 704 (D.B.) and Bakhtiar Ahmad vs. The State (PLJ 1991 Cr. Cases. (Lahore) 187 (D.B.) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as "a Klashnikov", a "G-III" rifle or any other type of assault rifle", were added in paragraph "C" of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act 1975, having not been laid before the Legislature, stood automatically repealed much before the date of the recovery of these arms from the appellant and, as such, the trial of the appellant by the Special Court was without jurisdiction. The learned counsel appearing for the State in this appeal is not in a position to controvert them. 8. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance- No:X of 1989, Ordinance No.l of 1990, rdinance XI of 1990 and Act of 1990, Published in the Gazette of Pakistan on 7.11.1988, 3.9.1989, 17.3.1990, 30.10.1990 and 16.6.1990 respectively and also the case law cited by the learned counsel for the appellant at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellant. Admittedly, Ordinance No.XVII of 1988 and Ordinance No.XXV of 1988 were not laid before he appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months as provided hi Article 189 of the Constitution of Islamic Republic of Pakistan 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance 1990 (Ordinance I of 1990) was again promulgated on 17.3.1990 and the position of the Schedule to the Act amended vide Ordinances of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinances could not remain intact. Finally Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 (Act No. V of 1990) was promulgated on 16.6.1990, in which the amendment introduced under Ordinance No.l of 1990 was kept intact. Be that as it may, the fact remains that on the date of the occurrence, i.e. the date of the recovery of the sten-gen/klashnikov from the appellant, neither the Ordinances XVI, XVII and XXV were alive nor proceedings under these Ordinances which by that time were deemed to have been replaced were pending adjudication against the appellant. This being the position, the trial of the appellant on the charge of keeping unlicensed Arms such as Sten-gun and Klashnikov, which were introduced through Ordinance 1988 was Coram-non- Judice. 9. Pursuant to the above discussion, the appeal is accepted and the conviction and sentence of the appellant is set-aside. The trial Court shall return the Challan against the appellant to the SHO concerned for presentation before the Illaqa Magistrate/Assistant Commissioner concerned for trial in accordance with law. The appellant who has been allowed bail by this Court shall remain on bail during his fresh trial. The appellant who is in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 101 [ Rawalpindi Bench] Present: FALAK SHER, J STATE-Petitioner versus AZIZ KHAN-Respondent Suo Moto Crl . Revision No. 154 of 1991, decided on 15.12.1991 Miscarriage of Justice-- -—Offence under Sections 279, 337 and 304-A of P.P.C.-Conviction for-On appeal, sentence altered to already undergone- Suo moto notice under revisional jurisdiction—Recourse to theory of already undergone" on facts and circumstances of case, has outrageously undermined punitive and deterrent aspect of criminal administration of justice as a patent demonstration of judicial perversity ulminating into miscarriage of justice, tending to promote licensing of highway assassinations by public carriers which is alarmingly on increase with utter disregard for human life-Respondent's entence nhanced to 3 years R.I. [P.102JA Kh . Muhammad Fayyaz , Advocate for State. Mr. Muhammad Farooq Kiani , Advocate for Respondent. Date of hearing: 15.12.1991. judgment Perusal of the judgment of learned Additional Sessions Judge, Attock of 7.9.1991 delivered in Criminal Appeal No.28/91, under supervisory constitutional jurisdiction revealed that the respondent, having been convicted and sentenced by the trial Magistrate on 27.2.1991 in the case registered vide FIR No.187 of 30.9.1987 under Sections 279/337/304-A PPC at police station Hassan Abdal to imprisonment of one year R.I. with a fine of Rs . 3,000/- for causing death of Niaz Muhammad through rash and negligent driving of bus NoAJK-A/7785, on appeal without contesting the conviction confined his submission to the reduction of sentence which was allowed and the sentence of imprisonment was reduced to already undergone viz., 13 days, ex-fade resulting into miscarriage of justice; consequently, in exercise of suo motu revisional jurisdiction notice was issued to the respondent to show cause why the sentence should not be enhanced; during the course of hearing whereof his learned counsel submitted that the respondent did not record any statement before the appellate court for not contesting the conviction and the sentence already undergone coupled with the agony of protracted trial has sufficiently met the interests of justice, with which I am not persuaded; the first contention seems to have been advanced in oblivion of the fact that the respondent being admittedly the beneficiary of the impugned order never questioned its legality thus is a convenient afterthought and merits to be ignored with the contempt it deserves. Recourse to the theory of already undergone on the facts and circumstances of the case has outrageously undermined the punitive and deterrent aspect of criminal administration of justice as a patent demonstration of judicial perversity culminating into miscarriage of justice tending to promote licencing of highway assassinations by public carriers which is alarmingly on the increase with utter disregard for the human life; consequently, respondent's sentence is enhanced to three years R.I. He is present in Court, should be taken into custody for serving out the outstanding sentence without availing of the benefit contemplated by Section 382-B Cr.P.C . (MBC) (Approved for reporting) Sentence enhanced.

PLJ 1992 Cr PLJ 1992 Cr.C ( Peshawar ) 102 Present: muhammad kiiiyar khan, J SHER BAHADUR-Petitioner versus THE STATE-Respondent Criminal Misc. No.434 of 1991, accepted on 17.8.1991 Criminal Procedure Code, 1898 (V of 1898)-- —-S.561-A read with Sections 439 and 439-A and Prohibition (Enforcement of Hadd) Order, 1979, Articles 3, 4 and 24--Heroin--Recovery of--Conviction for- -Enhancement of sentence in appeal-Challenge to- ower of enhancement of sentence under Section 439(1) is subject to restriction contained in Section 439(2) that no order can be made to prejudice of accused unless he has had an opportunity of being beard- rovision of Section 439(2) seems to have been violated in this case-Mere fact that appellant's presence is marked on order sheet, does not mean that he knew that court was going to enhance sentence- Held: etitioner was not afforded any opportunity of hearing which has resulted into miscarriage of justice-Petition accepted. [Pp.l05&106]A&B PLD 1966 SC 126,1974 SCMR 386, AIR (33) 1946 Calcutta 452 and AIR 1961 Bombay 261 rel. Mr. Hussain Khan, Advocate for Petitioner Mr. Muhammad Ismail Fahmi, AA.G. for State. Date of hearing: 17.8.1991. judgment This petition under Section 561-A of the Criminal Procedure Code has been filed in the following circumstances:- 2. On 17.1.1991 at 15.30 hours Sher Bahadar petitioner herein while travelling in a Suzuki was trapped by the police and found in possession of one gram of heroin. He was interrogated and led the police to his quarter wherefrom another five grams of heroin was recovered on the same day at 16.15 hours. In two different cases registered against him under Sections 3/4/24 of the Prohibition (Enforcement of Hadd) Order, 1979 vide FIRs No.10 and 11 dated 17.1.1991 at Police Station, Chitral, he was tried in the court of SDM Chitral, where he pleaded guilty to the charge. The trial court in the case registered vide FIR No.ll sentenced the petitioner to 3 days R.I. and to pay a fine of Rs.200/- vide order dated 20.1.1991. Vide order dated 21.1.1991 in case FIR No.10 he was awarded punishment of one day R.I. and a fine of Rs.500/-. The State filed revision petition before the learned Sessions Judge, Chitral against the orders of the learned SDM. The revision petition against the order dated 21.1.1991 in case FIR No.10 was dismissed, while the revision petition against the order dated 20.1.1991 of the learned SDM, Chitral in case FIR No.ll was accepted and the punishment of 3 days R.I. was enhanced to 6 months R.I. and fine to Rs.2,000/-. The petitioner is aggrieved of the order of enhancement of his punishment and through this petition has invoked inherent powers of this court under Section 561-A Cr.P.C. in order to secure the ends of justice. 3. Mr. Hussain Khan, Advo ate for the petitioner contended that the two orders of the learned Sessions Judge passed in revision petitions are self destructive and not tenable and that two trials for the same offence amounted to double jeopardy and that sentence enhanced was violative of the mandatory provision of law. 4. Mr. Muhammad Ismail Fahmi, Asst: A.G. for the State in reply argued that powers of revision of a Sessions Judge under Section 439-A of the Criminal Procedure Code are analogous to the powers of the High Court under Section 439 and that the Sessions Judge could enhance the sentence. On my pointation that no order in revision could be made to the prejudice of the accused unless he has been heard, the learned Asstt: A.G. conceded that it is so but contended that the petitioner was heard as his presence is marked on the order sheets of the Sessions file. 5. The law as at present empowers Sessions Judges to hear and decide revision petitions. Section 439-A Cr.P.C. gives the same power of revision to Sessions Judge as may be exercised by the High ourt under Section 439 Cr.P.C. Section 439 Cr.P.C. is required to be reproduced here so as to understand the point involved in the case: "439.-(l) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence: and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429. (2) o order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34 the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the first class. (4) Nothing in this section shall be deemed to authorise a High Court: (a) to convert a finding of acquittal into one of conviction: or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under Section 439-A. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of theparty who could have appealed. , (6) Notwithstanding anything contained in this section any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be nhanced shall, in showing cause, be entitled also to show cause against his conviction." 6. A careful reading of the above quoted section of law would show that power of enhancement of sentence under subsection (1) of Section 439 Cr.P.C. is subject to restriction contained in subsection (2) of Section 439 that no order can be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. Subsection (6) of Section 439 Cr.P.C. further provides that the convicted person to whom an opportunity has been given under subsection (2) of showing cause is entitled also to show cause against his conviction. The requirement of law of giving opportunity of hearing to the accused appears to an essential requirement when Section 440 of the Criminal Procedure Code is perused. This section provides that no party has any right to be heard either personally or by pleader before any court when exercising his power of revision but the power of the court is subject to the provision of subsection (2) of Section 439 of the Criminal Procedure Code. The provision of law contained in subsection (2) of Section 439 of the Criminal Procedure Code seems to have been violated in the present case. The accused-petitioner, no doubt, attended the court of learned District and Sessions Judge, Chitral but nothing is mentioned on the file of the court to show that he was afforded opportunity of hearing against enhancement of sentence. Since the order was made to the prejudice of the accused, as the sentence was being enhanced, the petitioner should have been specifically asked as to why his sentence should not be enhanced and in showing cause he was entitled also to show cause against his conviction. The mere fact that his presence is marked on the order sheet does not mean that he knew that the court was going to enhance the sentence. There is a case law also on the point emphasizing for affording opportunity of hearing to the accused when the order to be made is to the prejudice of the accused. In Mushtaq Ahmad vs. TJie State (PLD 1966 Supreme Court 126) while setting aside the order of cancellation of bail of a learned Judge>of the High Court it was held:- "But in this event the learned Judge, should, in our opinion, have followed the procedure laid down by the said section, since he was disposed to make an order to the prejudice of the appellant. Subsection (2) of Section 439 clearly provides that "no order under this section shall be made to the prejudice of the accused unless heTias had an opportunity of being heard either personally or by pleader in his own defence". In another reported case Fazal Rahim v. Tfie State (1974 SCMR 386) leave to appeal was granted to consider the effect of the omission to afford opportunity to the appellant to show cause against enhancement as provided in Section 439 (2) of the Criminal Procedure Code. In the case supra on reference from Sessions Judge, Mardan to the High Court for enhancement of the sentence, the learned Judge of the High Court enhanced the sentence from 2 years R.I. to 7 years R.I. because the then learned Advocate General who represented the State conceded that the sentence passed on the appellant was inadequate. The August Supreme Court in considering the effect of the omission to afford opportunity to the appellant to show cause against enhancement as provided in Section 439 (2) Cr.P.C. observed as unden-"4. We have heard the learned counsel for the appellant and the learned Advocate General for the State. There is no escape from the conclusion that miscarriage of justice has taken place due to the irregularity in the hearing of the Reference by the learned Judge without affording the appellant a proper hearing. Section 439 (2) of the Code enjoins that no order will be passed in exercise of the revisional jurisdiction by the High Court to the prejudice of any person without hearing him. The facts stated above make out abundantly that the provisions of the subsection were not complied with. The order passed by the High Court cannot in the circumstances be maintained." 7. Two cases from Indian jurisdiction may also be cited. In the case of Abdul Kader and others vs. Emperor (AIR (33) 1946 Calcutta 452) retrial of the accused was held to be prejudicial to the accused and the order was set aside. In the case reported in AIR 1961 Bumbay 261, it was held that court was not bound to hear parties before dismissal of revision against order under Section 145 Cr.P.C. but at the same time it was held that when an order which is to the prejudice of the accused is likely to be made, it is obligatory upon the court under Section 439 (2) to give an opportunity to the accused of being heard either personally or by pleader in his own defence. 8. The provisions of law as contained in Section 439 Cr.P.C. and the case law on the subject referred to above clearly show that when the order prejudicial to the accused is made, he has to be afforded opportunity of hearing. The accused petitioner herein was not afforded any opportunity which has resulted in miscarriage of justice. The impugned order dated 16.6.1991 of the learned Sessions Judge Chitral being illegal is, therefore, set-aside. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C (Quetta) 106 (DB) Present: amirul mulk mengal and iftikhar muhammad chaudhry, jj BARKAT ALI-Appellant versus THE STATE-Respondent Criminal Appeal No. 8 of 1991, accepted on 1.10.1991 (i) Criminal Trial- —Murder-Offence of--Conviction for-Challenge to-Trial Court believed prosecution evidence against one set of accused but disbelieved it against other-Previously as a rule of convenience, it was settled that credibility of such witness will not be accepted against one and rejected against others—It was declared by Supreme Court that if court comes to conclusion that witness is involving one accused falsely, it would not be safe to rely on his testimony without corroboration—In view of inconsistencies and discrepancies in statements of P.Ws, there is no independent evidence or circumstance to corroborate statements of P.Ws--Held: Prosecution case is full of doubts and as such, benefit of doubt is extended to appellant-Appellant acquitted. [Pp.ll5,116,117&118]C,D,E,F&G. PLD 1985 SC II rel. (ii) Delay- —Murder-Offence of-Conviction for-Challenge to-Contention that there was delay of one hour in lodging F.I.R.-No explanation was asked from investigating officer for recording FIR with delay of one hour- olice Station is at a distance of 1-1/2 miles and evidence of prosecution further reveals that injured Nadir Hussain was removed to hospital by complainant himself and perhaps after that he had gone to Police tation to lodge report-Held: Even otherwise, delay per-se in lodging FIR is not sufficient ground to cast doubt on prosecution case. [P.114]A (iii) Motive— —Murder-Offence of-Conviction for-Challenge to—Motive-Whether proved-Question of-Motive set up was that deceased had illicit relations with his daughter-in-law-She was taken by her father to his house wo months prior to incident and no untoward incident occurred-Held: On basis of evidence available on record, motive appears to be remote and prosecution has failed to establish same. [P.114JB Mr. M.S. Rakhshani, Advocate for Appellant. Mr. Salahuddin Mengal, A.A.G. for State. Date of hearing: 12.8.1991. judgment Mr. Iftikhar Muhammad Chaudhry, J.—Barkat Ali son of Mithal has challenged in this appeal order of conviction dated 17.2.1991 passed by Additional Sessions Judge, Usta Muhammad under Section 302 PPC whereby he was sentenced to suffer life imprisonment and to pay a fine of Rs. 5000/- and in default of payment of fine, 6 months R.I. Concisely stating the facts of the case are that on 3.6.1989 complainant Rajab Ali who is son of deceased Khawand Bakhsh on hearing report of gun fire came out of his house with his maternal cousin Safdar Ah' at about 7.30 P.M. and they went towards place of incident and observed that Khawand Bakhsh is lying dead in the pool of blood near their house, whereas Nadir Hussain was found injured. It was also noticed by the complainant that accused Habibullah and Lawang with other two persons whose names were not known to him, but they were also armed • with guns were running from the place of incident after committing offence. It is further stated that deceased with one Kalimullah and Nadir Hussain was coming back from Usta Muhammad to his house situated in Goth Khawand Bakhsh, when deceased reached near his house accused party committed murder of Khawand Bakhsh and caused injuries to Nadir Hussain. The motive as assigned in the First Information Report is that Anwar Hussain son of Khawand Bakhsh married daughter of Mithal and in exchange Khawand Bakhsh gave his daughter in marriage to Akram who is brother of accused Barkat Ali. After sometime Anwar's wife was taken away by her father Mithal to his home and later on it was alleged that deceased Khawand Bakhsh had illicit relations with his daughter-in-law, as such he is 'Siahkaf. According to FIR (No. 62/89) Ex. P/l-A registered at Usta Muhammad Police Station incident took place at 7.30 P.M. whereas report was lodged at 8.30 P.M. by Rajab Ali son of Khawand Bakhsh which was recorded by Sub Inspector Abdul Oadir under the instructions of SHO Malik Muhammad Ali. In FIR distance of place of incident was shown as one and half mile. During investigation, the Investigating Officer prepared site inspection note Ex.P/9-A, he procured blood stained earth beneath the dead body of Khawand Bakhsh and prepared its parcel which is Article 8, and recovery memo Ex.P/9-B, sketch of place of incident was prepared as Ex.P/9-C and inquest report Ex.P/9-D. Injured Nadir Hussain was sent to civil hospital, Usta Muhammad for treatment and dead body of Khawand Bakhsh was sent to civil hospital for post mortem. Statements of witnesses were recorded. Investigating officer took into possession clothes of Nadir Hussain as Articles 1 and 2 in pursuance of inventory Ex.P/5-A. On 4.6.1989 in presence of witnesses clothes of deceased Article 4, 5 and 6 were taken into possession vide memo Ex.P/6-A. In the meanwhile investigating officer received secret information that Barkat Ali is admitted in the Rajpootana Civil Hospital, Hyderabad, as such he arrested him and accused Habibullah from there on 14.6.1989 whereas on 26.6.1989 accused Akram was arrested. On 28.6.1989 at the instance and pointation of accused Habibullah shot gun Article 3 was recovered from his house which was taken into custody vide memo Ex.P/5-B. Similarly at 'the instance of accused Barkat" Ali a knife Article 7 was recovered from a plot situated near house of Habibullah which was taken into possession vide memo Ex.P/7. The blood stained earth and blood stained clothes and knife were sent to chemical examiner whose report was produced in court as Ex.P/9. After completion of investigation accused were challaned in the court of Additional Sessions Judge, Usta Muhammad.the police that Barkat All inflicted knife injuries to deceased and accused Akram caused injuries by fifing. He denied the suggestion that he has not seen with his own eyes that accused Barkat Ali was inflicting injuries to deceased Khawand Bakhsh with knife. PW-3. Dr. Abdul Rahim. On 3.6.1989 he was posted as Medical fficer at civil hospital, Usta Muhammad. The d^ad body of deceased Khawand Bakhsh was brought there for post mortem. The witness noticed the following injuries on dead body of Khawand Bakhsh:- Extemal Injuries: 1. One stab (penetrating) wound 5-6 intercastal space 1 "x 1/4" x 4" deep. Internal Injuries: Thorax left side wall incised. Heart damaged/incised. Blood vessels incised at the side of injury Abdown: healthy. Stomach: empty. According to opinion of Dr. Abdul Rahim death was caused due to injuries on vital organs and wounds were ante mortem in nature and homicidal in character, appeared to have been caused by pointed weapon. Post mortem report is Ex.P/3-A. The witness also examined the injuries of Nadir Hussain and noticed certain injuries on his person. The Doctor issued post mortem certificate. PW-4 Miran Bakhsh is brother of deceased Khawand Bakhsh and on the day of incident he had gone to Koba Saeed Khan and returned back to Usta Muhammad by train in the morning at 7.30 A.M. and when he reached Bus Stand, he saw accused Habibullah, Akram, Barkat Ali and Lawang alongwith another person and they were running on Bagtel Road towards outside the city and accused Habibullah, Lawang and Akram were armed with shot guns whereas Barkat Ali was having a knife in his hand and fifth one had a gun with him and when he reached house, he came to know that his brother has been murdered and Nadir Hussain is injured. In cross examination witness clarified that he has seen the accused persons at Bagtel Road near Bus Stand, Usta Muhammad at about 8.00 P.M. in the night. He further stated that he reached his house at 8.15. P.M. at night. The witness further stated that when Nadir Hussain was discharged from Larkana Hospital, he alongwith Nadir Hussain came to Usta Muhammad Police Station where he got recorded his statement. The witness did not admit that he had stated in the police station that at the time of running of accused, they were empty-handed, and when confronted with his previous statement it was found that he had stated so. In reexamination he certified that he had stated that he reached the place of incident at 7.30 P.M. in the night. The witness in his statement recorded in vernacular also confirmed that he reached Usta Muhammad from Shahdad Kot at 7.30 A.M. It is pertinent to mention here that the statement of this witness was recorded by police after considerable delay.PW-5 is Khan Beg. In his presence blood stained clothes of injured Nadir Hussain were taken into possession by the police vide inventory Ex.P/5-A. He is also witness of recovery of shot gun which was recovered on the pointation of accused Habibullah. PW-6 is Hazoor Bakhsh. In his presence Medical Officer, Civil Hospital, Usta Muhammad produced the clothes of deceased Khawand Bakhsh to Sub Inspectr of Police who took into possession after preparing inventory etc.PW-7 Muhammad Javed is witness of recovery of knife on the pointation of accused Barkat Ali. According to his version on 29.6.1989 accused Barkat Ali by digging earth of a plot situated near the house, took out knife and presented the same to police. PW-8 Malik Muhammad Ali is Inspector of Police. On the day of incident FIR No. 62/89 Ex.P/8-A was recorded under his instructions. PW-9 Abdul Qadir, SHO, is investigating officer who conducted investigation, made recoveries of incriminating articles, details whereof have been given in above paras. In cross examination he admitted that whatever complainant Rajab Ali stated to him it was recorded in FIR and thereafter FIR was read over to the complainant who admitted that the contents of the same ere correct and signed the FIR. He also admitted that complainant stated in FIR that he alongwith Safdar Ali and Kalim Ullah saw there Habibullah,, Lawang and Allah Dinna armed with shot guns alongwith two unknown persons. The witness admitted that the complainant did not mention the name of accused Barkat Ali and Akram that they were seen at the spot. The witness also stated that in FIR complainant did not mention that he alongwith Safdar Ali and Kalimullah saw accused firing over injured or causing knife injuries to deceased Khawand Bakhsh. The witness further admitted (that) PW-Nadir Hussain stated in police statement that five accused were armed with guns. According to this witness, PW-Miran Bakhsh had not stated that accused Barkat Ali was having a knife with him. He confirmed that it is correct that PW-Miran Bakhsh had stated in police statement that accused Barkat Ali and Akram were empty-handed. Accused Barkat Ali in his 342 Cr.P.C. statement denied the allegation, whereas in his statement on oath under Section 340 (2) Cr.P.C. he also did not admit the liability of commission of offence. No defence witness was produced. Mr. Muhammad Shafi Rakhshani, learned Advocate appearing in support of appeal contended:- (/) That FIR was lodged with delay of one hour and no explanation has been offered by SHO for registering the case with this much inordinate delay which creates doubt on the case of prosecution. Mr. Rakhshani argued that in fact FIR was lodged on next day because complainant Rajab Ali stated that he went to police station at 2.00 A.M. on 4.6.1989. (/'/') The motive assigned by prosecution is not believeable because about two months prior to incident wife of brother of complainant Anwar Hussain who is sister of Barkat Ali was taken by her fatherMithal to his home and no untoward incident took place between parties therefore, after lapse of two moths there was no occasion to impute allegation of 'Siahkari' to Khawand Bakhsh, as such motive is not believeable. (/«") That in fact case of murder of Khawand Bakhsh is un-witnessed incident, as in FIR Rajab Ali stated that he came to place of incident after hearing of gun report and saw that Khawand Bakhsh was lying in pool of blood and accused persons were armed with guns and were running away. (/v) The names of accused Barkat Ali and Akram were not mentioned in FIR nor any overt act was attributed to them. Similarly Nadir Hussain made improvement in his statement in the court because under Section 161 Cr.P.C. statement he has not named Barkat Ali. (v) The learned Judge in mis-exercise of jurisdiction has believed the statement of PW-Miran Bakhsh because he made his statement before police after 36 days of incident and no explanation was offered for this inordinate delay, in recording his statement. (v/) The witnesses are interested, therefore, their statements,are not worthy of credence. (vh) There is material inconsistency and contradiction and improvements in statements of prosecution witnesses as such, Barkat Ali is entitled for benefit of doubt. (v/h) The court has disbelieved the version of prosecution in respect of accused Akram and Habibullah, but same set of evidence has been believed against accused Barkat Ali and according to criminal dministration of justice, the winesses can not be believed against the present appellant (ix) The accused Barkat Ali has been wrongly involved in the commission of offence and role assigned to him is not believeable, because there were five persons armed with shot guns and instead of killing deceased with fire arms, why should they kill him with knife. (x) The recover}' of knife has also not been proved by prosecution in accordance with law. The accused was arrested on 14.6.89 whereas on the last date of police remand, recovery of knife was shown at his instance. On the other hand learned Assistant Advocate General, Mr. Salahuddin Mengal argued:- (1) That there is no delay in lodging of FIR, so much so the defence counsel had not put a single question in this behalf to SHO, therefore, at this stage this objection appears to be after-thought. (2) The prosecution has fully established the motive as alleged in FIR. (3) The murder of Khawand Bakhsh was witnessed by PW-Rajab Ali and PW-Nadir Hussain, therefore, it is absolutely incorrect to contend that no one has witnessed the incident. (4) The name of accused Barkat Ali though has been omitted in FIR, but in statement on oath witness Rajab Ali has fully implicated him in the commission of offence and there is no improvement in testimony of complainant or PW-Nadir Hussain. (5) The witness Miran Bakhsh had offered explanation for not making statement immediately after incident because he had gone to Larkana with injured Nadir Hussain for his treatment. (6) The witnesses are not interested, they are honest and natural and whatever they saw, they have stated in their depositions. (7) There is no material inconsistency or contradiction in the case of prosecution. (S) The trial court disbelieved prosecution evidence against the accused Akram and Habibullah because they had not caused injury to deceased with sharp weapon, therefore, benefit of doubt was extended to them. There is over-whelming evidence against accused Barkat Ali to prove guilt and his conviction is in accordance with law. (9) The accused was involved and convicted by trfal court in accordance with law. (10) There is no hard and fast rule for disbelieving the recovery of weapon of crime if it has been effected on the last date of police remand. As prosecution has established guilt of offence against appellant, therefore, appeal may be dismissed and order/conviction recorded by Additional Sessions Judge may be upheld. We have heard the arguments of learned counsel appearing for parties and record of case has also been perused minutely.Now firstly taking up point of delay hi lodging FIR, it is suffice to observe that no explanation was asked from investigation officer PW-Abdul Qadir for recording FIR with delay of one hour. Even otherwise contents of FIR indicate that police station is situated at a distance of lh miles from the place of incident, the evidence of prosecution further reveals that injured Nadir Hussain was removed to hospital for treatment by complainant himself and when hospital authorities refused to admit the injured hi the hospital, perhaps then complainant had gone to police station and he lodged report. Even otherwise delay perse in 'lodging FIR is not sufficient ground to cast doubt on prosecution case. According to prosecution, motive for causing murder of Khawand Bakhsh was that deceased had illicit relations with his daughter-in-law who is wife of Anwar Hussain son of Khawand Bakhsh and as she was taken to his house by her father Mhhal about two months prior to incident, therefore, on account of Siahkari murder was committed, but there is no strong evidence to believe the motive because wheashe went with her father, at that time no untoward incident occurred, therefore, on the basis of evidence available on record motive appears to be remote and prosecution has failed to establish the same. The perusal of statement of PW-1 Rajab Ah indicates that he was hi his house at the time of incident and on hearing gun shot report he went towards the place of incident with Safdar Ali and when they both reached there, it was found' that Khawand Bakhsh is lying dead in pool of blood, whereas Nadir Hussain was injured. It means that before reaching of complainant at the place of incident, accused persons had already committed murder of Khawand Bakhsh and witness has not seen that how murder had taken place. In FIR ExP/l-A it was not mentioned that accused Barkat Ali was present at the place of incident and he was inflicting injuries with knife on deceased Khawand Bakhsh, rather it was stated that co-accused Habibullah and Lawang and Allah Dinna were found running armed with guns alongwith two other persons who were also armed with guns, their names are not known to him, but he stated that if they come before him, he can identify them. Keeping in view the statement of facts mentioned hi FIR and the statement of Rajab Ali recorded in court it becomes clear that witness had made important improvement hi his testimony, as :i the court he stated that at the tune of incident he saw accused Habibullah, Akram and Barkat Ali with two other persons running away from the place of incident. It may be mentioned here that even hi deposition witness has not assigned any role to Barkat Ali except that he was running away from the place of occurrence with other persons. There is another glaring improvement, hi his statement i.e. he has stated that four accused were having shot guns with them while accused Barkat Ali was having a knife with him, whereas in FIR it was stated that all the five accused persons had shot guns with them. It is not the case of prosecution that FIR was not read over to accused.or he had made omission hi mentioning the name of accused Barkat Ali who allegedly caused injuries with knife to deceased. The witness admits in the court that FIR was read over to him and he had signed the same.In cross examination the witness stated that when he reached at the place of incident PW-Nadir Hussain was in his sense and he told him the names of accused Habibullah, Akram and Barkat Ali. Question arises as to why the name of Barkat Ali was not mentioned in FIR. The witness also makes another important admission in cross examination i,e. that he had mentioned the name of accused Habibullah, Lawang and Allah Dinna in FIR at the advice of police and his elders and their names were mentioned so that they may disclose the name of real culprit which means that the names of Lawang and Allah Dinna were mentioned falsely and complainant did not identify the real culprits involved in the commission of offence. The accused Barkat is not stranger to the complainant and Nadir Hussain as they are inter se related to each other. At the time of registration of case when FIR was recorded Nadu- Hussain was present in police station. This fact is confirmed by complainant as well as Nadir Hussain himself in his deposition before the court. This witness further stated that Nadir Hussain has disclosed the names of Habibullah, Akram and Barkat Ali as accused in the present case. In this behalf the statement of Nadir Hussain is important because at the time of commission of offence he received injuries of shot gun when he was coming to his house with Khawand Bakhsh and one Kalimullah. The witness in his deposition mentioned that all the accused caught hold of deceased Khawand Bakhsh and accused Barkat Ah' inflicted injuries with knife on his person whereas accused Akram caused injuries to him by firing with shot gun at his abdomen, this witness further stated that on shot gun report Safdar and Rajab Ali also reached at the place of incident and accused started running towards east and Barkat Ali had knife with him and others were having guns with them. In cross examination witness stated that Khawand Bakhsh sustained three knife injuries whereas PW-Dr. Abdul Rahim stated that there was on stab wound between 5-6 intercastal 1 "x 1/4" x 4" deep. It means that version of Nadir Hussain contradicts the medical evidence because in cross examination he stated that he saw that accused Barkat Ali inflicted knife injuries to deceased Khawand Bakhsh, he further urged that at the time of lodging FIR by Rajab Ali he was present there with complainant and whatever was told by complainant to police, he was hearing and Rajab Ah' told the police in his presence that accused Barkat Ali inflicted knife injuries to deceased Khawand Bakhsh and accused Akram caused injuries by 'firing, but this fact does not find place in FIR which means that depositions of PW-Rajab Ali and Nadir Hussain suffer from material inconsistencies and contradictions, as such without independent corroboration is not worthy of credence. The trial court disbelieved the version of PW-Rajab Ali and Nadir Hussain j_ against accused Habibullah and Akram, but had believed same set of evidence 1 against present appellant, therefore, in view of the principle of indivisibility of credibility it is to be seen whether statement of these two witnesses can be considered against Barkat Ali for sustaining conviction. Previously as a Rule of Convenience it was settled that when there are discrepancies in the statements recorded by police and court, the credibility of such witness will not be accepted against one and rejected against others, but owing to an exception to the Rule, it was declared by Hon'ble Supreme Court that if court comes to a conclusion that witness is involving one accused falsely, it would not be safe to rely on his testimony unless same is corroborated by other evidence. In this behalf reliance is placed on case of "Ghulatn Sikandar and another v. Mamaraz Kfian and others" reported in PLD 1985 Supreme Court Page 11. The operative portion being instructive is reproduced below:- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan . The same principle has been described in some cases, .slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no censensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be iretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghiilam Muhammad V. Crown (I) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong an Independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused." In view of dictum laid down in the aforementioned judgment, it is to be seen 3 whether in the instant case there is any other strong corroborative evidence ( 1 available on record for warranting conviction against accused Barkat Ah' on the a strength of testimony of Rajab Ali and Nadir Hussain. The next witness of prosecution is PW-Miran Bakhsh who is brother of ceased Khawand Bakhsh, according to his version he came from Shahdad Kot at about 7.30 A.M. and he saw accused Barkat Ali running with knife in his hand, whereas other accused had shot guns. In re-examination an attempt has been made to clarify that he reached Usta Muhammad i.e. Bagtel Road Bus Stand at 7.30 P.M., but in his statement recorded in vernacular, it is clearly mentioned that he reached there at 7.30 A.M. Even otherwise, the witness was examined by prosecution after 36 days after incident and explanation offered by him that he had gone to Larkana for treatment of Nadir Hussain, such explanation is not worthy of acceptance and under the circumstances reliability of witness is not free from doubt. In this behalf reliance can be placed on case of "Muhammad Iqbal Vs. State" reported in 1984 SCMR P. 930 and "Bashir Ahmed-Appellant Vs. State" reported in 1985 P.Cr.LJ. page 1987. The next piece of evidence is medical evidence. According to Dr. Abdul Rahim there was only one stab penetrating wound, whereas witness Nadir Hussain stated that deceased Khawand Bakhsh sustained three knife injuries, as such this piece of evidence can also not be used as corroborative piece of evidence against appellant. There is another incriminating evidence against accused /.e. recovery of knife. Although knife was recovered on llth day after the arrest of Barkat All from a plot situated near the house of Habibullah. According to prosecution, accused had himself led the police for the recovery of knife and knife was found blood stained, it may be seen that accused allegedly led the police for recovery of knife on llth day of his arrest. According to chemical analyser report Ex.P/9 the knife Article-7 was stained with human blood, whereas PW-Rajab Ali hi his deposition stated before court that police remained on Ja-i-Wardat for about 11/2 hour and police took blood stained earth and secured knife etc from the place of incident and then returned to police station. It is not understandable that if police has secured knife i.e. weapon of offence at the place of occurrence, then how knife was recovered at the pointation of accused Barkat Ali after his arrest, the investigating officer has also not offered any explanation in this behalf. Similarly it is not believeable that accused who made his escape good from the place of incident, would keep under his control blood stained knife for a long period, as such, recovery of knife is also not believeable under the circumstances mentioned above. The prosecution story even otherwise appears to be doubtful because if it is believed that all the accused were armed with guns then instead of causing murder of deceased with fire arm why knife was used for this purpose, this leads us to conclude that real culprits have made their escape good, and the prosecution subsequently involved appellant and other persons hi the commission of offence. Admittedly accused Barkat Ali was arrested from Rajpootana Hospital , Hyderabad on 14.6.1989,.but. no explanation is coming forward that under what circumstances, accused was admitted in hospital and whether he was injured or not. In view of inconsistencies and discrepancies in statements of prosecution witnesses, there is no independent evidence or circumstance to corroborate statements of PW-Rajab Ali and PW-Nadir Hussain. Hence it is held that prosecution case is full of doubts, as such, benefit of doubt is extended to Barkat Ali. Resultantly the impugned judgment is hereby set aside, and appellant is I acquitted of the charge, he may be set at liberty forthwith' if not required in any j other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 118 Present: ABDUL MAJID TlWANA, J DAULAT-Petitioner versus MUHABBAT and 6 others-Respondents Criminal Revision No. 218 of 1991, dismissed on 17.12.1991. Complainant's right to participate in appeal- - —Offence under Section 302 PPC-Acquittal of accused except one-Revision .against acquittal of co-accused--Dismissal of-Whether complainant has right to participate in appeal of convicted ccused-Question of~Confronted with situation that if revision ultimately succeeds, it shall entail not only re-trial of acquitted accused but also that of co-accused sentenced to death, petitioner's counsel has chosen to withdraw it with request that he may be allowed to participate in arguments addressed in criminal appeal of convicted accused-­ Request appears to be in consonance with dictates of /ja/ia--Section 3 of ^Enforcement of Sharia Act, 1991 recognises such right-Held: Petitioner's counsel shall be well within his rights to oppose appeal of convict before Division Bench. [Pp.ll8&119]A&B Syed Zahid Hussain Bokhari, Advocate for Petitioner. Date of hearing: 17.12.1991. order The respondents alongwith Nasir co-accused were tried by a learned Additional Sessions Judge at Sheikhupura on the charge of committing murder and vide his judgment, dated 12.2.1991, where Nasir co-accused was convicted u/s 302 PPC and sentenced to death besides some fine and imprisonment in lieu thereof, the respondents were acquitted on benefit of doubt. 2. By this criminal revision the petitioner, who is complainant in the case, calls in question the order of their acquittal. The learned counsel for the petitioner, while confronted with the situation that if he presses his criminal revision against the acquittal of the respondents, the same, if it ultimately succeeded, shall entail not only their retrial but also that of their co-accused Nasir, who stands sentenced to death, he has hosen to withdraw it. He, however, requests that he may be allowed to participate in the arguments to be addressed in the criminal appeal of Nasir before the Division Bench, on behalf of the complainaat. - 3. This request appears to be in consonance with the dictates of Sharia which is now supreme law of the land by virtue of section 3 of the Enforcement of Sharia Act, 1991. It not only recognizes the right of an individual but also gives it preference over the right or authority of the State and its functionaries. He shall, therefore, be well within his rights to oppose the appeal of Nasir convict before the Division Bench on behalf of the complainant. 3. With the above observations the criminal revision is dismissed as withdrawn. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 119 Present: bdul majeed mallick, CJ MUHAMMAD BASHIR-Appellant versus THE STATE-Respondent Criminal Appeal No. 3 of 1984, decided on 16.12.1991. (i) Benefit of doubt-- —-Double murder-Case of--Conviction for-Challenge to—It is an accepted principle of law that court has to be careful in imposing punishment on accused, and on slightest suspicion, it is better to acquit than to onvict accused-Held: Events preceding immediately before first and second incident remaining shrouded in mystery, murder of Mst. Mahmooda Begum has not been established free from doubt-Appellant cquitted in first incident of murder. [Pp.l24&125]F (ii) Criminal Trial— -—Double murder-Case of--Conviction for~Challenge to—On charge of murder of Mst. Mahmooda Begum, prosecution produced Nasima, solitary minor female witness, but her name was not given in FIR- uhammad Ayub, injured PW was alone eye-witness of second murder and evidence of other eye-witnesses is not free from doubt-Eye-witnesses were admittedly inimical towards accused and prosecution has ailed to produce corroborative evidence -Held: There was no evidence of requisite standard to visit accused with sentence of Qisas on basis of testimony of solitary witness. [P.124]C,D&E (iii) Eye-witnesses- —Double muder-Case of--Conviction for-Challenge to—Muhammad Ayub, injured witness alone is eye-witness of second incident—Whole incident! according to Prosecution, took a short time-Other witnesses are shown to have arrived on scene after some interval of 10 minutes or more-Presence of these witnesses was introduced by Prosecution to strengthen evidence against assailant-Held: Presence of witnesses except Muhammad Ayub, injured PW, as eye-witnesses of second incident, is not free from doubt. [Pp.l22&123]A (iv) Lesser Sentence-- —Double murder—Case of—Conviction for—Challenge to—Second murder is established by virtue of testimony of Muhammad Ayub, injured PW-Held: In absence of independent corroboration and initial ircumstances leading to murder having been found shrouded in mystery and obscurity, sentence of 14 years R.I. is deemed just and adequate to serve ends of justice-Benefit of Section 382-B of CriminJ rocedure Code also allowed. [P.125]G,H&J PLD 1982 SC 152 and PLD 1967 Lahore 425 rel. (v) Motive- —Double muder-Case of--Conviction for-Challcnge to—Prosecution kept silence on point of motive of double murder and attack on eye-witnesses- What transpired between assailant and deceased before ncident of first murder, remains shrouded in mystery-No motive has been alleged in respect of second murder—Held: Assailant who otherwise was shown having accompanied his wife (victim of first murder) rom their Behk to their home in village, should not have killed his wife on sudden impulse of desperation. [Pp.l23&124]B Raja Muhammad Hani/Khan, Advocate amicus curate. Sardar Muhammad Sadiq KJian, Addl. A.G. for State. judgment Muhammad Bashir, convict-appellant has been visited with the sentence of 'Qisas' and death, by the District Criminal Court, Muzaffarabad, on the liability of murder of Mst. Mir Jan and Mst. Mahmooda Begum (his wife) deceased respectively. The reference for confirmation of sentence of 'Qisas' and death and appeal against the order of conviction, are disposed of together. 2. The incident of double murdar took place on February 15, 1980. According to prosecution, Muhammad Bashir, convict and Mst. Mahmooda Begum, his wife, lived together. On the morning of incident, they came together to their house situate in village Gehl-Sachian. They were seen coming together by their neighbours. Mst. Mahmooda Begum was holding a sheep and the convict was following her. On arrival in their home, Muhmmad Bashir left to see Sain 'Malung' in the neighbourhood when Mst. Mahmooda Begum visited the house of Mst. Noor Jan, in her neighbourhood. She demanded some wool from her. Mst. oor Jan expressed her regrets as the wool was not available and promised to giveher the wool after few days. Muhammad Bashir went back. After sometime, there was alarm in the house. Nasima, daughter of Muhammad Afzal and Mst, Noor Jan, who was grazing the sheep in the nearby field, arrived on the scene. She saw Muhammad Bashir inflicting blows to his wife resulting in death. The presence of Nasima was notice by the accused who abused and threatened her. Nasima ran towards her house and she was chased by the culprit. She informed her parents, Muhammad Zaman and Mst. Noor Jan, of the incident of murder of Mst. Mahmooda Begum. Meanwhile, Muhammad Afzal who was asleep, got up and reached the door of his house when the assailant arrived there and inflicted a with hatchet blow on his face. Mst. Noor Jan intervened but she was also given blow hatchet. The assailant disappeared from the scene. 3. The second incident occurred in the manner as Muhammad Ayub and Mst. Mir Jan were proceeding to the house of one Majid Khan. They were on their way when the assailant arrived there 'and suddenly gave a hatchet blow on the head of Mst. Mir Jan. Muhammad Ayub intervened. He was also given hatchet injury on his face. The accused immediately disappeared from the scene. The second incident was seen by Muhammad Afzal, Muhammad Farid and Sain. Atta Muhammad. Lambardar \vho made the first information report, was also stated to have arrived on the scene of second occurrence. 4. The first information report was made by Atta Muhammad, Lambardar, wherein it was stated that Muhammad Bashir, accused killed his wife and Mst. Mir Jan and also caused injuries to Hussain Khan, Mansoor, Muhammad Zaman, Muhammad Ayub, Ghazi Khan, Muhammad Afzal Khan, Muhammad Farid Khan. Mushtaq and Mst. Noor Jan. The accused pleaded not guilty. The prosecution in support of its accusation produced Atta Muhammad, Lambardar, (who made the first information report), Nasima, Muhammad Javed, Ali Akbar, Abdul Aziz, Hav. Alif Din, Muhammad Yusuf, Lambardar, Mst. Noor Jan, Muhammad Afzal, Sain, Ali Haider, Muhammad Ashraf, Muhammad Amin, Muhammad Sharif, Mutwali Khan. Rukkan Din, Muhammmad Ilyas, Farooq Abdul Rehman, Mst. Kali, Munshi Ghulam Hussain, Dr. ubbashar Ahmed and Mutwali Khan, const ble. No one appeared in defence. 5. The first incident of murder took place inside the house of the accused and deceased. Nasima was the only eye witness of the first murder. Mst. Noor Jan and Muhammad Afzal, her parents, were informed of the murder of Mst. Mahmooda Begum by Nasima, their daughter. The age of Nasima is 11/12 years. She gave the details of incident. The details of the first incident were not given in the first information report. The. name of Nasima was also not mentioned therein. It was at the stage of trial that Nasima appeared as an eye witness of the incident. The prosecution was unable to explain the uppression of name of Nasima as eye witness of the first incident. 6. Mst. Noor Jan and Muhammad Afzal are the injured witness es. They received injuries at the hand of the essailant, inside their own house. Primarily, their evidence directly relates to the manner of injuries caused to them and not beyond that. They received the information of murder ofMst. Mahmooda Begum from their daughter, Nasima, otherwise they were not the eye witness.es of the incident. In this situation, we are left only with the testimony of Nasima in respect of the first murder. The testimony of Nasima loses its credibility for 2 reasons:- . (/) The first information report wnich was made after considerable time and acquisition of knowledge of the series of incident direct from the injured witnesses, Muhammad Afzal and Mst. Noor Jan, does not contain the name of Nasima as eye witness. Suppression of this vital witness of the prosecution finds no explanation even at the subsequent stage of the trial; (k) The presence of Nasima at the time of first incident, equally becomes doubtful as, according to her testimony, when the accused and his wife went inside the room, the witness was attending her sheep in the field. • The witness volunteered to say that she saw the whole incident of murder. Her testimony also reflected that she was attracted by hue and cry of Mst. Mahmooda Begum when she was being killed by her husband. In case such version of the witness was correct, then Mst. Noor Jan and Muhammad Afzal who were also present in the close neighbourhood, should have reached on the spot. But it admitted to the prosecution that none of those persons arrived on the scene of first incident. One 'Sain Malung' sale resided in the neighbourhood of the deceased and the assailant whom the assailant visited immediately before the first incident. That 'Sain Malung', the immediate neighbour of the deceased, was also not shown to have arrived on the scene on the attraction of cries of the deceased. 7. The aforesaid reasons lead to the inference that the conviction based on mere evidence of Nasima is not well founded. The charge of first murder has not been proved by the prosecution beyond reasonable doubt. 8. The second incident of murder took place when the victim and the assailant were on their way to the house of one Majid Khan. Muhammad Ayub, injured witness alone is the eye witness of the incident. According to his testimony, the assailant suddenly hit a hatchet blow on the head of Mst. Mir Jan who fell down and died on the spot. The witness intervened when he was also given a blow on his face by which he fell down and became unconscious. The infliction of these 2 blows on both the victims, consumed very short time. It is admitted to prosecution that the accused disappeared rom the scene immediately after causing injury to Muhammad Ayub. Thus, the whole incident, in view of the circumstances disclosed by the prosecution, took place in a very short time. Muhammad Ayub, eye witness, in the circumstances, is the alone eye witness of second murder. Muhammad Afzal, Muhammad Farid and Sain, PWs who claimed as eye witnesses of the second incident, were shown to have arrived the scene after some nterval of about 10 minutes or more. The interval of 10 minutes or more was introduced at the subsequent stage and not in the first information report. Keeping in view the number of injuries, the manner of incident and total time consumed in it, these witnesses cannot be accepted as eye witnesses of the incident. It appears that their presence as eye witnesses was introduced by the prosecution, to strengthen the evidence against the assailant. Atta Muhammad Lambardar who immediately arrived on the scene of second murder, made report to the police. In that report, the details of second incident, again, were omitted. No explanation for such omission was advanced by the prosecution at the stage of trial. Thus the presence of Muhammad A/zal, Muhammad Farid and Sain, as eye witnesses of the second incident, is not free from doubt. Raja Muhammad Hanif Khan, the learned Counsel for defence, contended that the story of double murder introduced by the prosecution was improbable and unnatural as the murder of 2 persons could not have taken place in such a manner. The objection was controverted by the learned Additional Advocate General who supported the order of conviction of the trial Court. 9. The contention of the learned Counsel finds support from the record as the incident of murder of Mst. Mahmooda Begum, as reported in the first information report, was not shown distinct and preceding from the second murder. These details were first disclosed to the investigating officer during the investigation and subsequently during the trial. Moreover, the prosecution was unable to explain the circumstances immediately preceding the first and second murder. It was disclosed by the prosecution witnesses that the complainant party and the assailant party were not on good terms. They ere not even talking terms to each other as the assailant was ascribed the murder of his first wife. The witnesses admitted that they opposed the marriage of Mst. Mahmooda Begum with the assailant. They endeavoured to convince the father of the deceased that he should not give the hand of his daughter to the assailant. In such situation, it is obviously realised to know as to what preceded immediately before both he in idents. The prosecution kept its lips tight on the circumstances immediately preceding the incident of first and second murder. It is also thought provoking that Atta Muhammad Lambardar who made report, was well posted with the details of both the incidents of murder, before giving the first information report. Mst. Noor Jan by that time, had also arrived and met the other witnesses of the second incident and she narrated the details of the first incident to them, before the report was made to the police. 10. The prosecution kept silence on the point of motive of double murder and attack on the eye witnesses. At one stage, it was disclosed by Mst. Noor Jan and other witnesses that the assailant was suspicious of illicit relations of his wife with Muhammad Zaman, injured witness. The fact of motive of illicit relations was not corroborated by independent evidence. As to what transpired between the assailant and the deceassed before the incident of murder, remains shrouded hi mystery. Even if for arguments sake, we accept the testimony of Nasima, even then we find no indication to the events leading to the cause of assault on Mst. Mahmooda Begum. Besides that, no motive has been alleged in respect of second incident of murder and causing of injuries to Muhmmad Ayub, PW. This aspect of the case of the prosecution has been analysed to show that the assailant, who otherwise was shown having accompanied his wife all the way from then" "Behk" to their home in the village, should not have killed his wife on sudden impulse of desperation. 11. The trail Court awarded the sentence of 'Qisas' and death to the assailant on the charge of double murder. The sentence of 'Qisas' is imposed when it is satisfied that the assailant committed wilful murder and the charge of murder was supported by credible testimony of 2 male adult 'aadtf Muslims. When the guilt of wilful murder is established but the evidence of requisite standard for visiting the culprit with the sentence of 'Qisas' is not available, then the Court has to advert to the provisions of Section 3 of the Islamic Penal Laws Act, to award one of the sentences prescribed therein. In the present case, the trial Court awarded the sentence of 'Qisas' on the charge of murder of Mst. Mir Jan as in its view, the charge was established by virtue of testimony of the eye witnesses, more than 2 in number. On the charge of murder of Mst. Mahmooda Begum, the accused was given the sentence of death, as the requisite standard of evidence was not available. 12. The sentence awarded by the trial Court cannot be confirmed for the following reasons:- (/) That on -the charge of murder of Mst. Mahmooda Begum, the ' prosecution produced Nasima, the solitary minor female witness. The name of the witness was not given in the first information report. She was introduced at the subsequent stage. For evidence has already been appraised elsewhere and the same has not been found sufficient to visit the accused with the sentence of death on the liability of death of Mst. Mahmooda Begum. (//) It is also discussed elsewhere that Muhammad Ayub, the injured witness, was alone as an eye witness of the incident of second murder. The other witnesses could not be accepted as eye witnesses of the incident of murder of Mst. Mir Jan. Their evidence is also not found free from doubt. IE (///) The witnesses were admittedly inimical towards the accused. In presence of animosity of the witnesses with the accused, it was enjoined upon the prosecution to produce independent corroboration which is not forthcoming in the present case. Thus, there was no evidence of requisite standard to visit the accused with the sentence of 'Qisas', on the basis of testimony of solitary witness. 13. It is an accepted rule of law that the Court has to be careful in imposing punishment on the accused. More care is desired in the case of charge of grave offence like murder as, on account of slightest suspicion, it is better to acquit than to convict the person. In the present case, it is found that the events immediately preceding the incident of first and second murder are left shrouded in mystery and obsecurity. The murder of Mst. Mahmooda Begum, as noticed earlier, has not been established as free from doubt. Thereafter, the accused is acquitted on that charge. 14. The second murder, however, is established by virtue of testimony of Muhammad Ayub, but in absence of independent corroboration and initial circumstances leading to the murder having been found shrouded in mystery and obsecurity, the accused is awarded sentence of 14 years, and this sentence is deemed just and adequate to serve the ends of justice. This view inds support from Kha Ahmed's case (PLD 1982 S.C. 152). In that case, Khan Ahmed and Saleem were tried on the charge of murder. Khan Ahmed was awarded the sentence of ife imprisonment on the plea that the real origin of incident of murder was suppressed by prosecution, as such the sentence of life imp isonment was considered expedient. In Muhammad Hussain's case (PLD 1967 Lahore 425), the Court was unable to reach the conclusion as to what exactly preceded the incident of murder, as such it was felt satisfied to award the sentence of life imprisonment to the accused. 15. Muhammad Bashir, accused, is, therefore, found guilty on the charge of murder of Mst. Mir Jan. He is awarded the sentence of 14 years rigorous imprisonment. He is also found guilty of causing hurt to Muhammad Ayub, H Muhammad Zaman and Mst. Noor Jan. In absence of requisite standard of evidence, he is awarded the sentence of Tazeer' by imprisonment for one year in each. All the sentences shall run concurrently. 16. The convict was arrested on February 16, 1980. He remained in Judicial Lock-up throughout the trial and disposal of the appeal and confirmation of the sentence. Therefore, he is granted benefit of provisions of Section 382-B, Cr.P.C. The period of such detention shall be counted towards his rigorous imprisonment. JJ, The benefit of concession of remittances of sentence to the convict awarded by the Government' or the President from time to time, during this period shall be admissible to him as well. The appeal and reference are disposed of accordingly. (MBC) (Approved for reporting) Sentence altered.

PLJ 1992 Cr PLJ 1992 Cr.C (AJK) 125 Present: ABDUL MAJEED MALLICK, CJ MUHAMMAD ISHAQUE and another-Petitioners versus THE STATE-Respondent Criminal Reference No. 14 of 1991, decided on 28.12.1991. Bail-- —Muder case--Bail--Grant of--Prayer for~Only presence of petitioners was shown at place of incident-Their presence was not un-natural as they lived in vicinity-Held: Unless an overtact ascribed to petitioners as supported by any tentative evidence, they could not be kept under detention on mere presence of their names in FIR--Held further: Suppression of injuries received by mother of petitioners and Aurangzeb, rincipal accused, is also a supporting factor to release them on bail-Bail allowed. [P.128]A,B&C Mr. Muhammad Matloob Klian, Advocate for Petitioners. Mr. Muhammad Akram Mughal, Addl. A.G. for State. Sardar Rehmatullah KJian, Advocate for complainant. judgment This reference has been made by the District Criminal Court, Kotli, on account of difference of opinion in the matter of bail. 2. Aurangzeb, Muhammad Ishaque and Barkat Hussain were put to trial on the charge of murder of Mst. Sahado Begum and infliction of injuries on the eye witnesses, under Sections 5, 15, Islamic Penal Laws Act, read with Section 34, APC. The alleged incident took place on September 24, 1989, at 6.30 A.M. Abdul Aziz made a report of the incident in writing. It was alleged that Nazia daughter of the complainant and Musarrat daughter of Aurangzeb quarrelled with each other. Aurangzeb and Barkat Hussain were informed of the incident by Mst. Jamil Begum, wife of Aurangzeb, on the night of September 23, when they came home. On the morning of the day of incident, the complainant was not present at home. Aurangzeb, Muhammad Ishaque and Barkat Hussain came in front of the house of complainant party and abused them. Mst. Sahado Begum,, wife of the complainant, came out of the house and arrived in the street. There was altercation between Mst. Sahado Begum and the assailants. Mistri Abdul Majid and Muhammad Hussain who were attracted by alarm, arrived on the scene and endeavoured to intervene in the quarrel when Aurangzeb fired twice with his 12-bore gun on Mst. Sahado Begum who died on the spot. Thereafter, the assailants trespassed in the premises of the complainant and assaulted Khadim Hussain, Habib, Yasmin and Nazia, sons and daughters of the complainant. Aurangzeb fired on the aforesaid persons. Yasmin and Nazia received pellet injuries on their legs. Habib and Khadim Hussain ran away for their safety but they were chased by the assailants. Khadim Hussain also received pellet injuries on the left leg by the firing of Aurangzeb. Habib, his brother, received pellet injuries on his right thigh. Thereafter, the assailants disappeared from the scene. It was alleged that the parties were inimical towards each other as the father of the complainant was killed by the assailants on September 24, 1979 and also injured Qurban Hussain, 1: -. brother, sometime in the past. 3. Aurangzeb, Muhammad Ishaque and Barkat Hussain are real brothers. They lived together. Aurangzeb died after moving the application for his release on bail. The learned Sessions Judge, a member of the District Criminal Court, felt persuaded to allow bail to Muhammad Ishaque and Barkat Hussain, on the ground of further inquiry 1 and declined bail to Aurangzeb. The District Qazi, the other member of the Court, however, declined to concur with the finding of the learned Sessions Judge, as such reference was made to this Court for its disposal. 4. Mr. Muhammad Matloob Khan, the learned Counsel for defence, contended that Muhammad Ishaque and Barkat Hussain are innocent. The prosecution ascribed no overt act to both of them. It was alleged that they raised 'lalkara' after the murder of Mst. Sahado Begum. Thus, in case the allegation of prosecution is accepted as truthful, even then they are not ascribed any partisan role in the alleged murder. It was further contended that in view of the prosecution's version, the role ascribed to the assailants fell within the purview of further inquiry. Reference was made to authorities of this Court and the Supreme Court of Azad.Jammu and Kashmir, in support of the aforesaid points. Sardar Rehmatullah Khan, the learned Counsel for the complainant controverted the aforesaid points and emphasised that the presence of Muhammad Ishaque and Barkat Hussain in the incident of murder, was clearly described in the first information report. It was argued that both the accused helpe'd Aurangzeb, he pr ncipal accused, in killing the deceased and infliction of injuries to the eye witnesses. The learned Additional Advocate General supported the finding of the learned District Qazi. 5. During the trial, both the accused pleaded not guilty. The evidence of Mistri Abdul Majid, an independent eye witness of the incident, has already been recorded. Reference confines to plea of bail of Muhammad Ishaque and Barkat Hussain. 6. It is evident from the record that Aurangzeb, the principal accused, murdered _\/st. Sahado Begum and inflicted injuries on the eye witnesses by firing with his 12-bore gun. The present accused were shown carrying stick and hatchet in their hands but these weapons were not used by them at any stage throughout the occurrence. The testimony of Mistri Abdul Majid, prima facie, reflects that Barkat Hussain carried a stick and Muhammad Ishaque a hatchet. They were seen standing together. The allegation of murder was ascribed to Aurangzeb. The present accused persons were not ascribed the charge of murder, incitement, abetment or help of any kind, in the alleged murder in furtherance of common object. 7. Aurangzeb and his mother were also injured in the incident. This factor was not brought to light by prosecution. Nevertheless, Mistri Abdul Majid admitted in his cross-examination that Aurangzeb and his mother also received injuries. 8. It is an ac'cepted rule of grant or refusal of bail, to appreciate the ascribed role of an assailant in an incident, in the light of facts of particular case. Once it is satisfied that the accusation ascribed to assailant is not grave and supported by evidence, in that case, the assailant is given the benefit of provisions of Sub­ section (2) of Section 497, Cr.P.C. on the ground of further inquiry. 9. In the present case, prima facie, only the presence of the assailants was shown at the place of incident. Their presence was not unnatural as they lived in the vicinity. Moreover, the family members of both the parties came out of their houses on the alarm of quarrel. Thus, unless an overt act ascribed to assailants was supported by any tentative evidence, they could not be kept under detention, on the mere presence of the : - aame in the first information report. 10. The other supporting factor to the plea of release of the accused on bail, is the suppression of injuries received by their mother and Aurangzeb, the principal accused, as described by Mistri Abdul Majid, PW. 11. In view of the aforesaid position, the finding of the learned Sessions Judge is upheld. It is, therefore, ordered that the accused-petitioners shall be released provided they furnish bail bond in the sum of Rs. l,00,000/-with their personal bond in the like amount each, to the satisfaction of any Magistrate 1 st Class, Kotli. (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Quetta ) 128 (DB) Present: munawar ahmad mirza CJ and iftikhar muhammad chaudhry, J MUHAMMAD YOUSUF-Appellant versus THE STATE-Respondent Criminal Jail Appeal No. 67 of 1991, dismissed on io.12.1991. (i) Benefit of doubt-- —Murder-Offence of-Conviction for-Challenge to~Claim of benefit of doubt-It is not understandable as to how contention has been made that doubt has arisen in case of prosectution-Facts nd circumstances indicate that cold blooded murder of an innocent person without any justification, has been committed-Held: Lower court has rightly awarded adequate punishment to accused-Appeal dismissed. [P.135JD (ii) Confession— —Murder-Offence of-Conviction for-Challenge to-Whether it is necessary to record confession within 24 hours—Question of—Contention that prosecution was under obligation to record confessional statement of accused within 24 hours after his arrest-There is no material to prove that appellant was in Police custody from date of incident-Confessional statement was recorded within 24 hours of arrest of appellant-Held: Efforts should be made for producing accused before Magistrate if he is ready and willing to make confessional statement freely and ithout any coercion and inducement, as early as possible-Held further: It depends on attending circumstances and facts of each case that what should be minimum period for recording confessional statement. [Pp.l33&134]B&C PLD 1978 Quetta 1 rel. (Hi) Confession— —Murder-Offence of-Conviction for-Challenge to~Whether trial court rightly based conviction on confessional statement—Question of—In addition to confessional statement of appellant, there are ther pieces of evidence which corroborate confessional statement of accused—Held: Trial Court rightly considered confessional statement of appellant as true and voluntary and rightly based conviction on it. [P.133]A PLD 1964 SC 813 and 1983 SCMR 1292 rel. Ruju Rub .VsTHj^ Advocate for Appellant A/; 5j/<i ; ::«ii/rn .\fengal, AA.G. for State. Da;eofhearing:2.12.1991. judgment Iftikhar Muhammad Chaudhry, J.--Muhammad Yousaf son of Gul Hassan has been convicted and sentenced under Section 302 PPC for life imprisonment asd fine of Rs. 20.000/- and in default of payment of fine to further undergo two years R.I. by Additional Sessions Judge-I, Quetta vide impugned judgment dated 31.S.1991. 1. Briefly stating the facts of prosecution case are that on 8.10.1989 Abdul Razzaq lodged report with Civil Lines Police Station Quetta stating that he is employed in WAPDA as Welder and his younger brother Muhammad Irfan was learning work with him. He left his work at 1.30 P.M. and by a local bus went home, whereas he himself came home on his own motorcycle. At about 2.00 P.M. when he was taking his luncheon, it was informed by Akhtar son of Habib who is also his neighbour that his brother is lying injured on the back side of cabin at Joint Road, as such, complainant went there and saw his brother lying injured at the place which was pointed out by aforesaid person.The complainant observed injuries on left side of the chest below the ribs, however, he was shifted to hospital. In view of above facts FIR No. 165/89 was registered at Civil Lines Police Station, Quetta nder Section 307 PPC but as injured uhammad Irfan succumbed to the injuries, therefore, offence was altered to 302 PPC. The investigation of the case was taken in hand by Muhammad Ayaz, Sub Inspector, Civil Lines Police Station who recorded Fard-e- Biyan Ex.P/A of complainant and handed over dead body of deceased to heirs without autopsy in pursuance of order passed by .D.M. Quetta. The blood stained clothes worn by deceased were taken in possession vide Fard Ex.P/B, statement of witnesses under Section 161 Cr.P.C. were recorded and on 15.10.1989 arrested co-accused Ghulam Rasool under Section 54 Cr.P.C. and on his information and pointation accused Muhammad Yousuf was arrested on 23.10.1989. Muhammad Yousuf pointed out the place of occurrence to investigating officer who prepared sketch of site plan, subsequently accused also led the police for recovery of knife which was taken in possession vide Fard Ex.P/D and knife was sealed in a parcel. During investigation accused expressed his inclination to make statement under Section 164 Cr.P.C as such he was produced before Magistrate on the following date i.e. 24.10.1989 and thereafter other formalities were completed and challan .was submitted against appellant as well as Ghulam Rasool under Section 302/34 PPC. 2. The trial court framed charge against accused on 14.2.1990 to which he did not plead guilty and claimed trial. During trial prosecution produced following witnesses:- PW-1, Abdul Razzaq, tomplainant. PW-2, Nazir Muhammad who prepared sketch of site plan on pointation of investigating officer Ex.P/B, PW-3, Dr. Abdul Sattar who issued medical certificte regarding external examination of dead body of Muhammad Man Ex.P/D, PW-4 Ahmed Yar, witness of inventory Ex.P/D dated 27.10.1989 relating to production of knife by accused to police and PW-5 Sher Ahmed witness of inventory for taking clothes of deceased produced by complainant to investigating officer on day of incident vide Ex.P/E and Shalwar and Kamiz and Sweater Article 2, PW-6 Zahir Kasi who recorded 164 Cr.P.C. statement of appellant Ex.P/F, PW-7 Yawar Arshad, he was also arrested on suspicion by police, PW-8 Muhammad Ayaz investigating officer who produced Ex.P/8-A sketch of site plan, prepared on pointation of appellant, besides two other site plans Ex.P/8-C and P/E, chemical examiner's report Ex.P/8-D, challan ExP/8-F. The statement of accused under Section 340 (2) as well as 342 Cr.P.C. was recorded in which appellant has shown himself to be innocent and not involved in the commission of offence. The appellant did not produce any defence evidence, whereas co-accused Ghulam Rasool besides his own statement also produced two defence witnesses. 3. The trial court on completion of trial passed impugned judgment whereby accused was convicted and sentenced as mentioned in above paras, whereas co-accused Ghulam Rasool was acquitted from the charge. 4. Raja Rab Nawaz, learned counsel appearing for appellant contended as under.•- (1) The confessional statement of accused is neither true nor given voluntarily. (2) Recovery of knife has not been proved against appellant by prosecution because evidence to this effect is not confidence inspiring. (3) Injuries on person of deceased Muhammad Irfan were not in conformity with the prosecution witnesses as well as medical certificate. (4) Prosecution case is full of doubts as such appellant be acquitted while xtending benefit of doubt to him. 5. On the other hand, Mr. Salahuddin Mengal, learned Assistant Advocate General contended as under:- (1) The confessional statement made by accused is true and voluntary. (2) Recovery of knife has been proved by prosecution on basis of independent evidence, as such no doubt can be expressed in this behalf. (3.1 Injuries recorded in medical certificate pertaining to body of deceased are quite in conformity with evidence available on record. (4) Prosecution has proved its case by producing best kind of evidence kaving no doubt of whatsoever nature. 6. We have heard both the learned counsel at length and with their assistance record of the case has also been perused carefully. 7 . The accused was undoubtedly arrested on 23.10.1989 whereas his confessional statement was recorded by PW-Zahir Kasi on following date i.e. 24.10.1989. Raja Rab Nawaz controverted this fact and stated that appellant was in custody of police with effect from 8.10.1989 as per version of PW-7 Yawar Arshad. We have carefully examined the statement of witness who stated that alongwith him some other boys were arrested by police on suspicion for the purpose of investigation on 8.10.1989, but he does not say that accused Muhammad Yousuf was also with him in police custody with effect from the date of incident. Similarly we have examined statement of investigating officer which also confirmed that accused Muhammad Yousuf was taken in custody by police on 23.10.1989. Accused Muhammad Yousuf also made statement on oath before trial court but he had not contended that he was in police custody prior to 23.10.1989. Raja Rab Nawaz attempted to argue that confessional statement of accused has been procured by police after subjecting him to torture for so many days. But unfortunately no material has been brought on record to successfully establish this plea. The learned counsel also stated that according o PW-Zahir Kasi he is not sure whether investigating officer was present in his court when he recorded confessional statement of accused. Therefore, according to counsel this creates doubt in favour of accused to the effect that in presence of police his statement was procured. It may be seen that no doubt PW-6 in his testimony before court expressed that he is not aware whether investigating officer was present in his court or not. However, accused himself had also not complained about the presence of investigating officer at the time of recording statement, rather his version under Section 340 Cr.P.C. was that Magistrate gave him Rs. 50/-and asked him to confess the guilt. Had the accused stated that due to fear of police he was compelled to make confessional statement, in that case, argument of counsel would have carried some weight. In the same context he further contended that confessional statement has been retracted by the accused Muhammad Yousuf therefore, same cannot be made basis for sustaining conviction. Moreover, confessional statement should either be accepted or rejected as a whole. To substantiate his stand, reliance was placed on "Wall Muhammad and others Vs. State" reported in 1985 P.Cr. L.J. 756, "Rasool Bakhsh-Appellant v. State- Respondent" 1974 P.Cr.LJ. 325, 1983 SCMR 1292, PLD 1973 Lahore 714. Whereas on the other hand, Mr. Salahuddin Mengal AA..G. urged that authorities cited by counsel are not attracted and applicable on the facts and circumstances of present case. According to him court is competent to base conviction solely on confessional statement if it is shown that confession is true and made voluntarily and fairly. To substantiate his stand he also relied on judgments reported in 1980 SCMR 937 and 1969 SCMR 442. 9. We have considered this aspect of the case. Broad line principle regarding accepting or rejecting of retracted confessional statement was laid by Honourable Supreme Court in case of "Min Hun alias Gul Hassan Vs. State" reported in PLD 1964 Supreme Court 813. Relevant para is reproduced as under:"As for the confessions the High Court it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession,, judicial or extra-judicial whether retracted or not retracted can in law validly form the sole basis of his conviction, if the court is satisfied and believes that it was true and voluntary and was not obtained by torture or coersion or inducement. The question however, as to whether in the facts and circumstances of a given case the court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J. in his commentary on the law of Evidence at page 168 (Vol.1)" it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength aloife. It is the duty of the court that ifcalled upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." The aforesaid principle of law was re-affirmed by Supreme Court in the case reported in 1983 SCMR 1292 which has been relied upon by the appellant's counsel. Keeping in view the facts and circumstances of the case, we are inclined to hold that trial court rightly considered confessional statement of appellant true and voluntary, and has rightly based conviction on it. In addition to this there are other pieces of evidence whcih corroborate the confessional statement of accused. In this behalf sketch of site plan Ex.P/8-B and C, can be referred, because after his arrest accused pointed out to investigating officer the place where offence was committed by him and on his pointation aforesaid site plan was prepared and same was produced in court by PW-8 Muhammad Ayaz. Surprisingly on this point his statement was accepted because no question was put to him. Likewise, recovery of knife cannot be doubted because accused led the police party for recovery of the same which was accordingly effected in presence of civilian witnesses. Raja Rab Nawaz contended that recovery of knife is doubtful because in Fard Ex.P/D it is mentioned that knife, the weapon of offence was produced by accused from the roof of the house of his aunt, whereas PW-4 Ahmed Yar stated that recovery was effected from the roof of the house of his father. As such this piece of evidence cannot be used- against accused. We have considered objection of learned counsel. It may be 'seen that defence counsel in lower court has not clarified that the two houses named above are situated at different places, there can be possibility that in the same house aunt and father of accused might have been li\ing. Even otherwise, contradiction is not glaring and material in its nature. As such this evidence can also be used as corroborative piece of evidence against accused. The learned counsel also contended that prosecution was under obligation to record confessional statement of accused within 24 hours after his arrest. In this behalf he relied on authority which has been noted above (PLD 1973 Lahore 714).It may be seen that in present case statement of accused under Section 164 Cr.P.C. was recorded within 24 hours after his arrest because appellant's counsel failed to show any material on record to prove that accused was in police custody from the date of incident. Even otherwise there is no hard and fast rule that prosecution (should) ^necessarily produce accused for making confessional statement within shortest possible time. In this behalf it is important to mention that in order to avoid any doubt regarding admissibility of confessional statement efforts should be made for producing the accused before Magistrate, if he is ready and willing to make such statement freely and without any coersion and inducement as early as possible. However, it depends on attending circumstancesand facts of such case, that what should be minimum period for recording of confessional statement. In this behalf in case of "Shaukat Saeed Vs. State" reported in PLD 1978 Quetta 1, it was ruled as under:- "As far as I understand the law relating to delay in recording of a confession, I must state that the rules of admissibility prescribe no limit in regard to the time of detention preceding the recording of the confession. I may also state that getting a confession recorded is an intimate function of the police during the investigation of a case, and if Section 167 of the Code of Crimiminal Procedure allows a maximum period of days for completion of investigation, an inference may be drawn that for the mere fact of the confession having been recorded after 24 hours of detention would not make the confession inadmissible. However, a wealth of case law has grown over the years which cast a duty on the courts to consider factual aspects and circumstances attending the recording of confessions often such circumstances may appear to render even confession recorded within less then 24 hours of the arrest of the accused inadmissible, and conversely confession recorded after substantial time may still be relied upon. No confession can be ruled out solely on the ground of delay except by reference to the other evidence attending the confession. No doubt confessions obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible. In this context I may also refer a Division Bench Judgment in the case of Muhammad Karim v. Tlie State (I). In that case the confessional statement was recorded after 5 days of the accused in police custody and their Lordships of the Peshawar High Court relying on the Supreme Court case of Sohbat Khan concluded that the mere fact of the accused being in police custody for 5 days before the confession would not raise a presumption that the confession was product of inducement, threat or promise. On a careful consideration of all the aspects of the proposition I am of the view that the question referred to the Full Bench must be answered in the negative. I would however, enter a caution that every confession is to be considered on its merits in the light of surrounding facts and circumstances and the courts have to take all such circumstances into consideration. The mere fact of delay beyond period of 24 hours cannot be considered in isolation." 10. The next question for consideration would be whether injuries noted in medical certificate are in conformity with the statement of witnesses. To resolve • this controversy it is imperative to reproduce injuries herein below. - 1. Incised wound on the left side of chest 1 "x 1 V muscle deep. 2. Stab wound on the left side of chest of cardial region. Raja Rab Nawaz argued that complainant Abdul Razzaq hi his Fard-e-Biyan i.e. Ex.? 1 contended that his brother Muhammad Irfan had injury on below left ribs and he had not specified that there were two injuries on this side. Similarly inquest report, according to learned counsel, does not indicate that there were two injuries noticed and recorded by investigating officer when he had seen deceased ia hospital. In this context we have seen the inquest report available on record, the contents whereof indicate that there was blood stained wound on the chest towards kft side below the ribs and blood was oozing from it. As inquest report kas not been exhibited, therefore, without asking explanation from investigating officer, it is difficult to observe that deceased had received one or two injuries. However, from P\V-Dr. Abdul Sattar's statement it can be inferred that there was one major irjur. and perhaps during causing the same a stab wound was also g ihc 5jme side of the chest. As such there was no inconformity between ertificate ExP C as well as statement of complainant Abdul Razzaq rHTi Ex.P D i . 11 Raja Rab Nawaz lastly contended that case of prosecution is full of doubts, as such benefit of doubt may be extended to accused. We have discussed his cooteniioni one by one, and we failed to understand that due to which contention it has been inferred by him that doubt has arisen in the case of prosecution. The facts and circumstances indicate that cold blood murder of an innocent per^n without any justification has been committed. Therefore, lower court has rightly awarded adequate punishment to accused. 12. For the fore-going reasons, we see no force in the appeal, which is accordinejv dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 135(DB) Present: \AMOON KAZI AND QAISER AHMAD HAMIDI, JJ AFZAL HAIDER-Appellant versus THE STATE-Respondent Criminal Appeal No. 46 of 1990, accepted on 23.9.1991. Benefit of doubt —Offence under Section 5 of Explosive Substances Act-Conviction for~ Challenge to~Record shows that besides Wali Khan, Chowkidar of Bank, there were so many persons who had chased appellant, but none out of them was examined~PW 1 who, on face of record, is a police tout, and PW 4, a caste-fellow of investigating officer, were put in witness box-Defence evidence shows that appellant was staying in Y.M.CA Hostel wherefrom he checked out on 16.2.1987 at 11 PM. which fact is proved by receptionist of hostel-If version of appellant which is supported by two responsible employees f an Inte national Organization, is accepted to be true, it would destroy entire prosecution case for reason that a person who was earlier arrested at 12-30 P.M., could not have been present at Y.M.CA hostel fter 10-30 hours of his alleged arrest-Held: C se against appellant is doubtful in nature-Benifit of doubt extended. [Pp.l38&139]A,B&C Appellant in custody. Mr. Jalaluddin Baluch, Advocate for A.G. for the State. Date of hearing: 10.9.1991. judgment Qaiser Ahmad Hamidi, J--AppeIlant Afzal Haider was tried by Mr. Wajahat Hussain Siddiqui, Judge, Special Court No. II, Suppression of Terrorist Activities, Karachi, for the offence under Section 5 of the Explosive Substances Act, 1908, who found him guilty for the said offence and vide' judgment dated 27.2.1990 sentenced him to suffer R. I for five years. By this appeal filed under Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence. 2. The prosecution story lay within a very narrow compass. On 16.2.1987 Khalid Pervaiz Awan A.S.I, Artillery Maidan P.S. was patrolling alongwith his subordinate staff in a police van. At 12.30 P.M. the police party reached near Sarawan hotel situated at Raja Ghazanfar Ali Road, when they noticed Wali Khan Chowkidar of a bank who was in injured condition chasing the present appellant alongwith others. The appellant wanted to board car No. 166-748 which was already parked there, but he was over-powered by Khalid Pervaiz Awan A.S.I who recovered one loaded pistol alongwith 8 bullets from his possession. On. conducting further search one hand grenade was also recovered from his possession. The appellant was taken into custody and such inventory was prepared in presence of mashirs Abdul Wahid and Taj Muhammad. On return to police station Khalid Pervaiz Awan A.S.I, lodged FIR against the appellant at Artillery Maidan P.S. (Crime No. 67 of 1987), which was recorded by Arshad Kamal Kayani, S.H.O. The hand grenade was sent to Bomb Disposal Squad, Karachi, where it was defused and was found to be of high explosive nature. After obtaining requisite sanction from Government of Sindh, Home Department, Karachi, the appellant was sent up to stand trial for the said offence. 3. Charge under Section 5 of the Explosive Substances Act, 1908, was framed against the appellant to which he pleaded not guilty and wanted to be tried. At the trial the prosecution examined Abdul Wahid (P.W-1), Khalid Pervaiz Awan A.S.I (P.W-2). Arshad Kamal Kayani S.H.O (P.W-3), and Taj Muhammad (P.W-4). pit Muhammad Khan Platoon Commander (C.W-1) as xamined as Court witness. 4. The appellant met the charge with a denial professing innocence. He has alleged enmity with Arshad Kamal Kayani S.H.O, who was instrumental for implicating him falsely in this case. The appellant wanted to examine himself on oath under Section 340 (2) Cr.P.C, but no opportunity was provided to him. He has. however, examined Muhammad Sharif (D.W-1), Talib Hussain (D.W-2), Wilburn Bede (D.W-3), and Stephen Asif (D.W-4) in his defence. 5. On the assessment of evidence available on reco d, the learned Judge found the appellant guilty and convicted him accordingly. 6. The case of the prosecution mainly rests upon the evidence of recovery of one hand-grenade from the possession of appellant whieh is sought to be proved through Khalid Pcnaiz Awan A.S.I. (P.W-2), Abdul Wahid (P.W-1), and Taj Muhammad (P.W-4'i. The hand grenade was examined by Pir Muhammad Khan, Platoon Commander. Bomb Disposal Squad. Karachi , who appeared before the Court as (CAV-l'i. He has testified that the hand grenade contained explosive substance and it could be used by army during war. ~. Khalid Pervaiz Awan A.S.I (P.W-2) is the star witness of the prosecution and his testimony seems to have weighed considerably with the trial Court in tipping the balance against the appellant. The evidence of this witness shows that on lo.I.l'/S" at about 12.30 P.M. while he was patrolling near Sarawan Hotel, Saddar. Karachi, he heard gunshot reports and saw one person running with a pistol in his hand, who was being followed by the Bank chowkidar and other persons. The said person who is the present appellant wanted to board a car which was already parked there. He was, however, caught and from his possession beside other articles one hand grenade was recovered. Such mashimama was prepared in presence of mashirs Abdul Wahid and Taj Muhammad and the appellant was taken to Artillery Maidan P.S, where Khalid Pervaiz Awan A.S.I. lodged FIR. which was recorded by Arshad Kamal Kayani S.H.O. His crossexamination emphasised that he had deposed against the appellant under the influence of Arshad Kamal Kayani S.H.O (P.W-3), with whom the appellant claimed enmity over the hand of his cousin Mst. Zarina, and although the witness has admitted to have made a joint attempt alongwith Arshad Kamal Kayani S.H.O. to abduct Mst. Zarina from Pakpattan in the year 1986, he has denied to have made false statement implicating the appellant in this case. 8. Abudl Wahid (P.W-1) who has acted as moshir of recovery quite admittedly resided in Keainari. At his own showing he is a chance witness. He has testified about the circumstances leading to the apprehension of appellant and recovery of one hand grenade from his possession. Looking to the attitude of Arshad Kamal Kayani S.H.O. (P.W-3), and the following admissions made by Abdul Wahid mashir (P.W-1) in his cross-examination, I think it is wholly unsafe to rely upon his testimony:- "I have appeared in 57 cases of police in different Courts and against different persons. I see mashimama Ex.3/1. It bears my signature. I have signed at P.S, Ex. 3 or Ex.3/1 and so Taj Muhammad. We were at police station where we also signed. I am witness in so many cases where Mr. Kayani S.H.O is I.O. - -" 9. Taj Muhammad (P.W-4) who was co-mashir of the alleged recovery of the hand grenade is a taxi driver by profession. On 16.2.1987 at the relevant time he was getting his taxi car repaired when he heard commotion and saw the present appellant running away who was being chased by number of persons. He grappled with the appellant and caught hold of him and snatched pistol which he was carrying. This version is in complete variance to the versions made by Khalid Pervaiz Awan A.S.I (P.W-2), and Abdul Wahid mashir (P.W-1). Taj Muhamma (P.W-4) has also slated that the appellant had ired two shots at the time when he was arrested. This is again an improvement. His presence at the tune of occurrence smacks of a crude attempt to make him an eye witness. It was in any case be, a very lucky coincidence, and perhaps one beyond belief, for him to be present at the scene of occurrence exactly at a time when the appellant was apprehended. Since he is Awan by caste like Khalid Pervaiz Awan A.S.I (P.W-2) it does not require much of calculation how to multiply 2 by 2. 10. No doubt Taj Muhammad (P.W-4) who has acted as mashir of recovery has no apparent reason to depose falsely against the appellant, but this fact alone is not sufficient to hold him trustworthy. In the case of Nazir Muhammad alias Nazir Ahmed vs. Tlie State, reported in PLD 1974 Karachi 274, it was held that the mere fact that the witness had no apparent reason to falsely implicate the accused does not render such evidence un-assailable. It was further observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate the accused should be accepted at its face value. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief. 11. The perusal of record shows that besides Wali Khan, chowkidar of the bank who was an injured person (wrongly mentioned as Muhammad Ali Khan by Khalid Pervaiz Awan A.S.I), there were o many persons who had chased the appellant and were present when the alleged recoveries were made. None out o them was, however, examined and instead Abdul Wahid (P.W-1) who on the face of the record is a police tout and Taj Muhammad (P.W-4), a caste fellow of Khalid Pervaiz Awan A.S.I, were put in the witness box. It is almost a settled law that the prosecution must call all witnesses essential to the unfolding of the narrative on which the prosecution is based. For not examining Wall Khan chowkidar of the bank the prosecution has to blame itself and it must face the adverse inference arising therefrom. 12. It is the case of the appellant that he was staying in Y.M.CA. Hostel from where he checked out on 16.2.1987 at 11 P.M. He has examined Wilburn Bede (DAV-3). and Stephen Asif (D.W-4) to prove his defence. Out of these witnesses Stephen Asif (D.W-4) is the most important witness. He was receptionist in Y.M.CA. Hostel and has proved the receipt (Ex.23/B) which shows that the appellant had checked out from the hostel on 16.2.1987 at 11 P.M. He has made it clear that the signature of the appellant were obtained at 11 P.M. If this version of the appellant which is supported by two responsible employees of an International Organization is accepted to be true then it would destroy the entire case of the prosecution for the simple reason that the person who was earlier arrested at 12.50 P.M. could not have been present at Y.M.CA. Hostel after lOi hours ot his alleged arrest. This circumstance if examined in juxta­ position to the defence theory about the enmity of appellant with Arshad Kamal KayarJ S.H.O iP.W-3) over the hand of Mst. Zarina, sister of Talib Hussain fD W-2i. then the entire case of the prosecution becomes doubtful. At any rate the circumstances attending to this case which we have discussed bove have rendered the story of Khalid Pervaiz Awan A.S.I (P.W-2) such which it might not be safe to accept in order to base the conviction on it. It may be recalled that the appellant wanted to examine himself on oath to disprove the charge, but no opportunity was provided to him causing serious prejudice to his case. 13. On over-all appraisement of the entire evidence in the case and on considering all the surrounding circumstances, we are of the view that the case against the appellant is doubtful in nature. Accordingly we extend benefit of doubt to him and acquit him from the charge. The conviction recorded against the appellant is set-aside. The appellant who is in custody be released forthwith, if not required in any other case. 14. In the result the appeal is accepted. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C (Karachi) 139 Present: qaiser ahmad hamidi, J ABDUL RAZZAK RATHORE-Appellant versus THE STATE-Respondent Criminal Appeal No. 81 of 1991, accepted on 6.11.1991. Pakistan Penal Code, 1860 (XLV of I860)- =-S.161 read with Prevention of Corruption Act, 1947, Section 5 (2)—Iilegal gratification—Offence of—Conviction for—Challenge to—Most important witness in this case was Basheer Ahmad, H.C. but e was not examined- Raiding Magistrate and Deputy Superintendent of Police have contradicted each other about location of office of appellant where he was found sitting at time of raid—Both of them did ot hear conversation between complainant and appellant-Held: Evidence of Magistrate and D.S.P. (P.Ws. 3&4) cannot be made basis for convicting appellant for offence with which he is charged— Appeal accepted. [Pp.l43,144&146]A,B&C 1975 P.Cr.LJ 1286, 1978 P Cr LJ 885, PLD 1983 Lahore 514 and 1984 P.Cr LJ 2037 rel. Mr. Mansoob All Qureshi, Advocate for Appellant. Mr. Habibur Rasheed, Advocate for A.G. Date of hearing: 31.10.1991. judgment Appellant Abdul Razak Rathore was tried by Special Judge, Anti-Corruption (Provincial) Karachi, for the offence under Section 161 PPC, read with Section 5 (2) of the Prevention of Corruption Act, 1947, who found him guilty and vide judgment dated 10th March 1991, sentenced him to suffer R.I. for six months and to pay a fine of Rs. 5000/-or in default to suffer R.I. for one month more. By this appeal filed under Section 410 Cr.P.C., read with Section 10 of the Pakistan Criminal Law Amendment Act, 1958, the appellant has challenged his conviction and sentence. 2. Complainant Iftikhar Ahmad who was working as clerk in Health Department in Karachi Metropolitan Corporation, hereinafter referred to as K.M.C. was surrendered by Director Health, K.M.C. for his posting to some other branch. He, therefore, approached one Pervaiz, Despatch Clerk working in Establishment Branch of K.M.C. for getting a suitable posting, who introduced him to appellant Abdul Razak Rathore, the concerned Clerk and he demanded a sum of Rs.500/-as illegal gratification for his transfer to Land Department of K.M.C. About 16 or 17 days prior to the registration of this case the complainant paid a sum of Rs. 300/-to said Pervaiz for its delivery to the appellant. On 15.4.1985, the appellant came to the office of complainant Iftikhar Ahmad alongwith Pervaiz, Despatch Clerk and demanded the balance of Rs. 200/-for accused Zalar Iqbal, Head Clerk (not sent up), which annoyed the complainant, but he promised to pay the agreed amount on the following day, viz, 16.4.1985. The complainant then went to D.S.P., Anti-Corruption Establishment, Karachi, and made a written complaint to him. The D.S.P. then recorded the F.I.R. and laid a trap for the appellant. A sum of Rs. 200/-being the tainted money was then given to complainant Iftikhar Ahmad in presence of Mr. Zafar Ali, A.C.M, Court No. VII (South) Karachi . At about 12.20 P.M the tainted money was passed on to appellant which was subsequently recovered from his possession. The appellant was taken into custody and such inventory was prepared on the spot. After completing the investigation and obtaining the requisite sanction the appellant was challaned. 3. The appellant pleaded not guilty when the charge was read over to him and claimed a trial. At the trial the prosecution examined complainant Iftikhar Ahmad (P.W-1), Muhammad Hussain mashir (P.W-2), Mr. Zafar Ali, Magistrate (P.W-3). and Sabir Ali Khan D.S.P. (P.W-4). 4. The appellant met the charge with a denial. His defence in his own words is as follows:- "It is a false case. Complainant had come to me. He tried to give me an envelope and told me to give the same to Pervaiz. On my refusal, he put the same on my table. In the meantime police came and arrested me and involved me in this case." 5. The appellant did not step into the witness box. He also led no defence. 6. On the assessment of evidence available on record the learned Special Judge found the appellant guilty and convicted him accordingly. 7. The. case of the prosecution mainly rests upon the evidence of Muhammad Hussain (P.W-2) who has acted as mashir, Mr. Zafar Ali, A.C.M. (P.W-3) who has supervised the raid and Sabir Ali Khan D.S.P. (P.W-4) who has conducted the raid. Complainant Iftikhar Ahmad (P.W-1) who was the aggrieved person has not supported the case and was declared hostile. A hostile witness oes not necessarily lose his credibility because of the fact that he has been permitted co be cross-examined. Merely because the witness has not fully supported the contents of his FIR. it cannot be said that his evidence is wholly unreliable. The correct position in law is that the Court can come to its own conclusion after consideration of the whole of the evidence for what it is worth. 8. The evidence, of Iftikhar Ahmad (P.W-1) when examined carefully makes it clear that the tainted money was given to appellant in an envelope which was seized by the Magistrate from his possession. Muhammad Hussain (P.W-2) who has acted as mashir has also stated so in the following words:- "It is correct that the complainant had put the tainted money in the envelope and had passed on the envelope to the accused." 9. Admittedly both Mr. Zafar Ali, A.C.M. (P.W-3) and Sabir Ali Khan .S.P. (P.W-4) had not seen the actual transaction and in the absence of any otherevidence, I have no reason to discard the evidence of complainant Iftikhar Ahmad oral or documentary: but it may be furnished by the statement of the accused himself or by the circumstances of the case. 11. In Kazi M-amuddin v. Tlie State, reported in P.L.D. 1979 Karachi 294, a learned Single Judge of this Court examined the provisions of Section 4 of the Prevention of Corruption Act, 1947, and observed as follows:- "It is true that Section 4 of the Prevention of Corruption Act, 1947 provides for presumption in favour of prosecution when the tainted money ha been passed into the hands of the accused and the burden would be upon him to prove that it was not accepted by him as illegal eraiification but this would require consideration of two important points. Firstly that whether the money in question was tainted as alleged by the prosecution and secondly what is the standard of proof required from the accused v,hen per statutory requirements presumption operates against him. On the first point, it has been argued before me that in the instant cas£ when the complainant is not supporting the prosecution allegation that the marked notes were meant to be delivered as illegal gratification and both the complainant and the appellant in the instant case ur.animously state that money was given and returned for some other purpose, which has nothing to do with the allegation of bribe, the money which -ajs passed to the appellant during the raid was not tainted at all. On th; second point, it has been argued before me that in the instant case when presumption operates against the appellant under Section 4 of the saic Act. the burden of proof which falls upon the appellant is not greater but ies-ser than the general standard of burden of proof on the prosecution which makes it imperative upon the prosecution to prove guiit of accused beyond any reasonable doubt. In this context it is further contended before me that in such a case when law raises a presumption acjir.it the accused and calls upon him to prove the contrary, it is well ^ui.d that contrary can be said to be proved if the accused succeeded in establishing that the act attributed to him is capable of interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence orally or documentary but it may be furnished by the statement of the accused or by the circumstances of the case." 12. Admittedly the tainted money had not passed in presence of Mr. Zafar AH, A.C.M. (PAV-3), and Sabir Ali Khan, D.S.P. (P.W-4) who also did not hear the conversation between complainant Iftikhar Ahmad (P.W-1) and the appellant. Mr. Zafar Ali A.C.M. (P.W-3) has admitted so in the following words:- "One masliir Muhammad Hussain and Head Constable Basheer Ahmad had gone alongwith omplainant to the room of the accused. I have not heard conversation between accused and the complainant. I had not seen complainant handing over Rs. 200/-to accused " investigation seriously undermines the ndependence of tne Magistrates & preverts their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice & it is they who normally decide & pass judgments on the acts & conduct of the police. It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case. The practice is all the more indefensible here specially when there is no separation of the executive from the judiciary. The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the police is entitled to come before an independent & impartial Magistrate who is expected to deal with the case, without the Magistrate himself being in any way a partisan or a witness to police activities. There is another danger & that is the Magistrates are put in the unenviable & embarrassing position of having to give evidence as a witness & then being disbelieved. That is not the way to secure respect for the Magistracy charged with the administration of justice. In my judgment this is a practice which is unfair to the accused & unfair to the Magistrates. It is also unfair to the police. Because charged with the high responsibility £ duty of performing a great & essential public service of the State the police cannot afford to run the risk of opprobrium, even if unbounded, that they have enlisted the Magistrate in their cause. That risk is :>>j great & involves forfeiting public respect & confidence. The lean-ed Standing Counsel for the State attempted comparison with Income-tax Officers who carry on their own investigation. But that is to compare the incomparable. One of the essential securities of a free people is that those who detect crimes shall not be those who try them. A sound A: impartial administration of criminal justice in the country demands an independent & untramelled magistracy free from even the slightest breach of police tutelage." 1~. Das Gupta J, while giving separate reasons in the above judgment observed as follows:- "I acree entirely with the observations made by my learned brother as regards the undesirability of the practice which has recently sprung up of using Magistrates of the land to work as part of the police machinery. It is a matter of great concern to this Court that Magistrates who are to administer justice allow themselves to be used as a limb of the police. As my learned brother has pointed out, it becomes very difficult, if not impossible, for a Magistrate who has worked as a part of the police machinery to bring an unbiased mind to the consideration of problems in which the police are concerned. It is equally clear that when Magistrates act in this manner the people who appear before them lose all respect in them & reasonably apprehend that such Magistrates are merely a part of the police." 18. While endorsing the above view I may observe that in such cases the Magistrates are put to an awkward position after thay are disbelieved. 19. Mr. Habib-ur-Rasheed, learned counsel for the State finding himself on the horn of dilemma, conceded and I think rightly, that the case against the appellant is doubtful. In the result the impugned judgment is set aside and the appeal is allowed. The appellant is acquitted and is discharged from his bail bond. 20. By a short order dated 31.10.1991, I had allowed the appeal. This judgment would furnish the detailed reasons. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 146 Present: QAISER AHMAD HAMIDI, J ALTAF HUSSAIN SHAMIM-Applicant versus THE STATE-Respondent Spl. Criminal Revision No. 1 of 1991, accepted on 2.12.1991. Criminal Procedure Code, 1898 (V of 1898)- —S.540-Prosecution witnesses-Re-calling for cross-examination of~Refusal to recall-Challenge to-To cross-examine a witness is not an empty formality but a valuable right and best method for ascertaining forensic truth-Applicant cannot be penalised for absence of his advocates-He fears that if witnesses against him are not cross-examined, he may be straightaway convicted-Held: Defence of applicant is likely to be prejudiced if all witnesses examined by Prosecution are not recalled for cross-examination-Application accepted. [P.148]A ,B &C PLD 1984 SC 95,1989 P Cr. LJ 1872 and PLD 1991 Karachi 351 rel. Mr. Sohail Muzaffar, Advocate for Applicant. Mr. Niaz Ahmad KJian, Advocate for D.A.G. Date of hearing: 24.11.1991. judgment This revision application filed under Section 185-F of the Customs Act, 1969, raises an interesting question with regard to recalling of prosecution witnesses examined in the absence of the advocate of applicant. 2. The applicant was prosecuted before Special Judge (Customs and Taxation) Karachi for the offence under Section 156 (1) (8) of the Customs Act, 1969. The applicant who was in custody was nitially represented by Mr. Hassan Inamullah Advocate, who after sometime stopped attending the Court. The applicant, therefore, engaged Mr. Raja Qureshi Advocate to represent him, who too stopped appearing in Court after the applicant was released on bail and as a result thereof none of the prosecution witnesses could be cross-examined at any stage. The applicant who is not conversant with the procedure of the Court was thus deprived of a valuable right of corss-examination, "the greatest legal engine" ever invented for the discovery of truth. On 5-11-1990 the applicant made an application under Section 540 Cr.P.C. before the trial Court for recalling the prosecution witnesses which came to be dismissed on 4.2.1991 with the following orden- "Heard the arguments. The case now is fixed for defence evidence and it has reached to this stage after 3h years. The record shows that full opportunity was given to accused for cross examining the prosecution witnesses and, the accused, for the reasons best known to him, did not cross examine them. Prayer for recalling and re-examining the PWs at this stage is not justified. Accordingly, the application is rejected." This order is the subject matter of the present revision application. 3. I have heard Mr. Sohail Muzaffar, learned counsel for applicant and Mr. Niaz Ahmed Khan, learned counsel for State. The latter has supported the impugned order. 4. The prayer nrade by applicant was refused by learned Special Judge on the following grounds:- (/) That the application under Section 540 Cr.P.C. was made at a belated stage when the case was fixed for defence evidence. (/;') That an opportunity to cross-examine the prosecution witnesses was provided to applicant, who failed to avail of the same. 5. The language in which section 540 Cr.P.C. is couched makes it clear that .the powers conferred by it can be exercised at any stage of the case. In Abdul Rahman vs. Tlie State, reported in PLD 1964 J 10, it was observed:- "The provisi ns of Section 540 Cr.P.C. give wide powers to the Court to examine any witness at any stage of the case as a Court-witness, and if the investigating officer appeared on the last date of the case and the Magistrate chose to examine him as a Court-witness, it cannot be said that he had committed any illegality." 1 6. This question was also considered by Muhammad Hayat Junejo, J (as he then was) in the case of Tlie State vs. Abdul Hamid and another, reported in 1970 P.Cr.LJ 384, who was pleased to observe:- "A bare reading of this section, would show that it has been expressed in the widest possible terms and does not limit the discretion of the Court in any manner whatsoe%'er. The discretionary power under this section can be invoked at any stage of enquiry or trial and any witness can be examined or a witness already examined can be recalled for further examination, if his evidence appeared to be essential to the just decision of the case". 7. The opportunity to cross examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and a best method for ascertaining forensic truth. The applicant who is not a trained person in legal procedure was not expected to cross-examine the prosecution witnesses in the absence of his advocate. It may be noted that the applicant cannot be penalised for the absence of his advocates who had chosen to remain absent on the dates when the case proceeded against him. The applicant fears and his fears are not illfounded that if the witnesses against him are not subjected to crossexamination, he may be straightaway convicted for putting up no defence. 8. As observed by the Supreme Court in the case of Muhammad Azam vs. Muhammad Iqbal and others, reported in PLD 1984 S.C. 95, Section 540 Cr.P.C. is divided in two parts: one where it is only discretionary for the Court to summon a court-witness suomoto or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to ihe Court to be essential to the just decision of the case. This view as followed by this Court in Sajjad alias Shahzad and others vs. The State, reported in 1989 P.Cr.LJ 1872, and Malik Muhammad Anwar vs. Vie State, reported in PLD 1991 Karachi 351. 9. The defence of the applicant is likely to be prejudiced if all the witnesses examined by the prosecution are not recalled for the purpose of cross- examination. The application made by applicant under Section 540 Cr.P.C. is, therefore, allowed and the tnal Court is directed to recall all the prosecution witnesses for the purpose of cross-examination. 10. In the result the impugned order is set aside and the revision application is accepted. (MBC) (Approved for reporting) Application accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 149 Present: qaiser ahmad hamidi, J Moulvi SHER MUHAMMAD-Applicant versus THE STATE--Respondent Criminal Revision Application No. 69 of 1991, accepted on 21.11.1991. Criminal Procedure Code, 1898 (V of 1898)- -—Ss. 517 & 520-Licensed gun of applicant-Recovery from applicant's son-­ Acquittal of applicant's son but confiscation of gun ordered-Refusal to return gun to applicant-Challenge to~Record shows that applicant's son, from whose possession, gun was allegedly recovered, was not found guilty under Section 13-D of Arms Ordinance, 1965-Court to which application lies under Section 520 Cr.P.C, can modify, annul or alter such an order-No period for restoration of property under Section 517 Cr.PC, is prescribed—Application accepted and trial court directed to deliver gun and cartridges to applicant. [Pp.l50&151]A,B,C,D&E ' PLJ 1990 Cr.C (Kar) 327, PLD 1981 Lahore 81, PLD 1982 Karachi 469,1983 P Cr LJ 1976. 1984 P Cr LJ 1571. 1990 P. Cr LJ 731, AIR 1936 Calcutta 21, AIR 1942 Sindh 1, PLD 1950 Lahore 97, PLD 1958 Lahore 212, PLD 1966 Lahore 918, PLD 1975 Lahore 45, AIR 1924 Lahore 75 and PLD 1972 Kar. 548 rel. Mr. Hussain Biix Solangi, Advocate for Applicant. Mr. S.Z^4. Qureshi, Advocate for A.G. Date of hearing: 5.11.1991. judgment Almost all the material facts in this case are either admitted or undisputed and may be briefly summed up. 2. On 18.6.1984 one Budhal lodged FIR against accused Habibullah, Ashraf, Azizullah, Amanullah, Shabbir and applicant Moulvi Sher Muhammad at K.N.Shah P.S. After usual investigation all the above accused except applicant Moulvi Sher Muhammad were sent up to stand trial for the offence under Sections 148-307/149 PPC. The name of applicant Moulvi Sher Muhammad was, however, dropped. A separate case under Section 13-D of the Arms Ordinance, 1965, was also registered against accused Habibullah son of applicant Moulvi Sher Muhammad who was found in possession of a gun for which he had no valid licence, which in fact belonged to applicant Moulvi Sher Muhammad who had a valid licence for the same. The police challaned this case also alongwith the main case. The trial commenced before II-Additional Sessions Judge, Dadu who amalgamated both the cases and tried them as one. On the assessment of evidence available on record the learned Additional Sessions Judge acquitted all the accused persons vide judgment dated 15.3.1989. He, however, confiscated the licensed gun belonging to applicant Moulvi Sher Muhammad which was allegedly recovered from the possession of his son Habibullah, with the following order passed under Section 517, Cr.P.C: PROPERTY ORDER. "Property, viz, Double barrel gun, three live cartridges and two live bullets are confiscated to the State and the same be sent to District Armoury for disposal according to law. 73 empty cartridges, 22 empty bullets and two hatchets be destroyed after the expiry of appeal period." 3. Applicant Moulvi Sher Muhammad who had a valid licence for the gun and cartridges then filed an application under Section 517, Cr.P.C. before the II- Additional Sessions Judge, Dadu, for the return of the above arm and ammunition which was dismissed vide order dated 18.8.1991. It is in these circumstances that the applicant has filed this criminal revision under Section 439, read with Section 520, Cr.P.C. 4. I have heard Mr. Hussain Bux Solangi, learned counsel for applicant and Mr.S.ZA. Qureshi, learned counsel for State. 5. The perusal of the judgment dated 15.3.1989 passed by H-Additional Sessions Judge, Dadu, by which accused Habibullah (son of applicant) and 4 others were acquitted makes it clear that accused Habibullah from whose possession this gun was allegedly recovered was not found guilty for the offence under Section 13-D of the Arms Ordinance, 1965, meaning thereby that he was not found in possession of this gun and cartridges. One of the points for determination framed by learned Additional Sessions Judge was about this gun which was answered in negative. In such a situation the gun and cartridges should have been returned to the licence holder, viz, the applicant. The cases of Imtiaz Hussain v. Tlie State, reported in PLD 1981 Lahore 81, Abdul Ghafoor v. The State, reported in PLD 1982 Karachi 469, Ahmad v. The State, reported in 1983 P.Cr.LJ. 1976, Bachal v. Tlie State, reported in 1984 P.Cr.LJ. 1571, Matwalli alias Mutalli v. Tlie State, reported in 1990 P.Cr.LJ. 731, and Imdad Ali v. The State, reported in PLJ 1990 Cr.C (Kar) 327, are clear on this point. 6. Section 520, Cr.P.C., which is attracted to this case provides as follows: - "520. Stay of order under Section 517, 518 or 519. Any Court of appeal, confirmation, reference or revision may direct any order under Section 517, Section 518 or Section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just." It will be seen that where the case in which an order under Section 517, Cr.P.C. was passed is itself pending before a Court of appeal or revision, that Court can modify, annul or alter such an order under Section 520, Cr.P.C. But where no such case is pending (like the one under consideration) an application lies under this Section to the Court to which appeals, or revisions ordinarily lie from the Court which passed the order under Section 517, Cr.P.C. Several rulings can be cited in support of this view commencing from the year 1936 down to the year 1975. The first of these cases is a decision of a Division Bench in Banur-ud-din Biswas . Gaiii Mia Sawdagar and another, reported in AIR 1936 Calcutta 21, followed by Mst. Fatima d/o Rajo Mirjat v. Sain Baksh s/o Rajo Mirjat, reported in AIR 1942 Sbd 1, Sardara v. Boota, reported in PLD 1950 Lahore 97, Ghulam Akbar . The State and another, reported hi PLD 1958 Lahore 212, AhmadBakhsh v. The State and anotlier, reported in PLD 1966 Lahore 918, and Jalal Khan alias Jalley Klian v. Tlie State and another, reported in PLD 1975 Lahore 45. 7. Again no period of limitation is prescribed for an application for restoration of property under Section 517, Cr.P.C. If any authority is needed the cases of Kanshi Ram v. Tlie Crown, reported in AIR 1924 Lahore 75, and Jalal KJian alias Jalley KJian v. Tlie State and another, reported in PLD 1975 Lahore 45, may be cited with advantage. 8. Mr. S.Z.A. Qureshi, learned counsel for the State has strenuously contended that the order by which the gun and cartridges were confiscated was passed as far back as 15.3.1989. and the applicant ought to have approached this Court within a reasonable period. The answer to this contention is furnished by Sardar Muhammad Iqbal J, (as he then was) in the case of Ahmed Bakhsh v. The State and another, reported in PLD 1966 Lahore 918, in the following words:- "The proceeding under Section 520, Cr.P.C., is not an appeal or in the nature of an appeal. This is a proceeding of a special nature. There is no period of limitation prescribed for making this application." 8. This view was reitereated by Agha Ali Hyder J. (as he then was) in the case of Tlie State v. Darshan Lai and another reported in PLD 1972 Karachi 548, wherein it was made clear that no period of limitation is presecribed for an application under Section 520, Cr.P.C. 9. Having regard to the above legal position, I would set aside the order dated 15.3.1989 passed by II-Additional Sessions Judge, Dadu under Section 517, Cr.P.C., and allow the revision application. The District Magistrate, Dadu is directed to deliver the gun and cartridges to applicant Moulvi Sher Muhammad after being satisfied about the validity of licence issued to him, who will be allowed a reasonable time for getting the licence renewed, if the same has expired. (MBC) (Approved for reporting) Application accepted.

PLJ 1992 Cr PLJ 1992 Cr.C( Karachi ) 151 - Present: QAISER AHMED HAMIDI, J ABDUL AZIZ alias BABOO-Applicant versus THE STATE-Respondent Criminal Bail Application No.999 of 1991, dismissed on 24.11.1991. Criminal Procedure Code, 1898 (V of 1898) ....S. 497(1) Third proviso (b) read with Constitution of Pakistan, 1973, Art.l2~ Offence under Section 365-A of PPC--Bail-Prayer for--Expiry of statutory period—Ground of-Applicant is in continuous detention ince 28.7.1990 and case has not yet concluded-Applicant was not instrumental in causing delay- Criminal Law (Amendment) Ordinance, 1988 came into force on 13.10.1988 and it provided death penalty for ffence under Section 365-A of PPC-This Ordinance was converted into Act by Criminal Law (Amendment) Act, 1991 enforced on 28.3.1991-Offence in this case was committed on 23.6.1990 when Criminal aw (Amendment) Act. 1989 occupied field which provided punishment of life imprisonment-Article 12 of Constitution provides protection against retrospective punishment—Applicant cannot be awarded death enalty even if found guilty of offence under Section 365-A of PPC-- Heid: Case of applicant falls under clause(b) of third proviso to Section 497(1) but as he has not completed statutory period of two years, his pplication for bail is premature. [Pp.l53,154&155]A T B,C,D & E PLD 1962 Lahore 662, PLD 1969 SC 187,1990 PCrLJ 317 and 1990 MLD 293 ref. Mr. Rochi Ram, Advocate for Applicant. Mr. Shoukat H. Zubedi, AAG for State. Date of hearing: 24.11.1991. order Applicant Abdul Aziz alias Baboo who is detained in Crime No.42 of 1990, Khipro P.S, under Section 365-A P.P.C, had applied for bail before Sessions Judge, Sanghar on merits, but his prayer was refused vide order dated 17.3.1991. The applicant then applied for bail before this Court in Cr.BA. No.372 of 1991, but without success and his application was dismissed on 23.4.1991 with the following order:— "It is a case of abduction for ransom. Complainant Sher Muhammad, the alleged victim had picked up the present applicant in an identification test held without any loss of time. The case of co-accused Haji Muhammad Hassan, who has been allowed bail, is distinguishable as he could not be identified by complainant Sher Muhammad. Thus there was reasonable ground to believe that the applicant is guilty for the offence with which he is charged. The trial of the applicant and others has already commenced and it will be appreciated if it is concluded at an early date. 2. The applicant who is in continuous detention since 28.7.1990 repeated his bail application before Sessions Judge, Sanghar, on the ground of statutory delay, but that too was dismissed on 9.10.1991, as in the opinion of the learned Sessions Judge he is hardened, dangerous and desperate criminal. The applicant has, therefore, approached this Court with the same prayer on the same ground. 3. Admittedly the applicant is in continuous detention since 18.7.1990. The case has not been concluded upto this time. There is also nothing on record to even faintly suggest that the applicant was nstrumental in causing this delay. The third proviso to sub-section (1) of Section 497, Cr.P.C., which was added by the Code of Criminal Procedure (Second Amendment) Ordinance, 1979, has provided as follows:-- Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail- (a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for shuch offence has not concluded; Or (b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded." The question for consideration, therefore, is whether the offence with which the applicant is charged is punishable with death or not. This question is again not free from difficulty. Section 365-A PPC was added by the Criminal Law (Amendment) Ordinance, 1988 (XVIII of 1988), providing death penalty for this offence. This Ordinance came into force on 13th October, 1988. This section was re-enacted by the Criminal Law (Amendment) Ordinance, 1989 (IX of 1989), promulgated on 3.9.1989, in the following words:- "365-A. Kidnapping or abducting for extorting property, valuable security, etc. Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with imprisonment for life and shall also be liable to forfeiture of property." 4. The Criminal Law (Amendment) Act, 1989 (III of 1990) which was published in Gazette of Pakistan Extraordinary, Part I, on 8.1.1990, replaced the above Ordinance, which maintained the same punishment, viz, imprisonment for life for the offence under Section 365-A PPC. By the Criminal Law (Fourth Amendment) Ordinance, 1990, (XIV of 1990), which came into force on 10.12.1990, the following amendment was made in Section 365-A PPC:-- "In the Pakistan Penal Code (Act XLV of 1860), in Section 365-A after the words "punished with" the words "death or" shall be interested." 5. The above Ordinance which prescribed death penalty for an offence under Section 365-A PPC was converted into an Act by Criminal Law (Amendment) Act, 1991 (II of 1991), which was enforced on 28.3.1991. It will, therefore, be seen that the punishment provided for an offence under Section 365- A PPC is now death or imprisonment for life. The offence under Section 365-A PPC was, however, committed on 23.6.1990 when the Criminal Law (Amendment) Act, 1989 (III of 1990) occupied the field which provided punishment of imprisonment for life for this offence. Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, provides protection against retrospective punishment in the following words:-- (1) No law shall authorize the punishment of a person- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2) Nothing is clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence." 6. I am indebted to Mr. Shoukat H.Zubedi, learned AAG for placing before me three cases from which some guidance, I think, may be obtained. The first case is the one reported as Ghazi and others V. Tlie State and another (PLD 1962 Lahore 662), wherein it was held that a vested right on the date of commencement of Us or proceeding is governed by law prevailing on such date and not by law prevailing on the date of decision of such Us or proceeding. In the second case of Adnan Afzal v. Capt. Sher Afzal, reported on PLD 1969 S.C.187, it was observed that the matter is retrospective if it is merely procedural but such matter could not operate retrospectively if it touches a right in existence at thi 1 time of passing of legislation. In the third case of State Bank of Pakistan through ihe Banking Office v. Messrs Raza Enteiprises(Regd) and 2 others, reported in 1990 P.Cr.LJ.317, which is my own judgment following observations were made:-- "Every legislature has the power of enacting laws both prospective as well as retrospective, but whenever a retrospective law is enacted, the law states so. But where its powers are subject to constitutional restrictions, it must act within those restrictions. Article 12 of he Constitution of Islamic Republic of Pakistan, 1973, contains such restrictions, viz, the legislator cannot punish an act that was not an offence when it was committed. Therefore, the 'explanation' added by the Banking Companies (Amendment) Ordinance, 1988, which made the act of accused punishable, which was not punishable when committed, being in violation of constitutional provisions referred to above, cannot be given retrospective effect." 7. Thus, from whatever point of view the matter may be looked at, it is clear that the applicant or any other accused with him cannot be awarded death penalty, even if they are found guilty for the offence under Section 365-A PPC. There is, however, a distinction between "prescription of punishment" and "infliction of punishment" and my own order in the case of State ank of Pakistan v. Muhammad Farooq and 3 others, reported in 1990 M.L.D.293, is clear on this subject. At page 300 it was observed:- "The provisions regarding bail are essentially part of procedure and as such it must be regulated by the law under which a particular trial is held. The offence under Section 27-A, read with Section 83(1-D) of the Banking Companies Ordinance, 1962, which was initially punishable with six months imprisonment, has been made punishable with imprisonment upto ten years by the Banking Companies (Amendment) Ordinance, 1988, In view of the embargo contained in Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, the enhanced punishment cannot be awarded in respect of offence committed before the amendment, but there is certainly a distinction between "prescription of punishment" and "infliction of punishment." Thus, for the purposes of bail the offence under Section 83(1-D) of the Banking Companies Ordinance, 1962, shall be deemed to be non-bailable from the very beginning." 8. Having regard to the above legal position, I am satisfied that the car-e of the applicant falls under clause(b) of third proviso to sub-section (1) of Section 497 Cr.P.C. and since he has not completed a period of two years in continuous detention, the application for bail made by him on the ground of statutory delay is premature and the same is accordingly dismissed. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 155 (DB) 'Present: SH. MUHAMMAD ZUBAIRAND MUHAMMAD AMIR MALIK, JJ BAKHTIAR AHMAD-Appellant versus THE STATE-Respondent Criminal Appeal No. 404 of 1990, (also 560 and 634 of 1990) accepted on 24.11.1991. Arms Ordinance, 1965 (XX of 1965)-- —S.13 read with Suppression of Terrorist Activities (Special Courts) Act, 1975, Schedule-Automatic Mauser etc.-Recovery of-Conviction for~Challenge to - -Whether offence fell under Schedule to Act, 975-Question of—Words "such as klashinkov, a G-III rifle or any other type of assault rifle" indicate that intention of legislature was not to bring all automatic or semi-automatic weapons under purview of chedule to Act, 1975-Offences under Arms Ordinance in respect of rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over, or ammunition which can be fired from such rifle, musket, pistol or revolver, are not scheduled offences under Act of 1975-Mauser is not a weapon but is name of manufacturer of pistols and revolvers-Held: Trials before Special Courts being omm-non-judice, appeals must succeed. [Pp.l61&162]A,B&C Mr. M.Iqbal Bhatii.Ch. Muhammad Ishaq Khokar, and Malik Abdul Wahid, Advocates for Appellants. Mr. Irfan Qadir. A A.G. for State. Date of hearing: 24.11.1991. judgment Muhammad Amir Malik, J.--Najam-ul-Hassan, Bakhtiar Ahmad and Abdul Rehman were convicted under Section 13 of the Arms Ordinance 1965 by Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act 1975, and sentenced to various terms of imprisonment. They have appealed against their conviction and sentence. Since a common question of law has been raised, it is proposed to dispose of the appeals by a single judgment. 2. According to the prosecution case Najam-ul-Hassan, Bakhtiar Ahmad and Abdul Rehman had respectively led to the recovery/were found in possession of .32 bore automatic Mauser, .30 bore (magzine) Mauser and .30 bore automatic Mauser. 3. Learned counsel for the appellants contended that the weapons/arms recovered from the appellants did not fall under paragraph (c) or (cc) of the Schedule to the Act of 1975. Thus, according to them, the Courts constituted under the Act were coram-non-judice. Contrary view was convassed by the learned Addl. Advocate General. 4. To appreciate the contentions raised, broad features and provisions of the Pakistan Arms Ordinance 1965 need be reviewed. 5. West Pakistan Arms Ordinance 1965 (XX of 1965) was promulgated by the Governor of West Pakistan in exercise of powers conferred on him under Article 79 of the Constitution of 1962, to replace the Arms Act 1878 in the Province of West Pakistan. Arms Act 1878 was a Central Act and adopted in Pakistan as such after independence. The Ordinance of 1965 being a Provincial law was applicable to the Province of West Pakistan except the Tribal Areas. However, it was enacted as a Central Statute vide West Pakistan Arms (Amendment) Act 1974 (Act No. XXXVIII of 1974). Section 3(1) of the Ordinance of 1965 in Clause (b) defines amis as under:-- (b) "arms" includes ......... (i) cannon:- (ii) fire-arms of all types, such as light and heavy automatic and semi­ automatic weapons, rifles, carbines, muskets, shotguns (whether single or double-barrelled), revolvers, pistols and appliances the object of which is the silencing of fire-arms:— (iv) ............ And Cannon is defined as:— (c) "cannon" includes — — (i) all types of artillery, mortars, machine and sub-machine guns:-- (iv) revolvers or pistols over .46 inches bore:— (v) ........... (vi) projectors, guided missiles, and dischargers for grenades, rockets, bombs and gas or smoke containers:— (vii) .......... (viii) .......... 6. Sections 4, 5, 8, 9, 10, and 11 relate to the offences under the Ordinance while punishment therefor is catered in Section 13. No person is to sell or keep, offer or expose for sale any arms, ammunition etc. or undetake the repairs thereof except under a licence and in the manner and to the extent permitted thereby (Section 4). No one can transport any arms or ammunition over the whole or any part of Pakistan or a rovince except under a licence (Section 5). No person is to go armed except under a licence and to the extent and in the manner permitted thereunder (Section 8). Whoever has in his possession or under his control any arms or ammunition except under a licence is liable under Section 9. 7. Section 13 reads:-- 13. Penalty for breach of Sections 4, 5, 8 to 11:- Whoever commits any of the following offences namely:-- (a) ........... (b) ........... (c) ........... (d) ........ -. (e) ........... (0 ........... (g) ........... (h) ........... (i) ........... shall be punished with imprisonment for a term which may extend to seven years or with fine or with both: Provided that the punishment for an offence committed in respect of any (a) cannon, grenade, bomb or rocket: or (b) light or heavy automatic weapon, rifle of .303 bore or over, musket .410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than three years. 8. The Arms Ordinance 1965 was amended vide Pakistan Arms (Amendment) Ordinance 1988 (Ordinance No. XVI of 1988). Amended Section 13 came to have the following form:— "13. Penalty for breach of Sections 4, 5, 8 to 11: Subject to the provisions of Section 13-A and 13-B, whoever commits any of the following offences, namely:— (a) ........... (b) ........... (c) .. ......... (e) (g) (h) (i) shall be punished with imprisonment for a term which may extend to seven years or with fine, or with both:Provided that the punishment for an offence committed in respect of any rifle of .303 bore or over musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such musket, pistol or revolver,shall be imprisonment for a term which is not less than three years". 9. Sections 13-A and 13-B were also added by the Amending Ordinance and for facility of reference are reproduced as under:- "13-A. Penalty for breach of Section 4 in respect of cannon or automatic weapon, etc. — Whoever sells, or keeps, offers or exposes for sale, a cannon, grenade, bomb, rocket or light or heavy automatic or semi­ automatic weapon, such as a klashinkov, a G-III rifle or any ther type of assault rifle, or ammunition which can be fired from such weapon, in contravention of the provisions of section 4, shall be punishable with imprisonment for a term which may extend to fourteen years and shall not be less than seven years, fine and forfeiture of property." "13-B. Penalty for breach of Section 8 or Section 9 in respect of cannon or automatic weapon, etc. Whoever, (a) goes armed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon, such as a klashinkov, a G-III rifle or any other t\pe of assault rifle, in contravention of the provisions of Section 8; or (b) has in his possession or under his control any of the arms or weapons referred to in clause(a), or ammunition which can be fired from such weapon, in contravention of Section 9; shall be punishable with imprisonment for a term which may extend to ten years and shall not be less than three years and fine." 10. The offences under the Arms Ordinance being punishable with imprisonment extending up to seven years at the most were triable by Courts of ordinary Magistrate under the Code of Criminal Procedure 1898. To check the crimes relating to arms and the terrorist activities in the country, the Suppression of Terrorist Activities (Special Courts) Act 1975 was brought on the Statute Book. The offences with respect to particular types of weapons were made exclusively triable by the Courts constituted under the Act. Section 4 of the Act provided that "Notwithstanding anything contained in the Code (Code f Criminal Procedure) the scheduled offences shall be triable exclusively by a Special Court ." Paragraph (c) of the Schedule to the original Act is to the following effect:-- (c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following Sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely, Sections 8, 9, and 10, if committed in respect of a cannon, grenade, bomb or rocket." 11. Suppression of Terrorist Activities (Special Courts) Act 1975 was amended by Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance 1988 (Ordinance No. XVII of 1988) and Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance 1988 (Ordinance No. XXV of 1988). The scope of paragraph (c) of the Schedule to the Act was enlarged under Ordinance No. XVII. With the enlargement paragraph (c) would read as under:-- "(c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following Sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely, Sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon, such as a klashinkov, a G-Ill rifle or any other type of assault rifle". 12. Ordinance No. XVII of 1988 added paragraph (cc) to the Schedule. It is to the effect:- (cc) Any offence punishable under Section 13-A or Section 13-B of the Pakistan Arms Ordinance 1965 (W.P. Ordinance No. XX of 1965)". 13. The two Ordinances, amending the Suppression of Terrorist Activities (Special Courts) Act 1975, of 1988 seem not to have been laid before the appropriate Legislature and so stand repealed after the period of four months as provided in Article 89 of the Constitution of the Islamic Republic of Pakistan 1973. However, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance 1990 (Ordinance No. I of 1990) was again promulgated and the position of the Schedule to the Act, amended vide Ordinances of 1988 wa carried forward. This Ordinance has now been replaced by the Suppression of Terrorist Activities (Special Courts) (Amendment) Act 1990 (Act No. V of 1990) and keeps the amendment introduced under Ordinance No. 1 of 1990 intact. 14. From the analysis and details of the Arms Ordinance 1965 and the Suppression of Terrorist Activities (Special Courts) Act, 1975 with all the amendments vide the amending Ordinances etc, as discussed above, we can well appreciate the categories of arms for which different forums for trial have been provided with different sentences, while previously all the offences under the Arms Ordinance with respect to all types of weapon as defined in Section 3 of the Ordinance of 1965 were made punishable under Section 13 ibid and were triable by the Courts of Magistrate under the Code of Criminal Procedure. The first category is of:-- "any rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over or ammunition which can be fired from such musket, pistol or revolver," for which imprisonment for a term upto 7 years and not less than three years is provided under Section 13 of the Arms Ordinance. And the second category is of: "a cannon, grenade bomb, rocket or light or heavy automatic or semi-automatic weapons such as klashinkov, a G-III rifle or any other type of assualt rifle or ammunition which can be fired from such weapon (vide Section 13-A)." For the offence under Section 4 with respect to this latter category of Arms the punishment prescribed is "imprisonment for a term which may extand to 14 years and shall not be less than seven years, fine and forfieture of property (Section 13.A) and with respect to offences under Sections 8 and 9, the penalty is imprisonment for a term which may extend to 10 years but not less than 3 years and fine (Section 13.B). 15. Learned Addl. Advocate General drew the attention of the Court to the fact that the words "automatic or semi-automatic weapon" in Section 13-A were followed by the words "such as klashinkov, a G-III rifle or any other type of assault rifle " to build up the argument that the words "such as" were illustrative and not exhaustive and referred to any type of "automatic or semi-automatic" weapon. The Mauser, according to him, are automatic or semi-automatic pistol/or revolver and thus would also be covered under Section 13-A. The offences with respect to these would, therefore, fall in paragraph (c) to the Schedule of Act of 1975 and thus exclusively triable by the Courts constituted under the Act. Of course words "such as" are illustrative but while visualizing other weapons/arms of the category of klashinkov, a G-III rifle or any other type of assault rifle, the principle of ejusdem generis is to be kept in view. A weapon which is not automatic or semi-automatic and not a rifle of the kind of klashinkov, a G-III rifle or other assault ifle cannot be considered to be covered by Section 13-A. Had the intention of the Legislature been to bring all automatic or semi-automatic weapons under its purview then its portion "Whoever sells or keeps, offers or exposes for sale a cannon, grenade, bomb, rocket or light or heavy automatic or semi-autmatic weapon," would have sufficed with no need to continue with the words "such as klashinkov, a G-III rifle or any other type of assault rifle". And finally 'a revolver or a pistol' could well have also been added in the Section to make it all comprehensive. 16. Wisdom in categorising the weapons, as discussed above, is even otherwise understandable. For offences with respect to weapons of first category the punishment is upto seven years and not less than three years (which can be awarded by a Magistrate exercising the powers under Section 30 of the Code), while the grave offence (under Section 4) has been made punishable with imprisonment upto 14 years and not less than seven years with fine and forfeiture of property; and for somewhat milder offences (under Sections 8 and 9) the punishment is imprisonment upto 10 years and not less than three years and fine. The latter type of offences are covered by paragraph (c) and (cc) to the Schedule of the Act of 1975 and thus triable by the courts constituted under the Act, to be presided over by a person who is or has been a Judge of the High Court or is qualified to be appointed as such. 17. The upshot is that the offences under the Arms Ordinance in respect of rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such rifle, musket, pistol or revolver are not scheduled offences under the Act (of 1975). We may also point out and observe that Mauser as such is not a weapon but is the name of the manufacturer (from Germany ) of pistols and revolvers. The trials of the appellants before the learned Judge Special Courts being coram-non-judice the appeals must succeed. The conviction and sentence passed upon the appelants are, therefore, set aside. They, may be released forthwith, if not required to be detained in any other case. The State would be well within its rights to submit challans in the competent Courts (of the Magistrates) for their trials in accordance with law. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 162 Present: MUHAMMAD AMIR MALIK, J SARA PALMER-Petitioner versus MUHAMMAD ASLAM-Respondent Criminal Misc. No. 788-H of 1991, decided on 12.1.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.491-Minor children in custody of father-Recovery of~Prayer for~ Whether custody of father is illegal—Question of—Petitioner (mother) is resident and citizen of England-She has obtained an order of custody from court over there-In disobedience and breach of same, in suspicious circumstances, respondent (father), a Muslim having dual citizeniship of Pakistan and England, shifted children to Pakistan-Held: Respondent being father, his custody cannot be called illegal under Pakistan law-Held further: Even if removal of children from England was improper, welfare of minors is to be paramount consideration which is to be decided by Guardian Court. [Pp.l67&168]A PLJ 1981 Peshawar 73 rel. Mrs. Asma Jillani, Advocate for Petitioner. Mr. AshtarAusafAli, Adovacate for Respondent. Date of hearing: 12.1.1992. order This is a Habeas Corpus petiton under Section 491 Cr.P.C. by Sara Palmer against her former husband Muhammad Aslam for the recovery and return of their three children to her custody. It was filed on 17.11.1991. 2. Sara Palmer petitioner (previously Sara Akhtar/Shanti Behan Narshi) is a British citizen of Kenyian origion and was married in England to the respondent, a Pakistani having the dual ationality of England as well, having settled in England, on 20.3.1970 under the Marriage Act of 1949 (Civil Marriage) after convertion to Islam, when she was 18 years old and the respondent 22 years. The couple gave birth to five children—three sons and two daughters: - NAME BORN ON (1) ShehbazAkhtar 16.8.1971. (2) GulraizAkhtar/GulnazAkhtarGeeta 7.11.1972 (3) Muhammad Afzal Aslam 25.9.1975 (4) Muhammad Abbas Aslam 3.1.1980 (5) Saleena Aslam 6.8.1982 -,, 3. All the children were born in England . According to the petitioner they are British citizens, while in reply filed by the respondent they are stated to be Pakistani citizens. They seem to have dual Nationality. The former two are now admittedly more than 18 years old and so major. They are in England and are living with their mother, the petitioner. It is only the latter three namely, Muhammad Afzal Aslam, Muhammad Abbas Aslam and Saleena A lam who are the bone of contention between the parents, in the present petition. 4. When the matrimonial life entered its autumn, the petitioner moved the Country Court of Cambridge, England, in divorce Registry on 1.8.1983. The marriage was dissolved eX-parte. It was also ordered on 1.12.1983 by the Court that Shehbaz Akhtar Aslam who alone was then living with the respondent (in England) when the spouses separated, be handed over to the custody and control of the petitioner forthwith. After the service of the order upon the respondent he was provided access to the children with the further direction that the five children be not removed from England and Wales without the eave of the Court. High Court of Justice in Family Division was also moved by the petitioner and on 22.2.1990. Muhammad Afzal Aslam, Muhammad Abbas Aslam and Saleena Aslam were taken as wards of he Hon'ble Court till their minority or until further orders. They were ordered to return to the jurisdiction of England and Wales forthwith and thereafter not to be removed without the leave of the Court. The Court also desired that the General Constable of Cambridge-Shire Constablary to provide the peitioner's solicitor the particulars of his criminal convictions. Force Data Production Officer provided the information that on 3.12.1970, the respondent had been sentenced to three years imprisonment by Lamcarter Assizes, on 14.1.1975, fined £50/-or six months by Leads Crown Court for threatening behaviour and on 18.10.1989 fined £40/-by Bolton Magistrate's Court for disorderly behaviour. In the written reply the respondent has explained that he was convicted to three years imprisonment on account of a quarrel with one Mr. Bhalli, a Hindu, who was deadly against him and kept pursuading the petitioner to give up Islam and return to her home. He claimed that he was released from imprisonment after one year. He further added that petitioner's fellow-country men so teased him that there were quarrels resulting in fine to both the parties. He was eventually forced to leave England on account of communal street roits. 5. The respondent returned to Pakistan in 1984. He visited England in 1989 and on return brought the three children to Pakistan on 30.12.1989 in breach and disobedience of the order of the Courts in England. The petitioner mother visited Pakistan in June 1990. Her plea in the petition is that her companion was mal­ treated and she herself failed to get the custody of the children and rather on account of the behaviour of the respondent had to flee from Pakistan. On the other hand the respondent's reply is that she came over to Pakistan in June 1990, remained with the children, even visited Murree with them. The photographs filed and the correspondance was clear proof of the fact that his behaviour with her was normal. He did not stand in her way to see, meet and roam about with the children (in Pakistan). 6. The factual aspects of the case have been detailed above. Learned counsel for the petitioner contended that the children were living with the mother in whose custody they had been given by the Courts in England, their removal from England to Pakistan was by deceitful and fraudulent means by the respondent, the removal being in breach and disobedience of the orders of the Courts in England, they were in illegal and improper custody, so the Court under Section 491 Cr.P.C. may grant the custody to her. On the other hand learned counsel for the respondent asserted that Section s 13 and 14 C.P.C. had no application in the circumstances of the matter, the orders of the Courts in England could not be enforced in Pakistan rather the operation of the Code was excluded by the provisions of Section 17 of the West Pakistan Family Courts Act, the children were living with the father and so his custody and control could not be called illegal or improper, the discretionary relief under Section 491 Cr.P.C. may not be granted and rather the parties be directed to avail the jurisdiction of the Guardian Court under the Guardian and Wards Act. During arguments it was also pointed out by him that actually a petition under the said Act had been filed in the competent Court at Gujrat. Both the learned counsel very ably put forward their points of view and referred to precedents from the superior ourts of our own country in addition to Ordinance of 1965 were made punishable under Section 13 ibid and were triable by the Courts of Magistrate under the Code of Criminal Procedure. The first category is of:- "any rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over or ammunition which can be fired from such musket, pistol or revolver," for which imprisonment for a term upto 7 years and not less than three years is provided under Section 13 of the Arms Ordinance. And the second category is of: "a cannon, grenade bomb, rocket or light or heavy automatic or semi-automatic weapons such as klashinkov, a G-III rifle or any other type of assualt rifle or ammunition which can be fired from such weapon (vide Section 13-A)." For the offence under Section 4 with respect to this latter category of Arms the punishment prescribed is "imprisonment for a term which may extand to 14 years and shall not be less than seven years, fine and forfieture of property" (Section 13.A) and with respect to offences under Sections 8 and 9, the penalty is imprisonment for a term which may extend to 10 years but not less than 3 years and fine (Section 13.B). 15. Learned Addl. Advocate General drew the attention of the Court to the fact that the words "automatic or semi-automatic weapon" in Section 13-A were followed by the words "such as klashinkov, a G-III rifle or any other type of assault rifle " to build up the argument that the words "such as" were illustrative and not exhaustive and referred to any type of "automatic or semi-automatic" weapon. The Mauser, according to him, are automatic or semi-automatic pistol/or revolver and thus would also be covered under Section 13-A. The offences with respect to these would, therefore, fall in paragraph (c) to the Schedule f Act of 1975 and thus exclusively triable by the Courts constituted under the Act. Of course words "such as" are illustrative but while visualizing other weapons/arms of the category of klashinkov, a G-III rifle or any other type of assault rifle, the principle of ejusdem generis is to be kept in view. A weapon which is not automatic or semi-automatic and not a rifle of the kind of klashinkov, a G-III rifle or other assault rifle cannot be considered to be covered by Section 13-A. Had the intention of the Legislature been to bring all automatic or semi-automatic weapons under its purview then its portion "Whoever sells or keeps, offers or exposes for sale a cannon, grenade, bomb, rocket or light or heavy automatic or semi-autmatic weapon," would have sufficed with no need to continue with the words "such as klashinkov, a G-III rifle or any other type of assault rifle". And finally 'a revolver or a pistol' could well have also been added in the Section to make it all comprehensive. 16. Wisdom in categorising the weapons, as discussed above, is even otherwise understandable. For offences with respect to weapons of first category the punishment is upto seven years and not less than three years (which can be awarded by a Magistrate exercising the powers under Section 30 of the Code), while the grave offence (under Section 4) has been made punishable with mprisonment upto 14 years and not less than seven years with fine and forfeiture of property; and for somewhat milder offences (under Sections 8 and 9) the punishment is imprisonment upto 10 years and not less than three years and fine. The latter type of offences are covered by paragraph (c) and (cc) to the Schedule of the Act of 1975 and thus triable by the courts constituted under the Act, to be presided over by a person who is or has been a Judge of the High Court or is qualified to be appointed as such. 17. The upshot is that the offences under the Arms Ordinance in respect of rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such rifle, musket, pistol or revolver are not scheduled offences under the Act (of 1975). We may also point out and observe that Mauser as such is not a weapon but is the name of the manufacturer (from Germany) of pistols and revolvers. The trials of the appellants before the learned Judge Special Courts being coram-non-judice the appeals must succeed. The conviction and sentence passed upon the appelants are, therefore, set aside. They, may be released forthwith, if not required to be detained in any other case. The State would be well within its rights to submit challans in the competent Courts (of the Magistrates) for their trials in accordance with law. (MBC) (Approved for reporting) Appeals accepted

PLJ 1992 Cr PLJ 1992 Cr.C( Karachi ) 168 Present: QAISER AHMAD HAMIDI, J Rana MASOOD AHMAD-Applicant versus THE STATE-Respondent Criminal Revision No.52 of 1991, accepted on 23.2.1992. Criminal Procedure Code, 1898 (V of 1898)-- —-S.497(5)--Bail granted in an offence under Section 307 PPC--Cancellation of- -Forfeiture of surety-Challenge to-Thcre was no reason to suspect medical certificate produced by applicant, and if at all Additional Sessions Judge doubted ts correctness, proper course was to direct medical examination of applicant-Power under Section 497(5) has to be exercised with care and circumspection and there should be satisfactory evidence to show that ccused was thwarting course of justice by adopting dilatory tactics-Held: Order dated 16.2.1991 passed by Additional Sessions Judge cancelling bail of applicant was improper and arbitrary and as a necessary orollary to this finding, order dated 1.7.1991, directing surety to deposit amount of surety is liable to be set aside-­ Revision accepted. [Pp.l70&171]A,B,C&D PLD 1965 Karachi 516 rel. Mr.S.A.Ghaffar, Advocate for Applicant. Mr.Shaukat Zubedi, Addl. Advocate General for State. Date of hearing: 16.2.1992. judgment The facts of the case which have occasioned this revision filed under Section 435/439, read with Section 561-A, Cr.P.C. lie within a narrow orbit and may be briefly indicated. 2. Applicant Rana Masood Ahmad is facing trial in a case under Section 307/34 PPC (Crime No.204 of 1989), North Nazimabad P.S., in the Court of I- Additional Sessions Judge (Central) Karachi . The applicant who was on bail resided in Lahore , from where he used to come to Karachi to attend the Court on every date of hearing. However, he met with a serious accident resulting into fracture of his right fourth rib and damage to spinal cord, which prevented him from attending the Court. On 16.2.1991 the advocate for applicant made an application duly supported by a medical certificate seeking condonation of his absence on account of severe pain in spinal cord. The application was, however, rejected by learned I Additional Sessions Judge (Central) Karachi, with the following order:-- "Old case. M.C. is not countersigned by Medical Superintendent and R & P shows that accused is in habit of giving applications. Complainant Khalid Mahmood is present. APP opposed application. Application rejected. Issue N.B.W. against accused and notice to his surety. Bail stands cancelled". 3. On 30.5.1991 Mrt.Nisar Falima, the surety of applicant sought time for the production of applicant/accused, but this prayer was also refused with the following order passed on 1.7.1991:-- "Surety called absent. No intimation received. Accused also not appeared today. Surety forfeited to the extent of Rs.50,000/-. Surety to deposit Rs.50.000/- in Court within seven days, failing which it will be recovered according to law". It is in these circumstances that the applicant has challenged both the orders dated 16.2.1991 and 1.7.1991, passed by 1-Additional Sessions Judge (Central) Karachi. 4. I have heard Mr.S.A.Ghaffar, learned counsel for applicant and Mr.Shaukat H.Zubedi, learned AAG for State. The latter has not supported both the orders. 5. The fact that the applicant had met with an accident is not in dispute. A copy of Discharge Certificate, issued by North Surgical Unit, Mayo Hospital , Lahore is placed on record which makes it clear that right fourth rib of the applicant was fractured. The medical certificate dated 12.2.1991, issued by Dr.Abdul Rauf Zakai, Physician and Surgeon, Lahore , which was disbelieved by Additional Sessions Judge recites as follows:— "Certified that Mr.Masood Ahmad Rana son of Ali Ahmad Khan, aged 47 years is under my treatment. He is suffering from severe pain of spinal cord. He is advised complete bed rest for 10 days, i.e. 12.2.1991 to 21.2.1991". recorded under Sections 353, 365, 307/34 PPC and Section 13 of Arms Ordinance, 1965. [P.220JA&B (ii) Pakistan Penal Code, 1860 (XIV of 1860)-- —S. 311 (Qisas and Diyat Ordinance)--Murder and other offences-Conviction for-Challenge to-Assault on complainant party had been launched by appellants for having acted as agents of State to defend State roperty-­ Murder of Abdul Ghafoor Baildar of Forest Department, was thus murder of an agent of State-Composition of his murder by his Wall would have effect only regarding Qisas because composition oes not automatically entitle accused/convict to acquittal-Held: Despite composition of murder and despite waiver of Qisas by Wall of deceased, it is a fit case where appellants should be punished by Ta'zir- entence of death and life imprisonment set aside but each appellant awarded sentence of 5 years R.I. under Section 311 PPC. [Pp.220&221]C,D,E,F,G,H,J&K Rana AltafHussain Khan, Advocate for Appellants. Mr. M. Arsliad KJian, Advocate fo A.G. Punjab. Date of hearing: 10.11.1991. judgment halil-ur-Rehman Ramday, J.--Tariq Mehmood, his brother Muhammad Khalid and their father Faqir Muhammad were charged by the learned Judge, Punjab Special Court No.IX for Speedy Trials at Gujranwala U/Ss. 302/307/365/353/34 P.P.C. for having launched an assault on the Forest Guards and the Baildars of the Forest Department in furtherance of their common intention and having, in the process, killed Abdul Ghafoor Baildar and having thereafter abducted Muhammad Aslam, Forest Guard. 2. Through his judgment dated 20.9.1988, the said learned trial Court extended the benefit of doubt to Faqir Muhammad accused who was accordingly acquitted but found Tariq and Khalid guilty of the charges levelled against them. 3. Both of them were convicted U/S 353/34 P.P.C. and each one of them was sentenced to one year R.I. therefor. They were also convicted U/S 365/34 P.P.C. and each one of them was punished with five years R.I. on the said charge. 4. They were also found guilty U/S. 307/34 P.P.C. for having fired at Sarwar Butt complainant which had however, gone amiss and each one of them was directed to suffer five years R.I. on the said count. Both of them were also convicted U/S. 302/34 P.P.C. and while each one of them was sentenced to pay a fine of Rs. 20,000/- or two years R.I. in default thereof, Tariq was sentenced to death while Khalid was punished with imprisonment for life on the said charge. The entire amount of fine was directed to be paid to the heirs of the deceased. 5. Tariq appellant who was allegedly armed with a .12 bore gun at the time of occurrence had led to the recovery of the said gun alongwith four live cartridges but had not been able to produce any valid licence for the possession thereof. 6. He was tried also for an offence punishable U/S. 13 of the Arms Ordinance No. XX of 1965 by the above-mentioned learned Court and having found him guilty of the said charge, through a separate judgment, dated 20.9.1988, sentenced him to five years R.I. with a fine of Rs.20,000/- or one year R.I. in default of payment of the said fine. 7. Tariq and Khalid appellants have filed Crl. Appeal No. 980/88 to impugn the convictions and the sentences recorded against them U/Ss. 302/34, 307'/34, 365/34 and 353/34 P.P.C. while Tariq appellant has also impugned his conviction U/S. 13 of the Arms Ordinance of 1965 but through a separate Crl. Appeal, No. 991/88. 8. Both these matters are being dsiposed of together through this judgment. 9. It was Muhammad Sarwar Butt, a Block Officer of the Forest Department of the Government of the Punjab, posted at Forest Punj Grain who had reported to Muhammad Anwar A.S.I. (PW-9) on 11.8.1987 that he was present in compartment No. 173 of Forest Punj Grain alongwith some Forest Guards and Bsildars of the Forest Department for tree plantation when Faqir accused and Khalid and Tariq appellants while armed with Ballam and rifles respectively, reached there and on a Lalkara raised by Faqir Muhammad accused, Khalid appellant fired at Sarwar Butt complainant which, however, missed whereafter, Tariq appellant fired a shot which hit the front chest of Abdul Ghafoor, Baildar, who fell down and later died. 10. He had disclosed that Faqir Muhammad accused and others had trespassed into the State land in Forest Punjgrain which land had been got vacated from them by the department and that it was on account of this grievance that Faqir Muhammad, Tariq and Khalid had launched the attack in question on the complainant and his companions which had resulted in the death of Abdul Ghafoor, Baildar, and after which occurrence the assailants had even forcibly lifted and taken away Muhammad Aslam, Forest Guard. 11. Faqir Muhammad accused made a detailed statement U/S. 342 Cr. P.C. and having claimed that he had purchased eighty five acres of land in village Punjgrain in the year 1980, admitted that the Forest Department at Sialkot had laid claim to the entire land of the said village Punjgrain, including the land allegedly purchased by him, under orders of Special Military Court No. 28 at Sialkot against which claim of the Forest Department, a writ bearing W.P. No. 168/R-86 had been preferred in the Lahore High Court. He further claimed that status-quo had been issued by the High Court in the said writ petition and alleged that on 2.8.1987, Muhammad Sarwar Butt complainant came to the land in question, alongwith some officials of the Forest Department and the Ilaqa Magistrate, for the purpose of taking forcible ossession of the said land when Sarwar Butt complainant set Faqir Muhammad's Jhuggi and house-hold articles on fire and burnt the same. 12. Faqir Muhamamd further claimed that he, thereafter, rushed to the Lahore High Court and filed another writ petition bearing No. 3574/87 which, however, could not be heard till the day of occurrence and that it was during this period that he learnt that his son Tariq (the appellant) had fired a shot at Sarwar Butt complainant in order to deter him and his companions from taking forcible possession of the land in question and that it was a pellet fired from this shot which had hit Abdl Ghafoor deceased who died as a result thereof. 13. During the pendency of the present appeals before us, an application bearing Crl. Misc. No. 3/91 was moved praying for the acquittal of the appellants on the ground that one Siraj Din who was the only surviving heir of Abdul Ghafoor deceased had compounded the murder in question after granting Afw to them. 14. In pursuance of an order dated 27.10.1991 passed by us on the said application, the said Siraj Din is present in Court today. He is accompanied by one Muhammad Akbar who is the Chairman of Union Council No. 34 of Tehsil and District Sialkot in which Union Council, village Khundhu Chak which was the place of residence of Abdul Ghafoor deceased, falls. 15. Both of them offered to make their statements on Oath, which have been separately recorded after the two had been identified by Rana Altaf Hussain Khan, Advocate. 16. The said Siraj Din claimed before us that he was a consanguine brother of Abdul Ghafoor deceased; that their father had died in the year 1971; that the mother of Abdul Ghafoor had also died before the present occurrence; that the deceased had never contracted any marriage and had thus left behind no widow or issues; that the deceased had no brother or sister, either from his own mother or from the mother of the said Siraj Din; that the maternal grand parents of the deceased had also died before his murder; that he was only heir left by Abdul Ghafoor deceased; that the entire land of the deceased had been mutated in his name and finally that he had granted Afw to the appellants in the name ot Allah and consequently prayed that the appellants be acquitted of Abdul Ghafoor's murder. 17. Muhammad Akbar, Chairman, verified the above-noticed information conveyed to us by the above-mentioned Siraj Din. 18. Having recorded the statements of the said Siraj Din and Muhammad Akbar, Chairman, we are satisfied that Siraj Din is the only surviving heir of • Abdul Ghafoor deceased and that he has granted Afw to Tariq and Khalid appellants, voluntarily and of his own free will. 19. As has been noticed above, besides having been convicted U/S 302/34 P.P.C, the appellants had also been convicted and sentenced U/Ss 353/34,365/34 and 307/34 P.P.C.. Needless to mention that Tariq appellant had been further convicted and punished U/S 13 of the Arms Ordinance of 1965 also. B 20. The offence U/S 353 P.P.C. is not compoundable. Similar is the position of the offence punishable U/S 365 P.P.C. and of the offence U/S 13 of the Arms Ordinance of 1965. The offence U/S 307 P.P.C. is compoundable but Sarwar Butt complainant against whom the said offence had been committed, has not compounded the same. 21. In the circumstances, the grant of Afw by Siraj Din-above-mentioned shall not affect the convictions and the sentences recorded against the two appellants under the above-noticed provisions of law i.e. U/Ss 353/34, 365/34 and 307/34 P.P.C. as also U/S 13 of the Arms Ordinance of 1965. 22. As has been noticed above, the assault in question had been launched by the appellants on the complainant party not because of any grievance against the persons of the victims of this aggression but because the said victims had attempted to defend the Sate property being employees of. the Provincial Government and thus, having acted as agents of the State. . 23. Despite lengthy cross-examination, the appellants could not succeed in J5| demonstarting that Abdul Ghafoor deceased was not a Baildar of the Forest 1 De artment. • 24. The murder of Abdul Ghafoor deceased was thus not the murder of just I an individual but was the murder of an agent of the State. 25. It is true that Siraj Din, the Wall of Abdul Ghafoor deceased has compounded the murder in question but in view of what has been noticed above, this composition of the murder in question would have the effect only to the extent of relieving the appellants of their liability to the execution of Qisas as we consider that the case in hand is one to which the provisions of the newly added Section of 311 P.P.C. are attracted. 26. The provisions of the said Section 311 P.P.C. provide as under :-- "Tazir after waiver of compounding of right of Qaisa in Qatl-i-amd. Notwithstanding anything contained in Section 309 or Section 310 the Court may, in its discretion having regard4o the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either descreption for a term which may extend to ten years as Ta'zir:--Provided that the Court may punish an offender who is previous convict, habitual or professional criminal, with a term which may extend to fourteen years as Ta'zir." • 27. It may be mentioned here that in view of these provisions, composition of Jan offence of murder does not automatically entitle an accused/convict to a clean lacquittal and that despite such a composition of the offence of murder, it is the obligation of the Court to determine and to give a finding that the accused person! or the convict in question did not fall within the purview of Section 311 P.P.C. I 28. As has been mentioned above, the two appellants had assaulted andL, killed an agent of the State whose only fault was the discharge of his obligations as| such an agent. 29. In the circumstances despite the composition of the murder in question, as above noticed, and despite the waiver of Qisas by the Wall of the deceased, we ^ find it a fit case where the appellants should be punished by way of Ta'zir. 30. Consequently, the sentence of death imposed on'Tariq appellant and thel sentence of imprisonment for life awarded to Khalid appellant are set-aside butjK each one of them is punished to suffer five years R.I. as envisaged by the said| Section 311 P.P.C. 31. Since Section 311 P.P.C. does not authorise imposition of any fine, therefore, the sentence of fine Rs. 20,000/- or sufferance of two years R.I. in default thereof awarded to each appellant is set-aside. 32. As has been mentioned above, the convictions and sentences recorded against the two appellants U/Ss 353/34, 365/34, 307/34 P.P.C. are maintained. 33. It is however, directed that the sentences of imprisonment awarded to the said appellants U/S 311 P.P.C. as also under the above-mentioned offences, shall run concurrently. 34. The appellants are also allowed the benefit of the provisions of Section 382-B Cr.P.C.. 35. Khalid appellant is on bail. He shall be arrested forthwith and committed to prison to undergo the unsuffered above-punishment of imprisonment. 36 The learned counsel for Tariq appellant has elected not to press Crl. Appeal No. 991/88 which impugns his conviction and sentence recorded U/S. 3 of the Arms Ordinance of 1965. 37. Crl. Appeal No. 991/88 is, thereofre, dismissed as not pressed. It is however, directed that the sentence of imprisonmet awarded to Tariq appellant U/S 13 of the Arms Ordinance of 1965 shall also run concurrently with the abovementioned punishments of imprisonment. 38. Both these appeals are disposed of in the above terms. (MBC) (Approved for reporting) Orders accordingly

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 221 Present: khalilur rehman ramday, J. STATE-Petitioner versus NOOR MUHAMMAD and 2 others-Respondents Criminal Misc. No. 280-B of 1992, decided on 2.2.1992 (approved for reporting on 18.2.1992) (i) Cancellation of Bail- —Offence under Section 380-/420 PPC and Section 14 of Ordinance VI of 1979-Bail granted by lower Court-Cancellation of--5«o moto notice of- Mother of respondent No.3 was discharged from hospital in uly, 1991 while bail was allowed to him in December, 1991 on ground that his mother was lying on death bed-Held: Exercise of discretion by Magistrate in releasing respondent No. 3 on bail, was a reckless xcercise of discretion—Bail allowed to respondent No. 3 recalled. [Pp.225,226&227]A&B,M,N,O,P&Q (ii) Cancellation of Bail- —Offence under Sections 380/420 PPC and Section 14 of Ordinance VI of 1979-Bail granted by lower court-Cancellation of—5wo moto notice of~ Respondent No. 2 was employee of WAPDA and was riving truck on which transformers in question had been taken away-He was allowed bail by Magistrate because mother of his co-accused (respondent No. 3) was allegedly on death bed-Held: This was hardly round to release respondent No. 2 on bail-Bail of respondent No. 2 recalled. [P.226]H r F,K&L (iii) Cancellation of Bail- —Offence under Section 380/420 PPC and Section 14 of Ordinance VI of 1979- Bail granted by lower court-Cancellation of—Suo moto notice of~ Respondent No. 1 was Foreman of WAPDA and ad companied Muhammad Saleem accused at the time of removing transformers from custody of Abdul Ghani, Lambardar-A stolen transformer Was thereafter recovered from him-Transformers was stolen with his active connivance and participation-He avoided his arrest and he could only be arrested after proceedings under Section 87 of Cr.P.C-Held: Giving him premium that despite having remained in custody bout a month, challan had not been submitted in court, was not a justifiable exercise of discretion in his favour-­ Bail recalled. [P.226]C,D,E,F&G Mr. Zaeemul Farooq, Assistant. AG. for State. Malik Nazar Forced, Advocate for Respondents. Date of hearing: 2.2.1992. order This order shall dispose of a suo-moto notice issued to Noor Muhammad, Muhammad Shaft and Farooq Azmat who stand accused of offences punishable U/Ss 380/420 of PPC and of an offence punishable U/S 14 of Ordinance VI of 1979, through FIR No. 210/90 of P.S Sadar Depalpur of District Okara and who had secured their release on bail from the Court of the learned A.C./Magistrate Section 30 at Depalpur. 2. The above mentioned FIR had been recorded on a written communication addressed by one Muhammad Amin, SDO of WAPDA at Sahiwal who had stated therein that electrification work of Mauza Mancherian had been commenced by WAPDA in which connection six transformers and other necessary equipment had been strored at the residence of Abdul Ghani, Lambardar of the said village who had informed the WAPDA authorities that one Muhammad Saleem who has an employee of WAPDA as a helper at Bhai Phairu had come to him in a WAPDA truck bearing No. LHG-384 nd had taken away three transformers in the last week of June on the pretext that the same had to be checked at Sahiwal. He had further informed the complainant-SDO that he had taken a proper receipt from the said Muhammad Saleem helper in token of the receipt of the said transformers. 3. The said complainant-SDO had further reported that these transformers had been fraudulently and dishonestly taken away by Muhammad Saleem helper of WAPDA and that a case should accordingly be registered and investigated. 4. In pursuance of the recording of this FIR, the said Muhammad Saleem accused had been arrested and during the investigation it transpired that he had stolen/misappropriated the said three transformers with the help of Moor Muhammad Foreman of WAPDA and of Muhammad Shafi, the driver of the above mentioned truck and had thereafter sold two of these transformers to one Farooq Azmat who is a WAPDA contractor at Lahore. 5. The said two transformers were accordingly recovered from the above mentioned Farooq Azmat on 2.10.1990. 6. The afore-mentioned Muhammad Saleem accused, petitioned this Court for his release on bail through Crl. Misc. No. 4584-B of 1990 which petition was dismissed by me on 19.12.1990 and while dismissing the said application I had expressed my displeasure over the quality of investigation as the I.O had not associated or interrogated the above mentioned truck driver, the Foreman and the WAPDA contractor from whose possession the said two transformers had been recoverd. 7. I had asked D.I.G. of Lahore Range to have the case investigated by some senior and the competent Officer. 8. After dismissal of'his above mentioned first application for his release on bail, Muhammad Saleem accused approached this Court through Crl. Misc. No. 1176-B of 1991 and 2242-B of 1991 for his admission to bail but these two applications had also been dismissed by me through my order passed on 21.4.1991 and 7.10.1991, respectively. 9. The said Muhammad Saleem then filed a fourth petition before this Court bearing Crl. Misc. No. 3182-B of 1991 which came up before this Court on 10.9.1991 and in which notice was issued on 15.9.1991. 10. Through my order dated 6.10.1991,1 called upon the learned Asstt. A.G. to check up with the D.I.G. of the lahore Range about the fate of the investigation in compliance with my aforementioned order ated 19.12.1990 passed in Crl. Misc. No. 4584-B of 1990 whereupon it transpired that my said order had not been complied with in its letter and spirit. The S.P. of Okara, however, undertook to depute a DSP of the area to personally investigate the case in question. 11. On 5.11.1991 the learned counsel for Muhammad Saleem accused prayed for permission to withdraw Crl. Misc. No. 3182-B of 1991 pending before this Court on the ground that Muhammad Saleem petitioner before this Court had since been admitted to bail by a learned A.S.J of Okara on 22.9.1991 i.e. during the pendency of this petition before this Court for the same purpose. 12. Dissatisfied with this conduct of Muhammad Saleem petitioner I issued a notice to him to show cause why the said bail granted to him by a learned A.S.J. at Okara,be not recalled? The said matter is being dealt with seperately. 13. During these proceedings it came to my notice on 15.1.1992 that as a result of the investigation conducted by the DSP of Depalpur, above mentioned Muhammad Shafi truck driver, Noor Muhammad Foreman and Farooq Azmat contractor had also been found involved in the theft/misappropriation of the said transformers and that having been arrested in the case in question, all three of them had been admitted to bail by the learned A.C./Magistrate Section 30, Depalpur. 14.1 summoned the record of the said case relating to the grant of bails in question and considering that legality and propriety of the said bail granting orders required examination, I issued notice to the said three accused persons to show cause why their said bails should not be cancelled? 15. It is in pursuance of this notice that Muhammad Shafi, Noor Muhammad and Farooq Azmat Above mentioned are before me alongwith their respective counsel. They have been heard. 16. After his arrest Noor Muhammad accused had led to the recovery of one transformer on 22.7.1991 whereafter he was sent to judicial lock up on 25.7.1991 and had been released on bail by the above mentioned learned Magistrate on 15.8.1991 i.e. within less than 30 days of his arrest, on the ground that his person was no longer required by the police; that the offences alleged against him did not fall within the prohibitory clause and that the challan had not been submitted in Court which was a complete violation of the mandatory provisions of Cr.P.C.. 17. Farooq Azmat accused had been arrested on 14.11.1991 while Muhammad Shafi accused had been arrested on 21.11.1991. Both of them were admitted to interim after arrest bail on 21.11.1991 which interim bail, the learned Magistrate had allowed "without going into the merits of the case apparently on the ground that Farooq Azmat accused was lying admitted in jail hospital while his mother was on death bed. 18. As is evdent from the order granting bail to Farooq Azmat and Muhammad Shaft, the said interim post arrest bail had been allowed without going into the merits of the case and only on the ground, as explained by the said learned Magistrate who had also been summoned by me, that Farooq Azmat's mother was lying on death bed. 19. Farooq Azmat and Muhammad Shafi accused are not related to each other. Consequently, Muhammad Sahfi accused was not concerned with the alleged ailment of Farooq Azmat's mother. It is not understandable as to why Muhammad Sahfi accused should have been admitted to interim bail after arrest only because Farooq Azmat's mother was lying on death bed. 20. Thus release of Muhammad Shaft accused on bail was wholly arbitrary and was a shocking exercise of discretion by the said learned Magistrate. 21. No document or certificate of any kind was produced before the learned Magistrate to support the claim that the mother of Farooq Azmat accused was lying on death bed. - 22. On my enquiry, however, the learned counsel appearing for Farooq Azmat accused produced a photostat copy of a certificate issued by Dr. Mahmood Nawaz, M.S. of Services Hospital, Lahore stating that Msl. Hafeezan Begum was a patient of un-controlled diabetes and also of Bronchial Asthama. It has also been stated in the said certificate that the said lady was also suffering^from Backache and had a hair-line fracture of vertebra and that during the days when this certificate was issued, the said female was unable to move around. This certificate is dated 5.1.1992. 23. The said learned counsel also produced before me discharge ticket issued by the Services Hospital according to which Mst. Hafeezan Begum had remained admitted in the Services Hospital and had been discharged on 31.7.1991. The age of Mst. Hafce?an is mentioned as 60 years and she was stated to have been admitted for Diabetes and Asthama. 24. On my enquiry as to which of the above diseases, even if the said certificates were admitted as correct, was a disease on account of which it could have been said that the patient was lying on death bed, Farooq Azmat accused and his learned counsel had nothing to offer except apologies. 25. According to the discharge ticket of the Services Hospital above-noticed, the mother of Farooq Azmat accused had been discharged from the hospital in July, 1991 while the bail was allowed to Farooq Azmat accused in December, 1991 on the ground that his mother was lying on death bed. Even the certificate of the M.S. above mentioned which was issued in January, 1992 would demonsrate that the diseases mentioned therein had not warranted admission of the patient in question in the hospital as an rn-door patient. 26. It would thus appear that the exercise of discretion by the learned B Magistrate in releasing even Farooq Azmat accused on bail, was a reckless exercise of discretion. 27. Although, as has been noticed above, even (if) the alleged compassionate ground, on which Farooq Azmat had been released on interim post arrest bail, was existent, yet it may be mentioned that the provisions of Section 497 Cr.P.C. do not permit release of accused persons on bail by Subordianate Courts, on compassionate grounds i.e. on grounds other than the ones mentioned in the said provision. 28. o far as Nor Muhammad accused is concerned, he was the Foreman of WAPDA at the relevant time and had accompanied Muhammad Saleem helper (accused) at the time of removing the transformers in question from the custody of Abdul Ghani Lambardar. A stolen transformer had thereafter even been recovered from his possession. 29. In the circumstances, it was with his active connivance and participation and even patronage that the transformers in question, which were public property, had been stolen/misappropriated and he had done all this being an employee of WAPDA. 30. After having been found involved in the present case, he avoided his arrest and it was only after procedings had been taken U/S. 87 Cr. P.C. that he could be arrested on 10.7.1991. 31. In these circumstances, giving him the premium that despite having remained in custody only for about a month, the challan against him had not been submitted in the Court, was not a justifiable exercise of discretion in his favour. 32. And in view of these very circumstances which have been noticed above, he did not deserve to be admitted to bail only bacuase offences alleged against him did not fall within the prohibitory clause or that investigation with respect to the case in question was complete. , 33. Consequently, the bail allowed to him by the learned A.C./Magistrate G |Scction 30 o,f Depalpur on 15.8.1991 is recalled. H 34. As has been noticed above, Muhammad Shafi, being an employee of WAPDA was the one who was driving the WAPDA truck on which the transformers in question had been taken away and had been transported to Lahore. 35, He was allowed interim post arrest bail by the learned Magistrate not on J merits but because the mother of his co-accused namely Farooq Azmat was allegedly on dealh bed. i 36. This was hardly a ground to release Muhammad Shafi on bail, who did I not deserve bail even on merits. M 37. Resultantly the bail extended to Muhammad Shafi accused through an! order dated 21.12.1991 of the said learned Magistrate, is also recalled. ' 38. Farooq Azmat accused is a WAPDA contractor at Lahore . Two of the transformers in question had breen recovered from his possession and at his instance. He had produced a receipt regarding purchase of these transformers from Muhammad Saleem accused and it is mentioned in the said receipt itself that to his knowledge Muhammad Saleem was a helper/employee of WAPDA. Knowing that Muhammad Saleem acused was so employed in WAPDAI as a helper and yet purchasing two transformers from him, is by itself sufficient toljsj show bad faith on the part of Farooq Azmat accused and he could not, therefore,' be said to be a purchaser of these transformers in good faith. He was arrested on 14.11.1991 and was admitted to interim post arrest I q bail on 21.12.1991 only on the ground that his mother was on eath bed. ' 39. From the examination of his mother's alleged illness, as above noticed, iti p would transpire that even this assertion on his part was false. 40. Therefore, he was also unjustifiably admitted to bail and the said bail isjQ also recalled. 41. This disposes of Crl. Misc. No. 280-B/91 relating to the notices issued to Muhammad Shafi, Noor Muhammad and Farooq Azmat accused for cancellation of the bail allowed to them by the learned agistrate. 42. But before I part with this order I must express my displeasure over the manner in which the learned Magistrate had exercised his discretion in favour of the above mentioned three accused persons in the matter of granting bail to them. This discretion had been exercised by him in complete disregard of the facts of the case and the law regulating the subject. 43. A notice shall, therefore, issue to the learned A.C./Magistrate Section 30- of Depalpur to show cause why proceedings should not be initiated against him for his said conduct. 44. An independent file shall be constructed with regard to this notice and the same shall be listed before me on 2.3.1992. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Karachi ) 227 Present: QAISFR AHMAD HAMIDI, J. ABDUL HAMEED-Applicant versus STATE and anothcr-Respondents Criminal Misc. No. 421 of 1991, dismissed on 2.12.1991. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 (5) read with Sections 464,465,466 and 497 (l)--Accused of unsound mind-Grant of bail to-Cancelaltion of bail-Prayer for~Both Sections 464 and 465 Cr.P.C. are attracted when accused is found to be f unsound mind at time of trial and not at time of commission of offence-A tentative satisfaction of court about mental capacity of accused is condition precedent to adhere to procedure laid down in Sections 464 nd 465 Cr.P.C.-Provisions of Sections 464, 465 and 466 Cr.P.C. were not followed by both Additional Sessions Judges-Held: Respondent No. 2 is a sick person within meaning of Section 497 (1) and is entitled o grant of bail—Application for cancellation of bail dismissed. [Pp.230,231&233]A,B,C&D PLJ 1985 Cr.C ( Karachi ) 418 rel. Mr. M~A. Kazi, Advocate for Applicant. Mr. S.Z.A Qureshi, Advocate for A.G. Mr. Abdul Ghafoor Khan, Advocate for Respondent No. 2. Date of hearing: 20.11,1991. order It is desirable to state in detail certain facts giving rise to this application filed under sub-section (5) of Section 497, Cr.P.C. 2. Deceased Muhammad Yaqub, the father of applicant Abdul Hameed was sitting in Aitekaf in Gole Memon Masjid, PECH Society, Karachi when on 4.5.1989 at about 5.45 A.M. he was fired at by Farooque Tayyab Imrani, the respondent No. 2 by means of pistol who died on the spot. On the same day at 7.35 A.M. applicant/complainant lodged F.I.R. at Ferozabad P.S. (Crime No. 274 ef 1989) under Section 302 PPC. During the course of investigation the respondent No. 2 was arrested and after usual investigation he was sent up to stand trial. On 12.7.1989 charge under Section 302 PPC was framed against respondent No. 2 who claimed a trial. No progress in the case could, however, be made for want of case property. On 5.10.1989 an application under Section 465 (1) Cr.P.C. was made on behalf of respondent No.2 in the following words:- "It is respectfully submitted that the above named accused who is facing trial in the above case and confined in Central Prison, Karachi is reported to be of unsound mind and as such incapable of making his defence. It is prayed that this Honourable Court may be pleased to make an enquiry about the unsoundness and incapacity of the accused by calling report from the Medical Officer of Central Prison, Karachi and by getting the accused examined by the Civil Surgeon and/or other Doctor. The prayer is made in the interest of justice." On this application the learned VII Additional Sessions Judge (East) Karachi , before whom the case was pending passed the following order:-- "Heard APP for State. He stated that M.O. from jail be called and enquiry be held into the matter. Issue letter to C.M.O. Central Prison, Karachi for his statement." 3. No progress was, however, made from 4.1.1990 to 2.7.1990, when on this date the learned Additional Sessions Judge constituted a Medical Board. In the meanwhile the Court of VII Additional Sessions Judge (East) Karachi fell vacant. On 23.12.1990 the case was transferred to the Court of Sessions Judge (East) Karachi. The application dated 5.10.1989 made under Section 465 (1) Cr.P.C., however, remained undecided. During the pendency of this application the respondent No. 2 applied for bail and on 21.4.1991 he was allowed interim bail with the following direction:-- "Let Dr. Samina Matin, Assistant Professor, Department of Psychological, Medicine Dow Medical College and Civil Hospital Karachi be summoned alongwith the case history of the applicant/accused to depose facts about the nature of illness of the applicant/accused and the treatment required for that ailment and thereafter the final order on the bail application would be passed. Put off to 4.5.91 for confirmation." 4. On 22.5.1991 the Sessions Judge (East) Karachi examined Dr. Samina Matin (C.W.-l). On 28.7.1991 Dr. Ni/.amuddin Memon (C.W-2) was examined and on 19.8.1991 the statement of Dr. Muhammad Ayaz (C.W-3) was recorded. On 19.9.1991 the interim bail granted to respondent No. 2 was confirmed. The orders dated 21.4.1991 and 19.9.1991 passed by learned Sessions Judge are the subject matter of the present application filed under sub-section (5) of section 497, Cr.P.C. seeking cancellation of bail granted to respondent No. 2. 5. I have heard Mr. MA. Kazi. learned counsel for applicant/complainant, Mr. Abdul Ghafoor Khan, learned counsel for respondent No. 2, and Mr. S.Z.A. Qureshi, learned counsel for State. Mr. Qureshi has supported the impugned orders. 6. Admittedly the application made on behalf of respondent No. 2 under Section 465 (1) Cr.P.C. is still pending. Chapter XXXIV of the Code of Criminal Procedure, 1898, deals with the trial of cases in which lunatics are involved. Section 464, Cr.P.C. provides such procedure in the following words:— (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the (Provincial Government) directs, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing. (1-A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of Section 466. (2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making defence, he (shall record a finding to that effect and) shall postpone further proceedings in the case." From a bare persual of Section 464, Cr.P.C., it appears that when there is some evidence to believe that a person facing inquiry or trial before a Magistrate was insane and consequently incapable of making defence, it is obligatory upon the Magistrate to stop proceedings and hold an inquiry after causing such person to be examined by the Civil Surgeon of the district (re-designated as Medical Superintendent in some districts) or such other medical officer as the Provincial Government directs, and after examining such Surgeon or other officer as a witness record a finding. Section 465, Cr.P.C. lays down the procedure to be adopted by the Court of Sessions or the High Court, as the case may be, where the accused sent for trial appears to be a lunatic in the following words:- "(1) If any person before a Court of Sessions or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness.and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case. (2) Trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court." 7. Both Scctirins 464 and 465 Cr.P.C. are attracted when the accused is found to be of unsound mind at the time of trial and not at the time of commission of offence. Section 84 PPC deals with cases falling within the mischief of latter category. A close examination of Sections 464 and 465 Cr.P.C., will make it clear that the latter section, viz, Section 465 PPC is not to be construed to extend the powers of the Court of Sessions or the High Court in matter relating to an inquiry about the mental capability of an accused for making his defence and it is to be read alongwith Section 464 Cr.P.C. A tentative satisfaction of the Court about the mental incapacity of the accused is the condition precedent to adhere to the procedure laid down in Sections 464 and 465 Cr.P.C., followed by the examination of accused by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs. The only course open to VII Aditional Sessions Judge (East) Karachi, was to refer the respondent No. 2 to Civil Surgeon concerned for examination and then to record his statement to find out if the respondent No. 2 was incapable of making his defence. Such examination could have also been made by such other medical officer so empowered by the Provincial Government. 8. Where the Court finds that the accused is of unsound mind and consequently incapable of making his defence, it must proceed under Section 466 Cr.P.C., which provides as unden- "(1) Whenever an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, (whether the case is one in which bail may be taken or not), may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearence when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf. (2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in sale custody in such place and manner as he or it may think fit, and shall report the action taken to the (Privincial Government): Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the (Provincial Government) may have made under the Lunacy 9. Rule 1, Part F, Chapter V of the Federal Capital and Sindh Courts Criminal Circulars furlher lays down as follows:— Before releasing a criminal lunatic under Section 466 (1), Criminal Procedure Code, a Court or Magistrate should, if the accused has exhibited a tendency to violence or if the crime charged is of serious nature, question the Civil Surgeon or other officer examined under Section 464 (1), Criminal Procedure Code, about the safety of the proposed procedure. Such medical opinion should also be taken before a Court or Magistrate orders an accused person, acquitted on the ground of insanity, to be detained in any place other than mental hospital." 10. The provisions of Sections 464, 465 and 466 Cr.P.C. were, however, not followed by both VII Additional Sessions Judge (East) Karachi, and Sessions Judge (East) Karachi, and the case against respondent No. 2 is still at the same stage where it was at the time of challan. 11. Coming now to the question whether the respondent No. 2 is a 'sick' person within the meaning of first proviso to sub-section (1) of Section 497, Cr.P.C.. it may be observed that a mental illness is also a sickness entitling an accused to the grant of bail. Dr. Samina Matin (C.W-1) who was examined in the trial Court has opined th;ii respondent No. 1 is suffering fiom schi/ophrcniu and requires treatment for a long time followed by regular check up by a psychiatric. Dr. Nizamuddin CMO fC.W-2) who had examined him in lunatic ward, Central Prison, Karachi, had treated him as a mental case. Dr. Muhammad Ayaz (C.W-3) who had the occasion to examine the respondent No. 2 in Mental Ward, Central Prison, Karachi, found him a patient of hypomania. The illness of schizophrenia as defined by Dr. Modi is as follows:-- "Kraepeiin, in 18%, named this disease dementia proecox. In 1911 Eugen Bleuler introduced the term "Schizophrenia" which literally means" splitting of the personality". The terms dementia proecox was changed because it implied that the disease always ended in dementia, which it did not. The tei .1 proecox meant that the disease developed at the time of puberty or adolescence, but many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prongnosis which created a spirit of defeatism in the minds of people.The cause of this illness is still not known but there is general agreement about the multiplicity of factors in its causation. Heredity plays a part as shown by Kallmann's work. He found the expected incidence of schizophrenia in the relatives of schizophrenic patients to be as follows:-- Monozygotic twins, 86%; dizygotic twins, 15%; children, 16%; full sibs, 14%; parents, 9.%; half sibs, 7%; grand-children, 4%; nephews and nieces, 4%; marriage partners, 2%; general population, 0.85%." 12. According to Dr. Modi the symptoms of 'hypomania' are as follows:- "Invthis phase the three outstanding symptoms of mania, viz, elation exce'ssive psychomotor activity and flight of ideas, are not fully developed. The person feels very cheerful, optimistic and self-confident and his inhibitions are diminished. Thoguh the general demeanour and conduct of the patient are greatly altered, there is not much change in the personality. He is quick-witted and entertaining in conversation but there is flight of ideas so that he switches on from one topic to another without having any connection with the various topics. He is full of schemes which seldom materialized. He oozes self-confidence and if he happens to be a businessman he takes too many risks and is uncritical about his over-optimism. He is overactive, always in a hurry, and moves in buses or taxis from one end of the city to the other throughout the day. He squanders money on things which normally he would not dream of buying. He goes on a shopping spree and if he happens to be sophisticated, westernised person, he indulges in heavy tipping to cabbies and waiters. Later, the patient becomes restless, irritable and interfering. He resents being corrected and becomes argumentative, quarrelsome and so violently excited as to tear or destroy his clothes, furniture and other articles in the house. He may become abusive and beat other people. Delusions and hallucinations are absent at this stage. Physically the manic patient generally does not look or feel ill and physical examination shows no organic disease." Thus, from whatever point of view the matter may be looked at it is clear that the respondent No. 2 is a sick person within the meaning of first proviso to sub-section (1) of Section 497, Cr.P.C. and in such a situation he is entitled to the grant of bail. The case of Salimuddin . Tfie Sate, reported in PLJ 1985 Cr.C ( Karachi ) 418, lends support to this view. 13. Having regard to the above legal position, I see no substance in the application made under sub-section (5) of Section 497, Cr.P.C. on behalf of applicant. The application is accordingly dismissed. 14. It is needless to observe that if the Sessions Judge after necessary inquiry finds respondent No. 2 incapable of making defence and from his conduct he appears to be violent it will be open to him o cancel his bail directing his detention in some mental hospital under sub-section (2) of Section 466, Cr.P.C. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 233 Present: QAISFR AHAMD HAMIDI, J SARWAR SHAKIR-Appellant versus THE STATE-Respondent Criminal Appeal No. 226 of 1991, accepted on 2.3.1992. (i) Charge- -—Murder-Offence of--Conviction under Section 304 P.P.C.-Challenge to-- What was effect of defective charge-Question of-Appellant knew that he was facing charge of murder of Mst. Maryam nd not of Sadique Masih- Suggestions made to witnesses in cross-examination are self-explanatory—No pica of having been prejudiced was raised in trial court and in memo of appeal-Held: Objection aken by learned counsel for appellant about defective charge, is devoid of force. [Pp.235&236]A (ii) Medical Certificate-- —-Murder-Offence of—Conviction under Section 304 PPC~Challenge to- Whether medical certificate is substantive piece of evidence-Question of- Medical cerrificate by itself is not a ubstantive or primary evidence particularly when it is relied upon to prove opinion it contains—It is opinion of medical expert which is relevant—Medical certificate is only a record made by medical expert which at least would show that he had recorded his view or opinion or made an entry as regards injuries seen by him immediately after or at time of his examination-Held: At best, uch a certificate would have a corroborative value but it is not a substantive piece of evidence—Held further: Trial Court had gone wrong in relying upon medical certificates without examining edical Officer-Denovo trial ordered. [Pp.236&237]B,C&D AIR 1923 Bombay 183 & AIR 1953 Madras 858 rel. Mr. LI. Suleman, Advocate for Appellant. Mr. S.ZA. Qureshi, Advocate for A.G. Date of hearing: 18.2.1992. judgment Appellant Sarwar Shakir, a police constable and his brother Ashraf Masih were tried by Mr. Arshad Noor Khan, I Additional Sessions Judge (East) Karachi, for the offence under Section 302/34 P.P.C., who found co-accused Ashraf Masih not guilty and acquitted him. The appellant was, however, found guilty for the offence under Section 304 P.P.C., and sentenced to suffer R.I. for seven years and to pay a fine of Rs.5000/- or in default to suffer R.I. for six months. By this appeal filed under Section 410 Cr.P.C., the appellant has challenged his conviction and sentence awarded on 29.9.1991. 2. This regrettable episode is a sequel to an ordinary occurrence. Appellant Sarwar Shakir had borrowed an audio cassette from P.W. Pervaiz son of Sadique Masih who on 26.1988 at about 6 P.M. asked the appellant to return it, which annoyed him and he flew into passion, resulting into exchange of abuses. The commotion attracted Sadique Masih who tried to intervene, whereupon he was given mattock (Belcha) belows. Deceased Mst. Maryam daughter of Sadique Masih and Mat. Khursheed wife of Sadique Masih also rushed to the spot and they too were given injuries. It is the case of the prosecution that Mst. Maryam was given hammer blow on her head, whereupon she fell down. On the same day complainant Sadique Masih went to Malir P.S., where his report was ecorded in station diary (Roznamcha). Mst. Maryam was taken to Jinnah Post Graduate Medical Centre, Karachi , where she died on the following day and it was thereafter that on 3.6.1988 the entry of station diary was incorporated in 154 Cr.P.C. book. After usual investigation the appellant and his brother co-accused Ashraf Masih (since acquitted) were sent up to stand trial. 3. The appellant pleaded not guilty to the charge framed against him and co-accused Ashraf Masih for the offence under Section 302/34 P.P.C., and claimed a trial. At the trial the prosecution examined Sadique Masih (P.W.I) Sadique Nawab (P.W.2), Sardar Masih (P.W.3), Pervaiz (P.W.4), Mst. Khursheed (P.W.5), Habibullah Tapedar (P.W.6), Jawed (P.W.7), Sardar Khan S.I.P. (P.W.8) and Allauddin Abbasi S.H.O. (P.W.9). 4. The appellant met the charge with a denial. He did not step into the witness box. No witness in defence was also examined by him. 5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under Section 304 P.P.C., and convicted him accordingly, giving rise to this appeal. 6. I have heard Mr. I.I. Suleman, learned counsel for the appellant and Mr. S.Z.A. Qureshi, learned counsel for the State. I have also examined the record of this case carefully, before examining the evidence adduced in support of the prosecution version. I propose to examine following legal points that have been urged in the course of arguments:-- (/) That the charge framed against the appellant was defective which disclosed the name of deceased as Sadique Masih, although her name was Mst. Maryam, which caused serious prejudice to the appellant.(//) That the medical certificates were brought on record through Allauddin Abbasi S.H.O. (P.W.9), without examining the concerned Medical Officer causing serious prejudice to the appellant. 7. as regards the first legal objection, the learned counsel for the appellant has very little to say. The object of framing a charge is to afford the defence an opportunity to concentrate its attention on the case that he has to meet. The rule of law is ihat if any person is misled in the defence by the absence of any charge or an error in the charge a retrial is to be ordered. The case of Mallu Gope and another v. mperor, reported in AIR 1929 Patna 712, is clear on this point. As observed in Pagla Baba and another v. Ttie State, reported in AIR 1957 Orissa 130, a trial is not vitiated by reason of the fact that the charge, as framed, is not complete, if no prejudice was caused to the accused. This question was also examined in the case of Kamakhya Prasad Agarwalla and others v. Tlte State, reported in AIR 1957 Assam 39, wherein it was observed:— 'With a view to understand whether there was prejudice, we should examine the circumstances of the case. It has been held in a recent decision of the Supreme Court that to say that there was prejudice, is not enough, it should further be pointed out as to how or in what manner the accused was prejudiced". 8. The perusal of the record shows that the appellant knew that he was facing the charge of murder of Mst. Maryam and not of Sadique Masih. The suggestions made to the witnesses in cross-examination are self explanatory. It will, therefore, be very difficult to sustain a plea of prejudice unless the Court is told where the shoe pinches. In fact no such plea was raised by the appellant before the trial Court and in the memo of appeal filed by him before this Court. The objection taken by learned counsel for the appellant about the defective charge during the course of his address is thus devoid of force. 9. The second contention about the value of medical certificates (Ex.25 to Ex.27), produced by Allauddin Abbasi S.H.O. (P.W.9) seems to be well founded. 'A medical certificate by itself is not a substantive or primary evidence particularly when it is relied upon to prove the opinion it contains. It is the opinion of the medical expert itself in such cases that is relevant. The certificate is only a record made by him which at best would show that he had recorded his view or opinion or made an entry as regards the injuries seen by him immediately after or at the time of his examination. At best, such a certificate would ave a corroborative value but it is not a substantive piece of evidence from which an opinion of the medical expert can be proved or established". (See Field's Expert Evidence, Third Edition). In the case of Imperator v. AhiL Manaji, No.l and another, reported in AIR 1923 Bombay 183, it was made clear that the certificate of the Professor of Anatomy is not per se admissible in evidence. This aspect of the case as also considered in the case of Coral Indria Gonsalves, falsely called hwariah v. Joseph Prabhakar Iswariah, report in AIR 1953 Madras 858, wherein it was observed:-- "Certificates, like these, do not prove themselves. They must be strictly proved by doctor who issues them. He has to state what tests he carried out io arrive at his conclusion and must stand cross-examination and convince the Court that his conclusion about the potency is correct. Here, not even an attempt has been made to examine him, the respondent, having given up his defence, obviously because it was hopeless". 10. This view was folk wed in the case of Municipal Corporation of City of Ahmedabad v. Gandhi Shantilal Girdharilal and another, reported in 1961 Gujarat 196, and it was held that what is made relevant under Section 45 of the Evidence Act, 1872, is the opinion of the medical expert or any other expert and not the dc -ument in which he has recorded his opinion. The certificate in itself is not an admissible document. 11. The perusal of the record further reveals that there are different versions about the crime weapon and in such a situation the examination of concerned Medical Officer before the Court was essential. Unfortunately the medical examiner was not cited as a witness. The learned prosecutor and the Additional Sessions Judge also took no pains to summon him for the purpose of evidence. On the lace of such a clear pronouncement, the learned Additional Sessions Judge had gone wrong in relying upon the medical certificates (Ex.25 to Ex.27) without examining the Medical Officer. The conclusion rawn by him on the bnsis of these certificates is patently erroneous. 12. Faced with this situaiion, the learned counsel for the State has conceded and I think rightly, that proper course for me to adopt is to remand the case for retrial from the stage of framing of charge which s defective. Without going into the merits of the case, I would accept the appeal, set-aside the conviction and sentence of the appellant and remand the case for retrial from the stage it became irregular, namely from the drawing up of the charge. The trial Judge shall also examine the concerned Medical Officer to prove the contents of medical certificates (Ex.25 to Ex.27). Since the charge will be reframed the proceedings will start de-novo. The case shall go to Sessions Judge (East) Karachi, who shall either try it himself or make it over to any of the Additional Sessions Judge working in District East, other than Mr. Arshad Noor Khan, I Additional Sessions Judge who has already formed his opinion. As the appellant is in custody it will be appreciated if the case is disposed of expeditiously. (MBC) (Approved for reporting) Appeal accepted

PLJ 1992 Cr PLJ 1992 Cr.C(AJK) 237 Present: ABDUL MAJEED MALLICK, CJ MUHAMMAD RAMZAN-Petitioner versus Mst. NASIM AKHTAR and 2 others-Respondents Criminal Revision No.19 of 1991, dismissed on 13.2.1992. Maintenance- —Minor children-Maintenance allowance-Grant of-Challenge to~Father was under duty to maintain his children-When satisfied that father neglected or refused to maintain his children, Court is empowered to ssue directive against f ather to provide them maintenance—No contract between parents of minor children could absolve father of his responsibility to maintain them- Objections filed by petitioner do ot contain objection of limitation nor exact date when minors were sent to or taken back by mother, has been given-Held: Contract whereby father was absolved of hi;, duty to maintain his children, being patently gainst interest of minors, was not enforceable—Petition dismissed. • [Pp.239&240]A&B Mr^Abdul Latif Dutt, Advocate for Petitioner. Mst.Nasim Akhtar, Respondent No.l in person. order Mst. Nasim Akhtar was the wife of Muhammad Ramzan. Muhammad Saleem is son and Shamim Akhtar daughter of Muhammad Ramzan, petitioner. An application was moved by the wife and children of Muhammad Ramzan for payment of maintenance allowance, under Section 488, Cr.P.C., in the Court of Magistrate 1st Class, Mirpur, on August 10, 1986. The application was partly allowed on November 30, 1987. The claim of the wife was refused whereas the minor children were provided amount of maintenance allowance (g> Rs.200/- each child per month, from the date of the application. An application for recovery of the amount was moved. Meanwhile, Muhammad Ram/an moved the District Judge for his appointment as guardian of minors. On May 4, 1988, a compromise was effected between Muhammad Ram/an and Mst. Nasim Akhtar. In the light of the terms of the compromise, a sum of Rs.6,000/- in cash and 18 tolas golden ornaments were delivered to Mst. Nasim Akhtar. She was also divorced. The minors were returned to Muhammad Ramzan on the condition that he shall produce them in the Court to meet their mother twice a month. Muhammad Ramzan also executed a bond in the sum ol Rs.25,000/- as condition to comply with the aforesaid order of the Court. In consequence of the aforesaid compromise, the minors were handed over to Muhammad Ramzan. It appears that Muhammad Ramzan, later on, married and returned the minors to their mother. In this situation, a fresh application was moved by Mst. Nasim Akhtar, for the payment of maintenance allowance, w.e.f. August 10, 1986 to April 10,1989. A sum of Rs.12,800/- was claimed as arrears. The application was moved on April 5, 1989. The application was contested but the learned Magistrate 1st Class accepted the application and ordered the payment of maintenance allowance to the minors w.e.f. December 24, 1989. The order was passed on March 27, 1991. This order was challenged in revision before the learned Sessions Judge without success. The present petition has been addressed against the aforesaid orders of the subordinate Courts. 2. Mr.Abdul Latif Dutt, the learned Counsel for the petitioner contended that the minors were ineligible to claim maintenance allowance in the light of the compromise effected between their parents, on May 4, 1988. It was further argued that the custody of the minors was taken by the mother without due course of law, as such the application for recovery of maintenance allowance was beyond limitation. 3. It is an accepted rule under all systems of administration of justice that father is under duty to maintain his child. It was in the light of this spirit of law that the trial Magistrate initially granted the application of the minors by directing the father to pay the maintenance allowance according to the social condition? and status of the parties, @ Rs.200/- each child per month. This order attained finality as it was not agftated or reversed at any higher forum. At the subsequent stage when the proceedings for recovery of the maintenance allowance were in progress, the husband and wife effected a compromise in consideration of which a sum of Rs.6,000/- in cash and golden ornaments weighing 18 tolas were delivered to Mst. Nasim Akhtar by Muhammad Ramzan. She was also given divorce. The custody of the children was delivered back to the father. The terms of the compromise were quite vague and shrouded in ambiguity. It is not clear as to whether the amount in cash and ornaments were given to he woman in consideration of arrears of the maintenance allowance payable to minors or as dowery or dower money. Be that as it may, the fact remains that the minors were handed over to the father and he maintained them till such time when minors were sent back to the mother. 4. The definite time of-sending back the minors to the mother is not evident from the record. However, the application for the recovery of the amount was moved on April 5, 1989. Objections were, filed on January 24, 1991 and the application was disposed of on March 27, 1991. The learned Magistrate allowed payment of maintenance allowance w.e.f. December 24, 1989. It is not clear from the record as to why the date of December 24 was fixed as the date from which arrears were admissible. The application, in fact, was moved on April 5, 1989 and ordinarily, the arrears should have been granted from the time when he minors were sent back to the mother or at least from the date of the application. Be that as it may, as this aspect of the proposition has not been raised before this Court, the point does not warrant further elaboration. As noticed earlier, father was under duty to maintain his child. Whenever it was satisfied that the father neglected or refused to maintain his child, the Court was empowered to issue a directive against the father to provide maintenance allowance to the child at such rate which the Court deemed fit to fix. In presence of aforesaid obligation of a father to maintain his child, no contract, hatsoever, ade by the mother or other person in whose custody the minors lived, could absolve a father of the responsibility of maintaining the child in the light of direction of the Court. Thus, the contract whereby the father was absolved of his duty to maintain his child, being patently against the interest of minors, was not enforceable. Thus payment in lump sum in terms of agreement made between the parents, annot obstruct the enforceme t of order of the Magistrate. An identical view was expressed in Maung Tin U's case (AIR 1937 Rangoon--246). The relevant observation is:— "The parties cannot contract themselves out of the statutory obligation to maintain children under the Criminal P.C. The mere fact that S.488, sub­ section (1), Criminal P.C. refers to monthly allowances and monthly rates of allowances merely shows that the Court has taken the month as a convenient unit whereby to calculate allowances. It does not show that independently of an order of the Court, as where matter has been referred to arbitration, lump sums cannot be paid for the maintenance of a child. Of course, this lump sum is not a complete answer to future applications by the guardian of the minor. If at any time she finds that she has nothing left of this sum she can apply to the Court for a fresh order for maintenance and there will be no obstacle then to this fresh order in the fact that this lump sum had been paid on a previous occasion". 5. The other point pertains to limitation for enforcement of the order of maintenance allowance. The period of limitation under sub-section (3) of Section 488, Cr.P.C. Proviso-II, is one year from the date on which the amount became due. In the present case, the first application was moved in time. The proceedings were in progress when the compromise was effected and minors were handed over to their father. The second application was moved after the minors were returned to the mother on April 5, 1989. The objections filed by the petitioner do not contain the objection of limitation nor it shows the exact date when the minor.si were sent to or taken back by the mother. In this view of the matter, the objection of limitation finds no favour. There is no force in the petition. It is, therefore, dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C( Karachi ) 240 [DB] [Sukkur Bench] Present: HAZIOUL KHAIRI AND MUHAMMAD ASLAM ARAIN, JJ ALI HASSAN-Petitioner versus S.H.O. KHAIRPUR and others-Respondents. Criminal Misc. No.260 of 1990, decided on 29.1.1992. Contempt of Court Act, 1976 (XLIV of 1976) —-Ss.3 & 4--Orders of High Court-Disobeyance of--Notice of contempt-­ Issuance of-Contemner has made deliberate, wilful and flagrant disobedience of orders of Court from time to time-Hes dmitted his guilt-It will be I public interest that honour of Court be vindicated and even though an nqualified apology is offered by contemner, it may not be accepted as a matter of course without applying mind-Held: Conduct of contemner was such that if he goes unpunished, public confidence in Courts would b impaired and ends of justice would be obstructed-Lenient view taken and contemner sentenced to pay fine of Rs.1000/- and in default, S.I. for tw weeks. [P.242J Mr. Muhammad Daud Baluch and Mr. Imdad All Awan, Advocates for Contemner. Mr. Zawar Hussain Jaffcri, A.A.O. for State. Date of hearing: 29.1.1992. order HaziquI Khairi, J.-Contemner Nazir Hussain Abbasi, Inspector of Police was charged vide notice dated 21.1.1992 for offence under Sections 3 and 4 of Contempt of Court Act punishable under Section 4 thereof. Charge was read over and explained to the contemner who pleaded guilty to the charge and stated that he threw himself at the mercy of the Court and offered unconditional apology. These contempt proceedings arose out of an application under Section 491 Cr.P.C. filed by one Ali Hassan praying for issuance of Rule Nisi for production of Mst. Arbab through SHO hotki. On 28.11.1 WO Rule Nisi was ordered to be issued to CIA Inspector Sukkur who is the contemner herein for production of the : said detenu on 10.12.19v). on which date order for fresh Rule Nisi was made for 19.12.1990 with direction to him to be present in the Court on the said date and to explain as to why Rule Nisi had not been executed and why intimation was not sent to this Court. On 19.12.1990, neither any report was recieved from the contemner nor was he present in the Court. Again order for issuance of fresh Rule Nisi was issued to the said Inspector CIA Sukkur for production of the detenu on 10.1.1991 but the same remained unexecuted. On this date one SIP Nizamuddin made appearance and stated that the contemner had gone to Karachi in connection with treatment of his wife. Direction was however given to the contemner through SIP Nizamuddin to attend the Court on the next date viz 24.1.1991. alongwith his reply to the show cause notice. On this date the contemner neither made appearance nor filed his reply to show cause notice. Accordingly it was further ordered that a show cause notice be issued to him as to why he should not be prosecuted and convicted under Section 174 PPC. On the adjourned date viz. 31.1.1991, the contemner remained absent as the notice could not be served upon him. It was reported by SIP Muhammad Hashim who was present in the Court that day that the contemner was placed under suspension. It may be noted here that our learned brothers-Mukhtar Ahmad Junejo, J and Salahuddin Mirza J observed on this date that the contemner was deliberately avoiding to appear in Court and therefore bailable warrants in sum of Rs.10,000/-be issued against him which could not be served upon him on the next date viz 14.2.1991 when fresh bailable warrants were ordered to be issued for 27.2.1991. On this date again notice was ordered to be issued to the contemner. On 23.4.1991 when the matter was next fixed in the Court our learned brothers Mukhtar Ahmed Junejo J and one of us (Muhammad Aslam Arain, J) observed that "the contemner was avoiding the process of the Court and non-bailable warrants be issued against him through SSP Sukkur". On the next dates i.e. 8.5.1991 and 22.5.1991 the contemner could not be served. He, however, made appearance on 20.11.1991, on which date the order for issuance of non-bailable warrants was re­ called but he was required to show cause as to why he should not be tried and convicted under Sections 3 and 4 of the Contempt of Court Act (XLIV of 1976) for disobeying the orders of the Court dated 10.1.1991, 24.1.1991, 27.2.1991, 23.4.1991 and 8.5.1991. On the next date i.e. 9.12.1991 the contemner made appearance in person and filed his reply. It was observed by our learned brothers, Mukhtar Ahmed Junejo J and Salahuddin Mirza J on the said date that they were not satisfied with the reply of the contemner and therefore he will be tried for offence under Section 3 of Contempt of Court Act punishable under Section 4 of the said Act. It was ordered that a charge shall be framed against him at 2-30 p.m. However when the matter was taken up at 2-30 p.m., the contemner was called absent. The learned Judges of this Court therefore ordered for issuance of nonbailable warrant against him through SSP Sukkur. It was further ordered that another notice be sent to the contemne% to show cause as to why he defied the order of this Court by remaining absent at 2-30 p.m. that day. When the matter came up. on the adjourned date i.e. 12,12.1991, as per record (he contemner was again called absent and was reported to have been admitted in Civil Hospital . Fresh non-bailable warrants were ordered to be'issued against him through SSP Sukkur. On the next date i.e. 24.12.1991, Mr.Samiullah Qureshi advocate made appearance on behalf of the contemner and filed his affidavit supported by a medical certificate that the contemner was admitted in Civil Hospital Larkana from 19.12.1991 to 23.12.1991 and that he had been advised to take rest till 31.12.1991. In the circumstances of the case the process was suspended till 31.12.1991 and the matter was adjourned to 13.1.1992 for fresh orders. On this date, Mr. Imdad Ali Awan Advocate undertook to file power on behalf of the contemner who was also present in the Court and requested for adjournment which was granted. On the next date i.e. 21.1.1992, the said charge was read over and explained to the contemner who pleaded guilty to the charge and offered unconditional apolgy to the Court. From the facts enumerated above we are of the opinion that the contemner had made deliberate, wilful and flagrant disobedience of the orders of the Court from time to time. We would refrain from taking notice of his reply to show cause dated 26.11.1991 issued by the Court, which in view of admission of his guilt fades into insignificance. In a situation such as this it will be in the public interest that the honour of the Court be vindicated and even though an unqualified apology is offered by the contemner, it may not be accepted by the Court as a matter of A course without applying its mind. We are accordingly of the view that the conduct of the contemner was such that if he goes unpunished public confidence in Courts would likely to be impaired and the ends of justice would likely to be obstructed. However, in view of the fact that immediately on being charged, the contemner had admitted his guilt, we are inclined co take a lenient view and convict and sentence him to pay a fine in the sum of Rs.1,000/- only and in default to undergo S.I. for two weeks. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 242 [Sukkur Bench] Present: MUKIITAR A. JUNRJO, J PIRAL alias PIR BUX--Petitioner versus THE STATE and another-Respondents Criminal Misc. No.4 oi 1992, dismissed on 7.1.1992. Criminal Procedure Code, 1898 (V of 1898)- -—S.561-A read with Section 439-Order of Additional Sessions Judge- Ouashment of~Prayer for-Present application appears to have been moved under Section 561-A of Cr.P.C. but it is directed against an order which could be challenged under Section 439 of Cr.P.C. before Federal Shariat Court-­ Held: Present petition which is in essence a revision petition under Section 439 of Cr.P.C. is not maintainable in High Court for want of jurisdiction and is not maintainable even under Section 561-A of Cr.P.C.— Petition dismissed. [P.244]A&B 1991SCMR599re/. PLJ 1978 Cr.C.( Quetta ) 421 cited. Mr. Abdul Hameed Dogar, Advocate for Petitioner. Date of hearing: 7.1.1992. order It has been argued that under the impugned order dated 28.10.1991, the trial court has directed deposit of Rs.25.000/- and if such deposit is not made then Writ of attachment would be issued and hence there is urgency. Granted. 2. This application has been moved under Section 561-A of Cr.P.C. challenging an order dated 28.10.1991 passed by the Second Additional Sessions Judge, Khairpur in Sessions case No.258/87 where the accused are facing trial for the offence punishable under Section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance and under Section 13D of Arms Ordinance. In case the applicant was aggrieved with the impugned order dated 28.10.1991 he should have moved criminal revision application under Section 439 of Cr.P.C. Learned counsel for the applicant conceded that had he moved revision application under Section 435/439 Cr.P.C. against said order, the same would have been filed in the Federal Shariat Court in view of Article 203-DD and 203-G of the Constitution of Pakistan. He argued that even in a case which is being tried for an offence under the Hudood Ordinance this Court can exercise its inherent jurisdiction under Section 561-A of Cr.P.C. On this point learned counsel cited the cases of:— (/) Liaquat All etc. v. State etc. (NLR 1989 SD 866). (U) Haji Muhammad Axiom Khan v. Muhammad Aslam and another (1990 sc'mr In respect of the order being not in accordance with law, learned counsel cited the case of Syed Yakub Shah v. State (PLJ 1978 Cr.C.(Quetta) 421). In the case of Haji Muhammad Aslam KJian (1990 SCMR 211) it was held that Article 203-DD of the Constitution deals with revisional powers of the Federal Shariat Court in Hudood cases, but evidently does not bar the inherent jurisdiction of the High Court under Section 561-A of Cr.P.C. pending against any one in a Court of criminal jurisdiction. In the cited case the criminal proceedings were quashed under Section 561-A of Cr.P.C. In said case there was no question of quashment of an order. In the case of liaquat Ali (NLR 1989 SD 866) the view taken was that the ouster of jurisdiction contemplated by Article 203-G of the Constitution of Pakistan extends only to exercise of appellate or revisional power in Hudood cases, which is made to fall exclusively within the jurisdiclional domain of Federal Shariat Court, to exclusion of exercise of appellate or revisional power enjoyed by the High Court under the Criminal Procedure Code and it does not extend to exercise of inherent jurisdiction by a High Court under Section 561-A of Cr.P.C. It was also observed that since Federal Shariat Court was not invested with inherent jurisdiction under Section 561-A of Cr.P.C. hence jurisdiction of High Court to entertain quashment petition under Section 561-A Cr.P.C. in Hudood cases was not excluded by Article 203-G. Here again it was the case of quashment of proceedings. Present application appears to have been moved under Section 561-A of Cr.P.C. but it is directed against an order which could be challenged before the proper forum under Section 439 of Cr.P.C, Since an application under Section 439 of Cr.P.C. could be filed only in the Federal Shariat Court, hence learned counsel has chosen to move present application under Section 561-A of Cr.P.C. to achieve the result, which he could have achieved by moving an application under Section 439 of Cr.P.C. The provisions contained in Section 561-A of Cr.P.C. cannot be invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or in any other law, as observed in the case of Allied Bank of Pakistan Ltd, v. Khalid Farooq (1991 SCMR 599). In the same case it was held that power under Section 561-A of the Criminal Procedure Code can only be invoked in extra ordinary cases where no other procedure or remedy is available or is provided by Criminal Procedure Code. In view of the observations made in the case of Allied Bank of Pakistan Ltd. mentioned above, I hold that present petition which is in essence a revision B application under Section 439 of Cr.P.C. is not maintainable in this Court for want of jurisdiction and is not maintainable even under Section 561-A of Cr.P.C. and (he same is, therefore, dismissed in limine. 2. This has become infructuous and the same stands dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 244 [Sukkur Bench] Present: ML'KHTAR AHMAD JANEJO, J ARSALA-Petitioner versus THE STATE and another—Respondents Criminal Misc. No.502 of 1991, accepted on 9.1.1992. Criminal Procedure Code, 1898 (V of 1898)— —S.561-A read wilh Section 110—Being a scoundrel indulging in commission and abetment of thefts, and selling and purchasing stolen property-Allegations of-Proceedings under Section 110 of Cr.P.C.- uashment of-Prayer for- There are general and routine allegations against petitioner lacking in particulars and instances-Names of criminals visiting him have not been given-Allegation that he was illegally occupying plots, does not come within ambit of Section 110 Cr.P.C.-Held: Mere pendency of one or more criminal cases against a person would not be sufficient for taking action under Section 110 of Cr.P.C.-Proceedings quashed. [Pp.245&246]A&B 1978 P Cr. LJ 161, AIR 1939 Sindh 261, PLD 1971 Kar. 473,1981P Cr. LJ 373, 1983 P Cr. U 205, PLD 1976 Kar. 928,1982 P Cr. LJ 750 and 1986 P Cr. LJ 1230 rel. Mr. Muhammad Murad Chachar, Advocate for Petitioner. Mr. ZawarHussain Jafferi, AA.G. for State. Date of hearing: 24.12.1991. judgment Applicant Arsala has filed this application for quashment of proceedings pending against him in Court of the S.D.M. Kandkot under Section 110 of Cr.P.C. According to the police report applicant Arsala is scoundrel indulging in commission and abetment of the thefts. He has been committing and abetting commission of offences, with deadly weapons jointly with other criminals and thieves who visit him from distant places. He has been selling and purchasing stolen property. Applicant is also alleged to be encroaching and abetting encroachment on urban plots. He is also teasing the ladies at the road crossings. On receiving the police report, the S.D.M. proceeded against the applicant and remanded him«to custody. Hence this application. Mr. Muhammad Murad Chachar, learned counsel for the applicant argued that there were general and vague allegations against the applicant, with no instances and particulars about the acts allegedly committed by the applicant. It was further argued that all the witnesses cited against the applicant are police officers and that the applicant is not shown to be accused either in a theft-case or in a case about disposal of stolen property and that the only case pending against the applicant as per police report, was one under Arms Act. Mr. Zawar Hussain Jafferi, AAG for State did not oppose the application. ; He conceded that pendency of onecase under Arms Ordinance and another case under Sindh Crimes Control Act, with similar allegations, would not make the applicant a person reasonably believed to be a habitual offender. There are general and routine allegations against the applicant lacking in particulars and instances. Names of the criminals visiting the applicant have not been given. It has not been mentioned as to whom the applicant restored the stolen property on payment of money. Allegation that the applicant was illegally {occupying the plots, does not come within the ambit of Section 110 of Cr.P.C. In the case of Miral v. State (1978 P.Cr.L.J. 161), it was held that mere vague and general allegations against a person that he is a habitual robber, house breaker, thief, receiver of stolen property, taker of bluing, harbourer of criminals etc. would not be sufficient for initiating proceedings against such person unless such general allegations are lacked by particular instances or details and particulars of the criminal habit or habits alleged against him. In the case of Emperor v. All Slier Dost Muhammad (AIR 1939 Sindh 261) it was held that a mere repetition of the clauses .of Section 110 Cr.P.C. does not satisfy the provisions of Section 112 of Cr.P.C. In the case of Qasim and others v. State (PLD 1971 Kar. 473), an order under Section 118 of Cr.P.C. was set aside because there were vague allegations and details in respect of the allegations were lacking and nothing incriminating was secured from the persons facing proceedings under Section 110 Cr.P.C. Proceedings were also quashed in the cases of Muhammad Saleh v. State (1981 P.Cr.LJ. 373) and Imdad KJian v. State (1983 P.Cr.LJ. 205), where there were general and vague allegations in the police report against the persons proceeded against. All the witnesses cited against the applicant are police officers. In the case of State v. Hassad (PLD 1976 Kar. 928), it was held that it would not ordinarily be sufficient to examine merely the Police Officers and their subordinates to prove the general reputation of a person, as the Court can not accept the evidence of police officers alone unless they had special means to know the reputation in the course of their official duties. In the case of All Sher v. SDM Miipur Mathelo and another (1982 P.Cr.LJ. 750) it was held that evidence of general reputation in a case under Section 110 Cr.P.C. to come from persons amongst whom the person proceeded against is living or from the persons living in the neighbourhood and vague and general allegations of police officers alone were not sufficient to initiate proceedings under Section 110 of Cr.P.C.The applicant is shown to be accused in one case of Arms Ordinance. Mere pendency of one or more criminal cases against a person would not be sufficient for taking action under Section 110 Cr.P.C., as held in the case of Liiqman v. State (1986 P.Cr.LJ. 1230). The allegations against the applicant are identical with allegations against him in the case under Section 14 of Sindh Crimes Control Act. For the foregoing reasons, the application for quashment is accepted and proceedings pending against the applicant in Court of the S.D.M. Kandkot under Section 110 Cr.P.C. are hereby quashed. The applicant be released from jail if not requircd-in any other case. These are reasons for my short order date 24.12.1991 in identical terms. (MBC) (Approved for reporting) Proceedings quashed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 247 Present: qaiser ahmed hamidi, J MUBARAK HUSSAIN SIDDIQUI and anothcr-Petitioners versus SAJJAD HASSAN KHAN and another-Respondents Criminal Misc. Application No. 462 of 1991, accepted on 24.2.1992 (approved for reporting on 18.3.1992). (i) Co-operative Societies Act, 1925 (VII of 1925)-- —-Ss. 60 & 63 (3) read with Criminal Procedure Code, 1898, Section 561-A-Cooperative Housing Society-Complaint under Sections 420, 465, 468 and 471 PPC against Chairman and Secretary of Society-Quashment of-Prayer for-- Contention that previous sanction of Registrar was necessary—Held: Combined reading of Sections 60 and 63 (3) of Act makes it clear that previous sanction of Registrar is needed for prosecution of' offences under this Act, viz offences classified in Section 60 and not in respect of other offences. [P.250JB 1990 MLD 1060 rel. (ii) Co-operative Societies Act, 1925 (VII of 1925)-- —-S. 65-B read with Criminal Procedure Code, 1898, Section 561-A-Cooperative Housing Society—Complaint under Sections 420, 465, 468 and 471 PPC against Chairman and Secretary of Society- uashment of-Prayer for- Applicants being Chairman and Secretary of Society, are public servants within meaning of Section 21 of PPC-They can only be prosecuted before a Special Judge, Anti-corruption in espect of offences specified in Schedule-Held: All offences alleged against applicants being scheduled offences, cognizance taken by A.C.M. Court No. X (East) Karachi , was without jurisdiction and abuse of process of law-Proceedings Quashed. [Pp.251&252]C,D&E PLD 1988 Lahore 802 & 1990 MLD 1060 rel (iii) Jurisdiction- —Cooperative Housing Society—Complaint under sections 420, 465, 468 and 471 PPC against Chairman and Secretary of Society-Quashment of-Prayer for--Proyisions of Section 70-A of Co-operative ocieties ct, 1925 operate to oust jurisdiction of all courts to entertain or adjudicate upon any matter which Provincial Government, other authorities and forums indicated therein, are empowered to dispose of or to etermine by or under that Act or rules or byelaws framed thereunder—Held: No such situation exists in this case (to oust jurisdiction of trial court). [P.249JA Mr. Hablbiillah Jatoi, Advocate for applicants. M/S Ghulam Sarwar Chohan and Mahfooz Yar KJian, Advocates for Respondent No. 1. Mr. S.Z.A. Qureshi, Advocate for A.G. for Respondent No. 2. Date of hearing: 12.2.1992. judgment The facts bearing on the questions of law involved in this application filed under section 561-A, Cr.P.C. may be briefly stated. The respondent No. 1 claims to be a member of Rizwan Co-operative Housing ociety Ltd., Karachi, duly registered under the Co-operative Societies Act, 1925, who after securing the membership of the said society applied for the allotment of plot of land measuring 240 Sq. yards on the rescribed form and his application in that behalf was accepted and a sum of Rs. 9,600/-was paid by him in two instalments. On 8.12.1980 necessary allotment order was issued to respondent No. . It is alleged that the applicants entered into a criminal conspiracy and caused the removal not only of respondent No. 1, but of so many other legal fhembers and original allottees of the society by ommitting forgeries and manipulations in the record of the society. Accordingly the respondent No. 1 filed a direct complaint against the applicants for the off; net under section 420- 465-468-471 PPC, which was rought on record by A.C.M. Court No. X (East) Karachi , who issued warrants of arrest against them. The applicants who appeared before A.C.M. Court No. X (East) Karachi , made an application under ection 249-A, Cr.P.C. seeking their acquittal for want of jurisdiction, but without success. Itis in these circumstances that the applicants have invoked the inherent jurisdiction of this Court with the rayer that the proceedings pending against them in respect of direct complaint filed by respondent No. 1 in the Court of A.C.M. No. X, (East) Karachi , for the offence under section 420-465-468-471 PPC may e uashed. 2. I have heard Mr. Habibullah Jatoi, learned counsel for applicants, Mr. Ghulam Sarwar Chohan, learned counsel for respondent No. 1 and Mr. S.Z.A. Qureshi, learned counsel for State. 3. The learned counsel for the applicant has confined his arguments to three contentions, viz, that, (/) the jurisdiction of all the Courts is barred under Section 70-A of the Co­ operative Societies Act, 1925, and consequently the cognizance taken against applicants by learned A.C.M. was void ab-initio; (it) in view of the bar contained in sub-section (3) of Section 63 of the Co­ operative Societies Act, 1925, no prosecution under this Act shall be lodged without the previous sanction of the Registrar, which shall not be given except after serving a notice on the party concerned and giving him a reasonable opportunity of being heard; and, (Hi) the applicants being the public servants within the meaning of section 21 PPC, the learned A.C.M. had no jurisdiction to try this case, in view of the provisions contained in Section 65-B of the Co-operative Societies Act, 1925. 5. On the first question about the ouster of jurisdiction clause (a) of sub­ section (1) of Section 70-A of the Co-operative Societies Act, 1925, is self explanatory, which for the sake of convenience is reproduced below: - "(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act- (a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a co-operative bank or any other person is empowered by or under this Act or the rules or bye-laws framed thereunder, to dispose of or to determine." 6. It is thus apparent that this provision of law operates to oust the jurisdiction of all Courts to entertain or adjudicate upon any matter which the Provincial Government, other uthorities and forums indicated therein, are empowered to dispose of or to determine, by or under the Co-operative Societies Act, 1925, or the rules or bye-laws framed thereunder. No such situation exists n this case and the learned counsel for applicants has very little to say on this point. 7. The second contention turns entirely on the construction of sub-section (3) of Section 63 of the Co-operative Societies Act, 1925, which lay downs:- "No prosecution under this Act shall be lodged without the previous sanction of the Registrar, which shall not be given except after serving a noti e on the party concerned and giving him a reasonable opportunity of being heard." The cases of Klianzada Hidayat All KJian v. Mazhar AH Klian and others, reported in PL.T 1985 Cr.C. ( Lahore ) 310, and Abdul Sattar. Tlie State, reported in 1987 P.Cr.LJ. 344, certainly appear to lend some colour to this contention, but in both these cases the provisions of Section 60 of the Co-operative Societies Act, 1925, were over-looked, which classifies the offences under the above Act in the following words:- "60. Offences: It shall be an offence under this Act if- (a) Default by a society, officer or member, a society with a working capital of Rs. 5fl,000/-or more an officer or member thereof fails without any reasonable excuse to give any notice, send any return or document, do or allow to be done anything which the society, officer or member is by this Act or rules made thereunder required to give, send, do or allow to be done; or (b) Wilful neglect or default by a society, etc., a society or an officer or a member thereof wilfully neglects or refuses to do any act or to furnish any information required for the purposes of this Act or rules made thereunder by the Registrar or other person duly authorised by him in writing in this behalf; or (c) Wilful furnishing of false information, a society or an officer or member thereof wilfully makes a false return or furnishes false information; or (d) Disobedience of summons, requisition order, any person wilfully or without any reasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of this Act or rules made thereunder or does not furnish any information lawfully required from him by a person authorized to do so under the provisions of this Act or rules made thereunder." 8. Reading Section 60 together with sub-section (3) of Section 63 of the Co­ operative Societies Act, 1925, it is apparent that" the previous sanction of the Registrar" referred to in sub-section (3) of Section 63 is needed for the prosecution of offences under this Act, viz, offences as classified under section 60, reproduced above and under section 61 and 62 of the Co-operative Societies Act, 1925, and not in respect of other offences. This view gets support from a recent decision of Division Bench of this Court dated 9.8.1989 in the case of Sindlii Co­ operative Housing Society Ltd. Sukkur v. Tlie uperintendent of Police, Anti Corruption Establishment, Sukkur and another (C.PNO. 16% of 1987), wherein it was held:- "The above Section 63 is provided in Chapter 9 of the Act which has the caption" Offences". Section 60, 61 and 62 provide the offences under the Act. If we were to read Section 63 with the above Sections pjeceding and if we take into consideration the words "No prosecution under this Act" used in sub-section (3) and also the expression in sub-section (1) "Any offences under this Act, "it becomes evident that the sanction is required only in respect of those offences before lodging the prosecution, which are provided for in the Act. The above two judgments relied upon by the learned counsel for the petitioners have not dilated upon this aspect. There is no discussion as to the effect of the above Section 60 to Section 62 and the words "under this Act" used in sub-section (1) and sub-section (3) of Section 63." 9. A case which is on all fours with the present case, is Hamdard Cooperative Society v. Government of Sindh and others, reported in 1990 M.L.D. 1060, decided by a Division Bench of this Court, of which I was also a member, where it was held thaf.- "Thc bar contained in sub-section (3) of Section 63 of the Co-operative Societies Act has no bearing on the present case as it shows that words "prosecution under this Act" are the pertinent words. This section has to be read with Section 60 of the same Act which in clauses (a) to (d) defines the "offences under the Act." 10. Having regard to the above legal position, I am of the view that thet_ contention of learned counsel for applicants about the previous sanction of thel- Registrar is devoid of any force. 11. It is the third contention urged by Mr. Jatoi, learned counsel for applicants that has great force. Section 65-B of the Co-operative Societies Act, 1925, which was added by Co-operative Societies (Second Amendment) Ordinance, 1966, provided as follows:- "Officers of societies to be public sewants: Every officer of a Society, including Co-operative Bank, shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860 (XLV of I860)." The word "Officer" as defined by Section 3 (d) of the Co-operative Societies Act, 1925, includes a Chairman, Secretary, Treasurer, Member of Committee or other person empowered under the rules or under the bye-laws of a society to give directions in regard to the business of such society. Admittedly Mubarak Hussain Siddiqui, the applicant No. 1 is the Chairman and Saadat Ali Ashraf the applicant No. 2, is the Secretary of Rizwan Co-operative Housing Society, Karachi. They are, therefore, officers within the meanings of Section 65-B of the Co-operative Societies Act, 1925, and are thus public servants. The allegations made against them are in respect of the working of the society and they are said to have abused their official position. The applicants being the public servants within the meanings of Section 21 PPC can only be prosecuted before a Special Judge, Anti- Corruption in respect of the offences specified in the schedule. All the offences for which the applicants are prosecuted are specified in the schedule and consequently the cognizance taken by A.C.M. Court No. X (East) Karachi , against the applicants for a scheduled offence was without jurisdiction. The cases reported as Tlie State v. Abdul Raheem Klian and others (PLD 1988 Lahore 802), and Hamdard Cooperative Society v. Government of Sindli and others (1990 M.L.D. 1060), lend support to this view. In the former citation a learned Single Judge of Lahore High Court observed as follows:-"Viewed in the light of the aforementioned principles and the dictionary meaning of the word 'officer', it is quite evident that the respondents Nos. 3 to 5 who at the relevant time held the posts of the Accounts Clerks and Cashier in the Co-operative Bank fell within the ordinary meaning of the term 'officer' and can, therefore, be considered as officers for the purposes of Section 65-B by virtue whereof they are deemed to be public servants within the meaning of Section 21, PPC. That being so, case was triable .exclusively by a Special Judge appointed under the Criminal LawAmendment Act, 1958 as most of the offences for which the respondents were challaned are specified in the schedule. The Magistrate before whom the case is now pending was not competent to take cognizance thereof. Upshot of the above discussion is that the cognizance taken and the proceedings held by the trial Magistrate in the case against the respondents are declared to be without lawful authority and of no legal effect and it is directed that the learned trial Magistrate shall forthwith transmit the said case pending before him to the Special Judge, Anti- Corruption (Provincial) having territorial jurisdiction in the matter who shah 1 proceed to decide it according to law." 12. In the latter citation a Division Bench of this Court considered this aspect of the case and observed as follows:- "We have given anxious consideration to the submissions of the learned counsel. It is obvious from the plain reading of Section 65-B of the Co­operative Societies Act that the officers of the society are public servants and therefore any act of corruption or misappropriation by them would fall within the ambit of Section 5 of the Prevention of Corruption Act, 1947 (Act-II of 1947)." 13. This being so, the continuation of proceedings against applicants in the Court of A.C.M. No. X (East) Karachi, in respect of a scheduled offence is an abuse of the process of law. The application made under section 561-A, Cr.P.C. is, therefore, accepted and the proceedings pending against the applicants in the said Court are hereby quashed. 14. This Order will, However, not operate as a bar in respect of the prosecution of applicants, if any, before the Court of competent jurisdiction. (MBC) (Approved for reporting) Proceedings quashed

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 252 Present: QAISER AHMED HAMIDI, J NOORULLAH KAZMI-Applicant versus THE STATE and another-Respondents Criminal Revision No. 34 of 1991, accepted on 9.3.1992 Pakistan Essential Services (Maintenance) Act, 1952 (LHI of 1952)-- —-S. 5 (1) (c) (/) read with Section 7 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, S.O. 12-- Employce of Essential Services-Termination of service of--Conviction of employer under Section 5 of Act-Challenge to—Contention that communication of a "reasonable excuse" to employee whose services are terminated, is necessary otherwise provisions f Act would be rendered futile-Admittedly respondent No. 2 was a probationer, but provisions of Section 5 (1) (c) (/) of Act will be attracted even if employee is a probatioaer-Afenj rea or a guilty mind is an ssential ingredient of a criminal offence-Held: Section 5 read with preamble of Act leaves no doubt that object of Act is only to punish certain acts and omissions which may adversely effect maintenance of ssential services and not to satisfy feeling of an aggrieved employee-Held further: Applicant was wrongly convicted for offence under Section 5 (1) (c) (A of Act, sendees and not to satisfy feeling of an ggrieved employee-Held further Applicant was wrongly convicted for offence under Section 5 (1) (c) (/) of Act, 1952-Convioion and sentence set aside. [Pp.257,258&259]A,B,C,D&E Mr. Rustam I.E. Kekobad, Advocate for Applicant. Mr. Shaukat H. Zubedi, A.A.G. for State. Mr. Obaldur Rehman, Advocate for Respondent No. 2. Date of hearing: 11.2.1992. judgment Applicant Noorullah Kazmi, Administrative and Public Relations Manager, Pakistan Petroleum Limited, Tvas tried alongwith Masrur Ahmad, Iftikharuddin Ahmad and S.M. Raza by Assistant Commissioner and S.D.M. Civil Lines, Karachi, for the offence under section 7 (3) of the Pakistan Essential Services (Maintenance) Act, 1952, who vide judgment dated 4.10.1990, found the applicant guilty for the said offence and sentenced him till rising of the Court and to pay a fine of Rs. 500/-(Rs. five hundred) or in default to suffer S.I for seven days. Coaccused Masrur Ahmad, Iftikharuddin Ahmad and S.M. Raza were, however, acquitted by the same judgment. The applicant preferred an appeal under section 408 Cr.P.C, before the Sessions Judge (South) Karachi, being Cr. Appeal No. 35 of 1990, which too was dismissed on 7.4.1991. It is in these circumstances that the applicant has invoked the revisional Jurisdiction of this Court. 2. On 8.12.1986, Nusrat Habib, the respondent No. 2 filed an application. before Deputy Commissioner/District Magistrate (South) Karachi , under section 7 (3), read with Section 5 (1) (c) (1) of the Pakistan Essential Services (Maintenance) Act, 1952, alleging as under:- (/) That by a letter of appointment dated 30.12.1985 he was appointed as Planning and Progress Engineer in the organization of Pakistan Petroleum Ltd. (//) That the appointment was on a probation of one year. (//'/) That the appointment could be terminated with one month's notice on either side without assigning any reason except for misconduct during the period of probation; and after confirmation on three months' notice by the Pakistan Petroleum Ltd. (iv) That his services were terminated on 4.11.1986 during the period of probation, but the reasonable excuse for termination was not conveyed to him as required under section 5 (1) (c) (/) of the Pakistan Essential Services (Maintenance) Act, 1952. (v) That the Executives responsible for the management, namely, the applicant and co-accused Masrur Ahmad Iftikharuddin Ahmad and S.M. Raza (since acquitted), were liable for an offence under section 7 (2) of the Pakistan Essential Services (Maintenance) Act, 1952. 3. The respondent No. 2, therefore, prayed for an action to be taken against the above accused in accordance with law. The Deputy Commissioner/District Magistrate (South) Karachi, recorded the statement of respondent No. 2 and vide order dated 10.2.1987 directed that a complaint be filed against the applicant and co-accused Masrur Ahmad, Iftikharuddin Ahmad and S.M. Raza (since acquitted) in the Court of Assistant Commissioner and S.D.M. Civil Lines, Karachi . Accordingly such complaint was filed, which was brought on record and process was issued against ihe accused under section 204 Cr.P.C. The case proceeded before learned S.D.M., who convicted the applicant alone. Being aggrieved by this judgment dated 4.10.1990, the applicant preferred an appeal before learned Sessions Judge (South) arachi, But without success. 4. I have heard Mr. Rustam J.E. Kekobad, learned counsel for applicant, Mr. Obaidur Rahman, learned counsel for respondent No. 2, and Mr. Shaukat H. Zubedi, learned A.A.G. for State. 5. The learned counsel for applicant has referred to several points, but eventually confined his arguments in the main to the following contentions: - (/) That in essence Section 5 (1) (c) (/) of the Pakistan Essential Services . (Maintenance) Act, 1952, provided bonafidc satisfaction of the Employ r, as to existence of "reasonable excuse" to terminate the ervices of their employees, and the Courts below have erred in holding that it was incumbent upon the applicant to discolse to respondent No. 2, the reasonable cause or excuse for the termination of his services. (//) That the respondent No. 2, being a probationer was on trial with Pakistan Petroleum Lid, and he being an officer and not a workman, for all intents and purposes was governed by the terms of the contract of service dated 30.12.1985. (///) That mens rea is an essential ingredient of a criminal offence which was found lacking in this case and on the face of such finding the learned Magistrate was not justified in convicting the applicant. 6. Before I examine the above contentions raised on behalf of the applicant, il is necessary to examine the relevant provisions of the Pakistan Essential Services (Maintenance) Act, 1952. This Act, as its preamble shows, was enacted to make provisions for the maintenance of certain essential services. The preamble of a statute is in fact a key to its understanding and may legitimately be consulted for seeking assistance to find out the true and intended scope of such enactment. It will, therefore, be seen that the object and spirit of the Pakistan Essential Services (Maintenance) Act, 1952, is the maintenance of essential services in "public interest", and not to satisfy the feelings of an aggrieved employee. Section 3 of the Pakistan Essential Services (Maintenance) Act, 1952, speaks of employments to which this Act applies. Admittedly the above Act applies to the organizations of Pakistan Petroleum Ltd., but this Act, being a special statute has to be declared so only if the Federal Government is of the opinion that such employment or class of employment is essential: (a) for securing the defence or the security of Pakistan or any part thereof, or (ft) for the maintenance of such supplies or services as relate to any of the matters with respect to which the Central Legislature has power to make laws and are essential to the life of the community. 7. Section 5 of the Pakistan Essential Services (Maintenance) Act, 1952, deals with offences in the following terms:- Offences.-(l) Any person engaged in any employment or class of employment to which this Act applies who— (a) disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order, or (b) without reasonable excuse abandons such employment or absents himself from work or refuses to work or to continue to work, whether or not acting in combination with or under a common understanding of, any other person engaged in such employment, or (c) departs from any area specified in an order under sub-section (1) of Section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies, who without reasonable excuse— (/) discontinues the employment of such persons, or («') by closing an establishment in which such person is engaged, causes the discontinuance of his employment, Section 5(l)(c)(i) of the Pakistan Essential Services (Maintenance) Act, 1952, without reading in it what the legislature did not intend to include. If the intention of legislature was to convey such excuse to the employee then the wording of the relevant provision should have been at par with Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Clause (3) of Standing Order 12 is self explanatory which reads as follows:- "The 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 " 11. Mr. Obaid-ur-Rahman 'earned counsel for respondent No.2 has contended with force that the communication of a 'reasonable excuse' to the employee is necessary, otherwise it would reduce the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, to a dead letter, which, in turn would mean that it is being rendered futile, and consequently every employer would cook up reasons to make out a case of "reasonable excuse". The Courts below also came to the same conclusion and they felt themselves bound by the decision of a Division Bench of this Court in the ase of Ghulam Ahmad v. Sindh Labour Appellate Tribunal and 2 others, reported in 1990 P.L.C. (C.S) 385, wherein Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was examined and the following observations were made:-- "The statement that service is no longer required, in our view cannot be a reason for tcrmin: ting the service because it calls for further inquiry that what are the reasons that the service is no longer required. This cannot be a ground or reason for termination. It is merely the outcome of the undisclosed reasons which seem to be disclosed in the evidence. The reasons for termination should be clear, unambiguous, and understandable. Mere statement that service is no longer required is an expression of desire, whim and caprice which is absolutely without any reason or ground. These words do not give any reason except that this is what the employer wants to do. The law provides and imposes restrictions on such unfettered power of the employer and therefore, such a statement will not be in accordance with law". 12. The Courts below, however, erred in applying the principle laid down in the above authority to the facts of the present case, as it was a case under Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, whereunder the termination of services of a workman is to be effected by an order in writing giving explicit reasons for the action taken. 13. Admittedly the respondent No.2 was a probationer. The probationer is an employee who remains on trial until within specified period his employer considers him fit to be retained permanently or if his work and conduct are not found satisfactory to dispense with his services. This question is, however, not free from difficulty as Section 7-A of the Pakistan Essential Services (Maintenance) Act, 1952, provides in clear terms that the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969, or any other law. Therefore, the provisions of Section 5(l)(c)(i) of the Pakistan Essential Services (Maintenance) Act, 1952, will be attracted even if the employee is a probationer. However, for the reasons mentioned above, I am satisfied that the management of Pakistan Petroleum Ltd., had reasonable excuse to discontinue the employment of respondent No.2 and they were not obliged to explicitly state the reason for the action in the manner as provided in Standing Order 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. 14. As regards the third contention, it is almost settled that in criminal cases the onus is always on the prosecution to prove beyond all reasonable doubt the guilt of the accused. The mens rea or a guilty mind is an essential ingredient of a criminal offence and, it is a sound rule of construction to read this element in the statutory provisions unless the statute expressly or by necessary implications excluded it. If authorities are needed on this point, the case of Pakistan and others v. Hard Caste Wand (Pakistan) Ltd. Karachi, reported in PLD 1967 S.C. 1, Jchanara Klwtoon and others v. Tlie State, reported in LD 967 Dacca 704, and Syed Abul Aala Maududi v. Tlie State Bank of Pakistan and another, reported in PLD 1969 Lahore 908, may be cited with advantage. In the first cited case Hamood-ur-Rchman, J. observed as follows:- "Evcn in a case of statutory offence the presumption is that mens rea is an essential ingredient unless the Statute creating the offence by express terms or by necessary implications rules it out. The mere omission of the word 'knowingly' or 'intentionally' is not sufficient to rebut the presumption for all that such words do is to say expressly that is normally implied". 15. The crux of the matter is, whether the learned S.D.M. could convict the applicant on a criminal charge after holding that he did so without any malice in the following words: -- "As far as the criminal liability of respondent No.2 Noorullah Kazmi the Court feels that his act of signing the termination letter of Mr. Nusrat Habib was purely an Executive Act .which was done without any malice towards Mr. Nusrat Habib. Because after going through all the arguments, documents/Exhibits produced before the Court, it is still very difficult to conclude whether there was an element of malice or bias against the complainant/applicant Nusrat Habib. As I feel that in order to guage malice, the element of. professional jealousy too cannot be ruled out. It may have been such a case which might have resulted in a strained relationship between Nusrat Habib and the management. But in my opinion the prosecution has been unable to come out with a plausible arguments/facts clearly envisaging the application of malice present. The only offence which in my opinion appears to have been committed by the accused No.2 is that (of) a negligence of over looking the Pakistan Essential Services (Maintenance) Act 1952". In my view the answer to this query should be in negative. While interpreting the penal enactments, the general rule is that these should be interpreted in an atmosphere free from all bias. In the case of High Court Bar Association Lahore, on behalf of Chandi Ram v. Emperor, reported in AIR 1941 Lahore 301, it was held that a penal provision of law must be strictly construed and no act should be penalized unless it clearly falls within the ambit of penal provision. Again in the case of Bhat'Lal Chand and others v. Emperor, reported in AIR 1942 Lahore 253, it was observed that it is one of the canons of the construction of a penal statute that where two meanings are possible, then that which is more favourable to the subject is to be taken. 16. Let me repeat again that Section 5 of the Pakistan Essential Services (Maintenance) Act, 1952, when read together with the preamble thereof leaves no doubt that the object of the Act is only to punish certain acts and omissions which may adversely effect the maintenance of essential services and not to satisfy the feeling of an aggrieved employee who had other remedies available to him under the ordinary civil law. 17. After giving the arguments addressed at the bar my anxious consideration, I am of the view that the applicant was wrongly convicted for the offence under Section 5(l)(c)(/) of the Pakistan Essential Services (Maintenance) Act, 1952, and his conviction and sentence are, therefore, set aside. The fine, if paid by^the applicant be returned to him. 18. In the result the impugned judgments are set-aside and the revision application is allowed. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C Karachi 264 Present: QAISER AHMAD HAMIDI, J MUHAMMAD ANWAR-Pctitioner versus THE STATE and another—Respondents Criminal Misc. Application No.559 of 1991, accepted on 25.5.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A read with Pakistan Penal Code, 1860, Section 95 and Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Section 14-- Stealing of old doors and windows-Offence of-Quashment of proceedings-­ Prayer for-Where on face of record, allegations appear to be false which are made with a view to harass accused, High Court would quash proceedings to prevent abuse of process of Court-Contention that no person possessed of his senses would commit theft of moth eaten doors valued at Rs.50/- only—Held: Section 95 PPC provides that even intentional causing of harm specified in that section is excused because of its triviality—Proceedings quashed. [Pp.267&268]A,B&C Alhaj Ameer Ahmad KJwn, Advocate for Applicant. Mr. Azizur Rehman Shaikh, Advocate for A.G. Respondent No.2 in person. Date of hearing: 11.5.1992. judgment For a proper appreciation of the points involved in the proceedings which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some detail. 2. On 18.2.1989 one Ch. Allah Ditta lodged FIR against applicant Muhammad Anwar, respondent No.2 Shareef and co-accused Altaf Kalia in respect of theft of two old wooden doors lying on the roof of his shops, which was registered as Crime No.77 of 1989, Mahmoodabad P.S., under Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The facts of the case as disclosed in the charge-sheet submitted against the applicant and others run as follows:-- "The brief facts of the case are that on 18.2.1989 at about 21.45 hours complainant reported at the police station orally that he was living at the above address (H.No.292, Allama Iqbal Colony, Karachi), and has two shops in Gali No.5, Azam Basti, Karachi. On 24.9.1988 he after taking out two windows/doors of his shops had kept them on the roof as they were replaced by iron shutters. On 6.2.1989 he noticed that these windows/doors were missing. On inquiry Riaz Masih and Bashir informed him that these windows/doors were removed by the present applicant and his two associates, namely, Shareef, the respondent No.2 and absconding accused Altaf Kalia. Shahsawar A.S.I. investigated the case and recovered the stolen property from the possession of the applicant and Shareef, the respondent No.2. The evidence collected by Shahsawar A.S.I. made oat a case against these persons under Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and consequently they were ehailancd". 3. It is the case of the applicant that there was previous litigation between the parties over a house and the case was decided in his favour by this Court in F.RA. No.493 of 1988 and in order to pot pressure upon him this case was concocted. He, therefore, made applications to higher police authorities and the matter was re-investigated. Nahid Almas, Lady Inspector investigated the case and she finally came to the conclusion that the case was false wWch was cooked up toharass the applicant. She, therefore, recommended that the accused be discharged under Section 169 Cr.P.C, and complainant Ch. Allahditta be prosecuted for the offence under Section 182 PPC. Since the challan against the applicant and coaccused was already submitted a reference was made to Government of Sindh Home Department, Karachi , for withdrawal of the case under Section 494 CrJP.C. The Government of Sindh sanctioned the withdrawal of the prosecution and consequently on an application made under Section 494 Cr.P.C., the case against the applicant and others was allowed to be withdrawn vide order dated 12.3.1989. The case was re-investigated and this time by Syed Mehmood Ali, Inspector who too confirmed the report submitted by Nahid Almas, Lady Inspector. In the meantime the complainant challenged the order dated 12.3.1989 passed by A.C.M., Court No.V (South) Karachi, in revision before Sessions Judge (South) Karachi, who allowed it on technical grounds on 23.7.1989, and remanded the case for retrial. The Government of Sindh, Home Department again sanctioned the withdrawal of the prosecution against applicant and others directing the concerned D.P.P. to make such application under Section 494 Cr.P.C., before the trial Court. The D.P.P. made such application before AC.M. Court NoJC (South) Karachi, where the case was transferred, but the same was rejected vide order dated 30.11.1991. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court by filing this application under Section 561-A Cr.P.C., seeking the quashment of proceedings pending against him under Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, in the Court of A.C.M. No.X (South) Karachi. 4. I have heard Alhaj Ameer Khan, learned counsel for applicant and Mr. Aziz-ur-Rahman Shaikh, learned counsel for State. I have also heard the respondent No.2, in person. 5. The perusal of the record makes it clear that there was previous litigation between the parties. Complainant Ch. Allah ditta (PW-1) who was examined before the trial Court has admitted this fact in unambiguous terms in the following words:-- " It is fact that a civil litigation is pending between me and accused Anwar present in the Court. It is correct to suggest that prior to the lodging of present case a civil litigation was pending between me and the present accused. Zulfiqar is my son. It was a fact that my son Zulfiqar had filed a rent case against accused Anwar. That rent case was decided in favour of my son Zulfiqar Ali. Accused Anwar had filed a rent appeal against the order of the lower Court m the High Court. It is correct to suggest that the rent appeal was allowed and my son was directed to file a civil suit for declaration of title. It is correct that Zulfiqar Ali had filed a civil suit which is pending in the Court of Tlnd Senior Civil Judge, Karachi South. It is correct to suggest that Muhammad Anwar had filed a civil suit No.726/90 which is also pending in the Court of First Senior Civil Judge, South, Karachi ". (Against Property (Enforcement of Hudood) Ordinance, 1979, now pending in the iCourt of ACM-X (South) Karachi, are quashed. (MBC) (Approved for reporting) Proceedings quashed

PLJ 1992 Cr PLJ 1992 Cr.C . ( Karachi ) 268 Present: QAISER AHMAD HAMIDI, J GUL BAHAR-Applicant versus THE STATE-Respondent Criminal Revision Application No.ll of 1992, dismissed on 14.5.1992. Criminal Procedure Code, 1898 (V of 1898)-- —-S.265-C read with Sections 356, 360 & 361--Copies of statements under Sections 161 and 164 Cr.P.C .-Supply to accused of--Whether accused is entitled to Urdu translation of statements recorded in Sindhi anguage because his counsel does not know Sindhi language-Question of-Copies of statements etc. in terms of Section 265-C are to be supplied to accused in language in which they are recorded-Accused not aim as of right Urdu translation of statements recorded in Sindhi language which is admittedly one of official languages of Courts in Sindh Province-Held: There is no room for argument that advocate for pplicant who is not conversant with Sindhi language, was entitled to Urdu translation of statements of witnesses. [P.271JA&B PLD 1966 BJ 30, PLD 1968 Lahore 514 and 1980 P.Cr.L.J . 5 fef . Mr , Jawaid Haider Kazmi , Advocate for Applicant. Nemo for State.

PLJ 1992 Cr PLJ 1992 Cr.C( Karachi ) 272 [ DB] Present: SAEEDUZZAMAN SlDDIQUI, CJ AND NASIR ASLAM ZAHID, J REGISTRAR OF HIGH COURT OF SINDH-Appellant versus EDITOR, THE NEWS" and others-Contemners Criminal Original Misc. Application No.2 of 1992, decided on 215.1992 Contempt of Court- —Scandalous news-Publication of-Contempt of Court-Notice of-Benign attitude of courts in accepting apology from contemners has been construed as a sort of weakness or inability of courts to deal effectively with contemners— Such tendencies should effectively be curbed in public interest to keep stream of justice flowing unobstructed—An unconditional apology by contemner is not a defence—Apology only serves as a mitigating circumstance in awarding ' punishment for contempt-There can be no two opinions that remarks of contemner No.5 are likely to lower down image of Judges of superior ourts- Held: emarks of contemner No.5 constituted gravest conceivable slander against court and Judges-Held further: It is not a fit case in which unconditional apology tendered by contemner No.5 could purge him of contempt-Contemner No.5 convicted. [Pp.278&279]A,B&C PLJ 1992 SC 76,1990, SCMR 215 and PLD 1976 Lahore 373 ref. Mr. Aftab A. Akhund, Advocate General for Applicant. Mr. Muhammad Mazharuddin, Advocate for Contemners 1 to 3. Mr. Nooruddin Sarki and Mr. Fatehyab All Khan, Advocates for Contemner No.5. judgment Saiduzzaman Siddiqui, CJ.-Contempt notice was issued to Mr. Naveed Malik, a political activist for his following alleged remarks made during a press conference in a local hotel at Islamabad on 25.1.1992, which were published in English Daily "The News" Karachi, dated 26.1.1992, under the caption "Government accused of launching smear drive against Benazir". He maintained his allegations, that to avenge the happenings of December 19, 1991 in the National Assembly and to allegedly settle personal scores with the leader of the opposition Benazir Bhutto, the president personally phoned the Chief Justice of Sindh High Court recently and asked him to insult Mohtarma Bhutto when she next appeared in Court in connection with cases instituted against her. He alleged that the motive was to break her will and belittle her position publicly. Continuing his charges he said, a few days ago when Benazir Bhutto sat waiting in the room of the Registrar of the Sindh High Court, the Chief Justice ordered her to leave the room and wait in the veranda. "If not as a former Prime Minister, the current leader of the opposition and an international figure of repute, she deserved certain basic courtesies as a lady: When questioned about the veracity of his allegations he simply said, ask the President to clarify or contradict his allegations: Contempt notices were also issued to the printer, publisher, edior and the reporter of the daily "The News", since the above remarks of Mr. Naveed Malik were reported in the 26th January, 1992 issue of daily "The News" Karachi. In response to the contempt notices, M/s. Ghazi Salahuddin, Muhammad Haider Jafferi, Muhammad Suleman and Nasir Iqbal, the Editor, Printer, Publisher and Reporter respectively of the daily "The News" (hereafter referred to as contemners No.l, 2, 3 and 4 respectively) appeared with their counsel on 6.2.1992 and requested for time to file reply to the contempt notices. The notice issued to Mr. Naveed Malik (hereafter to be referred as the contemner No.5) for 62.1992 was returned unserved with the endorsement that the address was incomplete. It appears that contemner No.5 came to know about the contempt proceedings through the newspaper, for he addressed a letter to the senior puisne Judge of this Court, requesting for two weeks' time to put in appearance in the contempt case and also supplied his full postal address. Fresh notices in the case were accordingly issued to all the contemners including contemner No.5 on the address supplied by him for appearance in court on 19.2.1992. On 19.2.1992, contemners No.l to 4 filed reply to the contempt notices through their counsel. Contemner No .5 also appeared and requested for one day's time to submit reply to the contempt notice which was granted and he submitted the following reply dated 19.2.1992:-- Turther to my oral apology I tender unqualified apology and surrender myself to the mercy of this Hon'ble Court. Sd/-Naveed Malik Respondent The replies submitted by contemners No.l to 4 to the contempt notices were as follows:— Apology of Contemner No. 1 "I, Ghazi Salahuddin, Editor of the English Daily The News' and contemner No.l beg to submit as under: 1. That the news item published in the English Daily The News"m arachi dated 26th January, 1992 on page 4 under caption "Government accused of launching smear drive against "Benazir" was filed by Mr. Nasir Iqbal, Reporter of The News" at Islamabad ". 2. That on 25th January, 1992 Mir Khalil-ur-Rehman, Editor-in- Chief of the Jang Group of Newspapers died and that in the night I remained fully busy in giving coverage to the said incident and the condolence messages received throughout the day. 3. That the news item complained of was not properly assessed by the news room and this oversight was a result of the situation created by Mir Khalil-ur-Rehman's death. 4. That I have highest regard for the Hon'ble Chief Justice and companion Judges of High Court and that the news item was not published knowingly that the same contains ontemptuous matters. 5. That I sincerely regret the inadvertant publication of the said comment made by Naveed Malik and tender my unconditional and unqualified apology for the consideration of the Hon'ble Court. I, therefore, respectfully pray that the Hon'ble Court will graciously be pleased to accept my unconditional apology and vacate the notice. Karachi : Sd/-(Ghazi Salahuddin) - Dated 19.2.1992. Sd/-Advocate of Contemner No.l Apology of Contemner Nos, 2&3. We, Muhammad Haider Jafferi, Manager, Javed Press and Muhammad Suleman, Senior Executive/Manager, Daily Jang, Karachi contemners Nos. 2 and 3 beg to submit as under:- 1. That Mr. Mir Javed Rehman S/o late Mr. Mir Khalil-ur- Rehman is the Printer and Publisher of the English Daily The News", Karachi who was out of Pakistan from 14th January, 1992 to 27 th January, 1992. 2. That in the absence of Mr. Mir Javed Rehman we were looking after the duties of Printer & Publisher respectively. Photostat of our acceptance dated 12th January, 1992 and intimation given to the District Magistrate (South)/D.C. by Mr.Mir Javed Rehman dated 12th January, 1992 were already submitted on 6th February, 1992. 3. That the Newspaper is printed in the night and sent to market for sale in the early morning and therefore due to shortage of time it is not possible for a Printer and Publisher to look into all the matters printed and published. 4. That the news item complained of was published in The News" Karachi which appeared in the market for sale on the morning of 26 th January, 1992 when due to said demise of Mr. Mir Khalil-ur-Rehman Editor-in-Chief of the Newspapers of Jang Group we were worried and making arrangements for his burial. 5. That however, we offer our sincere regrets for the inadvertent publication and tender our unconditional and unqualified apology for the consideration of this Hon'ble Court. It is, therefore, respectfully prayed that the Hon'ble Court will graciously be pleased to accept our unconditional apology and vacate the notice. Karachi : Sd/-(Muhammad Haider Jafferi) Dated 19.2.1992 Contemner No.2 Sd/-(Muhammad Suleman) Contemner No3 Sd/-Advocate for Contemners Nos.2 & 3. Applogy of Contemner No.4 I, Nasir Iqbal, Reporter of The News" Karachi , at Islamabad beg to submit as under:— 1. That the contents of the News item published in The News" dated 26.1.1992, were stated by Mr. Naveed Malik La the Press Conference at Islamabad on 25th January, 1992. 2. That I inadvertantly and under misunderstanding reported the entire statement for publication. 3. That I offer my sincere regret for inadvertantly reporting and tender my unqualified and unconditional apology for consideration of the Hob'ble Court. It is, therefore, respectfully prayed that the Hon'ble Court will be pleased to accept my apology and vacate the notice. Sd/-(Nasir Iqbal) Contemner No.4 Karachi: Dated: 19th Feb' 1992". "He maintained his allegations, that to avenge the happening of December 19, 1991 in the National Assembly and to allegedly settle personal scores with the leader of the opposition Benazir Bhutto, the President personally phoned the Chief Justice of Sindh High Court recently and asked him to insult Mohtarma Bhutto when she next appeared in Court in connection with cases instituted .against her. He alleged that the motive was to break her will and be-little her position publicly. Continuing his charges he said, a few days ago when Benazir Bhutto sat waiting in the room of the Registrar of the Sindh High Court, the Chief Justice ordered her to leave the room and wait in the veranda. "If not as a former Prime Minister, the current leader of the opposition and an international figure of repute, she deserved certain basic courtesies as a lady". The above statement published/reported by you is not only factually incorrect but it amounts to scandalizing and to bring the Court and the Judges into disrespect". The above Charge has been read over to the contemners Ghazi Salahuddin, Muhammad Haider Jafri, Muhammad Suleman and Nasir Iqbal who are present in Court and they plead guilty. Sd/-Chief Justice Sd/-Judge Karachi: Dated: 09.03.1992". The contemners did not contest the above charges and pleaded guilty and once again prayed for being pardoned. Finally, they requested for time to address the court on the question of sentence in the circumstances of the case. We heard the learned counsel for the contemners at length. The learned counsel for the contemners very vehemently argued that as the contemners have expressed remorse and have thrown themselves at the mercy of the Court by offering unconditional apology at the earliest moment, a warning to them is sufficient in the circumstances of the case. Cases of Raja Munawar and others v. State (1990 SCMR 215), Hibibul Wahab Al Khairi v. Sh, Shaukat Alt (PLD 1976 Lah. 373) and in Re: In the matter of contempt against the daily Frontier Post (PLJ 1992 SC 76) were cited at the bar in support of the above contention. We have given our anxious consideration to the contentions of the learned I counsel for the contemners. We feel constrained to say that while the courts have p generally displayed a benign attitude in accepting apology from contemners in | contempt cases in the solemn hope that people will realize that it is in the public interest that the court should be kept above all controversies in order to maintain the superemacy and independence of judicial process and courts, we have noticed that this gracious gesture on the part of Courts in dealing with contempt cases has been construed as a sort of weakness or inability of the courts to deal effectively with the contemners. A general feeling has come to stay with the people that after scandalizing and slandering a court or a judge; even in a gross manner, the contemner can get away with it conveniently, if on the first appearance before the court he tenders unconditional apology. Development of such attitude amongst the people towards the courts is not only likely to erode the public confidence in the judicial process but it is also likely to lower the image of courts and judges besides affecting the independence of Judges in the long run. We are, therefore, of the firm view that such tendencies should be effectively curbed in public interest, to keep the stream of justice flowing unobstructed and to maintain the institutional superemacy of courts so that public confidence in courts, remains unshaken. We would like to express in unambiguous terms that an unconditional apology by the contemner in a contempt case is not a defence. It must be understood clearly that apology by a contemner does not absolve him from the consequences of the contemptuous act. Apology only serves as a mitigating circumstance in awarding punishment for the contempt. We may also state here that in a case of contempt involving published material, the author, publisher, printer and editor all are, responsible for the act of contempt but the degree of their responsibility may vary according to circumstances of the case. It is also necessary to state here that position in life, 'social status and educational background of the contemner are also very relevant factor for determining the gravity of the offence of contempt while awarding punishment for such act.Having stated the above broad principles we will now consider the conduct of each one of the contemners to determine thenrespective liability in the above case. It is admitted before us that the remarks quoted above were made by contemner No.5 in a press conference which was attended amongst others by contemner No.4. It is also an admitted position that the above remarks are totally false as no such incident had ever taken place. Contemner No.5 admittedly holds a responsible position in life being a politician. In fact it appears from the press report that he "once acted as Adviser to Prime Minister of Pakistan also. Contemner No.5 is, therefore, not an ordinary man but a politician of some status. A statement from such a person is likely to be taken by the public with all seriousness and could create considerable impact on public opinion. The, above quoted remarks of the contemner No.5. undoubtedly painted a dismal image of the judges of superior court. There can be no two opinions that the above remarks are likely to lower down the image of the judges of superior courts besides creating resentment in the public against them. The above remarks of contemner No.5, therefore, in our view constituted the gravest conceivable slander against the court and the Judges. The fact that the contemner knew the statement made by him to the press was false made the act of contempt still graver. No doubt contemner No.5 when appeared before us offered unconditional apology but we could feel from his conduct and demeanour in court that he had taken the whole affair very lightly. We are also of the view that there was no real feeling of remorse on the part of contemner No.5 as when he submitted the apology before us he just expected that this was sufficient to purge him from the act of contempt. We feel convinced that the apology by contemner No.5 did not stem from his heart because he genuinely felt remorse on his conduct but it was more for fear of punishment for the contempt. The press conference of contemner No.5 was carried in an English daily of a very wide circulation and contemner No.5 knew very well that the statement made by him was false. He was also aware that his remarks in the press conference against the Judges of superior court could scandalize them and lower their images in public estimation. If he really felt remorse for his above act he had ample opportunity to issue contradiction or publish an apology for his totally unjustified utterances. He did nothing of the sort and waited for the court to take notice of the contempt committed by him and initiate proceedings against him. In the above stated circumstances, we are of the view that it is not a fit case in which the unconditional apology tendered by the contemner No.5 could purge him of the contempt. Since contemner No.5 belongs to political elite of the country, he is expected to behave with more caution and responsibility towards court as his utterances are likely to create more serious impact on public opinion as compared to an ordinary man. Considering all the circumstances in the case we are of our opinion that the contemner No.5 should be awarded maximum punishment prescribed for the contempt. We accordingly convict contemner No.5 for the above act of contempt and sentence him to suffer simple imprisonment for a term of six months. We now revert to the case of contemners No.l to 4. Contemner No.4 is a very young man and appears to have joined the profession of journalism very recently. He stated before us that this was his first experience before the court. Considering the young age and inexperience of contemner No.4 we think a warning will be sufficient for him. With regard to contemners No.l to 3 they have raised common defence while tendering unconditional apology. It is a fact that the Editor in Chief of Jang Group of Papery late Mir Khalil-ur-Rehman died in London on 25.1.1992. The press conference of contemner No.5 was reported in "The News" of 26th Issue. The contemners No.l to 3 have stated that on account of death of Mr. Khalil-ur- Rehman they were totally upset and therefore could not properly check the publication of the press conference in the issue of 26th of daily 'The News': These contemners also published apologies on behalf of the Editor, Publisher, Printer and Reporter of The News' very prominently in the 7th March, 1992 issue of The News" Karachi expressing remorse and regret for publication of the press conference of contemner No.5 in the daily The News' and placed it on record during the course of proceedings. Besides the fact that the sudden death of Mir Khalil-ur-Rehman may have upset the whole management of Jang Group of Publication and therefore, for that reason contemners No.l to 3 may have committed lapse in checking the publication of the above remarks of contemner No.5 in the 26th issue of The News', can (?) be ruled out. The conduct of contemners No.l to 4 in publishing an apology prominently before the framing of charge in the case, in their news (paper) do show that they genuinely felt remorse on their conduct. We accordingly feel that a stern warning to contemners No.l to 4 to be careful in future and not to repeat such acts will be sufficient. Order accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C( Karachi ) 280 Present: QAISER AHMED HAMIDI, J STATE BANK OF PAKISTAN-Complainant versus JAWAID ARSHAD-Accused Criminal Original Misc. No.17 of 1988, decided on 135.1992. Banking Companies Ordinance, 1962 (LVII of 1962)- -—Ss. 84, 83 and 43-A read with State Bank of Pakistan Act, 1956, Sections 9 and 10-Illegal banking business—Offence of—Complaint against respondent-­ Trial of-By Section 84, authority to file complaints as been delegated to officer/officers authorised in writing to do so-It is apparent that Mian Abdul Qadir, Senior Deputy Director, State Bank of Pakistan was fully competent to file this complaint against ccusedere is solitary testimony of PW1 against accused that he failed to produce relevant record and information when called upon by State Bank-None of persons who made complaints against accused, was xamined s a witness to lend support to prosecution case—Held: It is a ardinal principle of law that it is not for accused to prove his innocence but burden lies on prosecution to establish guilt of accused beyond shadow of doubt—Held further. Prosecution has failed to prove charge against accused eyond reasonable doubt-Accused acquitted. [Pp.284&285]A,B,CJD&E PLD 1980 Lahore 658 and PLD 1980 Lahore 332 ref. Mr. Muhammad Shibli, Advocate for Complainant. JUDGMENT (/) Whether the Staie Bank of Pakistan had reason to believe that the accused was indulging in illegal banking business? («') Whether the accused has failed to produce/supply relevant record/information concerning his business, when called upon by the State Bank of Pakistan to do so? 6 My findings on the above points are as follows:- • (>.) Yes. («} Not proved 7 Point NoJ Mian Abdul Qadir, Senior Deputy Director, State Bank of aklstOT (PW.l) has produced the advertisement (Ex.4), made by the accused, vi'ich rsods as follows 1 '- He has further testified that from this advertisement it appeared to him that the accused was indulging in illegal banking business. The accused has not disputed the insertion of this advertisement in Daily 'Jang' Karachi, but denied to have solicited the deposits of money from public. The word 'appears' used in Section 43-A of the Banking Companies Ordinance, 1962, denotes that at that stage there should be prima facie mateiial to indicate that the offences complained of are likely to have been committed. It falls short of an absolute certainty. The evidence of Mian Abdul Qadir, Senior Deputy Director (PW.l) has not been challenged on this point. There was, therefore, reasonable ground for the State Bank of Pakistan to believe that the accused was indulging hi illegal banking business. Point No.l is, therefore, answered in affirmative.8. Point No.2. Before examining the evidence adduced in support of the prosecution version, I propose to examine a preliminary legal objection about the competency of Mian Abdul Qadir, Senior Deputy Director State Bank of Pakistan to file this complaint, that has been raised on behalf of the accused. This contention is based upon the provisions of Sections 9 and 10 of the State Bank of Pakistan Act, 1956. Sub-section (1) of Section 9 of this Act lays down that the general superintendence and direction of the affairs and business of the State Bank of Pakistan are vested in the Central Board. Sub-section (1) of Section 10 of this Act provides in clear terms that the Governor shall, on behalf of the Central Board, direct and control the whole affairs of the Bank. Sub-section (2) of Section 10 of the said Act again makes it clear that the Governor shall have authority to conduct the business, control the functions and manage the affairs of the Bank, if not specifically provided to be done by the Central Board. This question was examined in she case of Haideri International inance Ltd. v. State Bank of Pakistan, Lahore , reported in PLD 1980 Lahore 658, wherein it was observed as foilows:-- "It may be observed that the powers which are available to the Governor under Section 9(1) of the Act, are "on behalf of the Central Board". It is not denied by the petitioner that the power exerciseable under Section 43-B of,the Ordinance is exercisable by the Board. The authority which subsection (1) of Section 10 of the Ac! gives to the Governor, is to direct and control "the whole affairs of the Bank" on behalf of the Central Board. The expression "whole affairs of the Bank" is of wider significance than the expression "affairs of the Bank". There is, therefore no scope for the view that these words must be regarded as applying to .the affairs of the Bank" under the Act alone. Section 10(1) is to be read in the context of Section 9(1) where the powers of the Central Board are given in very wide terms, and the petitioner admits that these include the power to proceed under Section 43-B of the Ordinance. It is this power of the Board, which is exerciseable by the Governor under Section 9(1), because it pertains to "the whole affairs of the Bank". In any case the Governor actually exercises his power in this behalf under subsection (2) of Section 10, which has also been reproduced above. Under this subsection, the Governor has the authority to "conduct the business, control the functions and manage the affairs of the Bank". Taking action under Section 43-B of the Ordinance, hi my view, amounts to conducting the business of the Bank, There is, therefore, no force in the contention that the Governor has no lawful authority to proceed against the petitioner under Section 43-B of the Ordinance". 9. The case, of Hakim Muhammad Ismail Habibi v. Muhammad Qasim Klian and 2 others, reported in PLD 1980 Lahore 332, appears to lend some colour to the contention raised on behalf of the accused thJt it was Governor of State Bank of Pakistan who alone was competent to file complaint against the accused. Speaking broadly, however, this authority appears to me to create no difficulty. If sight is not lost of other relative provisions in this connection, the contention on behalf of accused might perhaps be found sustainable. However, the relevant provision in this behalf is also required to be taken note of. In this connection sub-section (1) of Section 84 of the Banking Companies Ordinance, 1962, is reproduced below:— "(1) No Court shall take cognizance of any offence punishable under Section 83 except upon a complaint in writing made by an officer of the State Bank generally or specially authorised in writing in this behalf by the State Bank and no Court other than the High Court shall try any such offence". 10. By this section the authority to file complaints has been delegated to the officer/officers authorised in writing to do so. The object of Section 84 of the Banking Companies Ordinance, 1962, is to enable the officers of the State Bank of Pakistan to launch prosecution in respect of the offences committed under the said Ordinance. The object of this delegation is to enable the overnor of State Bank of Pakistan to concentrate on issues of vital policy, by leaving such mattersto be handled by his officers. The notification dated 30th December, 1979, issued y State Bank of Pakistan, Central Directorate, Karachi, is on record (Ex.3), which reads as follows:--"In exercise of the powers conferred by Section 84 of Banking Companies Ordinance, 1962 the Central Board at its meeting held on the 3rd December, 1979 has been pleased to authorise the incumbents of the posts of Director, Senior Deputy Director, Deputy Directors, Assistant Directors and Inspecting Officers of the Banking Inspection Department of the State Bank of Pakistan to file complaints in courts of competent jurisdiction for trial of offences punishable under Section 83 of the said Ordinance". 11. Reading Sections 9 and 10 of the State Bank of Pakistan Act, 1956, together with Section 84 of the Banking Companies Ordinance, 1962, it is apparent that Mian Abdul Qadir, Senior Deputy Director, State Bank of Pakistan was fully competent to file this complaint against the accused. 12. Reverting to the case of the prosecution against the accused, it will be observed that the accused has admitted the receipt of directives (Ex.5, Ex.7, and Ex.8). It is however, his case that all these directives were complied with. There is solitary testimony of Mian Abdul Qadir, Senior Deputy Director (PW.l) against the accused to the effect that the accused failed to produce elevant record and information when called upon by the State Bank of Pakistan to do so. The first directive dated 6th April, 1987, (Ex.5) makes it clear that M/s. Ovais Akhtar, Deputy Director and Muhammad Alam Khan, Inspecting Officer were the authorised representatives to inspect the office of the accused. Likewise the directive dated 30th June, 1987, (Ex.7) shows that M/s. S.M. Khursheed A. Majeed, Assistant Director and Mohiuddin Khan Inspecting Officer were the authorised representatives of the State Bank of Pakistan . None out of these officers was, however, examined to prove that they had inspected the office of the accused who failed to co-operate with them. It has also come on record through Mian Abdul Qadir, Senior Deputy Director (PW.l) that they had received complaints from public about the bvolvement of accused in illegal banking business. None of the persons who made complaints against the accused was, however, examined as a witness to lend support to the case of the prosecution. It, therefore, does not require much of calculation how to multiply 2 by 2. 13. Admittedly the accused has sent a reply (Ex.6) which was supported by estimated Statement of Accounts. He had also submitted the proforma affidavit (Ex.9) to rebut the allegations made against him. There is no supporting evidence to prove that the accused had the relevant record with him, which he declined to produce before the authorised representatives. At any rate the evidence of some of the authorised representatives was necessary specially when Mian Abdul Qadir, Senior Deputy Director (PW.l) has admitted in unambiguous terms that he did not visit the office of accused. 14. It is a cardinal principle of law that it is not for the accused to prove his I innocence. In criminal cases the burden lies upon the prosecution to establish thep guilt of the accused beyond any shadow of doubt. A conviction can never be based I on the failure of the accused to put up proper defence. 15. Having regard to the circumstances mentioned above, I am satisfied that c the prosecution has failed to prove charge against the accused beyond reasonable doubt. The accused is, therefore, acquitted. (MBC) (Approved for reporting) Accused acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C.(AJK) 285 Present: ABDUL MAJEED MALLICK, CJ MAHBOOB KHAN and 3 others-Petitioners versus THE STATE and 4 others-Respoadents Crminal Revision No.26 of 1992, dismissed on 20.4.1992. Cancellation of Bail— —Murder-Offence of~Bail~Grant of~Cancellation of~Prayer for~ Respondents 2 to 5, according to medico-legal report, suffered different injuries on their persons which could not have gone un-noticed by complainant or eye-witnesses, but report lodged by complainant does not mention these injuries-It is not explained whether incident was on account of trespass or not, place of incident being in land of accused-respondent No.2--Finding that accused-respondents 2 to 5 were visited with charge of offences which were bailable, was based on report under Section 173 Cr.P.C.-Petition dismissed. [Pp.287&288]A&B Mr. Aleemuddin, Advocate for Petitioners. Mr. Muhammad Akram Mughal, Addl-A.G. for State. Mr, Shahid Ahmad Rathore, Advocate for Respondents 2 to 5. order The petition is addressed against the order of District Criminal Court, Kotli, passed on March 24, 1992, whereby Fazal Ellahi, Tasib, Muhammad Naib and Muhammad Akram, accused, were admitted to bail. 2. The accused-respondents are facing charge of murder alongwith principal accused. The alleged incident took place on March 8,1992, at 11 A.M. in Village Tarnote, Tehsil Kotli. Mahboob Khan alias Maroof, complainant made a written report to the police officer, Police Post Nar, wherein it was alleged that on the day of incident, the complainant accompanied by Muhammad Yusuf, Zahid Hussain deceased, Kabir, Najeeb, Muhammad Yasin and Muhammad Yunus, were busy in oad construction. A tractor used by the complainant party struck against the 'Phalahi' tree belonging to Fazal Ellahi, ccused. Mst. Khalida, daughter of Fazal Ellahi protested against the damage caused to the tree and alleged that the accused deliberately struck then- tractor against the tree, in order to widen the road under construction. She left for the home to inform her father and brother. At 11 A.M. when the complainant and his associates were on their way after finishing the work, to Jarai Bazar, they came across the ccused near the house of Muhammad Yusuf. Muhammad Ajaib accused was armed with 12-bore gun. Muhammad Akram and Muhammad Naib, carried sticks, whereas Tasib and Fazal Ellahi carried their hatchets. They obstructed the complainant party and assaulted on them. Zahid Hussain asked the accused to refrain from abusing •them, on which Muhammad Ajaib aimed at him and fired with his 12-bore un, which resulted in the death of Zahid Hussain. The complainant also received injury at the hand of the accused. On conclusion of the investigation, the challan was submitted before the Court. The Court taking the cognizance of the allegations ascribed to the accused delivered the copies of the statements under Section 161, Cr.P.C. and adjourned the case for statements under Section 242, Cr.P.C. The respondents applied for their release on bail. Their p ayer was accepted. This order has been challenged in the present petition. 3. Mr. Aleemuddin, the learned Counsel for the petitioners contended that the accused were the members of unlawful assembly, as such they were vicariously liable for the murder of Zahid Hussain deceased. They deserved no concession of bail at this stage. It was further contended that the trial Court allowed bail to the accused on the basis of the report of the police under Section 173, Cr.P.C. wherein the accused were found guilty of bailable offence for causing obstruction and inflicting simple injuries to the complainant. The approach of the Court, in view of the learned Counsel, was arbitrary, as such the impugned order was liable to be set aside, Mr. Shahid Ahmed Rathore, the learned Counsel for defence controverted the aforesaid points and argued that the accused-respondents recieved various injuries at the hand of complainant party. The complainant party was a trespasser and aggressor. A report was also made to that effect by Fazal examined as prosecution witness (PW.15). Since he was the investigator in the case, the learned defence counsel, during the course of his cross-examination, asked him certain questions. He allegedly gave evasive answers and tried to suppress certain facts concerning the statement of the injured recorded by him which, after his death, was being used as a dying declaration. The learned defence counsel having failed to obtain straight answers to his questions, requested the learned trial Judge to peruse the case diary, obviously to determine the relevancy of his questions, and then to direct the witness to look at it (case diary) for refreshing his memory to answer his questions. The learned trial Judge declined to oblige him on the ground that it was not his function to do so. This situation arose thrice during the cross-examination of the witness on 16.4.1992 and, as a result of the controversy -having so arisen, his statement was left unconcluded to enable the learned defence counsel to invoke the revisional jurisdiction of the Court. Hence this revision. 2. The learned counsel for the petitioner contends that the learned trial Judge, on the request of the learned defence counsel, was bound to look at the case diary and if the fact sought to be elicited from the witness was available therein, then he was bound to ask the witness to go through the case diary and answer the question but his reasonable request was arbitrarily turned down to the prejudice of his client because had the witness answered his question in affirmative, he would have succeeded in eroding the evidentiary value of the dying declaration. In support of his contention he has quoted bdul Aziz v. Tara Chand (AIR 1921 Allahabad 86) and Mohiuddin Khan and others v. King Emperor (AIR 1924 Patna 829). 3. Learned Assistant Advocate General, on the other hand, is of the view that the learned trial Judge was competent to refuse the request of the learned counsel for looking at the case diary of the police which is a secret document. 4. The authorities quoted by the petitioner's counsel provide useful assistance on the question involved and I am inclined to agree with the dictum that the learned trial Judge, whenever so requested by the accused or his counsel, should look at trie case diary, a copy whereof is invariably made available to him in a sealed cover alongwith the challan in every case, to ascertain the relevancy andreasonableness of thev request. After going through the relevant portion thereof, if he finds that request is relevant and reasonable, he may direct die Investigating Officer present in the witness-box to peruse the case diary and answer the question and the witness is bound to obey. If the question is not relevant and reasonable, he may decline it but he cannot refuse to look at the case diary before declining it, nor he can say that it is not his function. Whatever decision he takes and whatever he observes, must be brought on the record distinctively, either within brackets or in inverted commas which course has ot been adopted in the instant case and the requests and orders have been written in such a manner as if they are part of the witness's .statement. 5. However, I would like to observe that the learned defence counsel, most of whom are now-a-days in possession of illegally procured photostats of case diaries (an abominable practice which needs to be discarded by all concerned, particularly by the police officials who supply the same in violation of law) with thenhelp can ask and often ask numerous questions to the investigators being examined as prosecution witnesses. They should know that while making a request of this kind to the learned trial Judge, they cannot make it a routine affair because this method, in a way envisages an indirect process of onfrontation with a writing and under the law an investigator cannot be often confronted with his case diaries. A witness can only be confronted with his statement recorded under Section 161 Cr.P.C. and with some of his previous statements and an investigator is not a witness of that type. At the same time I would also like to observe that there is an unfortunate tendency amongst the police officials appearing as investigators to suppress certain facts available on the record by giving evasive answers, generally saying that they do not remember. Here the need to make them remember with the help of case diary ould arise if the facts elicited are material. The learned trial Judge must intervene at this stage and ask them to answer the questions without reference to case diaries unless they are unreasonably intransigent. In that event they should be asked to go through the relevant case diary but subject to the condition of reasonableness of the questions sparingly asked. In that case, the learned trial Judge should make an observation about the demeanour of the witness and after the ultimate decision of the case, should proceed against him in accordance with law. In the case in hand, the teamed trial Judge, if, after the perusal of the case diary, comes to the conclusion that the witness purposely suppressed the fact being elicited from him, shall make an observation to that effect and, besides directing him to answer the question of the learned defence counsel after refreshing his memory with the help of the case diary, may also proceed against him under the relevant provisions of law. He can also ask the higher police authorities, by sending a copy of the observations so made, to take disciplinary action against him and they are bound to do so. 6. In view of the above, the revision petition is accepted and the impugned orders of the leatned Additional Sessions Judge, Kasur,'are set aside and he is directed to complete the statement of the said itness in accordance with law as enunciated above. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C.( Lahore ) 291 Present: KHALILUR REHMAN RAMDAY, J STATE--Petitioner versus DISTRICT MAGISTRATE, GUJRAT etc.-Respondents Suo Moto Criminal Misc. No.212/M of 1992, decided on 28.4.1992. Administration of Justice— —Process in criminal cases-Delay in executing of-Effect of—During inspection of District Courts, Lahore, it was noticed that out of every 100 summonses/warrants issued by trial Courts, more than 92 remained unexecuted-This state of affairs is appalling and is a shocking reflection on efficiency and interesfshown by police department in this regard-Held: If this apathy on part of police agency is permitted to go un-checked, it would lead to a complete break-down of machinery dealing with administration of justice- Held further: Negligence in this connection amounts to obstructing course of justice and such a conduct is culpable and consequently punishable under law. [P.293]A,B,C&D Mr, Masood Bungash, S.P. Gujrat, Javed Iqbal, Inspector/SHO, Mumtaz Hussain, ASI, Muhammad Aslam, ASI/Muharrir, Nasim KJialid, DFC 751 of P.S. Kharian, and Riaz Ahmad, Head Clerk, District Magistrate's Office, Gujrat, in Person. Date of hearing: 28.4.1992. order Notices had been issued to Safdar and Lai Khan respondents in Crl. Misc. No.4636/B-91 to show cause against recall of the bail allowed to them by a learned A.S J. of Gujrat. 2. The above-mentioned petition came up for hearing before me on 29.1.1992 i.e. almost forty days after the issuance of the notices to the respondents. The said respondents were not present before the Court on the said date nor was the fate of the said notices even communicated to this Court by the District Magistrate through whom the said notices had been sent for service. 3. The District Magistrate was asked to explain the action taken by him with regard to the affecting of service, as directed. 4. From the explanation of the District Magistrate, it transpired that he had sent the said notices to the S.P. of Gujrat on 8.1.1992 for causing service on the above-mentioned respondents. 5. The S.P. was then called upon to explain the steps taken by him in the matter and to explain why the needful had not been done by him for at least three weeks i.e. till 29.1.1992. 6. The S.P. submitted that the notices in question had been marked to the S.H.O. concerned who in turn entrusted the same to Detective Constable Nasim Khalid No.751 for arranging service in compliance with the orders of this Court and further that after serving the same on the respondents, Muhammad Arshad Constable No.745 delivered them in the office of the High Court on 29.1.1992 i.e. the date on which the matter was fixed for hearing and obviously these notices could not reach this Court before the hearing of the petition. 7. The S.P. of Gujrat, the S.H.O. of Police Station Kharian, the Moharrir of Police Station Kharian, namely, Muhammad Aslam ASI and Nasim Khalid Detective Constable No.751 of the said Police Station have been heard. 8. The S.P. present in Court states that after receipt of the said notices in his office, the Superintendent of his office had marked the same to the S.H.O. of P.S. Kharian without bringing the matter to his notice. 9. The S.H.O. present in Court states that the said notices had been received in his police station on 9.1.1992 and his Moharrir had marked the same to D.F.C. Nasim Khalid for service without bringing the matter to his notice. 10. D.F.C. Nasim Khalid states that he duly served the said notices on the afore-mentioned respondents on 14.1.1992 and deposited the duplicates with the Moharrir of the police station on the same day. 11. Muhammad Aslam ASI/Moharrir present in Court states that he had received back these notices after service on 14.1.1992 but forgot to despatch them back to this Court till 29.1.1992. 12. I am shocked at the treatment meted out by the Gujrat police to a process issued by this Court. 13.1 was minded to proceed against the S.P. and his subordinates but it was on account of the earnest and persistent apologies tendered by the S.P. and the other concerned officials that I have decided to exercise restraint and have pardoned them for their mal-feasance. The S.P. has undertaken, that in future he shall personally supervise compliance of the processes issued by the Courts of law. 14. The apologies tendered by the police office'rs are accepted and the notices issued to them are discharged. 15. But before I part with this order, I feel constrained to mention that nonexecution of the processes issued by the Courts of law is one of the major reasons causing delays in the administration of justice relating to crimes. 16. During the course of an inspection of the District Courts at Lahore , I had L. noticed that out of every 100 summonses/warrants issued by the learned trial f Courts, more than 92 such processes remained un-executed. 17. This state of affairs is appalling and is a shocking reflection on the efficiency, competence and interest shown by the police department in this regard. If this apathy on the part of the police agency is permitted to go un-checked, then the same could lead to a complete break-down of the machinery dealing with the administration of justice. Extraordinary steps need to be taken to correct this extraordinary situation. c 18.1 therefore feel compelled to direct that in future, it shall be the personal obligation of the S.H.O. of the concerned police station and the Superintende t Police of the concerned District to ensure that all processes issued by the Courts of law are served, executed and implemented effectively and expeditiously. It may be mentioned here that negligence in this connection amounts to L bstructing the course of justice and such a conduct is culpable and consequently p punishable under the law. 19. A copy of this order shall be sent to the Chief of the Provincial Police (the Inspector General of Police) for his information and necessary action and he shall also circulate the same to all the S.Ps. in the Province for their information and compliance. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 293 DISTRICT MAGISTRATE, MUZAFFARGARH, god 3 others-Respoadeats Criminal Revision No.38 of 1992, accepted on 26.2.1992. Natural Justice- —-Murder-Offence of- : Exhumation of dead body-Order of-Challenge to~ Order passed by District Magistrate under Section 176 of Cr.P.C. is a judicial order and is revisable under Section 439 Cr.P.C.-Allegation of bias was levelled against Dr.Ghulam Hussain who conducted postmortem examination, alleging that he was relative of complainant party-It is clear that District Magistrate while passing impugned order, neither afforded opportunity of hearing to complainant nor to State-Held: Impugned order was not only in efiance with principle of natural justice that "nobody should be condemned unheard", but was also speculative and conjectural and mechanical—Petition accepted. [P.298]A3&C PLD1957 Lahore 662,1973 P.Cr.LJ 882 and PLD 1978 Lahore 1259 followed. Malik Wazir Ghazi, Advocate for Petitioner. Mr. Abdul Rashid Sheikh, Advocate for Respondent No.4. Syed Tassaduq Hussain Jillani, Addl. A.G. for Respondents 1 to 3. Dates of hearing 24 and 25.2.1992. judgment This Criminal Revision under Section 435/439 Cr.P.C. by Ghulam Hussain, complainant calls in question the order of the District Magistrate, Muzaffargarh, dated 12.2.1992 whereby he allowed the prayer of exhumation and directed the medical Superintendent, DHQ Hospital, Muzaffargarh and the Assistant Commissioner, Kot Addu to 'depute a Magistrate and a Medical Officer for the purpose. 2. A few essential facts are; that Ghulam Hussain herein petitioner, lodged an information in connection with the murder of Ghulam Farid on 19.1.1992, at police station Sarwar Shaheed. The Investigating Officer visited the Scene of occurrence, took the dead body of the deceased in his custody and sent the same to the Hospital Chowk Sarwar Shaheed for autopsy. On 20.1.1992, the postmortem examination was conducted by the Medical Officer, who gave the postmortem report to investigating authorities. On 11.2.1992, Inayat Hussain, Ghulam Yasin accused through Faqir Hussain submitted an pplication to the District Magistr te, Muzaffargarh for exhumation of the dead body and for the post mortem examination afresh. On the same day the District Magistrate got an opinion of the Medical Superintendent DHQ Hospital, Muzaffargarh, who gave •an opinion by way of verbal discussion that exhumation was necessary. Pursuant to this advice, the District Magistrate Muzaffargarh, passed the mpugned order whereby the application was allowed. The Medical Superintendent, DHQ Hospital , Muzaffargarh, Assistant Commissioner, Kot Addu, were directed to depute a Magistrate and a Medical Officer for the purpose. 3. The validity of the impugned order was assailed on the ground that the impugned order was passed in absence of the complainant as well as the State. As such it was in breach of principle of natural justice, "that nobody should be condemned unheard". Reliance was placed on unreported judgment of my brother Sardar Muhammad Dogar J, delivered in Crl. M.No.443/90 titled 'Sardar Muhammad v. District Magistrate, Vehari etc. " 4. On the contrary the learned counsel for espondent No.4 supported the impugned decision by saying that the impugned order was passed by the District Magistrate in exercise of his administrative powers under Section 176 CrJP.C. As such it was not amenable to revisional jurisdiction of-this Court. Reliance was placed on unreported judgment of my brother Manzoor Hussain Sial J, dated 14.11.1990, rendered in W.P.No.7745/90 tided "Basharai Aza v. District Magistrate, Sialkot etc. and Emperor v. Kh. Nazir Ahmad (AIR 1945 PC 18). It was next coatepded-that the Medical Officer, who conducted the postmortem examination wa. relative «fthe complainant and had a patent bias towards the accused. According to the learned counsel the postmortem report of the aforesaid Doctor was erroneous and dishonest. Under these circumstances it was in the interest of justice that the postmortem examination be conducted afresh. 5. The learned Addl. A.G., appearing on behalf of respondents No.l to 3, frankly stated that he was not in a position to support this order on account of its being in breach of the principle of natural justice that nobody should be condemned unheard. He took up the position that the order passed under Section 176 Cr.P.C., by a Magistrate/District Magistrate was a judicial order and was, therefore, revisable under Section 439 CrJP.C. 6. After hearing the learned counsel for the parties at considerable length I find that the points for determination in this application are as to whether the order passed under Section 176 Cr.P.C., is a judicial order and is amenable to revisional jurisdiction of this Court under Section 439 Cr.P.C. Answer to these points turn upon an integrated analysis of Sections 174 and 176 of Cr.P.C. These two sections are contained in Chapter XIV in Part-V of the Code of Criminal Procedure which deals with - information to the police and their power to investigate. The former Section prescribes the powers of investigator to undertake investigation with respect to cause of death; the investigator is required to draw up a-report, find the cause of death in presence of two or more responsible inharj&ants of neighbourhood. In case of doubt with respect to cause of death or where he considers otherwise expedient, he may forward the deadbody to the nearest Medical Officer for postmortem examination. Under Sub- ection (5) of Section 174, ibid, the District Magistrate, Sub-Divisional Magistrate, Magistrate 1st Class or any Magistrate empowered by the Provincial Government or the District Magistrate, is also equipped with powers to make inquirywitn inspect to ascertaining the cause of death. The latter Section i.e. TRHbid, deals with the powers of the Magistrate. This power is invested in the Magistrate either instead of, or in addition to investigation held by the police under Section 174 ibid. The object of Section 176 is to check the inquiry being held by the police or allay doubts in the mind of public against a particular individual. The ritical analysis of this section indicates that the Magistrate is given the vast power to make inquiry with respect to cause of death arising out of the circumstances mentioned in Clause (a), (b) and (c) of Subsection (1) of Section 174 ibid. Section 176, which is of great significance is reproduced as under:-- "(1) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in Section 174, clauses (a), (b) and (c) of subsection (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case. (2) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may, cause the body to be disinterred and examined". The bare look at this section makes it amply clear that the Magistrate has been empowered to make an inquiry with respect to cause of death. There was divergence of opinions on the question as to whether the inquiry conducted under Section 176 was judicial in nature or merely administrative exercise. According to one view the Magistrate acting under this Section was exercising the same power which the police officer had under Section 174 Cr.P.C. According to this view the inquiry under Section 176 was, therefore, administrative in nature and not revisable under Section 439 Cr.P.C. AIR 1958 Punjab 141, AIR 1958 Punjab 430 and AIR 1959 Mad. 294 are authorities for this view. While according to other view inquiry under Section 176 Cr.P.C., was judicial in .nature and was revisable. This view was laid down in Purshottam IshvirAmin v. Emperor (AIR 1921 Bom.3) and Re: Laxminarayan Timmanna JCarki (AIR 1928 Bom.390). The view taken by the Indian jurisdiction was examined in Khuda Bakhsh v. Province of West Pakistan & another (PLD 1957 Lah.662). After survey of case law and the relevant provision of law, it was held that the inquiry under Section 176 ibid was judicial in nature. It was held:-- "It was contended by the learned counsel for the petitioner that an order of the Magistrate who holds an inquiry either under Section 174 or Section 176 of the Code of Criminal Procedure is a judicial order which is open to scrutiny not by the Provincial Government but only by the High Court in the exercise of reviskmal powers and he relied in this connection on In re: Laxminarayan Timmanna Karki (AIR 1928 Bom.390) wherein it was held that proceedings of a Magistrate under Section 176 of the Code of Criminal Procedure are judicial proceedings which can be dealt with by the High Court in revision. He also relied on Advocate General v. Maug Chit Maung (AIR 1940 Rang.68) wherein the question for determination was whether a Magistrate holding an inquest was a Court subordinate to the High Court for the purposes of the contempt of Courts Act and it was held that he was. I am in respectful agreement with the views expressed in the above two decisions and hold that the proceedings of a Magistrate who holds an inquest under the Code of Criminal Procedure are judicial proceedings which are open to revision by the High Court. The object of holding an inquest is not to determine the guilt or innocence of any particular person in relation to the death of the deceased and the High Court would not ordinarily exercise its powers of revision when an order has been passed by a Magistrate of competent jurisdiction but the mere fact that it is but rarely that the High Court would interfere in revision with such orders does not divest the order of the Magistrate of its judicial character". This view was followed in Muhammad Anwar v. Sheikh Qurban Ali and three others (1973 P.Cr.LJ. 882) and was again reiterated in The State v. ChMtaj Hussain Magistrate 1st Class, Gujrat and 2 others (PLD 1978 Lah. 1259). In this case after the survey of relevant law and the case law it was held that:-- "One simple question which arose indirectly can be answered straightaway. Although there are some old rulings showing as if orders passed under Section 174 and/or Section 176 Cr.P.C., are administrative in nature, therefore, not revisable under Section 439 Cr.P,C., but recent authority on this question, particularly from our own High Court is to the contrary. Dissenting from an Indian authority from East Punjab High Court, this Court held in Muhammad Anwar v. Sheikh Qurban Ali and 3 others (1973 P.Cr.LJ. 882) that the aforesaid orders ars passed in exercise of judicial functions, therefore, they are revisable. There is a DB ruling of erstwhile West Pakistan High Court (Lahore) which also supports the same view-See KJiuda Baklish v. Province of West Pakistan and another (PLD 1957 Lah.662). I am hi respectful agreement with the view expressed in this behalf in the ruling of Muhammad Anwar and Khuda Bakhsh. I may add that although the word 'inquest' used hi Sections 174 and 176 Cr.P.C., has not been defined in the Code, it carries particular significance when .the same is conducted by a Magistrate. Subsection (5) of Section 174 provides only the District Magistrate, a Sub-Divisional Magistrate or Magistrate of the 1st. Class and another Magistrate specially empowered in this behalf can hold inquests. Subsection (1) of Section 176 gives an indication as to what would be the ordinary procedure in conducting the inquest. It is necessary for the Magistrate, when holding an inquiry as a part of the inquest to "record the evidence taken by him in connection therewith", in any of the manners prescribed in the Code of Criminal Procedure for conducting enquiries. The choice from amongst "the manners" has been left to the Magistrate and it would depend upon the circumstances of each case. Thus, the Magistrate when holding an inquest, would be making an "enquiry in accordance with the provisions of the Criminal Procedure Code and, thus it would, all the more, make it a judicial function. Any order passed as a result of such an enquiry would, obviously».be revisable. It is needless to emphasize that the power to be exercised under subsection (2) of Section 176 for disinterment of the body is a part of the jurisdiction conferred on the Magistrate to hold inquests. If the entire process of the inquest is to be conducted as an enquiry, then the disinterment of the body would also form part of the enquiry and any order passed in this behalf would also be a judicial function. Looked at from this angle also the orders dated 24.4.1978 and 25.4.1978 passed by the learned Magistrate in this case have to be treated as judicial orders and the learned Additional Sessions Judge could decide the revision and pass the judgment, which has been impugned in"these petitions". 7. Applying this principle to the facts and circumstances of this case, it is quite clear to me that on 20.1.1992, the postmortem examination was conducted by the medical officer; that after the lapse of e onth, an application was moved by one Faqir Hussain on behalf of Inayat Hussain and Ghulam Yasin accused, for exhumation of the dead body and for re-postmortem examination. The perusal of the pplication further shows that allegation of bias was leveled against Dr. Ghulam Hussain by alleging that he was a relative of the complainant 4 party. It is clear from this application that the report of the Medical officer with respect to cause of death of deceased Ghulam Farid was not seriously challenged. On the same date, the District Magistrate took into confidence the Medical Superintendent, DHQ, Hospital, Muzaffargarh, who rendered the opinion in the course of verbal discussion. On the following day the District Magistrate passed the impugned order in following words: "Order be issued as proposed by the M.S. Sd/- D.M." 8. From the perusal of the order it becomes dear that neither the District Magistrate afforded opportunity of hearing to the complainant nor State. He has passed an order which on the face of it is echanical and stereotype in nature. No J order with respect to inquiry was passed. It is thus clear to me that the order of the District Magistrate was not only in defiance with the principle of natural justice that "nobody should be condemned unheard but was also speculative and conjectural and mechanical. 9. In result I have no difficulty in coming to the conclusion that the J impugned order is clearly violadve of law and cannot be sustained. This revision j petition is accordingly allowed and the impugned order is hereby set aside. 10. Before parting with this order it is made dear that this order shall not preclude either of the parties from claiming inquiry within the meaning of Section 176 Cr.P.C, by filing an application to competent authority, who shall dedde the application and act strictly in accordance with law. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C( Peshawar ) 299 Present: ABDUL KARIM KHAN KUNDI, ACJ ZAITULLAH and another-Appellants versus THE STATE-Respondent Criminal Appeal No. 14 of 1992 partly accepted on 26.4.1992. Customs Act, 1969 (IV of 1969)- —Ss.l56(l)(8) and (89) read with Constitution of Pakistan, 1973, Article 13-- Contraband c/uzraj--Recovery of-Conviction for--Challenge to~In this case, offence would be one under Section 156(1)(89) and not under Section 156(1X8) of Customs Act-Held: There cannot be double punishment for same offence of smuggling of goods into or out of Pakistan or acquisition of smuggled goods, and prosecution or punishment for same offence more than once, would be a violation of Article 13(a) of Constitution-Held further: Under Section 65 of P.P.C., sentence in lieu of default in payment of fine, can at most be l/4th of maximum imprisonment which comes to 1 1/2 years- Appellant No.2 acquitted by giving him benefit of doubt while appellant No.l acquitted of charge under Section 156(1)(8) but his substantive sentence reduced and sentence in default of payment of fine modified. [PpJ01&302]A3&C Mr. Abdul Samad Khan, Advocate for Appellants. Mr. Abdul Hakim Kundi, Advocate for State. Date of hearing: 22.4.1992. judgment By his judgment and order dated 31.12.1991 Mr. Khan Akbar Khan, Special Judge Customs-convicted and sentenced the appellants to 2 years R.I. and a fine of Rs.20,00,000/- (twenty lacs) or in default to suffer 4 years R.I. further each under Section 156(1)(8) of the Customs Act, 1969 and also convicted and sentenced them to 3 years R.I. and fine of Rs.20,00,000/- or in default to suffer 4 years R.I. further each under Section 156(1)(89) of the Customs Act. 2. The appellants were charged that at about 1400 hours on 27.9.1990 bus No.862-769 was driven by one Mehboob driver, resident of Bara Khyber Agency (absconder) while along (him) the appellants were sitting in the bus as cleaners that as soon (as) the bus arrived at Military Dairy Farm Kohat-Rawalpindi Road it was stopped and on cursory checking secret cavities containing narcotics were noticed in the roof of the bus. The appellants were hurriedly arrested, while the driver made good his escape in the rush. The bus alongwitb the appellants was brought to the Customs Office at Peshawar for thorough search and consequently huge quantity of narcotics in charas of foreign origin in 825 K.Gs. was recovered from the secret cavities made in the roof of the bus. The appellants failed to produce evidence about the lawful possession of narcotics and, as such, they were said to have committed offences punishable under Sections 156(1)(8) and (89) read with Section 178 of the Customs Act, 1969. 3. Prosecution brought home the charge to the appellants by the evidence of Rehmat All, Inspector (PW-1) a Stock Incharge who brought along 17 gunny bags vi charas into the Court which were xhibited P-l to P-17 and one of the bags P-7 was also opened in Court which was found containing slabs of charas in plastic cover further wrapped in polythene and khaki cover; one Azizullah Inspector ustoms PW-2) who partly investigated into the case, prepared the 'Murasila' and also made the actual seizure alongwith Jamaluddin, Deputy Superintendent Customs (PW-5); Tajamul Shah, Sepoy (PW-3) who as a member of the Customs Squad at Nakabandi and made the seizure along and also witnessed the search; Abdul Ghani, appraiser who assessed the value of the contraband charas at Rs.lOOQ/- per ilogram and last Jamaluddin, Deputy Superintendent Customs (PW-5) who made the actual seizure of the contraband charas. He stated that a Nakabandi was arranged at prior spy information received by eputy Collector Customs and the passenger bus was stopped and searched, that from roof cavities of the bus the contraband charas was recovered. 4. The evidence was put to the accused for explanation and Lai Gul appellant in his examination under Section 342 Cr.P.C. claimed himself to be a passenger in the bus and completely unconcerned in the smuggling or acquiring possession of the contraband narcotics in charas. Zaitullah, appellant in his examination under Section 342 Cr.P.C. admitted himself to be the conductor/cleaner of the bus but stated that Lai Gul, co-appellant, was minor and travelling as passenger in the bus. He claimed that he has been employed only two days before the seizure of the contraband arcotics and was unconcerned with the smuggling of the contraband narcotics or acquiring its possession and did not have she conscious knowledge of the contraband narcotics carried in the bus. He charged the driver of the bus to be the culprit who, however, escaped from the spot. 5. Learned counsel for the appellants pointed out many lapses in the trial that 'murasila' was drafted on 28.9.1990 and the FIR was registered on 27.9.1990 which appears to be a clear case of clerical error because the FIR was registered on the basis of 'murasila' and as such the 'murasila' could not be post-dated. It was next pointed out that 'murasila' and the FIR were to incorporate the assessment of the value of the contraband narcotics in the same amount as per assessment certificate but this objection can be met out as all the Customs Authorities have the general knowledge that contraband narcotics in (haras was to value Rs.1,000/- per K.G. as to have done in the present case. Herein the Laboratory report per Ex.PW-2/5 says that one sealed parcel containing 10 grams was received by him which on examination was found to be charas. Azizullah P.W.2 stated that samples of the contraband narcotics were sent to the Chemical Examiner for analysis and PW.l stated that there were 17 gunny bags but it has not come on record if samples were collected from all the 17 gunny bags. However, in the case even a sample collected from one gunny bag would still make it a case of more than Rs.20,000/- value and accordingly the appellants would be liable to prosecution on the charge under Section 156(1)(89) of the Customs Act. 6. In the case the learned Special Judge has also proceeded to record the conviction of the appellants on the charge of smuggling under Section 156(1)(8) of the Customs Act but as the seizure was made in the interior of the country and not at the border, a presumption would arise that it was not a case of smuggling of goods into or out of Pakistan and it was in fact a case of acquiring possession of smuggled goods and dealing in the same in carrying the goods in the passenger bus destined for Rawalpindi, again a place in the interior of the country. Thus the offence would be one under Section 156(1)(89) of the ustoms Act and not under Section 156(1)(8) of the Customs Act. The appellants are accordingly to be absolved of the charge under Section 156(1X8) read with Section 2(s) further read with Section 178 of the Customs ct. In the context it is also stated that there cannot be a double punishment for the same offence of smuggling of goods into or out of Pakistan or acquisition of smuggled goods and prosecution or nishment for the sa e offence more than once would be a violation of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973. 7. The punishment for the offence under Section 156(1)(89) of the Customs Act is upto six years imprisonment and a fine not exceeding 10 times the value of the goods. In Section 65 of the Pakistan Penal Code there has been prescribed a limit of imprisonment for non-payment of fine upto l/4th of the term of maximum imprisonment fixed for the offence if the offence is both punishable j with imprisonment as well fine. The learned Special Judge Customs has been j found to have convicted and sentenced the appellants under Section 156(1)(89) of j the Customs Act to three years imprisonment and a fine of Rs.20,00,000/- I (Twenty lacs) and in default of fine four years R.I. further each. He could at the j most order the appellants to suffer further imprisonment upto l/4th of the I maximum imprisonment which in the case comes to one and a half year only. 8. In view of the foregoing discussion this Court would accept the appeal of Lai Gul by extending him the benefit of doubt and would order his release forthwith if not wanted in any other case. This Court would also accept the appeal of Zaitullah on the charge under Section 156(1)(8) of the Customs Act and would ' accordingly set aside his conviction and sentence on the charge. The conviction of Zaitullah appellant would be, however, m intained on the charge under Section 156(1) (89) of the Customs Act but his entence is modified and reduced to 1 1/2 years imprisonment and a fine of Rs.20,000-/- or in default nine months R.I. further. He is also extended the benefit of Section 382-B Cr.P.C. in the computation of his imprisonment. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Peshawar ) 302 [Dera Ismail Khan Bench] Present: abdul karim khan kundi, J nazar ali and another-Appellants versus THE STATE-Respondents Criminal Appeal No. 17 of 1991^ accepted on 29.3.1992 Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 310 and 311 as incorporated through Qisas and Diyat Ordinance--<2o//-e- Amd~Otfence of--Compounding of--Conviction under roz/r-Challenge to~ Appellants did not plead guilty and claimed trial-Court id not record evidence, but only recorded statements of Walls of deceased and local gentry on point of composition of offence-There was no legal evidence brought on record spelling out facts and ircumstances o make trial court believe that it was a gruesome murder committed by brothers on a petty matter and that they deserved a Tazir punishment-Held: Failure to question an accused about circumstances against im, amounts to total failure of justice and trial is vitiated-Held further: Conviction and sentence of appellants as Tazir under Section 311 PPC were wholly illegal and un-warranted in facts and circumstances of ase-Appeal accepted. . [Pp.303&304]A&B Mr, Muhammad Aslant Klian, Advocate for Appellants. Mr. Ejaz Muhammad Khan, A.A.G. for State. Date of hearing: 29.3.1992. judgment Sher Ali and Umar Ali appellants were charged along (with) their mother Mst. Ali Jana for the murder of their brother Ashraf Ali Khan by firing at evening time on 30.5.1991 in the limits of village Zonda Ghaibi in furtherance of thencommon intention under sections 302/34 P.P.C. They denied the charge and the trial commenced. 2. Anyhow at the very outset the trial Court was apprised of there having been effected a genuine compromise between the parties and the offence of murder to have been resultantly compounded.The Court recorded the statements of Mst. Dilshad Begum widow of the deceased, Zafar Ah' Khan brother of the deceased, Ghazi Khan father-in-law of the deceased and Bahadur Khan and Saifullah Khan the local gentry who all verified the genuineness of the compromise. 3. Herein the deceased died issueless leaving behind heirs/wa/jey in Mst. Dilshad Begum widow and Zafar Ali Khan brother besides two brothers i.e. appellants and co-accused (acquitted) Mst. Ali Jana his mother. The two 'walies' in a widow and brother of the deceased stated that Ashraf Ali Khan the deceased was murdered for which the appellants and their mother Mst. Ali Jana were charged and that they have effected a compromise with them and have waived their right of 'qisas' and 'diyat' in the name of Allah. The local gentry and fatherin-law of the deceased also made statements to the same effect. Thereafter the learned trial Court proceeded to record the impugned judgment acquitting all the accused of the charge of murder but observed that although the widow of the deceased has effected a compromise with the accused, however, from the record it appeared that the appellants have committed the murder of their own brother on a very petty matter just for nothing and hence keeping in view the severity of offence he convicted and sentenced the appellants to 4 years R.I. each under section 311 P.P.C. . 4. In section 302 (a) P.P.C. the offence of 'qatl amad' has been made punishable with death as 'qisas' and under clause (b) ibid in case of non­ availability of the proof specified in Section 304 i.e., a voluntary and true confession of the commission of the offence by the accused or evidence of two sane muslim adult male witnesses fulfilling the requirement of 'Tazkia Tul Shuhood' as witnesses of the occurrence the offence is punishable with death or imprisonment for life as 'Tazir' while under clause (c) where punishment of 'qisas' is not punishable (?) according to the Injunctions of Islam the offender can be awarded punishment with imprisonment upto 25 years,. Section 309 pertains to waiverv4/vv (y£ ) of 'qisas' in 'qatl amad' by adult sane walies subject to certain restrictions. So Section 310 pertains to compounding of 'qisas' in 'qatl amad'. It is Section 411 which vests a reserved power in the Court to punish an offender of 'qatl amad' with imprisonment upto 10 years as 'tazir' even after waiver or compounding of right of 'qisas', no doubt, the punishment to be awarded in the discretion of the Court having regard to the facts and circumstances of the case. There may further be awarded punishment upto 14 years as 'Tazir' to such an offender, if he is a previous convict, habitual or professional criminal. Thus punishment of 'Tazir' after waiver or compounding of right of 'qisas' in 'qatl amad' can be awarded by the Court in its discretion having regard to the facts and circumstances of the case and such facts and circumstances of the case must form a part of the record. 5. Herein the appellants did not plead guilty to the charge of 'qatl amad' and .claimed a trial. The Court did not record the evidence but only recorded the statements of the 'walies' of the deceased and the local gentry who were not cited as witnesses except Mst. Dilshad Begum widow of the deceased who was also not an eye witness of the occurrence and her evidence was confined to the enmity between the deceased and his brothers and mother over separation and further about exchange of hot words between them on a day preceding the occurrence. At the trial she only stated that her deceased husband was murdered for which the appellants and their mother were charged but that she has effected a compromise with them and has waived her right of 'qisas' and 'diyat' in the name of Allah. There was thus no legal evidence brought on record spelling out the facts and circumstances to make the trial Court believe that it was a gruesome murder committed by the brothers on a petty matter just for nothing as he observed and that they deserved a 'Tazir' punishment. Besides even the facts and circumstances of the case as lurking in the mind of the trial Court were not put to the appellants for their explanation and still those so-called facts and circumstances have been used by the trial Court in recording the appellants' conviction under Section 311 P.P.C. Section 342 Cr.P.C. places the Court under obligation to provide an opportunity to an accused to explain the prosecution evidence which is going to be used to convict him. Failure to question an accused about the circumstances against him amounts to total failure of justice and the trial is vitiated. 6. Sections 309 and 310 PPC pertain to the waiver and compounding of right of 'qisas' in 'qatl amad' and the offence is liable to 'qisas' only on proof prescribed under Section 304 either on a voluntary and true confession of the commission of the offence by the accused or on the evidence of two sane muslim adult male eye witnesses of the occurrence. In the case in hand mode of proof prescribed for 'qatl amad' iable to 'qisas' was wholly wanted and lacking. It was thus a case of 'qatl amad' liable to 'Tazir' under Section 302(b) PPC. The offence of 'qatl amad' under Section 302 PPC both 'qatl amad' liable to 'qisas' and 'tazir 1 have been made compoundable by the heirs of the deceased under Section 345 Cr.P.C. It was thus a case of the compounding of the offence of 'qatl amad' liable to 'Tazir' by the heirs of the deceased while the other heirs in two brothers and mother of the deceased were charged as accused. Section 311 PPC provides for punishment as 'Tazir' after waiver or compounding of right of 'qisas' in 'qatl mad' under Sections 309 and 310, respectively, and the section has no application to the cases of 'qatl amad' liable to 'Tazir' that the composition of the said offence under section 345 Cr.P.C. shall have the effect of an acquittal of the accused. 7. Consequently, the conviction and sentence of the appellants as 'Tazir' under Section 311 P.P.C. were found wholly illegal and also un-warranted hi the facts and circumstances of the case and the same are hereby set aside. Appellants shall be set free, if not wanted in any other case. (MBC) (Approved for reporting) Appellants acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Peshawar ) 307 [Abbottabad Bench] Present: MAHBUB ALI KHAN, J MIR ALAM-Petitioner versus GOHAR AMAN and 14 others-Respondents Criminal Revision No. 42 of 1991, dismissed on 18.1.1992 Criminal Procedure Code, 1898 (V of 1898)-- —S. 249-A read with Section 561-A—Complaint case—Acquittal of respondents under Section 249-A of Cr.P.C.-Challenge to~Nothing has been shown wrong with impugned judgments of lower courts-For reasons recorded in judgment, Magistrate considered that charge was groundless and there was no probability of accused being convicted of offence-Held: No error in judgments passed by lower courts has been pointed out which may attract interference by High Court under its inherent jurisdiction-Petition dismissed. [Pp.308&309]A&B Mr. Nazir Ahmad Lughmani, Advocate for Petitioner. Date of hearing: 18.1.1992. order In May, 1989 petitioner Mir Alam lodged a complaint with S.D.M., Mansehra for the prosecution of Gohar Aman etc respondents for their alleged commission of certain offences falling under Sections 447/406/427/379/384/382 PPC. The S.D.M. sent this application to another Magistrate for disposal. It subsequently proceeded in the Court of Mr. Muhammad Gastasab Khan, M.I.C., Mansehra who on 20.11.1990 passed an order of acquittal of the accused under Section 249-A Cr.P.C. being of the opinion that the charge was groundless. Mir AJam being not satisfied with this order of the learned Magistrate impugned it before the the Additional Sessions Judge, Mansehra under Section 435 Cr.P.C. in Cr. Revision Petition No.22/12 of 1991. The learned Sessions Judge after hearing arguments on both sides in the matter dismissed the petition on 24.7.1991 being of the view, that the Magistrate had exercised jurisdiction properly and in accordance with law. Mir Alam has now approached this forum probably under Section 561-A Cr.P.C. by invoking the inherent jurisdiction of the High Court. He requests that judgments and orders of both the courts below may be set aside and conviction of the accused-respondent recorded on the charge as aforesaid. 2. A perusal of the record would indicate, that Mir Alam petitioner has not been examined on oath under Section 200 Cr.P.C. at any stage of the complaint either by the S.D.M. himself before whom the matter was initially placed or by the Magistrate who was subsequently entrusted with the disposal of the complaint by the S.D.M. Statement of the complainant on oath makes foundation of the case for the issuance of process as Sections 200 and 202 are supplementary of one another. An omission to examine the complainant on oath as required under Section 200 Cr.P.C. may not vitiate trial in case the accused has not been prejudiced by such an irregularity and no failure of justice has thereby taken place, still the procedure referred to in this section must be strictly complied with because non-compliance thereof may lead to confusion. In fact an accused person cannot be summoned in subsequent proceedings by a Magistrate without first examining the complainant on oath. However, the Supreme Court in Shamim Vs. The State and Muhammad Bashir, P.L.D. 1966 Supreme Court 178 has held, that failure to examine complainant on oath before issuing process is a mere irregularity curable under Section 537 of the Criminal Procedure Code. The Supreme Court has been pleased to observe, "that the language of Section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine-qua-non of valid proceedings, in all circumstances". 3. Mir Alam had complained that the accused-respondents had allegedly cut and uprooted few trees from his land situated in khasra No. 5008 in village Nallah cum Manoor and caused him damage to the extent of more than Rs. 50/-. Evidence of Mir Alam complainant, his brother Bagga and that of one Wali-ur- Rehman was recorded by the learned Magistrate. The respondents in the meanwhile moved an application for their acquittal under Section 249-A Cr.P.C. on the ground that the accusation was baseless. The learned Magistrate after hearing the prosecutor and the accused and for asons recorded in his order came to the conclusion, that the charge was groundless and there was no probability of the accused being convicted of any offence even if the recording of the entire evidence is concluded in the case and forthwith passed an order of acquittal of the accused. The learned Addl: Sessions Judge declined to interfere in revision as he did not see any error in the exercise of jurisdiction by the lower forum. 4. I am aware of the inherent powers of this Court under Section 561-A Cr.P.C. to make such order as may be necessary to give effect to any order passed under this Code, or to prevent the abuse of the rocess of any Court or otherwise to secure the ends of justice. But I have not been shown anything wrong with the impugned judgments as recorded in the lower forums. The evidence adduced in the matter including the statement of the complainant himself had been properly looked into by the Magistrate who after hearing the prosecutor and the accused and for reasons mentioned in his judgment considered that the charge was groundless and there was no probability of the accused being convicted of any offence. He thus recorded an order of their immediate acquittal without writing any further vidence into the complaint which he could pronounce at any stage of he case. Similarly no error in the judgment of the Additional Sessions Judge Mst. Gul Zardan Bibi when examined by the police under Section 161 Cr.P.C. did not name any person for abduction and adultery. She lateron appeared before a magistrate on the following day, made a statement under Section 164 Cr.P.C. and charged accused uhammad Saleem for committing sexual intercourse with her y force at different places after her abduction including the hotel from where she was recovered on the preceding d?y. 3. The factum of adultery is proved by the medical evidence. The controversy that Mst. Gul Zardan Bibi being a major girl had gone with the accused at her own accord and was a consenting party to the events is open to question and may be solved when some evidence is recorded in trial. At this stage I find the statement of the victim girl duly recorded by a Magistrate wherein she has charged accused Muhammad Saleem for committing Zina-bil-jabr at different times and places after her abduction from the house of her parents. The grant of bail to accused Muhammad Saleem in a case like this, in the circumstances, cannot be justified. The same is recalled at the request of the complainant. Accused Muhammad Saleem may be taken into custody. ' 5. The request for cancellation of bail of the co-accused, in view of the role attributed to them in the case, would be declined. (MBC) (Approved for reporting) Bail cancelled.

PLJ 1992 Cr PLJ 1992 Cr.C .( Peshawar ) 310 [Abbottabad Bench] Present: MAIIBUB ALI KHAN, 1 ABDUL HALEEM-Petitioner versus THE STATE-Respondent Criminal Misc. No.275 of 1991, accepted on 12.1.1992. Prohibition (Enforcement of Hadd) Order, 1979 (P.O.4 of 1979)-- —Art.3 & 4 read with Articles 16 and 22—Charas weighing 3425 grams- Recovery of—Bail—Grant of—Prayer for—Charas was allegedly recovered from residential house of accused which is definitely not a public lace —Police was required to obtain warrant under Article 22 before making entry into house-­ No such warrant was obtained-Held: Controversy whether case falls under Article 1 3 or 4 and whether it is ognizable or not, is open to question-Bail allowed. [P.311]A ,B &C 1988 P.Cr.LJ. 591 and 1990 P. Cr. L.J. 1302 re/. Mr. Shah Nawaz Asim, Advocate for Petitioner. Mr. Muhammad Ayitb KJtan, Advocate for State. Date of hearing: 12.1.1992. judgment During a raid conducted into the dwelling house of accused Abdul Haleem by D.S.P., Mansehra with his police party on 26.11.1991 at 10-30 a.m. 3425 grams 'charas'and one bottle liquor was recovered. The accused was arrested and a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 registered on the report of Syed Farman Shah Inspector .S.H.O. 2. The learned defence counsel argued, that the case does not fall under article 3 and the maximum punishment provided for an offence falling under article 4 of the Prohibition Order would be two years imprisonment in case of owning or possessing intoxicants like cliaras and liquor. He then drew my attention to article 16 of the Order which relates to the cognizance of certain offences and stated that an offence falling under article 3 shall be cognizable only if committed at a public place. He also referred to article 22 and stated that the police did not care to obtain any warrant from a Collector, Prohibition fficer or a Magistrate before making search into the house of the accused. 3. The contraband has been allegedly recovered from the residential house of the accused which is definitely not a public place. The police was, therefore, requited to obtain a warrant under article 22 of the Order before making an entry into the house. Reliance has been rightly placed on Muklitar alias Karoo v. The State, 1988 P.Cr.LJ. 591 and Suleman . Tlie State , 1990 P.Cr.LJ. 1302. The controversy as to whether the case falls under article 3 or 4 of the order and cognizable or not is open to question. Admittedly no search warrant under article 22 has been obtained. 4. The case, in the circumstances, being thus prima facie arguable accused Lpetitioner shall be admitted to bail in the sum of Rs.50,000/- with two sureties | each in the like amount and to the satisfaction of the Ilaqa Magistrate. (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 Cr PLJ 1992 Cr.C( Peshawar ) 311 [Abbottabad Bench] Present: MIAN MUHAMMAD AJMAL KHAN, J ALI ZAMAN-Petitioner versus THE STATE-Respondent Criminal Misc. No.195 of 1991, accepted on 13.1.1992. Bail- —Offence under Sections 5/10 of Hudood Ordinance-Bail—Grant of—Prayerfor-Contention that petitioner was taken into custody on 25.7.1991 and was not produced before Magistrate within 24 hours as equired by law- Investigating Officer stated that petitioner was apprehended on 25.7.1991 but was only associated with investigation and was formally arrested on 26.7.1991 and he confessed his guilt before agistrate on 27.7.1991-Held: Police is under legal obligation to produce accused before Magistrate within 24 hours under Section 61 of Cr.P.C. and without orders of Magistrate under Section 167 Cr.P.C., etention would amount to illegal detention—Bail allowed. [Pp.312&313]A Mr. Anwar Kliurshid Turk, Advocate for Petitioner. Qazi AbdulJalil, Advocate for State. Date of hearing: 13.1.1992. judgment The petitioner has approached this Court for his release on bail in-a case registered against him vide FIR No.87 dated 25.7.1991, Police Station Balakot under Sections 5/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He filed an application for bail in the Court of MIC Balakot and thereafter before Sessions Judge Mansehra ,. who rejected his bail applications vide orders dated 13.8.1991 and 21.8.1991 respectively. 2. The learned counsel for the petitioner contends that the petitioner was taken into custody by the police on 25.7.1991 and was kept in illegal confinement. His formal arrest has been shown on 26.7.1991 and was produced for confessional statement before the Magistrate on 27.7.1991 and as such the confessional statement carries no value. He referred to the affidavit of Mst. Noor-un-Nisa the complainant wherein she has stated that she has not been subjected to Zina by the petitioner, and that she has been allowed bail, as such on the principle of consistency the petitioner is entitled to be released on bail. 3. The learned State counsel opposed the bail application but when he was confronted about the illegal confinement of the petitioner by the police he conceded that the police could not detain him without the orders of the competent Court. 4. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. 5. On 21.12.1991 this case was fixed for arguments (and) the learned counsel for the petitioner brought to the notice of the Court that the petitioner was-taken into custody on 25.7.1991 and was not produced before the Magistrate within 24 hours as required by law. Accordingly the Investigating Officer was summoned to explain as to why the petitioner was not produced within 24 hours before the Magistrate. In compliance the Investigating Officer appeared today who stated that the petitioner was apprehended on 25.7.1991 but was only associated with the investigation and was formally arrested on 26.7.1991 and on 27.7.1991 he confessed his guilt before the Magistrate. This practice is not only illegal but also highly abuse of police powers. Under Section 61 Cr.P.C. the police is under legal obligation to produce the accused within 24 hours before the Magistrate and without the orders of the Magistrate under Section 167 Cr.P.C. the detention would amount to illegal detention. As there is no plausible explanation for the detentionof the petitioner from 25.7.1991 to 26.7.1991, therefore, I would allow this application. The petitioner shall be released on bail on furnishing bail bond in the sum of Rs.50 ,000 /- with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate. (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 Cr PLJ 1992 Cr.C( Peshawar ) 313 Present: J.D. AKBARJI, J SAHIBZADA-Petitioner versus THE STATE-Respondent Criminal Misc. No.178 of 1992, dismissed on 6.5.1992. Bail-- -—Offence under Sections 392/342 PPC and .Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979—Bail on statutory ground-Prayer for-Petitioner is charged with offences of similar nature in a number of cases of various Police Stations—Held: Opinion can be formed about petitioner being a dangerous criminal-Petition dismissed. [Pp.314&315]A,B&C Mian Nisar Muhammad, Advocate for Petitioner. Mr. Shahabuddin Burq, Law Officer for State Date of hearing: 2.5.1992. judgment Sahibzada son of Ghani-ur-Rehman is implicated in case FIR No.180 dated 25.4.1989 under Sections 392/342 PPC read with Section 14 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 Police Station Katlang District Mardan. The accused/petitioner was charged in some other cases and was in the lock-up when the police obtained his custody in the instant case on 27.2.1990. The trial in the case has commenced since 9.4.1992 and at present is in abeyance as the case file has been requisitioned by this Court for decision of the instant application for grant of bail. Earlier applications for grant of bail on merits were dismissed by the Magistrate and the Sessions Court. The accused/petitioner instituted applications for grant of bail under the third proviso of Section 497 Cr.P.C. and the same were dismissed by the Magistrate and the learned Additional (Sessions) Judge-I of Sessions Court, Mardan under the 4th proviso of Section 497 Cr.P.C. by forming opinion that the accused/petitioner is a hardened and desperate criminal. 2. The learned counsel for the accused/petitioner contended that the accused/petitioner is entitled as of right to the grant of bail under Section 497 Cr.P.C. as the trial has not concluded within two years of his arrest. The opinion formed by the learned Judge of the trial Court under the 4th proviso is not warranted under the law as the accused/petitioner has not been convicted of any offence which may point out that the accused/petitioner is a hardened/desperate or dangerous criminal. It was further contended that the co-accused Hukam Dad, Shafiullah and Muhammad Israr have been allowed bail on the erits of the case and there is no evidence or material to connect the accused/petitioner with the alleged offences. The learned counsel for the State submitted that the accused/petitioner is charged in a number of cases for such like offences and the learned Judge of the trial Court has rightly opined that the accused/petitioner is a hardend and desperate criminal. 3. In this case the occurrence has taken place on 24.4.1989 and the accused/petitioner was taken into custody by the police on 27.2.1990 from prison where the accused/petitioner was in detention in some other cases. The accused/petitioner made confessional statement on 4.3.1990 and has been identified by the complainant. Reasonable grounds exist for believing that the accused/petitioner is guilty of the offences with which he is charged. Therefore, the application does not merit consideration on this factual aspect of the case. 4. The 4th proviso is an exception to the third proviso of Section 497 Cr.P.C. This proviso over-rides the mandatory provision of grant of bail to an accused person who has remained in detention for a continuous period exceeding one year on the charge of the offence not punishable with death or has remained in detention for a continuous period exceeding two years on a charge of offence punishable with death and the trial for such offences has not concluded. The word 'Criminal' has not been given any definition either under Section 497 Cr.P.C. or other provisions of Code of Criminal Procedure. The ordinary dictionary meaning of 'Criminal' in noun is 'a person guilty of crime' and adjectively 'involving or concerning crime'. This word 'Criminal' necessarily will not include a previously convicted accused person as the word 'convicted offender' has been used disjunctively in the proviso. The 4th proviso of Section 497 Cr.P.C. is exception to the effect, firstly that the third proviso shall not apply to a convicted offender and secondly to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal. In the first instance, no opinion is to be formed by the Court whereas in the second instance, the Court is to form an opinion in the circumstances and facts of each case against a person, being a hardened criminal, desperate criminal or dangerous criminal. This opinion of the Court is neither a decision nor a judgment or for that matter an order based on evidence produced before the Court but an observation of the Court about a person who is charged with an offence in the circumstances and facts of each case and thus subjective in its application to the case and the guilt, involvement or concern of the person with the crime. 5. The accused/petitioner is charged with offences (of) similar nature in a number of cases of various police stations as mentioned in the Zimnis of this case B and consequently opinion about the accused/petitioner can be formed; of his being a dangerous criminal. 6. The application is, therefore, dismissed and the case file of the learned J_ Judge of the trial Court should be sent immediately for holding the trial of the r" accused/petitioner and other accused persons. (MBC) (Approved for reporting) Bail refused

PLJ 1992 Cr PLJ 1992 Cr.C( Peshawar ) 315 [Abbottabad Bench] Present: MIAN MUHAMMAD AJMAL KHAN, J SADAQAT AL1 alias PITTI-Accused-Petitioner versus THE STATE and another-Respondents Criminal Misc. (Q) No.219 of 1991, accepted on 26.2.1992. Approver- —Murder-Offence of-Graht of pardon to petitioner-Quashment of pardon proceedings-Prayer for~Whether an accused who is granted pardon under Sections 337/338 of Cr.P.C. can revert back to his position of accused- Question of-Section 339 of Cr.P.C. deals with eventuality of prospective repudiation by approver who can be reverted back to position of accused on giving false evidence-Held: In law, there is no bar for accused to repudiate from his status of an approver-Held further: Not only abuse of process of Court appears to have taken place but question of violation of guaranteed fundamental rights in Articles 13 and 14 of Constitution is also involved, therefore jurisdiction under Section 561-A of Cr.P.C. could be pressed into service-Petitioner allowed to repudiate his position as approver. [Pp.318&319]A,B,C&D Mr.Muhammad Akbar Klian Swati, Assisted by Mr. Fazl-e-Haq Abbasi, Advocate for Petitioner. Mr. Farakh Jawad Pani, Advocate for State. Mufti Muhammad Idrees and Mr. Abdullah Jan Mirza, Advocates for Complainant. Date of hearing: 26.2.1992. judgment The petitioner herein, through this petition under Section 561-A Cr.P.C. has sought the quashment of pardon proceedings and consequent statement of the petitioner recorded as an approver in case FIR No.66 dated 8.5.1991 under Section 302 Qisas and Diyat Ordinance, 1991 read with Sections 201/104/34 PPC, Police Station Lora, Tehsil and District, Abbottabad. 2. The dead body of Zahoor-ur-Rehman with his Suzuki car No.3473/RIP was found from a ravine on 4.2.1991 and it was presumed that he had died due to the accident and consequently was burned. Subsequently, the complainant, from different sources came to know that he was killed by Shaukat Ali s/o Yar Muhammad on account of money dispute and the incident was given a colour of an accident. Hence he made an application to the Senior Superintendent of Police Abbottabad on 1.4.1991 for exhumating the dead body of his deceased brother and conducting postmortem thereon and taking legal action against the accused, which was marked to SHO Lora for immediate legal action, who after conducting aa inquiry under Section 1S6(3) Cr.P.C, registered FIR No.66 on 8.5.1991 oa the basis of the said application and started investigation of the ease, After the arrest of the accused the CIA Police moved an application to the District Magistrate, Abbottabad on 29.9.1991 stating that accused Sadaqat All hoi; volunteertd to disclose the facts of the ease and intends to become an approver and in this regard he (accused) also made-an application, these applications were marked to Sub- Divisional Magistrate for disposal, who allowed the applications by granting him pardon vide his order dated 29,9,1991 and recorded his statement as an approver, 3. The learned counsel for the petitioner contended that the petitioner was kept in police custody for a long time prior to the date of arrest which hag been shewn on record as 2SJ.1991 and every type ef torture was exercised en him and he was made to believe that h§ can only save his skin if he offers himself ai an approver in the ease. He submitted that the entire proceedings under Section 337 Cr.P.C. were carried out after applying third degree method by the police and the extracted statement cannot be said to be an independent and credible one, He also assailed the' legality of Section 337 Cr.P.C. and ontended that since Sections 337 and 33S Cr.P.C. have been declared by the Federal Shariat Court to be repugnant to the injunctions of Holy Quran and Sunna to the extent that no tendering ef pardon Ui an aeeempliee can be made in §as§ q¥ effenet punishable with 'hadd' and 'tadr' whleh relate le 'HaqukAbd', the right ef in individual, He further eenleadid thai the said sections have een amended by Criminal Law (Amtadfflgal) Qrdlnanee 1991 wherein It has bten prevtded thai ae pgf§§a §h§ll be {indited pard§a who i§ invelved in an effenug relating l§ 'hurt' @r 'Qall' witheut thg p§¥mi§§i0a ef tht vietim er, the heir § §f the vietim. He iuteaiftid thai Ihgfi i§ n@ Igpl ebsfaeie la the way ef tht petitioner te repudiate his status ef ib apprevif and te rgvirt feagk t§ the pesiiian ef an aeey§gd : Hi referred le II anil 14 §f thg e§a§Htyli§a whiih previ4 : that s§ per§en a§gu§§d ef §fl be compelled to appear as a witness and no person shall be subjected to torture for the purpose of extracting evidence. Relies on NLR 1978 Cr.606, PLD 1991 FSC 139 and unreported judgment of Peshawar High Court in writ petition No.355 of 1989 which was approved by the learned Supreme Court of Pakistan in Civil Petition No.353-P of 1989 and a Civil Review Petition No.l4-P of 1990. 4. The learned counsel for the complainant vehemently opposed this petition and submitted that petition under Section 561-A Cr.P.C. is incompetent and unmaintainable. He contended that the petitioner has given a statement as an approver at his own free will which is apparent from his own application, as such he cajjnot be allowed to repudiate from his position at this stage. He contended that his statement was recorded after having obtained the consent of the legal heirs of the deceased who have granted him pardon and in view of the Criminal Law (Amendment) Ordinance, 1991 the requirements of permission of ictim or the heirs of the victim have been fulfilled, therefore this evidence cannot be gone into at this stage and it is only for the trial Court to adjudge the same at the time of trial, and the petitioner at the present cannot be allowed to repudiate from the position of an approver. 5. The learned State counsel also adopted the arguments of the learned counsel for the complainant and submitted that the petitioner cannot be permitted to change his position at this stage. 6. I have given due consideration to the submissions made by the learned counsel for the parties and have gone through the record of the case. 7. The main ingredients of Section 337 Cr.P.C. are that in the case of any offence triable exclusively by the High Court or Court of Sessions, on any offence punishable with imprisonment which may extend to ten years or seven years, the District or a Sub-Divisional Magistrate may, at any stage of the investigation or inquiry into, or trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his nowledge relative to the offence and to every other person concerned whether as principal or abettor, in the commission thereof. 8. Under Section 338 Cr.P.C. the High Court or Court of Sessions, can exercise the powers to grant pardon at any time before passing of the judgment and can tender pardon cither themselves or can order the District Magistrate to tender the pardon to any person supposed to have been directly (or) indirectly concerned with such offence. 9. It may be noted that Sections 337 and 338 Cr.P.C. have already been amended by Criminal Law (Amendment) Act, 1991 wherein it has been provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatal without permission of the victim or the heir of the victim. Herein the judgment The petitioner herein, through this petition under Section 561-A Cr.P.C. has sought the quashment of pardon proceedings and consequent statement of the petitioner recorded as an approver in case FIR No.66 dated 8.5.1991 under Section 302 Qisas and Diyat Ordinance, 1991 read with Sections 201/104/34 PPC, Police Station Lora, Tehsil and District, Abbottabad. 2. The dead body of Zahoor-ur-Rehman with his Suzuki car No.3473/RIP was found from a ravine on 4.2.1991 and it was presumed that he had died due to the accident and consequently was burried. Subsequently, the complainant, from different sources came to know that he was killed by Shaukat Ali s/o Yar Muhammad on account of money dispute and the incident was given a colour of an cident. Hence he made an application to the Senior Superintendent of Police Abbottabad on 1,4.1991 for exhumating the dead body of his deceased brother and conducting postmortem thereon and taking legal ction against the accused, which was marked to SH Lora for immediate legal action, who after conducting mi inquiry under Section 136(3) Cr.P.C, registered FIR No.66 ob 8.5.1W1 on the basis of the said application and started investigation of the case, After the arrest of the accused the CIA Police moved an application to the District Magistrate, Abbottabad on 29.9,1991 stating that accused Sadaqat Ali has olunteered to disclose the facts of the case and intends to become an approver and in this regard he (accused) also made• an application, these applications were marked to Sub- Divisional Magistrate for disposal, who allowed the applications by granting him pardon vide his order dated 29.9.1991 and recorded his statement as an approver, 3, The learned counsel for the petitioner contended that the petitionif was kept in police custody for a lung time prior to the date of arrest which has beea shown on record as 25,9,1991 and every type ef torture was exercised on him and h§ was made to believe that he can only save his skin if he offers himself ai an approver in the ease, Hg submitted that the entire proe§§dinp under Stetion 317 Cr.P.C. were carried out after applying third degree method by the police and the extracted statement cannot be said to be an independent and credible one. Me also assailed the'legality of Section 337 Cr.P.C. and ontended that since Sections 337 and 338 Cr.P.C. hav been declared by the Federal Shariat Court to be repugnant to the injunctions of Holy Quran and Sunns to the extent that no tendering of pardon to an ieeempliee ean be tnadi in eas© of ©ff§n§§ punishable with 'hadd' and 'tasdr' whleh relate te Haqul=Abd', the right of §n individual, H further contended that the said §§etS§ni have een amended by Criminal Law (Amendment) Ofdlnineg 1191 wherein it has been provided that bo psnoa §haU be tinted pirden who i§ invelved in an effgnoi relating te 'hurt' §f 'Q§tl' without the pg?mi§§i§n §f thi vietim er, the helf§ ef ih§ vteira : He lubraUted that thifi ig n§ legal efe§lftele la the w§y ef tht petitioner to repudiaw his status ef m appr§v§f and te revert baek t§ lh§ pasitiM yf an a^eusii Hi fifirred ib ArlMe§ 11 and W §f thg eeB§iiiuli§a whigh pravidy thai m per§ea mmmd of m be compelled to appear as a witness and no person shall be subjected to torture for the purpose of extracting evidence. Relies on NLR 1978 Cr.606, PLD 1991 FSC 139 and unreportcd judgment of Peshawar High Court in writ petition No.355 of 1989 which was approved by the learned Supreme Court of Pakistan in Civil Petition No.353-P of 1989 and a Civil Review Petition No.l4-P of 1990. 4. The learned counsel for the complainant vehemently opposed this petition and submitted that petition under Section 561-A Cr.P.C. is incompetent and unmaintainable. He contended that the petitioner has given a statement as an approver at his own free will which is apparent from his own application, as such he cannot be allowed to repudiate from his position at this stage. He contended that his statement was recorded after having obtained the consent of the legal heirs of the deceased who have granted him pardon and in view of the Criminal Law (Amendment) Ordinance, 1991 the requirements of permission of ictim or the heirs of the victim have been fulfilled, therefore this evidence cannot be gone into at this stage and it is only for the trial Court to adjudge the same at the time of trial, and the petitioner at the present cannot be allowed to repudiate from the position of an approver. 5. The learned State counsel also adopted the arguments of the learned counsel for the complainant and submitted that the petitioner cannot be permitted to change his position at this stage. 6. I have given due consideration to the submissions made by the learned counsel for the parties and have gone through the record of the case. 7. The main ingredients of Section 337 Cr.P.C. are that in the case of any offence triable exclusively by the High Court or Court of Sessions, on any offence punishable with imprisonment which may extend to ten years or seven years, the District or a Sub-Divisional Magistrate may, at any stage of the investigation or inquiry into, or trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of (he whole of the circumstances within his nowledge relative to the offence and to every other person concerned whether as principal or abettor, in the commission thereof. 8. Under Section 338 Cr.P.C. the High Court or Court of Sessions, can exercise the powers to grant pardon at any time before passing of the judgment and can tender pardon cither themselves or can rder the District Magistrate to tender the pardon to any person supposed to have been directly (or) indirectly concerned with such offence. 9. It may be noted that Sections 337 and 338 Cr.P.C. have already been amended by Criminal Law (Amendment) Act, 1991 wherein it has been provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qaial without permission of the victim or the heir of the victim. Hrein the requirement has been accomplished by obtaining the permission of the heirs before the lender proceedings. Section 339 Cr.P.C. provides that where pardon has been tendered and the Public Prosecutor certifies that in his opinion the evidence is false and the conditions of pardon have not been complied with then such person may be tried for such offence or offences for which he had been tendered pardon and that he shall not be tried jointly with the other accused and shall be entitled to plead at such trial that he has complied with the conditions upon which such lender was made. It follows that the requirement of Section 337 Cr.P.C. is only to lender the pardon to approver and then to detain him in custody until the termination of Irial and he can only be examined at the trial and if found by the Public Prosecutor lhal he is nol giving the truthful narrations of the offence then he can be tried for the offence for which he had been tendered pardon. Here in the instant case this procedure has not been adopted and followed. The record shows lhal two applications were made one by the police and Ihe olher by accused before ihc Districl Magistrate who referred ihem to Sub-Divisional Magistrate for disposal. The Sub-Divisional Magistrate after granting the pardon recorded the stalement of the accused/approver under Section 164 Cr.P.C. and kept the same in Court for necessary action. Any way at this stage I would refrain to comment about the legality and admissibility or otherwise regarding the statement of the approver recorded by the Sub-Divisional Magistrate. Section 339 Cr.P.C. deals with the eventuality of prospective repudiation by the approver that in the event of his giving false evidence or concealing anything, he may be treated and tried as an accused for the offence in respect of which the pardon was tendered. It implies that if on account of giving false evidence he can be reverted back to the position of an accused at the later stage of trial the question arises that if an approver at an early stage totally disowns the lender of pardon then in that event, why cannot he repudiate his status of being an approver and be treated as an accused at any stage before the Irial. This question was dealt wilh in Muhammad Naeem v. Assistant Commissioner Jhang (NLR 1978 Cr.606) wherein it was held that in view of Fundamenial Rights (Article 13 and 14 of the Constitution), the accused can repudiate his status as an approver whether the permission and the tender of pardon and his own readiness to be an approver was initially there or not, for by denying him such a right the protection afforded to him by these fundamental rights would, in substance be denied to him. This judgment was followed by the learned DB of Peshawar High Court in writ petilion No.355/89 and was approved by Ihe learned Supreme Courl of Pakislan in Civil Pelition No.353-P of 1989. 10'. Clause (b) of Article 13 of Ihe Conslilulion of Islamic Republic of Pakislan provides that no person accused.of an offence shall be compelled to be a witness against himself and Article 14(2) provides that no person shall be subjected to torture for the purpose of extracting evidence. Here the petitioner's case is lhal he was taken into cuslody by police long before 25.9.1991 and was subjected to high degree of torture and was induced to make a statement according to their wishes else he was threatened of dire consequences. In law too, there seems to be no bar for the accused to repudiate from his status of an approver because this right is available to him if he does not speak the truth in the opinion of the Public Prosecutor at the trial, then he can be treated as an accused and tried as such. If this right is available at a subsequent stage for not telling the truth, he can avail the same right when he disowns the tender of pardon and repudiates his status as an approver and can consequently revert back to the position of an accused as he under the Constitution cannot be forced to give evidence at the trial against his desire. 11. As far the objection that a petition under Section 561-A Cr.P.C. is not ompetent, suffice would be to say that the High Court has been invested with unlimited powers to make any order to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Inherent powers of the High Court are very wide and undefined. It can make all such orders which may render real and substantial justice. In the instant case not only the abuse of the process of the Court appears to have taken place but the question of violation of guaranteed fundamental rights is also involved, therefore, in such ircumstances the jurisdiction under Section 561-A Cr.P.C. could be pressed into service to secure the ends of justice. 12. Th6 upshot of the above discussion is that this petition is allowed to the extent that the petitioner can repudiate his status as an approver, he shall hence onward be treated as an accused in ihc case. The prayer of grant of bail is refused. The trial court may, however, consider the question of bail in accordance with law, if an application is moved in this behalf. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Lahore ) 319 [ Multan Bench] Present: Kl IAI.ID PAUL KHWAIA, J MUHAMMAD AMANULLAH-Petitioner versus THE STATE-Respondent Criminal Revision No.l 16 of 1989, accepted on 1.6.1992 Surety Bond-- —Surety bond—Forfeiture of—Challenge to—Whether transferee court could forfeit surety bond executed before another Court—Question of—Surety bond was executed before Sessions Court and afterwards case was transferred to Special Court for Speedy Trials who forfeited bond-Held: Special Court had no jurisdiction and was not competent to make an order under Section 514 of Cr.P.C. and only competent court which could take action under said provisions of law, was Sessions Court—Petition accepted. [Pp.320&321]A&BAIR (30) 1943 Bombay 178, followed by PLD 1970 Karachi 46,1977 P.Cr.L.J 46 ( Karachi ), NLR 1983 Criminal 24 ( Karachi ) and 1986 P.Cr.L.J. 311 ( Lahore ) rel. Sardar Tariq Sher Klian, Advocate for Petitioner. Mehr Muhammad Salecm, Advocate for State. Date of hearing: 1.6.1992. judgment This revision petition is directed against order dated 5.7.1989 whereby the learned Special Judge, Punjab Special Court Dera Ghazi Khan, constituted under the Special Courts for Speedy Trials Ordinance, 1987 imposed a penalty of Rs. 50,000/- on Amanullah petitioner under Section 514 Cr.P.C. 2. The relevant facts, in brief, which gave rise to the present revision petition are that on 19.6.1986 at Police Station Harrand, District Rajanpur, a case under Section 302 PPC was registered against Muhammad AH accused. On 21.12.1988, the learned Sessions Judge, Rajanpur, admitted the said accused to bail in the sum of Rs, 1,00,000/- with one surety. Amanullah-petitioner stood surety for the said accused who continued to appear before the Sessions Court during the pendency of the case in the said Court. In May, 1989, through a notification, the case was transferred to a Special Court for Speedy Trials. On 3.6.1989 when the ca.-e was laid before the learned transferee court, the accused failed to enter appca-ance whereupon a notice was issued to the petitioner directing him to produce the accused in court. He appeared in court on 20.6.1989 but could not produce the accused. He was asked to explain as to why the bond should not be forfeited. He submitted his explanation which was not considered satisfactory. A fresh notice was issued to him directing him to explain as to why the amount of the bond i.e. Rs. 1,00,000/- should not be realized from him. The petitioner submitted his repl ontesting liability to pay the said amount. However after hearing the parties' counsel, the learned Special Court vide the impugned order imposed a penalty of Rs. 50,000/- on the petitioner. Feeling aggrieved, he has come up in revision. 3. I have heard the parties' counsel and have also gone through the material available on record. 4. Learned counsel for the pclitioner has vehemently maintained that in the present case, the learned Special Court had no jurisdiction to impose any penalty under Section 514 Cr.P.C. and that the only court competent to take such action . was the Sessions Court before which the bail bond was submitted. In this connection he has relied on a number of authorities of various courts. In Ballablulas Moliram Gupta v. Emperor (A.I.R. (30) 1943 Bombay 178) it was held that where by a bond an accused binds himself to attend any particular court but fails to appear in another court to which the case is subsequently transferred, itcould not be said, on the construction of the bond, that the accused had broken the condition of the bond. It was further held that where an accused executes a bond to appear before a particular court, it is that court alone which has jurisdiction to forfeit the bond and not the court to which the case is subsequently transferred. This view was reiterated in Haji Abdul Ghani v. Tlie State (PLD 1970 Karachi 46), Muhammad v. Tlie State [1977 P.Cr.LJ. 46 (Karachi)], Hassan v. Tlie State [N.L.R. 1983 Criminal 24 (Karachi)] and Haji Muhammad and 3 others v. Tlie State [1986 P.Cr.LJ. 311 (Lahore)]. 5. Learned counsel for the Slate could not controvert the above stated legal position and conceded that he could not find any case law in which a contrary view was taken. I, therefore, have no hesitation in holding that the impugned order was without jurisdiction. The learned Special Court in the present case had no jurisdiction and tr 1 .-reforc was not competent to make an order under Section 514 Cr.P.C. The only court which could take action under the aforesaid provision of law against the petitioner was the Sessions Court. The revision petit on is, therefore, accepted and the impugned order is set aside. 6, A copy of this order shall be sent to the concerned Sessions Court for initiating proceedings againsi the peti'ioner in accordance with the law. (MBC) (Approved for reperting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C (Karachi) 321 [Sukkur Bench] Present: Si IAUKAT HUSSAIN ZUBEDI, J 0 Petitioner versus MANZOOR H dSSAIN and others-Respondents Criminal Revision No.84 of 1991, dismissed on 18.5.1992 Misjoinder of Charges-- —-Private complaint- Dismissal of-Challenge to-As per complaint, different incidents have been committed by and against different persons, and same have been joined up in one case-These incidents re not so connected intcr-se to form continuity of action in same proximity of time—Held: Reasoning of trial Judge in dismissing complaint, is well founded and there is no reason to 'differ with same- etition dismissed. [P.324]A,B&C Petitioner in person. Mr. Abdus Sallar Cliohan, Advocate for Respondents 1 & 3 to 6. Mr. Mushtaque Ahmad Amcr Mahai\ Advocate for A.A.G. Date of hearing: 18.5.1992. judgment This criminal revision application is preferred by applicant Moula Bux son of Ladho Khan challenging the order dated 17.11.1991 passed by the learned Special Judge, Anti-corruption, Sukkur who dismissed the direct complaint of the applicant under Section 203 Cr.P.C. The facts of the case are, that the applicant filed a direct complaint against the Respondents who are police officers for having committed offences u/s 161/162/163/164/220 PPC read with Section 5(2) of Act-II of 1947. This complaint was filed on 5.12.1989. The complainant states that due to election enmity accused Anwar Hussain in conspiracy with others lodged a false report on 22.1.1988 at P.S. Gambat against the complainant party for the theft of articles worth Rs. 67,MO/- vide Crime No.10/88.Moula Bux and Mirza Ujjan are haris of the complainant while Muhammad Iqbal alias Baloo is his close relative. Accused HC Anwar Hussain was posted as incharge outpost Khuhra, he arrested Muhammad Iqbal alias Balloo and demanded bribe of Rs: 70,00()/- from complainant. In consequence, he raided the house of the complainant to extort bribe and maltreated Baloo and Mir/a. After one month of lodging FIR 10/88 he arrested complainant's son Muhammad All and Lai Bux s/o Andal at Shahdad Kol textile Mills and demanded Rs: 1000/- each for their release. For two days they were wrongfully confined and maltreated with the result (that) the complainant party was forced to pay Rs. 2000/- as bribe for their release. This amount was paid in the presence of Cihulam Hussain, Mithal, Muhammad Ali and Lai Bux. The complainant sent telegrams to various authorities. On 20.7.1989 Head Constable Manzoor Ahmad alongwith Anwar Hussain, Darvcsh and others raided the house of the complainant and arrested his son Ahmad Hussain and also took away 4 bed sheets worth Rs. 1,000/-. On 22.7.1989, accused arrested another son of the complainant namely Ghulam-Hussain from the shop. Both Ahmad Hussain and Ghulam Hussain were kepi in wrongful confinement for one month and 15 days. Iqbal son of Andal and Mir/a were kept in wrongful confinement for 4 months. In the meanwhile the investigation of the case FIR No. 10/88 was transferred to CIA Police Khairpur. On account of this accused Manzoor Hussain got annoyed and arrested the complainant and kept him in custody for 24 hours. Again applications were made to higher authorities. About \ months afterwards, accused arrested Aziz Ahmed s/o Ali Khan from his house and involved him in a false case u/s 13-D Arms Ordinance. In the above circumstances the complainant has filed the present direct complaint, on 20.1.1990. Alter recording the statement of the complainant, the enquiry was marked to circle offieer, Khairpur. By a report dated 19.4.1990, the Circle Officer pointed out thai he recorded statements of witnesses, there was theft in the spare parts shop, for which the sons of the complainant were suspected. They were arrested by the police and released on bail by the Court. The complainant was not satisfied with this report, he therefore requested the trial Court to examine, his witnesses as they were not examined in the enquiry. The trial Court thereafter again made a back reference to the circle officer to examine the witnesses of the complainant. Accordingly, the witnesses of the complainant were also examined by the circle officer who then sent his report to the trial Court. The trial Court ultimately passed the order dismissing the complaint u/s 203 Cr.P.C. I have heard the complainant in person. Mr. Abdul Sattar Chohan, Advocate for the Respondents 1,3 to 6 and Mr. Mushtaque Ahmed Ameer Mahar, Advocate for AAG for the State. I have carefully gone through the facts and circumstances of the case so also the impugned order passed by the trial Court. The bare reading of the complaint will indicate (that) this is a case of misjoinder of accused and also misjoindcr of charges. In order to appreciate, T may refer to some of the allegations made in the complaint. The complainant states that on the night of 20.1.1988 a conspiracy was hatched by the accused on the basis of which a false case was got registered at ^Police Station, Gambat. It is not specified what was this conspiracy about,' who were its members, except bare allegations there was nothing to substantiate the factum of this conspiracy. Again the complainant states in para 9 of the complaint that his son Ghulam Hussain did not support Anwar Hussain in the local council election in which Anwar Hussain lust therefore on account of this enmity, a false case has been lodged. The complainant further states in para 10 of the complaint (hut Manzoor a relative of one Gul Hassan is accused in a murder case of Ali Khan Lashari father of A/i/ Ahmed. The deceased was complainant's brother in law. What bearing it has on this complaint case has not been explained. That accused Manzoor Ahmed HC who was Incharge of police post Khuhro arrested Muhammad Iqbal alias Baloo and also Mirza Ujjan and demanded Rs. 70,000/- as bribe from the complainant. Complainant further states that accused also raided his house and shop only 10 get money as bribe. Accused threatened complainant and also maltreated Iqbal and Mirza. Complainant further states (that) after one month HC Manzoor arrested his son Muhammad Ali and Lai Bux s/o Andal and demanded bribe of Rs.1000/- for the release of each of them. The complainant then goes on to show that on 20.7.1989 his house was raided. That subsequently the complainant was also arrested. That about 1 and a half month back Azi/ Ahmed was arrested and involved in a false case u/s 13.D.. All the above circumstances will go to show that different incidents have been committed by and against different persons without any evidence of sameness of transaction. Several incidents have been joined up in one case, while each of them appears to be independent transaction. These incidents are not so connected so as to form continunity of action in the same proximity of time. In other words this is not a case in which the series of acts are so connected together as to form a single or a complete transaction. As already mentioned different acts have been conducted in respect of different persons, therefore it has resulted in mis-joinder of charges and persons. The order passed by the trial Court is also on the same lines. The learned trial Judge has observed further that in respect of 2 incidents, one is the subject .matter of a case which is pending before Civil Judge and FCM Gambat while the other is pending before SDM, Khairpur. It will not be out of place to mention here that the reasoning of the learned trial Judge in dismissing the complaint is well founded and I do not find ny reasons to differ with the same.The upshot of the above discussion is that, this revision application has no merits and the same is accordingly dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Karachi ) 324 [Sukkur Bench] Present: SiIAUKAT HUSSAIN ZUBEDI, J GUL HASSAN-Petitioner versus KADIR BAKHSH and others-Respondents Criminal Revision No.44 of 1988, dismissed on 17.5.1992 Revision Against Acquittal— —.-Murder-Offence of-Acquittal of accused-Revision against-There was enmity between parties-Eye-witnesses being related to deceased, their evidence requires corroboration from some un-impeachable source—There is no independent corroboratory circumstance in this case-Trial court has properly evaluated evidence and has given cogent reasons for acquitting accused—It is now a settled principle of law that merely because an alternate view is possible, is no ground for interference by superior courts—Held: There is nothing in judgment of trial court to suggest that it is perverse or illegal- Held further: Accused have rightly been acquitted by trial court-Petition dismissed. [Pp.327&328]A,B,C&D Mr. Muhammad Daud Baluch, Advocate for Petitioner. Mr. Maqbool Ahmad Awan, Advocate for Respondents 1 to 3. Mr. Mushtaque Ahmad Ameer Mahar, Advocate for State. Date of hearing: 17.5.1992. judgment This revision application is filed on behalf of applicant Gul Hassan son of Kadir Bux who is aggrieved by the judgment dated 19.10.1987 passed by Learned Second Additional Sessions Judge, Shikarpur, whereby the Respondents Kadir Bux son of Rasool Bux, Aligul son of Muhammad Moosa and Moula Bux son of Hussain Bux were acquitted of the charges under Section 302/34 PPC for the murder of Ali Hassan Brohi. The applicant has challenged the acquittal of the above Respondents through this application. The prosecution case is that on 11.12.1985, the complainant Faqir Muhammad alongwith Ali Hassan, Muhammad Ayoob and Gul Hassan went to village Madeji with some work. After attending their work they all came back to the bus stand Madeji and were wailing for the bus in front of the hotel of Piaro Kharos when at 2.30 PM accused Kadir Bux Ali Gul and Moula Bux emerged from Madeji Bazar duly armed with guns. Accused Moula Bux abused the complainant and told him to run away as they will kill their enemy Ali Hassan. Thereafter Qadir Bux shot at chest of Ali Hassan, Moula Bux shot at Ali Hassan on right arm and right lumber region and Ali Gul shot (on) left arm and left side of Ali Hassan, as a result of which Ali Hassan fell down while the accused ran away firing in the air. The complainant and the witnesses due to fear had hid themselves inside a hotel. When (hey came out, they saw that Ali Hassan was bleeding. A cot was arranged. Ali Hassan was removed to Madeji Hospital, where on arrival Ali Hassan expired. The complainant then proceeded to police post Medeji where he lodged the report. The motive was stated to be an old land dispute between accused and Ali Hassan. ASI Rajab Ali Incharge of P.P. Madeji recorded the report and took up the investigation of the case. He visited the hospital and inspected the dead body, held inquest, secured clothes of deceased, handed over the body for post mortem examination, recorded statements of P.Ws Gul Hassan and Muhammad Ayoob. He also arrested accused Kadir Bux and Ali Gul, also recovered guns and cartridges from their possession, he inspected the place of wardat recovered 3 empties from wardat. On 16.12.1985 he arrested accused Moula Bux and after completing the investigation, he handed over the papers to SHO who submitted the challan.ccused pleaded not guilty and claimed to be tried. At the trial prosecution examined 9 witnesses. P.W.I Faquir Muhammad, P.W2 Gul Hassan, P.W3 Muhammad Ayoob, are the three eye witnesses. P.W4 is Medical Officer, P.W-5 Muhammad Juman, P.W6 Karim Bux Tapedar, P.W.7 Lashkar Khan Mashir, P.W.8 ASI Rajab Ali I.Q. and P.W.9 Muhammad Bux. The accused were examined u/s 342 Cr.P.C. they have denied the allegations and claimed false implication due to enmity. None of them examined any defence witness and except Qadir Bux, the other accused did not give statement on oath. I have heard the learned counsel for the applicant, so also the counsel for the Respondents and the counsel for the State. Learned counsel for the applicant has contended that, there were 3 eye witnesses in this case who have fully implicated the accused and their evidence was fully supported by the medical evidence. There was circumstantial evidence in the shape of recoveries. The evidence as to motive was also there right from the stage of FIR. All the material pieces of evidence have been discarded by the trial Court by misreading the evidence and also disbelieved the eye witnesses due to relationship. Mr. Maqbool Ahmed Awan, learned Advocate for the Respondents has argued that the trial Court has properly evaluated the evidence and given cogent reasons for not placing reliance on ocular testimony. Medical evidence belies ocular version, the motive is also false. The learned counsel fo^the State has supported the judgment of the trial Court. He states that the^c is no independent evidence in this case. The place of wardat was a thickly populated area, nobody has been examined as a witness in this case. The case appears to be doubtful and the trial Court has rightly acquitted the accused persons and no interference is called for in this case.Before I proceed any further. It may be noted that on behalf of the State no acquittal appeal is filed. The present revision application has been filed by a private party challenging the acquittal of the accused. In such type of revision application, the field and scope is very narrow. The Honourable Supreme Court has very recently laid down that unless it can be shown that the judgment of the lower court is perverse, that it is completely illegal, that no other conclusion can be drawn except the guill of the accused or there has been misreading of evidence resulting in miscarriage of justice (?). This authority is reported in 1992 SMR 96.I .shall now proceed to examine this matter in the light of the above authority of the Honourable Supreme Court.The incident has taken place at a bus stand of Madeji town. It has- come in the cross-examination of P.W.6 Karim Bux, tapedar, that the wardat has taken place at the bus stand of Madeji Town. The place of wardat is a busy spot where Suzuki stand, tanga stand, hotel, mechanic shops and Octroi post is situated. It is .jdosstaled by this witness 'that hotel of one Piaro Kharo«' is 15 feet from the wardat. From the evidence of P.W.6 Karim Bux one gets a clear picture that the place of wardat is a very busy place and all round there are hotels, shops, bus stand, tanga stand, Suzuki stand and an Octroi post. This will go to show that it was a thickly inhibited area, and people from all walks of life are bound to be available at that place. Yet it is surprising to note that not a single witness from that place is either cited or examined as a witness in this case. It is virtually impossible to believe that nobody from that area had seen the commission of this crime. In these circumstances it becomes extremely suspiscious, that the entire prosecution case was resting on the ocular evidence of 3 witnesses who are closely related to each other and the deceased. In this regard the investigating officer was also asked if he examined any body from that area either on the day of wardat, the following day or the day thereafter, he replied in the negative. The 3 eye witnesses in this case are P.W.I Faquir Muhammad who is the complainant, P.W.2 Gul Hassan and P.W.3 Muhammad Ayoob. The complainant had stated in the FIR, that he and the other witnesses had hidden themselves in a hotel and it is only after the departure of accused, that they came out. Similarly, P.W.2 Gul Hassan had also made the same statement before the police. This will go to show, that since the witnesses were in hiding, they could not have seen the actual part played by each of the accused person. Yet in their deposition in court these witnesses are giving the complete details of the role performed by each of the accused. This obviously was not possible, therefore, to make it possible, the witnesses improved upon their previous statements and have deposed in the Court that the wardat has taken place right before their eyes, by giving the details from the first gun shot to the last and also by which of the accused. This obviously indicates a deliberate attempt on the part of the witnesses to implicate the accused. Then again, there is enmity between the parties. In this regard the complainant has mentioned in the FIR as well as in his deposition that there was a dispute over land between the parlies. The accused Qadir Bux in his statement u/s 342 Cr.P.C. has also stated that his sister Mst. Sahib Khatoon was married to his cousin Suleman, said Suleman killed Mst. Sahib Khatoon declaring her Kari with deceased Ali Hassan. This will show that the deceased was a condemned man having been declared a KARO. Accused Qadir Bux has also produced certified copy of FIR No.103/85 regarding the murder of Mst. Sahib Khatoon which contains the name of deceased Ali Hassan as KARO. These circumstances clearly indicate that enmity between the parties was there, as such the eye witnesses being related to the deceased, their evidence was required to be corroborated from some unimpeachable source. This is exactly what has been observed by the trial Court also. Furthermore, there is no independent corroboratory circumstance in this case and this is also the view of the trial Court. The recoveries are of no consequence as the same were not sent for expert examination. Moreover the 2 suns arc also licenced. The medical evidence also cannot be used for corroboration, as the medical officer has admitted that injuries could be the result of 2 shots, while according to witnesses 3 shots were fired and all the 3 shots hit the deceased. B All the above circumstances clearly go to show that the trial Court has properly evaluated the evidence' and has given cogent reasons for acquitting the accused. As a result of my above discussion, there is nothing in the judgment of the trial court to suggest that it is perverse or illegal. It is not a case in which the only conclusion drawn is the guilt of the accused, in fact an alternate conclusion of the case being doubtful is more plausible from the evidence and circumstances of the case. The learned counsel for the applicant has tried to argue and show that the view taken by the trial Court is not the only view as another one is also possible. C This argument is misconceived for, it is now a settled principle of law, that merely because an alternate view is possible from the evidence on record is no ground for interference by the Superior Courts. In this regard I may refer to PLD 1964 Karachi 356. I In the result, I am of the considered view, that the accused have been rightly I acquitted by the trial Court. Neither could I find any thing in the judgment of thelower Court to show that it was perverse or illegal, nor was it shown to be case of misreading of evidence. Accordingly, 1 am of the view that there is no merit in this revision application, which is hereby dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 328 [Sukkur Bench] Present: SllAUKAT HUSSAIN ZUBEDI, J Dr. AHMED ALI-Appellant versus AGHA MIR ALVI and another-Respondents Criminal Acquittal Appeal No.79 of 1986, dismissed on 4.6.1992 Appeal against Acquittal-- —Offence under Sections 364 and 220 PPC-Acquittal of accused-Appeal against-On comparison of story as given in complaint with that given in habeas coipus petition, factum of kidnapping of complainant by accused stands falsified—In presence of complainant before High Court, when accused made statement that neither he arrested nor wanted complainant in any case, he remained a silent spectator and this was not natural conduct of a prudent man- -Implicit reliance cannot be placed on evidence of complainant and his witnesses as latter are related to former and there existed inimical relations between accused and complainant-Held: Case against accused is doubllm >nd trial Court has rightly acquitted him—Appeal dismissed. [Pp.331,332,333&334]A,B,C,D,E,F&G Mr. Muhammad Daud Balucli, Advocate for Appellant. Mr. Ganwhar Klian Qureshi, Advocate for Respondent No.l. Mr. Mushtaq Ahmed Amir Mahar, Advocate for State. Date of hearing: 3.5.1992. judgment This appeal against acquittal is filed on behalf of appellant Dr. Ahmed Ali son of Imdad Ali Kolachi challenging the judgment dated 30.9.1985 delivered by the learned Second Additional Sessions Judge, Larkana whereby he acquitted the Respondent Agha Mir son of Mian Nooruddin Alavi accused in direct Complaint Case No.55 of 1982 lodged by the appellant for offences under Sections 364 and 220 PPC. The appellant therefore, prays for the conviction of the respondent. The facts as alleged in the direct complaint filed on 20.12.1981 by the appellant are that he has two clinics, one at Lahori Mohalla, Larkana and another at Mahi Makol Village , Kambar. In the morning he sits at Larkana while in the afternoon he sits at the other clinic. It is alleged that some report was made against the relatives of the complainant which was investigated by the accused, who committed excesses on them, for which the complainant made many complaints against the accused. It is said on account of this annoyance, the accused tried to implicate the complainant in a false case, for which also the complainant made many complaints against the accused to the higher authorities which had caused further annoyance to the accused who had also threatened the complainant. On 30.11.1981 at about 9.00 a.m. when the complainant was available at his clinic at Larkana where witnesses Kauro Khan Kolachi, Allahwarayo Kolachi and Muhammad Umar Kolachi were also present when accused alongwith his staff came there in a jeep. The complainant was called outside who came and spoke with the accused. Complainant was informed that DSP was making inquiries in respect of the complaints made by the complainant. The witnesses were already available there while the presence of complainant was required. The complainant sat in the jeep and went with the accused. After crossing Kamber-Mirokhan road, they saw a car standing, where the jeep was stopped. From the car 3 persons got down and forcibly made the complainant to sit in the car. Thereafter his eyes were tied and a bwqa was put over him. The accused told those persons not to spare the complainant. The complainant was taken away and after a drive of about 4/5 hours the car stopped and complainant was removed to a house, where one person was on guard duty as chowkidar. The complainant showed Holy Quran to the chowkidar to save him, who disclosed that they had planned to murder him, but as he has shown Holy Quran, therefore he will help him. After 3 days, those persons again took the complainant and left him about 3 miles away from Jacobabad. In the morning the complainant boarded a bus for Sukkur and thereafter proceeded to Larkana where he informed the witnesses and also gave telegrams. In the meantime a petition under Section 491 Cr.P.C. was filed before the High Court and the matter was fixed for 15.2.1981 on which date the accused was called, the complainant also appeared. The accused informed the Court that the complainant was neither required by him in any case nor was he detained by him. The said petition was dismissed as being infructuous. Thereafter on 20.12.1981 the complainant lodged the present direct complaint. The accused faced the trial and was acquitted as already mentioned above. 1 have heard Mr. Muhammad Daud Baloch Advocate for the appellant. Mr. Ghanwhar Khan Qureshi Advocate for the accused and so also Mr. Mushtaq Ahmed Amir Mahar Advocate for AAG for the State.The learned counsel for the appellant has submitted that in all, the appellant had examined 3 witnesses. PW 1 Dr. Ahmed Ali who is the complainant, PW 2 Kouro Khan Kolachi who is the relative and compounder of the complainant and PW 3 Muhammad Umar Kolachi who is also a relative of the complainant and had come to take medicine. It is contended by the learned counsel for the appellant that all 3 witnesses have fully supported the case and have fully implicated the accused but their evidence has been wrongly discarded by the trial court on the ground that they are interested witnesses, as they were related to the complainant. He further argues that the complainant has been consistently pursuing his grievance before various authorities and courts and as a last resort this complaint has been filed. The learned counsel states that this Court has the power to convict the accused in exercise of the powers under Section 423(2) Cr.P.C. and has also prayed for the conviction of the accused. On the other hand Mr. Ghanwar Khan Qureshi has submitted, that incident has taken place at 9.00 a.m., no idependent witness has been examined in this case. He states that the evidence of the witnesses who are all related to each other, requires corroboration which is not available in this case. Therefore' accused has been rightly acquitted by the trial court. The learned counsel for the State has also supported the judgment of the trial court and also states that accused has been rightly acquitted. The complainant has in all examined 3 witnesses including himself. PW 1 Dr. Ahmed Ali is the complainant. His evidence is at Ex.6. He has stated that he knows the accused who was SHO at P.S. Kamber. On 30.11.1981 he was sitting at his clinic when accused came in eep alongwith his staff and called him. The complainant met him, and was informed that he .has been called by DSP and he has come to take him. The complainant went with him. When they reached the road of Morokhan a car was already standing there with 3 persons. The accused handed him over to those persons and directed them to complete the work. After 3/4 hours they reached an abandoned house in which the complainant was kept under one chowkidar. After 4 days those persons again came, took him in the same car and left him on the road at about midnight time. In the morning he boarded a bus for Sukkur from where he made telegrams to S.P. and D.I.G. At present he neither has the copies of the telegrams nor the money receipts for the payment of the telegrams. When he was taken from his clinic, his dresser Kouro Khan, Muhammad Umer and Allahwarayo were available there. PW 2 Kouro Khan is another witness. His evidence is Ex. 12. He states that on the day of incident he was in the clinic of the complainant. PWs Muhammad Umer and Allahwarayo were also present. Accused had told the complainant that he had been called by the DSP. The complainant went with him in his jeep. When the complainant did not return till evening, he went to PS Kamber where he was told that they knew nothing about the doctor. He says he had filed petition under Section 491 Cr.P.C. In the meanwhile on 8.12.1981 the complainant came to Larkana and informed him that accused had abducted him andalso handed him over to dacoits. The last witness is PW 3 Muhammad Umar. His evidence is at Ex. 14. He states that on the day of incident he was sitting in the clinic of the complainant where PW Kouro, Allahwarayo and the complainant were present when accused came in the jeep and took him away. He was available uptil the evening time and after 8 days the complainant came back and informed him that he was abducted by the accused and handed over to dacoits who first confined him, then let him after 4 days. At the conclusion of the complainant's evidence the statement of the accused has been recorded under Section 342 Cr.P.C. The accused denied all the allegations and claims false implication. The accused did not lead any defence witness. However, the accused has produced various documents which are Ex. 18 to 21. I have carefully applied my mind and I have taken into consideration all the circumstances of the case. I have also perused the judgment of the lower court and I am of the considered view that the case against the accused is doubtful and he has been rightly acquitted by the trial court for the reasons next following.According to the complainant and his witnesses, the incident has taken place on 30.11.1981 at 9.00 a.m. when the accused came in a jeep alongwith his staff, called the complainant outside and, on the pretext that DSP has called him, the complainant went with him. Thereafter the complainant was handed over to dacoits who detained him for 3/4 days and then left him. The complainant came back, narrated the facts to his witnesses, thereafter on 20.12.1981 he lodged the direct complaint. but as he has shown Holy Quran, therefore he will help him. After 3 days, those persons again took the complainant and left him about 3 miles away from Jacobabad. In the morning the complainant boarded a bus for Sukkur and thereafter proceeded to Larkana where he informed the witnesses and also gave telegrams. In the meantime a petition under Section 491 Cr.P.C. was filed before the High Court and the matter was fixed for 15.2.1981 on which date the accused was called, the complainant also appeared. The accused informed the Court that the complainant was neither required by him in any case nor was he detained by him. The said petition was dismissed as being infructuous. Thereafter on 20.12.1981 the complainant lodged the present direct complaint. The accused faced the trial and was acquitted as already mentioned above. 1 have heard Mr. Muhammad Daud Baloch Advocate for the appellant. Mr. Ghanwhar Khan Qureshi Advocate for the accused and so also Mr. Mushtaq Ahmed Amir Mahar Advocate for AAG for the State.The learned counsel for the appellant has submitted that in all, the appellant had examined 3 witnesses. PW 1 Dr. Ahmed Ali who is the complainant, PW 2 Kouro Khan Kolachi who is the relative and compounder of the complainant and PW 3 Muhammad Umar Kolachi who is also a relative of the complainant and had come to take medicine. It is contended by the learned counsel for the appellant that all 3 witnesses have fully supported the case and have fully implicated the accused but their evidence has been wrongly discarded by the trial court on the ground that they are interested witnesses, as they were related to the complainant. He further argues that the complainant has been consistently pursuing his grievance before various authorities and courts and as a last resort this complaint has been filed. The learned counsel states that this Court has the power to convict the accused in exercise of the powers under Section 423(2) Cr.P.C. and has also prayed for the conviction of the accused. On the other hand Mr, Ghanwar Khan Qureshi has submitted, that incident has taken place at 9.00 a.m., no idependent witness has been examined in this case. He states that the evidence of the witnesses who are all related to each other, requires corroboration which is not available in this case. Therefore' accused has been rightly acquitted by the trial court. The learned counsel for the State has also supported the judgment of the trial court and also states that accused has been rightly acquitted. The complainant has in all examined 3 witnesses including himself. PW 1 Dr. Ahmed Ali is the complainant. His evidence is at Ex.6. He has stated that he knows the accused who was SHO at P.S. Kamber. On 30.11.1981 he was sitting at his clinic when accused came in jeep longwith his staff and called him. The complainant met him, and was informed that he .has been called by DSP and he has come to take him. The complainant went with him. When they reached the road of Morokhan a car was already standing there with 3 persons. The accused handed him over to those persons and directed them to complete the work. After 3/4 hours they reached an abandoned house in which the complainant was kept under one chowkidar. After 4 days those persons again came, took him in the same car and left him on the road at about midnight time. In the morning he boarded a bus for Sukkur from where he made telegrams to S.P. and D.I.G. At present he neither has the copies of the telegrams nor the money receipts for the payment of the telegrams. When he was taken from his clinic, his dresser Kouro Khan, Muhammad Umer and Allahwarayo were available there. PW 2 Kouro Khan is another witness. His evidence is Ex. 12. He states that on the day of incident he was in the clinic of the complainant. PWs Muhammad Umer and Allahwarayo were also present. Accused had told the complainant that he had been called by the DSP. The complainant went with him in his jeep. When the complainant did not return till evening, he went to PS Kamber where he was told that they knew nothing about the doctor. He says he had filed petition under Section 491 Cr.P.C. In the meanwhile on 8.12.1981 the complainant came to Larkana and informed him that accused had abducted him and also handed him over to dacoits. The last witness is PW 3 Muhammad Umar. His evidence is at Ex. 14. He states that on the day of incident he was sitting in the clinic of the complainant where PW Kouro, Allahwarayo and the complainant were present when accused came in the jeep and took him away. He was available uptil the evening time and after 8 days the complainant came back and informed him that he was abducted by the accused and handed over to dacoits who first confined him, then let him after 4 days. At the conclusion of the complainant's evidence the statement of the accused has been recorded under Section 342 Cr.P.C. The accused denied all the allegations and claims false implication. The accused did not lead any defence witness. However, the accused has produced various documents which are Ex. 18 to 21. I have carefully applied my mind and I have taken into consideration all the circumstances of the case. I have also perused the judgment of the lower court and I am of the considered view that the case against the accused is doubtful and he has been rightly acquitted by the trial court for the reasons next following. According to the complainant and his witnesses, the incident has taken place on 30.11.1981 at 9.00 a.m. when the accused came in a jeep alongwith his staff, called the complainant outside and, on the pretext that DSP has called him, the complainant went with him. Thereafter the complainant was handed over to dacoits who detained him for 3/4 days and then left him. The complainant came back, narrated the facts to his witnesses, thereafter on 20.12.1981 he lodged the direct complaint. It is important to note that in respect of this incident of 30.11.1981 there are 2 versions. One as given by the complainant and the second as given by PW Kouro Khan in Habeas Corpus Application No. 468/1981 Ex. 18. In respect of the same incident of 30.11.1981 at 9.00 a.m. PW 2 Kouro Khan filed a Habeas Corpus Petition bearing No. 468 of 1981 at the Sukkur Bench of the High Court. This petition is supported by an affidavit of PW Kouro Khan, as such the contents of the petition are on oath/solemn affirmation. This Habeas Corpus petition was filed on 1.12.1981 and in para 3 of the petition, PW Kouro Khan has stated that on 30.11.1981 at 9.00 a.m. Dr. Ahmed All was present at his clinic when 2 police constables came (and) forcibly took the complainant to police station Kambar, where the accused illegally detained the complainant Dr. Ahmed Ali at his police station without any lawful justification. Furthermore in para 4 of this petition PW Kouro Khan states that he approached the accused for the release of Dr. Ahmed Ali, but he refused to release him. Now if we compare the story as given in the complaint with the story given in the petition filed by PW Kouro Khan, it will at once be apparent, that the factum of kidnapping of the complainant by the accused stands falsified. The petition shows that on 30.11.1981 at 9.00 a.m. the complainant was forcibly taken to police station where he was illegally confined by the accused. On the other hand the direct complaint shows that accused himself had come in jeep, called out the complainant, spoke to him and on false pretext the complainant himself sat in the jeep, then the accused took him to Mirokhan road, where he handed him to dacoits. From the above observation it will appear, that the contents of direct complaint regarding kidnapping and the contents of PW Kauro Khan's petition, are not only in direct conflict with each other, but the factum of kidnapping is falsified. There is yet another circumstance which not only questions the natural behaviour and conduct of the complainant but it also casts serious doubts regarding the case as a whole. In this regard I will again refer to the Habeas Corpus Petition No. 468/81. The same was filed on 1.12.1981 and it came up for hearing on 15.12.1981. On this date that is 15.12.1981, the complainant was himself present in the Court, so was the accused Agha Mir. The order passed by High Court on 15.12.1981 shows that the accused in presence of complainant Dr. Ahmed Ali informed the Court, that he neither arrested Dr. Ahmed Ali nor was he 'wanted in any case. The fact remains that the complainant completely remained a silent spectator. He neither made any complaint against the accused, nor protested against the statement made by accused Agha Mir when he stated that he did not arrest Dr. Ahmed Ali. This was not the natural conduct of a prudent man like the complainant. He could have informed the Court that accused was making a false statement, again, he could have at least informed the Advocate appearing in this petition or an application could have been moved bringing the correct picture of his kidnapping to the notice of the High Court. But I as already stated complainant just remained silent. On account of this silence of the complainant a serious doubt is cast on the case as a whole. The only inference which can be drawn is, that uptil 15.12.1981. the date on which the High Court heard the petition, the story of the complainant as narrated in the direct complaint was not in existence. It appears, that after the order dated 15.12.1981 was passed by the High Court in the Habeas Corpus Petition, thereafter the complainant has come up with this story of kidnapping and wrongful confinement. Even otherwise, if we analyse the evidence on record coupled with the surrounding circumstances, immediately one gets the impression, that implicit reliance cannot be placed on the evidence of the complainant and his witnesses PW Kauro Khan and PW Muhammad Umar. In this regard it may be noted that the complainant and his witnesses are related to each other. PW Kouro Khan is not only his employee but also his nephew while PW Muhammad Umar is his cousin. Again the alleged incident has taken place at 9.00 a.m. in Larkana which is admittedly a big town and if this incident had really taken place, the natural conduct of the witnesses would have been to make hue and cry, inform the friends and family members of the complainant, narrate to the people available around the clinic of the complainant and' even report to the higher authorities. But surprisingly the version of these 2 witnesses is to the effect that they neither informed any body, nor any one saw this incident. Another aspect of the case is that, according to complainant he had been making reports/complaints one after another against the accused. So much so, that the accused had also threatened him. Even the telegrams sent by the complainant indicate that the complainant was actually apprehending his death or abduction at the behest of the accused. In this back-ground, admittedly there existed inimical relations between the complainant and the accused. The complainant was at daggers drawn with the accused. In the light of this back-ground for the sake of argument if the accused were to say something or do something, concerning the complainant, it will be natural on the part of complainant to have an in-born feeling of doubt, suspicion and disbelief regarding any such act of the accused. In such a back-ground it is completely unbelievable to reconcile with the idea that the complainant would sit in the jeep and accompany the accused without any hesitation or second thought. In any case, it has been rightly .observed by the trial court that since the complainant has'-not examined any independent witness and the witnesses examined are relatives thus interested, their evidence requires to be corroborated from some independent source which is not available in this case.There is also another reason calling for cdrroboration of the witnesses. PW Kauro had given a different version in the Habeas Co/pus petition regarding the incident as already discussed while in his deposition in this case he has improved upon his version in Habeas Corpus petition and has adopted the line taken by the complainant. PW Muhammad Umar has stated in his P.E. statement, that on the same day of wardat he came to know that SHO Agha Mir alognwith other constables had kidnapped the doctor. The above version of PW Muhammad Umar is obviously false, as on the day of wardat no body knew that the complainant had been kidnapped by the accused. Even the real nephew of the complainant, namely, PW Kouro did not know about it. PW Muhammad Umar having realised the falsity of his statement, conveniently changed the version in his deposition in this case by saying that, after 8 days the doctor returned and informed him that he was abducted by the accused. From the above discussion it is clear that there is intrinsic doubt with regard to the evidence of the witnesses on account of which implicit reliance cannot be placed on it without independent corroboration, which, as already mentioned is not available in this case.I am in agreement with the observations of ;he trial Judge when he says, this appears to be a cock and bull story having been fabricated by the complainant to wreak his vengeance. In the result, I have no hesitation in holding that the accused Agha Mir has been rightly acquitted by the trial court. There is no substance in this acquittal appeal and the same is accordingly dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 334 [Sukkur Bench] Present: shaukat hussaix ZUBEDI, J NIZAMUDDIN-Petitioner versus THE STATE-Respondent Criminal Revision No. 65 of 1989, accepted on 31.5.1992 Pakistan Penal Code, 1860 (XLV of 1860)- -— S. 451 read with Section 442—Criminal trespass—Offence of—Conviction for— Challenge to-For offence under Section 451 PPC, basic requirement is that there should be "house trespass"-House is described in Section 442 PPC-In this case, admittedly incident occurred in an open place and this aspect of matter has not been considered by both courts below-Both courts below were required to see if ingredients of offence have been proved by presecution or not-Held: Conviction and sentence of applicant under Section 451 PPC are not sustainable-Petition accepted. [P.336]A&B Mr Ghulain Kadir Malik, Advocate for Petitioner. Mr. Mushtaq Ahmed Amir Mahar, Advocate for AAG for the State. Djtc cf hearing: 17.5.1992. judgment The applicant Nizamuddin s/o Mohammad Hassan was convicted by the learned Civil Judge & F.C.M. Thul for offence under Section 451(2) and 323 PPC vide judgment dated 6.12.1989. He was sentenced to one years R.I. for offence u/s 451(2) and fine of Rs. 2000/- or in default to undergo R.I. for three months. For the offence u/s 323 PPC he was sentenced to R.I. for three months. The sentences were ordered to run concurrently. Against his conviction the appellant preferred appeal which came up for hearing before the learned Ilnd Addl. Sessions Judge Jacobabad. The appellate court vide its judgment dated 30.10.1989 upheld the conviction and the sentence of the applicant. The applicant has now challenged the judgments of the two courts below in this revision application. I have heard Mr. Malik Ghulam Qadir Advocate for the applicant and Mr. Mushtaq Ahmed Amir Mahar for AAG for State. The learned counsel for State has not supported the conviction and sentence of the applicant. The case of the prosecution in brief is that the complainant Muhammad Murad used to reside with his father and uncle in their own house. He owned cattle which he used to tether in open ground. On the night of incident i.e. 26.10.198" as usual they went to sleep but at about 1.00 a.m. the complainant woke up on some noise and saw four persons near his cattle. He identified one of them Ni/amuddin the present applicant while three others were unknown. The complainant challenged the accused and grappled with the applicant Nizamuddin who was armed with lathi and in order to escape he caused lathi blows to the complainant. The complainant raised cries on which his father and uncle also came to help him. They managed to catch the applicant at the spot. The complainant then went to P.S. Thul and lodged report which was recorded by A.S.I. Shafi Muhammad. The police reached at the place of wardat arrested the accused and'after completing usual formalities challaned the accused in the court of Civil Judge and F.C.M. Thul. In support of its case the prosecution examined P.W. Nazir Ahmed Medical Officer as Ex. 3, another Medical Officer Dr. Asadullah as Ex. 4, complainant Muhammad Murad as Ex. 5, P.W. Karim Bux as Ex. 6 and P.W. Shafi Muhammad as Ex. 7. At later stage co-mashir P.W. Chachar was also examined as Ex. 12. After conclusion of the prosecution case the accused was examined under Section 342 Cr.P.C. Accused neither led any defence nor examined himself on oath. The learned counsel for the applicant has submitted that both the courts below have erred in law by convicting the applicant under Section 451(2) PPC as according to the learned counsel there was no house trespass within the meaning of Section 442 PPC. So far as the offence under Section 323 PPC was concerned, the.learned counsel for the aplicant submitted that the applicant has already undergone that sentence. I have applied my mind to the facts of the case and I have also gone through the relevant record and I am of the considered view that the conviction of the applicant under Section 451 PPC is not sustainable. It will appear that for Section 451 PPC the basic requirement is (that) there should be "house trespass". This house trespass has special meaning which is provided by Section 442 PPC. Section 442 PPC requires (that) there should be criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. In the present case the admitted position is that applicant was found present in an open place. He was not found in any building, tent or vessel and therefore this will not be a case of house trespass punishable under Section 451 PPC. In this regard the FIR as well as the maslumama of wardat clearly indicate that it was an open place and this aspect of the matter has not been considered by both the courts below. In my opinion both the courts below were required to" see if the ingredients of the offence have been proved by prosecution or not. Before recording the conviction the trial court, and as well as the appellate court while upholding the conviction, were required to see if the offence under Section 451 PPC was really made out or not. On the bare reading of the judgments of two courts below this aspect was not considered. There is another aspect also. The prosecution witnesses have stated that the applicant was armed with a lathi and he caused injuries to the complainant. The medical certificate of complainant Muhammad Murad indicates that he had received as many as 9 injuries all caused by hard and blunt substance and all are simple in nature. But there is no explanation on the record as to who caused the injuries to the applicant as the applicant Nizamuddin has also suffered as many as 8 injuries also caused by hard & blunt substance. All the injuries were declared simple. Be that as it may, so far as the offence under Section 323 PPC is concerned, the applicant is admitted to have already undergone the same as the applicant was arrested on 26.10.87 and he was released by the trial court on 27.1.1988. In view of my above discussion I am of the considered opinion that the conviction and sentence of the applicant under Section 451 PPC is not sustainable n and the same is hereby set aside. By a short order dated 17.5.19921 had allowed this revision application, hese are the reasons for the same. (MBC) (Approved for reporting) Conviction set aside.

PLJ 1992 Cr PLJ 1992 Cr.C. (Karachi) 337 [Sukkur Bench] Present: SlIAUKAT HUSSAIN ZUBEDI, J HAMEER and others-Appellants versus THE STATE-Respondent Criminal Appeal No. 12 of 1992, accepted on 31.5.1992 Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 402--Intention to commit dacoity-Offence of-Conviction for-Challenge to-Same prosecution evidence has been disbelieved by trial court for offences under Sections 307 and 353 PPC-It cannot be believed n respect of offence under Section 402 PPC without any corroboration-There should be some circumstances other than bare words of witnesses which should lead to conclusion that accused had assembled for urpose of committing dacoity- Held: Offence under Section 402 PPC is not established against appellants- Appeal accepted. [P.339]A,B&C Mr. Kazi'Aziz....,,;, Advocate for Appellants. Mr. Mushtaq Ahmed Amir Mahar, Advocate for AAG for State. Date of hearing: 14.5.1992. judgment The appellants Hameer son of Sahib Dahri, Haji Ahmed S/o Faqir Muhammad, Jam son of Minhon Burdi, Haji Mashooq son of Misri Khan Lashari and Rasool Bux son of Ramzan Lashari were tried by the learned Additional Sessions Judge, Kandiaro for offence under Sections 307, 353, 402 PPC who vide his judgment dated 20.5.1987 convicted the appellants under Section 402 PPC and sentenced each of them to R.I. for 5 years and fine of Rs. 1000/- or in default of payment of fine to undergo R.I. for 6 months more. The appellants have now challenged their conviction and sentences through this appeal. The facts of the case are that on 16.12.1986, SHO Rafiuddin Khoso of P.S. Kandiaro alongwith his staff was on patrol duty. When he reached the road leading from Halani to Mehrabpur it was 7.00 p.m. when he saw that the road was blocked by sotnes of different sizes. When they stopped their vehicle, five armed persons appeared and moved towards their vehicle. On the light of the vehicle, they saw two persons were armed with guns, one with pistol, one with hatchet and the other with lathi. The complainant immediately got down from the vehicle and also gave warning to those persons to stop. The accused opened fire with their weapons, while the police also fired upon the accused. The firing continued for some time, thereafter the accused stopped firing and raised their hands, on account of which they were apprehended. On enquiry all the accused disclosed their names and on their search weapons were recovered and seized under a mashirmana in presence of mashirs ASI Fida Hussain Shah and H.C. Muhammad Milhal. All the accused alongwith their respective weapons were brought to police station Kandiaro where the report was lodged against the accused by the SHO Rafiuddin Khoso, for offences under Sections 307/353/402 PPC. He also lodged separate reports against accused Hameer, Haji Ahmed and Haji Mashooq for offence under Section 13D of the Arms Ordinance. The investigation was also conducted by the SHO himself and after usual investigation he challaned the accused. At the trial prosecution examined PW 1 Syed Fida Hussain Shah (ASI) who was a member of the police party and also acted as a mashir of arrest and recovery of weapons from the accused. The next witness examined was PW 2 Rafiuddin Khoso (SHO) who was the seizing officer. Thereafter the prosecution closed its side. At the conclusion of the prosecution case, all the accused were examined under Section 342 Cr.P.C. and they all denied the prosecution allegation. However, none of the accused wished to be examined on oath, nor any of them wanted to exmaine any defence witness. The trial court accordingly convicted the accused as already mentioned hereinabove I have heard Mr. Kazi Azizullah learned counsel for the appellants and Mr. Mushtaq Ahmed Amir Mahar advocate for A.G. for State. The latter has not supported the conviction of the appellants. The learned counsel for the appellants has rightly argued (that) this was not a case under Section 402 PPC simpliciter. but in fact, the prosecution case is that accused fired upon the police party, therefore 307 PPC was applied. Likewise accused are alleged to have caused hindrance to the police in the discharge of their duties. Therefore (Section) 353 PPC was also applied. As such the offence under Sections 307/353/402 PPC are interlinked and the same are alleged to have been committed at one and the same time, in the course of same transaction. Therefore it will be wrong to believe the same evidence in respect of offence under Section 402 PPC and disbelieve the same evidence in respect of offence under Section 307/353 PPC as has been done in this case by the trial court. The learned counsel has also argued that even the offence under Section 402 PPC is not made out, as its requirements are not fulfilled. In this regard I may refer to the ingredients of Section 402 PPC. This section firstly requires (that) there should be "5 or more persons" and secondly they "assemble for the purpose of committing dacoity". It will therefore appear that both the ingredients are to be proved by the prosectuion beyond all reasonable doubts. In the present case, the 5 appellants were found together, but it is not proved that they had assembled for the purpose of committing dacoity. In this regard except the bare words of the 2 witnesses, there is no other reasonable material to infer that the present 5 appellants had assembled for the purpose of committing dacoity. There is another difficulty in this case which is also coming in the way of the prosecution. The same evidence comprising of PW 1 ASI Fida Hussain Shah and PW 2 SHO Rafiuddin Khoso has been disbelieved by the trial court so far as the offences under Sections 307 and 353 PPC are concerned. How can the same witnesses be believed in respect of the offence under Section 402 PPC without any corroboration. Moreover in order to prove the offence under Section 402 PPC, there should be some extraneous circumstances leading to the conclusion that the accused had assembled for the purpose of committing dacoity. Mere bare words of the witnesses will not be enough. If such a course is adopted, then, it will be laying down a dangerous proposition of law. In such an eventuality, wherever any 5 or more persons are found together, they can be conveniently hauled up by the police, for having assembled for the purpose of committing dacoity. Therefore, as already mentioned, there should be some circumstance other than the bare words of the witnesses, which should lead to the conclusion, that the accused had assembled for the purpose of committing dacoity. In the present case no such circumstances are available on record nor can the evidence of the two police witnesses be acceptable, specially when they have been disbelieved by the trial court regarding the offences under Sections 307 and 353 PPC. In these circumstances all that the prosecution has been able to prove beyond all reasonable doubt is that, 5 accused persons were arrested from whose possession certain unlicensed weapons were recovered for which they are being tried separately under the Arms Ordinance. From my above discussion, I have no hesitation in holding that the offence under section 402 PPC is not established against the appellants. Consequently the conviction of the appellants is not sustainable. In the result this appeal is allowed, the conviction and sentences of the appellants are set aside. The appellants are on bail and their bail bonds stand discharged. By a short order dated 14.5.1992, I had allowed the appeal. These are the detailed reasons for the same. (MBCi (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C ( Karachi ) 339 [Sukkur Bench] Present: SIIAUKATHUSSAIN ZUBEDI, J ASHIQUE HUSSAIN-Appellant versus THE STATE-Respondent Criminal Appeal No. 7 of 1989, accepted on 6.5.1992. Arms Ordinance, 1965 (W.P. Ord. XX of 1965)-- —S. 13 read with Section 9—Un-licensed Chutra— Recovery of—Conviction for— Challenge to~For conviction under Section 13-E, it is incumbent upon prosecution to exclusively prove Violation of Section 9 of Ordinance—There is no evidence to show that appellant was ever asked if he had a licence for alleged Clnira or not-Held: Appellant has been precluded from giving an explanation, as such he has not violated provisions of Section 9 of Ordinance and his conviction under Section 13-E of Ordinance is not sustainable. [Pp.341&342]A&B Mr. Samiullah Qweshi, Advocate for Appellant. Mr. Zawar Hussain Jafferi, A.A.G. for State. Date of hearing: 23.4.1992. judgment This appeal is directed against the judgment dated 23.1.1989 passed by the learned Fifth Additional Sessions Judge, Larkana whereby the appellant was convicted and sentenced to undergo R.I. for two years and fine of Rs. 1000/- or in default to undergo further R.I. for one month more. The facts of the case are that, the appellant was already in custody of P.S. Dhamra when on 18.6.1984 he was interrogated by S.I. Kadir Bux Rinc 1 (SHO) regarding weapon of offence used in the main offence U/s 302 P.P.C. The appellant showed his willingness to produce the weapon, as such he led the police party to his house situated in village Vikio Sangi, Taluka Larkana and from the eastern side of the courtyard from under a hedge, he produced a 'Chhura' which was secured by the police under a mashinama in presence of mashirs H.C. Gaibi Khan and P.C. Abdul Majeed. After the recovery, the police party alongwith the appellant came back to the police station where SHO S.I. Kadir Bux Rind lodged the FIR Crime No. 66/84 under section 13E Arms Ordinance.After the usual investigation the challan was submitted in the court and the case came for trial before the learned Fifth Additional Sessions Judge, Larkana.The trial court framed the charge (Ex-2) against the appellant for having commited an offence punishable under Section 13E Arms Ordinance, to which the appellant did not plead guilty and claimed to be tried. At the trial, the prosecution examined PW-1 Qadir Bux Rind, his deposition is Ex. 4. He produced mashiniama of recovery Ex-4/A and FIR Ex-4/B. The second witness examined is P.W. 2 Gaibi Khan, his deposition is Ex. 5. Thereafter the prosectuion closed its side. The statement of the accused was recorded as Ex. 8. He denied the allegations, neither wanted to examine any defence witness nor wished to be examined on oath. At the conclusion of the trial, the appellant was convicted as already mentioned herein above. The prosecution case rests on the evidence of two witnesses. P.W. 1 Qadir Bux Rind is the seizing Officer. In his deposition he states that he interrogated the accused in the murder case who showed his willingness to produce the 'Chhura' used in the crime. He led the police to his house in village Vikio Sangi, Taluka Larkana and from under a hedge he produced the 'Chhura' which was seized under a mashimama in presence of H.C. Ghaibi Khan and P.C. Abdul Majeed. He then came back to the police station where he lodged the FIR of this case. In his cross-examination, he states they Had gone in a Taxi. They had not seen the inmates of the house. They had seen many persons and some of them were asked to act as maxhirs but they refused, therefore police officials were made masliirs. He denies to have falsely implicated the appellant or foisted the Chhuni. The second witness is P.W. 2 Ghaibi Khan. He also states that on interrogation accused led police to his house at village Vikio Sangi and from inside he produced 'Chhiirri' before the police, which was secured by SHO under a mashinama which was signed by them. In his cross-examination he states that they left the police station at about 11-30 a.m. They had gone in a Taxi. It might be that the villagers had gathered over there, but he does not remember. Inmates of the house were not there. He denies that he is deposing falsely or that accused had not produced the 'Chhuni'. I have heard Mr. Samiullah Qureshi for the appellant and Mr. Zawar Hussain Jaffari learned AAG for the State. The latter has supported, the conviction of the appellant, Mr. Samiullah Qureshi states that in the present case witnesses .ire police officials though independent witnesses were available, therefore for the {urpose of securing the Chhiirri the provisions of Section 103 Cr. P.C. have been violated. I am afraid this argument is not tenable. The seizing officer P.W. 1 Qadir Bux has explained that he tried to obtain independent witnesses but none was prepared to act as a mashir, therefore he had no other alternative but to make the police officials as masliirs. However I have noticed a legal flaw in this case which vitiates the conviction of the appellant. The appellant has been charged under Section 13E of the Arms Ordinance 1965. The charge under Section 13E is sustainable only if the violation of Section 9 is proved. In other words for the violation of Section 9, the punishment is provided A by Section 13E. Therefore it is incumbent upon the prosecution to conclusively prove the violation of Section 9. Now the requirement of Section 9 of the Arms Ordinance is two fold:-- (a) a person is found in possession of arm/arms; (h) it is without a licence. In the present case there is no evidence whatsoever to show that appellant was ever asked a licence for he alleged Chhura or not. In this regard the charge framed by the court, the evidence of the witnesses, the statement of the accused, .all are completely silent and at no stage any such question was at all put to the accused. In these rcumstances the appellant has been-precluded from giving an explanation, as such the appellant has not violated the provisions of Section 9, consequently his conviction under Section 13-E of the Arms Ordinance is not sustainable. In this regard I am supported by a D.B. decision of this Court, reported in 1972 P.Cr.LJ. 165 and the relevant portion is as under:- "It goes without saying, that keeping of a gun by itself is not an offence. It becomes an offence only when some body in possession of the same does not have and cannot produce a licence therefor. It is also an exiomatic principle of law, that if a question which weighs with the court for the determination of guilt is not put to the accused and he is precluded from giving an explanation for the same; it must be totally ruled out of consideration. As the appellant was not asked to produce the licence and as no question about it was put to him at the trial under Section 342 Cr.P.C. the conviction would not be sustainable." Resultantly, this appeal is allowed. Th^ conviction and sentence of the appellant are set aside and he is acquitted of the charge. he appellant is on bail, his bail bond stands discharged. (MBC) (Approved for reporting) Appeal Accepted.

PI J 1992 Cr PI J 1992 Cr.C. ( Karachi ) 342 [Sukkur Heiich] Present: \ llAUKAT hlssain ZUBEDI,,) USMAN and another--Appellants versus THE STATE-Respondent Criminal Appeal No. 18 of 1992, accepted on 6.6.1992. Pakistan Penal Code, 1860 (XLVof 1860)-- —-Ss. 309, 310 & 311 (Qisas and Diyat Ordinance) read with Criminal Procedure Code, 1898, Section 345-Murder-Offence of-Compromise between appellants and heirs of deceased— ompromise accepted but appellants convicted under Section 311 P.P.C.~Appeal against—Section 311 PPC is applicable in those cases where there is no compromise regarding case as a whole and only right f Qisas is waived under Section 309 or Section 310 PPC--ln this case, compromise was not in respect of compounding of Qisas, but it was in respect of compounding of offence as a whole-Held: fter accepting compromise, trial court had no other option but to acquit accused under Section 345 of Cr.P.C.-Appeal accepted. [Pp.344&345]A&B Mr. Habihullah Shaikh. Advocate for Appellants. Mr. Ztnvar Hussain Jaffcri. A.A.G. for State. Dale of hearing: 30.4.1992. JUDGMENT Appellants Usman son of Urs, and Ghulam Nabi son of Mehar alongwith coaccused Ilyas were tried by the learned Additional Sessions Judge, Nau Shahro Fero/e and vide his judgment dated 24.2.1992, both the appellants Usman and Ghulam Nabi were convicted u'/s 311 PPC and sentenced to R.I. for ten years as Tazir while co-accused Ilyas was acquitted. Both the appellants have challenged their conviction through this appeal. Briefly, the facts of the case are that the complainant Sain Rakhio alongwith his son deceased Moula Bux had gone to Bhirya and were returning to their village in a Bus. They got down at village Jalbani where P.W. Kauro and PW Rasool Bux had also got down from the Bus. All of them were moving towards their village. When they reached near the land of Haji Ghulam Nabi Khan Jalbani, it is alleged that at that time, the accused Usman, Ghulam Nabi and Ilyas all came out from cotton cultivation being armed with hatchets, and accused Usman caused hatchet blow to Moula Bux on his face, accused Ghulam Nabi and Ilyas caused hatchet injuries on his leg. On the cries of the complainant P.W. Kauro and Rasooi Bux came running, thereafter the accused ran away, while Moula Bux died ai the spot. Thereafter, the complainant went and lodged the report at the police station Nau Shahro Fcroze on 25.12.1979. After usual investigation police sent up all the three accused for trial for offence u s 302/34 PPC. Prosecution exmained complainant Sain Makhio, P.W. Kauro. P.W. Rasool Bux, PW Manzoor Hussain, P.W. Muhammad Yousif P.W. Khuda Bux. imishir. P.W. Dr. Abdul Razak, medical officer and P.W. Muhammad A/im Ghoto Investigating Officer and lastly Mukhtar Nau Shahro Fcroze. All three accused in their 342 Cr.P.C. statements have claimed to be innocent, falsely implicated due to enmity. All the three accused did not examine themselves on oath. Accused Usman and Ghulam Nabi did not examine any defence witness, but co-accused Ilyas examined three defence witnesses. At that stage accused Ghulam Nabi and Usman appeared to have comprom^cd the matter with the legal heirs of the deceased, as such an application u/s 345 Cr.PC was moved. The appellants had moved an application

r seeking permission to compound the offence with the legal heirs of the deceased and they also submitted trig application for compromise. The learned trial Court allowed the permission and also accepted the compromise, but the trial Judge thereafter passed the judgment and convicted the appellants u/s 311 PPC. The learned counsel for the appellants has referred to page No. 3 of the judgment to show that applications (Ex. 29 and 30) one for permission to grant compromise and the other showing compromise between the parties were actually filed before the trial Court and he has referred to page No. 11 of the judgment to show that both these applications were allowed by the trial court, but the trial court misread theprovisions of Section 311 PPC and illegally convicted the appellants. In this case since the matter has been compromised within the parties, therefore, the merits of the case are not being touched. It is correct that matter has been compromised between the parties and to that effect the application Ex. 29 which is for grant of permission to compromise while Ex. 30 is compromise application duly signed by the legal heirs as available on the record of the lower Court. As the same prayer of compromise was made in this Court, therefore, the direction was given to the learned counsel to call all the legal heirs, and the appellants were also summoned. On 30.4.1992 all concerned appeared before this Court and it was specifically verified whether the compromise has really taken place or not. All the legal heirs confirmed so also the appellants that the matter has been amicably compromised between the parties and the legal heirs have waived their right of Qisas. The heirship certificate duly issued by the office of Mukhlarkar Bhirya has also been placed on record. The legal heirs have also filed their affidavit, in which they have confirmed the factum of compromise and the waiver of Qisas u/s 309 PPC. It may also be noted that u/s 345 Cr.P.C an amendment has been made and under Sub-section-(2), the offence u/s 302 PPC is made compoundable with the permission of the Court and the compromise is premissible by the legal heirs of the deceased.In this view of the matter, since the legal heirs have compromised with the appellants, therefore, there should be no impediment in this cmpromise. I may also observe that the learned trial Court has mis-read the provisions of Section 311 PPC and after having allowed the compromise application, the trial Judge had no other option but to accept the compromise. In this regard, I may also refer to Section 311 PPC which is applicable in those cases where there is no compromise regarding the case as a whole and only right of Qisas is waived u/s 309 PPC or if there is compounding right of Qisas u/s 310 PPC then only the discretion provided u/s 311 PPC becomes available. It may be noted that the compounding of Qisas and compounding of offence are two separate terms. Compounding of offence is provided by Section 345 Cr.P.C. while compounding of Qisas is u/s 310 PPC. In the present case, the compromise was not in respect of compounding of Qisas, but it was in respect of compounding of offence and since the learned trial Judge had granted the permission and also accepted the compromise, therefore the only option left with the trial Court was to pass the necessary orders under section 345(6) Cr.P.C and acquit the accused. Since the compromise between the parties has already taken place the permisison to compromise has already been granted by the trial Court and the compromise application has also been allowed by the trial Court as observed in the judgment at Page-11, therefore, the conviction and sentence awarded to the appellants are hereby set aside, and, as an effect of the compromise both the appellants are acquitted u/s 345 Sub-section-(6) Cr.P.C. By a short order dated 6.6.1992, the appeal was allowed by way of comprorhise. These are the reasons for the same. (MBC) (Approved for reporting) Appeal accepted

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 345 Present: QMSER AHMAD HAM1D1, MOULA BUX--Appellant versus THE STATE-Respondent Criminal Appeal No.14 of 1992, accepted on 8.4.1992 (i) Islamic Dispensation of Justice- —Changes brought by Qisas and Diyat Ordinance-Appreciation of-Changes though fundamental and substantial, but are difficult to understand—Islamic system of dispensation of justice is distinct, ndependent and capable of producing remarkable results-It is a living and efficient system based primarily on revealed knowledge and is in accordance with human nature-It must be sifted by eminent eligious scholars, jurists and social reformers before it is enacted as law of land, otherwise, in haste and enthusiasm, further confusion would be created and people would become disillusioned and disenchanted against cherished ideal of an Islamic society. [P.350JC Verses 7 to 9 of Surah 55 of Holy Quran cited, (ii) Pattstan Penal Code, 1860 (XLV of 1860)- —S&.309, 310 & 311 (as amended by Criminal Law (Fourth Amendment) Ordinance, 1991 (XXX of 1991) read with Criminal Procedure Code, 1898, Section 345--Murder by a minor, of a minor-Offence of~Composition of offence—Prayer for—Taking wholesome view of amendments in P.P.C and Cr.P.C., it is obvious that provisions of Section 311 will only be attracted when court has declined permission for compounding of offence under Section 345 Cr.P.C.—Heirs of deceased have pardoned appellant and without fear or favour, have waived their right to claim compensation rom appellant—Held: In order to have their better relations in future, it is desirable to permit them to enter into comnromise—Application allowed and appellant acquitted under Section 345(j, < (6) of r.P.C. |Pp.349&350]A,B&D Mr. Muhammad Abdul Wahab Klian, Advocate for Appellant. Mr. K.M. Nadeem, A.A.G. for State. Date of hearing: 2.4.1992. judgment Appellant Moula Bux, a child within the meaning of Sindh Children Act, 1955, was tried by II Additional Sessions Judge (South) Karachi, for the offence under Section 302 P.P.C., who found him guilty and vide udgment dated 23.12.1991, referred his case to the Provincial Government for orders under Section 68(2) of the Sindh Children Act, 1955, after being satisfied that he was of so un-ruly or of so depraved a haracter that he cannot be committed to a certified school or detained in a place of safety and that none of the othc/ methods in which this case may be legally dealt with is suitable. Pending reference the ppellant was taken into custody and he is presently detained in Juvenile Jail Landhi. By this appeal filed under Section 94 of the Sindh Children Act, 1955, the appellant has challenged the aforesaid order. • ' 2. The facts of the case which have occasioned this appeal lie within a narrow compass and may be briefly indicated. Both appellant Moula Bux and deceased Abdul Majeed who were minors worked in Babu Garrage, Karachi, when on 9.2.1977 at about 1.30 p.m. there was a quarrel between them over a petty matter, in which both of them sustained injuries by means of sharp edged weapons, like knife. Abdul Majeed succumbed to his injury, while appellant Moula Bux who had received grievous hurt, survived. Abdul Hameed, brother of deceased Abdul Majeed lodged FIR, being Crime No.20 of 1977, Chakiwara P.S. After usual investigation the appellant was sent up to stand trial. At the conclusion of the trial the learned Additional Sessions Judge found the appellant guilty and passed the following order:— "From the facts and circumstances of the case it appears that accused has committed a serious offence of murder, having caused the death of young boy aged about 20 years in a broad day light. In my opinion no punishment which under the provisions of Sindh Children Act, 1955, the Court is authorised to inflict, is sufficient and the accused is of so unruly and of so depraved character that he cannot be committed to a certified ' school or detained in place of safety and that none of the other methods in which the case may be legally dealt with is suitable. I, therefore, order that offender/accused be kept in safe custody at Juvenile Jail Landhi and the matter be reported under Section 68(2) of Sindh Children Act, 1955, to the Provincial Government for necessary orders". 3. During the penency of this appeal the parties compromised and the parents of deceased Abdul Majeed made an application under Section 345 Cr.P.C., for compounding of offence, thereby waiving their right to obtain any consideration from appellant. 4. I have heard Mr. Muhammad Abdul Wahab Khan, learned counsel for the appellant and Mr. K.M. Nadecm, learned A.A.G. for State. The latter has supported this application. 5. By the Criminal Law (Fourth Amendment) Ordinance, 1991 (XXX of 1991;, Chapter XVI of Pakistan Penal Code, 1860, relating to offences affecting the human body and life was substituted. Section 300 P.P.C., as amended defined Qa'i-i-anid in the following words:-- "Qatl-i-amd. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-iamd" 6. Section 306 P.P.C.. as amended, provides that a Qatl-i-amd shall not be liable to qisas in the following cases, namely: (a) when an otfender is a minor or insane: Provided that, where a person liable to qisas associates with himself in the commission of the offence a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas: when an offender causes death of his child or grandchild, how low-so­ ever: and (b) when any wall of the victim is a direct descendant, how low-so-evcr, of the offender. Admittedly the appellant was a minor within the meanings of Section 299i/'i P.P.C.. as amended, and so deceased Abdul Majeed. Section 305 P.P.C, as amended, provides lor "wall" in the following words:-- "Hi///. In case of a qall, the wall shall be— (j) the heirs of the victim, according to his personal law; and (b) the Government, if there is no heir". 8. Section 309 P.P.C., as amended, speaks of waiver (_j^> ) of qisas in qatl-iamd, in the following manner:— adult sane wall may, at any time and without any compensation, waive his right of qisas: Provided that the right of qisas shall not be waived- (a) where the Government is the wall; or (b) where the right of qisas vests in a minor or an insane. (2) Where a victim has more than one wall, any one of them may waive his right of qisas: Provided that the wall who does not waive the right of qisas shall be entitled to his share of diyat. (3) Where there are more than one victim, the waiver of the right of qisas by the wall of one victim shall not affect the right of qisas of the waif of the other victim. (4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offenders". 9. The provisions regarding compounding of qisas (sulh) ( -^^ ) in qatl-iamd are contained in Section 310 P.P.C., as amended, in the following words:-- Compounding of qisas (Sulh) ( -g^

) in qatl-i-amd.--(l) In the case of qatl-i-amd, an adult sane wall may, at any time on accepting badal-i-sulh, compound his right of qisas: Provided that giving a female in marriage shall not be a valid badal-i-sulh (^fJjJ ). (2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (3) Where the Government is the wali, it may compound the right of qisas: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (4) Where the badal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari'ah (~ e ^^~ ) the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat. (5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wall.Explanation: ~\n this section badal-i-sulh means the mutually agreed compensation according to Shari'ah to be paid or given by the offender to a wait in cash or in kind or in the form of movable or immovable property". 10. The Criminal Law (Fourth Amendment) Ordinance, 1991 (XXX of 1991), also amended Section 345 Cr.P.C, which has made "Qatl-i-amd" and "Qatli-amd not liable to qisas" compoundable by the heirs of t'ie victim with the permission of the Court. Sub-section (5) of Section 345 Cr.P.C., further orovides that 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 before which the appeal is to be heard. Under sub-section (6) of Section 345 Cr.P.C., the composition of an offence under this section shall have the effect f an acquittal of the accused with whom the offence has been compounded. Sub-section (7) of Section 345 Cr.P.C., makes it clear that no offence shall be compounded except as provided by this section. 11. While taking a wholesome view of the above amendments both in Pakistan Penal Code, 1860, a substantive law, and in the Code of Criminal Procedure, 1898, a procedural law, it is obvious that the provisions of Section 311 P.P.C., will be attracted only when the Court has declined the permission for' compounding of the offence under Section 345 Cr.P.C. 12. Reverting to application made by the parties under Section 345 Cr.P.C., it will be observed that both Pashambay, and Mst. Amma, who are father and mother of deceased Abdul Majeed respectively are "wall" and heirs of deceased Abdul Majeed. They have pardoned the appellant and without fear or favour have waived their right to claim compensation from the appellant. I have been informed that the parties are related to each other and they are also neighbours. The incident had also taken place all of a sudden. In order to have their better relations in future, it is desirable to permit them to enter into compromise by allowing this application. The application made under Section 345 Cr.P.C. (M.A. No.220 of 1992) is, therefore, allowed and the appellant is acquitted under Section 345(5)(6) Cr.P.C. He is in custody and be released forthwith, if not required in ..ny other case. 13. Before I part with this judgment I would like to express about the frequent changes made in Pakistan Penal Code, 1860, and the Code of Criminal Procedure, 1898, to bring them in conformity with the injunctions of Islam as laid down in Holy Quran and Sunnah. The adnrnistration of justice has always been regarded as one of great ends of every civilized Govt'nment. But the importance given to it by Islam nay well be gathered from the fac; ihal justice is considered to be an attribute of God and the administration of just,: 3 as the performance of a religious duty. The ideal of justice set up by Holy Quran is the "Mizan" or "balance of justice" and justice has been placed next to piety. The Holy Quran ordains in Surah 55, Verse 7 - 9:-- "He has set up the balance (of justice). In order that Ye may not transgress (due) balance. So establish weight with justice and fall not short in the balance".Again in Surah 5, Verse 9 Allah ordains:-- "O Ye who believe. Stand out firmly of God, as witnesses to fair dealing, and let not the hatred of others to You swerve to wrong and depart from justice. Be just: that is next to piety: and fear God, for God is well acquainted with all that Ye do". 14. The above clearly indicates that justice or 'Adi' according to Islamic concepts demands a perfect standard of comparison, estimation or judgment. It is much more than the distributive or remedial justice of the Greeks, the formal justice of the Romans or even the natural justice of the Anglo-American common law. Its fountain head is the Holy Book. (Administration of Justice in Islam by Mr. Justice Hamoodur Rehman). 15. The changes brought about by the above law, though fundamental and substantial, but (are) difficult to understand. The Islamic system of dispensation of justice is distinct, independent and capable of roducing remarkable results. It is a living and efficient system, based primarily on revealed knowledge and is in accordance with human nature. It must, however, be sifted by eminent religious scholars, jurists and social reformers before it is enacted as law of land. Else, in an haste and enthusiasm, we may not only create further confusion in the already confused state into which our legal system has fallen during the last our decades, but in the process may also provide further grounds for the people to become disillusioned and disenchanted against the cherished ideal of an Islamic society. 16. By a short order dated 2.4.1992, I had allowed M.A. N0&20 of 1992 for compounding of the offence. This judgment would furnish detailed reasons. As a result of the above finding MA. No.115 of 1992 has become infructuous and is dismissed accordingly. The appeal is disposed of in the above terms. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C .( Karachi ) 352 Present: imam ALI G. kazi. J BUNO S/O MUHAMMAD SADIQUE-Petitioner versus THE STATE-Respondcnt Criminal Revision Application No.14 of 1992, decided on 8.3.1992 Surety Bond- —-Surety bond-Forfeiture of--Challenge to-Accused had jumped bail for over 18 months and was produced by surety after entire amount of surety bond was ordered to be forfeited by Court—Held: There are o grounds to set aside impugned order—Held further: However, since accused has been produced by surety himself and non-bailable warrants issued by Court, had brought no fruit, amount to be forfeited is educed to Rs.2000/- [P.354JA Mr. Nooniddin Sarki, Advocate for Petitioner. Mr. Azizur Rehman, Advocate for State. Date of hearing: 8.3.1992. judgment This application under Section 439 Criminal Procedure Code has been filed by one Buno son of Muhammad Sadique Manghrio impugning the order passed by the III Additional Sessions Judge Khairpur on 14.1.1992 whereby he ordered forfeiture of his surety bond which he had executed in the sum of Rs.50 ,000 /- for accused Khushhal son of Muhammad Bakhsh Sahto in Sessions Case No.83/89. It appears that accused Khushhal Sahto had slipped out of the country during the pendency of his trial without permission of the Court to Saudi Arabia and remained absent for about over 18 months. The Trial Judge had issued nonbailable warrants for his arrest and granted sufficient time of over 18 months to the Applicant to produce him. Since he was unable to produce the accused he passed the order impugned in this application. Mr. Nooruddin Sarki, Advocate appearing for the Applicant has referred to the Application filed by accused Khushhal on 29.1.1992 filed by him on his surrender before that court. The Trial Judge on that date remanded him to custody and according to Mr. Nooruddin Sarki, Advocate for the Applicant, he continues to be in custody in that case. In fact, according to him, it was the Applicant (Surety) who had produced the accused alongwith an Application filed in the Court. This fact is recorded in another order passed by the Trial Judge on the same day (29.1.1992) on the application filed by the Applicant herein. He further contends that it is a cardinal principle of criminal justice that a person who offers himself to be a surety for release of an accused person facing a criminal trial in fact acts in aid of justice. The Applicant according to him is not a professional person in this respect, but had in good faith offered himself to be a surety for the accused. He had made an effort himself to secure the presence of the accused in court for his trial. Under the circumstances he contends that no amount of the bond be recovered from him.Mr. Azizur Rehman, Advocate appearing for the State, frankly states that in the circumstances of the present case this court may take a liberal view and reduce the amount to be recovered from the applicant on account of forfeiture of the bond. I find from the record that the accused had jumped bail for over 18 months and was produced by the surety only after the entire amount of the surety bond was ordered to be forfeited by the Court. No grounds are therefore made out to set-aside the order impugned in this application. However, since the accused has been produced by the surety himself and non-bailable warrants issued by the trial Judge bore no fruit I am inclined to reduce the amount to be forfeited under the bond to a sum of Rs.2 ,000 /- (Rupees two thousands) only instead of entire amount of the bond.This Revision Application is accordingly allowed only to the extent stated above. (MBC) . (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 354 (DB) Present: mamoon kazi and salahuddin mirza, JJ MUHAMMAD JUMAN-Appellant versus THE STATE-Respondent Criminal Appeal No.94 of 1991 (Confirmation Case No.3 of 1991) decided on 30.3.1992. (i) Criminal Trial— —Murder-Offence of-Conviction for-Challenge to-There is no reason why eye-witness account of four witnesses as well as judicial confession of appellant, should be disbelieved—It is beyond scope of robability that it could have been a case of substitution of an innocent person-Held: No exception can be taken to findings of trial Court. ' [P.359JC (ii) False Implication-- —Murder-Offence of-Conviction for--Challenge to-Eye-witnesses are residents of same locality and are natural witnesses-Injured witness is unrelated to deceased or other prosecution witnesses- .W.l and P.W.ll being too nearly related to deceased, would not let go real murderer— Roznamcha report was recorded within fifteen minutes of incident—Held: It cannot be believed that during this short eriod, ppellant was falsely implicated in matter. [P.358JA (iii) Judicial Confession- —Murder—Offence of—Conviction for—Challenge to—There is judicial confession by appellant recorded by Mukhtiarkar, Sanghar who observed all necessary formalities before recording same-Delay of two ays in recording judicial confession, is not material under circumstances of case-Held: Appellant had made confession out of his own free will. [Pp.358&359]B (iv) Motive- —Murder—Offence of—Conviction for—Challenge to—Appellant has conceded to motive set up by Prosecution—As per confession, step sons of deceased had complained to appellant about immoral activities of deceased-Held: Existence of motive is sufficiently proved and Prosecution had proved its case beyond all doubt-Appeal dismissed and death sentence confirmed. [Pp.359&360]D,E&F Mr. Rochi Rain, Advocate for Appellant. Mr. Muhammad Zubair Qureshi, Advocate for State. Date of hearing: 2.3.1992. judgment Salahuddin Mirza, J.--The appellant was tried under Section 302/324/504 PPC and was convicted and sentenced to death by Additional Sessions Judge Sanghar in Sessions Case No.172/89 vide his judgment dated 17.3.1991. The FIR of the case was recorded by Haji Ali Bux as Crime No.102/89 of P.S. Sanghar which was recorded on 12.11.1989 at 19-45 hours. According to Haji Ali Bux, he resided in village Choti Ariyoon alongwith his mother-in-law Mst. Hajiani Lai and his brothers-in-law Allah Bux and Allah Nawaz whereas one Jumman Kerio (who is the appellant before us), who was also caste fellow of the complainant, also resided in an adjacent house. About two or three times the mother-in-law of the complainant had complained to him that whenever she went to Sanghar to meet her brother Haji Suleman, appellant Muhammad Juman objected and demanded of her not to visit her brother. The appellant also accused plaintiffs mother-in-law of being of bad character. In the evening on the day of occurrence at about 1800 hours the complainant was in his house when he heard cries coming from the house of Jaffer Kerio who lived nearby. On hearing the cries the complainant rushed to the house of said Jaffer. At the same time, Qaim, Jaffer and Mst. Meehan widow of Muhammad Alam were also seen running towards the house of Jaffer. The complainant saw that appellant Muhammad Juman was armed with hatchet and was giving hatchet blows to complainant's mother-in-law Mst. Hajiani Lai who fell down on account of the injuries suffered by her. The complainant also h'eard the appellant saying that he had prohibited Mst. Hajiani Lai from going to visit her brother at Sanghar but she had not complied with his order and therefore he would not spare her. On seeing and hearing this the complainant raised cries and 'Hakals' and at that moment Mst. Meehan tried to rescue Mst. Hajiani Lai whereupon appellant Juman gave hatchet blows to Mst. Meehan as well and she was also injured. By that time the complainant, with the help of Qaim and Jaffer, succeeded in over-powering appellant Muhammad Juman and snatched the hatchet from his hands but the hatchet, in the process of being snatched, caused some injuries on the head of appellant Muhammad Juman. After overpowering appellant Muhammad Juman, the complainant saw that Mst. Hajiani Lai had succumbed to her injuries and Mst. Meehan had received sharp side hatchet injuries on her right shoulder and was bleeding. At that stage complainant's brother-in-law Allah Bux also reached the place and saw what was happening and was also told of what had already taken place. The complainant then went to Police-post where his statement was recorded in the Station-diary within 15 minutes which was later on incorporated in the FIR at Police Station Sanghar within one hour and forty five minutes of the occurrence. The Police then arrested the appellant alongwith his hatchet and after necessary investigation challaned him in the Court of Additional Sessions Judge Sanghar. 2. In support of its case the prosecution examined as many as four eye­ witnesses who are PW-1 Haji Ali Bux, PW-2 Qaim, PW-11 Allah Bux and PW-13 Mst. Meehan. There is also the evidence of the recovery of hatchet. In addition, there is also a judicial confession of the appellant which was recorded by PW-9 Wahid Bux Mukhtiarkar Sanghar. In his 342 Cr.P.C. statement the appellant denied that he had committed the crime. As for the confession, he stated that it was "false". As to the question as to why the PWs deposed against him, he stated that it was due to enmity but he did not explain what the enmity as. In the memo of appeal it is stated that the appellant was physically unfit to commit the offence. However, neither any suggestion to that effect was put to any prosecution witness in his cross-examination nor any positive evidence in support of this claim was brought on record by the appellant. It was also stated in the memo of appeal that a head constable of PP Choti Ariyoon was interested in falsely implicating the appellant in this case. However, nothing to this effect was said by the appellant in his 342 Cr.P.C. statement nor any suggestion to that effect was put to any of the prosecution witnesses nor the name of '.he said ead-constable was disclosed even in the memo of appeal, late stage that .t was for making any assertion to that effect. 3. So far as'the eye witnesses are concernt the first is the complainant himself (PW-1 Haji Ali Bux) who is son-in-law of deceased Mst. Hajiani Lai. His evidence is to the effect that when, attracted by the cries coming from the southern side of the house of Jaffer, he rushed to the place, he saw appellant Ji^f^n giving hatchet blows to Mst. Hajiani Lai from the sharp side of the hatchet and he also heard the appellant rebuking Mst. Hajiani Lai for disobeying his direction' not to go to Sanghar and threatening her with death. The complainant further stated that when Mst. Meehan tried to intervene and ave Mst. Hajiani Lai, the appellant gave hatchet blows to her as well due to which she was injured on her right arm. He further stated that Mst. Meehan had reached the place before him and it was after she had reached the place that he, Allah Bux and Qaim reached there. The complainant further stated that they all (i.e., he himself alongwith Allah Bux and Qaim) caught hold of appellant Juman. The complainant further stated that he then went to PP Choti Ariyoon and lodged his report which was recorded in station diary, a copy of which he produced as Ex.5. A perusal of this report (Ex.5) would indicate that it was recorded at 1800 hours whereas the occurrence is of 17-45 hours; that is to say, it was recorded within fifteen minutes of the occurrence. As to the motive behind the commission of the murder, the complainant repeated that the deceased had complained to him that appellant Juman was demanding of her that she should not go to Sanghar and if she went it would not be good for her. In cross-examination he added that the wardat was about 40 or 50 paces away from his house, that Mst. Meehan was not related to him but was oMy his caste fellow. It was denied by him that there was any dispute between Qaim and Jaffer on one hand and appellant Juman on the other over a plot of land. He denied a suggestion that it was he and other prosecution witnesses who had killed Mst. Hajiani Lai and then at the instance of Qaim and Jaffer they had falsely involved the appellant. PW-2 Qaim is an independent eye­ witness in as much as he is not related either to the deceased or to other prosecution witne'sses although he is nephew of PW-13 Mst. Meehan. He supported the complainant in all relevant details. He denied the suggestion that Mst. Hajiani Lai was killed by complainant Haji Ali Bux and others and the appellant was falsely implicated due to the dispute over plot of land with him. The third eye-witness is Mst. Meehan PW-13. Her statement in the examination-inchief is also practically the same as that of the complainant. She further added that she had to be admitted in hospital due to the injuries sustained by her at the hands of the appellant and remained there as an indoor patient for fifteen days. In her cross-examination she admitted a suggestion that when she came out of her house on 'the cries of Mst. Hajiani Lai she found the accused standing there and nobody else was present there. It is not clear that why this suggestion was put to the witness since it is also the case of the prosecution that Mst. Meehan was the first to reach the wardat on hearing the cries of Mst. Hajiani Lai and nobody else was present there and all others reached there subsequently. Besides, this suggestion rather concedes to the truth of the entire prosecution case. To this witness yet another theory in respect of the death of Afo.Hajiani Lai was put by way of the suggestion as to whether PW Jaffer had caused the hatchet injuries to Mst. Hajiani Lai. She, of course, dgnied the suggestion but it is clear that the claim of the appellant that Mst. Hajiani Lai had been killed by the prosecution witnesses themselves is. on its very face, a false defence since in the suggestion put to PW Haji Ali Bux. Jaffer was not named as,the person who had inflicted hatchet injuries upon the person of the deceased and whereas in the suggestion put to PW-2 Qaim the inflicting of hatchet injuries to the deceased is attributed to Haji Ali Bux and others and Jaffer is again excluded or atleast not named. The last eye­ witness is PW-11 Allah Bux, son of deceased Mst. Hajiani Lai. According to him he was going to the village bazaar when he heard cries and rushed to the place of occurrence and saw that his mother, with hatchet injuries on her body, was already lying dead on the ground and Mst. Meehan had also sustained hatchet injuries and he also saw that appellant Muhammad Juman, armed with hatchet, had been apprehended by Ali Bux, Jaffer and Qaim. This witness is not exactly an eye-witness since he did not himself see the appellant giving hatchet blows either to the deceased or to the injured but he is nearly as good as an eye-witness because he reached the wardat just as the appellant had been over-powered by other prosecution witnesses. The suggestion put to this witness contains the names of both Ali Bux and Jaffer and he denied the suggestion that actually they had murdered Mst. Hajiani Lai. 4. We find no reason to disbelieve the eye-witnesses. They are natural witnesses of the occurrence. They are all residents of the same locality. The mere relationship of the witnesses with the deceased oes not make them interested witnesses. Even so, Mst. Meehan, who was herself injured by the appellant, is altogether unrelated to the deceased or the other prosecution witnesses and there can be no ground for even suspecting that she would falsely implicate the appellant. PW-11 Allah Bux, being son of the deceased and PW-1 Haji Ali Bux, being son-in-law of the deceased are too nearly related to the eceased to let go the real murderer. Besides, the Roznamcha report Ex.5 was recorded within fifteen minutes of the incident and we refuse to believe that during this short period the appellant was falsely implicated in the matter. 5. We then have the judicial confession of the appellant in which he stated that he was silting in his house when deceased Mst. Hajiani Lai came to him, that her step-sons Habibullah and Muhammad Aslam had earlier complained to him . that their mother was of bad character and people used to taunt them on that account and they had asked him to advise their mother to behave properly and therefore when Mst. Hajiani Lai came to her house on that day he reprimanded^ her but she was annoyed and abuseu him and gave him 'Bhujjo' whereupon he was annoyed and struck her with the hatchet. PW-9 Wahid Bux, ukhtiarkar Sanghar, had recorded his confession and it is clear from his evidence that he had observed all the necessary formalities before recording the same. There is a delay of two days in the -recording of confession (since occurrence took place in the evening of 12th November 1989 and the confession was recorded on 15 th November 1989) but under the circumstances of the case this delay does not appear very material especially in view of the fact that learned counsel for the appellant could not satisfy us that 13th and 14th November 1989 were working days. Also no question to explain this delay was sked from Investigating Officer. It may also.be noted that in the confession, the appellant did not say a word about also having injured Mst. Meehan. This shows that the appellant had recorded his confession out of his own free will and no undue pressure was put on him to that end. Otherwise, the appellant would have also been made to confess and this would have been less injurious to his interest that he had also inflicted hatchet injury to Mst, Meehan. We are therefore satisfied that the appellant had made the I confession out of his own free will. 6. PW-3 Ibrahim is the person who had acted as mashir in respect of the injuries sustained by Mst. Meehan in respect of which mashimama Ex.8 was signed by him, and he was also mashir of the securing of bloodstained earth from the wardat vide mashimama Ex.9 and of inquest report Ex.10 and of the injuries on the person of the appellant vide mashimama Ex.11 and he also acted as the mashir of the recovery of bloodstained hatchet from the possession of the appellant vide mashimama Ex.12. He is almost the very next door neighbourer as only two houses intervene between his house and the place of occurrence. There is some contradiction between what the witness stated in the Court and what is written in the mashimama in as much as the witness stated that the hatchet was recovered from the hands of appellant Muhammad Juman but it was categorically mentioned in the mashimama that it was produced by PW Jaffer who had, in turn, disclosed that it was secured from appellant Juman. It appears to s that when the appellant was apprehended on the spot it is unlikely that hatchet should have been allowed to remain in his possession. It must have been taken away from him and thus what is written in mashimama appears to be the truth. However, on account .of this discrepancy, we would not believe the evidence as to the recovery of "hatchet. 7. After giving due consideration to the deposition of the eye-witnesses and the confession of the appellant, we are of the view that no exception can be taken to the findings of- the learned trial Court. There is no reason why the eye-witnessaccount of four witnesses, as well as judicial confession of the appellant, should be disbelieved. The appellant had come forward with a very unrealistic defence that Mst. Hajiani Lai was killed either by the complainant or by Jaffer (who was not examined by the prosecution and was given up even though he was cited in the challan as a witness). As we have already noted above, the circumstances of the case make it beyond the scope of probability that it could have been a case of substitution of an innocent person. As would appear from the cross-examination of the prosecution witnesses, it was the case of the defence itself that Choti Arivoon village was fairly populated village. Thus, the offence having been committed in the village itself, the appellant could have examined at least one r t o witnesses in his defence in support of his claim that the deceased was not killed by him but by the complainant or by Jaffer or by both and there is no explanation as to why the appellant could not produce even a single witness on the point. 8. The prosecution has also relied upon the evidence of the existence of motive for the commission of the offence which is that the appellant demanded of the deceased not to go to Sanghar to meet her brother because he suspected that she utilized such an opportunity for immoral purposes.. The complainant has stated so in his evidence and even the appellant conceded to it in his judicial confession. It was argued by the learned counsel for the appellant that the appellant was not closely related to the deceased and therefore it was none of his business to take any offence on the conduct of the appellant and therefore the existence of this motive is highly improbable. We do not find ourselves in agreement with the contention of the learned counsel for the appellant. In fact, the very fact that the appellant was not closely related to the deceased showsthat he should not have taken offence in this manner and therefore this circumstance goes against him. As per his confession, step-sons of the deceased had complained to him about the immoral activities of the deceased. The existence of motive is thus sufficiently proved. 9. We are satisfied that the prosecution had proved its case beyond all doubt. We would therefore uphold the conviction of the appellant. As for the sentence, no mitigating circumstances have been shown to us for this act of wanton cruelty in which the appellant killed a woman and injured another by causing hatchet injuries. It is evident from the evidence of PW-4 Dr. Atta Muhammad of Civil Hospital Sanghar, who had conducted the post mortem examination of the deceased, that the deceased had received three very serious injuries on the head and neck all of whom were individually sufficient 10 cause death in ordinary course of nature and brain matter was 'oozing out' as noted by the doctor in the post mortem report. PW-5 Dr. Muhammad Aslam Arain had examined injured Mst. Meehan and it is apparent from his evidence that she had also received muscle deep injury on her right shoulder although this injury was found to be simple. We are therefore of the view that in the circumstances the appellant was rightly sentenced to death. 10. In view of what has been stated above we uphold the conviction and yjjcnlcnce of the appellant and confirm the sentence of death awarded to him. (Consequently, Crupmai Appeal No.94/91 stands dismissed. (MBC) (Approved for.reporting) Death confirmed.

PLJC PLJC. r.C( Karachi ) 360 Present: QAISER AHMAD HAMIDI, J MUHAMMAD IQBAL KHETANA-Appellant versus THE STATE-Respondent (i) Criminal Procedure Code, 1898 (V of 1898)-- —S.540--Murder-Offence f-Conviction for-Challenge to-Whether advocate for complainant has locus siandi to move application under Section 540 Cr.P.C.-Qucstion of-Held: Where prosecution is conducted by a public prosecutor and a counsel is also engaged by complainant, such counsel has to act in accordance with directions of Public Prosecutor—Trial Court to decide this question after remand. [Pp.363&364]B (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S.540-Murder-Offence of--Conviction for-Challenge to~Whether second application can be made under Section 540 of Cr.P.C.—Question of—Section 540 is intended to enable Court to get at truth, as scertainment of truth is primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because of technicalities—Held: A subsequent application after rejection of earlier ne is competent where new or different grounds are shown and earlier decision is amenable to reconsideration upon discovery or availability of fresh material. [P.363JA (iii) Natural Justice- —Murder-Offence of-Conviction for-Challenge to-A bare perusal of order sheet makes it clear that counsel for appellant was not present when application under Section 540 Cr.P.C. was disposed of-Grievance of learned counsel for appellant that said application was heard and disposed of at his back, appears to be correct-Admittedly defence counsel was not present when evidence of Bank official was recorded and which resulted into conviction of appellant—Trial Court had two options either to postpone case or to appoint some advocate at State expense for accused—No opportunity was provided to appellant to explain about additional evidence produced after his statement under Section 342 Cr.P.C.-Held: There is good deal of force in contention that trial of appellant stands vitiated-Appeal accepted and case remanded. [Pp;364&365]C,D,E&F Mr. M.A. Kazi, Advocate for Appellant. Mr. S.Z.A. Qureshi, Advocate for State. Mr. Shahabnddin Memon, Advocate for Complainant. Dates of hearing: 15.1.1992 and 2.2.1992. judgment Appellant Muhammad Iqbal Khetana was tried by III Additional Sessions Judge (Central) Karachi, for the offence under Section 302 P.P.C., who found him guilty and vide judgment dated 14.2.1990 sentenced him to imprisonment for life and to pay a fine of Rs.10,000/- or in default to suffer R.I. for six months. The fine, if recovered was ordered to be paid to legal heirs of deceased Muhammad Ashraf. By this appeal filed under Section 410 Cr.P.C., the appellant has challenged his conviction and sentence. 2. Deceased Muhammad Ashraf was a petty contractor. He had a dispute with appellant Muhammad Iqbal Khetana over the construction of his house. On 11.9.1982 deceased Muhammad Ashraf went to his work from where he did not return. On 12.9.1982, Abdul Ghaffar, cousin of deceased Muhammad Ahsraf came to complainant Muhammad Bashir, brother of deceased Muhammad Ashraf and informed him about the missing of deceased Muhammad Ashraf. Both of them then searched for deceased Muhammad Ashraf and their inquiry revealed that deceased Muhammad Ashraf was called by appellant to his house. Ultimately on 13.9.1982 complainant Muhammad Bashir, brother of deceased Muhammad Ashraf and others went to the house of appellant situated in New Karachi and found it locked. A foul smell was coming out from the said house. Complainant Muhammad Bashir then rushed to New Karachi P.S., where he lodged FIR (Crime No.250 of 1982), raising suspision against the appellant, Iftikhar Saleem and Yaseen (not sent up). The police broke open the lock of the house of appellant, where the dead-body of deceased Muhammad Ashraf was found, whose throat was cut. During the course of investigation the appellant was arrested and after usual investigation he was sent up to stand trial for the murder of Muhammad Ashraf. 3. At the trial the appellant pleaded not guilty and wanted to be tried. The prosecution then examined complainant Muhammad Bashir (P.W-1), Muhammad Saleem (P.W-2), Hyder Ali Babo (P.W-3), Abdul Gnaffar (P.W-4), Muzaffar Khan P.C. (P.W-5), Hafiz Abdul Aleem (P.W-6), Abdul Salam (P.W-7), Sabir Hussain (P.W-8), Syed Athar Wahaj (P.W-9), Muhammad Hanif (P.W-10), Ghulam Yaseen alias Shahji (P.W-11), Muhammad Akhtar AS.I. (P.W-12), Dr. (Captain) Abdul Wajid (P.W-13), Muhammad Rafique (P W-14), Abdul Malik Shah (P.W-15), Muhammad Akram S.H.O. (P.W-16), Ahsanullah P.W-17), and Muhammad Ameen (P.W-18). 4. In his statement recorded under Section 342 Cr.P.C, the appellant has denied each and every allegation put to him. He, however, did not step into the witness box for his statement under Section 340(2) Cr P.C. No witness was also examined in defence. 5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under Section 302 P.P.C., and convicted him accordingly. 6. The case of the prosecution is based on circumstantial evidence alone and one of the most important factors leading to the conviction of the appellant was that the dead-body of deceased Muhammad shraf was found lying in the house of appellant which was locked from outside. The appellant has, however, disputed the ownership of this house in his statement recorded under Section 342 Cr.P.C., in the following words:-- "No'Sir. I do not know about this as I have no house in New Abadi." In order to meet this situation the learned APP moved an application under Section 540 Cr.P.C., for calling the Bank official to produce the title documents of this house which were in the custody of Muslim Commercial Bank, as the house was mortgaged by the appellant. This application was, however, rejected by the trial Court vide order dated 7.5.1988, as according to learned Additional Sessions Judge it was an attempt to cover up the lacuna. Complainant Muhammad Bashir challenged this order before this Court in Cr. Revision No.32 of 1988, which too was dismissed on 19.2.1989. However, during the pendency of the case another application of the same nature was moved by Advocate for complainant which was allowed on 31.8.1989 and Muhammad Ameen (P.W-18) was examined in the absence of advocate for accused/appellant and without recording further statement of appellant under Section 342 Cr.P.C., he was convicted on the basis of the evidence already recorded and recorded on 17.9.1989 in the absence of his advocate. It was in these circumstances that the learned counsel for the appellant has contended that the trial has vitiated for the following reasons:-- (/) That the second application purported to have been made under Section 540 Cr.P.C., on the same ground was not maintainable after the earlier one was dismissed by the trial Court on 7.5.1988, which order was maintained by this Court in Cr. Revision No.32 of 1988, decided on 19.2.1989. (//) That the second application was moved by the advocate for complainant who had no locus standi to file such application. (/'//) That the second application for calling the witness/document was heard and disposed of in the absence of advocate for accused/appellant. (/v) That on 17.9.1989 the case proceeded against the appellant in the absence of his advocate when the evidence of Muhammad Ameen (P.W-18), a bank official was recorded, which evidence was relied upon by the trial Court while convicting the appellant. (v) That no opportunity was provided to appellant to explain about this additional piece of evidence collected at the back of his advocate, by recording his further statement under Section 342 Cr.P.C. 7. Section 540 Cr.P.C., is intended to enable the Court to get at the truth, as the ascertainment of truth is the primary duty imposed upon a Judge and he is not absolved from attempting to perform that duty merely because of technicalities. A subsequent application after the rejection of the earlier ^one is competent where new or different grounds are shown and the earlier decision is amenable to reconsideration upon discovery or availability of fresh material. Such application can certainly be moved on the ground that a particular circumstance has either not been brought to the notice of the Court or it has not been considered by it and that such evidence will help the Court in arriving to a just and proper decision. 8. Coming now to the second question whether the advocate for complainant has got a locus standi to move the application under Section 540 Cr.P.C., all that can be said is that where the prosecution is conducted by a Public Prosecutor and a counsel is also engaged by the complainant, such counsel has to act in accordance with the directions of (he Public Prosecutor. Since I propose to remand this case with certain directions, I leave this question to be decided by the trial Court. 9. With regard to third contention Mr. M.A. Kazi, learned counsel for the appellant has made a statement that although the order dated 31.8.1989 recites that he was heard when the second application under Section 540 Cr.P.C., was decided, he was in fact not heard and the application was decided without notice to him at his back. He has specifically referred to order sheet dated 31.8.1989, which reads as follows:- "Accused is present on bail. Application by APP for recalling certain documents. Heard arguments. Order passed on application, allowed. Write letter to Manager MCB Adamjee House, Karachi, to produce title documents of H.No.L-856, Sector 5-A/2 on or before 16.9.1989. Accused directed to attend on 16.9.1989". A bare perusal of the above order makes it clear that the counsel for accused/appellant was not present when the said application was heard and disposed of. It may also be added that the application dated 16.8.1989, which was disposed of on 31.8.1989 was not made by APP as indicated in the above order-sheet, but it was filed by advocate for complainant. In these circumstances, the grievance of learned counsel for the appellant to the effect that the said application was heard and disposed of at his back appears to be correct. 10. The fourth contention urged by learned counsel for the appellant has great importance. Admittedly on 17.9.1989 the defence advocate was not present when the evidence of Muhammad Ameen, an officer of Muslim Commercial Bank was recorded. Mr. Shahabuddin Memon, learned counsel for the complainant has conceded to this factual position. The evidence of Muhammad Ameen ((P.W-18) was found material, which resulted into the conviction of the appellant. The procedure adopted by learned Additional Sessions Judge was in complete disregard of the provisions contained in Chapter VII, Part I, of the Federal Capital and Sindh Courts Criminal Circulars, which provides that an advocate at State expense is to be appointed on behalf of accused in a case inviting capital punishment (like the one under consideration), if the accused is unable to do so. The object behind these statutory rules is that a murder case should not proceed in the absence of an advocate for accused. The trial Court had two options on 17.9.1989, either to postpone the case or to appoint some advocate for accused/appellant at State expense, but that process too required time. If any authority ,is needed the cases of Abdul Aziz and another v. T7ie Stale, reported in 1984 P.Cr.LJ. 530, Niaz Ahmad v. 77ic State, reported in 1984 P.Cr.LJ. 1054, and Muhammad Waqar v. Hie State, reported in 1991 P.Cr.LJ. 197, may be cited with advantage. There is, therefore, good deal of force in the contention of learned counsel for the appellant when he states that the trial of the appellant has vitiated due to the above illegality committed by the trial Court. 11. Finally, there survives the question, whether after recording the additional evidence, further statement of the appellant under Section 342 Cr.P.C. was necessary. The examination of an accused under Section 342 Cr.P.C, is intended to afford him an opportunity to explain all circumstances appearing in the evidence against him. The opportunity must be real and adequate and the attention of the accused must be drawn to every inculpatory material so to enable him to explain it. In the present case the accused/appellant had denied the ownership of the house in which the dead-body of Muhammad Ashraf was found Muhammad Ameen (P.W.18), a Bank officer who was examined in the absence of defence advocate produced relevant record to prove that the said house belongec to the appellant. No opportunity was, however, provided to accused/appellant to explain about this important piece of evidence produced after his statement under Section 342 Cr.P.C., was recorded, which was the basic fairness of a riminal trial. 12. Thus from whatever point of view the matter may be looked at, it is obvious that the trial of the appellant has vitiated due to above mentioned illegalities committed by the trial Court. The preliminary objection taken by learned counsel for the appellant seems to be well founded and must prevail. As a result of this finding the conviction recorded and the sentence awarded to appellant are set aside and the case is remanded for retrial from the stage the above mentioned illegalities were committed, with the following directions:— (/') That the application dated 16.8.1989, purported to have been made under Section 540 Cr.P.C., shall be decided afresh after affording an opportunity of hearing to counsel for the respective parties. (//) That the evidence of any new witness, if recorded, shall be recorded in presence of defence advocate. (//'/') That further statement of accused/appellant shall be recorded under Section 342 Cr.P.C., inviting his attention to fresh evidence, if brought on record. (/V) That the statement of accused/appellant under Section 340(2) Cr.P.C., and the .evidence of witnesses cited by him in defence shall be recorded, if so desired, in case fresh evidence against him is brought on record. 13. The case shall go to learned Sessions Judge (Central) Karachi for retrial as the learned III Additional Sessions Judge (Central) Karachi , has already formed the opinion. The case has become old and the appellant is in custody. It will, therefore, be appreciated if the case is decided within three months from the receipt<of the R & P. 14. In the result the appeal is allowed to the above limited extent. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 366 [ Rawalpindi Bench] Present: TANVIR AHMAD KHAN, J Malik ANJUM FAROOQ PERACHA-Petitioner versus MANZURUL HAQ and 5 others-Respondents Crl. Misc. No.285/B of 1992, accepted on 30.5.1992. (i) Practice and Procedure- —Investigation by Crimes Branch-Non-arrest of accused till finalization of investigation—Practice of-Consequences of~Stance taken by S.P. Crime Branch that once investigation is entrusted to Crime Branch, ccused named therein would not be arrested till finalization of investigation and approval by I.G. Police-According to him, there are no such written instructions or rules but this procedure is based upon prevailing ractice-Held: If this practice is not arrested and is allowed to continue, any accused of serious crime can successfully avoid arrest by arranging investigation through Crime Branch and frustrate a judicial order. P.368JA (ii) Practice and Procedure-- —Offence under Section 302 PPC-Pre-arrest bail disallowed by another Additional Sessions Judge—Second Additional Sessions Judge allowed execution of bail bonds-Challenge to-Proper procedure for dditional Sessions Judge was to refer matter to Sessions Judge for an appropriate order-Respondents were earlier held by Additional Sessions Judge not entitled to bail-Bail of Respondents 1 to 5 recalled. [Pp.368&369]B PLD1986SC173//. Sardar Muhammad Ishaq Klian, Advocate for Petitioner. Mr. Muhammad Ilyas Siddiqui, Advocate for Respondents 1 to 5. Mr. Muhammad Nawaz Abbasi, A.A.G. for State. Date of hearing: 30.5.1992. order Petitioner has moved this petition for the withdrawal of the order passed by the Addl. Sessions Judge Rawalpindi, dated 7.5.1992 whereby he directed respondents, No.l to 5 to execute the bonds in the sum of Rs. one lac with one surety each for their appearance in his Court and released them on bail. Facts in brief are that an FIR No.488 was recorded initially under Sections 324/148/149 PPC at the instance of the petitioner at Police-Station Civil Lines on 11.11.1991 at 2.40 p.m for an occurrence stated to have taken place at 1.45 p.m before the Court of Civil Judge, Rawalpindi. The allegations against the respondents are that they came armed with lethal weapons and opened an attack injuring Altaf Hussain, Muhammad Siddique and Fidah Hussain with their respective weapons. The injured were immediately removed to Rawalpindi General Hospital where they were medically examined by Dr. Muhammad Asif Alvi. The dying declaration of Altaf Hussain deceased was recorded on 16th of November, 1991 which was duly attested by S.P. Headquarter as well as the Doctor. Altaf Hussain injured expired on 29th of November, 1991 and accordingly Section 302 was added. The post-mortem examination of the deceased was conducted on the same day. According to the prosecution the accused party came in three cars bearing Nos.SA-8197, RIP-9629 and RIF-ll.Accused respodents No.l to 5 succeeded to escape from the place of occurrence in moter car No.RIF- 11 while the rest of the aforestated cars left behind were taken into custody by the police during the course of investigation. Muhammad Asif co-accused was apprehended at the spot. ManzOOr-ul-Haq accused-respondent, a retired SSP also got a different version recorded through FIR No.495 under Section 324/148/149 PPC for the same occurrence trying to make out a case of self defence. It is his case that the petitioner Malik Anjum Farooq Peracha picked up a quarrel in the premises of the Court at 11.30 a.m/on 11.11,1991 with Ch.ikram-ul-Huq, one of the respondents due to which hot words were exchanged between them. The petitioner, according to .him, left the premises after extending threats of dire consequences and then at 1.30 p.m.he came alongwith ten other persons having lethal weapons and raised a Lalkara. They started indiscriminate firing and a person with the name of Naseer alias Jhero was injured. He (Manzoor-ul-Haq) according to his own showing, took out his licenced revolver and fired in self defence. The revolver fell down from his hand which was taken by his co-accused Muhammad Asif who also fired in self defence. It is the case of the petitioner that all the respondents secured their prearrest bail and the learned Addl.Sessions Judge, Mr.Mazhar Hussain Minhas, declined to confirm the same by advancing cogent reasons through his order dated 22.12.1991. Grievance has been made that the DSP Crime Branch, who was present alongwith the record, during the course of proceedings, instead of performing his duties in arresting the respondents, sat with them in a car and gave them a free hand. Faced with this situation, the petitioner was constrained to file a complaint on 7.1.1992 with the same version as e'arlier taken by him in his aforementioned FIR No.488. The learned Addl.Sessions Judge, Rawalpindi , after recording the preliminary evidence of the two injured P.Ws, namely Fidah Hussain and Muhammad Sadiq as well as the testimony of Dr:Muhammad Asif Alvi. Medical Officer.and Dr.Muhammad Ashraf who conducted the post mortem e.-ewrillption, issued non-bailable warrants for appearance of the respondents No.l to 5 ori~iL54292. The respondents Consequently moved an application for their release on "frail by accepting their bonds. The Addl.Sessions Judge, through his impugned order dated 7.5,1992 directed them to execute the bail bonds in the sum • of Rs. one lac with one surely each in the like amount to his satisfaction for their appearance after relying upon Mazliar Hussain Shah Vs. Tlie State (1986 P.Cr.LJ 2359). Learned counsel for the petitioner has argued that the earlier pre-arrest bail on similar facts was dismissed by Mr. Mazhar Hussain Minhas, Addl. Sessions Judge on 22.12.1991 and on the same facts MrAtta Rasool Joya, Addl. Sassions Judge was not competent to admit them to bail by accepting bonds through his impugned order in view of the law laid down in Zubair's case (PLD 1986 S.C. 173). This objection according to the learned counsel was taken before the Court but the same was not taken note of. He has also argued that in this case nonbailable warrants were issued after the recording of the preliminary evidence Whereby the Addl.Sessions Judge prima facie came to the conclusion that the respondents were accused of an offence falling within the prohibitory clause and while admitting them to bail, the conditions laid down in Section 497 Cr.P.C have completely been ignored. Learned Asstt. Advocate-General has supported the view that in such like cases while exercising power under Section 91 Cr.P.C.the provision of Section 497 Cr.P.C has also to be kept in mind. However, the learned counsel appearing for the respondents has stated that Section 497 Cr.P.C has got no application while directing the respondents -to execute bonds for their appearance. According to him Section 91 Cr.P.C is an independent provision and the learned Sessions Judge has got all powers to direct for the execution of bail bonds inspite of the nature of offence. The conditions for the grant of bail laid down in Section 497 Cr.P.C would not be applicable. I have considered the contentions. I must observe at the very outset that the role of the Investigating Agency is highly questionable in this case. The stance taken by the S.P. Crime Branch who is present in Court is that once the investigation of a case is entrusted to the Crime Branch, the accused named therein would not be arrested unless and untill the investigation is finalized and its approval is accorded by the Inspector General of police. He has stated that though there are no such written instructions or rules but this procedure is based upon prevailing practice. It is strange enough that in this broad day light occurrence in the premises of ihe Court in which one person lost his life and two persons were brutally injured; the FIR was promptly recorded; the pre-arrest bail of respondents No. 1 to 5 was not confirmed by the learned Addl. Sessions Judge Mr. Mazhar Hussain Minhas on the 22nd of December, 1991 the police functionaries did not apprehend the accused/respondents. If this practice is not arrested and is allowed to continue, then an accused of any serious crime, can successfully avoid arrest by arranging the investigation through Crime Branch and frustrate a judicial order. Inspecter General of Police, Punjab is to take serious note of this practice.Subsequent to this attitude of the Crime Branch, on a complaint filed by the petitioner on the similar facts, Mr. Atta Rasool Joya, Addl. Sessions Judge issuedprocess after being fully satisfied from the preliminary evidence recorded by him that a case of 302 PPC is made out. He issued non-bailable warrants of the respondents and instead of keeping his hand away as it was brought to his notice that the earlier pre-arrcst bail application on similar facts was disallowed by Mr. Mazhar Hussain Minhas, Addl. Sessions Judge, he allowed the execution of bail bonds through his order dated 7.5.1992. The proper procedure for him was to refer the matter to the learned Sessions Judge, Rawalpindi for an appropriate order. Instead of doing the same he in a mechanical manner directed the respondents to execute the bail bonds without noticing and considering the conditions for grant of bail under Section 497 Cr.P.C. This exercise of of power on his part is clearly in violation of the rule laid down in Zubair's casc(PLD 1986 SC 173) wherein it has been specifically held that in the same case (or in the cross case) successive bail application has to be heard by the same Court. In the case in hand the facts of FIR No. 488 and that of a .complaint are completely similar. Respondents were earlier held by Mr. Mazhar Hussain Minhas, Addl. Sessions Judge not entitled to the concession of bail as according to him (here appears reasonable ground for believing that they have been guilty of an offence punishable with death or imprisonment for life or for 10 years. Keeping all the facts and circumstances of the case into consideration, the concession granted to the respondents No. 1 to 5 by/allowing them to submit their bail bonds is hereby recalled and it is directed that they'shall be arrested forthwith. Office is directed to transmit this order to the S.S.P., Rawalpindi for compliance. A copy of this order shall also be sent to the Inspector General of Police, Punjab. (MBC) (Approved for reporting) Bail cancelled

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 369 [DB] Present: SYED ABDUR RAHMAN AND QAISER AHMAD HAMIDI, JJ MANZOOR HUSSAIN WASSAN-Applicant versus THE STATE-Respondent Crl.Bail Application No.1143-1148 of 1991, accepted on 8.4.1992. Alibi- —Offence under Sections 302, 307, 120-B and 170-B/34 PPC--Bail--Grant of- Prayer for-Even at bail stage, Court can tentatively examine plea of alibi to find out as to whether plea of alibi is such that rosecution evidence does not lead to inference of guilt against accused-Held: On tentative assessment of evidence produced by applicant in support of his plea of alibi, prosecution evidence does not lead to nference of guilt against applicant, case is of further inquiry and there are no reasonable grounds to believe that applicant is guilty of scheduled offence-Bail allowed. [P.375JA&B PLJ 1976 SC 283 distinguished PLJ 1978 SC 327,1989 SCMR 2071, PLD 1962 SC 49 and PLD 1967 SC 549 re/. Mr. Abdul Hafeez Lakho, Advocate for Applicant. Mr. A/tab Ahmad Akhitnd, A.G. Sindh for State. Dates of hearing: 17 and 19.3.1992. judgment Syed Abdur Rahman, J.-These bail applications have been filed by applicant Manzpor Hussain Wassan, who is facing trial inter-alia, in consolidated case No. 299/1991 under sections 302, 307, 120-B and 170-B read with section 34 P. P. C. etc. 2. The prosecution story is that M.Q.M. leader Altaf Hussain was to return from London on 22-8-1990, therefore, various camps were set up at Karachi to accord him a welcome. There was indiscriminate Kalashnikov's firing on some of these reception camps from moter cars in which as many as 25 persons were killed and many more injured. A number of FIRs. were lodged at concerned Police Stations which included, amongst others, the FIRs. Crime Nos.177, 342, 150, 240, 142 and 706/92 of those respective Police Stations in the present consolidated cases. In FIR Crime No.177 of 1990 (Criminal Bail Application No. 1144 Of 1991) which was lodged on 22-8-1990 at U.50 p. m. by Syed Salman at Brigade Police Station, it was alleged that at about 5.45 a. m. on the same day P.S.F. workers Khalid Dalmia,... Zahid Sharif, Danish and Saood fired from the car with Kalashnikov and pelted a hand grenade at M.Q.M. reception camp of Khudadad Colony.(Immediately on next day Syed Salman gave further tatement that correct name was Zahid Saeed and not Zahid Sharif). Nine persons were injured of whom two died. S.H.O. Brigade Police Station continued investigation. On 23-8-1990, seven eye-witnesses, who were also injured, named P.S.F. workers Zahid Saeed and the above three culprits and gave same facts. In remaining five F.I.Rs. it was alleged that some unidentified persons came in a car and fired with alashnikovs at the reception camps at various places killing and injuring several persons. 3. Investigations were carried in all the cases separately at as many as eight Police Stations by the various S.H.Os. On 24-12-1990 co-accused Zahid Saeed was arrested on spy information, by Inspector Ather Rashid Butt of Saddar Police Station, from a car in Sindhi Muslim Housing Society in Crime No. 342 of 1990. He was interrogated by the Police. His statement under section 161, Cr.P.C. which was recorded on 4-1-1991, mentions that a criminal conspiracy was hatched on 21.8.1990 at a meeting held in Bilawal House, wherein Asif Ali Zardari, Bashir Baloch,Ebrahim alias Bholoo, Munawar Hussain Suharwardi, Shahnawaz Junejo, Ghulam Rabbani, Masroor Ahsan, Manzoor Wasan and Zahid Saeed participated, and wherein it was decided that the reception camps set up by MX2.M. should be attacked and indiscriminately fired at. On account of involvement of such political leaders C.I.A. and military intelligence also participated in the investigation. On 26.1.1991 in consequence of further interrogation, statement under Section 161, Cr.P.C.of accused Zahid Saeed was recorded in Crime No.706 of 1990 of Ferozabad Police Station, in which he named co-accused Syed Qaim Shah and Salimuddin alias Salioo as additional participants in the criminal conspiracy of 21.8.1990. Hence on 27.1.1991 judicial confession of Zahid Saeed was recorded by Assistant Commissioner and Section 30 Magistrate, Court No. XII (South), Karachi. On 28.1.1991, 161 statement of Salimuddin alias Salioo was recorded by the Police and his judicial confession under Section 164, Cr.P.C. was recorded by A.C.M. Court No.XIII (East), Karachi. Both these coaccused besides implicating themselves in the said criminal conspiracy also implicated the applicant and other co-accused. The applicant was challaned by the concerned S.H.Os. in all these cases. 4. We have heard Mr. Abdul Hafeez Lakho and Mr. Aftab Ahmed Akhund, A.G. Sindh, for the State. It was contended by Mr. Abdul Hafeez Lakho, learned counsel for the applicant that the applicant's name does not transpire in the F.I.Rs. The prosecution case against the applicant hinges upon, the judicial confessions of co-accused Zahid Saeed and Salimuddin alias Salioo, which have been retracted. According to him the said co-accused were kept at C.IA. Centre, maltreated and coerced to make the judicial confessions. He further contended that Article-16 of the Qanoon-e-Shahadat has been struck down y the Federal Shariat Court in the case of A/if Nawaz Klian v. Tlie State (P.L.J. 1991 FSC 61) and therefore, the judicial confessions of the co-accused could not be considered as evidence against the applicant. e submitted that even if it is believed that the applicant was present in the said meeting even then since it is not alleged that he had agreed to any decision or had taken part in the discussion and no overt act is attributed to him, therefore, he could not be held liable for criminal conspiracy. He further submitted that the applicant has taken plea of alibi as he was at the relevant time, according to news items in the ational ress, at Khairpur far away from Karachi. Thus, the judicial confessions are falsified in material particulars. The alibi plea of the applicant is supported by cuttings of the relevant news-papers and the Affidavits f he Press Reporters. Hence there are no reasonable grounds to believe that the applicant is guilty of a scheduled offence. 5. Mr. Aftab Ahmed Akhund, learned Advocate General, Sindh, appearing for the State, has vehemently opposed the grant of bail to the applicant and has contended that the applicant and the co-accused had strong motive lo create law and order situation as they were carrying on a fascist movement for the last about ten years and had actually succeeded in capturing power in the country for about 20 months and were again after the s me by terrorist activities and unlawful means. In this regard he drew attention of the Court to the various allegations and charges levelled by the President of Pakistan against the overnment of Benazir Bhutto and decision of the F.B. of this Court and the Lahore High Court confirming and upholding the same. Besides the above circumstances there was evidence that the above indiscriminate firing at the reception camps was done by workers of P.S.F. which is a subsidiary of P.P.P. who were identified on the spot and named in one of the F.I.Rs. Two workers of P.S.F. viz Zahid Saeed and Salloo have given judicial confessions implicating the applicant, while other workers of P.S.F. viz. Buddi, Tiflu and Rufi had given judicial confession corroborating the above. Hence the above judicial confessions are corroborated in material particulars and can be made a basis for conviction of the applicant. He has further contended that since the cases have not yet proceeded, it will be premature to consider the defects of the judicial confessions made by the co-accused or the plea of alibi. At this stage it cannot be said that there are no reasonable grounds to believe that the applicant is not guilty of a scheduled offence. In support of his contention he has relied upon a recent decision of a Division Bench of this Court in the case ofAsifAH Zardari v. The State (1991 P.Cr.LJ. 595) and the decision of Supreme Court in the case of Allied Bank Ltd. v. Klialid Farooq (1991 S.C.M.R. 599). 6. The bail application of Manzoor Hussain Wassan is pressed mainly on the ground of alibi. It was submitted that the applicant was not in Karachi at the time, on the day and at the place alleged in the charge i.e. 21.8.1990 between 3.00 p.m. to 6.00 p.m. at Bilawal House. He had left Karachi on 20.8.1990 for Khairpur by road. He attended a reception at Rasoolabad, a border town of District Khairpur, and then reached Khairpur in the evening where he had addressed a meeting at his residence at 5.30 p.m. The said news was reported in the National Press in, inter-alia, Daily Ibrat, Hilal-e-Pakistan and Awami Awaz in the issue of 21.8.1990. Again on 21.8.1990 at 4.30 p.m. he addressed a press conference at Khairpur, which continued upto 7.00 p.m. It was attended by representatives of the press, including Abdul Aziz Rahu of Daily Ibrat, Ghulam Qadir of Daily Awami Awaz and Zubair Ahmed Pirzada of Daily Hilal-e-Pakistan. The proceedings of this press conference were reported in the National Press in, interalia, the above mentioned Dailies on 22.8.1990. The applicant has filed the affidavits of Abdul Aziz Raho, Ghulam Qadir and Zubair Ahmed Prizada, alongwith their identity cards, which were initially produced in an earlier bail application filed by co-accused Qaim Ali Shah. Alongwith these affidavits photo­stats of Daily Ibrat dated 21.8.1990 and 23.8.1990, Daily Hilal-e-Pakistan dated 21.8.1990 and 22.8.1990 and Daily Aawami Aawaz dated 21.8.1990, 22.8.1990 and 24.8.1990, and the relevant news items have also been produced. The learned trial Judge (Special Judge, Suppression of Terrorist Activities, Karachi ) declined to take into consideration this evidence on two grounds. The first ground was that this pka could have been raised, but had not been raised immediately after registration of the case and the arrest of the accused for which he has placed reliance on the case of Amecnullah reported in P.LJ. t 1976 S.C. 283. The second ground is that the Court cannot take judicial notice of the affidavits of the newspapers' reporters, because "whether (sic) the same are obtained without undue influence, coercion or by own accord", and that the same have been filed after long delay and therefore, are after thought. The reasoning advanced by the learned trial Court docs not appear to be sound. No doubt at this stage we are not to decide as to whether plea of alibi raised by the applicant is correct or not. The truth or falsehood of this plea is to be ultimately decided by the trial Court in the case, after evidence is recorded. The question in these proceedings simply is to see whether the trial Court had refused to release the applicant on sound and well settled principles of law. 7. In this connection we would first like to refer to the famous case of Khalid Javed Gillan reported in P.L.J. 1978 S.C. 327, where the High Court had refused bail to the applicant, who was facing a charge under Sections 302,120-B, 468 and 471 PPC and had refused to place reliance on the affidavit of Dr. MA. Aziz, a famous Doctor, to the effect that at the time of incident, the accused, who was a mental patient, was being treated in his Hospital as In-Door patient. He fifed petition for Special Leave to Appeal before the Hon'ble Supreme Court. Thereupon bail was granted, and it was observed as under:-"However, as Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of 'the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case', therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessment of the material produced before it. Similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must emphasize that it would be open to the prosecution to prove thai the evidence of Dr. M.A. Aziz is not fit to be relied upon. But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute, who docs not have any ostensible connection with the petitioner, supports the petitioner';;, case. How then did the High Court refuse bail? The learned Judge has very properly refrained from giving a detailed order, but from the tenor of his order, it would appear that he assumed that prosecution evidence; was sacr-osanct for the purppse of a bail application. With respect this is not the correct view of the law, therefore, although this Court is always very reluctant to interfere in bail orders, a principle which we would reiterate, we are compelled to interfere in the instant case, because the impugned order is based on a misreading of Section 497 Cr.P.C. Accordingly, after hearing both the learned counsel, we converted the petition into an appeal, allowed it and ordered the release of the appellant pending his trial by the Sessions Court". S. The next ruling on which we would place reliance is in the case of Lt. Gen. (Rtd.) Fazl-e-Haq v. Tlic Stale (1989.S.C.M.R. 071). In this Lt. Gen. (Rtd.) r azl-e-Haq. who was an Ex-Governor and Chief Minister of N.W.F.P., was accused alongwith 14 others in a case under Section 302/120-B/34 PPC. He filed an application for bail which was dismissed by Peshawar High Court. Against the said order he filed petition for leave to appeal in the Hon'ble Supreme Court. There was a solitary statement of an approver connecting the accused with the crime. The Investigating" Agency failed to notice and examine the plea of the accused challenging the veracity of statement of approver on a material point. The Supreme Court did not find the reasons advanced by the Investigating Agency, explaining the said failure as satisfactory. It was held that the stand taken by the Investigating Agency which was charged with the duty to find out the truth in the matter under investigation and not to commit itself prematurely to any view of the fact for or against any person being not right, the case was that of further enquiry within the meaning of Section 497(2) Cr.P.C. and pending such enquiry the accused was entitled to bail. Consequently the Supreme Court released Lt. Gen. (Rtd.) Fazl-e-Haq on bail on certain conditions. 9. The leading case on the point is that of Kluilid Saigol v. Tlte Slate (P.L.D. 1962 S.C. 49). The judgment was written by Hamoodur Rahman. J. (as he then was). It will be useful to reproduce the following observutions:-- "II will be observed that even under Section 497(1) in the case of an offence punishable with death or transportation fur life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of Section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebulted, may lead to the infereiice of guilt before it can come to the conclusion that its discretion no longer exists". This Judgment was followed in the case of Muhammad Aslam v. The State reported in P.L.D. 1967 S.C. 549 in which it was observed that no Judge can be prima-facie satisfied with the material produced by the prosecution "if left unrebutted may lead to the inference of guilt" against the accused unless the Judge makes tentative assessment of the evidenciary value and the material produced by him (?). Similarly no Judge can be satisfied even prima-facie with the evidence produced by the prosecution does not lead to the inference of guilt against the accused unless he makes a tentative assessment of the material produced before him. Case of Ameenullah (supra) reiied upon by the trial Court is not a case of i\iil anj is. therefore, distinguishable from this case. 10. We are, therefore, of the clear view that even at bail stage, the Court can tentatively examine the plea of alibi to find out as to whether the plea of alibi raised b\ the accused is such that the evidence produced by the prosecution dues not Lad io the inference of guilt against the accused and the case was thai of further inquiry within the meaning of Section 497(2) Cr.P.C. and pending such inquiry, the accused is entitled to bail. On a tentative assessment of the evidence thus produced in support of his plea of alibi by the applicant we are oi ihe view I hat it is such that the evidence produced by the prosecution when looked a' in it^ li^ht dues not lead to the inference of guilt against the applicant, the case is that »l a lunhcr inquiry within the meaning of Section 497(2) Cr.P.C. and that ihere are no reasonable grounds to believe that (he applicant is guilty of a scheduled offence. U. The decisions relied upon by Mr. Aftab Ahmed Khund, learned Advocate-General, in the cases of Asif AH Zardari v. Tlie State (1991 P.Cr.LJ. 59.5) and Allied Bank Ltd. v. Klialid Farooq (1991 SCMR 599) also support our abou .stated view in that it was held in these cases that it is not possible to surv-cnbe to the view that Offences in Respect of Banks (Special Courts) Ordinance. Sub-section (6) of Seciton 5 which is similar to sub-section (8) of Sccti' >n 5-A ol Suppression of Terrorist Activities Act constitute a complete Code lor L'rant of bails to persons accused of scheduled offences and therefore, interuiiu. ihe provisions of Sub-sections (2) to (5) of Section 497 Cr.P.C. would not stana excluded. 12. We. therefore, direct that applicant Manzoor Hussain Wassan be released on bail on furnishing surety and PR in the sum of Rs.1,00,000/- (Rupees one lac) in each of these cases to the satisfaction of the Nazir of I his Court. Before parting with the R & P of the case we would like to majce it quite clear thai the asses-ment that we have made is of a tentative nature and should no! prejudice the mind of the trial Court in the least. The-learned Special Judge will be at liberty to examine the plea of alibi and if he comes to the conclusion that the same is not (rue, he will be at liberty to cancel the bail granted to ihe applicant. (MBC) (Approved for reporting) Bail granted.

PLJ 1992 Cr PLJ 1992 Cr.C (SAC) 375 [Supreme Appellate Court, Lahore ! Present: SiLM ILR RAHMAN, CHAIRMAN, JUSTICE RAJA AFRASiAli KllAN AND justice abdul majeed tiwana. mi:mbers STATE-Appellant versus _ SULTAN-Respondent Criminal Appeal No. 38/SAC/L of 1992, dismissed on 1.7.1992. [On appeal from judgment of Special Court for Speedy Trial No. 1, Lahore , dated 21.4.1992, passed in Speedy Trial Case No. 6 of 1992] Appeal against Acquittal-- —Murder-Offence of--Acquittal of respondent-Challenge to-Motive set up in this case, cannot be said to be fully established-Complainant inspite of bei^g father of deceased, has made an un-inspiring statement nd at places, avoided to answer questions within his knowledge--P.W. 9 is shown to h^ a n inimical witness-Held: An independent corroboration which was necessary in such a case, was altogether lacking-appeal ismissed. [P.378JA PLJ1985SC74re/. Rana Muhammad Arshad KJian, Addl. A.G. Punjab for Appellant. Respondent: Not represented. Date of hearing: 1.7.1992. judgment Justice Shafiur Rahman, Chairman.-State has appealed under Section 13(5) of the Special Courts for Speedy Trials Ordinance, 1991 against the acquittal of Sultan/respondent from a charge under Section 302 PPC. 2. The prosecution case in brief for which respondent was tried and acquitted was (Bathe was maintaining friendship with the deceased Saifullah son of the compTaiuMtt Maskeen Ullah (P.W. 8). As the accusefl was suspected to be a had character, the father had asked his son Saifutlah (deceased) to discontinue his association and friendship with the accused which he had done. Aggrieved over it, on the morning of 5th of April, 1991 at about 8.00 a.m. while Saifullah was on his butcher shop selling out meat in the presence of Maskeenullah (PW-8) and Atta Muhammad (PW-9) and others, the respondent came there with a plastic jug full of acid and emptied it over the deceased telling that this was for discontinuing the friendship. Saifullah with acid burns was removed to the Mianwali Hospital forthwith and after obtaining the doctor's report his father went and lodged the report at the Police Station at 9.15 p.m. with Muhammad Saeed S.I. (PW-11). Dr. Sher Ali (PW-2) who examined the injured Saifullah found the following injuries on his person:-- "(1) chemical burns on right side of face, eye, scalp involving tissues more than skin deep. Chemical burns on left shoulder, arm and hand. Chemical burns on left side of face, eye and scalp. Stations which fell on the way, and instead recourse to C.I.A. Staff obtained/Anli dacoity Staff was had for ulterior purposes. (5) Inspite of the fact that the Drug Inspector had sufficient advance information about the manufacture of the spurious drug and had arranged a raid, he had in contravention of Section 103 of the Criminal Procedure Code not included any respectable or independent person of the locality in the proceedings thereby defeating a mandatory provision of the law. (6) The defence evidence was equally convincing, creditworthy and it went to prove that the two appellants were engaged whole time in innocent trades and their arrest had not taken place in the manner shown by the prosecution. There was no plausible ground for rejecting such defence evidence and necessarily preserving the prosecution case which in any case was discrepant on facts. (7) The benefit of Section 382-B of the Criminal Procedure Code has not been extended to the appellants though they remained in confinement for quite long period and no reason has een given lor denying them the statutory benefit. 8. So far as the legal grounds are concered. we have examined the definition of "manufacture", "spurious drug" and "counterfeit drug" as provided in the Drugs Act, 1976 and find that they cover the act alleged against the appellants so as to bring the offence under Section 27(l)(a) of the Drugs Act. What can be said at the most is that the offence alleged may equally fall under Section 27(2)(a) of he D ugs Act as well. Even on that assumption, recourse to subsection (1) as against subsection (2) of Section 27 which is not so grave or serious was legal and proper. It could not be otherwise. 9. As regards the other legal objection of substantial compliance with Section 103 of the Criminal Procedure Code, the Drug Inspector admitted that he had received secret inforamtion about such manul'ature a day or two earlier to the day the raid was conducted. He also made it clear that he did not in the first instance get assistance from the Shad Bagh Police Station and his was for the reason that he suspected that it may be with their connivance. It is in this background of secrecy and protection that the Drug Inspector sought the assistance of the C.I.A. Staff and excluded the participation and association of the Police Stations having jurisdiction or even the respectables of the locality. Such a caution on the part of Drug Inspector would not make the proceedings suspect for non-inclusion of a respectable resident of the locality. 10. As regards the contradiction on factual matter as to whether the culprits wre Oiling the bottles or putting labels on them, one has to keep in view the fact that there were more than three persons, in all four, in the premises engaged in the work. The process of filling the bottles, of labelling and of putting the material in bottles would all be a part of process, a link in the completion of the transaction and different individuals may be engaged in different activity. This accounts for what the learned counsel consider factual discrepancy in the ocular testimony. 11. It is true that the trial court has also come to the conclusion that Afzal Ashfaq was the main culprit, the beneficiary of the enterprise and the head of it. It is for that reason that a lenient view for their mere assistance and underlings, which the appellants happened to be, has been taken. It is incorrect to say that Afzal Ashfaq was given protection by the Police Officers, though he was dealt with in a manner to rompt filing of Constitution Petition by the members of the family. He is proclaimed offender. Evidence has been recorded against him under section 512 of the Criminal Procedure Code. All the process that ere legally permissible and could be taken had been taken against him and nothing more could reasonably be done to bring him before the Court. 12. As regards the preference of the oral evidence of the prosecution over the defence, one must notice that the prosecution witnesses are responsible officers of the Government having a statutory duty to discharge. It is in the performance of that duty and not with a view of any malaflde action that they conducted the raid after taking all the precautions and observing the legal B formalities that could reasonably be expected from them. On the other hand, though the defence witnesses claimed to have employed the appellants as Welder and Electrician, no record whatsoever could be produced by them or other contemporaneous evidence to inspire confidene with regard to it. 13. We find that on the material on record the trial court has reached a correct conclusion with regard to the guilt of the appellants and the sentence awarded is such as would not require interference of this court on any ground whatsoever. It is true that the trial court has tried to be as lenient to the appellants C as was possible within the limits of law but has omitted to extend them the benefit ot Section 362-B of the Criminal Procedure Code without noticing any feature which could have justified such a denial. .14. In the circumstances, we dismiss the appeals against conviction and! sentence but allow the two appellants the benefit of Section 382-B of the Criminal I Procedure Code. (MBC) (Approved for rcproting) Appeal dismissed

PLJ 1992 Cr PLJ 1992 Cr.C.(AJK) 387 Present: ABDUI. MAJraiD MALLICK, CJ Raja FA1ZULLAH KHAN and another-Pclitioners versus RAUBKAR ADALAT-Non-Petitioner Criminal Revision No.12 of 1992, accepted on 10.5.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.514--Surety bonds-Confiscation of--Challenge to--It was enjoined upon court seized with case, to satisfy itself that bail bond was executed for appearance of accused before court, that on account of bsence of accused, bond has been forfeited; and that court has to ask sureties to explain as to why amount of bond should not be realised from them-In this case, there is no formal order of court relating to first wo conditions-Held: Impugned order is illegal and same is quashed—Petition accepted and case remanded for passing proper order. [P.389]A&B Mr. Masud PGialid, Advocate for Petitioners. Mr. Muhammad, Akram Mughal, Addl. A.G. for State. order The petition is directed against the order passed by the learned Sessions Judge, Mirpur, on January 18, 1992, whereby the petitioners were burdened with the penalty in the sum of Rs.10,000/- each, the amount of bond executed by them, for production of accused Mahboob Kiani, in the Court. 2. Mahboob Kiani, accused was put to trial under Section 5 of the Explosives Act, in the Court of Sessions Judge, Mirpur. He was released on bail and the bail bond was executed by the petitioners ith the undertaking that the accused shall appear before the Court on each date of hearing for which the sureties shall be responsible. In case the accused failed to appear in the Court, it was assured that the sureties shall pay a sum of Rs.1,00,000/- each, from their person or property as penalty for the default of appearance of the accused before the Court. The bond was executed on July 20, 1988. 3. The accused has been appearing during trial but on April 14, 1990, he failed to appear, as such the bail was cancelled and show cause notice was issued to the sureties. Warrant of arrest of the accused was also issued. The sureties appeared before the Court and filed their objections on October 7, 1991. It was explained that 'the accused had absconded and the petitioners required reasonable time to produce him in the Court. It was explained that the accused was a Driver and despite best efforts of the sureties, they were unable to find him out. It was further explained that the execution of bond was bonafide. The earned Sessions Judge in consideration of the explanation furnished by the sureties, felt persuaded to burden them with the liability of Rs.10,000/- each. This order has been assailed in the present petition. 4. Mr. Masud Khalid, the learned Counsel for the petitioners, contended that ihe failure of appearance of the accused in the Court on the relevant date was not due to fault on the part of the sureties and that they were destitutes, as such they deserved further latitude in addition to one already given by the learned Sessions Judge. Mr. Muhammad Akram Mughal, the learned Additional Advocate General, partly agreed with the aforesaid proposition. 5. The scheme of law relating to forefeiture of bond and realization of amount has been postulated under Section 514, Cr.P.C. It was enjoined upon the Court seized with the case, to satisfy itself that bail bond was executed for' appearance of the accused before the Court. On account of absence of the i' accused, the bond has been foiefeited and next, the Court has to sk the sureties! to explain as to why the amount of bond should not be realised from them. Thus,' the law contemplates three stages:— (0 The satisfaction of the Court that the bond is for the appearance of the accused before the Court. Such satisfaction has to be expressly recorded in the order of the Court; (/'/) the bond has been forefeited. The finding of the Court with respect to forfeiture of the bond must rest on grounds necessitating such forfeiture; and (//'/) the realization of the amount of the bond. 6. In the present case, it is noticed that there is no lormal order of the Court relating to first 2 conditions laid down in the Code. The learned Sessions Judge has not mentioned expressly in the impugned order that the bond was for the appearance of the accused in the Court and the accused was absent without reasonable ground. Secondly, there is no formal order for forfeiture of the bond resting on the grounds in support of such forfeiture. The order is, therefore, illegal, as such it is hereby quashed. The petition is accepted and the case is remanded to the learned Sessions Judge for passing of the proper order. The parties shall appear before the learned Sessions Judge, Mirpur, on May 25, 1992. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Cr PLJ 1992 Cr.C(AJK) 389 Present: abdul majeed maluck, LJ MUHAMMAD SIDDIQUE-Appellunt versus MUHAMMAD YAQUB and anothcr-Respondcnts Criminal Appeal No. 12 of 1992, dismissed on 20.4.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.497(l)--Murder--Offence of—Bail on completion of statutory period—Grant of—Challenge to—Word "may" has been used in rule of procedure which confers authority on Court, for release of an accused of offence punishable with death-It is permissible to construe meaning and scope of word "may" with reference to condition laid down under proviso-Intention of legislature appears to be that if delay of two years occurs due to fault of prosecution or court, accused may not suffer his detention for such fault on part of other party—Conversely, if delay in due to fault of accused, he cannot avail concession of proviso for his release on bail-Held: In this case, accused remained in detention for two years and delay having not occasioned due to his fault, order of lower court is not defective-Appeal dismissed. [Pp.391&392]A,B&C Black's Law Dictionary and Crawford (Statutory Construction) ref. Ch. Muhammad Taj, Advocate for Appellant. Mr. Muhammad Abdul KJialiq Ansaii, Advocate for Respondent No.l. order Muhammad Yaqub, accused-respondent is facing trial on the charge of murder, in the District Criminal Court, Mirpur. The incident of murder took place on December 29, 1989, at 1 P.M. in village Doodh Parat, Police Station Dadyal. The accused was apprehended the next day and since then remained in the judicial lock-up, till the time of his release on March 5, 1092. The bail was allowed to the accused by virtue of amendment of Section 497, Cr.P.C., enforced through an amendment Ordinance. This order has been assailed in the present appeal. 2. Ch. Muhammad Taj, the learned Counsel for the appellant contended that the trial Court misdirected itself in calculating the stipulated period for the release of the accused. Moreover, it was emphasised that it was not obligatory for the Court to release the accused in the light of the proviso introduced through amendment. Mr. Muhammad Abdul Khaliq Ansari, the learned Counsel for defence, supported the impugned order and argued that the period of detention of the accused exceeded 2 years of his detention, as such the trial Court rightly ordered his release. 3. Section 497(1), Cr.P.C. postulates that a person accused of non-bailable offence shall not be released when there appear reasonable grounds for believing that he has been guilty of offence punishable with death or life imprisonment. The exception to the rule was introduced to the benefit of minor below 16 years, woman, sick or infirm person. By recent amendment, the third proviso was introduced whereby it as provided that the Court may direct any person to be released on bail who being accused of offence punishable with death, has been detained for such offence for a continuous period exceeding 2 years and whose trial for such offence has not concluded. 4. The legislature used the word "may" with reference to authority of the Court and provided that the Court was empowered to exercise its power for the release of a person accused of offence punishable with death provided the period of his detention exceeded 2 years and the trial was yet incomplete. It was pointed out that the use of "may" was not mandatory, as such the Court was not under obligation to release the accused necessarily on fulfilment of the condition of stipulated period of detention. The Court was empowered to decline the release of an accused despite his detention exceeding 2 years and incomplction of the trial, in the light of the facts of each case. The counter contention was that the (word) "may" denoted the spirit of mandatory provision leaving no discretion of the Court. Thus the Court was under obligation to release the accused when the period of detention of 2 years exceeded and the trial was not concluded. 5. The rule of interpretation of statutory provisions of law postulates that while construing the provision of law, it has to be construed in its ordinary meaning. Therefore, it is expedient to advert to ordinary meaning of the term "may 11 , in order to ascertain its scope with reference to the context, to determine the power of the Court, to grant release of accused. According to 'Black's Law Dictionary', the word "may" has been defined as:-- "—-Regardless of the instrument, however, whether constitution, statute, deed, contract or whatever aaurts infrequently construe "may" as "shall" or "must" to the end ffiat justice may not be the slave of grammer. •However, as a general rule, the word "may" will not be treated as a word of command unless there is something in context or subject mattci of act to indicate that it was used in such sense.-—In construction of statutes and presumably also in construction of federal rules word "may" as opposed to "shall" is indicative of discretion or choice between two or more alternatives, but context in which word appears must be controlling factor". The word "may" was construed by Crawford (Statutory Construction) as:-- "May.--" 'May' ordinarily denotes permission and not command. Where the word as used in a statute concerns the public interest or affects the rights of third person, it will be construed to mean 'must'". 6. It is evident from the aforesaid interpretation of the word "may" that it has to be construed with reference to context. It may be construed to denote the discretion conferred on a tribunal or authority and when used in different context, it may reflect the spirit of command and may carry the meaning of word "shall". When it is used in a statute which concerns the public interest or affects the rights of third person, it shall be construed and be treated as a word of command. In other cases, it has to be construed as a discretion exercisable by a tribunal or an authority. Thus, the word "may" is capable of alternative meaning nd it is to be construed in the light of context. 7. In the present case, the word "may" has been used in the rule of procedure which confers authority on the Court, for the release of an accused of offence punishable with death. The power of the Court is to be exercised only in a case where the condition of stipulated period of more than 2 years is fulfilled. It is, therefore, permissible to construe the meaning and scope of the word "may" with reference to the condition laid down under the proviso. 8. The other relevant aspect of the proposition is that delay in conclusion of trial may occasion due to fault of the prosecution, negligence of Court or conduct of the accused. It is, therefore, quite relevant to appreciate the act of delay with reference to attitude of the parties as well as the Court. The intention of legislature appears to be that delay of more than 2 years in conclusion of trial in case of a person accused of offence punishable with death when occurs due to fault of the prosecution or the Court, as a rule of justice, the accused may not suffer his detention due to such fault or omission on the part of other party. Conversely, when delay in conclusion of trial within a period of 2 years is shown to have occasioned due lo the fault of the accused, in such case, the accused cannot avail the concession of the proviso, in his release. If such a practice is followed, then obviously, every accused facing trial on the charge of offence punishable with death, would be encouraged to adopt dilatory tactics to delay the conclusion of the trial and on completion of more than 2 years, would seek his release by virtue of proviso. This Court was vested with a discretionary authority to grant he release of an accused provided it was satisfied that the delay had not occasioned by mala fide of defence but otherwise. In this view of the matter, the scope of meaning of the word "may" has to be accepted as discretion conferred on the Court for the release of an accused in an appropriate case. An identical view was held by the learned Judge Shariat Court , in another case itled "All Asghar v. State", decided on April 1,1992. 9. It is noticed that the accused remained in detention for more than 2 years and delay has not occasioned due to his fault or omission. In the circumstances, the order of the lower Court is not found defective. The appeal is, therefore, dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C.( Peshawar ) 392 Present: QAZI MUHAMMAD FAROOQ, J z-Appellant versus THE STATE-Respondent Criminal Appeal No.134 of 1991, accepted on 26.2.1992. Pakistan Penal Code, 1860 (XLV of 1860)-- —S.311 read with Section 338-H as amended by Qisas and Diyat Ordinance-­ Murder—Offence of—Right of Qisas— Waiver of—Conviction under Section 311 PPC—Challenge to—Offence was committed before commencing date of Criminal Law (Second Amendment) Ordinance, 1990--HeId: Conviction is not sustainable for short reason that provisions of Section 311 PPC cannot be invoked n a case pending before any Court immediately before commencement of Criminal Law (Second Amendment) Ordinance, 1990-- Appeal accepted and conviction and sentence set aside. [Pp.393&394]A&B M/s. Maaznllah Barkandi and Mr. Abdur Ranf KJian Rohaila, Advocates for Appellant, Mr. Adam Klian, Assistant A.G. for State. Date of hearing: 26.2.1992. judgment This criminal appeal arises from the judgment of the learned Additional Sessions Judge-I. Mardan dated 5.11.1991 whereby Wisal Khan appellant was convicted under Section 311 P.P.C. for the murder of one Qamar-uz-Zaman and sentenced to suffer 5 years R.I. 2. Briefly, the relevant facts are that on 29.10.1991 the appellant was formally charged by the learned trial Judge for committing the murder of Qamaruz-Zaman deceased on 4.3.1989 within the limits of Police Station Katlang, Mardan but he pleaded not guilty and claimed trial. On the date of hearing fixed for the evidence of the Prosecuiion the legal heirs (Walls) of the deceased appeared before the learned trial Judge and after pressing into service a compromise in writing made a request that the appellant be acquitted as they had patched up the matter and waived their right of Qisas. The learned trial Judge treated the compromise and waiver as genuine and sacrosanct but convicted the appellant under Section 311 P.P.C. and sentenced him to suffer 5 years R.I. on the ground that the deceased was the sole bread-earner of his family consisting of an old mother and a poor sister and his murder had left them high and dry. 3. The deceased was unmarried and was survived by a mother, A/at. Shamshul Baha Begum, a sister, Mst. Roshan Nama and a full paternal uncle, Nawaz Khan who had lodged the F.I.R. in this case. All of them appeared before me in .the Court today and reiterated their request for the acquittal of the appellant as they had waived their right of Qisas. Their joint statement was recorded which suggests that they have waived their right of Qisas of their own free will and accord. 4. The conviction of the appellant under Section 311 P.P.C. and the sentence awarded to him are not sustainable for the short reason that the provisions of Section 311 P.P.C. cannot be invoked in regard to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 or to the offences committed before the twelfth day of Rabi-ul-Awwal, 1411 Hijri (2nd October, 1990), namely, the date of commencement oi the said Ordinance. In this context reference may be made to Section 33S-H P.P.C. which reads as ollows:—"Saving.—(1) Nothing in this Chapter, except Sections 309, 310 and 338E, shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second mendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such commencement". For the foregoing reasons this appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted. He be set at liberty forthwith if not wanted in any other case.

PLJ 1992 Cr PLJ 1992 Cr.C( Peshawar ) 394 [Abbottubad Bendi] Present: mian muhammad ajmal kuan. .1 Qflr/BASHIRUDDIV-Pcthioner versus MIR ZAMAN alias M1RZA and 6 others-Respondents Criminal Misc.(O) No.4 of 1991, dismissed on 15.4.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.561-A—Complaint under Section 145 Cr.P.C.—Dismissal of—Challenge to— Parties have been litigating since long both in civil and criminal Courts- Pclil loner's claim about possession of land appears to be quite contradictory in proceedings under Section 145 Cr.P.C. and civil suit filed by him-Dispute between parties is primarily of civil nature—Held: Since petitioner has already filed a civil suit wherein status quo order has been passed by civil court, matter under Section 145 Cr.P.C. falls outside jurisdiction of Magistrate. [Pp.395&396]A,B Mr. Anwar Klutrshid Turk, Advocate for Petitioner. Mr. Muhammad Akhtar Klian Swaii, Advocate for Respondent. Mr. Muhammad Aslam Klian, A.A.G. of the State. Date of hearing: 14.4.1992. judgment This petition under Section 561-A Cr.P.C. has been filed for quashment of order of SDM Mansehra dated 23.10.1989 whereby the complaint of the petitioner filed, under Section 145 Cr.P.C. was dismissed and thereafter the revision petition under Section 439-A Cr.P.C. against the aforesaid order was also dismissed by the learned Sessions Judge, Mansehra on 16.9.1990. 2. The petitioner filed a complaint under Section 145 Cr.P.C. in the Court of Magistrate 1st Class Mansehra on 11.6.1987 against the respondents which wassent to SHO for inquiry and report. The S.H.O. submitted his report on 23.7.1987. After recording the evidence of both the parties the learned EAC dismissed the complaint under Section 145 Cr.P.C. on 23.10.1989 and directed the parties to approach the civil court for determination of the issues involved in the case. The petitioner dissatisfied from this order filed revision petition under Section 439-A Cr.P.C. before the Sessions Judge, Mansehra which was also dismissed on 16.9.1990. Hence the petitioner has filed this quashment application under Section 561-A Cr.P.C. 3. The learned counsel for the petitioner contended that the petitioner is owner of 52 kanals of land bearing khasra No.284 according lojainabandi for the year 1981-82. The second party (respondents) on 12.6.1987 forcibly took the possession of the land situated towards the western side and as such caused breach of peace. He submitted that civil suits were filed by the respondents which have been dismissed, as such the property in dispute be attached under Section 145 Cr.P.C. 4. The learned counsel for the respondents vehemently opposed this petition and submitted that having exhausted the remedies before the competent forums he could not invoke the inherent jurisdiction of this Court under Section 561-A Cr.P.C. He submitted that the powers under Section 561-A Cr.P.C. can neither be used as alternative nor additional and can only be invoked in the interest of justice for redress of grievance having no other procedure. He also referred to the statement of the complainant where he has stated that the second party has no connection in the disputed land which is in his possession. He is in possession of 49 kanals of land for the long time. There is a dispute in between him and the second party over the possession of 49 kanals of land which is in his possession.' He submitted that the petitioner's stand is self contradictory. On the one hand he claims that the possession has been taken over by the respondents whereas in the statement before the Court he claims to be in possession of the property in dispute. He referred to the plaint of the petitioner in suit No.24/1 instituted on 21.1.1990 pending before the Civil Judge 1st Class Mansehra wherein he has sought the declaration to the effect that he is owner in ossession of 30 kanals of land out of 88 kanals 16 marlas bearing khasra No.284 khata No.27/76. Here again his claim is in conflict with the present claim. He submitted that there has been protracted litigation both civil and criminal since 1984 between the parties over the property in question and the dispute being primarily of civil nature, the orders of the learned lower courts are well founded and do not suffer from any legal infirmity, therefore, this petition be dismissed. 5. I have heard the learned counsel for the parties at length and have gone through the record of the case. 6. The perusal of the record would show that the parties have been litigating since long both in civil and criminal courts. The petitioner's claim appears to be . quite contradictory as on the one hand his claim under Section 145 Cr.P.C. is that he has been dispossessed by the second party, but in the court he has stated that he is in possession of the suit property. On the other hand in the civil suit No.24/1 of 1990, he has sought the declaration that he is owner in possession of 30 kanals of land out of 88 kanals 16 marlas bearing No.284, and on his application for temporary injunction, the status quo order has been passed by the Civil Judge Mansehra on 5.12.1989. He had earlier lodged a report under Section 447/147 PPC vide FIR No.48 dated 21.5.1986 in Police Station Phulra with regard to the property in question but the same was cancelled after inquiry and a case against him was registered by the police under Section 182 PPC as a result of which he was convicted by MIC Mansehra vide his order dated 22.5.1988. The dispute between the parties is primarily that of civil nature. Since the petitioner has already filed a Civil Suit No.24/1 of 1990, wherein the civil court has passed status quo order, therefore, in view of the dictum laid down in case Mehr Muhammad Sarwar and others versus Tlie State and others reported in PLD 1985 SC 240, the matter under Section 145 Cr.P.C. falls outside the jurisdiction of the Magistrate. Para 5 of the aforesaid judgment is reproduced below: "It requires to tbe mentioned that in an inquiry under Section 145 Cr.P.C. all that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the matter falls outside the jurisdiction of the learned Magistrate under Section 145, Cr.P.C. The relevant portion of the said judgment reads as follows:-- 'A case in which a civil court is already seized with the subject-matter of dispute and has passed an order relating to possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-parly from interfering with the possession of the decree-holder, falls outside the jurisdiction of a Magistrate under Section 145 Cr.P.C. Action can, of course, be taken always under Sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the properly can be made". I In view of the above rulings this quashment application being without any merit, is dismissed. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 396 [Sukkur Bench] Present: SllAUKAT HUSSAIN ZUBEDI, J HAMEER, HAJI AHMAD AND HAJI MASHOOO-Appellants versus THE STATE-Respondent Criminal Appeals Nos.13,14 and 15 of 1992, accepted on 31.5.1992. (i) Jurisdiction— —-Offence under Section 13-D of Arms Ordinance, 1965-Conviction for~ Challenge to--Whether Additional Sessions Judge had jurisdiction to try offences-Question of-From perusal of Section 14-A(1) of rdinance, 1965, it will appear that as a general rule, all offences regarding arms and ammunition falling under Section 13 or 14 shall be triable by a Magistrate of First Class except offences described in proviso to ection 13—Weapons recovered from appellants are not covered by proviso to Section 13—Held: Conviction and sentences of appellants are not sustainable as trial of appellants by Additional Sessions Judge is early without jurisdiction. [P.399]A,B,C&D (ii) Practice and Procedure— —Trial under Arms Ordinance, 1965—Whether statements of witnesses in one case could be utilized in other cases—Question oi—Mashimama of arrest and recovery of arms from each appellant, were common-Two prosecution witnesses were examined in case of appellant in Crl. Appeal No.13 of 1992 and their statements were copied out in cases of other appellants in verbatim- Even statements of appellants recorded under Section 342 Cr.P.C. are carbon copies-Held: Procedure adopted by trial court is not only illegal but it also vitiates judgment as evidence recorded in one case cannot be read as legal evidence in another case-Appeals accepted and appellants acquitted. [Pp.399&400]E,F&G Ka:i Azizallah, Advocate for Appellants (in all appeals). Mr. Mitshlaq Ahmed Amir Mahar, Advocate for State (in all appeals). Date of hearing: 14.5.1992. judgment In these three appeals common questions of law are involved, therefore the same are being disposed by this consolidated judgment. These three appeals are the off-shoots of ihc main case being criminal appeal No.12/92 (reported as PLJ 1992 Cr.C.(Kar) 337, they are connected as they arise out of the same incident. In Criminal Appeal No.13/92, the appellant is Hameer S/o Sahib Dahri who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment dated 20th May, 1987, he was convicted under Section 13-D Arms Ordinance and sentenced to R.I. for 3 years, as he was found in possession of a 12 bore single barrel gun and two live cartridges for which he had no licence. The appellant has challenged his conviction and sentence through this appeal. In Criminal Appeal No.14/92, the appellant is Haji Ahmad S/o Faqir Muhammad who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment dated 20th May, 1987 he was convicted under Section 13-D Arms Ordinance and sentenced to R.I. for 3 years as he was found in possession of a 12 bore single barrel gun and 3 live cartridges for which he had no licence. The appellant has challenged his conviction and sentence through this appeal In Criminal Appeal No.15/92, the appellant is Haji Mashooq S/o Misri Khan who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment dated 20th May, 1987 he was convicted under Section 13-D Arms Ordinance and sentenced to R.I. for 3 years as he was found in possession of a pistol and 2 live cartridges for which he had no licence. The appellant has challenged this conviction and sentence through this appeal. Briefly, the facts of the case are that on 16.12.1986 SHO Rafiuddin Khoso of PS Kandiaro alongwith his staff were on patrol duty, when they reached the road leading from Halani to Mehrabpur, it was 7-00 p.m. at that time when they saw the road was blocked by means of stones of different sizes. On the light of their vehicle, they saw 5 persons duly armed approaching their vehicle, the SHO gave warning on which the accused started firing which was also replied by the police. After about 10 minutes all the accused surrendered to the police. The personal search of the accused was taken in presence of masliirs ASI Fida Hussain Shah and H.C. Muhammad Mithal, which resulted in the recovery of one .12 bore single barrel gun and 2 live cartridges from accused Hameer, from accused Haji Ahmed one .12 bore single barrel gun with 3 live cartridges, from accused Haji Mashooq one .12 bore local made pistol and 2 live cartridges, from accused Jan hatchet was recovered and from accused Rasool Bux one lathi was recovered. All the accused were arrested under a common inashimama of recovery and arrest. Thereafter the accused and the property were brought lo P.S. Kandiaro where SHO Rafiuddin Khoso lodged the report in respect of the main case under Section 307/353/402 PPC and he also lodged separate FIR under Section 13-D Arms Ordinance in respect of each accused, namely, Hameer, Haji Ahmed and Haji Mashooq. After registration of the cases he himself took up the investigation and challaned all the five accused in the main case and also separately challaned accused Hameer, Haji Ahmad and Haji Mashooq for offence under Section 13-D Arms Ordinance. At 'the trial the prosecution examined PW 1 ASI Fida Hussain Shah who acted as mashir of recovery. PW 2 SHO Rafiuddin Khoso was the seizing officer. At the conclusion of the prosecution evidence, the accused were examined under Section 342 Cr.P.C. they denied the allegations and claimed to be innocent. The accused neither wished to be examined on oath, nor wanted to examine any defence witness. The accused were convicted thereafter, as already mentioned above. I have heard Mr. Kazi Azizullah learned counsel for the appellants and Mr. Mushtaq Ahmed Amir Mahar Advocate for AAG for the State. The latter has not supported the convictions of the three appellants for obvious reasons.At the time of arguments, the learned counsel for the appellants has raised a legal point which goes to the very root of the matter therefore the merits of the case are not being touched. A The moot point raised by the learned counsel for the appellants was, that the trial and proceedings held by the learned Additional Sessions Judge, Kandiaro was coni/n non jitdice, as the trial Court had no jurisdiction to try these cases, the same were triable by a First Class Magistrate within the meaning of Section 13 and 14A of the Arms Ordinance. In order to appreciate the legal point raised by the learned counsel for the appellants, I may refer to subsection (1) of Section 14A of the Arms Ordinance, 1965, which is reproduced as under:— 14-A(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 an offence punishable under Section 13 or Section 14 shall, unless it has been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to the said Section 13, be triable by a Magistrate of the First Class". From the perusal of Section 14-A(1), it will appear, that as a general rule, all offencs regarding arms and ammunition falling under Section 13 or 14 shall be triable by a Magistrate of the First Class. But offences in respect of arms and ammunitions specified and described in the proviso to Section 13, are not triable by a First Class Magistrate. From the above discussion, it will therefore appear that in every case of Section 13-D, the bore and description of the recovered "arm" is the deciding j factor which determines the jurisdiction of the court to try the offence. Keeping in view the above principle, the weapons recovered from the appellants in this case are 2 single barrel guns of .12 bore recovered from appellants Hameer and Haji Ahmed respectively and pistol of .12 bore from Haji D Mashouq. All these 3 weapons of .12 bore are not covered by the proviso to Section 13 of the Ordinance, therefore, the cases of the appellants were triable by a Magistrate of the First Class and not by the Sessions Court. As such the conviction and sentences of the appellants are not sustainable as the trial of the appellants held by the Addional Sessions Judge, Kandiaro is clearly without jurisdiction. There is yet another legal lacuna in this case which vitiates the judgment of the trial Court. In this regard it may be noted, that all the appellants were arrested at one and the same time therefore, the ashirnama of arrest and recovery of arms from each of the appellants was common, as such, the mashirs were also common. The prosecution chose to examine PW 1 ASI Fida Hussain Shah and PW 2 SHO Rafiuddin Khoso. Both these witnesses were required to be examined in 3 separate cases of the appellants, as each of the appellant was being tried separately. On perusal of evidence of these 2 witnesses, in all the 3 cases of the appellants, it appears that the learned trial Judge firstly recorded the evidence of these 2 witnesses in the case of appellant Hameer Dahri (Cr.Appeal No.13/92) and copied out the same evidence in the cases of appellants Haji Ahmed and Haji Mashooq. The only change was in the examination-in-chief portion with regard to the name of accused and the weapon recovered while the cross-examination portion has been copied out verbatim. The procedure adopted by the trial Court is not only illegal, but it also vitiates the judgment, as evidence recorded in one case, cannot be read as legal evidence in another case. Even the statements of appellants recorded under Section 342 Cr.P.. are carbon copies. The R & P is before the court, the original statements have been checked and it reveals all the questions formulated y the trial Court are common, with necessary spaces left blank, which have been filled up in ink under the hand of the learned trial Judge and there is no certificate as required by Section 364 Cr.P.C. From the above discussion it will appear that the trial court had no jurisdiction to try these cases. Even otherwise this was a hasty trial in which unwarranted short cut methods were adopted by the trial Court vitiating the trial, therefore, I have no hesitation in holding that the conviction and sentences of the appellants are illegal as the same were awarded by a Court having no jurisdiction. Consequently all the three appeals are allowed and the appellants are acquitted of the charges levelled against them.By a short order dated 14.5.1992, these appeals were allowed. These are the reasons for the same. (MBC) (Approved for reporting) Appeals accepted.

400 [Sukkur Bench] 400 [Sukkur Bench] Present: SHAUKAT HUSSAIN ZUBEDI, J MANOO alias MANTHAR-Appellant versus THE STATE-Respondent Criminal Appeal No.100 of 1990, accepted on 18.5.1992. Judicial Cont'ession-- -—Murder-Offence of--Conviction for-Challenge to-There is no direct evidence in this case—Trial Court convicted appellant on basis of his judicial confession-From his cross-examination, P.W.5 who is Mukhtiarkar and F.C.M., it will appear that basic requirements for recording confession, were not complied with by him-No warning was given to appellant and most important aspect of matter, i.e. why appellant was making confession, is also missing-No effort was made to find out about any inducement, threat or promise—Appellant was not informed that if he makes confession, it can be used against him-Held: Said judicial confession cannot be relied upon for upholding conviction of appellant-Held further: When direct evidence fails, recovery evidence is of no consequence-Appellant acquitted. [Pp.403&404]A,B,C,&D Mr. Gul Bahar Korai, Advocate for Appellant. Mr. Zawar Hussain Jafferi, A.A.G. for State. Date of hearing: 18.5.1992. judgment ppellant Manoo alias Manthar S/o Paryo was tried by the learned Sessions Judge Jacobabad and by his judgment dated 19.11.1990 he was convicted under Section 340(1) PPC and sentenced to undergo R.I. for 5 years and fine of Rs.10,000/- in default of payment of fine he had to undergo R.I. for one year more. The appellant was also directed under Section 544-A Cr.P.C. to pay compensation of Rs.10,000/- or in default to undergo 6 months R.I. The facts forming the background in brief are that on 18.8.1988 the complainant Lai Bux lodged FIR in which he stated that his niece Mst. Arbelli was married to the accused about 3 years prior to this incident. On that day he alongwith PW. Fazal went to village of the accused to meet Mst. ArbelH but she was not available in the house. They were informed that she had gone to Hairo distributary to wash clothes. They went to Hairo minor at that time it was about 10-30 a.m. when they saw the accused Manoo was inflicting hatchet blows to Mst. Arbelli who in turn was raising cries. P.W. Rajo also came at the spot on the cries of Mst. Arbelli and had also witnessed the incident. The complainant and the witnesses challegned the accused but the accused replied that he had declared Mst. Arbelli Kan with Abdul Haque. Thereafter the accused ran away. The witnesses then saw that Mst. Arbelli had expired, leaving the witnesses at the spot the complainant went to Police Station Karim Bux where he lodged the report. The F.I.R. was recorded by A.S.I. Abdul majid who then visited the place of wardat inspected the same in presence of mashirs Abdul Rehman and Sobho Khan. He also held inquest on the dead body of Mst. Arbelli and thereafter sent the same to Medical Officer Thul for postmortem examination and report. At the wardat he also recorded 161 Cr.P.C. statements of PWs. Fazal and Rajo. On 26.8.1988 he arrested the appellant under mashimama in presence of the same mashirs. During interrogation the accused also produced blood stained clothes, which were also secured in the presence of the same mashirs..On 28.8.1988 the appellant agreed to confess the crime, he was herefore taken to Mukhtiarkar and F.C.M. Thul. He recorded his judicial confession. The Investigating Officer also got recorded the 164 Cr.P.C. statements of the witnesses. After having completed the investigation he handed over the case papers to SHO who challaned the appellant in Court. The blo6d stained hatchet was also sent by him to the Chemcial Examiner and its report was also received by him. At the trial the prosecution examined 9 witnesses out of these witnesses P.W.I Lai Bux, P.W.-2 Fazal and P.W.-3 Rajo are the eye witnesses. P.W-4 Muhammad Hussain is the Tapedar who had inspected the place of wardat. P.W.5 is Ali Akbar who is Mukhtiarkar & F.C.M. Thul who had recorded the judicial confession of the accused. P.W.6 is Dr.Asadullah who conducted the postmortem examination of Mst. Arbelli. P.W-7 Sobho Khan is the only mashir of all the maslumamas. P.W.8 H.C. Mir Muhammad is formal witness while P.W.9 A.S.I. Abdul Majid is the investigating officer. At the conclusion of the trial the statement of the appellant was recorded under Section 342 Cr.P.C. in which he denied the prosecution allegations and claimed to be innocent having been falsely implicated in this case by the police. He however did not wish to examine any defence witness. The statement of the accused was also recorded under Section 340(2) Cr.P.C. In both the statements the accused has categorically stated that he was maltreated by the police to extract confession. His signature was obtained by the police on some papers while he was never produced before the Mukhtiarkar & F.C.M. He further states that his mother and sister were also taken into custody and was told to sign the papers or his women folk will be disgraced, as such he was forced to put his left thumb impression on the papers. At the conclusion of the prosecution case the appellant was convicted by the trial Court as already mentioned hereinabove.I have heard Mr. Gul Bahar Korai learned counsel for the appellant and Mr. Zawar Hussain Jaffri learned A.A.G. for the State. The learned A.A.G. has not supported the conviction of the appellant.I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the entire evidence on record with the assistance of learned counsel for the appellant. The perusal of the judgment delivered by the trial Court shows that the appellant was convicted on the basis of his judicial confession coupled with the circumstantial evidence of the recovery of blood stained hatchet at the pointation of the appellant. It has been contended by the learned counsel that the ocular evidence in this case does not support the prosecution case as such in the present case there was no direct evidence against the appellant. The perusal of the judgment also shows that the learned trial Judge had also come to the same conclusion and has observed that the witnesses have not supported the prosecution case by stating that they have not seen the accused Manoo causing hatchet blow to deceased Mst. Arbelli. As such the learned counsel has rightly contended that 'in a given case where there is no direct evidence then in such a case if the accused is to be convicted on the basis of circumstantial evidence only, then the same must be free from any doubt and no other explanation should be possible except the guilt of the accused. Since there is no direct evidence in the case I will therefore refer to the evidence on the basis of which the appellant was convicted by the trial Court. As already mentioned, the trial court has convicted the appellant on the basis of his judicial confession which is alleged to be corroborated by the recovery of blood stained hatchet. It will appear that the most important piece of evidence against the appellant is the so called judicial confession. Before examining the evidentiary value of the judicial confession, I regret to observe here that the learned trial Judge did not bother to take into consideration the cross-examination of the learned Mukhtiarkar & F.C.M. Thul. The cross-examination of PW-5 Ali Akbar who is Mukhtiarkar & F.C.M., his deposition is Ex.15. He states that on 27.8.1989 the appellant was produced before me for recording his judicial confession. After observing all the formalities he recorded statement which he has produced as Ex.16. In his cross-examination he has made the following admissions: "It is correct that it is mentioned in the confessional statement that the incident was committed in the house of accused, but it is correct that this information was given to me by police which I recorded in the confessional statement". "It is correct that I have not mentioned in confessional statement that I told accused that I was the 1st Class Magistrate". "I have not produced any letter in Court for remanding the accused to judicial lockup after recording the confession". "I have not mentioned in confessional statement that I got removed hand­ cuffs of accused when he was produced before me for confessional statement". "I have not mentioned in confessional statement that I enquired from accused as to why he was giving confessional statement". It will appear from the cross-examination of the learned Magistrate that the basic requirements for recording the confession were not complied with by him. The confessional statement is silent regarding any warnings given by the learned Magistrate and the most important aspect of the matter i.e. why the appellant was making this confession is also missing. In this view of the matter no effort was made to find out about any inducement, threat or promise. It is for the purpose of eliminating any doubt, regarding the confession being made by the appellant under any inducement, threat or promise that the question must be put to the accused as to why he is making confession. In the absence of this question that doubt has not been removed. The learned Magistrate himself has admitted in the cross-examination that it was not mentioned in the confessional statement hat he had made such enquires from the accused. Even the other necessary requirements do not appear to have been complied with. The confessional statement does not show that the appellant was informed that if he makes the confession it can be used against him. Similarly the appellant was not informed that he was before the 1st Class Magistrate. So much so that there is no mention that the handcuffs of the appellant were removed or that he will be sent to judicial lockup. All these circumstances clearly go to show that the necessary formalities as required under the law, were not complied before recording the judicial confession of the appellant. As such I have no hesitation to hold that the said judicial confession cannot be relied upon for the purpose of up-holding the conviction of the appellant. I am therefore of the view that the trial Judge should not have relied on the judicial confession of the appellant. There is another circumstance also i.e the appellant has stated in statement under Section 342 Cr.P.C. as well as on oath that the confession was never made by him but his left thumb impression was put by the police as the police had threatened to disgrace his mother and sister. The plea taken by the appellant could be possible in the circumstances of this case. As the judicial confession is ruled out of consideration the only other piece of evidence left is the recovery of blood stained hatchet on the pointation of appellant. Though the recovery is denied to have been made in his presence by the mashir Sobho Khan, even then if this recovery evidence is relied upon then too no useful purpose will be served. It may be noted that the recovery evidence is only a corroborative evidence. When there is no direct evidence then there is nothing to corroborate by means of the recovery evidence. As such the recovery evidence by itself cannot be used as the sole basis of conviction. In other words when direct evidence fails the recovery evidence is of no consequence. In view of my above discussion, I am of the considered view that the prosecution has failed to prove the case against the appellant. Consequently, the conviction and sentence of the appellant are set aside. By a short order dated 18.5.1992 the appeal was allowed, these are the reasons for the same. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 404 [Sukkur Bench] Present: shaukat hussain zubedi, J FIDA HUSSAIN-Appellant versus THE STATE-Respondeni Criminal Appeal No.87 of 1987, accepted on 31.5.1992. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Heroin-Recovery of--Conviction for-Chailenge to-Evidence of both prosecution witnesses clearly indicates that property was sealed at spot~PW.2 states in cross-examination that he had also signed bundle- n erusal of chemical report, it is quite apparent that a different parcel was sent for chemical examination and not one which was secured from appellant—Cloth parcel mentioned in chemical report does not show ignature of P.W.2-- Recovery was made on 14.2.1986 but parcel was delivered in office of chemical examiner on 16.4.1986 after a delay of one month and 20 days—Not only there is no explanation on record or this delay, but case property was never produced in court at any stage-Held: Prosecution has not been able to prove its case beyond all reasonable doubt and appellant is entitled to benefit of doubt-Appeal ccepted. [Pp.406&407]A,B,C,D&E Mr. G.M.Soomro, Advocate for Appellant. Mr. Zawar Hussain Jafferi, A.A.G. for State. Date of hearing: 23.4.1992. judgment The appellant Fida Hussain son of Muhammad Ramzan Ansari was tried by the learned Second Additional Sessions Judge, Khairpur who also convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 vide judgment dated 16.9.1987 and sentenced him to undergo R.I. for twelve months and fine of Rs.5000/- or in default of payment of fine to undergo R.I. for three months more. By this appeal, the appellant has now challenged his said conviction and sentence. The case of the prosecution is that, SHO Muhammad Hashim Memon of PS Tanco Masti alongwith his staff was on patrolling duty on 14.2.1986. On the same Jay at about 4-00 p.m. when he reached near Simnali, he saw the present appellant, who was stopped and searched. From his left leg socks, 5 packets of heroin powder were recovered which was secured in the presence of masliir H.C. Murr.iaz Ali and P.C. Ghulam Sarwar under a mashimama prepared by the SHO. The heroin powder was also weighed at the spot. It was 11? grams including the wrappers. The same was also sealed at the spot. Therealtcr the accused and the case property were brought at the police station where the SHO lodged the report. After completing the investigation, the accused was also challaned. He was tried, convicted and sentenced as already mentioned above. 'At the trial, the prosecution examined PW 1 Muhammad Hashim whose evidence is Ex.4. \ho also produced the mashimama of recovery Ex.5, F.I.R. Ex.6 and the chemical report as Ex.7. The second witness xamined is PW 2 H.C. Mumtaz Ali who supported the recovery and also corroborated the evidence of PW 1 Muhammad Hashim. After examining these two witnesses the prosecution closed its side. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —-Heroin-Recovery of--Conviction for-Challenge to-Evidence of both prosecution witnesses clearly indicates that property was sealed at spot-PW.2 states n cross-examination that he had also signed bundle-On perusal of chemical report, it is quite apparent that a different parcel was sent for chemical examination and not one which was secured from appellant— loth parcel mentioned in chemical report does not show signature of P.W.2-- Recovery was made on 14.2.1986 but parcel was delivered in office of chemical examiner on 16.4.1986 after a delay of one month nd 20 days-Mot only there is no explanation on record for this delay, but case property was never produced in court at any stage—Held: Prosecution has not been able to prove its case bevond all reasonable oubt and appellant is entitled to benefit of doubt-Appeal accepted. [Pp.406&407]A,B,C,D&E Mr. G.M.Soomro, Advocate for Appellant. Mr. Zawar Hussain Jafferi, A.A.G. for State. Date of hearing: 23.4.1992. judgment The appellant Fida Hussain son of Muhammad Ramzan Ansari was tried by the learned Second Additional Sessions Judge. Khairpur who also convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 vim judgment dated 16.9.19S7 and sentenced him to undergo R.I. for twelve months and fine of Rs.5000/- or in default of payment of fine to undergo R.I. for three months more. By this appeal, the appellant has now challenged his said conviction and sentence. The case of the prosecution is that, SHO Muhammad Hashim Memon of PS Tance Masti alongwith his staff was on patrolling duty on 14.2.1986. On the same day it about 4-00 p.m. when he reached near Simnali, he saw the present appellant, who was stopped and searched. From his left leg socks, 5 packets of heroin pov-der were recovered which was secured in the presence of mushir H.C. Murr.taz All and P.C. Ghulam Sarwar under a mashimania prepared by the SHO. The heroin powder was also weighed at the spot. It was VJ grams including the wrappers. The same was also sealed at the spot. Therealicr the accused and the ease property were brought at the police station where the SHO lodged the report. After completing the investigation, the accused was also challaned. He was tried, convicted and sentenced as already mentioned above. At the trial, the prosecution examined PW 1 Muhammad Hashim whose evidence is Ex.4, who also produced the mashimania of recovery Ex.5, F.I.R. Ex.6 and the chemical report as Ex.7. The second witness examined is P\V 2 H.C. MumtaZ Ali who supported the recovery and also corroborated the evidence of P\V 1 Muhammad Hashim. After examining these two witnesses the prosecution closed its side. The statement of the accused under Section 342 Cr.P.C. was recorded as Ex.12, he denied the allegations and claimed to have been falsely implicated due to enmity and claimed that he was innocent. He repeated the same version in his statement on oath Ex.13. The accused however examined DW1 Kazi Fazal Muhammad Ex.14 and DW 2 Miral Ex.15. I have heard Mr. G.M. Soomro learned counsel for the appellant and Mr. Zawar Hussain Jafferi learned AAG for the State. The latter has supported the conviction of the appellant. The learned counsel for the appellant has argued that the two mashirs are police constables and no private witness was taken in this case. He further argued that the weight of heroin was less than 10 grams. Therefore, the Sessions Court had no jurisdiction to try the appellant. He also argued that the case property was never produced in the Court as such it cannot be said in what manner the property was found and whether the property was really in the packets as alleged. I have gone through the evidence on record with the assistance of the learned counsel for the appellant and I find that PW 1 Muhammad Hashim has fully deposed against the appellant. He has stated that he alongwith his staff were on patrol duty when they arrested the appellant near Sim Nali. He also states that on search of appellant 5 packets of heroin powder were recovered from the left leg socks of appelllant which was weighed at the spot and was found to be 12 grams. It was seized under a mashimama in presence of constables Mumtaz Ali and Ghulam Sarwar. The property was sealed at the spot. Similarly PW 2 Mumtaz Ali also narrates the same facts in his deposition and supports the prosecution case by stating that he was with PW 1 while patrolling they had detained the accused and on his personal search 5 packets of heroin were recovered from inside his left socks which was secured at the spot under a mashimama and was also sealed by the SHO at the spot. No doubt both the witnesses have fully implicated the appellant, but there are two circumstances in the case which directly affect the veracity of both the witnesses and render their evidence to be doubtful. The first circumstances is with regard to the sealing of the case property. The mashimama Ex.5 and the evidence of both the witnesses clearly indicate that the property was sealed at the spot. The mashir PW 2 Mumtaz Ali states in his crossexamination that he had also signed the bundle. This will go to show that the 5 packets of heroin were kept together in a paper cloth and made into a parcel which w,as sealed at the spot and the signature of mashir Mumtaz Ali was obtained on it. On perusal of the chemical report Ex.7, it is quite apparent that a different parcel was sent for chemical examination and not the one which was secured from the appellant. The chemical report Ex.7, shows that the parcel which was sent for examination was one sealed white cloth parcel with the name of appellant and F.I.R. No.8/86 written on it containing 5 plastic packets. Obviously this cloth parcel was made subsequently, because the original parcel of the 5 plastic packets sealed at the spot could not contain the F.I.R. number, because the F.I.R. was not lodged at the time of sealing. Furthermore the cloth parcel mentioned in the chemical report does not show that signature of mashir Mumtaz Ali, whereas the mashir Mumtaz Ali claims to have signed the original parcel made at the spot. Therefore, it is quite apparent that the parcel sealed at the spot was certainly different from the parcel which was sent for chemical analysis. Coupled with the above observation, there is another important circumtance. In this regard it may be noted that the recovery was made on 14.2.1986. The S.P. Khairpur gave the permission for test analysis vide his letter dated 26.2.1986, but it was delivered in the office of the chemical examiner on 16.4.1986 by constable Khadim Hussain. as mentioned in the chemical report. This means that S.P. Khairpur had given the permission on 26.2.1986 but it was delivered to the examiner after a delay of one month and 20 days. Now the important questions are, where was the property kept, under whose control was it, was it the same parcel which was secured from the accused or was it a different parcel that was sent to the chemical examiner. In order to remove these doubts, the prosecution was duty bound to produce the case property in Court for the examination of the actual parcel. Unfortunately not only there is no explanation on record for this delay in sending the property to the chemical examiner, but, the case property, that is the parcel concerned was never produced in the Court at any stage, with the result that the appellant was deprived from putting any questions to the witnesses in respect of the parcel concerned. As such, in the circumstances of this case, nonproduction of the parcel in Court during the evidence of the witnesses, casts serious doubts, regarding the recovery itself and also suggests foul play on the part of the investigating agency, regarding the parcel that was sent to the chemical examiner, for. it has already been discussed that the parcel sealed at the spot and the parcel sent to the chemical examiner appear to be different. The cumulative aspect of my above discussion is that, the prosecution has not been able to prove its case beyond all reasonable doubt, therefore, the appellant is entitled lor the benefit of doubt. Consequently, the conviction and sentences of the appellant are set aside, he is acquitted of the charges levelled against him. By a short order dated 23.4.1992, the appeal was allowed. These are the detailed reasons for the same. (MBCj (Approved for reporting) Appellant acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C.( Karachi ) 408 [Sukkur Bench] Present: SHAUKAT HUSSAIN ZUBEDI, J SHAH JEHAN-Applicant versus SPECIAL JUDGE, ANTI-CORRUPTION SUKKUR and others-Respondents Crl. Transfer Application No.20 of 1991, dismissed on 13.5.1992. Criminal Procedure Code, 1898 (V of 1898)-- —S.526-Criminal case-Transfer of-Prayer for-Allegations made in application are not only vague and general in nature, but certain facts and circumstances have been deliberately suppressed by pplicant and his counsel- According to learned counsel, he wanted to clarify some ambiguity which cropped up during cross-examination of a defence witness, which was neither allowed nor his objection was ecorded by trial Court, and on his insistence, learned Trial Judge was infuriated-Only object of applicant and his counsel appears to be not to allow conclusion of trial-Held: Applicant has not approached Court ith clean hands and on this ground alone, he is not entitled to any relief—Held further: Even otherwise, no ground is made out for transfer of case-Application dismissed. [Pp.409,410&411]A,B,C,D&E Mr. Abdur Rahman Bullo, Advocate for Applicant. Mr. Zawar Hussain Jafferi, A.A.G. for Respondent No.l. Date of hearing: 4.5.1992. judgment This transfer application under Section 526 Cr.P.C. is filed on behalf of applicant Shah Jehan S/o Muhammad Umar praying for the transfer of pending case (Special Case No.153/88) from the court of learned Special Judge Anti-Corruption Sukkur to any other Court of competent jurisdiction. The applicant is a Drug Inspector. He has been challaned in case FIR No.26/87 by the Anti-corruption Police. He is facing trial in the court of learned Special Judge Anticorruption, Sukkur for offences under Section 161 PPC read with Section 5(2) of Act II of 1947. All the prosecution witnesses have been examined and the case of the applicant was at defence stage. It is stated that during the cross-examination of one defence witness, namely, Mr. Khan Muhammad Jumani, an ambiguity had arisen and the defence counsel wanted to clarify the same in "Re" which was not allowed. On the insistence of defence counsel to record his objection, it is alleged the learned Judge became infuriated. It is further alleged that the entire case had proceeded in an atmosphere of humiliation and harassment due to serious temperamental differences between the counsel and the trial Judge, as such the trial has not taken place in a free and fair manner due to harsh tone of the learned Judge. It is further alleged that the learned Judge has prejudiced the case by remarking that case will entail in the conviction of the applicant. It is further alleged that on account of adjournment applications moved by the counsel, in which it was alleged that the trial Judge comes late in the Court room after chit chatting with his friends the learned Judge has reservations against the counsel also. It is alleged that on account of this bias, the applicant has apprehension in his mind that he will not get a fair and impartial trial, hence this application. I have heard Mr. Abdur Rahman Bullo Advocate for the applicant and Mr. Zawar Hussain Jafferi learned AAG for the State.Mr. Bullo has argued that the learned trial Judge is prejudicial against him and that he has prejudiced the case of the applicant. He states there is now a genuine apprehension in the mind of the applicant that he will not get a fair trial. In support of his contention he has relied upon PLD 1973 S.C. 327. On the other hand the learned AAG has opposed this application. He states that merely by giving an application of adjournment in which it is pointed out that the Judge comes late cannot create bias of Judge against the applicant. He further states that allegations are vague and no specific instances are quoted, as such, this application has no merits and it ought to be dismissed. It may also be noted, that in view of the allegation contained in the application, comments were called from the trial Judge. The said comments have been submitted and I have also gone through the same. After applying my mind to the facts and circumstances of the case, I find that the allegations made in this application are not only vague and general in nature, A but on the contrary certain facts and circumstances have been deliberately suppressed by the applicant and his counsel, which I shall presently explain. B According to the learned counsel, he wanted to clarify some ambiguity which had cropped up during the cross examination of a defence witness, which the learned Judge neither allowed nor recorded his objection, and on the insistence of the counsel, the learned trial Judge was infuriated. Now if this is true, then, I fail to understand why the deposition of the said defence witness was not placed before this Court, so as to see what was the ambiguity and what clarification was required. Even if such a situation had arisen, then the learned counsel should have made a proper application before the trial Court stating his objection, and then he could have obtained its copy to show this Court that objection was actually made and denied; but that was not done. Before this Court the learned counsel could have filed his personal affidavit to this effect, even that was notdone. The allegations that the trial Judge has become hostile, the whole case has proceeded in an atmosphere of humiliation and harassment and has not taken C place in a free and fair manner, that the learned Judge has prejudiced the case and also asked the counsel to get the case transferred from his Court, all these allegations are not only vague and general in nature, but these are of the type which can be made in every case by every accused. A( this stage 1 would like to explain what facts and circumstances have been deliberately suppressed by the applicant and his counsel, and under what circumstances I he present transfer application has been filed. In this regard it may be noted that regular trial of the applicant's case started in the trial Court in 1988. During the last three years or so, the entire prosecution evidence was recorded without any complaint on the part of the applicant. Thereafter came the defence stage and all the defence witnesses were examined again no complaints. Then the learned- counsel filed an application under Section 540 Cr.P.C. for calling further defence evidence. This application was heard by trial Court and disposed off by an order dated 27.10.1991 rejecting the same. Against that order the applicant preferred Criminal Revision Application No.62/91 before this Court which was also dismissed by an order of this Court dated 4.11.1991. The factum of the filing of application under Section 540 Cr.P.C. and its dismissal, thereafter filing of Revision and its dismissal by this Court all have been deliberately suppressed in this transfer application. The reasons as to why these facts have been suppressed in this transfer application are also very obvious. Because this Court was bound to detect and conclude that uptil the time of hearing of the Revision application, the applicant and his counsel had no cause for complaint against the trial Judge. Moreover the Revision was dismissed by this Court 4.11.1991, the final arguments were to be heard by the trial court on 20.11.1991. So in between these two dates, there was no occasion for the applicant or his counsel to have any cause of complaint. It is therefore quite clear that in order to prevent this Court from detecting these facts and guaging the true picture, the same have ben deliberately suppressed by the applicant and his counsel. The true picture has only come to light through the comments submitted by the trial court. It is also important to note that during the pendency of applicant's Revision Application, the proceedings before the trial court were stayed. When the Revision Application was dismissed on 4.11.1991 the stay was vacated and the trial court had then fixed 20.11.1991 for final arguments. Now, what the applicant did, he filed the present transfer application on 3.11.1991 through his counsel, one day before the Revision was dismissed, and again obtained another stay order, which is still in force. > All the above circumstances clearly indicate that the applicant and his counsel, neither have any apprehension in their minds nor the allegations made by them in the application are true. Their only objective appears to be, not to allow the conclusion of the trial. From the aobve discussion, I am of the considered view that the applicant [ has not approached this Court with clean hands and on this ground alone he is not I entitled for any relief. Even otherwise, on merits also, no ground is made out for JE the transfer of the case. This application therefore has, no merits and the same is accordingly dismissed. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Quetta ) 411 Present: munawar AHMAD MlRZA, CJ STATE, through director general , pakistan coastguards, turbat-- Appellant versus SABRO and another—Respondents Customs Appeal No. 14 of 1991, accepted on 4.1.1992. Appeal against Acquittal- —-Pakistani Currency-Smuggling of-Offence of--Acquittal of respondents under Section 265-K of Cr.P.C.-Challenge to-It was obligatory for trial court to record prosecution evidence to ascertain correct actual posit ion-Action taken by trial court in throttling evidence by basing its conclusions on assumptions not borne from record, has resulted in serious prejudice to prosecution—Held: Without making any rogress subsequent to framing of charge, sou moto action in purported exercise of powers under Section 265-K of Cr.P.C. was unwarranted and apparently arbitrary-Acquittal set aside and case remanded. [P.413&414] A&B PLJ 1988 Lahore 22 and 1989 PCrLJ 1190 distinguished PLD 1969 SC 446 rel. Mr. Muhammad Riaz Ahmad, Standing Counsel for Appellant. Mr. Makhdoom All Kiian, Advocate for Respondents. Date of hearing: 30.12.1991 judgment This appeal is directed against order dated 15.9.1991 whereby respondents were acquitted by learned Special Judge, Customs, Mekran at Turbat in purported exercise of powers under Section 265-K Cr.P.C. and currency notes recovered from launch were released to respondent Muhammad Rahim. 2. Relevant facts briefly stated are that Coast Guard authorities on 21.12.1990 received secret information about smuggling out of Pakistani Currency to Dubai through Launch 'Al-Naseem'. Accordingly patrol party headed by Lt. Col. Ghulam Rasool Shahin kept strict vigilence on the sea routes leading towards Dubai. On 2.12.1990 at about 1300 hours launch 'Al-Naseem' was found moving towards direction of Dubai. Coast Guard authorities approached and signalled it to stop, but it sped away. However after hot persuit of 30 minutes, the launch was forced to Stop about 9 nautical miles, south of Gawader Port with the help of gun­boat. It is the case of prosecution that Lt. Col. Ghulam Rasool Shahin, in presence of Mashirs searched the launch and recovered Pakistani Currency of Rs. 25,55,500/- which was being smuggled out. Notice under Section 171 Customs Act for violating Section 2(s) and 16 Customs Act, punishable under section 156(1) (8) (89) and 175 Customs Act, was served on respondents. F.I.R. was lodged and after necessary investigation on 16.12.1990, Challan against accused Sabro and 6 others was submitted before Special Judge, Customs. However evidence could not be secured against Baloch Khan. There is absolutely nothing on the file which may indicate, that proper proceedings were drawn in this case by trial court. Record reveals that on 2.2.1991, charge was framed against accused Sabro by learned Special Judge, whereas respondent No.2, Muhammad Rahim and other co-accused were absconders. Respondent No.l 'Pleaded Not Guilty' and claimed trial. Strangely enough without procuring attendance of absconding accused, recording any proceedings or taking further steps, in the purported exercise of powers under Section 265-K Cr.P.C learned Special Judge, Customs directed acquittal of respondents besides releasing Currency to respondent Muhammad Rahim by means of order dated 15th September, 1991. Present Appeal was filed under Section 185 (f) of Customs Act.1969 challenging above decision of the trial court. Mr. Muhammad Riaz Ahmad learned Standing Counsel urged that impugned order passed by learned Special Judge, Customs, Turbat was arbitrary, unlawful and suo moto Jurisdiction does not vest in it. He contended that evidence collected during investigation contained sufficient material regarding smuggling out Pakistani Currency, but failure of trial court to provide opportunity for leading evidence was highly unjust and prejudcial to prosecution. It was further argued that trial court had no jurisdiction to direct release of currency specially when no written request in that behalf was made. Mr. Makhdoom Ali Khan learned counsel for respondents emphatically objecting to validity of original proceedings contended that complainant was not competent to initiate proceedings against respondents. Therefore, holding of investigation, seizure of currency or submission of challan lacked authority. Learned counsel submitted that Special Judge had jurisdiction to return case properly, for avoiding multiplicity. However learned counsel felt difficulty in supporting alleged exercise of suo-inoio powers by Special Judge, Customs. Firstly considering objection concerning maintainability of proceedings on the ground that complaint was not filed by authorised officer within the purview of Section 185-A (t) (a) of Customs Act. In this behalf suffice it to observe that officers of Coast Guards in accordance with Section 6 Customs Act, by virtue of Notification No. S.R.O. 30(l)/73 dated 31.1.1973 have been vested with functions of customs officer exerciseable under Section-157 to 167(1) (3) (4) 168, 169 and 171 of said enactment. It is crystal clear that Special Judge is competent to take cognizance in any of the circumstances specified under clause (a) (b) or(c) of Section 185-A(i) ibid. Thus proceedings drawn by Special Judge upon receiving any complaint or information of facts constituting an offence made or communicated by any person or upon his own knowledge can validly take cognizance and draw proceedings against the culprits. Therefore, registration of case on the basis of complaint filed by Lt. Col. Ghulam Rasool Shahin does not suffer from any defect. Even otherwise complainant being Commandant of the Battalion is an authorised officer. Therefore, action of learned Special Judge Customs, in framing charge and commencing proceedings on merits was quite proper and justified. Even if there existed any defect in lodging FIR for commencing the proceedings or investigation conducted by competent officer same would not vitiate the trial once cognizance has been properly taken by the Special Judge. In this view I am fortified by authorities in cases; (i) A.I.R.1955 S.C. 196 and (ii) Muhammad Ashiq Vs. Tlie Martial Law Administrator Zone-C (1980 P.Cr.LJ 97). Thus objection raised by learned counsel has no substance therefore must fail. As regards merits it may be seen that absolutely no proceedings were drawn by the trial court subsequent to framing of charge. Besides, without making any progress subsequent to framing charge, suo-moto action in purported exercise (of) powers under Seciion 265-K was unwarranted and apparently arbitrary. Since allegations made in the complaint and challan prima facie suggest, an attempt for smuggling Pakistani Currency therefore, to ascertain correct factual position it was obligatory for trial court to record prosecution evidence. The action taken by learned Special Judge Customs in throttling the evidence on basing its conclusions on assumptions not borne from record, apart from being unlawful has resulted in serious prejudice to prosecution. From the above discussion I am inclined to observe that acquittal through impugned judgment is repugnant to established procedure regarding trial of cases, and spirit of law. Mr. Makhdoom Ali Khan learned counsel for respondents stressed that on acquittal trial court was competent to pass order for releasing, currency to avoid multiplicity. Reliance was placed on the observations in case (i) Muhammad Sarwar Vs. Federal Government of Pakistan and 3 others (PLJ 1988 Lahore 22) and (ii) Muhammad Tahir and others Vs. Deputy Collectorale (1989 P.Cr.LJ. 1190). With respect it is observed that principle enunciated in aforequoted reports is quite distinguishable. In the first mentioned case PLJ 1988 Lahore 22 Special Judge had incontrovertably declared the gold rennies recovered from the smuggled articles/goods. In the second case of 1989 P.Cr.LJ. 1190 similar circumstances existed. Whereas in the instant case offence relates to smuggling out of Pakistani currency in contravention of Customs Act, 1969. Therefore, in the peculiar circumstances question of adjudication vested in Custom-forums as authoritatively determined by the Hon'ble Supreme Court in case Adam Vs. Collector of Customs, Karachi and another (PLD 1969 S.C. 446). It is quite evident that powers of Special Judge Customs are only restricted to trial of the accused who have committed offence for the violation of Customs Act. However, adjudication of property subject matter of seizure exclusively falls within the domain of Customs authorities as contemplated by Section 179 and 181 of the Customs Act. For the above reasons I am inclined to hold that the impugned judgment regarding acquittal as well as direction for release of Pakistani currency to Muhammad Rahim being unlawful is hereby set aside. Consequently case is remanded to the trial court for recording evidence and deciding the same in accordance with law. Appeal (is) accepted in the above terms. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Quetta ) 414 (DB) Present: AMiRUi. mulk mengai. and IFTIKHAR muhammad chaudhry, JJ KOTAN KHAN-Appellant versus THE STATE-Respondent Criminal Appeal No.78 of 1991, dismissed on 18.1.1992 (approved for reporting ' on 28.6.1992). Arms Ordinance, 1965 (W.P.Ord.XX of 1965)-- —S.13-E-Klashnikov-Recovery of~Conviction for--Challenge to—Recovery of klashnikov from room of appellant cannot be disbclieved-Police had no grudge against appellant and they had not previously visited his house for effecting any recovery, so it was accused who had taken police to his house-­Cumulative effect of total evidence leads to believe that recovery of klashnikov was made from house of accused on his pointation-Accused has not established on' record that premises from where recovery was affected, was also in joint possession of other persons and as such, he had no control over it- -When a special plea is raised by accused, it becomes his duty to establish same by producing evidence-Police is not forbidden from taking officials as witnesses and their credibility cannot be questioned in absence of enmity or malaflde-Held: Nothing has been brought on record to establish any dishonesty or tnalaflde on part of prosecution-Appeal dismissed. [Pp.419,420,421&422]A,B,C,D,E,F&G PLJ 1975 SC 406, PLJ 1987 SC 602 and PLJ 1987 SC 481 rel. Mr. Shakeel Ahmad, Advocate for Appellant. Mr. Salahuddin Mengal, A.A.G. for State Date of hearing: 5.12.1991. judgment Il'tikliar Muhammad Chaudhry, J.--Appellant Kotan Khan son of Sultan Khan has been convicted under Section 13-E of Arms Ordinance, 1965 by Special Court Quetta, constituted under the Suppression of Terrorist Activities Act, vide judgment dated 28th October, 1991 whereby conviction/sentence was recorded against him to suffer five years R.I. and fine of Rs.10,000/- and in default of payment of fine to further undergo six months S.I. 2. Prosecution case is that on 1st April, 1991 on the complaint of one Muhammad Usman son of Haji Malo, a case under Section 324 of Criminal Law (Amendment) Ordinance, 1991 vide FIR No.41 of 1991 was registered at Satellite Town Police Station, Quetta. During investigation of the case accused led police lo recovery of a klashenkov from his house and a separate case vide FIR No.49 of 1991, was registered against him for keeping klashenkov in possession. After completion of investigation, accused was challaned under the aforesaid provisions of law. Trial Court framed charge under Section 13-E of rms Ordinance, 1965 to which accused did not lead guilty and claimed trial. Prosecution produced following witnesses:PW--Ghulam Farid who proved recovery of klashenkov at the pointation of accused bearing No.66-19434445 alongwith five cartridges from beneath the bedding of his residential room. Accordingly inventory memo Ex.P/I-A was prepared of klashenkov i.e. Article P/II and magazine as P/3 with four cartridges Ex.p/4. PW-2 is Ali Madad, in his presence klashenkov was recovered on pointation of accused and he signed recovery memo and recovered articles were also indenlified by him in the Court.PW-3, Bilal Ahmed is second recovery witness, he has also stated that on pointation of accused from his house a klashenkov alongwith four live cartridges was recovered. Witness had also produced sketch of the room P/3-4 from where recovery was effected. 4. Accused was examined under Sections 342 and 340(2) Cr.P.C. in which he pleaded that his opponent Usman got him mplicated in this case. The appellant also produced following witnesscs:-- DW-1 Sardar Muhammad, he stated that when police came to house of accused at 10-00 A.M. nothing was recovered from there and only two lady constables had entered the house at the relevant time. DW-2, Omey stated that in the month of April, 1991 police came there with two lady constables and Kotan was not with them. DW-3 Israil deposed that at 10-00 A.M. when police came to the house of Kotan he was not with them. Two female constables entered the house and nothing was recovered from there. Trial Court-vide impugned judgment convicted and sentenced appellant as stated hereinabove. 5. Mr. Shakeel Ahmed, learned counsel for appellant contended as under:- (a) Lower Court should have kept the trial of the case postponed till the decision of earlier case registered against accused at theame police station vide FIR No.41/1991 because decision of instant case had seriously prejudiced the accused and it is now difficult for him to defend his case properly. (£>) Ex.P/l-A i.e. inventory memo indicates that recovery was affected in case of FIR No.41/91 and nothing has been recovered in this case. (c) Inventory memo is not in conformity with FIR because no inquiry was made by investigating officer from accused with regard to the licence of alleged recovered articles. (d) Evidence produced by prosecution suffers from material contradictions. (e) Accused was in custody of police in pursuance of FIR No.41/91 as such, by no stretch of imagination it can be held that recovery was affected from his possession. • (/) Prosecution has violated provisions of Section 103 Cr.P.C. e.g.: The house from where alleged klashenkov was recovered is jointly owned by accused and other persons therefore, accused had no control over kalashenkov so recovered from the house. (g) In statement under Section 342 Cr.P.C. time was mentioned 1.45 P.M. regarding recovery of klashenkov whereas PWs have stated the time as 10.30 P.M. (/z) Prosecution has failed to prove the case against accused. On the other hand, Mr. Salahuddin Mengal learned Assistant Advocate General, urged as under:— (/) There is no requirement under the law to keep pending the trial of the case registered later on till decision of earlier case. (//) Ex.P/A inventory memo was prepared in FIR No.41/1991 because during investigation of said case, klashenkov was recovered from possession of accused and in the inventory memo number and title of this case was rightly mentioned by investigating officer. (///') There is no inconsistency in inventory memo Ex.P/A and FIR. (/V) No prejudice has been caused to accused due to earlier decision of instant case. (v) Evidence of prosecution does not suffer from contradictions. (v/) During investigation accused pointed out that unlicenced klashenkov with which he fired upon Muhammad Usman, complainant in FIR No.41/1991 and he voluntarily led the police for recovery. (vii) Prosecution has strictly adhered to provisions of Section 103 Cr.P.C. (viii) Accused had failed to prove joint possession of the house from where klashenkov was recovered. (ix) In 342 Cr.P.C. statement time has been wrongly mentioned but it would not be fatal for the case of prosecution. (.v) Prosecution has legitimately proved the case against accused. 7. We have heard learned counsel for parties and with their assistance record of case has also been perused. 8. Under Criminal Procedure Code, no restriction has been imposed to try the accused, simultaneously under different offences. 9. In the present case accused is facing trial under Section 324 of Criminal Law (Amendment) Ordinance, 1991 vide FIR No.41/1991 which is to be decided on the basis of independent evidence produced by prosecution and accused would not be prejudiced in any manner, if the latter case under Section 13-E Arms Ordinance has been decided. 10. The learned counsel for accused had not placed before us any law whereby courts have been barred to proceed against accused at a time in respect of different cases and accusations. 11. Undoubtedly accused was involved in a case under Section 324 of Criminal Law (Amendment) Ordinance, 1991 and during investigation he volunteered to lead police for purpose of affecting recovery of klashenkov which he had kept beneath the bedding of his house, as such, on his pointation police went with him, till that time no separate case was registered against accused nder Sec ion 13-E of Arms Ordinance, as such, when recovery of klashenkov was effected, on the spot inventory was prepared in which number of earlier case was mentioned because this iece of evidence subject to all just exceptions and admissibility would also be produced before the Court in the crime of 324 Criminal Law (Amendment) Ordinance, 1991, thus due to writing crime number of that case, on inventory it cannot be held that nothing was recovered from possession of accused in the instant case. 12. We have gone through Ex.P/l-B. i.e. Marasla, written by Assistant Sub Inspector Police to Incharge Police Station for registration of case, after recovery of klashenkov bearing No.19-434445 on 28.4.1991 as well as statement of witness PW-1 Ghulani Farced in which he has stated the number of klashenkov as "66.190434445", except in writing incorrect number of Klashenkov there is no other inconsistency but it is also reconciliated because in Marasala, figure 60 or 66 has also been shown in a triangular but the fact remains that there is no difference in the actual number, as such the objection of learned counsel is not valid for interfering in the conviction. 13. The statements of witnesses produced by prosecution have also been perused. PW-I deposed that accused during investigation of case FIR No.41 of 1991 under Section 324 of Criminal Law (Amendment) Ordinance, 1991, confessed that Klashenkov with which, he made firing is concealed in his house and can be recovered on this witness alongwilh Madad Shah S.I. and another proceeded to house f accused situated at Kill! Usmanabad where he produced Klashenkov bearing No.66.190434445 lying underneath the beddings with a Magazine containing four live cartridges, which were taken into ossession n presence of witnesses. In cross examination he stated that recovery was affected at 10.30 P.M. and at such odd hours the presence of any person does not arise, he further stated that in the east and west here are houses and in front of the house there is a open ground, he denied the suggestions, that persons were present at the time of recovery and no recovery was affected in their presence, he further clarified hat on the Klashenkov beside the number, there was figure, 56 which was a mark number. A suggestion was put to the witness, that he has not gone to the site and has deposed falsely which was denied by him. In view of above discussion and in the light of evidence available on record, it is manifestly clear that there is no contradiction between inventory i.e. Ex.I-A and FIR (Marasala). 14. Next contention of learned counsel for appellant was that prosecution evidence suffers from material contradictions on the point of recovery of Klashenkov from the residence of ccused. Learned Counsel Mr. Shakccl Ahmed stated that PW-I Ghulam Fareed in his testimony before the Court contended that Klashenkov was produced by accused from underneath the beddings whereas PW-Ali Madad stated that accused led police party to a room of his house and produced Klashenkov No.190434445. The sketch of the house was prepared at the lime of affecting recovery i.e. Ex.P/3-A which indicates that there were three rooms in the house but the witness had not stated that out of which room klashenkov and magazine with live cartridges were recovered, thus according to him the witness had not actually gone to the house of accused and recovery of weapon had been foisted upon him at the instance of Muhammad Usman who is on inimical terms with accused. Learned State counsel while controverting the stand of counsel for appellant stated that trend of cross examination on the statement of above noted witness at least proves presence of police in the house of accused for recovery because it was suggested to witness Ghulam Farced that Muhammad Usman was also present with police party who replied that Muhammad Usman complainant was not accompanying police at the time of recovery. Similarly the suggestion of defence in which it was asked from him that a false case has been concocted as witness had not gone to his house for recovery has been denied. DW-I Sardar Muhammad stated that police came to the house of Kotan (appellant) but nothing was recovered. This witness has also stated that he has not seen Usman while presenting klashcnkov to police for showing recovery against accused. D\V—Omey has also confirmed presence of police at the time of search of house, but he stated that Kotan was not with the police. This version was corroborated by DW-Israil who also stated that Kotan was not accompanying the police at the time of recovery. Learned Assistant Advocate General also stated that contradictions pointed out by learned counsel are not of much importance. We have considered testimony of prosecution as well as defence witnesses. So far recovery of klashenkov from the room of the appellant's home is concerned that cannot be disbelieved, because PW—Ali Madad stated that the accused led police in a room of his house and produced klashenkov but he had not stated that klashenkov was lying beneath the beddings because once the police party had entered in the house, recovery of klashenkov was affected from the room shown as mark 'B' in site plan Ex.P/3-A. It is important to mention here, that police had no knowledge about place of concealing the weapon in the house or any where else because appellant himself led police to his house, so much so the room to which accused had taken police admittedly is situated inside the house as such, whether weapon was found lying beneath the beddings or anywhere else, would not make any material difference and fact remains that klashcnkov was recovered from the house of appellant, and prosecution witnesses were not under obligation to depose that from which room of house recovery was affected. 15. Even otherwise this fact will loose its significance because in cross examination it was not put to any of the witnesses that from which room situated in the house, recovery was affected. It is also not acceptable that accused appellant had not accompanied police because police had no grudge against appellant and they had not previously visited his house for effecting any recovery, it was the accused who had taken police to his house. , The accumulative effect of total evidence, leads to believe that recovery of klashenkov was made by police from the house of accused on his pointation. 16. Alter having discussed above point now we will lake up next contention of learned counsel for appellant i.e. that house does not belong exclusively to accused and there were other occupants as well therefore, accused had no control over the weapon. In this context Mr. Shakeel referred authorities reported in 1983 S.C.M.R. I, 1986 MLD 1043, 1986 P.Cr.LJ. 73, PLD 1965 Lahore 386 and PLD 1967 Peshawar 33. There is no cavil with the proposition that if accused is not found in exclusive possession of a place, he cannot be held responsible for keeping in possession illicit arms and ammunition. Accused had not established on record that premises from where recovery was affected, was also in joint possession of other persons, as such it cannot be held that accused had no control over it.Once accused had raised a special plea, it becomes his duty to establish the same by producing evidence. In this behalf there is no material on record to the effect that besides appellant, any one else was also living in the house. 17. Mr. Shakeel Ahmed, learned counsel for appellant argued that women folk and children of accused were also living in the house. So far record is concerned there is nothing to elieve even this contention. Under these circumstances there is no hesitation in holding that accused had control over klashenkov recovered from his house. 18. Mr. Shakeel Ahmed objected that prosecution had not conducted search strictly in accordance with provisions of Section 103 Cr.P.C. because witnesses of the locality were not asked to attend the recovery proceedings, although civilian witnesses were available and Investigating officer had also not offered an explanation during trial, therefore, possession of klashenkov annot be attributed o accused and he is entitled for acquittal on this sole ground He placed reliance on the following reported cases: (/) PLD 1975 S.C. 657. (h) PLD 1987 S.C. 467. t («7) 1987 S.C.M.R. 1177. ( (;V) 1990 P.Cr.LJ. 84. \ (v) PLD 1987 (?) 3183. \ (vi) PLD 1988 Lahore 547 and (vii) 1988 MLD 38. 19. On the other hand learned A.A.G. argued that PW-Ghulam Fareed in his examination-in-chief, deposed that recovery was affected at about 10.30 P.M. and there was no question of presence of civilian witnesses at the place from where recovery was made, even otherwise no enemity or malafide has been imputed against police witnesses. Evidence of official witnesses, cannot be discarded merely for the reason that ;; they belong to police department. Learned counsel also stated that in view of given circumstances of the case, police had effected recovery of klashenkov in 1992 accordance with law and there is no reason to discard the prosecution evidence. To strengthen his arguments, he placed reliance on PLD 1990 S.C. 1088, P.L.D. 1990 S.C. 1176 and P.L.D. 1990 S.C.2186 ('.')- 20. It may be observed thai in cross examination PW-Ghulam Farced stated that when police reached at the house of accused the persons namely Ismail, Sardar, Abdul Qadir and Salahuddin were not present, and further voluntarily stated that it was 10.30 P.M. so the presence of any person does not arise. Likewise PW-Bilal stated that Israil, Abdul Qadir, Salahuddin and Sardar Muhammad were not present at the spot when the witness with other police officials entered the house of accused Kotan. In statement on oath.accused stated that police had falsely implicated him in the case not due to encmity but it was at the instance of his opponent Usman, this portion of statement makes it clear that no enemity or grudge has been expressed by accused against police witnesses. It would be essential to examine that under what circumstances compliance of provisions of Section 103 Cr.P.C. is not necessary. No doubt when recovery is to be effected from a house or enclosure, vessel, etc. it should be in accordance with provisions of Section 103 Cr.P.C. Therefore, it is to be seen that what are those circumstances under which police can be allowed to take witnesses other than civilians. It has been experienced that due to increase of crimes members of general public try to keep themselves away from the lengthy court proceedings and they also avoid enmities with the accused persons because no security is provided to them and if by efforts of investigating officer any civilian witness agrees to attend recovery, then he has to suffer for a long period because proceedings in courts do consume sufficient period, under such circumstances, it is becoming day by day very difficult to secure attendance of civilian witnesses. Due to these reasons police is not forbidden from taking officials as witnesses and their credibility cannot be questioned unless enmity or malafidc is imputed to such type witnesses. In this context following judgments are highly instructive:— In PLJ 1975 S.C. 406 (Muhammad KJia/i v. Dosl Muhammad and seven others) it was held as under:- "Hovwver that may be, the requirement of Section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore, courts will ordinarily insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court". In PLJ lvS7 S.C. 602 (Safdar Abbas and two others v. Slate), it was held as under:-- "Since there was nothing on the record to show that he had conducted the investigation in a dishonest manner, his testimony alone was sufficient in this respect and reliance should have been placed on him. A police officer against whom there is no allegation of dishonest investigation apparent on the record is as good an attesting witness of a recovery as is any independent attesting witness of the same".In PU 1987 S.C. 481 (Sultan and others v. State), it was held as under:-- "Provisions of Section 103 Cr.P.C. are no doubt, mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary that the investigating officer should have tried in the case to secure the attendance of independent witnesses to attest the recovery of the guns at the pointing of the accused/appellant, and failure to do so would cast doubt on the factum of recovery, although this principle may not be applicable to all the cases where recoveries of incriminating articles are made under a different circumstance". 19. Principles enunciated in above judgments delivered by Honourable Supreme Court of Pakistan indicate as under:— "The compliance of Section 103 Cr.P.C. is not absolute in its nature, therefore, failure in not adhering to the above provisions of law shall not render search illegal unless it is shown by defence that prosecution had conducted investigation with malafide and dishonest intention or the witnesses are on inimical terms with accused and civilian witnesses were available to attend as witnesses, but in order to implicate the accused falsely in commission of offence their attendance has been purposely avoided, in such like case the recovery can be doubted however, if there is no malice or ulterior motive on part of prosecution the statement of official witnesses cannot be discarded labelling the allegation that they belong to particular Agency". 20. In view of the facts in the instant case, nothing has been brought on record to establish any dishonesty or malafide on part of prosecution, so much so, prosecution evidence had made it clear that private witnesses were not available due to the factor of time of search. The defence witnesses produced by appellant also failed to prove that prosecution had withheld the evidence of independent civilian witnesses, who were available at the time of search, therefore, the contention put forth by learned counsel loses its legal value. 21. Result of the above discussion leads us to conclude that appeal has no merits, which accordingly stands dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C( Lahore ) 423 Present: MIAN NAZIRAKHTAR, J SARFRAZ AHMAD and 7 others-Petitioners versus THE STATE-Respondent Criminal Misc. No.2162-B of 1992, decided on 2.8.1992. Pre-urrest Bail-- —-Offence under Sections 295-A, 295-C and 298-C of PPC--Pre-arrest bail-­ Grant of--Prayer for--Cogni/ance of offence under Section 295-A of PPC is not barred in Section 196 of Cr.P.C.-There is no force n contention that Qadianis are only forbidden -to use words specified in Section 298-B and they are at liberty to use all other Shiair-e-Islam and expressions commonly used by M\is\m&--Malaftdes have either been pleaded nor urged during arguments-­ There is considerable force in arguments that followers of Mirza Ghulam Ahmad are non-Muslims and constitute a separate community not forming part of lim n>na~HM: Offence under Section 295-C of PPC being punishable with death or imprisonment for life, falls within prohibition of Section 497 Cr.P.C. and Petitioners No.4, 5 and 6 are not entitled to oncession re-arrest bail. [Pp.426&427]A,B,C&D PLD 1985 FSC 8 and PLD 1992 Lahore 1 rel. Mr. Mubashir Latif Ahmad, Advocate for Petitioners. Mr. \'azir Ahmad Ghazi, A.A.G. for State. Mr. Rashid Murtaza Qureshi, Advocate for Complainant. Date of hearing: 15.7.1992. judgment The petitioners had applied for pre-arrest bail in a case registered against them and a few other persons for offences under Sections 295-A, 295-C and 298-C of the P.P.C. at P.S. City Nankana, District Sheikhupura. They were allowed adinterim pre-arrest bail by my learned brother Rashid Aziz Khan, J. vide his order dated 10.6.1992. 2. During the course of arguments, the learned A.A.G. and the complainant's learned counsel stated in a fair manner that they did not oppose confirmation of bail of the two ladies namely Mrs. Sarfraz Ahmad and Mrs. Balqis Begum as their case was covered by the exception to Section 497 of the Cr.P.C. Hence the interim pre-arrest bail granted to them is confirmed. 3. Mr. Mubashir Latif, learned counsel for the petitioners contended that Sarfraz Ahmad petitioner No.l and Ijaz Ahmad, petitioner No.3, were Muslims and not Qadianis and that they were falsely and maliciously roped in the case. The said petitioners were present in the Court and on Court question firmly stated that they were not Qadianis and were true Muslims following the (allh/Fiqalt ofAhl-e-Hadees and considered followers of Mirza Ghulam Ahmad to be "wrong". They further stated that Mirza Ghulam Ahmad in his claim of prophethood was a "liar" and he as well as his followers belonging to Qadiani and Laliori groups were 'Kafirs' and outside the fold of Islam. During the course of investigation it was verified that Sarfraz Ahmad, petitioner No.l, his wife petitioner No.2 and Ijaz Ahmad, petitioner No.3 were Muslims. Therefore, interim bail granted to Sarfraz Ahmad and Ijaz Ahmad is also confirmed. I may however observe that the police finding that Mrs. Sarfraz Ahmad, petitioner No.2 is not a Qadiani is open to serious doubts because in reply to several Court questions she did not say a single word against Mirza Ghulam Ahmad or his followers. She has been allowed bail primarily on the ground of woman-hood and the further question whether or not she is a Qadiani and whether she has committed any offence is left to be decided by fhe trial Court. 4. So far as Babar Ahmad petitioner No.8 is concerned, his name does not appear on the disputed invitation Cards and there is no material to connect him with the commission of the Offences alleged in the FIR. Hence the interim bail allowed to him is also confirmed. 5. As regards the other petitioners namely Bashir Ahmad, Muhammad Yousaf and Ijaz Ahmad son of Siraj Din, the petitioners' learned counsel contended as under:- (/) In view of the provisions of Section 196 of the Cr.P.C., the FIR (which includes the offence under 295-A of the PPC) lodged by a private person is non existent. (//) The offence under Section 298-C of the PPC does not fall within the prohibition of Section 497 of the Cr.P.C. There being no defiling of the name of the Holy Prophet, the Offence Under Section 295-C was not made out. (Hi) The mere use of the words did not constitute any offence and that Qadianis had the right to use the same. ' (/V) Law merely prohibits the Qadianis to use the words specified in Section 298-B of the PPC and not the other expressions used in the invitation cards. (v) The invitation cards were got published by Sarfraz Ahmad, who was not a Qadiani. He placed on the record a photo copy of the receipt to show He further urged that the cards were got published by Nasir Ahmad and not by Ijaz Ahmad as claimed by the petitioner's learned counsel. He further submitted that the Mirzais were repeatedly committing the offence under the above referred sections and deserved to be severely dealt with. 7. The first argument of the petitioners' learned counsel that the FIR isB ncompetent as a whole because it includes an offence under Section 295-A of the PPC, cognizance whereof is barred without the order of the authorities specified in Section 196 of the Cr.P.C, has no force. The bar contained in Section 196 of the Cr.P.C. is relatable to cognizance of an offence by the Court and not to the power of a private person to report the matter to the police. Even otherwise, the FIR includes offences under Sections 295-C and 298-C of the PPC and the bar regarding cognizance by a Court without the order of the competent authority does not extend to the said offences. 8. There is no force in the contention of the petitioners' learned counsel that Qadianis are only forbidden to use the words specified in Section 298-B of the PPC and that they were at liberty to use all other Shiair-e-Islam and expressions commonly used by Muslims including those printed on the invitation cards. The use of the words specified in Section 298-B of the PPC (by the followers of Mirza Ghulam Ahmad belonging to Qadiani or Lahori groups) would constitute an offence under the said section and the use of the other Shiair-e-Islam by the Qadianis including those printed in the nvitation cards, prima facie, would constitute an offence under Section 298-C of the PPC. A bare reading of the card creates an irresistible impression that the persons who have extended the invitation or ent their names to be published for Takccd-i-Mazeed or further reminder to attend, are Muslims. The mere fact that the offence under Section 298-C of the PPC does not fall within the prohibition of Section 497 of the Cr.P.C. does not entitle petitioners Nq.4, 5 and 6, to claim bail particularly when there is nothing to show that they were sought to be arrested with mala fide intentions and ulterior motives. Mala fides have neither been pleaded nor urged during arguments. 9. There is considerable force in the arguments of the learned A.A.G. and the complainant's learned counsel that the followers of Mirza Ghulam Ahmad belonging to Qadiani or Lahori groups are non-Muslims and constitute a separate community not forming a part of the "Muslim Umma". This view finds full support from the judgments in the cases of Mujeeb-ur-Rehman and Kliurshid Ahmad referred to by the learned A.A.G. The followers of Mirza Ghulam Ahmad belonging to Qadiani or Lahori groups have been declared to be Non-Muslims under Article 260(3)(Z>) of the Constitution of Pakistan. Mirza Ghulam Ahmad had laid a claim that he was Ahmad and Muhammad and that he possessed all the qualities of Hazrat Muhammad f> J jt J^.and all other prophets. He claimed that finality of prophethood of Hazrat Muhammadwas not affected due to his prophethood because he was none else but Hazrat Muhammad f > J J 1 J (in Zilli or Broozi form). The Qadianis who believe in the teachings of Mirza Ghulam Ahmad recite "Darood-o-Salam" for him, which according to Muslims is the entitlement of the Holy Prophet, Hazrat Muhammad ( ^, jf ji J ). By sending "Darood" on Mirza Ghulam Ahmad the Qadianis treat him equal to Hazrat Muhammad ( >", > ji J" ) and thereby relegate the Holy Prophet to the position of Mirza Sahib. This act of the Qadianis, prima facie, amounts to defiling the sacred and exalted name of the Holy Prophet Hazrat Muhammad ( >, j, ji J") which is punishable under Section 29S-C of the PPC. It was vociferously urged by Mr. Nazir Ahmad Ghazi, the learned AA.G. that the "Darood" in the form of (ly^jf^p^f) printed on the disputed invitation cards was meant for Mirza Ghulam Ahmad but the said assertion was not controverted by the petitioners' learned counsel. The offence under Section 295-C of the PPC is punishable with death or imprisonment for life and fine and falls within the prohibition of Section 497 of the Cr.P.C. 10. For the fore-going discussion, Bashir Ahmad, Yousaf and Ijaz Ahmad, petitioners No.4, 5 and 6 respectively are not entitled to the concession of prearrest bail. The interim bail order dated 10.6.1992 qua them is, therefore, recalled D and their bail petition dismissed. The petition in respect of the petitioners No.l, 2, 3, 7 and 8 is allowed and the interim bail order qua them is confirmed. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Cr PLJ 1992 Cr.C.( Lahore ) 427 Present: MIAN NAZIR AKHTAR, J NASIR AHMAD and another-Petitioners versus THE STATE-Respondent Criminal Misc. No.2163-B of 1992, dismissed on 2.8.1992. (i) Bail- -—Offence under Sections 295-A, 295-C and 298-C of PPC-Bail-Grant of- Prayer for-Contention that Darood ( [i/ 1 Jrj J cK

ut' ) printed on invitation cards in question was meant for Mirza Ghulam Ahmad, has not been controverted by petitioners' counsel-Held: There are reasonable grounds for believing that, petitioners have committed an offence under Section 295-C of PPC which falls within prohibitory clause of Section 497 of Cr.P.C.-Held further: Petitioners do not deserve concession of bail-Petition dismissed. [Pp.434&435]D&E (ii) Constitution of Pakistan, 1973- — -Art.26Q(3-B)--Qadianis and other followers of Mirza Ghulam Ahmad— Whether form a separate community of non-Muslims-Question of-Teachings of Mirza Ghulam Ahmad show that he onsidered nly his own followers to be Muslims and declared all other Muslims who did not accept his claim of prophethood, to be kaflrs and non-Muslims—Mirza Ghulam Ahmad did not attend funeral ceremony of is own son who did not believe in him--Ch. Zafarullah Khan, first Foreign Minister of Pakistan, did not participate in funeral prayers of Quaid-e-Azam--Held: There can be no cavil with proposition that ollowers of Mirza Ghulam Ahmad belong to a separate community and are otherwise non-Muslims in true religious sense. [P.431JC (iii) First Information Report- —Offence under Sections 295-A, 295-C and 298-C of PPC-F.I.R. of-Whether F.I.R. is competent—Question of—Contention that F.I.R. is incompetent as a whole because it includes an offence under Section 95-A of PPC, cognizance whereof is barred under Section 196 Cr.P.C.—F.I.R. includes other offences under Sections 295-C and 298-C as well which require no order from any official authority in matter of aking cognizance by Court—Held: Contention has no force because even if competent authority does not allow Court to take cognizance of offence under Section 295-A, Court would be competent to take cognizance of other offences alone. [P.430]A (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- — S.298-C-Qadianis or other followers of Mirza Ghulam Ahmad~Use of expressions and Shiair-e-Islam by-Offence of~No doubt, under Section 298-B of PPC, some specific expressions cannot be used by adianis or other followers of Mirza Ghulam Ahmad—Held: Express prohibition qua use of said expressions does not give licence to Qadianis to use other expressions or Shiaii-e-Islain commonly used by uslims because by so doing, they would be posing themselves as Muslims which is forbidden by Law. [Pp.430&431]B Mr.Mubashir Latif Ahmad, Advocate for Petitioners. Mr.Nazir Ahmad Gliazi, A.A.G. for Stale. Mr.Rashid Mwlaza Qureshi, Advocate for Complainant. Date of hearing: 15.7.1992. judgment The .petitioners seek bail in a case registered against them and a few other persons for offences under Section 295-A, 295-C and 298-C of the PPC at P.S. Nankana Sahib, District Sheikhupura. 2.' According to the allegations made in the F.I.R., Nasir Ahmad, petitioner No.l is a Qadiyani and often propagates Qadiyani religion. In this connection a criminal case stands registered against him already. In the present case, invitation cards for marriage ceremony of the daughter of Nasir Ahmad petitioner were got printed and distributed by the accused persons. The cards embody expressions which are used by Muslims. Thus by publishig the invitation cards containing Shiair-e-Islam the petitioners and their co-accused have posed themselves to be Muslims in violation of the provision of Section 298-C of the PPC. 3. The learned counsel for the petitioflers has raised the following points to claim bail:-- 1. The F.I.R. is incompetent as it includes the offence under Section 295-A of the PPC cognizance whereof is barred in the absence of an order under the authority of the Central or Provincial Government or from an officer empowered in this behalf by either of the two Governments as provided under Section 1% of the Cr.P.C. 2. The offence under Section 298-C of the Cr.P.C. does not fall within^the prohibition contained -under Section 497 of the Cr.P.C. There being no defiling of the sacred name of the Holy Prophet 'Muhammad' ( >, ^ jpi J- ), the offence under Section 295-C of the PPC was not made out. 3. The mere use of words did not constitute any offence and that the Qadiyanis had the right to use the same. 4. Law merely prohibits Qadiyanis to use the words specified in Section 298- B of the PPC and not the other expressions used in the invitation cards. 5. Invitation cards were got published by Sarfraz Ahmad, co-accused who was not Qadiyani. 4. On the other hand, Mr. Nazir Ahmad Ghazi, the learned AAG strenuously opposed the prayer for bail and urged that Mirza Ghulam Ahmad and his followers belonging to Qadiayani or.Lahori groups are Non Muslims and constitute a separate community and were not entitled to pose themselves as Muslims in any manner. In this connection he referred to several extracts from the following books/Pamphlets of Mirza Sahib:-- 1. Haqeeqat-ul-Vahi, 2. Roohani Khazain Volume XVIII, (a compilation of Mirza Sahib's writings) 3. Tohfah Golarvia. 4. Taryaq-ul-Qalub, 5. Zamcema Anjaam-e-Athum, 6. Aik Ghalti Ka Azalah, 7. Albushra, 8. Tazkira, 9. Dafi-ul-Bala, 10. Durr-e-Sameen, 11. Kashti-c-Nooh, 12. Tableegh-i-Risalat, 13. Nazool-e-Maseeh. He also referred to some passages from the book 'Kalama-lul-Fasal' written by Sabibzadan Mirza Bashir Ahmad to urge that the Qadiyanis treat all other Muslims who do not accept Mirza Ghulam Ahmad to be the promised Maseeh or Prophet, as Kafirs and Non-Muslims. He placed reliance on the case ofMujceb-ur- Rehman and others vs. Federal Government of Pakistan (1985 FSC. 8) Malik Jehangir M. Joia vs. The Slate (PLD 1987 Lahore 458) and Kliursliid Ahmad vs. The Government of Punjab (PLD 1992 Lahore 1) to urge that followers of Mirza Ghulam Ahmad belonging to Qadiani or Lahori groups are Non-Muslims and by virtue of provisions of section 298-C of the PPC, are not entitled to pose themselves as Muslims directly or indirectly. He urged that Shiair-e-Mam embodied in the invitation cards give an impression that the persons who have extended the invitation or lent their names for Takeed-e-Mazeed (further reminder to attend) are Muslims. Moreover, the Qadianis send Darood on Mirza Ghulam Ahmad treating him equal or even superior to Hazrat Muhammad (ft J> Jfl J") (<~0" (J" Jf'l jyJ ) and in this way, defile the sacred name of the Holy Prophet ( f .• J« Jfljf) and commit the offence u/s 295-C of the PPC. Mr. Rashid Murta/a Qureshi, learned counsel for the complainant adopted the arguments of ihe learned AAG and added that the petitioners had committed the offences mentioned in the F.I.R. and deserved maximum punishment under the law. He pointed out that petitioner No. 1 was a habitual offender against whom another criminal case stood registered. He submitted that the petitioners had falsely posed themselves as Muslims and sent the invitation cards to several Muslims as well and thus injured their feelings. He controverted the assertion of the petitioners' learned counsel that the cards were got printed by a Muslim named Sarfraz Ahmad and has placed on the record a copy of the affidavit of Sagheer Ahmad Sheerazi, proprietor of Sheerazi Printing Point Jaranwala in which he deposed that the cards were got printed by Nasir Ahmad, petitioner No. 1. 5. The first contention raised by the petitioner' learned counsel that the F.I.R is incompetent as a whole merely because it includes the offence u/s 295-A of the PPC. cognizance whereof is barred in the absence of an order by the Central or Provincial Government or an officer authorised by cither of the two, has no substance. The F.I.R includes other offences u/s 295-C and 298-C of the PPC as well which require no order from any official authority in the matter of taking of cognizance by the court. Moreover, the stage of taking cognizance of the offence by the court has not yet reached so as to attract he provisions of section 196 of the Cr.P.C. The police can conduct investigation into the offences mentioned in the F.I.R and submit a challan in the court of competent jurisdiction. If the order of the competent authority allowing the court to take cognizance of the offence u/s 295-A of the PPC is not received, then the court would be competent to take cognizance of other offences alone. 6. A bare reading of the invitation cards, prima-facie, gives an impression that these have been got published and sent by Muslims. No doubt, u/s 298-B of ihe PPC, some specific expressions like Ainir-iil-Momineen, KSwlipha-tu-Mominecn, Kliaiiphatnl-Muslimeeii, Suhabi or Ahail-e-Balt cannot be used by the Qadunns or other followers of Mirza Ghuiam Ahmad. However, the express I prohibition qua use of the said expressions does not give a licence to the j Quadiunis to use other expressions or Shiair-e-Isiam commonly used by Muslims because by so doing they would be posing themselves as Muslims which is | forbidden by the law. 7. The argument raised by the learned AAG and the complainant's learned counsel that Mir/.a Ghuiam Ahmad and his followers are Non-Muslims and belong to a separate community not forming part of the Muslim Ummah embodies nothing but the whole truth. The teachings of Mirza Ghuiam Ahmad show that he considered only his own followers to be Muslims and declared ail other Muslims who did not accept his claim of prophethood to be Kafirs and Non- Muslims. In Kalmat-til-Fasal, Mirza Bashir Ahmad had made detailed discussion in Chapters 2, 3 & 6 on the basis of teachings of Mirza Sahib to show hat all those ho did not believe in the claims and teachings of Mirza Ghuiam Ahmad were Kafirs and Non-Muslims and that the Qadianis/Ahmadis should not attend their marriage or death ceremonies. Mirza Ghuiam Ahmad did not attend the funeral ceremony of his own son FazaJ Ahmad who did not believe in him. Ch. Zafar-Uliah Khan the first Foreign Minister of Pakistan did not participate in the funeral prayer;, of Hazrat Qaid-i-Azam, the founder of Pakistan . Thus there can be no ca\il with the proposition that followers of Mirza Ghuiam Ahmad belong to a separate community and are otherwise Non-Muslims in the true eligious sense. They have been so declared by virtue of the provisions of Sub Article 3-B of Article 260 of the Constitution of Pakistan. 8. Mr. Na/ir Ahmad Ghazi, the learned AAG has referred to a large number of books, pamphlets and writings of Mirza Ghuiam Ahmad to show that he svas "planted' by the British Imperialism, He referred to the application of Mirza Sahib (sent to the Lieutenant Governor of Punjab) in which he described himself as a 'j> ^if of the British Government (Tabieegh-i-Risalat Vol. VII, page 88). He contended that the basic object of teachings of Mirza Sahib was to persuade Muslims of the Sub-continent to bow their heads in complete obedience to the British Government, to consider obedience to the Brilish Government as a part of Islam, to treat Jehad as Haram in future, and to break the Muslims' bond of love for Hazrat Muhammad ( ft ^ & J) through^Uy/} j _J^{s,e. sharing of prophethood with Hazrat Muhammad ( ^, j, j\ J). He has also urged that the teachings and beliefs of Mirza Ghuiam Ahmad relating to Alimghty Allah, the Hol> Prophet and finality of his prophethood, the Holy Quran, the Kalima Tayyaba, the traditions of the Holy Prophet, the concept of Eiman, Haj, Jehad, respect for the earlier Prophets including Christ, respect for Ahl-e-Bait and the Holy places of Makka and Madeena are diametrically opposed to those of Muslims throughout the world. The above arguments have considerable weight but since 1 am dealing with a bai! matter, I need not enter into an elaborate discussion on the said points. However, I may briefly rSfer to some of the beliefs and teachings of Mirza Ghulam Ahmad for the limited purpose of disposal of this bail petition and to see whether the Darood printed on the disputed invitation cards is meant for Mirza Ghulam Ahmad or not and whether it can directly or indirectly have the effect of defiling the sacred name of Hazrat Muhamma 9. According to Muslims, Darood-o-Salam is the entitlement of the Holy Prophet Hazrat Muhammad ( f> £ & J) by virtue of the following verse of the Holy Quran:-- Darood-o-Sa!am is the highest act of virtue which fosters the Muslims' bond of love and respect for the Holy Prophet (f> £ i' (J). The question arises whether Mirza Ghulam Ahmad ever claimed that he was a Nabi/Prophet and deserved Darood (j>U) like the Holy Prophet? 10. Muslims throughout the world uphold the cherished belief of absolute and unqualified finality of prophethood of Hazrat Muhammad (^ ^ ji J). They firmly and contemptuously reject the idea of arrival of any new Prophet after Hazrat Muhammad ( f> -^ -' J ). According to the Holy Quran the Prophet Hazrat Muhammad ( ft J« j» J) is "^rj?' (V" (last of the prophets) who himself declared in unambiguous words that there could be no Prophet after him. However, Mirza Sahib claimed to be a Prophet and advanced the idea that Hazrat Muhammad ft J< J>< J" was not the final seal on ophethood but was the holder of seal for approving Prophets in future (Haqeeqat-ul-Vahi pages 27-28). He advanced the novel idea of second appearance ( y'lf ci»! ) of Ha/rat Muhammad ( ft ^ j> J 1 ) and claimed that in him Hazrat Muhammad ( f> • J> J^)had again appeared in the world in Bruzi form and added that in his first appearance in Arabia he was like " J^ " (moon of the first night) and that in is second appearance through him (Mirza Sahib) he was like " J'lT jj. " (full moon). In this way, lie not only claimed equality with but superiority over the Holy Prophet (f, ^ ji tf, ( J/J </ j\ -,f> )• . 11. Following the teachings of his father, Mirza Bashir-ud-Din Mehmood declared that any person can progress and achieve the highest status and can even excel Hazrat Muhammad {'>£&&', (Alfazal 7th July, 1972), ( Jj J &\ \f>). 12. It is the firm belief of Muslims that after Allah, the highest position in the universe is enjoyed by Hazrat Muhammad ( ft ^ J 1 J) and that no Muslim can imagine to be equal to him. What to speak of the Holy Prophet, no Muslim can claim to be equal to a companion ( JU ) of the Holy Prophet. However, Mirza Sahib has ventured to claim complete equality and identity with Hazrat Muhammad ( fi •? j> J). He asserted (in Khutba Ilhamia) that any person who ifferentiated between him and Mustafa (i.e. Hazrat Muhammad, ( f > J? J 1 ^ ) neither saw nor recognized him (Mirza Sahib) Jlj </ jij j/ . He claimed that he got Whatever the worth or value of the argument qua the comparative status of Hazrat Muhammad if, J ji J") and Hazrat Eisa/Christ ( P^i) one thing is clear that Mirza Sahib made highly disparaging remarks about the burial place of the Holy Prophet which a Muslini shudders to imagine. Mirza Sahib claimed that he was superior to Hazrat Imam Hasan and Imam Hussain (fiH ,J ) and slighted them in his books Daft-ui-Bala, Nazool-ul-Masech and Dur-e-Samin (Some relevant extracts are reproduced in Appendix-A, attached to the order). The traditions of the Holy Prophet Hazrat Muhammad (f~i J 1 j" ) embody profound love tor Hazrat Imam Hassan and Imam Hussain but Mirza Ghulam Ahmad (who proclaimed himself to be 'Muhammad') has shown contempt and disrespect for 13. After expressing the above referred views which shock the minds and injure the feelings of Muslims, Mirza Sahib has claimed that he deserved Daroodo-Salam. According to him Allah sends Darood on him. The book Tazakirah containing revelations of Mirza Ghulam Ahmad contains following revelation at page 777:-- In his book Arbaeen No. 2 Mirza Ghulam Ahmad said as under:— Again the book Haqeeqat-ul-Vahi (by Mirza Ghulam Ahmad) contains the following revelation in Chapter 4 page 75: The same revelation is also found at pages 242 and 631-32 of the book Tazkirafa. Meaning thereby hat Ashaab-i-Suffa (persons sitting on the platform) recite Darood for Mirza Ghulam Ahmad. Thus it is evident that the Qadianis recite Darood-o-Salam for Mirza Ghulam Ahmad and thereby equate him with HazratMuhammad ( f, ^ j< J). This, prima fade, amounts to defiling the sacred and exalted name of the Holy Prophet Hazrat Muhammad r -^ •' J) because in this manner his position is lowered lo that of Mirza Ghulam Ahmad who , on his own showing was, ui 1 •» J/of the British Government, who considered faithfulness and obedience to the British Government as a part of Islam, declared 'Jehad' to be Haram who slighted Imam Hussain (jxV) and who declared all Muslims (who did not believe in him) to be Kafirs. During the course of arguments it was firmly asserted by the learned A.A.G that the Darood "(L/> Jr-v J" iK printed on the invitation cards in question was meant for Mirza Gliulam Ahmad but this assertion was not controverted by the petitioners' learned counsel. Hence, there are reasonable grounds for believing that the petitioners have committed an offence u/s 295-C of the PPC which falls within the prohibitory clause of section 497 of the Cr.P.C. 14. For the foregoing discussion, the petitioners do not deserve the concession of bail. Resultantly, their bail petition is dismissed. (MBC) (Approved for reporting) Bail refused.

PLJ 1992 Cr PLJ 1992 Cr.C. (Karachi) 452 [Sukkur Bench] Present: shaukat hussain zubedi, J GHULAM ALI--Appellant versus THE STATE-Respondent Criminal Appeal No. 24 of 1988, accepted on 17.5.1992. Criminal Trial— -—Murder-Offence of--Conviction for~Challehge to-Only inference that can be drawn is that witnesses were not aware about identity of assailants-­ Complainant made efforts to shift place of occurrence from one boat to another boat and finally to ground—Neither any blood was found at place of occurrence nor clothes of deceased were secured-Knife has not been sent to Chemical Examiner-Same set of witnesses has been disbelieved by trial court in respect of acquitted accused and no independent corroborative evidence is available—Medical officer who initially examined injuries of deceased, has not been examined-Investigation officer was also not been examined, so arrest and recovery from accused, does not stand proved-Held: Prosecution has not been able to prove, case against appellant beyond all reasonable doubt and there is no satisfactory base to uphold his conviction-Appeal accepted. [Pp.455,456&457]A,B,C,D,E&F Mr. Habibitllah Shaikh, Advocate for Appellant. Mr. Abdul Sattar Chohan, Advocate for State. Date of hearing: 7.5.1992. judgment The appellant Ghulam Ali son of Rahim Bux was tried by the learned second Additional Sessions Judge, Sukkur, who by his judgment dated 9th March, 1988 acquitted co-accused Muhamamd Nawaz s/o Gamoon a'nd Rchmani son of Gamoon, but convicted the appellant under Section 302 PPC, and sentenced him to imprisonment for life and line of Rs. 10,000/-, in default of payment of fine, to further undergo R.I. for 6 months more. In addition, the appellant was also directed to pay compensation of Rs. 10,000/- to the heirs of the deceased u/s 544- A, Cr.P.C. The appellant has preferred this appeal, challenging his said conviction and sentences.The incident took place on 12.1.1982 at about 10.45 PM in the boat of Allah Bux, at Kacho Bunder, Bunder Road at a distance of \ K.M. from police station 'C' Section. Sukkur. The F.I.R was lodged by P.W. 1 Rahim Bux, uncle of deceased Ghulam Sarwar, on the same day at 11.15 P.M. which was recorded by H.C. Allah Bux. The facts of the case are that, the complainant Rahim Bux and his nephew deceased Ghulam Sarwar were residing together. Accused Ghulam AH is brotherin-law of the complainant. About 3/4 years back, Ghulam Ali had suspected deceased Ghulam Sarwar to be on illicit terms with his sister Mst. Zarina on account of which, he was annoyed. In this regard, the nekmards brought about a compromise between the parties. On the day of incident at about 10.45 P.M. Ghulam Ali alongwith co-accused Nawaz and Rehmani came to the boat of the complainant. At that time complainant, deceased Ghulam Sarwar and Allah Bux were sitting in the boat. The complainant identified all the three accused on the bulb light which was outside the boat. Accused Ghulam Ali told deceased (that) he was their KARO and therefore he will not be spared. So saying, Ghuiam Ali took out a knife from the fold of shalwar and caused blows to the deceased Ghulam Sarwar, who got injuries on his right hand palm and back. Accused Nawaz and Rehmani gave fist and kick blows. On the cries of the complainant P.Ws Ghulam Hyder, Ghulam Rasool and others came running. The accused persons then went away. The complainant then saw Ghulam Sarwar had injuries, he was bleeding and was unconscious. Thereafter, the complainant took the injured to police station, where he lodged the report. The FIR was registered by H.C. Allah Bux, at P.S. 'C, Section, he forwarded the report to ASI Riaz Ahmed for investigation. The said ASI visited the place of wardci, inspected the same and prepared mashimama Ex. 15. On the same day, he also arrested the accused Ghulam.Ali and also secured a knife which was prod-cad by accused. The samp was under mashimama Ex. 16, and Ex. 17, respectively. Finally the challan was submitted in the Court against all the three accused. At the trial, the prosecution has examined the following witnesses:-- P.W. 1 Rahim Bux he is complainant and eye witness. P.W. 2 Allah Bux he is second eye witness. P.W. 3 Ghulam Hyder he is third eye witness. P.W. 4 Muhammad Hussain he is mashir of wardat, arrest of accused and recovery of knife. P.W. 5 Dr. Waqar Hussain he conducted post-mortem. P.W. 6 Mir Khan Tapedar, who prepared sketch of wardat. P.W. 7 Ghulam Hyder s/o Khuda Mashir inspection of dead-body. Bux P.W. 8 H.C Mchar Ali Process server. At the conclusion of trial, the statements of the accused were recorded under Section 342 Cr.P.C. The statement of accused Ghulam Ali is Ex. 33..Statement of accused Muhamamd Nawaz is Ex. 34 and that of accused Rchmani is Ex. 35. All the accused denied the prosecution allegations and claimed to be innocent. Accused Ghulam Ali wished to examine 2 defence witnesses namely D.W. Rahim Bux and DW Allah Bux. The other accused did not wish to examine any defence witness. At the conclusion of the trial, the trial Court acquitted accused Muhammad Nawaz and Rehmani, but convicted and sentenced accused Ghulam Ali as already meniioned herein above. 1 have heard Mr. Habibullah Shaikh, learned counsel for the accused/appellant, and Mr. Abdul Sattar Chohan, Advocate for AAG for State. The latter has supported the judgment of the trial Court. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that the, eye witnesses Rahim Bux, Allah Bux and Ghulam Hyder are closely related to the deceased and their evidence has been disbelieved to the extent of co-accused Muhammmad Nawaz and Rehmani, who have been since acquitted; if same witnesses are to be relied against the appellant, then material corroboration is required which is not available in this case; that no Medical Officer, who first examined the injured as well as l.O. ASI Riaz Ahmed have not been examined causing material prejudice to the appellant's case; that arrest of the appellant and so also recovery is not proved by the prosecution; at the place of wardat there was no light near about so as to identify the assailant and there are material contradictions regarding the actual place of wardat. 1 have anxiously attended to the arguments of the learned counsel for the parties, and I have also reviewed the entire evidence that has been produced by the prosecution, the statements of (he appellant and the acquitted accused recorded under section 342 Cr.P.C, and the circumstances appearing in the case, with care, 1 am of the view (hat the arguments advanced by the learned counsel is? the appellant have a lot of force and therefore I am inclined to agree with him for I he reasons which I shall presently discuss. The incident had taken place at about 10.45 in the night at the bank of River Indus, where the boat-people reside in their boats. There is no electric light immediately near the boats of complainant and Ghulam Rasool, but, there is a public light which is situated at a distance of about 27 feet away from the place of warden. According to column 4 of the FIR, place is shewn to be "boat of Allah Bux". In the body of the FIR, ii is said that complainant, deceased Ghulam Sarwar and P.W. Allah Bux were sitting in the "boat of Rahim Bux". In his deposition the complainant has stated that he, alongwith deceased Ghulam Sarwar, P.W. Allah Bux and Rahim Bux were silling in the boat when the accused came in the boat and appellant caused injuries to Ghulam Rasool in the boat. This has been confirmed in the cross-examination of the complainant as under:-- The accused persons gave blows to the deceased on boat and thereafter he fell down". The complainant had shown the place of wardat to the police and in the memo of wardat Ex. 15, the place of wardat is shown to be, below the boat of Ghulam Rasool at "pacca land" while the boat of complainant is shown to be about 9 paces away from the place of wardat. All this will go to show that at the lime of lodging the FIR the place of wardat was shown to be the boat of Allah Buxh, then in the body of FIR, the complainant shows that they were sitting in the boat of some other Rahim Bux. While deposing in Court the complainant was carefull in not saying in whose boat they were sitting. Moreover according to complainant injuries were caused to the deceased in the boat. The complainant is contradicted by P.W. 2 Allah Bux, who says they were sitting in the boat of the complainant, but accused caused injuries to the deceased on the ground. The third witness P.W. 3 Ghulam Hyder is not an eye-witness on his own showing. According to him he came on the cries of deceased when injuries had already been caused and he was informed about the facts by the complainant. But complainant is silent and does not say that facts were narrated to Ghulam Hyder. At this stage it may be noted that P.W. 2 Allah Bux is nephew of complainant and maternal uncle of P.W. 3 Ghulam Hyder, as such, they are closely related to each other and the deceased. The manner in which the report is lodged is also casting suspicion on the conduct of ihe witnesses. According to the complainant and the witnesses Allah Bux and Ghulam Hyder, it is said that the injured alongwith all the witnesses proceeded to the police station immediately alter the incident, where H.C. Allah Bux prepared memo of injuries of deceased Ghulam Sarwar, then FIR was registered at 11.15 PM and finally letter was given for removing the deceased to the hospital for examination and treatment as he was alive at that time. As such the\ will reach the hospital after 11.50 PM and not before that time," because FIR was registered at 11.50 PM. Surprisingly the injured is shown to have been attended at the hospital at 11.30 PM on the same day. This only means that the complainant parly had gone to the police station obtained the letter for the treatment of injured Ghulam Sarwar but did not lodge the report. In this regard, the defence has made suggestion to the witnesses in the cross-examination, that FIR was lodged alter the police was shown the wardat and the position prevailing ai that lime. The only inference which can be drawn is that, the witnesses were not aware about the indentity of the assailants. This will also explain why the complainant has made efforts to shift the place of wardat from one boat to another and finally on to the ground. It is also surprising that neither any blood was i.'und at the place of wardal, nor the clothes of the deceased were secured.The knife alleged to have been recovered from the appellant has also not been sent to the chemical examiner. According to the tapedar, the light-pole at the place of wardat is situated at a distance of 27 feet from the place of wardat. It is also an admitted position that the same present set of witnesses have been disbelieved by (he trial Court so far as co-accused Muhammad Nawaz and Rehmani are concerned, therefore, if the same are to be used against the appellant then they can be so used. provided the evidence of the witnesses is corroborated from some independent source, which unfortunately is not available in this case. There is another material lacuna in this case. The medical officer who had initially examined the injuries of the deceased has not been examined. In this regard, the APP had moved an application before the trial Court to summon the said doctor, which was granted and an effort was also made to trace out the said doctor, but surprisingly, the said doctor's name could not be traced as stated by P,W. 5 Dr. Waqar Hussain, who had conducted the post-mortem examination. The examination of the first doctor was very material as the record shows, that the injured had regained consciousness, the medico legal certificate would have indicated at what lime the injured was brought to the hospital and by whom. But the prosecution had failed to either examine that doctor or to bring the medical certificate on record. Another most important circumstance is the non-examination of Investigating Officer ASI Riaz Ahmed and H.C. Allah Bux, who recorded the FIR. It is surprising to note that P.C. Mehar Ali (P.W. 8) has been examined by the Court as process server, who was entrusted the process of I.O. ASI Riaz Ahmed. This witness states that inspite of his best efforts, he has not been able to C find the present posting of ASI Riaz Ahmed therefore, he could not be served. The record shows that many times process was issued through SSP Larkana and Khairpur, but his whereabouts could not be known. This is a strange state of affairs, the police department is not in a position to know the present posting of an ASI, with the result, the prosecution side has been closed by the Court. Be that as it may, the fact remains that in this case the I.O. has not been examined. As such the arrest and recovery from accused has not been proved in this case, because, even the masliir P.W. 4 Muhammad Hussain has not supported the arrest of accused and the recovery of knife while second mashir has been given up. To my mind, the appellant is materially prejudiced due to non examination of the I.O,, as material clarification could have been obtained through him regarding D the place of wardat and the surrounding circumstances. So much so, that even HC Allah Bux who had registered the FIR has also not been examined without any reason. Had this witness been examined it would have been known when the complainant actually came to the police station, and, when did he issue the letter for the treatment of injured and above all when he had examined the injuries of deceased. All the above circumstances when taken together clearly go to show that the prosecution has not been able to prove the case against the appellant beyond all reasonable doubt. Implicit eliance cannot be placed on the eye-witnesses, as they are closely related to each other and the deceased, and furthermore, they have already been disbelieved so far as 2-co-accused are concerned. Their vidence can be relied upon against the appellant, only if their evidence is corroborated on material particulars through some independent source, which is not available in the present case The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant. Consequently, the appeal is allowed, the conviction and sentence of the appellant are set aside. Appellant is in custody, he is to be released forthwith if not required in any other case. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1992 Cr PLJ 1992 Cr.C. (Karachi) 457 [Sukkur Bench] Present: SHAUKAT HUSSAIN ZUBEDI, J MUHAMMAD PANNAH and another-Appellants versus THE STATE-Respondent Criminal Appeal No.88 of 1988, accepted on 1.6.1992 Pakistan Penal Code, 1860 (XLV of!860)- —-S.161 read with Prevention of Corruption Act, 1947, Section 5(2)-Illegal gratification-Acceptance of--Conviction for-Challenge to--It is an admitted position that appellant No.l neither received tainted money nor was he present at time of trap-Appellant No.l had arrested Hub AH, P.W. in a Hemp recovery case wherein he was convicted—Witnesses who are ail closely related inter-se, obviously have reason to depose against appellant No.l, as such their evidence cannot be relied upon without independent corroboration-Witnesses not knowing who had made payment of first instalment, story of first instalment is false—In cross-examination, Mashir admitted that tainted money was passed on by complainant to appellant No.2 on account of lands and he being relative of complainant, was obviously tricked by complainant in accepting that amount-Held: All circumstances clearly go to show that there is strong doubt in prosecution case-Appeal accepted. [Pp.461&462]A,B,C,D&E Mr. Samhdlah Qnreshi, Advocate for Appellants. Mr. Mushiaqite Ahmed Ameer Mahar, Advocate for State. Date of hearing: 19.4.1992. judgment Appellants Muhammad Pannah son of Rab Dino and Muhammad Panjal son of Haji Muhammad Bux were tried by the learned Special Judge, Anti-corruption, Sukkur, who vide his judgment dated 25.9.1988 convicted the appellant Muhammad Panah under Section 161/34 PPC r/w Section 5(2) of Act-II of 1947. Appellant Muhammad Panjal was convicted under Section 161/162/34 PPC. Both of them were sentenced to R.I. for one year each or in default to undergo R.I. for three months more. The appellants have challenged their conviction and sentence through this appeal. The brief facts of the case are that on 22.3.1986, the accused Muhammad Panah visited Huli Bhatti village taluka Gambat and took into custody Suhbat, Ghullam Ali, Allah Dad and Hub Ali and brought them to their office. Complainant Ali Bux contacted accused Haji Panjal for the release of the accused. It is alleged that Haji Muhammad Panjal then contacted the accused Muhammad Panah and it is said that accused Muhammad Panah had disclosed that accused Hub Ali will be challaned while other accused will be released on payment of Rs.4000/- as bribe. It is alleged that part payment of Rs. 1000/- was made and the balance amount of Rs. 3000/- was to be paid after a week's time. It is further alleged that on 28.3.1986, accused Muhammad Panah again visited the village of the complainant for the collection of the balance amount. He advised the complainant to make payment on the following day in the premises of Sessions Court, Khairpur. The complainant then reported the matter to Mr. Noor Muhammad Solangi, Circle Officer, Anti-corruption Establishment, Khairpur where the FIR was registered as Ex.3/A. After the registration of the FIR, a trap was arranged, which was to be supervised by Mr. Badaruddin Shaikh, Assistant Mukhtarkar and 2nd Class Magistrate, Khairpur. Accordingly the trap party proceeded to the appointed place and lime. It is alleged that in presence of witness Kehar, the tainted amount of Rs. 10(M)/- was passed to accused Muhammad Panjal, who was arrested after the payment was made to him while accused Muhammad Panah could not be arrested. After completion of the investigation, both the appellants were challaned and convicted by the trial Court as already mentioned hereinabove. At the trial, the prosecution examined P.W.I Ali Bux, who is

mplainant, P.W.2 Suhbat, P.W.3 Ghulam Ali, P.W.4 Kehar. who is the mashir in this case, P.W.5 Hub Ali, P.W.6 Allah Dad P.W.7 Sikandar Ali P.W.8 Badaruddin Shaikh, the trap Magistrate and P.W.9 Noor Muhammad Solangi, the Investigating Officer. After the completion of the prosecution case the statements of both the appellants were recorded under Section 342 Cr.P.C. Accused Muhammad Panah denied all the allegations against him and in respect of the witnesses he alleged that they have deposed due to enmity as P.W. Hub Ali was arrested by him in a Hudood case, in which, he has been convicted. He did not wish to be examined on Oath, but he has examined Imam Bux as his defence witness. On the other hand, accused Muhammad Panjal has also denied all the allegations against him and in respect of the witnesses, he states that they have deposed due to enmity over the matrimonial affairs. He also did not wish to be examined on Oath, but has examined Muhram Ali as his defence witness. I have heard Mr. Samiullah Qurcshi, learned counsel for the appellants and Mr. Mushtaque Ahmed Ameer Mahar, Advocate for AAG for the Stale. The latter has not supported the convictions of the appellants. The learned counsel for the appellants has pointed out (that) though appellant Muhammad Panah has expired during the pendency of this appeal yet his legal heirs wished to pursue this appeal and by order dated 23.4.1992 permission was granted by this Court. The learned counsel for the appellants has submitted that both the appellants have been implicated falsely and both the appellants have enmity with the material witnesses in this case. In this regard, he has contended that appellant Muhammad Panah had challaned P.W.Hub Ali in a case of recovery of Hemp in which he was convicted as such the witness Ali Bux, Suhbat, Ghulam Ali and Allah Dad are closely related to him and to each other. On account of conviction of Hub Ali, they have implicated him in this false case. In respect of appellant Muhammad Panjal, he has pointed out that the same set of witnesses are also related to Muhammad Panjal and they have deceived and tricked him into accepting the tainted money at the time of trap. I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the evidence on record. it Ls evident from the evidence of private witnesses that they are all elated to each other. Complainant Ali Bux is maternal uncle of P.W. Hub Ali, Suhbat and Ghuiam Ali are brothers inler-se while P.W. Allah Dad is their father. Complainant Ali Bux is also father in law of P.W. Suhbat. This relationship will go to slum that all the witnesses are closely related to each other and they all reside in the same village. It is also an admitted position that P Ay. Hub Ali was arrested by accused Muhammad Panah, who was an Excise Inspector and had also challaned him in which case Hub Ali was convicted. Obviously, these private witnesses, on account of the conviction of Hub Ali, had a motive to depose against the appellant Muhammad Panah. Again, it is also an admitted position that at the time of trap the appellant iviuhauimad Panah was neither available at the spot nor he w,as alleged to have accepted the tainted amount. He is not even shown to have spoken to any of the witnesses on the date of trap. In respect of appellant Muhammad Panjal it has come in evidence that he was also related to the private witnesses in this case and it is also alleged that the witnesses were of the view that it was Muhammad Panjal who had brought Excise Inspector Muhammad Panah for arrest. This fact has been admitted by P.W.6 Allah Dad in his cross-examination.Prosecution examined P.W.I Ali Bux, who is the complainant in this case. In his evidence, he states that P.W. Allah Dad and his three sons namely P.W. Suhbat, Ghulam Ali and P.W. Hub Ali were arrested by appellant Muhammad Panah, for their release he approached Muhammad Panjal and after paying Rs.1000/- as bribe except Hub Ali all the others were released. There was balance amount to pay on the following date but he lodged report against the accused and the trap was arranged. On 29.3.1986 he paid Rs.1000/- to Muhammad Panjal, who was trapped by the Anti-corruption Police. P.W.2 Suhbat, P.W.3 Ghulam Ali, P.W.5 Hub Ali and P.W.6 Allah Dad all of them also state the same facts as narrated by the complainant Ali Bux. The prosecution examined P.W.4 Kehar, who is the only masliir in this case. He has deposed that Rs.1000/- was given to complainant Ali Bux for payment to appellant Muhammad Panah. He accompanied with the trap party and paid the tainted amount to appellant Muhammad Panjal and thereafter trap party arrested Muhammad Panjal. The mashimama was prepared to that effect, which was signed by him. Thereafter, the prosecution examined P.W.7 Sikander Ali, who was then Circle Officer, Khairpur. He states that the case papers were received by him from Mr. Noor Muhammad Solangi. He further states that he interrogated Muhammad Panah who produced before him FIR in respect of P.W. Hub Ali, mashimama of recovery of Hemp and after completing investigation, he submitted the police papers for sanction. After receiving sanction he challaned the accused persons. The next witness examined by the prosecution is P.W-8 Badaruddin who acted as supervising trap Magistrate. He has stated that the amount of Rs: 1000/- was paid to the complainant for payment to the accused, but trap party was arranged, they had gone to the appointed place where the payment was made to Muhammad Panjal, who was arrested and the amount was recovered from him. The mashimama was prepared at the spot. Thereafter he returned to his office where he prepared the trap report. The last witness examined is P.W.9 Noor Muhammad Solangi, who is investigating officer. He states that complainant Ali Bux had lodged the report, which was recorded by him. He arranged for the trap party of the accused, which was supervised by Mr. BadaruJdin Shaikh. Amount of Rs.1000/- was given to the complainant for payment to the accused. They proceeded to the appointed place where the amount was paid to accused Muhammad Panjal in the presence of mashir Kehar, accused Muhammad Panjal was arrested and the tainted amount was recovered from his possession. He prepared mashimama of arrest and recovery. He examined the witnesses, he could not arrest accused Muhammad Panah, thereafter he submitted interim challan and on 20.4.1986, he handed over the charge of his office to P.W. Sikander Ali as he was transferred.I have applied my mind to the facts and circumstances of the case and I have also gone through the evidence on record. t is an admitted position that appellant Muhammad Panah neither eceived the tainted amount nor was he present at the time of trap. The allegatior j against him are to the effect that he had received the first instalment of Rs.lGOO/- bribe amount from Muhammad Panjal which as given to him by complainant Ali Bux In this regard. I may observe that the tpodlant Muhammad Panah had arrested P.W.Hub Ali in a Hemp recovery cass, in which said Hub Ali was convicted. These itnesses who were all closely related inter-se obviously, have a reason to depose against appellant Muhammad Panah, as such the evidence of these witnesses can not be relied upon without ndependent corroboratiou. That corroboratory circumstance is not available in this case. Moreover, the said payment of Rs.1000/- is supposed to have been made one week before the registration of his case. If accused Muhammad Panah had really demanded this amount, then what prevented the complainant from lodging the report against him. The complainant did not even make any complaint gainst Muhammad Panah before any authority. In respect of thi? first payment, it is a case of word against word. The possibility that the appellant Muhammad Panah has been implicated regarding the first ayment on account of arrest and conviction of! P.W.Hub Ali can not be ruled out. In this regard, there is another important circumstance and that is who paid the first amount of Rs.1000/- to Muhammad Panjal or its onward payment to Muhammad Panah. In this regard P.W. Allah Dad had stated before the police that Rs.1000/- was paid by him. While on the other hand the complainant Ali Bux claims that he paid s.1000/- to Muhammad Panjal. In this view of the matter when the witnesses did not know who had made! the payment of the first instalment, it is quite obvious that the story of the payment of the irst instalment is false story which has been made to implicate the appellant Muhammad Panah and also -to show a connection between the two appellants. The trap proceedings in which the appellant Muhammad Panjal was arrested and the recovery of the tainted amount of Rs.1000/- was effected is also not free from doubt. In this regard, according to the complainant Ali Bux, the Circle Office P.W.9 and the Magistrate P.W.8 could not witness the passing of the tainted money by the complainant to Muhammad Panjal. Moreover, the complainant admits in his cross-examination that masliir Kchar had signed the mashimama in the Anti-corruption office. According to P.W.4 masliir Kehar he states when Muhammad Panjal was arrested he was claiming that he had received the amount from the complainant on account of lands. In his cross-examination he has made the following admissions: - "Ali Bux paid the tainted money to Muhammad Panjal stating that it was on account of lands. I signed the mashimama in Anti-Corruption Office." From this admission of the mashir it is quite obvious that the complainant had passed on the tainted money to accused Muhammad Panjal on account of lands, but at that time obviously Muhammad Panjal did not know that a trap party had come to arrest him. He being a relative of the complainant was obviously tricked by the complainant into accepting that amount. It therefore can not be .said that accused Muhammad Panjal had either demanded or accepted the bribe ! amount from the complainant. The possibility cannot be ruled out that Muhammad Panjai may have accepted the amount from the complainant innocently. This is also evident from the evidence of mashir Kchar that as soon as Muhammad Panjal was caught he immediately stated that amount was paid to him on account of lands.As already mentioned, appellant Muhammad Panah was not available at the time of trap. In fact there is no evidence to show that he had any thing to do with co-accused Muhammad Panjal on the day of trap though an effort has been made . - by the witnesses to show that both the appellants had come together. Even if I believe this aspect again Muhammad Panah had appeared in the Sessions Court and, therefore, possibility can not be ruled out, that he might have gone on account of his official duly. All the above circumstances clearly go to show that there is all wrong (?) doubt in the prosecutiort case, and it appears that a false provision regarding payment of first instalment has been created so as to implicate Muhammad Panah while the payment in the trap proceedings to accused Muhammad Panjal was not made on account of any demand made by him. As already mentioned, it was an innocent acceptance of amount by Muhammad Panjal from the complainant Ali Bux, therefore, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt. Consequently, I allow this appeal and set aside the conviction and sentence £ awarded to the appellants. They are acquitted of the charges levelled against jthem. This appeal is accordingly allowed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. (Karachi) 462 [Sukkur Bench] Present: shaukat hussain zubedi, J ABDUL SATTAR and others-Applicants versus THE STATE-Rcspondcnt Criminal Misc Application No.101 of 1992, accepted on 4.6.1992 Criminal Procedure Code, 1898 (V of 1898)-- —-S.561-A read with Pakistan Penal Code, 1860, Sections 379,411,109 read with Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Section 14--Aluminium wire-Stealth and recovery of--Offcnce of--TriaI for- Quashment of proceedings-Prayer for--In this case, report under Section 170 Cr.P.C. has been submitted giving names of additional accused-Report is not in conformity with requirements of Section 170 of Cr.P.C.—No role has been assigned to applicants-Neither any property was recovered from applicants nor have they led to any such recovery-Applicants have been implicated on direction ot S.S.P—Magistrate erred in not considering application under Section 249-A of "Cr.P.C.-Held: Proceedings are nothing but harassment of applicants and same are abuse of process of court which cannot be allowed to continue-Proceedings to extent of applicants quashed. [Pp:465,466&467]A,B,C,D&E Mr. Nizamnddin Balucli, Advocate for Applicants. Mr. Mushiaq Ahmed Amir Mahar, Advocate for State. Date of hearing: 18.5.1992. judgment This application under Section 561-A Cr.P.C. is filed on behalf of applicants Abdul Sattar s/o Ghulam Hyder, Hussain Bux son of Muhammad Bux, Abdul Ghani son of Haji Khan and Shankarlal son of Pheroomal who are involved in case FIR No.28/89 under Sections 379/411/109 read with Section 14 Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at police station 'A' Section, Sukkur. The applicants. had moved an application under Section 249-A Cr.P.C. which was rejected by the trial court vide order dated 6.2.1992. The applicants have now preferred this application for quashment of the said proceedings pending against them. The facts of the case are that the complainant Abdul Sattar is L.S.-II with SDO Construction, Sukkur Division No.II, Sukkur. There is a plot in front of their office in which 4 drums aluminium wire issued to the complainant were lying. Apart from it 2 drums issued to Hussain Bux were also lying there. On this plot Abdul Ghani is posted as watchman. This plot has a boundary wall. In the east part of this boundary wall there is a passage without gate. On the evening of 272.1989 the complainant and Hussain Bux after checking the drums went to their houses, while watchman Abdul Ghani was there. Next morning at 8-0 a.m. when complainant and Hussain Bux came on duty, the watchman Abdul Ghani informed them that in the night 6 drums of wire have been stolen. That the drums have been taken from the eastern part of the boundary wall by means of tractor trolley through the open space. After hearing the watchman the complainant went and checked the material and found the said drums were not available. They brought the facts to the notice of Shankarlal SDO who immediately issued letter for lodging report. The complainant went and lodged report at P.S. 'A' Section, Sukkur. On 1.3.1989, a large police force of FIA Sukkur conducted raid at the house of one Mahboob Ahmed, Railway employee. This raid was supervised by Mukhtiarkar & FCM Rohri on the directions of A.D.M. Sukkur. In the compound wall of the said house, a number of articles were found, all belonging to Wapda including 3 drums of wire. Entire property was seized under a mashimama and the same was handed over to SDO Shankarlal who was also present there. In the house of Mahboob Ahmed two persons we're sleeping, namely, Ali Muhammad and Rasoo! Bux. One of the neighbours namely Haji Muhammad Siddiq who resides just 5 paces away also came there. The police recorded the statements of these persons namely Rasool Bux, Ali Muhammad and Haji Muhammad Siddiq. AH of them disclosed that on the mid night of 27.2.1989 6 drums of conductor wire were brought in a tractor trolley by DSP Abdul Rahim Butt. He got them off loaded from the trolley and kept them in this compound. They further disclosed that on the next day, that is, 28.2,1989 he brought 4 persons with implements for making scrap of these wires and in this way they have completed the scrap making from 3 drums, while 3 drums are left. The raiding party came to know that the said DSP Abdul Rahim Butt resides about 20 paces away and it was also found that the said DSP was available at his house at that time. All these facts are mentioned by the Mukhliarkar in his raid report issued on 2.3.1989 copy of which is placed on record by the applicants. The matter was investigated and on 25.3.1989 interim challan was submitted in which 3 persons were shown as accused namely Allah Rakhio son of Allahdad, Habibullah son of Shafi Muhammad and Imdad Hussain son of Miran Bux. This challan was submitted in the court of SDM Sukkur. On 7.12.1989 on the orders of Sessions Judge, Sukkur, the case was transferred to the court of City Magistrate, Sukkur, where it is still pending trial. On 15.6.1992 police submitted report under Section 170 Cr.P.C. in the court of City Magistrate, Sukkur. In this final challan, the police submitted names of 7 more accused persons in red ink which included the names of the present 4 applicants. Being aggrieved the applicants preferred an application under Section 249-A Cr.P.C. on 14.11.1991 and prayed for acquittal on the ground, that there was no likelihood of their conviction for this offence. This application was heard and rejected by the trial court vide order dated 6.2.1992. It is in these circumstances, the applicants have filed the present application for quashment of the proceedings pending against them. I have heard Mr. Nizamuddin Baloch learned advocate for the applicants and Mr. Mushtaq Ahmed Amir Mahur advocate for AAG for State.The learned counsel for the applicants has argued that the principal accused is the DSP Abdul Rahim Butt, the investigation conducted by the police is malafide as the police has shielded the principal accused and implicated innocent persons, it is also pointed out that interim challan was submitted on 253.1989, while report under Section 170 Cr.P.C. is submitted on 15.6.1991 after more than 2 years of interim challan. It is further argued that the prosecution has no material in hand against the present applicants and the present proceedings against the applicants amount to harassment and therefore the said proceedings against the applicants is an abuse of the process pf Court.On the other hand, the learned counsel for the State has not opposed this application, but has prayed that his concession is only to the extent of these 4 applicants against whom there is no evidence as per the challan. I have carefully applied my mind to the points raised and I have also gone through the record. It appears that the principal accused in this case is the DSP Abdul Rahim Butt against whom there is cogent material available, but he has been completely shielded by the investigating officer. There is raid report of Mukhtiarkar & FCM Rohri who had supervised the raid on 1.3.1989 when a variety of property all belonging to Wapda was secured. There are statements of 3 witnesses namely Rasool Bux, Ali Muhammad and Haji Muhammad Siddiq who fully implicate the said DSP Abdul Rahim Butt. They have even stated that the original shape of the stolen property was being changed at the behest of the said DSP, therefore, it is quite devious (?) that he has been clandestinely let off by the investigating officer. It is also to be noted that report under Section 170 Cr.P.C. was filed 2 years after the interim challan was submitted. The perusal of report under Section 170 Cr.P.C. clearly indicates that the present applicants have been joined as accused not on account of any material collected against them by the investigating officer but on account of directions issued by the SSP Sukkur. It also appears that the I.O. has not bothered to see what was the material available against the applicants so also, whether they are really accused or not. Irrespective of the consequences, the I.O. has blindly complied with the directions issued by the SSP Sukkur. In complying with the directions of the SSP Sukkur, the I.O. did not even realise that the complainant of this case namely Abdul Sattar son of Ghulam Hyder has also been made an accused by him. No reasons are given why the complainant has been made an accused alongwith others. It may be noted that this is not a case where the name of the accused is placed in column 2 and who has been summoned as accused by the Court. In the present case a report under Section 170 Cr.P.C. has been submitted giving names of additional accused as per the directions of SSP Sukkur. This report of 15.6.1991 is also not in conformity with the requirements of Section 170 Cr.P.C. This section requires ihat if it appears to the police officer that there is sufficient evidence or reasonable ground then only such officer shall forward the accused to the Court. n the present case the investigating officer has not applied his mind to consider if there is sufficient evidence or reasonable round against the accused or not. He has purely acted in a mechanical manner, by complying with the directions of the SSP Sukkur, His mechanical application of mind is further evident Trom the fact that the omplainant of the case has been made an accused without assigning any reasons. The learned trial court has rejected the applicants' application under Section 249-A Cr.P.C. on the short ground that it was remature stage to dispose off the case under Section 249-A Cr.P.C. and that the Court will come to know the real picture of the case after the evidence is recorded. I may observe that the above reasoning adopted by the learned trial Magistrate is erroneous and contrary to the requirements of Section 249-A, Cr.P.C. It may be noted that Section 249-A, Cr.P.C. itself provides that it is applicable at any stage of th.e proceedings. It can be applied even before the framing of the charge. In the present case, the names of the applicants do not appear in the FIR as accused persons. No role is assigned to them. Neither any property was recovered from them nor have they led to any such recovery. Sufficiency of evidence or reasonable suspicion has also not been indicated in the challan or report under Section 170 Cr.P.C. The applicants have been implicated on the bare directions of the SSP Sukkur and that too in a mechanical manner. In these circumstances, the applicants were perfectly justified in moving an application under Section 249-A, Cr.P.C. in such a situation a duty is cast upon the trial court to see whether there is prima facie evidence available against the accused or not. If no evidence is available, then the accused is to be acquitted whatever may be the stage of the proceedings. Otherwise, an innocent person who is roped in a criminal case may have to face the ordeal of the trial. Obviously Section 249-A, Cr.P.C. has been so designed and promulgated to meet such a situation. In this view of the matter, the learned trial Magistrate erred in not considering the application under Section 249-A, Cr.P.C. The learned counsel for the State was specifically asked to point out what was the proposed evidence available against the applicants in the hands of the prosecution. The learned counsel for the State admits that apart from the directions of the SSP Sukkur, there is no other evidence against the accused. In the above circumstances, when there is no evidence against the applicants and yet they are being subjected to face the rigors of the trial clearly this amounts to harassment of the applicants. One of the applicants namely, Shankarlal was attending the trial court all the way from Lahore . Applicant Abdul Sattar and Abdul Ghani are residents of District Shikarpur, while applicant Hussain Bux is resident of District Khairpur. In view of my above discussion, I am of the opinion (that) these proceedings are nothing but harassment of the applicants and an abuse of the process of Court which cannot be allowed to continue.Consequently this application is allowed and the proceedings pending in the| court of City Magistrate, Sukkur as per FIR No.28/89 of police station 'A' Section, Sukkur are hereby quashed to he extent of the applicants only. \ (MBC) (Approved for reporting) Application accepted.

PLJ 1992 Cr PLJ 1992 Cr.C. (Karachi) 467 [Sukkur Bench] Present: shaukat hussain Zuunoi, J ABDUL KADlR-Petilioner versus MUHAMMAD NAWAZ and others-Respondents Criminal Revision No.18 of 1989, dismissed on 1.6.1992 Revision against Acquittal- -—Offence under Section 307.436,14S&149 PPC--Trial for-Acquittal of respondents-Challenge to--It is wrong to say that evidence of eye-witnesses was discarded by trial court only on ground of relationship- here is enmity between parties over land, accused had obtained status-quo order and complainant party was not in possession of land—There was also a counter case wherein all eye-witnesses re accused—Their evidence required corroboration by independent source which was not available on record-­ Evidence of recovery is of no consequence as weapons were not sent for examination- omplainant's story about capture of respondent No.l is not plausible-Injuries on person of accused-respondent No.l have not been explained--Held: All these circumstances having been considered by rial court, there is no reason to interfere with findings of trial court—Petition dismissed. [Pp.470&471]A,B,C&D Mr. Ghulam Muhammad Klian H.Durrani, Advocate for Petitioner. Mr. Ghulam Kadir Malik, Advocate for Respondent No.l. Mr. Abdul Glwni Shaikh, Advocate for Respondents 2 to 8. Sardar Abdul Sattar Chohan, Advocate for State. Date of hearing: 7.5.1992. judgment This Criminal Revision Application is filed on behalf of applicant Abdul Kadir son of Muhammad Ismail under Section 435/439 Cr.P.C. challenging the judgment dated 29.5.1988 delivered by the learned First Additional Sessions Judge, Sukkur whereby he acquitted the respondents Muhammad Nawaz S/o Abdul Wahid, Ali Muhammad S/o Paryal Gabole, Ghulam Kadir S/o Ladho Gabole, Yousuf S/o Muhammad Bakhsh, Ali Bux S/o Muhammad Gabole, Azizuliah S/o Kha'iruddin, Muhammad Bashir S/o Noor Muhammad and Mazari S/o Jeewan Gabole, of the charges under Section 148, 307/149 and 436 PPC. The facts of the case are that an agricultural plot bearing survey number 103 has been granted to Hazoor Bux brother of the complainant. On this land the complainant also has his house which is surrounded by a hedge. At the relevant time the complainant party had raised wheat crop on this land. On the day of incident, that is 15.1.1979, the complainant Abdul Kadir, his brothers Hazoor Bux and Rasool Bux, his sister's son Allah Bux and his uncles Mahmood and Muhammad were all available in their house when at about 5-0 p.m. accused Muhammad Nawaz Naich armed with gun came with a tractor accompanied by co-accused Ghulam Kadir having a pistol, Ali Muhammad having a gun, Bashir, Yousuf, Azizuliah, Ali Bux and Mazari armed with hatchets and lathis. All the accused came and started ploughing the land near the house of the complainant. The complainant party came out of the house and stopped them from ploughing the land. On this accused Muhammad Nawaz fired a direct gun shot at the complainant which hit him on his right side arm. The complainant managed to catch hold of accused Muhammad Nawaz. Accused Ali Muhammad and Ghulam Kadir fired from their weapons which hit Huzoor Bux, Rasool Bux, Allah Bux, Mahmood and Muhammad. Thereafter the women folk of the complainant's came with the holy Quran and the accused then went away. Accused Muhammad Nawaz having been caught, was brought to the house of the complainant alongwith the gun. The complainant leaving the other witnesses, went to PS Mirpur Mathelo where he lodged the report. The report was recorded by SHO Muhammad Nawaz. He referred the complainant to hospital for examination and treatment. He also visited the place of wardut where he secured blood stained earth. He also collected 12 empty cartridges of. 12 bore from the wurdat and also secured the tractor. He also noted the injuries .on the persons of injured witnesses. The complainant party also produced accused Muhammad Nawaz before the SHO who arrested him and secured one gun from the wardat. He examined the witnesses. After arrest of various accused and after completing the investigation, he submitted the challan in the Court on 1.2.1979. At the trial, the persecution examined complainant Abdul Kadir and eye witnesses Muhammad, Mahmood, Allah Bux, Huzoor Bux and Rasool Bux. The two mashirs are Khan Muhammad and Jeand, Medical Officer is Dr. Baganlai. Mr. Hamid Khan Baloch (is) Mukhtiarkar & FCM who held identification parade in respect of accused Azizuliah and Ali Bux. Lastly SHO Muhammad Nawaz who is the investigating officer in this case. At the conclusion of the trial the accused were examined under Section 342 Cr.P.C. in which they denied the allegations, claimed to be innocent and that they have been falsely implicated. However, none of the accused wanted to be. examined on oath nor wished to examine any defence witness. At the conclusion of the case, all the accused were acquitted as already mentioned herein above. I have heard the learned counsel for the applicant and also the counsel for the respondents. The counsel for the State has supported the judgment of the trial court. It has been contended by the learned counsel for the applicant that the evidence has been misread resulting in the miscarriage of justice. He argued that cogent material was available in the case, but the trial court has not taken the same into consideration. He further argued that material eye witnesses' evidence was wrongly discarded on the ground of their relationship with the complainant. He has further argued that ocular evidence was also corroborated by the medical evidence and this was a fit case for remanding it back to the lower court for retrial. On the other hand Mr. Ghulam Kadir Malik for respondent No.l and Mr. Shaikh Abdul Ghani for respondents Nos.2- to 8 have argued that accused Muhammad Nawaz has as many as 8 injuries, one caused by fire arm and rest by hard and blunt weapon and the same have not been explained at all. The eye witnesses are also silent about these injuries. The trial court has properly taken into consideration all the pieces of evidence. Therefore, this was not the type of case which requires indulgence by this Court. It was further argued that the complainant had filed a suit which has been admitted by the complainant, as such the complainant party was an interested party and inimical to the accused. Mr. Ghani has argued that there was a counter case in which trie complainant party was accused. The counter case was lodged by Aligoher who is son of accused Muhammad Nawaz. I have carefully applied my mind to the facts of the case and I have also perused the judgment of the trial court as well as the evidence on record. Before proceeding further, 1 may observe that this is not an appeal calling for re-appraisal of evidence. The present application is a revision against acquittal of the respondents, moved by a private party. erefore, in such matters this Court is very slow in disturbing the findings of fact arrived at by the trial Court. As such, the grounds for interfering in Revision against acquittal are also very limited. It has to be shown that the judgment of the trial court is perverse or that it is completely illegal, or, that from the evidence on record no other conclusion can be drawn except the guilt of the accused, or, that the evidence has been misread resulting in the miscarriage of justice. • In the present case an effort has been made by the learned counsel for the applicant to show that the evidence available on record comprised of ocular evidence of complainant Abdul Kadir, Huazoor Bux, Rasool Bux, Allah Bux, Muhammad and Mahmood. The said ocular evidence was corroborated by the medical evidence also, but ocular evidence has been discarded by the trial court only on the ground of relationship, as such, the evidence has been misread in this case. After going through the record, I find that the factual position as suggested by the learned counsel for the applicant is not the same. It will not be correct to say that the ocular evidence was discarded merely on the ground of relationship. First of all it is to be noted that PWs Huzoor Bux and Rasool Bux are real brothers of the complainant while PW Allah Bux is his nephew. PWs Muhammad and Mahmood are maternal uncles of the complainant. This will go to show that all the eye witnesses are closely related to each other. It is also an admitted position that litigation was going on between the complainant and accused Muhammad Nawaz over land bearing survey number 103 and 89. The complainant himself has admitted in the cross-examination that these survey numbers are disputed and since 1959 it was being granted to accused Muhammad Nawaz on yearly basis. In 1973 this land was granted on permanent basis to Imam Bux hari of accused Muhammad Nawaz while No.89 was granted to Muhammad Nawaz himself. The complainant admits that his father and brothers had filed appeal against this permanent grant of land to accused Muhammad Nawaz and his hari Imam Bux but the Commissioner Sukkur only partly allowed the same. Again in their revision before the Board of Revenue, both the survey numbers were granted to the complainant. As against this, the accused Muhammad Nawaz filed a civil suit being First Class Suit No.399/78 pending in the Court of Senior Civil Judge, Sukkur. This was a suit for declaration and permanent injunction in which respondents were, complainant Abdul Qadir. his brothers PW Hazoor Bux and PW Rasool Bux and their father Muhammad Ismail. The above histoiy of litigation will go to show that a bitter battle regarding survey numbers 103 and 89 was going on between the complainant party and Muhammad Nawaz. It is also important to note, that the land in question was in actual possession of accused Muhammad Nawaz and not the complainant party. In lad in Civil Suit No.399/78 as mentioned above, the accused Muhammad Nawaz had also obtained an interim injunction in the shape of a statue-quo order passed on his application under Order 39 Rules 1 and 2, and this status-quo order was valid from 7.1.1979 upto 23.1.1979. This means the complainant party was actually restrained from interfering with the peaceful possession of the disputed ' land iri occupation of accused Muhammad Nawaz. The incident has taken place on 15.1.1979 when the statue-quo order was in force.It is therefore wrong to say that the evidence of the eye witnesses has been discarded by the trial Court only on the ground of relationship. There is enmity between the parties over land, the accused had obtained status-quo order, the complainant was not in possession of the land, as such, the complainant party was an interested party, therefore, the evidence of the eye witnesses required strong corroboration which was not available in this case. Another important circumstance is that, there was a counter case lodged by Aligoher son of accused Muhammad Nawaz. All the eye witnesses namely, Abdul Kadir, Huzoor Bux, Rasool Bux, Allah Bux, Muhammad and Mahmood are accused in the counter case, therefore, on this ground also their evidence could not be relied upon without independent corroboration. It will therefore, appear that the motive is false, complainant claims that accused wanted to forcibly eject them from their land survey numbers 103 and 89 when in fact there was status-quo order in favour of the accused on the day of wardat which suggests, possession of the land was with the accused. AH the eye witnesses are accused in the counter case, therefore, their evidence required to be corroborated by an independent source which was not available on record. There is also civil litigation between the parties for this reason also the witnesses are inimical and interested as all of them are closely related to each other. The evidence of recovery is of no consequence as the weapons were not sent for any examination. Even the mashir has belied the recoveries. The complainant's story as given in the FIR is also not plausible with regard to the capture and custody of accused Muhammad Nawaz. It does not stand to reason, that co-accused would allow the capture of Muhammad Nawaz by the complainant party, when all accused are shown to be armed with weapons and complainant party claimed to be empty handed. None of the witnesses has been able to explain 8 injuries on the person of accused Muhammad Nawaz. In fact all the witnesses have stated that none of them had caused the said injuries nor had they noticed the same. All the above circumstances are reflected and considered in the judgment of the trial court and I do not find any reasons to interfere with the findings of the trial court. Accordingly this revision application has no merits and the same in hereby dismissed. (MBC) (Approved for reporting) Revision dismissed.

PLJ 1992 Cr PLJ 1992 Cr.C. ( Karachi ) 471 Present: QAISER AHMAD HAMIDI, J SALEEM RAJ awl 3 oti»fv-App\tante> versus THE STATE-Respondents Criminal Misc. Application No.164 of 1992, accepted on 1.7.1992 Criminal Procedure Code, 1898 (V of 1898)- -—S.561-A read with Ehtram-e-Ramzan Ordinance, 1981, Sections 3,4&5— Proceedings under Ehtram-e-Ramzan Ordinance-Quashment of—Prayer for— Section 3 of Ordinance prohibits eating, drinking or moking at a public place during fasting hours by a person who, according to tenets of Islam, is under obligation to fast-There is no allegation against applicants that they being under obligation to fast, were eating, rinking or smoking in Airport Hotel during fasting hours—Their prosecution under Section 3 of Ordinance, had no legal sanctity-Facts as disclosed in complaint, even if accepted on face value, do not make out a se under Section 4 of Ordinance-Airport Hotel is situated within premises of Quaid-e-Azam Airport, Karachi-Raid of hotel and arrest of applicants 1 to 3 by S.H.O. was again illegal-A police officer has got no ight to enter in a public place for said purpose or arrest any person for violating provisions of Ordinance-Held: Action of Assistant Commissioner S.D.M. and S.H.O. was not justified and had no sanctity in eyes f law- Proceedings quashed. [Pp.473,474,476&477]A,B,C,D,E&F Mr. Nasir Abbas Rizvi, Advocate for Applicants. Mr. Abdul Hakeem Bijarani, A.A.G. for State. Date of hearing: 31.5.1992. judgment This is an interesting case because k deals with a maiicr on whicn there seems to be no direct authority. 2. On 8.3.1992 Muhammad Saleem, S.H.O. Airport P.S. and Assistant Commissioner/S.D.M. Airport, Karachi raided Airport Hotel, Karachi at 5 P.M. and found eatables lying open in Dining Hall. Since there was violation of the provisions of Section 3/4 of the Ehtram-e-Ramzan Ordinance, 1981, applicants Saleem Raj, Shaikh Nazimuddin, and Faheem Mustafa, all employees of the said hotel were taken into custody, who were subsequently released on bail. On 9.3.1992 a complaint for the said offence was filed by S.H.O. Airport P.S. in the Court of Assistant Commissioner and S.D.M. Airport , Karachi , gainst the above applicants and also against applicant Altaf Hussain, Managing Director of Airport Hotel, who too was made an accused, which was brought on regular file on the same day. The order dated 9.3.1992, by which cognizance was taken by learned Magistrate against the applicants is the subject matter of the present application filed under Section 561-A Cr.P.C, seeking the quashment of proceedings nder Section 3/4 of The Ehtram-e-Ramazan Ordinance, 1981, pending against them. 3. I have heard Mr. S. Nasir Abbas Rizvi, learned counsel for applicants and Mr. Abdul Hakeem Bijarani, learned AA.G. for State. The latter has raised a preliminary objection about the maintainability of this application filed under Section 561-A Cr.P.C., before exhausting the remedy available under Section 249- A Cr.P.C. The learned A.A.G. should have known that a complete answer to this objection is rovided by the Supreme Court in the case of Mian MunirAJimad vs. Tlie State, reported in 1985 S.C.M.R. 257, wherein it was observed:- The powers of the trial Court under Sections 249-A Cr.P.C. and 265-K Cr.P.C. are co-extensive with the similar powers of the High Court under Section 561-A Cr.P.C. and both can be resorted. It would of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under Section 561-A, Cr.P.C., directly." 4. The perusal of the record shows that the Assistant Commissioner and S.D.M. Airport, Karachi, was himself a prosecution witness in this case. The invocation of the provisions of Section 249-A Cr.P.C. before him could therefore, be an exercise in futility. 5. The Ehtram-e-Ramazan, Ordinance, 1981, a its preamble shows was promulgated to provide for measures to observe the sanctity of the month of Ramazan. Section 3 of this Ordinance, therefore, prohibited eating etc, in public places in the following words:- "(1) No person who, according to the tenets of Islam, is under an obligation to fast shall eat, drink or smoke in a public place during fasting hours in the month of Ramazan. (2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both." It is thus apparent that eating, drinking or smoking during fasting hours by a person who, according to the tenets of Islam, is under obligation to fast, is prohibited in a public place, which nder Section 2 of the Ordinance includes any hotel, restaurant, canteen, house room, tent, enclosures, road, lane, bridge or other place to which the public have access. It, therefore, follows that (if) a person who, ccording to the tenets of Islam, is under obligation to fast, eats, drinks or smokes during fasting hours, in his private house without violating the sanctity of Ramazan, is not liable for a penal action, although by oing o he commits a major sin. Likewise a person who, according to tenets of Islam is not under obligation to fast, eats, drinks or smokes during fasting hours without violating the sanctity of Ramazan at a public lace commits no offence. There is no allegation against the applicants that they or any of them, being under obligation to fast, ere eating, drinking or smoking in Airport Hotel, Karachi, during fasting hours. Their rosecution for the offence under Section 3 of the Ehtram-e-Ramazan, Ordinance, 1981, had, therefore, no legal sanctity 6. The applicants were also prosecuted for the offence under Section 4 of the Ehtram-e-Ramazan, Ordinance, 1981, which provides as follows:- "Prohibition of serving eatables in certain public laces:-(l) No proprietor, manager, servant, or other person in charge of a hotel, restaurant or canteen, or other public place, shall knowingly and wilfully offer or serve or cause to be offered or served any eatables uring fasting hours in the month of Rama/an to any person who according to the tenets of Islam, is under an obligation to fast. (2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both." 7. Obviously, therefore, the proprietor, manager, servant, or other person in charge of a hotel, restaurant, a canteen or other public place, shall be liable for contravention of sub-section (1) only if the eatables are offered or served knowingly or wilfully during fasling hours to any person who according to tenets of Islam, is under obligation to fast. The facts as disclosed in the complaint even if accepted on face value do not make out a case under Section 4 of the Ehtram-e- Ramazan, Ordinance, 1981. It may be added that the Pakistan Hotels Association had taken a similar issue to Ministry of Culture and Tourism (Tourism Division), Government of Pakistan, Islamabad, seeking certain clarifications and the reply received from Tourism Division dated 31.3.1986, which is available on record, is self explanatory, which for the sake of convenience is reproduced below:- "The matter was taken up with the Ministry of Religious Affairs which has stated that the hotels can serve eatables, etc., to persons who are not under obligation to fast. However, the hoteliers should not be so open as to give an impression that the sanctity of Ramzan is being violated. As such, the restricted and under cover service including service in rooms by hotels and restaurants to persons who are not obliged to fast under the tenets of Islam, is not forbidden by the said Ordinance." 8. Section 5 of the Ehtram-e-Ramazan, Ordinance, 1981, again exempts following canteens, kitchens, etc.:- "Nothing contained in Section 4 shall apply in respect of:~ (a) a canteen or kitchen maintained in a hospital for servi g food to patients; (b) a restaurant, canteen, stall or wheel barrow, or the holder of vending contract, within the premises of a railway station or in a train or a restaurant or canteen within the premises of an airport, seaport or bus stand or in an aircraft. (c) a.kitchen or dining-car of a train; or (d) a kitchen or canteen meant for children within the premises of a primary school." 9. Rule 4 of the Ehtram-e-Ramazan Rules, 1981, further qualifies the above exemptions in the following words:- "Only the following classes of persons shall be admitted to a canteen, restaurant or dining car referred to in clauses (a)(b)(c) or (d) of Section 5, namely:- (a) in the case of a canteen maintained in a hospital ........................... persons who are for the time being in-patients in the hospital; (b) in the .case of a restaurant or canteen within the premises of a railway station, airport, seaport, or bus stand or in a train or aircraft, or the dining car of a train persons who have in their possession a ticket or voucher which entitles them to travel by the means of conveyance concerned beyond a distance of seventy five kilometers, including the distance already covered; and (c) in the case of a canteen within the premises of a primary school

students of the school who have not attained the age of puberty." 10. The close examination of Section 3, 4 and 5 of the Ehtram-e-Ramazan Ordinance, 1981, and Rule 4 of the Ehtram-e-Ramazan Rules, 1981, leads to the following conclusions:- (/) No person who, according to the tenets of Islam, is under obligation to fast shall eat, drink or smoke during fasting hours in the month of Ramazan in a public place, the contravention of which is an offence under Section 3(2) of the Ehtram-e-Ramazan Ordinance, 1981. (//) A person, who, according to the tenets of Islam, is not under obligation to fast (like a non-muslim) may eat, drink or smoke during fasting hours in the month of Ramazan in a public place, provided the sanctity of Ramazan is not violated. (Hi) A person who, according to tenets of Islam, is under obligation to fast may eat, drink or smoke during fasting hours in the month of Ramazan at tjxa tjuvaia <jla.cs. C^a ^^x^Y^sk^ violated. (iv) No proprietor, manager, servant, or other person in charge of a hotel, restaurant, or canteen, or other public place, shall knowingly or wilfully offer or serve or cause to be offered or served, any eatables during fasting hours in the month of Ramazan to any person who, according to the , tenets of Islam, is under an obligation to fast, the contravention of which is punishable under Section 4(2) of the Ehtram-e-Ramazan Ordinance, 1981. (v) A proprietor, manager, servant or other person in charge of a hotel, restaurant, or canteen, or other public place may offer or serve any eatables during fasting hours in the month of Ramazan to any person, who according to tenets of Islam, is under no obligation to fast (like a non-muslim), provided that the sanctity of Rama/an is not violated. (v/) A proprietor, manager, servant or other person in charge of a hotel, restaurant or canteen, or other public place may offer or serve any eatables during fasting hours in the month of Ramazan to any person who, according to tenets of Islam, is under an obligation to fast, provided he is entitled to such exemptions under Section 5 of the Ehtram-e- Ramaxan Ordinance, -1981, read with Rule 4 of the Ehtram-e-Ramazan Rules, 1981. 11. Obviously the Airport Hotel, Karachi, as its name signifies is situated within the premises of Quaid-e-Azam Airport, Karachi. There is also no dispute that il supplies eatables to passengers/crew members of different parts of world including non-muslims. The version put forward by the applicants that they had committed no offence in the circumstances of the present case appears to be correct. 12. The raid of the hotel and the arrests of applicants Saleem Raj, Shaikh izamuddin and Fahim Mustafa by Muhammad Saleem S.H.O. Airport P.S. was again illegal. Section 7 of the Ehtram-e-Ramazan Ordinance, 1981, empowers the following persons, to enter and make arrest:- (1) "If any Magistrate, the Chairman of a District Council or a Municipal Committee or a Town Committee, the Mayor of a Muni ipal Corporation, or the Chairman or a Member of a District akat and Ushr Committee has reason to believe that any offence punishable under this Ordinance has been committed by any person in or at a public place he may enter the public place and arrest such erson. (2) Where the Magistrate arresting any person under sub-section (1) is for the time being empowered to try in a summary way the offences specified in sub-section (1) of Section 260 of the Code of Criminal Procedure, 1898, (Act V of 1898), such Magistrate may try such person at the place where he is arrested in accordance with the provisions contained in Sections 262 to 265 of the said Code. (3) When any person is arrested under sub-section (1) by a person other than a Magistrate referred to in sub-section (2) such person shall, if a bond to his satisfaction is not executed, forward the person attested to the nearest Police Station, with a report of the circumstances in which such arrest was made." . 13. It is thus apparent that a police office has got no right to enter in a public place for the said purpose or arrest any person for violating the provisions of the Ehtram-e-Ramazan Ordinance, 1981. The raid made by Muhammad Saleem S.H.O., Airport P.S., and the arrests made as a result of such raid were therefore, illegal. Looking at the case from this point of view, I have no hesitation in remarking that the action of Assistant Commissioner/S.D.M. Airport, Karachi and S.H.O. Airport P.S, was not justified and had no sanctity in the eyes of law. The learned Magistrate should have tried the applicants ummarily on the spot, if he had such powers. 14. Thus, from whatever point of view the matter may be looked at the proceedings pending against the applicants are liable to be quashed. Accordingly the application filed by the applicants under Section 561-A Cr.P.C, is allowed and the proceedings pending against them under Section 3/4 of the Ehtram-e- Ramazan Ordinance, 1981, in the Court of Assistant Commissioner and S.D.M. Airport , Karachi , are hereby quashed. (MBC) (Approved for reporting) Proceedings quashed.

PLJ 1992 Cr PLJ 1992 Cr.C ( Lahore ) 477 Present: mian abdul khaliq, J UMAR DRAZ-Petitioner versus THE STATE-Respondent Criminal Revision No.515 of 1992, accepted on 16.9.1992. Arms Ordinance, 1965 ( W.P.Ord.XX of 1965)-- —S.13-Unlicensed carbine-Recovery of~Conviction for-Challenge to~ pplication for cross-examination of PW 1 was disallowed by trial Court—It is a right of an accused to cross-examine prosecution itnesses which was denied by trial court-Case property was not present in Court at time of examination of PW 1 and PW 2--Police officials who appeared in Court, made contradictory statements about mposition of curfew at time of alleged recovery from petitioner-Held: Prosecution case against petitioner is not free from doubt-Petition accepted and petitioner acquitted. [P.478JA Ch. KJialid Aseer , Advocate for Petitioner. Malik Noor Sarfraz , Advocate for State. Date of hearing: 16.9.1992. order A case was registered against the petitioner on the complaint of P. W.3 Munir Ahmad, S.I./S.H.O., P.S. Massan , Jhang City, who had alleged that on 12.2.1991 at about 6.45 p.m. he was on emergency patrol duty alongwith P.W.I Muhammad Yar , Head Constable and P.W. 2 Muhammad Shafi , ASI in the area of police station City Jhang near Octroi Post No.22 when the accused whose name and address was known later on, after coming out from Mohallah Gulabwala was proceeding towards the graveyard, was suspected, stopped and searched, and from the Naifa of his Shalwar a carbine .12 bore (country made) and from the right side pocket of his shirt four live cartridges were recovered. He could not produce any licence or permit. P.W. 3 drafted a complaint Exh.PB and sent the same to the police station through Muhammad Ramzan , Constable, where it was received by Muhammad Khan, Moharrir Head Constable, who on the basis of the same, registered F.I.R. Exh.PB/1 on the same day at 7.00 p.m. 2. The learned trial Court recorded the statements of three prosecution witnesses and sentenced the petitioner to 6 months R.I. vide his judgment dated 19.7.1992. The petitioner filed an appeal before the earned Sessions Judge, Jhang , who vide his judgment dated 8.8.1992 dismissed the same. He approached this Court through criminal revision which was admitted for hearing. 3. It is contended by the learned counsel forthe petitioner that the case property i.e. carbine .12 bore (country made) and four live cartridges were not exhibited in the Court at the time of examination f P.W.I Muhammad Yar , Head Constable and P.W.2 Muhammad Shafi , AST. The petitioner had moved an application before the trial Court on the day when P.W.I was examined that his counsel was away to Faisalabad and cross-examination of P.W.I be reserved, but the same was disallowed. It is a right of an accused to cross-examine the prosecution witnesses which was denied to him by the trial Court , he case property was not present in the Court at the time of examination of P.W.I and P.W.2. It is also urged that P.W.2 and P.W.3 who are police officials had made contrary statements, i.e. P.W.2 has stated during cross-examination that at the time of the alleged recovery from the petitioner, curfew was imposed in Jhang , whereas P.W.3 has stated that no curfew was imposed in the city of Jhang at that time. It is contended that no public witness was associated in the recovery proceedings, as recovery was allegedly effected from the person of the petitioner at the public place, and in the circumstances, the case against him is not free from doubt. The revision petition is allowed. The judgments of the trial Court and the appellate Court dated 19.7.1992 and 8.8.1992 respectively are set aside and the petitioner is acquitted of the charge. Presently he is on bail. His bail bonds are discharged. (MBC) (Approved for reporting) Petitioner acquitted. THE END

PLJ 1992 Karachi 1 (FB) PLJ 1992 Karachi 1 (FB) Present: SAEEDUZZAMAN SlDDIQUI, CJ, AJMAL MIAN (THEN CJ) AND QAISER ahmad hamidi, J MUHAMMAD AZIM JAMALI and 11 others-Petitioners versus GOVERNMENT OF PAKISTAN, THROUGH SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, and 33 others-Respondents Const. Petition No. D-483 of 1984, dismissed on 8.10.1991. (i) Constitution of Pakistan, 1973-- —Art. 212-Civil servant-Constitutional petition by-Whether barred by Article 212 of Constitution-Question of~If controversy hi petition relates to terms and conditions of persons who are or have been in service of Pakistan, or if it relates to disciplinary matters of such persons, petition would be barred by Article 212 of Constitution—Held: Consistent view of superior courts has been that a matter or dispute in relation to a civil servant which is covered by Article 212(1)(a), should be agitated before Service Tribunal which is appropriate forum for examining various service Rules and official memoranda etc. than a High Court in exercise of constitutional jurisdiction. (Per Ajmal Mian, CJ). [P.16]G&H (ii) Constitution of Pakistan, 1973-- —Art. 212 read with Service Tribunals Act, 1973, Section 3—Civil servant-­ Constitutional petition by—Whether barred under Article 212 of Constitution-­ Question of-It is a question of fact in each case hether issue relates to terms and conditions of a civil servant-Held: A bare reading of prayer made by petitioners would show that point in issue is beyond scope of authority of Service Tribunal constituted under Section of Service Tribunals Act-Held further: A declaration of nature as prayed can only be granted in constitutional jurisdiction. (Per Qaiser Ahmad Hamidi, J). [P.27]P (iii) Jurisdiction— —Division Bench of High Court-Difference of opinion between Judges-­ Reference to third Judge_-Whetehr third Judge has jurisdiction to determine question of jurisdiction raised before Division Bench—Question of— t is quite clear from provisions of clause 26(ii) of Letters Patent that third Judge can only decide point of difference referred to him~Held: Any other point which was either not raised before Judges of Division Bench or aised but not decided by them, could not be dealt with or decided by referee Judge-­ Objection over-ruled. (Per Saeeduzzaman Siddiqui, CJ), concurring with Ajmal Mian, then CJ). [Pp.5&6]B (iv) Pakistan Engineering Council Act, 1975 (V of 1976)-- —Ss. 2, 12 & 16-Pakistan Engineering Council Act-Provisions of-Whether applicable also to persons having professional engineering qualifications, working in Government Departments, autonomous bodies, local uthorities and private firms etc.-Question of-Held: Provisions of Act are applicable only to professional Engineers and consulting Engineers who are in practice-Held urther: No one can act as a professional engineer or s a consultant engineer without getting himself registered with Council or without having a temporary licence under Section 12 of Act, and no one including departments and organisations can employ any such person s a professional engineer or professional consultant unless his name is borne on register of Council. (Per Ajmal Mian, then CJ). [Pp.21&25]J&K (v) Pakistan Engineering Council Act, 1975 (V of 1976)- —Ss.2 & 27--Pakistan Engineering Council Act-Provisions of~Whether also applicable to diploma holders and whether Pakistan Railways is not competent to entrust respondents No. 4 to 34 duties and responsibilities which can only be discharged by professional engineers—Questions of—According to Act, only registered professional and consulting engineers are authoriesed to undertake professional engineering works—Held: Appointment of diploma holders against senior posts of Pakistan Railways in disregard of provisions of Act, is illegal on face of it-Held further: Action of Pakistan Railways is hi breach of statutory provisions of Act and Pakistan Railways are not competent to entrust to respondents No. 4 to 34 duties and responsibilities which can only be discharged by professional engineers registered under Act-Petition accepted. (Per Qaiser hmad Hamidi, J). [Pp.27&28]O,Q&R (vi) Pakistan Engineering Council Act, 1975 (V of 1976)-- —Ss. 3,8 & 27-Pakistan Engineering Council Act-Provisions of~Whether applicable also to persons having engineering qualifications employed in Railways against a post which required engineering skill—Question of~ Expression "Professional engineer" carries specific connotation in Act which means a person who is in profession of engineering and practises as such for purpose of tendering technical advice in respect of a work nvolving technical skill-Held: Merely because a person possesses an engineering skill does not mean that he must be registered under Act-Held further: Provisions of Act regarding registration of professional engineer nd onsulting engineer, would not be applicable to persons serving as engineers with Railways as they do not act as professional or consulting engineers. (Per Saeeduzzaman Siddiqui, CJ) concurring with Ajmal Mian, then J). [P.5,9,11,12&13]A,D,E&F (vii) Pakistan Engineering Council Act, 1975 (V of 1976)-- —Ss. 3, 8 & 27-Pakistan Engineering Council Act-Provisions of-Whether private respondents are not entitled to hold Grade 17 or Grade 18 posts-­ Question of-Functions of Pakistan Bar Council are akin to functions of Pakistan Engineering Council, given in section 8 of Act-It is a matter of common knowledge that there are thousands of law graduates working as Labour Officers or Law Officers but they are not amenable to Bar Councils Act for reason that they are not practising as advocates and they are not enrolled as advocates-Position of engineers who are not practising as professional engineers and professional consultants is similar to that of law graduates who are not in practice-Held: Petitioner's claim that private respondents are not entitled to hold Grade 17 or Grade 18 posts founded on provisions of Act, is misconceived. (Per Ajmal Mian, then CJ). [P.25&26]L,M&N (viii) Words and Phrases- —Words "consulting engineer", "professional engineer" and professional engineering works"~Definition of~Definition of these words is given in clause 2(c), 2(j) and 2(k) respectively-Consulting engineer means an ngineer or body of engineers registered as such-Professional engineer is a person who holds an engineering qualification and is registered as a professional engineer- -Professional engineering works means giving of rofessional advice and opinions, making of measurements and lay-outs etc. in respect of railways, aerodromes, bridges, tunnels and metalled roads, dams, canals, harbours, etc. (Per Saeeduzzaman Siddiqui, CJ). P.8&9JC Mr. Klialid Anwar, Advocate for Petitioners Mr. Fazil-i-Hussain, Advocate with Mr. Ikram Ahmad Ansari, Advocate for respondents No. 1 & 2. Mr. AL4. Farooqui, Advocate for respondent No. 3. Dates of hearing: 6 and 7.6.1989,16.12.1990 and 20.1.1991. judgment Saeeduzzaman Siddiqui, C J.-The above petition has been placed before me as a result of difference of opinion between the two learned Judges of a Division Bench of this Court which consisted of Ajmal Mian, C.J. (as he then was) and Justice Qaiser Ahmad Hamidi. The learned Judges have differed on the scope of the application of provisions of Pakistan Engineering Council Act, 1975, (Act V of 1976) (hereinafter to be referred as 'the Act' only) to the persons employed in different engineering cadres of Pakistan Railways. According to the view taken by Ajmal Mian, C.J., the provisions of the Act are applicable only to engineers who are either practicing as a professional engineer or as a consultant engineer and as such the provisions of the Act are not applicable to the persons with engineering qualification employed in the Railways as engineers, Assistant Engineers, or in any other capacity, connected with the engineering works. The other learned Judge of the Division Bench, Justice Qaiser Ahmad Hamidi, on the other hand, has expressed the view that the provisions of the Act are all embracing and would apply to all persons who are either practising as professional engineers, or consultant engineers or are employed in any Government Department, or any private organisation as Engineers and are entrusted with the duties to look after a work which falls within the definition of "professional engineering work" as defined in the Act. 2. The petitioners in the above petition are holding posts of Assistant Executive Engineers and they are qualified Civil Engineers holding degrees of BE/BSc from recognized Institutions of Pakistan. It is alleged that respondents 4 to 10 in the petition who are holding positions as Executive/Divisional Engineers (Grade-18) in Pakistan Railways are not qualified to be enrolled as professional engineers within the meaning of the above Act as they are only diploma holders from various institutions of Pakistan. The petitioners have relied upon a certificate dated 23rd May 1984 issued by the Pakistan Engineering Council to show that the respondents No.4 to 10 are not professional engineers. It is further alleged that the respondents 12 to 34 who are also diploma holders and are presently holding posts of Assistant Executive Engineers (Grade-17) in the Pakistan Railways are claiming promotions to the next higher posts of the Executive/Divisional Engineers (Grade-18) (to) which they are not entitled. The case of the petitioners is that in view of Section 27(1) of the Act, if any person undertakes any "professional engineering works" and his name is not borne out on the register maintained by the Pakistan Engineering Council created under the Act as a "professional engineer" is liable to be punished in accordance with the provisions of the Act. It is also contended that under the same Section the employment on any "professional engineering work" of a person who is not so registered with the Council is also punishable under the Act. On the above premises, it is contendeddecided the case, could not be dealt with or decided by me as a referee Judge. I have already referred the point on which the learned Judges of Division Bench had differed and therefore, my jurisdiction to decide the above case is restricted to the point of difference referred to me as a third Judge. I accordingly, overrule the contention raised by learned counsel for the respondents that I should first determine the question of jurisdiction which was raised by the respondents before the Division Bench which heard the above case. 5. I now take-up the point of difference which has been referred to me for decision under Clause 26 of the Letters Patent. The contention of the learned counsel for the petitioner is that the preamble of the Act clearly shows that provisions of the Act are applicable to all persons holding engineering qualifications who are engaged in or connected with the type of work which required engineering skill, irrespective of the fact that they are engaged in private practice or consultant practice or are in the employment of a private or Government organisation. It is accordingly urged by the learned counsel for the petitioners that respondents No.4 to 10 cannot be given or entrusted with any work by respondents No.l to 3 which required engineering skill unless, they are registered in accordance with the provision of the Act. The preamble of Act V of 1976 relied by the learned counsel for the petitioners reads as follows: "Whereas it is expedient to make provision for regulation of the engineering profession and for that purpose to constitute an Engineering Council, it is hereby enacted as follows" :- It is well settled principle of interpretation that it is legitimate to refer to the preamble of an Act if there is any ambiguity in the language of the enacting part of the Statute. However, if the enacting part of the Statute is clear and admits of no ambiguity, its scope cannot be controlled by the preamble of the Act. The Act provides for constitution of an Engineering Council under Section 3 which reads as follows :- "3. Constitution and incorporation of Engineering Council.~(T) There shall be constituted in accordance with the provisions of this Act an Engineering Council to be known as the Pakistan Engineering Council. The Council constituted under subsection (1) shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and shall by the name by which it is known sue and be sued. (2) The Council shall be composed of all persons whose names may thereafter be entered in the Register, so long as they continue to have their names borne on the Register. (3) Notwithstanding anything contained in subsection (3), the Council shall, upon its first constitution, be composed of-- (a) a Cairman, being an engineer with not less than twenty years' standing, to be nominated by the Federal Government;ten members, being engineers, of whom two each shall be nominated by. the Federal Government and a Provincial Government; and one member, being an engineer, to be nominated by each University. (5) The headquarters of the Council shall be at Islamabad or at such other place as the Federal Government may appoint". The functions of the Council are set out in Section 8 of the Act which are as unden-"8. Function of the Council.-The following shall be the functions of the Council, namely :- (a) maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers; (b~) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers; (c) removal of names from the Register and restoration to the Register of names which have been removed; (d) laying down of standards of conduct for the members; (e) safeguarding the interests of the members; (/) promotion of reforms in the engineering profession; (g) management of the funds and properties of the Council; (h) promotion of engineering education and review of courses of studies in consultation with the Universities; (i) levy and collection of fees from applicants for registration or temporary licences and members; (/) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed; (k) formation of such committees as may be prescribed; and (/) performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions". A careful reading of Section 8 of the Act will show that the Council has been created for the purpose of (/) maintenance of a record of persons who are qualified to practice as professional engineers and consulting engineers, (h) to accord recognition of the engineering qualifications for the purpose of registration of professional engineers, (if/) laying down of standards of conduct for its members, (iv) promotion of reforms in the engineering profession, (v) management of the funds and properties of the Council, (vi) promotion of engineering education and review of courses of studies in engineering in consultation with the Universities and (vii) exercise of disciplinary powers over the members and servants of the Council in accordance with the rules. The main object of the Act, therefore, appears to be to keep control and regulate the working of persons who are either working as professional or consulting engineers, and to punish violations of the provisions of the Act in cases of employment on professional engineering works of such persons who are not registered as professional engineers with the Council. A reading of various provisions of the Act will make it clear that it is designed to apply to consulting engineers, professional engineers and to the professional engineering works. The expression "Consulting Engineer", "Professional Engineer" and "Professional Engineering Works" are defined under the Act in Section 2(c), (/) and (k) respectively, as follows :- "2(c) "consulting engineer" means an engineer or body of engineers registered as such; (/') "professional engineer" means a person who holds a recognised engineering qualification and is registered as a professional engineer"; "(k) "professional engineering work" means the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of— (/) railways, aerodromes, bridges, tunnels and metalled roads; (if) dams, canals, harbours, light houses; (i«) works of an electrical, mechanical, hydraulic, communication aeronautical power engineering, geological or mining character; (iv) water works, sewers, filtration, purification and incinerator works; (v) residential and non-residential buildings, including foundations, framework and electrical and mechanical system thereof; (vi) structures accessory to engineering works and intended to house them; and (vii) any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purpose of this clause". A 'consulting engineer' according to above definition means an engineer or body I of engineers registered as such. The 'professional engineer' is defined as a person who holds an engineering qualification and is registered as a professional engineer. The 'professional engineering works' means the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of railways, aerodromes, bridges, tunnels and metalled roads, dams, canals, harbours, light houses, works of an electrical, mechanical, hydraulic, communication aeronautical power engineering, geological or mining character, water works, sewers, filtration, purification and incinerator works, residential and non-residential buildings, including foundations, framework and electrical and mechanical systems thereof, structures accessory to engineering works and intended to house them and any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this clause. From the above definitions in the Act, it is quite clear that before a person could practice as a 'professional engineer' or as a 'consulting engineer', he must be registered as such with the Engineering Council created under Section 3 of the Act. The word "professional" has been defined in Chambers Twentieth Century Dictionary as under: "professional, pertaining to a profession: engaged in a profession or in the profession in question: competing for money prizes or against those who sometimes do so: undertaken as a means of subsistence, as opp. to amateur: showing the skill, artistry, demeanour, or standard of conduct appropriate in a member of a profession or of a particular profession.--n. one who makes his living by an art, or makes it his career-opp. to amateur, dilettante: one who engages in sport for livelihood or gain or against those who do so (with various rules of interpretation for each sport)—opp. to amateur: (in full, professional examination) any one of the successive examinations towards a degree in medicine (in Scottish Universities)". 6. From the above definition of the word "professional;", I am of the view that the expression "professional engineer" carries specific connotation in the Act which means a person who is hi the profession of engineering and practises as such for the purpose of tendering technical advice in respect of a work involving technical skill of engineering. Accordingly, a person who is not independently practising in the profession of engineering and is in the employment of the Government Department would not be covered in the definition of professional engineer so as to make him registerable under the provisions of the Act. I had sent for the Debates hi the National Assembly which took place at the tune of passage of the Pakistan Engineering Council Bill 1975, which is dated 5th of December, 1975. The discussion which took place in the Assembly at the tune of passage of the Act reads as follows :- "THE PAKISTAN ENGINEERING COUNCIL BILL, 1975. Mr.Mohammad Yusuf Khattak: Sir, I beg to move. "That the Bill to make provision for the regulation of engineering profession (The Pakistan Engineering Council Bill, 1975), as reported by the Standing Committee, be taken into consideration at once". Mr.Speaker: The motion moved is: "That the Bill to make provision for the regulation of engineering profession (The Pakistan Engineering Council BUI, 1975), as reported by the Standing Committee, be taken into consideration at once". ahibzada Ahmad Raza Khan Qasuri: Opposed. Mr.Speaker: Mr.Yusuf Khattak. Mr.Mohammad Yusuf Khattak: Mr .Speaker, Sir, this is a very noncontroversial Bill. Actually this is designed to bring engineering profession to create an Engineering Council on the same lines as the Medical Council, as the Legal Council. There has been a persistent demand by the engineering profession that they should have a Council of their own where they can remove the black sheep from amongst their ranks. Although the engineering profession executes all the important development works, yet there is no such authority which can determine whether a man who has got an engineering degree, whether that degree is proper or not. It is also their persistent demand that within six months they must have some authority within their own ranks which can examine and take stock of the situation to eliminate the black sheep from amongst their own ranks. We have got the Medical Council Act for the doctor; we have got the Legal Council Act for the lawyers. So, it will be really, I would say, Sir, a very great oversight if there is no equivalent Engineering Council. So, it is only to remedy that lacuna in the situation and I hope that this totally non-controversial Bill will be passed without any discussion. Mr.Speaker: Yes, Mr. Raza Qasuri. Sahibzada Ahmad Raza Khan Qasuri: Mr.Speaker, Sir, I agree with the Minsiter concerned that the Bill is very non-controversial and it only envisages the establishment of an Engineering Council on the pattern of the Bar Council or on the PMA pattern, to regulate, the conduct, discipline and unethical activity of the profession because the engineering profession so far in this country do not have an organisation of their own, a statutory organisation of their own, which could regulate the system of licencing, controlling their discipline and all other terms and conditions of the profession. So, this Bill, as the Minister has rightly said, is a noncontroversial Bill. It only relates to the discipline and ethical conduct of the engineering profession and I think, this kind of Council was needed in Pakistan to operate the everyday activity of the engineers who are a very important segment of our society and before that they were working without any umbrella of a statutory organisation, the one which this Bill envisages to establish, and as that organisation was not there-as the lawyers have their Bar Council or the doctors have their Medical Council the engineers were not working with a discipline and they were not working within the ambit of certain ethical limits and ethical discipline. So, this particular organisation will lay ethical discipline, rules of procedure and various other things and it will regulate the engineering profession in the best way so that they can be useful to the country and the people. As this is a non-controversial Bill, I just opposed this because I wanted to hear the Minister concerned and he has made a small statement, With these words I thank you". 7. From the above debates in the National Assembly, it would appear that the object of introducing the Engineering Council Bill of 1975 was to bring the engineering profession on the same line and make it subject to similar check and cpntrol as are applicable to the Medical and legal profession, by creating an Engineering Council in line with the Medical Council and the Bar Council. Ajmal Mian, CJ, (as he then was) in his judgment compared the provisions of the Act with the provisions of Legal Practitioners' Act and observed that the provisions of the Legal Practitioners' Act are applicable only to the practising advocates and are not extended to persons having legal qualification who are employed in Statutory Corporations, and other Departments though they may be tendering legal advices in course of their such employment. The observations of Ajmal Mian, C.J., appear to be in accord with the objects of the Act. I am therefore, of the view, that merely because a person possesses an engineering qualification and is employed on a job which requires engineering skill does not mean that he must be registered under the Act. Section 27 of the Act which provides for punishment for violation of the provisions of the Act reads as follows :- "27. Penalties and procedure. --(1) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues. After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with the fine which may extend to ten thousand rupees, or with both. (2) Whoever wilfully procures or attempts to procure himself or itself to be registered under this Act as a professional engineer or consulting engineer by making or producing or causing to be made or produced any false or fraudulent representation or declaration, either orally or in writing, and any person who assists him therein shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (3) Whoever falsely pretends to be registered under this Act, or not being registered under this Act, uses with his name or title any words or letters representing that he is so registered, irrespective of whether any person is actually deceived by such pretence or representation or not, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (5) No person undertaking any professional engineering work shall, unless he is reigstered under this Act, be entitled to recover before any Court or other authority any sum of money for services rendered in such work. (6) No Court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of, the Council. (7) No- Court inferior to that of a Magistrate of the first class shall try any offence punishable under this Act". A careful reading of Sub-sections (1) and (2) of Section 27 of the Act will show that the penalties prescribed in the section are attracted only against those persons who are not registered under the Act but ndertake any professional engineer work as defined in the Act. Similarly, the person who employs a person who is not registered under the Act, on a professional engineer work, is equally liable for punishment under the Act. The above provisions are wide enough to include the cases of those persons who may be employed in any private or Governmental organisation and are called upon to undertake any professional engineer work. The provisions of the Act, regarding registration of professional engineer and consulting engineer therefore, in my view, would not be applicable to the persons serving as engineer with the Railways, as in course of their such employment they neither act as 'professional engineer' nor as consulting engineer'. However, if such persons undertake any professional engineer work as defined under the Act, then the provisions regarding registration under the Act will be attracted and they could also be punished in accordance with the provision of Section 27 of the Act for violating the provisions of the Act.The reference is, accordingly, decided. Ajmal Mian, CJ. (as he then was)-(l) The petitioners, who are 12 in number, are holding posts of Assistant Executive Engineers (Grade-17) in Pakistan Railways (hereinafter referred to as the Railways). Respondent No.4 to 10 are holding positions as Executive/Divisional Engineers (Grade-18) in the Railways, whereas Respondents No.ll to 34 are holding posts of Assistant Executive Engineers (Grade-17) in the Railways and are also claiming promotion to the posts of Executive/Divisional Engineer (Grade-18). 2. It is the case of the petitioners that the above Respondents No.4 to 34 hold diplomas from various institutions and therefore, are not professional engineers hi terms of clause (/') of Section 2 of the Pakistan Engineering Council Act, 1975 (Act V of 1976), (hereinafter referred to as the Act), and hence they are not entitled to undertake any professional engineering work as defined in clause (k) of Section 2 of the Act. It is also the case of the petitioners that the matter has been taken up by the petitioners with Respondent No.l, i.e. the Government of Pakistan, through the Secretary/Chairman, Ministry of Railways, Islamabad, Respondent No.2, the General Manager Pakistan Railways, Lahore and Respondent No.3, the Pakistan Engineering Council, which has been constituted under the Act, but inspite of the petitioners' efforts and directive of Respondent No.l, the above Respondent No.4 to 34 continued to hold the posts of professional engineers in violation of the provisions of the Act. The petitioners, on the basis of the above averments, have prayed for the following reliefs :- "(a) Declare that professional engineering work can only be carried out by professional engineers within the meaning of the said terms as used in the Pakistan Engineering Council Act, 1975. (ft) Declare that the Respondents No.4 to 34 are not entitled to undertake any professional engineering work. Declare that the Respondents No.l to 3 are not entitled to appoint the Respondents 4 to 34 to any post involving the discharge of professional engineering work including, in particular, to the appointment of posts as Executive and/or Assistant Executive Engineers, Direct the Respondents 1 to 2 not to appoint any other person apart from a professional engineer to any post involving the execution of professional engineering work viz. Assistant or Executive Engineer and restrain the Respondents No.4 to 34 from carrying on or discharging any professional engineering works. (e) Such other relief as may be deemed appropriate by this Honourable Court. (/) Costs of the petitions". 3. Respondents No.l and 2 have filed parawise comments duly verified on oath, wherein they have raised certain preliminary objections as to the maintainability of the above petition. It has been pointed out that Respondents No.4, 5, 6, 9, 13, 15, and 34 have retired. It has also been pointed out that Respondents No.7, 8 and 10 have been regularly promoted against the B.S.-18 posts on the basis of their seniority and whereas Respondents No.ll, 12,14 and 17 have not been promoted, but have been posted to look alter the work of higher posts in their own pay scales. It has further been.pointed out that petitioner No.l has left Pakistan Railways. Reference has also been made to the various circulars in reply to the contents of the petition, whereby from time to time the instructions were issued by Respondent No.l as to the ratio of promotion of Diploma-holders in B.S.-17 etc. 4. Most of the private respondents were represented by M/s. Aitzaz Ahsan and associates, but they have not filed any counter affidavit or written comments, nor on their behalf any one was present on the dates when the above case was argued. 5. In support of the above petition Mr.Khalid Anwar, learned counsel for the petitioners, has vehemently contended that in view of the various provisions contained in the Act, the private respondents cannot be assigned by the Railways professional engineering work as defined in clause (k) of Section 2 of the Act. 6. Mr.Naseem Farooqui, who has appeared for Respondent No.3, also supported the submission of the learned counsel for the petitioners and submitted in reply to the objection of Mr.Fazal-e-Hussain, learned counsel for Respondents No.l and 2, that the petition was not maintainable in view of Article 212 of the Constitution, that under Article 199 (1) (b) (ii) of the Constitution the above petition is competent for the relief of writ of quo-warranto. 7. On the other hand Mr.Fazal-e-Hussain, learned counsel for Respondents No.l and 2, has raised following preliminary objections :- (/) That since the petitioners and the private respoadents are civil servants, the dispute inter-se between them cannot be subject matter of a constitutional petition, as it is barred by Article-212 of the Constitituion. (//) That the petition is bad for non-joinder of the Government of Pakistan's Establishment Division which framed the Rules as to the promotion of the Railway's Employees. (hi) That the petition has become defective because of the retirement of petitioner Np.l and Respondents No.4, 5,6, 9,13,15 and 34. On merits his submission was that the Act is applicable to professional Engineers and not to the persons working in the various Departments of the Government. 8. We may take up first the question, whether the above petition is barred by Article-212 of the Constitution. In support of his above submission, Mr Jazal-e-Hussain has referred to the following unreported orders passed by the learned Single Judges of the Lahore High Court:- s.no. Writ Petition No. & Parties. Date of order. Name of the learned Judge. i. W.P.No.5409/84 30.3.1985 A.S. Salam, J. . 2. W.P.No.400/85 30.3.1985 A.S. Salam, J. 3. W.P. No.220/84 5.7.1984 Akhtar Hassan, J. 4. W.P.No.2012/87 21.6.1987 FalakSher.J. 9. The above first petition was filed by the Diploma-holders in engineering on the ground that they were not considered for promotion alongwith Degreeholders in engineering. The above petition was dismissed in limine by A.S.Salam, J. (as his Lordship then was) and inter-alia, it was observed that Article-212 of the Constitution barred the petition. In the second petition the seniority list prepared in pursuance of an undertaking given by the Railways in earlier petition namely W.P. No.2881/1984 was impugned. The petition was dismissed in limine by A.S.Salam, J. inter-alia, on the ground that if the petitioners had any grievance, they could file an appeal before the Service Tribunal. The third petition related to the employees of C.DA. The petitioners were the Graduates in Engineering and their grievance was that the respondents, who were Diploma-holders in engineering were promoted to B.S.-18. The petition was dismissed in limine by Akhtar Hassan, J. on the ground that the remedy of such grievance might not be a writ out-right, but other avenues had first to be exhausted. The fourth petition was filed by the Diploma-holders in engineering working in the Railways. Then" grievance was that the policy of promotion framed by the Ministry of Railways, Government of Pakistan contained in Ministry's letter dated 23.1987 stipulated that no promotion to be made in the posts of B.S.-18 of the Diploma-holders. The petition was dismissed in limine on merits by Falak Sher, J. 10. On the other hand M/s. Khalid Anwar and Naseem Farooqui have placed on record an unreported order dated 18.12.1988 passed by Irshad Hassan Khan, J. of Lahore High Court in Writ Petition No.4951/1988. The above petition was filed by the petitioners working in the Railways, who were holding engineering Degree against the Diploma-holders. The learned Single Judge, while disposing of application for stay, inter-alia, observed that the grievance of the petitioners is in the nature of quo-warranto, which the Court can entertain notwithstanding the bar contained in Article-212 of the Constitution. An inter­locutory injunction was also granted restraining the official respondents from promoting any Diploma-holder against the posts involving the professional engineering work contrary to the provisions of the Act. 11. In my view, the question whether a constitutional petition filed by a civil servant is barred by Article-212 of the Constitution, will depend on the facts of each case. If the controversy in the petition relates to the terms and conditions of persons, who are or have been in the service of Pakistan or, if it relates to disciplinary matters of such persons, the petition would be barred by Article-212, but if the controversy/dispute does not touch upon the terms and conditions or disciplinary matters of present or past civil servant, a writ petition may be competent. If the petitioners' case is founded on the ground that the private respondents have been assigned some work or their names being considered for promotion in violation of the terms of their service, the petition would be barred, but if they solely rely on the provisions of the Act, their petition may not be barred. Mr.Fazal-e-Hussain, lerrned counsel for Respondents Nq.l and 2 has referred to the following cases in order to support his above objection :- (/) M.Yamin Qureshi v. Islamic Republic of Pakistan and another (P.L.D. 1980 S.C. 22), (ii) Abdul Ban v. Government of Pakistan and 2 others (P.L.D. 1981 Kar.290), (Hi) Dr. Abdus Sattar Babar v. Pakistan, through Secretary, Establishment Division, and another (1984 S.C.M.R. 1178), (iv) Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q. and another (1985 S.C.M.R. 63), (v) Imdad AH Khan V.Pakistan and another (P.LJ. 1986 S.C. 185), (vi) Muhammad Aslam Khan v. Secretary, Ministry of Defence and others (1986 S.C.M.R. 283), (vii) Ch. Nazar Muhammad and another v. Government of Punjab and 38 others (1986 S.C.M.R. 68), (via) Muhammad Umar Malik and others v. Federal Service Tribunal and others (P.LJ. 1987 S.C. 166), (ix) Ch. Muhammad Insha UUah and others v. Chief Conservator of Forests (P&E) Punjab and others (PXJ. 1988 S.C. 122). -.13. It is not necessary to deal with the above cited cases in detail It wiD suffice to observe, that the consistent view of the superior Courts has been that a matter Qr dispute in relation to a civil servant which is covered by Article-212 (1) known sue and be sued. It also provides the composition of the Council by providing that the Council shall be composed of all persons whose names may hereafter be entered in the Register so long as they continue to have their names borne on the Register. It also provides the appointment of a Chairman, ten members, being engineers, of whom two each shall have to be nominated by the Federal or Provincial Government, one member being an engineer to be nominated by each University. 17. Section 4 deals with the election of the Chairman and Vice Chairman, whereas Section 5 provides the holding of annual general meeting of the Council. Section 6 deals with extra-ordinary general meeting of the Council. It may also be pointed that Section 7 deals with the procedure of the general and extra-ordinary meetings. It may also be noticed that Section 8 deals with the functions of the Council, which inter-alia, includes maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers, recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers, removal of names from the Register and restoration to the Register of names which have been removed, laying down of standards of conduct for the members, safe-guarding the interest of the members, promotion or reform of engineering profession, management of funds and properties of the Council, promotion of engineering education and review of courses of studies in consultation with the Universities, levy and collection of fees from applicants for registration or temporary licences and members, exercise of such disciplinary powers over the members and servants of the Council as may be prescribed; formation of such committees as may be prescribed and performance of all other functions connected with, or ancillary or incidental to the aforesaid functions. 18. It may be pointed out that Section 9 deals with the constitution of an executive committee and its functions, whereas Section 10 provides for recognition of engineering qualifications granted by institutions in Pakistan. Whereas Section 11 deals with the recognition of foreign engineering qualifications. It may also be noticed that Section 12 provides for grant of temporary licences, whereas Section 13 empowers the Council to require information as to the courses of studies and examination from every engineering institution in Pakistan which grants a recognised engineering qualification. It may also be pointed out that Section 14 empowers the Council to appoint such number of inspectors as it may deem requisite to attend at any or all of the examinations held by the engineering institutions in Pakistan. Whereas Section 15 deals with the withdrawal of recognition. It may also be pointed out that Section 16 provides the maintenance of Register in prescribed manner containing the names and other particulars of persons possessing recognised engineering qualifications, whose applications for registration as professional engineers and consulting engineers are from time to time granted by the Council. 19. It may further be noticed that Section 17 deals with the registration and "27. Penalties and procedure.~(l) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months-, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues. (2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. (3) Whoever wilfully procures or attempts to procure himself or itself to be registered under this Act as a professional engineer or consulting engineer by making or producing or causing to be made or produced any false or fraudulent representation or declaration, either orally or in writing, and any person who assists him therein shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (4) Whoever falsely pretends to be registered under this Act, or not being registered under this Act, uses with his name or title any words or letters representing that he is so registered, irrespective of whether any person is actually deceived by- such pretence or representation or not, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (5) No person undertaking any professional engineering work shall unless he is registered under this Act, be entitled to recover before any Court'or other authority any sum of money for services rendered in such work. (6) No Court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of, the Council. (7) No Court inferior to that of a Magistrate of the first class shall try any offence punishable under this Act". (8) 26. A perusal of the above section indicates that after the notified date, whoever undertakes any professional engineering work, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months or with a fine which may extend to ten thousand rupees or with both and in case of continuing offence with a further fine which may extend to two hundred rupees for every day after the first during which offence continues. 27. It may also be noticed that after the appointed date, whoever employs for any professional engineering work, any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both, and on a second or subsequent conviction, with prisonment or a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both. 28. It may also be noticed that sub-section (3) of Section 27 deals with the cases where a person wilfully procures or attempt to procure himself or itself as a professional engineer or consulting engineer on false or fraudulent representation or declaration etc. It may also be pointed out that sub-section (5) provides that no person undertaking any professional engineering work shall unless he is registered under this Act be entitled to recover before any Court or other authority any sum of money for services rendered in such work. Whereas sub-section (6) provides that no Court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of the Council. 29. The other provisions of the Act namely, Sections 28, 29, 30 and 31 deal with the power to exempt from the operation of the provisions of Section 27, constitution of the Commission of Inquiry by the Federal overnment and repeal of the Pakistan Engineering Council Ordinance, 1975 whereas the first Schedule and second Schedule contain the names of the Universities and the recognized academic qualifications. 30. Having referred to the various provisions of the Act, the question, which requires consideration is, as to whether the provisions of the Act are applicable only to professional Engineers and professional consultants, who are in practice or do they also apply to the persons working in the Government Departments, autonomous bodies, local authorities and private firms and companies or employed by the private persons as paid employees etc. I am inclined to hold that the provisions of the Act are applicable only to the professional Engineers and consulting Engineers, who are in practice. My reasons for holding so inter alia are as follows :- (/) That though preamble to an Act does not control the provisions of the Act, but reference can be made to it to ascertain the legislative intendment in case of any doubt/ambiguity. In the instant case the object of he Act given in the pramble is "to make provision for regulation of engineering profession". (//) That the definition of "professional Engineer" as given in clause (g) of Section 2 of the Act provides two preconditions, namely, (a) the person should hold a recognized engineering qualification, and (b) he should be registered as a professional engineer with the Council.The word engineer is prefixed by the word professional, which has a definite connotation and is used when a person is in practice of a particular profession. (Hi) The term "professional engineering work" as defined in clause (&) of Section 2 of the Act refers to the services/works which are normally rendered by a professional engineer, who is in practice, namely, giving of professional advice and opinions. The other services/works mentioned after the above two services/works are to be read in conjunction with them, otherwise it would lead to absurdity. I may give an illustration. Suppose A for his private residential building employs B a diplomaholder in engineering to take weekly measurements of the work'executed. The work, measurements and the residential building both have been mentioned in the above clause (k). If we were to read the words professional advice and opinion disconjunctively with the word 'measurement', it must follow that A and B have rendered themselves liable to be prosecuted under sub-sections (1) and (2) of Section 27 of the Act referred to hereinabove, which could not have been the intention of the law maker. (iv) That Section 8 of the Act, which defines the functions of the Council inter alia provides for the maintenance of a Register in terms of Section 16 of the Act "of persons qualified to practice as professional engineers and professional consultants and not persons in service. (v) That Section 12 of the Act empowers the Executive Committee to grant to any person domiciled outside Pakistan, who does not hold any recognized engineering qualification but, who holds a diploma in engineering, or a degree in applied sciences or an equivalent diploma from the institution recognized by the Council etc. a temporary licence for a specific project to work as an associate of a professional engineer, but the latter will have to sign and seal the plans and specifications for the project. (vi) That Section 16 provides for the maintenance of a register and for enrolment of professional engineers and professional consultants, whereas Section 17 of the Act provides for removal of the name of a professional engineer or professional consultant and de-enrolment. It may be observed that sub-section (2) of Section 17 of the Act empowers the Enrolment Committee in its discretion to refuse to permit the registration of any person or to direct the removal altogether or for a specified period from the Register the name of any registered professional engineer or consulting engineer, who or which has been companies and firms which are engaged in the construction work and which employ staff, some of them may not possess of degree in engineering. If I were to accept the contention of the learned counsel for the petitioner and learned counsel for respondent No.3, it would mean that after the enforcement of the Act the members of the staff working either in the Government departments or other Government organizations or in private organisations (whose number throughout Pakistan may be in millions), had become disqualified from discharging their functions and the employers as well as the employees had become liable to be prosecuted under Section 27 of the Act. This could not have been the intention of the law maker. 32, The use of the words, "professional Engineer" and "Professional Consultants" with the words "in-practice" in the various sections of the Act, highlighted hereinabove, bare out that the Act is intended to regulate the working of the professional engineers and consultants, who are engaged in practice. It may be pertinent to refer to the meaning of the words "practice" and "profession" given in some of the dictionaries. (a) Venkataramaiya's Law Lexicon with Legal Maxims Second Edition, page 1867. "Practice" What the expression "practice" means is duly laid down by the Supreme Court to include both acting and pleading. See Aswini Kumar Ghose v. Arabinda Bose, 1952 S.C. 369-State of Madhya Pradesh v. Lohra Maghe Urson (1975 Jab. L.J. 687 at p- 687". The phrase "practising as a solicitor" connotes a person who is a principal; it connotes a person who has clients; it connotes a person, in short who has practice. The expresson is not apt to describe the managing clerk of a solicitor who is acting as the servant of another who is a practising solicitor.~Way v. Bishop (1928) Ch. 647 at p. 660". (b) Stroud's Judicial Dictionary, Fourth Edition. "(5) Solicitor practising in the Court" (Sheriff Courts) (Scotland) Act 1907 (c.51) Sched. 1,152), see Hunter, 1959 S.L.T. (Sh.Ct) 75; Sh Ct. Rep 124. (6) To "practise" as a SURGEON": see Rawlinson v. Clarke, 14 LJ Ex. 364. See further Robertson v. Buchanan, 90 L.T. 390 cited SET UP". (c) Words and Phrases Permanent Edition Vol.33. PRACTICE A PROFESSION "That one making survey for his father, who was owner of property, had no licence under C.L.S. 46% to practice surveying, did not render his testimony as to location of corner incompetent; "to practice a profession" being to hold one's self out as following it, as calling or one's usual business Beaver Brook Resort Co. V. Stevens, 230 p. 121,122,76 Colo. 133". •Venkataramaiya's Law Lexicon with Legal Maxims Second Edition, Page 1921."Profession" as defined in the concise Oxford Dictionary means, among other things, vocation, calling, specially one that involves some branch of learning or science, as the learned profession (divinity, law, medicine). A profession is normally associated with the exercise of intellectual or technical equipment resulting from learning or science. A l haricrcd Accountant is approached by his client for advice and guidance in his prccli-i «i:h regard to trade, business or industry, and it is expected that the ,±juiere«i accountant to the best of his ability would be in a position to help him in his difficulties and not betray the confidence that is placed in him. This is one of :he elements which should be sought when considering whether a particular rcr>:a Ls praciising a profession or is merely doing a business". The above quoted definitions of the terms "practice" and "profession" support the conclusion, which I am inclined to take. 33. The effect of the Act is that no one can practice as a professional engineer or as a professional consultant without getting himself registered with the Council or without having a temporary licence in terms of Section 12 of the Act and that no one, including the departments and organizations mentioned in clause (/) of Section 2 of the Act (which defines the term "engineering public organization"), can employ any person as a professional engineer or professional consultant unless his name is borne on the register of the Council maintained under Section 16. lill not be out of context to refer to the Legal Practitioners & Bar C-:-rcili Ac:. 19"? iAct No.XXXV of 1973), which is in part materia with the present Act. the object of which given in the preamble is to re-enact the law relating to Legal Practitioners and Bar Councils and to provide for certain incidental and ancillary matters. Section 13 of the Bar Councils Act provides the functions of the Council. The functions of the Pakistan Bar Council are akin to the functions of the Council given in Section 8 of the Act. Whereas Section 22 of the Bar Councils Act provides that save as otherwise provided in the Act, no person shall be entitled to practice the profession of law unless he is an advocate. Similar provisions are contained in the Provincial Bar Councils Act. It is a matter of common knowledge that there are thousands of law graduates, who are working in various Government and private organizations as Labour Officers or Law Officers and their functions include legal work but they are not amenable to the Bar Councils Act for the reason that they are not practicing as advocates and they are not | enrolled as Advocates. The position of the engineers, who are not practicing as professional engineers and professional consultants is similar to that of law grauduates, who are not in practice. 35. In my view the question as to what should be the basic qualification for holding a particular post in a Government department or in any other organization, is a matter to be regulated by the relevant recrutiment or promotion rules and not by the provisions of th; Act. The petitioner's claim that the private respondents are not entitled to hold Grade-17 or Grade-18 pests founded on the provisions of the Act is misconceived. I am, therefore, of the view that the above petition has no merits and hence I would dismiss it, but there would be no o-der as to costs. Qaiser Ahmad Hamidi, J.--I have had the advantage of reading the elaborate judgment of my lord, the Chief Justice. With profound respect to him I am unable to share the view taken by him. The facts of the case have een adequately set out in the judgment of my lord, as also its history. I can refer to these only at the risk of repetition. ' 2. The question that has been raised in this petition relates to interpretation of terms "professional engineer" and "professional engineering work" used in clause (/) and (k) of Section 2 of the Pakistan Engineering Council Act, 1975 (hereinafter referred to as the Act). The professional engineer means a person who holds a recognised engineering qualification and is registered as a professional engineer. Under Clause (1) of Section 2 of the Act, "recognised engineering qualification" means any of the qualifications included in the First Schedule or the Second Schedule. Section 16 of the Act deals with registeration of professional engineer. Under clause (A:) of Section 2 of the Act "professional engineering work" means the giving of professional advice and opinions, the making of measurements and lay outs, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of— (/) railways, aerodromes, bridges, tunnels and metalled roads; (//) dams, canals, harbours, light houses; (Hi) works of an electrical, mechanical, hydraulic, communication aeronautical power enginerring, geological or mining character; (iv) waterworks, sewers, filtration, purification and incinerator works; (v) residential and non-residential buildings, including foundations, framework and electrical and mechanical system thereof; (v/) structures accessory to engineering works and intended to house them; and (vii) any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this clause. The petitioners who hold B.E./B.S.C. (Civil Engineering) degree from recognized institutions in Pakistan are thus "professional engineers". The respondent No. 4 to 34, who are holding positions as Executive/Divisional/Assistant Executive Engineers in Pakistan Railways are only diploma holders, and as such they are not professional engineers within the meanings of clause (j) of Section 2 of the Act. According to he petitioners there is violation of the provisions of Section 27 of the Act and the Pakistan Railways are not competent to entrust respondents No.4 to 34 the duties and/or responsibilities which can only be discharged by professional engineers. 3. The contention regarding the ouster of jurisdiction of this Court is based upon the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). The argument is that a Service Tribunal constituted under Section 3 of the Service Tribunals Act, 1973, in respect of matters relating to terms and conditions of service and the matters ancillary thereto, is competent to adjudicate upon such disputes, and its jurisdiction is exclusive in such matters in view of Article 212 of the Constitution. To support this contention learned counsel for respondents No.l and 2, has referred to a number of authorities, but I do not find it necessary to discuss these authorities, because it is a question of fact in each case, whether the issue relates to terms and conditions of a civil servant. According to Section 3 of the Civil Servants Act, 1973, the terms and conditions of a civil servant shall be such as are provided for in the Act and the rules made thereunder. A bare reading.of the prayer made by the petitioners would show that the point in issue is beyond the scope ot the authority of Service Tribunal constituted under Section 3 of the Service Tribunals Act, 1973. A declaration of the nature as prayed can only be granted in constitutional jurisdiction. 4. Reversing to Section 27 of the Act, it will be observed that any person who undertakes any professional engineering work shall, if his name is not for the time being borne on the register maintained by the Pakistan Engineering Council as a "professional engineer" be punished for this violation and so his employer who knowingly employs such person. The policy and purpose of a given measure may be deduced from the long title and the preamble thereof. The preamble is a good means of finding out its meaning and key to its understanding. The Pakistan Engineering Council Act, 1975, was enacted to make provision for regulation of engineering profession and for that purpose to constitute an Engineering Council. By this enactment the engineers, whether employed in Government institution or not, became a self organized community with their fate in their own hands under the Pakistan Engineering Council Act, 1975. The Medical and Dental Council Ordinance, 1962, and the Legal Practitioners and Bar Councils Act, 1973, are parallel laws, meant to serve a check upon medical and legal practitioners. 6. According to Pakistan Engineering Council Act, 1975, only registered professional and consulting engineers are authorised to undertake professional engineering works. The copy of letter sent by Chairman Pakistan Engineering Council to Government of Punjab dated 2-6-1977, further makes it clear that the Federal Government had announced 30th June, 1977, to be the last date by which all professional and consulting engineers shall get themselves registered with the Pakistan Engineering Council. It appears that due to pressure of diploma holders who are not registered professional engineers, there has been flagrant violation of the provisions of the Act. Even in relating to the posts of Assistant Executive Engineers (B.P.S.-17) regarding which a decision was taken by the Government that diploma holders could be appointed against such posts, the same lacks the warrant of law and is in the nature of concession granted to unqualified persons. The appointment of the diploma holders against senior posts of Pakistan Railways in disregard of the provisions of the Act, is, therefore, illegal on the face of it. It may be noted that the responsibilities of the engineers in Pakistan Railways are more onerous. They relate to proper functioning of the railways and the construction, design, supervision and maintenance of engineering works which affect the safety of public at large. 7. There is no inherent power in the executive, except what has been vested in it by law, and that law is the source of power and duty. The structure of the machinery of • Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed. From the all pervading presence of law, as the sole source of governmental powers and duties there follows the consequence that the existence or non-existence of a power or duty is 1 a matter of law and not of act, and as such be determined by reference to some enactment or reported case. Consequently there are no powers or duties inseparably annexed to the Government. (See Haji Ghulam Sabir vs. Pan Allotment Committee and another, reported in P.L.D. 1967 Dacca 607). 8. In this view of the matter, the action of Pakistan Railways is in breach of the statutory provisions of the Act and Pakistan Railways are not competent to enturst to respondents No.4 to 34 the duties and/responsibilities, which can only be discharged by professional engineers registered under the Act. The petition is, therefore, allowed and it is declared that the professional engineering work can only be carried out by professional engineers within the meaning and term as used in the Pakistan Engineering Council Act, 1975, and action of Pakistan Railways in this behalf is without any legal authority. The parties are, however, left to bear j their own costs. (MBC) (Approved for reporting) Petition dismisedfjer majority.

PLJ 1992 Karachi 37 PLJ 1992 Karachi 37 Present: ALLAH DlNO G. MEMON, J Haji MUHAMMAD JAVED-Petitioner versus GOVERNMENT OF SINDH, THROUGH ADDL CHIEF SECRETARY and another-Respondents Const. Petition No. 725 of 1991, accepted on 18.7.1991. Sindh Local Government Ordinance, 1979 (XII of 1979)-- —Ss.56,57&58--Town Committee-Supercession of~Challenge to~No period has been mentioned in notification for which Town Committee has been superceded—No nquiry was held and objections were not invited before issuing impugned notification—No show cause notice was issued to Members of Council nor petitioner was heard efore issuing impugned notification- Held: Impugned notification superseding Town Committee Mirpur Mathelo, was passed without any lawful authority and is of no legal ffect-Petition accepted. [Pp.41&42]A,B&C Mr. Abdul Ghani Shaikh, Advocate for Petitioner. Mr. S.Sarfraz Ahmed, Addl A.G. for Respondent No.l. Mr. Paryaram, Waswani, Advocate for Respondent No.2. Date of hearing: 18.7.1991. judgment By this petition, the peitioner has challenged the Notification No. PA/OSCPHE &RG)/90/17239, issued on 1-11-1990 by respondent No. 1, superceding the Town Committee Mirpur Mathelo, District Sukkur, and appointing respondent No. 2 to perform functions of the Committee under Section 58 of the Sindh Local Government Ordinance, 1979. The. facts giving rise to the present petition are that according to the peititioner he was elected as Chairman of Town Committee Mirpur Mathelo in the year 1987. That committee/council was functioning in accordance with rules and regulations of the Sindh Local Government Ordinance. That the Town Committee has a Town Officer appointed, by the Local Government besides the other staff. That the business of the Council was being conducted in accordance with rules to the knowledge of Town Officer and also the Local Government that every year the budget was prepared by the Council and all the expenditure was being incurred within the budget provisions and the Government never objected to any of the expenditure or the resolution. That in the month of August, 1990, the petitioner announced his affiliation with Pakistan Peoples Party which annoyed the care­ taker Government, and the Sindh Government decided to suspend the Council of the Town Committee Mirpur Mathelo. That the accounts of the council were audited for the financial year 1988-89 under Section 55 of Sindh Local Government Ordinance, 1979, and the audit report alleged financial irregularities which were yet to be proved in accordance with the procedure provided under Section 55 of the Ordinance. That the Government could take action under Section 58 of the Ordinance, only after compliance of Sections 56, 57 of the Sindh Local Government Ordinance. That no inquiry was held as envisaged by law nor any objections were invitied from the Members of the council. That no show cause notice was issued to the council and, therefore, the action was against the principles of natural justice, fundamental rights, and the mandatory provisions of law, and,-as such, the present petition was filed. It may be stated here that initially Assistant Commissioner was appointed to carry on functions of the Council but later on respondent No. 2 has been appointed as Administrator of the Town Committee, Mirpur Mathelo, in place of Assistant Commissioner, vide notification dated 2nd December, 1990, and, therefore, the petition was amended and Nawab Khan Bozdar was joined as respondent No. 2. 2. The parawise comments were called which have been filed wherein it has been admitted that the petitioner was elected as Chairman. It is further stated that in view of the irregularities pointed out by the local committee as well as director Local Audit, it is presumed that the council was not incurring expenditure within the budgetary provision. In reply to para 19 of the petition, wherein the petitioner had alleged that no inquiry was held as envisaged by Section 56 of the Ordinance, nor some Officer or authority was appointed to hold inquiry. It has been stayed that considerable irregularities were committed by the Chairman/Council as pointed out by Director Local Fund Audit and the Local Council Town Committee. In para 21 of the petition it was alleged that no objections were invited nor any explanation was sought from any members of the council by the Government, and the reply is "no comments". 3. We have heard Mr. Abdul Ghani Shaikh, learned counsel appearing for the petitioner, Mr. S. Sarfraz Ahmed, learned Additional Advocate General appearing for the Respondent No.l, and Mr. Paryaram Waswani, learned counsel appearing for the respondent No. 2. 4. It was contended by Mr. Abdul Ghani Shaikh learned counsel appearing for the petitioner that no inquiry was held by respondent No. 1 as envisaged by Sections 56, 57, 58 of the Sindh Local Government Ordinance, 1979 and, therefore, the action taken by the respondents was mala fide, illegal and without jurisdiction. It was further contended that no show-cause notice was issued to Members of the council nor any objections were invited before issuing the impugned notification and, therefore, the notification was against principles of natural justice, fundamental rights and mandatory provisions of law and, therefore, the notification was liable to be set aside. 5. Mr. S. Sarfraz Ahmed, learned Additional Advocate General, appearing for the respondent No. 1 has contended that several irregularities were reported during audit of accounts of the Town Committee as pointed by the Local Accounts Committee as well as Director-Local Fund Audit, hence no futher inquiry was necessary. That the notification issued by respondent No. 1 was issued in accordance with provisions of Section 58 of the Ordinance and, therefore, no irregularity was committed by respondent No. 1. 6. Mr. Paryaram Waswani, learned counsel appearing for the respondent No. 2 has contended that it was for the petitioner to show that action taken by respondent No. 1 was illegal and without jurisdiction. 7. In view of the legal objections raised by Mr. Abdul Ghani Shaikh, learned counsel appearing for the petitioner, it will be appropriate to refer to Sections 56, 57 and 58 of the Sindh Local Government Ordinance, 1979, which read as under:- "56 (1) Government may, suo moto or on application made to it by any persion, cause an enquiry to be made by such officer or authority as may be appointed by it in this behalf, into the affaris of a council generally, or into any particular matter concerning that council, and take such remedial measures as may be warranted by the findings of such enquiry. (2) Such officer shall, for the purpose of the enquiry, have the powers of a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), to take evidence and to compel the attendance of witnesses and the production of documents. 57. (1) If after such enquiry as may be necessary, Government is notified that a council is not able to run a particular department or institution efficiently it may, by notification in the official Gazette suspend the authority of the council over such department or institution for such period as may be specified in the order. (2) Where the authority of a council is suspended under sub section (1), Government may itself takes over the management of such department or institution or make such other arrangements as it thinks fit. (3) The expenses for management under sub-section (2) as may be determined by Government shall be borne by the council and the budget of the council shall be deemed to have been revised to that extent. 58. (1) If, after such enquiry may be necessary, Government is of the opinion that a council- (a) is unable to discharge or persistently fails in discharging its duties or; (b) is unable to administer into affairs or meet its financial obligations; or (c) otherwise exceeds or abuses its powers,it may, after considering the objections from the council by notification in the official Gazette, declare the council to be superceded for a period not exceeding six months. (2) On the publication of a notification under subsection (1)- (a) the person holding the office of the Mayor, Deputy Mayor, Chairman or Vice Chairman or member shall cease to hold such office; (b) the functions of the council shall during the period of supersession be performed by such person or authority as is appointed by Government until the council reconstituted under subsection (3) assumes office; (c) all funds and property of the council shall, during the period of supersession, vest in Government for the purposes of this Ordinance and be expended accordingly. (3) On or before the expiry of the period of supersession, the counsel shall be re-constituted in accordance with the provisions of this Ordinance. (Provided that where the period of suspension of the council is expiring within four months of the expiry of its normal term of office, the council shall not be re-constituted for the residual period of the term and the consequences of supersession under sub-section (2) shall continue to operate)". 7. The bare reading of the above provisions of the Ordinance clearly shows that whenever the Government propos s to suspend the authority of the council over any department or any institution under Section 57 or to supersede council under Section 58, it is obligatory upon the Government to hold an inquiry as required by sub-section (1) of Section 56 or subsection (1) of Section 58 as the case may be. These are the mandatory provisions of law and, therefore, before passing an order of suspension of the council, the same are to be complied with. It is also clear that supersession is not to exceed a period of six months. The impugned notification Anx. 'A' dated 1/11/1990 reads as under:-NOW, THEREFORE, in exercise of the powers conferred by Section 58 of the Sindh Local Government Ordinance, 1979, Government of Sindh are pleased:- (j) to declare that the Town Committee, Mirpur Mathelo, District Sukkur shall stand superseded with immediate effect; and (;'() to appoint the Assistant Commissioner, Mirpur Mathelo to perform the functions of the said counsil during the period of its supersession. ADDITIONAL CHIEF SECRETARY (LG) I 8. From the above notification, it is clear that the respondent No. 1, has failed to fix period for whcih the council had been superseded. Even it is not mentioned in the comments or the counter affidavit filed by respondent No. 2 that any inquiry was held or objections were invited as provided by sub-section (1) of .Section 56 or subsection (1) of Section 58 before impugned notification was issued. While hearing the above petition, specific question was put to Mr. S. Sarfraz Ahmed, learned Additional Advocate General appearing for respondent No. 1, as to whether any objections were invited and whether any inquiry was held before council was superseded, he replied that apart from the Audit report of Local Accounts Committee/and Director Local Fund Audit there is nothing to show that any objections were invited or any inquiry was held in accordance with

the provisions of section 58. 9. It was contended by the learned counsel appearing for the petitioner that I the petitioner was not heard nor he was served with any show cause notice before the council was superseded. There is nothing on record to show that any inquiry was held or any objection was invited or any show cause notice was issued to Members of the council before issuing impugned Notification and, therefore, there is considerable force in the contentions raised by Mr. Abdul Ghani Shaikh. 10. It will be appropriate to refer to the cae ofSyedAijaz Hussain Shirazi and 28 olhcra v. Secretaiy, Local Government and Rural Development Department, Lahore (1990 C.L.C. 230) wherein the order of suspension passed by the local government was challenged in a Writ Petition on the ground that the same was passed without holding any inquiry and without affording an opportunity of being heard to the petitioners, it was held that since the order was passed in voilation of principles of natural justice and without holding an inquiry, the order could not be sustained und the same was set aside. Reliance is also placed on unreported decision in C.P. No. D-1421 of 1990, decided on 9-5-1991, wherein supersession of Town Committee Sewhan, District Dadu, was challenged on the ground that the same was superseded without complying with the provisions of Sections 56, 57 and 58 of Sindh Local Government Ordinance 1979. It was contended on behalf of the petitioner that no inquiry was held nor objections were invited by the Government, even no Show Cause Notice was issued to the Members of the Council and therefore, the Notification issued by the Government superseding the Council was illegal. A Division Bench of this Court of which one of us namely, Allah Dino G. Memon, J.-was a member, after considering the above provisions came to the conclusion that the above provisions were mandatory and the impugned Notification was declared to be illegal, without jurisdiction and non-existent in the eye of law. It was further declared that the petitioner continues to be the Chairman of the Town Committee. In view of the above discussion, the above petition is allowed and the impugned Notification dated 01/11/1990 issued by respondent No. 1 superseding the Town Committee Mirpur Mathelo, District Sukkur, is declared to have been passed without any lawful authority and is of no legal effect. It is further declared that the petitioner continues to be the Chairman of the Town Committee, Mirpur Mathelo. The respondent No. 2 is restrained from interfering in the administration and affairs of the said Town Committee. However, looking to the circumstances of the case, we make no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Karachi 42 PLJ 1992 Karachi 42 Present: SYED ABDURRAHMAN, J ABRARUL HAQUE-Appellant versus Miss ASMA MUMTAZ-Respondent F.R.A. No. 629 of 1991, dismissed on 14.11.1991. Defence-- —Tenant—Defence of—Striking off--Challenge to—Delay in payment of rent admitted but request was made to condone delay in exercise of discretionary powers—Request is not justified—Explanation of tenant that delay occurred due to his illness, was not accepted by Controller-No medical certificate in proof of illness was produced-Held: Reasoning given by Controller and his refusal to condone delay are perfectly justified—Appeal dismissed. [P.43JA&B Mr. Habibullah Samo, Advocate for Appellant. Date of hearing: 14.11.1991. order Urgency application granted. (1) Granted subject to all just exceptions. (2) This appeal is directed against the order of 1st Senior Civil Judge and Rent Controller, Karachi (East) striking off the defence of the appellant under sub-section (2) of Section 16 of the Sindh Rented Premises Ordinance, 1979. It was alleged that the opponent had deposited rent for the month of October, 1989, two days after the last date for depositing of the rent. Besides, the rent for ecember, 1989 and January, 1990 was deposited as late as first week of March, 1990. Hence there was clear non-comliance of the order of deposit of tentative rent passed on 11-7-1984. Mr. Athar Saced, Advocate for Appellant. Counsel for respondent absent. Dale of hearing: 8.12.1991. judgment This F.R.A. is directed against the Judgment of Ist.Senior Judge and Rent Controller, East Karachi dated 2-4-1990, whereby he dismissed the ejectment application filed by he appellant against the Respondent 2. Appellant is the owner of House No.C-124/9, Malir Colony, Karachi.There are four shops on the ground floor of this house. Respondent is tenant of the appellant in respect of shop No.l. The monthly rent is Rs.400/-. The respondent had undertaken to vacate the shop after eleven months. In the Rent Note executed between the parlies on 15-11.-1987 it was also mentioned that the tenancy had started from 1-3-1987. Instead of vacating the shop on expiry of eleven months, as agreed, the Respondent started depositing rent with the Controller vide M.R.C. No.211/ 1988 without any notice or intimation to the appellant. The appellant, therefore, filed the ejectment application on the ground that the shop in question was required by him for his bonafide personal need. Prior to the filing of this application he had served a notice on the Respondent on 12-2-1989. The appellant had alleged that he wanted to extend his business for which he required the shop in question. According to him, he is running a shop of General Stores and Grocery in two shops each 10 ft. x 8ft. which are being used as godown by him and he requires the third shop which is in possession of the respondent as these two shops are too small for General Store and Grocery business. 3. The ejectment application was resisted by the Respondent. He filed a writlen-Slatcment. He admitted that he had agreed to vacate the premises after expiry of eleven months, but he did not comply with the Agreement. He started depositing the rent with the Controller directly. He has alleged that the appellant was already in possession of two shops and that he does not require the shop in possession of the respondent bonafidefy. The appellant had been pressing the respondent to enhance the rent to Rs.600/- per month and on his refusal to concede to the enhancement he has filed this false case. He has further lleged that recently two shops were rented out by the appellant to other tenants. 4. The learned Controller took up the issue of requirement of the shop in question for bonafide personal use and gave finding against the appellant and dismissed the application as shown above. 5. I have heard Mr. Athar Saeed, lea ned counsel for the appellant. Mr. . Raja Riaz, Advocate of the respondent is absent since 23-10-1991. Even today he is absent, although the case is being called since morning. By now it is 9.40.A.M. 6. From the perusal of the judgment of the learned Controller, it appears that she has based her finding against the bonafide need of appellant on the ground that he has not chosen to occupy the shop of his another tenant Wajeeh, who is prepared to vacate the same and that he has not made any application for site inspection to prove that the present accommodation in his possession is not sufficient for his need. It will be useful to reproduce the reasonings given by the learned Controller in her judgement, which reads as under:- "On the other hand the advocate for opponent has argued that the applicant is occupying three shops as he himself admitted that he is owner of four shops and two shops are in his possession and recently his tenant namely Wajih has already agreed to vacate the shop in his possession, therefore , if the applicant required the premises in question in good faith he should have asked his other tenants and particularly the tenant Wajih as he himself is prepared to vacate the same. The next arguments of the opponent's counsel are that the applicant has not shown his good faith nor he has made any application for site inspection proving that the present accommodation in his possession is not sufficient for his need." 7. The reasoning given by the learned Controller is not correct. By now it is a settled law (hat the landlord has discretion to choose anyone of the premises owned by him for his personal bonafide need. He cannot be compelled to accept the premises which he does not like. The landlord is also not required to make any application for inspection of the site and no adverse inference can be drawn against him if he has not made the same.On the contrary if the tenant challenged the bonafide requirement of the landlord, he could have made such an application. It was enough that the landlord stated his requirement in the Affidavit and stood the test of cross-examination, which was considered to be sufficient. Reference in this connection may be made to(l)/1984 CLC Kar.2213 (Habibur - Rekman vs. Mst. Nafccs-un-Nisa Begum), and (2) P.L.D. 1984 Kar. 14 (Rajab All vs. Darius B., Kandwalla and another). In 1983 C.L.C. Kar. 1653, (Ishaque vs. Haji Wali Mohammad), which is a decision of this Court, it has been held that landlord has prerogative and discretion to select premises of his choice where he has more than one house in the same urban area'In 1983 C.L.C. 2657 (Mohammad Shaft vs. Mohammad Adam Klian) that even when a landlord has other premises for his personal use in a locality, yet he has prerogative to choose a particular premises, if it is more suitable for his purpose. 8. lam, therefore, of the clear view that the finding of the learned Controller cannot be sustained. I, therefore, reverse the same and hold that the shop in the possession of the respondent is required by the appellant for his bonafide personal use. The appellant has made an application (C.MA.No. 1442/ 1991) complaining that the respondent has been defaulting in depositing the rent with the Controller in M.R,.C. No. 211/1988 regularly. He has produced certified copies of extracts from the ledger which show that on a number of occasions the respondent deposited the rent after the due date and has not deposited the rent whatsoever for the months of August, 1990, September, 1990, October 1990 and November,1990. The respondent has not filed any Counter-Affidavit, nor has explained this deposit. Under the circumstances, the respondent is not entitled to any leniency. therefore, accept the appeal and set aside the impugned order and direct I the respondent to vacate the premises in question forthwith. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Karachi 46 PLJ 1992 Karachi 46 Present: SYED ABDUR RAHMAN, J MUKHTAR HUSSAIN-Appellant versus MEHAR ELAHI and two others-Respondents F.R A. No.234 of 1989, dismissed on 25.11.1991 (i) Default-- — Tenant-Ejectment of~Order of-Challenge to~Default-Ground of— Appellant tendered rent for February and March, 1984 to respondents by money order whereas he tated that he had already paid rent for January, 1984 to previous landlord— He produced receipt in this respect which bears signature of previous landlady and printed umber-Finding of Rent Controller that appellant had not proved that he had paid rent to •previous landlady, is not correct— Held: There was no scope for controller to hold hat appellant was defaulter. [Pp.47&48]A (ii) Personal Need- - — Tenant-Ejectment of-Order of~Challenge to-Personal bonafide need-­ Ground of-By saying that shop is required for their personal bonafide use as Shariq Ilahi, son of espondent No.l will carry on business of merchandise therein, Respondent Nos.2 and 3 only intended to convey their no objection to requirement of Respondent No.l's sonellant has not been able to shake estimony of Respondent No. 1 on this point either by cross-examination or otherwise-Held: There is no justification for interfering with indings of Controller on point of personal bonafide need in favour of respondents- Appeal dismissed. [Pp.48&49]B,C&D Mr. Aziz Urfi, Advocate for Appellant. Mr. Rehmat Elahi and Miss Mumtaz Sultana, Advocates for Respondents. Date of hearing: 25.11.1991. judgment By this F.R A. the appellant has challenged the judgment of Ilnd Senior Civil Judge and Rent Controller, Karachi Central, dated 12-2-1989, whereby he directed the appellant to vacate the shop in question and deliver its possession to the respondent within 60 days. 2. The respondents had filed ejectment application against the appellant alleging that they had purchased the shop from its previous owner on 9-1-1984. They served the appellant with a notice under Section 18 of the Sindh Rented Premises Ordinance 1979 calling upon him to pay rent from 1-1-1984. Inspite of service of notice, the appellant did not pay the rent. Hence he was a defaulter. It was additionally contended that the applicants require the shop for their personal bonafide need as Shariq Ilahi, son of applicant No .1, had grown up and was to be set up in business in this shop. 3. The appellant resisted the application. He denied that he was a defaulter. He admitted that he was served with a notice under Section A 8 referred to above. He, however, states that since he had paid the rent for the month of January, 1984 to the previous landlady, therefore he remitted the rent for the months of February and March,1984 to the respondent by Money Order and also brought to his notice the fact that he had already paid rent for the month of January, 1984 to the previous landlady. He has also averred that he had paid Rs.50,000/- as TAGREE'to the out going tenant and Rs.15,000/- to the previous owner for change of receipt. He h45 also claimed to have paid Rs.500/- as security deposit to the landlady. Respondent refused to receive the Money Order, as he had been insisting to enhance the rent. Consequently the appellant started depositing the rent with the Controller in M.R.C. No. 1413 of 1984. Hence he is not a defaulter. He has also denied the allegation of the respondents that the shop was required by them for personal bonafide use. He has alleged that the respondents have generated this false ground after their desire for enhancement of rent was rustrated. 4. The learned Controller took up for consideration the issues as to default in payment of rent and requirement of the premises for personal bonafide use of Shariq son of Respondent No.l. After taking into consideration the evidence led by the parties, he found both the issues in favour of the Respondents and allowed the ejectment application as shown above. 5. I have heard Mr. Aziz Urfi, learned counsel for the appellant and Miss. Mumtaz Sultana, learned counsel for the Respondents. The respondents had purchased the shop by registered Sale-Deed dated 9-1-1984. They had sent notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 to the appellant which is dated 14-3- 984. Obviously by that date he was unaware of the transfer. Before this date he could have bonafidely paid not only the rent of January, 1984 to the previous landlady, but even the rent of February, 1984 to her which had fallen due on 28-2-1984. However, the fact that he tendered the tent for the \ months of February and March, 1984 to the Respondents by Money Order, wherein he stated that he had already paid the rent of January, 1984 to the previous Landlady and that he was in possession of receipt, shows his bonafides. The receipt for the rent of January, 1984 which had been paid to the previous landlady Mst. Farhat Syed has been produced. It is signed by the previous landlady and on the printed receipt form of the previous landlady and also bears printed number of the receipt. The receipt is, therefore, authentic. It was the duty of the respondent to have examined the previous landlady to deny the receipt which he has failed to do. The observation of the learned Controller that the appellant should have taken back the rent of January, 1984 from the previous landlady and should have paid to the appellants is not correct. His finding that the appellant had not proved that he had paid the rent to the previous landlady is also not correct, because the same has been proved by the receipt as well as the statement in the Money Order at the first opportunity that the same had been paid and receipt is available. Admittedly the appellant is depositing the rent from February, 1984 upto date in the Court and therefore, there was no scope for the Controller to hold that the appellant was a defaulter or that he was not justified in depositing rent with the Controller. Hence I am unable to sustain the finding of the learned Controller that the appellant was a defaulter. The finding is, therefore, reversed. 6. So far as the next issue is concerned, which relates to the requirement of the tenement for the bonafide personal use of Shariq Ilahi, who is grown up son of applicant No.l, there is sufficient evidence on record in support of the said plea. Respondent No.l has filed Affidavit-in-Evidence in which he has stated that the shop in question is required by him for the settlement of his son Shariq Ilahi in business, who is now grown up and is without any work. He has further stated that they belong to business community and have sufficient experience of business. Shariq Ilahi, according to him, will establish business of general merchandise and the tenement in question is suitable for the said business. 7. Mr. Aziz Urfi, learned counsel for the appellant, attacked the plea of requirement of shop for personal bonafide u?e on the ground that, although Shariq Ilahi was son of one of the applicants only, all the three applicants have stated that they require this shop for the bonafide requirement of Shariq Ilahi, who is son of one of the pplicants. As such, according to him, the need was of one respondent and not of the three respondents. Hence the other two Respondents should have given 'no objection' to this need, whereas one respondent should have stated that the personal bonafide need was of his son alone. According to me this does not make any difference and no such thin dividing line can be drawn between the two. By saying that the shop is required for their personal bonafide use, as Shariq Ilahi son of Respondent No.l will carry on business of merchandise therein, Respondents Np.2 and 3 only intended to convey their no objection to the requirement of Respondent No.l's son. The appellant has not been able to shake the testimony of Respondent No.l on this point either by cross-examination or otherwise. He has also not been able to rebut the evidence led by Respondents on this point. By now it is settled law that the contention of the landlady regarding the personal bonafide use, if it is consistent with her eadings and is supported by her evidence on oath and remains unshaken and disproved in rebuttal, the same shall be accepted as correct. Mr. | Aziz Urfi, learned counsel for the appellant, then contended that the Respondents had made a demand for enhancement of rent and on refusal of the appellant to « accede to such demand, the respondents have generated this false ground and - therefore, it should be held to be malafide. This contention is not acceptable. Itas also raised before the learned Controller, who also repelled the same and it I will be useful to reproduce his reasoning which reads as under:- "The opponent, though has failed to establish his contention with regard to the demand of applicant for enhancement or rent. But this too is without force, as demand of higher rent does not effect the personal use f the applicant. In this regard reliance is placed on 1980 S.C.M.R. 772 wherein it has been held as under:- j "Section 13.~Ejectment, requirement for personal use. Demand of 1 higher rent by landlord. Held does not y itself cast any doubt about personal bonafide requirement of premises by landlord if fact of ' bonafide requirement independently proved." ; I, therefore, do not find any justification for interfering with the findings of I the learned Controller on the point of personal bonafide need in favour of the i respondents. Consequently I uphold thThe result of the above finding is that the Respondents are entitled to get the vacant possession of the premises, as they require the same for bonafide personal use. I, therefore, uphold the order of eviction and direct the appellant to vacate the shop in question and hand over its peaceful possession to the respondents. However, looking to the fact that he would require reasonable time within which he may be able to find out an alternate accommodation, I allow him one year's time to vacate I he shop provided he continues to deposit monthly rent regularly. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Karachi 52 PLJ 1992 Karachi 52 Present: IMAM ALI G. KAZI, J QAMARUDDIN, DECEASED THROUGH HIS LRS--Appellant versus ABU BAKAR KHAN-Respondcnt F.R.A. No.212 of 1991, dismissed on 14.12.1991 Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.14-Tenant--Ejectment of--Order of-Challenge to—Objection that respondent was not owner of premises in dispute-A- person can own a premises without having a egal title over plot over which premises are constructed-Ownership of respondent was not disputed by appellant at any stage of case-Held: Appellant will be debarred from aising such plea-at appellate stage-Appeal dismissed. [P.54]A 1983 CLC 317 rel. Mr- Dewdn Bashir Ahmad, Advocate for Appellant. Mr. Klialilur Rehman, Advocate for Respondent. Date of hearing: 21.11.1991. judgment Abu Ba'kar Khan, the Respondent herein, filed an application under Section 14 of the Sind Rented Premises Ordinance, 1979 on 8.5.1984 seeking ejectment of his tenant Qamaruddin from Shop Nos. 12 & 13, situated in Chand Cloth Market, Liaquatabad, Karachi . According to the averments made by the Respondent in his application he clamied that he was born on 22.6.1924 and shall attain the age of 60 years on 21.6.1984. On 1.2.1984 he served the tenant with a notice under Section 14 of Sindh Rented Premises Ordinance, 1979, that he needed the shops for his personal use and required him to deliver vacant possession thereof upto 20.4.1984. Since the tenant did not comply with his requisition, Respondent filed the ejectment application in the Court of VI Senior Civil Judge and Rent Controller Karachi. The tenant generally denied the averments made in the application and further claimed that Respondent had 19 shops in Chand Cloth Market in addition to 20 shops in Mustafa Cloth Market. He further stated that the Respondent was an Advocate and he would not need the premises in question for his personal use but he wants arbitrary increase in the amount of rent. The Rent Controller formulated the following points for determination of the dispute:- (1) Whether the Applicant is entitled to the benefit of Section 14 of the Sindh Rented Premises Ordinance, 1979? (2) What should the order be?" Both the parties led evidence and the Rent Controller by his judgment passed on 3.12.1984 dismissed the Rent Application. The Respondent then filed an Appeal before this Court and the order of the Rent Controller was set-aside and the case was remanded to the Trial Court to decide the case afresh after hearing the parties and after production of PT-1 by the tenant. PT-1 was produced by the tenant to show that the Respondent was in fact in occupation of Shop No. 10 and Shop No.9 was vacant in Mustafa Market. The Rent Controller, however, did not permit the tenant to summon Assistant Director Lands, K.M.C. to produce the title deeds of Chand Cloth Market. He, however, allowed the application. The tenant then filed an appeal before this court and the case was remanded to the Rent Controller to decide it afresh after recording evidence of the Assistant Director Lands. The Assistant Director Lands, K.M.C. Muhammad Saleem Ahmed was examined after the case was remanded second time. The III Senior Civil Judge and Rent Controller Karachi (Central), by her judgment passed on 26.2.1991 allowed the ejectment application. It is against such judgment that the present appeal has been filed. Qamaruddin, the tenant of the premises in question, expired and his legal heirs have filed this Appeal. It has been strenuously argued by Mr. Dewan Bashir Ahmed, Advocate for the Appellants, that the lease of the plot of the disputed premises has not been transferred or mutated in the name of Respondent and, therefore, he cannot be said to be the "owner" of the premises in question. According to him, a landlord who is to attain age of 60 years can seek the delivery of vacant possession of a premises let out by him to a tenant for personal use only. The term "personal use" has been defined under Section 2(g) of the Sindh Rented Premises Ordinance, 1979 which means the use of premises by the owner thereof or his wife (or husband), son or daughter. The Respondent in the present case not being the owner is not entitled to evict the appellants under Section 14 of the Sindh Rented Premises Ordinance, 1979. He has relied on the cases reported in 1990 MLD 1009; 1985 CLC 882; PLD 1983 S.C. 1064. He further contended that the landlord for the purpose of ejectment of his tenant under Section 14 of the Sindh Rented Premises Ordinance, 1979 has to establish his need. On such point he has referred to cases reported in 1986 CLC 681; PLD 1988 Karachi 619; PLD 1985 S.C. 1 and 1983 CLC 568. Mr. Khalilur Rehman, appearing for the Respondent, contended that appellants did not at any stage of the proceedings deny that the Respondent was the owner of the premises in question and it is for the first time that such a plea has been raised in the appeal. According to him, if such a plea is not raised in the pleadings or evidence, it cannot be taken at the appellate stage. He has relied on the case reported in 1983 CLC 317. He further referred to the evidence recorded in the case to show that Respondent had established his need for the premises in question. According to the evidence brought on record before the Rent Controller, the plot over which Chand Cloth Market is constructed was originally allotted to one Saeedullah. The Respondent had purchased it with the building and applied for its transfer to the K.M.C. Assistant Director Lands, K.M.C., was examined on behalf of the Appellants, has admitted these facts. It is true that it is the owner of a premises who alone can seek ejectment of a tenant on the grounds mentioned therein under Section 14 of the Sindh Tenancy Ordinance, 1979. "Owner" has not been defined in the Sindh Rented Premises Ordinance, 1979. According to the meaning given in Legal Treasures "to own" means to be in possession of, be in receipt of, to have rights to etc. A person can own a premises without having a legal title over the plot over which such premises are constructed. Ownership of the premises in this case are not disputed by the Appellants at any stage of the case. All that they have said is that the Respondent has not got the lease of the plot transferred in his name. Under the circumstances the respondent will be treated to be the owner of the rented premises although strictly speaking, title over the plot is not legally transferred. Besides no such objection was taken by the Appellants who had admitted the status of the Applicant as the owner of the property in dispute. Under such circumstances Appellants will be debarred from raising such plea lo that effect at the appellate stage. By taking such a view I am fortified with the decision reported in 1983 CLC 317. The facts of the cases referred to by the Advocate for the Appellants, are distinguishable and not applicable to the facts of the present case. I had by my short order passed on 21.11.1991 for the foregoing reasons dismissed the Appeal. (M-BC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Karachi 54 PLJ 1992 Karachi 54 Present: HUSSAIN ADIL KHATRI, J PAKISTAN PRINTING INK INDUSTRIES-Plaintiff versus M/S ELITE PUBLISHERS-Defendnat C.M.A. No.2031 of 1991 in Suit No.995 of 1990, accepted on 30.9.1991 Civil Procedure Code, 1908 (V of 1908)-- —O.VII R.ll read with Limitation Act, 1908, Section 28--Supply of ink-Non­ payment of price of—Suit for recovery of--Rejection of plaint-Application for- -Application for rejection of plaint has been filed on ground that suit is barred by limitation-Last entry pertaining to supply is dated 3.2.1987 whereas suit was instituted on 22.10.1990, after expiry of 3 years-Federal Shariat Court has held that Section 28 of Limitation Act is repugnant to Injunctions of Islam in so far it provides extinguishment of right in roperty-Held: In case of movable property, though right to sue itself is extinguished, yet title does not cease to exist-In other words, right subsists although remedy is no onger available-­ Plaint rejected. . [Pp.55,56&57]A,B,C&D 1989 SCMR 2063 rcf. Mr. N.K. Jatoi, Advocate for Plaintiff. Mr. Nizam Ahmad, Advocate for Defendant. Date of hearing: 30.9.1991. order The suit has been filed by the plaintiff for recovery of Rs.1,02,000/- from the defendant. According to the plaint, the plaintiff used to supply printing inks to the defendant and by 3.2.1987 a sum of Rs.72,000/- had become due and payable by the defendant. The plaintiff kept on demanding the aforesaid amount due but the defendnat did not pay. The plaintiff therefore on 27.8.1989 sent a legal notice and in response thereof, the defendant company called upon the representative of the plaintiff company, admitted the liability and requested it not to go to Court as it would make the payment very soon. The defendant from time to time kept on promising but did not make the payment. On 15.9.1990 the defendant finally refused to pay the amount due. A sum of Rs.30,000/- has been claimed by way of damages on account of non-payment. The defendants have filed this application under Order VII rule 11 C.P.C. for rejection of the plaint on the ground that it is barred by limitation as according to the plaint and so also the statement of account the last entry pertaining to the supply is dated 3.2.1987 and the suit has been filed on 22.10.1990 after the expiry of three years. Mr. Nizam Ahmed the learned counsel for the defendant has relied on Article 52 of the Limitation Act wherein for institution of suit for recovery of the price of goods sold and delivered, where no fixed period of credit is agreed upon, the limitation prescribed is three years from the date of the delivery of the goods. The case of the plaintiff as reflected in the plaint is hit by the aforesaid Article. For the goods that were delivered on 3.2.1987, the plaintiff could institute the suit to recover the price of the goods within three years i.e., by 2.2.1990. Similarly the cause of action for damages also accrued to the plaintiff when the amount had become payable and it was not paid. The damages claimed in the suit are in the nature of loss of profit that could have been earned by the plaintiff had that amount been paid to him. As such this claim also would go alongwith the claim of money against the defendant. Even otherwise this claim appears to be misplaced. Under these circumstances, the plaint is rejected under Order VII rule 11 C.P.C. The learned advocate for the plaintiff has conceded that the admission of the liability by the defendant as alleged by the plaintiff in the plaint is not covered by the provisions of Section 19 of the Limitation Act, but however, according to him a person being liable to pay the money, in Islam, can not refuse to pay the same,and therefore, rejection of the claim of the plaintiff on the ground of limitation would be in conflict with Injunctions of Quran and Sunnah. He has relied on the case of Maqbool Ahmad vs. Government of Pakistan reported in 1989 SCMR 2063 wherein the Shariat Appellate Bench of Supreme Court has declared Section 28 of the Limitation Act repugnant to injunction of Islam, in so far as the same provided for extinguishment of right in the property at the determination of period prescribed for instituting suit for possession of property. Mr. N.K. Jatoi has contended that the same principle can be applied with regard to other provisions of Limitation Act including Article 52. Mr. Nizam Ahmad learned advocate for the defendant has contended that the rule laid down in the above authority and the declaration given, cover only Section 28 of the Limitation Act, and would not extend to the other provisions of the Limitation Act. He has further contended that even if it be so, the judgment will be effective from 31.8.1991 whereas this suit was filed earlier than this date and does not help the plaintiff. In the case of Maqbool Ahmed their Lordships have observed that Section 28 of the Limitation Act 1908, affects the substantive rights in immovable properly, whereas Article 144 of the said Act is procedural. One of the learned Judges had declared both, the above section and the article, as repugnant to the Injunctions of Islam, but in the operative part of the Judgment, Section'28 of the Limitation Act only has been held to be repugnant to the Injunctions of Islam, in so far as it provides extinguishment of the right in the property on the determination of the period prescribed for instituting a suit for possession of the property. While referring to the distinctive features of the law of limitation as applicable to immovable and movable properties, and such provisions thereof which takes away only the remedy but not the right itself, in juxta position of the provision which takes away the right itself, their lordships have further observed that in the case of immovable, where a right to claim possession becomes time barred, title to the property itself is extinguished by virtue of Section 28 of the { Limitation Act 1908. But in the case of movable property though the right to sue itself is extinguished, yet the title does not cease to exist; a debt does not cease to be due, merely because, it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. In other words the right subsists although the remedy is no longer available. Their Lordships have further observed with great clarity and unambiguously that no exception cannot (?) be taken to prescription of limitation of time period for enforcement of a right from Islamic point of view. The submission of the learned counsel for the plaintiff is therefore overruled as of no substance. The application is granted and the plaint is hereby rejected under Order VII Rule 11 C.P.C. (MBC) (Approved for reporting) Plaint rejected.

PLJ 1992 Karachi 57 (DB) PLJ 1992 Karachi 57 (DB) Present: nasiraslam zahid and M. hussain adil khatri, JJ COMMISSIONER OF INCOME TAX, CENTRAL ZONE, KARACHI-- Applicant versus M/S TRANSOCEANIC STEAMSHIP CO.LTD-Respondent Income Tax Reference No.40 of 1982, dismissed on 14.11.1991. Income Tax Act, 1922. (XI of 1922)-- —-S.12-B read with Income Tax Ordinance, 1979, Section 136(2)—Insurance claim of ship-Difference of claim and cost of ship-Whether taxable-Question of-To bring rofit or gain within mischief of Section 12-B, it is necessary that such profit or gain should have arisen from sale, exchange or transfer of a capital asset-Held: Tribunal was ight in holding that difference between original price of ship in question and amount received by assessee from insurance company under insurance policy on account of ss f ship, is not profit or gain on account of sale, exchange or transfer of said ship—Application dismissed. [P.58]A,B&C Mr. Nasndlah Awan, Advocate for Applicant. Mr. AHAmjad, Advocate for Respondent. Date of hearing: 14.11.1991. judgment Nasir Aslam Zahid, J.~The application under Section 136(1) of the Department moved "before the Income-Tax Appellate Tribunal for reference of the question referred hereinbelow was dismissed by order dated 9.2.1982 of the Income-Tax Appellate Tribunal. In the circumstances, the Department has filed this application under Section 136(2) of the Ordinance seeking opinion of this Court in respect of the following question for assessment year 1973-74 of the assessee: - "Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in holding that the excess over the cost of the ship amounting to Rs.15,35,073/- received by the assessee from the Insurance Company was not taxable under Section 12-B of the Income-Tax Act?" 2. We have heard Mr. Nasrullah Awan, learned counsel for the Department and Mr. Ali Amjad, learned counsel for the respondent/assessee. 3. The relevant facts are that the assessee had purchased a ship for Rs.28,50,048/- and after allowing depreciation for a number of years, the ship's value, as per the books, became nil. During the 1971 War with India, this ship was lost and as the ship was insured, against a claim made by the assessee under the insurance cover, an amount of Rs.43,85,121/- was received by the assessee from the insurance company during the year in question. The difference between the original price, that is, Rs.28,50,048/- and the amount received against the claim made by the assessee, came to Rs.15,35,073/- which was treated as a capital gain by the Assessing Officer and subjected to tax under Section 12-B of the repealed Income-Tax Act, 1922. The assessee filed an appeal and the Appellate Assistant Commissioner, relying on an earlier decision of the Income-Tax Appellate Tribunal, allowed the appeal. The Department took the matter in second appeal before the Appellate Tribunal and the Tribunal, by its order dated 24.9.1980, dismissed the appeal holding that to tax a profit or gain under Section 12-B as capital gain it is necessary to establish that there was a transfer, sale or exchange of the asset in question. As observed, the Department was not satisfied with the decision of the Tribunal and, therefore, filed an application under Section 136(1) of the Ordinance which was dismissed and in the circumstances this application under Section 136(2) has been filed. 4. Relevant part of Section 12-B of the repealed Income Tax Act reads as follows:- "12-B(1) The tax shall be payable by an assessee under the head "Capital gains" in respect f ny profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March, 1946 and before the 1st day of April, 1949 and after the th day of June, 1963, and uch profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place; " To bring any profit or gain within the mischief of Section 12-B, it is necessary that such profit or gain should have arisen from the sale, exchange or transfer of a capital asset. If the profit or gain has not arisen from any sale, exchange or transfer of the capital asset in question, Section 12-B will not be attracted and such profit or gain would not be taxable under the said provision. In our view, the Tribunal was right in holding that the difference between the original price of the ship in question and the amount received by the assessee from the insurance company under the insurance policy on account of the loss of the ship is not a profit or gain on account of the sale exchange or transfer of the said ship. Mr. Nasrullah Awan, learned counsel for the Department made a feeble attempt to challenge the decision of the Tribunal on the basis that in fact some gain has come to the assessee. Just because some gain or profit has been received by an assessee would not be sufficient to bring such gain or profit within the mischief of Section 12-B of the repealed Income-Tax Act, 1922. As observed, such profit or gain must arise from sale, exchange or transfer of the capital asset, which is lacking in the present case. Finding no merit in this application, this application under Section 136(2) of the Income-Tax Ordinance, 1979 is dismissed but with no order as to costs. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Karachi 59 (DB) PLJ 1992 Karachi 59 (DB) Present: nasir aslam zahid and M. hussain adil khatri, JJ Mrs. FARIZA MIRZA-Petitioner versus INCOME TAX OFFICER and 3 others-Respondents Const. Petition No.D-1313 of 1990, accepted on 14.11.1991. Income Tax Ordinance, 1979 (XXXI of 1979)— —-S.102(l)-Refund due-Non-payment of-Additional payment for delayed refunds-Prayer for-Deceased husband of petitioner was entitled to refund for assessment year 1981-82-This amount should have been paid to him within three months i.e. by 29.9.1989-Under Section 102(1), in case of failure on part of department to make payment within 3 months, compensation at rate of 15% per amnum of amount of refund becomes payable as additional payment for delayed refund-Deceased died on 28.4.1990 and thereafter payment could not be made by department in absence of succession certificate-Held: Apart from amount of refund, department is also liable to make payment of an additional sum at rate of 15% per annum on aforesaid amount. [P.60JA&B Mr. JawaidA. Siddiqui, Advocate for Petitioner. Mr. Shaik Haider, Advocate for Respondents. Date of hearing: 14.11.1991. judgment Nasir Aslam Zahid, J.--The petitioner is the widow of Hasan Mirza, an income-tax assessee who died on 28.4.1990. Prior to his demise, by letter dated 29.6.1989, of the concerned Income-tax Officer (respondent No.l), deceased Hasan Mirza was informed that a sum of Rs.3 ,51,082 /- was refundable to him for the assessment year 1981-82. The case of the petitioner is that during his life time, the deceased, and after his death, the petitioner, has been requesting the Income-tax Department to make payment of the aforesaid amount but the department has failed to do so. In the circumstances, the petitioner (the widow) /filed this constitutional petition, inter alia, seeking the payment of the aforesaid amount with compensation. In the counter-affidavit filed by respondent No.l, it has not been denied that the aforesaid amount was due to the deceased as refund of income-tax but the plea that has been taken is that without the production of a succession certificate the department could not make payment of the amount. We , therefore , find that there is no dispute about the amount which was refundable to the deceased and now to the person holding a succession certificate. 2. The other relief that has been claimed in this petition is about payment of compensation on account of delay in the payment of the refundable amount. Section 102(1) of the Income-tax Ordinance, 1979, is as follows:- "102 Additional payment for delayed refunds.-(T) Where a refund due, or deemed under subsection (5) of Section 99 to be due, to an assessee is not paid within three months of the date on which it becomes due, there shall be paid to be assessee a further sum by way of compensation at the rate of 15 per cent per annum of the amount of refund from the expiration of the said three months upto the date on which the refund order is made." 3. In this case, the deceased was informed by letter dated 29.6.1989 that, for the assessment year 1981-82, he was entitled to the refund of Rs.3 ,51,082 /-. Under Section 102(1) of the Income Tax Ordinance, this amount should have been paid to the deceased within three months i.e. by 29.9.1989. Although the case of the petitioner is that requests were made by the deceased as well as by her for payment of the aforesaid amount, in our view, Section 102(1) of the Ordinance does not require the making of an .application or request as a condition for payment of the amount of income-tax found to be refundable. The provision places a responsibility on the department to make payment of the amount found to be due as a refund within three months of the date on which the refund becomes due and, if there is a failure on the part of the department in the payment of the amount within the aforesaid prescribed period, compensation at the rate of 15 per cent per annum of the amount of refund becomes payable as additional payment for delayed refund. 4. In this case, as observed earlier, three months period provided under Section 102(1) of the Ordinance expired on 29.9.1989 and from that date the department became liable for payment of additional amount at the rate of 15 per cent of the amount refundable. However, the deceased died on 28.4.1990 and thereafter payment could not be made by the department either to the petitioner I as widow or any other legal representative in the absence of asuccession certificate issued by a competent Court. Admittedly, neither the petitioner nor any other legal heir of the deceased has so far obtained a succession certificate. In the circumstances of this case, we are of the view that apart from the sum of Rs.3 ,51,082 /- admittedly due as refund to the deceased, the department is also liable to make payment of an additional sum at the rate of 15 per cent per annum of the aforesaid amount from 30.09.1989 to 28.04.1990. 5. Mr. Jawaid Siddiqui, learned counsel for petitioner, (widow), states that either the petitioner or some other legal heir of deceased Hasan Mirza will obtain a succession certificate for the amount in questicn. Mr. Shaik Haider states that the department is ready to make payment of the amount refundable as also the additional compensation for the aforesaid period. It is directed that the amount of Rs.3 ,51,082 /- plus compensation at the rate of 15 per cent per annum on the aforesaid amount for the period from 30.09.1989 to 28.04.1990 will be deposited by the Income-tax Department with the Nazir of this Court within one month from today and, as soon as the said amount is deposited, the Nazir will invest the same in Special Savings Certificate. The amount so deposited with profits will be paid to the petitioner or other person obtaining succession certificate from a competent Court entitling him to recover such amount. This constitutional petition stands disposal off in the above terms with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Karachi 61 (DB) PLJ 1992 Karachi 61 (DB) Present: mamoon kazi and wajihuddin ahmed, JJ . M/S KARIMI MILL STORES-Applicant versus COMMISSIONER OF INCOME TAX-Respondent Income Tax Reference No. 38 of 1982, dismissed on 10.10.1991. Income Tax Act, 1992 (XI of 1992)--

S.66 read with Income Tax Ordinance, 1979, Section 136--Income taxmatter-Reference to High Court-Whether reference was competent-­ Question of-From findings of Tribunal, it is clear that neither any interpretation of provisions of Section 13 of repealed Act was in question nor any other question of law was in issue before Tribunal—Findings of Tribunal clearly appear to be based on facts—Held: This reference is completely misconceived and is not maintainable. [P.64JA & B Mr.Iqbal Naeem Pasha, Advocate for Applicant. Mr. Nasrullah Awan, Advocate for Respondent. Date of hearing: 26.9.1991. judgment Mamoon Kazi, J.~During the assessment year 1976-78 the applicant declared a gross profit of Rs. 3, 05, 764/-on sale of Rs. 10, 56, 648/-yielding a gross profit rate of 24.30% as against gross profit rates of 26% and 27.3% declared on more or less similar sales during the assessment years 1975-76 and 1976-77 respectively. The Income Tax Officer did not accept the declared trading •results because the applicant had failed to justify the fall in the rate of the gross profit. Because the cash sales aggregating to about 40% were not open to verification and there were variations in the rates of sales made on the same date, the Income Tax Officer adopted a gross profit rate of 27 1/2% on estimated sales of Rs. 13, 15,000/-. When the first appeal was filed by the applicant, the learnedAppellate Assistant Commissioner accepted the declared trading results for the year under consideration alongwith the preceding two years. Aggrieved by the order of the learned Assistant Commissioner, the department preferred appeals before the learned Appellate Tribunal for all the three years viz: 1975-76,1976-77 and 1977-78. The Tribunal although accepted the trading results declared by the applicant for the assessment years 1975-76 and 1976-77 but it rejected such results in regard to the assessment year 1977-78 for the simple reason that the applicant was unable to satisfactorily explain the fall in the rate of gross profit. The Tribunal, however, restricted the addition of Rs. 49,286/- to Rs. 16,000/-in the declared trading results as would appear from its following observations:- "In the assessment year 1977-78, since, no satisfactory explanation could be given before this Tribunal to justify the fall in the rate of profit to the extent mentioned above, we are of the opinion that the declared trading results could not be accepted as such. We think that it will be fair if keeping in view the decision reported as (1979) 40-Tax-32 and also the percentage of cash sales being about 30%, the addition made at Rs. 49,286/-is reduced to Rs. 16,000/-." 2. Aggrieved by the said order, the applicant filed an application under Section 136 (1) of the Income Tax Ordinance, 1979 requiring the learned Tribunal to refer the following questions of law to this Court for its opinion: "1. Whether the learned Income Tax Appellate Tribunal was right in applying the First Proviso to Section 13 of the Repealed Act to the case of teh applicant. "2. Whether there was no material or basis for adhoc addition, of Rs. 16,000/-to the trading results of the applicant." 3. The learned Tribunal, however, found that its order dated 19.2.1981 whereby the department's appeals had been dismissed was purely passed on consideration of facts and since no question of law arose out of the said order it declined to refer the questions to this Court under the aforesaid provisions of law, and hence the present application under Section 136 (2). 4. We have heard Mr. Iqbal Naeem Pasha, learned Counsel for the applicant and Mr. Nasrullah Awan, learned Counsel for the respondent. Mr. Iqbal Naeem Pasha while referring to the proviso to Section 13 of the repealed Income- Tax Act has argued that the Income Tax Officer has failed to appreciate the said provisions properly while rejecting the trading results submitted by the applicant and by arbitrarily adding Rs. 16,000/-to the said results. Consequently, according to the learned Counsel, the two questions referred to by the applicant in the present application have clearly arisen for determination from the Tribunal's order. Reliance has been placed on The Commissioner of Income Tax (West Zone), Karachi v. Messrs. Fateh Textile Mills Ltd., Hyderabad (1984 P.T.D. 218) and Messrs. Zafar Sateein Bros. Ltd., Karachi v. Vie Commissioner of Income Tax, year 1977-78 was found by the Tribunal to be low. The Tribunal observed that costlier imported items are generally sold at higher prices with a view to earn more profit therefore, unless there were some extraordinary circumstances resulting in fall in the profits, the gross profit rate declared by the assessee could not be accepted. However, according to the Tribunal, no such facts or figures had been supplied by the applicant, consequently, the apeal filed by the applicant was disposed of by the Tribunal as pointed out earlier. 6. From the above findings of the Tribunal it is clear that neither any interpretation of the provisions of Section 13 of the repealed Act was in question nor any other question of law was in issue before the Tribunal. The findings of the Tribunal clearly appear to be based on facts. The question whether the learned Income Tax Tribunal was justified in accepting the findings of the Income Tax Officer in respect of assessment year 1977-78 or whether the addition of Rs. 16,000/-to the trading results of the applicant were in any manner justifiable, in our opinion, are not questions of law as contemplated by section 66 of the repealed Act or Section 136 of the Income Tax Ordinance, 1979, which we are called upon to answer.Even assuming that the findings arrived at by the learned Tribunal are erroneous, this Court is not empowered to exercise appellate or revisional powers in respect of the orders passed by the Income-Tax Appellate Tribunal. Consequently, in our opinion, the reference made before us is completely misconceived. 7. In the result, we hold that this reference is not maintainable. We further direct that the costs of this reference shall be borne by the applicant. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Karachi 64 (DB) PLJ 1992 Karachi 64 (DB) Present: mamoon kazi and M. hussain adil khatri, JJ. PAKISTAN TOBACCO CO.-Applicant versus COMMISSIONER OF INCOME TAX-Respondent Income Tax Reference No. 148 of 1984, decided on 12.12.1991. Workers Welfare Fund Ordinance, 1971 (XXXVI of 1971)-- —S. 4 read with Income Tax Ordinance, 1979, Section 136 (l)-Income Tax assessment—Payment of Workers' Welfare Fund—Whether admissible expenditure—Question of—Legislature has made its intention clear by providing that any expenditure made by assessee on account of Workers' Welfare Fund shall be treated as an expenditure for purpose of assessment of Income Tax-Such expenditure is to be excluded from total gross income ofassessee-Held: Income Tax Officer is obliged to exclude such amount from total gross income of assessee alongwith any other admissible expenditure. [P.67]A&B Mr. Iqbal Naeem Pasha, Advocate for Applicant. Mr. Shaik Haider, Advocate for Respondent. Date of hearing: 7.11.1991. judgment Mamoon Kazi, J.~The applicant is engaged in the manufacture and sale of cigarettes. It claimed deductions on account of payment made by it towards 'A -:rker>' Welfare Fund, which is leviable under Section 4 (1) read with Section 2 1 :f tie Workers' Welfare Fund Ordinance, 1971, as an admissible business expenditure for the purpose of assessment of income tax, however, the Income Tax Officerwho assessed the income of the applicant did not agree with its method of calculation. The applicant went in appeal which was allowed and the app'icjn: s contention was accepted by the learned Assistant Commissioner Appeals!. However, in the second appeal, the learned Income Tax Appellate Tribunal declined to agree with the learned Assistant Commissioner and held that computation was to be made in this regard in accordance with its earlier decision reported in (1982) 46 Tax 21 (Trib.) wherein it had been held that the said fund is not an admissible expenditure under the Income-Tax Act. the applicant was, therefore, aggrieved and it requested the Tribunal to make a reference to this Court under Section 136 of the Income Tax Ordinance. Consequently, the following question has been referred to us for determination:- "Whether the Appellate Tribunal is correct in law in holding that the levy of Workers' Welfare Fund is not an admissible expenditure to arrive at Total Income" for purposes of levy of 2% on total income under Section 4 ! li and C 7 ) read with Section 2 (a) and (/) of Workers' Welfare Fund Ordinance. 1971". 2. Section 4 of the Workers' Welfare Fund Ordinance provides as follows:- "4. Mode of payment by, and recovery from, industrial establishments.-^) Every industrial establishment, the total income of which in any year of account commencing on or after the date specified by the (Federal Government) in the official Gazette in this behalf is not less than one lakh of rupees shall pay to the Fund in respect of that year a sum equal to two per cent of so much of its total income as is assessable under the (Ordinance) or would have been so assessable but for the exemption made by Section 48 thereof. (2) Every industrial establishment which is liable under sub-section (1) shall pay the amount due from it to the Income-tax Officer having jurisdiction over the industrial establishment for purposes of the Act. (3) The industrial establishment shall, on or before the date on which it is required to furnish a return of income un er (section 55 of the Ordinance) pay the amount due from it under sub-section (1) calculated with reference to the total income reported in the said return. (4) At the time of making an assessment under (the Ordinance) or as soon thereafter as may be, the Income-Tax Officer shall, by order in writing, determine the amount due from industrial establishment under sub­ section (1), if any, on the basis of the income so assessed after taking into account the amount paid by the industrial establishment under sub­ section (3) in respect of the year and the industrial establishment shall pay the amount so determined on or before the date specified in the order. (5) Any change by way of enhancement or reduction in the assessed income subsequent to the assessment made under (the Ordinance) shall be given effect to by adjustment of the amount due under sub-section (1). (6) Any amount paid by an industrial establishment under sub-section (3) which is found, on the basis of an order in appeal or revision under the (Ordinance), to have been paid in excess shall be refunded to it by the Income-tax Officer. (7) The payment made by an industrial establishment to the Fund under s b­ section (1) shall be treated as an expenditure for purposes of assessment of income-tax." On the basis of section 4 (1), the contention put-forth on behalf of the applicant was that the method of calculation applicable was: Total Income x 2/100. Although the learned Appellate Commissioner agreed with the said method of computation but the learned Tribunal declined to accept the same, as according to it, Workers' Welfare Fund at the rate of two per cent is to be first computed from the assessable income of the assessee in pursuance of the provisions of Section 4 (1) and thereafter the amount payable is to be excluded from the total income of the assessee as provided by subsection (7) of Section 4. 3. Mr. Iqbal Naeem Pasha, learned Counsel for the applicant has, however, taken an exception to the above method of calculation as, according to him, any amount paid to the said Fund under section 4 of the said Ordinance, subsection (1), was to be treated as an expenditure for the purpose of assessment of income tax according to subsection (7) of the said section and consequently, such amount is deductable at the time of computation of the assessable income of the assessee. Mr. Shaik Haider, on the other hand, has fully supported the order of the learned Tribunal. 4. From the provisions of subsection (1) of Section 4 of the said Ordinance, it is clear that the said two per cent payable to the Fund is to be calculated on the basis of the total assessable income of an assessee. According to subsection (7), such payment is to be treated as an expenditure for the purpose of assessment of income-tax. A perusal of subsection (1) of Section 4 clearly indicates that no amount payable under the said sub-section can be computed without first determining the assessable income of the assessee. It is pertinent to point out that no corresponding amendment has been made in Section 10 of the repealed Income Tax Act or Section 23 of the Income Tax Ordinance, 1979 under which net taxable income of the assessee is determinable. No doubt, subsection (7) of Section 4 of the Workers' Welfare Fund Ordinance provides that any payment made to the said Fund shall be treated as an expenditure for the purposes of assessment of income-tax but if the legislative intent was to make such expenditure an expenditure under section 10 of the repealed Income Tax Act or Section 23 of the Income Tax Ordinance, a corresponding amendment would have been made therein in this regard. Consequently, it would be erroneous to assume that the amount payable to the Fund under Section 4 (1) is to be calculated at the time of computation of the assessable income of the assessee. Subsection (1) of section 4 clearly indicates that the said two per cent is to be calculated on the basis of the assessable income of the assessee, as pointed out earlier, and unless such income is determined, it would not be possibe for the Income-Tax Officer to calculate the amount payable to the said Fund. However, the Legislature has made its intention clear by providing that any expenditure made by the assessee on account of the said Fund shall be treated as an expenditure for the purpose of assessment of income-tax. Consequently, although, such expenditure would not be an expenditure allowable under the Income-Tax Act, but the same is nevertheless to be excluded from the-lotal gross income of the assessee to give effect to the provisions of subsection (7) of section 4 of the Workers' Welfare Fund Ordinance. Effect to sub-sections (1) • and (7) of section 4, therefore, can be given by computation of the assessable income while excluding the amount payable to the fund and after calculating two per cent on the basis of such assessable income, excluding the same from the gross income of the assessee. As pointed out earlier, any amount payable by the assessee to the said Fund is to be treated as an expenditure for the purpose of assessment of income-tax, therefore, the Income- Tax Officer is obliged to exclude such amount from the total gross income of the assessee alongwith any other admissible expenditure. 5. Consequently, in our view, although the learned Tribunal was right in holding that the levy of Workers' Welfare Fund is not an admissible expenditure under the repealed Income Tax Act or as the case may be, the Income Tax Ordinance, 1979 but such expenditure would still be deductable from the total gross income of the assessee. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Karachi 68 PLJ 1992 Karachi 68 Present: M.HUSSAIN ADIL khatri, J PAKISTAN RAILWAYS, KARACHI-Plaintiff versus KARACHI DEVELOPMENT AUTHORITY and 5 others-Defendants C.M.A. No.3464 of 1990 in Suit No.519 of 1990, accepted on 19.9.1991. Civil Procedure Code, 1908 (V of 1908)-- —-O.VII R.ll read with Specific Relief Act, 1877, Section 42-Plaint--Rejection of—Application for—Contention that suit for declaration simplicitor in a case where Plaintiff is not in possession, is barred by Section 42 of Specific Relief Act-Suit is also barred for want of notice under Article 131 of Karachi Development Authority Order, 1957-Notice under Section 70 of Sindh Co­ operative Societies Act, 1925 (VII of 1925) ought to have been served but no such notice was given— Held: Suit being also bad for want of notice under Section 70 of Sindh Co-operative Societies Act,1925, plaint is rejected. [Pp.69,70&71]A,B,C&D PLD 1975 Kar.1107 and 1984 CLC 2914 re/. Ch. Abdur Rashid Ahmad, Advocate for Plaintiff. Mr. Arshad Iqbal, Advocate for Defendant No.2. Mr. S.M.Kizalbash, Advocate for Defendant No.l. Mr. M.G. Dastgir, Advocate for Defendant No.5. ^ Date of hearing: 19.9.1991. order 1. In view of rejection of plaint under Order 7, R. 11 C.P.C., this application (C.M.A. 3101/90) has become redundant and is dismissed in limine. 2. Defendant No.5 has filed this application (C.M.A. 3464/90) under Order VII rule 11 C.P.C. for rejection of the plaint on the grounds (1) that the suit is barred under section 42 of the Specific Relief Act as the plaintiff though not in possession of the suit land has prayed only for declaration and not for the consequential relief for possession, (2) the Karachi Development Authority has been joined as a party without service of statutory notice under Article 131 of K.D.A. Order 1957 and (3) that the defendant No.2 is a Cooperative Housing Society and the suit has been filed without service of notice as required under section 70 of the Sindh Cooperative Societies Act 1925. Mr. M.G. Dastagir the learned advocate for defendant No.5 in respect of the first submission has relied on section 42 of the Specific Relief Act which reads as under:— "42 Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:-- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." For his contention the learned counsel has sought support from 1980 C.L.C. 1483 (Khawaja Mohammad Naeem and others Vs. Tasleem Jan and others), PLD 1973 Pesh.80 (Muhammad Saeed Vs. Munawar Shah and others), PLD 1985 Kar. 481 (Mohammad Azeem Vs. Pakistan Employees Cooperative Housing Society). All these authorities are on the proposition that the suit for declaration simplicitor in a case where the plaintiff is not in possession is barred by section 42 of the Specific Relief Act. However, learned counsel for the plaintiff has contended that the suit has been titled as the suit for declaration, permanent injunction and possession, and therefore, it could not be said that the suit is not for possession. He further submitted that the prayer for declaration will include the prayer of possession and it is the case of mere omission of prayer for possession and therefore, such omission will not non-suit the plaintiff and moreso when he has paid the maximum court fee. He further stated that such omission can be rectified by amendment of the plaint. He alternately urged that the prayer is to be read in the context of the averments made in the plaint and the intention of the plaintiff whether the suit is for possession or not should be gathered from the contents of the plaint. Submission made by the learned counsel is a novel in nature. However, when this order was being dictated, he came up with the request that he may be given time for making an application for amendment in the prayer clause. I do not think if any useful purpose will be served by giving him such opportunity at this stage as the suit apart from being barred under section 42 of the Specific Relief Act, is also barred under Article 131 of the K.D.A. Order 1957 and Section 70 of the Sindh Cooperative Societies Act 1925. It is the requirement of the K.D A. Order that "no suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought". It is also specifically provided that " in every such suit the plaint shall contain a statement that such notice has been delivered". In suit No.645/89 filed by defendant No.2 against K.D.A. and others including defendant No.5 K.D.A. had agreed to provide alternate land to defendant No. 2 which is the Cooperative Society of the employees of the plaintiff. There is no allegation ofmalafide. Now, such an act has been performed by the K.D.A. in exercise of the powers given to it under the K.D.A. Order whereunder schemes are to be floated and lands are to be allotted by the Authority. It is contended by Mr. S.H. Kizalbash learned advocate for the defendant No.l that the order of substitution of the land and allotment thereof was made by K.DA under Karachi Development Authority Allotment Regulations 1965 framed under Article 151 of the K.D A. Order 1957. The plaintiff has challenged the above act of the K.DA. which was purportedly taken in exercise of the powers given to it. It is an admitted fact that no notice has been given by the plaintiff to K.D.A. and consequently no such averment has been made in plaint also. Learned counsel for the plaintiff relied on the case reported in PLD 1984 Kar. 34. In this case an observation was made that notice under Article 131 is not necessary in every case and is necessary only if the suit is filed in respect of any act purported to be done under Orders, Rules and Regulations made thereunder. As has already been observed earlier, the order of allotment of alternate land was passed by K.D.A. under the aforesaid Regulations and therefore, this is not one of those cases where Article 131 will not be attracted. The suit is therefore, obviously barred for want of notice under Article 131 of K.DA. Order 1957. It is lastly contended by the learned counsel for the defendant No.5 that the dispute is in respect of the act of the defendant No.2 pertaining to its business as a registered cooperative society. According to him the defendant No.2 acquired the land as an alternate land from defendant No.l for the purposes of allotting the same to its members. The suit has been filed to get the aforesaid alternate allotment annulled and nullified. In the above context notice under section 70 of the Sindh Cooperative Societies Act VII of 1925 ought to have been served as required therein. No such notice having been given, the suit is barred under the said section. The learned advocate for the plaintiff has contended that the notice under the aforesaid section 70 is required only when the dispute between the parties be such as is referable for arbitration under section 54 of the Cooperative Societies Act. According to him the dispute in the suit can not be referred and adjudicated upon under the aforesaid section, and therefore, the suit is maintainable in absence of notice under section 70 of the said Act. He has placed reliance on the case of Mohammad Sadiq etc. Vs. Shahabuddin etc. reported in NLR 1981 (Revenue) 52. The above quoted case was decided by a learned Single Judge of Lahore High Court. The case of Mohammad All Memorial Co-operative Housing Society Ltd. Karachi Vs. Syed Sibte Hasan Kazmi (PLD 1975 Kar. 428) was referred to the learned Judge for the view that even a non-member was required to give such a notice. However, the learned Judge relied on the case of Mohammad Azim Vs. Pakistan Employees Cooperative Housing Society Limited, (PLD 1985 Kar. 481) for the view expressed by him. In the case of Mohammad Azim, the question under consideration was not that of non-maintainability of suit for want of notice under section 70 of the said Act, but that of ouster of jurisdiction of Civil Court under Section 70-A of the Co-operative Societies Act 1925. While interpreting the said section it was held that where the dispute could be adjudicated under section 54 of the Co-operative Societies Act 1925, the jurisdiction of the Civil Court would stand ousted under section 70-A of the said Act. The rule laid down in the case of Mohammad Azim (Supra) is not relevant, where the objection raised pertains to maintainability of suit for want of notice under section 70 of the Act. In the case of Muzaffar Hussain and other Vs. Yousaf and 4 others PLD 1975 Kar. 1107 it was held that the suit in respect of an act touching the business of a registered cooperative society, without serving prescribed mandatory notice, is not maintainable against the Cooperative Society and similar view was expressed by another learned Judge of this Court in the case of Farida Vs. Prince Apartment CfyviJ'ni h->u<inz Society and 2 others reported in 1984 CLC 2914. I. therefore, hold that the suit is also bad for want of notice under Section 70 ol the Sindh Co-operative Societies Act, 1925. Consequently the plaint is rejected. (MBC) (Approved for reporting) Plaint rejected.

PLJ 1992 Karachi 71 PLJ 1992 Karachi 71 Present: ABDUL RAHIM KA7I, J MUHAMMAD RAZA-Plaintiff versus Haii ABDUL GHAFFAR and 6 others-Defendants C.M.A. V..-425 of 1991 in Suit No.808 of 1991, dismissed on 9.9,1991. Civil Procedure Code, 1908(V of 1908)-- —-O.XXXIX Rr.l&2 read with Specific Relief Act, 1877, Section 54-Temporary injunction-Grant of-Prayer for-Therc was no privity of contract between Plaintiff and defendant o.4--Piima facie, plaintiff has no case against efendant No.4—Held: Even otherwise, Plaintiff having valued his loss/damage sustained by him, would not be ntitled to grant of injunction in view of provisions of Section 54 of Specific Relief Act-Held further: Grant of mporary injunctions under Order XXXIX Rules 1&2 are lso to be governed by principles laid down in Sections 52 to 57 of Specific Relief Act- Application dismissed. [Pp.74&75]A MrSharif Khallak, Advocate for Plaintiff. Mr.S.M.Alam, Advocate for Defendants 1&2. Mr.Ilyas Khun, Advocate for Defendant No.4. Mr.S^4.Samad Kfian, Advocate for Defendant No.5. Date of hearing: 8.9.1991. order This is an application moved by the Plaintiff under Order XXXIX rule 2 read with section 151 CPC with the prayer that the Defendants be restrained from committing a breach of contract and to keep the work of levelling measuring 1,10,000 square feet carried or done by the Plaintiff on Plot No.F-607, SITE, Karachi intact and un-disturbed till the final disposal of the suit. Briefly the case of the Plaintiff is that there was a contract between the Plaintiff and Defendants No. 1 to 3 which was reduced in writing and has been attached to the plaint as Annexure-A. According to this contract the Plaintiff was required to carry out the work of levelling of Plot No.F-423 measuring one acre which is owned by the afore-mentioned Defendants. It was also agreed as per the terms of the contract that the work will be done in four parts/phase and for each part, he will be entitled to a payment of Rs.50,000/-. According to the plaint, the Plaintiff has received a payment of Rs.1,49,000/- already as against the said work. It is further contended by the Plaintiff that the Defendants No.. 1 to 3 orally assigned other levelling work of about 1,10,000 square feet on Plot No.F-607 at the rate of Rs.4.75 per square foot which work has also been done by the Plaintiffs. The grievance of the Plaintiff is that the Defendants are no more allowing the Plaintiff to continue with the work on Plot No.F-423 and therefore, the Final Bill amounting to Rs.71,000/- could not be received by the Plaintiff. Apprehending that the Defendants No. 1 to 3 will get the remaining work done by some other source, the Plaintiff has filed this suit for recovery, damages and permanent injunction with the following pr jv-eri: "1. For the recovery of Rs.5,22,500/- against Defendants No. 1 to 5 or jointly on account of actual work of levelling done or carried by the Plaintiff on Plot No.F-607 SITE Karachi West. 2. For damages and compensation amounting to Rs.5,00,000 againstn efendants No. 1 to 5 severally or jointly on account of mental worries, inconvenience, defamation labourers problem etc. 3. For further damages of Rs.5,00,000/- caused due to loss of work against Defendants No. 1 to 5 jointly or severally. 4. For permanent injunction against Defendants not to forcibly or illegally remove or throw the plaintiff from Plots No.F-607 and F-423 and further to restrain the Defendants from committing the breach of contract and keep the work of levelling measuring 1,10,000 square feet carried or done by the Plaintiff on Plot No.F-607 SITE Karachi intact and undisturbed till the realisation of the decretal amount or further order of the Court. 5. For specific performance of contract dated 15-6-1987 executed between the Plaintiff and Defendants No. 1 to 3 for the remaining work or in lieu thereof compensation amounting to Rs.71,000/-. 6. Profit/mark up at the rate of 17% per annum. 7. Costs of the suit. 8. Any other relief/reliefs as deemed fit by Hon'ble Court ." I have heard Mr.Muhammad Sharif Khattak, learned counsel for the Plaintiff and Messrs.S.MAlam, S.A.Samad Khan and Ilyas Khan, learned counsel for the Defendants.Learned counsel for the Plaintiff has submitted that in view of the contract above-mentioned the Plaintiff is entitled to the injunction as prayed for by him. He has admitted that the work on Plot No.F-607 was done by the Plaintiff at the instance of Defendants No. 1 to 3 for which he was given oral instructions and there is no written agreement or contract. As against this Mr.Ilyas Khan, learned counsel appearing for Defendant No.4 has argued that the said Plot No.F-607 is owned by Defendant No.4, who has no privity of contract with the Plaintiff and, therefore, the very suit of the Plaintiff as against the Defendant No.4 is not maintainable. Mr. Ilyas Khan, Advocate has further submitted that the work done on his Plot was got done by the Defendant No.4 himself through his own sources and not through the Plaintiff. Mr.S.M.Alam, learned counsel for Defendants No.l and 2 has referred to the counter affidavit filed by Defendant No.l wherein it is admitted that he had entered into contract with the- Plaintiff only for Plot No.F-423 and that it was the Plaintiff who has failed to fulfill the contract by not completing the levelling work as per the terms and conditions of the contract. It is admitted that a sum of Rs.1.50.000/- has been paid to the Plaintiff. This Defendant, however, denies that he or the Defendants No.2 and 3 had ever asked the Plaintiff to do any levelling work on Plot No.F.607. Mr.S.A.Samad Khan, learned counsel for Defendant Np.5 has submitted that the Defendant No.5 has unnecessarily been joined as party to the present suit and no cause of action for filing of the suit has accrued to the Plaintiff against this Defendant. I have considered the submissions of the learned counsel and perused the material placed on record. It may be observed that by this application the Plaintiff has sought two reliefs. Firstly that the Defendants should be restrained from committing breech of contract and secondly that the work done by him on Plot No.F-607 be kept intact till disposal of the suit. As far as the first prayer is concerned, it is an admitted position that there was a written contract between the parties, a perusal of this contract will show that it pertained only to Plot No.F-423. It is admitted position that the Plaintiff was to be paid Rs.50,000/- after completion of the work on each of the four phases; and that three phases having already been completed a sum of Rs.1,50,000/- has been paid to him. Now remains the question of Rs. 50,000/- for the work of fojrth phase. The contention of Defendant No. 1 is that the Plaintiff has not completed this work and, therefore, he was not entitled to balance payment and thus the Defendants were within their right to cancel his remaining work and get the work done in any other . manner. On this score the Plaintiff has already claimed the damages in his suit as mentioned in prayer clauses 1,2 and 3. This itself goes to show that the loss, if any, sustained by the Plaintiff can be ascertained in terms of money and, therefore, he would not be entitled to grant of injunction as provided under section 54 of the Specific Relief Act, which reads as under; "54. Prepetual injunctions when granted.-Subject to the other provisions contained in, or referred to by, this Chapter, a prepetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act. When the Defendant invades or threatens to invade the Plaintiffs right to, or enjoyment of, property, .the Court may grant a prepetual injunction in the following cases (namely):— (a) where the defendant is trustee of the property for the plaintiff. (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that pecuniary compensation would not afford adequate relief; (d) where it is probable that pecuniary compensation cannot be got for the invasion; (e) where the injunction is necessary- to prevent a multiplicity of judicial proceedings. Explanation.- For the purpose of this section a trade mark is property". With regard to second relief sought by the Plaintiff it may be observed that it is an admitted fact that Plot No.F-607 belongs to the Defendant No.4; and that there was no privity of contract between the Plaintiff and Defendant No.4. In these circumstances prima facie the Plaintiff does not have any case against the Defendant No.4. Even if it be so, then also the Plaintiff having valued his loss/damage sustained by him would not be entitled to grant of injunction as prayed for by him in view of the -provisions of section 54 of the Specific Relief Act as afore-mentioned. At this stage the learned counsel for the Plaintiff argued that section 54 of the Specific Relief Act deals with "perpetual injunctions and not the temporary injunctions to be granted under Or<}er XXXIX rules 1 & 2 CPC. .Suffice it to say that the grant of temporary injunctions under Order XXXIX rules1 and 2 CPC are also to be governed by the principles laid down in sections 52 to 57 of the Specific Relief Act. Reliance may be placed on the case of Shahid Coal Agency Vs The Chairman, Pakistan Railways (PLD 1982 Quetta 134). Reliance can also be placed on the cases reported in PLD 1973 Peshawar 95 and PLD 1965 Dacca 361. In view of above discussion, I find no merit in this application, which is accordingly dismissed. Above are the reasons for the short order announced in Court on 8-9-1991. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Karachi 75 (DB) PLJ 1992 Karachi 75 (DB) Present: NASIR ASLAM ZAHID AND QAISER AHMED HAMIDI, JJ A.F. FERGUSON & CO.-Petitioner versus DISTRICT COURT, KARACHI and 20 others-Respondents Const. Petition No. D-641 of 1983, dismissed on 26.10.1991. EmplQyees Cost of Living (Relief) Act, 1973 (I of 1974)-- —S.6 read with West Pakistan Shops and Establishments Ordinance,1973, Section 12-Workmen "of Petitioner-Award of cost of living allowance to- Challenge o~Objection that applications of workmen were barred by limitation-No period of limitation is prescribed for making a claim under Section 6 of Employees Cost of Living Relief) Act, 1973-It is a beneficial legislation and courts should be generous towards persons who are benefited out of this legislation-Period prescribed in Section 12(2) of est Pakistan Shops and Establishments Ordinance, 1969, is not applicable to this case ~ Payment of cost of living allowance is a continuous and regular liability of employers—Held: There is no room for arguments .that claim of respondents 3 to 20 was barred by time-Petition dismissed. [Pp.80&81]A,B,C & D Mr. Rehan Aqueel, Advocate for Petitioner. Mr. AKAmjad, Advocate for Respondents 3 to 20. Nemo for respondents 1,2 and 21. Date of hearing: 30.9.1991. judgement Qaisar Ahmad Hamidi, J. The question that has been raised in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Article 9 of the Provisional Constitution Order, 1981, relates to the interpretation of section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, when read together with section 6 of the Employees Cost of Living (Relief) Act, 1973. 2. The facts are simple and may be briefly summed up. The petitioner is a professional firm of Chartered Accountants. On or about 16-6-1980, the •espondents No.3 to 20 who were employees in the workmen category in the establishment of the petitioner firm filed applications before the authority under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, the respondent No.2, claiming that the petitioner firm had not given Rs.35/-P.M. as cost of living allowance to them under the Employees Cost of Living (Relief) Act, 1973. The petitioner firm contested these applications and besides various other pleas, raised the plea of limitation. Since the said 18 applications were for the same claim and based on the same allegations, the respondent No.2 consolidated all the applications. The issue of limitation was treated as preliminary and was decided vide order dated 31-3-1981. The objection taken by the petitioner firm was over-ruled for the following reasons:- "Mr. Osmani conceded that in their written statement they have claimed that cost of living allowance of Rs.35/-P.M. (which) has been paid to the applicants and that the applications have been filed frivolously and vexatiously. He also conceded that the photostat copies of documents filed by the opposite party and on which they intended to rely have not been admitted by the counsel of other side and hence the contention that opponents have paid the COLAS required legal evidence and proof. It was also conceded by him that the payment of cost of living allowance is a continuous and regular liability and responsibility of the employer under section 4 and no limitation under section 6 of the Ordinance has been prescribed. The argument cannot therefore be accepted in vacuum. To show increase in Dearness Allowance and to claim set off from the Dearness Allowance so paid, the opponents have given photostat copy of extract from the Payment Registers of the applicant and having presented such copies of documents for acceptance or denial after the issues were framed, there is hardly any basis for the present application. This is hardly rational in labour matters when the purpose is to compel employers to make the full payment of wages to certain class of employees covered by the Act. Mr. Osmani also conceded that the authority cannot travel beyond the scope of the issue already framed by the free consent of parties and free admission that the application is maintainable under section 6 of the Cost of Living (Relief) Act, 1973 as under section 9 of this Act, the employer is liable to punishment if contravention has been committed and section 10 provides for taking cognizance of the offence by the Court. Since the payment of COLAS by the employers has been made the responsibility under the coercive provisions and machinery provided under the Act and hence the bar of limitation by implication cannot be pressed into service. So, if it is established by the applicants that payment of cost of living allowance has been withheld and that such payment is recoverable under the Act, of 1974, then they will succeed and if not, they will fail in. their claim. The cost of living allowances have been paid or not will require evidence. In case, payment has not been made, then premium of such non-payment of the cost of living allowance cannot be legitimately (?) by the plea of limitation. I was therefore unable to see force in such a technical argument and I had come to the conclusion that there was no substance in this application which is hereby rejected and repelled." 3. The cases then proceeded and common evidence was led. On the assessment of evidence'the respondent No.2 awarded Rs.35/- P.M. to be paid to each of the above respondents as cost of living allowance with effect from 1-8-1973. This order dated 20-1-1982 was challenged by petitioner firm before the District Judge, Karachi the espondent No.l, before whom the only point which was agitated was the issue of limitation and the same was rejected for the following reasons:- "Sub-section(2) of section 12 of the Ordinance is applicable when a claim is filed by an employee for the wages which has been withheld contrary to provisions of said Ordinance. These applications however are not filed under the said Ordinance, but are filed under Employees' Cost of Living Act, 1973 before the Authority, appointed under sub-section(l) of section 12 of the Ordinance as provided 'under section 6 of the Employees Cost of Living Act, 1973. Section 7 of this Act clearly lays down, that the cost of living allowance shall not form part of wages. Section 4 of the said Act lays down, that every employer shall be responsible tor the payment of the cost of living allowance required to be paid under this Act. No period of limitation has been fixed under this Act for claiming the cost of living allowance admissible under this Act. Under Section 9 penalty has been provided for the employer, who contravenes any provision of this Act. Thus the period of limitation as laid down under sub-section(2) of section 12 of the Ordinance for claim of wages, would not be applicable in a case of application for claim of the relief as provided under the Act. No limitation is provided for preferring the claim under the Act. In 58 Madras 340 it is held, that Laws of limitation are creatures of statute, and the courts have no jurisdiction to import a rule of limitation where he legislature has failed to prescribe a period. Under Article 112 of the Limitation Act the limitation for a suit for which no period of limitation is provided elsewhere in this schedule is six years from the date, when the right to sue accrues. Under section 23 of Limitation Act, in the case £f continuing breach of contract and in the case of a continuing wrong independent of contract a fresh period of limitation begins to run at every moment of the time, during which the breach or the wrong, as the case may be, continues. The respondents became entitled to receive the relief under the Act every month after its publication on 7th January 1974 in the Gazette extra-ordinary. Nonpayment of relief to the respondents raises a fresh cause of action against them every month. It also appears from the record that respondents had been moving the appellant for the payment of the relief under the said Act. As already pointed, the appellants have specially pleaded limitation only under sub-section(2) of section 12 of the Ordinance, which as already discussed above, is not applicable to the present proceedings. The plea of limitation raised by the appellant is therefore rejected." 4. It is in these circumstances that the petitioner finn has invoked the constitutional jurisdiction of this Court with the prayer that the orders passed by respondent No.2 dated 20-1 : 1982, and by respondent No.l. dated 5-6-1983 be set aside, quashed and/or declared null and void as being without lawful authority. 5. Since the decision of the present petition hinges on the interpretation of section 6 of the Employees Cost of Living (Relief) Act, 1973, and section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, it would be convenient to read the material provisions which are in the following terms:-- 6. Claims for recovery, or delay in payment, of cost of living allowance.-- Where cqntrary to the provisions of this Act, the cost of living allowance of any employee has been withheld or delayed, such worker himself or through any other person authorised by him in this behalf may apply-- (a) in the case of an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (W.P.Ordinance No.VIII of 1969), for the time being applies, to the authority appointed under sub-section(l) of section 12 thereof having jurisdiction and the provisions of the said section and sections 11,13,21,23,30 and 32 of that Ordinance shall so far as may be and with the necessary modifications, apply for the purpose of recovery of the cost of living allowance; and (b) in any other case, to the authority appointed under sub-section (1) of section 15 of the Payment of Wages Act, 1936 (IV of 1936), having jurisdiction and the provisions of the said section and sections 6,16,17,18,19,22,23 and 26 of the said Act shall, so far as may be and with the necessary modifications, apply for the purposes of recovery of the cost of living allowance." 7. Section, 12 of the West Pakistan Shops and Establish ents Ordinance, 1969, reads as follows:— "12. ' Claims arising out of delay in payment of wages and penalty for malicious or vexatious c aims:--(l) Government may, by notification in the Official Gazette, appoint any erson to be the Authority to hear and decide for any specified area all claims arising out pf delay in the payment or non­ payment of the wages in that area. (2) When contrary to the provisions of this Ordinance, wages of any employee have been delayed or withheld, such employee himself or through any otherperson, whom he may authorise in this behalf, may within four months from the day on which such payment was to be made, apply to the Authority appointed under sub-section (1):~ Provided thai an application may be admitted after the said period of four months but not later than six months, if the applicant satisfies the Authority that he had sufficient cause for not making the application within such period. (3) When any application under sub-section(2) is entertained, the Authority shall hear the applicant and the employer or other person responsible for the payment of wages or give them an opportunity of being heard and, after such further inquiry, if any, as may be necessary, may without prejudice to any other penalty to which such employer or other person is liable under this Ordinance, direct that payment be made to the applicant of delayed wages together with the payment of such penalty, not exceeding fifty rupees, as the Authority may fix:~ Provided that no direction for the payment of penalty shall be made in the case of delayed wages if the Authority is satisfied that delay was due to — (a) bona fide error or bona fide dispute as to the amount payable to the employee; or (b) the occurrence of an emergency, or the existence of such exceptional circumstances that the person responsible for the payment of the wages was unable to make prompt payment; or (c) the fault of the employee. (4) If the Authority hearing any application under the section is satisfied that it was either malicious or vexatious, the Authority may direct that a penalty not exceeding fifty rupees be paid to-the employer or other person responsible for the payment of wages by the person presenting the application. (5) Any amount directed to be paid under this section may be recovered:— (a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed y him as Magistrate; and (b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf as if it were fine imposed by such Magistrate. (6) An appeal against a direction made by the Authority under sub-section (3) or sub-section (4) may be Deferred to the District Court within thirty days of the date on which the direction was made:— (a) by the employer or other person responsible for the payment of wages under section 11 if the total sum directed to be paid by way of wages and penalty exceeds one hundred rupees; or by an employee, if the total amount of wages claimed to have been withheld from the unpaid group to which he belonged, exceeds fifty rupees; or (b) by any person directed to pay a penalty under sub-sectioo(4). (7) If there is no appeal, the direction of the Authority ma e under sub-section(3) or sub-section (4) shall be final, and where there is an appeal as provided in sub-section (6), the decision in appeal shall be final. (8) An Authority appointed under sub-section(l) shall, for the purpose of determining any matter referred to in sub-section (3) or sub­ section^)-- (a) have all the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908(V of 1908), for enforcing the attendance of witnesses, compelling the production of documents, and the taking of evidence; and (b) be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898)." 8. On going through the provisions of section 6 of the Employees Cost of Living (Relief)Act,1973, and taking into consideration section 12 of the West Pakistan Shops and Establishment Ordinance,1969, we have not discovered the result which the learned counsel for the petitioner asks us to hold by putting a wid# interpretation to the word "and the provisions of said section" used in clause (a) of section 6 of the Employees Cost of Living (Relief) Act,1973, meaning thereby that sub-section(2) of section 12 of the West Pakistan Shops and Establishments Ordinance, 1969, which prescribes the period of limitation, would apply to such proceedings. Apparently no period of limitation is prescribed for making a claim under section 6 of the Employees Cost of Living (ReHief) Act,1973. The Limitation Act, 1908, does not apply to matter not dealt with by it and since such laws take away the existing rights they should be applied in favour of the rights sought to be defeated. The Employees Cost of Living (Relief) Act, 1973, is Kar. 81 a beneficial legislation and the Courts should be generous towards the persons who are benefitted out of this legislation. 9. Sub-section(2) of section 12 of the West Pakistan Shops and Establishments Ordinance,1969, takes its colour from the words "when contrary to the provisions of this Ordinance" wages of an employee have been delayed or withheld. The words "this Ordinance" are specifically referred to the West Pakistan Shops and Establishments Ordinance,1969, and period of limitation prescribed under sub-section(2) of section 12 relates to wages of an employee which have been delayed or withheld contrary to the provisions of the West Pakistan Shops and Establishments Ordinance,1969, and not otherwise. 10. Efforts should also be made to avoid a construction which renders any part of statute redundant or surplus. The words "shall so far as may be and with the necessary modifications, apply for the purpose of recovery of cost of living allowance" used at the end of clause(a) of section 6 of the Employees Cost of Living (Relief) Act. 1973, aeain make it clear that the provisions contained in section 11.12.13.21.23.30 and 32 of the West Pakistan Shops and Establishments Ordinance, 1969, are to be applied for the purpose of recovery of the cost of living allowance with the necessary modifications. The provisions of the Employees Cost of Living (Relief) Act, 1973, therefore, cannot be interpreted in such a manner as to bring about a result so plainly contrary to the object of the legislation. 11. To sum up we consider that the words "and the provisions of the said section" used in clause (a) of section 6 of the Employees Cost of Living (Relief) Act,1973, must of necessity be construed in a more restricted sense and the context in which sub-section(2) of section 12 of the West Pakistan Shops and Establishment Ordinance, 1969, occurs. 12. t will not be out of place to mention here that the payment of cost ol living allowance is a continuous and regular liability of the employers. The respondents No.3 to 20 had. therefore, a recurring cause of action and in case of a legislation which was for the benefit of workmen the legislative purpose should not be unduly curtailed by straining the anguage a little too far. 13. In view of wha we have stated above, there is no room for the argument that the claim of respondents No.3 to 20, being barred by-time, the orders passed by respondents No.2 and 1 respectively were illegal. The petition has got no merits and is accordingly dismissed with no order as to costs. By a short order dated 30-9-1991 we had dismissed this petition. This judgment would furnish the detailed reasons. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Karachi 82 PLJ 1992 Karachi 82 Present: HAZEEQUL khairi, J INTERHOM (PVT) LTD.-Applicant versus PAKISTAN STEEL MILLS CORPORATIO.N--Responde.nt J.M. No.62 of 1989, decided on 4.12.1991. Arbitration- —-Sole arbitrator-Appointment of--Sole arbitrator transferred-Parties failing to concur in appointment of person in his place--Whether court could appoint sole arbitrator-Question of— eld: Since after vacancy, parties could not concur in appointment of Sole Arbitrator in place of former Arbitrator appointed by them, Court is empowered under Section 8(2) of rbitration ct, 1940 to appoint an arbitrator. [P.84JA Mr.Bilal KJiawaja, Advocate for Applicant. Mr.Abbas Ahmed, Advocate for Respondent. Date of hearing: 27.11.1991. order This application under Section 8(2) of Arbitration Act is filed by the applicant M/s. Interhom (Pvt.) Limited Company, to whom a contract was awarded by the respondent vide letter of award dated 8.2.1977. As per clause 12.1 of the letter of award disputes between the parties were required to be settled in the following manner: "12. Settlement of Dispute 12.1. The existing wording of Clauses 65 and 66 of the Conditions of Contract shall be treated as amended so as to read as under: Clause 65-If a dispute or difference of any kind whatsoever shall arise between the parlies hereto in connection with or arising out of the contract or the carrying out of the work, whether during its execution or after its completion, it shall in the first place be referred to the Corporation, and the Corporation shall, after giving the Contractor due opportunity to present and argue his case, communicate its final decision to the Contractor in writing within a maximum period of two months from the date the dispute or difference is referred to the Corporation. If the Corporation fails to communicate its decision within the said period or the Contractor be dis-satisfied with any such decision, then the Contractor may within thirty days after receiving notice of Corporation's decision require that the matter or matters in dispute be referred to a sole arbitrator to be appointed by mutual agreement of the parties hereto and the award of such sole arbitrator when made shall be final and binding on both the parties. In the event that no mutual agreement is reached between the parties as to the appointment of the sole arbitrator within thirty days of such requirement the matters in dispute shall be settled in accordance with and subject to the provisions of the Arbitration Act, 1940 or any statutory modification or reenactment or any amendments thereof and the rules made therein. The venue of arbitration shall be in Karachi . The parties hereto shall equally bear their own and other expenses in respect of arbitration". As per averments made in the application, the applicant executed the work of the project, but several disputes arose between the parties. The parties ultimately agreed to appoint Mr.H.N.Akhtar the then Chairman of respondent Corporation as Sole Arbitrator. The said Mr.H.N. Akhtar was, however, transferred in July, 1987 with the result that he was unable to act as agreed Sole Arbitrator. The applicant thereafter approached the concerned officials of the respondent for amicable settlement of the dispute, but with no result. However, by its notice dated 1.1.1989 the applicant called upon the respondent to fill in the vacancy created by transfer of Mr.H.NAkhtar and suggested that the matter may be referred to the arbitration of a retired Judge of Supreme Court of Pakistan. The respondent Corporation upon the receipt of the letter suggested the name of its present Chairman to act as Sole Arbitrator, but the applicant while expressing full confidence in the ability of present Chairman of respondent, expressed its inability to accept his appointment as Sole Arbitrator. In short, after exchange of a number of letters no concensus was reached between the parties as to the appointment of Sole Arbitrator. This application is opposed by respondent on two grounds. Firstly, there was no arbitration under the said clause 12.-1 of the letter of award dated 8.2.1977 which envisages reference to a referee rather than to an arbitrator. Secondly, the claim of the applicant is manifestly time barred as the respondent had rejected all the claims made by the applicant against the respondent vide anne.vure D dated 10.10.1984 to its counter-affidavit. It was, however, as late as 17.5.1986 that the applicant lodged their claim with Mr.H.NAkhtar the then Chairman of the respondent. In support of his contention, learned counsel for the respondent placed reliance "on A.I.R. 1954 Cal. 606, in which there was an agreement that a Major General named therein shall act as an arbitrator who, however, ceased to hold that office and, therefore, ifejfeas held that if the said Major General is not succeeded by another Major General there would be a vacancy in the office and the Court in the circumstances of the case was empowered to appoint some Other person as an Arbitrator. In another case reported in A.I.R. (36) 1950 East Punjab 40, the licensee was granted exclusive right to sell news papers, books etc. on station premises and in case the licensee was unable to conduct business the contract was liable to be terminated, in which case the General Manager Railways was o be the Sole Judge. It was held that the interpretation of the "Sole Judge" in the context would not include an arbitrator. The present case is clearly distinguishable as no one was amed as arbitrator by virtue of holding an office and the dispute was to be referred to a mutually appointed arbitrator. Again the language of the said clause 12.1 is so clear as to arbitration, to rule out any interpretation to refer the dispute to a referee, as contended by the respondent's counsel. Mr. Bilal Khawaja, learned counsel for the applicant, made reference to the case of Wapda v. Klianzada Muhammad Abdul Haque & Co. P.L.D. 1990 S.C. 359, in which it was held that where the appellant had agreed to extension of time for giving the award and continued to appear before the arbitration without any objection and participated in the proceedings till last and took chance for a favourable award, they waived their right to object to the award. This case is also not relevant here as after the appointment of a sole arbitrator by the parties no proceedings whatsoever had taken place before the arbitrator. The case of the respondent is that all the claims made by applicant were finally rejected by it vide Annexure 'D' dated 10.10.1984 to its counter-affidavit. That being so, the applicant within thirty days referred the dispute to the Arbitration of Mr.H.N.Akhtar in terms of the said clause 12.1. It may however be observed here that the parties cannot curtail period of limitation even by consent. From the perusal of the arbitration clause as well as from the correspondence on record it is clear that the parties were required to appoint mutually a sole arbitrator. After the appointment of Mr.H.N.Akhtar as Sole Arbitrator, the arbitration proceedings could not proceed as he was transferred. Since after the vacancy, the parties could not concur in the appointment of a Sole Arbitrator in place of the former Arbitrator appointed by them, the Court is empowered under Section 8(2) to appoint an arbitrator. I accordingly appoint Mr.Fakhuruddin G. Ebrahim, Advocate as Sole Arbitrator in the matter. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Karachi 84 PLJ 1992 Karachi 84 Present: SYHD ABDUR RAHMAN, J NASIR ALI-Applicant versus MUHAMMAD ALI and another—Respondents Civil Revision No.262 of 1991, dismissed on 2.12.1991. Sindh Civil Courts Rules-- —R.85—Suit in. forma pauperis—Filing of—Power of attorney not filed—Effect of-Suit was dismissed for non-prosecution-Applicant Mtf.Tayyeba Khatoon filed an application for restoration of suit which was dismissed on short ground mat sl.c h^H no locus standi to apply for restoration-She claimed to be attorney of her husband but o power of attorney was filed-Held: Trial Court was justified in dismissing application for restoration as having been filed by an un-authorised person-Held further: here is no justification for interfering with orders of lower courts—Petition dismissed. [Pp.85&86]A,B&C 1984 CLC 1479 & PLD 1969 Kar. 123 distinguished. Mr.Muhammad Jamil, Advocate for Applicant. Mr Abdul Alim K. Talib, Advocate for Respondents. Date of hearing: 2.12.1991. order This is a revision application under Section 115 CPC. 2. The applicant had filed a suit in forma pauperis in the Court of 1st. Senior Civil Judge (Central), Karachi . It was dismissed for non-prosecution on 1.11.1990. Applicant wife Mtf.Tayyeba Khatoon filed an application for restoration thereof which was dismissed on 1.11.1990 on the short ground that Mst. Tayyeba Khatoon had no locus-standi to apply for restoration. It was claimed that she was Attorney of applicant Nasir Ali, her husband, but no Power of Attorney was produced or filed in Court at any stage, as required by Rule 85 of the Sindh Civil Courts Rules. Mr.Jamil Ahmed, learned counsel for the applicant, stated at the bar that he had produced photo-stat copy of the Power of Attorney before the trial Court. In order to verify his statement, the R.&P. of the Trial Court was sent for, but neither any such photo-stat copy of Power of Attorney is available on record, nor the entry, as required by sub-rule(2) of Rule 85 of the Sindh Civil Courts Rules was there. Hence it cannot be believed that any such Power of Attorney was produced or shown to the Reader of the court. The learned Civil Judge was, therefore, justified in dismissing the application for restoration as having been filed by an unauthorised person. Mr.Jamil Ahmed relied upon 1984 C.L.C. Lahore 14" j i Lt.Col.Rjtd. P.G. Braganza v. The Border Area Allotment Committee). This case relates to a constitution petition filed before Lahore High Court, where it was observed that 'oral authorisation, if genuine, was not excluded'. This report is, however, distinguishable from the present case in as much as that the petitioner had appeared in person on first two or three days of the constitution petition and then filed an Affidavit specifically deposing that he had authorised his agent to institute constitution petition. Thereafter the petitioner had executed anofher General Power of Attorney specifically for filing constitution petition in the H' jh Court. The petitioner was abroad when the agent had filed the petition and o rebuttal was filed by the respondent to pach up the authorisation. Mr.Jai.-i' Ahmad has also cited P.L.D. 1969 Kar. 223 (Eagle Star Insurance Co. Ltd. v. M/.-. Usman Sons Ltd.). The case relates to an equitable mortgage by deposit of Title Deeds. The ruling does not help the applicant, because it has been specificall' held therein that a Power of Attorney confers upon the agent, authority to perform only the specified acts on behalf of the Principal. The agent can neither go beyond, nor deviate from the terms of the instrument. 3. Under these circumstances I do nqt find any justification for interfering with the order of the learned Trial Court as well as the learned 1st. Appellate Court. It appears from the record that the applicant had also approached this Court on the administration side on 15.5.1991. Member, Inspection Team had advised the applicant to file a proper application for restoration of his pauper suit. Instead of filing the restoration application, he filed application for review of the Order dated 13.4.1991 passed by the 1st. Appellate Court, which was dismissed for obvious reasons. Under these circumstances I dismiss the revision application in limine. However, the applicant is at liberty to file an application for restoration of his pauper suit before the trial Court as was advised to him by the Member of Inspection Team. The application will, however, be subject to all just exceptions. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Karachi 86 PLJ 1992 Karachi 86 Present: IMAM ALI G. kazi, J M/s. SUMITOMO RUBBER INDUSTRIES, JAPAN-Appellants versus DEPUTY REGISTRAR OF TRADE MARKS, KARACHI-Respondent M.A.No.59 of 1991, accepted on 5.12.1991. Trade Marks Act, 1940 (V of 1940)-- —S.14(l) read with Section 37—Trade Mark—Registration of—Application for— Refusal to register trade mark-Challenge to-A person can apply for registration of trade mark under Section 14(1) if he has been using it for his products or proposes to use in future—In case where mark is registered without any bonafide intention of applicant to use it, such a mark can always be removed from register if its non-use is established under Section 37 of Act- Held: Trade mark being already used by appellants in Japan, it cannot be said that they do not intend to use it in Pakistan—Appeal allowed. [Pp.87&88]A,B&C Mr.Abdul Rasheed, Advocate for Appellants. Nemo for Respondent. Date of hearing: 5.12.1991. judgment M/s. Sumitomo Rubber Industries, the Appellants herein, applied for registration of a trade mark comprising the word " WINDSOR " in respect f automobiles, tyres and wheels, in class 12. Their application was numbered as Application No.102154. The Deputy Registrar Trade Marks, Respondent herein, by his notice addressed to the Appellant required them to file an affidavit indicating their definite intention to use the mark applied for registration. The Agent of the Appellants replied to the notice and pointed out that by filing application for registration of the trade mark they clearly intended to use the mark in Pakistan and in absence of any provision in law or the rules to file such an affidavit, the requisition made by the Respondent was not justified. The reply given by the Appellant was not accepted. The Appellants were then heard by the Respondent who in exercise of his discretion under Section 14(1) of the Trade Marks Act, 1940 refused the application by his decision passed on 30.5.1991. This appeal has been filed under Section 76 of the Trade Marks Act, 1940 against that decision. Mr.Abdul Rasheed, Advocate for the Appellants, contends that the decision of the Respondent refusing their application for registration of trade mark is not justified on the reasoning given by the Respondent. The trade mark applied for is being used by the Appellants in Japan and they positively intend to use it in Pakistan in near future. Although there is no provision of any law or rule in this country which makes it obligatory on the Appellants to file the affidavit as indicated by the Respondent the Appellants are ready and willing to do so either before this court or even before the Respondent. The Respondent relied on the case reported in RPC 1898 Vol.15 page 534 and refused the application. That is a case of expunging a registered trade mark that was neither in use before registration was applied for nor was used till reasonable time had passed after registration of the mark was procured and facts ot that ca>; are diticixnt from the Ltcts of the present case. A person can apply for registration of a trade mark under Section 14(1) of the Trade Marks Act, 1940 if he has been using it for his products or proposes to use the same in future. Plain reading of the said Section clearly indicates that the person applying for registration must either have used it prior to the making of the application or intends to use it after registration of mark is procured by him. No doubt the registration of a Trade Mark contemplated by Section 14 of the Trade Marks Act, 1940 has to be such a mark which is already in use orintended to be used. In case where mark which is registered without any bonafide intention of the Applicant to use it such a mark can always be removed from the register if its non-use is established under Section 37 of the Trade Marks Act, 1940. Till such lime when the proceedings arc initiated and decided in terms of Section 37 of the Act and in absence of any provision of law or rules or evidence on record the Respondent cannot refuse the application under Section 14(1) of the Trade Marks Act, 1940 on that ground. The trade mark applied for registration in Pakistan is already being used by the Appellants in Japan and it cannot at this.stage be said that they do not intend to use it here. The decision of the Respondent being devoid of sound reasoning, is set-aside, appeal allowed and the Respondent directed to proceed further in the matter. Appeal accepted. (Approved for reporting)

PLJ 1992 Karachi 88 PLJ 1992 Karachi 88 Present: M. HUSSAIX ADIL KHATRI, J Mst. HAJIANI HAJRABAI-Plaintiff versus AFZAL ALI and others-Defendants C.M.A. No.969 of 1991 (in Suit No.431 of 1978) accepted on 4.11.1991. Civil Procedure Code, 1908 (Vof 1908)-- —-O.V1 R.17--Written statement-Amendment of-Prayer for-Prayer allowed subject to all just exceptions-Whether defendants could be permitted to resile from admissions ade by their predecessor-in-interest—Question of—Reading of order on application for amendment does not show that defendants were allowed to amend written statement s prayed for in application—Words "just exceptions" would mean that defendants may file amended written statement containing only such amendments as are permissible nder law-Held: Defendants cannot be permitted to resile from admissions made by their predecessor-in-interest-Application accepted. [Pp.90,91&92]A,B,C&D PLD 1982 Karachi 111/tV. Mr.A.I.CInmdrigar, Advocate for Plaintiff. Mr.Mushtaq Mcinon, Advocate for Defendants. Date of hearing: 4.11.1991. order Before coming to the present application it would be worth the while to refer to the background of the case. The suit was filed by the plaintiff for specific performance of the contract against the following defendants :— 1. Af/al Ali Khan 2. Msi. Zohra Bai 3. Mst. Khadija Bai In the plaint it was stated that the plaintiff had contracted with the defendants for purchase of bungalow NoJM 943/5, Clayton Road , Karachi for total consideration of Rs.5,00,000/- under agreement dated 27.2.1978. In terms of the said agreement a sum of Rs.1,00,000/- was payable at the time of execution of the sale agreement, Rs.50,000/- on 8.3.1978 and balance amount of Rs.3,50,000/-at the time of execution of the sale deed before the Sub-Registrar of Properties. However, at the time of execution of the sale agreement, the defendants requested for additional payment of Rs.15,000/- and accordingly in addition to Rs.1,00,000/-, the plaintiff paid additional sum of Rs.15,000/- to the defendants on 27.2.1978 out of Rs.50,000/- which was payable on 8.3.1978, It was further stated in the plaint that on 19.3.1978, the plaintiff paid to the defendants a sum of Rs.35,000/-. Thereafter notices were exchanged between the parties and on 18.4.1978, the plaintiff paid a sum of Rs.25,000/- to the defendants. All the 3 defendants on 5.3.1979 jointly filed their written statement in which the execution of the agreement was admitted. The sale consideration, as disclosed in the plaint, was not disputed. The defendants also admitted the receipt of the total amount of Rs.1,75,000/- out of the sale consideration, as detailed in the plaint. The defendants, however, took the plea that the plaintiff having failed to perform his part of the contract in terms of the agreement, was not entitled to specific performance of the contract. On 1st April, 1979, the following issues were framed by consent in view of the pleadings of the parties:-- "1. Whether the plaintiff performed her part of the contract ? 2. Relief?" On 19th May, 1987, defendant No.3, Mtf.Khadija Bai filed an application under Order VI Rule 17, CPC for amendment of written statement. This application was numbered as CMA 2891/87.The amendments that were being sought, were intended to resile from the admissions made in the earlier written statement. The said defendant No.3 died before the aforesaid application for amendment of the written statement could be decided. She was succeeded by Mtf.Tasneem Bano, defendant No.3(/) and Quaid Johar, defendant No.3(«), being daughter and son of the then defendant No.3. Defendant No.2 also expired who was also succeeded by the aforesaid two defendants. The aforesaid^ application came up before the Court on 4th May, 1989, when the following order was passed :-- "By consent the L.Rs. of defendant No.3 are permitted to amend the written statement which will be subject to all just exceptions. Amended written statement shall be filed within 15 days. CMA No.2891/87 stands disposed of. Consequently the said two newly joined defendants filed their written statement on 16th August, 1989 in which all the admissions made earlier have been given go by. However, on the basis of the pleadings as contained in the amended written statement issues proposed by the said defendants were adopted on 5th May, 1991. On the said date before the issues were adopted by the Court, a request was made for time by the learned advocate for the plaintiff for submitting B an application for deletion of certain portions of the written statement. However, for the reasons stated in the said order the said request for grant of time was refused. Under the above circumstances the present application has been filed by the plaintiff praying that the defendants be not permitted to rely on such contents of the written statement filed by them on 16th August, 1989 which are in conflict with the written statement filed by the original defendant No3 on 5th March, 1979. With a further prayer that the issues framed on 5th May, 1991 be amended and consent issues framed on 1st April, 1979 may be adopted. 1 have heard MrA.I. Chundrigar for the plaintiff and Mr.Mushtaq Memon for the defendants No.3(r) and 3(;7). The learned advocate for the plaintiff has contended that the admissions made earlier in the written statement cannot be nullified and new or inconsistent case cannot be permitted to be set up by the newly joined defendants. onsequently the submission is that the issues adopted on 5th May, 1991 should be discarded and consent issues framed on 1st April, 1979 be adopted. In support of the above submissions, the learned counsel relied on the case of Haji Suleman All Muhammad . Ahmed All and another (PLD 1982 Karachi 111). . • The learned counsel for defendants No.3(/) and 3(0) has distinguished the aforesaid authority by pointing out that the present case is not the one where the amended written statement was filed in reply to the amended plaint but the amendment in the written statement was sought by original defendant No.3 and since she had died, the amended written statement was filed by her successors-ininterest, in view of the order passed by this court on 4th May, 1989, whereby the application seeking amendment of the written statement was allowed by consent, subject to all just exceptions. According to the learned counsel in view of the above consent order the plaintiff cannot be permitted to restrict the said defendants to the contents of the original written statement filed by defendant No.3, Mst. Khadija Bai In so far as the contention of the learned advocate for the said defendants goes, is correct in that the order was passed by consent but what is important is that it was subject to all just exceptions. The contention of the learned counsel that the said application for amendment of written statement having been allowed by consent order, cannot be now varied, is not correct. The reading of the said order does not show thaUhe said application for amendment of the written statement was allowed. The said order does not state that the said defendants are allowed to amend the written statement as prayed for in the said application, least to say of the alleged consent of the plaintiff for granting the said application. On the contrary, the above application of Mtf.Khadija Bai was vehemently opposed by the plaintiff in her counter affidavit filed in reply to the said application wherein reasons were stated in detail rebutting the contentions of the deceased defendant. The consent order, therefore, allowed the said defendants to file amended written statement, subject to all just exceptions. To put it in other words, the defendants were not allowed to file the amended written statement in terms of CMA No.2891/87, but were allowed to file the amended written statement subject to all just exceptions. The words "just exceptions" in the context would mean that the defendants may file the amended written statement containing only such amendments as are permissible under law. If the law be that the defendants cannot be permitted to deviate from the admission made earlier by their predecessor-in-interest, the newly added defendants cannot be permitted to so deviate from the earlier written ( statement, that it would stand nullifiled or set up altogether a new case. In the case of Haji Suleman Ali Muhammad (supra), the plaintiff had filed a suit for specific performance of contract. The defendants filed their written statement, asserting that they were ready and willing to perform their part of the agreement. The defendants had also filed a suit against the plaintiff for declaration and injunction which was withdrawn. After filing of the written statement, the plaintiff made an application under Order VI Rule 17, CPC seeking permission to amend the plaint. The amendment requested for pertained to deletion of the area mentioned in the plaint together with consequential amendments. The said application was granted with consent subject to all just exceptions and the defendants were allowed to file written statement accordingly. The defendants filed their amended written statement which did not contain the admissions made by them in the original written statement. The plaintiff, therefore, filed an application under section 151, CPC praying that the defendants should be restricted to give reply only in respect of such paragraphs of the plaint which were amended and the varied written statement in conflict with the earlier written statement, filed by them should not be accepted on record. A learned Judge of this Court Mr.Justice Saleem Akhtar, J. (as he then was) after referring to the case law on the subject observed as under :— " ............... The Court has vast discretionary powers to grant amendment andshould be liberally exercised to promote the ends, of justice and determine the real controversy between the parties. While filing amended written statement besides replying to the amended part of the plaint, the defendant can also raise pleas which may be legally available to him. But it does not entitle the defendant to resile from the admission made in the earlier written statement or to put up a completely new or inconsistent case as pleaded in the earlier written statement. Admission made by a party in the pleading cannot be revoked without -the leave of the Court". The rule laid down in the above case is fully applicable to the facts and circumstances of this case and I respectfully follow the said rule. Consequently it is held that the said defendants No.3(i) and 3(«) cannot be permitted to resile from the admissions made by the deceased defendant No.3. All such averments made in the written statement dated 16th August, 1989, which are 0 in any manner in conflict or inconsistent with the written statement dated 5th March, 1979, shall be ignored and deemed non-existent for all purposes. The consent issues framed on 1.4.1979 are adopted. C CMA No.%9/91 is accordingly allowed as prayed. (MBC) (Approved for reporting) Application accepted.

PLJ 1992 Karachi 92 PLJ 1992 Karachi 92 Present: haziqul khairi, J SINDH SPORTS BOARD-Plaintiff versus Brig. (Rtd.) KHAN A. SHAMSHAD and another-Defendants C.M A. Nos.4200 and 4548 of 1991 (in Suit No.987 of 1991) decided on 4.12.1991. Civil Procedure Code, 1908 (V of 1908) -- —O.XXXIX Rr.l&2 and with Rule. 4, O.I Rule 8 and Sindh Sports Ordinance, 1980 (VIII of 1980), Sections 6 & 11-To restrain Defendant No.l from holding office of Pakistan Amateur Athletic Federation-Suit for-Temporary injunction—Prayer for—Objection that defendant No.2 is an un-registered association and it cannot be sued without permission of court—There is nothing in Order I Rule 8 of C.P.C. which exonerates an un-registered association of any liability or exempts it as a privileged body from being sued— It is an admitted position that after decision of general body, a new team of office bearers and Committee members were elected and defendant No.l did not participate in election-As such, suit has been filed by a duly authorised person—Held: Plaintiff has made aprima facie case for grant of injunction. [Pp.95,96&97]A,B&C PLJ 1983 SC 262 and PLD 1960 Kar. 512 rel. Mr.KMNadeefn, AA.G. for Plaintiff. MrAfsarAHAbidi, Advocate for Defendant No.l. Date of hearing: 4.12.1991. order By this order I will dispose off two applications, namely CMA 4200 of 1991, filed by the plaintiff under Order 39 Rules 1 & 2 CPC and the other bearing CMA 4548 of 1991 under Order 39 Rule 4 CPC, filed by the defendant No.l. The plaintiff Sindh Sports Board in CMA 4200 of 1991 has prayed for interim injunction restraining defendant No.l namely Brig: (Rtd) Khan A. Shamshad from holding any office in any capacity in the Association of defendant No.2, namely Pakistan Amateur Athletic Federation or to represent or cause representation 'of any team/teams to participate in athletic events at District, Divisional, Provincial or National level and also further restraining defendant No.2 from allowing defendant No.l to participate in its functions/workings in any capacity or to accept for purpose of participation in any team/teams of Athletics except with explicit permission of the plaintiff till final decision of the above suit. Earlier adinterim injunction was granted to the plaintiff on 15.9.1991. The plaintiff is a statutory body created and constituted under Sindh Ordinance No.(VIII) of 1990 of which the Hon'ble Governor of Sindh is the Chairman, by virtue of Section 6 of the Ordinance. The said Ordinance came into being with a view to streamlining and regularising the functions and conduct of voluntary association and to promote and develop sports in the province. The functions of the board are embodied in Section 6 of the Ordinance and Section 11 thereof prescribes the manner in which an association of sports or games and physical education may get itself registered with the plaintiff. At the time of creation of the plaintiff board in 1980 a voluntary association of athletics under the name and style of "Sindh Amateur Athletics Association" was operating in the province of Sindh which got itself registered with the plaintiff in accordance with the provision of the said Section 11 of the Ordinance. The said Association was also a member of defendant No.2 namely Pakistan Amateur Athletics Federation. Defendant No.l by virtue of office bearer of the said Association was elected/opted as office bearer of defendant No.2. The plaintiff in exercise of its power vested in it under Section 12 of the Ordinance by a notification dated 8.5.1991 suspended/superceded .the registration/membership of the association on account of misconduct, mis­ appropriation/mis-use of funds by its office bearers and also because of noconfidence motion against its office bearers. Despite suspension/supersession of the association, defendant was holding himself out as representative/office bearer of the association and is mis-using its affiliation with the defendant No.2, thereby attempting to nominate teams for participation in athletics event at District, Divisional, Provincial, or National Level. By another notification dated 8.5.1991, the Association was placed under the Administrator-ship of Commissioner, Karachi Division for holding election and for selecting teams for such events where participation of the province was necessary in the public interest. Accordingly, on 22.8.1991, the election of the Association was held in the office of the Commissioner Karachi Division and the results were also declared. It is further alleged that defendant No.l illegally and wrongfully.refused to accept the democratic process and controverted the results of the elections which. were participated by ah 1 the Districts and Divisional Associations operating in the province of Sindh . While posing himself as an office bearer of the Association he issued misleading press statements and indulged in illegal and wrongful activities: Defendant No.l, hi support of his application bearing No.CMA 4548 of 1991, has prayed for vacating adinterim order dated 15.9.1991 passed in GMA 4200 of 1991.The affidavit in support of this application runs into 35 pages and contains, among others, the history of the Association. In support of this application learned counsel for defendant No.l, MrAfsar Ali Abidi, raised the following contentions:- 1. Defendant No.2 is not a registered body. No suit can be filed against it without permission of the Court. 2. Section 4(2) of Sindh Ordinance VIII of 1990 envisages that the Director of Sports, Government of Sindh, shall act as the Secretary of the Board. It is not so in the present case. 3. No notice was served by the plaintiff on defendant No.l before taking the alleged action of suspension, supersession of the "Association". Defendant No.l was not heard as to the so called irregularity, mis-appropriation of funds, mis­ representation etc. 4. Annexure (?) would reveal that an action in terms of Section 9(B) was contemplated but the plaintiff instead illegally and without jurisdiction has taken steps for suspension/supersession of the Association under Section 12. 5. The Managing Committee of the Association cannot be superceded for a period of more than one year in view of Section 12(2) of the Ordinance. 6. The defendant No.l was not found responsible for mis-appropriation of fund or mis-management of the affairs of the Association as no Order for his removal from the Association .has been made by the plaintiff nor was he disqualified from becoming a member of the Association, therefore, the adinterim order of injunction may be recalled. Mr.K.M.Nadeem, learned counsel for the plaintiff, contended that Order 1 Ruie 8 CPC is an enabling provision and permits a plaintiff or defendant to obtain leave to file or defend the suit in a representative capacity. It would be advantageous to reproduce here the provisions of Order 1 Rule 8 CPC as under :-- "One person may sue or defend on behalf of all in same interest.--(T) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit". In Rangal Shah v. Mula Jadal, PLD 1960 Karachi, 512, it was held that Order 1 Rule 8 CPC is an enabling provision of law and does not entail any compulsion for a person to bring a representative suit, where an action can be maintained by him without joining others. It simply enables a person to represent many others who have a common cause of action with him, but if his action is maintainable and he can proceed independently of the others, he does not at all stand in need of including others or to prefer a representative suit. In Saleh Muhammad and two others v. Haji Jumma KJian Ag/ta and four others, PLJ 1983 S.C. 262, it was held that the provision of Order 1 Rule 8 being only enabling and permissive and not mandatory in nature, a suit is not necessarily (to) be instituted in representative capacity in case of there being several persons interested in suit or proceedings. In the above citations, the question before the Court was whether in case of common cause of action a suit was required to be filed by the plaintiff in a representative capacity or not. Here the objection taken by MrAfsar Ali Abidi is that the defendant No.2 is an unregistered association and it cannot be sued unless permission is obtained by the plaintiff from the Court to sue it. A bare reading of Order 1 Rule 8 CPC will reveal that it contemplates no legal bar or disability of the plaintiff such as an unregistered firm shall have to institute a suit upon contract agains: a third party under Section 69 of the Partnership Act. What is contemplated under Order I Rule S CPC is that a plaintiff or a defendant may seek permission of the Court to sue or be sued in a representative capacity. There is nothing in law which exonerates an unregistered association of any liability or exempts it as privileged body from being sued, for it would defeat the ends of justice. Had such being the case an unregistered association would have free license to indulge in all sort of illegal activities, setting up at the same time the plea taken by the learned counsel for plaintiff. Next it was contended by Mr.K.M.Nadeem that a show cause notice was issued to the defendant No.l before a decision was taken by the plaintiff. Reference! was first made to paras 6, 7 and 8 of the plaint wherein are found charges of mis-conduct, mis-appropriation and mis-application of fund against the office bearers including defendant No.l. A no-confidence motion was also adopted against them. In paras 30-31 of the counter affidavit filed by the defendant No.l reference was made to the illegally constituted parallel body under the name and style of Sindh Amateur Athletic Association whereupon the defendant No.l and others were called upon to give their pleas in writing or appear in. person before the Executive Committee of the plaintiff. Next reference was made to Annexure-G filed by the defendant No.l being a notice sent by the plaintiff and Annexure-H being a letter from the Secretary of defendant No.l, expressing his inability to attend the meeting on the ground of want of jurisdiction as the authority to resolve the dispute was the Pakistan Amateur Athletic Federation defendant No.2. It was pointed out by Mr. K.M. Nadeem that the Annual General Meeting of the plaintiff was held on 27.3.1991 at 11-00 A.M. which was chaired by the Governor of Sindh. in which amongst others the following decisions were taken:-- 1. That in future Secretary' Culture, Sports, Tourism and Youth Affairs shall act as Secretary of the plaintiff. 2. The meeting took serious note of the rising trend of parallel bodies in Sports Organizations with special reference to illegal action by defendant No.l for amending the constitution of the Sindh Amateur Athletic Association without consent of the plaintiff Board. The proposed amendments were never approved by the plaintiff with the result that two parallel bodies came into existence. 3. That the Executive Committee of the plaintiff was directed to take necessary steps to hold elections of only one body under the name of the said Association. Reference was made to Section 11 whereunder no amendment is possible to the constitution of the association without the consent of the Board. However, pursuant to de ision taken at the said meeting of the plaintiff, elections of the Association were held on 27.8.1991 and new office bearers were elected. It was lastly contended that Section 12 of the Sindh Sports Ordinance (VIII of 1980) Clearly confers jurisdiction on the plaintiff Board to take any action as envisaged therein against any association registered with it and the objection raised by Defendant No.l is not valid at all. At this stage of the case it will not be possible to adjudge all aspects of the case. However, it is an admitted position that after the decision was made by the general body of the plaintiff, defendant No.l did not participate in the elections of the Association and a new team of office bearers and Committee members was elected. According to Mr.K.M.Nadeem, learned counsel for plaintiff, the Secretary Culture, Sports. Tourism and Youth Affairs, Government of Sindh is now the Secretary of the plaintiff Association as per the decision of the general body. As such this suit has been filed by a duly authorised person. Further the plaintiff alter making an enquiry as envisaged under Sectionl2 had taken action complained of by the defendant No.l, but he was afforded an opportunity of being heard by the Managing Committee. In view of the facts enumerated above, the plaintiff has made out a.prima facie case for injunction and defendant No.l has failed to justify vacating of adinterim injunction, earlier granted by the Court. Resultantly, I grant C.MA. No.4200 of 1991 filed by the plaintiff and dismiss C.M A. No.4548 of 1991 filed by the defendant and the injunction is hereby confirmed till the disposal of the suit. (MBC) (Approved for reporting) Injunction confirmed.

PLJ 1992 Karachi 97 PLJ 1992 Karachi 97 Present: SYED ABDUR REHMAN, J ABDUL HAMEED-Appellant versus MUHAMMAD SHAH KHAN-Respondent FRA Nos.669 and 670 of 1991, dismissed on 15.12.1991. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S.15-Tenant--Ejectment of-Challenge to-Finding of Rent Controller as to default in payment of rent is un-exceptionable-Finding on point of subletting is not open to nterference because respondent filed affidavit that appellant had sublet premises to Kalian, but appellant has not denied same in his ffidavit-in-evidence--Issue about personal equirement of shop has also rightly been decided in favour of respondent—Held: There is no merit in these appeals-Appeals dismissed. . [Pp.98&99]A Syed Javed Iqbal, Advocate for Appellant. Date of hearing: 15.12.1991. order These t\io F.R As. are directed against the judgments of Hl-Sr. Civil Judge & Rent Controller, Karachi , Central dated 14.10.1991, whereby she directed the appellant to vacate the shop in question and hand over the possession to the respondent within sixty days. 2. The appellant is tenant of the respondent in Shop No.4, which is situated in Quarter No.3/350, Liaquatabad, Karachi @ Rs.100/- per month. The respondent filed ejectment application against the appellant on the ground that he is defaulter in payment of rent from September, 1982. Besides this he also did n t pay the electricity charges. The respondent further alleged that the appellant had damaged the shop by using fire-heater for cooking as professional "Bawarchi", and that he had sub-let the premises to one Kalian. Additionally, it was pleaded that the respondent required the shop for his personal bonafide use. The application was resisted by the appellant. He has alleged that he was being paid (?) rent @ Rs.120/- per month. He has alleged that the respondent was not issuing any receipt to him. He demanded receipt for the first time in November, 1985. On the refusal of the respondent to issue receipt he started to send the same by money order. The money order was also refused. Hence he started depositing the same with the controller in MRC No.190/1986. He denied to have caused damage to the shop in question and alleged that he was cooking on footpath. He denied that he had sublet the shop to one Kalian. He has alleged that Kalian is his younger brother and helps him in cooking food. He has also denied that the shop is required by the respondent for his bonafide personal use. The learned Controller took up issues of default in payment of rent, damage to the shop, subletting and requirement of the shop for the bonafide personal use. On the appraisal of the evidence led by the parties on the issues, the learned Controller came to the conclusion that the appellant had defaulted in payment of rent, and that he had sublet the shop to one Kalian, and that the respondent required the shop for his personal bonafide use. I have heard Mr.Syed Javed Iqbal Advocate for the appellant. The respondent had alleged that the appellant has not paid any rent, whatsoever, w.e.f. September, 1982 till the date of filing of the ejectment application, i.e. 15.9.1984. He also did not pay the rent even thereafter. He had alleged that he was regularly issuing receipts to the appellant, whenever, he used to pay him rent. Not doubt, the initial burden to prove that the receipt was being issued was on the landlord. He has discharged his burden by stating in his affidavit that the rent was not paid, and that he was issuing such receipts whenever the rent was paid to him. In such a situation the burden was shifted upon the appellant to prove that he paid the rent, by producing such receipts. The appellant has not produced any receipt, whatsoever, for that period. The appellant has set up a defence that the respondent filed this ejectment application because when the rent of November, 1985 was tendered by him to respondent's son he insisted upon a receipt, and on his refusal to give the same, he had started sending the rent by money order, and on the refusal of the respondent to accept the money, he started depositing the rent with the Controller. This defence on the face of it is un-believable, because the ejectment application has been filed in September, 1984. If the appellants' plea was bonafide then he would have sent the money order on a date before or immediately after September, 1984. 4. I am, therefore, satisfied that finding of the learned Controller as to the default in payment of rent is un-exceptionable. Similarly, the finding of the Controller on the point of subletting is not open to interference, because whereas the respondent has filed affidavit to say that the appellant has sublet the premises to Kalian without his permission, the appellant has not denied the same in his affidavit-in-evidence. The issue as to the requirement of the shop for the bonafide personal use of the respondent has also been rightly decided in his favour on the basis of evidence led by means of affidavit and on the respondent's successfully withstanding the test of the cross-examination. I, therefore, do not find any merit in these appeals, and dismiss the same in limine. However, as a matter of grace, I allow another sixty days time to the appellant to vacate the shop. In case, he does not vacate the shop on or before 15.2.1992, the Controller may eject him without j any notice. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1992 Karachi 103 PLJ 1992 Karachi 103 Present: IMAM ALI G. KAZI, J ABDUL HUSSAIN Appellant versus Default-- Mst. KUBRA BAI--Respondent F.R.A.No.210 of 1988, accepted on 25.11.1991. —-Tenant-Ejectment of-Default in payment of rent-Ground of--Whether water charges are included in rent—Question of—Default in payment of water charges pertains to period when rented premises were situated within Cantonmeni Area and water charges were directly recoverable from occupiers of such buildings under Section b5 of Cantonments Act, 1924-Appellant was directly given water connection for premises in dispute and was paying water charges directly to Cantonment Board-Held: Failure to pay water charges cannot be considered to be default' in payment of rent particularly when Cantonments Rent Restriction Act unlike Sindh Rented Premises Ordinance, 1979. has not provided any definition of term "Rent" giving it an extended meaning as it is given in latter enactment—Appeal accepted. [Pp.l05&106]A ,B &C 1983 CLC 845 distinguished. Mr.S.Hasan Asghar Rizvi, Advocate for Appellant. Mr.Badmdduja KJian, Advocate for Respondent. Date of hearing: 25.11.1991. judgment The Appellant Abdul Hussain is a tenant of Mrf.Kubra Bai, the Respondent erein , of a residential premises No.2 of Kubra Manzil, situated on Plot No.12/6, Saifee Market, Model Colony, Karachi , owned by her. The Appellant was inducted as a tenant on agreed rent of Rs.90.00 per month excluding water and • electricity charges. Mtf.Kubra Bai on 14.7.1986 filed an application under Section 15 of the Sindh Rented Premises Ordinance, 1979 in the Court of I Senior Civil Judge and Rent Controller Karachi (East) for ejectment of her tenant on the ground that he had committed default in payment of rent from February 1985 to June 1986 and for the month of February 1983 in addition to that period. She further claimed that the tenant did not pay water charges from 1978/79 to 1985/86 as well. The Application was resisted by the tenant. He asserted that the rent was regularly deposited firstly in the Court of Controller of Rent, Malir Cantonment in Rent Case No.15/83 and thereafter in the Misc. Rent Case No.1066/88 filed before the Rent Controller Karachi. He further stated in the written statement that he was paying water bills directly to the Cantonment Board and he did not pay the same because the supply of water was disconnected by the Cantonment Board and no bills were issued to him. He generally denied the allegations and stated that he is not liable to be ejected from the premises in question. Both the parties led evidence both oral and documentary and the Rent Controller by his order passed on 3.2.1988 in Rent Case No.527/86 held that the Appellant hadnot committed default in payment of rent but as the Appellant had admitted that he had not paid the water charges she held that water connection was disconnected due to the non-payment of water charges by the Appellant and thereby he had committed default in payment of rent. On the basis of such finding she allowed the ejectment application, and directed the Appellant to hand over vacant possession of the premises to the Respondent within 60 days from the date of her order. Mr. S. Hasan Asghar Rizvi, Advocate for the Appellant, contends that admittedly the premises in question was situated within the limits of the Malir Cantonment till 1.7.1987 when the area was transferred and brought within the limits of Karachi Municipal Corporation. The period of default alleged in the application pertains to a period when the premises was within the jurisdiction of Malir Cantonment Board and the parties for the relevant period were governed by the Cantonments Act, 1924 and Cantonments Rent Restriction Act, 1963. The ferm "Rent" is not defined under Cantonments Rent Restriction Act, 1963 and therefore unlike its definition given in the Sindh Rented Premises Ordinance, 1979, water charges shall not be included in rent. He further contended that water in the premises was provided by the Malir Cantonment Board under Section 220 of Cantonments Act, 1924 to the occupiers of a premises and occupiers are directly responsible f9r payment of water charges under Section 65 of the Cantonments Act, 1924. He further pointed out that till today water has not been restored and water charges are not being paid by the Appellant. Under the circumstances, according to him, it cannot be said that the Appellant has failed to pay the rent due to non-payment of water charges to the Malir Cantonment Board. The relationship between the parties for the relevant period will be governed by the provisions of the two enactments mentioned above. Mr.Badrudduja, Advocate for the Respondent, contends that the Appellant was inducted on the basis of a tenancy agreement, (not produced on record by either of the parties) clearly stipulates payment of water charges in addition to the agreed rent. He, however, admits that inspite of such stipulation in the agreement, the Appellant was paying water charges directly to Malir Cantonment Board and not to the Respondent. In any event, according to him, water was disconnected due to the non-payment of water charges by the Appellant. He further pointed out that although the West Pakistan Urban Rent Restriction Ordinance, 1959 did not define "rent" it was held in a case reported in 1983 CLC 845 that water charges shall be deemed to be rent. He further contended that the Rent Controller did not apply his mind carefully to the facts of the case as the Appellant had not paid rent for the month of February 1983 and burden of proving such fact was erroneously shifted to him and on that score alone he will be liable for ejectment. Admittedly the alleged default in payment of water charges relates to a period when the rented premises were situated within the limits of Malir Cantonment and the Cantonment Board was responsible for supply of water either to the owners of buildings within the area or directly to occupiers of the buildings under Section 220 of the Cantonments Act, 1924. Water charges are recoverable directly from the occupiers of such buildings under Section 65 of that Act. In cases where such charges are not paid consequences as provided in its Section 224 shall take place. Admittedly the Appellant in the present case was directly given water connection for the premises in dispute and was paying the water charges directly to the Cantonment Board under an arrangement authorised by a special enactment. Failure to pay water charges under the circumstances cannot be considered to be default in payment of rent particularly when the -Cantonments Rent Restriction Act unlike Sindh Rented premises Ordinance, 1979 has not provided any definition of term "Rent" giving it an extended meaning as it is given in the latter enactment. The case referred to by the Advocate for the Respondent is distinguishable as it does not relate (to) premises situated within any Cantonment area. As regards the second contention advanced by the Advocate for Respondent, the Rent Controller has recorded the finding on the basis of the evidence adducedby the Respondent which did not prove that the rent for the month of February 1983 was not paid by the Appellant and no exception can be taken to such finding. For the foregoing reasons the order of the Rent Controller impugned in this Appeal is set-aside and Appeal allowed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Karachi 106 PLJ 1992 Karachi 106 Present: HAZIKUL KHAIRI, J Mir SADIQ ALI and another-Appellants versus ISHTIAQ AHMAD-Respondent F.R A. No.901 of 1988, accepted on 5.12.1991. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)- —S.15-Tenant~Ejectment of~Prayer for-Rejection of application-Challenge to—It is quite obvious from text of conversation between appellant No.l and respondent's father that deceitful methods were employed and under-hand tactics were manipulated by respondent and his father to entrap appellant No.l unaware and succumb to temptation offered by respondent's father to sell house to him—Conduct of respondent manifests a calculated move on his part to create evidence in his favour-There is nothing on record to indicate that appellant No.l was authorised by other landladies and landlord to negotiate for sale of house-Controller completely overlooked evidence of appellant No.2 who had come down from U.SA. for his cross-examination- His evidence has remained un-shaken—Appeal accepted. [Pp.l09&110]A,B,C&D PLD 1982 SC 218 rel. M/s. Abdul Rasheed andAA.Munshi, Advocates for Appellants. Mr.Mansoor Ahmad KJian, Advocate for Respondent. , Date of hearing: 18.3.1991. judgment The appellants are aggrieved by judgment dated 24.9.1988 passed by the learned Illrd Rent Controller, Karachi-East in Rent Case No.294/86, dismissing their ejectment application under Section 15 of the Sindh Rented Premises Ordinance, 1979, on the ground of personal bonafide requirement of the appellant No.2, namely, Mir Shahid Ali. The appellants are co-owners of the premises which devolved on them after the demise of their mother Mrf.Fatima Begum on 30.12.1984. The respondent was inducted as tenant, on rent of Rs.1,500/- P.M. vide tenancy agreement dated 1:8.1987 (?) renewed on 20.6.1977. Appellant No.l is stated to be residing in arented premises on Rs.3,000/- per month and appellant No.2, having no other place to live, is putting up with him. The family, of the appellant No.l has increased. He has three children and it is not possible for him to accommodate appellant No.2. who being 25 years of age is likely to be married soon. The landlady of appellant No.l has also served upon him a legal notice dated 1.4.1986 requiring him to vacate the rented premises. The appellants first filed an ejectment case against the tenant on ground floor on the ground of personal bonafide requirement of appellant No.l and now this case against the respondent on the ground of bonafide requirement of appellant No.2. The respondent in his written statement has resisted the ejectment application being mala fide. It is alleged that appellant No.l is hi colusion with his landlady so as to eject the respondent. The said notice, served by her on appellant No.l is an abuse of the due process of law aiming at creating evidence with malacious design. Further, the appellant's object is nothing but to dispose of the building at a higher price. Prior to the filing of the ejectment application, the appellant had been negotiating with the respondent for enhancement of rent and for sale of the house. The appellant No.l Mir Sadiq Ali in his affidavit in evidence while re­affirming the various avertments made in the ejectment application stated that after the demise of his mother, the property devolved on the appellants and his six married sisters named therein. In cross-examination he admitted to have sold his house bearing No.41, Maqboolabad, Karachi so as to meet the expenses of his sister's marriage. Afterwards, he shifted to the said rented premises alongwith his wife and child, mother, two sisters and one brother, namely appellant No.2. He further stated that appellant No.2 who had gone abroad would come back and marry. Shahid Ali, appellant No.2, for whom the demised premises is required, had sent his affidavit-in-evidence from the State of Indiana, U.S A. and stated that he would be returning to Pakistan in a near future to set-up his own house and to make arrangements for his marriage for which purpose he required the demised premises. In cross-examination, he stated that he went to United State in June, 1986, for completing two years' course. There was still one year's course to remain, whereafter he would marry. He denied having any knowledge of negotiations between his brother, the appellant No.l and the opponent for sale of disputed portion of the house. He denied if his brother had ever demanded Rs.15,00,000/- as sale consideration for the whole building. The respondent in his affidavit-in-evidence has reiterated and re-affirmed the allegations made by him against the appellants. According to him, at the time of letting out of the premises in 1976, the appellants offered to sell the demised premises to him and on his acceptance the appellants gave him assurance that after completion of documents of the disputed premises, appellant No.l would sell the property to the respondent. On this assurance, the respondent spent a huge amount on the structures and renovation. Besides the appellant No.l wants to settle down in U.S.A. Negotiations between the parties were in progress even after filing of the case. On 13.4.1986, appellant No.l contacted his father in connection with the sale of house and handed over to him photostat copies of the documents. Thereafter, on 5.5.1986 he visited him and demanded Rs.15,00,000/- and the deal was finalised at Rs.14,50,000/-. In support, he- filed true copies of letters written by him and also tape record of conversation taking place between the appellant No.l and respondent. Apart from this, it was alleged by him that appellant No.l wants to migrate from Pakistan whereas appellant No.2 has already settled down in U.S-A. Next witness is the father of the respondent Mohammad Izhar. He re­ affirmed the various allegations made by the opponent and produced letters written by him to the appellant mentioning the alleged sale of the building by the appellant No.l, to the respondent. Along with these letters, he produced tape record of conversation which took place between him and the appellant No.l and its version reduced into writing. Witness Imtiaz Ali, is the brother of respondent and in his affidavit-in-evidence, he has supported the version of the respondent and his father. Last witness adduced by the respondent is one Raheel Siddiqui, who is a resident of the same locality. According 4o him, the appellant No.l wanted to migrate from Pakistan and there were negotiations for sale between him and the respondent. In cross-examination, he admitted that he has terms with all the members of the family of the respondent, but no negotiation for sale of the said property had taken place in his presence. While rejecting the ejectment application it was observed by the learned Controller that the appellant No.l is not aware if his landlady has filed rent case against him. It was also observed by him that appellant No.l avoided to give any approximate date of appellant No.2 returning to Pakistan . What attracted the attention of Learned Rent Controller most was the fact that the respondent had brought on record the telephonic conversation held between appellant No.l and 'the respondent and respondent's father with regard to the sale of the premises, which was not specifically denied by the appellants. Taking these factors into consideration the learned Controller was of the view that the appellants did not require in good faith the premises in question. The main contention of MrAnwar Maqsood, learned counsel for the respondent is, that there is ample evidence on record to show that the appellants intend to sell away the house and they do not require the demised premises in good faith for the appellant No.2. Reference was made to tape record of conversation between the appellant No.l and respondent's father, the text of which was also reproduced in writing by the latter, which stand unchallanged by the appellants. Learned counsel placed reliance on MsAmeena Begum v. Ghulam Dastgir PLD 1978 Supreme Court 220, in which.it was held:-- "Rent Controller and Appellate Authorities in exercise of discretion vested ifi them are not precluded to allow any bonafide amendments and take note of subsequent events in order to suitably mould relief on the basis of alternate circumstances in order to avoid multiplicity of litigation and shorten proceedings". Be that, as it may, the said recorded conversation was produced by the respondent after the appellants had closed their side. Admittedly it took place between the period of appellant's evidence and respondent's evidence. No effort was made by the respondent to recall the appellant No.l to the witness box so as to confront him with the recorded conversation. What, however, is quite obvious from its text, is the deceitful methods employed and under hand tactics manipulated by the respondent and his father, to entrap the appellant No.l unaware and succumb to the temptation offered by the respondent's father to sell the house to him. The conduct of the respondent does not invoke sympathy for him but manifests a calculated move on his part to create evidence in his favour. What may further be stated here is that when there are a number of landlords as hi the present case, an act of a co-landlord is not binding on others unless the former is empowered by the latter. There is nothing on record to indicate that appellant No.l was authorised by seven other landlords and landladies to negotiate with the respondent or his father hi respect of sale of the house. Even otherwise want of good faith on the part of one of them cannot be treated as want of good faith on the part of all, unless corroborated by other I evidence. The learned Controller completely overlooked the evidence of appellant F No.2, who had come down from U.SA. for his cross-examination. He specifically stated that after one year he would complete his studies whereafter he would settle down in Pakistan and get married. He expressed his ignorance if -any negotiation for sale had taken place between the appellant No.l and the respondent. It is significant to note that the learned Controller completely overlooked the admission of the respondent that he did not know if the premises was required by the appellants for their own use, thus demolishing his own defence. In order to counter the other contention raised by the respondent's counsel that the premises in question was not the immediate requirement of the appellant No.2 and that the ejectment application was premature, Mr. Abdur Rasheed, learned counsel for the appellant strongly placed reliance on PLD 1982 S.C. 218 in which it was held: "When a landlord was seeking for eviction on the ground of personal requirement, he cannot be expected to sit idle for periods of time during the pendency of eviction proceedings. If the landlord during such period had employed himself in a gainful occupation such as going abroad for earnings, such fact cannot negate assertion of bona fides on the part." In the present case, the appellant No. 2 has convincingly deposed as to his I personal requirement of the premises and explained as to why the ejectment L-. proceedings were filed sometime before he left for studies abroad. His evidence I has remained unshaken. The very fact that he came down from U.SA. to offer himself for cross-examination further strengthens his plea for requirement of the premises in good faith. In the result, I accept the appeal and set aside the judgment dated 24.9.1988 passed by the learned Illrd Rent Controller, Karachi with direction to the respondent to vacate the premises within two months thereof. However, the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Karachi 110 PLJ 1992 Karachi 110 Present: MUKHTAR AHMED JUNEIO, J Mst. MUHAMMADI BEGUM-Petitioner versus S.SALAHUDDIN AHMAD-Respondent Civil Revision No.109 of 1990, dismissed on 3.10.1991 (i) Benami Transaction-- '— Benami transaction-Declaration of~Suit for--Suit decreed-Challenge to~ Evidence shows that respondent (husband) was employed in Karachi Shipyard on monthly salary of Rs. 2000/- while petitioner (wife) was not mployed anywhere—There is no evidence that petitioner had any source of income—It is difficult to believe that plots in dispute were purchased from money of petitioner-Evidence of respondent that suit roperty as purchased from his funds, looks sound and plausible—Held: Courts below have rightly rejected claim of petitioner to suit property. [P.114|Ai AIR 1925 P.C. 181, AIR 1925 Madras 95, and AIR 1926 Nag. 262 rel. (ii) Civil Procedure Code, 1908 (V of 1908)- — S.il5-Benami transaction-Declaration of-Suit for-Suit decreed-Challenge to-Held: Normally High Court does not interfere with concurrent findings of courts below except when finding recorded is based on no vidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse-Petition dismissed. f|^>.li4&115]B 1987 SCMR 1144,1988 SCMR 1977,1987 SCMR 115,1987 SCMR 1146 and PLD 1983 SC 53 rel. Mr. UmerFarooq Khan, Advocate for Petitioner. Syed SarwarAli, Advocate for Respondent. Date of hearing: 29.8.1991. judgment This is a Civil Revision Application moved under Section 115 of Civil Procedure Code. The dispute in'this litigation is between a husband and a wife over the property bearing No.L-1064 and L-1065 situated in ector 11-E, Muslim Town North Karachi. It was respondent S.Salahuddin Ahmed who filed Suit No.2741/83 in Court of a Senior Civil Judge at Karachi for a declaration that he was the true owner in possession of the uit property, where applicant Mst. Muhammadi Begum was living as his licensee and benamidar. Respondent in his suit also sought issue of perpetual injunction restraining the applicant from selling or transferring the it property or from claiming any right, title or interest in the same or from dispossessing the respondent from the same. 2. Admittedly the respondent is second husband of the applicant, her first husband being Mirza Muhammad Baig from whom she has two daughters, namely Ismat Bi and Malka Mah Jabeen. It was case of the respondent that after his marriage with the applicant he maintained her and her daughters, and purchased in 1973 the suit property where the parties lived together. The construction over plots of the suit property was lso raised by the espondent, as claimed by him, after obtaining loan from House Building Financ Corporation in name of the applicant. Respondent claimed to have got installed electricity and sui gas connections in the suit property. His case was that the applicant was only a benami owner of the suit property. It was alleged that the applicant was trying to sell the suit property at the behest of her previous husband, and hence the suit. The suit was contested by the applicant, who in her written statement challenged the suit to be improperly valued. Applicant claimed to have sold the property bearing No.L-1065 for Rs.70,000.00 to Mst. Mussarat Begum while the property No.L-1064 was said to be mortgaged with House Building Finance Corporation for Rs.45.000.00. Besides challenging valuation of the suit, the applicant alleged the suit to be not maintainable and bad for non-joinder of necessary parties. On merits the applicant claimed being owner of the suit property, by having purchased the same. She contended that one of her daughters was doing job, while the other one was married. She claimed to have obtained the loan in her narre from the House Building Finance Corporation. On pleadings of the parties the trial Court framed the i. ' !

wing issues, 1. Whether the plots in suit were acquired & further construction made thereon by the plaintiff from his own money and loans as benami in the name of his wife the defendant, who was dependent on him? 2. Whether the construction and plots in suit were made and acquired by the defendant from her own sources and assets and plaintiff has not made any investment therein? 3. Whether this Hon'ble court has no pecuniary jurisdiction to try this suit? 4. Whether the suit is bad for non-joinder of parties. Whether the suit is not maintainable? 5. What should the decree be? . The parties led- evidence on all the issues, but learned trial Court, under a judgment dated 12.8.1986 returned the plaint, after holding that it had no pecuniary jurisdiction to try the suit. Aforesaid judgment dated 12.8.1986 was set aside in Civil Misc. Appeal No.62/86 by the District Judge West Karachi on 18.11.1986. While remanding the suit, learned District Judge directed the trial Court to determine value of the suit for purposes of Court fee and jurisdiction under Section 9 of Court Fees Act. -After remand, learned trial Court on considering evidence of the parties, decreed the suit on 15.2.1988 under the impugned judgment and the decree. Applicant took the matter to the District Court Karachi Central through Appeal No.57 of 1988, which was dismissed under the impugned judgment dated 10.10.1989 by learned Ilnd Addl. District Judge, who held that the suit was rightly decreed by the trial Court. Hence this Revision Application.I have heard Syed Sarwar AH, advocate for the respondent while counsel for the applicant did not appear in the case on 29.8.1991 when the same was fixed for regular hearing. Subsequently, learned counsel for the applicant mowed C.MA.No.939/91 for re-hearing of the case but did not appear to pursue said' application on 15.9.1991, which was the date fixed for orders on said application and the same was dismissed for non-prosecution. Admittedly the property in suit was purchased during the period when the parties were living together as husband and wife. In his deposition Ex.P/5, the respondent stated that the suit plots were purchased by him in 1973 through Punjab Estate Agency for consideration of Rs.2,500.00 per plot. He produced certificates Ex.P/6 and P/7 about the commission paid. He produced copy Ex.P/8 of his National Identity Card. He produced copy Ex.P/9 of Ration Card and copy Ex.P/10 of certificate issued by the Councillor. Respondent further stated that construction over the suit plots was raised by him, out of his own funds and from the amount of loan obtained from the House Building Finance Corporation in name of the applicant. He produced copy Ex.P/11 of letter of acceptance and copy Ex.P/12 of questionnaire form to be filled by Guarantor. He produced receipts Ex.P/13 to P/22 about sui gas which were in his name. He also produced bills Ex.P/23 and P/24 of gas contractor and gas bills Ex.P.26 to Ex.P.31. Respondent also produced the documents Ex.P/32 to P/34 of Electric Supply Corporation. He also produced receipts Ex.P.35 to P/40 and bills Ex.P/41 to P/43 about water and conservancy charges. Earlier the respondent stated that he was getting salary of Rs.2000/- per month. He is serving in Shipyard since 1955 as stated by him in cross-examination. In reply to court questions the respondent stated that he had spent Rs.10,000/- to Rs.15,000.00 during the period 1973 to 1980 on construction of the suit plots, besides spending Rs.9000/- on gas and electric installations. He also stated that he spent Rs.22,000.00 to 25,000.00 from amount of the loan on construction of the house. In respect of the sale agreement about the suit property, the respondent stated that it was in possession of the applicant. As against aforesaid evidence, Mst. Muhammadi Begum Ex.49 deposed that the two plots in suit were purchased by her. That she sold one plot and raised construction over another plot after obtaining loan of Rs.45,000.00 in her name from House Building Finance Corporation. She claimed to be paying back the loan amount. The applicant admitted that'the house in suit was constructed under supervision of the respondent who got water and electric connections installed in the house in his own name. The applicant claimed to have purchased the plots from her own savings. She did not state if she had any independent source of income besides the money she got from the respondent. Applicant admitted in her cross-examination that when she married with the respondent, she was dependant on him and her daughters were not in service. She admitted that she had no purchase receipts of the construction material. She admitted that the respondent was her guarantor for obtaining loan from said Corporation. She admitted that she had not produced any receipt showing that she had paid loan amount to the said Corporation. She admitted that she had not produced any receipt showing that she had sold one of the plots for Rs.70,000/- to Mussarat Begum. Even sale agreement about such transaction was not produced. Applicant did not examine any other witness in support of her case. Case law on the point lays stress on source of consideration money and possession of the document of title. In the case of Jamila Khatoon vs. Yasin and others (PLD 1959 Dacca 690) it was held that where the dispute arises between the benamidar and the real owner about a transaction being benami or noi, the questions about source of consideration money and possession of the document of title, are of great force. In the case of Ismail Dada Adam Soomar vs. Shorat Banoo (PLD 1960 Kar. 852) it was held that custody of the title deeds of a property is a factor to be taken into account in determining the benami character of a transaction but where the husband living in the house with 'his wife, left it during his sickness, it would be quite natural for the title deed to have remained at the house in custody of the wife. In the case of Upendra Nath Nag Chowdhury and other vs. Bhupendra Nath Nag Chowdhury and others (PLD 1914-1947 Calcutta 128) emphasis was laid on two principal tests viz. source of the purchase money and possession of the property, for determining nature of the transaction being benami or not. In the case of Sura Lakshmiah Chetty and others vs. Kothandaram Filial (AIR 1925 PC 181) it was held that a purchase in India by a native of India of the property in India in the name of his wife unexplained by other proved or admitted facts, is to be regarded as a "benami" transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. It was also held that the rule of Law of England that such a purchase by a husband is to be a purchase for the advancement of wife, does not apply in India . In the case of Mollaya Padayachi and another vs. Krishna Swami Iyer and others (AIR 1925 Madras 95), the view taken was that the presumption in favour of benami will be strengthened if almost all the property was purchased in the name of the wife and the man purchased really next to nothing in his own name. In the case of Mirza Ahmad Baig and others vs. Model Mills Nagpur Limited (AIR 1926 Nag. 262), it was held that in view of the extra-ordinary prevalence of benami transactions in India, even slight quantity of evidence may suffice to prove it. Viewed in the light of the case law discussed above, we have the evidence that the respondent was employed in Karachi Shipyard on monthly salary of Rs.2,000/- (Rupees two thousand only) while the applicant was not employed anywhere. There is no evidence if the applicant was having any source of income. Applicant did not claim so in her written-statement or in her evidence. It is difficult to believe that the plots in suit were purchased from the money of the applicant. Even if the applicant had savings, as claimed by her in her deposition Ex.49, the same could be only from the amount she was receiving from the respondent. One of the daughters of the applicant may be employed but no particulars about the same have been given. Moreover there is nothing on record to show that daughter of the applicant was in service before purchase of the suit property. All this shows that the applicant did not have her own money, from which she could have purchased the suit property. Evidence of the respondent Ex.P/5 that the suit property was purchased from his funds looks sound and plausible. In this view of the matter I find that the Courts below have rightly rejected claim of the applicant to the suit property. Normally the High Court does not interfere with the concurrent findings of the Courts below except when the finding recorded is based on no evidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse. In the cases of (i) Muhammad Zahir Klian and another vs. Muhammad ZamirKhan (1987 SCMR 1144) (ii) Muhammad Halim vs. Mst. Anayat Bibi (1988 SCMR 1977) and Muhammad Arshad vs. Muhammad Islam and anothers (1987 SCMR 115) interference with concurrent findings of the courts below was declined, because the evidence was examined and there was no misreading of the evidence and the findings were supportable by evidence. In the case of Fateh Mohammad vs. Mst. Sakina Bibi and others (1987 SCMR 1146) the finding of Additional District Judge did not suffer from any infirmity and interference was declined. Powers of this Court in dealing with a Revision Application under Section 115 of Civil Procedure Code are well defined. In the case ofKanwal Nain and others vs. Fateh KJian and others (PLD 1983 SC 53) it was observed that ordinarily erroneous decisions of fact are not revisable except in cases the decision is based on no evidence or on inadmissible evidence or is so perverse that grave injustice would result there from In view of the aforesaid factual and legal position this Revision Petition stands dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Karachi 119 PLJ 1992 Karachi 119 Present: HAZIQUL KHAIRI, J JAVED RAZA-Plaintiff versus RAZI AHMAD and another-Defendants Misc. Application in Suit. No. 201 of 1988, accepted on 31.3.1991. Ex-parte decree— — Ex-parte decree-Setting aside of-Prayei for-It is evident from record that defendants were no more living at address given in plaint-Additional Registrar, while ordering service on defendants by publication, was nmindful of his earlier order directing plaintiff to supply fresh address of defendants which was never supplied to him-No explanation was given by plaintiff as to why he did not supply fresh address-No order for ffixation of copy of summons was made as required under Order V Rule 20 C.P.C-- Ex-parte judgment and decree set aside. [PP.122&123JA&B PLD 1964 SC 97 and PLD 1968 Lah. 792 rel. Mr. Mehmood Ahmad, Advocate for Plaintiff. Malik Muhammad Saeed, Advocate for Defendants. Date of hearing: 24.2.1991. judgment In this application dated 6-1-1990 under Order 9 Rule 13 C.P.C., the defendants have prayed for setting aside the exparte judgment and decree dated 21-2-1989 on the ground that the same was, obtained by fraud, deception, misrepresentation and suppression of facts and without service of summons on defendants. Defendant No. 2 is said to be the step sister of the plaintiff and the ^^5151 sne came to know that a decree in fact was Learned counsel for the defendants Mr. Malik Mohammad Saeed took me through the record of the case, from which it appears that summons were issued thrice to the defendants through the bailiff. The bailiffs report dated 18-4-1988 md.cates that house bearing No. 1202/19, Al-Noor Society, Federal <B' Area Karachi where the defendants were said to have been living was locked and the defendants had gone somewhere. Again on 22-5-1988, the same bailiff, Nazir Ahmed Baloch, reported that the house was locked and the defendants had gone out to celebrate Eid and would not come back. Third time,-another bailiff Akhtar Hussam reported that on 7-8-1988 the father of one Abdul Qadir who was living there told him that the defendants had left the house after locking a portion of the house. Summons by registered post A.D. were also sent to the defendants at the said address and the report of the postman was to the effect that "the house remained closed throughout". It is pertinent to note that on 17-8-1988, the Additional Registrar of the Court directed the plaintiff to supply fresh address of the defendants within two weeks but the plaintiff failed to do so. Instead on 30-10-1988, the plaintiff moved an application under Order 5 Rule 20 CPC alleging that the defendants had been wilfully and deliberately avoiding and/or evading to receive the summons of the Court and they may be served by substituted service by publication. The office put up the following note on this application: "Three attempts have been made. Registered summons have also been issued, returned un-delivered with postal remarks that house is remained closed. Since the bailiff in his report has stated that they are not residing on the given address now." It was contended by Mr. Malik Mohammad Saeed, Advocate that the learned Additional Registrar without applying his mind "granted" the application on the basis of the said office note and without reference to the material on record and in consequence thereof service was effected on the defendants by publication. According to him what Order 5 Rule 20 C.P.C. in clear terms contemplates is that the Court must be satisfied that the defendant is keeping out of the way for the purpose of avoiding service which is not so in the present case. Here it will be useful to reproduce Order 5 Rule 20 C.P.C. as under:- "20. Substituted service.-(1) Where the Court is satisfied that there is reason 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, the Court shall order the summons to be served by affixing copy thereof in some conspicuous place in the Court­ house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Effect of substituted seivice.-(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Wliere seivice substituted time for appearance to be fixed.-(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require." In support of his contention, he placed reliance on Mohammad Nazir Vs: Abdur Rahim reported in PLD 1968 Lahore 792 in which too there was no material before the Court on the basis of which an order for substituted service could be made by the Court. Relevant portion is as under:- "As is evident, the processes issued by the Court to the defendants and their learned counsel for the two successive dates for 4-5-64 and 30-5- 1964 were never received back by the Court. Therefore, the real cause for the failure of the service of the notices issued to the defendants and their learned counsel for the two dates, could not be ascertained. There is nothing whatever to show that the defendants had refused or avoided to accept service of the notices issued to them. In these circumstances, there was no material before the Court on 30-5-1964, to have ordered the service to be effected on the defendants by the substituted process by advertisement in the newspaper. Order V Rule 20 of the Code of Civil Procedure provides that where the Court is "satisfied" that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the same cannot be served in the ordinary way, the Court shall order the summons to be served in such other manner as it may deem fit. The laconic order dated 30-5-1964, passed by the Court is altogether silent and in the absence of any material on the record, it cannot be said that the Court had "satisfied" itself about it before ordering the substituted service by proclamation in the newspaper against the defendant." In order to further support his said contention and to further justify condonation of delay learned counsel placed reliance upon Hidayatullah Vs. Noor Mohammad PLD 1986 Quetta 107 in which a Division Bench of the Court held:- "It will suffice to observe that if a party is not served with the notice properly, he can urge that the limitation is to start from the date of his knowledge. In the instant case, it has been pointed out by Mr. Aslam Chisti, Advocate that the petitioners/defendants against whom ex parte order was passed, had the knowledge of the proceedings, inasmuch as, they had voluntarily appeared through the Attornies and filed written statement on 15th December, 1981 which was not accepted by the Assistant Commissioner and, therefore, it cannot be contended by the petitioners/defendants that they had no knowledge of the ex parte order. In this regard, it may be observed that there is a distinction between the knowledge of the proceedings and the knowledge of the date of the order. A party may have the knowledge of the proceedings against him, but he is not obliged to put in appearance unless he is served with a process of Court in accordance with law. The respondents/plaintiffs have not brought any material on record to indicate ,,that factually the petitioners/defendants had the knowledge of the date of ex parte order when it was passed." It was maintained by Malik Mohammad Saeed, learned counsel for the defendants that once the Court comes to the conclusion that the ex-parte decree was passed against the defendants without due service on them, the Court is ' bound to set it aside. Here again reference was made to the case of Malik Mohammad Nazir vs. Mian AbdurRahim and another, P.L.D. 1968 Lahore 792 as under:- "Moreover on a parity of reasoning set out in PLD 1964 S.C. 97 even if it were to be held that the application by respondent to set aside the ex parte decree passed against him, was barred by time, the High Court was bound, under the circumstances of this case, to set aside the order by the learned trail Court for the ex parte proceedings in the Suit and the ex parte decree, as these were procured without due service of the notices on the defendant."Learned Counsel for the plaintiff, Mr. Mahmood Ahmed, on the other hand,, argued that the defendants were fully aware of the institution of this suit as in the other Suit No. 140 of 1987 filed by the defendants, the plaintiff had made reference to this suit in his written statement. The concealment of this very fact by the defendants would establish beyond any doubt their bad faith disentitling them to indulgence of the Court. From the perusal of record, it is evident that the defendants were no more Irving at the address given in the plaint. At the same time neither the bailiffs reports nor the postman's report state anywhere that the defendants were keeping out of the way for purpose of avoiding service on them. The plaintiff never cared to accompany the bailiff and his assertion that the defendants were avoiding service of summons was not supported by anything on record. It is not his case that for some other reason as contemplated under Order 5 Rule 20 C.P.C. summons could not be served on the defendants. The learned Additional Registrar while ordering service on the defendants by publication was unmindful of his earlier order dated 17-8-1988 in which direction was given to the plaintiff to supply fresh address of the defendants which was never supplied by him. No explanation was given by the plaintiff as to why he did not supply fresh address of the defendants. The Plaintiff could have inquired from the said Abdul Qadir living in the house where the defendants were once living as to their new address but no effort was made by him in that direction. There was nothing either in the application under Order 5 Rule 20 CPC or in the accompanying affidavit that the plaintiff does" not know any other address of the said defendants. No order for affixation of copy of summons was made at some conspicuous place in the Court house and/or upon some conspicuous part of the house in which the defendants last resided as required under Order V Rule 20 CPC. Service by publication is an extra ordinary mode of affecting service on a defendant and can only be resorted to when conditions warranting it exis.t and strict compliance is made of the provisions of Order 5 Rule 20 CPC. This is not so here. Mere knowledge of the defendants that the plaintiffs had instituted a suit against them will not by itself constitute as service on hem unless they themselves waive notice of summons whi< h fact must be borne out from the record of the case.' In the present case they had filed then- application for setting aside exparte decree within the statutory period of 30 days from the date of their knowledge and hejice it is within time, within the meaning of Article 164 of Limitation Act. Even otherwise as no due service was affected on the defendants, the parity of reasoning as set out in PLD 1964 S.C. 97 and discussed in PLD 1968-Lahore 792 is applicable with full force to the facts and circumstances of the case.In the result, the ex-parte judgment and decree dated 21-2-1989 are set aside and defendants are directed to file their written statenfent within four weeks hereof. (MBC) (Approved for reporting) Application accepted.

PLJ 1992 Karachi 123 (DB) PLJ 1992 Karachi 123 (DB) Present: nasir aslam zahid and imam ali kazi, JJ 1-Petitioner versus CENTRAL BOARD OF REVENUE and 2 others-Respondents Const. Petition No. D-1010 of 1990, accepted-on 27.8.1991. Income Tax Act, 1992 (XI of 1922)- —-S. 4 (3) (xiii) read with Income Tax Ordinance, 1979, clause (7), Part I of Second Schedule-Technicians from foreign countries-Employment of-Tax exemption of-Refusal of-Challenge to-Only eficiency was that certificate of Revenue Authorities of respective foreign country had not been filed- Requirement of such certificate is not mandatory either under Section 4 (3) (xiii) of Act or under clause 7); Part I of Second Schedule to Income Tax rdinance. 19~9--Admittedly, impugned orders have been passed after several years of presentation of applications-Held: If, at all, there was any deficiency, a outine check made within a reasonable time, would have disclosed such deficiency and needful could have been done if required by law—Petition accepted and case remanded. [Pp.l26&127]A,B,C&D M/s Muhammad Sharif a$d Salim Z. Khan, Advocates for Petitioner. Mr. Ikram Ansari, Standing Counsel for Respondent No. 1. Mr. Shaik Haider, Advocate for Respondents 2&3. Date of hearing: 27.8.1991. judgment Nasir Aslam Zahid, J.--The petitioner is a Company incorporated under the laws of Panama and registered under the repealed Pakistan Companies Act, 1913, in 1957, as a foreign company and is an income tax assessee under the Pakistan Income Tax Laws. According to the petitioner, it employs technicians from foreign countries who serve for fixed periods in Pakistan with the petitioner and then they either leave the service of the petitioner or are transferred by the petitioner to other foreign locations. From the inception of its operations in Pakistan, the Petitioner has been applying to the concerned Income Tax Authorities for tax exemption in respect of its foreign technicians, firstly, under section 4 (3) (xiii) of the repealed Income Tax Act, 1922, and, after its repeal and promulgation of the Income Tax Ordinance, 1979, under clause 7 of Part I of the Second Schedule to the said Ordinance. Approval had all along been granted by the Department by acceptance of the applications for tax exemption but, according to the petitioner, grant of such applications used to take several years and in the meantime the concerned foreign technicians employed by the petitioner used to leave Pakistan . However, in 1988 and 1989, 57 applications filed by the petitioner for grant of exemption were rejected by identical orders passed by the Commissioner Income Tax (Companies-II) Karachi as follows:-"Please refer to the above. In this connection I am directed to say that the requisite details/documents called for vide this office letter No. Cos. TI/Jud-I/89-30/43, dated 1.7.1989 have not been filed. In view of this fact the approval of the contract of service under clause 7 cannot be acceded to." The aforesaid impugned order of the Commissioner of Income Tax declining to approve the contracts of service have been impugned in this Constitutional Petition. We have heard Mr. Mohammad Sharif, learned counsel for the petitioner and Mr. Shaik Haider, \vho has appeared on behalf of the Department. 2. It is an admitted position that no appeal or revision lies under the Income Tax Laws against the impugned orders and as such no objection has been raised that these Constitutional Petitions are not maintainable. The relevant provisions of the repealed Income Tax Act, 1922 and Income Tax Ordinance, 1979, are reproduced hcre:- " Income Tax Act, 1922 Section 4 (3) (xiii)... Provided that this clause shall not apply: - in the case of an undertaking the profits and gains of which are liable to be computed in accordance with the rules contained in the Second Schedule to this Act after the commencement of commercial production or the expiration of a period of five years from the date of issue of the exploration licence whichever is earlier; and (ill) in the case of other undertakings, after the expiration of a period of five years from the date of the setting up or commencement of the undertaking; in respect of any remuneration, or any part thereof, as is subject to tax outside Pakistan or in respect of which the technician does not get credit for the tax which would, but form the exemption under this clause, have been payable in Pakistan, or the tax payable outside Pakistan, whichever is the less; Income Tax Ordinance, 1979 Second Schedule. Parti Clause (7) Any income chargeable under the head "Salary" received by, or due to, any person (who is neither a citizen of Pakistan nor was resident in Pakistan in any of the four years immediately preceding the year in which he arrived in Pakistan) for a period not exceeding three years from the date of his arrival in Pakistan, as remuneration for services rendered by him during such period, as a technician under a contract of service approved, on an application made before the commencement of his service or within one year of such commencement, by the Commissioner for the purposes of this clause, employed whether before or after the commencement of commercial production, the employment before the commencement of commercial production being for the purposes of the supervision of the erection of the factory building, the installation of plant and machinery or the trial production in an approved undertaking: Provided that this clause shall not apply.- in the case of an undertaking the profits and gains of which are liable to be computed in accordance with the rules contained hi Part I of the Fifth Schedule, after the commencement of commercial production or the expiration of a period of five years from the date of issue of the exploration licence, whichever is earlier. in the case of other undertakings, after the expiration of a period of five years from the date of the commencement of commercial production; and (Hi) in respect of any remuneration, or any part thereof, as is subject to tax outside Pakistan or in respect of which the technician does not get credit for the tax which would, but for the exemption under this clause, have been payable in Pakistan, or the tax payable outside Pakistan, whichever is the less." 3. Pursuant to Section 4 (3) (xiii) of the Income Tax Act, a Circular datedN 5.7.1977 was issued by the Central Board of Revenue and, under the said Circular, certain forms were prescribed including the form of application. According to the learned counsel for the petitioner, the said Circular as well as the forms have been retained even after the repeal of the Income Tax Act, 1922, and the promulgation of the Income Tax Ordinance, 1979. This was not denied by Mr. Shaik Haider. 4. As observed, the Income Tax Commissioner has rejected the 57 applications moved by the petitioner on the ground that the relevant documents required to be furnished with the applications as specified in the aforesaid Circular dated 5.7.1977 of the Central Board of Revenue have not been filed. The details of the documents required have not been mentioned in the impugned orders, but, in reply to a question from the Court, Mr. Shaik Haider, learned counsel for the Income Tax Department, stated that the only deficiency was that the certificate of the Revenue Authorities of the respective foreign country had not been filed. According to learned counsel for the petitioner, neither under section 4 (3) (xiii) of the repealed Income Tax Act. 1922, nor under clause 7 Part I of Second Schedule to the Income Tax Ordinance, 1979, there is any mandatory requirement for filing such a certificate from the foreign revenue authorities. We have gone through the aforesaid provisions and we agree with the contention raised on behalf of the petitioner that the concerned provisions of law do not make it mandatory for the petitioner to file such a certificate and that, without such B certificate, the application for approval is liable to be rejected. The contention raised on behalf of the petitioner also finds support from the Circular itself. The application form prescribed under the aforesaid circular does not require the filing of the certificate from the foreign revenue authorities as mandatory. Learned counsel rightly laid emphasis on the word "preferably" used in column 11 of the prescribed application form which is still in use and has not been replaced by another form. 5. We are also surprised at the manner in which these applications have been dealt with by the Commissioner of Income Tax. Admittedly, the impugned orders have been passed alter several years of the presentation of such applications. If at all there was any deficiency in the applications inasmuch as any document required to be filed had not been annexed, a routine check made within a reasonable time would have disclosed such deficiency and immediately on such deficiency having been detected, the petitioner informed so that the needful could i have been done if required by law. 6. In the circumstances we set aside all the 57 impugned orders passed by the Commissioner of Income Tax (Companies-II) Karachi rejecting the applications for approval filed by the petitioner, and remand the applications to the Commissioner of Income Tax for fresh decisions after hearing the petitioner. Within one month, the petitioner may file further documents, if required, before the Commissioner of Income Tax. The Commissioner will then grant hearing to the petitioner and pass final orders within three months from today. It is also directed that, in case the applications are not granted, reasons for not approving or granting the applications should be spelt out clearly in the orders to be passed by the Commissioner of Income Tax.Constitutional Petition No.D-1010/1990 stands disposed of accordingly with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Karachi 127 (DB) PLJ 1992 Karachi 127 (DB) Present: syed abdur herman and muhammad aslam arain, jj M/S CAPGAS (PRIVATE) LTD--Petitioner versus MINISTRY OF PETROLEUM AND NATURAL RESOURCES and another-- Respondents Const. Petition No. D-622 of 1991, accepted on 19.8.1991. (i) Audi alteram parteni-- — -Audi alteram partem -Principle of-There can be no cavil with proposition that no order can be passed to detriment of any person without giving him an opportunity of being heard—Held: This principle is so well nown that it does not require any authority in its support. [P.130JA PLJ 1981 SC 577, PLD 1965 SC 90,1986 CLC 1908 and 1982 SCMR 1084 rel. (ii) Liquified Petroleum and Gas (Production & Distribution) Rules, 1971-- —R. 21~Licensee of L P G-Reduction in supply of gas-Challenge to~As to when an order by an Authority can be passed if law requires it to be satisfied that a certain condition exists, it was incumbent upon Authority o first form its opinion objectively by making his own assessment of situation and his opinion must be founded on some material and such material is shown to have been taken into consideration by Authority-Held: mpugned order is unlawful, unreasonable, of no legal effect, arbitrary and violative of rule of natural justice and Constitution. [Pp.l31&133]C&D PLJ 1989 SC 10, PLJ 1990 SC 543,1990 MLD 11 and 1988 PLC (CS) 344 rel. (iii) Words and Phrases-- —Expression "public interest'-Meaning and connotation of--One of meanings assigned to term "public interest" is "a matter of public or general interest" but it does not mean that which is interesting as gratifying curiosity or a love of information or amusement, but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liabilities are' affected"--Held: When question of "public interest" is considered, court has to consider and ascertain amongst other matters, question whether proposed order will serve "public interest". [P.131]B Stroud's Judicial Dictionery Vol. 4, 4th Edition, Law Lexicon, 2nd Edition 1986, Vol. 3 PP. 1956-57, PLJ 1989 Lahore 572 (DB) and PLJ 1988 Lahore 42 rel. Mr. KJialid M. Ishaq, Advocate for Petitioner. Mr. Naeemur Rehman, Advocate for Respondent No. 1. Mr. Sajid Zahid, Advocate for Respondent No. 2. Date of hearing: 19.8.1991. judgment Syed Abdur Rahman, J.--This is a petition under Article 199 of the Constitution. 2. Petitioner, M/s. Capgas (Private) Ltd. is a licensee of Liquified Petroleum Gas (LPG). It was allocated 15 tons of LPG-Ex-Adhi oilfields by respondent No. 1 on 15-4-1989. The licence was ranted under Rule-6 of LPG Rules, 1971 for the construction of works for storage, filling and distribution of LPG for a period of 15 years. An agreement was executed between the petitioner, respondent No. 1, respondent No. 2 and O.G.D.C. setting out the terms and conditions on which the parties had to act. Respondent No. 1 vide order dated 23- 4-1991 in purported exercise of power under Section (?) 21 LPG Rules, 1971 reduced the per-day quantity of the petitioner from 15 tons to 5 tons. It is contended by the petitioner that the said reduction was unlawful, arbitrary, malafide and violative of the rules of natural justice and the Constitution. Hence this petition. 3. Respondent No. 1 did not file any Counter-Affidavit to the petition. Respondent No. 2 has filed a Counter-Affidavit in which it is contended that the reduction is made by the Authority i.e., respondent No. 1 and not by respondent No. 2. Respondent No. 2 has reduced the supply in pursuance of the direction of the Authority. Thus respondent No. 2 has strictly complied with the contractual obligations of the petitioner as embodied in LPG Sale-Agreement and accordingly is not liable in any manner whatsoever to any claim of the petitioner, nor it is guilty of any unlawful, unreasonable or arbitrary conduct. 4. We have heard Mr. Khalid M. Ishaque Advocate for the petitioner, Mr. Naeem-ur-Rahman, Standing Counsel for respondent No. 1 and Mr. Sajid Zahid, earned counsel for respondent No. 2. 5. No Conunter-Affidavit has been Filed by respondent No. 1. Initially Mr. Naeem-ur-Rahman had stated that he had no instructions from respondent No. 1. Later on he opposed the petition in somewhat lukewarm manner and contended that it was the absolute privilege of respondent No. 1 to reduce the quantity of LPG without assigning any reason and without even giving a show-cause-notice. 6. Mr. Sajid Zahid, Advocate for respondent No. 2, referred to Clauses (a) and (e) of Para-2.1 of the Agreement dated 20-11-1990 referred to above which read as under:- "(a) The Sellers shall sell and deliver and the Buyer shall buy and accept on the terms and conditions hereinafter specified such quantities of LPG & would be made available by the Sellers for sale and delivery to the Buyer to the extent of fourth (1/4) of the total LPG production from the Adhi field per day (hereinafter referred to the 'Maximum Quantity"). The said Maximum Quantity may be varied under the terms of this Agreement or a directive of the Authority. (V) (c) (e) Provided however that subject to Clause 2.1 (c) the actual quantities of LPG to be delivered and purchased may at any time be increased -or reduced at the option of the Sellers by notifying the Buyer at least twenty four hours in advance of the date of delivery of such increase or reduction." He, therefore, submitted that, according to these clauses, the quantity of LPG can be varied; (1) by the Seller i.e. respondent No. 2 under the terms 'of Agreement, and (2) by the Authority by a directive. So far as the increase or reduction in the supply of LPG by respondent No. 2 was concerned, it had the option to do so under Clause-(e) at any lime by notifying to the Buyers i.e. petitioner, 24 hours in advance. He frankly conceded that respondent No. 2 has not reduced the supply of LPG to the Petitioner in exercise of his option under Clause-(e) referred to above. He then submitted that the Authority had power to regulate distribution of LPG under Rule-21 of Liquified Petroleum Gas (Prod. & Dist.) Rules, 'l971. This rule reads as under.- "21. Power to regulate distribution of LPG.-Notwithstanding anything contained in a contract or an agreement between one licensee and another or between a licensee and a consumer, the Authority may, if it is satisfied that it is necessary in the public interest so to do, by order in writing, determine the maximum and minimum quantities of LPG basestock and LPG which a licensee may supply to another licensee or to a consumer, whether generally or during such period as may be specified in the order." According to this Rule, the Authority, if it was satisfied that it was necessary in the public interest so to do, may by an order in writing, determine the maximum and minimum quantities of LPG which a licensee may supply to another licensee. He made it clear that this order was passed by the Authority i.e. respondent No. 1 in which respondent No. 2 had no hand and did not accept any responsibility whatsoever for the same. 7. Mr. Khalid M. Ishaque Advocate, who appeared for the petitioner attacked the impugned order on mainly two grounds.- (j) That it was passed without any notice to the petitioner and without affording him any opportunity of hearing and was, therefore, in contravention of the rule of natural justice of audi-alteram-partem; and (h) That when the satisfaction of an Authority is needed for coming to the conclusion that it was necessary in the public Interest to do so, then obligation is cast upon it before exercising its discretion to consider the grounds which exist on the basis of which an honest opinion could be formed, otherwise exercise of the power by the Authority would be un­ constitutional and open to correction through judicial review. In this connection he placed reliance upon.-. (1) P.L.J. 1989 S.C. IQ-Federation of Pakistan vs. Mohammad Saifullah KJian. (2) M.L.D. 1989 ll-Mohammad Qadir Hussain vs. Controller of Patents & Designs. (3) P.L.J. 1990 S.C. 543-Amanullah Khan vs. Federal Govt. of Pakistan. (4) P.L.J. 1988 Lah. 42-Shehbazuddin Choudhry vs. Services Industries Textile Ltd. (5) P.L.J. 1989 Lah. 572 (DB)-Zzau//o/t KJian vs. Govt. of Pakistan, and (6) P.L.C. 1988 P-344-Manf/tara/i Jatoi vs. Govt. ofSindh. 8. There can be no cavil with the proposition that no order can-be passed to the detriment of any person without giving him an opportunity of being heard. This is based on the principle of audi-alteram-partem. This principle is so wellknown that it does not require any authority in its support. However, following cases can be referred to usefully in this behalf: - (1) University of Dacca and another vs. Zakir Ahmad-(PLT) 1965 S.C. 90); (2) The D.B. decision of this Court in the case of Abdul Latifvs. Chairman, Board of Intermediate and Secondary Education, SuWcur-(1986 C.L.C. 1908) in which one of us (Syed Abdur Rahman, J._) was a member (3) ShaukatAH vs. Controller of Examination, University ofPunjab-(PU 1981 SC 577) and (4) Masood Pan>ez vs. Advisory Committee, University of Punjab-(1982 SCMR. 1084). 9. No doubt Rule-21 of LPG (P&D) Rules, 1971 gives power to the Authority i.e. respondent No. 1 to determine the maximum and minimum quantities of LPG which a licensee may supply to another licensee, but it places a restriction upon that Authority to do so by an order in writing and that also if it is satisfied that it is necessary in the public Interest so to do. Now let us see what is meant by the term 'public interest'. In Stroud's Judicial Dictionary Volume 4 Fourth Edition, one of the meanings assigned to the term 'public interest' is "a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected." Hence when the question of 'public interest' is considered, the Court has to consider and ascertain amongst other matters the question whether the proposed order will serve the 'public interest'. P.L.J. 1988 Lah. 42-Shahbaz-ud-Din Choudhry & others vs. M/s. Services Industries Textile td and others is referred to in this behalf. 10. In the case of Ziaullah KJian & others vs. Government of Punjab and others (P.L.J. 1989 Lah. 572 (DB)) the expression 'public interest' is defined to mean "general social welfare or regard for social good and predicating interest of the general public in matters where a regard for social good is of the first moment". (Law Lexicon, 2nd Edition, 1986, Vol. 3 pp 1956-1957). 11. The question as to when an order by an Authority can be passed if the law requires it to be satisfied that a certain condition exists, it was incumbent upon the Authority to first form its opinion objectively by making his own assessment of the situation, and his opinion must be founded on some material and such material is shown to have been taken into consideration by the Authority. This proposition was high lighted in the famous case of Federation of Pakistan vs. Mohammad Saifidlah KJian (PLJ 1989 S.C. 10) wherein the question of constitutionality of the dissolution of National Assembly by the President under Article 58 (2) (b) of the Constitution passed by Late Genl. Zia-ul-Haq was considered. It was held that "an obligation was cast on the President that before exercising his discretion he had-to form his opinion that a situation of the kind envisaged hi the Constitution had arisen which necessitated the grave step of dissolving the National Assembly. The President could make his own assessment of I he situation as to the course of action to be followed, but his opinion must be founded on some materi.il. When no ground existed on the basis of ..which an honest opinion could be formed, the exercise of the power by the President was held ^p be unconstitutional and open to correction through judicial review." 12. In the case ofAmanullah KJian vs. Federal Govt. of Pakistan (P.LJ. 1990 S.C. 543) the question of registration of a Company with the Stock Exchange was considered and it was held as follows:- "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." 13. The case of Muhammad Quadir Hussain vs. Controller of Patents and Designs, Govt. of Pakistan and 2 others (1990 M.LJX 11) related to the prerogative of the Central Government to withhold the grant of a patent under the Patents and Designs Act. 1911 and it was held as foflows:- "The Patents and Designs Act, 1911 was framed when the Crown was the Supreme Head of the British Empire and the same terminology of prerogative has continued till today although neither Crown's preeminence nor its prerogative is attached to or inherited by Government of Pakistan. The Act provides a comprehensive procedure for grant of patent rights which governs the claim of an applicant and power to grant it or not. The Act further confers discretionary power 'on the Government to use the invention to the exclusion of everyone for the services of the Government. In these circumstances to take refuge under the prerogative powers would amount to using back door method to defeat the provisions of law. The law has supremacy over prerogative, and overrides it. The historical background of legal evolution in Pakistan confirms that the prerogative of the Government is nothing but its discretion conferred by law which has to be exercised in accordance with the recognised and well-settled principles." 14. In the case of Manthar Alt M. Jatoi vs. Hie Government of Sind (1988 P.L.C. (C.S.) 344), the question as to how discretion of with-holding the appointment, on the ground that he was a political worker, as to be exercised by the competent authority, while issuing appointment order of a candidate, who was recommended by the Public Service Commission, it was held that "discretion vested in competent authority has to be exercised in good faith and in accordance 1992 capgas (private) ltd. v. ministry of petroleum (Syed Abdur Rahman, J) Kar. 133 with law. It should be exercised justly, fairly, reasonably and it should not be exercised arbitrarily or capriciously." In a case where no material has been produced to support.the allegation of his being a political worker, direction was issued that the recommendation of the Public Service Commission regarding the petitioner be implemented. We are, therefore, satisfied that the impugned order is unlawful and of no legal effect, arbitrary, unreasonable, violative of rule of natural justice and Constitution. We direct respondent No. 2 to supply to the petitioner the allocated quota of 15 tons of LPG per day. (MBC) (Approved for reporting) Petition accepted. (i) Default- PLJ 1992 Karachi 133

PLJ 1992 Karachi 140 PLJ 1992 Karachi 140 Present: HAZEEQUL KHAIRI, J SHUJAAT ALI--Appellant versus SHEIKH EHSANUDDIN-Respondent F.R.A. No. 351 of 1991. dismissed on 16.2.1991. Personal Need- —Tenant—Ejectment of--Orders of—Challenge to—Bonafide personal requirement-Ground of-Admittedly respondent has been transferred to Karachi and it is very natural for him to live in his own house—Letter of Habib I Bank Ltd. A.G. Zurich, has been produced by respondent, contents of which 1 have remained un-rebutted and unshaken—Held: Respondent has provided in sufficient details his personal requirement and his vidence inspires confidence J with regard to his bonafide-tleld further: A demand for increase in rent will not ipso facto demolish 'ground of personal requirement of premises of ' landlord-Appeal dismissed. [P.142]A&B Mr. S.A. Jalib, Advocate for Appellant. Mr. K.B. Bhutto, Advocate for Respondent. Date of hearing: 16.2.1992. ' judgment This appeal arises from the order dated 30-9-1991 passed by the learned j IVth Rent Controller East, Karachi in Rent Case No. 466 of 1990 whereby the ( ejectment of the appellant was ordered by the learned Controller. The respondent j filed an ejectment application under Section 15 of Sindh Rented Premises ( Ordinance, 1979 on the grounds of default in payment of rent and his personal j bonafide requirement. .The respondent did not press the first ground and no / evidence was adduced by him with the result that it failed. The respondent however succeeded in establishing his personal bonafide requirement and hence ( this appeal. Learned counsel for the appellant Mr.SA. Jalib urged before me that the so-called requirement of the respondent is malafide as would appear from the record of the case. Reference was made to the cross-examination of the respondent wherein it was admitted by him that from time to time he had demanded increaset in rent from the appellant and also admitted the various letters written by him to i the appellant in which such demand was made by him. It was on account of theset demands that the appellant increased the rent of the demised premises several I times. However when in his letter dated 20-6-1986, the respondent once again s required the appellant to increase the rent, he refused to accede to his demand, 1" which resulted into the filing of the present ejectment application. In support of his contentions learned counsel placed reliance on 1985 CLC 562, 1986 CLC 561, 1984 CLC 755 and 1987 CLC 1988 in which inter alia it was held: (a) where the evidence of the landlord shows malafide he is not entitled to evict the tenant, 1985 CLC 562; (b) To establish bonaflde of the landlord for personal requirement of premises, burden would be on landlord to establish good faith through evidence inspiring confidence, 1986 CLC 561; (c) Where a landlady does not come to Court with clean hands, suppresses material facts, the ground of personal bonaflde requirement fails, 1984 CLC 755; (d) A bare plea of the landlord that he wants accommodation for his own occupation will not be sufficient, 1987 CLC 1988. It was argued by learned counsel for appellant that the respondent suppressed many facts relevant to the case. He deliberately has not given details of his first transfer to Karachi and the circumstances under which such transfer had taken place but he also faiLd to disclose the amount of the rent he is entitled to receive as Bank Officer. He purposely concealed the information with regard to upto the date of deposition. Non-disclosure of these facts and inconsistent pleas demolish his socalled ground for personal bonaflde requirement. Above all, the very fact that the respondent demanded increase in rent from time to time duly admitted by him by itself will render the said ground liable to be rejected straightaway Learned counsel for respondent Mr. K.B. Bhutto, on the other hand, contended that the landlord's averments in the plaint have not been shaken and from his evidence the only inference that can be drawn is that he requires the premises in question bonaj'ide for his own use. Reference was first made to a letter dated 9th March, 1990 issued by M/s Habib Bank Ltd. A.G. Zurich to the respondent stating that the respondent has been transferred to Karachi branch of the Bank. This letter has remained unrubutted so also the fact that in pursuance thereof the respondent is working at Karachi branch of the said Bank has gone unchallenged. It was submitted that the requirement of the appellant had undergone change inasmuch as he was previously living in Switzerland and now he has come down to Karachi on transfer and wants to occupy his own house for his own use. Being a landlord his interest earlier was that the rent should be increased which is not an unreasonable demand for any landlord, but when he was transferred to Karachi, his natural desire amounting to his requirement was to live in his own house as he has no other house of his own in Karachi, In support of his contention learned counsel for respondent placed reliance on PLD 1976 Kar. 832; 1980 SCMR 593; 1988 SCMR 772; 1990 SCMR 544 and 1989 SCMR 1366 and 233. In PLD 1976 Karachi 832, it was held by a single Judge of this Court that the assertion or claim on oath by landlord that he required premises for his personal use found to be consistent with his averments in his application and not shaken in cross-examination or disproved in rebuttal should be accepted by Rent Controller 3&bonafide. In 1980 SCMR 593, the Supreme Court of Pakistan approved the view taken in PLD 1976 Kar. 832 and held that "neither the 1st Appellate Court nor the High Court held the evidence of appellant's witness to be false or in any way lacking in any essential respect for establishing the plea viz personal bona fide requirement". In 1990 S.C.M.R. 544, it was held by the Supreme Court of Pakistan that demand for increase of rent perse could neither be a basis for a finding oimalafide nor such like alleged mala fides can be the basis for rejection of an application for eviction, in every case. In 1989 S.C.M.R. 1366 it was held that the demand of higher rent by itself would not cause doubt on the personal bona fide requirement where the factum of bonafide requirement was independently proved. It was lastly contended by learned counsel for respondent that sufficient protection is provided under Section 15-A (»') of the Sind Rented Premises Ordinance, 1979 to a tenant in case the handlord fails to occupy the premises and gives it on rent to any other person. In such a case a tenant would always be entitled to get back possession of the premises vacated by him. From the perusal of record before me. there is sufficient material to establish the bona fide of the respondent. Admittedly he has been transferred to Karachi and it is very natural lor him to live in his own house. He has produced in support of his case, a letter from Habib Bank Ltd. A.G. Zurich the contents of which have remained un-rebutted and unshaken. No evidence has come on record that the respondent has not been working at the branch office of the said Bank in Karachi . The respondent has provided in sufficient details his personal requirement. His evidence inspires confidence with regard to his bona fide. A demand for increase in rent made on a tenant will not ipso facto demolish the ground of personal requirement of the premises of the landlord. In the result, I dismiss the appeal with costs with direction to the appellant to [vacate the premises within three months hereof. (MBC) (Approved for reporting) Appeal dismissed.

Lahore High Court Lahore High Court PLJ 1992 Lahore 1 (DE) jpvjt.-.';:: M-NL^KSOOB AJi.MAD, CJ AND MALIK \IUIL\MMAD QAYYUM, J Sh. ABDUL HAQ AND SONS LTD.--Petitioncr versus PUNJAB INDUSTRIAL DEVELOPMENT BOARD, LAHORE, and 3 others-­ Respondents CM.No. U24 of 19S3 in W.P.No. 1355 of 1975, dismissed on 8.5.1991 Judgment-- —Acceptance of writ petition—Verbal order of Chief Justice—Whether judgment was not written by Chief Justice before his elevation to Supreme Court—Question of—There is nothing on record to show with certainty that judgment was not written and signed by Mr. Justice Mushtaq Hussain while he held office of Chief Justice-Held: As Mr. Justice Mushtaq Hussain had signed judgment as Chief Justice, a presumption of highest credibility arises that he was holding that office at that time and mere fact that file was received by office in August, 1980 or blue slip was added by ministerial staff at that time, cannot rebut this presumption—Application dismissed. [Pp.3&4]A&B 1989 SCMR 1332 rel. Mr. S.M. Zafar, Advocate for Petitioner. Raja Muhammad Akram, Advocate for Respondents. Date of hearing: 8.5.1991. judgment Mahboob Ahmad, C J.-Sheikh Abdul Haq, petitioner filed a constitutional 4 petition (Writ Petition No. 1355/75) under Article 199 of the Constitution of Islamic Republic of Pakistan praying for a direction against the Punjab Industrial Development Bank of Pakistan, Lahore, M/S Crescent Factory Limited, Chichawatni and the Government of Pakistan through Secretary, Ministry of Industries, Islamabad to settle the account and compensation of the petitioner in respect of determination of the lease of Crescent Factory Limited, Chichawatni. This Writ petition was, heard by the learned Chief Justice of this Court who per his verbal order accepted the same on 13.11.1979. On 27.5.1980 he was appointed adhoc Judge of the Supreme Court of Pakistan and took oath of that office on 2.6.1980. 2. On 28.4.1983, a miscellaneous application (C.M.No. 1424/83) was filed by the applicant for review of the aforesaid order on the ground that the learned Chief Justice had ceased to be a Judge of this Court w.e.f. 27.5.1980; that he had not written judgment before his elevation to the Supreme Court; that the judgment written thereafter was of no legal effect and as such the writ petition will be deemed to be pending and therefore, the same be heard on merits. This application was allowed by MrJustice Javed Iqbal the then learned Chief Justice on 9.7.1983 who was of the view that as the judgment in the case had been written after MrJustice Mushtaq Hussain had ceased to be Judge of this Court, the writ petition merited to be re-heard. 3. The respondent in this application, who was the writ petitioner challenged order dated 9.7.1983 by filing the appeal with the leave of the Supreme Court of Pakistan. It may be mentioned that against the judgment of MrJustice Mushtaq Hussain written in pursuance of the verbal annoucement the present applicant also went in appeal before the Supreme Court. Both these appeals were taken up for hearing together by the Supreme Court of Pakistan, which by its judgment dated 20.5.1990 set aside the order passed by the learned Chief Justice dated 9.7.1983 passed in C.M.No. 1424/83 in writ petition No. 1355/75 and remanded the miscellaneous application to this court for determination afresh after notice to the parties. The other appeal namely Civil Appeal No. 271/1988 which is directed against the judgment of MrJustice Mushtaq Hussain was kept pending to await the decision of this Court in the aforementioned Civil Miscellaneous. 4. Pursuant to the order of remand, we have heard Mr. S.M. Zafar, Advocate on behalf of the applicant and Raja Mohammad Akram, Advocate on |jfi behalf of the respondent/writ petitioner. 5 The learned counsel for the applicant submitted that though oral order was announced by the learned Chief Justice on 13.11.1979, whereby he accepted the writ petitior filed by the respondent, but the judgment having not been written or signed by the learned Chief Justice before he became a Judge of the Supreme Court, the judgment subsequently delivered by him is of no legal effect. The learned counsel relied upon certain authorities and text books to show that a judgment written by a Judge who had ceased to hold office is of no legal validity. 6. In order to show that in the present case, the judgment was written and signed by the learned Chief Justice after he had ceased to hold office of the Chief Justice of this Court, reliance was placed on the position that in the report called on the Civil Miscellaneous Application by MrJustice Javed Iqbal while hearing the said Civil Miscellaneous, the Ex Reader to MrJustice Mushtaq Hussain had reported that the file was taken by the learned Chief Justice at the time of his elevation to the Supreme Court which was handed over to the Reader after couple of months. The learned counsel also emphasised that on the judgment, there appears a note to the effect that the blue slip was added on 25.8.1980 and that it was verified on 28.8.1980. 7. Raja Mohammad Akram the learned counsel for the respondent writ petitioner however, contended that there was nothing on the record to show that the judgment was not signed by the learned Chief Justice at the time when he held that office. According to the learned counsel as MrJuslice Mushtaq Hussain had signed the judgment as Chief Justice of this Court, a strong presumption arises that at that time he was holding the office of the Chief Justice. The learned counsel in this respect relied upon the observations of the Supreme Court in Tlie Pakistan Shipping Corporation and another vs. Rustam F.Cowasjee and others reported as 1989 SCMR 1332. 8. Having heard the learned counsel for the parties and perused the record, we do not find any force in this civil miscellaneous application. As has been pointed out by the learned counsel for the respondent, there is nothing on the record to show with certainty that the judgment was not written and signed by MrJustice Mushtaq Hussain while he held the office of the Chief Justice. We are unable to agree with the learned counsel for the applicant that merely because the blue slip was added or verified in August, 1980, it should be presumed that the judgment was signed and written at that time. The report of the Reader on which j much reliance was placed by Mr. S.M. Zafar, Advocate also does not advance his r case, for what has been stated therein is only that MrJustice Mushtaq Hussain had taken away the file at the time of his elevation to the Supreme Court and had returned the same after a couple of months. There is however, nothing in the report to suggest that at the time when the file was taken away by the learned Chief Justice, the judgment had not been written or signed. We are fortified in the view which we have taken by the authority of the Supreme Court cited above viz 1989 SCMR 1332 which is on all fours and squarely applies to the facts of the present case. The relevant observations of the above report appearing at page 1344 may usefully be reproduced hereunder:- "As regards the question relatable to the announcement, preparation and standing of a High Court judgment, we find that the contention of the learned counsel for the appellant is based on an assumption of fact and without that assumption of fact the argument cannot stand by itself. The assumption of fact is that because there is a blue slip of a functionary associated with the Court work certifying that the judgment was fit to be reported which was recorded and bears the date 27.8.1980 it has been presumed that on that date the written judgment was signed by the Judge. On that conclusion it is inferred that the learned Chief Justice having already left the Court on 26.5.1980 his written judgment was rendered a nullity. Such an assumption of fact is against the contents of the judicial record enjoying the highest credibility. It appears ex facie that the written judgment was signed by the learned Chief Justice in the capacity of and at the time when he held the office of the Chief Justice and on what date the office received the file or some ministerial functionary attended to it cannot upset such a content and effect of the judicial record. The receipt of the record in the office, the attention paid to it by the ministerial functionaries, has no bearing on the subject. We, therefore, do not want to go in detail into the correctness or otherwise of the decision in Nazar Abbas Khan's case but all that we can say at this stage is that the act of putting the signatures of a Judge cannot be necessarily related to or be determined by the date of receipt of file in the office from the Judge or any other quarters. The two are distinct dates and times and they each have to be established by their own evidence and not one from the other. The presumptions raised from the record and attaching to such a record are not affected by the submissions made by the learned counsel for the appellants. Hence this very objection was mis-conceived and is untenable." In the cited precedent, the case was heard and the judgment was orally announced by the Chief Justice on 5.6.78 and the office note showed that the file was sent to the office on 27.8.1980 while in the present case, the case was heard on 13.11.1979 and the file was sent to the office on 25.8.1980. 9. We consequently hold that as Mr.Justice Mushtaq Hussain had signed the judgment as the Chief Justice, a presumption of highest credibility arises that he was holding that office at that time and the mere fact that the file was received by the office ia August, 1980, or blue slip was added by the ministerial staff at that time cannot rebut this presumption. In the light of the view which we have taken it is not necessary to deal with argument of Mr. S.M. Zafar, Advocate and the authorities cited by him that if a Judge ceases to hold office, the judgment signed by him thereafter is of no legal effect. 10. We do not find any force in this petition, which is dismissed but leave the parties to bear their own costs. (MBC) (Approved for reporting) Application dismissed.

PLJ 1992 Lahore 5 PLJ 1992 Lahore 5 Present MUHAMMAD ILYAS, J GHULAM MUHAMMAD-Petitioner versus MUMTAZ BEGUM ^.--Respondents Civil Revision No. 1541/D of 1981, dismissed on 24.9.1991. Res-judicata-- —Suit for possession-Dismissal of-Challenge to-Whether subsequent suit brought by petitioner was barred by principle of res-judicata— Question of— According to petitioner himself, respondent No.2 was tenant and was claiming under respondent No.l who was a party to previous suit-Involvement of respondent No.2 in subsequent suit is of no help to petitioner—It was held in former suit that said agreement deed was not genuine—Held; Section 11 of C.P.C. did not permit court seized of subsequent suit, to go into question of genuineness or otherwise of agreement deed—Held further: Subsequent suit was barred by principle of res-judicata. [Pp.6&7]A,B&C Petitioner in person. Mr. M-Ashraf'Azim and Pir Anwar Rehinan, Advocates for Respondent No.l. Nemo for Respondent No.2. Date of hearing: 24.9.1991. judgment This civil revision has arisen out of a suit brought by the petitioner, Ghulam Muhammad against Mst. Mumtaz Begum and Zubair Ahmad. It was alleged by the petitioner that Mst. Mumtaz Begum agreed to sell 2 Marias of land to him and also executed an agreement deed in this behalf but declined to transfer the said land to him when she was required to do so. It was further pleaded by him that she had leased out the land in dispute to the said Zubair Ahmad. He, therefore, prayed for decree for possession of the land in question. In reply, it was denied by Mst. Mumtaz Begum that she had executed the said agreement deed and also raised the plea of Res Judicata stating that earlier a suit based on the agreement deed in question had been dismissed by a Civil Judge and his judgment had also been upheld in appeal. Her plea of Res Judicata found favour with the Civil Judge before whom the suit for possession was instituted. That suit was, therefore, dismissed. The petitioner went in appeal before an Additional District Judge but without success. Hence this civil revision. 2. It was contended by the petitioner that provisions of section 11 of the Code of Civil Procedure were not attracted to his case because in the suit giving rise to this civil revision there were two defendants, namely, Mst. Mumtaz Begum and Zubair Ahmad but in his earlier suit there was only one defendant, namely, Mst. Mumtaz Begum. Mst. Mumtaz Begum has since died and her legal representatives have been brought on the record. While replying to the above argument of the petitioner, it was submitted by learned counsel for the legal representatives of Mst. Mumtaz Begum that Zubair Ahmad was allegedly a tenant under Mst. Mumtaz Begum qua the land in dispute and, therefore, his presence in the subsequent suit as a party was of no avail to the petitioner. 3. Section 11 of the Code of Civil Procedure, which embodies the principle of Res Judicata, reads as under:- "11. Res Judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation Vl.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating." It is evident from the opening provisions of section 11 of the Code of Civil Procedure that a suit would be hit by the principle of Res Judicata even if a party to subsequent suit was not a party to the former suit but claims under a party to the fomer suit. In the instant case, according to the petitioner himself, Zubair Ahmad was claiming under Mst. Mumtaz Begum inasmuch as he had been shown as a tenant of Mst. Mumtaz Begum by the petitioner himself. Undoubtedly, Mst. Mumtaz Begum was a party in the former suit as well as in the subsequent one. The petitioner cannot, therefore, claim exemption from operation of the provisions of section 11 of the Code of Civil Procedure on the ground of his impleading Zubair Ahmad also as a party to the subsequent suit. In this view of the matter, Zubair Ahmad's involvement in the subsequent suit is of no help to the petitioner. 4. It is not denied that substantial question which was directly involved in the two suits referred to above was with regard to the agreement deed alleged to have been executed by Mst. Mumtaz Begum. It was held in the former suit that the said deed was not genuine. Section 11 of the Code of Civil Procedure, therefore, did not permit the Court, which was seized of the subsequent suit, to go into the question of the genuinness or otherwise of the agreement deed in dispute. 5. As indicated above, there is concurrent finding of the two Courts below that the subsequent suit brought by the petitioner was barred by Res Judicata. The petitioner has not pointed out anything to enable me to disturb that finding. I am, therefore, unable to interfere in this case. 6. Resultantly, this civil revision fails. It is accordingly, dismissed, with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 7 PLJ 1992 Lahore 7 Present: falak sher, J MUHAMMAD AKHTAR-Petitioner versus Mst. SHAZIA and 4 others-Respondents Writ Petition No.7790 of 1991, dismissed on 6.10.1991. Maintenance-- —Minor sons-Grant of maintenance to-Challenge to—Section 5 of Family Courts Act, 1964 read with item 3 of Schedule thereof, catering for maintenance without distinguishing period thereof in terms of past or future, has been adjudged to be in consonance with injunctions of Quran and Sunnah by Federal Shariat Court and remains unrepealed on statute part-PWs categorically deposed as to three sources of petitioner's income cumulatively amounting to rupees nine to ten thousands per month-Held: Concurrent findings recorded by two court below are un-exceptionable-Petition dismissed. [P.8]A ,B &C PLD 1972 SC 302, PLD1966 (WP) Lahore 703 and 1982 CLC 1295 rel. Mr. AzharAli Shah Bokhari, Advocate for Petitioner. Date of hearing: 6.10.1991. order This petition emanating out of the judgment in affirmance of learned Additional District judge, Faisalabad dated 6.7.1991 upholding the findings recorded by the learned Judge Family Court on 28.11.1989 awarding maintenance to respondents 2 and 3 at the rate of Rs. 300/- per mensem per head for three years preceding institution of the suit i.e. 26.9.1987, inter alia, claiming maintenance for the respondents at the rate of Rs. 800/-p.m. since August, 1983, has urged bi-fold contentions, viz. placing reliance on Syed Hamid All Shah vs. Mst. Razia Sultana (1991 C.L.C. 766) submitted that under Mohemdan Law awarding of maintenance is contingent upon decree of Qazi, in the absence whereof, past maintenance cannot be claimed, and, secondly, the quantum of maintenance is beyond petitioner's means. I am afraid, both the contentions are misconceived; the first argument seems to have been advanced in oblivion of the fact that section 5 of the West Pakistan Family Courts Act 1964 read with item 3 of the Schedule thereof, catering for maintenance without distinguishing the period thereof in terms of past or future, has been adjudged to be in consonance with the injunctions of Quran and Sunnah by the Federal Shariat Court and remains unrepealed on the statute part, while the full Bench of the Supreme Court in Muhammad Nawaz vs Mst. KJnirshid Begum and others (P.L.D. 1972 S.C. 302) examining wife's right to past maintenance under Mohemdan Law, approved enunciation of the law by a Division Bench of this Court in Sardar Muhammad vs Mst. Naseeman Bibi and others (P.L.D. 1966 (West Pakistan) (Lahore) 703 repelling the argument presently being convassed and was followed in Bashir Ahmad vs Mst. Abida Bibi (1982 C.L.C. 1295). Likewise, the second contention looses sight of the fact that three witnesses namely Shafique Ahmad, Abdul Qayyum Bhatti and Mst. Shazia appearing as PW 1, PW 2 and PW 3 respectively categorically deposed as to three sources of petitioner's income viz., being a share-holder in Petrol Pump business at Kharian Road; tractors' spare parts shop under the name and style of Ittefaq Autos and rental income from shops cumulatively amounting to rupees nine to ten thousands per month by proximation; independent thereof, it pertains to the realm of facts. In view of the aforegoing, the concurrent findings recorded by the two courts below are unexceptionable and the petition being devoid of any substance is hereby dismissed in limine. (MBC) (Approved -for reporting) Petition dismissed.

PLJ 1992 Lahore 9 PLJ 1992 Lahore 9 Present: FALAK SHER, J MUHAMMAD ASGHAR-Petitioner versus DISTRICT MAGISTRATE, SIALKOT and another-Respondents Writ Petition No.9049 of 1991, accepted on 9,10.1991. Preventive detention- —Detention under Section 3 of Punjab Maintenance of Public Order Ordinance, 1960--Challenge to-In view of admitted disability, petitioner could not venture upon or offer or contribute towards threat of public safety-or maintenance of public order-Held: Conclusion is inescapable that District Magistrate acted blind-foldly in a purely mechanical fashion without application of independent judicial/judicious mind manifesting height of irresponsibility in discharge of official functions and breach of constitutional duty contemplated by Article 5(2) of Constitution of 1973 vis-à-vis constitutional guarantees of citizens-Petition allowed with special costs against D.M. and detention order set aside. [P.10JA&B Mr. Ijaz Anwar, Advocate for Petitioner. Mr. Zaeemul Farooq Malik, AA..G. for Respondents. Date of hearing: 9.10.1991. order Through this constitutional petition legality of petitioner's detention having been ordered by District Magistrate, Sialkot on 15.9.1991 under Punjab Maintenance of Public Order Ordinance, 1960 has been assailed urging that petitioner being al eady lodged in District Jail, Sialkot in pending criminal proceedings had been naturally rendered incapicitated from activities alleged to be prejudicial to the public safety or maintenance of public order in every consumable sense of the word, secondly has even been denied copy of the order tending to detain him; during the course of motion hearing whereof on 8.10.1991 entrusting copy of the petition to Rana Muhammad Arshad Khan, learned Additional Advocate-General who was required to join the proceedings, record of the case was summoned for today which did not mature into reality, instead Mr Zaeem ul Farooq Malik, learned AA.G. entered appearance and stating that he has been recently entrusted with the brief, requested for a short lime with a view to seeking instructions from the authorities concerned tclephonically, pursuant whereto, later in the day, he submitted that the District Magistrate is reported to be on tour, while Talib Hussain, Additional District Magistrate has confirmed that during confinement of the petitioner/detenu since 28.8.1991 in District Jail, Sialkot in four criminal cases, registered vide FIRs No. 181 of 29.6.1991 under sections 452/34 PPC police station Rangpura; No. 46 of 20.4.1989 under Articles 3/4 of the Prohibition (Enforecment of Hadd) Order, 1979 police station Kotli Said Amir; No. 235/91 under section 411 PPC read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 police station Kotwali and No. 208 of 13.8.1991 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 police station Civil Lines, District Magistrate, Sialkot granting request of the S.P. envisaged in memo of 9.9.1991 ordered petitioner's detention on 15.9.1991 under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 for a period of three months. I am afraid, in view of the admitted disability, obviously the petitioner/ detenu by no stretch of imagination could venture upon or offer or contribute towards threat of public safety or maintenance of public order, the sine qua non for-pressing into service rigours of the preventive detention conceived by section 3 of the punjab Maintenance of Public Order Ordinance, 1960; consequently, the conclusion is inescapable that the District Magistrate, Sialkot acted blind foldly in a purely mechanical fashion without application of even semblance of independent judicial/judicious mind manifesting height of irresponsibility in the discharge of official functions and breach of constitutional duty contemplated by Article 5 (2) of 1973 Constitution vis-a-vis the constitutional guarantees of the citizens. The consequence could have been avoided had the District Magistrate opted to avail of the ophthalmic and cerebellum faculties of the human anatomy instead of restraining utilization thereof in a circumscribed bureaucratic insularity out of deliberations deriving the propelling impetus from the preventive detention legislation as an engine of oppression. 1 am impelled to observe that fate of millions of souls inhabitating the districts where public servants with such patent disposition and propensities are made the incharge would be utterly unsafe. In view of the aforegoing, the impugned detention order is set aside and the ! petition is allowed with special costs of Rs. 5,000/- against the District Magistrate, j Sialkot personally. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 9 PLJ 1992 Lahore 9 Present: FALAK SHER, J MUHAMMAD ASGHAR-Petitioner versus DISTRICT MAGISTRATE, SIALKOT and another-Respondents Writ Petition No.9049 of 1991, accepted on 9,10.1991. Preventive detention- —Detention under Section 3 of Punjab Maintenance of Public Order Ordinance, 1960--Challenge to-In view of admitted disability, petitioner could not venture upon or offer or contribute towards threat of public safety-or maintenance of public order-Held: Conclusion is inescapable that District Magistrate acted blind-foldly in a purely mechanical fashion without application of independent judicial/judicious mind manifesting height of irresponsibility in discharge of official functions and breach of constitutional duty contemplated by Article 5(2) of Constitution of 1973 vis-à-vis constitutional guarantees of citizens-Petition allowed with special costs against D.M. and detention order set aside. [P.10JA&B Mr. Ijaz Anwar, Advocate for Petitioner. Mr. Zaeemul Farooq Malik, AA..G. for Respondents. Date of hearing: 9.10.1991. order Through this constitutional petition legality of petitioner's detention having been ordered by District Magistrate, Sialkot on 15.9.1991 under Punjab Maintenance of Public Order Ordinance, 1960 has been assailed urging that petitioner being al eady lodged in District Jail, Sialkot in pending criminal proceedings had been naturally rendered incapicitated from activities alleged to be prejudicial to the public safety or maintenance of public order in every consumable sense of the word, secondly has even been denied copy of the order tending to detain him; during the course of motion hearing whereof on 8.10.1991 entrusting copy of the petition to Rana Muhammad Arshad Khan, learned Additional Advocate-General who was required to join the proceedings, record of the case was summoned for today which did not mature into reality, instead Mr Zaeem ul Farooq Malik, learned AA.G. entered appearance and stating that he has been recently entrusted with the brief, requested for a short lime with a view to seeking instructions from the authorities concerned tclephonically, pursuant whereto, later in the day, he submitted that the District Magistrate is reported to be on tour, while Talib Hussain, Additional District Magistrate has confirmed that during confinement of the petitioner/detenu since 28.8.1991 in District Jail, Sialkot in four criminal cases, registered vide FIRs No. 181 of 29.6.1991 under sections 452/34 PPC police station Rangpura; No. 46 of 20.4.1989 under Articles 3/4 of the Prohibition (Enforecment of Hadd) Order, 1979 police station Kotli Said Amir; No. 235/91 under section 411 PPC read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 police station Kotwali and No. 208 of 13.8.1991 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 police station Civil Lines, District Magistrate, Sialkot granting request of the S.P. envisaged in memo of 9.9.1991 ordered petitioner's detention on 15.9.1991 under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 for a period of three months. I am afraid, in view of the admitted disability, obviously the petitioner/ detenu by no stretch of imagination could venture upon or offer or contribute towards threat of public safety or maintenance of public order, the sine qua non for-pressing into service rigours of the preventive detention conceived by section 3 of the punjab Maintenance of Public Order Ordinance, 1960; consequently, the conclusion is inescapable that the District Magistrate, Sialkot acted blind foldly in a purely mechanical fashion without application of even semblance of independent judicial/judicious mind manifesting height of irresponsibility in the discharge of official functions and breach of constitutional duty contemplated by Article 5 (2) of 1973 Constitution vis-a-vis the constitutional guarantees of the citizens. The consequence could have been avoided had the District Magistrate opted to avail of the ophthalmic and cerebellum faculties of the human anatomy instead of restraining utilization thereof in a circumscribed bureaucratic insularity out of deliberations deriving the propelling impetus from the preventive detention legislation as an engine of oppression. 1 am impelled to observe that fate of millions of souls inhabitating the districts where public servants with such patent disposition and propensities are made the incharge would be utterly unsafe. In view of the aforegoing, the impugned detention order is set aside and the ! petition is allowed with special costs of Rs. 5,000/- against the District Magistrate, j Sialkot personally. (MBC) (Approved for reporting) Petition accepted. PLJ 1992 Lahore 10 Present: mian ALLAH NAWAZ, J NIHAL DIN alias LAL KHAN and 2 others-Petitioners versus MUHAMMAD HUSSAIN and 3 others-Respondents Writ Petition No.941-R of 1977, dismissed on 15.7.1991 (i) Limitation— —Jammu and Kashmir refugees—Allotment of agricultural land as maintenance grant to respondents-Subsequent allotment of same land to petitioners-Appeal against-Whether appeal was barred by time-Question of- -It is well settled principle of law that orders which are ab-initio void, are nullity in eye of law—Plea of limitation cannot be pressed into service in regard to such order-Held: Contention that appeal filed by respondents was barred by time, is untenable. [P.15]C (ii) Settlement and Rehabilitation Matters-- —Jammu and Kashmir Refugees-Allotment of agricultural land as maintenance grant to respondents-Subsequent allotment of same land to petitioners—In appeal, subsequent allotment to petitioners was cancelled and respondent's grant was restored-Whether land allotted on temporary basis to J & K refugees was excluded from compensation pool—Question of—Families migrating from occupied J & K were in first instance given free ration and ration-cards were issued to them-Thereafter ration-card holders were allotted evacuee agricultural land as a maintenance grant-Land so allotted was sold by Chief Settlement Commissioner to Ministry of Kashmir Affairs for satisfaction of claims of J & K refugees-Held: Evacuee agricultural land allotted to rationcard holders, after its transfer to said Ministry, stood excluded from compensation pool-Held further: Allotment in favour of petitioners was without any legal sanction, corum-non-judice and a nullity in eye of law- Petition dismissed. [P.13&15]A,B&D PLD 1977 Lah.202, PLD 1979 SC 985 and PLD 1982 Lah. 831 rel. Malik Muhammad Nawaz, Advocate for Petitioners. Mr. Abdul Wahid, Advocate for Respondents 1 to 3. Mr. M.Z.Khalil, Advocate for Respondent No.4. Date of hearing: 15.7.1991. judgment The only question calling for consideration in this constitution petition is whether the agricultural evacuee land granted to a refugee from Jammu and Kashmir in lieu of maintenance-grant, can be allotted to another refugee from Jammu & Kashmir against his verified claim under Scheme for permanent allotment of land issued by the Chief Settlement Commissioner with the previous approval of Central Govt. under Section 14 of the Displaced Persons (Land Settlement) Act, 1958, (hereinafter referred to as Act). 2. The material facts to be noted are that Din Muhammad deceased had come to Pakistan as a Displaced person from occupied Jammu and Kashmir. He was granted ration-card No. 25226 for the purpose of getting ration. In the Ration-card the name of Mst. Bibi, Muhammad Hussain, his brother and his wife Sardar Bibi, were incorporated as his dependants. The agricultural land measuring 144 kanals was thereafter allotted to Din Muhammad as a maintenance grant. Subsequently, the same land was allotted to Nihal Din, Muhammad Sharif, and Muhammad Siddique, herein petitioners, on 23.9.1964 by means of RL-II No. 36. Feeling aggrieved with this Muhammad Hussain and others (legal heirs of Din Muhammad) filed an appeal which was accepted by the Settlement Commissioner (Land) dated 2.8.1969, The case was remanded to the Additional Settlement Commissioner to decide the case afresh in accordance with law. In pursuance of this order, the Additional Settlement Commissioner by means of order dated 15.6.1977 set aside the allotment in favour of Nihal Din and others and restored the grant in favour of the legal heirs of Din Muhammad who had died. The petitioners have challenged this order in this constitution petition. 3. The learned counsel appearing for the petitioners contended that the appeal was filed after the period of limitation. As such the Additional Settlement Commissioner had no authority to entertain the appeal and decide it without disposing of the question of limitation. On the basis of this question it was urged that the order of the learned Add!. Settlement Commissioner was without jurisdiction and passed without any lawful authority. 4. It was next contended that the appeal was dismissed on account of nonprosecution on 24.1.1.976 by the Additional Settlement Commissioner. The application for setting aside this order was filed on 29.10.1976 by Muhammad Hussain only. As such the allotment in favour of the remaining petitioners had become final and immune from further challenge. 5. ft was lastly contended that the respondents were refugees without a claim while the petitioners were refugees from Jammu and Kashmir with the A verified claim, as such they had priority over the respondents. According to the learned counsel for the petitioners, this aspect of the case had not been adverted to by the Addl. Settlement Commissioner, while passing the impugned order. Reliance was placed on Dost Muhammad and others vs. Mst. Badal Jan and others (1976 S.C.M.R. 112) and Jan Muhammad and others vs. Slier Muhammad and another, (PLD 1979 S.C. 985). 6. On the contrary the learned counsel appearing on behalf of the Settlement Department (respondent No. 4) supported the impugned decision. The learned counsel appearing on behalf of contesting respondents No. 1 to 3, contended that the agricultural land granted to refugees from Jammu and B Kashmir for the purposes of maintenance was excluded from compensation pool in terms of Para 4 of the West Pakistan Rehabilitation Settlement Scheme and so the allotment made in favour of respondents was corum-non-judice, without lawful authority and as such is void for all practical purposes. The order of allotment was a mere nullity and could be set aside. In regard to plea of limitation it was suggested that it was mere technical objection, strength was sought from Ghulam Muhammad and another vs. Ahmad Klian and another (PLJ 1991 SC 154), Muhammad Din and 6 others vs. Allah Lok & 3 others (1989 SCMR 323), Jan Muhammad and others vs. Sher Muhammad and another (PLD 1979 SC 985), Dost Muhammad and others vs. Mst. Badal Jan and others (1976 SCMR 112), Allah Lok and 2 others vs. Sardar Irshadul Hassan and 7 others (PLD 1982 Lah. 831), Mst. Sakina Bibi and another vs. Mamla and 2 others (PLD 1977 Lah. 202), Muhammad Khan and 2 others vs. Karim Bakhsh and 2 others (PLD 1977 Lah. 747), Federation of Pakistan vs. Kliawaja Muhammad Yousaf and 4 others (1989 CLC 2249) and Anwar Begum and others vs. Settlement Commissioner and others (1989 MLD 1988) 7. I have heard the learned counsel for the parties at a considerable length and have gone through the record. The facts of the case are not disputed. Admittedly the land in dispute was granted to Din Muhammad, the predecessorin-interest of respondents. The names of respondents were incorporated in Ration Card issued to Din Muhammad. Admittedly there is no impediment to transfer the land in dispute in favour of the respondents. The only question as noted above for decision is whether the allotment of land in dispute in favour of the petitioners was legal and creative of any right in their favour. 8. In order to appreciate the contentions of the parties it is to be noticed that the matter of allotment of land to the refugees from Jammu and Kashmir was made on a different footing. The families migrating from occupied Jammu & Kashmir were in the first instance given free ration and ration-cards were issued to them. Thereafter these ration-card-holders were allotted evacuee agricultural land as a maintenance-grant. The land so granted to Ration-card-holders was sold by the Chief Settlement Commissioner to the Ministry of Kashmir Affairs for utilization and satisfaction of claims of Jammu and Kashmir refugees who had abandoned land in the occupied territory. Paragraph 4 was inserted in the Rehabilitation Scheme Part-1 Clause (ix) whereunder the land allotted on temporary basis to Jammu and Kashmir Refugees was excluded from compensation pool. This was followed by framing a temporary allotment-scheme in order to satisfy the verified claims of refugees from occupied Jammu and Kashmir with a condition that the moment these refugees will go back to their own homes in occupied Jammu and Kashmir, these allotments will come to end. With the passage of time, when prospect of these refugees returning back to their homes became dim, the scheme for permanent settlement of these refugees was framed by the Chief Settlement Commissioner under the relevant provisions of Displaced Persons (Land Settlement) Act, 1958. 9. The aforenoted provisions of law came into consideration in Mst. Sakina Bibi and another vs. Mamla and 2 others (PLD 1977 Lah. 202) ibid. His lordship MrJustice Gul Muhammad Khan, (as he then was) after the survey of the Government Circulars and the law, came to the conclusion that the land temporarily allotted to Jammu and Kashmir refugees as maintenance grant stood sold to the Ministry of Kashmir Affairs and so was not available for allotment to others. This view was approved in Jan Muhammad and others vs. Sher Muhammad and another (PLD 1979 S.C. 985). 9. If'he above point again came up for examination in Allah Lok and 2 others >s. Sardar Irshadul Hassan and 7 others (PLD 1982 Lah. 831), before a Division Bench of this Court. It will be appropriate to examine this case in detail. The facts of the case were that one Nanak, predecessor-in-interest of the petitioners was given land as maintenance grant in village Punj Garaien, Tehsil Narowal, District Sialkot and possession of land was delivered to him on 28.6.1959. In 1974 the private respondents initiated proceedings under Sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, on the ground that Nanak had been keeping the said allotment by practising the fraud; that he had obtained permanent allotment of his claim in other villages in 1962; and so he was not entitled to retain the land in village Panj Garaien. After inquiry, the allotment in his favour in Village Panj Garaien, was cancelled and confirmed to respondents. The legal heirs of Nanak challenged the order by filing constitution petition which was accepted and the impugned order set aside by a Division Bench of this Court. It was held that the land granted for maintenance purposes to the refugees (Ration-card-holder) was not available for allotment in any scheme including the one for permanent settlement of refugees from occupied Jammu and Kashmir with verified claims. The> relevant paras of the judgment are 9 and 10 which are reproduced in extenso as under: "9. However, the question of application of said provision by a Settlement authority could have arisen only if the land of said temporary allotment had continued to remain in the compensation pool. But as held earlier, the land of said temporary allotment of Nanak had gone out of the compensation pool and, therefore, neither said clause 22 of Supplementary Rural Scheme could be invoked and applied nor the Settlement authorities had any jurisdiction left to cancel the said temporary allotment under Section 10/11 of Displaced Persons (Land Settlement) Act, 1958 and allot it to respondents 2 to 8. The petitioners are, therefore, entitled to hold the land in question unless the same is required by the Ministry of Kashmir Affairs, Government of Pakistan, who is its absolute owner. The said Ministry alone could take away the said land from petitioners.The learned Judge went on to say that: "The upshot of the above disccusion is that by virtue of the sale made by the Chief Settlement Commissioner under Section 12 of the Land Settlement Act of all the land temporarily allotted to Jammu and Kashmir refugees for the purpose of their maintenance, the said land of temporary allotment of Nanak had become the property of Minstry of Kashmir Affairs, Government of Pakistan in the year 1960 and, therefore, had been excluded from the compensation pool and the Chief Settlement Commissioner or the respondent delegatee of the Chief Settlement Commissioner had no jurisdiction left to cancel the same and allot it to respondents Nos. 2 to 8. In this view of the matter, this writ petition is allowed and the order of the A.D.C (C)/Chief Settlement Commissioner is declared to be of no legal effect as having been passed without lawful authority and dirction is issued that the said land be restored to petitioner " 10. The ratio deducible from the examination of aforenoted law and the authoritative pronouncement in the aforementioned authority, is that evacuee agricultural land allotted to ration-card-holders/refugees from Jammu & Kashmir, stands transferred to the Ministry of Azad Jammu & Kashmir and is excluded from compensation pool for the purposes of settlement in favour of then refugees from Jammu & Kashmir with verified claims. Judged from this angle it is , quite clear that the allotment in favour of the petitioners by the Deputy Settlement Commissioner was without any legal sanction. It was corum-non-judice and was a mere nullity in the eye of law. As such the Additional Settlement Commissioner was well within his right to adjudge this allotment as having been made without any lawful authority. The impugned order, therefore, is eminently just and in consonance with the provisions of law. D 11. As regards the question ofjimitation it is well settled principle of law that the orders which are ab-initio void, are nullity in the eye of law. The plea of limitation cannot be pressed into service in regard to such orders. The contention of the learned counsel for the respondents 1 to 3 that the appeal filed by Allah Rakha (?) was barred by time is accordingly found to be untenable and is repelled. 12. The upshot of what has been stated above, is that I do not find any merit in this constitution petition which is dismissed, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 15 PLJ 1992 Lahore 15 Present: Malik muhammad qayyum, J Sardar HIDAYATULLAH KHAN MOKAL-Petitioner versus GOVT. OF PUNJAB, THROUGH SECRETARY, LABOUR DEPARTMENT and another-Respondents Writ Petition No.624 of 1990, dismissed on 27.3.1991. (i) Appointment— —Secretary to Provincial Training Board-Appointment of~Claim of--Whether Board had appointed petitioner as Secretary/Advisor of Board-Question of~ It is not disputed that power to appoint servants and officers vests in Board itself and not in its Chairman alone—It is obvious that no decision to appoint petitioner, was taken by Secretary of National Training Board who was of view that power in that behalf vested in Provincial Training Board-Held: Letter of appointment on which much reliance has been placed by petitioner does not confer any right on him having not emanated from competent authority. [Pp.l8,19,20&21]A,B,C,D&F (ii) Locus Poenitentiae- — Locus Poenitentiae— Principle of—Whether principle is applicable—Question of-There cannot be any cavil that if an order passed by an authority has been implemented or given effect to or has been acted upon, it cannot be subsequently withdrawn to detriment of affected person-Held: No right can be claimed on basis of an order which has no existence in law having been passed by a person not authorised to do so nor any benefit can be claimed on its basis. [P.20]E PLD 1962 (WP) Kar,353 and PLD 1989 Lak 196 reL Raja Muhammad Anwar, Advocate for Petitioner. Ch. Mushtaq Ahmad Klian, Advocate for Respondents. Date of. hearing: 22.1.1991. judgment The petitioner was serving as Director Manpower and Training Punjab, Lahore , in the employment of the Government of Punjab and was also the Exofficio Member/Secretary of the Provincial Training Board constituted under Section 5 (2) of the National Training Ordinance 19SO by virtue of a notification of the Government of Punjab dated ,30th of July, 1980. By a subsequent notification the Board was reconstituted on 10th of January, 1983. 2. On attaining the age of Superannuation Sardar Hadayat Ullah Khan Mokal the petitioner retired from Government service on 31st of December, 1989. However earlier on 24th October, 1989 the Provincial Training Board considered the proposal for appointment of the petitioner as Secretary to the Provincial Training Board w.e.f. 1st of January, 1990 on the same terms and conditions as were applicable to the post of Director Manpower and Training Punjab from which the petitioner was due to retire on 31st of December, 1989. According to the petitioner, the Board in that meeting approved his appointment as Secretary to the Provincial Training Board but in view of an objection raised by the representative of the Finance Department that the Provincial Training Board was not competent to create the post, it was decided to approach the Director General/Secretary, National Training Board for the creation of the post of Secretary/Advisor in B.S.19-20 with other benefits as admissible under the rules. 3. In pursuance thereto a letter was addressed by the Chairman Provincial Training Board/Secretary Labour, Government of Punjab on 5th November, 1989, to the Director General/Secretary National Training Board requesting approval for creation of the post of whole-time Secretary/Advisor of the Provincial Training Board Punjab in B.S.19-20. In his reply dated 10th of November, 1989, the Secretary National Training Board appreciated the proposal but instead of approving it stated that the powers in that behalf stood vested in the Provincial Training Board under Section 7 of the National Training Ordinance (IX) 1989, According to the case of the petitioner, he was offered employment as Secretary Provincial Training Board vide letter dated 20th November, 1989 of the Provincial Training Board which was issued under the Signatures of its Chairman/Secretary to the Government of Punjab Labour Department, which he accepted and took over the charge as the Secretary Provincial Training Board on 1st of January, 1990 but the respondents instead of amending the notification of the constitution of the Board suitably so as to provide that the whole time Secretary shall be a Member of the Board, started denying the status of the petitioner as the Secretary. 4. The petitioner has now filed the present petition with the following prayer:- "Under the circumstances, it is respectfully prayed that a direction, in the light of the above submissions, for the amendment of the notification No.Lab-III/13-23/78-Part III dated 10.1.1983, to the effect that clause 8 of the notification be amended/substituted with the name of the petitioner as Secretary as per his appointment by the competent authority vide letter Annex 'G' or respondent No.l be ordered to be issued to respondent No.l. Any other relief, under the circumstances, of the case may kindly be ordered". 5. In the written statement filed by the respondents, it was not disputed that a proposal for appointment of the petitioner as Secretary/Advisor after his retirement from the Government Service was prepared but the respondents allege that this proposal was never approved by the Board and as such the petitioner was never appointed by any competent authority as its Secretary. In this respect it has been pointed out that the petitioner who at the relevant time was working as Director Manpower and Training Punjab, Lahore and also as Ex-officio Secretary of the Provincial Training Board, himself drew up a proposal that in accordance with the decision received from the Secretary National Training Board in his D.O. letter dated 10th November, 1989, the letter of offer of appointment may be approved. The Chairman of the Board approved this proposal on 20th November, 1989. The position taken up by the respondents is that the proposal to appoint the petitioner as Secretary Provincial Training Board was never approved by the Secretary National Training Board, and therefore reference to his letter dated 10th of November, 1989 was misleading and it was on account of this fact that the Chairman of the Provincial Training Board was led to approve the proposal submitted by respondents on 19th November, 1989. 6. Raja Muhammad Anwar, the learned counsel for the petitioner contended that the proposal to appoint the petitioner as Secretary of the Provincial Training Board was approved in the 6th meeting of the Board held on 24th October, 1989 in pursuance whereof the petitioner was issued a letter offering him appointment which he not only accepted but also took over as Secretary of the Board and as the decision of the Board and the appointment of the petitioner has been acted upon, there is no power of locus poenitentiae left in the respondents and the appointment could not be subsequently withdrawn or cancelled. Reliance has been placed by the learned counsel on the authority of the Supreme Court in the famous case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 S.C.407). 7. Ch.Mushtaq Ahmad, learned counsel for the respondents on the other hand has pointed out that no decision to appoint the petitioner was ever taken by the Provincial Training Board but only a recommendation was made and it was decided to forward the proposal to the National Training Board for its approval. According to the learned counsel this proposal was never approved by either the National Training Board or the Provincial Training Board and for this reason no letter of appointment could be issued to the petitioner by the Chairman of the Punjab Training Board. 8. The National Training Ordinance, 1980 was promulgated on 20th March, 1980. It provides by Section 3 for constitution of a National Training Board while Section 5(2) authorises each Provincial Government to establish a Provincial Training Board. Section 7 of the Ordinance empowered the National Training Board or a Provincial Training Board to appoint such officers and servants including advisors as it may consider necessary for the efficient performance of its functions. Subsection (2) provides that the terms and conditions of the officers and servants of each Board shall be such as may be prescribed. 9. A reading of this provision leaves no doubt that the authority to appoint such officers and servants, as may be deemed necessary, vests in and the terms and conditions of such officers or servants are to be prescribed by the Board iself. There is no dispute that it was the Provincial Training Board itself which was competent to appoint a Secretary or the Advisor of the Board. The question which, therefore, falls for consideration is as to whether the Board had appointed the petitioner as the Secretary/Advisor of the Board. After hearing the learned counsel for the parties and perusing the record, the inevitable conclusion is that the answer to this question has to be in negative. 10. From the narration of the facts and the perusal of the various documents placed by the parties on the record, it is clear that the petitioner while in the employment of Government of Punjab as Director Manpower was also the Ex offirin Secretary of the Provincial Training Board in terms of the notifications dated 30th July, 1980 and 10th January, 1983. There is no dispute that keeping in view the service rendered by the petitioner, it was proposed that on his retirement from the Government service on attaining the age of superannuation on 1.1.1990, the petitioner be appointed as whole time Secretary on the same terms and conditions on which he was performing his function as Director Manpower and Training Punjab. This proposal was put on the agenda of the 6th meeting of the Provincial Training Board Punjab at item No.5. The matter was deliberated upon in the meeting of the Board which was held on 24th October, 1989. On account of an objection raised by the representative of the Finance Department that the Provincial Training Board was not competent to create any post, it was decided that the Director General/Secretary of the National Training Board be approached for creation of a post of Advisor in B.P.S. No.19. The decision which was taken by the Board may be reproduced hereunder:- "It was decided to approach the Director General/Secretary, National Training Board for the creation of a post of Advisor in BS-19/20 with other fringe benefits as admissible under the Rules". 11. It was in pursuance to this decision that on 5th of November, 1989 a letter was addressed by the Chairman of the Provincial Training Board to the Director General/Secretary of the National Training Board requesting for the creation of the post of Secretary Provincial Training Board Punjab or if that be not possible for the post of Advisor in BPS-19 so that the petitioner could be appointed to that post. Although in its reply dated 10th of November, 1989 the Secretary commended the proposal but he instead (of) approving the same-wrote that the power in this half was vested in the Provincial Training Board under Section 7 of the National Training Ordinance 1980. Unfortunately thereafter the matter was never placed before the Provincial Training Board Punjab in any of its meetings so that the appointment of the petitioner could be approved. 12. Reliance of the learned counsel for the petitioner however, was on the minutes of the meeting held on 24th October, 1989 and the decision taken therein. But these minutes do not advance the case of the petitioner as no final decision to appoint the petitioner was taken by the Board in that meeting but instead it was decided to approach the Secretary of National Training Board for sanction/creation of the post to which the petitioner could be appointed. The Provincial Board was obviously under the impression that the appointment could only be made if the post of whole time Secretary was created for which purpose the power was with the National Training Board. I am, therefore, unable to agree with the interpretation being placed by the learned counsel for the petitioner on these minutes. 13. The letter of appointment dated 20th November, 1989 does not in any manner improve the case of the petitioner. It is not disputed that the power to appoint the servants and officers vests in the Board itself and not in its Chairman alone. No right, therefore, can be founded on the basis of this letter signed by the Chairman. There is also force in the contention of the learned counsel for the respondent that it was the petitioner himself who was instrumental in having this letter issued. From the document Annex R.5, it is to be seen that on 19th November, 1989 a proposal was prepared by the petitioner to the following effect:- "In accordance with the decision received from Secretary, National Training Board in his D.O. letter No.PA-NTB/85-Misc., dated 10.11.1989, a letter of offer of appointment has been prepared. Learned Secretary Labour/Chairman, Provincial Training Board, Punjab, is therefore, requested to kindly approve and sign the letter, placed below".This note was approved by the Chairman who subsequently issued the letter dated 20th November, 1989 (Annexure G) relied upon by the learned counsel. The authority on the basis of which the appointment letter was issued according to note prepared by the petitioner himself was the decision of the Secretary National Training Board in his letter dated 20th November, 1989. It is however, obvious from a perusal of that letter (copy of which has been filed by the petitioner as Annexure F to this petition) that no decision whatsoever to appoint the petitioner was taken by the Secretary of the National Training Board who was of the view that the power in that behalf vested in the Provincial Training Board. Although he appreciated the proposal to appoint the petitioner but such an appreciation can hardly be considered to be a decision. As a matter of fact as the Secretary was of the view that the power vested in the Provincial Training Board, he obviously could not take any decision in that behalf. 14. It is not the case of the petitioner that on any subsequent occasion either the Provincial Training Board or National Training Board had considered the matter or approved the appointment of the petitioner. That being the position the letter of appointment on which much reliance has been placed by the petitioner does not confer any right on him, having not emanated by the competent authority. 15. Much stress has been laid by the learned counsel for the petitioner on the principle of locus poenitentiae as enunciated in Muhammad Himayatullah Farukhi's case. There cannot be any cavil that if an order passed by an authority has been implemented or given effect to or has been acted upon, it cannot be subsequently withdrawn to the detriment of effected persons but this principle has no application when the order is not shown to have been passed by a person authorised or competent to do so. As no right can be founded on the basis of an order passed or decision made by a person having no authority to do so, the principle of locus poenitentiae has no application. No right can be claimed on the basis of an order which has no existence in law having been passed by a person not authorised to do so. Such an order is not capable of being enforced nor can any benefit be claimed on its basis. In Government of East Pakistan v. Federation nf Pakistan and another (PLD 1962 (W.P.) Karachi, 353), it was held that a legal right obviously means right recognized by law and capable of being enforced. In Amanul Haq and 2 others v. Punjab Public Ser>ice Commission and another (PLD 1989 Lah. 196) the question before this Court was as to whether the Punjab Public Service Commission was competent to withdraw the recommendations made by it for appointment of the petitioners as Medical Officer in the Province of Punjab. It was contended in the precedent case that as the name of the petitioner had been included in the list of recommendees which had been acted upon, the Public Service Commission could not subsequently exclude him from the list. It was however found that marks actually awarded to the petitioner were much less than those which were understood by the Commission to have been secured by him due to some miscalculation. It was accordingly held that the principle of locus poenitentiae was not applicable. While dismissing the constitutional petition it was observed that:-"In my humble view, the plea of locus poenitentiae is not available to a person in case where the order of the action relied upon may be found to be without jurisdiction or in excess thereof. No rights can be claimed or superstructure of rights built upon orders which are void or complete nullity in law. In all the three cases the petitioners are relying on illgotton wind-falls as a result of the wrongful acts, errors or accidental or intentional slips on the part of the functionaries of the Punjab Public Service Commission". The rule laid down appears to be applicable with full force in the present case. As the appointment of the petitioner was not approved by the authority competent to do so under the law, no right can be claimed by the petitioner nor can he maintain this constitutional petition for the protection of such a right. As a result of what has been stated above there is no force in this petition. It is dismissed leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 21 PLJ 1992 Lahore 21 Present: MALIK MUHAMMAD QAYYUM, J AKHTAR SALEEM QURESHI-Petitioner versus REGISTRATION OFFICER, MUNICIPAL CORPORATION, SARGODHA , and another—Respondents W.P. No. 7740 of 1991 (also W.P. Nos. 7921, 7943, 7981, 7627, 8397, 7923, 7922, 8411, 7961, 8501, 7718, 8574, 7832, 8436, 8256, 8423 and 8313 of 1991) accepted on 1.10.1991. (i) Electoral Rolls Act, 1974 (XXI of 1974)- —Ss. 11, 17, 18, 20 & 23—Name in electro! roll—Entry of—Applications for— Refusal to entertain/decide applications—Challenge to—No restriction as to time has been placed by section 18 on right of a person to apply for correction of rolls—Under Section 23, roll once published remains in force till revised— Till such time fresh or revised rolls are finally published, right to have previous rolls corrected, cannot be denied to electorate—Held: Respondents have acted without any authority in refusing to entertain/decide applications filed by Petitioners under Sections 11 and 18 of Act-Petitions accepted. [P. 29]F,G,H&J (ii) Electoral Rolls Act, 1974 (XXI of 1974)- —Ss. 11, 17 & 18—Name in electoral roll—Entry of—Applications for—Whether powers under sections 11 and 18 can be exercised during time of annual revision of electoral rolls under Section 17—Question of—Section 11 does not make any mention of process of annual revision—Power under this section can be exercised at any time before or after publication of electoral rolls-Section 18 vests a right in a person otherwise entitled to be enrolled as a voter, to file an application to have his name included in electoral rolls—Reliance of respondents only on heading of Section 18 is misplaced—Held: It is well settled that heading of section cannot control meaning of statute nor curtail or restrict its scope and working-Held further: It is trite law that interpretation which furthers evident purpose of enactment and advances remedy, is to be preferred to an interpretation which stultifies its object. [P.23,25,26,27&28]A,B,C,D&E Maxwell on Interpretation of Statutes (Twelfth Edition) Page 11, Craies on Statute Law (7th Edition) Page 209, Bindra's Interpretation of Statutes (7th Edition) Page 55, 1981 SCMR 143, PLD 1975 Lahore 1362, AIR (34) 1947 P.C. 82, AIR 1982 SC 289, Corpus Juris Secundum Vol. 29, Page 106, 25 American Jurisprudence 2d Page 785, and PLJ 1982 SC 373 rel. Syed Ehtasham Qadir Shah, Advocate for Petitioner. Mr. Maqbool Elahi Malik, Advocate General, Rana Muhammad Arshad, Addl. A.G. and Mr. Muhammad Iqbal Vehniwal, Advocate for Respondent No. 1. Mr. S~A. Mannan, Deputy Attorney General for Respondent No. 2. Date of hearing: 1.10.1991. judgment This judgment furnishes the detailed reasons for which Writ Petition Nos. 7740/91, 7921/91, 7943/91, 7981/91 7627/91, 8397/91, 7923/91, 7922/91, 8411/91, 7961/91, 8501/91, 7718/91, 8574/91, 7832/91, 8436/91, 8256/91, 8423/91, and 8313/91, were accepted by a short order on 1st October, 1991. 2. It is not necessary to set out the facts leading to filing of these petitions separately. Suffice it to say, that the petitioners in all these petitions applied for inclusions of their names in the electoral rolls or for transfer of their votes from one electoral area to another to the Registration Officers, but their applications were either not entertained or. were rejected. 3. The reason for the rejection disclosed by the respondents before this Court is that as the Election Commission of Pakistan, has directed that annual revision of electoral rolls be taken in hand with effect from 31st of August, 1991, no application for correction of any entry or inclusion of the name in the Electoral Rolls could be made. Reference in this connection has been made to the letter of the Punjab Election Commissioner, addressed to the Registration Officers on 14 th September, 1991, the relevant paras of which are reproduced as under :- "2. Attention of the Registration Officers may further be invited to Section 18 of the Electoral Rolls Act, 1974, which is operative for enrolment and correction at a time other than the annual revision. Since the process of annual revision has commenced with effect from August 31, 1991, the provisions of Section 18 have been rendered inoperative from that date. The Registration Officers cannot, therefore, exercise their powers under Section 18 from the commencement of annual revision on August 31, 1991, till the culmination of the process of annual revision. 3. After completion of various phases of the revision work, on December 7, 1991, printing of the supplementary lists will be undertaken by the middle of December this year. This final and revised electoral rolls are expected to be published early next year and the persons enrolled as voters during the revision operation will not, therefore, be able to participate in the ensuing elections to the local councils. It is clarified that if elections to the local councils are held in November, 19^1, as announced by the Provincial Governments, only such voters w' pitied to participate in these elections as are registered on the e) 31,1991, unless the law is amended by tr 4. The learned counsel for the petitione 18 of the Electoral Rolls Act, 1974, in notwithstanding the annual revision, the fficer correct the entries. Reference Act. The only reliance of the respond' Commission is on the heading of Sect' 5. From the respective cod' emerges for decision is as to whe Electoral Rolls Act, 1974, can b the electoral rolls is in rogre? 6. In order to appre' Electoral Rolls Act, 1974 2. It is not necessary to set out the facts leading to filing of these petitions eparately. Suffice it to say, that the petitioners in all these petitions applied for inclusions of their names in the electoral rolls or for transfer of their votes from one electoral area to another to the Registration Officers, but their applications were either not entertained or. were rejected. 3. The reason for the rejection disclosed by the respondents before this Court is that as the Election Commission of Pakistan, has directed that annual revision of electoral rolls be taken in hand with effect from 31st of August, 1991, no application for correction of any entry or inclusion of the name in the Electoral Rolls could be made. Reference in this connection has been made to the letter of the Punjab Election Commissioner, addressed to the Registration Officers on 14 th September, 1991, the relevant paras of which are reproduced as under :- "2. Attention of the Registration Officers may further be invited to Section 18 of the Electoral Rolls Act, 1974, which is operative for enrolment and correction at a time other than the annual revision. Since the process of annual revision has commenced with effect from August 31, 1991, the provisions of Section 18 have been rendered inoperative from that date. The Registration Officers cannot, therefore, exercise their powers under Section 18 from the commencement of annual revision on August 31, 1991, till the culmination of the process of annual revision. 3. After completion of various phases of the revision work, on December 7, 1991, printing of the supplementary lists will be undertaken by the middle of December this year. This final and revised electoral rolls are expected to be published early next year and the persons enrolled as voters during the revision operation will not, therefore, be able to participate in the ensuing elections to the local councils. It is clarified that if elections to the local councils are held in November, 1991, as announced by the Provincial Governments, only such voters will be entitled to participate in these elections as are registered on the electoral rolls existing on August 31,1991, unless the law is amended by the Provincial Governments". 4. The learned counsel for the petitioners have relied upon Section 11 and 18 of the Electoral Rolls Act, 1974, in support of their contentions that notwithstanding the annual revision, the power remains with the Registration Officer to correct the entries. Reference has also been made to Section 20 of the Act. The only reliance of the respondents apart from the letter of the Election Commission is on the heading of Section 18 of the Electoral Rolls Act, 1974. 5. From the respective contentions of the parties, the question which emerges for decision is as to whether the powers under Sections 11 and 18 of the Electoral Rolls Act, 1974, can be exercised during the time the annual revision of the electoral rolls is in progress intends (?) by Section 17 of the aforesaid Act. 6. In order to appreciate the controversy, the relevant provisions of the Electoral Rolls Act, 1974, may be noted. The Act as its pre-amble suggests was promulgated with a view to provids for preparation and revision of the Electoral Rolls to the elections of National and Provincial Assemblies. At this stage, it may be observed that although, the rolls prepared by the Election Commission are meant for elections to the National and Provincial Assemblies elections, but by virtue of Section 18 of the Punjab Local Government Ordinance, 1979, the electoral rolls for the election to the Provincial Assemblies shall also be the rolls for the purposes of the elections to the Local Councils. Section 4 of the Electoral Rolls Act, provides that the Rolls are to be prepared by revising the existing electoral rolls for the time being in force. Section 5 authorises the Election Commission to appoint Registration Officers and Assistant Registration Officers for the purposes of preparation, revision, correction and amendment of the Electoral Rolls. Section 9 empowers the Chief Election Commissioner to appoint a Revising Authority for any electoral area or group of electoral areas for the purposes of receiving and deciding objections and applications for correction relating thereto. Provisions of Section 11 are important for the present purposes and may advantageously be reproduced as under :- "11. Transfer of name from one electoral area to another. A person may apply for transfer of his name from the electoral roll of one electoral area to the electoral roll of another by filing— (a) an objection to the inclusion of his name in the roll in which it has been included, and (b) a claim for the inclusion of his name in the other, with the appropriate Revising Authority or Revising Authorities, if it is preferred before the final publication of the electoral roll under Section 16, or with the appropriate Registration Officer or Registration Officers, if it is preferred after such final publication. Under Section 16, final publication has to be made by the Registration Officers. Section 17 which deals with annual revision is as follows :- "17, Annual revision of electoral roll- An electoral roll shall be revised and corrected annually in the prescribed manner and form— (a) so as to include the name of any qualified person whose name does not appear on such roll, or (ft) so as to delete the name of any person who has died or who is or has become disqualified for enrolment, or (c) for correcting any entry or for supplying any omission in such roll. Provided that, if, for any reason, the electoral roll for any electoral area is not revised, the validity or continued operation of the electoral roll shall not thereby be affccl d. Section 18 on which reliance has been placed by both the parties reads as under :- "18. Enrolment and correction at a time other than the annual revision— (1) Any person whose name is not included in an electoral roll for the time being in force and who claims that he was or is entitled to be enrolled on that roll may apply to the appropriate Registration Officer, (alongwith a photostat copy of the identity card issued to him under the National Registration Act, 1973 (LVI of 1973) for the inclusion of his name therein, and if the Registration Officer is satisfied after giving such notice and making such inquiry as he may consider necessary that the applicant was or is entitled to have his name enrolled, he shall for the purpose of further correcting the roll insert the name of such person in that roll. (2) Any person may apply to the Registration Officer for the correction of any entry in an electoral roll for the time being in force; and (a) if the entry relates to the applicant and the Registration Officer is satisfied after giving such notice and making such inquiry as he may consider necessary that the entry relates to the applicant and is erroneous or defective in any particular, he shall correct the roll accordingly; and (b) if the entry does not relate to the applicant and the Registration Officer is satisfied after giving notice to the person to whom the entry relates and after making such inquiry as he may consider necessary that the entry is erroneous or defective or should be deleted, he shall correct the electoral roll accordingly".Section 20 of the Electoral Rolls Act which may also be noticed is as under :- "20 JVo correction to be made after constituency called upon to elect- No revision or correction of any electoral roll for an electoral area shall be made nor shall any order under Section 19 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected". 7. At the very outset, it may be stated that Section 11 envisages the exercise of powers by two different authorities, namely, Revising Authority and the Registration Officer, at two different points of time. It postulates that if the application is for the transfer of the vote before the publication of the electoral rolls, it shall be made to the Revising Authority, but if it is after the date of final publication, it shall be addressed to the Registration Officer. This section does not make any mention whatsoever of the process of annual revision. On the other hand, it provides that power under this section can be exercised at any time, whether before or after the publication of the Rolls. Thus, there is no warrant for assuming that when the annual revision has been taken in hand, this power is not available. 8. So far as inclusion of names in the electoral rolls for the time being is concerned, Section 18 vests a right in a person, otherwise entitled to be enrolled as a voter, to file an application to have his name included in the electoral rolls. There is nothing in the body of this section which prohibits the filing of «n application during the time of annual revision. Reliance of the respondents, however, is only on the heading of Section 18 of the Electoral Rolls Act, 1974. But this reliance is misplaced. It is well settled that heading of section cannot control the meaning of the statute nor curtail or restrict its scope and working. Although the heading may be looked into for interpretting the section if its words appear to be doubtful but it cannot restrict the plain words of the Section. In the event of any conflict between the main body of the section and the heading, it is the former which has to prevail. 9. Maxwell in his famous treatise "Tlie Interpretation of Statutes" (Twelfth Edition) at Page-11 states :- "The headings prefixed to sections or sets of sections in some modern statutes ae regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words, a rule which, whatever the assistance which it may render in construction, cannot stand logically with the exclusion of marginal notes, for headings like marginal notes are " "While the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in the section, where there cannot be any doubt as to their ordinary meaning". In Craies on Statute Law (Seventh Edition) at Page-209 it is stated that :- "Headings do not affect construction where clear. But the same general rule which regulates the effect of the preamble applies also to these headings-namely, that they are not to be taken into consideration if the language of the enactment is clear. The leading authority is Hammersmith & City Ry. v. Brand and the matter was later considered in Fletcher v. Birkenhead Corpn. in 1948 Lord Goddard C.J. said with reference to cross-headings in the Rating and Valuation Act 1925; "But while the court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning". Similarly, the following statement of law appears in Bindra's Interpretation of Statutes (Seventh Edition) at page 55 :- "Cannot restrict the meaning of sections. If the language of a section is clear, headings are not to be taken into consideration. Though there is authority for the proposition that the mere heading of a chapter is to be dealt with as though it were a Preamble, yet it cannot be used to cut down the clear words of the section which are contained in the chapter". In Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others (1981 SCMR 143), it was ruled that :- "In support of the petition, Mr.Chundrigar relied on Section 3 of the second Ordinance, because the heading of this section states that the second Ordinance was "not to derogate from other laws". But it is a trite observation that the heading of a section cannot curtail the plain words of the section". In Abdul Razzaq v. Faqir Muhammad and another (PLD 1975 Lahore 1362) Abdul Shakurul Salam, J. (as his Lordship then was) observed :- "Now the terms of the section are clear, explicit and comprehensive enough. There is no need to fall back upon the heading of the section to understand its meaning. There is no ambiguity, or, complexity in the context, or, the language. The terms of the section are rather more expressive and extensive than the Heading would convey. Of course, a Heading of a section cannot be construed in a manner so as to control, the express language of the provision and restrict its meaning. Therefore, it would be more profitable and in accordance with the canons of constructions to rely on the language of the section itself to interpret its meaning and intent". The judgment of the Privy Council in Emperor v. Sadashiv Narayan Bhalerao (AIR (34) 1947 Privy Council 82) and that of the Indian Supreme Court in Tire Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others (AIR 1979 SC 289) may also be referred to that advantage. 10. Viewed in the light of the above principles, it is to be seen that the language of Section 18 is quite clear and there is no ambiguity about it. The heading of the section, therefore, need not be-taken into consideration, and in any case the heading by itself cannot render the provisions of Section 18 inoperative >-. during the time the annual revision is in progress as has been suggested by the respondents. Be that as it may, even the heading does not lead to the conclusion at which the respondents have arrived at. It merely provides that the exercise of power for correction under rule 18 is different from the annual revision provided by Section 17, which in any case, does not have any over-riding effect nor does it whittle down the scope of Section 18. While interpreting provision of law like the Electoral Rolls Act, it has to be kept in mind that franchise is one of the most valuable right vesting in a citizen and no one should be deprived of the same, except by clear mandate of law. The restricted interpretation being placed by the respondents on Section 18 of the Act is neither countenanced by the Act nor the object for which it was promulgated. It is trite law that the interpretation which furthers the evident purpose of the enactment and advances the remedy is to be preferred to an interpretation which stultifies its object. In Corpus Juris Secundum Volume 29, at Page 106 while construing law relating to registration of voters, it is stated that :- "While various purposes have been ascribed to registration laws, the primary purpose of registration laws is to prevent the perpetration of fraud at elections by providing in advance thereof an authentic list of the qualified electors. Every part of a registration act must be so construed as to effectuate this purpose, and to give electors the fullest opportunity to vote that is consistent with reasonable precautions against fraud. Such laws should be construed liberally and favourably to the right to vote. Hence, permanent registration laws should not be construed so as to conflict with the general principles of law governing the exercise of the right of suffrage, but should be interpreted in the light of the purpose of such registration. Likewise, all provisions of registration laws should, if possible, be construed so as to avoid conflict. Similarly in 25 American Jurisprudence 2d at Page-785 it is opined that :- "Every part of a registration statute should be construed in order to effectuate its purpose, and to give electors the fullest opportunity to vote consistent with reasonable precautions against fraud. Such statutes should be construed, if possible, so as to avoid conflict. The elections to which a registration law applies must be determined from a proper construction of the provisions thereof. Even otherwise, keeping in view Section 4 of the Enforcement of Shari'ah Act, 1991, the Courts in Pakistan while construing a Statute, are bound to adopt beneficial construction. The following observations of the Supreme Court in Haji Kadir Bux v. Province ofSind and another(PL3 1982 SC 373) are instructive :- "The foregoing summarization would show that in so far as the question of general principles is concerned there is nothing which would prevent the Courts in Pakistan to adopt beneficial construction as against literal whenever a controversy in this behalf arises. I may add that such a course would indeed be in accord with our own jurisprudence and philosophy underlying the same". 11. The plain language of Section 18 leaves no room for doubt that no restriction as to time has been placed by law on the right of a person to apply for correction of the rolls. It is also to be seen that (under) Section 23 of the Electoral Rolls Act, 1974, roll once published remains in force till revised. That being so, till such time fresh or revised rolls are finally published, the right to have the previous rolls corrected cannot be denied to the electorate. This conclusion is further fortified by Section 20 of the Electoral Rolls Act, which provides that no revision or correction can be made nor any order for preparation of fresh rolls can be passed after the Constituency of which such electoral area forms part is called upon to elect its representatives. This provision makes the intent of the legislature obvious that where it wanted to (have) revision or inclusion, it has so stated in clear terms. It cannot, therefore, be argued with any success, that such a provision be implied in Section 18. 12. There is an equally weighty reason that why the scope of Section 18 should not be restricted as has been suggested by the respondents. As already observed, under Section 18 of the Punjab Local Government Ordinance, 1979, the electoral rolls for Provincial Assembly elections shall be the rolls for the Local Body elections. According to the announcement of the Government, these elections are scheduled to be held on 28th November, 1991, the Provincial Election Commissioner, Punjab in his letter dated 14th September, 1991, has himself pointed out that process of annual revision is to complete by the 15th of December, 1991 and as such those persons whose name does not figure in the electoral rolls on 31st August, 1991, shall have no right to vote at the forth-coming elections. It needs no gain saying that such an interpretation which has the effect of disenfranching a large number of persons should not in the absence of any compulsion be readily accepted.From the above, it is obvious that neither Section 11 nor Section 18 is subject to Section 17 of the Electoral Rolls Act, 1974, nor can the latter section over-ride or whittle down, the effect of Sections 11 and 18 of the Act. The instructions issued to the Registration Officers that in view of annual revision, the provisions of Section 18 had become inoperative (are) not countenanced by any law and have no efficacy. For all these reasons, it is clear that the respondents have acted without any authority in refusing to entertain/decide the applications filed by the petitioners under Sections 11 and 18 of the Electoral Rolls Act, 1974. The result of the above discussion is that all these petitions are accepted, with no orders as to costs. The respondents are directed to entertain/decide the applications filed by the petitioners, on merits in accordance with law. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1992 Lahore 30 PLJ 1992 Lahore 30 Present: MUHAMMAD ILYAS, J ANWAR CLUB, Sialkot and another-Petitioners versus MUHAMMAD SARWAR-Respondent Civil Revision No. 1269 of 1985, accepted on 30.9.1991. Punjab Land Revenue Act, 1967 (XVII of 1967)-- —-S. 117 read with Section 7 and Punjab Land Revenue Rules, 1968, Rule 67-A- -Agricultural land-Demarcation of-Challenge to-Section 117 of Act empowers a Revenue Officer to define limits of any estate, or of any holding, field or other portion of estate-Haifa Kanungo who recorded demarcation report, does not figure in Section 7 of Act-Rule 67-A of Rules also provides for demarcation by a Revenue Officer—Held: A Field Kanungo muchless a Naib Kanungo, is not competent to make a demarcation report, same was not legal evidence for purpose of deciding suit, and courts below committed a material irregularity in relying on said report-Petition accepted and case remanded. [P.31&32]A,B,C,D&E Ch. Muzammal KJian, Advocate for Petitioners. Mian Saeedur Rehman Famikh, Advocate for Respondent. Date of hearing: 30.9.1991 judgment This civil revision has arisen out of a suit involving dispute relating to a piece of land. The suit was decreed by a Civil Judge and the appeal preferred against his judgment and decree had not met with success. Hence this civil revision. 2. It was contended by learned counsel for the petitioners that the judgments and decrees, under challenge, are mainly based on the demarcation report of a Naib Kanungo who was not competent to undertake demarcation of the land in question. It was urged by learned counsel for the petitioners that under section 117 of the Punjab Land Revenue Act, 1967, hereinafter referred to as the said Act, only a Revenue Officer could demarcate the land and as the Naib Kanungo was not a Revenue Officer he had no authority to make the demarcation in question. In this connection, he invited my attention to section 7 of the said Act which makes a mention of different categories of officers. Plea of learned counsel for the petitioners was that since the two Courts below had taken into consideration his demarcation report, which was not legal evidence for the purpose of this case, their judgments and decrees were not sustainable. Learned counsel for the respondent could not refute the above arguments of learned counsel for the petitioners and submitted that he had no objection to the remand of the suit to the learned trial Court with the direction that it be re-decided after obtaining fresh demarcation report from a Revenue Officer. 3. Contentions raised by learned counsel for the petitioners against the demarcation report have lot of force. Section 117 of the said Act empowers a Revenue Officer to define the limits of any estate, or of any holding, field or other portion of an estate. According to Section 7 of the said Act, there are following classes of Revenue Officers:- (o) the Board of Revenue; (b) the Commissioner; (c) the Collector; (d) the Assistant Collector of the first grade; and (e) the Assistant Collector of the second grade.The Naib Kanungo, who recorded the demarcation report, does not figure in i section 7. Therefore, in terms of the provisions of section 7, he was not competent | to make the said report. 4. Rule 67-A of the Punjab Land Revenue Rules, 1968, framed under the said Act, also requires a Revenue Officer to define the limits of an estate, a holding, field or any portion thereof. According to sub-rule (1) of rule 67-A, an application, under section 177 of the said Act, for demarcation of any field, etc., is to be made to a Revenue Officer. Clause (b) of sub-rule (4) says that on the receipt of the application, the Revenue Officer shall fix time and date for demarcation of boundaries, and under clause (c) thereof, he is required to cause a notice of the application to be given to- (/) the parties to the application; («') Lambardar of the village in which the land mentioned in the application is situated; (Hi) Field Kanungo of the Circle; (iv) Revenue Patwari of the village if the notice is not to be served through him; and (v) any other person whose presence at the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer. It has been laid down in sub-rule (6) that at the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served on them, cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revenue, from time to time. Sub-rule (7) provides that after taking necessary measurement, the Revenue Officer shall prepare a plan and a report. It is also his duty to read out his report to the parties and to record their statements as to whether they have understood the proceedings and have any objection against any portion of his report. Sub-rule (7) further provides that after recording such statements and his opinion thereon, the Revenue Officer, on return to his Headquarter, shall place the report together with the plan of encroached area and statements of the parties, on the file and cause the particulars of the proceedings entered in the relevant column of the register prescribed for the purpose. 5. Above provisions of the said Act and of the rules made thereunder leave no room for doubt that although the Revenue Officer can require the Field Kanungo of the Circle to be present at the time of the demarcation yet the demarcation is to be carried out under the personal supervision of the Revenue Officer and the necessary plan and the report are also to be prepared by the Revenue Officer himself. I, therefore, agree with learned counsel for the petitioner and hold that a Field Kanungo muchless a Naib Kanungo is not competent to make a D demarcation report and as such the demarcation report in question, which was recorded by a Naib Kanungo, was not legal evidence for the purpose of deciding the suit giving rise to this revision. In this view of the matter, the Courts below committed a material irregularity in relying on the said report while passing the judgments and decrees assailed herein. 6. Since the suit was not properly decided, it will have to be sent back to the learned trial Court for fresh decision, after setting aside the judgments and decrees passed by the learned lower Courts. As stated above, learned counsel for the respondent too had no objection to the remand of the suit to the learned trial Court as he had nothing to say against the arguments of learned counsel for the petitioners with regard to the legality of the demarcation report in question. 7. Resultantly, I accept this civil revision, set aside the judgments and decrees passed by the two Courts below and remand the suit to the learned trial Court for fresh decision after taking the following steps:- («') Tehsildar, Sialkot , shall be appointed as Local Commissioner to demarcate the land mentioned in the plaint. (h) He shall do the aforesaid exercise personally in accordance with the aforesaid law and rules relating to demarcation of land. (iii) The Local Commissioner shall also record such evidence as may be produced before him by the parties. (iv) On the receipt of the report of the Local Commissioner the learned trial Court shall invite objections of the parties, and if objections are received, they shall be disposed of in accordance with law. (v) Before recording his fresh judgment the learned trial Court shall afford reasonable opportunity to the parties to address arguments. 8. Parties are left to bear their own costs. 9. Record of the learned trial Court shall be returned to it immediately. 10. A copy of this judgment shall be sent to the Member (Revenue), Board of Revenue, Punjab, Lahore, with the request that appropriate instructions may be issued to the Revenue Officers in the Punjab directing them to strictly follow the law and rules in regard to demarcation proceedings so that the parties may not be put to unnecessary bother and expense as has happened in the instant case. (MBC) (Approved fro reporting) Petition accepted.

PLJ 1992 Lahore 33 PLJ 1992 Lahore 33 Present: mian ALLAH nawaz, J AKBAR ALI and 5 others-Petitioners versus FOREST DEPARTMENT and 2 ethers-Respondents Writ Petition Nos. 320-R & 321-R of 1977, dismissed on 15.7.1991 Settlement and Rehabilitation Matters— —Land under Forest Department-Allotment of-Cancellation of-Application for—Acceptance of—Challenge to—From facts it is clearly established that before order of confirmation in favour of allottees, land in dispute was in possession of Forest Department which was having forest over it—Allotment was merely a paper transaction and did not create any legal vested right in favour of allottees-Held: Petitions are totally devoid of merits and have been filed to grab property of Forest Department being used for public purpose- Petitions dismissed. [Pp.35,36&37]A,B&C PLJ 1974 Lahore 539 ref. 1981 Law Notes SC 646 rel. M/s Ijaz Feroze and Ghulam Sabir, Advocates for Petitioners. Mr. M.Z. Kiialil, Advocate for Respondents 1&3. Respondent No. 2Exparte. Mr. Nazir Ahmad Janjua, Advocate for Respondents 3 to 24 (in W.P. No. 321-R of 1977). Date of hearing: 15.7.1991. judgment The validity/propriety of the order of Deputy Settlement Commissioner (Land), Wazirabad dated 4,12.1976 passed in exercise of power as dclegatee of the Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 is called in question in constitution petitions bearing No. 320-R/77 and 321-R/77. These are therefore, being disposed of by a single judgment. 2. The facts of W.P. 320-R/77 are that on 15.3.1968 Ali Muhammad (herein respondent No. 2) was allotted 112 kanals 17 marlas situated in the revenue estate of Rukh Singhpura in lieu of 99 units by means of RL-1I 98. This land included the land in dispute bearing old khasra No. 349 (and new Khasra No. 967) measuring 8 kanals. The petitioners No. 1 to 5 purchased the aforesaid land from Ali Muhammad in consideration of Rs. 7000/-through an oral sale incorporated in mutation register. This mutation No. 31 was attested on 17.4.1968 by the Assistant Commissioner-II, Wazirabad. 3. The facts of W.P .No. 321-R/77 are that Haji Saleh (herein respondent No. 2) was allotted agricultural land measuring 3218 kanals 6 marlas in revenue estate of village Rukh Singhpura tehsil Wazirabad district Gujranwala. This happened vide RL-II khata No. 95 in lieu of claim No. 6039/14 on 28.6.1965. Respondent No. 2 made the sale of a parcel of land measuring. 1206 kanals 13 marlas in favour of petitioners No. 1 to 5 and Mukhtar Ali by means of registered sale deed dated 17.3.1967. Respondent No. 2 made the sale of remaining land measuring 2011 kanals 13 marlas in favour of respondents No. 3 to 24 in consideration of Rs. 25,000/-by means of registered sale deed dated 4.4.1967 and mutation No. 15 in respect of this sale was attested by Assistant Commissioner Salhoke on 21.6.1969. Feeling aggrieved with the aforesaid allotments, the Forest Department filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (Act XLVII of 1958), (hereinafter referred to as an Act) alleging therein that the area allotted to Ali Muhammad and Haji Saleh was notified as protected Forest under section 38 of the Forest Act vide notification No. 5886-FT (FIA) 56/1466 dated 11.2.1957; that the Chief Settlement Commissioner, and Government of the Punjab, seeing the necessity of Forest in the country, had made the sale of land to applicant; that the area allotted to the aforenoted persons had been made and is in the possession of the Forest Department since partition; as such could not be allotted to Ali Muhammad and Haji Saleh. 5. After making an enquiry into the allegations contained therein, the learned Assistant Commissioner in exercise of power as a delegatee of the Chief Settlement Commissioner under sections 10 and 11 of the Act, accepted the application by coming to the conclusion that the land in dispute was in possession of the Forest Department prior to its allotment in favour of allottees; that the land could not be allotted to them. 6. In impeaching the correctness of the impugned order, Mr. Ijaz Feroze and Mr. Ghulam Sabir, Advocates appearing on behalf of the petitioners raised following points: - (1). It was contended that the allotment in favour of Ali Muhammad and Haji Saleh had attained the finality under section 22 of the Displaced Persons (Land Settlement) Act, 1958. Neither the Forest Department challenged the order in appeal nor in revisional jurisdiction. As such the order could not be interfered with under sections 10 and 11 of the Act, which only dealt with a situation when the allottee had secured the allotment by practising fraud or by making misrepresentation to Settlement authorities. It was urged that the application of Forest department did not disclose such allegations. As such the application was in-competent and the Assistant Commissioner had no authority whatsoever to entertain the application and render the impugned decision. (2). It was next argued that the instruction issued by the Deputy Secretary (Rural) vide No. 6029-64-985-R (K) dated 8.3.1965 was ultra vires of the power of statutory functionary and thus without any lawful authority. On the basis of this instruction, the statutory authorities could not be restrained from making allotment. Reliance was placed on Inayat Bibi (Mst.) . Chief Settlement Commissioner etc. (PLJ 1974 Lahore 539). 7. On the contrary, learned counsel for the respondents No. 3 to 24 supported the impugned decision. Objection was taken that the petitioners have come to Court with unclean hands in order to grab the property of the Government of Punjab being used as protected Forest as such the petitioners were not entiled to grant of relief in discretionary/extraordinary jurisdiction of this Court. 8. I have heard the learned counsel for both the sides at considerable length and perused the record. From the perusal of RL-II 98 in favour of Ali Muhammad it appears that the units of claiment came to revenue estate Rukh Singhpura on 15.8.1967; that the proposal was made on 1.3.1968 and the confirmation was made on 15.3.1968. RL-II carries a writing in purple colour that 99 units had been received for confirmation vide order of the Deputy Settlement Commissioner dated 15.3.1968. The remaining portion was written with a pencil and was not reproduced in certified copy (annexed with the petition). This is the position of RL-II 98. 9. From the examination of RL-II 95 in favour of Haji Saleh it appears that the land in dispute was in possession of Forest Department. This note was recorded by Patwari in purple colour on 28.6.1965. On the same date the Deputy Settlement Commissioner recorded the order of confirmation of proposal in favour of Haji Saleh. From these facts, it clearly stands established that before the order of confirmation in favour of Ali Muhammad and Hlaji Saleh, the land j allotted to them was in possession of the Forest Department and was having Forest over it. The finding of the learned Addl. Settlement Commissioner/Deputy Settlement Commissioner (L) Wazirabad is based upon uncontrovertible facts and is riot open to exception. 10. Having agreed with the factual findings rendered by the Addl. Settlement Commissioner/Deputy Settlement Commissioner (L), Wazirabad, the only question left for decision is whether such land was available for allotment and whether the orders of allotment created any legal vested right in favour of the petitioners. 11. Before I proceed to answer it, it (is) necessary to state that the allotment of evacuee land to refugees coming from India is not a mere formality/paper transaction. The object of rehabilitation (evacuee laws) was to permanently settle and compensate the displaced persons coming after the partition of sub-continent into Pakistan from India . The newly born Muslim State was faced with gigantic task of settlement of uprooted muslims who were driven out by Hindu majority of India from their earth and homes and pushed to Pakistan . This process had passed through different phases i.e. the temporary allotment, the quasi-permanent allotment and finally permanent settlement. On 23rd September, 1958 Displaced Persons (Land Settlement) Act, XLV1I of 1958 was promulgated with the aim to permanently settle the refugee/displaced persons from India in order to compensate them for the lossess 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. The West Pakistan Rehabilitation Settlement Scheme prescribed '~y 'he Rehabilitation Commissioner, West Pakistan , under section 6(1) of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) and under section 7(1) of the Baluchistan Rehabilitation Regulation 1950 (II of 1950) as amended was continued under the Act of 1958. This scheme provided in detail the rules regarding the filing of claim, the verification of claim, temporary allotment and permanent allotment, and the question of inheritance in respect of claims submitted by the refugees. The relevant provisions of this scheme dealing with the question in hand are clause 4-A in Chapter-II, clauses 60, 61, 61-A, 62, 63 and 64. From the survey of these clauses it becomes abundently clear that the land reserved for expansion of village abadis and other public purposes, was excluded from the operation of West Pakistan Rehabilitation Scheme under sub-clause (iv) in clause 4-A, while from the analysis of the remaining provisions it becomes clear that the allotment was not to be a mere paper transaction and was made for the purpose of permanent settlement of refugees on land allotted to them. This question came up for consideration in Muhammad Munshi, v. Baj Din and others (1981 Law Notes SC 646). In this case the respondents father was allotted land on temporary basis on 30.5.1951. He remained in possession since his temporary allotment. Meanwhile the petitioner was allotted the same land on 15.6.1961. It was in year, 1974 when the respondents became aware of allotment in favour of the petitioner, and accordingly filed settlement revision which failed on the question of want of jurisdiction. Respondents filed constitution petition which was accepted by the High Court and subsequent permanent allotment made in favour, of the petitioner was set aside. The petitioners filed C.P.S.LA. before the Supreme Court. Leave was refused. It will be instructive to quote the relevant passage from this judgment which is as follows "The allotment of 1st May, 1951 even if to be treated as genuine without possession, it seems, lost all its value when the Department not only made a fresh allotment in favour of the respondents, but also either (?) knowledge their possession or transferred the same to them. The petitioner did not object to the allotment of 30.5.1951 for nearly 24 years. Learned counsel is unable to explain this aspect of the conduct of the petitioner. We cannot presume that it was without any reason, which it appears, if the petitioner would have disclosed, he might have otherwise lost the case. In these circumstances, therefore, we do not consider it a fit case for grant of special leave to appeal." 12. Applying the rule enunciated by the Supreme Court in the aforenoted precedent to the facts of the case, it is clear that there was note in RL-II to the effect that the Forest Department was in possession of the land; that the allotment in favour of Haji Saleh and Ali Muhammad was merely a paper transaction. I have no doubt in my mind that these orders of allotment did not create any legal vested right in favour of the allottees. These orders are master-piece of abuse of authority and lack of application of mind by statutory functionaries in implementing Evacuee Laws. The petitioners are vendees from the allottees who did not have any legal vested rights in their favour. As such these petitioners stand in no better footing than original allottees. 13. In the light of foregoing critical analysis I have no difficulty in coming to the conclusion that these petitions are totally devoid of merits and have been filed to grab the property of forest department being used lor public purposes. This cannot be permitted in constitutional jurisdiction. The hall-mark of this extraordinary jurisdiction is to foster justice between the parties and is not to help the person who comes to Court with un-clean hands and wants to seek the help of Court in furthering their avaracious tendencies and nefarious designs. I am quite clear that these petitioners have come to Court with such designs. In result, these petitions are found to be totally devoid of merit and are dismissed. The petitioners shall pay the costs of proceedings to respondents. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 38 PLJ 1992 Lahore 38 [ Bahawalpur Bench] Present: SAJJAD AHMAD. SlPRA, J Maulvi MUHAMMAD BAKHSH-Petitioner versus GHULAM ALI KHAN and 2 others-Respondents Civil Revision No. 189-D of 1991, dismissed on 2.10.1991 Civil Procedure Code, 1908 (V of 1908)-- —S.115 read with Punjab Local Government Ordinance, 1977, Section 77(4 )— Site plan-Sanction of-Challenge to-Petitioner being illiterate, was not in any position to provide assistance to court—Held: There is no illegality or material irregularity in impugned judgments and same do not call for any interference under revisional jurisdiction-Petition dismissed. [P.39JA&B Petitioner in person. Mr.Muhammad Shamshir Iqbal Chughtdi, Advocate for Respondent No.l. Date of hearing: 2.10.191. order The petitioner in person once again wanted an adjournment but as he had been shown the same indulgence earlier, and has based his request for further adjournment on the same ground as before, therefore, his request was declined. The petitioner conceded to an answer by the Court that he does not know Urdu or English, therefore, it is futile to grant him adjournments. On the previous date of hearing the adjournment was allowed when he had submitted that either he shall engage a counsel to represent him or further prepare his own brief, but now submitted that he had "no time" to engage a lawyer. 2. However, the petitioner contended that the land in question, in respect of which the respondent No.l, herein, filed the instant suit, was Government property and that, therefore, the said respondent/plaintiff had no right to his "siteplan" in respect thereof being sanctioned, and that, therefore, the impugned judgments holding to the contrary were not sustainable in law. 3. The Court has gone through the impugned judgments and come to the conclusion that the same are unexceptionable and do not call for any interference , at this stage. It has been noted that while decreeing the suit and upholding the judgment of the lower court, the first appellate court had duly observed that as per Section 77(4) of the Punjab Local Government Ordinance, 1977, the plaintiff/respondent No.l shall be bound by the provisions of the building bye- laws or the sanctioned site development scheme, if any, and it had been further clarified that the decree in hand shall not be deemed to have conferred any proprietory rights or to have determined the ownership of the plots to which the proposed building plan relates. It was further taken note of that the present petitioner/defendant No.3 before the trial court, had been impleaded as a party on the application on 26.1.1988, and that the learned trial court had decreed the suit after recording the findings against the defendants in respect of issues No.l, 2 and 3 and decided the rest of the issues in favour of the plaintiff, holding that under Section 77 of the Punjab Local Government Ordinance, 1977 the "site-plan" stood approved after the expiry of 60 days and allowed the relief as prayed for, and that, as pointed out earlier, the judgment of the trial court was upheld by the first appellate court, vide its judgment dated 30.5.1991. 4. The Court has failed to find out any illegality or material irregularity or an error of jurisdiction in respect of the impugned judgments, and that, therefore, the same do not call for any interference under the revisional jurisdiction. 5. Here, it is once again reiterated that the petitioner being illiterate was not in any position to provide assistance to the Court, and that, therefore, the Court had taken pains to satisfy itself whether or not any case is made out as contended in the present petition, and that the Court had come to the conclusion to the contrary as stated above. 6. Therefore, the present civil revision petition being devoid of merit is hereby dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 39 [Bahawalpur Bench] PLJ 1992 Lahore 39 [ Bahawalpur Bench] Present: Ch, AMJAD KHAN, J ABDUR RAZZAQ-Petitioner versus IJAZ MAHMOOD (Minor) and another-Respondents Writ Petitions No.447-F and 448-F of 1991, dismissed on 6.5.1991. Guardians and Wards Act 1890 (VIII of 1890)-- —S.25--Minor son-Custody of-Prayer for grant of custody to father-It stands admitted that second wife of petitioner has got her own children born from him—In constitutional jurisdiction, court does not normally undertake determination afresh of disputed facts—Held: Courts below have decided questions of fact in lawful exercise of their exclusive jurisdiction and there does not exist any case at all for interference-Petition dismissed. [P.40&41JA&B PLD 1962 Lahore 911 and PLD 1974 SC 139 rel. Mr.Najamuddin, Advocate for Petitioner. Date of hearing: 6.5.1991. order These two writ-petitions, bearing Nos.447/F and 448/F of 1991/BWP, maintained by Abdul Razzaq,. respectively arise out of claim for maintenance of his minor son Ijaz Mahmood brought on 3.11.1987 through his divorced mother, Mst.Ashran Begum and his own petition under Section 25 of the Guardians and Wards Act brought against Msf.Ashran Begum on 1.6.1989 for guardianship of the said minor son. Both the matters were separately tried by same learned Family Judge and decided simultaneously on 2.6.1990 by means of independent judgments to uphold the claim for maintenance at the rate of Rs.500/-p.m. payable from the date of institution of suit and reject the claim for guardianship with the conclusion reached that welfare of the minor lies in his custody resting with the mother because father has not been able to discharge the burden of solitary issue laid on him for showing the interest of the minor to be vesting in his being given in his custody inasmuch as he had since married another woman but mother of the minor has not contracted a second marriage and can properly look after him. 2. Two separate appeals brought by the father carne up for hearing before the same learned Additional District Judge who, after hearing, dismissed both the appeals on 5.3.1991 by affirming the findings reached by the Family Court and upholding its respective orders by means of his independent judgments. 3. These writ-petitions have been tried to be sustained on the basis of contentions that since the child had now reached the ase over seven years, therefore, his mother was not vested with the right of custody and the question of his guardianship had to be decided alter comparing respective merits and demerits but not upon considering the evidence adduced by the father alone inasmuch as the mere fact of his having married another woman could not per-se lead to the conclusion that she may be incapable of giving love and affection to the minor Ijaz Mahmood and, hence, the existence of a step mother for him was liable to be left out of consideration. So far as the order of maintenance, learned counsel has contended merely that the amount is excessive and the father cannot pay it, as had even been admitted by the Family Court. 4. After giving due consideration to the above contentions, I have not been able to find merit in any of them. As regards the question of guardianship, suffice it to say that it stands admitted on the record that second wife of the petitioner has got her own children born from him and whatever be her virtues towards Ijaz Mahmood she cannot have precedence over his real mother and, above all, learned Judge Family Court has reached his conclusion after due consideration of all the facts and concurrent findings on the point reached below are not liable to be thrown open for reconsideration at this stage and, even if, it may be possible for this Court to, on the basis of same evidence, reach a conclusion different from those which have been reached below, there would not be made out a justification for interference in constitutional jursidiction wherein this Court does not normally undertake determination afresh of disputed questions of fact. Writ jurisdiction is not really capable of being invoked in such circumstances and precedents of high authority can be cited hi that behalf. It was held by a Division Bench of this Court in Mst.Mahmooda Begum v. Chief Settlement Commissioner, West Pakistan and another (P.L.D. 1962 Lahore 911) as under:-"There is a fundamental difference between the power to hear appeals or revisions and the power to issue writs. A Court which is competent to hear an appeal or a revision is competent to set-aside the order of a Court sought to be appealed from or revised on the ground that in the circumstances of the case the order was not proper or just but when the question to consider is whether or not a writ should issue, the consideration before the Court has to be whether or not the order against which the issue of a writ is sought was within the jurisdiction of the authority which had passed it, and a writ will not issue on the ground that though the order was within the jurisdiction of the tribunal or authority which had passed it, the circumstances of the case demanded that it should not have been passed". Scope of interference in writ jurisdiction is limited to those cases where the orders impugned are 'without lawful authority" and, 'of no legal effect'. In Muhammad Hussain Munir and others v. Sikandar and others (P.L.D. 1974 S.C. 139), while examining these terms, their Lordships of the Supreme Court observed :-- "These are expressions of art and refer to jurisdictional defects as distinguished from mere erroneous decisions whether on a question of fact or even of law". and held:— "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Coourt to interfere with the decision of a Court or tribunal of inferior jursidiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jursidiction indistinguishable from that exerciseable in a fullfledged appeal, which plainly is not the intention of the Constitutionmakers". 5. Two Courts below have decided questions of pure fact in lawful exercise of their exclusive jurisdictions and, viewed from the above standards set by the precedents, there does not exist any case at all for interference being made by this Court in its Constitutional power of writs. 6. Foregoing suffices also for the disposal of matter relating to maintenance of the minor whose indefeasible right for the purpose is liable to be decided by keeping in view all the requirements of a minor and upon considering the capability of the father to pay maintenance but not with reference to his capacity for its payment because a person possessed of capability to pay maintenance may, for reasons of his own expediency, easily evade the liabilities by intentionally refusing to be possessed of the capacity for its payment. Petitioner should be presumed to be an able-bodied healthy person because there has not even been alleged any such factor as could possibly have led to the petitioner being rendered incapable of earning for being able to pay maintenance to the minor. Alleged poverty of father cannot relieve him of his liability to provide for maintenance of his minor child. Hence, the assertion about the petitioner being not possessed of sufficient means for the purpose has to be repulsed for the consideration that rather than failing to, on that account, discharge his legal and moral duty of maintaining his minor child, he should endeavour to increase his resources for providing maintenance for the child incapable of supporting himself. 7. Result of the foregoing is that there is no substance found in either of the writ-petitions and both of them are, hence, dismissed summarily. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 42 [Bahawalpur Bench] PLJ 1992 Lahore 42 [ Bahawalpur Bench] Present: Ch. AMJAD KHAN, J INAYAT ALI-Petitioner versus AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN , and another- Respondents Writ Petition No.883 of 1991, dismissed on 21.7.1991 Interest- —Loan-Interest on-Challenge to~Contention that interest is forbidden in Islam—No doubt, stand of petitioner regarding nature and requirement for payment of interest is perfectly correct, but difficulty for him is that he is not entitled to get it effectuated by resort to writ jurisdiction because he himself subscribed to agreement undertaking to pay interest at agreed rate-Held: If petitioner did really have that sanctity for religious injunctions, then he might not have entered into deal in question-Petition dismissed. [P.43]A Ch. Abdus Sattar, Advocate for Petitioner. Date of hearing: 21.7.1991. order This writ-petition has been maintained by Inayat Ali for a declaration being made that act of the respondent-Bank, with regard to realizing or effecting recovery of interest on the principal amount of loan advanced to him, is without lawful authority and that the amount already paid by him be adjusted against the principal amount of loan advanced to him so as to be considered to have been paid exclusively towards the return of principal amount of loan. It is the case of the petitioner himself that he had applied for grant of a loan to him by Liaqatpur Branch of Agricultural Development Bank of Pakistan and he secured a sum of Rs.1,11,400/- for the purchase of one tractor and one trolly, steel-body double-wheel. He claims to have paid a total of Rs.53 ,485.60 and the balance out of the principal amount still payable by him is Rs.58,014.40 but the Bank is insisting upon payment of interest at the rate of 11% per annum which the petitioner, however, does not want to pay for the reason of its being forbidden in Islam as Riba and being Hararn. 2. No doubt, stand of the petitioner as regards the nature and the requirement for payment of interest is perfectly correct and I whole-heartedly agree with him but the difficulty for him is that he is not entitled to get it effectuated by resort to writ-jurisdiction because he has disabled himself from setting up such a plea on account of admittedly subscribing to the agreement for loan (proforma as Annexure 'A' herewith) which contains the undertaking to pay interest at the agreed rate of 11% per annum. After having taken advantage on the basis of explicit undertaking to pay the interest as such, he cannot be heard to now say that liability for the same does not befall him on account of its being contrary to his religious convictions. Commandments relating to interest are not new and (hey have been there since thousands of years. If the petitioner did really have that sanctity for the religious injunctions then he may not have entered into the deal in question. He cannot be now allowed to reprobate that which he had himself approbated at the time of his need. Since he is endeavouring to wriggle out of his commitment only after having reaped all the due benefit under it, therefore, discretionary jursidiction does not deserve being extended to him for such an object. 3. For the aforestated reasons, this writ-petition should fail. The same is accordingly dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 43 PLJ 1992 Lahore 43 [ Multan Bench] Present: KHALitUR rahman ramday, J Mst. 1QBAL BEGUM, deceased, through her legal heirs-Petitioner versus MUHAMMAD AKBAR and 5-others-Respondents Writ Petition No.1574 of 1988, dismissed on 1.9.1991. Additional Evidence— —Additional evidence—Production of—Disallowed by .trial court but allowed by District Judge in revision-Challenge to-Trial Court's order disallowing respondents to produce additional evidence, was obviously a decision given after judicially considering facts and it was an order amounting to a "case decided" and thus revisable-Impugned revisional order was, thus, not without jurisdiction-No perversity or arbitrariness could be demonstrated in impugned revisional order which indicates exercise of jursidiction by District Judge after a proper and judicial application of mind-Held: Impugned order warrants to interference as a result whereof, this petition merits rejection-Petition dismissed. [Pp.45&46]A,B,C,D&E 1985 SCMR 221 re/. Mr.Tariq Muhammad Iqbal, Advocate for Petitioner. Mian Habibur Rehman Ansari, Advocate for Respondent Nos. 1 to 5. Nemo for Respondent No.6. Date of hearing: 1.9.1991. judgment One Mst. Iqbal Begum, the predecessor in interest of the present petitioners had brought a suit on 2.4.1984 against her brothers, seeking a declaration that mutation No. 1028 entered on 11.12.1982 and sanctioned by A.C. II of Sahiwal on 30.12.1982, evidencing transfer of her land in favour of her said brothers was void being fraudulent. She had also prayed for a permanent injunction restraining the defendants-respondents from laying any claim on the land in dispute in any manner whatsoever. 2. The said suit was contested by the present respondents and after framing of issues, the aforesaid Mst. Iqbal Begum led her evidence and closed the same on 31.1.1985. 3. The defendants in the said suit who are respondents before this Court examined two witnesses in defence of the suit and their learned counsel made a statement on 4.6.1985 that except for the statement of the defendants themselves and except for production of certain documents, the defendants close their evidence and sought time for examining the said defendants and production of the said documents. 4. They however, made an application on 25.10.1987.praying for permission to examine two more witnesses, namely, Halqa Patwari and the Halqa Girdawar who had been cited as defence witnesses in the list of witnesses filed with the written statement and who according to the defendants were material witnesses for a just decision of the case. 5. This application was resisted by the present petitioners on the ground that the defendants had already closed their evidence and had given no cogent reason for grant of permission to adduce the additional evidence. 6. After hearing the parties, a learned Civil Judge at Sahiwal, through his order dated 16.11.1987, dismissed the said application against which a revision was filed before the learned District Judge who accepted the said petition and allowed the defendants/respondents to produce the aforementioned Patwari and Girdawar as additional evidence on payment of Rs. 500/-as costs. 7. It is this revisional order of the learned District Judge dated 15.9.1988 which is being impugned by the present petitioners through this constitutional petition which was primarily admitted to consider whether an order dis-allowing additional evidence amounted to a "Case decided 1 within the meaning of section 115 of the CPC in view of the law laid down by the Supreme Court in Nawabzada Malik Habibullah KJwn's case reported as 1969 SCMR 965. 8. Relying upon the said decision of the Supreme Court, the learned counsel for the petitioner contended that allowing or dis-allowing additional evidence did not amount to a 'case decided' within the purview of section 115 of the CPC and thus the impugned revisional order passed by the learned District Judge was an order without jurisdiction which deserved to be annulled. 9. The aforementioned view of the Supreme Court loses significance because of a judgment of the same Court delivered in Abdul Aziz Shah's case reported as 1985 SCMR 221. 10. It was declared by the Supreme Court in the said Abdul Aziz Shah's case that a decision given by the Supreme Court on a petition while refusing leave could not be regarded as a considered judgment and relying upon Bashir Ahmad KJian's case reported as PLD 1973 SC 507. it was held that if a subordinate Court had rendered a decision in respect of any state of facts after judicially considering the same, then it would amount to a 'case decided' and after discussing various aspects of the matter the Supreme Court had held that rejecting the prayer for the amendment of a plaint fell within the ambit of section 115 of the C.P.C. 11. Needless to mention that Nawabzada Malik Habibullah KJian's case mentioned above, was a case where allowing or dis-allowing of additonal evidence was held not to be revisable under section 115 of the CPC, was a decision given in a leave-refusiqg order which according to Abdul Aziz Shah's case was not a considered judgment and thus not the law declared on the subject. 12. Examining the present case in the light of Abdul Aziz Shah's case, dis­ allowing the additional evidence by the learned trial Court which was obviously a decision given by it in respect of certain facts after judicially considering the same .,, and which also had the effect of shutting out the defendants' claim to the extent to which additional evidence was sought to be produced, was an order which amounted to a 'case decided" and thus revisable under section 115 of the C.P.C.. 13. Consequently, it cannot be said that the impugned revisional order passed by the learned District Judge was an order without jurisdiction. 14. Therefore, no jurisdictional defect exists in the impugned order which could warrant interference by this Court through its extraordinary constitutional jurisdiction which jurisdiction this Court is even otherwise reluctant to exercise to intervene with the revisional orders passed by the District Judges which orders, the law after conferment of the revisional jurisdiction on the District Judges, are intended to be final and not open to any further scrutiny by the Hight Court. Reference may be made to Rahim Bukhsh's case reported as 1985 CLC 387. 15. Even on merits, no perversity or arbitrariness could be demonstrated in the impugned revisional order which indicates exercise of jurisdiction by the learned District Judge after a proper and jucicial application of mind to the lis before him. The said order cannot be set at naught in the exercise of the constitutional jurisdiction of this Court only because a different view was possible on the facts placed before the said learned Court 16. Consequently, the order impugned through the present constitutional petition warrants no interference as a result whereof, this petition merits rejection and is accordingly dismissed. 17. The parties are left to bear their own costs. 18. The record received from the learned lower Court shall be returned to the said Court forthwith. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 46 [Multan Bench] PLJ 1992 Lahore 46 [ Multan Bench] Present: MlAN ALLAH NAWAZ, J MANZOOR HUSSAIN-Petitioner versus DISTRICT COLLECTOR, SHAIWAL, and 3 others-Respondents Writ Petition No.610 of 1990, accepted on 25.9.1991. Muslim Family Laws Ordinance, 1961 (W.P. Ord. VIII of 1961)- —-S.9(l)&(2)--Maintenance to wife-Awarding of--Whether Arbitration Council or Revisional Authority have jurisdiction to adjudicate upon disputes regarding dower and dowry-Question of-From bare reading of Section 9, it is quite clear that if husband fails to maintain his wife or wives, she or any of wives have a remedy of applying to Chairman who shall constitute an Arbitration Council-Arbitration Council is empowered to specify amount payable by husband as maintenance-Held: Orders passed by Arbitration Council and Revisional Authority awarding decree for dower and dowry are without jurisdiction and without lawful authority-Petition accepted. [Pp. 48&49]A,B&C Syed MurtazaAK Zaidi, Advocate for Petitioner. MrAkhtarAli Naz Qureshi, Advocate for Respondent No.4. Date of hearing: 25.9.1991. judgment The validity/propriety of the order passed by the Chairman Arbitration Council Kabula dated 4.7.1988, and the order passed by the District Collector/Revisional Authority dated 31.3.1990, is called in question in this constitution petition. 2. The facts of the case are that the petitioner and respondent No. 4 were married on 27.3.1981. The relations between the two became strained in the year 1987. The petitioner instituted a suit for restitution of conjugal rights in the Court of Family Judge, Vehari, who decreed the same on 15.12.1987. While respondent No. 4 submitted an application for grant of maintenance before the Chairman, Union Council, Kabula (No. 110), Tehsil Arifwala on 4.2.1988. This application was allowed on 4.7.1988 in the following terms: /') Rs. 500/-P.M. from 4.2.88 a condition No. 15 of NiRahnama as maintenance allowance: 07) Rs. 12,000/-(Mehar Moajal) Gold ornaments. (/«') Rs. 25,000/-(Mehar Mowajjal) to be paid in case of Ilnd marriage. (n>) Rs. 4000/-further to be paid by Manzoor Hussain to Mst. Anwar Begum under Section 9-B of the Muslim Family Law, 1961. Feeling aggrieved with this order, the petitioner filed revision petition under subsection (2) of Section 9 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the Ordinance), before the District Collector, Sahiwal, who dismissed the same by order dated 31.3.1990. In consequence thereof. The petitioner was apprehended by Collector in execution proceedings of impugned order and was later on released. 3. In disputing the validity of the impugned orders, the learned counsel for the petitioner contended that the Arbitration Council had no authority to decide the claim regarding dower and dowry. Under subsection (1) of Section 9 of the Ordinance, the Arbitration Council is empowered to issue a certificate specifying the amount which shall be paid as maintenance by the husband to wife. It was stressed that the impugned orders were, therefore, coram-non-judice and were totally null and void. 4. In reply the learned counsel appearing on behalf of respondent No. 4 supported the impugned decisions. 5. I have heard the learned counsel for both the sides at considerable length. After taking into consideration their contentions I am of the considered view that argument advanced on behalf of the petitioner has force. Under Section 9 of Ordinance, neither the Arbitration Council nor the Revisional Authority has jurisdiction to adjudicate the disputes regarding dower and dowery. Section 9 of the Ordinance reads as follows: "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 Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband. (2) A husband or wife may in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, in the case of West Pakistan to the Collector, and his decision shall be final and shall not be called in question in any Court. (3) Any amount payable under sub-section (1) or (2) if not paid in due ime shall be recoverable as arrears of land revenue ". From the bare reading of the above Section it is quite clear that 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, had a remedy of applying to Chairman who shall constitute an Arbitration Council. This Arbitration Council is empowered to determine the matter and issue a certificate specifying the amount which a husband shall pay to the wife as maintenance. Evidently the Arbitration Council had no jurisdiction to decide the question relating to dower and dowry. 6. This question came up for consideration in Ghulam Sabir v. Chairman Union Committee Word No.27, Samanabad Lahore and 3 others (PLD 1981 Lahore 232). His Lordship Mr.Zaki-ud-Din Pal (as he then was) held that neither the arbitration council has the jurisdiction to decide the claim relating to dower nor the collector had the authority to enforce such claim. 7. Applying this principle to the facts and circumstances of this case I have no difficulty in reaching the conclusion that the order passed by the Arbitration Council dated 4.7.1988 and the order passed by Revisional Authority dated 31.3.1990 awarding the decree of Rs.12,000/- as Mehar Moajjal, Rs.25,000/- as Mehar Mowajjal and Rs.4000/- are without jurisdiction and without any lawful authority and are declared as such. I, therefore, accept this petition quash the order of the Arbitration Council dated 4.7.1988 to the extent of awarding the decree of Rs.12,000/- as Mehar Moajal, Rs.25,000/- as Mehar Mowajjal and Rs.4,000/- to be paid by Manzoor Hussain to Mst Anwar Begum under Section 9- B of the Muslim Family Laws Ordinance, 1961, and the order of District Collector dated 31.3.1990. The impugned orders to the extent of maintenance of Rs.500/- per month with effect from 4.2.1988 are upheld. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ1992Lahor49 PLJ1992Lahor49 [ Multan Bench] Present: CH. AMJAD KHAN, J NAZEER AHMAD-Petitioner versus Haji MUHAMMAD AKRAM NAZ-Respondent Civil Revision No.345 of 1990, accepted on 13.10.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXVH R3~Recovery suit-Leave to defend suit-Refusal of~Challenge to—Contention that leave could be granted upon some terms but leave could not have straightaway been refused-Contention appears to have merit because it is fundamental law that no one may be condemned unheard—Even if view reached by trial Judge about absence of plausible defence could be correct, it would not thereupon follow that he got invested with power even to completely shut out defence of suit on defendant—Held: Impugned order is outcome of unlawful exercise of jurisdiction or product of exercise of jursidiction not so conferred-Petition accepted and case remanded. [Pp.49&50]A ,B &C Syed LiaqatAli Shah, Advocate for Petitioner. Mr^AkhtarMasudAhmad , Advocate for Respondent. Dale of hearing: 13.10.1991. judgment This is a revision-petition against order dated 26.2.1990 passed by a learned Additional District Judge whereby he declined to grant to the defendantpetitioner leave to defend the suit, filed against him for recovery of Rs.2,50,000.00 under Rule 2 of Order XXXVII of the C.P.C.; for the reason of his inability to find any plausible defence set up in denying the execution of pronote and payment thereunder , as justifying the grant of desired leave and more so because there were no special circumstances set out for suggesting the possibility of the plaintiff being prompted to forge the pronote sued-upon. 2. Reliance for the petitioner is placed on Fine Textile Mills Ltd., Karachi v. Haji Umar (P.L.D. 1963 S.C. 163) to urge that since averments contained in the application for leave to defend the suit were duly supported by an affidavit, therefore, defendant was entitled to be granted the leave to defend the suit which may have been granted upon some terms but leave could not be straight-away refused to be granted. This contention appears to have merit because it is one of the fundmental laws that no one may be condemned unheard and therein would also be envisaged the inherent right to defend a suit so that such a right would not be liable to be negated by refusing to grant, may be on howsoever good a ground, the leave to defend the suit under the provisions of Rule 3 of Order XXXVII whereunder no warrant exists for countenancing such a consequence and the contemplation seems to merely be that weak or frivolous oppositions to seemingly unanswerable claims'may get discouraged by conditions being imposed in the process of grant of leave. Hence, even if view reached by learned trial Judge, about the absence of plausible defence , could be correct it would not thereupon follow that he got invested with even the power to completely shut-out defence of the suit on the defendant because in that process the suit could not become liable to be prejudged before the actual trial and all that he may have done in propriety was to have suitably conditioned the grant of leave with such terms as he may have deemed fit to be imposed in exercise of his judicial discretion. 3. In result of the foregoing, trial Court's order herein impugned happens to be the outcome of unlawful exercise of jurisdiction conferred by law or a product of exercise of jurisdiction not so conferred. It is set-aside to remit the suit to the Court below for the relevant application being decided afresh in accordance with law by taking up the suit from the stage where it had reached on 26.2.1990. 4. This revisionpeitition accordingly succeeds and is allowed as such by setting aside the trial Court's order dated 26.2.1990 in the terms herein before set out. Parties are left to bear their own costs hereof. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 50 (DB) [Multan Bench] PLJ 1992 Lahore 50 (DB) [ Multan Bench] Present: FAZAL KARIM AND munir A.SHEIKH, JJ HABIB BANK LTD. EMPLOYEES UNION , MULTAN ZONE-Appellant versus REGISTRAR OF TRADE UNIONS, MULTAN REGION, and 2 others-­Respondents I.CA. No.22 of 1989, dismissed on 27.10.1991. Collective Bargaining Agent— —Appointment of respondent No.2 as Collective Bargaining Agent-Challenge to-Whether there can be more than one establishment in an industry- Question of~Argument that all branches of Bank falling in both zones of Multan, is one establishment, is not only self-destructive but, if accepted, would render provisions of law as redundant-According to definition of "establishment", even an industrial unit in an industry is an establishment itself- -Held: Different units of an industry even if owned by same employer, would constitute an establishment-Held further: If respondent No.2 could be registered as Trade Union in relation to branches within City Zone, it could very well seek certification as C.B A. for City Zone—Appeal dismissed. [Pp.53&54]A&B PLJ 1974 Karachi 252 and 1980 LLC 72 rel. 1977 PLC 20 not approved. Mr.M^A.Khadiin, Advocate for Appellant. Syed Agha Asif Jaffary, Advocate for Respondent No.2. ChAltaj'Hussain, Advocate for Respondent No.3. Date of hearing: 28.9.1991. judgment Munir A. Sheikh, J.-This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against judgment dated 23.5.1989 passed by the learned Single Judge in Writ Petition No.1609 of 1988 whereby the same was accepted and the Registrar, Trade Unions, Multan, was directed to hold referendum to ascertain secretly the Collective Bargaining Agent in the Habib Bank City Zone, Multan. 2. Shortly stated the facts of the case are that the Habib Bank Limited had a number of Branches in Multan city known as Multan Zone. In the year 1984 it was bifurcated into two Zones i.e. City Zone and Cantonment Zone for administrative purposes. At that time there were two registered trade unions namely the appellant and the Staff Union both of which had membership in both the Zones. In order to decide as to which of the said trade unions should act as Collective Bargaining Agent, an election was held in the year 1986 as a result of which the appellant was certified to be the Collective Bargaining Agent by the Registrar on 2.9.1986. Under the law this certificate was effective for two years. After splitting up of Multan Zone into two Zones the workers of Habib Bank Branches falling in the City Zone formed a trade union in the name and style of Workers Front, Habib Bank Ltd., City Zone i.e. respondent No.2. It was registered as trade union for the City Zone by the Registrar under the provisions of the Industrial Relations Ordinance, 1969. On 18.5.1987 respondent No.2 applied to the Registrar of Trade Unions Multan that it should be certified as Collective Bargaining Agent in the City Zone which application was declined through order dated 20.6.1987.for the reason that the period of two years had not yet expired. This order was challenged by respondent No.2 by filing W.P. No.824/87 before this Court which was disposed of through judgment dated 29.6.1987 with the observation that after the expiry of two years the law will have its own course. ICA No.17/87 was filed against the said judgment and the Division Bench of this Court disposed it of with the observation that the Registrar will act strictly in accordance with law. After the expiry of two years respondent No.2 submitted an application before the Registrar Trade Unions Multan on 30.10.1988 praying for holding secret ballot in the City Zone in order to determine as to which of the two Trade Unions was entitled to act as Collective Bargaining Agent for City Zone. The Registrar failed to hold such a referendum within fifteen days of the date of making of the application as provided by law, therefore, respondent No.2 filed W.P. No.1609 of 1988 in this Court. 3. The appellant opposed this writ petition on the ground that different branches of the Bank in City Zone did not constitute an establishment as defined in Section 2(ix) of the Industrial Relations Ordinance, therefore, respondent No.2 could not compete with the appellant which had its membership from branches in both the Zones. The learned Single Judge did not accept this argument and held that the branches of the Bank falling in City Zone did constitute an establishment, therefore, employees of the said branches could have a trade union which could compete with the appellant hi the matter of determination and certification of Collective Bargaining Agent in the City Zone. The writ petition was accepted through judgment dated 23.5.1989 which has been assailed in this appeal. 4. The main burden of argument presented by the learned counsel for the appellant in support of this appeal was that the banking business being an industry, therefore, Habib Bank Limited as a whole is one industry having different branches at different places and all the branches constitute one establishment, as such, under the law respondent No.2 on the strength of its membership in City Zone Multan alone could not as a matter of right claim its certification as Collective Bargaining Agent for City Zone which does not constitute an establishment and could not compete with the appellant which had its membership in both the Zones and had already been certified to be the Collective Bargaining Agent. He further argued that though a period of two years had expired regarding certification of the appellant as Collective Bargaining Agent, but it would remain effective till such time a trade union having membership in both the Zones is registered and challenged the right of the appellant to act as Collective Bargaining Agent, the appellant had a right to act as Collective Bargaining Agent. His precise argument was that all the branches falling in both the Zones of Multan is one establishment. 5. The argument certainly appears to be ingenious but not tenable on dose scrutiny of relevant provisions of Industrial Relations Ordinance, 1969. Under Section 3 of the Ordinance workers have been granted right to establish trade unions. Section 6 of the Ordinance prescribing the procedure for registration of trade union provides that a trade union seeking registration, as such, has to disclose the name of establishment or group of establishment of the industry to which it relates. Section 22 which provides for certification of a trade union as Collective Bargaining Agent prescribes the procedure for determining and certification of a trade union to be the Bargaining Agent if there are more than one trade unions in an establishment contesting with each other for that purpose. Clause (v) of Section 2 of the Ordinance defines the Collective Bargaining Agent according to which a trade union in an establishment which has been certified under Section 22 is the Bargaining Agent for that establishment. Examination of all these provisions of law shows that it is "establishment" which is the determining factor and workers/workmen of an establishment can establish a trade union which can be certified as Collective Bargaining Agent for the said establishment. The expression "establishment" has been defined in the Ordinance as follows :-- ( ur ) "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry and except in Section 22-EE includes a Collective Bargaining Unit, if any, constituted under that section in any establishment or group of establishment". It is distinctly clear from a bare reading of this definition that any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for carrying on any industry itself is an establishment, the only condition being that it should relate to an industry. It is clear that under this definition there can be more than one establishment in any industry. The arguments of the learned counsel for the appellant if considered in the light of the relevant provisions of Industrial Relations Ordinance, mentioned above, are not only self-destructive but if accepted would render the said provisions of law redundant. What the learned counsel wants us to hold is that there can be only one establishment in an industry, which argument cannot be accepted without doing violence to the express provisions of the Ordinance which are to the contrary. According to definition of expression "establishment" as reproduced above even an industrial unit in an industry is an establishment itself. Learned counsel for the appellant could not refer to any provision of I.R.O. prohibiting more than one establishment in relation to an industry. When we say that the argument is self-destructive we say so because if the test as canvassed by the learned counsel for the appellant itself is applied it could not claim to be a trade union of an establishment because according to the learned counsel all the branches of the Habib Bank Limited in the entire country would constitute one establishment and not only the branches located in Multan. We have not been able to pursuade ourselves to agree with the reasoning given by the Chairman of the N.I.R.C. in judgment reported as Pakistan Spensers Employees' Union (1977 P.L.C. 20) relied upon by the learned counsel for the appellant holding that "establishment" means the whole organization which carries on any business or industry and not its branches at various places. The rule laid down in judgment reported.as Grindlays Bank (Lloyds Branch) Employees' Union v. Registrar Trade Union, Lahore Region Lahore and another (1980 LLC 72) and Muhammad Aqil v. Sind Labour Appellate Tribunal and another (PLJ 1974 Karachi 252) that different units of the industry even if owned by the same employer would constitute an establishment, if we say so, lays down the correct law. 6. As has been discussed above workers/workmen employed in an establishment under the law have been granted a right to form a trade union and get the same registered. Respondent No.2 was registered as a trade union of the workers employed in the branches of Habib Bank limited in City Zone and if the petitioner's case was that these branches did not constitute an establishment it should have objected to the registration of respondent No.2 as trade union for such branches. Learned counsel for the petitioner when questioned frankly conceded that no such objection was raised and the order passed by the Registrar Trade Union regarding registration of respondent No.2 as trade union for City Zone has not otherwise been challenged uptil now. If respondent No.2 could be registered as trade union in relation to branches within City Zone it could very well seek certification as C.B A. for the City Zone. 8. For these reasons, the appeal is dismissed, but the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 54 PLJ 1992 Lahore 54 Present: MALIK MUHAMMAD QAYYUM, J Y©UNAS LAL DIN and 4 others-Petitioners versus GOVERNMENT OF PUNJAB, THROUGH SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT- Respondent Writ Petition No.4323 of 1991, dismissed on 8.7.1991. (i) Maxims- — Casus Omissus-Prmdple of-Whether applicable-Question of-Contention that omission to provide that non-Mulsim Members would also become Members of newly created Zila Councils, was not deliberate and thus court should supply "Casus Omissus" and construe provision in such a manner so as to save membership of non-Muslims-Original provision of Section 7 was amended by Punjab Local Government (Amendment Ordinance) Act XV of 1983 to read that only directly elected Muslim Members shall become members of new Council-Held: Principle of casus Omissus has no applicability in this case-Petition dismissed. [Pp.56&57]C&D Crawford on Construction of Statutes(1940 Edition), Craies on Statute Law (7th Edition) at p.70, and Bindra's Interpretation of Statute (7th Edition) ref. (ii) Punjab Local Government Ordinance, 1979 (VI of 1979)-- —-S.7(l)&(2)--Creation of new District Narowal-Notification of~ Consequences of-With bifurcation of Sialkot District, previously constituted Zila Council ceased to exist and instead two new councils were set up one for each District-By virtue of Section 7(2), directly elected Muslim Members became Members of newly constituted Zila Council, but there is no such command regarding non-Muslim Members—Held: Non-Muslim Members (Petitioners) cannot claim membership of new Councils as of right. [P.56]A&B Mr.Taki Ahmad Khan, Advocate for Petitioners. Mr.Maqbool Elahi Malik, Advocate General, Punjab for Respondent. Date of hearing: 8.7.1991. judgment The petitioners who were five in number were elected as members of the Zila Council Sialkot from the non-muslim seats in the election held in the year 1987. As a result of the creation of District Narowal, by the notification dated 16th March, 1991, the Governor of Punjab in exercise of powers conferred upon him under Sections 6 and 7 of the Punjab Local Government Ordinance 1979 had directed the division and reconstitution of the Zila Council, Sialkot into two separate Councils namely Zila Council Sialkot and Zila Council Narowal. One of the consequences of this rcconslitution as provided in the notification was that the existing non-muslim members, members representing Peasants, Workers and Women shall cease to hold the seats in the undivided Zila Council Sialkot w.e.f. 1.7.1991 and fresh election shall be held to elect members against these seats. 2. By this constitutional petition it has been prayed that the above direction in the notification in question whereby the petitioners have been denuded of their status as members of Zila Council be declared to be without lawful authority and of no legal effect. 3. Mr.Taki Ahmad Khan, the learned counsel for the petitioner has contended that there was no justification for the Government to have directed that the non-muslim members of the Zila Council shall cease to hold office and shall not become members of the newly constituted Zila Councils although the muslim members have been allowed to retain the seats. It was explained by the learned counsel that originally the entire Zila was the Constituency for the election to non-muslim seats but subsequently these members were elected on Tehsil basis and as such there was no difficulty in treating the petitioners to be the members of respective Zila Council depending upon the Tehsils from which they had been elected.Mr.Maqbool Elahi Malik, Advocate General Punjab has been heard in reply. 4. The contention raised by the learned counsel may appear to be attractive at first blush but cannot be accepted. It is not disputed that with the bifurcation of the District, the previously constituted Zila Council ceased to exist and instead two new Councils were set up one for the each District. However, by virtue of Section 7(2) of the Punjab Local Government Ordinance 1979 the directly elected muslim members of the Local Council became members of the newly constituted Zila Councils, but with regard to non-muslim members, there is no such command of the legislature. These members cannot, therefore, claim membership of the new Council as of right. 5. It is also to be seen that under Section 7(1) of the Punjab Local Government Ordinance, 1979, the Government is empowered to specify in the notification consequences which shall ensue from the publication of the notification dividing the Local Council. One of the consequences, which have been specified in the notification dated 16th March, 1991, is that the non-muslim members shall cease to hold their offices. For this reason also the contention of the learned counsel cannot be accepted. 6. Mr.Taki Ahmad Khan, Advocate, however contended that the omission to provide that non-muslim members would also become members of the newly created Zila Councils was not deliberate and thus Court should supply "Cams Omissus" and construe the provision in such a manner so as to save the membership of non-muslims. I regret my inability to agree with the learned counsel. The principle of Casus Omissus has no applicability in the present case. Under Section 7 of the Punjab Local Government Ordinance 1979, as it originally stood on the reconstitution of the Zila Councils, all members irrespective of the fact whether they were muslims, non-muslims or elected against special seats became members of the newly constituted Councils. However, this provision was amended by the Punjab Local Government (Amendment Ordinance) Act XV of 1983 to read that only the directly elected muslim members shall become the members of the new council. This contention of the learned counsel has thus no force. 7. Even otherwise it is well settled that the Legislation has to be construed in accordance-with the words used in the enactment and omission in a statute cannot as a general rule be supplied by the constructions. Crawford in his famous work known as Construction of Statutes (1940 Edition) says "thus, if a particular case is omitted from the terms of a statute, even though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertance, the Court cannot include the omitted case by supplying the omission. This is equally true where the omission was due to the failure of the legislature to foresee the missing case. As is obvious, to permit the Court to supply the omission in statute, would generally constitute an encroachment upon the field of the legislature". In Craies on Statute Law (7th Edition) at page 70 it is stated that :-- "No case can be found to authorise any court to alter a word so as to produce a "casus omissus", said Lord Halsbury in Mersey Docks v. Henderson. In Crawford v. Spooner, the Judicial Committee said. "We cannot aid the legislature's defective phrasing of an Act, we cannot add any mend, and, by construction, make up deficiencies which are left there". In 1951, in Magor and St. Mellons R.D.C. v. Newport Corpn., it was held by the House of Lords that a court has no power to fill any gaps disclosed in an Act. To do so would be to usurp the function of the legislature. In other words, the language of Acts of Parliament, and more especially of modern Acts, must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case". The following statement of law appears in Bindra's Interpretation of Statute (7th Edition):-- "Court cannot supply casus omissus".~"A casus omissus can in no case be supplied by a Court of Law, for that would be to make laws, says Bullar, J., in Jones v. Smart. Whether the omission is intentional or inadvertant is no concern of the Court and a casus omissus cannot be supplied by a court of law It is not permissible for the court to fill up this gap by a process of judicial interpretation. A court must interpret the law as it stands and should not try to supply further facts or add to the meanings conveyed by the language of the section. It is an accepted proposition that no rule of interpretation can be invoked for the purpose of including cases plainly omitted from the natural meaning of the words. It is not for the Court to supply the omission; it can only point out the omission. It is for the Legislature to consider and decide whether the omission should be supplied". There are of course certain exceptions to the above noted general rule, but none of these is applicable here. For the reasons aforesaid there is no force in this petition which is dismissed leaving the parlies to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ1992 Lahore 58 PLJ1992 Lahore 58 Present: muhammad amir malik, J ALLAH RAKHA-Petitioner versus Mst. FARIDA BANG and 2 others-Respondents Writ Petition No. 3421 of 1991, partly accepted on 29,6.1991 Maintenance— —Maintenance to wife and children-Grant of--Challenge to—Whether Arbitration Council could grant maintenance to children as well under Section 9 of Muslim Family Law Ordinance, 1961-Question of-There is no mention of children of parties of whatever age, in section 9 of Ordinance—Held: Maintenance of children was beyond jurisdiction of Arbitration Council-­ Petition accepted partly and maintenance granted to children set aside. [P.59] A & B Ch. Pervez Akhtar, Advocate for Petitioner. SyedAftab Shirazi, Advocate for Respondent No.l. Date of hearing: 29.6.1991. judgment Mst , Farida Bano respondent-decree-holder filed a maintenance petition against her husband Allah Rakha petitioner-judgment-debtor with the Chairman who constituted an Arbitration Council under the Muslim Family Laws Ordinance, 1961. The Arbitration Council issued a certificate of maintenance for Mst. Farida Bano as well as their two minor children. The rate of maintenance was fixed at Rs. 2,000/-per month. Past maintenance from 1.1.1989 to 30.4.1990 and future maintenance from the date of presentation of the maintenance petition was granted. The certification was called in question before the Collector who reduced the rate of maintenance to Rs. 1500/-per month. The orders of the Arbitration Council and the Collector have been called in question in the writ petition. 2. Learned counsel for the petitioner contended that no proper Arbitration Council had been constituted, even if one be considered to have been constituted no decision was given by it inasmuch as the two representatives of the parties had not signed the certificate but had only given affidavits and that no maintenance for the two minor children could have been granted in view of the provisions of Section 9 of the Muslim Family Laws Ordinance, 1961. The first limb of the contentions must be rejected. It is clear from the proceedings of the Arbitration Council as well as the order of the Collector in revision that the Chairman asked the parlies to nominate their respresentatives on the Council which they did and the claim of the petitioner was not only allowed by the Council but also in support thereof the two representatives of the parties gave affidavits. It is more than just signing the certificate. Rather the decision as to certificate was supported by the two representatives by filing the affidavits. 3. However, there is force in the argument that maintenance only for the wife could have been granted and not for the children. Section 9 clearly provides that if any husband fails to maintain his wife adequately, she may in addition to seeking any other available legal remedy, apply to the Chairman to constitute an Arbitration Council to determine the matter and the Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband. There is no mention of any children of the parties of whatever age. In this connection the petitioner's plea is accepted. The maintenance granted for the children was, therefore, beyond the jurisdiction of the Arbitration Council. 4. Consequently, the petition is partly allowed. The certificate of the Arbitration Council and the order of the Collector are modified to the extent of the maintenance of Rs. l, 000/-per month for the children. Farida Bano respondent had claimed her own maintenance at the rate of Rs. l,000/-which was allowed by the Arbitration Council and there being no specification of the amounts for the wife and the two children by the Collector in the impugned order, the certificate to Mst. Farida Bano at the rate of Rs. 1000/-per month as maintenance shall be deemed to have been granted and maintained by the Collector. The order with respect to the rest of the maintenance for the children shall be deemed to have been set aside. (MBC) (Approved for reporting) Petition partly accepted.

PLJ 1992 Lahore 59 PLJ 1992 Lahore 59 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD RAMZAN-Petitioner versus Mst. AFSHAN KANWAL and two others-Respondents. Writ Petition No. 2084 of 1989, dismissed on 11.6.1991. Family Courts Act, 1964 (W.PAct XXXV of 1964) —S. 13 (3) & (4)—Maintenance—Award of—Execution of decree—Challenge to- -Plain reading of Section 13 (3) shows that if decree relates to payment of money, decretal amount can be recovered as arrears of land revenue, but if court so directs—It provides an additional procedure which can be adopted for enforcing decree under a specific order of court directing recovery as arrears of land revenue—It does not effect general provision in sub-section (4) for execution of decree passed by Farmily Court-Held: There is no warrant for construing sub-section (3) as ousting jurisdiction of Family Court to execute decree-Petition dismissed. [P.61]A,B&C PLD 1970 Peshawar 52 and 1986 CLC 2381 not relevant. Syed Waheedur Rchaman Gillani, Advocate for Petitioner. Mr. Muhammad Yasin Chughtai, Advocate for Respondent No. 1. Nemo for Respondents 2 & 3. Date of hearing: 11.6.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the order of Judge Family Court, Lahore dated 1st of October, 1988, which was maintained by the Additional District Judge, Lahore on 4th of February, 1989 and arises out of an execution matter. 2. The petitioner was directed by the Judge Family Court on 29th July, 1985 to pay maintenance to respondent No.l at the rate of Rs. 500/-per month. As, the petitioner failed to discharge his liability, respondent No.l applied for execution of the decree of the Family Court by filing an application under section 13 of the Punjab Family Courts Act 1964. In response to the notice issued by the Family Court, the petitioner appeared and objected that the execution petition was not maintainable before the Family Court in view of section 13 (3) of the Family Courts Act 1964 which provides for execution of the decree for recovery of money as arrears of land revenue and the decree can only be enforced by the Collector. Finding no merit in this objection, the Family Court proceeded to dismiss the application filed by the petitioner in this behalf on 1st of October, 1988. This order was challenged by the petitioner by filing a revision which was rejected by the Additional District Judge Lahore on 4th of February, 1989 holding that revision against the order passed by the Family Court was not maintainable and further that the Family Court had the jurisdiction to execute the decree for maintenance. Hence this petition. 3. Syed Waheedur Rehaman Gilani, learned counsel appearing for the petitioner has reiterated that the decree under execution being for recovery of money, it could only be executed by the Collector under section 13 (3) of the Act as the amount was to be recovered as arrears of land revenue. The learned counsel has endeavoured to draw support for the contention from Lai Muhammad and another vs. Mst. Niaz Parwara (PLD 1970 Peshawar 52) and Nasir Klian vs. Tahira Rashida (1986 CLC 2381). 4. Mr. Muhammad Yasin Chughtai, Advocate appearing for respondent No.l has on the other hand contended that section 13 (3) of the Act applies only in cases where it is directed by the Court that the decree should be executed as arrears of land revenue and not otherwise. The learned counsel has placed reliance upon the case of Samia Akber vs. Muhammad Zubair (NLR 1990 Civil 155). 5. Section 13 (3) which provides for enforcement of decree passed by the Family Court under the Punjab Family Courts Act 1964 reads as under:- Sec. 13 (3) "Whereas a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder." On the plain reading of this provision it is obvious that if the decree relates to payment of money, the decretal amount can be recovered as arrears of land revenue but (if) the Court so directs. This subsection is in the na '8re of an enabling provision and provides an additional procedure which can be adopted for enforcing the decree under a specified order of the Court directing the recovery as arrears of land revenue. It does not however, in any manner effect the general provision in subsection (4) for execution of the decrees passed by Family Courts. If subsection (3) and subsection (4) are read together, the inevitable conclusion is that all decrees passed by the Family Court are to be executed by it or by such other civil Court as the District Judge may by special and general order direct. In matters where the decree relates to recovery of money an additional power is vested in Court to direct the recovery as arrears of land revenue. There is no warrant however for construing subsection (3) as ousting the jurisdiction of the Family Court to execute the decree. 6. Furthermore, even in cases where the decretal amount is directed to be recovered as arrears of land revenue, the execution petition has to be filed before the Family Court, which may forward the warrants to the Collector for recovering the money as arrears of land revenue. 7 Reliance of the learned counsel on the case reported as Lai Muhammad and another v. Mst Niaz Parwara (PLD 1970 Peshawar 52) is not apt as the dispute in that case related to a decree for restitution of conjugal rights. As regards the other precedent relied upon by the learned counsel namely Nasir KJian v. Taliira Rasliida (1986 CLC 2381) the ratio in that case goes against the contention of the learned counsel for the petitioner rather than advancing it for what has been held in that case is that Family Court can execute the decree for recovery of money but cannot commit a person to civil prison without following the procedure prescribed under section 13 (3). There is nothing in that judgment to suggest that the execution petition cannot be filed before the Family Court or that even in the absence of a specific direction to recover the money as arrears of land revenue, the decree cannot be enforced in any other manner by the Family Court. For the reasons aforesaid there is no force in this petition, which is dismissed k leaving the parlies to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 62 PLJ 1992 Lahore 62 Present: MALIK MUHAMMAD QAYYUM, J MIAN SHABBIR AHMAD etc--Petitioners versus •MUHAMMAD IQBAL etc-Respondents Writ Petition No. 6564 of 1990, accepted on 29.5.1991 (i) Ex-parte order— —Tenant-Ex-parte order against-Setting aside of--Refusal of--Challenge to— On 6.10.1985, Presiding Officer was on leave and it was Reader of court who adjourned case to 12.10.1985 and directed issuance of notices to petitioners- Held: Petitioner could not be proceeded against ex-parie on date which was not fixed by court, but was fixed by ministerial officer. [P-64] B 1983 SCMR 1092 rel. (ii) Ex-parte order- —Tenant-Ex-parte order against-Setting aside of-Refusal of-Challenge to~ There was no justification for Rent Controller to have proceeded ex-parte against petitioners—Unusual and unholy haste with which Rent Controller acted, leaves no room for doubt that proceedings were malafide and capricious-Held: Rent Controller acted with undue haste and in highly unjust manner which has vitiated whole proceedings. [P-64] A (iii) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959) —S. 13 read with Section 15 (6) as amended by Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990-Tenant-Ejectment of—Challenge to- Whether alternate remedy of second appeal was available to Petitioners- Question of--At time when appellate order was passed, there was no right of second appeal available to Petitioners—Such right was Conferred by Punjab Ordinance XIII of 1990 which came into force on 6.6.1990~Held: There is no force in objection raised by respondents that petitioners had any alternative remedy available to them-Petition accepted [P.65]C&D Mian Nisar Ahmad, Advocate for Petitioners. Raja Muhammad Yaqoob KJian, Advocate for Respondents 1 to 4. Nemo for respondents 5 & 6 Date of hearing: 29.5.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order of the Rent Controller, Faisalabad, dated llth of October, 1988, which was affirmed in appeal by the Additional District Judge, Faisalabad, vide his judgment dated 20th of May, 1990. 2. The facts forming the back-ground of the dispute are that on 21st of September, 1985, an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was filed by respondents No. 1 to 4 against the petitioners with respect to godown Nos. 8 and 9, Block No. 6, Tata Factory, Factory Area, Faisalabad. From the record, it appears that the notices were ordered to be issued by the Rent Controller to the petitioner, for 6th October, 1985. On that day, the Presiding Officer was on leave and that the notices had not been received back. Consequently, the Reader of the Court directed that the notices be re-issued for 12th October, 1985. On that date, the Rent Controller ordered ex pane proceedings against the petitioner as the Process-Server had reported that the petitioners had refused to accept the notices which were affixed on the door of their office. The Rent Controller after recording ex parte evidence passed an order for ejectment on 21st of October, 1985. Surprisingly enough, no time was allowed to the petitioners for vacation of the premises and they were, in execution of the order, ejected from the premises only after three days, i.e. on 24th of October, 1985. 3. On 4th of November, 1985, an application for setting aside the ex-parte order of ejectment was filed by the petitioners in which they asserted that they were never offered notices for service nor did they refuse to accept the same. The application was contested by the respondent-landlords. The Rent Controller, after framing the issues, recorded the evidence of the parties and, vide his order dated llth of October, 1988, dismissed the application. Aggrieved by this order, the petitioners wen,t in appeal which was, however, dismissed by Mr Muhammad Mansoor All Khan, Additional District Judge, Faisalabad , vide his judgment dated 20th of May, 1990. Hence, this petition. 4. Mian Nisar Ahmad, learned counsel for the petitioners, has contended that there was no justification whatsoever for the Rent Controller to have proceeded cx-parte against the petitioners on the basis of a report made by the process-server, which, on the face of it, was incomplete and not worthy of any reliance. The learned counsel has pointed out that in the ejectment petition filed by the respondents, incomplete address of the petitioners was given and they were shown as residents of Tata Factory, Factory Area, Faisalabad, but neither the number of the house nor name of road or street was specified. 5. Raja Muhammad Yaqub Khan, learned counsel for respondents No. 1 to 4, has controverted the arguments of the learned counsel for the petitioners and has also raised the preliminary objections; first being that the petitioners having failed to avail of the alternative remedy of filing second appeal under section 15 (6) of the Punjab Urban Rent Restriction Ordinance, 1959, as amended by the Punjab Ordinance XIII of 1990, this constitutional petition is not competent. The next objection was that the question of service is the question of fact, findings on which are not amenable to correction through judicial review. He relied, in this behalf, on Khuda Dad KJian vs Muhammad Abdul Hanan and 6 others (1980 CLC 500). The learned counsel emphasized that the report of the process-server is not to be read in isolation but should be considered in the light of the statement made by him in Court as a witness and that the petitioners have themselves given the same address in this petition as it was given by the respondents in the ejectment petition. 6. Having heard the learned counsel for the parties and perused the available (record), I am clearly of the view that there was whatsoever no justification for the Rent Controller to have proceeded ex-pane against the petitioners and the Rent Controller as also the Additional District Judge acted without any lawful authority in refusing to set aside the ex-parte order. The unusual and unholy haste with which the Rent Controller acted, while deciding the application for ejectment, leaves no room for doubt that the proceedings were mala fide and capricious. The ejectment application was filed on 21.9.1985 and the next date fixed was 6th of October, 1985. On that date, the Presiding Officer was on leave and the notices had been received back. Surprisingly, the reader directed issuance of fresh notices for a date which was only six days away, i.e., 12th of October, 1985. On that day, the petitioners were proceeded against ex-parte on the basis of report of refusal and affixation and the case was adjourned for recording ex-parte proof to 16th of October, 1985, when the Presiding Officer was on leave and then again the matter was adjourned for five days, i.e. 2Ist of October, 1985. On that day, the ex-parte order for ejectment was passed but no time was allowed for vacation of premises. It is obvious from the above that the Rent Controller acted with undue haste and in a highly unjust manner which has vitiated the whole proceedings. 7. It is also to be seen that on 6th of October, 1985, the Presiding Officer was on leave and it was the Reader of the Court, a ministerial officer, who had adjourned the case to 12th of October, 1985, and directed issuance of notices to the petitioners. The petitioners could not be proceeded against ex-parte on the date which was not fixed by the Court but by the ministerial officer. Reference in this respect may be made to Nowsher KJian vs Said Ahmad Shah (1983 SCMR 1092) 8. There is merit in the contention of the learned counsel for the petitioners that the report made by the process server was" incomplete. The service has purportedly been effected under the provisions of order V rule 17 C.P.C. But neither the time when the service was effected (was) mentioned by the processserver nor the place where the affixation was made had been specified. In the notices, the address given.was Tata Factory, Factory Area, Faisalabad. The tenor of the report shows that the service was effected at that place. However, while appearing as R.W. 1, it was stated, by the process-server that when he went to Tata Factory Godowns, Abdul Haq, Store-keeper of the petitioners met, who refused to accept service and instead informed him that the petitioners were working under the name of Mian Bashir & Sons at Gole Kutchery Bazar. The process server further deposed that he went to that place where he met the petitioners who refused to accept service and he affixed the notices at that place. None of these facts find any mention in the report made by him. Unfortunately, while reiving on this witness, the Rent Controller and the Additional District Judge completely closed their eyes to this obvious inconsistency. 9. As regards the preliminary objections, it is to be seen that the time when the appellate order was passed by the Additional District Judge on 20th of May, 1990, there was no right of second appeal available to the petitioners. The right of such an appeal was, for the first time, conferred by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990, which came into force on 6 th of June, 1990. This Court has already held in S^.O.No. 13 of 1990 that this C amendment is not retrospective in nature and is inapplicable to cases in which the ejectment petitions had been filed prior to the promulgation of the amending Ordinance. There is thus no force in the objection raised by the learned counsel for the respondents that the petitioners had any alternative remedy available to them. 10. As regards the second objection that the question of service is a question of fact, there may be no cavil with this proposition. But in the present case, it is apparent on the face of the reocrd that no service was effected at all and, while dismissing the application for setting aside the ex-parte order, the Rent Controller as also the Additional District Judge not only acted arbitrarily but also completely closed their eyes to the report and the statement made by the process-server, while appearing as R.W. 1. For the foregoing reasons, this petition is allowed, the order of the Rent Controller dated llth of October, 1988, as affirmed in appeal by the Additional District Judge on 20th of May, 1990, is declared to be without lawful authority and of no legal effect and the application for setting aside the ex-parte order for ejectment dated 21st of October, 1985. is allowed with the result that the ex-parte order of ejectment stands set aside. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 76 PLJ 1992 Lahore 76 Present: GUL ZARIN kiani, J AHMAD etc.— Appellants versus NAWAB efc.—Respondents R.S.A. No.162 of 1969, accepted on 2.2.1991 (Approved for reporting on 3.9.1991) Civil Procedure Code, 1908 (V of 1908)-- —O.XXVI R.9--Suit for possession-Decree passed in--Appeal against— Whether reports of Local Commissioner in previous suits, which were withdrawn, are admissible in fresh suit-Question of-Lower Courts had mainly based their decisions relating to dispute about identity of land, on reports prepared by Local Commissioner and his statement in court—In absence of relevant records, it is difficult to find stages to which suits had reached when these were withdrawn and whether any objections to reports were filed or not- -Held: It was appropriate for trial court to have itself deputed Local Commissioner for demarcating land in dispute—Appeal accepted and case remanded. [Pp.80&81]A&B Syed Murid Hussain, Advocate for Appellants. Mr. Allah Wasaya Malik, Advocate for Respondents Nos. 1,2,9,12,13,16,18 to 21 and 22. Dale of hearing: 2.2.1991. judgment Second appeal by the defendants No. 1 to 5, in the suit for possession, is directed against judgment and decree dated 15.11.1968 of the lower appellate Court affirming those of the trial Court, whereby it had decreed possession of eleven kanals of land in favour of plaintiff. Material facts for the decision of the points involved in the appeal briefly summarised are:-88 kanals, 3 marlas of agricultural land bearing khasra No. 305, situated in the revenue estate of Daggar Shada of Tehsil Bhakkar, in District Mianwali was in joint ownership of the plaintiff with defendants No. 6 to 28. On 4.6.1965, pluintiff instituted a suit against defendants No. 1 to 5, namely, Ahmad, Hussain, sons of Jinda, Muhammada, Sarga, and, Jiwan sons of Hassu for recovery of possession of eleven kanals of land out of khasra No. 305. It was alleged that the aforesaid defendants had by committing trespass on the land in khasra No. 305, unauthorisedly taken its possession about four years earlier and constructed their chappars on it and installed a water pump also. Co-owners in khasra No. 305, namely defendants No. 6 to 28 were joined as proforma defendants in the suit, and, no relief was claimed against them. First two defendants were in possession of 1 kanal, 12 marlas, defendants 3 and 4, 7 kanals, 10 marlas, and, defendant No. 5, 1 kanal, 18 marlas. Respective portions in possession of these defendants were shown as 305/1, 305/2 and 305/3. Upon being served in the suit, defendants No. 1 to 5 submitted a joint written statement, and, coatested the suit. It was averred that as the land was sikni, value for purposes of court-fee in respect of the suit for possession was incorrectly assessed and less court-fee was paid on the plaint. Further, the defendants denied plaintiffs ownership of the land as also that of defendants No. 6 to 28. It was asserted that the land-in-dispute was in possession of defendants No. 1 to 5, for the past more than twenty years and constructions had been raised on it by them on the basis of old possession. It was averred that suit was barred by limitation. On 8.9.1965, the trial Court framed following issues:- (1) Is the plaintiff owner of the suit land? OPP (2) Is the suit correctly valued for court-fee and jurisdiction? OPP. (3) Has the plaintiff been in possession of the land in dispute within 12 years of the suit? OPP. (4) Have the defendants No. 1 to 5 been in adverse possession of the suit land for more than 12 years? OPD. (5) Relief. Plaintiff gave evidence of Rana Mukhtar Ahmad, Colony Naib Tehsildar, Bhakkar, PW-1 who had demarcated the land in dispute and proved his report Ext. PI and the plan Ext. P2, Mohammad Ramzan Halqa Patwari Daggar Shada PW-2 who proved naqsha tafawat Ext. P3, and, report in daily diary, Ext. P4 and produced an extract from register khasra girdawari, Ext. P5. a jamabandi, Ext. P6 and closed his affirmative evidence with reservation to appear as his own witness after close of defence evidence. Four D.Ws gave evidence for the defence. They were Gul Muhammad, Allah Wasaya, Rab Nawaz and Elahi Bakhsh. In addition to them, Ahmad co-defendant as DW-5 himself appeared in the witness-box and recorded his statement. Thereupon, plaintiff made his won statement as PW-5. Rana Mukhtar Ahmad PW-1 was examined again and thereupon parties' evidence was closed. Upon review of record, the trial court held that land-in-dispute in possession of defendants No.l to 5 was part and parcel of Khasra No.305; valuation of the suit for purposes of court-fee was correct; defendants No. 1 to 5 were proved to be in possession of the land in dispute for more than twelve years and the plaintiff had failed to establish his possession within that period. Consequently, issues No3 and 4 having been answered against the plaintiff, his suit was dismissed on 11.5.1966. plaintiff filed an appeal. It was allowed on 20.4.1967 by learned District Judge, Mianwali who remanded the suit for deciding it afresh after taking more evidence from the parties. Learned District Judge did not seem to be satisfied with the quality of oral evidence given in defence because of its interested and discrepant character. In post-remand, plaintiff produced three more witnesses. and the defendants gave evidence of four witnesses. Upon consideration of the material added to the file in conjunction with already existing on it, the trial court held thai khasra No. 305 was owned by the plaintiff, alongwith defendants No. 6 to 28; that the land-in-dispute was part of khasra No.305; that the defendants No.l to 5 were in its unauthorised possession and the suit filed for recovery of its possession was not barred by limitation. Accordingly, it decreed the suit on 12.10.1967, in favour of the plaintiff. Defendants No.l to 5 filed an appeal against the Judgement and decree of the trial court before learned District Judge Mianwali. The appeal was heard by a learned Additional District Judge to whom it was marked for hearing. He saw no merits in the appeal and dismissed the same on 15.11.1968. That is how the defendants have come up in second appeal to this Court. The appeal was admitted to hearing on 4.3.1969 and execution of the impugned decree was stayed meanwhile. At the outset, learned counsel for the appellants conceded plaintiffs ownership of the land in khasra No. 305 and abandoned pleas of adverse possession, and, bar of limitation raised in defence in the lower Courts. In this view of the statement of learned counsel for the appellants, only material point surviving for decision in the appeal was, whether the land in possession of the appellants was proved to be apart of khasra No. 305, and, two reports of Local Commissioner made in the previously instituted civil suits, since withdrawn were its adequate proof.Obviously, the kind and quality of oral evidence led in the case was not much helpful for a satisfactory determination of the dispute about the identity of the land-in-dispute. Cases of boundary disputes and disputes about the identity of land are apt instances where a Court may order a local investigation under Order XXVI Rule 9, Civil Procedure Code. Reference with advantage can be made to the cases in Lodna Colliery Co.(1920), Ltd., versus Bholanath Rai and others—A..I.R 1954 Calcutta 233, Vencu Gopal Tari and others versus Nilconta S. Xcte and otliers-A.l.R. 1975 Goa 32. It is common ground that in the present suit, neither the plaintiff applied for the appointment of a fresh Local Commissioner for demarcation of piece of land in possession of defendants 1 to 6 nor the trial Court had directed local investigation by a Local Commissioner. Instead, the plaintiff relied upon reports of the Local Commissioner made in the previously instituted two separate civil suits against the defendants which were subsequently. withdrawn, and tried to prove their accuracy by examining the Local Commissioner, namely, Rana Mukhtar Ahmad, Colony Naib Tehsildar twice, once as PW-1 on 5.2.1966, and, thereafter on 13.4.1966. As PW-1, he proved his demarcation report Ext.Pl and plan Ext.P2. In his subsequent examination, he proved his other report Ext.P7.Ext.Pl was a demarcation report made in the civil suit filed by plaintiff against Ahmad and Hussaina pertaining to khasra No.302. When deputed by the trial Court in that suit to discover, whether the defendants were occupants of khasra No.302, the Local Commissioner reported on 10.5.1965, that possession of Ahmad and Hussaina existed on a piece of land measuring 1 kanal, 12 marlas in khasra No 305 marked as 305/1 in the attached plan. After this report of the Local Commissioner, the suit in which the report was made was withdrawn by the plaintiff with permission to file a fresh suit on its basis. Similarly, Ext.P. 7 was a report by the same Local Commissioner in the civil suit instituted by the plaintiff against Muhammda, and, Sarga sons of Hassu to recover 11 kanals, 5 marlas of land out of khasra No.305 from their unauthorised possession after removal of the malba from it. ExtP7 showed Muhammada, and, Sarga to be in possession of 7 kanals, 10 mafias of land out of khasra No.305 which was marked as khasra No.305/2 in it. Further, it showed that Jiwan son of Hassu was in possession of 1 kanal, 18 marlas of land out of khasra No 305 shown as 305/3 in the plan . Copy of the plaint in the suit filed by plaintiff against Muhammada and Sarga was not put in evidence but description of parties to the civil suit available in the report Ext.P. 7 clearly showed that Jiwan son of Hassu was not a party to this suit. The report of a Local Commissioner and the evidence taken by him is report of the Commissioner and are further entitled to substantiate the same by giving evidence and the court must fix a date to enable them to file the objections if any to the report of the Commissioner. On the present record, that procedure does not seem to have been followed. Having examined the Commissioner's reports Ext.pl, p7 and plan Ext.p2 in the context of instructions laid down for determining boundary disputes and identity of lands incorporated in Volume 1 of the Rules and Orders of the High Court, Chapter 1-M, there is reason to think that the result reached and conclusions formed were unsatisfactory. In these circumstances, it was appropriate for the trial Court to have itself deputed the Local Commissioner for demarcating the land-in-dispute in accordance with the rules on the subject for discovering, whether the defendants' possession existed on any part of khasra No.305 owned by the plaintiff alongwith defendants No.6 to 28. In view of the foregoing reasons, second appeal is allowed, impugned judgments and decrees passed in the lower Courts are set aside and the suit is remanded to the trial Court to appoint a Local Commissioner, preferably a Revenue Officer experienced in field work, to carry out fresh demarcation of the land in dispute for finding out whether the portions of land in dispute in possession of defendants No.l to 5 were part of khasra No.305 and decide the matter afresh accordingly. The expenses of the Commission shall be shared by the parties equally. Except for the limited extent indicated above, findings on other issues are not disturbed and those shall remain intact for the lower Courts. Costs of litigation in this Court shall be borne by the parties. Records be returned to the trial Court to enable it to proceed with the trial of the suit in accordance with the direction contained in the judgment of this Court. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Lahore 81 PLJ 1992 Lahore 81 Present: gul zarin kiam, J UNITED CO-OPERATIVE HOUSING SOCIETY LTD.-Petitioner versus ZAFARULLAH KHAN-Respondent Civil Revision No.1164 of 1991, dismissed on 3.7.1991 Civil Procedure Code, 1908 (V of 1908)-- —O.VI R.17--Plaint-Amendment of-Prayer for-Amendment partly allowed-Challenge to~No doubt, powers of court to allow amendment are vast and wide but exercise of such far reaching discretionary powers must be governed by judicial considerations-One of important considerations is whether proposed amendment is bona-fide--\i court thinks that applicant is not acting bona-fide in seeking amendment, it commits no error in refusing amendment-- Trial court had, upon careful examination of two receipts, one filed by petitioner and other by respondent, found that application for amendment was not bone-fide— Held: It is not appropriate to interfere and strike down impugned order in exercise of discretionary jurisdiction because petitioner has a remedy under Section 105 of C.P.C. to agitate against it in appeal from final decree-Petition dismissed. [Pp.84,85&86JA,B&C AIR 1975 Calculta 404, AIR (31) 1944 Calcutta 72, AIR (36) 1949 Madras 433, AIR 1955 Andhra Pradesh 138, AIR 1970 Manipur 1, AIR 1973 Delhi 96, and 1977 SCMR 287 ref. Sh. Muhammad Ashraf, Advocate for Petitioner. Date of hearing: 3.7.1991. order This is a revision petition by the plaintiff from a decision of learned Civil Judge, Lahore allowing partial amendment to the palint. It arises out of an action for specific performance of a contract for sale of land entered into between petitioner and respondent. Facts relevant for purposes of the revision petition are:-53 kanals, 16 marlas of land situate at mauza Kamahan, in Tehsil and District Lahore, part of Cantonment Limits of Lahore, is owned by Zafar-Ullah Khan son of All Ahmed, hereinafter, referred to as respondent. On 10.7.1989, he entered into a contract for its sale to the United Co-operative Housing Society Limited. 135-E/l Gulberg III Lahore, for an agreed price of Rs. 26.90,000/-at the flat rate of Rs. 4,00,000/- per acre. Terms of the sale agreement were reduced to writing on the same day. Rs. 4,000/-in cash, and, Rs. 4,96,000/-through a pay order drawn on Allied Bank were received in advance towards the sale price at the time of entering into an agreement for sale of the land. One and a half year time was fixed for finalization of the sale and th<>. actual date fixed in the agreement for that purpose was 10.1.1991. It was agreed between the parties that balance consideration of Rs. 21,90,00()/-shall be payable at the time of final sale, before the Registration Authority. As sale could not take place on the agreed terms, the petitioner-Society laid an action for specific performance of sale agreement for compelling the respondent to complete the sale, upon receipt of balance consideration. Suit was instituted on 9.1.1991, in the civil Court at Lahore. Simultaneous with the institution of the suit, the petitioner applied for a restraining order addressed to the respondent to prohibit him from further alienating the land in suit. On 14.1.1991, the trial Court issued a conditional restraint order subject to deposit of the balance consideration in the sum of Rs. 21,90,000/- within fifteen days in Court. It appears from the record that balance price payable for the land was not deposited as directed in the restraint order and the condition subject to which it it was to operate was not observed by the petitioner. Upon gaining knowledge of the suit for specific performance filed against him, the respondent submitted an application under order XV, rule 1, Civil Procedure Code on 11.4.1991 expressing his willingness to execute the sale deed upon receiving the balance consideration of Rs. 21,90,000/-. The trial Court entertained the application, and, issued notice on it to the petitioner for 20.4.1991. Petitioner gave reply to the above said application on 24.4.1991. In course of hearing arguments on this application, parties seem to have agreed for decision of the payable price for the land on Holy oath. Upon recording the offer and acceptance, proceedings were adjourned to 29.4.1991 for personal appearance of the petitioner in Court to make the desired statement. On 29.4.1991, petitioner's representative did not appear and the case was further adjourned to 11.5.1991. Record reveals that this matter was not processed further by the trial Court. On 11.5.1991, the date of hearing fixed in the suit, petitioner submitted an application under Order VI, rule 17, Civil Procedure Code to amend the plaint for stating that a further sum of Rs. 6,00,000/-was paid to the respondent towards adjustment of the balance sale-price. The amendment proposed to the plaint was as follows:- "That the defendant received an amount of Rs. 6,()0,000/-on 18.3.1991 from the plaintiff towards the sale price of the land." Wilh the application for amendment, photo-copies of a receipt dated 18.3.1991, and, a cheque in the name of respondent drawn upon Allied Bank of Pakistan Ltd., Liberty Market, Lahore were annexed. Respondent submitted a reply to the application seeking amendment and stated that he had received Rs. 60,000/-only through a cheque and the last line in receipt dated 18.3.1991 showing payment of Rs. 5,40,000/- to him on the same occasion was a subsequent interpolation in it. Respondent filed a photo-copy of the receipt of even date which did not contain the line relating to payment of Rs. 5,40,000/-. Upon visual examination and mutual comparison of the two receipts of even date, otherwise similar, but discordant on the disputed line relating to cash payment of Rs. 5,40,000/-,thc trial Court on 20.6.1991 gave permission to amend the plaint only to add payment of Rs. 60,000/-and, as regards the rest, did not agree with the petitioner and dismissed that part of the prayer. It held that only Rs. 60,000/-were shown to have been paid. It is this order of the trial Court that is sought to be revised by the petitioner. It is urged that the trial Court acted illegally to shut out the proposed amendment as a whole upon totally incorrect legal premises. It is further submitted that the truth or falsity of the matter in proposed amendment was not germane to a summary decision at the intermediate stage of the proceedings when the Court was considering only the question of propriety for allowing or disallowing the proposed amendment to the pleadings. Learned counsel fortified his statement by reference to the cases in Keramat All and another versus Muhammad Ytinus Haji and others-P.L.D 1963 S.C 191, Bahadur Shah and 2 others versus Sharaf and 9 otliers-P.L.D 1973 Lahore 513, Bashir Ahmad Khan versus Qaiser All Khan and 2 others--? .L.D 1973 S.C 507, Muhammad Yasin and others versus Wall Muhammad and of/iers--P.L.D 1983 Lahore 253, Mst. Ghulam Bibi and others versus Sarsa Klian and ot/iers-P.L.D 1985 S.C 345. No doubt, the powers of the Court to allow amendment are vast and wide and may at any stage be appropriately exercised in the interest of justice but in­built in the provisions enacted in order VI, rule 17, Civil Procedure Code is seen that exercise of such far reaching discretionary powers must be governed by judicial considerations and wider the power and discretion conferred on the Court, greater ought to be the care and circumspection on part of it. One of the important considerations which should weigh with the Court is, whether the proposed amendment is bona-fide and is necessary for the purpose of deciding the real matter in controversy between the parties. In Ninnala Bala Ghosh and others versus Balai Chand Ghosh and others-A.l.R. 1975 Calcutta 404, the Court said that power to get the plaint amended is subject to the discretion of the Judge and cannot be claimed as a matter of right or in all circumstances. Further, the question of amendments of the plaint depends upon the facts of individual case. The circumstances under which the prayer for amendmet of the plaint is to be allowed, therefore, cannot be exhaustively enumerated. An important rider was attached saying that the principle has always been to do substantial justice and not to punish the plaintiff on a technical ground and that the power of the Court was not without fetters. Further, in Babulall Choukhani versus Hariprosad Roy— A.I.R. (31) 1944 Calcutta 72, M.K. Krishna Rao versus Sri Gangadcswarar Temple and other connected temples by trustees-A.I.R. (36) 1949 Madras 433, Pathikonda Gopala Rao versus Nagiri Pedda Kitatnma--A..l.R. 1955 Andhra Pradesh 138, State Bank of India at Imphal versus Yumnam Gouramani Singh— A.I.R. 1970 Manipur 1, Mongol Dass Sant Ram Gauba versus Union of India and others-A.l.R. 1973 Delhi 96, Sheikh Shabbir Hussain (represented by his legal heirs) versus Abdul Raoofand anolher-Wll S.C.M.R 287, it has been observed that the Court at the time of considering the question of amendment must not enter on its merits and give finding on truth or falsity of the proposed matter sought to be introduced in pleadings through amendment. That matter, the Courts said, could be decided on an issue framed and evidence led at the trial by the parties. In Syed Akhlaq Hussain's case (Supra) their Lordships of the Supreme Court dealing with the point observed that the question whether the allegations made in support of the amendment were true or false could not be decided summarily at the time of considering application made under rule 17, order VI of Code of Civil Procedure, unless of course, the matter was patent on the face of record. The observation at the end is a real cue to the whole matter. Amongst others, an important consideration in a matter of the kind is whether the applicant for amendment acted in good faith or conversely, the application is mala-fide and if the Court upon careful sifting of all the circumstances in a particular case thinks that the applicant is not acting bona-flde in seeking the amendment, it commits no error in refusing the amendment. As said above, the trial Court had upon careful examination of the two receipts, one filed by the petitioner and the other by respondent, found that the application for amendment was not bona-fide. The observation of the trial Court about interpolation/forgery of a material term in receipt dated 18.3.1991 is not without force, and, upon my own examination of the original receipt filed in Court today by the petitioner's learned counsel and the photo-copy furnished by the respondent in the trial Court, I could not easily shed the impression formed of them by the trial Court. Original receipt did not tally with the photo-copy produced by the respondent. On query from the Court as to who was the author of the receipt, and, whether the sum orally paid was shown in the accounts books of the petitioner, learned counsel was unable to assist. All that he said was that he was unaware and in absence of the petitioner could not commit either way. Apart from the glaring dissimilarity of the original receipt with its photo-copy about cash payment of Rs. »5,40,000/-on 18.3.1991, there are other unfavourable circumstances also which put the Court on serious enquiry. In two other similar cases filed by the petitioner, similar attempts were made for amending the plaint. In one case, petitioner-Society agreed to purchase 173 kanals, 13 marlas of land from Liaqat Ali, and, Sajjad Ali, brothers of the present respondent, on 2.7.1989 for a total consideration of Rs. 86, 82, 500/-. A sum of Rs. 15,55,00()/-i.e. Rs. 5,000/-in cash paid on 10.6.1989 and Rs. 15,50,000/-through a pay order on 2.7.1989 were received by the defendants in that suit. On 22.1.1991, the petitioner filed a suit for specific performance of a contract of sale in his favour, against Liaqat Ali and Sajjad Ali, in the civil Court at Lahore. On 6.4.1991, the petitioner filed an application for amending the plaint to state that a further sum of Rs. 20,00,000/-was paid orally to the defendants in the suit and the balance consideration was reduced by payment of that amount. The defendants in the suit denied the receipt of oral payment of the said amount and opposed the amendment. By order dated 20.6.1991, the trial Court dismissed the petition for amendment, and, by a separate order passed on 27.6.1991, on the application filed by the defendants under order XV, rule 1 Civil Procedure Code, decreed the suit for specific performance in favour of the petitioner subject to payment of Rs. 71, 27, 500/-within on month. Similarly, the petitioner-Society, on 1.8.1989, agreed to purchase 53 kanals, 15 marlas of land in the same mauza from one Mushtaq Ahmed for a total consideration of Rs. 23, 51, 562/-. Price fixed per acre of the land was Rs. 3,50,000/-. Out of the agreed sale price, Rs. 5000/-were paid in cash on 24.6.1989, and, Rs. 2,95,000/-through a pay order dated 1.8.1990, drawn on Allied Bank of Pakistan Ltd., Liberty Market, Lahore. Petitioner instituted the suit for specific performance against Mushtaq Ahmed, on 28.7.1990. On 22.4.1991, the petitioner applied for amendment to the plaint to state that a sum of Rs. 10,00,000/-was orally paid to the defendant, in the suit on 2.4.1990. The defendant in the suit resisted the proposed amendment and denied the receipt of oral payment of Rs. 10,00,000/-. By order dated 20.6.1991, the trial Court dismissed the petition for amendment to the plaint and by a separate order passed on 27.6.1991, decreed the suit in favour of the petitioner subject to payment of Rs. 19, 57, 562/-within fifteen days of the order. It may be observed that the suit was .decreed on the defendant's agreeing to it upon payment of balance consideration minus the oral payment of Rs. 10,00,000/-denied by him. Incidentally, the petitioner-Society was represented in two suits i.e the one which gave rise to instant civil revision, and, the other filed against Liaqat All and his brother Sajjad Ali by a common counsel, namely, Ch. Noor Mohammad Fazal, Advocate through whom the instant civil revision has been filed in this Court. In the suit filed against Mushtaq Ahmed, the petitioner-Society was represented by Ch. Mohammad Rafique Iqbal, Advocate. Ptima Facie speaking, the modus- oprcndi of the petitioner in all the three suits was identical and that factor put the Court on guard. Therefore, having due regard to the peculiar facts of the case and the kind of order made by the trial Court, it may not seem apposite to interfere and strike down the impugned order in exercise of discretionary jurisdiction of the Court, because the petitioner has a remedy provided in section 105, Civil Procedure Code, to agitate the legality as well as propriety of the impugned order in appeal from the final decree passed in the suit for specific performance. In support, reference can be made to Seth Nanak Chand Shadiram versus Amin Chand Pyarilal--A..l.R. 1970 Calcutta 8. In face of the above observations, I find no justification to interfere and direct that the revision petition be dismissed in limine. Records be quickly returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 86 PLJ 1992 Lahore 86 Present: muhammad ILYAS, J MUZAFFAR ALI and 2 others-Appellants versus Ch. ASGHAR ALI-Respondent R.S.A. No.157 of 1987, dismissed on 19.6.1991. (i) Special Oath- —Specific performance of agreement-Suit for--On offer of appellants, special oath was taken by respondent—Suit dismissed—Challenge to—By agreeing to make oath on Holy Quran, respondent took a very bold step-He is bound by his oath and so are bound appellants who agreed to making of oath by him— Held: Appellants cannot be allowed to wriggle out of their commitment and thus nullify oath proceedings which were taken, out at their instance-Appeal dismissed. [P.94]F&G (ii) Special Oath- —Specific performance of agreement—Suit for—On offer of appellants, special oath taken by respondent-Suit dismissed-Challenge to-Initiative in connection with decision of suit on basis of special oath, was taken by appellants—Obviously knowing that respondent had admitted receipt of Rs.66000/- in written statement, they offered to settle dispute on basis of special oath prescribed by them-Appellants did not raise a syllable of protest after special oath was made-Held: Plea of fraud is an after-thought-Held further: It is, in fact, an attempt on part of appellants to wriggle out of solemn commitment made by them. [Pp.89&90]A&B (iii) Special Oath-- —Specific preformance of agreement—Suit for—On offer of appellants, special oath was taken by respondent-Suit dismissed-Challenge to-Whether counsel representing appellants in trial court, had no authority to make offer of special oath to respondent—Question of—As per power of attorney, learned counsel was authorised to withdraw suit or enter into a compromise resulting in disposal of suit in accordance with compromise—Held: Although it has not been specifically mentioned in his Vakalatnama that he was empowered to settle dispute in terms of special oath, yet there is no room for doubt that counsel had authority to agree to disposal of suit on basis of that oath. [Pp.90&91 ]C PLD 1962 (W.P.) Karachi 162, AIR 1923 All. 65, AIR 1930 Cal.463, AIR 1939 Pat. 222, AIR 1940 Oudh 314 and AIR 1929 Oudh 56 rel. (iv) Special Oath- —Specific performance of agreement-Suit for-On offer of appellants, special oath was taken by respondent-Suit dismissed-Challenge to-Whether offer of special oath made by counsel on behalf of appellants was not binding on one of appellants who was not present-Question of--There was no clash of interest amongst two of appellants who made offer of special oath, and third one, on whose behalf offer was made by his counsel—All three are real brothers and no motive has been attributed to counsel representing appellants in trial court, to go against interest of absent appellant—Held: Learned counsel had authority to agree to oath proceedings and appellant who was absent at time of offer, is bound by said proceedings as well as by decision founded on those proceedings. [P.92JD&E PLD 1955 Sindh 62 not followed. Syed Iftikhar Ahmad, Advocate for Appellants. Mr. Muhammad Zafar Chaudhry, Advocate for Respondent. Date of hearing: 19.6.1991. judgment This regular second appeal has arisen out of a suit for specific performance of an agreement to sell certain land. The suit was filed by the appellants, Muzaffar Ali and two others, against the respondent, Ch. Asghar Ali, in the Court of the Senior Civil Judge, Lahore. During the pendency of the suit, it was stated by two of the appellants, namely, Muzaffar Ali and Shaukat Ali, and by learned counsel for the three appellants, that if the respondent made a special oath, on the Holy Quran, to the effect that he had not signed or thumb marked the deed in respect of the agreement in question nor did he receive any amount in connection with the said agreement, they will have no objection to the dismissal of their suit. Their offer in this regard was accepted by the respondent. On this, Mirza Hafeez-ur-Rehman, Advocate, was appointed as a Local Commissioner to administer the prescribed oath to the respondent in a mosque, which was done by him. Report in this behalf was made by the Local Commissioner. On the submission of the report, it was stated by the parties' counsel that they had read the report and had no objection thereto. Thereafter, the suit was dismissed by the Senior Civil Judge, leaving the parties to bear their own costs. Judgment and decree passed by the learned trial Court were challenged by the appellants by taking appeal before an Additional District Judge but in vain. Hence this second appeal. 2. It was contended by learned counsel for the appellants that the respondent had practised fraud on the learned trial Court in securing decision in his favour and, therefore, the judgment and decree passed by the said learned Court deserved to be set aside. His argument was that in another suit which was for partition of land, including the land involved in the agreement in dispute, the respondent had made an application admitting receipt of Rs. 66,000/-and, therefore, he had lied while making oath to the effect that he was not paid anything in respect of the agreement in dispute, In this connection, he drew my attention to certified copy of the application, dated 25th April, 1982, which forms part of the record of this Court. He also referred me to paragraph 3 of the written statement submitted by the respondent in the suit giving rise to this appeal. In that paragraph also he had admitted the receipt of Rs. 66,000/-. Learned counsel relied on Saleem Ahmad Vs. KJiushi Muhammad (1974 S.C.M.R. 224) and Mst. Asifa Sultana Vs. Honest Traders, Lahore and another (PLD 1970 S.C. 331) to support his argument. 3. Another plea raised by learned counsel for the appellants was that as one of the appellants, namely, Akhtar Ali, was not a party to the oath proceedings, he was not bound by the judgment and decree which were passed on the basis of the said proceedings. According to him, his counsel, Mr. G.Haider Alghazali, Advocate, had no authority to accept the offer of special oath. Strangely enough, the Vakalat Nania of Mr. G.Haider Alghazali is not on the file of the learned trial Court. Its photostat copy is, however, available on the record of the appellate Court. It is in English and there is no specific mention to the effect that the said learned Advocate would have authority to agree to the settlement of the dispute on the basis of special oath. Precedent case cited by learned counsel for the appellants in support of his contention that Akhtar Ali appellant was not bound by the statement of Mr. G.Haider Alghazali is that of Din Muhammad and another Vs. Farooq Mirza (PLD 1955 Sindh 62). 4. On the other hand, it was submitted by leaned counsel for the respondent that the application, dated 25th April, 1982, relied upon by learned counsel for the appellants, could not be made use of by him because that was not part of the record of the proceedings giving rise to this appeal. Admittedly, the said application was filed in the aforementioned suit for partition. It was also maintained by him that the amount of Rs. 66,000/-, mentioned in paragraph 3 of the written statement of the respondent and in his application, referred to above, related to a transaction other than the agreement in question. This has been explained in paragraph 3 of the written statement. It was further pointed out by learned counsel for the respondent that the amount of earnest money mentioned in the agreement deed in question, which was allegedly paid to the respondent, was Rs. 84,000/-and not Rs. 66,000/-. As for the authority of Mr. G.Haider Alghazali, Advocate, to make statement on behalf on Akhtar AH appellant, the contention of learned counsel for the respondent was that Mr. G.Haider Alghazali was duly appointed counsel of Akhtar Ali and, therefore, Akhtar All was bound by his statement. He referred to the cases of Haji Mewo and another Vs. Mst. Lai Khatoon (PLD 1962 (W.P.) Karachi 162), Ghulam Abbas Vs. Ajmal Shah and others (1989 S.C.M.R. 1124 (2), Amir and another Vs. Muhammad Bakhsh and others (A.I.R. 1929 Oudh 56), and Mathura Prasad and others Vs. Sita Rain and others (A.I.R. 1940 Oudh 314) to substantiate his plea. 5. I am unable to appreciate the plea of fraud raised by learned counsel for the appellants. As stated above, initiative in connection with the decision of the suit on the basis of special oath was taken by the appellants. Obviously, when they had made offer in this behalf, it was known to them that in the said application as well as paragraph 3 of the written statement the respondent had admitted the receipt of Rs. 66,OQO/-. Despite all this, they offered to settle the dispute on the basis of special oath prescribed by them. The respondent simply accepted their offer and it is difficult to say that while so doing, he had played fraud on the Court. There would have been some force in the argument of the learned counsel for the appellants, if the offer had been made by the respondent but since the offer had emanated from the appellants themselves, fraud can not be attributed to him. It is also noteworthy that even after the respondent had made the prescribed oath, the appellants did not protest by saying that his oath was false. Instead, their learned counsel made express statement to the effect that he had no objection to the report of the Local Commissioner, embodying the wording of special oath, and thereupon, the suit was decreed by the learned Senior Civil Judge. In the circumstances, respondent's admission with regard to the receipt of Rs. 66,000/-, which was known to the appellants all through, is of little avail to them. Also, as explained above, according to the respondent the said sum related to a different transaction. 6. Learned counsel for the appellants agreed to the proposal relating to special oath with open eyes and having full knowledge of the background of litigation amongst the parties and did not raise a syllable of protest after the special oath was made. Plea of fraud is an afterthought. It is, in fact, an attempt on their part to wriggle out of the solemn commitment made by them. Neither before nor after the making of oath, they formally retracted from the agreement in this regard. 7. As for the precedent cases relied by leaned counsel for the appellants, in the case of Saleem Ahmad, a party to the agreement to decide the suit on the basis of special oath made an application to resile from the said agreement. The application was filed before the oath was administered. Despite that it was held by the Supreme Court that the party making the application was bound by the oath. In the instant case no such application was ever made. The case of Saleem Ahmad is, therefore, distinguishable on facts and of no avail to the appellants. In the case of Asifa Sultana too, there was an application like the one referred to above, and the learned trial Court had found that the allegations made therein were correct. There is, however, no application hi the instant case nor there is any finding of the trial Court to the effect that fraud had been practised on the appellants in the matter of oath. Accordingly, the case of Asifa Sultana is also of no help to the appellants because its facts are different from those of the case before me. ^8. Whether fraud was practised on the appellants in relation to oath proceedings was a question of fact. If the appellants were serious in agitating that question they should have raised it before the learned trial Court to enable it to have affidavits or record evidence thereon and then give a finding as done in the case of Asifa Sultana. No such effort was made by the appellants. Instead, thenlearned counsel stated in unequivocal terms that he had no objection to report relating to the administration of special oath. It is, therefore, too late in the day for the appellants to assail the oath proceedings on the ground of fraud. 9. In view of the above 'discussion, I am not impressed by the plea - of fraud. The said plea is, accordingly, rejected. 10. This brings me to next argument of learned counsel for the appellants. It is, with regard to the authority of Mr. G.Haider Alghazali, Advocate, to agree to the oath proceedings. Photostat copy of his Vakalatnama contains following recitals:- "2. To present pleadings, appeals, cross-objections or petition for execution, review, revision, withdrawals, compromise or other petitions or affidavits or other documents as shall be deemed necessary or advisable for the prosecution of the said cause in all its stages. 3. To withdraw or compromise the said cause or submit to arbitration any differences or dispute that shall arise touching or in any manner relating to the said cause." There is not much difference between agreeing to the decision of a dispute ;>n the basis of special oath and the withdrawal of a suit or entering into a compromise therein. As noted above, learned counsel for Akhtar Ah' was authorised to withdraw the suit or enter into a compromise resulting in the disposal of the suit in accordance with the compromise. In the circumstances, although it has not been specifically mentioned in his Vakalatnama that he was empowered to settle the dispute in terms of special oath yet the said two recitals leave little room for doubt that he had the authority to agree to the disposal of suit on the basis of that oath. 11. View taken by me finds support form the observations recorded by a Division Bench of the erstwhile High Court of West Pakistan in the case of Haji Mewo and another, relied upon by learned counsel for the respondent. In the case of Haji Mewo and another, Mr. Abdul Hakim Abbasi, the Advocate representing a female party, namely, Mst. Shafiat, had in her absence, agreed to the settlement of dispute on the basis of special oath. It was contended that Mr. Abbasi had no authority to do so. This plea was rejected by the learned Division Bench in the following words: "But in the present case Mr. Abdul Hakim Abbasi being an Advocate of the High Court not only enjoyed special privileges of having an implied power to compromise cases on behalf of the parties for whom he appeared but was specially empowered under his vakalatnama filed in the lower Court to enter into compromise on behalf of both the appellants. In Ramzan and others Vs. Gopal Das and others (A.I.R. 1936 Lahore 199), a Bench of the Lahore High Court held as under:-The power to compromise an appeal is an implied power inherent in the position of an advocate in India and therefore no power-of-attorney is necessary to empower a counsel to agree to a valid and binding compromise. The power to compromise may be validly exercised by an advocate who has been authorised only to appear.' In this decision the learned Judges of the Lahore High Court followed the Privy Council decision in Sourendranath Ultra Vs. Tarubala Dasi (A.I.R. 1930 P.C. 158). In Hata v. Smail and others (A.I.R. 1932 Lah. 414), Jai Lai, J. observed as under:- 'Any act required or authorised to be done by a party to a suit can be done by his recognised agent provided the act falls generally within the scope of the latter's authority. It cannot be held that an offer to be bound by the oath of the other party must be made by the party personally and not by his duly authorised agent.' This view is also supported in the cases in Mst. Masita Bibi v. Khuda Bakhsh (A.I.R. 1923 All. 65), Muhammad Mahmud Choudhry and others v. Behary Lai Saha and others (A.I.R. 1930 Cal. 463), Jadu Sahu and another v. Chamra Sahu and others (A.I.R. 1939 Pat. 222) and Narain Singh and others v. Ear Bux Singh and others (A.I.R. 1939 All. 312). There is thus preponderance of views in . favour of the principle that prima facie a party to the judicial proceedings in sections 8 and 9 of the Oaths Act would include an Advocate of the party also. It appears to us that an Advocate empowered by a party to enter into a compromise etc., is fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been so instructed by his client. This appears to us to be a well settled principle of law." Similar opinion was expressed in the cases of Mathura Prasad and others and Amir and another, cited by learned counsel for the respondent. It may also by mentioned here that there was no clash of interest amongst two of the appellants in the case in hand, who made the offer of special oath, and the third one, namely, Akhtar Ali on whose behalf the offer was made by his counsel. It is not disputed that all three of them are real brothers. Further, no motive has been attributed to learned counsel for the appellants, namely, Mr. G.Haider Alghazali to go against the interest of Akhtar Ali. No application for review was made to the learned trial Court or before the learned appellate Court. As stated above, the attack of Akhtar Ali on the oath proceedings is an afterthought. Therefore, in view of dictum of the Supreme Court in the case of Ghulam Abbas, cited by learned counsel for the respondent, the appellants' plea against the oath proceedings cannot be accepted. 12. As against the above authorities, there is the solitary case of Din Muhammad relied upon by learned counsel for the appellants. It is a case decided by the former Chief Court of Sind. It was held in Din Muhammad's case that a counsel could not enter into a compromise unless specifically empowered by his client to do so. Opinion expressed in Din Muhammad's case, however, pales into insignificance in the face of large number of authorities supporting the stand taken by the respondent. Keeping in mind the facts of the case before me and preponderance of views with regard to the authority of learned counsel for Akhtar Ali appellant to agree to oath proceedings on his behalf, I hold that he was competent to do so, and Akhtar Ali appellant is bound by the said proceedings as well as by the decision founded on those proceedings. 13. Any statement made on oath is a solemn commitment and it is never made lightly, especially by a Muslim." In view of the sanctity of the Holy Quran, every Muslim shudders to make oath thereon. Even an illiterate Muslim is aware of the fact that he would incur the wrath of Almighty Allah if a false oath is made on the Holy Quran." English translation of some of the commands of Almighty Allah in this regard are as follows:- Turnest thou not Thy attention to those Who turn (in friendship) To such as have the Wrath Of Allah upon them?. They are neither of you Nor of them, and they Swear to falsehood knowingly. Allah has prepared for them a severe Penalty: evil Indeed are their deeds. They have made their oaths a screen (for their misdeeds): Thus they obstruct (men) From the path of Allah: Therefore shall they have A humiliating Penalty. Of no profit whatever To them, against Allah, Will be their riches Nor their sons: They will be Companions Of the Fire, to dwell Therein (for aye)! One Day will Allah Raise them all up (For Judgment): then Will they swear to Him As they swear to you: And they think that they Have something (to stand upon): No, indeed! they are But liars! The Evil One has Got the better of them: So he has made them Lose the remembrance Of Allah. They are the Party Of the Evil One. Trulv It is the Party Of the Evil One That will perish! (sura Al-Mujadila, verses 14 to 19, translated by A. YusufAli). 14. It can also be inferred from following verse of the Holy Quran that it is not only obligatory for a person making oath to abide by it but the person who agrees to the making of such oath has also been ordained to honour his commitment in this regard:-Fulfil the Covenant of Allah When ye have entered into it, And break not your oaths After ye have confirmed them; Indeed ye have naade Allah your surety; for Allah Knoweth all that ye do. {Sura Al-Nahl, verse 91, translated by A. YusufAli.) 15. By agreeing to make oath on the Holy Quran, the respondent took a very bold step. He was either fully convinced of the truth of his version or he was stupid enough to annoy Almighty Allah and thus suffer the serious consequences thereof, not only in this world but also on the Day of Judgment. Be that as it may, he is bound by his oath and so are appellants, who agreed to the making of the oath by him. It is no longer open to the appellants to say that the respondent be. deprived of .the worldly gain for which the said daring step of oath had been taken by him, especially when the appellants' counsel had not objected to the special oath made by him. In this view of the matter, the appellants cannot be permitted to wriggle out of their commitment and thus nullify the oath proceedings which were taken out at their instance. 16. In result, I hold that the judgment and decree passed on the basis of the oath proceedings are unexceptionable. This regular second appeal, therefore, fails, and is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 94 PLJ 1992 Lahore 94 [Rawalpindi Bench] Present: GUL ZARIN KlANI, J M/s. SINGER PAKISTAN LTD. and another-Appellants versus Sh. AINUL HAQ-Respondent F.A.O. No. 28 of 1991, dismissed on 18.9.1991 (Approved for reporting on 29.10.1991) Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —S.17(2)(vi)-Tenant-Ejectment of-Challenge to-Reconstruction of building- -Ground of--Respondent gave evidence that building was old and in bad shape and he wanted to dismantle it for raising a new building—Owner has every right to improve his property—Requirement of sanctioned plan has been met with-Held: There is no material evidence to discredit or cast doubts upon reasonableness of respondent's purpose—Appeal dismissed. [Pp.96&97]A&B Mr. Bashir Ahmad Ansari, Advocate for Appellants. Sheikh Muhammad Iqbal, Advocate for Respondent. Date of hearing: 18.9.1991. judgment This is a tenants' first appeal against an order of Rent Controller, Cantt. dated 24-3-1991, directing his ejectment on the sole ground that shop in his possession was reasonably, and, hi good faith required by the owner for its re­ construction in accordance with sanctioned building plan-Ext.P.2. Rent Controller gave forty five days to the appellant for vacating the shop. In support of the appeal, Mr.Bashir Ahmad Ansari, Advocate, has taken two points:-- First that sanctioned plan did not envisage reconstruction on the same site of the shop in possession of the tenant-appellant, and, therefore, ejectment cpuld' not take place on that ground, and second that there was tenancy for specified period enuring till the month of March 1991, hence ejectment petition instituted on 9-2-1989 was premature and not maintainable on the date of its filing. Both the points were found against the appellant and had little merits in them and were being merely noted for being turned down outright. Property No.65/5 Kashmir Road, Saddar Rawalpindi Cantt. of which a portion marked red in the plan attached to the ejectment petition was previously owned by Sheikh Abdul Majid. On 9-3-1971, by a deed in writing, it was let out to the appellant for term of ten years at the monthly rental of Rs.700/-. Lease was extendable for a further period by mutual agreement between the parties. Rent fixed at the inception of tenancy was enhanced in course of time to its present rate of Rs.3500/- per month. By deeds of sale registered on 30-3-1988 and 18-4-1988 marked Exts. P.3,P.4, previous owner sold property No.65/5 to respondent Sheikh Ainul Haque and intimated the sale of the property to the tenant-appellant. New owner applied to Cantt.Board, Rawalpindi, for allowing sanction to rebuild the property anew after complete demolition of the existing construction and submitted a plan to them of the proposed new construction. Cantt.Board by a resolution approved the building plan Ext.P.2 on 31-1-1089. • On 9-2-1989, respondent-owner applied to Rent Controller Cantt.Rawalpindi seeking ejectment of the appellant from the portion in its occupation on the sole ground that the entire property No.65/5 of which the remaining portion was already in his possession where he had established an "Eating House" was required to be demolished for the construction of a new building on the same site in accordance with building plan sanctioned by the Board. The appellant denied the averments as regards reconstruction of the property, and, its bonafide need and further that the tenancy ran for a specified period till March 1991, and consequently ejectment plea on the ground taken was not available till then.On 18-4-1989, Rent Controller settled following issues for determination of the ejectment case:— (!) Whether the petitioner intends to demolish the building in possession of the respondents for purposes of reconstruction?OPP (2) Relief. In support of the above issues, respondent examined himself as a party-witness as PW-1 and deposed that he intended to demolish and reconstruct his property in accordance with the sanctioned plan and that the tenancy was not for a specified period enuring till March 1991. It was further stated that there was no such agreement either with the previous owner or with him. Sale deeds of property and building plan sanctioned by the Board were placed on file and marked Exts.P.l to P.4. Appellant gave evidence of its three officers and two Experts to prove that building in question was in sound condition; it was neither old nor rickety nor dilapidated and thus was not needed for reconstruction. Rent Controller upon analysis of the above material placed before him held that need for reconstruction of the shop was established and consequently ordered ejectment of the appellant on that score vide his impugned order. - There is no dispute about the tenancy of its monthly rental. What is really disputed is the bonaflde requirement for reconstruction of the shop. It is common ground that property No.65/5 was a non-muslim evacuee owned. Though the record did not much assist on date and time of its first construction but the factor that it was owned by a'non-muslim evacuee gave some indication of its oldage. Respondent gave evidence that building was old and in bad shape and he intended to dismantle it for raising a new building on its existing site and for that purpose, he had already got a plan sanctioned from the Cantt. Board. Appellants tried to rebut this evidence and asserted that the building looked fine. Obviously for them it appeared'so, because it housed their business, but their word on it was not final. Owner has every right to improve his property to augment its value and utility to him. All around, old buildings are giving way to new ones. Rent Laws are not intended to arrest improvement of properties and the right of the owner to better it as he wished it. Embargo was with regard to a sanctioned plan. That requirement had already been met by the respondent. MrAnsari made much capital of the space left open in the sanctioned plan in the place of the existing shop in possession of the appellant and submitted with some real force that unless the respondent also raised construction on that the space presently occupied by the appellant, in strict terms of Section 17(2)(vi) of Rent Act 1963, ejectment of the appellant was not justifiable. In my opinion, it was not a reasonable construction of the sub-section and consequently is not acceptable to the Court. It makes a fetish of a mere technicality and stretches it to a breaking point. It is not the intent of law that reconstructed building must embrace and cover every inch of the site as a whole and not leave any space vacant on which previous building or part of it sought to be demolished existed. Such a construction shall militate against right of improvement of property by its owner and place unreasonable restrictions on his indubitable right in that direction. Therefore, the argument is not well founded and is repelled. Consequent upon expiry of the initial period of ten years, tenancy was not extended for a further term of ten years by any deed in writing. Statement on oath by the appellant duly corroborated by putting in approved plan from the ' Cantt. Board was a sufficient proof to establish his bonafides about requirement of the shop for its total demolition and reconstruction. There is no material evidence to discredit or cast doubts upon reasonableness of his purpose. Therefore, the appeal fails with costs and is dismissed accordingly. Appellant is allowed three months to vacate subject to payment of three months' rent in advance on 10th of each month. In default of payment of rent by the due date, appellant shall forfeit this concession. Records shall be returned. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 97 PLJ 1992 Lahore 97 Present: MUHAMMAD AMIR MALIK, J MUHAMMAD NAZIR-Petitioner versus SUPERINTENDENT OF POLICE, CANTT. LAHORE and 3 others-­ Respondents Writ Petition No.8944 of 1991, decided on 30.10.1991. Investigating Oflicer— [Pp.98&99]A Raja Abdur Rehman, Advocate for Petitioner. Date of hearing: 30.10.1991. order The S.P. has reported that the allegation that Mr. Yaqoob Head Constable had committed Zina with Mst. Rifat, the wife of Muhammad Nawaz respondent was not well founded. According to his report there was bickering between the husband and wife and nothing more. Since the report has been submitted by the S.P. after inquiry so if the petitioner still thinks that the offence has been committed as alleged in the writ petition, he may approach the competent Court of criminal jurisdiction for further action, if desired. Disposed of. 2. Before parting with the writ petition notice of illegality committed by Atif Hayat Inspector/S.H.O Police Station Batapur may be taken note of. It is clear from the inquiry report submitted by the S.P. that Mst. Rifat, the daughter of Muhammad Nazir writ petitioner and her husband Muhammad Nawaz respondent had differences. It is also stated at the bar by the learned counsel for the petitioner that a suit for dissolution of marriage was also pending in the Family Court at Lahore. However, when questioned the S.H.O has produced two applications, one by Ch. Muhammad Hanif (Chairman Union Council Jallo) and the other by Mst. Akhtar Bibi (the mother of Muhammad Nawaz respondent). The Chairman moved application to the, S.H.O that Mst. Rifat, wife of Muhammad Nawaz respondent, had committed theft at the house of her husband and so a report be entered. The other application by Mst. Akhtar to the S.H.O was with the allegations that Muhammad Nawaz was her son, her husband had died since 3/4 years, her son had been married since 3/4 months, his wife was estranged with him and was brought back on 1-10-1991, after reconciliation and during her son's absence from the house, sh£ (Mst. Rifat) had taken away an amount of Rs.9,500/- and some clothes. It is on the basis of these two applications that a police party was sent to fetch Muhammad Nazeer, Mst. Rifat etc. and consequently as is the inquiry report by the S.P., Mst. Rifat and their guest Din Muhammad were brought to the police station. The further allegation is that they were kept in the separate rooms for the night and the Head Constable committed Zina with Mst. Rifat. 3. Leaving aside this question of Zina which might be the subject of a private complaint, question arises, had the S.H.O jurisdiction to enter upon this matter where no cognizable offence had been committed or take any action in sending the police contingent to fetch up the petitioner and his family members, is it not entirely illegal? The answer must be in not positive. When questioned, the S.H.O had to admit that from the two applications moved by Mst. Akhtar and the Chairman no cognizable offence was made out, all the more so even if the wife had removed some articles. In the circumstances, no theft can be said to have been committed. It was purely a dispute of domestic nature between the husband and wife. Under Section 157 Cr.P.C. the police is to take cognizance of a congizable case and after registering the same to enter upon the investigation and where a non-congizable offence is committed only under the order of the competent Court as provided in Section 155(2) ibid a police officer can enter upon the inquiry. Neither the S.H.O. had the jurisdiction inasmuch as no cognizable offence has been committed nor any order from the Court had been obtained to enquire and report. The act of the S.H.O. in deputing the subordinates to fetch up the family members of the petitioner and Mst. Rifat was without jurisdiction. It was clear interference in the domestic life of a poor family and a dispute between the husband and wife of civil nature. Had this illegal act not been done by the S.H.O. neither .the habeas corpus petition nor the present writ petition would have been necessitated. The act of the S.H.O being illegal, without jurisdiction and undue interference in the domestic life of the citizens, calls for severe action. Since he is responsible for putting the petitioner to the expenses of moving the High Court so he (the S.H.O.) is burdened with Rs.3,000/- as costs for it. This he would pay in his personal capacity. The Inspector is directed to deposit the money in Court within 10 days for payment to the writ petitioner. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 99 plj 1992 Lahore 99 Present: MALIK MUHAMMAD QAYYUM, J Mian GHULAM NABI-Petitioner versus ASSISTANT COMMISSIONER/REGISTRATION OFFICER (RURAL), DEPALPUR and another-Respondents Writ Petition No. 9998 of 1991, accepted on 4.11.1991 Electoral Rolls Act, 1974--(XXI of 1974) —S.7--\oter--Transfer of vote of-Application of-Rejection of-Challenge to- Section 7 creates fiction whereby a person though not residing in an electoral area, is to be considered as a resident of that area if he owns or is in possession of a dwelling house or other immovable property in that area- Held: Order of Registration Officer is without lawful authority and of no legal effect-Case remanded for fresh decision in accordance with law. [Pp.lOO&101]A,B&C PLD 1975 S C 397 rel. Mr. Hasnat Ahmad Klian, Advocate for Petitioner. Mr. Maqbool Elahi Malik, Advocate General, Punjab , for Respondents. Date of hearing: 4.11.1991. judgment The petitioner who was enrolled as a voter in village Kalair Mamand Tehsil Depalpur District Okara applied to the Registration Officer for the transfer of his vote to village Haji Chand, Tehsil Depalpur District Okara on the ground that he was owner of immovable property in that village and further that he has shifted his residence there. This application was however, rejected by the Registration Officer observing that as the petitioner was not an ordinary resident of village Haji Chand and the immovable property had been purchased by him on 14 th October, 1991, he was not entitled to be enrolled as a voter in that village. This order of the Assistant Commissioner/Registration Officer dated 20th October, 1990 has been challenged in this petition. 2. The learned counsel for the petitioner has referred to Section 7 of the Electoral Rolls Act 1974 to contend that even if a person does not reside in a ward but he possesses or owns immovable property there, he is entitled to be enrolled in that particular area. Reliance has been placed on Ch. Abdul Razzaq vs.General Assistant (Revenue) with powers of Registration Officer, Okara (1988 S.C.M.R. 291). On behalf of the respondents, it is argued that before a person can be held entitled to be enrolled in a particular area, he must ordinarily reside there. 3. The case turns upon the interpretation of section 7(1) of the Electoral Rolls Act 1974 which reads as under:— "(1) Save as hereinafter provided a person shall be deemed to be resident in an electoral area if he ordinarily resides, or owns or is in possession of a dwelling house or other immovable property, in that area." It will be seen (that) under this provision a person is entitled to be enrolled as a voter in any electoral (area) in which he ordinarily resides or owns or is in possession of a dwelling house or other immovable property. It is quite obvious that the word (or) has been used in Subsection (1) in disjunctive sense. Although it is correct that the word "or" can some times be interpreted as "and" depending upon the context in which it has been used but the general rule as stated by Crawford in Statutory Constructions (1940 Edition) at page 322 is that ordinarily word "or" should be construed in disjunctive sense unless the compulsion of context requires otherwise. 4. It is to be seen that Section 7 creates by the deeming clause a fiction, -whereby a person though not ordinarily residing in an electoral area is to be considered as a resident of that area if he owns or (is) in possession of a dwelling house or other immovable property in that area. The true import of the deeming clause was spelt out by the Supreme Court in Mehreen Zaibun Nisa vs. Land Commissioner Multan & others (PLD 1975 S.C. 397) wherein the following statement of law appears at page 433:-- "When a statute contemplates that a state of affairs should be used to exist it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquilh in East End Dwelling Company Ltd. vs. Finsbury Borough Council (1) namely:- "Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." This observation had been referred to with approval in a large number of cases decided by the Courts in this sub-continent, as mentioned by the learned Judge in the High Court. (See Commissioner of Income-tax Bombay Presidency vs. Bombay Trust Corporation Ltd. (AIR 1930 P.C. 64), Agha Shaukat Alt v. Settlement and Rehabilitation Commissioner, Lahore (PLD 1965 Lah. 445), Begum Syed vs. Mst. Afzal Jehan Begum (PLD 1965 Lahore 967), Begum B.H. Syed versus Mst. Afoal jehan Begum and Abdul (PLD 1970 Supreme Court 29) and Abdul Hakim Khan versus Mrs. Doreen Barkat Ram (PLD 1973 Lahore 566)." 5. It follows from the above discussion that a person has to be considered as a resident of an electoral area not only if he actually resides therein but also if he either owns or is in possession of a dwelling house or is owner of other immovable property in that area notwithstanding that he may actually be residing somewhere else. This view is further supported by subsection (2) of Section 7 of the Electoral Rolls Act 1974 which provides that in case a person is entitled to be enrolled as a voter in more than one electoral area he can have himself registered as voter in any one of such areas for which he opts. Subsections (3), (4) and (5) of Section 7 are also indicative of the legislative intent that actual residence in a particular area is not only the criteria on which a person can claim to have himself registered as a voter in that area.In view of the above, this petition is accepted, the order of the Registration Officer is declared to be without lawful authority and of no legal effect and he is directed to .decide the application of the petitioner afresh in accordance with law within 7 days from today. No order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ1992 Lahore 101 PLJ1992 Lahore 101 Present: muhammad ilyas, J ANEES AHMAD-Petitioner versus Mst. SAMINA ASHRAF-Respondent T.A. No. 30/c of 1991, accepted on 23.9.1991 Family Courts Act, 1964 (W.P. Act, XXXV of 1964))-- —S.25-A-Suit for dissolution of marriage-Transfer of-Prayer for-Before instituting suit for dissolution of marriage at Faisalabad, respondent had herself opted to file her suit for recovery of dowry at Lahore—While pursuing dowry suit, she can take care of petitioner's suit for restitution of conjugal rights-Held: It would not be advisable to oblige petitioner to go to Faisalabad to defend suit for dissolution of marriage-Dissolution suit transferred to Lahore. ' [Pp.l02&103]A&B Mr. Anjum Kamal Mirza, Advocate for Petitioner. Respondent in person. Date of hearing: 23.9.1991. judgment Respondent, Msf.Samina Ashraf, has filed a suit against the petitioner, Anees Ahmad, for dissolution of her marriage with him. That suit is pending before Khawaja-Zafar Iqbal, Judge, Family Court, Faisalabad . The petitioner has also instituted a suit for restitution of conjugal rights which is being heard by the Judge, Family .Court (Senior Civil Judge), Lahore. He had, therefore, prayed that the respondent's suit for dissolution of marriage may also be transferred to the Court which is seized of his suit. It has been pointed out by the petitioner that the respondent's suit for recovery of dowry from the petitioner, is already pending a.t Lahore . According to the petitioner, the respondent has brought the suit for dissolution'of marriage at Faisalabad, with a view to causing harassment to him. 2. It was submitted by learned counsel for the petitioner that in the suit for restitution of conjugal rights, final arguments have been heard and it is on the verge of disposal. 3. It has not been denied by the respondent that her suit for recovery of dowry is pending at Lahore and that proceedings in the petitioner's suit for estitution of conjugal rights have, by now, reached the stage of final decision. 4. I do have regard for the convenience of the respondent, who is female, but I cannot be oblivious of the fact that before instituting the suit for dissolution of marriage, at Faisalabad, she had, herself opted to file her suit for recovery of dowry at Lahore. Thus, even if she is now residing at Faisalabad, she will have to come to Lahore to pursue her suit for recovery of dowry, and while so doing, she can also take care of the petitioner's suit for restitution of conjugal rights pending adjudication at Lahore. In the circumstances, it would not be advisable to oblige the petitioner to go to Faisalabad to defend the suit for dissolution of marriage brought by the respondent. 5. In this view of the matter, I transfer the respondent's suit for dissolution of marriage to the Family Court of Lahore which is hearing the petitioner's suit for restitution of conjugal rights. If by the time of receipt of the record of the suit for dissolution of marriage, the petitioner's suit for restitution of conjugal rights is decided, the District Judge, Lahore, will entrust her suit for dissolution of marriage to the Court which is seized of the respondent's suit for recovery of dowry provided that that Court has jurisdiction to hear her suit for dissolution of marriage. If the Court hearing the respondent's suit for recovery of dowry is not competent to try the suit for dissolution of marriage, the learned District Judge shall entrust the suit for dissolution of marriage to some other Court of competent jurisdiction. 6. With these observations, the petition is disposed of. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 103 [Rawalpindi Bench] PLJ 1992 Lahore 103 [Rawalpindi Bench] Present: MIAN NAZIR AKHTAR, J. MONNOO INDUSTRIES LTD.-Petitioner versus FEDERATION OF PAKISTAN, THROUGH SECRETARY, FINANCE and 2 others—Respondents Writ Petition No.309 of 1990 (also many other writ petitions) dismissed on 8.10.1991. (i) Reguibtory Duty-- —Import of goods—Regulatory duty—Lew of—Challenge to—Authority allowing exemptions was fully conscious that two kinds of levies, one, customs duty under Section 18(1) and other, regulatory duty under Section 18(2) of Act were holding field-If authority intended to grant exemptions in respect of customs duty as well as regulatory duty, it could have conveniently said so in S.R.O. 505(l)/88 as amended subsequently—Held: Exemption relates to custom duty under Section 18(1) of Act and has nothing to do with regulatory duty imposed under Section 18(2) of Customs Act-Held further: Exemption claimed by appellant cannot be allowed—Petitions dismissed. [Pp.l07&109]B,C&D PLD 1991 SC 329 rel. PLJ 1989 SC 51 and PLD 1970 SC 453 distinguished (ii) Regulatory Duty- —Import of goods-Regulatory duty-levy of-Challenge to-Federal Government is empowered under Section 18(2) of Customs Act, 1969, to Levy a regulatory duty on all or any of articles specified in First Schedule, at a rate not exceeding hundred percent of rate, if any, specified therein-Law has given vast discretion to Government in this matter—Held: Mere fact that Government -had granted partial or total exemption in respect of customs duties under Section 18(1) of Act, on different goods, is hardly sufficient to dub imposition of regulatory duty as unjust and unreasonable. [P.106]A PLJ 1990 Lahore 237 distinguished. Mr. Iintiaz Rashid Siddiqi, Advocate for Petitioner. Mr. Mumtaz AH Mirza, Standing Counsel for Respondents. Date of hearing: 2 and 5-10-1991. judgment This judgment will dispose of writ petition No. 309 of 1990 and writ petition Nos. 331, 356, 379, 380, 381, 421, 423, 454, 455, 457, 458, 459, 460, 461, 473, 484, 488, 528, 577, 598, 599, 600, 601, 620, 625, 626, 656, 667, 668, 669, 670, 671, 719, 749, 751, 752, 753, 756, 757, 802, 816, 830, 831, 833, 844, 846, 877, 884, 888, 891, 908, 909, 910, 923, 925, 926, 927, 945, 953, 954, 958, 959, 964, 966,1000,1001,1004, 1005,1033, 1034, 1038, 1047, 1061, 1063, 1096, 1097, 1164, 1189, 1237, of 1990, 36, 38, 41, 44, 46, 47, 76, 99, 101, 128, 182, 183, 210, 211, 254, 293, 294, 295, 321, 357, 361, 367, 368, 383, 433, 434, 477, 496, 495, 518, 573, 575, 609, 617, 630, 662, 686, 781, 782, 783, 784, 785, 796, 798, 800, 801, 802 of 1991, 860, 861, 865, 939, 941, 859, 879, 977, 1004, 1030, 972 of 1991, 822, 971, 911, 976, 1044, 1045, of 1991 as common questions of law and facts are involved in the same. 2. The petitioner has assailed the validity of regulatory duty levied by the Federal Government at the rate of Rs. 5/- per K.G on the imported goods. In the alternative, it has been prayed that the duty imposed has been exempted by virtue of S.R.O. No.505(l)/88 as amended subsequently. 3. The petitioner is a public limited company duly registered under the law and is engaged in the business of manufacturing and processing of goods made by artificial fibre (man-made fibre) which is imported from different countries. The petitioner imported Viscose staple Fibre and filed bill of entry before the Collector Customs. The lunctionaries working under the Collector raised demands of different customs duties as well as regulatory duty at the rate of Rs. 5/- per K.G. The petitioner is said to have paid the customs duty but challenged the levy of the regulatory duty through the present petition. 4. The learned counsel for the petitioner as well as the learned counsel in the connected petitions have raised the following points:— (i) The imposition of the regulatory duty is illegal unjust and unreasonable because on the one hand the Federal Government has granted exemption in respect of customs duties and on the other imposed additional duty in the shape of regulatory duty. Reliance was placed in case of Ittfaq Foundry vs. Federation of Pakistan. (P.L.J 1990 Lahore 237). (ii) The regulatory duty is a customs duty and the exemption granted by virtue of SRO 505(l)/88, dated 26.6.1988 as amended by SRO No.639(l)/89, dated 17.6.1989 is applicable to it as well. Originally 40% advalorem customs duty was specified in respect of imported goods included in the First Schedule of the Customs Act. However, subsequently a fixed amount of Rs. 15/- per K.G. was prescribed by the above referred SROs and the Customs duty in excess of Rs. 15 per K.G stood exempted. In this connection they placed reliance on Nawab Brothers vs. Collector of Customs Karachi and another. (P.L.D 1977 Karachi 947). (iii) The subsequent amendment made in SRO 505(l)/88 dated 26.6.1968 itself shows that originally the exemption granted was not relatable to the levies under sub-section (1) of Section 18 only. (iv) The exemption granted under Section 18 of the Customs Act is equally applicable to the duties levied under sub-section (1) of section 18 and regulatory duty imposed under sub-section (2) of the said section. In similar circumstances, the Central Board of Revenue had issued letter No. l(97)/Original/83, dated 16.1.1984 and since then the department has been consistently following the practice of allowing exemptions in respect of amounts of levies under section 18. Hence the departmental practice even if erroneous, should not be disturbed. In this connection reliance is placed on Nazir Ahmad Vs. Pakistan and 11 others (PLD 1970 S.C.453)& Messrs Radaka Corporation and others vs. Collector of Customs and another (PLJ 1989 SC 51) (v) There is no notification holding the field in respect of the years 1991-92, hence the goods imported during the said period cannot be subjected to payment of regulatory duty. On the other hand Mr. Mumtaz Ali Mir/a learned Standing Counsel urged that the regulatory duty was validly levied by the Federal Government by virtue of provisions of sub-section (2) of Section 18 of the Customs Act and was not unreasonable. As regards the exemption claimed by the petitioner, he submits that the exemption granted by virtue of SRO 505(I)/88 as amended by SRO 639(1) of 1989 is purely relatable to the customs duties levied under sub-section (1) of Section 18 of the Act and has no nexus with the regulatory duty imposed under Section 18(2) of the Act. In this connection, he has referred to the precise language used in the above referred SROs which speak of customs duties and the first schedule to the Act which has relevancy to the customs duties imposed under section 18(1) of the Act. He further submits that there was no departmental practice to allow exemption in respect of regulatory duty because the Government has been imposing the regulatory duty and the department consistently demanding the said duty from the petitioner. As regards the letter of Central Board of Revenue (CBR C I(97)Machinery/83 dated 16.1.1984, he submits that it might have been issued rightly or wrongly in respect of the exemptions granted earlier but it has no bearing in respect of the recent exemptions which are clearly relatable to customs duties imposed under sub-section (1) of section 18 of the Act. Meeting the objection that there was no notification holding the field levying regulatory duty for the year 1991-92, he has placed on the record notification C.No.6/1991-C.B., dated 1st July, 1991 and urged with reference to provisions of sub-section (3) of Section 18 that the duty could be recovered from the date of the issue of the notification. He was not sure whether the notification was actually published in the official Gazette or not. He undertook that he would verify the correct position and inform the court accordingly. After the judgment was reserved, the learned Standing Counsel placed on the record Notification No.S.R.O. (1)/91, dated 1st July, 1991, published in the Gazette on 3rd July, 1991. 5. By virtue of the provisions of sub-section 1 of Section 18 of the Act, the Legislature is competent to levy customs duties at such rates as are prescribed in the first schedule and the second schedule or under any other law for the time being in force. The Federal Government is empowered by virtue of sub-section (2) of Section 18 of the Act to levy a regulatory duty on all or any of the Articles specified in the first Schedule at a rate not exceeding hundred percent of the rate, if any, specified therein. Sub-section (3) of the Act makes it clear that the regulatory duty levied under sub-section (2) shall be in addition to any duty imposed under sub-section (1) or under any other law for the time being in force and be leviable on and from the day specified in the Notification issued under that sub-section, notwithstanding-the fact that the issue of the official Gazette in which such Notification appears is published at any time after that day. A bare reading of sub-section (2) of Section 18 of the Act makes it clear that the regulatory duty is distinct from'and in addition to the customs duties leviable under sub-section (1) of Section 18, of the Act. Regulatory duty can be imposed by the Federal Government annually subject to such conditions, limitations or restrictions as it deems fit. Thus, the law have given a vast discretion to the Government in the matter. The regulatory duty cannot exceed 100 percent of the rate specified in respect of the customs duties levied under th"e first Schedule. The Government appears to have acted justly and fairly in exercising the discretion by imposing regulatory duty to the extent of only one third of the maximum permissible limit. The mere fact that the Government had granted partial or total exemption in respect of customs duties levied under sub-section (1) of section 18 of the Act on different goods, was hardly sufficient to dub the imposition of regulatory duty as unjust or unreasonable. The matter entirely rests in the discretion of the Government and there is nothing to show that the discretion was exercised in an arbitrary or perverse manner. Hence, the judgment in the case of Ittefaq Foundry, relied upon by the petitioners' learned counsel is of help to them. 6. Coming to the question as to whether the exemption granted by virtue of SRO No.505(l)/88 dated 26.8.1988 as amended by SRO No.639(l)/89 dated 17.6.1989, cover the regulatory duty as well, the contents of the said Notifications should be seen first. The said SRO. reads as under:- "In exercise of the powers conferred by Section 19 of the Customs Act, 1969(1V of 1969), and in suppression of this Ministry's Notification No. SRO.505(l)/86, dated the 29th May, 1986, the Federal Government is pleased to direct that the goods specified in Column(2) of the table below and falling within the heading/sub-heading numbers of the First Schedule to the said Act specified in column (1) of the said table shall be exempt from so much of the customs duties chargeable thereon as' are in excess of the rate of duty specified in column (3) of that table". It may be .mentioned that the regulatory duty pertaining to the year 1989/90 was imposed by virtue of SRO No. 679(l)/89 dated 29.6.1989. A number of customs duties on various goods were already holding the field. The authority allowing exemptions was fully conscious of the fact that two kinds of levies, one, the customs duty under sub-section (1) of Section 18 and the other, regulatory duty under sub-section (2)- of section 18 of the Act were holding the field. Therefore, if the authority 'intended to grant exemptions in respect of the customs duties, as well as the regulatory duty, 'it cotild have conveniently said so in SRO.505(l)/88 as amended subsequently. However, the said SRO has merely granted exemption in respect of the custom duties levied on goods falling within the heading/sub-heading numbers of the First Schedule to the customs Act (and specified in column No. 2 of the table of the SRO). It makes a pointed reference to the "customs duties" chargeable on the said goods. Admittedly the First Schedule to the Act embodies the customs duties imposed under sub-section (1) of Section 18 of the Act and has nothing to do with the regulatory duty imposed under sub-section 2 of Section 18. 7. In the case of Sohail Jute Mills Ltd. and others Vs federation of Pakistan through Secretary Ministry of Finance and others (P.L.D 1991 Supreme Court 329) an argument was raised that the exemption granted under Section 19 of the Customs Act was so general and extensive that it would be available, subject to the notified conditions, limitations and/or restrictions, to the customs duties of both categories, the one leviable under the Customs Act and the other under the law for the time being in force. The said contention was repelle.d for three reasons, one of which was that the very words of the notification allowed exemption by a reference to goods and the duties mentioned in the First Schedule to the Customs Act. It was emphasized:-- "Nothing more could be read into it and the levies made under other laws could not be got affected by such a notification". On a parity of reasoning, the exemption-Notification (SRO-505(l)/88) is purely relatable to the Customs duties imposed under sub-section (1) of Section 18 and has no nexus with the lew of regulatory duty under Section 18(2) of the Act, which stands unaffected. Had the exemption been couched in general words to the effect that customs duties levied under Section 18 of the Act were wholly or partly exempted, then perhaps the petitioner could have claimed exemption in respect of the regulatory duty on the ground that it was also a kind of customs duty (as held in the case of Nawab Brothers Vs. Collector Customs (PLD 1977 Karachi 947). However, the wording of SRO 505(l)/88 not being general in character, the exemption claimed by the petitioner cannot be allowed. 8. The exemption notification SRO 505(l)/88, grants exemptions in respect of customs duties chargeable on goods falling within the First Schedule of the Act. The subsequent amendment made (through SRO 639(l)/89 dated 17.6.1989) in SRO 505(l)/88, brings in some new sub-heading numbers, i.e., 55.01 to 55.07 which relate to man-made fibres. The rate of duty for the man-made fibre is shown as Rs. 15/- per K.G. Meaning thereby that the customs duty chargeable on man-made fibre under the First Schedule of the Act could be Rs. 15/- Per k.g. only and the duty beyond the said amount was exempted. It may be mentioned that originally 40 percent advalorem customs duty was prescribed in the First Schedule for the man-made fibre and the same held the field till SRO 639(l)/89 was issued on 17.6.1989. Apparently the object was to grant exemption of customs duty, if on calculation made at the rate of 40% advalorem it was found to be inexcess of duty calculated at the rate or Rs. 15/- per K.G. The Legislature appears to have amended the provision relating to 40% advalorem customs duty and provided customs duty at the rate of Rs.15 per K.G. through Finance Act of 1989. After the above referred amendment brought about through Finance Act of 1989 now the Customs Duty is Rs.15/- per K.G. and the same rate has been specified in SRO 639(1)/89 dated 17.6,1989. The two rates being the same, the question of exemption in respect of the man-made fibre does not arise. It is entirely for the Government to re-consider the matter and allow some benefit in the shape of exemption to the petitioner and other traders. 9. As regards the so-called departmental practice, there does not appear to be any consistent practice of construing exemption notification issued under Section 19 of the Act to cover customs duties as well as the regulatory duty levied under Section 18 of the Act. The earlier letter No.CBR-C.No.l(97)- Machinery/83, dated 16.1.1984 was relatable to the exemptions granted through some notifications which have not been placed before this court. Heftce, it cannot be said whether the Central Board of Revenue had correctly construed the exemption Notification or not. In the present case, we are concerned with the exemption Notification, S.R.O. 505(1)88, dated 26.6.1988 as amended subsequently which does not admit of the construction placed on it by the petitioners' learned counsel that it covers all kinds of levies made by the Legislature under sub-section (1) of Section 18 or by the Federal Government under sub-section (2) of Section 18 of the Act. Conversely, the said notification is clearly relatable to "the customs duties" in respect of the goods falling within the heading and sub-heading number of "(lie First Schedule" of the Act. Therefore, the petitioner cannot take advantage of the letter issued by the CBR in the year 1984, particularly when the factum of the so called consistent practice is otherwise falsified by the consistent and persistent demand of regulatory duty by the Customs Authorities, The judgment in the cases of Nazir Ahmad and Radaka Corporation referred to by the petitioner's learned counsel proceed on distinguishable facts and arc not relevant in the present case. 10. The argument that no notification holds the field in respect of the period pertaining to the year 1991-92 has no force either. The notification was duly issued on 1.7.1991 and then published in the official Gazette on 3.7.1991. Therefore, the Customs Authorities can lawfully recover the Regulatory Duty for the eriod 1991-92 as well. 11. For the foregoing discussion, I find no merit in the present petition and the other connected petitions which are dismissed with costs. The petitioners were allowed interim relief for release of the imported goods subject to furnishing of bank guarantee (or insurance guarantee in some cases). It is clarified that the Customs Authorities shall be at liberty to recover the regulatory duty due from the petitioners through encashment of the bank/insurance guarantees furnished by them. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 109 PLJ 1992 Lahore 109 Present: MUHAMMAD ILYAS J. SIRAJ DIN-Petitioner Versus LAHORE DEVELOPMENT AUTHORITY, and 2 others-Respondents Civil Revision No.ll45/D of 1991, dismissed on 1.10.1991. (Approved for reporting on 13.11.1991). (i) Civil Procedure Code, 1908 (V of 1908)- —-O.XVII R.3-Plaintiff-Evidence of--Closing of-Challenge to-Contention that certain documents placed on record by plaintiff were not taken into consideration by trial court while dismissing suit-No document can be taken into account while deciding a suit unless it is duly produced and proved by plaintiff-Record shows that after framing of issues, as many as four opportunities were allowed to petitioner to produce evidence but he failed to do so-Held: Petitioner was highly negligent and careless in pursuing his case and as such, trial court is not to blame for closing his evidence—Petition dismissed. [P.110JB (ii) Civil Procedure Code, 1908 (V of 1908)-- -—O.XVII R.3-Plaintiff-Evidence of-Closing of-Challenge to-Contention that plaintiff was not given last opportunity to produce evidence and his evidence could not be closed-Held: Provisions of Order XVII Rule 3 do not require that before closing evidence, last opportunity shall be given to party at fault-Contention repelled. [P.110]A Ch.Abdul Razzaq, Advocate for Petitioner. Date of hearing: 1.10.1991. order This civil revision has arisen out of a suit brought by the petitioner, Siraj Din, against the respondents, Lahore Development Authority and 2 others. The Civil Judge, who was seized of the suit, allowed several opportunities to the petitioner to produce evidence but he had failed to do so. His evidence was, therefore, closed and. the suit dismissed. Petitioner went in appeal before an Additional District Judge but without success. Hence this civil revision. 2. It was contended by learned counsel for the petitioner that he was not given last opportunity to produce evidence and as such his evidence could not be closed. Provisions of Order XVII, Rule 3 of the Code of Civil Procedure do not require that before closing the evidence last opportunity shall be given to the party at fault. Argument addressed by the learned counsel is, therefore, misplaced and cannot be accepted. 3. The next point canvassed by learned counsel for the petitioner was that the petitioner had placed certain documents on the record but they were hot taken into consideration while dismissing the suit. No document can be taken into account while deciding a suit unless it is duly produced and proved in accordance with law. Admittedly, no document was produced or proved by the petitioner. Learned counsel has not referred to any document of which judicial notice should have been taken by the learned Civil Judge without anything having been done by the petitioner. In the circumstances, even if he had placed some documents on the record, they could not be taken into account while deciding the suit. Record shows that after the framing of issues as many as four opportunities were allowed to the petitioner to produce evidence but he had failed to do so. This reveals that he was highly negligent and careless in pursuing his case and as such the learned trial Court is not to blame for closing his evidence. In this view of the matter, judgments and decrees passed by the two Courts below are unexceptionable. 4. Resultantly, this civil revision fails. It is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 110 PLJ 1992 Lahore 110 Present: mian ALLAH nawaz, J. ABDUL MAJID-Petitioner versus DEPUTY COMMISSIONER, SIALKOT, etc.-Respondents Writ Petition No.763 of 1978, partly accepted on 22.7.1991. (Approved for reporting on 10.8.1991). (i) Constitution of Pakistan, 1973-- -—Art.l99--Evacuee trust property-Auction of--Challenge to—Whether petitioner has no locus standi to file petition-Question of-It is a settled principle pf law that Constitutional jurisdiction can be exercised only at instance of an aggrieved party-It is imperative for petitioner to show that any of his proprietary or personal rights has been invaded-It is enough if petitioner shows that he had some personal interest in case—Held: Petitioner had a locus standi to file Constitution petition-Held further: Petitioner is not entitled to any relief in Constitution petition but he can approach Evacuee Trust Board for sale of this property in his favour. [Pp.ll4&115]B,C,D&E PLD 1969 SC 223 rel. (ii) Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)-- —S.4(2)(d)—Evacuee trust property—Auction of—Challenge to—It is evident that neither Tehsildar nor Deputy Commissioner had authority to make sale of property in favour of respondent No.3--Held: Impugned orders are wholly without jurisdiction and merely a mullity in-eye of law. [P.114]A Mr.Ghulam Hussain Awan, Advocate for Petitioner. Cli.M.Z. fOtalil, Advocate for Respondent No.l. Rana Muhammad Arif, A.A.G. for Respondent No.2. SJamshed All, Advocate for Respondent No.3. Dates of hearing: 21 and 22.7.1991. judgment The dispute in this Constitution petition relates to land measuring 5 kanals 9 marlas in Khasra No.S~ Khata No.21 situated in revenue estate Goloo Phala Tehsil and District Sialkot. 2. On facts, the case of the petitioner is that this land was un-allotted. evacuee property and was contiguous to the lands of the petitioner. In year, 1973 this land was auctioned. The auction proceedings were set aside at the instance of Shakoor Ahmad deceased (herein respondent No.3). Shakoor Ahmad had a covetous eye on this land and in collaboration with Tehsildar, Sialkot (herein respondent No.2) managed to have fictitious auction proceedings in respect of it. In these proceedings. Shakoor Ahmad was shown to be highest bidder; his bid was transmitted by Tehsildar to Deputy Commissioner for confirmation. The report of Tehsildar was endorsed by Assistant Commissioner, Sialkot and confirmed by the Deputy Commissioner, Sialkot by means, of order dated 28.9.1976. These surreptitious proceedings were kept closely guarded secret till November, 1977 when respondent No.3 started to lay claim to this land. Having -come to know about it the petitioner filed a review petition which was dismissed by the Deputy Commissioner vide order dated 20.5.1978. The petitioner has challenged the validity/propriety of the orders dated 28.9.1976 and 20.5. WS in thi; petition. 3. Learned counsel for the petitioner in support of this petiubn raised following points:- (1) It was contended that the land in dispute was not agricultural land but was "uijiJs(ytS^Sr" and was in fact, vacant piece of land. As such it could not be put to auction as an agricultural land. The Deputy Commissioner, Sialkot, respondent No.l had committed error of law by not examining the nature of this land and had confirmed the collusive bid in mechanical manner, without application of mind. (2) Respondent No.2 had no authority to hold the auction of an evacuee land. According to the learned counsel the proceedings from holding of auction to the passing of the final order were clearly without jurisdiction. (3) It was lastly argued that the auction proceedings from commencement to the passing of the final order were conducted in surreptitious manner. The land in dispute was extremely valuable and was sold away at throwaway price. 4. Syed Jamshed Ali, Advocate, appearing on behalf of the LRs of respondent No.3 supported the impugned decision. It was contended that the property in dispute was neither agricultural land nor an evacuee property but was an evacuee trust property, and the petitioner has no locus standi to object to its transfer in favour of respondent No.3. Reliance was placed on Abdul Majid v. Pakistan (PLD 1967 Lahore 459). 5. Learned counsel appearing on behalf of respondent No.l did not support the impugned orders. It was contended that this property was, in fact, an evacuee trust property and vested in Federal Government. Neither the Deputy Commissioner nor the Tehsildar had any authority to make the sale of this property through public auction. According to the learned counsel the proceedings from start to finish were coram-non-judice and mere a nullity in the eyes of law. 6. Khalid Nawaz EAC(R) appeared alongwith the relevant record on Court's order; he prepared a chart of entries relating to the nature of land prepared from the record of rights of this land. 1 have heard the learned counsel for the parties at considerable length and perused the record. There is no dispute between the parties that the property in dispute is neither agricultural evacuee land nor an evacuee agricultural plot. But, in fact, is an evacuee trust property dedicated to Marrian. This property under sub-section (1) of Section 6 of Pakistan {Administration of Evacuee Property) Ordinance (XV of 1949) was vested in Custodian with effect from 1 st March, 1947. Under sub-section (2) of this section it was laid down that evacuee property belonging to trust for religious or charitable purposes shall remain vested in the Custodian for limited time for a specified purpose only. Thereafter the Pakistan (Administration of Evacuee Property) (Second) Ordinance, 1956, (Ordinance No.XX of 1956) was enforced on 17th November, 1956. Under subclause (2) of Section 7 of this Ordinance these properties were vested in the Custodian as trustee only till such time as fresh trustees were appointed in the manner provided by law. This Ordinance was repealed by Pakistan (Administration of Evacuee Property) Act, 1957, (Act No.XII of 1957) wherein under sub-section (2) of Section 7, the Custodian was given the possession of these properties as a trustee only until such time, the new trustees were appointed. 8. On 26th march, 1958 the Displaced Persons (Comp. & Rehab.) Act, 1958 (Act No-XXVIII of 1958) was promulgated with an object in the words of preamble to "provide for the payment of compensation to certain displaced persons for 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". Under Section 3 of the Act, a notification was issued under which evacuee properties, other than agricultural land in the West Pakistan were acquired by Federal Government. Thereby the right, title and interest in evacuee properties were extinguished and these properties were vested wholly in the Central Government free from encumbrances. This notification covered both the evacuee properties as well as evacuee trust properties. However, the both properties were treated differently under the Act. Under sub-section (2) of Section 4 of the Act evacuee trust properties were'excluded from compensation pool constituted under Section 4-A of the Act. This law remained in field till the Evacuee Trust Property (Management and Disposal) Ordinance, 1974 (XVI of 1974) was promulgated whereunder the Evacuee Trust Board was constituted. This Ordinance was replaced by the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), (hereinafter referred to as Act XIII of 1975). From the survey of the Act XIII of 1975 it appears that these properties were vested in Federal Government. The Federal Government was mandated to constitute Evacuee Trust Property Board for management and disposal of these properties. This Board was to be a body corporate with perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to make contract. Under clause (d) of sub-section (2) of Section 4 of the Act -the Evacuee Trust Board was empowered to sell, dispose of, transfer or make an endowment or otherwise manage these properties subject to the condition of prior approval of the Federal Government and subject to condition that it was consistent with the object of the Act or scheme or for any object which was considered to be public purpose by the Federal Government. 9. From the aforesaid survey of the law dealing with the Evacuee Trust Properties it is evident that neither Tehsildar nor Deputy Commissioner had the authority to make the sale of this property in favour of respondent No.3.1 have no difficulty in coming to the conclusion that the orders of Deputy Commissioner dated 28.9.1976 and 20.5.1978 are totally destituted of legal authority. These orders are wholly without jurisdiction and mere a nullity in the eye of law. These orders are uncreative of any legal right in favour of respondent No.3. In view of this, the impugned orders are declared to have been passed without jurisdiction and without any lawful authority. 10. Having dealt with the question regarding the vires of impugned orders. I revert to objection of respondents regarding the maintainability of this constitution petition. From the resume of the case it is clear that the land in dispute is situated in the neighbourhood of land owned by the petitioner and that the petitioner had been/is in continuous possession of this land making serious efforts to obtain this land from the Settlement Authorities taking it to be an evacuee un-allotted land. The petitioner submitted an application to the Deputy Commissioner for setting aside the order dated 28.9.1976 by which the auction proceedings were confirmed in favour of respondent No.3, as also maue prayer to the effect that the property in dispute be transferred to him. 11. It is a settled principle of law that constitutional jurisdiction can be exercised only at the instance of aggrieved partv. It is imperative for the petitioner to show that any of his proprietary or personal right have been invaded. The question of locus standi has not been free from difficulty. This question had to be examined within the frame-work of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This Article contains two expressions namely, "if it is satisfied that no other adequate remedy is available by law" and "aggrieved party". From these two expressions it is clear that relief can be granted to petitioner only if he can successfully show that he is an aggrieved person within the meaning of this Article. It is thus clear that it' is imperative for the petitioner to show that a legal right has been infringed. The right considered sufficient for filing the petition is not necessarily a right in strict juristic sense. It is enough if applicant shows that he had some personal interest in the case. This point came up for consideration in Mian Fazal Din v. Lahore Improvement Trust Lahore and another (PLD 1969 SC 223). In this case Mian Fazal Din was the owner of house constructed on plot No.86-E/l in the Gulberg-III Scheme of the Lahore Improvement Trust. He filed a constitution petition in High Court challenging therein a resolution of Lahore Improvement Trust dated 31st July, 1964 allotting 8 kanals 1 marla and 40 square feet of land out of Plot No.94-E/l in the said scheme to respondent No.2 on the ground that Plot No.94/E/l was earmarked in the scheme forthe construction of a market and induced the petitioner to purchase Plot No.86-E/l and build a house thereon, the petition was dismissed by the High Court by holding that the petitioner had no locus standi to challenge the transfer in favour of respondent No.2. Feeling dissatisfied \ this order of the High Court Fazal Din filed an appeal. The objection regarding maintainability of the petition was reiterated before the Supreme Court. The objection was overruled. After the survey of whole case law in field, his Lordship Mr.Justice Hamoodur Rehman (as he then was) speaking for the Bench held that the petitioner had locus standi to file the constitution petition. The relevant passage from the judgment may be quoted with advantage:- "This principle governing an appeal cannot be invoked in the present case, particularly, since the abandonme-nt of a privilege or facility undertaken to be provided by the Improvement Trust cannot but have prejudicially affected the residents of the locality who had come to live therein not only on-the expectation but on the representation contained in the scheme, as sanctioned by the Government, that such a facility would be provided. The deprivation of such a facility would in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government". 12. This view was reiterated in Juvenile Jail, Landhi Karachi in Re: (Suo Motu notice) 1990 P.Cr.L.J. 1231). It was held that the expression "aggrieved party" was given a narrower construction by -the superior courts. However, after the monumental judgment of the Supreme Court in Mian Fazal Din v. Lahore Improvement Trust Lahore and another reported in (PLD 1969 SC 223} the superior Courts had been placing liberal construction on the above term "an aggrieved party" used in clause (a) of para 1 of the Article 199. 13. Applying these principles to the facts of the case it is clear to me that the petitioner had a locus standi to file the constitution petition. The objection of respondent is accordingly repelled. 14. Now the only question left for consideration is whether the petitioner is entitled to grant of any relief in this petition. As already noted above that the property in dispute is an evacuee trust property (and) it stands vested in the Federal Government. Neither the Deputy Commissioner nor the Tehsi'dar had authority in any manner to deal with this property. This property belongs to God ^Almighty and can be sold away on grounds and in accordance with the procedure embodied in Act XIII of 1975. I am, therefore, of a considered view that the petitioner is not entitled to any relief in this constitution petition. 15. The upshot of the foregoing analysis is that this petition partly succeeds I and the impugned orders are hereby set aside. The petitioner may if so advised approach the Evacuee Trust Board for sale of this property in his favour. There I shall .be no order as to costs. (MBC) (Approved for reporting) Petition partly accepted.

PLJ 1992 Lahore 116 PLJ 1992 Lahore 116 [Bahawalpur Bench] Present: MUHAMMAD munir KHAN, J. SHAH NAWAZ-Petitioner versus CIVIL JUDGE, RAHIMYAR KHAN, and 3 others-Respondents Writ Petition No.ll75/BWP of 1990, dismissed on 4.6.1991 Written Statement- -—Specific performance of agreement-Suit for-Written statement alleged to have been filed on behalf of respondent No.3 with aud and misrepresentation conceding claim—Permission to file fresh written statement—Grant of— Challenge to—Courts below have concurrently found issue about fraud in favour of respondent No.3 and against petitioner-Question in dispute was/is more or less a question of fact-Courts below have not flouted provisions of relevant law—Held: There is no misreading or non-reading of evidence on part of courts below and their judgments do not suffer from legal infirmities- Petition dismissed. [P.117]A&B Mr^i.R. fayyab, Advocate for Petitioner. Date of hearing: 4.6.1991. order Through this Constitutional petition, Shah Nawaz, petitioner, seeks declaration to the effect that the order dated 4.9.1990 of Civil Judge, Rahimyar Khan and order dated 5.11.1990 passed by the learned Additional District Judge, Rahimyar Khan are illegal, without lawful authority and of no legal effect. 2. The facts leading to this petition briefly are that Shah Nawaz, petitioner, filed a suit for the specific performance of contract against Mst. Sat Bharai and Muhammad Azam, respondent, in the Court of Senior Civil Judge, Rahimyar Khan, which was entrusted to Civil Judge Rahimyar Khan. On 29.4. 1989 written statement was filed in Court on behalf of Mst. Sat Bharai respondent No.l. In the written statement she admitted the suit/claim of the petitioner. On 28.2.1990 an application thumb marked by her, was filed in the Court by Khadim Hussain Khan, Advocate under Section 151 CPC. In this application, she disowned the written statement dated 29.4.1989 stating that fraud and misrepresentation had been committed by the petitioner. So the proceedings with regard to the filing of earlier written statement on her behalf may be set aside and she may be allowed to contest the suit. This application was resisted by the petitioner. The trial Court framed following issues. 1. What is the effect of application of A/sf .Sat Bharai dated 28.2.1990? OPP 2. Relief. The parties produced evidence. A/sr.Sat Bharai appeared as AW1. She produced Muhammad Ismail, AW2 and Jam Gaila AW3. In rebuttal the petitioner produced nine witnesses namely Muhammad Mustafa RW1, Muhammad Ashraf Advocate RW2, Mirza Muhammad Saleem Advocate RW3, Abdul Qadir Advocate RW4, Rana Muhammad Akram petition writer RW5, Munir Ahmad RW6, Mushtaq Ahmad Clerk of Advocate RW7, Arshad Mehmodd Advocate RW8 and Shah Nawaz, petitioner, appeared as RW9. 3. Believing the plea of Mrt.Sat Bharai and the evidence produced by her and disbelieving the evidence produced by the respondent against petitioner/plaintiff, the trial Court accepted the application on 4.9.1990, allowing Mst.Sat Bharai to file fresh written statement and to withdraw the previous written statement dated 29.4.1989 and special Power of Attorney dated 10.12.1989. Feeling aggrieved thereby, the petitioner filed revision which was dismissed by the learned District Judge, Rahimyar Khan on 5.11.1990. Hence this petition. 4. Learned counsel for the petitioner contended that after having filed written statement on 29.4.1989 and also having appeared in the Court through Attorney on 13.1.1990, Mrt.Sat Bharai was estopped from denying the correctness of earlier written statement so she could not be allowed to change the written statement; that the application of A/if.Sat Bharai was not maintainable under Section 151 CPC and as such the impugned order passed by the trial Court was without jurisdiction. 5. I have considered the submissions made by the learned counsel with care. I find that the question in dispute was/is more or less a question of fact. The parties led evidence in 'support and in rebuttal on issue No.l. The Courts below have concurrently found issue No.l in favour of Afar.Sat Bharai and against the petitioner. Since both the Courts have come to the conclusion that the earlier "written statement dated 29.4.1989 was not filed by A/sf.Sat Bharai, therefore, the order allowing her 'to file fresh written statement would not mean that she .has been allowed to file additional/second written statement. So written statement which will be filed by her under the impugned order will be the first written statement. This being the position, the question of changing the averments in second written statement does not arise. The learned courts below have not flouted the provisions of relevant law. They have also not violated any case law laid down by the Superior Courts on this point. I do not see any mis-reading/non-reading of evidence on the part of the Courts below. The judgments of the Courts below do not suffer from legal infirmities. 6. Pursuant to the above discussion, I do not see any justification to interfere, in exercise of the Constitutional powers of this Court, with the well reasoned judgments of the Courts below. So this petition is accordingly dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 118 PLJ 1992 Lahore 118 [Bahawalpur Bench] Present: MIAN allah nawaz, J. MUHAMMAD IQBAL KHOKHAR and 3 others-Petitioners versus COMMANDANT, DESERT RANGERS, BAHAWALPUR, and another- Respondents Writ Petition No.852/BWP of 1991, dismissed on 5.8.1991 . Pakistan Rangers Ordinance, 1959 (XIV of 1959)-- —Ss.l3&14(m)--Employees of Ranger Force—Abetment of offence of smuggling by—Trial of—Quashment of—Prayer for—Rangers Force was constituted for multifarious duties and subject to a high discipline under law-­ Section 13 is applicable to period when it is functioning under operational control of Army while Section 14 applies in normal—Held: Offence committed by petitioners falls within Section 14(/?i) and Commandant, Desert Rangers/Magistrate 1st Class has jurisdiction to try these offences-Petition dismissed. [Pp.l20&121]A Mr.MAshraf Akhtar, Malik Famikh Mahmood and Mr.Haq Nawaz, Advocates for Petitioners. Mr.Shainsher Iqbal Oiughtai. Advocate for Respondents with Mr Abdul Ghaffar, Legal Adviser on behalf of Respondents. Date of hearing: 5.8.1991. . order The petitioners have prayed for grant of following relief in this constitution petition:— "Therefore it is humbly prayed that proceeding being held 'before the respondent No.l may please be declared as illegal, without jurisdiction based on mala fide and coram-non-judice and be declared as illegal. It is further prayed that the proceedings before the respondent No.l may please be stayed in the meanwhile". 2. The controlling facts of the petition are admitted. These are that the petitioners are in service of "Pakistan Rangers-Force" constituted under Pakistan Rangers Ordinance, 1959 (Ordinance XIV of 1959). The petitioners were sent to face the trial in a case under Section 14(m) of the Ordinance before the Commandant Desert Rangers/Magistrate 1st Class. The petitioners were accused of having connived at with smugglers and prevented seizure of Indian Liquor allegedly smuggled into Pakistan by one smuggler Bega. The petitioners appeared before the aforesaid Court and were charged in following terms:— "That being members of the Force, on 2nd April, 1991 at Islamgarh (Rahimyar Khan Wing) you all in connivance with each other, joined hands with smugglers and prevented seizure of Indian Liquor, illegally smuggled into Pakistan by one Bega; by police and instead got it recovered, transported inhand and handed over its major portion to the smugglers by employing troops of 23 Wing Desert Rangers Rahimyar Khan, thereby abetted smuggling and thus committed an offence which though not specified in the ordinance is prejudicial to good order and discipline and is punishable under Section 14(m) of Pakistan Rangers Ordinance, 1959 (XIV of 1959) which .is within my cognizance". 3. The petitioners submitted an application under Section 249-A of the Cr.P.C.'for their acquittal on the ground that the allegations with which they were charged were offence under Section 156 of the Customs Act, 1969 (Act IV of 1969), and this offence was exclusively triable before the Special Court. This application was rejected vide order dated 9.7.1991. Hence this constitution petition. 4. Malik Muhammad Farrukh Mahmood. Advocate, appearing on behalf of the petitioners led the arguments; the impugned order and proceedings pending before the Commandant Rangers/Magistrate 1st Class were assailed on following grounds:— Firstly: It was contended that the allegations pertaining to abetment of smuggling were made punishable under Section 156 of the Customs Act. The same was made punishable under Section 14(/n) of Pakistan Rangers Ordinance, 1959. According to the learned counsel this was not permissible in view of Article 13 of the Constitution of Islamic Republic of Pakistan. 19~3. This article provided that no person shall be prosecuted or punished tor the same offence more than once. According to him the petitioners could not be tried for the same offence before the two Courts. Reliance was placed on Muhammad Ibrahim Siddiqui v. Tlial Industries Corporation Ltd. and another (PLD 1974 SC 198), Mst. Ramzan Bibi and another . Hakim Muzaffar Hussain (PLD 1967 Lahore 186) and MukhtarAhmad . Tnc State (PLD 1965 (W.P) Lahore 266) and Secondly: It was contended that even otherwise, Clause(/?z) of Section 14 of the Ordinance was not applicable to the case of-the petitioners. According to the learned counsel Section 14(w) was applicable when the petitioners were on active duty and had committed certain misconduct which amounted to commission of offence under the Army Act. The emphasis was placed on the definition of "active duty" contained in Section 2 of the Ordinance. It was argued that the active duty under the operational control of Army had nexus with clause(/;) of Section 2 of the Ordinance.' According to this clause this duty had reference to period of emergency declared by Federal Government. 5. On the contrary, the learned counsel appearing on behalf of the respondents stated that the contentions of the learned counsel for ..the petitioners were totally devoid of force. According to him neither the case of the petitioners was of double jeopardy nor it was the case of "active duty" under the operational control of the Army. The petitioners' case fell within the meaning of clause(/n) of Section 14 of the Ordinance and the Commandant Rangers in the exercise of his power as Magistrate 1st Class was quite competent to try the case against the petitioners. 6. I have heard the learned counsel for the parties at considerable length. In order to appreciate the contentions of the parties, it would be useful to have a survey of Pakistan Rangers Ordinance, 1959, which was promulgated on 7 th October, 1958, in order to constitute a force called Pakistan Rangers for the protection and maintenance of order in border areas. Under Section 3 a force common to the Provinces of Punjab and Sindh was constituted. Under Section 6 'of this Ordinance the functions are prescribed of this Force. Under this section this Force was assigned the task of protection of persons and property in border areas; the apprehension of person unlawfully entering into or going out of Pakistan territory, organization of village defence in the Border areas; prevention of smuggling; collection of intelligence in the Border area and co-ordination of the activities of police and other civil agencies in the prevention and detection of smuggling. Under Section 7 the Force is to assist the police in the prevention and detection of crime in the Border areas; and re-enforce the Police for maintenance of Law and Order whenever it is necessary. Under Section 9 the Federal Government was empowered to declare a state of emergency on entire Border of the Province or a part thereof and thereby place under the operational control of the Army all or any of the units or members of this Force. This was subject to condition that this Force shall continue to remain subject to the provision^ of this Ordinance. Section 13 and 14 prescribed offences, acts and omissions which were made punishable. A look at Section 13 indicates that any member of the Force who commits or omits to do the acts as mentioned in clauses (a), (b), (c), (d), (e), (/), and (g) is liable to be punished with a rigorous imprisonment for a term which may extend to fourteen years in respect of offences described in clauses (a) to (/) and to seven years in respect of offences described in clause (g). 1. Next comes Section 14, it provides that any member of the force who commits or omits to do acts as described in clauses (a), (b), (c), (d), (e), (/) \g), (/!), (/), (/), (k), (/), (in) and (n) shall be liable to be punished with an imprisonment for a term which may extend to one year or with fine which may extend to three months pay or with both. 8. From the examination and analysis of Sections 13 and 14 it becomes evident that this force was constituted for multifarious duties and subject to a high discipline under the law. Sections 13 and 14 have provided punishment for its delinquent members. Section 13 in my view is applicable to the period when it is functioning under the operational control of the Army and a period of emergency while Section 14, applies in normal. The difference between Section 13 and Section 14 is clear from the magnitude of penalty provided in both the Sections. I, therefore, find sufficient force in the contentions of the learned counsel for the respondents; that the offence committed by the petitioners falls within Section 14(m) and the Commandant Desert Rangers/Magistrate 1st Class has jurisdiction to try these offences. The contentions of the petitioners appear to be untenable and are accordingly overruled. As regards the second contention, that the trial is hit by Article 13 of the Constitution of Islamic Republic of Pakistan, 1973,1 find little merit in it. Article 13 provides that no person shall be prosecuted or punished for the same offence more than once; that it does not prohibit the legislature from making the law with respect to certain circumstances which have been made punishable in one law. 9. In the light of foregoing analysis, I do not find any merit in this petition which is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 121 PLJ 1992 Lahore 121 Present: MALIK MUHAMMAD QAYYUM, J KARAM HUSSAIN-Petitioner versus DAILY MASHRIQ and 2 others-Respondents Writ Petition Ne.3^9 of 1991, accepted on 17.11.1991. (i) Constitution of Pakistan. 19"3- —Art, 199—Employee of newspaper—Dismissal from service of—Challenge to— Whether writ petition is no: maintainable-Question of-Contention that respondent No.l being a private limited company and not performing functions in connection with affairs of Federation, is not amenable to writ jursidiction--All shares of respondent No.l vest in National Press Trust which in terms is controlled by Federal Government under provisions of National Press Trust Ordinance, 1960-Held: Respondent No.l appears to be an instrument/agency of Government and constitutional petition can be maintained against it-Petition accepted. [Pp.l26&127]E&F PLD 1986 Lahore 424, AIR 1981 SC 487 and AIR 1986 SC 1571 rel (ii) Dismissal-- -—Employee of newspaper-Dismissal from service of-Challenge to-Contents of enquiry report are L-elicd by fact that petitioner was admittedly on medical leave on 12th and 13tb of September, 1990-While coming to conclusion that petitioner had not explained about two cheques of Rs.1300000/-, enquiry officer did not care to consult relevant record-In face of clear admission by National Press Trust which is governing body of respondent No.l, said amount stood fully accounted for--Held: There was no justification for respondent No.l to have proceeded to dismiss petitioner for misappropriation of aforesaid amount. [P.125]B (iii) Dismissal-- —Employee of newspaper-Dismissal from service of-Challenge to—On an application under Section 22-A(8)(g) of Industrial Relations Ordinance, 1969, N.I.R.C. directed that "meanwhile respondents shall not pass final order concerning charge-sheet" and this order was served on Chief Executive and General Manager of Daily Mashriq-Held: In presence of injunction issued by authority of competent jurisdiction, it was not open to respondent No.l to have passed any order in disregard of restraint imposed upon it-Held: further Impugned order is clearly without lawful authority. [P.124JA (iv) Newspaper Employees (Conditions of Service) Act, 1973 (LVIII of 1973)-- —S.4--Employee of newspaper—Dismissal from service of—Challenge to— Service of a newspaper employee cannot be terminated by a newspaper establishment without good cause having been shown through a notice in writing, of such termination—In this case, there are no eood reasons for terminating service of petitioner and there has been an obvious violation of Section 4 of Act-Held: Impugned order can be removed through power of judicial review under Article 199 of Constitution. [P.126JC&D Dr-Abdul Basil, Advocate for Petitioner. Ch.M^Asghar Khadim, Advocate for Respondent No.l. Nemo for Respondents 2 & 3. Date of hearing: 1.10.1991. judgment Karam Hussain petitioner herein was employed as a Photographer by Respondent No.l but his services we're terminated on 12th September, 1990 as a result of an enquiry conducted against him. The allegations against the petitioner, according to the show cause notice/charge sheet dated 28th August, 1990, were that he had failed to perform his duties efficiently and further that two cheques amounting to Rs.10,00,000/- and Rs.3,00,000/- were handed over to him on 15th March, 1990 and 18th March, 1990 respectively but he had failed to account for the same. In reply filed by him the petitioner denied the allegations and further alleged that the charge sheet has been issued malafide and for ulterior motives. As regards the amount of Rs.13,00,000/- it was explained that the amount in question was paid to M/s. Nasir Printers as per direction of the Executive Editor. 2. It appears that originally Mr Aftab Rabani was appointed as the enquiry officer but an objection in writing to this appointment was raised by the petitioner. He thereafter filed an application before the National Industrial Relations Commission under Section 22-A(8)(g) of the Industrial Relations Ordinance 1969 complaining of unfair labour practices on the part of the respondents. This petition which was accompanied by an application for grant of interim relief came up for hearing before a learned Member of the Commission on 12th September, 1990 on which date the main petition was admitted to regular hearing and notice was issued to the respondents for 19th December, 1990. It was directed that in the meanwhile the respondents shall not pass any final order concerning the charge sheet. According to the case of the petitioner this order was served upon the respondent on 13th September, 1990 but notwithstanding that he was removed from service on 14th September, 1990 by the Chief Executive of respondent No.l. An application was filed by the petitioner before the Commission complaining that as its order had been violated by respondent No.l, action be taken against it. On 30th April, 1991 the Commission referred the case to the Punjab Labour Appellate Tribunal for disposal in accordance with law. 3. In this constitutional petition, as originally filed, the order of the Member National Industrial Relation Commission dated 30th April, 1991 refering the case to the Punjab Labour Appellate Tribunal was challenged. However on an application filed by the petitioner, he was allowed to amend the petition in which the petitioner has now impugned the order dated 14th of September, 1990 passed by respondent No.l terminating his services and has also prayed that respondent No.l be directed to treat the petitioner in service and to pay him his emoluments accordingly. 4. In the written statement filed by respondent No.l, it has been objected that as the respondent is a Company incorporated as private limited company, it cannot be considered to be a person performing functions in connection with the affairs of the Federation or the Province in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and as such this petition is not competent. It has further been objected that the services of the petitioner were governed by the principle of Master and Servant and the termination of the petitioner, therefore, cannot be subjected to scrutiny by this Court in exercise of its power of judicial review. 5. On merits, it was pleaded that the services of the petitioner have been terminated in accordance with law after due enquiry and as such cannot be interfered with. It was denied that the petitioner has been victimised on account of trade union activities. It was reiterated that the petitioner had failed to account for the amount of Rs.13,00,000/- received by him. The petitioner has filed his rejoinder alongwith certain documents. 6. Dr.A.Basit, the learned counsel for the petitioner has contended that the dismissal of the petitioner was illegal and unlawful for the reason that on 12 th September, 1990 respondent No.l had been restrained by the National Industrial Relations Commission from passing any order on the charge-sheet in question. It is further asserted by the learned counsel that undue haste with which the respondent had acted also establishes his malafides. The learned counsel argued that no charge against the petitioner stood proved and his dismissal from the service was a measure of victimisation against the petitioner due to his political affiliations and trade union activities. 7. MrAsghar Khadim, learned counsel for the respondents has reiterated the objections taken by him in the written statement and has also controverted the arguments of the learned counsel for the petitioner on merits. 8. From a perusal of the record, it will appear that the petitioner had on 12th September, 1990 filed an application under Section 22-A(8)(g) of the Industrial Relations Ordinance 1969 against respondent No.l claiming of unfair labour practices. This petition was admitted to regular hearing and notice was issued to the respondent for 19th September, 1991. On the application for interim relief, the National Industrial Relations Commission on 12th September, 1990 directed that "meanwhile the respondents shall not pass the final order concerning the charge-sheet". According to the petitioner this order was duly communicated to the respondents through T.C.S. Courier Service on 13th September, 1990 but notwithstanding that the impugned order was passed on 14th September, 1990. This assertion of the petitioner is supported by the photostat of the receipt of T.C.S. which shows that the letter sent by National Industrial Relations Commission to the Chief Executive and General Manager of Daily Mashriq Lahore was delivered to him on 13th September, 1990 at 8.25 P.M. In face of this document, it is idle on the part of respondent No.l to plead want of knowledge about prohibitory order of the National Industrial Relations Commission dated 12th September, 1990, while dismissing the petitioner from service on 14 th September, 1990. It is obvious that in presence of the injunction issued by an authority of competent jurisdiction, it was not open to respondent No.l to have passed any order in disregard of the restraint imposed upon it. The order dated 14th September, 1990 is, therefore, clearly without any lawful authority. 9. There is also merit in the stand of the petitioner that the order of 14th of September, 1990 has been passed with unholy haste which speaks volumes of the malafide of respondent No.l. Admitted position between the parties is that on an objection raised by the petitioner the enquiry officer originally appointed namely MrAftab Rabani was removed, and in his place another enquiry officer was appointed on 12th of September, 1990. The petitioner was on medical leave on 12th as well as on 13th of September, 1990 while 14th of September, 1990 was Friday. It is thus really strange that after his appointment on 12th of September, 1990, the enquiry officer held an enquiry in absence of the petitioner and submitted his report on the next day i.e. 13th of September, 1990 which was a Friday. As already mentioned it is admitted in the written statement that on 12 th and 13th September, 1990 the petitioner was on leave. Obviously, therefore, the enquiry officer could not have proceeded in his absence. 10. It is not discernible from the record as to what evidence was recorded and what proceedings were conducted by the enquiry officer but in his report it has been stated that he had recorded the statement of Establishment Officer who had refuted the stand of the petitioner that the amount of Rs.13,00,000/- received by him was paid to Nasir Printers. It is also noted in the report that Karam Hussain petitioner was summoned by him through Mohammad Shafi Naz ut reportedly he said that he would not appear before any enquiry officer. 11. The contents of the enquiry report are belied by the fact that the petitioner was admittedly on medical leave on 12th and 13th of September, 1990 which fact has not been denied in the written statement. Additionally while coming to the conclusion that the petitioner had not explained that a sum of Rs.13,00,000/- which was received by him through two cheques under the orders of the then Executive Officer namely Mr.Mumtaz Ahmad, it appears that the enquiry officer did not care to consult the relevant record. From the documents placed as Annexures XVI, XVII, XVIII, it is evident that M/s. Nasir Printers had approached the Ombudsman with the complaint that it was not being paid the balance of its bill. Before the Ombudsman, the stand taken by the National Press Trust, which is the governing body of respondent No.l, was that a sum of Rs.13,00,000/- had been paid to M/s. Nasir Printers who had acknowledged the same in its letter dated 15th October, 1990. In face of this clear admission, the amount of Rs.13,00,000/- stood fully accounted for and there was no justification for respondent No.l to have proceeded to dismiss the petitioner for misappropriation of the aforesaid amount. 12. It is also to be noted that after the receipt of the enquiry report, even according to respondent No.l himself, the petitioner was never granted any opportunity of being heard. In fact from the circumstances of the present case and the record the conclusion which is inevitable is that respondent No.l, for reasons best known to it, was acting in the case with undue haste. The enquiry officer was appointed on 12th September, 1990. The enquiry report is said to have been submitted on 13th September, 1990 and the order of dismissal was passed on 14 th September, 1990 notwithstanding the fact that it was a Friday and therefore, a weekly holiday and also that the petitioner was on medical leave. 13. Reverting now to the objection as to the maintainability of this petition raised by the learned counsel for respondent No.l the question as to whether the services of the petitioner were governed by the principle of Master and Servantmay be attended to. It is settled law that if the services o f an employee are not governed by either a statute or the statutory rules, the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 canot be invoked but if there be some statutory provision in the Act or the Rules and the impugned order is shown to have been passed in disregard of the same, it can be challenged under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 14. There is no dispute that the petitioner is an employee of a newspaper establishment namely daily Mashriq. His services are therefore, governed by the provisions of Newspaper Employees (Conditions of Service) Act (LVIII of 1973). According to Section 4 of this Act the services of a newspaper employee cannot be terminated by a newspaper establishment without good cause shown through a notice in writing of such termination. The learned counsel for respondent No.l argued that this provision is applicable only in cases where the services of an employee are being terminated without there being any misconduct on his part and it has no application where an employee was being dismissed from sendee on account of some fault on his part. The restricted interpretation being placed by the learned counsel on Section 4 is not countenanced by its language and there is no reason as to why the expression "shall not be terminated without good cause" be interpreted in the manner suggested by the learned counsel so as to confine the application thereof only to cases of termination of simplicitor. 15. In the present case as already held, there were no good reasons for terminating the service of the petitioner and there has been an obvious violation of Section 4 of Newspaper Employees (Conditions of Service) Act, 1973. The impugned order can be removed through power of judicial review vested in this Court under Article 199 of the Constitution. 16. So far as the contention of the learned counsel that respondent No.l being a private limited company is not amenable to the jurisdiction of this Court as it is not a person performing furnctions in connection with the affairs of the Federation or a Province, it is to be seen that all the shares of respondent No.l vest in the National Press Trust which in terms is controlled by the Federal Government under the provisions of the National Press Trust Ordinance, 1960. The Chairman of the National Press Trust respondent No.2 is appointed by the President and Head Office pray his pleasure (?). The Chief Executive of respondent No.l company is in turn appointed by the Chairman. The entire share holding also vests in the Government. In these circumstances respondent No.l appears to be an instrument/agency of the Government and a constitutional petition can be maintained against it. This view finds support from the authority of this Court in Javed Iqbal and two others v. F..L4. and 3 others (PLD 1986 Lahore 424). The judgment of the Indian Supreme Court in two cases reported in Ajay Hasia etc. v. Kiialid Mujib Sehravardi and others (AIR 1981 S.C. 487) and Central Inland Water Transport Corporation Ltd., and another v. Brojo Nath Gangufy nd another (AIR 1986 S.C. 1571) relied upon by the learned counsel for the petitioner also support this proposition. 17. In the last it may also be observed that the respondents had raised another objection namely that the petitioner has other adequate remedy available to him before the Labour Court. This objection however does not carry any weight, in the circumstances of the present case where the impugned order has been found to be malaflde, void and without any lawful authority, especially when it was passed in defiance of an injunction issued by the National Industrial Relations Commission. For the reasons aforesaid this petition is allowed and the order terminating the service of the petitioner is declared to be without lawful authority and of no legal effect with costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 127 (DB) PLJ 1992 Lahore 127 (DB) Present: m. mahboob ahmad, gj and malik muhammad qayyum, J commissioner of income tax. companies ZONE. LAHORE-Petitioner Versus NA\T£ED A. SHEIKH-Respondent Tax Reference No. 36 of 19SS (also P.T.R. Nos. 24 & 60 of 1988 and 5 of 1986) decided on 10.2.1991 (i) Assessment— —Expression "payable" and "paid" as appearing in clause 83 of Second Schedule to Income Tax Ordinance, 1979--Interpretation of--In original Clause 83, word "payable" was used but by Finance Ordinances, 1980 and 1981, it was substituted by word 'paid'--Held: It is trite law that when legislature brings about an amendment, intention generally is to bring about change-Held further: Tribunal was correct in holding that under original clause 83, wealth tax could be claimed as an expenditure if liability had arisen even though no actual payment had yet been made in charge year. [P.130JC (ii) Interpretation of Statutes-- -—Words "payable" and "paid" as appearing in clause 83 of Second Schedule to Income Tax Ordinance, 1979-Interpretation of-Expressions "paid" and "payable" have different connotations-While "payable" has reference to liability which has accrued, expression "paid" necessarily imports idea of actual payment-Held: It is well settled that words used in a statutory instrument are to be construed in their ordinary and natural sense and if different words are used by legislature, object is to convey different meaning unless context otherwise requires-Held further: These two words carry different meanings and cannot be equated with each other. [P.130JA&B Ballantines Law Dictionary, 3rd.Ed Pages 525 & 908 and Black's Law Dictionary, 5th Ed. Page 1016 ref. (M. Mahboob Ahmad, C.f) (iii) Wealth Tax Act, 1963 (XV of 1963)-- —S.31 (b) read with Income Tax Ordinance, 1979, Second Schedule, clause 83-- Assessment for year 1979-80~Wealth Tax-Deduction of-Challenge to~ Objection that to allow an assessee to deduct wealth tax out of his income without having made any payment, would give him an unfair advantage-Held: Suffice it to say that under Section 31 (fo) of Wealth Tax Act, if wealth tax is not paid within due date, assessee renders himself liable to pay additional wealth tax at stipulated rate—Held further: Argument is without any basis. [P.130JD 1972 SCMR 116 rel. Mr. M. Ityas KJian and Ch. Muhammad Ishaque, Advocates for Petitioner. Mr. M. Amin Butt, Advocate for Respondent. Date of hearing: 10.2.1991. judgment M. Mahboob Ahmad, C J.--This order shall dispose of T.R. No. 36/88, PTR No. 60/88, PTR No. 5/86, and PTR 24/88 as in all of them common question ol law arises for consideration. i 2. For the assessment year 1979-80. the assessee respondent in all these cases claimed deduction of wealth tax payable as an admissible expenditure. The Income Tax Officer disallowed the claim holding that as actual payment had not been made during the assessment year in question, the respondents were not entitled to deduct the same from income. However, on appeal, the Commissioner of Income Tax (Appeals) took the view that wealth tax was an admissible expenditure irrespective of the fact whether the payment had actually been made or not. This order of the Commissioner of Income Tax was challenged in second appeals by the department but without success as the Income Tax Appellate Tribunal rejected the same on 13th January, 1988. 3. The applicant applied to the learned Income Tax Appellate Tribunal for referring the following question said to be of law and arising from the order of the Tribunal dated 13th January, 1988 to this Court for its opinion: - "Wether on the facts and in the circumstances of the case, the Tribunal was justified in allowing the wealth tax liability as an admissible deduction"? This request was refused by the Income Tax Appellate Tribunal on 29th "June, 1988 on the ground that no proposition of law was involved therein. 4. Mr. Muhammad Ilyas Khan, learned counsel for the petitioner contended that on no reasonable principle the wealth tax, which though due, had not been paid by the assessee, could be claimed as an admissible deduction out of the income. The learned counsel emphasized that if the interpretation placed upon by the learned Commissioner of Income Tax on clause 83 of the Second Schedule to the Income Tax Ordinance, 1979, was accepted, it would amount to allowing the assessee to claim benefit of an expenditure which had not yet been incurred by him. 5. Mr. Muhammad Amin Butt, learned counsel appearing on behalf of the respondent, on the other hand, contended that the legislature had specifically used the word 'payable' in the second schedule which cannot be equated with 'paid'. According to the learned counsel an assessee is entitled to claim the deduction on account of wealth tax, once the liability has arisen irrespective of the fact whether the payment had been made in the charge year or not. 6. From the respective contentions of the parties, it would be seen that the dispute revolves around the interpretation of the word 'payable' appearing in clause 83 of the second schedule to the Income Tax Ordinance which reads as under :- "(83) Any amount payable by an assessee by way of wealth tax leviable under the Wealth Tax" Act, 1963 (XV of 1963); Provided that where any person for any year- (a) is liable to income tax and also to the wealth tax payable under the Wealth Tax Act, 1963 (XV of 1963); and (b) his taxable income under the Income Tax Ordinance, 1979, exceeds one hundred thousand rupees; and (c) the aggregate amount of income tax and wealth tax payable by him exceeds seventy five per cent of his total income, the income tax payable by him shall be reduced by the amount by which the said aggregate amount exceeds seventy five per cent of his total income". By the Finance Ordinance, 1980 this clause was substituted to read that:- "(83) Any amount paid by an assessee by way of wealth-tax under the Wealth Tax Act, 1963 (XV of 1963). (83-A) Limit on the income tax payable. In 1981 the second schedule as a whole was substituted by the Finance Ordinance, 1981. The relevant clause in the new Schedule was clause 129 which is reproduced as under:- "(129) Any amount paid by an assessee by way of Wealth tax under the Wealth tax Act, 1963 (XV of 1963)". 7. While interpreting clause 83, ibid, the learned Commissioner of Income Tax (Appeals) took the view, which was subscribed to by the learned Income Tax Appellate Tribunal, that if the liability to pay wealth tax had arisen, the assessee is entitled to claim it as expenditure irrespective of the fact whether or not the tax had actually been paid during that year. 8. Having heard the learned counsel for the parties and considered their respective contentions, we are inclined to agree with the learned Income Tax Appellate Tribunal and do not feel persuaded to hold that it is only when the wealth tax had actually been paid that it can be claimed as expenditure. Such an interpretation, in our view, would amount to reading the word 'paid' appearing in clause 83 as 'payable' for which there appears to be no warrant or justification. 9. It is well settled and needs no authority that the words used in a statutory instrument are to be construed in their ordinary and natural sense and if different words are used by the legislature, the object is to convey different meaning, unless the context otherwise requires. In the present case, there is no compulsion to construe 'payable' as 'paid'. The expressions 'paid' and 'payable' have different connotations. While 'payable' has reference to liability which has accrued, the expression 'paid' necessarily imports the idea of actual payment. In Ballantines Law Dictionary Third Edition, at page 525 'payable' has been defined as 'due or to be paid'. According to the same Dictionary, at page 908 'paid' means "recompensed by actual receipt of money or an equivalent in value". Similarly, according to the Black's Law Dictionary Fifth Edition page 1016 "A sum of money is said to be payable when a person is under an obligation to pay it". It is thus obvious that the two words carry different meanings and cannot be equated with each other. 10. A reference to the legislative history would also support this interpretation. Though in the original clause 83 word 'payable' was used but by Finance Ordinance, 1980 this word was substituted by 'paid'. The same position obtains as regard the amendment brought about by Finance Ordinance, 1981. It is trite law that when legislature brings about an amendment the intention generally is to bring about a change. In this view of the matter, the learned Income Tax Appellate Tribunal was correct in holding that under the original clause 83, wealth tax could be claimed as an expenditure if the liability has arisen even though no actual payment had yet been made in the charge year. 11. As regards the objection of the learned counsel for the petitioner that to allow an assessee to deduct wealth tax out of his income without having made any payment, would give him an unfair advantage, suffice it to say that under Section 31 (fo) of the Wealth Tax Act, if the wealth tax is not paid within the due date, the assessee renders himself liable to pay additional wealth tax at the stipulated rate. This argument of the learned counsel is, therefore, without any basis. The decision of the Supreme Court in Commissioner Income Tax vs Wazir un Nisa Begum (1972 SCMR 116) also supports the view which we have taken. 12. For the reasons aforesaid, in our opinion, the answer to the question as formulated above has to be in the affirmative. 13. In the circumstances of the case, there shall be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 131 PLJ 1992 Lahore 131 Present: MUHAMMAD ILYAS, J RIAZ AHMAD-Appellant versus GHULAM AHMAD--Respondent FA.O. No.249 of 1991, dismissed on 8.12.1991 (Approved for reporting on 13.1.1992.) Civil Procedure Code, 1908 (V of 1908)- —O.XLI R. 19--Appeal--Dismissal in default of~Restoration of~Refusal to restore-Challenge to~Since unavoidable reasons have not been spelt out, plea is a vague assertion-There is no affidavit of appellant's counsel or of his clerk with regard to engagement before other Courts—It was duty of learned counsel for appellant to take as much care of appellant's appeal as of other cases booked by him-Particulars of cases in which learned counsel for appellant was appearing at three occasions when appellant's appeal was called, have not been furnished-Held: There is no convincing explanation with regard to absence of appellant or his counsel-Appeal dismissed. [P.132]A,B&C 1974SCMR162/Y?/. Mr.Zahid Hussain Klian, Advocate for Appellant. Date of hearing: 8.12.1991. ORDER This appeal is directed against order, dated the 21st July, 1991, passed by ChAhsan Ahmad, Additional District Judge, Faisalabad . By the said order, he refused to restore an appeal, filed by the appellant, Riaz Ahmad, which had been dismissed in default. 2. The appellant's appeal came up for hearing before the learned Additional District Judge on 20th February, 1990. On that day, the appeal was called on thrice - once at 10 A.M., then at 12.30 P.M. and lastly at 3.00 P.M., but no one turned up to prosecute it although the respondent, Ghulam Ahmad, was present on all the three occasions when the appeal was called on. In the application made by the appellant for restoration of the appeal it was stated by him that he could not enter appearance due to certain unavoidable reasons and his counsel was busy before the other Courts. His explanation did not find favour with the learned Additional District Judge with the result that he declined to re-admit the appeal for hearing and dismissed the application. 3. It was contended by learned counsel for the appellant that the appellant had to come from Sargodha and was late in reaching the Court. As for his counsel, his plea was that he was busy before the other Courts. 4. 4. In the aforesaid application also, it had been stated that the appellant lived in Sargodha. Even if it was so, he should have left Sargodha well ui time, because he knew the distance which he had to cover before reaching the Court. As indicated above, since the appeal had been dismissed at 3.00 P.M., even if he was late in leaving Sargodha he should have been in Faisalabad before 3.00 P.M, It is, however, noteworthy that application for restoration of the appeal was made on the following day, namely, 21st July, 1991, and the stamp affixed thereon too was purchased on 21st July, 1991. It is, therefore, doubtful that the appellant had ever come to Faisalabad on the day when the appeal was dismissed for want of prosecution. 5. As indicated above, in his application it was stated by the appellant that he could not reach the Court in time due to unavoidable reasons. Since these reasons have not been spelt out, his plea with regard to unavoidable reasons is nothing but a vague assertion. It, therefore, does not inspire confidence. This being the position, his plea was rightly repelled by the learned Additional District Judge. 6. As for the absence of the appellant's counsel, it has been stated that he was busy before the other Courts. According to the learned Additional District Judge it is a "routine excuse" which is put forth in such like cases. There is no affidavit by the appellant's counsel or by his clerk with regard to the engagement of learned counsel for the appellant before other Courts. It is difficult to believe that he remained busy before the other Courts on all the three different occasions when the appellant's appeal was called on for hearing. It was the duty of learned counsel for the appellant to take as much care of the appellant's appeal as of the other cases booked by him for the fateful day but, it is regretted that he did not care to do so. He should have inquired about the appellant's appeal by noon tune, if not earlier. He, however, did not bother about it till 3.00 P.M., when the appeal was dismissed for want of prosecution. Particulars of the cases in which learned counsel for the appellant was appearing on the three occasions, when the appellant's appeal was called on, have not been furnished. All this speaks of gross negligence of the appellant's counsel. 7. Law is well settled on the point that a case dismissed in default cannot be restored unless cogent explanation is furnished both for the absence of the party initiating the case as well as for the absence of his counsel. Case of ZulfiqarAH v. Lai Din and another (1974 S.C.M.R. 162) is one of the several authorities in point. In the instant case, there is no convincing explanation with regard to the absence of the appellant and that of his learned counsel. In this state of affairs, the learned Additional District Judge was perfectly justified in rejecting application for restoration of the appeal. 8. There is no merit in this appeal. It is accordingly, dismissed in limine. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 133 PLJ 1992 Lahore 133 Present: MUHAMMAD ILYAS, J Sh. MUHAMMAD SHAFIQUE-Petitioner versus NATIONAL BANK OF PAKISTAN and another-Respondents Civil Revision No.500 of 1981, accepted on 18.9.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXVII R.2~Summons in Form No.4 to appear and defend suit-Issuance of~Without waiting for specified time of 10 days, suit decreed ex-parte- Challenge to~Petitioner had a statutory right to seek leave of Court to defend suit within ten days of receipt of summons—Trial Court should have waited for expiration of said period before passing decree against petitioner-This was an unfortunate lapse of trial Court--If trial Court had erred in fixing 30.4.1980 (short date) as next date of hearing, it was its own fault and petitioner should not suffer for it-Held: Trial Court proceeded with undue haste and passed impugned judgment and decree in violation of relevant provisions of law and its own direction embodied in summonds-Petition accepted and case remanded. [Pp.l35&136]A,B&C Mr.Karamat Nazir Bhandari, Advocate for Petitioner. Mian Hamid Farooq, Advocate for Respondents. Date of hearing: 18.9.1991. judgment This civil revision has arisen out of a suit brought by the respondent,' National Bank of Pakistan , Grain Market Branch, Sheikhupura, against the petitioner, Sheikh Muhammad Shafique, for recovery of Rs.19,546.10. The suit, which was heard by an Additional District Judge of Sheikhupura, under Order XXXVII of the Code of Civil Procedure, was filed on 14th April, 1980. On 16th April, 1980 it was directed by the learned Additional District Judge that summons shall issue to the petitioner (who was defendant in the suit) for 30th April, 1980. In the summons sent to the petitioner, it was stated that if he wanted to seek leave to defend the suit, he should make application for that purpose, within 10 days' from the date of service of the summons. The petitioner did not appear before the learned Additional District Judge on 30th April, 1980 nor the aforesaid application was submitted by him before that date. It was aoted by the learned Additional District Judge on 30th April, 1980 that service'^ the summons had been effected on the petitioner. He, therefore, heard the suit in his absence and decreed the suit ex parte on the same date. This civil revision is directed against the judgment and decree thus passed by the learned Additional District Judge. 2. It was inter alia contended by learned counsel for the petitioner that the learned trial Court had itself allowed, ten days' time to the petitioner to obtain permission to resist the suit but the said learned Court decreed the suit without waiting for running out of the said period. According to learned counsel for the petitioner ten days' period expired on (?) May, 1990 but, as stated above, the suit was decreed exparte on 30th April, 1980. It was maintained by learned counsel for the petitioner that it was the statutory right of the petitioner to make application to defend the suit within ten days of the service of the summons on him but he was not allowed to avail of the whole of that statutory period. It was, therefore, claimed by him that the learned Additional District Judge committed illegality in passing the exparte decree on 30th April, 1980. 3. In reply, it was contended by learned counsel for the respondent that the petitioner had been guilty of contumacy and, therefore, the learned trial Court was justified in passing the impugned judgment and decree against him. It was explained by him that on the summons issued to the petitioner it was noted by him that his name was Sheikh Muhammad Shafique but in the summons his name was given as Sheikh Shafique Ahmad. It was also added by learned counsel for the respondent that since the case had been fixed by the learned trial Court for 30 th April, 1980, it could be decreed ex parte on the said date although period of ten days referred to above had not expired by then. 4. It has been laid down in rule 2 of Order XXXVII of the Code of Civil Procedure that summons shall be issued in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. Contents of Form No.4 make the following reading:-"NO.4 SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (0.37.R.2) (Title) To (Name, description and place of residence) WHERAS has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. , balance of principal and interest due to him as the of a of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. and the sum of Rs. for costs together with such interest, if any, from the date of the institution of the suit as the Court may order). Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit Given under my hand and the seal of the Court, this day of 19. Judge" (Underlining is by me). 5. It was not the plea of learned counsel for the respondent that any Form other than Form No.4 has been prescribed in terms of the provisions of Rule 2 of Order XXXVII of the Code of Civil Procedure. Learned counsel for the parties were unanimous that in this case summons was issued in Form No.4 which required the defendant (petitioner) "to obtain leave from the Court within ten days from the service" of the summons. Thus, the petitioner had a statutory right to seek leave of the Court within ten days of the receipt of summons. Learned trial Court should, therefore, have waited for the expiration of the said period before passing a decree against the petitioner, but, admittedly, it decreed the suit before the said period had run out. In view of the period allowed to the defendant to file application for permission to defend the suit, it was improper on the part of the learned Additional District Judge to fix a very short date for appearance of the defendant. As indicated above, he decided to hear the case after 14 days of the issuance of summons to the petitioner. While adopting this course, he had not taken into account the period which is usually taken by the Process Serving Agency for effecting service of processes. This, to say the least, was an unfortunate lapse of the learned Additional District Judge. 6. As for the objection raised by the petitioner that his name has not been correctly mentioned in the summons, even if this objection was wrong, it does not amount to contumacy on his part. Assuming, without conceding, that his conduct was contumacious, that too did not furnish justification for shutting out the defence of the petitioner by passing adverse order against him without permitting him to avail of full period prescribed by law and also allowed by the learned .trial Court to the petitioner for seeking leave to defend the suit. If the said learned Court had erred in fixing 30th April, 1980, as the next date of hearing, it was its own fault and the petitioner should not suffer therefor. There is well known maxim that no body should suffer for the act of the Court. I regret to say that, in this case, the learned trial Court proceeded with undue haste and passed the impugned judgment and decree in violation of the relevant provisions of law and its own direction embodied in the summons. I, therefore, cannot help accepting the civil revision, setting aside the impugned judgment and decree and remanding the suit for fresh hearing and decision. 7. Both the learned counsel agree that after remand, the suit will now be heard by the Special Judge, Banking, Lahore, and not by the learned Additional District Judge, who had passed the judgment and decree assailed herein. I, therefore, accept this civil revision, with costs, set aside the judgment and decree under challenge and remand the suit to the Special Judge, Ranking, Lahore, with the direction that fresh time will be allowed to the petitioner to make application for permission to defend the suit and then the suit shall be redecided in accordance with law. 8. Parties shall appear before the learned Special Judge, Banking, Lahore, on 17th October, 1991. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 136 PLJ 1992 Lahore 136 Present: malik MUHAMMAD QAYYUM, J M/s. MIAN TYRE & RUBBER CO. (PVT) LTD.-Petitioner versus GOVERNMENT OF PUNJAB, THROUGH SECRETARY, LOCAL GOVT. RURAL DEVELOPMENT, and 2 others-Respondents Writ Petition No.5605 of 1991 (also W.P.Nos.5929, 6057, 6605 and 6859 of 1991), accepted on 17.9.1991. Punjab Zila Council (Export Tax) Rules, 1990-- —R.6(6)--Export tax-levy of-Charging of export tax on number of goods instead of its weight—Challenge to—Contention that in view of clear mandate of sub-rule (6) of Rule 6, tax can only be levied on weight of consignment-­ Contention has merit as this sub-rule clearly requires authorities to charge export tax on basis of weight and not number-Other Zila Councils are calculating tax on weight of goods and nothing has been placed on record by respondents to rebut this assertion-Held: Respondents have no lawful authority to recover or receive export tax from petitioners on basis of number of goods instead of weight of consignment exported by them—Petitions accepted. [Pp.l38&139]A,B&C Mian Nisar Ahmad, Advocate for Petitioner. Mr.Maqbool Elahi Malik, Advocate General, Punjab , for Respondent No.l. Mr^Aurangzeb, Advocate for Respondent No.2 Mr^Ali Ahmad Awan, Advocate for Respondent No.3. Date of hearing: 17.9.1991 judgment This judgment shall dispose of W.Ps. Nos.5605, 5929, 6057, 6605 and 6859 of 1991 in which similar questions fall for determination. 2. The petitioners in all these petitions except W.P.No.6859 of 1991 are manufacturing tyres and tubes which are being exported out of Sheikhupura district. The petitioner in W.P. No.6859 of 1991 however manufactures essence oils, crown crok, capsels and Carbon Di-Oxide Gas. The goods being manufactured by all the petitioners are liable to payment of export tax to the Zila Council Sheikhupura, respondent No.2. Previously the tax was being charged by Zila Council on the basis of the weight of the consignment but by virtue of the schedule enforced by it for the year 1991-92, the petitioners have been asked to pay tax on per item basis rather than the weight of the consignment. This demand of the respondents has been challenged by the petitioners by filing these constitutional petitions. 3. The learned counsel for the petitioners have contended that the levy of export tax on the baas of number and not weight of the goods is contrary to rule 6(6) of the Punjab Ziia Council (Export lax) Rules 1990. It was further emphasised that the Government of Punjab vide its memorandum No.SOV(LG)5- 26/89, dated 21st of April, 1991 had decided that with a view to ensure Zila Council, Model Tax Schedule prepared by the Government be enforced by the Zila Council by completion of a!! formalities and that according to the said schedule the tax was chargable on the basis of the weight and not number of the goods. 4. The learned counsel for respondent Nos.2 and 3 have however, defended the impugned action of respondents Nos.2 and 3 and had termed it to be unexceptionable. Reliance was placed by them on Rule 6(1) of the Punjab Zila Council Taxation Rules 1991 to contend that the Zila Council was authorised by law to levy the tax on the basis of the schedule announced by it which provides for the payment of tax on the number of the goods. It was pointed out that with regard to many items the model tax schedule itself provides for charge on this basis. The learned counsel maintained that the model tax schedule prepared by the Government was meant for the guidance of the Zila Councils and did not have any binding effect. • 5. According to Section 137 of the Punjab Local Government Ordinance 1979, a Local Council subject to the provisions of any other law may and if directed by the Government shall levy all or any of the taxes enumerated in the second schedule which intcr-alia includes imposition of export tax on goods. Section 138 provides that all taxes levied by the Zila Council are to be notified in the official gazette and in the absence of any direction by the Government are subject to previous publication. Section 144 ordains that all taxes and other charges levied by a Local Council shall be imposed, assessed, lease.' compounded, administered and regulated in such manner as may be prescribed \j\ rules. In the exercise of powers conferred by this section read with Section 167 of the Punjab Local Government Ordinance 1979, the Government of Punjab has promulgated Punjab Zila Council Export Tax Rules 1990, Rule 6 whereof reads thus:- "6. Assessment and Collection of the tot.--(l) The tax shall be assessed in accordance with the rates specified in the Export Tax Schedule. (2) Where a consignment consists of two or more classes of goods chargeable at different rates, each portion of the consignment shall be treated as a separate consignment. (3) The Clerk shall assess the tax payable on goods presented at the Tax Post and on receiving the amount issue a receipt in respect thereof in Form-3. , (4) The receipt shall be prepared by the carbon process in duplicate and the original copy thereof shall be handed over to the exporter. (5) The total amount brought forward and the progressive total carried forward shall be shown on the duplicate copy of the receipt. (6) Export Tax shall be calculated on the gross weight of the consignment including packing and other containers. (7) If there is any dispute about the assessment or the liability of any goods to export tax, it shall be paid according to the demand of the Clerk, but the aggrieved person may appeal to the Taxation Officer within a period of 10 days from the date on which the disputed tax is paid". 6. There is merit in the contention of the learned counsel for the petitioner that in view of clear mandate of Sub-rule (6) of the aforesaid rule, the tax can only be levied on the weight of the consignment. This Sub-rule clearly requires the authorities to charge export tax on the basis of weight and not number. Consequently while recovering the tax the weight of the goods cannot be ignored. There is no warrant for working the tax on the basis of number of goods being exported rather than the weight thereof. 7. Reliance of the learned counsel for the respondents on Sub-rule (1) is of no avail. This Sub-rule merely prescribes that the tax shall be assessed in accordance with the rate specified in the aforesaid schedule. It cannot however, be contended that the schedule need not conform to the other requirements of the rules. Power to levy tax at the rate specified in the schedule is not disputed but the objection is with respect to method of calculation i.e. whether it should be on the basis of weight of the consignment or the number of the goods contained therein. 8. The learned counsel for the petitioner pointed out that in all the Zila Councils except Sheikhupura the tax is being calculated on the weight of the goods in question. Although the learned counsel for the respondents denied this fact but,nothing has been placed on record to rebut this assertion in support of which the learned counsel for the petitioner had placed on record the notification issued by other Zila Councils like Rawalpindi. As a result of what has been stated above all these petitions are allowed and it is declared that the respondents have no lawful authority to recover or receive export tax from the petitioners on the goods being exported by them on the basis of the number but hot the weight of the consignment. There shall be no order as to costs. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1992 Lahore 139 PLJ 1992 Lahore 139 Present: MALIK MUHAMMAD QAYYUM, J. Raja AAMIR NASEEM KHAN-Petitioner versus FEDERATION OF PAKISTAN and 12 others-Respondents Writ Petition No.1490 of 1991, accepted on 18.9.1991. Domicile- -—C.S.S. Examination-Written examination qualified by petitioner-After interview, petitioner placed at serial No.7—Rejection of candidature of petitioner on ground that his father belonged to Azad Jammu and Kashmir-­Challenge to-Admitted facts are that father of petitioner was born in Kashmir wherefrom he migrated to Punjab where petitioner was born, brought up and educated—It is clear from domicile certificate that petitioner was a domicile of Lahore District where he is residing since 1964, while place of his birth is Faisalabad-It is well recognised principle that a person born in a particular place is deemed to be domiciled there unless it is shown that he had left that place with intention of abandoning same-Para 6(/«)(/) of instructions in notice only applies to those candidates who belong to former Indian State of Jammu & Kashmir—Petitioner was neither born nor lived there—Held: Respondents could not merely on basis of petitioner's father's place of birth, treat petitioner as belonging to State of Azad Jammu & Kashmir, and Impugned decision is wholly unjust, unfair and is not sustainable—Petition accepted with special costs and respondents directed to treat petitioner as domicile of Punjab. [Pp.l42,143,144&145]A,B,C,D,E,F&G 1980 SCMR 456 and'H L & C. 607 M Mr.Salman K. Cheema, Advocate for Petitioner. MrAftab Iqbal Chaudhry, Deputy Attorney General for Respondents 1 & 2. Nemo for Respondents 3 to 13. Date of hearing: 18.9.1991. judgment Raja Aamer Nasim Khan was born in Faisalabad in November, 1961, and claims to have lived in the Province of Punjab throughout. His father, Raja Muhammad Nasim Khan was, however, born in the former State of Jammu and Kashmir before partition from where he migrated to the Province of Punjab. Both the petitioner as also his father are domicile of the Province of Punjab as is evident from the domicile certificates issued by the District Magistrate, Lahore, in respect of the petitioner and his father on 5th August, 1980 and llth of April, 1975 respectively (Annexure A and B). 2. The petitioner did his Matriculation from Cadet College, Hasan Abdal and later on also passed the Intermediate Examination of the Board of Intermediate & Secondary Education, Rawalpindi, as a student of that College. He later on joined the University of Engineering & Technology, Lahore, from which he obtained B.Sc. Electrical Engineering Degree in Frist Division and stood second in the examination. He was thereafter selected as a Rhodes Scholar for further studies in Oxford University, wherefrom he qualified in first class. 3. In response to the public notice dated 24th of April, 1988, issued by the Public Service Commission, the petitioner applied as a candidate for the examination scheduled to be held by the Commission in 1989 for recruitment to the posts in B.P.S.17 under the control of the Federal Government. In the application, the petitioner stated that he as well as his father were domicile of Punjab . In the relevant column relating to the place of birth of the father, it was mentioned that his father was born in the former State of Jammu & kashmir from where, he migrated to Pakistan . In the application, the petitioner indicated as Foreign Service and the District Management Group as his preferences in the Groups of Services. 4. After the petitioner had qualified the written examination, he received a letter from respondent No.2 on 14th of May, 1991, asking him to send to the Commission a certificate in support of his claim that he belonged to AJ & K. In his reply dated 23rd of May, 1991, the petitioner stated that he had never claimed to be resident or domicile of AJ & K but was domiciled in Punjab. The Commission, however, persisted in its stand and on 24th of July, 1991, another letter was addressed to the petitioner calling upon him to supply the certificate, failing which his candidature would be cancelled. In his reply to this letter, the petitioner reiterated that he had nothing to do with former State of Jammu & Kashmir and was a domicile of the Province of Punjab. It was also pointed out in this reply dated 7th August, 1990 that the petitioner was neither born nor had ever lived in Azad Jammu & Kashmir. Unfortunately, however, notwithstanding this explanation, the respondent No.l by its letter dated 25th of August, 1990, informed the petitioner that the Commission had decided to treat him as a domicile of Azad Jammu & Kashmir for the reason that under para 6(/»)(/) of the notice dated 24th April, 1988, the candidates belonging to former Indian State of Jammu & Kashmir can only be considered against the quota reserved for Azad Jammu & Kashmir irrespective of their domicile. 5. In the meantime, the petitioner qualified written examination and was interviewed by the Commission. The result of the examination was declared on 25th of August, 1990 wherein the petitioner was placed at serial No.7 in the order of merit. There is no dispute that on the basis of this merit, the petitioner was entitled to be inducted into two services of his preference, namely, Foreign Services of Pakistan and the District Management Group. Unfortunately, however, he was denied this right on the ground that he could only be considered against the quota reserved for Azad Jammu & Kashmir and as for the year 1990 no seat was reserved for Azad Jammu & Kashmir, he could not be taken in service. 6. The petitioner and also his father, thereafter represented against this decision of the Federal Service Commission to the Establishment Division, but their representations were refused by the said Division. The petitioner thereupon filed the present constitutional petition with the following prayer:— "It is, therefore, most respectfully prayed that the treatment by respondents No.l & 2 of the petitioner as a domiciliary of the AJK.be declared as contrary to law and thus null and void, and the said respondents be directed to consider the petitioner as a domiciliary of the Province of the Punjab and as such entitled to a place in the Foreign Service Group. This Court may, further, be pleased to grant such other, including interim relief as it may deem appropriate". 7. The petition has been opposed by the respondents who have filed their parawise comments in which the position taken is the same, namely, that as the father of the petitioner was born in the former State of Azad Jammu & Kashmir, his candidature could only be considered against the posts reserved for Azad Jammu & Kashmir and as there was no vacancy for residents of that area in the District Management Group or the Foreign Services of Pakistan, he was not entitled to be inducted into service. It has also been stated that although there were vacancies in other groups reserved for Azad Jammu & Kashmir, but as the petitioner has not opted for those groups, he was not taken in service. 8. Mr.Salman Khalid Cheema, Advocate, appearing on behalf of the petitioner has raised the following contentions:-- (/) That reliance on para 6(///)(/) of the notice by the respondent was misconceived inasmuch as these instructions were not applicable to the petitioner. (//') That the decision to treat the petitioner as a domicile of Azad Jammu & Kashmir on account of the place of birth of his father was contrary to the instructions of the respondents themselves. (hi) That the decision of the respondent is arbitrary, capricious, unjust, unfair and discriminatory and is as such violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. (/v) That reservation/allocation of the seats on quota basis is violative of the Constitution. MrAftab Iqbal Chaudhary, learned Deputy Attorney General who has appeared on behalf of the respondents has been heard in reply. 9. There is considerable force in the contentions raised by the learned counsel for the petitioner that the action of the respondent in treating the petitioner as domicile/resident of Azad Jammu & Kashmir and the insistence that he can only be considered for the post reserved for Azad Jammu & Kashmir is misconceived and ill based. There is no dispute as regards the factual aspect. The admitted facts are that the father of the petitioner was born in Kashmir wherefrom he migrated to Punjab where the petitioner was born, brought up and educated. The only connection, therefore, which the petitioner has, if at all it can be called a connection, with Azad Jammu &. Kashmir is that his father was born there. 10. It is clear from the certificate of domicile annexed alongwith the petition that the petitioner is a domicile of Lahore District where he is residing since 1964, while the place of his birth is Faisalabad . It is well recognized principle of International Law that a person born in a particular place is deemed to be domiciled there unless it is shown that he had with the intention of abandoning the place of domicile left the same. The principle finds full recognition in the Pakistan Citizenship Act, 1952 and the rules- made thereunder. The Supreme Court of Pakistan in Muhammad Yar KSian v. Deputy Commlssioner-Cum-Political Agent, Loralai and another (1980 SCMR 456) was pleased to observe that:-- "It is well-settled principle of Private International Law, to which reference is necessary, as 'domicile' has not been defined in the Pakistan Citizenship Act, that every person carries the domicile of the country hi which he is born; that so long as he does not intentionally and by the exercise of free volition choose the domicile of another country he carries the domicile of his origin; and that to prove that he had acquired another domicile of his choice he must show that he had intentionally taken a decision in that behalf in the sense that he had taken abode therein with the intention of making it his permanent residence. Again at page 463 it was ruled:--. "From the analysis of Section 3, 6, 8, 16, 17 and 21 of the Pakistan Citizenship Act, 1952 what would follow is (1) that 'domicile' and 'permanent residence' are two distinct and separate concepts, although before a person is granted a domicile certificate generally he must show that he had lived in Pakistan with the intention of permanently residing therein; (2) that when a person is granted a domicile certificate he would be deemed to be a domicile of Pakistan and not of a Province or a part of a Province; (3) the fact that a person before making an application for the grant of a domicile certificate had lived in Pakistan would be entitled to persuade the authorities that he had done so with the intention of permanently residing therein and he was entitled to the grant of a domicile certificate; and (4) that a citizen of Pakistan by birth is also essentially a domicile of Pakistan unless, of course, he has lost the said domicile by acquiring another domicile of his choice". 11. In the present case, however, the respondents have relied upon para 6(H/)(0 of the instructions contained in the notice to the candidate to contend that irrespective of the domicile, the petitioner has to be considered only against the vacancies reserved for Azad Jammu & Kashmir. The relevant paragraph reads as under:- "The candidates belonging to former Indian State of Azad Jammu & Kashmir will only be considered against the quota of vacancies reserved for AJ & K irrespective of the fact whether they have acquired a certificate of domicile from a Pakistan Province/Area and even if they have joined Government Service on the basis of a domicile other than AJK". On its plain wording this para has no application to the petitioner as it applies to those candidates who belong to former Indian State of Jammu & Kashmir. For the application of this para, there must be some connection or nexus between the candidate and the former State of Jammu & Kashmir. In the present case, it is not understood as to how the petitioner can be said to belong to the State of Jammu & Kashmir, when he was neither born nor had ever lived there. As a matter of fact, at the time the petitioner was born even his father was residing in Faisalabad District and he too did not have any connection with the aforesaid State except for the fact that he had been born there. The petitioner could not, therefore, on any hypothesis be considered belonging to Azad Jammu & Kashmir. Although the word 'belonging' as observed by Pollock, C.B. in Moiticmd v. Mackinnon (1 H & C. 607) is not a word of art but it must (be) taken to have been used in the sense of being directly connected. 12. The second contention of the learned counsel for the petitioner is equally forceful. The relevant instructions issued by the Establishment Division of the Federal Government itself appearing at page 67 serial No.43 of the Esta Code (1983) Edition are as under:— "Sl.No.32. Candidates not required to show place of birth of their fathers for purposes of domicile". As the Ministries/Divisions are aware, the Government observes Provincial/Regional quotas in filling vacancies reserved for direct recruitment to posts under the Federal Government. It has been brought to the notice of the Government that candidates for appointment to Federal posts are some times required to state the place of birth of their father. This information is not relevant to the determination of domicile of a candidate. The Government have, therefore, decided that in future no candidate will be asked to state the place of birth of his father. However, the requirement of stating the domicile of father and other particulars like name, address etc., will continue to be observed as before". From the above it is obvious that the respondents could not merely on the basis of place of birth of the father of the petitioner treat him as belonging to the State of Azad Jammu & Kashmir. It is unfortunate that in the present case, the respondents have acted in derogation of the principle recognized in the above decision of the Government. 13. There is considerable merit in the contention of the learned counsel for the petitioner that the impugned decision is arbitrary, capricious, and unreasonable. It is to be seen that there is no nexus between the petitioner and the former State of Jammu & Kashmir, but the only reason given as to why the petitioner who is a domicile of Punjab has been denied his due right to be considered against the seats reserved for Province of Punjab is that his father had been born in the former Indian State of Azad Jammu & Kashmir. It is not disputed that the father of the petitioner had migrated to Pakistan in the year 1950 and the petitioner himself was born in Punjab. There appears to oe no reasonable basis for insisting that notwithstanding that the father of the petitioner had migrated to Pakistan and had settled in Punjab and further that the petitioner was born in Faisalabad, he must be considered to belong to Azad Jammu & Kashmir. This decision is wholly unjust, unfair and is not capable of being sustained. 14. Before parting with the case, one cannot help expressing the deep sense of regret and disappointment over the way the high bodies like the Public Service Commission and the Establishment Division have acted. On account of the wholly unjustified stand taken by them, the career of a student of exceptional quality like the petitioner was put in jeoperdy and he was in any case denied his due right for more than one year for no fault of his. During the course of hearing of this petition, the obvious fallacy in the stand taken up by the respondents was high­ lighted on more than one occasion but unfortunately, they have persisted in their unreasonable attitude. It may be stated to the credit of the learned Deputy Attorney General that as per his statement, he had also pointed out the obvious flaw in the defence raised by the respondents, but still the respondents remained adamant and obstinate. As the respondents have persisted in their frivolous and vexatious defence, they are liable to pay the special costs to the petitioner. As a result of what has been stated above, this petition is allowed and the respondents are directed to treat the petitioner as being resident/docmicle of Punjab and to consider him against the vacancies reserved for that Province. The respondents shall pay Rs.10,000/- (Rupees Ten Thousand only) as costs to the petitioner. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 145 PLJ 1992 Lahore 145 Present: mian allah nawaz, J NIZAM DIN efc.-Petitioners versus ADDITIONAL COMMISSIONER efc.-Respondents Writ Petition No.312-R of 1977. dismissed on 16.7.1991 . Displaced Persons (Comp. & Rehab). Act, 1958 (XXVIII of 1958)- —Para-13 (Schedule)-Vacant evacuee plot-Person in unauthorised occupation of-Transfer of plot to-Challenge to-It is manifestly clear that premises in dispute is situated in a different khasra number and there is no evidence that petitioners used it as courtyard—Held: Transfer order in favour of petitioners, if any, was without legal sanction and was nullity in eyes of law as against rights of Maula Bakhsh. respondent-Held further: Petitioners have no locus standi to challenge transfer of disputed premises in favour of Maula Bakhsh—Petition dismissed. [Pp.l48,150&151]A,B&C 1968 SCMR 221 rel. Syed Zainul Abidin, Advocate for Petitioners. Mr.M.Z.KJwlil, Advocate for Respondent No.l. MrJariullah KJian, Advocate for Respondent No.2. Date of hearing: 16.7.1991. judgment The urban property measuring 3 1/2 marlas in Khasra No.5052 situated in Mohallah Sheikhan, Kamalia, District Lyallpur (now Faisalabad) is the bone of contention between Nizam Din, Qamar Din sons of Sultan Muhammad (herein petitioners) and Maula Bakhsh (herein respondent No.2). During the pendency of this petition both petitioner No.l and respondent No.2 had died and had been substituted by their legal heirs. 2. This case has a chequered history. Nizam Din and Qamar Din submitted B.S. form No.1120 under Scheme No.VI alleging therein that they were in unauthorised possession of property measuring 3 1/2 marlas in Khasra No.5052 and 8 marlas in Khasra No.5049/2 situate in Mohallah Sheikhan, Kamalia (District Faisalabad) and they have raised permanent construction over it. The Deputy Settlement Commissioner by order dated 14.4.1961 made the order of transfer of the aforenoted property in their favour. The P.T.O. was issued In their favour on 29.7.1961. The petitioners deposited the full price and in lieu thereof obtained the P.T.D. 3. The Inspector, Settlement Department made a report to the effect that the property in dispute measuring 3 1/2 marlas in khasra No.5052 was in unauthorised occupation of Maula Bakhsh who had raised permanent construction over it and so he be transferred this property under para 13 of Schedule to the Displaced Persons (Comp. & Rehab.) Act, 1958, Act XXVIII of 1958 (hereinafter referred to as an Act). On the basis of this report, on 18.9.1964 the Deputy Settlement Commissioner transferred the property in dispute in favour of Maula Bakhsh. This was the starting point of dispute-leading to filing of complaint by the petitioners before the Deputy Settlement Commissioner on 29.9.1964 to the effect that the property stood already transferred to him and so the transfer in favour of Maula Bakhsh was illegal, without jurisdiction and without lawful authority. This application was dismissed by the Addl. Settlement Commissioner by means of order dated 26.3.1965. The petitioners unsuccessfully challenged this order before the appellate Settlement authority as well as the revisional authority. Feeling dissatisfied with these decisions, the petitioners challenged these orders by filing constitution petition No.l343-R/65 which was accepted by this Court by order dated 27.9.1972. The learned Single Judge remanded the case to the Deputy Settlement Commissioner for deciding the case afresh on merits after hearing both parties in accordance with law. This was the first round of litigation in this Court. 4. Pursuant to this remand order, the Deputy Settlement Commissioner again dismissed the complaint of the petitioners by holding that Maula Bakhsh/refugee was in possession of the premises in dispute and had raised permanent construction over it. Undaunted by this failure, the petitioners filed revision petition which was also dismissed vide order dated 10.11.1973. For the second time, the petitioners invoked the constitutional jurisdiction of this Court against these orders. The petition was accepted by his Lordship Mr Justice Zakiud-Din Pal vide order dated 10.12.1974 by concluding that the order of the revisional Court was not speaking order and was, therefore, without any lawful authority. The case was remanded to the Additional Settlement Commissioner to dispose it of afresh on merits. The Additional Settlement Commissioner in pursuance of this remand order passed the impugned order again holding that Maula Bakhsh was in unauthorised occupation of premises in dispute and had raised permanent construction over it and so was entitled to its transfer under Para 13 in Schedule of the Act. Hence this constitution petition. 5. In disputing the correctness/validity of impugned order the learned counsel for the petitioners advanced following arguments:- Firstly; It was contended that the respondent in written statement filed in constitution petition bearing No.l343-R/65 had taken up the stand that his unauthoirsed possession started from July, 1959. On the basis of this fact, it was asserted that the petitioners (?) were not entitled to transfer of the house under Para 13 in Schedule in view of the mandatory requirement embodied in Section 2 (v/) of the Act. According to him the Additional Settlement Commissioner committed error of law by over­ looking this aspect of the ase. Secondly; Learned counsel then maintained that the Additional Settlement Commissioner had rendered the finding on the basis of documents annexed with this petition bearing Annexures Nos.C, D and E. All the three documents were totally irrelevant to establish the unauthorised possession of respondent over the property in dispute. According to him the finding of the learned Additional Settlement Commissioner was built upon these irrelevant and inadmissible documents. Reliance was placed on Jalal Din . Muhammad Rafiq (PLD 1965 SC 261) and Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division Lahore and another (PLD 1974 SC 193). Thirdly; It was lastly submitted that Maula Bakhsh had not submitted any form under Scheme No.VI. In alternatively it was suggested that Maula Bakhsh had failed to establish by cogent evidence; the receipt of form under Scheme No.VI by Settlement authorities. On the strength of these, it was represented that Maula Bakhsh was not entitled to transfer of the property in dispute under Para 13 as the filing of form under Scheme No.VI was a condition precedent. 6. On the contrary, learned counsel appearing on behalf of the respondents supported the impugned decision and raised following points in reply:-- (1) It was argued that the finding recorded by the Additional Settlement Commissioner was inference of fact which was arrived at after taking into the consideration the relevant material and circumstances of the case. This finding of fact was not open to interference in constitutional jurisdiction of this Court. (2) It was next contended that the plot in dispute was situated in Khasra -No.5052 while another Evacuee vacant plot measuring 8 kanals was situated in Khasra No.5049/2. According to the learned counsel these two plots were, in fact, distinct and separate units. Throughout the case, the petitioners had not produced an inch of evidence to show that the petitioners had raised permanent construction over the property in dispute. They were, therefore, entitled to transfer of plot in Khasra No.5049/2 and had no claim whatsoever to property in dispute. It was added that the petitioners in these circumstances had no locus standi to challenge the transfer of property in dispute in favour of respondentrefugee. Reliance was placed on Niaz Din v. S.MAzhar and another (1968 SCMR221). (3) It was lastly contended that as far as the construction was concerned it was admitted that the respondent had raised permanent construction over the premises in dispute and was living in it. The petitioners had already been allotted an evacuee plot on the premises of unauthorised possession and were not entitled to relief in constitutional jurisdiction in respect of property which was transferred to refugees. 7. I have examined the arguments by the both sides and gone through the record. Certain features of the case are not in dispute namely; the raising of permanent construction over the property in dispute by respondent that the petitioners were local while the respondent was a refugee. It is further on record that in all the three rounds of litigation, the Settlement authorities have come to concurrent conclusion of facts that Maula Bakhsh, in fact, was in possession of premises in dispute before the target date; that it was clear from the voter list Annexure-A that the name of Maula Bakhsh was recorded as a voter in the premises in dispute. From the aforenoted premises, there is no escape from the conclusion that the finding rendered by the learned Additional Settlement Commissioner is eminently just and is based upon material on record. This finding is unexceptional in constitutional jurisdiction. 8. Having noted the facts of the case, the respective stances of the parties and having agreed with the finding of fact recorded by the learned Additional Settlement Commissioner, I herein proceed to determine the legal contentions of the parties. It will be appropriate at this stage to examine the relevant applicable law arid ratio laid down in case law. On this point the Act was promulgated on 26th March, 1958 with aim "in the words of preamble" 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 incidential thereto or connected therewith. The Act was followed by Schedule which prescribed "the manner of disposal of urban evacuee property. Under Act Para 13 deals with the transfer of building sites. Relevant is Sub-para (3) of para 13 which reads as under:- "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 percent 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. Under this Para the Chief Settlement Commissioner framed Scheme No.VI. This para came into consideration in Mst.Mahmooda Tahsin v. Ijaz Hussain Shah and others (PLD 1965 SC 618), it was held that the persons raising permanent building on evacuee plot in their unauthorized possession were entitled to transfer of such plot and para 13 included the case of even encroachers. It was further held that the entitlement of transfer was to be determined in accordance with this Schedule. The relevant passage from this judgment may be quoted with advantage:- "It will be observed that schemes can be .framed only for transfer of land" in accordance with the provisions of the Schedule". The definition of "Permanent building" in the scheme limiting entitlement to cases covered by the definition is not consistent with paragraph 13 in which the words "permanent building" must be presumed to be used in their ordinary sense. In accordance with para 13 (there being no definition of permanent building in the Act) any person who has raised a permanent building in the ordinary sense of this expression on a piece of land in his unauthorised possession is entitled to its transfer. The scheme therefore, cannot add any limitation to the definition so as to deprive a person of a right to a transfer where there is a permanent building in the ordinary sense of that expression. While on the one hand the irrelevancy of the difinition in the scheme helps the appellant inasmuch as she is relieved of the necessity of proving that her case falls within one of the categories mentioned in the definition, it goes against her inasmuch as her right to transfer of the vacant land is concerned. In accordance with the definition if she had built on l/4th of the plot she could be entitled to the transfer of the whole 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 along with 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 mortly 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". 10. The para 13 came again into consideration in Niaz Din v. S.MAzhar and another (1968 SCMR 221), Dealing with the question of entitlement of an unauthorized occupant under para 13 in Scheme it was held:- "Under paragraph 13(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act XXVIII 1958 an evacuee building site which has been in unauthorized possession of any person and that person has constructed a permanent building on it shall be transferred to that person on payment of the prevailing market value plus fifty persent of such market value. The person entitled to transfer under the Settlement Scheme No.VI, must, therefore, be in possession of the site and the transfer in his favour will be confined to what he actually possesses. The policy of law is obvious. As tresspassers such person were liable to be ejected from evacuee property, but since they had constructed permanent buildings they were, in the interest of rehabilitation, made eligible to purchase the sites of those buildings at the prevailing market price plus fifty percent of such market value by way of penalty. The person in unauthorized possession of a building site being a wrong doer could not, therefore, be treated at par with a claimant, a non-claimant or a local who though in possession of a part of a house or a shop may be transferred the whole of the house or shop as an indivisible property under the Displaced Persons (Compensation and Rehabilitation) Act. In dealing with a similar question in the case of Mst.Mahmooda Tahsin v. S.Ijaz Hussain Shah and others (PLD 1965 SC 618) this Court observed: "Paragraph 13 was not intended to entitle a person to a transfer of land which is not in his possession. There are two conditions necessary for transfer, one is unauthorized possession and the other a permanent construction over it. It is not like the transfer of a house in which case even if a person is in possession of a part he may be entitled to a transfer of the whole. This is the case of a trespasser who is confined, to his possession and who in fact pays fifty percent of the market value as a penalty". 11. The ratio deducible from the aforenoted authoritative enunciation by the Supreme Court is that the person who is in unauthorized occupation of vacant evacuee plot before the target date and raises a permanent construction over it, is entitled to its transfer along with any small area left for a lawn or a courtyard or for a path. Applying these principles to the facts and circumstances of the case noted above it is manifestly clear that the premises in dispute is situated in a different khasra number; that the petitioners had not led an iota of evidence to the effect that the disputed plot was being used as a courtyard. Even this contention on the face of it appears to be thoroughly illogical and irrational that the land measuring 3 1/2 marlas can be treated as a courtyard to a plot of 8 1/2 marlas. I have, therefore, no difficulty in agreeing that the contentions of respondent that the disputed premises was, in fact, a separate and distinct plot over which the petitioners had no right and as such they were not entitled to its transfer. I am, therefore, of the considered view that the order of transfer in favour of the petitioners, if any, was without legal sanction and was, therefore, nullity in the eyes of law, as against the rights of respondent Maula Bakhsh. The petitioners have, therefore, no locus standi in view of the rule laid down in Niaz Din's case ibid to challenge the transfer of disputed property in favour of Maula Bakhsh. 12. There is yet another aspect of the case that the petitioners are local, have been transferred (plot) measuring 8 1/2 marlas on the premises of unauthorized occupation. The respondent had been given only 3 1/2 marlas. Admittedly he has raised the construction over it, and had been living therein. The object of para No.13 of Schedule to Act has been to settle the unauthorized occupants/encroachers who have raised construction over the plots in order to integrate them in scio-economic life of the country. Even the encroachers were given right to transfer the area on which they have raised construction and not beyond that; this principle was subject to the conditions laid down in Msf.Mahmooda Tahsin's case ibid by the Supreme Court. The claims built on avaraciousness are foreign to the philosophy behind para No.13. Judged from this angle I am not inclined to exercise my discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in favour of the petitioners. It is intended to foster the justice between the parties and not to help unjust and material claims. 13. The- result of whatever has been stated above is that this petition is found to be without any merit and is accordingly dismissed, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 151 PLJ 1992 Lahore 151 Present: GUL ZARIN KlANI, J SHER MUHAMAD-Petitioner versus GHULAM HUSSAIN and 5 others-Respondents Civil Revision No.l717-D of 1983. dismissed on 12.11.199L Consent decree-- —Consent decree passed in pre-emption suit-Fresh suit on allegation of fraud and impersonation-Suit decreed-Challenge to-Lower Courts, on consideration of recorded material, did not rely on oral statements of Ghulam Muhammad Dinar, Advocate, and appellant—On basis of analysis of evidence, surrounding circumstances and probabilities of events, lower courts found that predecessor-in-interest of respondents had not consented to decreeing of pre­ emption suit against him—This view was neither improbable nor implausible-­ Held: Revisional jurisdiction is not intended to correct mere errors of fact or law but is directed only to errors of jurisdiction which do not exist in this case-­ Petition dismissed and upon removal of consent decree from record, original pre-emption suit revived for trial on merits. [P.158JA&B Ch.Muhammad Titfail Basra, Advocate for Petitioner. Sh.Naveed Shehryar, Advocate for Respondents 1 & 3. Nemo for other Respondents. Date of hearing: 12.11.1991. , judgment This is an application in revision against the judgment and decree of learned Additional District Judge, Sargodha. dismissing appeal against a decree of learned Civil Judge Shahpur, which in turn had decreed the Plaintiffs' suit for setting aside of consent decree passed in pre-emption suit on 18.3.1976. Relevant facts for the purpose of Civil Revision briefly stated are that 61-3/4 kanals of land at mauza Lakhiwal, in Tehsil Shahpur of District Sargodha belonged to Muhammad Afzal and Muhammad Aslam sons of Hayat Muhammad. By mutation No.3339, sanctioned on 18.11.1974, they sold it to Sardara son of Gamoo for a consideration of Rs.35,000/-. Sher Muhammad claimed pre-emption in respect of this sale. On 30.9.1975, he instituted a suit for pre-emption against the vendee in the Civil Court at Sargodha. Superior right of pre-emption was asserted on the grounds of being a collateral, a co-sharer and an owner of the estate. Price paid for the land was also disputed by him and it was alleged that it was sold in the sum of Rs.10,000/- only and the same was its true market value. Sardara was served in person on 6.12.1975 by the Process Server of the Civil Court. Service return was thumb-marked by him and was attested by his son Muhammad Hussain who appended his signatures to the service return. Thereupon, Sardara appointed Ghulam Muhammad Dinar Advocate to conduct his defence in the pre-emption suit and gave him power of attorney. Power of attorney was thumb-marked by him and also attested by his son Muhammad Hussain who appended his signatures to it. On 9.2.1976, written statement on behalf of the vendee/defendant thumb-marked by him and signed by the Advocate was filed in the trial Court. In the written statement, it was pleaded that the pre-emption suit was barred by limitation; description of the property given in the plaint was incorrect; suit was for partial pre-emption; that as the plaintiff was present at the time of sale, he is estopped to sue for pre-emption; the plaint was insufficiently assessed for the purposes of court-fee and was, therefore, liable to rejection by the Court; the plaint was not verified in accordance with law, and, therefore, defective. On merits, it was pleaded that the defendant purchased land for a consideration of Rs.35,000/- and the same was fixed in good faith and actually paid. Superior right of pre-emption was also denied. On 9.2.1976, trial Court settled following issues for determination:-- ISSUES: (1) Whether the plaintiff has superior right of pre-emption? OPD. (2) Whether Rs.35,000/- were actually paid or fixed in good faith? OPP. (3) If issue No.2 is not proved what was market value of the suit land? OP.Parties. (4) Whether the suit is time barred? OPD. (5) Whether the suit is bad for partial pre-emption? OPD. (6) Whether the plaintiff is estopped to institute the suit by his words and conduct? OPD. (7) Whether the suit has not been correctly valued for the purposes of court- fee and jurisdiction? OPD. (8) Whether the suit land has not been correctly described in the plaint? OPD. (9) Whether verification of the plaint is defective? OPD. (10) Relief. After settlement of issues, suit was postponed for recording of evidence of the parties on 18.3.1976. On the adjourned date of hearing, counsel for the plaintiff produced copy of pedigree-table Ext.Pl, copy of Register Haqdaran Zameen for the year 1970-71 Ext.P2, copy of. mutation No.3339 Ext.P3 and closed the plaintiffs affirmative evidence stating that plaintiffs own statement shall be recorded in affirmative and rebuttal together. Counsel's statement was signed by him. On the same day, on the joint statement of counsel for the parties, in which sale price in the sum of Rs.35,000/- and superior right of pre-emption of the plaintiff was admitted, the pre-emption suit was decreed in favour of the plaintiff upon his paying Rs.35,000/- (minus zar-e-panjam till 18.6.1976) failing which the suit was to stand dismissed. The parties were left to bear their own costs. It may be noted that other objections taken in the written statement were abondoned in the statement of the counsel for the defendant. On 5.5.1976. Sardara-vendee filed an appeal against the consent decree in the Court of learned District Judge, Sargodha . In the memorandum of appeal, he denied appointment of Ghulam Muhammad Dinar Advocate as his counsel in the pre-emption suit and also controverted his authority for consenting to a decree against him. In fact, entire proceedings taken against him in the pre-emption suit; service of summons: appointment of the Advocate; filing of written statement on his behalf and consequent consent decree were all denied by him. On 14.7.1976, learned District Judge dismissed the appeal and observed:-- "On my question, learned counsel for the parties affirmed that the only possible modes of disposing of the present matter would be (f) either dismissal of appeal (//) or remand for further inquiry on the lines indicated in the application of the appellant referred to above or (Hi) to proceed with the same application during pendency of this appeal. On my further question, learned counsel for the parties very rightly specified that there can be no fourth way of disposing of the present matter. I put a third question to the learned counsel for the appellant as to whether it will be tantamount to reopening the case in the event either of this Court itself proceeding with the application referred to above or remanding the same for necessary action by the trial Court on that application. Learned counsel for the appellant maintained that in the latter event, the action of this Court would be tantamount to setting aside the impugned decree and reopening the case, but not in the former event. The point which therefore, arises for determination in this appeal as to whether the proper forum for inquiry into the matter raised on behalf of the appellant in the said application and as such on this appeal to determine the genuineness of the disputed thumb-impression would be this appeal or suit from which it arose or a fresh suit to set aside the (alleged) fraudulent decree under appeal. My answer to this question is that the proper remedy of the defendant appellant is to file another suit to avoid the decree under appeal on the ground of alleged fraud. This Court cannot proceed on the application of the appellant referred to above because that would be tantamount to accepting the plea of the defendant-appellant of this case in this behalf. The same would be true of direction to the Court below to proceed with the said application. The decree in this case having been passed on consent is even otherwise not appealable. Consequently, I dismiss the appeal, with costs". Armed with the remedy indicated in the order passed in appeal preferred against the consent decree, Sardara instituted a civil suit against Sher Muhammad to have it declared that the consent decree passed in pre-emption suit No.446 of 1975 on 18.3.1976 was based upon fraud and impersonation. It was stated in the plaint that he had neither appointed any counsel in the pre-emption suit nor had given any power; nor thumb-marked the written statement filed on his behalf. It was further stated that a false person impersonated him and gave power of attorney to the Advocate and also thumb-marked written statement on his behalf. Upon the above allegations, consent decree was challenged on the grounds of fraud and impersonation. Sher Muhammad contested the suit and denied the allegations contained in the plaint. It was submitted that plaintiff had no locus-standi to file the suit; appeal filed against the consent decree was dismissed on merits and the decision in appeal had attained finality and that as the civil suit was false and vexatious, the defendant was entitled to compensatory costs. On merits, consent decree was asserted to have been validly passed by the trial Court. On 18.1.1977, the trial Court framed following issues for determination:-- (1) Whether the plaintiff has locus-standi to sue? OPP. (2) Whether the suit is barred by the judgment in the previous suit between the parties? OPD. (3) Whether the defendant is entitled to special costs under Section 35-A, C.P.C. If so to what extent? OPD. (4) Whether the impugned decree dated 18.3.1976 in suit No.446 of 1975 passed by Mr.Fayyaz Hamid, Civil Judge 1st Class, Sargodha is liable to be set-aside on the grounds stated in paras 1 & 2 of the plaint? OPP. (5) Relief. On 14.2.1977, plaintiff applied for comparison of his thumb impressions on the Vakalatnama and Jawab Da'wa with his sample thumb impressions by a Finger Prints Expert. Defendant to the suit agreed to the proposal. On 3.5.1977, the trial Court took thumb impressions of plaintiff and after summoning the original file relating to the pre-emption suit, sent Vakalatnama and Jawab Da'wa filed in it for comparison by a Finger Prints Expert. Meanwhile, the plaintiff died and was substituted by his legal representatives on record. Finger Prints Expert reported in his opinion that thumb-impressions on Jawab Da'wa dated 9.2.1976 were different from the sample thumb-impressions of Sardara whereas the thumb-impressions on Vakalatnama were not clear enough to permit comparison in minor details and therefore, no opinion could be given on them. Interrogatories with proposed cross-examination were sent to the Judge Small Causes Court for recording of the statement of Finger Prints Expert. Interrogatories, proposed cross-examination and the replies of the Expert were available at page-155 of the trial Court file. It was made part of the record by the trial Court on 21.1.1979. Plaintiffs' counsel produced copy of register Haqdaran Zameen for the year 1974- 75 Ext.PI, an extract from register Khasra Girdawri from Kharif 1975 to Kharif 1979-Ext.P2, mutation No.3344 sanctioned on 18.11.1974-Ext.P3, order dated 18.3.1976 Ext.P4, decree-sheet dated 18.3.1976 Ext.PS, Vakalatnama Ext.P6, Jawab Da'wa dated 9.2.1976 Ext.P7 filed by Sardara, and, closed the plaintiffs' affirmative evidence. It was stated that statements of plaintiffs shall be recorded in rebuttal. Thereafter, the defendant produced Malik Ghulam Muhammad Dinar Advocate, D.W.I and himself appeared as D.W.2 in evidence. In addition, copy of Vakalatnama Ext.Dl and judgment given in appeal Ext.D2 was produced and defence evidence was closed. One of the plaintiffs, namely Muhammad Hussain appeared as P.W.I in rebuttal, and with his statement plaintiffs' evidence was finally closed on 22.11.1980. Upon review of the above evidence, the trial Court found that "impugned consent decree dated 18.3.1976 was procured by impersonation and fraud and as such is liable to be annulled". This finding was recorded under issue No.4. In consequence of the decision given on the above issue, it was held that the plaintiff had the locus-standi to sue. As far issues No.2 & 3, those were not found proved. In result of the finding given under issue No.4, the trial Court decreed plaintiffs' suit as prayed for. Defendant to the suit filed an appeal but failed on 3.1.1983. Hence, against the judgments and decrees passed by the lower Courts, application in revision has been filed by the defendant in this Court. It was admitted to hearing on 15.4.1984. Points requiring determination in Civil Revision are, whether the defendant in the pre-emption suit namely Sardara gave power of attorney to and appointed Ghulam Muhammad Dinar Advocate as his counsel to conduct defence on his •behalf; filed written statement and agreed to the decreeing of the pre-emption suit against him. In support of the above factors that Sardara had appointed Malik Ghulam Muhammad Dinar Advocate and filed written statement in the pre­ emption suit and agreed to the consent decree, defendant/petitioner produced Ghulam Muhammad Advocate as D.W.I and recorded his own statement as D.W.2, D.W.I deposed that he knew Sardara personally, who had appointed him as his counsel in the pre-emption suit. It was further deposed that Muhammad Hussain son of Sardara was also known to him and was his class-fellow. It was also stated that Sardara thumb-marked and had signed Vakalatnama in his favour. Witness further stated that written statement was filed by Sardara. Sher Muhammad himself supported his stance taken in defence. In rebuttal, Muhammad Hussain, one of the substituted plaintiffs appeared and denied that his father had ever appointed Ghulam Muhammad Dinar Advocate in the pre­emption suit or had authorized him for agreeing to a consent decree. He further stated that he was not class-fellow of Ghulam Muhammad Dinar Advocate. In addition to the oral evidence given by the parties, Finger Prints Expert had given opinion that the prints on Jawab Da'wa in the pre-emption suit did not bear similarity with the sample prints. Finger Prints Expert had not appeared in the witness box but was examined on commission through interrogatories. The trial Court as well as the lower appellate Court deeply relied upon and received support from the opinion expressed by the Finger Prints Expert. Though the opinion of a Finger Prints Expert was not per-se legal evidence unless he had appeared in Court and was examined and cross-examined by both the parties in respect of it, as held in 'Chhajju v. Ayyub Ahmad' A.I.R. 1915 Allahabad 112, Wadhawa v. Jai Kishan Das' A.I.R. 1928 Lah. 427(1), 'Ram Autar Shukul v. Baldeo Shukul' A.I.R. 1932 Patna 352, 'Bhoore Singh and others v. Karon Singh' A.I.R. 1935 Allahabad 142, 'Perumal Mudaliar v. South Indian Railway Co. Ltd.' A.I.R. 1937 Madras 407, 'Coral Indira Consalves v. Joseph Prabhakar Iswariah' A.I.R. 1953 Madras 858, 'Parwat Vedu Patil and another v. Sukdev Shivram PatiF A.I.R. 1956 Bombay 617, 'Bommidala Poomaish v. The Union of India' A.I.R. 1967 Andhra Pradesh 338, 'Allah Dino and 2 others v. Muhammad Umar and 2 others' 1974 S.C.M.R. 411, yet there was no bar for his examination on commission as was done in this case. By an interim order of the trial Court, j fte opinion of the Expert was taken on file and no objection was ever raised about its mode of proof. Further, neither in the lower appellate Court nor in the grounds of revision filed in this Court, an objection about improper admission of the opinion of Finger Prints Expert in evidence was taken. In default of clear objection taken at the appropriate time, the defendant-petitioner was precluded from objecting to the mode of proof regarding admission of the opinion of the Expert or his examination on commission. In 'Dil Muhammad and another v. Sain Das and others' A.I.R. 1927 Lahore 396, it was ruled that where a party accepts the certificate of a Thumb Impression Expert without formal proof in the trial Court, he cannot be allowed in appeal to say that his evidence should be excluded for want of proof. Similar views were expressed in 'Karam Din v. Ata Muhammad' A.I.R. 1934 Lahore 230, wherein it was held that an objection that a document was wrongly held proved on the basis of the opinion of the hand-writing expert as the Expert had not given sworn testimony in support of his report placed on record ought to be taken in the proper Court and cannot be taken for the first time in revision. Also, the petitioner did not make any request in the trial Court for summoning of the Expert "Tor his cross-examination in Court to contest soundness of his opinion. Therefore, no exception could be taken to the admission of the report of the Expert in evidence. Consequently, it was rightly read in evidence in Courts below. Vakalatnama' given to Ghulam Muhammad Dinar Advocate and the service return were not only thumb-marked by Sardara but were alleged to be signed by his son Muhammad Hussain. Muhammad Hussain denied his signatures on the Vakalatnama given to Ghulam Muhammad Dinar Advocate. However, his purported signatures were not put to him, when he was in the witness-box. No serious attempt was made for ^identifying his signatures on the Vakalatnama and the service return by comparison through a Handwriting Expert. Additionally, there was evidence that on the date of settlement, defendant in the pre-emption suit was himself present in the Court, but his consent to it was not signified by taking his thumb-impression on file of the trial Court. As far Ext.Dl, attested copy of Vakalatnama purportedly given by Sardara to Ghularii Muhammad Dinar Advocate in another case, it is sufficient to state that by itself it did not prove that Ghulam Muhammad Dinar was appointed as an Advocate in the pre-emption suit which culminated in the consent decree, later sought to be avoided on the pleas of fraud and impersonation. Lower Courts, upon consideration of the recorded material did not rely on the oral statements of Ghulam Muhammad Dinar Advocate and Sher Muhammad. In revision, this finding of the Courts below on credibility of the witnesses for their being relied upon could not be questioned and asserted that it was wrongly done. As is seen from the preceding discussion, the lower Courts on the basis of their analysis of the evidence, sorrounding circumstances, and, probabilities of events, had found that Sardara had not consented to decreeing of pre-emption suit against him and had consequently set it aside on that score. This view was neither improbable nor implausible. Rather, it received enough support from the record. Revisional juridiction is not intended to correct mere errors of fact or law committed by the subordinate Courts. On the other hand, it is directed only to errors of jurisdiction which I do not find to exist in the instant case. Upon this view of the record, no ground was made out for interference. However, there is one matter which needed to be looked into before parting with the case. Fraud and impersonation for setting aside of the consent decree were subsequent to and not antecedent to the institution of the pre-emption suit. There was no allegation that the pre-emption suit itself was grounded in fraud. Upon removal of the consent decree from the record, original pre-emption suit, therefore, ought to revive for its trial on merits in accordance with law. Though Civil Revision fails and is accordingly dismissed, but it shall not affect the plaintiffs' option for revival of the pre-emption suit for its decision on merits. Costs to be borne as incurred. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 158 PLJ 1992 Lahore 158 Present: gul ZARIN KlANl, J Ch. MUHAMMAD ASLAM KHAN etc. -Petitioners versus MALIK SHER etc. -Respondents Writ Petition No.3963 of 1983, dismissed on 13.11.1991. (i) Adverse Possession- —Plaint—Amendment of—Amendment allowed in revision by District Judge- Challenge to~Contention that plea of adverse possession was un-Islamic and could not be allowed to be taken—Decision of Shariat Appellate Bench declaring Section 28 of Limitation Act in so far it extinguishes right in property, as repugnant to Injunctions of Islam, shall take effect from 31.8.1991- -On date of impugned decision in this case, no bar for acquisition of ownership rights on basis of adverse possession existed in law-Held: No ground exists for interference with revisional order allowing amendment of plaint for pleading adverse possession—Petition dismissed. [P.161]D 1991 SCMR 2063 ref. (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.VI R.17-Plaint-Amendment of-Amendment allowed in revision by District Judge-Challenge to-Taking alternative plea of adverse possession was neither contradictory to nor destructive of plea of ownership already taken in plaint~If proposed amendment is essential for determining real question in controversy between parties, there was no bar for allowing it—All rules of procedure are intended to aid and assist main cause of justice-There is no much doubt that refusal to allow amendment was clearly a "ease decided" and was revisable-Held: Impugned order cannot be described either as without jurisdiction or without lawful authority. [Pp.l60&161]A,B&C PLD 1965 (WP) Peshawar 223. 1977 SCMR 284, PLD 1985 SC 345 and PLD 1973 SC 507 rel. Ch.\~awabuddin Mahmood. Advocate for Petitioners. Afr^illali Wasaya Malik, Advocate for Respondents. Date of hearing: 13.11.1991. judgment This petition, under Article 199 of the Constitution, is against a decision of learned District Judge of Mianwali dated 14.1.1982, allowing amendment to the plaint in the civil suit filed by Malik Sher to plead acquisition of title on the basis of hostile and adverse possession on the land-in-dispute. On 30.7.1979, Malik Sher brought a civil suit for declaration of title to a piece of land and confirmation of his possession on it. As a consequential relief, perpetual injunction was sought against Muhammad Aslam defendant for preventing him from causing interference with his actual possession on the landin-dispute. Defendant submitted his written statement and pleaded that he had purchased the land-in-dispute from Malik Abdul Karim and Atta Muhammad through a registered sale-deed on 30.8.1950, and, was its owner. Defendant also applied for rejecting the plaint under Order VII, Rule 11 Civil Procedure Code. On 15.9.1979, the trial Court rejected the plaint with costs assessed at Rs.50/-. Plaintiff filed an appeal. It was allowed and the suit was remanded for its decision on merits. On remand, the trial Court framed issues arising for decision from the pleadings. In course of trial, plaintiff filed a rnisc: application for amendment of the plaint to plead, in the alternative, adverse possession and consequent acquisition of prescriptive title. By order dated 14.11.1981 of the trial Court, relief of amendment was denied on the ground that the plea of adverse possession was contradictory to and destructive of the plea of ownership of the land-in-dispute already taken and the proposed amendment would also alter complexion of the suit. Against the dismissal of the application seeking amendment, plaintiff filed a petition for revision before the District Judge, Mianwali. It was allowed on 14.1.1982 by permitting the proposed amendment conditional upon payment of Rs.100/- as costs. This order has occasioned a grievance to the defendant hi the suit. Hence this petition was filed by him in this Court. It was admitted to hearing on 22.10.1983. Upon hearing learned counsel for rival parties and examination of the impugned order, it could not be described either as without jurisdiction or without lawful authority. Taking alternative plea of adverse possession was neither contradictory to nor destructive of the plea of ownership already taken in the plaint. It was not inconsistent either. See, for example, Fazal Rehman versus Rahim Gul and others PLD 1965 (W.P) Peshawar 223. The truth or otherwise of the plea was also not germane to a final examination at the time of considering the propriety of allowing amendment to the pleadings. Reference can be had to the case of Syed Akhlaque Hussain and another versus Water and Power Development Authority, Lahore - 1977 S.C.M.R. 284. Powers to allow amendment to the pleadings under Order VI, Rule 17 C.P.C. are wide and expansive. Exercise of power rests in the discretion of the Court. If the proposed amendment is essential for determining the real question in controversy between the parties, there was no bar for allowing it. All rules of procedure are intended to aid and assist the main cause of justice. Power to allow amendment is also a step in that direction. On the powers of the Court to allow amendment, there is an instructive and self-illuminating judgment of the Supreme Court in Mst.Ghulam Bibi and others versus Sarsa Khan and others PLD 1985 Supreme Court 345. Judged on the guide lines provided by the above judgment of-the Supreme Court, impugned decision could not be termed faulty. There is not much doubt that refusal to allow amendment was clearly a 'case decided' and was revisable. There are number of decided cases to support this legal statement but since no contrary view was cited, I need not refer to all of them. Reference shall suffice to the case in Bashir Ahmad Khan versus Qaiser Alt KJian and 2 others PLD 1973 Supreme Court 507, which held that rejecting the application for amendment amounted to a 'case decided' and was amenable to correction in revision. In this view, jurisdiction of the revisional Court to interfere was beyond dispute. Against an order passed in revision by the District Court, a further revision to this Court is clearly prohibited in Section 115(3) of Civil Procedure Code. That is why, Civil Revision No.1693/1982, filed in this Court was allowed to be dismissed as withdrawn by reserving an option to file the Constitutional petition. In absence of a jurisdictional defect in the order, amended Section 115 CPC manifested a clear t intention that the order passed in revision shall be treated as and held final. Constitutional remedy is both extraordinary and exceptional and ordinarily should not be invoked on a mere difference of opinion on a point of law or fact. By the proposed amendment, neither the complexion of the civil suit was changed nor the cause of action displaced. Relief claimed in the suit remained the same. Only an additional plea was sought to be added to support the claim of ownership. As a last string to the bow, Mr.Nawab-ud-Din, Advocate, learned counsel for petitioners relied upon the decision in Maqbool Ahmad versus Government of Pakistan - 1991 SCMR 2063 (Shariat Appellate Bench) to contend that the plea of adverse possession was unlslamic and could not be allowed to be taken. No doubt, the pronouncement of the Shariat Appellate Bench favours his contention on repugnancy of Section 28 of Limitation Act 1908 to Injunctions of Islam, "in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for instituting a suit for possession of the property". Declaration of repugnancy of the statutory provision to Islamic Injunctions shall take effect from 31st of August 1991 as the date given in the judgment of the Court and it is on that date that the repugant provision shall cease to take effect. Learned counsel for petitioners pressed hard upon me to apply rule laid down by the Shariat Appellate Bench of the Supreme Court for holding that the plea of adverse possession was not available to the plaintiff-respondent. As at present advised, I do not propose to enter into the complex question of retrospectivity of the law laid down by the Shariat Appellate Bench and its effect on cases already pending or decided before it took effect. On the date of the impugned decision, which the Court is presently examining, no bar for acquisition of ownership rights on the basis of adverse possession existed in law. In view of the aforesaid, no valid ground existed for interference with the revisional order allowing amendment to the plaint for pleading adverse possession. Writ petition is, accordingly, dismissed with no order as to its costs. As the plaint in the suit was presented to the primary Court on 30.7.1979 and embraced a dispute about a small piece of land, decision of which has already suffered enormous delay, the trial Court is called upon to expedite and finalize the proceedings in the civil suit in as short a period as was possible for it in the circumstances. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 161 PLJ 1992 Lahore 161 Present: MUHAMMAD ILYAS, ACJ Mst. NASIM BEGUM-Petitioner versus MUHAMMAD AMIR KHAN-Respondent T.A. No.855-C of 1991, accepted on 16.2.1992. Family Courts Act, 1964 (W.P.Act, XXXV of 1964)- - —S.25-A-Rcstitution of conjugal rights-Suit for-Transfer of-Prayer fer—In view of nature ot two suits, common questions of law and faa are likely to arise therein—Conflicting findings can be avoided if both suits are heard and decided by one and same court-Held: Since petitioner is a female and Purdah Nashin lady, she deserves to be accommodated in preference to respondenr- Petition accepted and respondent's suit transferred to Lahore. [P.162JA Syed Munir Hussain Naqvi, Advocate for Petitioner. Respondent in person. Date of hearing: 16.2.1992. judgment Mst. Nasim Begum is wife of the respondent, Muhammad Amir Khan. She has made this petition for transfer of a suit for restitution of conjugal rights brought against her by the respondent. That suit is pending before Mr.Tahir Jamil Butt, Judge, Family Court. Chakwal. On the other hand the petitioner has filed a suit for dissolution of marriage, against the respondent, which is being heard by Mr. Jahandad Khan Banth, Judge Family Court, Lahore . The petitioner has prayed that the respondent's suit may also be transferred to the said Court at Lahore. 2. In view of the nature of the two suits, common questions of law and fact are likely to arise therein. Conflicting findings on such questions can be avoided if both the suits are heard and decided by one and the same Court. Further, if the two suits are allowed to be tried by the Courts now seized of them, the petitioner will have to go to Chakwal to defend the suit brought by the respondent and the latter will have to visit Lahore to resist the suit instituted by the former. It is, therefore, my desire that one of the parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the suit against her/him. Which of the two parties should be helped in this regard is the question which now falls for consideration. Since the petitioner is a female but the respondent is a male, and the petitioner claims to be apardah nashin lady and is a female but the respondent is a male I feel that she deserves to be accommodated in preference to the respondent. Accordingly,J accept this petition and transfer the respondent's suit from the said Family Court of Chakwal to the above Family Court of Lahore, which is trying the petitioner's suit for dissolution of marriage. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 162 PLJ 1992 Lahore 162 Present: ABDUL MAJID TlWANA, J LATIF AHMAD-Petitioner Versus Mst. RASHIDAN-Respondent Civil Revision No.157 of 1992, dismissed on 4.2.1992. Civil Procedure Code, 1908 (V of 1908)-- —O.VII R.ll-Plaint--Rejection of-Challenge to~Tendency is gaining ground to resort to frivolous litigation with a view to prolong it to detriment of opponent—This tendency is eroding confidence of general public in judicial system-One of methods to prevent this tendency is to attentively look at plaints at initial stage for application of Order VII Rule 11 of C.P.C.-In this case, plaintiff-petitioner, as per his own showing, was a tenant of disputed property and Civil Court had no jurisdiction to adjudicate upon rights of a tenant of agricultural land—He purposely suppressed facts of previous litigation in consolidation forums with a view to mislead Court-Held: There is no substance in revision-Petition dismissed in limine. [Pp.l64&165]A,B&C Malik Allah YartOian, Advocate for Petitioner. Date of hearing: 4.2.1992. order This civil revision arises out of the judgment and decree, dated 16.1.1991, by which a learned Additional District Judge at Chiniot dismissed the appeal of the plaintiff-petitioner against the judgment and decree, dated 9.1.1990, whereby a learned Civil Judge at Chiniot, while dismissing his stay application, also rejected the plaint of his suit. 2. The plaintiff-petitioner had sought a declaration to the effect that the proceedings regarding the execution of a warrant of possession as entered in 'roaznamcha waqiati' No.491 dated 11.7.1989, in respect of the suit land measuring 17 kanalas 1 marla situated in the area of village Ahmadnagar, Teshil Chiniot, were collusive, fictitious, against law and liable to be set aside. He also requested for a permanent injunction, seeking to restrain his opponent from interfering in his possession of the suit land. 3. His claim to that effect was based on insufficiently stated allegations in the plaint to the effect that he was occupaying the land as tenant-at-will under the landlordship of Mst. Hashmat Bibi, daughter of Abdul Ghafoor, but the defendant-respondent, on the basis of a so-called warrant of possession in collusion with the revenue staff, had fictitiously obtained possession of the suit land from him vide aforesaid report of 'Roaznamcha Waqiati' and he was entitled to the declaration prayed for, with consequential relief of perpetual injunction. He did not explain as (to) which court or authority had issued the warrant of possession and in what sort of proceedings. Alongwith the plaint he moved an application for temporary injunction, seeking to restrain his opponent from interfering in his possession of the disputed land till the decision of his suit. 4. The suit as well as the application both were contested by the defendantrespondent. Besides raising certain legal objections, including the lack of jurisdiction of the court, she, in her pleadings, averred that during the course of consolidation proceedings in the village she got her share of the land separated from that of the plaintiff-petitioner as the latter being in possession of the land was not allowing her to enjoy her share of produce and persuant to the decision of the onsolidation Authorities she took possession of the disputed property in the execution of warrant of possession. According to her, the plaintiff-petitioner duly contested the matter before the Consolidation Authorities right up to the level of Board of Revenue but remained unsuccessful throughout and ultimately took recourse to the civil courts. 5. The learned Civil Judge, while disposing of the stay application of the plaintiff-petitioner, also rejected the plaint vide his order, dated 29.1.1990, inter alia, on the ground that the parties had litigated in the consolidation forums right up to the highest level and the jurisdiction of the Civil Court, particularly when he wanted to stay over the land as a tenant, was barred. In his opinion, there was also lack of cause of action and locus standi in favour of the plaintiff-petitioner. 6. Aggrieved by these findings, the plaintiff-petitioner went up in appeal but there too he remained un-successful and has now come up to this Court for invoking its revisional jurisdiction. 7. Tt is argued on behalf of the plaintiff-petitioner that he continues to be in possession of the disputed property even now because on the execution of warrant of possession issued by the Revenue/Consolidation Authorities, fictituous report was made by the revenue staff. According to the learned counsel, since the proceedings taken by the Consolidation Authorities were illegal, the Civil Court had the jurisdiction to try the suit. He submits that the learned! trial Judge, while disposing of the application of the plaintiff-petitioner for the issuance of temporary injunction, could not proceed to reject the plaint and to this extent he acted in an unlawful manner. 8. Most of the case law on the subject is in favour of the proposition that a T ; court, while dealing with such matters, should not reject the plaint or dismiss the e suit which should be disposed of in normal course after framing the issues in view of the pleadings of the parties and recording their evidence. However, the opposite view is that in an extraordinary situation the court can reject the plaint under Order 7 Rule 11 C.P.C. because a frivolous Us needs to be burried as soon as possible. 9. Of late, it has been noticed with dismay that a tedency is gaining ground amongst the obstinate litigants and their lawyers, particularly in property suits where they are in possession, to resort to frivolous litigation with a view to prolong it to the detriment of their opponents. This tedency is, unfortunately, rapidly eroding the confidence of general public in the efficacy of the judicial system and the courts have to devise ways and means to check this tedency in order to protect those litigants who have genuine grievances. To achieve that object, one of the methods is to attentively look at the plaints at the initial stage in appropriate cases as to whether or not they attract the application of Order 7 Rule 11 C.P.C. and if the facts of the case justify the application of such provisions, the same must be applied for the rejection of the plaints, irrespective of the fact: whether that stage is (for) the disposal of the application for temporary injunction or it is somewhat earlier, which can be the institution of the suit, or at some time later, which can be the stage of framing of issues. 10. The case in hand appears to be one of those cases which should have attracted the provisions of Order 7 Rule 11 C.P.C. as the plaintiff-petitioner, as per his own showing in the plaint, was a tenant of the disputed property and the Civil Court had no jurisdiction to adjudicate upon the rights of a tenant of agricultural land. Further, he, in the plaint gave no indication about previous litigation between the parties in the consolidation forums and purposely suppressed these facts with a view to mislead the court about the real controversy involved and it was only the defendant-respondent, who, after her appearance disclosed in her pleadings the real background of the dispute between the parties. 11. In view of the above, there is no substance in the revision and the same is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 165 PLJ 1992 Lahore 165 Present: MALIK MUHAMMAD QAYYUM, J BUDHA etc.-Petitioners versus BORDER AREA ALLOTMENT COMMITTEE etc.-Respondents Review Application No.76 of 1991 (in W.P.No.470-R of 1981) accepted on (i) Limitation-- -—Writ petition-Judgment passed in-Reveiw of-Prayer for-Objection that review application is barred by limitation-Held: Suffice it to say that Supreme Court.has observed in leave grant order that petitioners can rely upon Sections 5 and 14 of Limitation Act, and in view of observations made in that order, delay in filing this review application has sufficiently been explained-Delay condoned. [P.168]B (ii) Review— —Writ petition—Judgment passed in—Review of—Prayer for—It is agreed that no proper inquiry has been conducted by any of authorities into real matter of controversy between parties—Review application allowed and case remanded to Border Area Allotment Committee for decision afresh. [Pp.l68&169]D&E (Hi) Review- —Writ petition-Judgment passed in—Review of-Prayer for~Objection that review on ground of discovery of new and important evidence can only be filed if applicant is able to establish that despite due deligence, he could not produce evidence earlier-Held: Proposition of law is correct but in this case, it has been noticed by Supreme Court that failure of petitioners to file documents earlier stands sufficiently explained-Objection over-ruled. [P.168JC (iv) Review- —Writ petition-Judgment passed in~Review of~Prayer for-Objection that under Section 114 of Civil Procedure Code, review of judgment can only be sought when no appeal is filed while in this case, petitioners had gone in appeal to Supreme Court-Admittedly petition for grant of special leave to appeal was filed under Article 185(3) of Constitution-held: Objection is without merit as Section 114 of C.P.C.bars an application for review only when • an appeal is allowed by Code of Civil Procedure itself and not when appeal is filed under some other law. [P.168JA PLD 1959 Lahore 31 rel. Mr.Shahzad Shaukat, Advocate for Petitioners. Mr.Muhammad Rafique, Advocate for Respondent No.l Sh Abdul Aziz, Advocate for other Respondents. Date of hearing: 2.2.1992. judgment This application under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, seeks review of judgment of this Court dated 26th November 1990, dismissing writ petition No.470/R of 1981 filed by Budha deceased, predecessor of the petitioners. 2. The dispute between the parties relates to an area of 40 Kanals of land bearing Khasra Nos.1839, 1840, 1846, 1847, 1848 in the revenue estate of Mauza Jandiala, Tehsil and District Lahore. 3. According to the case of the petitioners, the above mentioned land forms part of larger area of land measuring 162 Kanals 11 Marias which was allotted to the petitioner, Budha deceased, in the year 1964. Respondent No.2 was also an allottee in the same village. On 21st October, 1964, he filed an application, claiming that his allotment was deficient and he was entitled to further allotment of 40 Kanals. On this application, an order was passed by the Border Allotment Committee on 3rd April of 1965, transferring the land now in dispute to him. A mutation was also sanctioned in his favour on 7th February, 1979. The petitioner challenged this mutation by filing an appeal which was accepted on 22nd of October, 1973 by the Collector. 4. Subsequently, on 3rd April, 1975 an application for setting aside the order of allotment dated 21st of October, 1964 was filed by the petitioner before the Border Allotment Committee claiming that as the land in dispute stood allotted to the petitioner by the Rehabilitation Authorities, it could not have been transferred under the Border Area Allotment Scheme to respondent No.2. This application was accepted exparte by the Border Allotment Commmittee on 6th August, 1978. However, on 12th October, 1978 respondent No.2 applied for the review of the order dated 6th August, 1978 which was allowed by the Border Allotment Committee on 28th July, 1981 inter alia on the finding that the petitioner had failed to prove that the land in question stood allotted to him by the Rehabilitation Department and as such the land was again restored to respondent No.2.' 5. This order of the Border Allotment Committee was challenged by the petitioners by filing writ petition No.470/R/81 in which they sought a declaration that the impugned order dated 28th of July, 1981 passed in second review was without lawful authority and of no legaJ effect. This writ petition was dismissed on 26th of November, 1990. 6. The petitioners applied for leave to appeal against the judgment of this Court by filing Civil Petition No.57/L/1991 before the Supreme Court of Pakistan which was granted on 15th of April, 1991. While disposing of the said petition, it was also observed by the Supreme Court that a possibility cannot be ruled out that if the document annexed with the petition for leave to appeal had been produced before the High Court, the result of the writ petition might not have been the same. In the circumstances, the petitioners are directed to file an application for review and also for condonation of delay in filing the said application before this Court. It would be useful to reproduce the relevant observations o'f the Supreme Court of Pakistan which are as under:— "On the same reasoning as advanced by the learned counsel for the grant of leave to appeal we think that it will be in the interest of justice that the petitioners should be directed to file an application for review before the High Court and place the same material (Photo copies) on the record of those proceedings also. The apprehension in this behalf expressed regarding the limitation is not much well founded as reliance should be placed on Sections 5 and 14 of the Limitation Act as well as to these observations. Accordingly, we direct that during the pendency of the appeal in this Court the review application may also be filed before the High Court, it is hoped, shall be disposed of as soon as possible". 7. In compliance to the aforesaid directions, the petitioners have applied for review of the judgment in which notices were issued to the respondents who are duly represented by their counsel. 8. Before this application could be argued on merits, certain preliminary objections were raised by learned counsel for the respondents which may be disposed of at the out set. The first objection was raised on the strength of Section 114 of the Code of Civil Procedure, that review of judgment can only be sought when no appeal has been filed while admittedly in the present case, the petitioners had gone in appeal to the Supreme Court. This objection is without any merit. Section 114 of the Code of Civil Procedure bars an application for review only when an appeal is allowed by the Code of Civil Procedure itself and not when the appeal is filed under some other law. This conclusion is borne out not only by the very language of the procedure but is also supported by the judgment of this Court in Mian Abdul Aziz v. ZV.CA Chisty, Managing Director Katarband & Co. Power House, Jhang and another (PLD 1959 Lahore 31). In the present case, admittedly, the application for grant of special leave to appeal was filed under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, and it is under that provision that the Supreme Court of Pakistan granted the petitioner the leave. Consequently, the bar contained in Clause 114(«) is not attracted. 9. The next objection of learned counsel for the respondents relates to the question of limitation. Suffice it to say that the Supreme Court of Pakistan in its order dated 5th of April, 1991 has observed that the petitioners can rely upon Sections 5 and 14 of the Limitation Act. 1908 and the observations made in this B order for seeking the condonation of delay. (In) the factual position of the circumstances I feel that the delay in filing the application for review has been sufficiently explained. Therefore, CM. No.1/91 filed for condonation of delay is allowed. 10. The third objection raised by Sh.Abdul Aziz, learned coursel for respondent No.2 that review on the ground of discovery of new and important evidence can only be filed if the applicant is able to establish that despite due diligence, he could not produce the evidence earlier. The proposition of law as stated by learned counsel is correct but in the present case, it has been noticed by the Supreme Court of Pakistan that the failure of the petitioners to file the documents earlier stands sufficiently explained. That being so, I am not in a position to accept this objection. 11. As regards the merits, Mr.Muhammad Shahzad Shaukat, learned counsel for the petitioners, Mr.Abdul Hafeez, legal representative of respondents No.2 to ix and Ch.Muhammad Rafique Khan, advocate, appearing on behalf of D respondent No.l have all agreed that no proper inquiry has been conducted by any of the authorities into the real matter of controversy between the parties namely as to whether the land in question was allotted to Budha deceased, if so on what date and with what effect, the order of the Border Area Allotment Committee be set-aside and the matter remitted to it for decision afresh after hearing the parties. In view of the above discussion, the application is allowed and the judgment of this Court in Writ Petition No.470-R of 1981 is recalled, therefore, the case is remanded to the Border Allotment Committee for decision afresh. Petition accepted. There shall be no order as to costs. (MBC) (Approved for reporting)

PLJ 1992 Lahore 169 PLJ 1992 Lahore 169 Present: malik muhammad qayyum, J. NATIONAL FERTILIZER MARKETING LTD.-Petitioner versus SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF PUNJAB, and 2 others-Respondents Writ Petition No. 1956 of 1990, dismissed on 18.2.1992. (i) Civil Procedure Code. 1908 (V of 1908)-- —O.VI R.17-Writ Petition-Amendment of-Prayer for-Original petition proceeded on ground that fertilizers have been exempted from payment of export tax by Provincial Government—Petitioner cannot now be permitted to turn round and set up a case that export tax was not leviable from very beginning—Held: Amendment cannot be allowed as it would tantamount to permit petitioner to set up altogether new case which is inconsistent with earlier sland taken in main petition. [P.172JC (ii) Export Tax- —Fertilizers—Export tax on—Levy of—Challenge to—Article 165 of Constitution exempts income of Federal Government from payment of any tax leviable under Act of Provincial Assembly—Petitioner is a company incorporated under Companies Ordinance, 1984, and though its shares may be held by Government, but neither its properties nor its income can be said to be properties or income of Federal Government—Held: Petitioner is a separate entity and is not even a department of Government (and is not entitled to exemption from export tax)—Petition dismissed. [P.172JD 1989 CLC 1397 distinguished. (iii) Export Tax— —Fertilizers—Export tax on—Levy of—Challenge to—Contention that fertilizers stand exempted from payment of export tax imposed by Zila Council—Section 62 of Sindh Local Government Ordinance, 1979, is analagous to Section 139 of Punjab Local Government Ordinance, 1979, and law declared by Supreme Court applies with full force—Held: Government had no power to exempt fertilizers from payment of export tax. [P—]A&B Judgment of Supreme Court in C A. 205-K of 1991 rel. Mr. AsadMunir, Advocate for Petitioner. Mr. Irfan Qadir, Addl. A.G. for Respondent No.l. Mr. Muhammad Afaq, Advocate for Respondent No.2. Mr. Ali AhmadAwan, Advocate for Respondent No.3. Date of hearing: 2.12.1991. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by M/s. National Fertilizers Marketing Limited against Secretary, Local Government & Rural Development Department, Government of Punjab, Zila Council Multan and its contractor in which challenge has been made to the right of respondents No.2 and 3 to collect export tax on the fertilizer being manufactured by the petitioner. 2. The only ground as stated in this petition on which the recovery of the export tax has been challenged by the petitioner is that "Fertilizers" stand exempted from payment of export tax imposed by the Zila Council by virtue of letters of the Government of Punjab dated 1st of April, 1984 and 25th of September, 1990. These two letters copies of which have been placed as Annexures A and D to this petition read as under:- "I am directed to refer to your letter No.l. 10-7/76.F-Accounts dated 1st March, 1984, on the subject noted above and state that the Government of the Punjab , Local Government and Rural Development Department have exempted the fertilizer from the levy of export tax and all the Zila Councils have been directed to comply with the same." "You are requested to please direct the Export Tax Contractor not to charge the export tax on Fertilizer as it is already exempted from the payment of export tax vide this Department memo of No.SOVI(LG)l- 10/79(11) ddated 1.4.1989 (copy enclosed)" 3. The learned counsel appearing on behalf of respondent No.3 has however challenged the authority of the Government to exempt any article from the payment of export tax levied by the Zila Council under the Punjab Local Government Ordinance, 1979. This question was considered by the Supreme Court of Pakistan in a recent case namely M/s. Chandio Tahrani Food Industries (Pvt) Ltd. Vs . Mukhtar Ahmad Sheikh and others (Civil Appeal No.205-K of 1991). That case related to Octroi duty and arose under the Sindh Local Government Ordinance 1979 which is in paramateria with the Punjab Local Government Ordinance, 1979. The Supreme Court of Pakistan was pleased to rule that although the Government has the power under section 62 of the Sindh Local Government Ordinance, 1979 to direct any Council to suspend or abolish the levy of any tax, rate, toll or free but it cannot grant exemption from payment of any tax. In that case the Supreme Court was pleased to notice the distinction between suspension and exemption and quoted with approval the following passage appearing in an earlier judgment of the Supreme Court in Civil Appeal No.39-K of 1984 decided by the Supreme Court on 8.11.1989:-- "In view of the provision of clause (c) of subsection (1), the Government has undoubtedly the power to suspend or abolish the levy of any tax. But in this particular case, as will be noticed, the Government has not suspended or abolished the levy of octroi duty as such imposed by respondent No.5 within its limits. All that the letter of the Deputy Director states is that the octroi duty may not be "imposed" on the material brought by the appellant in the area of the Union Council for the construction of its factory. This is thus a case of granting exemption from payment of the duty and not one of suspension of the duty. In fact in its application to the Deputy Commissioner, the appellant had not asked for the suspension of the octroi duty but had merely sought exemption from the payment thereof. The word "suspension" and "exemption" have entirely different connotations. In Black's Law Dictionary fifth edition, the word "suspension" has been translated as a temporary step, a temporary dely, interception, or cessation whereas the word "exemption" has been explained to mean freedom from a general duty or service; immunity from a general burden, tax, or charge, immunity from certain legal obligations or the payment of taxes. In other words when a tax is suspended its very incidence is put in abeyance whereas when exemption is granted, the incidence of the tax remains unaffected but the liability created thereunder is not enforced. Now there is no provision in Ordinance which reserved the power of granting exemption to the Government. The High Court was, therefore, right in taking the view that the Government was not competent to direct respondent No.5 not to impose octroi duty on the material brought within the limits by the appellant for the construction of its factory." As section 62 of the Sindh Local Government Ordinance, 1979 is analogous to section 139 of the Punjab Local Government Ordinance, 1979, the law declared by the Supreme Court of Pakistan applies with full force and I have no hesitation in B declaring that the Government had no power to exempt the fertilizers from payment of export duty. 4. The petitioner has applied for permission to amend this petition by filing an application under Order 6 rule 17 of the C.P.C. so as to raise a plea that fertilizer is not one of the items on which tax can be charged by the Zila Council as it is not covered by the words "Chemicals and products, paints, Acid and Soda" appearing in item No. 17 of the schedule. The other ground sought to be raised by way of amendment is that the petitioner company which is owned by the Federal Government is not liable to pay any tax in view of Article 165 (1) of the Constitution. The third amendment sought is that the tax has not been levied in accordance with the law and the rules on the subject. 5. I am afraid the application filed by the petitioner for amendment cannot be allowed as it would tantamount to permit the petitioner to set up altogether new case which is inconsistent with the earlier stand taken in the main petition. The original petition proceeded on the ground that the fertilizers 0ave been exempted from payment of export tax by the Provincial Government and for this reason no charge can be made. The fact that these goods were liable to pay export tax but for the exemption was not disputed. The petitioner cannot, therefore, now subsequently by permited to turn round and set up a case that the tax was not leviable from the very begining. 6. Be that as it may, there is hardly any force in all these three contentions raised by the learned counsel. Item No.17 of the schedule as reproduced above is sufficient in itself to include fertilizers which are nothing but chemicals. The fact that the Government had proceeded to exempt the fertilizers from the payment of export tax also leads to the conclusion that it was understood by all concerned that the export tax is payable on fcriili/crs. 7. So far as reference lo Article 165 of the Constitution of the Islamic Republic of Pakistan. 1973. is concerned, it is to be seen that this Article exempts the income of Federal Government from payment of any tax leviable under any Act of Provincial Assembly. The petitioner is a company incorporated under the Companies Ordinance 1984 and though its shares may be held by the Government but neither its properties nor the income can be said to be the properties or income of the Federal Government. The petitioner is a separate entity and is not even a department of the Government. The learned counsel for the petitioner has relied upon Chainnan District Council, Rahim Yar Klian vs. United Bank Limited Rahim Yar Khan (1989 CLC 1397) in support of his contention that the petitioner is not liable to pay the export tax. The precedent relied upon by the learned counsel has no applicability as the decision on that case turned upon the interpretation of section 5 of the Banks (Nationalization) Act (XIX of 1974) b\ virtue of which the ownership of all banks stood transferred to and vested in the Federal Government which is not (the) case here. Moreover that case related to payment of provincial tax. 8. As regards the last point suffice it to say that nothing has been placed on record to show that the tax has not been levied after following the prescribed procedure. It may be stated that the learned counsel for the petitioner has also referred to the judgment of this Court in Multan Chemicals vs. District Council, Lahore (1991 MLD 910) which too has no application.For reasons aforesaid there is no force in this petition. It is dismissed, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 173 PLJ 1992 Lahore 173 Present: MUHAMMAD ILYAS, A.C.J. Mst. AZRA PARVEEN-Petitioner versus Rana SAEED AHMAD-Respondent T.A.No.21/C of 1992, accepted on 17.2.1992. Family Courts Act, 1964 (W.P. Act. XXXV of 1964)-- —S.25-A-Restitution of conjugal rights-Suit for-Transfer of--Prayer for~ Petitioner will have to come to Lahore to defend suit for restitution of conjugal rights whereas respondent will have to visit Toba Tek Singh to resist appeal filed by petitioner against dismissal of her suit for dissolution of marriage- Held: Since petitioner is female and she apprehends trouble at hands of respondent in event of coming to Lahore, she deserves to be accommodated in preference to respondent-Petition accepted and suit for restitution of conjugal rights transferred from Lahore to Kamalia. [Pp.l73&174]A Syed Fida Hitssain, Advocate for Petitioner. Nemo for respondent. Date of hearing: 17.2.1992. judgment A/sf.Az.ra Parveen is wife of the respondent, Rana Saecd Ahmad. She has made this petition for transfer of a suit for restitution of conjugal rights brought against her by the respondent. That suit is pending before Mr. Khalid Mahmood Cheema, Judge, Family Court, Lahore . The petitioner had also filed a suit for dissolution of marriage bafore Mr. Muhammad Jamil, Judge, Family Court, Kamalia, District Toba Tek Singh, which was dismissed. Feeling aggrieved by the judgment and decree passed in her suit, the petitioner has preferred an appeal which is pending before the District Judge, Toba Tek Singh. 2. It is obvious that if the petitioner's appeal and the respondent's suit for restitution of conjugal rights are heard by the Courts now seized of them, the petitioner will have to come to Lahore to defend the suit brought by the respondent and the latter will have to visit Toba Tek Singh to resist the appeal preferred by the former. It is, therefore, my desire that one of the parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the suit/appeal against her/him. Which of the two parties should be helped in this regard is the question which now falls for consideration. Since the petitioner is a female but the respondent is male, and also the petitioner apprehends trouble at the hands of the respondent in the event of her coming to Lahore to defend the suit brought against her, I feel that she deserves to be accommodated in preference to the respondent. Accordingly, I accept this petition and transfer the respondent's suit from the said Family Court of Lahore to Kamalia. The learned District Judge will entrust the case to the Family Court other than the one which had dismissed the suit of the petitioner, or hear it himself. If the case is not heard by the learned District Judge himself, he may consider the question of staying proceedings in the petitioner's appeal till the disposal of the suit brought by the respondent. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 179 PLJ 1992 Lahore 179 Present: ZlA MAHMOOD MlRZA, J Mst. SHAGUFTA YOUNUS-Petitioner versus DIRECTOR OF EDUCATION etc.-Respondents Writ Petition No.7630 of 1991 (also 61 other writ petitions) dismissed on 24.11.1991. (i) Constitution of Pakistan, 1973- —-Art.199 read with Article 212-Education employees-Transfer of Cancellation of transfer orders-Challenge to~Whether writ petitions are maintainable-Question of-It is fairly settled that in matters relating to terms and conditions of service, jurisdiction of all other courts including High Court, stands completely ousted under Article 212 of Constitution—Mere fact that these orders were issued on direction of Chief Minister, would not render them orders of a non-departmental authority-They would be appealable before service Tribunal-Held: Jurisdiction of High Court stands completely ousted by virtue of Article 212 of Constitution. [Pp.l81,182&183]A,B&C PLJ 1990 SC 503, NLR 1981 Service 96 and PLJ 1989 Lahore 288 distinguished (ii) Locus Poenitentia- —Education employees-Transfer of-Cancellation of transfer orders- Challenge to-Whether principle of locus poenitentia was not available to respondents to withdraw/cancel transfer orders-Question of~Petitioners had no vested right to be posted at any particular place-Under Section 9 of Punjab Civil Servants Act, 1972, a civil servant is liable to serve at any place in Province-Held: Impugned orders directing petitioners to report back to their previous places of posting, prima fade, do not appear to be open to any exception-Petitions dismissed. [P.183JD&E Ch. Mushtaq Ahmad Klian, Advocate for Petitioner. Mr. Farooq Bedar, Additional Advocate General, and Rana Muhammad Arshad, Additional Advocate General for Respondents. Dates of hearing: 1?- 18, 23 and 24.11.1991. judgment This judgment shall dispose of sixty-two writ petitions bearing (numbers) 7630-91, 7634-91, 7635-91, 7637-91, 7639-91, 7640-91, 7642-91, 7643-91, 7646-91, 7647-91, 7649-91, 8112-91, 8115-91, 8114-91, 8113-91, 8116-91, 8117-91, 8118-91, 8119-91, 8120-91, 8121-91, 8122-91, 8123-91, 8124-91, 8125-91, 8126-91, 8164-91, 8165-91, 8166-91, 8167-91, 8168-91, 8169-91, 8581-91, 8582-91, 8583-91, 8584-91, 8023-91, 8024-91, 8025-91, 8026-9^ 8163-91, 9051-91, 6909-91, 7575-91, 7430-91, 9251-91, 10023-91, 8250-91, 7843-91, 7786-91, 7722-91, 8130-91, 8160-91, 8241-91, 8233-91, 8476-91, 9346-91, 9813-91, 7798-91, 7826-91, 7778-91 and 10201-91 all of which are directed against almost identical orders passed by Education Authorities cancelling the previous transfer orders of the petitioners. 2. Petitioners in all these petitions are PTC Teachers. They were working in different Government Primary, Middle and High Schools in various Districts when a project for improvement of primary education to be financed through foreign aid designated as Primary Education Project-Ill was initiated and the Government of Punjab vide Memo No.SO(FA.) 1-61/91 dated 22nd January, 1991 (Annexure 'A' with the written statement in W.P.No.7630-91) sanctioned a large number of posts of supervisory and teaching staff commonly known as S.N.E. posts. These posts, according to the policy decision of the Government, were to be filled in by direct recruitment through Departmental Selection Committees at Tehsil level. It, however, appears that at the relevant time, direct recruitment was banned and the petitioners, therefore, either managed their transfers or the Authorities transferred them against the newly created/sanctioned S.N.E. posts. Most of these transfers were made in the month of February, 1991. When the matter came to the notice of the Chief Minister, Punjab, he took a serious view of the transfers in question and directed that all the orders of transfers made against S.N.E. posts be withdrawn and the posts kept vacant till the ban on recruitment is lifted. In compliance with the Chief Minsiter's direction, the concerned Authorities in the Education Department cancelled/withdrew the orders of transfers/adjustments passed earlier and directed the petitioners to report back at their previous places of posting. These orders have been brought under challenge in the present constitutional petitions. 3. I have heard the learned counsel for the petitioners as also the learned Additional Advocate-General on behalf of the respondents. Learned Additional Advocate-General raised a preliminary objection based on the provisions of Article 212 of the Constitution, His contention was that the petitioners were the civil servants. The matter of transfer agitated by them in these petitions essentially relates to the terms and conditions of their service and as such their remedy lay before the Service Tribunal which has exclusive jurisdiction in such matters by virtue of Article 212 of the Constitution read with Section 3 of the Punjab Service Tribunals Act IX of 1974. Reliance for this submission was placed on M.Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 S.C.22), Iqan Ahmed Khurram v. Government of Pakistan (PLD 1980 S.C. 153), Mansoor Elahi v. North-Westem Frontier Province (PLD 1980 Peshawar SI), Abdul Ban v. Government of Pakistan (PLD 1981 Karachi 290), Collector, Central Excise and Land Customs v. Aslam Ali Shah (PLD 1985 S.C. 82), Begum Ismat Azhar v. Punjab Government (PLD 1987 Lahore 256) and Sitpdt. of Police v. Muhammad Latif (PLJ 1988 S.C. 221). 4. Ch.Mushtaq Ahmad Khan, Advocate, who mainly argued the case on behalf of the petitioners contended that the impugned orders though purporting to have been passed by the Deputy Education Officers were, in fact, issued on the direction of the Chief Minister who is not competent Authority hi the matter of transfers of the petitioners. Learned counsel argued that only an order passed by a 'departmental authority' within the meaning of the Explanation appended to Section 4 of the Punjab Service Tribunals Act is appealable before the Service Tribunal. According to the learned counsel, impugned orders in these cases could not be said to have been passed by the competent 'departmental authorities' and, therefore, appeals could not he maintained before, the Service Tribunal. It was further contended by the learned counsel that since the impugned orders were not passed by the Deputy Education Officers after indepedent application of their own minds but on the direction of the Chief Minister, they were complete nullity and as such this Court would have the jurisdiction to interfere under Article 199 of the Constitution notwithstanding the provisions of Article 212. Reliance for these submissions was placed on Ahmad Khan v. Member (Consolidation), B.O.R. (PLJ 1990 S.C. 503), Syed Saeed Hussain Shah v. Punjab Province etc. (NLR 1981 Service 96), Abdur Rauf v. Director, Local Government and Rural Development Sargodha and another (PLJ 1989 Lahore 288) and Faiz Muhammad v. PRTBS (NLR 1985 Service 50). 5. I have given my anxious consideration to the submissions made by the learned counsel for the parties with respect to maintainability of these petitions and have perused the case law cited by them. Law by now is fairly well settled that in matters relating to terms and conditions of service of a civil servant which lie within the competence of Service Tribunal, jurisdiction of all other Courts including this Court stands completely ousted by virtue of Article 212 of the Constitution. Reference may usefully be made to Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore 545) wherein it was held that in view of the jurisdiction-ouster clause of Article 212 of the Constitution, petition under Article 199 of the Constitution pending before this Court had abated. This view was approved by the Supreme Court of Pakistan in the case of "M.Yameen Qureshi" cited by the learned Additional Advocate-General. In the case of "Iqan Ahmad Khurram" (PLD 1980 S.C. 153), Supreme Court of Pakistan while dealing with the objection regarding the non-maintainability of a petition under Article 199 of the Constitution observed that "the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the qeustion of vires of the Rules >is-a-vis Section 25 of the Act would necessarily be considered". A full Bench of the Peshawar High Court in Mian Amanul Mulk v. NWFP through Chief Secretary (PLD 1981 Peshawar 1) held that the provisions of Article 212 of the Constitution "on the very language oust the jurisdiction of all other Courts" and "an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal" and the jurisdiction of all other Courts is specifically ousted. In yet another case reported in PLD 1983 S.C. 100, Supreme Court of Pakistan held that "under the new dispensation, the Service Tribunal was made the sole arbiter of atl disputes relevant to the terms and conditions of civil servants and the jurisdiction of ordinary courts was altogether excluded in these matters". Similar view was expressed in the cases reported in PLD 1981 Karachi 290, PLD 1985 S.C. 82 and PLJ 1988 S.C. 221 relied upon by the learned Additional Advocate-General. Reference may particularly be made to the case of "Begum Ismat Azhar" cited by the learned Additional Advocate (General) wherein it was held that "posting and transfer being a necessary condition of service is outside the scope of constitutional jurisdiction of this Court, as enshrined hi Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973". 6. Contention raised by the learned counsel for the petitioners may now be examined. There can be no cavil with the proposition that only the order of the 'departmental authorities can be challenged hi appeal before the Service Tribunal. It is not denied that the impugned orders were issued by the authorities competent to transfer the petitioners. The mere fact that these orders were issued on the direction of the Chief Minister, in my view, would not render them orders of a non-departmental authority. They would nonetheless remain appealable before the Service Tribunal and the argument that they were passed on the direction of the Chief Minister without independent application of mind by the authorities concerned would be a moot question in the appeal. It is a settled principle of law that an appeal lies from a decision without jurisdiction just as an appeal lies from a decision with jurisdiction. Refer Ashfaq v. The State (PLD 1973 S.C. 368). It was also held in the case of 'Muhammad Aslam Bajwa' referred to above that right of appeal as given in Section 4 of the Service Tribunals Act was available even against orders which are without jurisdiction and it was for the Service Tribunal to decide whether the order impugned before it was with jurisdiction or without jurisdiction. Words "competent to make an order" used in the Explanation to Section 4 were also interpreted in that case and it was held that these words do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case Jhe said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though hi that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that Sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject-matter of a case on which will depend the ouster of jurisdiction of other courts. If the subject-matter of Courts or Tribunals of exclusive jurisdiction is the 'terms and conditions of service' or 'discipline' and relates to persons who arc or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete". Brief reference may now be made to the cases cited by the learned counsel for the petitioners. The view expressed in the case of "Syed Saeed Hassan Shah", that the bar contained in Article 212 against maintainability of writ petition in service matters does not operate in a case where the order impugned is void appears to be, if I may say so with utmost respect, contrary to the preponderant trend of authority. In the case of "Abdul Rauf" question of appealability of the impugned order before the Service Tribunal was not at all examined. Case of "Faiz Muhammad' is also of no help to the learned counsel for the petitioners as the order impugned therein was passed by wholly incompetent authority. The case of "Ahmad Khan v. MBR" does not relate to service matter at all. 7. In the aforesaid view of the matter, since the petitioners are admittedly civil servants and their grievance is germane to the terms and conditions of their service, they could well challenge the impugned orders in appeal before the Service Tribunal which has exclusive jurisdiction in such matters. That being so, jurisdiction of this Court stands completely ousted by virtue of Article 212 of the Constitution. 8. Learned counsel for the petitioners sought to assail the validity of the impugned orders mainly on the ground that the transfer orders having been acted upon, locus poeitentia was not available to the respondents to withdraw/cancel those orders. The contention appears to be misconceived as the petitioners had no vested right to be posted at any particular place. Under Section 9 of the Punjab Civil Servants Act. 1973, a civil servant is liable to serve at any place in the Province and, therefore, he can be transferred from one place to the other, of course, in exigencies of service and for administrative reasons. In these cases, petitioners were admittedly transferred against the posts which were meant to be filled in by initial recruitment. It is also stated in the written statements filed by the respondents that the newly sanctioned posts were in BPS-7. In the circumstances, the impugned orders directing the petitioners to report back to their previous places of posting, prima fade, do not appear to be open to any exception more so in writ jurisdiction. 9. In view of what has been said above, interference by this Court in its constitutional jurisdiction is not warranted. Writ Petitions noted in para 1 above thus stand disposed of with no order as to costs. (MBC) (Approved for reporting) Petitions dismissed.

Present: MlAN NAZIR AKHTAR, J MUHAMMAD ANWAR-Petitioner Present: MlAN NAZIR AKHTAR, J MUHAMMAD ANWAR-Petitioner versus Haji MUHAMMAD ISMAIL and 3 others-Respondents Writ Petition No.6971 of 1989, accepted on 4.2.1992. Relationship of Landlord and Tenant- —Tenant-Ejectment of~Prayer for-Landlord and tenant—Relationship of Denial of-Rent Controller came to conclusion that rent deed was proved through evidence and that respondent No.l had advanced false plea of purchase of disputed shop-Appellate Court, without meeting reasoning of Rent Controller, illegally allowed appeal of respondent No.l~Argument that rent deed should have been proved in accordance with provisions of Articles 17 and 79 of Qanun-e-Shahadat, has no force-Both witnesses, AW 1 and AW 2 appear to be truthful persons and their testimony .can safely be relied upon- Entries of E.T.O. record show that property in dispute belonged to predecessor-in-interest of petitioner-Held: Relationship of landlord and tenant is established-Petition accepted. [Pp.l85,186&187]A,B,C&D NLR 1980 (Lah.) 460 distinguished. Mr. Muhammad Aqil Mirza, Advocate for Petitioner. Ch. Muzammal Khan, Advocate for Respondents. Date of hearing: 15.12.1991. judgment The dispute pertains to a shop bearing No.XIX-l-S-120(lower portion), situated in Gali Araian, Sialkot, which was rented out to Haji Muhammad Ismail, respondent No.l in the year 1967 at the rate of Rs.35/- per month. Rent was increased from time to time and in the year 1988, it was Rs.175/- per month. 2. An ejectment petition was filed by the petitioner against respondent No.l on 5.3.1988, on the ground of default from 1986 till the date of institution of the petition and sub-letting. The petition was accepted by the learned Rent Controller on 29.9.1988 Who ordered eviction of respondent No.l from the shop. Respondent No.l preferred an appeal which was accepted by the learned Additional District Judge, Sialkot vide his judgment dated 3rd May, 1989. 3. The petitioner's learned counsel submits that the relationship of landlord and tenant was proved through the rent-deed dated 23.4.1967 (ExhA-1). He submits that the Rent-Deed was duly proved through statements of marginal witnesses AW-1 Muhammad Yousaf and AW-2 Shaukat Mahmood son of Muhammad Mehdi, the deceased marginal witness. He submits that AW-1 had stated that Haji Muhammad Ismail, the tenant had signed the rent-deed in his presence and the said statement was never questioned in cross-examination. He points out that signature of respondent No.l appearing on the back of rent-deed in token of receipt of rent were proved through statement of AW-2. The learned counsel for respondent No.1 submits that the rent-deed was not proved in accordance with the law. He adds that the execution of the deed was denied by respondent No.l and the petitioner failed to prove its execution under the provisions of Articles 17 and 79 of Qanun-e-Shahadat ( 1984. He further submits that there is no evidence to show that the relationship of land-lord and tenant existed between the parties. He submits that the findings of fact recorded by the appellate court are not liable to be set aside in the exericse of constitutional jurisdiction in the absence of mis-reading or non-reading of evidence on the record. Lastly respondents' learned counsel contended that the petition was incompetently filed by Murad All, special attorney of the landlord. In support of his contentions he placed reliance on the following judgments:- (/) Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Peshawar 380). (it) Munir Hussain v. Mst. Mehrun Nisa(PLD 1982 Karachi 71). (///) Gul Dad KJian v. RaMm Shah (PLD 1978 Kar. 19). (/v) Mst. Sarwar Sultan v. Mrs. Saeeduddin(NLR 1980 AC (Lahore-460). In reply the learned counsel for the petitioner submits that Articles 17 and 79 of Qanun-e-Shahadat were applicable to documents which had come into existence after 1984. As regards the documents which existed prior to the enforcement of the Order, the provisions of Section 68 of Evidence Act were applicable. 4. There is considerable force in the arguments raised by the petitioner's learned counsel. The appellate court did not care to meet the reasoning of the learned Rent Controller regarding his findings on issue No.l and illegally allowed the appeal of respondent No.l. The learned Rent Controller had come to the conclusion that rent deed Exh.A-1 was proved through the statements of Muhammad Yousaf AW-1 and Shaukat Mahmood AW-2. He also noted that respondent No.l had advanced a false plea of purchase of the disputed shop from one Ayub but did not produce any evidence to substantiate the same. The appellate court appears to have rejected the testimony of AW-1 and AW-2 on exteraneous considerations. Muhammad Yousaf AW-1 had clearly stated that he had signed Exh.A-1. Rent Deed, as a marginal witness and that Haji Muhammad Ismail respondent No.l had signed in his presence. He also stated that Mehdi Shah, the other marginal witness had appended his signature on the said document in his presence. True, he stated that the rent-deed had already been written and was brought to the shop for his signature but the same does not detract from validity of the document because respondent No.l had voluntarily signed it and thus owned the contents of the document. This witness has honestly stated that he did not know Haji Muhammad Ismail earlier. It simply meant that he had known him since the date of signing the document. Moreover, no suggestion was put to him that in fact, some other person was produced who had signed posing himself as Haji Muhammad Ismail. This witness was not in any .doubt about the fact that it was Haji Muhammad Ismail, respondent, who had signed the document although he was not known to him prior to the date of signing it. The specific assertion that Muhammad Ismail, respondent No.l had signed (he rcnl deed was not even challenged in cross-examination, which would amount to admission of the said statement. The other marginal witness namely Mchdi Shah had passed away and his son Shaukat Mahmood appeared in the court who dulv identified the signature of his late father on Ex.A.l. Mchdi Shah had signed the document in the absence of this witness but he being the son was conversant with the handwriting and signatures of his father and had identified the signature on the document. The document Ex.A.l was duly proved through the statements of A.W.I and A.W.2. For proving execution of the document it was not necessary to produce the scribe of the document in the court. The argument of the respondent's learned counsel that the rent deed (Ex.A.l) should have been proved in accordance with the provisions of Articles 17 and 79 of Qanun-e-Shahadat has no force as the said document had come into existence in the year 1967 and Qanun-e-Shahadat was enforced in the year 1984. Even otherwise, under Article 79 of Qanun-e-Shahadat, execution of the document has to be proved by the two attesting witnesses, if alive. In the present case one attesting witness namely Muhammad Yousaf was alive and examined as A.W.I. The other attesting witness namely Mehdi Shah had died and his signatures were proved through the evidence of Shaukat Mahmood, A.W.2, son of the deceased witness. There is nothing to show that the witnesses were not competent to testify as required by Article 3 read with Article 17 of the Qanun-e-Shahadat. Both the witnesses appear to be truthful persons and their testimony can be safely relied upon. 5. In the presence of the above referred evidence, burden shifted to respondent No.l to show in what capacity he was occupying the disputed shop. In his written statement he admitted that he was in possession of the shop but denied that he was a tenant. He neither asserted in the written statement that he was owner of the shop nor claimed that he was a tresspasser or an unauthorized occupant. However, while appearing as RW.l he falsely claimed to have purchased the shop from one Ayub. The learned Rent Controller disbelieved the said statement and rightly concluded that respondent No.l was in occupation of the shop as a tenant under the petitioner. Respondent No.l had stated that he never paid rent to the landlord. Now he cannot turn round and plead payment and is liable to be evicted on the ground of wilful default. 6. The argument of the respondents' learned counsel that the ejectment petition was not competently filed by Murad Ali, special attorney of the petitioner, has no force. The petitioner had duly appointed Murad Ali as his special attorney and authorised him to institute ejectment petition, appoint a counsel, make statement in the court, file application etc. The judgment in the case of Munir Hussain v. Msi.Melinm Nisa (PLD 1982 Karachi 71) relied upon by the .respondents' learned counsel is distinguishable because in that case the execution of the power of attorney was seriously disputed and it was held that it was not proved. Moreover, in the above judgment the attorney was not even authorised to institute the ejectment petition. In the present case, the petitioner did not say a single word in his statement to challenge the validity of the general power of attorney. 7. The respondents' learned counsel also relied on the cases of Haji Muhammad Ram/an and Guldad Khan to urge that entries in the Excise and Taxation Register are not relevant for deciding the question of relationship of landlord and tenant between the parties. Of course, the entries in the E.T.O. record, per sc, arc not sufficient to decide the said question but where the claim of landlord is based on his ownership of the property, the entries are relevant. This view finds support from the cases of Muhammad Fazal v. Tariq Aziz Malik (NLR 1989 (civil) 431) and Ghularn Fatima etc. . Syed Bashir Ahmad (1982 C.L.C. 1575). In the present case the entries of the E.T.O. record pertaining to the year 1987/88 (Ex.A.3) show that the property belonged to Murad Mirza, predecessor-in-interest of the petitioner and the 4 shops therein were occupied by different persons as tenants, including Hafeez Qasab, respondent No.2 who, according to Haji Muhammad Ismail respondent No.l, was his servant. Moreover, the relationship of landlord and tenant between the petitioner and the respondent No.l is established through a written document Ext.A.l which is proved by the statements of Muhammad Yousaf, A.W.I and Shaukat Mahmood, A.W. 2. He also placed reliance on the case of Sarwar Sultan v. Saced-ud-din (NLR 1980, A.C. (Lah) 460) to urge that the appellate court was justified to reverse the findings of the Rent Controller on re-appraisal of the evidence. The said judgment proceeds on its own peculiar facts and has no bearing on the facts and circumstances of the present case. ( s. For the foregoing discussion, I allow this petition, declare the impugned order dated 3.5.1989, passed by the learned Additional District Judge to be without lawful authority and of no legal effect and restore that of the Rent Controller, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 187 PLJ 1992 Lahore 187 Present: MALIK ML 1 IAM.MAD Q AY YUM, J Rat MAZHAR IQBAL and another-Pelitioners versus UNIVERSITY OF THE PUNJAB and 2 others-Respondents Writ Petition No.8792 of 1991, accepted on 10.2.1992. University of the Punjab Act, 1973 (IX of 1973)-- —-S.28 read with Constitution of Pakistan, 1973, Article 25- M.Sc.(Mathematics)—Examination of—Different syllabi and examinations for private candidates-Prescription of-Chaljenge to-Objective behind provisions of Act is to lay down proper standards for testing proficiency, knowledge and skill of candidates—Although discretion vesting in respondents for prescribing courses of studies is wide and vast, but they are bound to act fairly, justly, properly and rationally-If discretion has been exercised unreasonably or irrationally, order passed or action taken is liable to be struck down—Held: No rational basis having been shown for prescribing different syllabi and different examinations for regular and private students, decision is whimsical, discriminatory and unreasonable-Petition accepted. [Pp.l89,190&191]A,B,C&D PLJ 1990 SC 543, PLD 1991 SC 14, PLJ 1986 SC 355 and PLD 1991 SC 35 rel. A7i. Saeeduz Zafar, Advocate for Petitioners. Ch. Muhammad Farooq, Advocate for Respondents. Date of hearing: 10.2.1992. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by Rai Mazhar Iqbal, and another, who are private students of M.Sc. Part-I (Mathematics), against the University of Punjab and two others, praying that the decision of the respondents to hold separate examinations and prescribe separate syllabi for regular and private students of M.Sc. Part I (Mathematics) be declared to be without lawful authority and of no legal effect. 2. The facts which have emerged from the respective contentions of the learned counsel for the petitioners and which are not in dispute, are that till the year 1969, no private student was permitted by the University to what at that time was known as M.A.Mathematics Examination. It appears that in the year 1969, the syllabus was revised and the examination was re-named as M.Sc. (Mathematics). In 1979 again, new syllabus was prescribed but even at that time there was prohibition for private students to appear in the examination. It was for the first time on 16th May, 1987 that the University decided to allow private students to take the examination. However, the syndicate of the University of the Punjab in its meeting held on 14th April, 1984, approved the recommendation of the academic counsel to the effect that the private candidates be allowed to take M.Sc. (Mathematics) Part I and Part II new scheme examination. Consequently, the private students were allowed to appear in the same examination which was prescribed for the regular students. On 2nd November, 1989, a notification was issued by the University of the Punjab, whereby a different syllabus and courses for reading M.Sc. (Mathematics) examination was prescribed for private candidates who were requrired to take examination separately from the regular students. This decision of the University was challenged by the petitioner by fijing Writ Petition No.618/90 which was, however, disposed of with the direction that the petitioner should first approach the Vice Chancellor of the University of Punjab by filing a representation, which shall be disposed of before 10th August, 1990. 3. It appears that the Vice Chancellor did not accept the representation made by the students. Consequently, another constitutional petition, namely, Writ Petition No.6260/90 was filed in this Court which came up before the learned Single Judge on 12th September, 1990, when it was stated by Ch.Muhammad Farooq, learned Legal Adviser of the respondent that the impugned notification respecting MA. (Mathematics) examination has been withdrawn. In view of that statement, the petition was not pressed by the petitioner, which was disposed of accordingly. 4. Unfortunately, despite having made the above statement in this Court, it was again decided by the University on 24th September, 1991, to hold separate examinations for the regular and private candidates, and separate syllabi for regular and private students. This notification dated 24th September, 1991, has been assailed in this petition. 5. It is argued by the learned counsel for the petitioners that after having withdrawn the earlier notification unreservedly be making a statement before this Court, it was clearly not open to the respondents to again issue a notification to the same effect. It was further contended that the exercise undertaken by the respondents is mala fide besides being unfair, unjust, discriminatory and unreasonable. 6. It may be observed to the credit of Ch.Muhammad Farooq, learned counsel appearing for the respondents that in his opinion the action of the University in prescribing separate examinations and different syllabi for regular and private candidates was not justified. He, however, put accorss the view of respondent No.2 according to which the action was unexceptionable. 7. The University of Punjab was reconstituted and reorganized in the year 1973 by promulgation of University of Punjab Act, 1973. Under Section 4 of the Act, the University is inter alia empowered to hold examinations, to prescribe courses of studies and to award and confer degrees on successful candidates. Section 27 of the Act envisages the setting up of an academic council. Section 28 empowers the council to lay down proper standards of instructions and examinations. It is stated in sub-section 4 of Section 28 that the Academic Council shall have power inter alia to make regulations to prescribe the courses of studies, the syllabi and outline of test for all University examinations. 8. It needs no gain saying that the objective behind all these provisions, is to lay down proper standards for testing the proficiency, knowledge and skill of candidates. It is with this view that the s)>ltabi are prescribed by the Academic Council on behalf of the University. Although, according to the language of the statute and also in view of the nature of the power, the discretion vesting in the A respondents for prescribing the courses of studies for the students, is wide and vast and this Court would normally be reasonably loath to interfere in such matters, but like any other administrative authority or agency, the University while performing its functions is bound to act fairly, justly, properly and rationally. 9. In Aman Ullah KJtan and others v. 77ic Federal Government of Pakistan, through Secretary, Ministry of Finance, Islamabad and others(PLJ 1990 SC 543), the Supreme Court of Pakistan was pleased to observe 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".To the same effect are the observations of the Supreme Court in Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi(PLD 1991 SC 14) and Muhammad Iqbal Kliokhar and 3 others v. Government of the Punjab through the Secretary to Government of the Punjab, Lahore and two others (PLD 1991 SC 35). 10. It is also well settled law that the action taken by an executive authority must fulfil the test of reasonableness. If it can be demonstrated that the discretion vesting in authority has been exercised unreasonably or irrationally, the order passed or the action taken is liable to be struck down. In Federation of Pakistan and others v. Ch.Muhammad Aslum and others (PLJ 1986 SC 355) it was ruled that it is well recognized that all executive powers arc to be exercised fairly and justly for advancing the object of legislation. In other words, every such.exercise of power has to be exercised fairly and justly, for advancing the object of legislation. In other words, every such exercise of power has to satisfy the test of reason and relevance. 11. The following statement of law, appearing in Administrative Law by H.W.R. Wade Sixth Edition at page 397 is of relevance:— "An extensive repertory of similar statements is to be found in the speeches of the Law Lords in Roberts V. Hopwood, a celebrated case where the whole issue revolved round reasonableness. The district auditor had disallowed as 'contrary to law' the over-generous wages paid by the Borough Council of Poplar to their employees under an Act empowering them to pay such wages as they 'may think fit'. What limit should the law set to this apparently unbounded discretion. In upholding the auditor the House of Lords decided unanimously that the Council were not at liberty to pay more than what was reasonable in the light of rates of wages generally. Lord Sumner says that the words 'as they think fit' contained a necessary implication both of honesty and of reasonableness, and that the admitted implication as to bad faith was wide enough to include both. This is precisely what Lord Mcnaghten had said. Lord Sumner added: There are many matters which the courts are indisposed to question. Though they are the ultimate judges of what is lawful and what is unlawful to Borough Councils, they often accept the decisions of the local authority simply because they are themselves ill equipped to weigh the merits of one solution of a practical question as against another. This, however, is not a recognition of the absolute character of the local authority's discretion, but of the limits within which it is practicable to question it". 12. Viewed in the light of the above principles, it is to be seen that no rational basis has been disclosed by the respondents for prescribing different syllabi and different examinations for regular and private students. As already observed, the objective behind the examination is to test student's knowledge and proficiency, so as to find out whether they have acquired an accepted standard. It is not understandable as to why different standards should be prescribed for private and rcuular candidates when the degree to be conferred upon them is the same. Even the learned counsel lor the respondents is unable to explain the reasons. It appears that the decision is whimsical and discriminatory and unreasonable. It is also hit by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. 13. It is also to be noticed that in the earlier writ petition bearing No.36/90, filed by the petitioners, the respondents had withdrawn the notification impugned therein by virtue of which separate courses have been prescribed for regular and private student.-,. LnlorlunalcK. lor reasons best known to those in authority, the same decision appears to ha\e been taken again without any change in circumstances. The impugned decision is, therefore, clearly not sustainable. As a result of what has been said above, this petition is allowed and the impugned notification to the extent it prescribes separate examinations for regular and private candidates, is declared 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 1992 Lahore 191 PLJ 1992 Lahore 191 Present: MUI1AMMAD ILYAS, J Mian MUHAMMAD ALTAF-Petitioner versus SECRETARY HEALTH, GOVT. OF PUNJAB, and anothor-Respondents Civil Revision No.169 of 1992, dismissed on 8.2.1992. Civil Procedure Code, 1908 (V of 1908)- —O.XXXIX Rr.l & 2--Temporary injunction-Grant of--Prayer for-Refusal of-Challenge to-Both courts below came to conclusion that petitioner has no prima facie case—Even if he had prima facie case, it is not a fit case for grant of temporary injunction because it would virtually amount to grant of relief sought in suit before trial of suit-It is discretionay with court to grant or refuse temporary injunction-Held: Unanimous verdict of two courts below is not to be interfered with especially when no illegality or material irregularity has been pointed out. [Pp.l92&193]A&B Ch. Naeem Shakir, Advocate for Petitioner. Date of hearing: 8.2.1992. order This civil revision has been filed by the petitioner, Mian Muhammad Altaf, who is running Akhlaq Medical Store, opposite Lahore General Hospital, Lahore. His licence to sell, stock and exhibit for sale and distribution certain drugs has been cancelled. Order passed in this regard was challenged by the petitioner by filing a civil suit against the Secretary, Health Department, Government of the Punjab, and another. In the said suit, he also prayed for a temporary injunction suspending operation of the order by which his licence has been cancelled. A Civil Judge of Lahore, who was seized of the suit, refused to issue the temporary injunction. The peiitioncr, therefore, went in appeal before the District Judge, Lahore, but his appeal was also dismissed by the learned District Judge. Hence this civil revision. 2. Both the Courts made detailed orders in which it was opined by them that the petitioner did not have a prima fade case for grant of temporary injunction. Learned counsel for the petitioner has not pointed out anything to enable me to take a contrary view. Even if the petitioner has a prima facie case, it is not a fit case for grant of temporary injunction, because issuance of such injunction would, virtually, amount to grant of relief, prayed for by the petitioner in his suit, before the trial of the suit, inasmuch as he will be able to make use of the licence which has been cancelled. In other words, if he has been guilty of any irregularity justifying the cancellation of his licence he will have permission to commit that irregularity repeatedly during the pendency of the suit and thus play havoc with the ailing humanity making use of the drugs sold by him. I am, however, not in favour of allowing the petitioner to do so, unless his innocence is established. 3. Law is well settled on the point that it is discretionary with the Court to grant or refuse the temporary injunction and, to my mind, it is not an appropriate case for exercise of discretion in favour of the petitioner. I am, therefore, not inclined to interfere with the unanimous verdict of the two Courts below by which they have refused the temporary injunction, especially when no illegality or material irregularity in their orders has been pointed out by learned counsel for the petitioner. 4. Resultantly, this civil revision fails. It is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 193 PLJ 1992 Lahore 193 Present: S.M. zubair, J Mst. REHMAT BIBI-Petitioner versus S.H.O. POLICE STATION SAMANABAD, LAHORE, and another- Respondents Writ Petition No.7622 of 1991, accepted on 2.10.1991. Illegal Detention-- —Two sons of petitioner—Illegal detention of—Recovery of—Prayer for--It is common practice with police officers to keep innocent persons in illegal confinement on frivolous petitions allegedly made by some creditors for settlement of civil disputes through police pressure-Respondent No.2 illegally detained Muhammad Rafiq, extracted money from him and he also detained illegally his brother-Article 4 of Constitution enjoins that nobody is above law—Held: Any member of police force committing offence, should be given examplary punishment so that in future, no police officer dares to violate command of law and commit so serious offences allegedly committed in this case-S.H.O. directed to register case and S.S.P. Lahore directed to entrust investigation to A.S.P. Nawankot-Delinquent Police Officials ordered to be suspended-Detenus set at liberty. [Pp.l95&196]A,B,C,D&E Mr.Mamoomr Rehman KJian Afridi, Advocate for Petitioner. Mr.Farooq Bedar, Additional Advocate General on Court notice. Respondents in person. Date of hearing: 2.10.1991. order Mst.Rehmat Bibi filed this constitutional petition for the recovery of her two sons, namely, Muhammad Rafiq and Muhammad Sharif, from the illegal and improper confinement of the respondents. It was alleged in the petition that respondent No.2 Saadat Mehdi trespassed into her house on 4.8.1991 at about 9.15 p.m. and illegally took her son Muhammad Rafiq into his custody. Thereafter during his illegal detention he extracted a sum of Rs.1,76,000/- from his friend and also got executed an agreement. It was also alleged that respondent No.2 withdrew Rs.48,000/- from the account of Muhammad Rafiq. It was further alleged that on 5.9.1991, respondent No.2 also took Muhammad Sharif detenu in his illegal confinement. 2. The petition was laid before me on 8.9.1991, on which date I passed the ollowing order:-"Learned counsel states that the detenus are being confined illegally at two different places and, therefore, requests that two bailiffs be deputed to recover the detenus at the petitioner's expense and, if recovered, be produced before this Court on 9.9.1991.1 order accordingly". 3. In pursuance of the above orders, the detenus were recovered and produced in Court on 9.9.1991.1 asked the learned Additional Advocate-General, Mr.Farooq Bedar, to assist this Court hi the disposal of this petition. 4. On 9.9.1991, I recorded the statement of Muhammad Rafiq detenu, who stated that on 4.8.1991, at about 9.00 p.m. respondent No.2 along with others took him to his house situated in Gulfashan Colony, Lahore and confined him there, then he was taken to Police Station Samanabad where he was kept for three days. Ultimately, he was secretly confined in L.DA. Flat No.653-Q, Lahore, which was in occupation of Tariq Bashir Cheema and Khalid Bashir Cheema from where he was ultimately recovered by the bailiff. According to Muhammad Rafiq detenu respondent No.2, demanded Rs.10.00,000/- (ten lacs) as bribe. Thereafter he got Rs.48,000/- from his Account No.3990, in Habib Bank Ltd. Kot Abdullah Shah Branch, Lahore , after giving his I.D. card to the Bank Manager. He was also removed to Rawalpindi, where he was kept in Al-Mehr and Shalimar Hotels. In his statement Muhammad Sharif detenu deposed that respondent No.2 extorted Rs.15,000/- from him. 5. Respondent No.2 deposed that he was making inquiry on the application dated 1.8.1991, which was entrusted to him by the then SHO Samanabad without formally registering the case against any person. The petitioner has made this application, because he refused to oblige her by registering a false (case) against her sons as desired by her.Statement of Tariq Bashir Cheema, was recorded on 15.9.1991. He admitted that he was residing in the flat in question and his acquaintance with respondent No.2. He denied to have any connection with the illegal and secret detention of Muhammad Rafiq in his flat.Khalid Bashir Cheema FC in his statement dated 23.9.1991, admitted, that he is residing in the flat in question, which he has taken on rent of Rs.800/- p.m. and it belongs to one AMRozina Bibi and had got a telephone installed there. According to his statement, two private persons handed over the detenu Muhammad Rafiq to him in hand-cuff with the request that he should keep him in his quarter, as respondent No.2 was coming in his official jeep. He deposed that before respondent No.2 could arrive, the bailiff of this Court came there and recovered Muhammad Rafiq from him. 6. The bailiffs of this Court also placed their respective reports Ex.PA and Ex.PB on the record, their statements were also recorded, wherein they confirmed the contents of the aforesaid reports. 7. On the petition of the learned counsel for the petitioner, relevant record of the hotels and the Bank was seized, which prima facie corroborates the version of Muhammad Rafiq detenu. 9. During the hearing of numerous habeas corpus petitions, it has come to light that it is a common practice with the police officers to keep innocent persons in illegal confinement at the police stations or some private place on the basis of some frivolous petitions, allegedly moved by some creditors for the settlement of civil disputes, through police pressure, obviously after obtaining illegal gratification from the complainant and in order to fleece the innocent persons by misusing their official powers. In the eye of law, this action of the police officers is an offence. 10. Now coming to the present petition, I find that respondent No.2 firstly detained Muhammad Rafique detenu secretly and thereafter extracted money from him and while he was in such illegal confinement, he committed many offences and also detained illegally his brother. Article 4 of the Constitution enjoins that nobody is above law. Any member of the police force committing the offence should be given exemplary punishment, so that in future no police officer dares to violate the command of law and commit so serious offences allegedly committed by the above mentioned persons. The S.H.O., Police Station Samanabad is present in the Court. He has been directed to register the case under the relevant law on the written application of the petitioner/detenus. 11. As the police officials are involved in serious offences, the S.S.P. Lahore is directed to entrust the investigation of this case to the ASP Nawankot. In order to ensure that the police officials should not intimidate the witnesses, I direct that they should be placed under suspension pending investigation. Office is directed to send a copy of this order immediately to the S.S.P. Lahore, for compliance and necessary action. The S.S.P. Lahore is further directed to issue a circular letter/directions to all the police officers within his jurisdiction that in future they should not interfere into disputes of civil nature and should refrain from detaining persons illegally on the pretext of entering into the settlement of money disputes and if thereafter any police officer is found violating these instructions, then he should be appropriately dealt with. 12. It has come to my notice that the police officers (I.Os.) do not comply with the directions of this Court when they are investigating the case against the police persons, which brings bad name to the police force. In order to remove this impression I direct that the ASP Nawankot should take action in accordance with law and if the police officials (accused in the present case) are not already in custody, they should be taken into custody forthwith as required by law. 13. As the accused are involved in serious offences, the ASP Nawankot should complete the investigation as early as possible and communicate progress of the investigation to the Deputy Registrar (Judl.) of this Court periodically so that this Court should be informed what action/steps, the I.O. has taken in this case. 14. The relevant record along with the fetters should be handed over to the I.O. for proper compliance. 15. As there is no case against the the detenus, they are set at liberty to go wherever they like. The petition is disposed of accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 196 PLJ 1992 Lahore 196 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD NASIM BUTT-Appellant versus MAHMOODUL HASSAN-Respondent FA.O. No.200 of 1991, accepted on 21.1.1992. (i) Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —S.17-Tenant-Ejectment of-Orders of-Challenge to—No proper service was affected upon appellant—Rent Controller acted in undue haste in proceeding ex-pane-- Report of Process-server that appellant was avoiding service, does not bear date nor mentions date on which he visited house nor is there any affidavit sworn by Process-server-On order of affixation of notice, Processserver made report on very date of order that notice was affixed but this report again is not supported by affidavit—Impugned order, on face of it, shows no application of mind by Rent Controller—Held: Even if appellant was being proceeded ex-pane, it was incumbent upon Rent Controller to have decided matter on merits after due application of mind-Appeal accepted. [Pp.l98&199]B,C&D (ii) Limitation Act, 1908 (IX of 1908)-- —S.5 read with Cantonment Rent Restriction Act, 1963, Section 24-First appeal from order-Delay in filing of appeal-Condonation of~Prayer for~ There is no cavil with proposition that Section 5 of limitation Act is not applicable-Appellant was proceeded ex-parte and his case is that he had no knowledge about ex-partc order till 5.9.1991 when he was dispossessed in execution of order--Held: As sufficient service on appellant has not been established, limitation would run from date of knowledge and appeal is within time. [Pp.l97&198]A PLJ 1990 Lahore 44 ref. PLD 1970 Lahore 6 re/. Mr Ayyub Hussan, Advocate for Appellant. Mr.Muhammad Siddique Butt, Advocate for Respondent. Date of hearing: 21.1.1992. judgment This appeal has been filed under Section 24 of. the Cantonment Rent Restriction Act, 1963, against order dated 29th of July, 1991, whereby the Addl. Rent Controller, Lahore Cantt. accepted the eviction application filed by the respondent again the appellant ex-pane. 2. The dispute between the parties relates to House No.E/20, Nishat Colony, Lahore Cantt. On 15th of June, 1991, an application under Section 17 of the Cantonment Rent Restriction Act, 1963, was filed by Mahmoodul Hassan, respondent herein, against Muhammad Nasim Butt, appellant, seeking his eviction from the house in question on the grounds of default in payment; the need of the landlord for his own use and occupation; damage to the property and subletting. This application was accepted ex-parte by the Additional Rent Controller, Lahore Cantt. 3. A preliminary objection has been raised by Mr.Muhammad Siddique Butt, Advocate, appearing on behalf of the respondent, that the appeal is barred by time and as the provisions of Section 5 of the Limitation Act, 1908, are not applicable to the appeals arising out of applications under Section 17 of the Cantonment Rent Restriction Act, 1963, the delay in filing the appeal cannot be condoned. He has relied upon Basco Enterprises (Pvt) Ltd. v. Muhammad Siddique & 2 others (PLJ 1990 Lahre 44). On the other hand, it is asserted by Mr.Ayub Hassan, the learned counsel for the appellant, that the appellant was proceeded against ex-parte without due service by the Rent Controller and was unaware of the order of ejectment till 5th of September, 1991, when he was ejected from the house in execution of the order. According to the learned counsel, the limitation in the present case would run from the date of knowledge of the appellant. 4. The order impugned in this appeal was passed on 29th of July, 1991, while the appeal was filed on 15th of September, 1991, i.e. after the expiry of the period of limitation prescribed for filing an appeal under Section 24 of the Cantonment Rent Restriction Act, 1963.There is no cavil with the proposition that Section 5 of the Limitation Act is I . not applicable to these appeals but the question which arises is as to from what I date the period of limitation is to be computed. Admittedly, the appellant was proceeded against ex-parte and his case is that he had no knowledge about the ex-pane order of ejectment till 5th of September, 1991, when he was dispossessed in execution of that order. In these circumstanctions, the contention of the learned counsel for the appellant that the limitation should be computed from the date of knowledge of the appellant appears to be correct and is fully supported by the Division Bench judgment of this Court in Syed Muhammad Alam v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6), wherein the view taken was that notwithstanding non-application of Section 5 of the Limitation Act, if an order has been passed without any notice to the affected person, the limitation in such case would run from the date of knowledge and not from the date of order. Respectfully following the above dictum, I hold that as on the record sufficient service on the appellant has not been established, the limitation would run from the date of his knowledge, i.e. 5th of September, 1991, and, therefore, the appeal would be within time. C.M.No.l of 1991 for condonation of delay stands disposed of in the above terms. 6. As regards the merits, a perusal of the record shows that no proper service was effected upon the appellant at all. The Rent Controller appears to have acted with undue haste in proceeding ex-pane. The ejectment petition was presented on 15th of June, 1991, and next date fixed for service of the appellant was 20th of June 1991, i.e. only alter five days. On the summons issued for the said date, there is a report by the Process-Server that the appellant was avoiding service but surprisingly enough, no date on which the said report was made nor the date when he visited the house has been mentioned therein. There is no affidavit sworn by the Process-Servcr. On the face of it, therefore, this report could not have been relied upon by the Rent Controller. However, on the basis of this report, the Rent Controller directed that the appellant be served through registered post as also by affixation. From the record, it appears that the notice was issued on the same date on which the order was passed, i.e. 29th of July, 1991, and report was made by the Process-Server on the same date to the effect that the notice had been affixed on house of the appellant. This report again is not supported by any affidavit. There are no witnesses in the presence of whom the affixation is said to have been made. 7. As regards the report of the Postman, it appears to be self-contradictory on the face of it and could not be relied upon. Even otherwise, there is nothing in report to indicate that notice was ever refused by the appellant. 8. Be that as it may, even on merits, the impugned order is not sustainable. It is to be seen that after proceeding ex-pane, the Rent Controller recorded the statement of the appellant who merely stated that the contents of the application for ejectment were correct and an order for ejectment be passed, on which the Rent Controller observed that the contents of the application, prima facie, stood proved. He, therefore, passed the order of ejectment against the appellant. This order on the face of it shows no application of mind by the Rent Controller. It is not even discernible as to on what ground the appellant was being ejected. Even if the appellant was being proceeded ex-parte, it was incumbent upon the Rent Controller to have decided the matter on merits after due application of mind. In view of what has been stated above, this appeal is accepted, the impugned order of the Rent Controller is set aside and the case is remanded to the Rent Controller for decision afresh after giving the appellant an opportunity to file his written statement. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Lahore 199 PLJ 1992 Lahore 199 Present: MUHAMMAD ILYAS, J KHERA etc. --Petitioners versus MUHAMMAD SADIQ etc. -Respondents Civil Revision No.l573-D of 1981, accepted on 9.12.1991 . Fraud- —Suit for permanent mjunction-Exparte decree passed in~Exparte decree challenged in separate suit on basis of fraud—Subsequent suit decreed— Challenge to-Only fraud attributed to petitioners is that exparte decree was passed against respondents Nos.l and 2 without adopting proper procedure for their service—Respondents Nos.l and 2 having been represented by a duly appointed counsel, defect in their service, if any, is of no legal effect—If their counsel did not represent them properly, petitioners are not to blame for consequences of his neglect—Held: There was no fraud on part of petitioners and findings of lower Courts that they obtained decree by fraud, are not sustainable-Petition accepted and subsequent suit dismissed. [P.201JA&B Ch^bdur Razzaq, Advocate for Petitioners. Mr.Muhammad Azim, Advocate for Respondents 1 & 2. Nemo for Respondents 3 to 6. Date of hearing: 9.12.1991. JUDGMENT Facts giving rise to this civil revision are that the petitioners, Khera and four others, brought a suit against the respondent, Sarblund, and nineteen others, including the respondents, Muhammad Sadiq and five others, for a declaration to the effect that they were owners of certain land and were also in occupation thereof. They also prayed for permanent injunction, by way of consequential relief, restraining the defendants in that suit from interfering with their possession over the land in dispute. It was alleged by the petitioners that they had purchased the land in question from six persons, namely, Barkat Ali, Mst. Nawab Bibi, Mst. Resham Bibi, Afo.Maryam Bibi and Mtf.Karam Bibi, and had thus become owners thereof but the defendants in the suit were illegally interfering with their possession. Syed Abu-ul-Hassan, Advocate, entered appearance on behalf of the defendants, except Fa/al Ahmad, a Sub-Inspector of Police. The said learned Advocate, however, did not file written statement on behalf of his clients with the result that they were proceeded against ex pane. Fazal Ahmad did not appear in the suit personally or through any counsel and he too was, therefore, proceeded against ex-parte. Mr.Muhammad Ashraf Butt, who heard the suit as a Civil Judge, recorded ex-parte evidence of the plaintiffs and decreed the suit ex-parte. Thereafter Muhammad Sadiq and Muhammad Ashiq brought another suit challenging the exparte decree on the ground of fraud. The petitioners before me, and respondents No.3 to 6 Mtf.Karim Bibi and others, were defendants in the subsequent suit. In that suit, which was resisted by the petitioners, only plea of the respondents Nos.l to 3 was that out of them, respondents Nos.l and 2, namely, Muhammad Sadiq and Muhammad Ashiq, were detained in the jail when the suit, as against them was decreed ex-parte. Their plea of fraud found favour with another Civil Judge of Lahore, namely, Mr.Razi Abbas Bokhari, who heard the subsequent suit, and consequently, that suit was decreed. The petitioners went in appeal before an Additional District Judge, Mr. Jehangir Pervaiz but without success. Hence this civil revision. 2. It was contended by the learned counsel for the petitioners that the only plea of fraud attributed to the petitioners was that respondents Nos.l and 2 were confined in the jail when substituted service was effected on them and thus the exparte decree was fraudulently obtained in the first suit. In this connection, it was submitted by the learned counsel for the petitioners that the respondents Nos.l and 2 were represented by Sycd Abu-ul-Hassan, Advocate, and he did enter appearance before Khawaja Muhammad Ashraf, Civil Judge, on some dates and, therefore, even if there was anything wrong with the substituted service effected on respondents Nos.l and 2, that was of no consequence. According to learned counsel for the petitioners if Syed Abu-ul-Hassan did not file written statement or neglected to appear before the learned trial Court it did not amount to fraud on the part of the petitioners. His argument was that the two Courts below had committed material irregularity in holding that the decree passed in the first suit was based on fraud and as such the judgments and decrees under revision were not sustainable. 3. On the other hand, it was maintained by learned counsel for the respondents thai respondents Nos.l and 2 were confined in the jail when ex-parte decree was passed. His contention was that Sycd Abu-ul-Hassan was not appointed as an Advocate by the said two respondents and that the substituted service effected on them was against law. He, therefore, pleaded that the findings of fraud recorded by lower Courts were correct and there was nothing wrong with the impugned judgments and decrees. 4. I have looked into the power of attorney filed by Syed Abu-ul-Hassan, Advocate, in the first suit. It bears thumb impressions of respondents Nos.l to 3, namely, Muhammad Sadiq, Muhammad Ashiq and Bagh Din. Respondents Nos.2 and 3, namely Muhammad Ashiq and Bagh Din did not enter the witness box to say that they had not executed the power of attorney in favour of Syed Abu-ul- Hassan, Advocate. Respondent No.l, Muhammad Sadiq, appeared as PW.7 and frankly admitted that he had appointed Syed Abu-ul-Hassan as his counsel. Thus, there is no force in the argument of learned counsel for respondents No.l and 2 that they had not appointed Syed Abu-ul-Hassan as their counsel 5. Another point canvassed by learned counsel for the petitioners was that respondents Nos.l and 2 were lodged in the jail when Syed Abu-ul-Hassan was allegedly appointed as their counsel but the procedure laid down in the relevant jail rules was not followed in the matter of his appointment. The power of attorney appears to have been executed on 7th November 1969 and it is in the statement of a witness, namely, Muhammad Ali (PW.4), produced by respondents Nos.l and 2, that they (respondents Nos.l and 2) were confined in jail in March, 1970. This clearly shows that the power of attorney was executed before they were sent to jail. In the circumstances, the rules relating to appointment of counsel by persons confined in the jail are not attracted to the present case and, are, therefore, of no help to the respondents. 6. As indicated above, the only fraud attributed to the petitioners is that ex- \ parte decree was passed against respondents Nos.l and 2 without adopting proper procedure for their service but it has been seen that they were represented by a duly appointed counsel. Thus, the defect in their service, if any, is of no legal effect. However, if their learned counsel did not represent them properly, the petitioners are not to blame for the consequences of his neglect, in this view of the matter, there was no fraud on the part of the petitioners and the findings of the learned lower Courts that they obtained the decree by fraud is not sustainable. 7. In result, I accept this civil revision with costs, set aside the judgments and decrees passed by the two Courts below and dismiss the suit brought by respondents Nos.l and 2, namely, Muhammad Sadiq and Muhammad Ashiq. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 201 PLJ 1992 Lahore 201 Present: MALIK MUHAMMAD QAYYUM, J SHAUKAT ALI-Pethioner versus GOVERNMENT OF PUNJAB etc-Respondents Writ Petition'No. 6855 of 1991 (also W.P. 941,1482 of 1991 and 282 of 1992) partly accepted on 8.3.1992. (i) Delgation of Powers— —Notification under Rule 12 (2) (ii) (d) of Punjab Minor Minerals Concession Rules, 1990-Issuance of-Challenge to-Whether Licensing Authority has any power to issue such notification-Question of-Power to frame rules vests in appropriate Government under Section 2 of Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948, which alone can, inter alia, prescribe conditions for auction and grant of licenses—Appropriate Government being itself a delegatee, cannot further delegate this power to licensing authority-Held: It is well established law that a delegatee cannot further delegate its powers without permission of delegator-Held further: Notification appears to be highly unreasonable, discriminatory and against Islamic principles of social justice-Petitions partly accepted and notification dated 18.6.1991 declared as without lawful authority. [Pp.211&212]F,G,H&J. Smith's Judicial Review of Administrative Action (Fourth Edition) Page 300, O. Hood Phillips Constitutional and Administrative Law (7th Edition) and PLD 1976 Lahore 109 ref. (ii) Delegation of Powers- —Power to make rules under Section 2 of Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948-Delegation of powers-Whether it was excessive delegation-Question of--Punjab Minor Minerals Concession Rules, 1990 have been framed under Section 2 of Act, 1948-It is by now well settled that in modern day complex society, it is impossible for legislature to provide for each and every eventuality which may arise and it may competently delegate some of its powers to another or a subordinate authority—Held: Delegation of powers by legislature to appropriate Government for framing rules regarding matters enumerated in Section 2 of Act, 1948, cannot be said to suffer from excessive delegation. [Pp.205,206&207]A,B&C Craies on Statute Law (7th Edition) at Page 290, PLD 1971 SC 252, PLD 1964 SC 854, PLD 1983 SC 358, PLJ 1988 SC 493 PLD 1961 SC 178 and (1967) 1A..C. 141 rel. PLD 1965 Dacca 156 not followed. (iii) Punjab Minor Minerals Concession Rules, 1990-- - : -Rr. 6,7,12,15&19-Participation in auction-Right of-Whether these rules restrict right of a person to participate in auction—Question of—To participate in an auction or to obtain contract is neither a natural nor a fundamental right of any person—Respondents are well within their rights to satisfy themselves about genuineness of bidders and also ensure that no loss is caused to public exchequer-Held: Effect of these rules is not to restrict so called right of individual to participate in auction but is to regulate auction proceedings. [Pp.2Q8&209]D&E Raja Muhammad Anwar, Advocate for Petitioner Mr. Maqbool Elahi Malik, Advocate General, and Mr. Najaf Hussain Shah, Advocate for Respondents. Date of hearing: 16.2.1992 judgment This judgment shall dispose of Writ Petitions No. 6855/91, 941/91 1482/91 and 282/92 in which similar questions arise for decision. 2. In all these petitions, the petitioners have .challenged the vires of the Punjab Minor Minerals Concession Rules, 1990 and the Notification dated 18.6.91 imposing certain conditions for participation in the auctions of minor minerals being held at various places by the Government of the Punjab. 3. The facts necessary for the disposal of these petitions are that Shaukat Ali, petitioner in Writ Petition No. 6855/91, claims to be a lessor, who has been obtaining leases of minor minerals like ordinary stone, inter alia, of Blocks No. 2 and 6 of Chak No. 116/SB, Sargodha. Through an advertisement appearing in daily 'Jang' dated 3Ist of August, 1991, the respondents announced their intention to hold auction of leases of areas in Sargodha Region on 19th of August, 1991, and 25th of August, 1991, on the terms and conditions mentioned in the notice, a copy of which has been filed as annexure 'A' to this petition. 4. Similarly, Abdul Wahid, petitioner in Writ Petition No. 1482/91, claims that he is dealing in the business of sand mining and also held leases obtained by him in public auctions. He is aggrieved of the conditions mentioned in the notice annexure 'A', which appeared in daily 'Jang' dated 15th of January, 1991. 5. In Writ Petition No. 941 of 1991, the grievance of the petitioner is with regard to the conditions subject to which the auction of ordinary minerals was scheduled to be held for Sargodha Region. Similar grievance has been raised in Writ Petition No. 282 of 1992, which also pertains to Sargodha Region. 6. Raja Muhammad Anwar and Sh. Abdul Majid, the learned counsel appearing in support of these petitions have challenged the vires of the Punjab Minor Minerals Concession Rules, 1990, on the ground that these rules suffer from vice of excessive delegation. Reliance has been placed upon Haji Ghulam Zamin and another v. A.B. Khondkar and others (PLD 1965 Dacca 156). The second objection of the learned counsel is to the validity of rules 6,7,12,15 and 19 as being unreasonable. Lastly, the learned counsel argued that the notification dated 4.6.1991 by virtue whereof certain conditions were imposed by the respondent No. 3 on the participants in auctions to be held is without jurisdiction. The learned Advocate General has, on the other hand, argued that neither the provisions of the rules nor of the notification dated 18th of June, 1991, are ultra vires and illegal. 7. As regards the first contention of the learned counsel for the petitioner, the Punjab Minor Minerals Concession Rules, 1990, have been framed in the exercise of powers conferred by section 2 of the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948, which reads as follows: - "2. Power to make rules. It is hereby declared to be expedient in the public interest that the appropriate Government shall have power to make rules to provide for all or any of the following matters, namely:- (1) the manner in which, and the authority to whom, application for the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession shall be made, and the prescribing of the fees to be paid on such application; (2) the conditions in accordance with which the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession may be made, and the prescribing of forms for the execution or renewal of such licence, lease, and concession; (3) the circumstances under which renewal of a licence, lease or concession as aforesaid may be refused, or any such licence, lease, or concession whether granted or renewed may be revoked; (4) the determination of the rates at which, and the conditions subject to which, royalties, rents and taxes shall be paid by the licencees, leasees and grantees of mining concession; (5) the refinement of ores and mineral oils; (6) the control of production, storage and distribution of minerals and mineral oils; (7) the fixation of the prices at which minerals and mineral oils may be bought or sold; and (8) any matter ancillary or incidental to the matters set out in the fore-going clauses of this section, and the appropriate Government may, by notification in the official Gazette, make rules accordingly." 8. The learned counsel for the petitioner has maintained that as no guidelines have been provided in the section 2 for the Government while framing rules, the provisions of section 2 as also the rules framed thereunder are hit by the principle of exccessive delegation as it is well settled that a legislature cannot abdicate its authority in favour of the Executive Government. This contention of the learned counsel is not well founded. 9. A reading of section 2 of the Act would show that it authorises the appropriate Government to frame rules to provide for all or any of the matters specified therein. Some of the matters so specified or the manner in which; and the authority to whom applications for the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession are (to) be made, and the prescribing of the fees to be paid on such application. Similarly, clauses (2) and (3) of rule-2 authorise the appropriate Government to prescribe by rules the conditions in accordance with which the lease or licence as the case may be, are to be granted or refused. 10. A reference to the preamble of the Act would show that the object in promulgating the same was to pro\ide for matters connected with Regulation of Mines and Oilfields and Mineral Development under Government Control. The power vested in Government under section 2 of the Act is regulatory in character. It is in fulfilment of that objective that Punjab Mining Concession Rules, 1990, have been framed. These rules lay down the necessary details and the manner in which the application for grant of lease and licence is to be made, the authority to whom the application is to be addressed, the necessary documents which must be filed along with the application and the procedure for deciding the application and the conditions subject to which the lease/licence is to be granted. 11. It is by now well settled that in the modern day complex society, it is impossible for the legislature to provide for each and every eventuality which may arise and it may competently delegate some of its powers to another or a B subordinate authority. In Crates on Statute Law (7th Edition) at page 290 it is stated that there are four main reasons why delegation has become a –normal feature of law making:- (/) Pressure on parliamentary time; (//) Technical character of modern legislation; (///) Need for flexibility, (/v) Emergency powers. 12. In Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 S.C. 252) it was ruled that:- "Having regard to the nature of the legislation itself it was impossible to expect the Legislature to provide for all possible eventualities which were likely to arise due to the complexities of the problems from day to day. This was a fit subject, therefore, in respect of which the power of making subsidiary provisions could be validly delegated to the executive or those responsible for administering the law." 13. The objection regarding excessive delegation is based upon the theory of separation or trichotomy of powers which is more peculiar to the American Constitutional system and cannot be applied to our country with .same rigidity as is clear from the following observation of Hamoodur-Rehman J. in Province of East Pakistan v. Siraj ul Haq Patwari (PLD 1966 SC 854 at page 951). "The principle, I venture to think, under our own Constitution is much the same. Even though our Constitution has a similar division of powers, namely, legislative, executive and judicial, it does not necessarily follow that the doctrine of excessive and impermissible delegation which has been considered to be a special characteristic of the American Constitutional system, must necessarily also be imported into our own constitutional system." (Also see Zaibtun Textile Mills Ltd. v. Central Board of Revenue (PLD 1983 S.C. 358). 14. As regards the limits within which the power can be delegated by the Legislature, one can do no better than to reproduce the classic observations made by Hamood-ur-Rehman J. in Siraj-Ul-Haq Patwari's case (supra) which appear at page 952 of the report and read as under:- "I do not wish, however, to dispute that the Legislature cnnot abdicate altogether from its legislative functions or totally efface itself but where the Legislature has sufficiently expressed its will and exercised its judgment as to the territorial extent, scope and subject matter of the legislation, the provision of details, particularly when such details are by their very nature incapable of bing laid down by the Legislature itself, can well be left to be done by another agency in whom the Legislature places confidence." In M/s. Sh. Abudr Raliim, Allah Ditto v. Federation of Pakistan and others (PLJ 1988 S.C. 493), it was observed that what is prohibited by the Legislature is the delegation of its function to make the law but not the authority exercised under and in pursuance of the law itself to another agency in regard to the provision of details when by the very nature these are incapable of being laid down by the Legislature itself. ~ 15. Viewed in the light of the above principles, the delegation of powers in the present case by the Legislature to the appropriate Government for framing rules regarding matters enumerated in section 2 cannot be said to suffer from excessive delegation. Reference at this stage may be made to the authority of the Supreme Court of Pakistan in District Magistrate, Lahore v. Raza Kazim (PLD 1961 S.C. 178) wherein the provisions of Section 17 of the Arms Act 1878 which authorised the Central Government to make rules laying down the terms and conditions subject to which arms licence may be granted without further providing any criteria for guidance were challenged on the ground of excessive delegation. While repelling this plea, it was observed by the Supreme Court of Pakistan that:- "We see no reason to depart from this long established rule of interpretation of statutes enacted prior to the coming into force of the late Constitution, for, we should avoid, if possible, casting a doubt on a long course of legislation wherein similar provisions have been made. Applying this test in the present case we find on examining the language of the Indian Councils Act, 1861, and comparing the legislative powers of the Governor General in council under the said Act with the provisions of the Arms Act, that in enacting section 17 of the latter Act the legislative authority could, in no sense of the term, be said to have abdicated or effaced itself or created a new legislative body or legislated beyond its competence. Having regard to the nature of the object sought to be achieved by the legislation it was impossible for the Legislature to attempt to provide for every detail and machinery to carry it into effect, hence, the Legislature, whilst, retaining its legislative powers intact and maintaining its full legislative control authorised the executive merely to determine the manner of carrying it into effect by rules framed in that behalf" The judgments of the Supreme Court of Pakistan in Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 S.C. 358) and M/s. Sh. Abdur Rahim , Allah Ditto v. Federation of Pakistan (PLJ 198 S.C. 493) are also instructive. 16. It is also interesting to note the dictum of the Privy Council in Cobb & Co.Ltd.and others and Norman Eggen Kropp (1967) I A.C. 141. In that case, the appellants before the Privy Council had challenged the validity of the Transport Act, 1960 and State Transport Facilities Act, 1946, on the ground that the fee levied under the aforesaid two provisions was illegal and void as it was done without the authority of the competent legislature. While repelling the contention, it was observed that:- "The legislature were entitled to use any agent or any subordinate agency or any machinery that they considered appropriate for carrying out the objects and purposes that they had in mind and which they designated. They were entitled to use the Commissioner for Transport as their instrument to fix and recover the licence and permit fees. They were not abrogating their power to levy taxes and were not transferring that power to the Commissioner. What they created by the passing of the Transport Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (See R.y. Burah). Nor did the Queensland legislature create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence (see in re The Initiative and Referendum Act). In no sense did the Queensland legislature assign or transfer or abrogate their powers or renounce or abdicate their responsibilities. They did not give away or relinquish their taxing powers. All that was done was done under and by reason of their authority. It was by virtue of their will that licence and permit fees became payable. Nor was there any alteration of the legislature." 17. As regards the reliance of the learned counsel for the petitioner on the case of Haji Ghulam Zamin & another v. A.B. Khondkar and another (PLD 1965 Dacca 156), it is to be seen that the learned Judges in support of their conclusion had relied generally upon cases from American jurisdiction which in view of the observation of the Supreme Court of Pakistan in Siraj ul Haq Patwari's case cannot be applied to our constitutional system. Even otherwise I am not in a position to follow the judgment relied upon by the learned counsel in preference to the authorities of the Supreme Court to which reference has already been made. 18. This brings me to the next contention of the learned counsel for the petitioner that rules 6, 7,12,15 and 19 are not reasonable and, therefore not valid. The precise objection was that these provisions restrict the right of a person to participate in the auction. This argument however is not well merited. To participate in an auction or to obtain contract is neither a natural nor a fundamental right of any person. While holding the auction, it is open to the authorities concerned to regulate it by prescribing conditions subject to which and the manner in which the auction is to be held. The effect of the rules referred to is not to restrict the so-called right of individual to participate in the auction but to regulate to which there can (be) no possible objection. Rule 14 authorises the authority to reject or accept the bid in auction without assigning any reason. There cannot be any cavil that notwithstanding a person is the highest bider, he has no right to obtain the contract, grant of which is in the discretion of the functionaries concerned. There may be other reasons which can impel them to reject the bid of an individual which may be perfectly justified. The rule itself is not as such discriminatory but if it is demonstrated in a proper case, (that) while rejecting bid, the authority concerned has acted in an unjust and discriminatory manner, the exercise of that power can, perhaps, be struck down. But in the present case, the discussion is merely academic in nature in as much as the auctions are still to be held and eventuality of the exercise of the powers envisaged by rule 14 has not arisen. The same is the position regarding rule 15. Even otherwise there is nothing objectionable in this rule which authorises the licensing authority, where it considers that the highest bid is not adequate, to call for all the parties who had participated in the auction and to negotiate with them for the purposes of improving the bid to its satisfaction. 19. The rationale behind rules 16, 17, 18 and 19 is self evident which is to ensure that the auction is conducted in orderly manner between the persons who were really interested in obtaining the lease. The respondents are well within their rights to satisfy themselves about the genuineness of the bidders and also ensure that no loss is caused to public ex-chequer. 20. The last objection of the petitioner to the notification dated 18th of June, 1991 in which certain conditions have been prescribed which the participants in acution must fulfill before (they) can be allowed to bid at the auction. This notification purports to have been issued in pursuance to rule 12 (2) clause (») (d) of the Punjab Minor Minerals Concession Rules, 1990, which reads as under:- "(2) Every application under sub-rule (1) shall be accompanied by- (/) earnest money as prescribed by the Government; and (/'/') a copy of- (a) the National Identity Card of the applicant; (b) income tax registration; (c) the duly registered partnership deed where the application is (by) a partnership firm; (d) each document of immovable property and financial viability of the applicant as prescribed by the Licensing Authority; and (e) the articles and memorandum of association along with evidence of paid up capital, if the applicant is a Company.In order to correctly understand the controversy, the notification may also be reproduced as under:- "In supersession of this Directorate's Notification No. MD/DEV.CDN. 1 (22)/90 Vol-III dated 30.8.1990, the Licensing Authority is pleased to prescribe the following documentation for the fulfilment of the requirements of clause (//) (d) of rule 12 (2) of the Punjab Minor Minerals Concession Rules, 1990:- (1) FOR PARTICIPATION IN AUCTION OF MINOR MINERAL BLOCKS WITH BID UPTO RS: 1,00,000/-CATEGORY 'C'. (/) Documents of financial viability for Rs. 25,000/-in the form of fixed deposits, defence saving certificates, NIT shares or statement of bank transactions for a period of 12 months (not older than a month on the date of filing of application) showing a minimum closing balance of Rs. 25,000/-and reasonable number of transactions of the same amount during the year in the name of applicant (s); (it) Document regarding ownership of immovable property to the tune of Rs. l,00,000/-in the name of the applicant (s) duly verified by the competent authority; (///) In case, the applicant is unable to produce evidence of financial viability as required at (/) above, he/she may give additional evidence of ownership of movable/immovable property in his/her name to the tune of Rs. 50,000/-duly verified by the competent authority. (2) FOR PARTICIPATION IN AUCTION OF MINOR MINERAL BLOCKS WITH BID UPTO RS. 5,00,000/~CATEGORY 'B'. (/) Documents of financial viability for Rs. l,00,000/-in the form of fixed deposits, defence saving certificates, NIT shares or statement of bank transactions for a period of 12 months (not older than a month on the date of filing of application) showing a minimum closing balance of Rs. l,00,000/-and reasonable number of transactions of the same amount during the year in the name of applicant (s); (//) Documents regarding ownership of immovable property to the tune of Rs. 3,00,000/-in the name of the applicant (s) duly verified by the competent authority; (//'/) In case, the applicant is unable to produce evidence of financial viability as required at 2 (/) above, he/she may give additional evidence of ownership of movable/immovable property in his/her name to the tune of Rs. 2,fX).000/-duly verified by the competent authority. (3) FOR PARTICIPATION IN AUCTION OF MINOR MINERAL BLOCKS WITH BID OF MORE THAN RS. 5,00.000/--CATEGORY 'A'. (/) Documents of financial viability for Rs. 3,00,000/-in the form of fixed deposits, defence saving certificates, NTT shares or statement of bank transactions for a period of 12 months (not older than a month on the date of filing of application) showing a minimum closing balance of Rs. 3,00,0()0/-and reasonable number of transactions of the same amount during the year in the name of applicant (s); (//') Documents regarding ownership of immovable property to the tune of Rs. 9,()0,00fl/-in the name of the applicants (s) duly verified by the competent authority. (///') In case, the applicant in unable to produce evidence of financial viability as required at 3 (/) above, he/she may give additional evidence of ownership of movable/immovable property in his/her name to the tune of Rs. 6.00,()00/-duly verified by the competent authority. NOTE:-In case of limited companies, proper evidence of authorised and paid-up capital shall be furnished. The paid up capital of the company should be comparable with the financial qualifications stated above." 21. The learned counsel for the petitioner has contended that the conditions imposed by the respondents under the aforesaid notifications are onerous and unreasonable. The first aspect which has, however, to be considered is as to whether the licensing authority/Joint Director Mineral Development, Punjab has any power to issue such a notification. Although Ruls 12 (2) (//') (d) authorises the licensing authority to prescribe the nature of documents which should accompany the application for license but this delegation to the licensing authority is without any legal backing. It would be appreciated that under section 2 of the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948, the power to frame rules vests in appropriate Government which alone can inter alia prescribe the conditions for auction and grant of licenses. The appropriate Government being itself a delegatee cannot further delegate this power to the licensing authority in the absence of any provision in the Act authorising it to do so. It is well established law that a delegatee cannot further delegate its powers without permission of the delegator. (Delgations non polest delegose (or delegasi). As observed by this Court in Muhammad & another v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1976 Lahore 109), the principle applies to delegation of all classes of powers. In S^A.DE Smith's Judicial Review of Administrative Action (Fourth Edition) at page 300, the following statement of law appears:- "There is a strong presumption against construing a grant of delegated legislative power as empowering the delegatee to sub-delegate the whole or any substantial part of the law-making power entrusted to it. In New Zealand cases this presumption has been invoked as a ground for holding regulation.-, and orders made by the sub-delegate to be invalid." In O. Hood Phillips Constitutional and Administrative Law {Seventh Edition) while considering the subject of sub-delegation of powers, it is stated that:- "Sub-delegation of powers. -The prima facie rule is that a person or body to whom powers are entrusted may not dclgate them to another delegates non potest Jelegare-un\es& expressly or impliedly authorised to do so. As in Allingham v. Ministrer of Agriculture a Divisional Court held that the Bedfordshire War Agricultural Committee, to which the Minister of Agriculture had validly delegated his power under Defence Regulations to give directions with respect to the cultivation of land, and which had decided that sugar beet should be grown on eight acres of the appellant's land, had no power to delegate to their executive officer the power to specify the particular field to be cultivated." 22. Even otherwise, the Notification appears to be highly un-reasonable and dis-criminatory. Although no possible objection can be taken to the right of the respondents to satisfy themselves about the financial status and the genuineness of the parties participating in the bid but the rationale for insisting that before a person can be allowed to take part in the auction, he must provide documents regarding his movable/immovable property is not understandable. A person may not own any immovable property but yet he cannot be precluded on that ground from participating in the auction. Similarly the reason for insistence that an applicant must produce fixed deposits, defence saving certificates or NIT units can also not be comprehended. It is also to be seen that the respondents in the rules have provided sufficient safeguards like furnishing of security as a condition to participate in the auction and, therefore, further conditions laid in the above notification are not sustainable. 23. The notification also appears to be against the directive principles of policy provided in the Constitution which embody the Islamic principles of social justice, to the effect that concentration of wealth in the hands of few must as far as possible be avoided. The conditions imposed by the notification are also likely to prevent fair competition. Even the learned Advocate General did not seriously contest this point. In view of what has been said above, all these petitions are allowed only to the extent that the notification dated 18.6.1991 issued by respondent No. 3 is • declared to be without lawful authority and of no legal effect and to the remaining extent, all the petitions are dismissed with no order as to costs. (MBC) (Approved for reporting) Petitions partly accepted.

PLJ 1992 Lahore 212 PLJ 1992 Lahore 212 Present: muhammad ilyas, acj MAQBOOL HUSSAIN TAHIR-Pctitioner versus S.H.O. POLICE STATION NEELA, DISTRICT CHAKWAL, and 5 others-­ Respondents Civil Misc. Petition No. 700 of 1992, dismissed on 15.2.1992 (Approved for reporting on 8.3.1992). Lahore High Court (Establishment of Benches) Rules, 1981- —R.5-Writ Petition-Institution at Principal seat-Prayer for-If prosecution of writ petition at Rawalpindi exposes petitioner to some trouble at hands of his opponents, he will be similarly exposed at Lahore as well—On other hand, his adversaries would have to suffer more bother and expense for corning to Lahore to defend writ petition as compared with those to which they will be put for doing so at Rawalpindi because latter place is nearer to them than former-Held: Petitioner cannot he allowed lo file writ petition at Lahore-­ Miscellaneous petition dismissed. [P.213JA Petitioner in person. Date of hearing: 15.2.1992 ordfr This is a civil miscellaneous petition by one Maqbool Hussain Tahir, under rule 5 of the Lahore High Court (Establishment of Benches) Rules, 1981, for special permission to file a writ petition at the Principal Seat of this Court. 2. The writ petition proposed to be made by the petitioner would be against the S.H.O., Police Station, Nila, Tehsil and District Chakwal, and others. It is appended to the miscellaneous petition in hand. 3. The petitioner's grievance, as voiced in the writ petition, is that some persons attacked his house and forcibly removed the gate of his house. According to him, he moved the said S.H.O. for recovery of his gate but he did not take due interest in the matter. He, therefore, desires that the S.H.O. may be directed to safeguard his family's life, liberty, honour and property. 4. In the instant miscellaneous petition it has been stated that the aforesaid culprits, who arc named in the enclosed writ petition, would cause harm to him if the constitutional petition is presented before the Rawalpindi Bench of this Court. Undoubtedly, they reside within the local limits of the jurisdiction of the said Bench and the disputed house is also located within those limits. 5. From what has gone above, it is amply clear that the writ petition proposed to be filed by the petitioner would be made at a place different from the place where the alleged high-handedness has been perpetrated. To put it differently, it is not going to be filed at Chakwal or at the place where the petitioner's house is located, namely, village Sikriala. District Chakwal. If the prosecution of the writ petition at Rawalpindi exposes the petitioner to some trouble at the hands of his opponents, he will be similarly exposed at Lahore as well. On the other hand, his adversaries would have to suffer more bother and expense for coming to Lahore to defend his writ petition than the bother and expense to which they will be put for doing so at Rawalpindi because, to them, Rawalpindi is nearer than Lahore. I am, therefore, not inclined to allow the petitioner to file the constitutional petition at Lahore and dismiss this civil miscellaneous petition in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 213 PLJ 1992 Lahore 213 Present: K.HALID paul kiiawaja, J. SAEE and others-Petitioners versus ZULFIQAR ALI and 3 others-Respondents C.M.No.l of 1991 in Civil Revision No.2742-D of 1989, dismissed on 10.3.1992 Restoration— -—Civil revision-Dismissal for non-prosecution of--Rcstoration of--Prayer for- Contention that clerk of counsel could not notice case from cause list-Primary duty to note a case is that of Advocate and not his clerk-Case set up in application for restoration is not even supported by any affidavit of either learned counsel for petitioners or his clerk-Held: Cause shown in application for absence of learned counsel is neither sufficient nor good-Application dismissed. [P.215JA Mr. Ghulam Rasool Waraich, Advocate for Petitioners. KJi. Haris Ahmad, Advocate for Respondents. Date of hearing: 10.3.1992. judgment Revision Petition No.2742-D/89 instituted by Saee etc., petitioners herein, was dismissed for non-prosecution on 3.4.1991. On that day the respondents, however, were present in court through their counsel. On 4.7.1991 the petitioners moved an application (C.M. No 2884-C/91) for the restoration of the said revision petition. The said application was resisted by the respondents. 2. I have heard the parties' learned counsel and have gone through the material available on record. 3. The only reason for the absence of the petitioners or their counsel as given in paragraph No.3 of the application is as follows:-- "That due to over sight, the clerk of the counsel for the petitioner could not notice the case from the cause list, and therefore, his counsel as well as the petitioner remained ignorant about the fixation of the case on 3.4.1991." 4. As regards delay in moving the application for the restoration of the revision petition it was staled in para No.5 of the application:— "That on 3.7.1991 the petitioners heard from the opposite party that the revision petition pending in the High Court has been decided in their favour and that they have filed execution application to obtain possession on the same day. The petitioners made enquiry form their counsel and were informed that the revision petition has been dismissed for nonprosecution." 5. The application is supported by an affidavit of Sher Muhammad petitioner No.2(fr). 6. In reply it has been submitted that the application for restoration did not disclose any sufficient or good cause and thus deserves outright dismissal. It is maintained that the case was duly printed in the regular cause list of which the parties' learned counsel had due notice. The reply is supported by an affidavit of Zulfiqar Ali respondent No.l. Learned counsel for the petitioners has relied on Mst. Begum and others vs. Mst. Begum Kaniz Fatima Hayat and others (1989 SCMR 883) and Mst. Fatima and another vs. Mst. Rehmat Mai (1989 SCMR 1202) and submitted that since he had no notice of the fixation of the revision petition, therefore, his absence was unintentional. He further submitted that as his absence was unintentional the revision petition should be ordered to be restored. I am afraid the dictum laid down in the aforesaid authorities is not applicable in the present case. In this case the only contention of the petitioners is that clerk of their counsel could not notice the case from the cause list. There is no assertion whatsoever that the learned counsel for the pelitioners had ever tried to peruse the cause list and had missed the case in question. The primary duty to note a case is that of the Advocate and not his clerk. By employing a clerk to assist him in routine matters does not absolve the Advocate of his said primary duty. Therefore, the cause shown in the application for the absence of the learned counsel is neither sufficient nor good. Further, even the case set up in the application for restoration is not supported by any affidavit of either the learned counsel for the petitioners or his clerk. In these circumstances I am of the view that the petitioners have failed to make out a case for the restoration of the revision petition which had been dismissed for non-prosecution. Consequently the application for the restoration of the revision petition is dismissed. (MBC) (Approved for reporting) Application dismissed

PLJ 1992 Lahore 215 PLJ 1992 Lahore 215 Present: M. M.\HROOB AHMAD. C.I. MUSLIM COMMERCIAL BANK LTD.-Petitioner versus CONTINENTAL ENGINEERS LTD. etc. -Respondents C.M. No. 29/B of 1990 in Ex. A. No. 11/B of 1986, in C.O.S. 17 of 1985, dismissed on 3.4.1991 (approved for reporting on 1.4.1992). Civil Procedure Code, 1908 (V of 1908)-- —S. 152 read with Section 151—Suit under Banking Companies (Recovery of Loans) Ordinance, 1979—Suit decreed with interest at rate of 14% per annum- -Decrec satisfied-Prayer for correction of error in decree to read it as 14% per annum with quarterly rcsts-A perusal of plaint shows without any ambiguity that interest at rate of 14% per annum without there being any mention of rests, was claimed—Same was incorporated in judgment-Held: It cannot he legitimately argued that mention of rate of interest as 14% per annum without any mention of quarterly rests was on account of any accidental omission or slip. [P.218JA&B (ii) Civil Procedure Code, 1908 (V of 1908)-- —S. 152 read with Section 151-Suit under Banking Companies (Recovery of Loans) Ordinance, 1979-Suit decreed with interest at rate of 14% per annum- -Decrec Satisfied—Prayer for correction of error in decree to read it as 14% per annum with quarterly rests—Court would not be justified in making correction by invoking Section 152 C.P.C. which involves payment of a larger sum of money by one party to another after satisfaction of decree as nothing remains to be done and decree could be deemed to be dead for all intents and purposes—Held: Entire decretal amount with interest calculated at rate of 14% per annum, having been paid, decree stood effectually satisfied and discharged and Court having become functus officio, could no longer entertain an application under Section 152 of C.P.C.-Petition dismissed. [P.219JD (Hi) Civil Procedure Code, 1908 (V of 1908)-- —S. 152 read with Section 151-Suit under Banking Companies (Recovery of Loans) Ordinance, 1979-Suit decreed with interest a! rate of 14% per annum- -Decree satisfied-Prayer for correction of error in decree to read it as 14% per annum with quarterly rests-Section 152 of C.P.C. caters for correction of any clerical or arithmetical mistakes in judgments, decrees or orders or error arising from any accidental .slip or omission—Mild: Circumstances of case do not in any manner attract provisions of Section 152 C.P.C. inasmuch as there is neither any clerical or arithmetical mistake nor accidental slip or omission in judgment or decree qua rale of interest as it is in accord with claim made in plaint —Held further: Belated filing of this application lends support to contention thai petitioner Bank has, in order to cause harassment to judgment debtor and withhold title documents, bolstered up claim of interest with quarterly rests. [Pp.218&219]C Mr. Masood Juvitl. Advocate for Petitioner. Mr. Muhammad Ghani, Advocate for Respondent. Date of hearing: 3.4.1991. JUXiMrM This petition under Section 152 CPC read with Section 151 CPC has been made by ihe petitioner Muslim Commercial Bank Limited with the prayer that the judgment and decree passed in favour of ihe petitioner and against the respondent be amended as regards the rate of interest so as to make it 14'7 per annum with quarterly reMs. 2. The relevant facts, briefly stated, are that the petitioner instituted a suit for recovery of Rs. 10,86,562/- against the respondents-defendants under Banking Companies (Recovery of Loans) Ordinance, 1979. The petitioner also claimed interest at the rate of 14% per annum with effect from 11.6.1985 till realization of the total amount. The respondents-defendants having not filed any application for obtaining leave to appear and defend the suit, the same was decreed vide judgment dated 5th of November, 1985. The decree was passed for recovery of Rs. 10,86,562/- with future interest at the rate of 14% per annum from the date of institution of the suit viz. 29.6.1985 till realization of the decretal amount. In pursuance of the aforementioned preliminary decree, a final decree was passed by this Court on 1.10.1986. 3. The decree holder/petitioner-bank has now filed this application asserting that in fact the interest chargeable per agreement between the parties was 14% per annum with quarterly rests but due to accidental slip or omission, the interest chargeable in the decree has been mentioned as 14% per annum without any rests. 4. The application has been opposed by the respondents-judgment debtors through a written reply. 5. The learned counsel for the petitioner has only contended that the rate of interest (a 14% per annum without any rests as mentioned in the judgment and decree has crept in due to accidental slip or omission and that the documents annexed with the plaint clearly show that the interest chargeable by the decree holder from the judgment debtors was 14% per annum with quarterly rests. He in the above view of the matter submitted that this accidental omission or slip merits to be corrected by invoking the provisions of Section 152 CPC read with Section 151 CPC. 6. Contrarily, the learned counsel for the respondents-judgment debtors has emphatically controverted the above contention raised on behalf of the petitioner and submitted that the tenor of the plaint taken as a whole shows that the decree holder-petitioner had specifically claimed interest at the rate of 14% per annum without any rests and that the prayer clause also very clearly and unambiguously claims interest without any rests. 7. The learned counsel for the respondents also contended that by the above conduct of the decree hoWer it should be deemed to have abandoned/relinquished claim of interest with any rests whatsoever. 8. It was next argued by the learned counsel for the respondents that the judgment and the preliminary decree clearly give the rate of interest chargeable which was rightly awarded as 14% per annum in view of the clear averments made in the plaint. In the same context, the learned counsel submitted that not only the preliminary decree gives the above rate of interest but it was also so mentioned in the final decree. 9. The learned counsel for the respondents-judgment debtors lastly contended that there is no accidental slip or omission in the judgment of this Court nor in the consequent preliminary and final decrees and, therefore, the sought for invocation of Sections 152 CPC and 151 CPC is wholly misconceived. 10. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the pelitioner-decree holder have no force. A perusal of the plaint shows without any ambiguity that the petitioner had in the plaint throughout claimed interest at the rate of 14% per annum without there being any mention of rests. In this behalf reference may usefully be made to the heading of the plaint and paras 4,6(d) and 7 thereof. In the prayer clause also the plaintiff very categorically claimed the interest at the rate of 14% per annum without there being any mention of quarterly rests. The relevant portion for facility of reference is reproduced hereunder:-"that a decree for the recovery of Rs. 10,86,562/- with costs and interest a! the stipulated rate of 14% p.a. till reali/ation of the same be very kindly passed in favour of the plaintiff and against the defendants",Now a look at the judgment shows that on the basis of the averments of the plaint the rate of interest allowed by this Court was clearly 14% per annum without any rests. In the context of the above position of record it cannot be legitimately argued that the mention of rate of interest as 14% per annum without any mention about quarterly rests was on account of any accidental omission or slip. 11. Section 152 CPC which has been invoked in the case in hand is reproduced hereunder for facility of rcfcrencc:- "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 ils own motion or on the application of any of the parties." From a plain reading of the above section it clearly emerges that the provision is intended to cater for a situation requiring correction by the Court either on its own motion or on an application of any of the parties, any clerical or arithmclical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The aforementioned circumstances in the I case in hand do not in any manner attract the provisions of Section 152 CPC | inasmuch as there is neither any clerical or arithmetical mistake nor accidental slip or omission in the judgment or decree qua the rate of interest as it is (in) accord with the claim made in the plaint. It may also be observed that even after I1 he passing of the final decree, no such point was raised for a very long time and not only that this application has been filed on 3.6.1990 although the decree as it exists stood satisfied long time ago i.e. on 8.1.1990, This is yet another aspect of the matter which would disentitle the petitioner form seeking any relief from this Court by invoking the provisioas of Section 152 CPC. In fact the belated filing of this application lends support to the contention raised on behalf of the respondents-judgment debtors that the petitioner-bank has in order to cause harassment to the judgment debtors and to continue withholding the documents j of title of the property, bolstered up the claim of interest with quarterly rests. 12. Before parting with the case, it may also be observed that there is no dearth of authority on the pjrfnt that the scope of Section 152 CPC is only to correct arithmetical/clerical' Shstakes or errors arising due to accidental slips or omissions in the judgments, decrees or orders. It is well settled that where the alleged mistake is not clerical or arithmetical or has not arisen from any accidental ship or omission, the Court has no jurisdiction under Section 152 CPC to correct it. In such cases the remedy of the aggrieved party is to prefer appeal or if permissible to apply to the Court by way of review. 13. Similarly, the scope of Section 151 CPC cannot be so widely extended so as to make it available in the cases of the nature in hand. 14. Yet another aspect of the matter is that a Court would not be justified in making a correction by invoking Section 152 CPC which involves the payment of a larger sum of money by one party to another after satisfaction of the decree as it had been passed as nothing remains to be done and the decree would be deemed to be dead for all intents and purposes. In fact the position emerging from order dated 21.2.1990 passed in C.M. No.l80-B of 1989 wherein it is stated that it has been conceded on behalf of the decree holder that if the amount is worked out on the basis of interest at the rate of 14% per annum without any rests, the entire decretal amount stands paid, is that the decree for money effectually stood satisfied and discharged and , therefore, the Court has become/z/«cto officio and could no longer entertain an application for amendment under Section 152 CPC. In view of the foregoing discussion there is no merit in this petition which is accordingly dismissed. The parties are however, left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed

PLJ 1992 Lahore 219 PLJ 1992 Lahore 219 [Rawalpindi Bench] Present: GUL ZARI.V KlAM, J. MUHAMMAD ILTAF-Pctitioner versus MUHAMMAD NAWAZ-Respondent Civil Revision No. 146 of 1991, dismissed on 1.3.1992. (i) Amendment-- —-Plaint-Amendment of--Prayer for--Section 6(2) of Punjab Pre-emption Ordinance, 1990 (V of 1990) which was promulgated on 29.3.1990, provided for "Zaroorat" or avoidance of "Zarar" for claiming pre-emption—All subsequent Ordinances and Act retained this provision-Although pre-emption suit was instituted on 5.5.1990, yet no reference to "Zaroorat" or avoidance of "Zarar" was made in plaint—No serious attempt was made for incorporating it in plaint in trial court or in appellate Court-No such ground was taken in revision petition itself—Held: Allowance of amendment shall cause serious injury to opposite party in addition to fear for taking false plea for meeting requirement of law-Petition dismissed. [P.222JB (ii) Pre-emption- —Pre-emption- Suit for—Absence of Zaroorat or avoidance of Zarar— Whether pre-emption could be allowed under new legislation—Question of—It has already been decided in Civil Revision No. 150-D of 1991 that without expressing "Zaroorat" or "Zarar" sought to be avoided, as visualised in Section 6(2) of new law, pre-emption could not succeed-Held: Absence of statement on "Zaroorat" or avoidance of "Zarar" was fatal to petitioner's claim 6f pre­ emption. [Pp,221]A Mr. Muhammad Munir Pcracha, Advocate for Petitioner. Date of hearing: 1.3.1992. judgment Civil revision emanated from a suit brought by the petitioner for pre-empting sale of land measuring 3 Kanals, 4 Marias, at Find Suleman Makhan, in Tehsil and District Attock, by Muhammad Aslam to respondent for a sale-price of Rs. 20,000/- through sale-mutation No. 294 sanctioned on 15.5.1989. Suit was instituted on 5,5.1990. Pre-emption was claimed on the grounds of co-ownership, contiguity and participation in amenities, such as sharing user of a common passage. Reference to performance of Talabs found mention in the plaint. Before the defendant in the suit could be served, trial Court suo-motu found that the suit could not proceed and dismissed it on 26.6.1990. In para-3 of its order, the Court said:- "The Hon'ble Supreme Court of Pakistan in the full Bench Judgment dated 26.5.1990 in the case of Government of NWFP and others against Malik Said Kamal Shah and others (reported as PLJ 1990 SC 865), held that after 31st July 1986, sections 15 and 30 of the Punjab- Pre-emption Act 1913, have completely ceased to have any force and as a result the entire Act had become ineffective, therefore, no suit can proceed on the basis of the said Act after 31st July 1986, except those in which a decree had been passed before the said date. In view of this decision, this suit cannot proceed. The plaintiff has passed (presumably, it should be based) his claim on the ground of co-ownership and contiguity, which cannot be made basis for a judgment in his favour in view of the case-law referred to above, the suit of the plaintiff fails and is hereby dismissed leaving the parties to bear their own costs of the suit." Case of Malik Said Kamal is reported in P L J 1986 Supreme Court 576. The trial Court, presumably meant a reference to the case ofsuo-motu Shariat Review Petition No. 1-R of 1989 decided by the Supreme Court on 26th May, 1990 (reported as PLJ 1990 SC 865).Petitioner sought review of the order of the trial Court, passed on 26.6.1990, dismissing the pre-emption suit by filing an application for it. Respondent resisted review. It was stated that review petition was barred by time: that application in its existing form was not maintainable; (and) that the petitioner had no cause to file the application. On merits, it was stated that alike petitioner, respondent was also a co-owner. Further, it was stated that necessary Talabs had not been performed. On 6.12.1990, trial Court dismissed the review petition by observing that Punjab Ordinance XVIII of 1990, issued on 27th August, 1990, had run out its life on 25th, November, 1990, and, therefore, the application filed under it was not maintainable. Against this order of the trial Court, petitioner went up in appeal to District Judge, Attock. Vide order dated 2.1.1991, he dismissed the appeal by a short order. Learned District Judge said:- For seeking review of the order dated 26.6.1990, the petitioner had moved an application for review of the said order which has been dismissed by the trial Court vide his order dated 6.12.1990 against which he has come up in the present appeal. I have heard the learned counsel for the appellant. He has not been able to deny that the order having been confirmed in review, no appeal remains competent. That being so, it is so held and the appeal dismissed in iimine, for its being incompetent."This order of the learned Judge below has been assailed in revision in this Court. While the revision petition lay in motion hearing, petitioner applied for amending his plaint in the pre-emption suit for adding a statement of "Zaroorat" and avoidance of "Zarar". This application was filed during course of the hearing of the civil revision today. Two important points arise for consideration. First point was, whether in absence of "Zaroorat" or avoidance of "Zarar" pre-emption could be allowed under the new legislation, and, the second related to propriety for permitting amendment to the pleading at revisioral stage. As far the first point, I have already expressed in Civil Revision No.l50-D/1991 decided on 29.2.1992 that without expressing "Zaroorat" or "Zarar" sought to be avoided, as visualized in Section 6(2) of the newj«w, pre-emption could not succeed. Therefore, absence of a statement on "Zaroorat" or avoidance of "Zarar" was fatal to the petitioner's claim of pre-emption. In regard to the prayer for allowing amendment to the plaint in the pre-emption suit, which was not claimed in the earlier stages of .litigation, though the powers were wide, yet in the interest of justice, it may not be proper to allow it for assisting introduction of possible false pleas. Punjab Pre­ emption Ordinance, 1990, (Ordinance V of 1990) was promulgated on 29th March, 1990. In its sub-section 2 of Section 6, it provided for "Zaroorat' or avoidance of "Zarar" for claiming pre-emption. In all the Ordinances, subsequently promulgated and the Act, this provision of law was retained. Pre-emption suit was instituted on 5.5.1990. Yet, in the plaint, there was no reference to "Zaroorat" or "Zarar". Also, no serious attempt was made for incorporating the statement on "Zaroorat" or "Zarar", while the suit was in the trial Court or in appeal before the learned Judge below. Also, no such ground was taken in the revision petition itself. Therefore, allowance of the prayer shall cause serious injury to the opposite party, in addition to a fear for taking false plea for meeting the requirement of law. In this view of the matter, civil revision is rendered unmeritorious, and, is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 222 PLJ 1992 Lahore 222 Present: MUHAMMAD ILYAS, ACJ. MANSAB KHAN-Petitioncr , versus Mst SHAZIA KAUSAR ? Respondent T.A. No. 25/C of 1992, dismissed on 18.2.1992 v approved for reporting on 8.3.1992). Family Courts Act, 1964 (W.P. Act XXXV of 1964)-- —-S. 25-A-Jactitation of marriage-Suit for-Transfer of-Prayer for Conflicling findings can be avoided if both suits are heard and decided by one and same court-Held: Since petitioner is a male but respondent is a female, latter deserves to be saved from bo' icr in preference to petitioner—Petition dismissed. [P.223]A Malik Muhammad Khan Awan, Advocate for Petitioner. Mr. Muhammad Sharif KhoLtar, Advocate for Respondent. Date of hearing- 18.2.1992. judgment This petition has been made by one Mansab Khan for transfer of a suit for jactitation of marriage brought against him by his wife, Msf.Shazia Kausar which is pending before Mr. Jehan Dad Khan Banth, Judge, Family Court, Lahore . The petitioner has filed a suit for restitution of conjugal rights which is being heard by Mr. Manzoor Mirza, Judge, Family Court, Sargodha . The petitioner has prayed that the respondent's suit may also be transferred to the said Court at Sargodha. 2. In view of the nature 01 ihe two suits, common questions of law and fact are likely to arise therein. Conflicting findings on such questions can be avoided if both the suits are heard and decided by one and same Court. Besides, if the two suits are allowed to be tried by the Courts now seized of them, the petitioner will have to come to Lahore to defend the suit brought by the respondent and the latter will have to visit Sargodha to resist the suit instituted by the former. It is, therefore, my desire that one of parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the suit against her/him. Which of the two parties should be helped in this regard is the question which now fails for consideration. Since the petitioner is a male but the respondent is a female, I feel that she deserves to be accommodated in preference to the petitioner. Accordingly, I do not accept this petition and dismiss it with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 223 PLJ 1992 Lahore 223 Present: MUHAMMAD ILYAS, ACJ Haji MUHAMMAD ABDULLAH-Petitioner versus MUHAMMAD RIAZ-Respondent Civil Revision No.l903/D of 1991, dismissed on 18.2.1992 (approved for reporting on 14.3.1992). Evidence- —Evidence of plaintiff--Non-production of—Closure of evidence—Challenge to- -Admittecily no medical certificate regarding illness of petitioner was produced in any Court bclow-Ccrtificate produced in High Court is dated 19.11.1991 whereas impugned order was passed on 12.9.1991-Ground of sickness of petitioner is clearly an afterthought—Petitioner was grossly negligent in adducing evidence in support of his claim-Held: Trial Court was justified in closing petitioner's evidence-Held further: Orders passed by two courts below are not open to any legitimate exception. [P.224JA&B Mr. Muhammad Farooq Qureshi Chishti, Advocate for Petitioner. Date of hearing: 18.2.1992. ordf-r This civil revision has arisen out of a suit brought by the petitioner, Haji Muhammad Abdullah, against the respondent, Muhammad Riaz, for recovery of Rs.22, ( )14/-. The suit was contested by the respondent whereupon issues were struck. The petitioner was given several opportunities to produce evidence but he did not do so. His evidence was, therefore, closed and the suit was dismissed by the Civil Judge, Jauharabad, District Khushab. The petitioner went in appeal before the District Judge, Khushab, but without success. Hence this civil revision. 2. It was submitted by learned counsel for the petitioner that the petitioner was sick on the day when his evidence was closed and, therefore, he may be allowed one opportunity to produce evidence. 3. Admittedly, no medical certificate was shown to the learned Civil Judge regarding sickness of the petitioner before his evidence was closed. The certificate was not produced even before the learned District Judge at the time of hearing of the appeal because there is no mention of the certificate in his order. It is for the first time that the certificate has been placed before me. It was issued on 19 th November, 1991, by a private practitioner. The learned District Judge had passed the impugned order on 12th September, 1991. This means that the certificate was obtained after the dismissal of the petitioner's appeal. Thus, the ground of sickness of the petitioner is clearly an afterthought. Also, non-production of certificate before either of the two Courts below and its issuance after the dismissal of the petitioner's appeal, makes the certificate doubtful. I am, therefore, not impressed by the plea of sickness raised by the petitioner. 4. As stated by the learned District Judge in his order, the petitioner was required to produce evidence on 13th March, 1991 and 27lh April, 1991 but he did not do so. On 27th April, 1991 the case was adjourned to llth June, 1991 on payment of costs and the petitioner was warned that last opportunity was being given to him to do the needful. On llth June, 1991, he did not enter appearance nor did he bring any witness on that date. The learned Civil Judge, therefore, did not agree to further adjourn the case and closed the petitioner's evidence. 5. The circumstances mentioned above clearly show that the petitioner was grossly negligent in the matter of adducing evidence in support of his claim. The learned trial Court was, therefore, perfectly justified in closing his evidence. It is B not the case of the petitioner that he did not request for adjournment of the suit to the dale on which his evidence was closed. Orders passed by the two Courts below are, therefore, not open to any legitimate exception. 6. There is no merit in this civil revision. It is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 225 PLJ 1992 Lahore 225 Present: MALIK MUHAMMAD Q.AYYUM, .1 A/A. IBRAHIM WOOD WORKS-Pctitioner versus GOVT. OF THE PUNJAB, THROUGH SECRETARY, LOCAL GOVT. AND RURAL DEVELOPMENT DEPARTMENT, and 3 others-Respondents ) Writ Petition No.962 of 1992 (also W.P.963 & 964 of 1992) dismissed on 10.3.1992. Writ Jurisdiction- ...... Timber goods-Export from Gujranwala District-Export tax on—Challenge to-Whether writ jurisdiction is available-Question of--Dispute as to whether or not goods are wooden crosses, is factual in nature and can only be decided after recording evidence-Held: It is not possible to adjudicate upon this question in exercise of constitutional jurisdiction—Petition dismissed. [P.225JA Mr. Muhammad Shahzad Shaukat, Advocate for Petitioner. Rana Muhammad Arshad, Additional Advocate General for Respondents. Date of hearing: 10.3.1992. order This order shall dispose of Writ Petitions No.962/92, 963/92 and 964/92 in which similar questions arise for determination. 2. The petitioners are running factories in District Gujranwala where they manufacture goods out of timber, which are exported by them out of District Gujranwala. These goods are being charged export tax under Item No.40 of the Export Schedule notified by respondent No.2, as wooden crosses which action has been called in question in these proceedings. 3. Learned counsel for the petitioners, in support of these petitions, has raised following two contentions. (/) The goods being exported by the petitioners fall under Item No.10 and not Item No.40 of the Schedule. (/(') That the Model Schedule prepared by the Provincial Government has not been followed by the Zila Council which has notified its own schedule without following the procedure prescribed by rule 10(2) of the Punjab Local Council (Taxation Rules 1980). 4. Learned Additional Advocate General has, on the other hand, contended that the goods being produced and exported by the petitioners appropriately fall under heading No.40 of the schedule and have been correctly subjected to payment of tax under that head. Learned Additional Advocate General has maintained that the export tax schedule has been prepared and notified strictly in accordance with law. 5. The contentions raised by the learned counsel for the petitioner cannot be accepted. The dispute as to whether or not these goods are wooden crosses, is factual in nature and can only be decided after recording evidence. It is not possible to adjudicate upon this question in the exercise of constitutional jurisdiction of this Court. The petitioner may, if so advised, resort to such alternative remedy as may be available to them under the law. 6. Adverting to the second contention, it is to be seen that in the Model Schedule framed by the Government there is no entry corresponding to entry No.40 of the schedule announced by the respondents. But this fact is of not much significance inasmuch as, the Zila Council is authorised independently of the instructions of the Government by Section 137 of the Punjab (Local) Government Ordinance 1979, to impose tax on any of the goods specified in the second schedule. It is also to be noticed (that) according to rule 10(1) of the Punjab Local Council (Taxation Rules 1980), the Model Schedule, is framed by the Government for the guidance of the Local Councils. It has obviously no binding effect and (is) of advisory nature. 7. Learned counsel for the petitioners has, however, relied upon rule 10(2) to argue that if a departure is made by the Zila Council from the Model Schedule, a note has to be appended to the taxation proposals by the Chairman of the Local Council. A perusal of rule 10(2) would show that this provision, which is for guidance of the local councils, is directory and not imperative in nature especially when no consequence for non-compliance with it has been proved. It cannot be held that merely because a note has not been appended by the chairman to the taxation proposal, the tax levied by the Zila Council is illegal. These petitions have no force and are dismissed in limine. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 226 PLJ 1992 Lahore 226 Present: fai.ak Slir.R, J Miss SHAZIA MUKHTAR-Pclilioncr versus PRINCIPAL KING EDWARD MEDICAL COLLEGE, LAHORE and another- -Rcspondcnts Writ Petition No.8871 of 1991, dismissed on 28.3.1992 (approved for reporting on 7.4.1992). Educational Institutions— —M.B.B.S. Class—Admission to—Refusal of—Challenge to—Clauses 12(a), 12(#) and 13(v) of Prospectus of Government Medical Colleges in Punjab postulate submission of completed applications before notified last date for receipt of admission applications with clear caveat that applications or results received subsequent to that date, would be beyond pale of competitive consideration-Any contrary view is likely to unduly prolong admission process—Contention as to discrimination is devoid of any substance because all similarly placed persons have been mctcd out a similar treatment—Held: Petition is devoid of any substance-Petition dismissed. [Pp.228]A,B,C&D PLJ1991 Lahore 382 ref. Mr. Khadim Hussain Bhatti, Advocate for Petitioner. Mr. Farooq Bedar, Additional Advocate General for Respondents. Date of hearing: 28.3.1992. JUDGMENT Petitioner having appeared in the Intermediate Examination with Pre- Mcdical subjects conducted by the Board of Intermediate and Secondary Education, Peshawar from the WAPDA Degree College , Terbela Darn for the annual session 1991, pursuant to the advertisement in the leading national dailies of 4lh August, 1991, in anticipation of declaration of the result, applied for admission in the 1st Year M.B.6.S. class on the prescribed form to the Chairman, Admission Board for Medical Colleges in the Punjab in terms of para 12Q>) of the prospectus of the Government Medical Colleges in the Punjab for the session 1991-92 within the prescribed date and upon declaration of the result on 16.9.1991 furnished the result card on 17.9.1991 securing 806 marks out of 1100 inclusive of 20 marks for N.C.C.; which did not mature into reality for the belated furnishing of the results viz., beyond the notified last date fixed for receipt of the admission forms being 24.8.1991. 2. Legality whereof has been assailed by virtue of this constitutional petition placing reliance on Muhammad Ziaul Haq v. Admission Board of Medical Colleges of Punjab and 8 others (P.L.J. 1991 Lahore 382) to contend that candidates with lesser marks vis-a-vis the petitioner have been granted the admission. 3. To which learned Additional Advocate General responded that para 12(g) of the prospectus has since been amended with a view to bringing it in consonance with the pronouncement made in the case being relied upon viz., the admission applications submitted in anticipation of declaration of the results could only be considered if the result cards were furnished by the notified last date, which in the instant case happened to be 24.8.1991. 4. Confronted therewith learned counsel for the petitioner grudged against the amendment being unfair, arbitrary, unjust, unreasonable and discriminatory. 5. Which I am afraid is misconceived because the admission process was set into motion by inviting applications through the press with particularity stipulating the last date for receipt of admission applications having synchronized it with declaration of the results by all the Boards of Intermediate and Secondary Education in the Punjab and Federal Board of Islamabad pursuant whereto the petitioner too joined the contest by submitting the application in terms of the prospectus of the Government Medical Colleges in the Punjab inter alia enshrining clause 12(a), 12(g) and 13(v), relevant text whereof for the sake of convenience of reference is reproduced herein below: 12(0) "Applications for admission to 1st Year M.B.B.S. Class will be invited by an advertisement through the press. The date and the place of submission of applications will also be specified in such advertisement. Any application received after that date shall not be considered". 12(g) "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 are produced upto the • last date fixed for the receipt of admission applications Applications/results received after the date so prescribed will not be considered". 13. "All applications from the candidates must be accompanied with photostat copies of the following certificates in duplicate duly attested (v) attested/photostat copies of detailed marks certificate of F.Sc., B.Sc. of the Board of Intermediate and Secondary Education/University:" 6. Conjunctive reading whereof in unambiguous terms amplifies the phenomenology of admission schedule commencing with submission of duly completed applications on prescribed forms inter alia requiring detailed marks certificate as a necessary appendix to be submitted before the notified last date for receipt of admission applications with clear caveat that applications or results received subsequent to the date referred to supra would be beyond the pale of competitive consideration which requirement sounds to be fairly reasonable and fair with a view to conferring certainty to the admission process on competitive basis by a certain date read in juxtaposition with the pre-amended fluid state. Any view to the contrary in all probabilities is likely to unduly prolong the admission process and would also create sense of uncertainty to the disadvantage of eligible applicants. 7. Likewise, the contention as to discrimination is devoid of any substance because all similarly placed persons have been meted out a similar treatment. In view of the aforegoings, the petition being devoid of any substance is hereby dismissed with no orders as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 228 PLJ 1992 Lahore 228 Present: muhammad ilyas, J KARIM AHMAD SIDDIQUI-Petitioner versus ABDUL HAMID-Respondent Civil Revision No.1633 of 1991, dismissed on 2.2.1992 (approved for reporting on 15.2.1992). Restoration-- —Appeal—Dismissal for non-prosecution of—Restoration of—Refusal of— Challenge to-No medical certificate supporting his averment of severe headache has been produced by petitioner-He should not have left court if he had gone there especially when his counsel was out of station—Argument that he had brought this difficulty to notice of Reader of Court but this has neither been stated in application for restoration nor affidavit of Reader has been produced—Application for restoration of appeal was made after 12 days of dismissal of appeal and no explanation for this delay has been offered--Held: Explanation tendered by petitioner for his absence which resulted in dismissal of his appeal for want of prosecution, is not impressing-Petition dismissed. [Pp.229&230]A&B Mr. Gulzar Ahmed Qureshi, Advocate for Petitioner. Date of hearing: 2.2.1992. ordfr Facts giving rise to this civil revision are that the petitioner, Karim Ahmad Siddiqui, filed an appeal against the respondent, Abdul Hamid, which was dismissed in default on 8th January, 1990. The petitioner made an application for restoration of the appeal stating that he had come to the Court on the said date but left it as he had severe headache. As for his counsel, it was stated by him that he was out of station. His explanation did not find favour with the learned Additional District Judge, who dismissed the appeal and therefore, his application was rejected. Feeling aggrieved by the order passed on his application, the petitioner has come up in revision to this Court. 2. No medical certificate supporting his averment of severe headache has been produced by the petitioner. Even if he had it, it was a minor ailment and the petitioner should have not left the Court, if he had gone there, especially when his counsel was out of station. Admittedly, he did not inform the learned Additional District Judge about his trouble before leaving the Court. According to the learned counsel, he brought his difficulty to the notice of the Reader of the learned Additional District Judge but this has not been stated in the application for restoration of the appeal. His plea in this regard, therefore, appears to be afterthought. Further, there is no evidence or affidavit of the Reader in support of his assertion. It is also note-worthy that the application for restoration of the appeal was made after 12 days of the dismissal of the appeal. No explanation for this delay has been offered. If the petitioner was present on the date when the appeal was dismissed in default, he should have been quick in seeking its restoration but he acted otherwise. In view of all this, I am not impressed by the rexplanation tendered by the petitioner for his absence which resulted in the (dismissal of his appeal for want of prosecution. 3. In view of the above discussion, I am not inclined to interfere with the order of the learned Additional District Judge by which he had refused to restore the petitioner's appeal, and dismiss this civil revision in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 230 PLJ 1992 Lahore 230 Present: malik muhammad qayyum, J MUHAMMAD ISHTIAQ HUSSAIN and another-Appellants versus ZULFIQAR ALI-Respondent FA.O. No.40 of 1992, decided on 8.3.1992. Temporary Injunction- —Specific performance of agreement-Suit for-Temporary injunction granted conditionally-Challenge to-Impugned order to extent it directs that in case of failure of appellants to deposit Rs.16,00,000/- till 16.2.1992, suit would stand dismissed, is clearly in excess of jurisdiction vesting in trial Court-­ Respondents had inter-alia denied execution of agreement and suit could only be decided after framing relevant issues-Held: It cannot be denied that trial Court could impose condition to grant of temporary injunction, but it could not certainly direct that in event of non-compliance of that order, suit shall stand dismissed-Held further: Only penal consequence could be dismissal of application for temporary injunction-Order of trial Court modified. [P.231]A,B&C Mr. Lai KJian Balouch, Advocate for Appellants. Mirza UmarHayat, Advocate for Respondent. Date of hearing: 8.3.1992. judgment A suit for possession through specific performance was filed by Muhammad Ishtiaq and others, the appellants herein, againsl Zulfiqar AH respondent in the Civil Court at Faisalabad. Alongwith the plaint an application for temporary injunction under Order 39 Rules 1 and 2 C.P.C. was also made. The suit as well as the application under Order 39 Rules 1 and 2 were contested by the respondent on various pleas. The trial Court vide its order dated 26th January, 1992 accepted the application for temporary injunction subject to the condition that the appellants/plaintiffs shall deposit Rs.16,00,000/- in the Government Treasury till 16th February, 1992 failing which their suit shall stand dismissed. 2. Aggrieved by this order the appellants have come in appeal. The learned counsel for the appellants has contended that the trial Court acted without jurisdiction in observing that in case the appellants fail to deposit Rs.16,00,000/-, the suit of the appellants shall stand dismissed. According to the learned counsel such a condition could not be imposed under any law. The learned counsel for the respondent has however, supported the impugned order. 3. Having heard the learned counsel for the parties, it is quite apparent that the impugned order to the extent it directs that in case of failure of the appellants to deposit Rs.16,00,000/- till 16th February, 1992, the suit of the appellants would stand dismissed is clearly in excess of jurisdiction vesting in the trial Court. The appellants had filed the suit averring that there was an agreement to sell between the parties which may be specifically enforced. The defendant/respondent had inter-alia denied the execution of that agreement. In these circumstances the suit filed by the appellants could only by decided after framing the relevant issues. 4. It cannot be denied that the trial Court while hearing the application for temporary injunction could in terms of Order 39 Rules 1 & 2 C.P.C. impose a condition and as such the direction to deposit the money as a condition to the grant of temporary injunction was justified but the trial Court could not certainly direct that in the event of non-compliance of that order the suit shall stand dismissed. The only penal consequences which could be provided for noncompliance of the order could be the dismissal of the application for temporary injunction. For the reasons aforesaid this appeal is accepted and the order of the trial Court is modified to the extent that in the event of failure of the appellants to deposit the amount of Rs.16,00,000/- as directed by the trial Court, their application for temporary injunction shall stand dismissed. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 231 PLJ 1992 Lahore 231 Present: MUHAMMAD II.YAS, ACJ Mst. NASREEN-Petitioner versus RAMZAN-Rcspondcnt T.A. No. 758/C of 1991, accepted on 18.2.1992 (approved for reporting on 18.3.1992) Family Courts Act, 1964 (W.PAct XXXV of 1964)-- —S. 25-A-Suil for restitution of conjugal rights-Transfer of-Praycr for--Pleas put forth by petitioner are supported by her affidavit—Same have not been rebutted by respondent by filing counter affidavit, therefore, same are presumed to be correct-More care is taken of convenience of female party than that of male party-Held: Petitioner has a good case for seeking transfer of respondent's suit to Chunian-Petition accepted. [P.232JA&B Miss Roshan Ara, Advocate for Petitioner. Mr. Hassan Ahmad Mian Kanwar, Advocate for Respondent. Date of hearing: 18.2.1992 judgment Mst. Nasreen has made this petition for transfer of a suit for restitution of conjugal rights brought against her by the respondent, Muhammad Ramzan, who claims to be her husband. That suit is pending before the Judge, Family Court (Senior Civil Judge), Sahiwal. She has prayed for the transfer of the said suit to the Judge, Family Court, Chunian, District Kasur, on the ground that she is living with her husband, Shaukat, at Paltoki. 2. It has been alleged by her that she is a pardah nashin lady and also apprehends danger at the hands of the respondent in the event of her going to Sahiwal to defend the suit brought against her by the respondent. 3. Pleas put forth by the petitioner are supported by her affidavit which have not been rebutted by the respondent by filing a counter affidavit. I, therefore, presume that her averments are correct. She is also a female but the respondent is a male, and in cases like the one in hand more care is taken of the convenience of the female party than that of the male party. Obviously, if she is obliged to go to Sahiwal to defend the suit brought by the respondent, she will be put to more bother than the one to be faced hy her for going to Chunian. She has, therefore, a good case for seeking transfer of the respondent's suit to Chunian. 4. This petition is, accordingly, accepted and the respondent's suit is transferred from the said Family Court of Sahiwal to the most senior Family Judge of Chunain. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 232 PLJ 1992 Lahore 232 Present: MUHAMMAD II.YAS, J NAZIR AHMAD and anothcr-Pctitioners versus MUHAMMAD TAHIR and anolhcr-Respondents Civil Revision No. 2015 of 1990, accepted on 24.11.1991 (approved for reporting on 23.12.1991) (i) Laches-- —Pre-emption—Suit for—Dismissal of suit and appeal—Challenge to—Whether revision suffered from laches—Question of—Judgment and decree under revision were passed on 20.2.1989 and initially revision having been filed within 90 days of passing of judgment and decree, there was no delay on part of petitioners in presenting Civil Revision-Held: No doubt, petitioner's counsel took some time to remove objections, but that is not a sound reason for non­ suiting them--Held further. No period of limitation has been prescribed for filing of civil revision and ii is policy of law that matters brought before courts should be decided on merits and not on basis of technicalities. (ii) Valuation- —Pre-emption-Suit for—Dismissal of-Appeal against-Whether appeal was correctly valued—Question of—Established law is that if valuation fixed for trial court is not altered by trial court, that valuation continues to be valuation for appellate court also and if it is changed, then changed one is to be treated as valuation for appeal—Admittedly, valuation in this case was not changed—Held: Appellate court could not take exception to valuation fixed by petitioner for purpose of appeal—Petition accepted and case remanded for decision of appeal on merits. [P.234JB&C PLD 1960 (WP) Lahore 1088 and PLD 1964 (WP) Peshawar 228 rel. Mr. Zafar Pasha Chaudiiry, Advocate for Petitioners. Vr Zafi2r Iqba! Khan, Advocate for Respondents. Date of hearing: 24.11.1991. judgment This civil revision has arisen out of a suit for pre-emption brought by the petitioners, Nazir Ahmad and another, against the respondents, Muhammad Tahir and another. Plaint in the suit was rejected by the Civil Judge, Ferozewala, District Sheikhupura, on the ground that zar-e-panjam (l/5th of the ostensible sale price) was not deposited by the petitioners in time. Order of the learned Civil Judge in this regard was challenged by the petitioners by taking appeal before the District Judge, Sheikhupura. View expressed by the learned District Judge was that as proper Court fee had not been paid on the memorandum of appeal, technically speaking, there was no appeal before him. The petitioners have, therefore, come up in revision to this Court. 2. It was objected by learned counsel for the respondents that the revision suffered from the defect of laches and was, therefore, liable to be dismissed on that ground. In reply, it was submitted by learned counsel for the petitioners that in the first instance the revision was filed by him on 21st May, 1989 v i it was returned to him for removing certain objections. It was re-filed b v 16th October, 1990, after doing the needful. Judgment and decree unc 1 passed by the learned District Judge on 20th February, 1989. T' follow that initially the revision was filed within 90 days r judgment and decree under challenge and thus there was the petitioners in presenting the civil revision. No doub' 1 remove the objections but that, to my mind, is not a sound reason for non-suiting the petitioners. No period of limitation has been prescribed by law for filing a civil I revision. It is also the policy of law that matters brought before the Courts should ibe decided on merits and not on the basis of technicalities. In the circumstances, I ' find no force in the plea of laches. 3. As for the valuation of the appeal, established law is to the effect that if the valuation fixed for the purposes of trial Court is not altered by the trial Court, thai valuation continues to be valuation for the purpose of the appellate Court also; but if the valuation is changed by the trial Court then the valuation so changed is to be treated as valuation for the purpose of the appellate forum as well. Mumtaz Begum vs. Ch. Zulfiqar All (P.L.D. 1960 (W.P.) Lahore 1088) and Muqarrab Khan vs. Muhammad Anwar Khan and 10 others (P.L.D. 1964 (W.P.) Peshawar 228) are some of the several precedent cases in point. Admittedly, in the instant case, valuation fixed by the petitioners (plaintiffs) for the sake of the trial I Court was not modified by that learned Court. Therefore, for the purpose of the appeal the same valuation had to be adhered to. This is exactly what the petitioners had done. The learned District Judge could not, therefore, take exception to the valuation fixed by the petitioners for the purpose of the appeal. In this view of the matter, judgment and decree passed by the learned District Judge are not sustainable and call for interference by this Court in exercise of its revisional jurisdiction. 4. Rcsultantly, this civil revision is accepted, judgment and decree passed.by the learned District Judge are set aside and the appeal remanded to him with the direction that he shall re-decide the same on merits and in accordance with law. iParties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 234 PLJ 1992 Lahore 234 Present: MUHAMMAD AMIR MALIK, J MAQSOOD AHMAD SOHAIL-Petitioner versus Mxt. ABIDA HANIF and 2 others-Respondents Wril Petition No.4854/F of 1991, dismissed on 24.11.1991. Maintenance-- —Wife-Maintenance of—Grant of—Whether expenses incurred on delivery of child are included in maintenance—Question of—Maintenance means "keeping in existence, to preserve, to support, to make good"—For actual life of respondent, delivery of child was a must-Maintenance includes food, raiment and lodging and other necessary expenses for mental and physical well-being- Physical and mental well-being of respondent needed delivery of child as well- Held: Grant of Rs.5500/- as delivery expenses as part of maintenance was correctly made by conciliation Court-Petition dismissed. [P,23$]A Chambers Concise 20lh Century Dictionary and Mahomedan Law bv D.F, Mulla ref. Mr. Muhammad Abbas Mirza, Advocate for Petitioner. Mian Muhammad Ilyas, Advocate for Respondent No.l Dale of hearing: 24.11.1991. judgment Maqsood Ahmad Sohail petitioner and Mst. Abida Hanif respondent were husband and wife. They having fell out, she moved an application for maintenance with the Conciliation Court which was granted at the rate of Rs.1500/- per month w.e.f. 1.2.1990 to 14.5.1991. In the meantime she also delivered a child on 13.9.1990 and the expenses thereof (Rs.5,500/-) were also granted. 2. In revision the Deputy Commissioner/Collector reduce- 1 the amount of maintenance to Rs.1,000/- per month. In the present writ petition the petitioner husband has challenged the grant of maintenance from 13.9.1990 onward and also the amount of Rs.5,500/- on account of delivery expenses. 3. Learned counsel for the petitioner has contended that the notice of divorce having been issued on 19.4.1990, the divorce became effective on 18.7.1990 or at the most on 13.9.1990 when the child was delivered. On the other hand, learned counsel for the petitioner has pointed out that when the first notice of divorce was given and it was found that the respondent was pregnant the proceedings were discontinued and the petitioner himself withdrew the notice of first Talaq and pronounced second written Talaq of which notice was given to the Chairman. These are factual aspects and need not be gone into in the writ jurisdiction. The writ petition was admitted to the extent whether the expenses of delivery of child could have been granted by the Conciliation Court. Learned counsel for the petitioner contended that 'maintenance' means maintenance simplicitor and did not include the said expenses. To the contrary is the argument of the learned counsel for the respondent. Maintenance, as per Chambers Concise 20th Century Dictionary means "keeping in existence, to preserve, to support, to make good". For actual life of the respondent the delivery of the child was a must. So to keep the support the expense of delivery was to be considered as included in 'maintenance'. As per D.F. Mulla in his Commentary on Mahomedan Law 'maintenance' includes food, raiment am' lodging and other necessary expenses for mental and physical well-being. The physical and mental well-being of the respondent needed the delivery of the child as well. Hence the grant of Rs.5,500/~ as delivery expenses as part of the maintenance was correctly granted by the Conciliation Court . 6. The writ petition is, therefore, dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 236 PLJ 1992 Lahore 236 Present: FALAK SHER, J Ch. ALLAH RAKHA-Petitioner versus PROVINCE OF PUNJAB, THROUGH SECRETARY, LOCAL GOVT. AND RURAL DEVELOPMENT DEPARTMENT and another-Respondents Writ Petition No.1089 of 1992, dismissed on 4.2.1992 (approved for reporting on 5.3.1992). Writ Jurisdiction- —Cattle market-Lease of-Extension of--Procurement of-Chief Minister's order for granting lease through public auction-Challenge to-Contentions that "Government" as defined in Section 3 of Punjab Local Government Ordinance, 1979 and Article 139 of Constitution, means Secretary of Department who had accorded approval, thus reference to Chief Minister was a surplusage; that petitioner has been discriminated because Chief Minister had approved a couple of other cases of this kind; that Civil Court's decree could not be nullified through executive orders; and that by virtue of principle of locus poenitentiae, Municipal Committee cannot resile from contract-Held: Whole venture smacks of collusion for ulterior motives to detriment of public exchequer and any interference in extraordinary jurisdiction would tantamount to encouraging perpetuation of illicit under-cover activity-Petition dismissed. [Pp.237 ]A Ch. Hamiduddin, Advocate for Petitioner. Date of hearing: 4.2.1992. order Petitioner, being lessee" of cattle market, Municipal Committee, Arifwala, District Sahiwal for the financial year 1990/91 having manoeuvred self propelling enthusiasm of Secretary Local Government and Rural Development Department, Government of the Punjab with a view to securing multiple extensions of lease with 10% per annum escalation clause got a directive issued through D.O. letter dated 7.1.1991 requiring the Chairman 'to personally look into the matter and send firm recommendation for further proceedings". In adherence whereto the latter vide letter dated 13.3.1991 proposed one year extension with a closing note tending to synchronize with the desire that he has no objection if the lease is extended for three years by the Government. Hastily (the very next day) responding to the non-committal response with discontent and tending to pass on the buck vide D.O. letter dated 14.3.1991 it was observed that the "letter does not sene the purpose", the case should be examined afresh keeping in view the interest of the local council and submit a self-contained reference to the Department for further necessary action. Taking the obvious hint, the Chairman succumbed to the coercion and tailored the sought for favourable reply opining the intended adventure to be in the Committee's interest vide memo dated 21.3.1991, zealously pursuing the extracted reference, the latter vide D.O. letter dated 10.4.1991 was directed to have it endorsed by the House; in obedience whereto the approval was procured vide Resolution No.191 on 11.4.1991 bemg verbatim reproduction of petitioner's application to the Secretary, Local Government and Rural Development Department. To cape it with a double knott, the petitioner resorted to a suit for declaration and permanent injunction on 7.5.1991 impleading the Chairman as the solitary respondent, who, conceded to the same and was accordingly decreed on 29.5.1991. Subsequently, to make it doubly sure, approval of the house was also secured on 30.5.1992 and putting cast iron jacket around, on 31.5.1991, a contract was executed; equipped therewith, with a view to obtaining Chief Minister's blessings summary was submitted which did not mature into reality vide the impugned order dated 11.12.1991 envisaging lease through public auction. Confronted therewith the present petition was recoursed urging that the expression "Government", as defined in Section 3 of the Punjab Local Government Ordinance, 1979 and Article 139 of the 1973 Constitution means the Secretary being head of the department, who had accorded the approval thus reference to the Chief Minister was a "surplusage"; assuming that the expression "Government" includes the Provincial chief executive then the petitioner has been discriminated because the Chief Minister had approved couple of other cases of A the kind; further through executive orders Civil Court's decree cannot be nullified and. lastly, by virtue of principle of locus poenitanliae, the Municipal Committee having executed the contract cannot be allowed to resile therefrom, wherein I am not inclined to interfere because the whole venture smacks of collusion for ulterior motives to the detriment of public exchequer and any interference in this extraordinary jurisdiction would tantamount to encouraging perpetuation of illicit under-cover activity, which trend unfortunately seems to be on the escalation and is accordingly hereby dismissed in limine; however, the petitioner, if so advised, would be at liberty to participate in the public auction. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 237 PLJ 1992 Lahore 237 Present: falak SHER, J MUHAMMAD ISMAlL--P:titioner versus GOVT. OF PUNJAB, THROUGH SECRETARY, HOUSING AND PHYSICAL PLANNING and 2 others-Respondents Writ Petition No.8988 of 1991, accepted on 15.1.1992. Audi AJteram Partem- —Plot in Township Scheme-Allotment to petitioner of-Cancellation of allotment-Challenge to-It is frankly admitted by Assistant Director and Superintendent of Township Housing and Physical Department that for identical default, neither allotment offers in each and every case, were cancelled nor any show cause notice preceded petitioner's cancellation-Held: This is an admitted case of discrimination and deprivation of vested right in flagrant violation of inalienable rule ofaudi alteram pattern -Petition accepted. [Pp.238&239]A Mr. BashirA. Mujahid, Advocate for Petitioner. Mr. Muhammad Arshad Khan Rana, A.A.G for Respondents. Date of hearing: 15.1.1992. judgment Petitioner having succeeded to the allotment of 4k marlas plot in Lahore Township Scheme, through ballotting held on 12.7.1971 earmarked for general public, factum whereof was confirmed vide letter No.DHO(STS)-71/4895 dated 25.11.1971, was required to submit an affidavit on non-judicial stamp paper worth Rs.5/- attested by a First Qass Magistrate/Notary Public/Oath Commissioner divulging name with parentage, profession, present address, monthly income, age, particulars of any property owned by or allotted to him or his wife and dependent children with an undertaking to abide by terms and conditions of allotment within a month failing which the offer was liable to be cancelled which eventually did precipitate due to non-fulfilment of the formalities within stipulated period, legality whereof was questioned in appeal, whose fate hitherto is unknown, feeling frustrated thereby present petition was recoursed wherein parawise comments submitted by the respondents revealed that consequent upon cancellation of the plot from petitioner's name it was allotted to some body else under Chief Minister's discretionary quota; further during the course of its hearing Raheel Akhtar, Assistant Director and Nawab Khan Bajwa Superintendent Township Housing and Physical Planning Department, upon query, frankly admitted that for the identical default neither the allotment offers in each and every case were cancelled nor any show cause notice preceded the petitioner's cancellation; in view whereof this is an admitted case of discrimination and deprivation of vested right in flagrant violation of the inalienable rule of aiidi alteram partem which is to be read in every proceedings likely to prejudice or adversely effect some body's rights; factum whereof remains uncontroverted by the learned Additional Advocate-General appearing on behalf of the respondents; consequently, granting the petition cancellation of the petitioner's allotment offer is hereby declared to be a nullity in the eye of law and of no legal effect. The offer would be deemed to be available to the petitioner and the matter should be taken to its logical conclusion on completion of the requisite formalities within a month's time. Before parting it may be observed that in the event of non-availability of a plot in Lahore Township, petitioner should be accommodated in any other scheme of the Department. However, there shall be no orders as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 239 PLJ 1992 Lahore 239 Present :MUHAMMAD ILYAS, ACT Mst. TASLEEM AKHTAR alias PAP-Petitioner versus ABDUL AZIZ-Respondent TA. No.622/C of 1991, dismissed on 16.2.1992 (approved for reporting on 8.3.1992) Family Courts Act, 1964 (W.PAct XXXV of 1964)- —S.25-A--Suit for restitution of conjugal rights at vehari—Transfer of—Prayer for--It has not been stated by petitioner that respondent has actually manhandled her at any stage of proceedings at Vehari-Whether or not she is legally wedded wife of respondent, is a question which is subject matter in one of issues drawn up in respondent's suit-Held: Petitioner's suit for jactitation of marriage is clearly a counter-blast to suit of respondent-Petition dismissed. fPp.240|A Syed Samar Hmsain Shah, Advocate for Petitioner. Ch. Muhammad Amin laved, Advocate for Respondent. Date of hearing: 16.2.1992. judgment Mst. Tasleem Akhtar alias Pap is wife of the respondent, Abdul Aziz. She has made this petition for transfer of a suit for restitution of conjugal rights, brought against her by the respondent. That suit is pending before Mr. Hameed Jillani, Judge, Family Court, Vehari. On the other hand, the petitioner has filed a suit for jactitation of marriage, against the respondent, which is being heard by Mr. Mehmud Maqbool Bajwa, Judge, Family Court, Samundri, District Faisalabad. The petitioner has prayed that the respondent's suit may also be transferred to the said Court at Samundri. It has been contended by the petitioner that she is &pardah nashin lady and apprehends danger at the hands of the respondent if she is obliged to go to Vehari to defend the suit brought against her. It has alsc been maintained by her that if the two suits are decided by the Courts in which they are now pending, conflicting decisions arc likely to be given on the questions cf law and facts involved therein. Acc"rdinu to her the respondent is also a resident of Adda Maridwala, Tehsil Samundri, but has brought a "mala fide" false and fictitious suit at Vehari with a view to causing her harassment. 3. On the other hand, it was submitted by learned counsel for the respondent that the respondent's suit is prior in time. It was also disclosed by him that in the respondent's suit the petitioner has raised the plea that she was not duly wedded wife of the respondent and an issue in this regard has already been struck. According to him, the entire evidence has been recorded in the respondent's suit and it was at the stage of arguments when the petitioner brought the suit for jactitation of marriage, at Samundri. All these facts were admitted by learned counsel for the petitioner. 4. Normally, petitions like one in hand are accepted by me but the instant petition is of a peculiar nature. Admittedly, the petitioner is already contesting the respondent's suit at Vehari which is now on the verge of decision. If she was a pardah nashin lady or had difficulty in going to Vehari or she was afraid of some trouble at the hands of the respondent, she should have brought the suit for jactitation of marriage before the respondent had instituted his suit for restitution of conjugal rights or in any case immediately after the filing of that suit by the respondent. This was, however, not done by her. It has not been stated by her anywhere that the respondent has actually manhandled her at any stage of the proceedings which have so far taken place at Vehari. In view of the fact that the parties' evidence has been recorded, it appears that she has already engaged her counsel at Vehari. Whether or not she is legally wedded wife of the respondent is a question which is subject matter of one of the issues drawn up in the suit of the respondent and if that issue is decided in favour of the petitioner, the respondent's suit will be dismissed, and there will be no need for the petitioner to prosecute her suit for jactitation of marriage. If the respondent's suit is transferred at this stage, all labour done by the parties in connection with the respondent's suit would go waste. This would also delay finalization of matrimonial dispute of the parties. Such dispute, for obvious reasons, deserves to be decided quickly. The petitioner's suit is clearly a counter-blast to the suit brought by the respondent. As explained above, this measure was thought of by the petitioner after a long delay. Keeping all these circumstances in view, I am not inclined to transfer the respondent's suit at this stage and dismiss her petition, leaving the parties to bear their own costs. The learned Family Judge who is trying the suit of the respondent shall decide it as soon as possible and in any case within two months of the receipt of the copy of this order. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 240 PLJ 1992 Lahore 240 Present: gui. zarix KlANI, J .IAVAID AKHTAR-Appcllant versus Mst. NEELOFAR etc-Rcspondents R.S.A.NO. 79 of 1990, dismissed on 26.2.1992 (approved for reporting on 1.4.1992). Land Reforms Regulation 1972 (MLR 115)- —Para. 25 (3)~Pre-emption~Suit for-Decree passed in~Challenge to Whether appellant was tenant or lessee at time of sale-Question of~There is neither any doubt nor dispute that lessee as such had no right of pre-emption conferred in para 25 of MLR US-Revenue Authorities recorded possession of appellant as "ghair dakhilkar" which in context denoted merely a lessee-Held: Only logical conclusion is that appellant was in possession under a lease from Mst. Sarwat Ara and was not her tenant within meaning of para. 25 of MLR 115-Appeal dismissed. [Pp.241,243&244]A&B Ch. Khurshid Ahmad, Advocate for Appellant. Malik Moor Muhammad Awan, Advocate for Respondents Date of hearing: 26.2.1992. judgment Facts have already, been sufficiently set out in order of the Court dated 17.10.1990 by which issue No. 1 covering controversy relating to superior right of pre-emption claimed by the vendee on the ground of being a non-occupancy tenant was remitted to the lower appellate Court for a finding on it and need not be reiterated in fullness, except where it is necessary 5 for the decision of the point at issue. It was found by the lower appellate Court that .the vendee was in occupation of the land-in-dispute as its 'lessee' at the time of its sale to him, and, not in the capacity of a non-occupancy tenant as urged by him and returned its findings recorded on 14.2.1991 to this Court. Appellant objected to the correctness of the findings, and, submitted objections under order-41, rule 26 of Civil Procedure Code. Respondents did not raise any objection to the findings of the lower appellate Court given on the remitted issue, but resisted the objections filed by the opposite part). Seen from the order of the Court dated 17.10.1990, and the findings recorded by the lower appellate Court on the issue remitted to it, under 41, rule 25 C.P.C., it is clear that the only point surviving for decision in the appeal is about the nature of tenancy-rights claimed by the appellant. To put it more succinctly, essence of the controversy between the parties was, whether the vendee-appellant held the land-in-dispute as non-occupancy tenant or a lessee as found in the lower appellate Court. Ch. Khurshid Ahmad, learned counsel for the appellant vehemently argued that on record, possession of the appellant as a tenant on the laid-in-dispute, at the time of its sale was sufficiently established and the lower Court, in finding the possession of the appellant as a lessee went against material portions of record, and, also contrary to the statutory provisions. It was submitted that revenue records available on file gave status of non-occupancy tenant (ghair dakhcel-kar) to the appellant, and, thus he was possessed of a first right of pre­emption which was sufficient to defeat rival competitive claim of the respondents. In support of his arguments, learned counsel referred to definitions of "landlord" and "tenant" in Section 4 of Punjab Land Revenue Act, 1967 as also the definitions of similar terms in Section 4 of Punjab Tenancy Act, 1887 and relied upon a decision of N.W.F.P. Board of Revenue, in Dost Muhammad, etc. V. Sayyed Kasim Shah-PLD 1978 Rev. 33, (N.W.F.P), a leave granting order of the Supreme Court in Muhammad Rafique. Vs. Faqir Muhammad and others-PLD 1986 S.C. 332, and, cases of Bakhtawar Shah and others. Vs. Member Board of Revenue and others-1985 S.C.M.R. 348 and Rozi Muhammad vs. Haji Gul Muhammad and another-1990 S.C.M.R. 1265. As against this, rival argument by Malik Noor Muhammad Awan, Advocate, learned counsel for respondents was that on his own statement, appellant held the land-in-dispute as 'lessee' paying a fixed lease-money, and, by merely recording him as 'ghair dakheel kar'in the record of rights and Khasra Girdawari, he could not assume to himself the legal status of a 'tenant' within the contemplation of para-25, sub-para (3), claused (d) of Land Reforms Regulation, 1972, commonly known, as MLR-115 of 1972. By reference to record, it was submitted that initial entry on possession of the land by the appellant was under a lease-deed by Ali Muhammad, later continued under a separate leasedeed by Mst. Sarwat, daughter of the original lessor. Both the lease-deeds were on file, and, appellant himself also admitted his entry under that status. It was further submitted that independent of the above lease, appellant had no other status, and, in absence of further evidence could not plead it. Learned counsel also submitted that since the appellant was in occupation as lessee of the land-in-dispute, at the time of purchasing it, he had no right of pre-emption. In support of the proposition that the lessee had no right of pre-emption under para-25 of Land Reforms Regulation, learned counsel referred to the cases in Muhammad Ashraj Vs. Member (Revenue) Board of Revenue, Punjab Lahore and 18 others-1984 C.L.C. 2950 (Lahore), Faqir Muhammad and others Vs. Muhammad Rafiq and or/im-1986 C.L.C. 1028 (Lahore), Hamid KJwn Vs. Wall Muhammad and 4 of/iOT-1989 CLC 2273 (Peshawar), Habib Roz Gujar Vs. Janatul Haq and 7 others - 1990 M.L.D. 80 (Peshawar), Major (Rctd.) Sher Bahadur Vs. Member Board of Revenue, NIVFP, Peshawar, rtc-NLR 1990 Revenue 1, Ramzan and 5 others Vs. Member Board of Revenue and of/zm-1991 C.L.C. 2125 (Lahore), Rozi Muhammad Vs. Haji Gul Muhammad and another-1990 S.C.M.R. 1265 (also relied upon by the other side), La! Din Vs. Bashir Ahmad-1991 S.C.M.R. 228. As far entry of 'ghair dakheel kar' in the revenue records, it was submitted that since it ran contrary to the appellant's own statement and also the express terms of the lease-deeds, it had little evidentiary value and relied upon a decision of this Court in Wahid Bakhsh and others Vs. Nazir Ahmad and others-PLD 1986 Lahore 87-in support of it. As observed in the opening paragraph of the judgment, real question which shall determine the fate of this appeal is the legal status of the appellant, whether he possessed the land at the time of its sale as 'tenant' or a 'lessee'. In case, it is found that he held it as tenant, his appeal shall succeed. Conversely, in view of prevailing case law, it is bound to fail. There is neither doubt nor dispute that lessee as such had no right of pre-emption conferred in para-25 of the Land Reforms Regulation. However, to have a clear perception of the matter, a brief statement as to how the appellant entered upon the land, even at the risk of repetition is found necessary. AH Muhammad owned a considerable area of agricultural land in mauza Jandiala of District Lahore. On present record, he was shown to own a little more than 800 kanals of land in this village. By a deed reduced in writing on 13.1.1969, above land was leased by him to appellant for a term of three years w.e.f. June 15, 1969 to June 14, 1972, upon payment of Rs. 8000/-premium per annum. Lease-deed is Ext. P3 on file. Upon demise of Ali Muhammad, he was survived by three daughters, namely, Mst. Sarwat, Mst. Iffaat, Mst. Nasim, a brother Ghulam Muhammad and sisters. His land was distributed between his heirs, in accordance with Islamic Law of Inheritance, and, a mutation of inheritance was sanctioned in their favour. Land inherited by them was partitioned among them. Three daughters of Ali Muhammad came to own 538 kanals, and, 13 marlas in equal shares. To each, belonged 179 kanals and 11 marlas, Mst. Sarwat Ara sold her share in the land (179 kanals and 11 marlas) to the appellant through sale-mutation No. 123, sanctioned on 5.8.1974. Revenue record prior to the record of rights pertaining to 1970-71 regarding the land-indisputc has not been put in evidence. Record of rights for the year 1970-71 showed appellant in possession as 'ghair dakheel-kar' upon payment of a lumpsum fixed rent of Rs. 8000/-. This was in line with the terms of lease-deed Ext. P3. Similarly, extract from register Khasra Girdawari w.e.f. kharif 1971 onward till Jamabandi for the year 1974-75, denoted appellant's possession as 'ghair dakheel kar'. Upon expiry of the term fixed in the lease-deed Ext. P3, appellant took on further lease, the Lnd-in-dispute from Mst. Sarwat for a period of three years w.e.f. June 15, 1°72 to June 14.1975, upon payment of annual theka, in the sum of Rs. 5000/-. From the above two lease-deeds, it was evident that the appellant took and held the land as 'lessee' upon payment of fixed annual premium. Initially, it was Rs. 8000/-per annum for the whole land of Ali Muhammad, and, thereafter, Rs. 5000/-for share of Mst. Sarwat, later sold by her in his favour. From June 1969 till June 1975, appellant continually held the land and was in its possession under an unbroken lease period. Revenue Authorities recorded his possession as 'ghair dakheel-kar', which in the context denoted merely a lessee. By itself the entries 'ghair maurusi' or 'ghair dakheel-kar' did not necessarily mean that the person so described was a tenant. The entries in cultivation column are to be read alongwith the entries in the rent-column so as to discover the true nature of possession. When seen in the above prospect, in the light of other available evidence, the only logical conclusion was that the appellant was in possession under a 'lease' from Mst. Sarwat Ara, and, was not her 'tenant' withir t! e meaning of para-25 of MLR-115. Therefore, natural corollary of it would be that he had no right to successfully resist pre-emption against him by the respondent, who, without dispute had better right qua him. She was not only real daughter of the vendor, but was a co-sharer in the land also, and. thus had a clear superior right of pre-emption against the appellant. Case law relied upon by the respondents gave clear support to the contention that a lessee had no right of pre-emption though a tenant had. Contention that the appellant was also transferred ownership-rights in the land measuring about 120 kanals, and, 16 marles by Provincial Land Commission through mutation No. 97 sanctioned on 12.6.1973 proved tenancy of the appellant in terms of para-18 of MLR-115 hardly assisted. Respondent was not a party to this transaction. If the Land Commission considered the appellant a tenant in occupation of excess land surrendered by Ali Muhammad, respondent could not be held bound by its effect. In view of the foregoing, the appeal had little substance in it, and, is accordingly dismissed with no order as to its costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 244 PLJ 1992 Lahore 244 Present: muhammad ilyas, j Ch. ATTA MUHAMMAD and another-Petitioners versus Mst. KHALIDA 1QBAL and 8 others-Respondents ' Civil Revision No. 276 of 1992, dismissed on 25.2.1992. Amendment-- —Plaint—Omission of paragraph regarding valuation of suit—Prayer for amendment allowed—Challenge to—Respondents themselves sought permission to pay proper court fee after amending plaint-It was not possible to straightaway reject plaint by disallowing amendment prayed for by respondents—It was through inadvertence that respondent's counsel had not made mention of valuation of suit—Respondents should not suffer due to inadvertant omission on his part-Held: Trial Court does not appear to have committed any illegality or material irregularity in exercising its discretion in favour of respondents-Petition dismissed. {Pp.24S A&B 1987 C L C 92 ( Lahore ) rel. Mr. S.M. Mohsin Zaidi, Advocate for Petitioners Date of hearing: 25.2.1992. judgment This civil revision has arisen out of a suit brought by the respondents, Mst. Khalida Iqbal and others, against the petitioners, Ch. Atta Muhammad and another. In the plaint filed by the respondents they omitted to add a paragraph relating to the valuation of the suit. Subsequently, they made an application for amendment of the plaint so as to insert the said paragraph in the plaint. The Civil Fudge, who was seized of the suit, allowed the desired amendment on payment of Rs, 100/-as costs. His order in this regard has been challenged by the petitioners by means of the civil revision in hand. 2. It was contended by learned counsel for the petitioners that in view of the omission of the respondents the plaint filed by them was no plaint in the eye of law and deserved to be rejected. He maintained that by allowing the amendment in question the learned Civil Judge had deprived the petitioners of a valuable right which had accrued in favour of the petitioners. 3. The law is now well settled on the point that a plaint cannot be rejected for deficiency in Court fee without allowing the plaintiff a reasonable opportunity to make good the deficiency. In the instant case, the respondents themselves sought permission to pay proper Court fee after amending the plaint as aforesaid. It was, therefore, not possible to straightaway reject the plaint by disallowing the amendment prayed for by the respondents. In the circumstances similar to those of the case before me, amendment had been allowed in qadir Bukhsh vs. District Judge and 3 others [1987 C.L.C. 92 (%) (Lahore)]. Relevant observations made in the cited case read as follows:- "Where statement as to the valuation, which is an important part of the plaint, has been omitted or the proposed valuation not given in the plaint, it may be permitted to be inserted in the plaint by way of its amendment."Seemingly, it was through inadvertance that the respondents' counsel had not made a mention of the valuation of the suit in the plaint. The respondents should, therefore, not suffer due to the inadvertant omission on his part. It is also the policy of law that judicial matter should be decided on merits and not on the basis of technicalities. It was discretionary with the learned Civil Judge to allow or disallow the amendment in question and he does not appear to have committed any illegality or material irregularity in exercising his discretion in favour of the respondents. I am, therefore, not inclined to interfere with the impugned order in exercise of my revisional jurisdiction. 4. Resultantly, this civil revision fails. It is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 245 PLJ 1992 Lahore 245 Present: GUL ZARIN KlANI, J ILYAS and 4 others—Petitioners versus JAN MUHAMMAD-Respondent Civil Revision No.1844 of 1982, dismissed on 20.11.1991. Civil Procedure Code, 1908 (V of 1908)-- —O.VI R.17--Pre-emption suit--Amendmeiit of plaint-Prayer for-Apart from express provisions in C.P.C. giving extensive powers to Court to permit amendment, Court is also amply equipped with inherent powers for remedying clerical errors and accidental omissions creeping in pleadings and also in judgments, orders and decrees—Error was committed by Advocate who could not read correct khasra number given in registered sale deed and mentioned it in plaint as 22 instead of 23—Pre-emptor was not at fault—Moment defect was pointed out in revisional Court, respondent applied for its correction—Held: Error was human and consequently condonable-Amendment allowed and Revision petition dismissed. [P.248]A Mr. Hassan Ahmad Khan Kanwar, Advocate for Petitioners. Ch. MuhammadAslam, Advocate for Respondent. Date of hearing: 20.11.1991. judgment This Civil Revision by the defendants in the .-.uit for pre-emption was against the judgment of the lower Appellate Court by which it had dismissed the appeal and affirmed the judgment of the trial Court decreeing pre-emption in favour of the plaintiff. 2. Pre-emption suit arose from the following facts: Muhammad Din owned land measuring 12 Kanals, Comprised in Khasra No.73/23 of Khatauni No.312, in Khcwat No.70/63 (8 kanals), Khasra No.73/24-min sharq of Khatauni No.315 in Khewat No.71/64 (4 kanals), situate in Chak No.31/22 in Tehsil Okara. By a deed registered on 27.2.1980, he sold the above land to Ilyas, Hassan, Rehmat, Razzaq and Ghulam Muhammad alias Gama sons of Suleman for a price of Rs.10,000/-. Registered sale deed was implemented in revenue records by attestation of mutation No.487 in favour of the vendees. Jan Muhammad claimed pre-emption in respect of the above sale and filed a suit for the enforcement of his pre-emptive rights against the vendees on 8.5.1980, in the Court of Civil Judge Okara. Superior right of pre-emption was claimed on the grounds of being a collateral (nephew of the vendor), and, a co-owner in the land sold. Vendees submitted joint written statement. It was pleaded that plaintiff was estopped to sue for pre-emption; that the plaint was deficiently stamped; that the vendees were in occupation of the land purchased by them as its non-occupancy tenants and had a better right qua plaintiff On 13.10.1980, the trial Court framed following issues:- (1) Whether the plaintiff is estopped to file this suit due to his own words and conduct? OPD. (2) Whether the plaint is insufficiently stamped, if so, what is the proper valuation of the plaint? OPD. (3) Whether the plaintiff has got superior right of pre-emption? OPP. (4) Relief.Upon taking evidence from the parties to the suit and its review, the trial Court concluded that plea of estoppel was not established; the plaint was sufficiently stamped; plaintiff had superior right of pre-emption and consequently decreed pre-emption in his favour subject to his paying Rs.10,000/- as sale price to the vendees within one month from the date of its judgment given on 1.10.1981. Vendees-defendants, preferred an appeal against the judgment and decree of the trial Court. It was heard by learned Additional District Judge who finding no merit in it dismissed the same on 26.1.1982. Against the agreed judgment of the lower Courts, vendees have come up in revision to this Court. It was admitted on 22.3.1982. Admitting order runs as:- "The sale in dispute relates to Khasra No.73/23 and 24-min whereas the suit was filed ostensibly for another piece of land namely Khasra No.73/22 and 24. It is stated that although the objection was not taken earlier but the decree when executed would take away Killa No.22, which was never sold. That question relates to the very correctness of the decree and needs examination, 2. Admit. Notice". Upon admitting Civil Revision, the Court stayed the execution proceedings without any terms. Upon being served in the revision case, respondent Jan Muhammad applied on 4.4.1985, under Order VI, Rule 17 C.P.C., for amendment seeking correction for substituting correct khasra number in the plaint. Petition for amendment was registered as C.M. 1695/85 in ihe Office. It came up before the Couri on 9.6.1985 and notice was ordered to issue to the other side. On 22.12.1985. Court observed that; In view of the nature of this matter, C.M. shall be heard alongwith the main case as suggested by the learned counsel for the petitioners". Seen from the above, only point involved for decision in the civil revision turned around the stated misdescription of the property which was subject matter of pre-emption and its consequential effect. Mr.Hassan Ahmad Khan Kanwar, Advocate, learned counsel for the petitioners vociferously contended that the defect about misdescription of the property sold was mortal to the suit and fatal to its success and the Court ought not allow a chance to the pre-emptor to retrieve him out of the morass at this belated stage, learned counsel referred to some decisions on powers of the Court and propriety to allow amendment to the pleadings, nature of the pre-emption suit and the effect of delayed application for amendment. As against this, learned counsel for pre-emptor-respondent submitted that the error regarding description was merely of a clerical as well as accidental nature and the Court had ample power and jurisdiction for allowing its correction by substitution of correct description of the property sold. He also invited the attention of the Court to number of decisions in this behalf. Of the decisions cited on either side more near the point were the cases in 'Sattan. v. Islamuddin and 6 others' 1982 C.L.C. 289 (Lah.), 'Jalal Din v. Muhammad Aslam and 2 others' 1982 C.L.C. 1282 (SC) (AJ&K), 'Ghulam Nabi v. Sardar Nazir Ahmad' 1985 S.C.M.R. 824. In verity, the last case was on all fours and clearly helped and assisted the decision on the point. There was neither doubt nor dispute about the land sold by Muhammad Din to the petitioners. Not only the registered sale deed by which the land sought to be pre-empted was conveyed was produced in evidence as Ext.P3, copies of extracts from register khasra girdawri relating to the land-in-dispute were also tendered in proof and marked exhibits on either side. Petitioners neither raised any objection regarding misdescription of the land purchased by them in the written statement not pointed out the defect in the lower appellate Court. Instead, they claimed possession as non-occupancy tenants on it and asserted their superior right of pre-emption on that Score. For the first time, the alleged misdescription was surfaced in revision petition filed in and commented upon by this Court. Instead of mentioning Killa No.23, plaintiff described it as Killa No.22, Rest of the description of the land-in-dispute was correctly stated in the plaint. Name of the Chak, area sold, its square number and the date of sale and its mode through a registered deed on 27.2.1980 were correctly enumerated. Vendees/defendants were not misled by the alleged misdescription of one of the khasra numbers included in sale. They themselves brought on record copy of an extract from register khasra girdawri relating to the land-in-dispute marked Ext.Dl and were thus aware of the true description of the land purchased by them. Apart from express provisions in the Code of Civil Procedure giving extensive powers to the Court to permit amendment for meeting the ends of justice in variety of circumstances, the Court is also amply equipped with inherent powers for remedying the clerical errors and accidental omissions creeping in the pleadings and also in its judgments, orders and decrees. It was clearly a pardonable fault and excuseable in the existing circumstances of the case. The error was human, and, consequently condonable. Neither culpable negligence nor any malafidc was involved in the case. Error came to be committed by an Advocate, who could not read the correct khasra number given in the registered sale deed and mentioned it in the plaint as 22, instead of 23. The pre-emptor was not at fault. He had handed over the relevant papers to his Advocate and reposed confidence in him. If, the latter did not describe the property correctly in the plaint by an inadvertance, the fault could not be laid at the doors of the plaintiff. The moment, defect was pointed out in the revisional Court, the respondent applied for its correction. Having regard to the nature of correction sought to be made, there could neither be any serious nor unsurmountable hurdle for exercise of correctional jurisdiction and allowing the error to be remedied as prayed in C.M. 1695/85. In consequence, Killa No.23 shall be substituted for Killa No.22 in the plaint and consequent judgment and decree of the trial Court. With the above modification, civil revision fails, and, is dismissed with costs. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ1992 Lahore 249 PLJ1992 Lahore 249 Present: MALIK MUHAMMAD qayyum, J IFTIKHARUL HASSAN-Petitioner versus REGISTRAR, CO-OPERATIVE SOCIETIES, PUNJAB, LAHORE, and 3 others-Respondents Writ Petition No.11589 of 1991, accepted on 22.3.1992. (i) Co-operative Societies Act, 1925 (VII of 1925)-- —S.44.E~Director of Pasban Co-operative Finance-Freezing of accounts of- Challenge to~Petitioner has sworn affidavit that at time when order was passed or even before that, he had ceased to be a Director of Society-Fact of his resignation from post of Director was duly communicated to Registrar-No written statement has been filed to controvert these facts-It is difficult to accept contention of Advocate General that there was grave emergency to justify departure from established rule of law and natural justice-Held: Power under Section 44-E is discretionary and it is by now well established that discretion must be exercised judiciously, objectively, honestly and not arbitrarily or in capricious or fanciful manner-Petition accepted. [Pp.255.256&257]G,H&J PLJ 1989 SC 10, PLD 1956 Lahore 615, PLD 1964 SC 673 and PLD 1988 Lahore 725 rel. (ii) Co-operative Societies Act, 1925 (VII of 1925)-- —S.44-E-Director of Pasban Co-operative Finance-Freezing of accounts of-- Challenge to—Under Section 44-E, Registrar has been authorised to take various measures but power granted to Registrar is neither un-bridled nor unguided--Use of expression "if it appears" is significant-This expression casts a duty upon Registrar to form an opinion objectively on basis of facts on record in a just, fair and equitable manner—He cannot exercise power under Section 44-E on mere conjectures and surmises or without regard of facts and circumstances of each case-Impugned order is on cyclo-styled proforma and shows no application of mind-Held: Impugned order is clearly not sustainable. [Pp.252 &25J &25V]A,B,C&D PLJ 1978 Karachi 393, Prem's Judicial Dictionary 1964 Edition Vol.11 page 806, and Words and Phrases Permanent Edition Vol.20, page 51 rel. (iii) Natural Justice- —Director of Pasban Co-operative Finance—Freezing of accounts of— Challenge to-Impugned order is to the effect of freezing even personal bank account of petitioner from which he is prohibited to withdraw any money whatsoever-All pervasive embargo has been placed on rights of petitioner to deal with movable and immovable properties so much so that he cannot even receive rent from his tenants—Even upto now neither any show cause notice has been issued to petitioner nor he has been granted any opportunity of being heard-Requirement of notice and hearing is one of essential principles of Islamic Jurisprudence-Held: It is settled law that no action detrimental to any person or his property can be taken except after complying with principles of natural justice. [P255JE&F PLJ 1987 SC 319 re/. KJt. Saeeduz Zafar, Advocate for Petitioner. Mr. Maqbool Elahi Malik, Advocate General and Malik Muhammad Afzal, Advocate for Respondents. Date of hearing: 17.3.1992. judgment The petitioner was one of the Directors of Pasban Cooperative Finance Ltd. Lahore, a Society registered under the Cooperative Societies Act, 1925. According to his case, he resigned from that office on 4.6.1991 which was duly accepted and acknowledged by respondent No.3. It is stated in this petition that during the period, the petitioner remained Director, he never obtained any loan or any other facility from respondent No.3 (Society). His grievance in the present petition is that notwithstanding the above position, the Registrar, Cooperative Societies, respondent No.l herein, on 21.10.1991 has passed an order purportedly under Section 44-E of the Cooperative Societies Act, 1925 which has the effect of freezing all the accounts of the petitioner; restraining him from alienating any of the properties or drawing any benefit like rent or income therefrom. This order has been impugned by the petitioner by filing this petition on various grounds stated therein. 2. This petition was admitted to regular hearing on 11.12.1991 and was twice adjourned at the request of the Advocate General but no written statement has been filed by the respondents. 3. In support of this petition, the learned counsel for the petitioner has raised the following contentions:— (/) that the provisions of Section 44-E are attracted only if it appears to the Registrar that the properties held by the Director belonged infact to the Society. It is pointed-out by the learned counsel that no such finding has been recorded by the Registrar nor any material has been placed before this Court by the respondents so as to justify such an influence. (//) that the impugned order has been passed without granting any opportunity to the petitioner of being heard and is as such violative of the principle of natural justice; (Hi) that the order has been passed in a mechanical and perfunctory manner and shows no application of mind by the Registrar to the facts of each case. It is pointed out by the learned counsel that the order is on a cyclostyled proforma which is being issued by the Registrar generally in all cases by filling in the particulars of the Directors. 4. The learned Advocate General has on the other hand argued that the case will be examined in the background and perspective of the crisis created by the Cooperative Societies and their office holders who had been indulging in large mal-practice and mis-appropriation of the deposits made by the depositors of which this Court should take judicial notice and it was maintained that it was necessary to have issued the orders against all the Directors of all the Socieities with a view to preserve all the assets and with a view to emergent nature of the situation, it was neither necessary to grant any hearing to the persons effected nor had the Registrar any time to examine the facts of each case and pass an order in each individual case after examining it on merits. According to the learned Advocate General, the Registrar therefore decided to issue order under Section 44-E of the Cooperative Societies Act, 1925 to all the Directors of all the Societies registered as Cooperative Societies in Punjab. 5. The impugned order purports to have been passed under Section 44-E of the Cooperative Societies Act which was added to the Cooperative Societies Act, 1925 on 15.9.1991 by Punjab Cooperative Societies (Amendment) Ordinance, 1925. It reads as under:-- "44-E(l) If it appears to the Registrar that in the interest of the members of a Society or its depositors, it is necessary that the moneys received and other assets of the Society, whether held in the name of that Society or any other person, are protected and preserved, the Registrar or any other person, authorised by him may, without prejudice to any other action or proceedings which may be taken against the Society under any law for the time being in force. (/) enter and search any premises and seize books of accounts or other documents or records; (//) take in his custody, all moneys, cash securities, title deeds, properties whether movable or immovable, belonging to such Society, including those being held on behalf of or in the name of any officer, employee or agent of the Society, beneficiary or transferee of such Society or other persons or their dependents; direct any bank, financial institution or person to freeze all moneys deposited with it or him on behalf of the Society or of any officer, employee, agent, beneficiary or transferee of such Society; (/v) take all necessary steps and measures for identifying assets and property of the Society and for realization, protection and preservation thereof; (v) restrain any Society or officer, employee agent, beneficiary or transferee of such Society or any person deriving or claiming title through any of them from alienating transferring, selling, assigning, disposing of or parting with the possession of any property movable or immovable or deriving any benefit, rent or income therefrom. (vi) make such order for realization, protection and preservation of deposits of money and other assets and property of the Society as he may deem fit. (2) The order passed under sub-section (1) may at any time be withdrawn and shall not remain in force for more than six months". The impugned order passed by the Registrar may also be reproduced which is as under:-- "Whereas, it has become necessary to protect and preserve the interest of the members/depositors of Pasban Cooperative Finance Corporation Ltd. Mall View Plaza, The Mall, Lahore. Now, therefore, in exercise of the powers conferred upon me under Section 44-E of the Cooperative Societies Act, 1925 (VII of 1925) I, Stbtain Fazal Halim, Registrar, Cooperative Societies, Punjab, Lahore, hereby: -- (a) direct all banks, financial institutions and persons to freeze all moneys or assets deposited with them by or on behalf of Mr. Iftikhar-ul-Hassan Shah Director, 2-Hearn Road, Lahore; (b) restrain Mr. Iftikhar-ul-Hassan Shah from alienating, transferring, selling assigning, disposing of or parting with the possession of any property or drawing any benefit, rent or income therefrom; (c) direct all the District Registrars/District Collectors, officers of the Excise & Taxation Department and all other authorities concerned not to permit any transfer, disposal or parting with the possession of any property movable or immovable held by or on behalf of Mr. Iftikhar-ul-Hassan Shah". 6. From a perusal of Section 44-E which has been reproduced above, it is to be seen that the Registrar, has been authorised to take various measures enumerated in clauses (i)'to (vi) of sub-section (1) but the exercise of powers is circumscribed by the condition that it should appear to the Registrar that taking of the measures enumerated in the sub-section is necessary with a view to protect and preserve the moneys received and other assets of the Society whether held in the name of the Society or any other person in the interest of the members of the Society or its depositors. It may be appreciated that the power granted to the Registrar is neither un-bridled, nor un-guided but is circumscribed by the conditions mentioned therein which must exist before any order can be passed by him. On the plain wording of Section 44-E, the argument of the learned Advocate General that the Registrar can exercise the powers irrespective of the facts is untenable and there is no warrant for the assumption that the Legislature intended to vest the Registrar with such a vast and unstructured powers so as to freeze the assets of any person connected with the Society irrespective whether he is in any way to blame or not. 7. The use of the expression "if it appears" is significant and must be given full effect to. This expression has been judicially interpretted and must be taken to have been used in that sense by the Legislature. Although the learned Advocate General is to some extent correct in submitting that this expression cannot be equated with "proof" but, with due respect to him, the difference in the two expressions is one of quantum of evidence and it cannot be contended with any success that the Registrar can proceed on the basis of no evidence or material on the record and in a subjective manner. The words "if it appears" cast a duty upon the Registrar to form an opinion objectively on the basis of the facts obtaining on the record in a just, fair and equitable manner. 8. Similar words which appear in defence of Pakistan, 1971 came up for consideration before a Division Bench of Sind High Court in Mossa Hassan Amlani v. Government of Pakistan and 4 others (PLJ 1978 Karachi 393):-- "The word "appears" occurring in rule 177 clearly imports the requirements of objective determination by the Central Government on the basis of materials available with it whether a particular contract was injurious to the public interest. The statute does not seem to vest unbridled, arbitrary and subjective power to declare a contract to be injurious to the public interest". Reference may also be made to the definition of "if it appears" in Words and Phrases Permanent Edition Volume 20 at page 51 :— "The phrase "if it appears" as used in Code Civ. Proc., 2623, providing that if it appears to the surrogate that the will was duly executed, and that the testator at the time of executing it was in all respects competent and not under restraint, it must be admitted to probate, is equivalence to a requirement that the fact of competency must be established by sufficient evidence. In Re Goodwin's Will 88 N.Y.S. 734, 95 App. Div. 183. "Section 2623 of the Code of Civil Procedure expressly provides that 'if it' appears to the surrogate' that the will was duly executed and that the testator at the time of executing it was, in all respects, competent to make a will and not under restraint", then it must be admitted to probate. "The 7 phrase 'if it appears to the surrogate' as used in this section implies that there must be some evidence given tending to show that the person who made the will was competent to make it and at the time of its execution (was) not under restraint. Evidence is the only way by which a fact can be made 'to appear' to one acting in a judicial capacity". In Re Schreihpr's Will, 98. N.Y.S. 843, 484,112 App. Div. 495. Similarly in Prem's Judicial Dictionary, 1964 Edition Volume-II at page 806, the expression "if it appears" has been explained as follows:-- "If it appears—The word 'appears' or appearing is one of frequent use in judicial proceeding and is sometimes used in statutes referring to them as meaning 'clear to the comprehension when applied to matters of opinion or reasoning and satisfactory or legally known or made known when used in reference to facts or evidence. In one sense the word 'appear' may refer to that which is seen by the eye, but it is also used in its broader sense as signifying that which is made clear by evidence or is clear to the comprehension when applied to matters of reasoning or opinion". From the above it is quite apparent that the power under Section 44-E cannot be exercised by the Registrar on mere conjectures and surmises or without regard of facts and circumstances of each case. The position taken up by the learned Advocate General himself is that each and every individual (case) was never examined on merits but it was decided as a "matter of policy that the orders under Section 44-E be issued to all the Directors of all 121 Cooperative Societies registered under the Cooperative Societies Act, 1925 in Punjab. The impugned order is therefore clearly not sustainable. 9. It is also to be noticed that the impugned order is on cyclo-styled proforma and shows no application of mind'to the facts and circumstances of each case. It is not necessary to dilate any further on this aspect of the matter for according to the own showing of the respondent, such an exercise cannot be undertaken. The object behind or purpose for which the order has been passed may be bona fide but the fact remains that there is no power granted to the Registrar to pass an order in general terms applicable to all cases irrespective of the facts and circumstances of each case. 10. The other contention of the learned counsel for the petitioner that the impugned order has been passed without granting an opportunity to the petitioner of being heard is equally well founded. It is settled law that no action detrimental to any person or his property can be passed by a functionary except after complying with the principles of natural justice, the minimum requirement of which is that a person concerned must be granted a hearing. Although it is correct that the order remains in force for six months and can be withdrawn by the Registrar but the consequences flowing from the order are so drastic that on no reasonable hypothesis can it be contended that it was not necessary to hear the effected person before passing the order. It may be appreciated that the order is to the effect of freezing even the personal bank account'of the petitioner from which he is prohibited to withdraw any money whatsoever. All pervasive embargo has been placed on the rights of the petitioner to deal with movable and immovable properties so much so that he cannot even receive rent from his tenants. 11. The learned Advocate General relying upon certain judgments to show that in cases of emergent nature, the necessity of hearing can be waived but even in these cases, law insists that post facto hearing must be afforded to the effected persons. In the present case although the impugned order has been passed as far back as on 21.10.1991 but even upto now neither any show cause notice has been issued to the petitioner nor has he been granted any opportunity of being heard. It is also to be noted that the requirement of notice and hearing is one of the essential principle of Islamic Jurisprudence' intent as has been noticed in various judgments Allah Almighty did not proceed even against Satin without hearing his explanation. The following observations appearing at page 331 of Muhammad Afzal Zullah J. as his Lordship then as in Pakistan and others v. Public at Large and others (PLJ 1987 SC 319) are instructive:- "Rights to property and honour, in addition to life, were also declared sacred which means not only that their violation is to be punished and/or compensated but also that it is to be prevented. In this behalf while the victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these safeguards for doing justice would amount to Zitlm and Ziaditi against oneself as also the victim". 12. There is another equally good reason as to why the impugned order cannot be up-held which is that power under Section 44-E can only be exercised in respect of the property of the Society whether had in its own name or in the name of any of its Director or member. The impugned order does not even recite that some property of the Society is held by the petitioner in his name. 13. Last but not the least, it is to be mentioned that the petitioner has sworn affidavit that at the time when the order was passed or even before that he had ceased to be a Director of the Society. In support of this assertion, the petitioner has placed on record a copy of his resignation dated 4.6.1991 as also the letter of acceptance of 5.6.1991. This fact was duly communicated to the Registrar of the Cooperative Societies vide letter dated 17.6.1991 of respondent No.3, copy of which has been filed as Annexure 'C. No written statement has been filed by the respondents controverting these facts which are therefore deemed to have been admitted under the law. Even otherwise, these facts have not been controverted by the respondents even at the time of hearing of this petition. It is thus obvious that the petitioner had ceased to be a Director of respondent No.3 at the time when the impugned order was passed but this aspect of the matter was not attended to by respondent No.3. The impugned order which proceeds on mistaken assumption of fact treating the petitioner to be a Director of the Company is therefore not sustainable. 14. In the end, it may also be mentioned that it is difficult to accept the contention of the learned Advocate General that there was grave emergency of such a nature that it could justify departure from the established rule of law and natural justice. In this respect it may be pointed out that although Section 44-E was added to the Cooperative Societies Act, 1925 on 15.9.1991, the impugned order has been passed after about one month thereafter on 21.10.1991. During this period of time if respondents were minded to take action under Section 44-E, there was sufficient time available with the respondents for issuing a notice to the petitioner and granting him an opportunity of being heard. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 ensures that no action can be taken against any person except in accordance with law and he has a right to be treated in accordance with law. The power under Section 44-E is discretionary and it is by now well established that the discretion must be exercised judiciously, objectively, honestly and not arbitrarily or in capricious or fanciful manner. Reference may be made to the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLJ 1989 SC 10) wherein the following observations of this Court in M. Abdul Majid v. The West Pakistan Province and two others (PLD 1956 Lahore 615) were cited with approval:- "According to the rules of reason and justice not private opinion according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be and for substantial reasons and it must be exercised within the limits to which an honest man competent in the discharge of his office ought to confine himself i.e. within the limits and for the objects intended by the Legislature". Similarly the rule laid down in Abul Ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) was reiterated in the following terms:-- "It is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which the opinion must be formed honestly that the restriction is necessary". A reference may also be made to the Full Bench judgment'of this Court in fOi. Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lah. 725) wherein while construing Article 58(2) of the Constitution, it was observed:— "Whether it is 'subjective' or 'objective' satisfaction of the President or it is his 'discretion' or 'opinion', this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State arc removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of law. No doubt, the Courts will be chary to interfere in his 'discretion' or formation of the 'opinion' about the 'situation' but if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution". 15. For the reasons aforesaid, this petition is accepted and the impugned order is declared to have been passed without lawful authority and is of no legal effect. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 257 PLJ 1992 Lahore 257 Present: MUHAMMAD Il.YAS, J NAZIR HUSSAIN-Petitioner versus REHMAT BIBI and 4 others-Respondents Civil Re\ision No.l959/D of 1985, accepted on 7.12.1991 (approved for reporting on 20.1.1992). (i) Civil Procedure Code, 1908 (V of 1908)-- —S.I 15-Agreement to sell-Cancellation of-xSuit for-Suit decreed but decree set aside by appellate Court-Challenge to-According to PW2 and PW3, agreement deed was executed at about 11-00 PM during night preceding date fixed for confirmation of bail of petitioner—Petitioner's allegation is that consideration money was not paid and agreement was got executed by him through coercion-Held: Trial Court was justified in holding that agreement deed was executed by petitioner under coercion and undue influence and appellate Court committed material irregularity in not taking into consideration entire evidence—Petition accpeted and judgment and decree of trial Court restored. [P.260&26J ]C&D (ii) Civil Procedure Code, 1908 (Vofl908)-- —S.I 15—Agreement to sell—Cancellation of—Suit for—Suit decreed but decree set aside by appellate Court—Challenge to—Objection that no civil revision having been filed against order dismissing review application, present civil revision is not competent—Section 115 of CPC is completely silent in regard to a review petition—Held: There is no force in objection and High Court is competent to exercise rcvisiona! jurisdiction qua judgment and decree under challenge. '" fPp.259,260 ]A&B AIR 1957 Allahabad 400 not helpful. Mr. 1 aki Ahmad K/ian, Advocate for Petitioner. Kh. Muhammad Asif and Mr. Riaz Kiani, Advocates for Respondents. Date of hearing: 7.12.1991. JUDGMFNT Facts giving rise to this civil revision are that the respondents, Mst. Rehmat Bibi and others, filed a suit for specific performance of an agreement to sell certain land. It was alleged by the respondents that a deed incorporating the said agreement had been executed by the petitioner, Nazir Hussain. On the other hand, the petitioner brought a suit for cancellation of the said agreement deed alleging that it was got executed by him under coercion and undue influence. The petitioner's suit was decreed by a Civil Judge and the respondents' suit for specific performance was dismissed by him. Judgment and decree passed by the learned Civil Judge in the petitioner's suit were challenged by the respondents by taking appeal before an Additional District Judge but they did not prefer any appeal against judgment and decree by which their suit for specific performance was dismissed. The learned Additional District Judge accepted respondents' appeal arising out of suit filed by the petitioner and dismissed his suit. Feeling aggrieved by the judgment and decree passed by the learned appellate Court, the petitioner has come up in revisiorjjo this Court. 2. A preliminary objection advanced by learned counsel for the respondents was that on the revision petition in hand proper Court fee had not been paid by the petitioner. His plea was that the learned Civil Judge had disposed of the two suits by a single judgment and since the valuation of the suit brought by the respondents was Rs.90,000/- the petitioner ought to have paid Court fee on Rs.90,000/- but he had not done so. On the other hand, it was submitted by learned counsel for the petitioner that this civil revision has not arisen out of the suit brought by the respondents and, therefore, the valuation of that suit was immaterial. His argument was that the civil revision before me was outcome of the suit brought by the petitioner and since the valuation of that suit was Rs.400/-, no Court fee was payable on "the civil revision. It was conceded by learned counsel for the respondents that if the valuation of the civil revision was Rs.400/- the petitioner was not obliged to pay any Court fee. As explained above, judgment and decree passed by the learned trial Court in the suit for specific performance instituted by the respondents attained finality at the stage of trial because no appeal was preferred by the respondents against the said judgment and decree. As against this, judgment and decree passed in the suit brought by the petitioner were assailed by the respondents with success and, therefore, the petitioner has come up in revision to this Court. In the circumstances, what matters in regard to payment of Court fee for the present civil revision is the valuation of the suit filed by the petitioner and not valuation of the suit instituted by the respondents, especially when the respondents also fixed the valuation of their appeal at Rs.400/- (valuation of the suit brought by the petitioner) and not at Rs.90,000/- (valuation of the suit filed by the respondents). As stated above, it is not disputed that no Court fee was payable by the petitioner on this civil revision if the valuation was Rs.400/-. I, therefore, hold that the petitioner is not liable to pay Court fee on Rs.90,000/- and over-rule the objection of learned counsel for the respondents in this behalf. 4. Another preliminary objection raised by learned counsel for the respondents was that after the disposal of the appeal by the learned Additional District Judge, the petitioner filed an application for review of his judgment and decree but that application was dismissed. It was argued by learned counsel for the respondents that since no civil revision had been filed against the order by which the review application was dismissed, this civil revision against the judgment and decree originally passed by the learned appellate Court was not competent. He relied on Arya Insurance Co. Ltd. v. Lala Channoolal (A.I.R. 1957 Allahabad 400) to support his contentions. 5. In the case of Arya Insurance Co. Ltd. the defendant did not file written statement in the suit brought against him and, therefore, his defence was struck off by a Munsif, on 31st October, 1953. It was further directed by the learned Munsif that the suit shall be heard ex parte on the date fixed. On 14th November, 1953, the defendant made a review application praying for setting aside of the order of 31st October, 1953. The learned Munsif dismissed the review application on 19th December, 1953. On 23rd December, 1953, the defendant preferred an appeal against order, dated the 31st October, 1953. Since it was filed after running out of the period of limitation, he also made an application for condonation of delay on 13th February, 1954. The District Judge, who was seized of the appeal, declined to condone delay and rejected the appeal as time barred. Two civil revisions were, therefore, filed by the defendant. Civil Revision No.350 of 1954 was directed against the order of the learned District Judge, passed on 13th February, 1954, rejecting the appeal on the ground of limitation, and Civil Revision No.351 of 1954 was directed against the order of the learned Munsif passed on 19th December, 1953, dismissing the aforementioned review application. Both the revision petitions were heard by the Allahabad High Court. The said learned High Court did not find anything wrong with the rejection of the appeal on the ground of limitation. As for the order passed on review application, the learned High Court observed as follows:-- "(5) So far as the review is concerned, the Code does not provide for an appeal against refusal of a review. It provides for an appeal under O.XLIII, R.l(tv) from an order granting a review; and an order is appealable in such a case on the ground specified in O.XLVII, R.7(l) of the Code. An order, passed in review rejecting the review may, however, be brought into question in revision; but the scope of revision lies within a very narrow compass, for in such a case the applicant has got to justify his contention that in the exercise of its jurisdiction the court of first instance in refusing review, acted illegally or with material irregularity.No such illegality or material irregularity has been found. If the court in rejecting the review was of the view that the ground set out by the applicant was not proper and not acceptable, it would not be open to a revisional Court to come to a contrary conclusion on that point".Resultantly, both the revision petitions were dismissed with costs. 6. As has been seen, it was not held in the case of Arya Insurance Co. Ltd. that if an application for review of any judgment and decree is dismissed, civil revision against such judgment and decree is not competent and it is only the order passed on the review application which can be challenged before the superior Court. The case of Arya Insurance Co. Ltd, is, therefore, of no help to learned counsel for the respondents. 7. Now, I turn back to the civil revision in hand which has been filed under Section 115 of the Code of Civil Procedure. There is nothing in the provisions thereof to suggest that this Court cannot exercise its revisional jurisdiction if the judgment and decree in respect of which revisional jurisdiction is invoked were sought to be reviewed by means of an application but the order rejecting such an application is not challenged by means of a revision petition. What is discernible from Section 115 is that a revision petition would not lie in a case in which an appeal is competent or in a case in which revisional jurisdiction has been exercised g by the District Court. As indicated above, Section 115 is completely silent in regard to a review application. It has already been noted that the precedent case cited by learned counsel for the respondents with a view to making capital out of the review application for the purpose of defeating the instant civil revision are of no avail to him. I, therefore, hold that there is no force in the plea raised by learned counsel for the respondents and this Court is competent to exercise revisional jurisdiction qua the judgment and decree under challenge. 8. This brings me to the merits of the case. Theaverment of the petitioner is that the respondents took out criminal proceedings against him with regard to the land in dispute and he was allowed interim bail in those proceedings. According to the petitioner, the police pressurised him to execute the agreement deed in question and held out a threat that if he would not do so, his interim bail would not be confirmed and he would also be subjected to maltreatment. This plea of the petitioner finds support from the statements of Muhammad Abdullah (P.W.2) and Muhammad Siddique (P.W.3). According to the recitals of the agreement deed, Rs.34,000/- had been paid to the petitioner by way of earnest money but it was stated by the scribe, namely, Maqbool Mahmood (P.W.I) that nothing was paid in his presence. Surprisingly enough, according to the said Muhammad Abdullah and Muhammad Siddique the agreement deed was executed at about 11.00 p.m. during the night preceding the date fixed for confirmation of the interim bail of the petitioner. Petitioner's allegation that the amount of Rs.34,000/- was not paid to him as earnest money finds support from the statement of the respondents' own witness, namely, Ram/an Bibi (D.W.3), who is one of the respondents also. Her plea was that the petitioner had previously practised fraud on the respondents in the matter of the purchase of the land in dispute and that while executing the agreement deed in question he had foregone the amount of Rs.34,000/- in respect of which the fraud had been practised. Muhammad Afzal (D.W.I) is a police officer. He stated that the agreement deed in question was not executed in his presence. Appearing as P.W.4, the petitioner deposed that he executed the agreement deed in question under the aforementioned threats of the police. In the circumstances, the learned trial Court was justified in holding that the agreement deed was executed by the petitioner under coercion and undue influence. The learned appellate Court had committed material irregularity in not taking into consideration the entire evidence on the record while reversing the finding of the learned trial Court on I he issue involving the petitioner's plea of coercion and undue influence. I am, therefore, unable to uphold the finding of the learned appellate Court and would like to affirm the verdict of the learned trial Court on the said issue. 9. Resultantly, I accept this civil revision with costs, set asitK the judgment and decree under revision and restore the judgment and decree passed by the learned trial Court. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 261 PLJ 1992 Lahore 261 Present: mian nazir akhtar, J KAUSAR ALI-Petitioner versus PRESIDENT, CANTONMENT BOARD, GUJRANWALA CANTONMENT and 2 others—Respondents Writ Petition No.11792 of 1991. dismissed on 21.12.1991 (approved for reporting on 7.1.1992). Cantonments Act, 1924 (II of 1924)-- —-S.15-B(g) read with Representation of the Peoples Act, 1976, Section 99(1-A) J) & (K)--Nomination papers-Rejection of-Challenge to-Petitioner was removed from service as Laboratory Assistant in akistan Institute of Medical ciences, Islamabad, on charge of misconduct-Held: Impugned order has been passed in aid of justice and to strike it down would amount to perpetuating a manifest illegality-Petition dismissed. [Pp.262>&265]A&B PLJ 1973 $C 42 and PLJ 1990 SC 199 rel Mr. Awan Muhammad Hanif Khan, Advocate for Petitioner. Mr. Irfan Qadir, Additional Advocate General for Respondents 1 & 2. Mr. Karamat Nazir Bhandari, Advocate for Respondent No.3. Date of hearing: 21.12.1991. judgment Briefly the facts of the case are that the petitioner and respondent No.3 filed nomination papers for contesting election to membership of the Cantonment Board Gujranwala (Ward No.l) on 3.12.1991. On 5.12.1991 the scrutiny was held by the Returning Officer who accepted the nomination papers of the petitioner and respondent No.3. Respondent No.3 preferred an appeal before respondent No.l against the acceptance of nomination papers of the petitioner. Respondent No.l accepted the appeal and rejected the petitioner's nomination papers. 2. The learned counsel contends that no appeal was competent before respondent No.l under the law. He submits that by virtue of the provisions of Rule 12-A of the Cantonments (Elections and Election Petitions) Rules, 1979, the appeal was competent only against the rejection of nomination papers. 3. On the other hand, learned counsel for respondent No.l, submits that the petitioner was disqualified to contest the election as he was removed from Government Service on 15.4.1990_and 3 years had not yet elapsed. Hence, by virtue of provision of Sub-section 2(g) of Section 15(b) of the Cantonment Act, 1924 read with the provision of sub-section (1-A) (J) of Section 99 of the Representation of the People Act of 1976, a person cannot contest election unless a period of 3 years had elapsed since the date of removal from service. He submits that even if the impugned order is void, no relief can be granted to the petitioner who is otherwise disqualified to contest the election. He further submits that the President of the Cantonment Board enjoys vast supervisory powers in election matters and can be deemed to have exercised the said powers. In this connection he refers to various provisions of the Act including Section 15-B (g) Sub-section 2(a & b) and Section 15-D of the Act. 4. The learned counsel for respondent No.3 contends that even if the impugned order is void, no relief can be granted in the exercise of constitutional jurisdiction as held in the case of Ronaq AH v. Chief Settlement Commissioner (P.L..I. 1973 Supreme Court 42). Learned counsel for respondents No.l and 2 have also placed reliance on the case of Syed All Shah v. Abdul Saghir Klian Sherwani and others(?.LJ. 1990 SC 199). The petitioner was employed as a Laboratory Assistant in the Pakistan Institute of Medical Sciences, Islamabad and was removed from service with effect from 15.4.1990 on the charges of mis-conduct. The said institute is controlled by the Government and is legally a department of the Government and the employees enjoy the status of Civil Servants. Hence by virtue of the provisions of Section 15-B(g) of the Cantonment Act, 1924 read with Section 99(1-A)(J) and (K) of the Representation of the Peoples Act, 1976, was disqualified to contest the election. His nomination papers were obviously accepted in disregard of the above referred provisions of law. I am not prepared to countenance the argument that the petitioner may be allowed to contest the election and in case he succeeds his election may be declared to be void by the Election Tribunal, which may order fresh poles in accordance with the law. The impugned order, even if void, has the effect of saving the parties, the electorate as well as the Government functionaries from hardship of a decision by the Tribunal and holding of fresh polls which involve great expenditure and consume energies and time of the parties, voters and the Government functionaries. The impugned order has been passed in aid of justice and to strike it down would amount to perpetuating a manifest illegally. In the case of Ronaq Ali, the Hon'ble Supreme Court was pleased to hold as under: "An order in the nature of writ of certiorari and 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, rather it cures manifest illegality then the extra­ordinary jurisdiction ought not be allowed to be invoked. A similar view was expressed in the case of Syed Ali Shah in which it was held that the paramount consideration for the exercise of constitutional jurisdiction under Article 199 was whether setting aside of an order which suffered from a legal infirmity would advance the cause of justice or perpetuate an injustice. In the present case I have no doubt in ray mind that the petitioner who was a Government servant and removed on the ground of mis-conduct on 15.4.1990, was clearly disqualified to contest election under Section 99(1-A)(J) of the Act. Even if the argument of the petitioner's learned counsel is accepted that the grounds of misconduct were not substantiated, the petitioner was still disqualified by virtue of clause (K) of the above section as a period of two years had not yet elapsed since the date of his removal from service. 6. In view of the above legal position I need not (go) into the other argument of the petitioner's learned counsel that the President of the Cantonment Board enjoys supervisory powers and his order was legally valid. Resultantly, this petition is dismised leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 263 PLJ 1992 Lahore 263 Present: MUHAMMAD Il,YAS, J MUHAMMAD TUFAIL and 5 others-Appellants versus DIN MUHAMMAD, deceased, through his legal heirs—Respondent F.A.O. No.31 of 1975, accepted on 2.12.1991 (approved for reporting on 22.1.1992). Restoration-- —Civil appeal-Dismissal for non-prosecution of-Restoration of--Prayer for~It is evident from Order XLI Rule 17 of C.P.C. that an appeal can be dismissed in default on date fixed for hearing but it is discretionary with appellate Court to dismiss it or adjourn it to another date-In this case, appeal was not fixed for hearing for 5.1.1973, and it could not be dismissed in default-Held: by rejecting application of appellants for restoration of appeal, Additional District Judge committed an illegality and as such his order is not sustainable—Appeal accepted. [Pp.266&267]A,B&C PLD 1964 Baghdadul Jadid 8, PLD 1970 Lahore 412, PLD 1971 Lahore 746,1973 SCMR 103 and PLD 1990 SC 285 rel. PLD 1975 SC 678 distinguished. Mr.Karamat Nazir Bahandari, Advocate for Appellants. Miss.Surraya Sultana Butt and Mr.Muhammad Zafar Chaudhry, Advocates for Respondent. Date of hearing: 2.12.1991. judgment This appeal has arisen out of order, dated the 2nd November, 1974, passed by an Additional District Judge of Gujranwala. By the impugned order the learned Additional District Judge had declined to restore an appeal filed by the appellants, Muhammad Tufail and others, against one Din Muhammad, which had been dismissed by him in default. 2. Before the appeal was so dismissed, it was pending before the District Judge, Gujranwala. On 23rd December, 1972, the learned District Judge transferred the appeal to the learned Additional District Judge and directed the parties to appear before him (Additional District Judge) on 5lh January, 1973. No one entered appearance before the learned Additional District Judge on the last mentioned date and, therefore, the appeal was dismissed for want of prosecution. The appellants made an application for restoration of the appeal stating that the said date, namely, 5th January, 1973 was not notified by the learned District Judge while making order, in the presence of the parties, with regard to the transfer of the appeal to the learned Additional District Judge and that the direction in respect of appearance of parties before the learned Additional District Judge was added subsequently. The said Din Muhammad, who was respondent in the instant appeal, died during the pendency thereof, whereupon his daughter, Miss Surayya Sultana Butt and others, were brought on the record as his legal representatives. During pendency of the application for restoration of the appeal before the learned Additional District Judge, the Reader of thevlearned District Judge, namely, Bashir Ahmad Wyne was examined as C.W.I When cross-examined, it was admitted by the Reader that, that portion of the order of the learned District Judge which made a mention of the date on which the parties were required to appear before the learned Additional District Judge had been written with ink different from the one which had been used for writing the rest of his order. Despite this admission of the Reader, learned counsel for the appellants, Mr.Karamat Nazir Bhindari, Advocate, did not lay much stress on the plea that the appellants were not aware of the fact that they were required to appear before the learned Additional District Judge on 5th January, 1973 and maintained that he would like the .appeal to be decided on only one ground on which it was admitted to a regular hearing by Mr Justice Saad Sapod Jan, who is now adorning the Supreme Court of Pakistan as an Hon'ble Judge thereof. Contention embodied in the admitting order is that the date on which the appeal was dismissed in default was not a date fixed for hearing of the appeal. 4. It was argued by learned counsel for the appellants that while transferring the appeal to the learned Additional District Judge and asking the parties to enter appearance before the learned transferee Court on 5th January, 1973, it was not directed by the learned District Judge that the appeal shall be heard on the said date. According to learned counsel for the appellants, it was doubtful if the learned District Judge could even pass an order in this regard because after he had parted with the appeal it was for the learned Additional District Judge to deal with it in such manner as he (Additional District Judge) deemed fit. Plea of learne'd counsel for the appellants was that since there was no order by the District Judge that the appeal would be heard on 5th January, 1973, it could not be dismissed in default on that date. He cited Sh. Ghulam Mujtaba and others v. Noor Muhammad KJian (PLD 1964 Baghdad-ul-Jadid 8), Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412), Rahim Bakhsh and another v. Gul Muhammad and 2 others (PLD 1971 Lahore 746), Syed Nazir Hussain Shah v. Allah Ditto (1973 S.C.M.R. 103) and Abdul Sattar v. Muhammad Akbar Shah (PLD 1990 SC 285) to support his contention. Besides, he relied on rules 17 and 19 of Order XLI of the Civil Procedure Code which make a clear mention of the word "hearing". Rule 17 relates to dismissal of an appeal for want of prosecution and rule 19 contains provisions relating to re-admission of the appeal so dismissed. 5. On the other hand, it was submitted by Mr. Muhammad Zafar Chaudhry, Advocate, learned counsel for one of the legal representatives of the respondent namely, Miss Surrayya Sultana Butt, hereinafter referred to as the respondent, that the appeal had been transferred by the learned District Judge under sub­ section (2) of Section 24-A of the Code of Civil Procedure and since the learned District Judge had fixed the date for appearance of the parties before the learned Additional District Judge, no notice was required to be issued to the parties for the said date. Argument proceeds that since the appeal was thus complete for hearing by the learned Additional District Judge on the date on which it was dismissed in default, the said date was for hearing of the appeal and, therefore, order of the learned Additional District Judge dismissing the appeal was unexceptionable. He relied on Manager, Jainmu & Kashmir State Property in Pakistan v. KIiudaYar and another (PLD 1975 SC 678) to support his argument. 6. A careful study of the case of Manager, Jainmu & Kashmir State Property in Pakistan , relied upon by learned counsel for the respondent, would reveal that its facts were different from those of the case in hand. In the said case, order of dismissal of the appeal in default was set aside for two reasons, namely, that the learned Additional District Judge who dismissed the appeal did not care to ascertain that service had been effected on the respondent for the date on which the appeal had been dismissed by him and that he was labouring under a mis- Conception that he was obliged to dismiss the appeal in default and had no discretion to adjourn it. This, however, is not the position in the case in hand. It is also noteworthy that while stating the said two grounds, the Supreme Court observed as follows: "the expression 'called on for hearing' as used in Order XLI, Rule 17 obviously presume the completion of all earlier steps envisaged by Rules 11 to 16 of Order XLI. Unlike the suit there would be no question of filing the written statement or of recording of evidence and therefore, an effective hearing would be one on which arguments were to be heard". Thus, it was held by the Supreme Court that in case of an appeal the date of hearing is the one on which arguments are to be heard. As indicated above, in the case before me, neither the learned District Judge nor the learned Additional District Judge had fixed 5th January, 1973 as the date for hearing of arguments and, therefore, even according to dicium in the case of Manager, Jainmu & Kashmir State Prope/ty in Pakistan, relied by learned counsel for the respondent, the said date was not the date of hearing. 7. It has been laid down in Rule 17 of Order XLI of the Code of Civil Procedure that where on the date fixed for hearing an appeal the appellant does not appear, when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed and in Rule 19 thereof it has been provided that where an appeal is dismissed, the appellant may apply to the Appellate Court for re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-admit the appeal. It is, therefore, evident from the said provisions of law that an appeal can be dismissed in default, on the date fixed for its hearing. Similar view has been expressed in the cases of Sh. Clntlam Mujtaba and others, Mst. Ghulam Sakina and 6 others, Rahim Bakhsh and another, Syed Nazir Hussain Shall and Abdul Sattar cited by the learned counsel for the appellants. Even from I he case of Manage/; Jamma & Kashmir State Property in Pakistan, cited by learned counsel for the respondent, it can be clearly gathered that when an appeal is called on for hearing it is discretionary with the appellate Court to dismiss it in default or adjourn it to another date. This means that it was not ruled in the case of Manager, Jam/mi & Kashmir Slate Properly in Pakistan that the appeal can be dismissed in default on a date other than the date fixed for its hearing. Since in the case in hand the appeal was not fixed for hearing for 5th January 1973, it could not be dismissed in default. In this view of the matter, order of the learned Additional District Judge dismissing appeal for want of prosecution is without jurisdiction. 8. Since in the instant case order by which the learned Additional District Judge had dismissed the appeal of the appellants was without jurisdiction, void ab initio and a nullity in the eye of law, he should have ignored the said order and B restored the appeal when the appellants had prayed for its restoration by making application in this regard. By rejecting their application he committed an illegality and as such the order by which he rejected their application is not sustainable. 9. In result, I accept this appeal, set aside the order assailed herein and restore the appeal of the appellants which had been dismissed by the learned Additional District Judge. The parties are, however, left to bear their own costs. 10. Since the learned Additional District Judge, who had passed the impugned order is no longer in service and the parties before me desire that the appeal may now be heard by the District Judge, Gujranwala himself, I send the appeal to the said learned District Judge. Needless to say that he shall hear arguments in the appeal and then decide it in accordance with law. 11. Since it is an old matter, the learned District Judge shall endeavour to decide the appeal as aforesaid, within two months of the appearance of the parties before him. 12. The records shall be returned to him immediately. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 Lahore 269 PLJ 1992 Lahore 269 Present: muhammad ilyas, J REHMAT ALI-Petitioner versus FAROOQ AHMAD HASHMI and 5 others-Respondents Civil Revision No.1826 of 1991, dismissed on 14.3.1992. (i) Additional Evidence-- —-Additional evidence-Production of--Prayer for-It is well settled that after closure of evidence, a party is not to be allowed to improve upon his case by producing additional evidence unless there are cogent reasons for permitting him to do so—No reason has been given by petitioner for not adducing that evidence before trial Court—If petitioner was serious in pursuing said application (for production of additional evidence), he should have invited attention of appellate Court thereto at any stage before appeal was decided- Held: Factum of no such step having been taken, shows that petitioner was not keen to produce additional evidence. [P.270JA&B (ii) Concurrent Finding— —-Dispute over ownership of plot-Concurrent finding in favour of respondents- -Challcnge to—Question involved in suit was as to whether plot in dispute belonged to petitioner or to respondents-It was a question of fact on which there is concurrent finding of two courts below against petitioner—Held: No misreading or non-reading of evidence or any other defect justifying interference with concurrent finding has been pointed out-Held further: There is no reason to interfere with unanimous verdict of lower Courts. [P.270]C i Mr. MushtaqRaj, Advocate for Petitioner. Date of hearing: 14.3.1992. order This civil revision has arisen out of a suit brought by the respondents, Farooq Ahmad Hashmi and others against the petitioner, Rehmat Ali. Property involved in the suit was a plot of land. The suit was decreed by a Civil Judge. The petitioner went in appeal before an Additional District Judge but in vain. Hence this civil revision. 2. It was contended by learned counsel for the petitioner that when the case was at the stage of appeal, the petitioner made an application for permission to produce additional evidence but the learned Additional District Judge decided the appeal without disposing of the said application. Before proceeding further, I will like to decide the said application myself instead of remanding the case to the learned appellate Court for the purpose. 3. Law is well settled on the point that after the closure of evidence by the parties, a party is not to be allowed to improve upon his case by producing additional evidence unless there are cogent reasons for permitting him to do so. In the application made by the petitioner no reason has been given for not adducing that evidence before the learned trial Court which was sought to be produced before the learned appellate Court as additional evidence. It was, therefore, not a fit case for permitting the petitioner to produce additional evidence. 4. It is also noteworthy that if the petitioner was serious in pursuing the said application he should have invited the attention of the learned appellate Court thereto, when arguments were addressed before that Court or r>t any later stage but before the appeal was decided. No such step was, however, taken by him. This shows that the petitioner was not keen to produce additional evidence. 5. Another point canvassed by the learned counsel was that issue No.7 was not decided by the learned Civil Judge. His plea in this behalf stands belied by the record because in his judgment the learned Civil Judge did discuss the said issue and recorded finding against the petitioner. 7. Question involved in the suit was whether the plot in dispute belonged to the petitioner or to the respondents. It was a question of fact on which there is concurrent finding of the two Courts below, and it is against the petitioner. No misreading or non-reading of evidence or any other defect justifying interference with their finding has been pointed out by the learned counsel. The respondents' case also derives support by the evidence of one of the petitioner's witness, namely, Abdul Waris, who appeared as DW.l. In the circumstances, there is no reason to interfere with the unanimous verdict of the learned lower Courts. 8. Resultantly, this civil revision fails. It is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 270 [DB] PLJ 1992 Lahore 270 [DB] Present: muhammad ii.yas and munir A. shf.ikii, JJ NATIONAL BANK OF PAKISTAN, CIVIL LINES BRANCH, SARGODHA, and 2 others-Petitioners versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE, and 2 others-­ Respondents C.M. Nos.1683 and 1684 of 1989, in W.P. No.1106 of 1985, accepted on 22A1992. Restoration— —Writ petition-Withdrawal of~Applications for restoration of writ petition and condonation of delay-Petitioners withdrew writ petition in pursuance of decision of Division Bench but when that decision did not find favour with Supreme Court, they filed another writ petition and on its dismissal, approached Supreme Court for redress-Petitioners were advised by Supreme Court to seek revival of writ petition No.1106 of 1985-Held: Whatever delay is there on part of petitioners, it has occurred due to circumstances beyond their control and they were pursuing matter in good faith and with due diligence throughout-Writ Petition restored to its original number. [Pp.272&273]A,B&C Mr. Irshadullah, Advocate for Petitioners. Mr. M. A. Zafar, Advocate for Respondent No.3. Nemo for other Respondents. Date of hearing: 22.4.1992. order Muhammad Ilyas, J.--Facts giving rise to C.M. No.1683 of 1989 and C.M. No. 1684 of 1989 are that respondent No.3, Tariq Pervaiz, hereinafter referred to as the respondent, was serving as an Assistant in a Branch of petitioner No.l, National Bank of Pakistan, when he was removed from service. Order of his removal from service was assailed by him before a Labour Court by filing grievance application. In that application, besides petitioner No.l, petitioners Nos. 2 and 3, namely, Senior Executive Vice President, National Bank of Pakistan, Head Office, Chundrigar Road, Karachi, and President, National bank of Pakistan, Head Office. I.I. Chundrigarh Road , Karachi , were impleaded as respondents. The application was accepted and the impugned order set aside. Back benefits were also allowed to the respondent. Order of the Labour Court was challenged by the petitioners, by means of an appeal, before the Punjab Labour Appellate Tribunal. During the pendency of that appeal, the petitioners also filed Writ Petition No.2467 of 1984 against the order of the learned Labour Court. While deciding the appeal, the learned Labour Appellate Tribunal agreed to the re-instatement of the respondent without allowing him back benefits. Feeling aggrieved by the order of the learned Labour Appellate Tribunal, the petitioners filed Writ Petition No.l 106 of 1985 which was still pending when it was decided by a learned Division Bench of this Court in Writ Petition No.2467 of 1984 and other connected writ petitions that a Labour Court had no jurisdiction to entertain grievance application filed by an employee of the National Bank of Pakistan. In view of the above decision of the learned Division Bench, Writ Petition No.1106 of 1985 was withdrawn by the petitioners. The said judgment of the learned Division Bench was challenged before the Supreme Court with success. It was held by the Supreme Court on 15th April, 1987 that a Labour Court has the jurisdiction to hear grievance application of the said employee. 2. After the above decision of the Supreme Court, the petititoners filed another writ petition, namely, Writ Petition No. 5135 of 1987 which was dismissed on 14th August, 1988, inter alia, on the round that the petitioners had earlier withdrawn their Writ Petition No. 1106 of 1985. Judgment in this regard was assailed by the petitioners before the Supreme Court by means of a Civil Petition for Special Leave to Appeal, na'hiery, C.P.S.LA. No. 610 of 1988. The Supreme Court disposed of the said petition with the following order:- "After some discussion learned counsel for the petitioner submits that he will move the High Court for revival of Writ Petition 1106/85, and accordingly does not press this petition. Disposed of accordingly." The petitioners then moved C.M. No. 1683 of 1989 for revival of Writ Petition No. 1106 of 1985. They also made C.M. No. 1684 of 1989 for condonation of delay in making C.M. No. 1683 of 1989. 3. It was contended by learned counsel for the respondent that C.M. No. 1683 of 1989, for restoration of Writ Petition No. 1106 of 1985, suffered from the efect of laches. In reply, it was submitted by learned counsel for the petitioners that the petitioners withdrew the said writ petition in view of the afore-mentioned judgment of the learned Division Bench and that when the said judgment was set aside by the Supreme Court, the petitioners moved, with utmost diligence, to make use of the verdict of the Supreme Court. He maintained that it was an eminently fit case for the condonation of delay, if any, in the light of principles of Sections 5 and 14 of the Limitation Act, 1908. 4. As indicated above, C.M. No. 1684 of 1989 has been made by the petitioners for condonation of delay. It has been noted that the petitioners withdrew Writ Petition No. 1106/85 in pursuance of the decision of the learned Division Bench but when that decision did not find favour with the Supreme Court they filed another writ petition namely, Writ Petition No. 5135 of 1987 and on the dismissal thereof, on the ground of withdrawal of Writ Petition No. 1106/85, by them, they approached the Supreme Court with C.P.S.L.A. No. 610 of 1988 for redress. According to paragraph 4 of C.M. No. 1683 of 1989, the petitioners were advised by the Supreme Court to seek revival of Writ Petition No. 1106/85 and thereupon they withdrew their said C.P.S.LA. from the Supreme Court. It was submitted by him that if the Supreme Court had been of the opinion that revival of Writ Petition No. 1106/85 was not possible, the Supreme Court would not have allowed the petitioners to withdraw their C.P.S.L.A. : 5. In view of what has gone above, we feel that whatever delay is there on the part of the petitioners it has occurred due to circumstances beyond their control and that they were pursuing the matter in good faith and with due diligence throughout. We are, therefore, not inclined to refuse restoration of Writ I Petition No. 1106/85 on the ground of laches. 6. It was not disputed by learned counsel for the respondent that Writ Petition No. 1106/85 could be restored. The only objection raised by learned counsel for the respondent against restoration of the said writ petition was that o laches which has been repelled as aforesaid. Writ Petition No. 1106 of 1985 is, therefore, restored to its original naumber. C.M. No. 1683 and C.M. No. 1684 of 1989 are disposed of accordingly. 7. Since matters like Writ Petition No. 1106 of 1985 are presently heard by single Benches, the said writ petition shall now be fixed before a single Bench for motion hearing, as soon as possible. (MBC) (Approved for reporting) Writ petition restored.

PLJ 1992 Lahore 273 ' PLJ 1992 Lahore 273 ' Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD RIAZ-Petitioner versus _ NATIONAL FERTILIZER CORPORATION OF PAKISTAN LTD. and 2 others-Respondents Writ Petition No. 10299 of 1991, dismissed on 5.5.1992. Master and Servant-- —Promotion of Respondent No. 3--Challenge to-Whether writ petition is maintainable—Question of—Dispute pertains to terms and conditions of service of Petitioner and Respondent No. 3 both of whom are • employees of a company incorporated under Companies Ordinance, 1984-Contention that discretion has been exercised arbitrarily, so constitution petition can be maintained-Held: As there is neither any statute nor any statutory rules, relationship of petitioner and his employer would be regulated by principle of master and servant and Constitution Petition cannot be maintained. [P.274]A,B,&C Mr. M. Habibullali, Advocate for Petitioner. Date of hearing: 26.4.1992. order Muhammad Riaz petitioner, who is working as Senior Manager (Technical), in Pak Arab Fertilizer (Pvt) Ltd., which is a Company being managed by National Fertilizer Corporation of Pakistan (Pvt) Ltd., has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenging the promotion to the post of General Manager (Technical) Pak Arab Fertilizer, (of) respondent No. 3, and his further transfer to Pak Fertilizer Ltd. Multan. •2- The" learned counsel for the petitioner was asked to show as to how this 'petition'' under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is competent when the dispute pertains to the terms and conditions of serivce of the petitioner as also respondent No. 3, both of whom are employees of a Company incorporated under the Companies Ordinance, 1984, as a private Company, in view of the law declared by the Supreme Court in The Principal, Cadet College, Kohat and another Vs. Muhammad Shoab Qureshi, (PLJ 1984 SC 77) and, Mrs. MM. Arshad and otfiers Vs. Miss Naeema Klian and others (PLD 1990 SC 612) that where there are no statutory rules of service, no constitutional petition be maintained. 3. Confronted with this position, learned counsel for the petitioner has argued that as the discretion vesting in respoondent Nos. 1 and 2 has been B exercised arbitrarily, the constitutional petition can be maintained. Reliance has been placed on Chainnan f Regional Transport Authority, Rawalpindi Vs. Pakistan Mutual Insurance Company, Ltd.-Rawalpindi (PLD 1991 SC 14). r 4. I am unable to ag-ree with the learned counsel. The precedent relied upon by him has no applicability. Although the learned counsel is correct in contending that a discretion vested in an authority has to be exercised in a fair and just manner, but the question which arises in this pctiiion is different. As there is neither any statute nor any statutory rules governing the relationship between the prtitioiler and its employer, it would be regulated by the principle of master and servant and a constitutional petition cannot be maintained on any ground, as has been authoritatively held by the Supreme Court in the cases of the Tlie Principal Cadet College, Kohal and Mrs. A/..V. Arshad supra. In I he view of the above, this pctiiion is held to be not maintainable and is dismissed in liinine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 274 PLJ 1992 Lahore 274 Present: 1 rsi iad hassan Ki ian, J (' MUHAMMAD SULEMAN-Pelilioner versus GENERAL MANAGER, LAHORE TELECOMMUNICATION REGION, and two others-Respondents Writ Petition No. 1058 of 1992, dismissed on 28.4.1992. Officiating Appointment-- —-Telephone technician-Prornoted as officiating Engineering Supervisor-­ Claim of officiating allowance-Petitioner was not qualified for appointment as Engineering Supervisor when he was promoted to officiate as such in purely stop-gap arrangement—No documentary evidence has been placed on record to show that afterwards he had successfully completed prescribed departmental examination and in consequence thereof, was declared qualified by competent authority to hold said post from a particular date~A concurrent finding of fact has been recorded by Labour Court and Punjab Labour Appellate Tribunal that he was appointed in officiating capacity in purely stop­gap arrangement—Held: Impugned order does not suffer from any illegality warranting interference in exercise of writ jurisdiction-Petition dismissed; [Pp.277&278]A&B PLJ1986 SC 207 rel. Ch. Muhammad Khalid Farooq, Advocate for Petitioner. Mr. Faqir Muhammad Khokhar, Deputy Attorney General for Respondent No. 1. Nemo for Respondent Nos. 2 and 3. Date of hearing: 28.4.1992. judgment The dispute in this case relates to salary of an Engineering Supervisor in the Telegraph and Telephone Department. The petitioenr, who was at the relevant time a telephone technician, was promoted as officiating engineering supervisor as a stop-gap arrangement against an existing vacancy in his own scale of pay plus officiating allowances as admissible under the rules. He was liable to be reverted at any time without notice or assigning any reason. His officiating appointment. , was made vide memo No. E-160/XH/KW/2 .dated 20.4.1974, passed by^the Divisional Engineer, Telephones, Internal, Lahore in compliance with the memo No. DTL/E-653/ES/XII/128 dated 16.4.1974 of the General Manager (Telecommunications). 2. After a lapse of 13 years, the petitioner moved a petition under section, 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No. 1, stating therein that the General Manger, Lahore Telecommunication Region, Lahore be 'directed to grant him basic pay scale No. 11 of engineering supervisor alongwith the premissible back benefits with effect from 20.4.1974. The Labour Court dismissed the petition inter alia on the ground that the petiti5enr was not entitled to get the emoluments attached to the post of engineering supervisor, in that, he was not duly qualified to hold that post at the time of his officiating appointment. It is, however, an admitted fact that the petitioner did not possess the requisite qualification to hold the post of engineering supervisor when he was appointed as such in officiating capacity. He took the plea before the Labour Court that subsequent to his posting in officiating capacity, in compliance with the letter No. ESTT/AT-32/V dated 22.10.1976, he alongwith other telephone technicians was sent provisionally to undergo training for engineering supervisor course in the internal and external centres. It is alleged that the petitioner went to the Institute for taking the requisite course and completed the same on 31.7.1977. The Labour Court repelled the contention stating therein that in Exh. P2, i.e. the letter, by which the petitioner was provisionally sent to the course, it was clearly stated that the trainees will not be entitled to seniority and promition to the cadre of engineering supervisors. On these premises, it was held that the petitioner was not entitled as of right to get the pay scale No. 11 with effect from the date he was appointed as engineering supervisor as stop-gap arrangement. Consequently the petition was dismissed vide order dated 21.4.1990. 3. Being aggrieved with the aforesaid order, the petitioner filed appeal before the Punjab Labour Appellate Tribunal, whereby the decision dated 21.4.1990 recorded by the Punjab Labour Court dismissing the grievance petition of the petitioner was modified with the direction to respondent No. 1 to pay the petitioner officiating allowance with effect from 20.4.1974 at the rate of 10% of his substantive post, 4. Ch. M. Khalid Farooq, karned counsel for the petitioner assailed the validity of the impugned order of the Labour Appellate Tribunal on the ground that the petitioner having been deputed for training of engineering supervisor in terms of letter dated 20.4.1974 and having successfully completed the training and again posted as engineering supervisor without there being any break in his status, post or duty, he was entitled to emoluments of the post of engineering supervisor. In support of his contention reliance is placed on Federation of Pakistan v. Shahzada ShahpurJan and 2 others (PLJ 1986 SC 207). In the precedent case the Supreme Court was pleased to grant leave to examine whether annual increment in the higher pay scale can be claimed by such a civil servant on the basis of decision in Islamic Repubtic of Pakistan v Qazi Abdul Karim, Dy. Accoittan General, NWFP, Peshawar (1983 SCMR 883). In Qazi Abdul Karim (supra) case, it was held that if an employee is permitted to officiate in a higher post involving higher responsibility, he must be held to be entitled to minimum pay of the grade of the said higher office. Reference be also made to the case of Post Master General, Eastern Circle (EP) Dacca and another v Muhammad Hashim (PLD 1978 SC 61). In that case, as well, the respondent therein was an employee in class-II post. He was promoted by the Postmaster General to officiate in class I post but in his appointment order, it was clearly mentioned that he would continue to draw the pay of his substantive office. Notwithstanding this rider, the Supreme Court taking into consideration the effect of rules 30 & 35 of the Fundamental Rules, held that as long as the services of respondent therein were utilized in higher post, he was entitled to draw the minimum pay admissible in that post. Reference be also made to the Accountant General Pakistan Revenue, Government of Pakistan, Islamabad v Arbab Mukhtar Ahmad (1986 SCMR 1206), whereby the appeal filed by the Government against the judgment of Federal Service Tribunal was dismissed with the following observation:-- "A similar question, namely whether a Government servant without his being regularly promoted, but who is qualified and performs the functions of the higher post is eligible to draw the benefit of the higher post such as pay with periodical increments, was considered in Civil Appeal No. 23 of 1985 and others, and it was held that he was so entitled to draw the pay and periodical increments of the higher post." 5. In case of Shahzada Shahpur Jan (supra)/the Supreme Court held that the controversy of concerned officers fell into two categories. The first was of those officials, who were qualified in every respect to be appointed to the higher post and were called upon to discharge full responsibility of the higher post severing their connection with the lower post. The case of the petitioner admittedly does not fall in the first category. The second category was, where a person appointed to a higher post or looking after the liabilities on account of absence of qualification prescribed for being promoted and appointed to the post the full duties of which he was called upon to perform. For example, failure to pass the prescribed promotion exmaination from which he was not exmpted. Here the petitioner admittedly did not possess the required qualification to hold the post when he was appointed in officiating capacity in a purely stop-gap arrangement. The claim of the petitioner is also not based on the second category stated above. He, however, took the plea that subsequent to his appointment in the officiating capacity, he completed the prescribed departmental examination for holding the said post. However, no documentary evidence has been placed on the record of this court to show that the petitioner successfully completed the prescribed departmental exmination and in consequence thereof he was declared qualified by the competent authority to hold the said post from a particular date. 6. Learned counsel for the petitioner has frankly conceded that the petitioner was not entitled to pay of the higher post at the time of his appointment being unqualified to hold the higher post. He has, however, failed to disclose what were the qualifications and the conditions, which he was lacking at the time of officiating appointment and in the absence thereof, the mere fact that he allegedly passed the departmental examination at subsequent stage does not ipso facto lead to the conclusion that he became qualified in all respects to hold the post and was entitled to draw pay for the same. In any event, learned counsel for th? Petitioner himself stated that his case does not fall in second category explained in the case of Shahzada Shahpur Jan (supra). Has sole reliance is ob the third possible category discussed in the said case in respect of which it was held that such a category would be of those rare cases where severance from duty has taken place as a sequal to disciplinary proceedings, which were subsequently set aside and restoration of office took place. It is an admitted fact that n6 disciplinary proceedings were taken against the petitioenr during the relevant period and, therefore, the third category is also not applicable to the facts and circumstances of the present case. 7. A concurrent finding of fact has been recorded by the Labour Court and the Punjab Labour Aappelalte Tribunal that the petitioner was appointed in officiating capacity in purely stopgap arrangement, therefore, it was within the competence of the competent authority to allow reduced terms than the presumptive pay permissible to those who fully qualified or (were) otherwise eligible. The same view was taken by the Supreme Court in Shahzada SliahpurJan (supra) strongly relied upon by learned counsel for the petitioner. It, therefore, cannot-be said that the impugned order dated 10.10.1990 passed by the Tribunal allowing officiating allowances to the petitioner with retrospective effect from 20.4.1974, that is to say, the date when he was appointed in officiating capacity by way of stop-gap arrangement, suffered from any illegality warranting interference in the exercise of writ jurisdiction. The impugned order is in conformity with the following dictum laid down in Shahzada ShahpurJan (supra):-- "As regards the case of the second category, the legality and the effectiveness of the Auditor-General's Standing Orders, paras 139 and 229, Chapter V has been upheld in Civil Petitions 32-P to 34-P of 1982, decided on 30.5.1983 and there is no reason to depart for not only it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competently discharging the duties of the higher post with the modified designation of Clerk-in-Charge. It was within the competence of the officer to allow reduced terms than the presumptive pay admissible to those not fully qualified or otherwise ineligible". In view of the above, I find no force in the writ petition, which is hereby dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 278 PLJ 1992 Lahore 278 Present: abdul majid tiwana, J SADIQ ALI--Petitioner versus TAJ DIN etc. -Respondents Civil Revision No.213 of 1977 (also C.R. Nos.214, 215 and 216 of 1977) accepted on 15.1.1992 Jurisdiction- —-Sales of agricultural land-Mutations of~Cancellation of mutations being violative of MLR No.64--Whether Civil Court or Revenue Authorities had jurisdiction to adjudicate upon matter-Question of—It was only for Land Commission or Chief Land Commissioner or their delegatees to examine and decide as to whether or not sale transactions in question violated any provision of paragraph 25 of MLR No.64--No other authority including Civil Courts and their hierarchy, could go into this aspect of matter-Held: Not only orders passed by trial Court and District Judge, but also those of Assistant Commissioner/Collector and all subsequent orders passed by Board of Revenue determining validity of sale transactions on basis of para 25 of MLR No.64, are without lawful authority and without jurisdiction—Petitioner advised to have recourse to Land Commission or Chief Land Commissioner if he wants to challenge validity of sale transactions. [Pp.282,283,284&285]A,B&C PLJ 1989 Lahore 427 and 1968 SCMR 667 re/. M/s. Muhammad Aslam Sindhoo and Muhammad Anwar Sipra, Advocates for Petitioner. Syed Jamslied All, Advocate for Respondents. Dates of hearing: 1 and 2.7.1991. judgment This judgment shall also deal with and dispose of C.R.No.214 of 1977, C.R.No.215 of 1977 and C.R.No.216 of 1977 as the common questions of law and facts are involved therein. 2. Sadiq Ali, who is petitioner in all the four civil revisions, was allotted a piece of land measuring 101 kanals 18 marlas situated in the area of Chak No.l23/RB, Tehsil and District Sheikhupura. His allotment was confirmed on 28.11.1953. Out of this land, he mortgaged 8 kanals and 13 marlas with onfe Sher Muhammad son of Fazal Din and the mortgage mutation was sanctioned on 3.3.1959. On 4.7.1959 another piece of land measuring (?) was allotted and onfirmed to him. 3. Out of the aforesaid land, he sold 17 kanals 6 marlas to Ghulam Muhammad, vide sale mutation No.143 sanctioned on 26.11.1959. At the time of this sale'he was allottee of 119, kanals 4 marlas, inclusive of 8 kanals 13 marlas which he had mortgaged in favour of Sher Muhammad aforesaid. Then he sold 6 kanals 4 marlas to the same Ghulam Muhammad vide sale mutation No.251 sanctioned on 25.2.1962. Subsequently, by sale mutation No.198 sanctioned on 11.5.1962 he sold 7 kanals 18 marlas in favour of Munir Ahmad and others. Then he sold 8 kanals 9 marlas vide sale mutation No.247 sanctioned on 6.8.1963 in favour of Shahab-ud-Din and others. Later he disposed of another piece of land measuring 25 kanals 2 marlas to Ghulam Muhammad son of Natha vide sale mutation No.25i sanctioned on 21.9.1963. He sold yet another piece of land measuring 25 kanals 4 marlas to him vide sale mutation No.264 attested on 30.8.1964. Then he disposed of 24 kanals 18 marlas to Sher Muhammad vide sale mutation No.273 sanctioned on 15.2 1965. His last sale transaction was that of 3 kanals 3 marlas in favour of Ghulam Muhammad by means of sale mutation No.28 sanctioned on 16.11.1967. In this way the total land sold by the petitioner in favour of Ghulam Muhammad son of Natha by different sale transactions was 59 kanals 13 marlas and he in turn gifted it in favour of his sons who were plaintiffs in suit Nb.492, ultimately giving rise to C.R.No.215 of 1977. 4. It appears that after some time a dispute arose between the petitioner and the vendees and he agitated the matter before the Revenue Authorities, challenging the validity of the sale transactions by alleging the violation of Martial Law Regulation No.64 and the Assistant Commissioner, Sheikhupura, exercising the powers of Collector, vide his order, dated 23.2.1973, held all the aforesaid sale transactions as violative of the said Regulation and declared them illegal and void. The vendees eventually took the matter to the Board of Revenue by invoking its jurisdiction but there too they remained unsuccessful so they brought four different suits against the petitioner in the Civil Court giving rise to the four revision petitions now in hand. In each suit they sought the declaration to the effect that they were owners in possession of various pieces of land purchased by them from the petitioner and by way of consequential relief they sought perpetual injunction, seeking to restrain,their opponent from interfering in their possession. The petitioner defended all the suits and in each suit his defence in the first instance was that he never sold the suit land to his opponents and he was still its owner and in the alternative he alleged violation of the mandatory provisions of Martial Law Regulation No.64 and consequent invalidity of each sale transaction. He also raised certain preliminary objections. . 5i .On the pleadings of the parties the learned trial Juge in every suit almost framed identical issues in the following terms:— 1. Whether the defendant has not sold the suit land to the plaintiffs? 2. If issue No.l is not proved, whether this sale is against the provisions of Martial Law Regulation No.64? 3. Whether the suit is not properly valued? 4. Whether the suit is not in proper form? 5. Whether this Court has no jurisdiction? 6. Whether the plaintiffs are owners in possession of the suit land? 7. Relief. 6. After recording the evidence of the parties and hearing their counsel, he came to the conclusion that the petitioner had sold the suit land by various transactions to his opponents but each transaction was hit by the provisions of Martial Law Regulation No.64 and as such the sale being void, the plaintiffs were not owners of the suit land. He recorded these findings on issues No.2 and 6. However, all other issues were decided against the defendant-petitioner. As a result of his findings on issues No.l, 2 and 6, he dismissed all the four suits. Aggrieved by these findings, the plaintiffs in each suit preferred appeal to the District Court and the learned District Judge, Sheikhupura, vide his consolidated judgment, dated 19.11.1976, accepted these appeals, set aside the judgments and decrees of the Court below and decreed all the four suits, thereby compelling the defendant-petitioner to invoke the revisional jurisdiction of this Court in each matter, 7. During the course of discussion on issues No.2 and 6 the learned District Judge found sale mutation No. 143 sanctioned in favour of Ghulam Muhammad son of Dhunda in respect of land measuring 17 kanals 6 marlas in violation of paragraph No.25 of Martial Law Regulation No.64 on account of its having reduced the ownership of the defendant-petitioner to less than subsistance holding but irrespective of this finding he accepted the appeals and set aside the orders of the trial Court on the ground that the Chief Land Commissioner in his ruling known as PLD 1976 Revenue 13, the facts of which were identical to these cases, had observed that the Punjab Land Commission had resolved to move the President for the amendment of the Regulation which was entailing great hardship for the vendees and was unnecessarily rewarding the vendor who first sold the land, received and misappropriated the sale price and then challenged the transactions on the basis of the violation of Martial Law Regulation No.64. The learned District Judge also noticed with reference to the statement of Patwari that [he defendant-petitioner had sold his "Entire holding in the village. He thought it in the interest of justice that the plaintiff-vendees be allowed to remain in occupation of the land purchased by them. Like the Chief Land Commissioner, he also blamed the revenue staff for the violation of the Martial Law Regulation No.64 and held the plaintiffs—vendees as bonafide purchasers. In support of his views he called in aid the principle of laws aimed at the promotion of ends of justice and did not think proper to allow the defendant-petitioner to reap benefit of his own mistake or those of the revenue staff who were responsible for the violation of the mandatory provisions of Martial Law Regulation No.64. 8, It was argued on behalf of the defendant-petitioner that with the sale of 17 kanals 6 marlas of land to (ihulam Muhammad vendee, vide sale mutation No.143 sanctioned on 26.11.195°, his land measuring 119 kanals 4 marlas was reduced to 101 kanals 18 marlas, which was less than the subsistence holding of 111 kanals 5 marlas of the village wherein the land was situated and in this way the transaction wuv void in view of paragraph No.25 of Martial Law Regulation No.64. This position, according to the learned counsel, was conceded even by the learned District Judge in the impugned judgment but he still proceeded to accept the appeal of the plaintiff-respondents on the basis of the decision of the Chief Land Commissioner, in which no definite finding was recorded, I! was contended that once the sale transaction embodied in the aforesaid saie mutation No.143 dated 26.11 1959 was declared void, ilv.n a!! she suhseaucnf so!-' iransalions had to be declared void because each of such transaction further reduced the subsistence holding of the defendant-petitioner entailing violation of aragraph No.25 ibid. It was also urged that the- question as to whether or not any sale transaction violated the provisions of paragraph No.25 of the said Regulation, was within the exclusive jurisdiction of Land Reforms Authorities and civil courts, including this court, had no jurisdiction to record a finding on this point. In support of his contentions he placed reliance on Rulia and others v. Patch Muhammad and others (PLJ 1989 Lahore 427). 9. .On the contrary, it was argued on behalf of the plaintiffs-respondents that the defendant-petitioner could not take advantage of his own wrongful act, if any, and in any case none of the sale transactions in question violated any provision of paragraph No.25 of the said Regulation because the entire holding of defendant-petitioner ranged between the subsistence holding and the economic holding and he could alienate any portion thereof to any land holder in the village as the plaintiffs-respondents in each case were. On the question of jurisdiction, the learned counsel was of the view that since the revenue authorities had acted without jurisdiction while reviewing the sate mutations and cancelling the same on the ground of their being in violation of Martial Law Regulation No.64, the civil court had the jurisdiction to set aside the illegal orders passed by them. He also cited Rulia and others v. Fateh Muhammad and others (PLJ 1989 Lahore 427) which in turn referred to a number of authorities of the Supreme Court on various points. 10. It may be mentioned here that, as per record of the lower courts, the parties first took the dispute to the Revenue Authorities and the Assistant Commissioner, Sheikhupura, exercising the powers of Collector, vide his order, dated 23.2.1973, came to the conclusion that the sale mutations, being in violation of the "provisions of Martial Law Regulation No.64, were void. The vendees challenged this order before higher Revenue Authorities but remained unsuccessful even up to the level of Board of Revenue and then they brought respective suits giving rise to these revision petitions. 11. To my mind, the very first question which requires decision is that of jurisdiction viz: which authority is to decide as to whether or not the sale transactions in question offended against the provisions of paragraph No.25 of Martial Law Regulation No.64, also known as Land Reforms Regulation, 1959? On this point an esteemed authority of the Supreme Court reported as Nisar Ahmad Klian v.. Ismat Jelian Begiim (1968 SCMR 667) is very clear. It was bserved therein that— "Paragraph 27 bars the jurisdiction of all Courts including the High Court and the Supreme Court or of any other authority, other than an authority appointed under the Regulation, in respect of any matter which the Commission or an officer acting under the authority of the Commission, is empowered to determine. It would thus appear that the question whether para 25 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". 12. Thus it will be seen that it was only for the Land Commission or the Chief Land Commissioner or their delcgatees, who were charged with the duty of implementing the said Regulation, to examine and decide as to whether or not the sale transactions in question, as embodied in various sale mutations, violated any provisions of paragraph No.25 of Martial Law Regulation No.64 and no other authority, including the civil courts and their higher hierarchy, could go into this aspect of the matter. Not even the Revenue Authorities had any concern with the determination of the validity or otherwise of the sale transactions in the context of paragraph No.25 of the said Regulation and as such not only the orders passed by the trial Court and the learned District Judge, Shcikhupura, determining the validity of the sale transactions on the basis of paragraph No.25 of the said Regulation are without lawful authority but those of the Assistant Commissioner/Collector, Sheikhupura, dated 23.2.1973 and all subsequent orders passed by the Revenue Authorities right up to the Board of Revenue were also without jurisdiction. It may be noted here that the Revenue Authorities such as Tehsildar/Assistant Collector, Assistant Commissioner/Tehsil Collector, Deputy Commissioner/District Collector, Commissioners and Board of Revenue are the creation of West Pakistan Land Revenue Act, while the Assistant Land Commissioner, Deputy Land Commissioner, Commissioner and the Commission are the creation of Land Reforms Regulation 1959 (MLR No.64) and both of them are separate and distinct legal entities being creation of two different statutes, exercising powers under each law and one is neither synonymous with the other though the same set of officers is often empowered by both the statutes. For instance, a Deputy Commissioner in a district is the District Collector under the West Pakistan Land Revenue "Act,'1967 and he is also the Deputy Land Commissioner under the Land Reforms Regulation, 1959 (MLR No.64) and Land Reforms Regulation 1972 (MLR No.! 15) due to the same officer exercising both -the powers. Not only the litigants and their lawyers are often misled but even the officers, who exercise powers under the two different enactments, frequently confuse and mix up the same. As in the instant case, the Assistant Collector, Sheikhupura, considering himself competent to review the sale mutations in the ordinary exercise of his powers as a Collector under the Land Revenue Act 1967, proceeded to review the sale mutations without realising that he was dealing with the matter under the Land Reforms Regulation, 1959 (MLR No.64) which he could handle only if he had been authorised to do so under any provisions of this Regulation or under the delegated powers of the Land Commission or the Chief Land Commissioner. He could not confuse or mix up his powers as a Collector with his powers as an officer under the Land Reforms Regulation, 1959 and proceed to review the sale mutations on the ground that the same were in violation of the Land Reforms Regulation 1959 (MLR No.64) because as a revenue officer he had no power to enforce the provisions of Martial Law Regulation No. 64 unless he had been empowered under the Regulation and he had exercised those powers distinctly and consciously as an officer of Land Reform hierarchy. So far as I know, neither he nor any other revenue officer, right up to the level of Board of Revenue, has been authorised or empowered by the Commission under the said Regulation, even as delegatees, to handle and decide the cases of violation of para 25 of that Regulation and without such authorisation or delegation they could not act in the exercise of their original, appellate or revisional powers under the Land Revenue Act, 1967. 13. In this connection one can refer to paragraph No.235 of the book known as 'Land Reforms in West Pakistan', Vol.1, written by Malik Khuda Bukhsh. The Commission in this paragraph had directed the Registrars and the Sub-Registrars not to accept deeds for registration unless the same were in conformity with the provisions of paragraph No.25 ibid and, while doing so, to write an order of refusal. Such an order was made appealable like any other order under the Registration Laws. 14. Under the same paragraph the Commission directed the revenue officers to refuse to sanction the oral transactions embodied in the mutations, if the same contravened the provisions of paragraph No.25 of the Regulation, irrespective of the fact whether such mutations were based on the direct statements of the parties or on the registered deeds or on the decrees of the Court. However, no further direction was given as (to) what was to be done if the sanction of the mutations had been refused by the revenue officers on the ground of the violation of paragraph No.25 ibid or mutations had been sanctioned in violation of such order. Unlike the directions given to the Sub-Registrars and Registrars, the directions given to the revenue officers were silent with regard to the remedy to be availed by the affected persons by way of appeal, review or revision but despite the absence of any such direction or authorisation given by the Commission, the revenue officers of different categories, as in the instant case, continue to pass orders of review, appeals and revisions in the normal course in exercise of their powers under the Land Revenue Act, 1967. They have not been empowered under the Martial Law Regulation No.64 or under the Martial Law Regulation No.115, and they, in my opinion, still continue to act without jurisdiction. To my mind, even the authorisation in respect of appeals against the orders of refusal passed by the Sub-Registrars and Registrars appears to be defective because under Sections 71 to 74 of ihe Registration Act appeals lie only against the orders of refusal of the Sub-Registrars and no appeal lies against the order of the Registrar. It reflects abdication of exercise of jurisdiction by the Commission itself. 15. in view of the above, all the four civil revisions are accepted and not only the judgments and decrees of both the courts bek -w are set aside but also the orders passed by the Revenue Authorities, including ihe order dated 23.2.1973 passed by the Assistant Commissioner/Collector Sheikhupura, right up to the appellate and revisional level, are declared without lawful authority. As a result, if the defendant-petitioner wants to challenge the validity of the sale transactions on the basis of their being in violation of the provisions of paragraph No.25 of the Land Reforms Regulation 1959 (Martial Law Regulation No.64), he will have to take recourse to the Punjab land Commission or the Chief Land Commissioner or their delegatees, if any, whosoever is legally competent under the said Regulation to take decision in the matter despite its repeal by virtue of para 32 of the Land Reforms Regulation 1972 (Martial Law Regulation No.115). (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 285 [FB] PLJ 1992 Lahore 285 [FB] Present: riaz ahmad, raja afrasiab khan and malik muhammad qayyum, JJ Mst. SAKINA ElEletc. --Petitioners versus FEDERATION OF PAKISTAN efc.-Respondents Writ Petition No.26 of 1989, accepted on 14.1.1992 (approved for reporting on 1.2.1992) (i) Constitution of Pakistan, 1973-- —Art. 2-A-Objectives Resolution-Made part of Constitution—Effect of~ Federal Shariat Court can declare a law repugnant to Islam and make it inoperative from a date of its choice-Some laws which remained beyond jurisdiction of Federal Shariat Court, could either be placed within jurisdiction of Federal Shariat Court or that of general Courts-Legislature could also assume that main body of laws having been Islamised, procedure may be envolved to grant relief to litigants as against mere prospective declarations as were being dispensed—Held: Function of Article 2-A is quite different and distinct from those entrusted to Federal Shariat Court and Council of Islamic Ideology-Held further. There is neither duplicity nor even over-lapping, and High Court can grant relief under Article 2-A of Constitution. [Pp.296,297&301]A&C (ii) Constitution of Pakistan, 1973- —-Art.2-A--Objectives Resolution-Made part of Constitution-Effect of- Objectives Resolution was made substantive part of Constitution as Article 2- A and shall have effect accordingly—Held: Objectives Resolution having ceased to be a simple preamble, all measures which conflict with ideology, aim and final object of country and nation, could be questioned (under it). [P.297]B PLI1988SC224>e/. (iii) General Amnesty-- —General amnesty—Grant of—Challenge to~As far as President has pardoned women except those convicted for murder who are undergoing imprisonment under sentences awarded by Military or other courts, impugned order is not open to any exception—Same are views with respect to ijara (c\ of iminiigied order--WIM regard" to para (d), sentences of convicts above sixty years of age who have not been convicted under Hudood, Qisas and Diyat Ordinance, can be remitted-Held: Death sentence awarded to respondents could not be commuted to life imprisonment by President-Petition accepted. [P.302JE (iv) General Amnesty- —Order of President-General Amnesty granted in 1988-Challenge to-Did President enjoy powers to grant general amenesty in view of provisions of Article 2-A of Constitution-Question of~President had no such power to commute death sentences awarded in matters of Hudood, Qisas and Diyat Ordinance-Held: Power of pardon in such cases vests with heirs of deceased, and President had no power to commute, remit or pardon such sentences-­ Held further: However, in case a person is punished by way of Tazir, Head of State has pwoer to pardon offender and that too in public interest. [P.302JD Dr. Abdul Basil, Advocate for Petitioners. Mr. Aziz A. Munshi, Attorney General, Mr.SA.Mannan, Deputy Attorney General, Mr.Maqbool Elahi Malik, Advocate General, Mr.Farooq Bedar, Additional Advocate General, Mr.M. Aklitar, Additional Advocate General, Mr. Nazir Ahmad Ghazi, AA.G. assisted by Mr. M. M. Saeed Baig Advocate for Respondents. Dates of hearing: 10,14 and 21.7.1991,15,16,19 and 26.10.1991 judgment Riaz Ahmad J.--In 1988 after the assumption of the Office of Prime Minister (by) Benazir Bhutto, the President of Pakistan acting upon the advice of the Prime Minister vide letter No.8/15/88 Ptns, Islamabad dated the 8th December, 1988 purporting to act under Article 45 of the Constitution of Islamic Republic of Pakistan, issued the following order: (a) to commute all death sentences awarded by the Military or other Courts upto the sixth of December, 1988, to imprisonment for life; (ft_) to grant pardon to all women prisoners, except those convicted for murder who are undergoing imprisonment under sentences awarded by the Military or other Courts; (c) to remit the sentences of all persons who have been convicted and sentenced under MLR 31 in absentia; such persons will however have to face trial for the substantive offences for whigh theymay be charged; (d) to remit the sentences of convicts who are above sixty years of age and have undergone imprisonment for five years or more under sentences awarded b^ the Military, or other Courts; (e) to remit the sentences of all persons, other than members of the Armed Forces convicted and sentenced by Military Courts for offences not involving drugs, smuggling, corruption, embezzlement, bank fraud, robbery, dacoity, murder, rape or un-natural offence; the cases of the Members of the Armed Forces will be reviewed by the competent authorities of the Armed Forces; (/) to grant to all convicts in Pakistan a remission of three months in their sentences, whether awarded by the Military, (or) other courts; (g) to grant remissions from the dates of their imprisonment, to all persons convicted and sentenced by Military Courts to whom remissions have so far been denied; and (h) to direct that in computing uk total period of imprisonment to be undergone by prisoners convicted and sentenced by Military Courts, the period served as undertrial prisoners be included". 2. Although the order impugned is silent as to the exercise of powers, but there is no other letter of law except Article 45 of the Constitution of Islamic Republic of Pakistan, under which, the said order could have been issued. Para (a) of the order impugned relates to the commutation of death sentences awarded by the Military or other Courts before 6th of December, 1988 into imprisonment for life. This clause of the order impugned was challenged in a number of writ petitions and the authority of the President of Pakistan was questioned to issue such general order by the complainant side. Such petitions were admitted by this Court and the notices were issued subsequently to the beneficiary-convicts of the aforesaid order of the President of Pakistan. In a number of cases, wherein death sentences had been awarded by the Sessions Judges or the Additional Sessions Judges and the References had been made to this Court for their confirmation, and which had not been disposed of till the issuance of the questioned order by the President, it was argued that para (a) of the said order was not applicable in those cases, in asmuchas, if the death sentences awarded by the Sessions Judges or the Additional Sessions Judges are not final, and cannot be executed unless confirmed by this Court, and therefore, para (a) of the impugned order was not attracted to these cases. However, in cases of death sentence awarded by the Special Court set up for speedy trial, the position emeging was different, because the death sentences awarded by these courts did not require their confirmation by two Judges of this Court as envisaged under Section 374 Cr.P.C. 3. To consider this question of vital importance involving the interpretation of Article 45 of the Constitution of Islamic Republic of Pakistan and its scope in the light of Article 2-A of the Constitution, the present Full Bench was constituted by our Lord the Chief Justice. Accordingly, we heard the elaborate arguments by both the sides and after having done so, we propose to deliver this judgment. 4. In the first instance, it was argued before us that the order impugned issued by the President of Pakistan had not been considered properly by the President, therefore, it was a fake order. To ascertain the factual position, we issued notice to the learned Attorney General of Pakistan directing him to produce the original file and the correspondence between the President and the Prime Minister of Pakistan. To ascertain the legality of the aforesaid order, the Attorney General in response to the notice produced the file before this Court, and argued that the legality of the Order could not be disputed, and in fact, the President of Pakistan had acted upon the advice of the then Prime Minister Benazir Bhutto. In this view of the matter, this aspect of the case required no further elaboration. 5. On behalf of the convicts, it was vehemently argued that the powers of the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan could not be questioned, because, as a Head of the State, he had been bestowed with such powers, and the exercise thereof could not be questioned. It was precisely argued that even this Court could not go behind the said order, because it was the absolute power of the President to exercise the aforesaid power in his discretion, and this Court was debarred to go into the jurisdiction aspect and also into the legality of the exercise of the aforesaid power. In this behalf, a number of judgments were cited delivered by the Indian Supreme Court as well as by the Supreme Court of Pakistan and the High Courts. There is no cavil with the proposition, but the precise question is; what is the effect of Article 227 read with Article 2-A and the provisions and the dictates for the administration of criminal justice as envisaged by Islam on such powers of President of Pakistan. Precisely, the question of vital importance is whether in those cases, in which, death sentences have been awarded as Hadd, and whether the principles of Qisas are attracted when the President of Pakistan ommuted such sentences of his own, because under the administration of criminal justice, as envisaged by Islam it is only Walls of the deceased who can waive their right of Qisas and not the Head of the State. 6. To resolve this controversy, we have to examine the provisions of Islam in brief as envisaged by Article 227, 2(a) and Part VII Chapter 3-A of the Constitution read with Qisas and Diyat Ordinance and the judgments delivered by the Supreme Court of Pakistan as well as the judgments of the High Courts of Pakistan. Under Article 227 of the Constitution, it was laid clown that the existing laws shall be brought in conformity with the Injunctions of Islam as provided by the Holy Quran and Sunnah referred to as Injunctions of Islam, and no law can be enacted which is repugnant to such injunctions. In fact, Articles 227 and 230(a) of the Constitution deal with the Islamic provisions. Under Article 228, the Islamic Ideology Council was created. Under Article 229 a Reference by Parliament could be made to such Council for advice as to whether any provision of law was repugnant to the Injunctions of Islam. Under Article 230 various functions of the Islamic Ideology were laid down. By virtue of Presidential Order 1/80, a New Chapter 3-A for the appointment of Federal Shariat Court was drafted in Part- VII of the Coonstitutbn of 1973. In this Order, the Court called the Federal Shariat Court was established which was empowered to examine and decide the question whether or not any law enforced in Pakistan was repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (May peace be upon him), and in case if the Federal Shariat Court decides any law or provision of that law to be repugnant to the Injunctions of Islam, it shall set out in its decision the reasons for its holding that opinion, and the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect. Article 203-A further provides that on such pronouncement, the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam. 7. It is pertinent to mention that within six months of the death of the Founder of the Nationa late Quaid-e-Azam Muhammad Ali Jinnah, the First Constituent Assembly of Pakistan passed in March, 1949 a Resolution Clause which became the Objectives Resolution, and then this Resolution had appeared as a preamble of the Constitutions of 1956,1962, the Interim Constitution of April 1972 and the present Constitution of 1973. In the case reported as Zia urRehman v. the State PLD 1986 Lahore 428, it was argued before the Supreme Court that the Objectives Resolution was the gnmdnonn of Pakistan and was a supra constituional instrument, but this view was rejected, and it was laid down that the power under the same Statute or Authority is the operative part of the Constitution itself unless it is incorporated therein and included in its substantive part. In the constitutional history of Pakistan, the provisions of this Resolution were implemented from time to time by the State to bring the legality or otherwise of the actions taken by the Executive or the other Forces, and despite the fact that the Resolution was described as a corner stone of the Pakistan's legal edifice mAsmaJillani v. the Government of Punjab PLD 1972 SC 139 represented the ideology, aim and the final object of the country and the nation. In the case reported as Hussain Naqi v. Vie District Magistrate Lahore PLD 1973 Lahore 164, it was not accepted as the supra constitutional instrument, as referred to above, and was held to be unjusticiable and preambulatory provision. In the case of Zia ur Rehman v.Tlie State PLD 1986 Lahore 428, precisely to quote the words of late Hamood ur Rehman, the Chief Justice it was observed as under:-- " Therefore, in my view, however, solemn or sacrosanct document, if it is not incorporated in the Constitution or does not form a pan thereof'it cannot control the Constitution. At any rate the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. It follows from tins that under our own system too the Objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it. If it appears only as a preamble to the Constitution then it will serve the same purpose as any other preamble serves, namely, mat in the case of any doubt as to the intent of law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provision thereof. 8. Pakistan was intended to be an Islamic State. The history bears testimony to the fact that the entire struggle for achieving this homeland was initiated and carried on in the name of Islam. The only slogan which persuaded the people to support this movement and carried them along was "Pakistan Ka Matlab Kia, Laa Ilah Ilallah". The Quaid-e-Azam made this fact clear before the birth of Pakistan and thereafter. He made it clear before the Bar Association Karachi on 25 th January, 1948 when he said that he could not understand a section of the people, who deliberately wanted to create mischief and made propaganda that the Constitution of Pakistan would not be made on the basis of Shariat. He went on to say Islam and its idealism have taught democracy, Islam has taught equality, justice and fairplay to everybody. What reason is there for anyone to fear democracy, equality, freedom on the highest standard of integrity and on the basis of fairplay and justice for everbody. Let us make it the future Constitution of Pakistan" "Islam is not only a set of rituals, traditions and spiritual doctrines. Islam is also a code for every Muslim which regulates his life and his conduct in even politics and economics and the like. It is based on the highest principles of honour, integrity, fairplay and justice for all....". "In Islam there is no difference between man and man. The qualities of equality, liberty and fraternity are the fundamental principles of Islam". The Quaid added that the Holy Prophet laid the foundation of democracy thirteen hundred years ago. 9. The speech made by the Quaid-c-Millat in the Constituent Assembly while tabling the Objectives Resolution is also clear on the point. A portion of the same may be reproduced with advantage:-- "Sir, I consider this to be a most important occasion in the life of this country next in importance only to the achievement of independence, because by achieving independence, we only won an opportunity of building up a country and its polity in accordance with our ideals. / would like to remind the House that the Father of the Nation Quaid-e-Azam gave expression to his feelings on this matter on many an occasion, and his views were endorsed by the Nation in unmistakable terms. Pakistan was founded because the Muslims of this subcontinent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to many diseases which have crept into the life of human body. ..... "We as Pakistanis are not ashamed of the fact that we are overwhelmingly Muslims and we believe that it is by adhering to our faith and ideals that we can make genuine contribution to the welfare of the world. Therefore, Sir, you would notice that the preamble of the Resolution deals with the frank and unequivocal recognition of the fact that all authority must be subservient to God"...."But we the People of Pakistan, have the courage to believe finnly that all authority should be exercised in accordance with the standards laid down by Islam so that it may not be misused. All authority is a sacred trust, entrusted to us by God for the purpose of being exercised in the service of man so that it does not become an agency for tyranny or selfishness...." It may also be noted here that the Objectives Resolution had its own preamble and was neither proposed as a Preamble nor was tabled as such in March, 1949. In fact, it was tabled and debated even much before the drafting of the proposed Constitution, which came about years later. The preamble however is considered "when all the clauses and schedules have been agreed to and any clauses or schedules added". It is then that the Chairman puts the question, "That this be the preamble of the bill". See May's Parliamentary Practice 19th Edition page 531. The same is the procedure given for Lords at page 478. The record of the Constituent Assembly further shows that there were debates and more particularly, the Non-Muslim members criticised it. 10. It may also be of interest to note that before this Resolution was drafted a team of the most learned of the Ulema of all the sects and the schools of thought was constituted to consider and propose jointly the agreed guidelines on which the Constitution for this Islamic State be based. It was thereafter that the Objectives Resolution was prepared on the basis of the guidelines mentioned above. Even the wording of the preamble shows that it was a mandate given by the people to its representatives to frame a Constitution in the light of the guidelines supplied. It says:- 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: And whereas, it is the will of the people of Pakistan to establish an order: "Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, shall be fully observed;" "Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah:" " 11. It will be appreciated that such has never been the language and tenor of a preamble. The difference is that the preamble gives the objects of the bill as conceived by the author and is put up .to the House after the Clauses etc., have been considered. Thereafter, the Preamble may be amended if the objects given therein do not correspond with the amended clauses etc. It is stated in the May's Parliamentary Practice page 520 that "Amendments to the Preamble and title are also admissible where amendments have been made to the bill which render them necessary". On the other hand, the tenor of the Resolution is that it is an acknowledged command of the people, directed against their representatives to act in the manner given therein. Unfortunately, this distinction was never brought to the notice of the courts and explained. They took it as a Preamble and interpreted it the way the English precedent allowed. 12. The importance of the Preamble can be judged from the fact that it formed part of each one of the four Constitutions Pakistan had. It was held as the Grund Norm of Pakistan by all the Judges who sat to decide Asma Jillani case (PLD 1972 SC 139). It may be useful to reproduce a few lines at page 182 from the judgment of Mr. Justice Hamood-ur-Rehman, the then Chief Justice:-- "In any event, if a gnmd norm is necessary for us, I do not have to look to the western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exerciseable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949" The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions". 13. A few other observations in the same regard from another judgment of the Supreme Court in Benazir Bhutto's case PLD 1988 SC 416 at page 522) may be quoted with advantage:-- The learned Judge further relied on the Preambles of the four Constitutions which were an eloquent testimony of the affirmation of Pakistan ideology, therefore, there cannot be any doubt that the ideology of Pakistan is based on Muslim nationhood and includes Islamic ideology which in claar terms in the Constitution means Injunctions of Holy Quran and Sunnah, and was the principal factor in the concept of Muslim nationhood",...:... "This is in my view an affirmation of a two nation theory. The concept of Islamic ideology is interwoven with the ideology of Pakistan and is inseparable as it is the foundation of two nation theory. Therefore, "integrity of Pakistan" not only includes ideology of Pakistan but also Islamic ideology. Any invasion of integrity of Pakistan will inevitably lead to an invasion of its sovereignty and vice versa". 14. The protection to the laws made or to be made, from being struck down, as having been repugnant to the Injunctions of Islam was removed by the enactment of Chapter 3A of the Constitution (P.O.3 of 1979) with effect from 7 th of February, 1979 by creating Sharia Benches in the High Courts. They were however repealed later by new Court namely Federal Shariat Court which was created in 1980 vide P.O.I of 1980. Both the Courts were empowered to strike down any law, as defined, and declare it inoperative from a given date, if It was repugnant to the Injunctions of Islam as contained in the Holy Quran and Sunnah of the Holy Prophet. The only limitation placed was that a few laws were exempted from the jurisdiction of this new Court. This Court has been exercising its jurisdiction and has in fact struck down numerous laws. In any case, the reason that the Articles 30(2) and 227(2) make the law immune and that no Court can declare them void is no longer there, despite the fact that those two articles have not been repealed and are still intact, as before. 15. This fact should amply demonstrate that if some other suitable, constitutional step was taken with regard to the exempted laws also, they could also be dealt with in accord with the amended provision. This was factually done on 2nd March, 1985 (P.O.14 of 1985) when Article 2-A was inserted in the Constitution, it reads as follows:-- The principles and provisions set out in the Objectives Resolution reproduced in the Annx are hereby made substantive part of the Constitution, and shall have effect accordingly". 16. his Article was later passed in the 8th Amendment also. The result is that the Objectives Resolution is no longer a mere preamble and has been incorporated in the Constitution and made an effective part of it, exactly in the same words, as suggested in the case of Zia-ur-Rchman referred to above. In this situation, apparently, if any Court denied that it was in control of the Constitution, what to speak of the control of ordinary laws, it may have defied the mandate of the Supreme Court in Zia-ur-Rehman case and also violated the Constitution. However, there has been serious difference of opinion in various Benches of the High Courts and the Supreme Court did not give its final verdict on any one of these cases. There, thus prevailed an atmosphere of uncertainty, which must be set at rest. 17. We are aware that some learned Judges have taken the view, that Article 2A is not self operative, and self executory and when functions in respect of the Islamisation of Laws in Pakistan have been expressly restricted by the Constitution to the Council of Islamic Ideology (Art.227(2) or the Federal Shariat Court (Art.203-B) cannot be invoked. Can one Article of the Constitution be superior to another? 18. Before going into the above reasons, it must be borne in mind that Constitution is thought of as an instrument by which a Government can be run and controlled. It generally embodies the fundamental principles upon which the Government should be established and conducted. There is no set pattern or form provided and it may take variety of forms. Of late, a practice has grown up of incorporating within the Constitution itself a declaration of fundamental rights and even basic principles of State policy. However, one thing is common in all the written Constitutions that it is conceived of as a fundamental or an organic or a supreme law standing in a somewhat higher position that the other laws of the country. Even non-Constitutional provisions, if incorporated in a Constitution acquire a high sanctity and stand on the same footing as strictly constitutional provisions. Anyway, this higher position may make it touchstone for other provisions or laws which may be annulled partially or totally or declared ultra vires of the Constitution or made ineffective. Reference may be made to the case of State v. Zia-ur-Rehman (PLD 1972 SC 49) at pages 66-67. 19. Further a Constitution does not normally provide executing machinery separately for every provision. It generally provides only one fully equipped remedy dispensing unit to take care of every defect. Reference may be made to Article 199 in our 1973 Constitution. It is also the duty of every Court to gather the intention of the Legislature and give meaning and import to every word and provision of the constitution and let not any word and provision get redundant or superfluous. All this having been said let us find out the intention of the Legislature behind the Objectives Resolution. It has been said above that it was meant to fulfil the promise made by the Quaid-c-Azam to the Nation. The Quaide-Millat made that amply clear in his speech before the Constituent Assembly, the relevant provisions of which have also been reproduced. The wording of the Resolution, it has been shown above, is indicative of the fact that it was accepted as the mandate of the people to its representatives. 20. The courts of the country, however, could not accept that position as its heading marked was 'preamble' and because of the restrictions laid down in Articles 30(2) and 277(2). Both the objections, as explained above, stand already vacated by the creation and empowerment of the Federal Shariat Court and enactment of Article 2A. There is thus no further impediment or hurdle to cross, to treat Chapter 3A and Article 2A as enforcible provisions in their respective spheres. 21. Anyway, in order to see the depth and weight of the first objection, let us consider the very Part 1 of the Constitution, which includes the Objectives Resolution. It is now incorporated and made a part of the Constitution as Article 2A but is in no case self-operative, as suggested in the objection. Article 1 is named as the Islamic Republic of Pakistan. Suppose some agency of Government or a department or even Government drops the word Islamic, can any citizen of Pakistan challenge the same and where? Again, God forbid, a Government intends to alienate a part of the territories mentioned in Article 1(2), can any patriot citizen have a grievance and challenge to stop it? Article 4 is also included in the same part and is neither self-operating nor self executing. However, the Courts particularly, the Supreme Court has given monumental judgments on it. Did it act beyond its authority in doing that? Reference be made to the cases of Manzoor Ilahi PLJ 1975 SC 75, and Federation of Pakistan . Malik Ghulam Mustafa KJiar PLD (?) SC 26 for the purpose. 22. In the same part, there is Article 6. It is also not a self-operating and self- executing provision. Can it be said that it is merely symbolic and ornamental and one is free to commit treason without any fear of a penalty? It is to be noted that in Niaz Ahmad Khan (PLJ 1977 Karachi 338), it was held that Article 2 which states that Islam shall be the State religion of Pakistan means that in its outer manifestation the State and its Government shall carry an Islamic symbol. If that be so, why are not all the Articles from 1-6 just declaratory and symbolic? The correct view, it is submitted with profound respect, is that every word has to be given its plain and natural meaning and no word in a constitution can be considered redundant or surplus. As against that, no Court has ever declared as ostensibly secular constitution as symbolic or ornamental, though, in practice it may be so. Rather, under such constitutions, the Courts have disallowed expenditure on religious items and compeHed the Governments to stick to secularism. Reference be made to American and Indian Constitutions. 23. Undoubtedly, Article 8 of the Constitution, as referred to our learned brother Mamoon Qazi J., in Habib Bank Ltd v. Waheed Textile Mills Ltd (PLD 1989 Kar. 371), declares that any law or any custom or usage having the force of law, in so far as it is inconsistent with the fundamental nghts shall, to the extent of inconsistency be void. The clause (2) further restrains the Government from making such a law, otherwise, that shall also be void. This is what has, to our mind, been termed as self-executing or self-operating. Firstly, it is submitted with respect, that it is a misnomer. A self-operating or self-ejcecuting provision is one which has a complete inbuilt machinery in it but that is not the case here. Article 8 only gives a declaratory result or consequence, if a law of that nature was there or made. However, it must be appreciated, that the superior courts have interfered in innumerable cases where there was only a provision to do or not to do, without stipulating a consequence. In English Law parlance, they have been termed as writs of mandamus, certiorari and prohibition and the concepts have been followed in this country also. I am sure no authority may be needed in support, as the annals of law are full of that and the High Courts are day in and day out passing such orders. 24. Here, we may refer to Articles 141 and 142 of the 1972 Constitution and those pan materia in the earlier constitutions, which are neither self-operating nor self-executing, like Article 8, yet the Courts have always been enforcing them. These Articles stipulate the territorial and the subject matter fields, the Provincial and the Federal Legislatures, without saying that if they step out of their respective fields or trespass into other areas, the laws made by them shall be void.However, the Courts did declare that it has the power to do so when a violation of the nature was proved. See F.B. AH v. States, P.L.J. 1975 S.C. 368, Province of East Pakistan v. Sirajul Haq Patwari, P.L.D. 1966 S.C. 854 and Fazalul Quader Chowdhry . Muhammad Abdul Hague, P.L.D. 1963 S.C. 486. 25. In the Constitution of 1973 Article 199 provides remedies to the aggrieved persons and others. The clause (l)(o)(/) of this Article reads as under:-- "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law:-- (a) on the application of an aggrieved party make an order:— (/) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; or ". The question is, can this be an operating or executing provision for Articles 1 to 6 and other such Articles? Answer has to be in affirmative, as the Courts have not lagged behind or hesitated whenever it was shown that a case was covered by it. It was held in Tariq Transport Co. v. Sargodha Bhera Bus Service (P.L.D. 1958 S.C. 437 (Pak) that the power of the High Court to issue directions, orders and writs is not limited to writs in the English form but extends to making of order restraining or directing any authority or Government which may be discharging executive functions under a statute 26. Now we deal with Ihe reason (fc) mentioned above. It means, can Article 2A override the functions of Islamisation entrusted to the Council of Islamic Ideology and the Federal Shariat Court ? It is to be noted that the Council of Islamic Ideology is only an advisory body. It cannot make decisions. Its function is to advise and report to the Majlis-e-Shoora, Provincial Assemblies, the President or the Governors, in accord with Article 230, who have only to consider the same and are not obliged to follow the same or act accordingly. Further, as said above, the Articles 227(2) and 30(2) placed bars before the Courts to interfere. The result was that the Parliament and the Provincial Assemblies were free to make any law, howsoever un-Islamic it may be and in any manner they liked. 27. The first check came by the creation of the Federal Shariat Court which could not only declare a law repugnant to Islam but could also make it inoperative from a date of its choice. Some laws, however still remained beyond the jurisdiction of the Federal Shariat Court and they could either be placed within the ambit of the Federal Shariat Court or placed within the jurisdiction of the general Courts. Further, the legislature could also assume that the main body of laws has been Islamised and therefore, procedure may be evolved so that the litigants start getting relief also as against the mere prospective declaration as were being dispensed. These, Objectives were achieved by incorporating Article 2A. The function of Article 2A is thus quite different and distinct from those entrusted to the Federal Shariat Court and the Council of Islamic Ideology. There is neither duplicity nor even overlapping. 28. If we look at Article 2A, it will appear that the legislature itself, conferred overwhelming position on the Law of Allah and made the man-made law subordinate to it. If that be so, can any Judge refuse to follow that position, as he is under oath to preserve, protect and defend the Constitution? If the, Article 2A is effective and enforceable the sovereignty belongs not to the people or the Parliament, but (to) Allah. Can then Article 2A be violated, defied or defeated? It must be appreciated that Article 270-A does equalize all the Articles of the Constitution, as regards their existence and enforceability and insists that they all being valid will co-exist with each other but with their own weight and importance. In that situation the application of Article 268(6) will pose no problem. 29. While reviving the Constitution of 1973 by virtue of the revival of the Constitutional Order (P.O.14 of 1985) a magnificicnt turn took place towards the fulfilment of the goal of the citi/ens of Pakistan to lead their lives in accordance with the Injunctions of Islam as laid down in Holy Quran and Sunnah. Thus, the Objectives Resolution was made as part of the Constitution numbered as Article 2A and then it became the substantive part of the Constitution, and shall have effect accordingly.-The Objectives Resolution ceased to be a simple preamble of the test laid down by the Supreme Court in Zia-ur-Rehman's case was satisfied, and therefore, all measures which conflict with the ideology, aim and final object of the country and nation could be questioned. To further emphasize the importance of the Objectives Resolution, my lord MrJustice Muhammad Afzal Zullah, the Chief Justice of Pakistan in his illuminating judgment reported as SardarAli v. Muhammad All (PLJ 1988 SC 224) touched this aspect of the case, and while commenting upon it using phraseology as laid down in Asma Jillani's case, it was remarked that much more would be said about its contents, value and importance as the repository of very high principles of Constitutional and ideological importance, for example, the sovereignty of Allah was given concrete meaning and applied as such in thai case. It was further observed by my Lord the Chief Justice that while reaffirming these ideals and the resolve to achieve them, the immediate implementation of the Resolution in all our formal, Constitutional and legal instruments. It was also observed that compensation of the time lost is not in mere speed but in a measured speed. The Worthy Chief Justice further observed that the Courts in their own sphere of jurisdiction and power would in due course perform their duty by implementing the aforesaid Resolution. 30. Another development towards the corpus juris of the administration of criminal justice in Pakistan as enshrined in the Holy Ouran and Sunnah is the case decided by the Shariat Appellate Bench of the Supreme Court presided by my lord Mr. Justice Muhammad Af/al Zullah, Chief Justice of Pakistan in the case reported as Federation of Pakistan v. Gill Hasan Khan (PLD 1989 SC 633). In this case provisions of Sections 299 to 338 PPC were considered and declared to be repugnant to the Injunctions of Islam, as it failed to cater for the fundamental principles laid down in the administration of criminal justice of Islam. It was enumerated by the Federal Shariat Court as under: Sections 299 to 338 of the Pakistan Penal Code 1860 which deal with offences against human body are repugnant to the Injunctions of Islam, as they: (a) do not provide for the Oisas in cases of Qall-al-amd (deliberate murder) and Jurooh al amd (deliberately causing hurt) as is prescribed in the Holy Quran and Sunnah; (ft) do not provide for Diyat in cases of Shib ill amd and KJiata of both qatl (murder) and Jurh (hurt) as prescribed in the Holy Quran and Sunnah; (c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in cases of Qatl and/z/r/i; (d) do not provide that the offender may be pardoned by the victim in cases ofJurali (hurl) and by the heirs of the victim in cases of Qatl (murder) whereby the Court can only award him a sentence of imprisonment by way of Ta'zir which 'may not extend to imprisonment for life; (e) do nol exempt a non pubcrl and an insane offender from the sentence of death in cases of murder; and (/) do not define the different kinds of Qall and Jurh (murder and hurt) in accordance with their respective punishments prescribed in the Holy Qur'an and Sunnah (pp. 641, 642) A & G". 31. In this context, the observations made by our learned brother MrJustice Wajih-ud-Din J. of the Sindh High Court are very apt in the case reported as 1990 CLC 428. Our learned brother observed that all the principles and provisions embodied in the Objectives Resolution are no longer a pious wish in the preamble of the Constitution but are a substantive part of the Constitution and are enforceable. Objectives Resolution can be termed as the gnmd norm which embodies the conscience of body politic of Pakistan and provides the firm foundation for raising the sublime edifice of an Islamic Society. If any organ of the State goes beyond the limits of principles of Objectives Resolution, its action can be declared to be without lawful authority on the touchstone of limits prescribed by Allah and requirements of Islam as set out in Holy Quran and Sunnah. Even if the laws protected under Article 270A of the Constitution are found repugnant to the Holy Quran and Sunnah, the Courts in Pakistan would be bound to ignore and overstep such a provision, as the same does not conform to the Supreme Law of Almighty Allah, 32. In Gul Hasan's case besides holding the provisions of Sections 299 to 338 PPC and Sections 54 and 109 PPC as repugnant to the Injunctions of Islam, provisions of Sections 401, 402, 402-A, 402-B, 345, 381, 337 to 339-A of the Criminal Procedure Code were also examined, and the Shariat Appellate Bench also held these provisions to be repugnant to Islamic Injunctions, and thus, the Federal Government had to amend the law to bring the same in accord with the Injuctions of Holy Quran and Sunnah. In the aforesaid judgment, it was also held that the judgment had to become effective with effect from 23rd of March 1990. The Attorney General of Pakistan filed a Review Petition stating therein that by the enforcement of the judgment of the Shariat Appellate Court, Qisas and Diyat Ordinance had been enacted, and would be implemented by 5th of September, 1990, and would become effective with effect from 12th of Rabi-ul-Awal 1411 AH. The Review Petition filed by the Federation of Pakistan against the judgment delivered in Gul Hasan's case was thus rendered infructuous. The Shariat Appellate Court presided by our lord MrJustice Muhammad Afzal Zullah the Chief Justice of Pakistan further observed that in case the required law was not enacted by 12th of Rabi-ul-Awal or if the Ordinance lapses, the provisions held to be repugnant would cease to have effect on the 12th of Rabi-ul-Awal, and in such state of vacuum viz-a-viz the said law on the subject, common Islamic Law/Injunctions of Islam as contained in the Holy Quran and Sunnah relevant to the offence of Qatal, Jurh (hurt) shall be deemed to be the law on the subject, and the Courts while hearing and deciding the case of Qatal, Jurh (hurt) in accordance with the common Islamic Law of Islam as contained in Quran and Sunnah, and may also seek guidance from the provisions and Articles having once been enforced had lapsed or otherwise had become unenforceable. 33. Subsequent thereto, Qisas and Diyat Ordinance was promulgated and enforced, but the Ordinance was not placed before the National Assembly of Pakistan, and thus it lapsed. It is now well settled that the Courts have to look for guidance from the provisions contained in the Ordinance which is nothing but embodyment of the Principles of Islamic Common Law. It may be stated here that the aforesaid Islamic Common Law was rightly introduced keeping in view our heritage in Islam. The next development takes place when a case reported as Habibi-ul- Wahaba-KJiairi and others v. Federation of Pakistan (PLD 1991 FSC 236) decided by the Federal Shariat Court, and provisions of Sections 401, 402 and 402-A Cr.P.C. were held to be repugnant to the Injunctions of Islam, and it was laid down that UlitlAmr in Islamic polity are in the modern terminology, the Head of State, President or his Agent say Governor as the authority to pardon an accused or remit the sentence of a convict who has been punished for an offence liable to Tazir in public interest. He has no such powers in the matter of Hudood, Qisas and Diyat. It was also laid down, that no power of commutation of death sentence vests in the Head of an Islamic State, if the punishment has been awarded under the Qisas and Diyat Ordinance, because such powers only vest in the hands of the heirs of the deceased or the victims who suffered bodily injuries. Sections 401/402/402-A Cr.P.C. read as under- Section 401: When any person has been sentenced to punishment for an offence, the Provincial Government may at any time without conditions or upon any conditions when the person sentenced accepts, suspend the execution of his sente'nce or remit the whole or any part of the punishment to which he has been sentenced. (1) Whenever an application is made to the Provincial Government for the suspension or remission of a sentence, the Provincial Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion (and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists). (3) If any condition on which a sentence has been suspended or remitted is in the (opinion of the Provincial Government) not fulfilled, the Provincial Government may cancel the suspension or remission and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by person in whose favour the sentence is suspended or remitted, or one independent of his will. (4A) The provisions of the above subsection shall also apply to any order passed by Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (5) Nothing herein contained shall be deemed to interfere with the right of the President or of the Central Government when such right is delegated to it to grant pardon, repreieves, respites or remissions of punishment. (5A) Where a conditional pardon is granted by the President or ia virtue of any powers delegated to it by the Central Government, any condition thereby imposed of whatever nature, shall be deemed to have beenimposed by a sentence of a competent Court under this Code, and shall be enforceable accordingly. (6) The Provincial Government may by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with. (402) The Provincial Government may without the consent of the person sentenced, commute any of the following sentences for any other mentioned after it:-- Death (imprisonment for life) rigorous imprisonment for a term not exceeding that to which he might have been sentenced simple imprisonment for a like term, fine. (2) Nothing in this section shall affect the provisions of Section 54 or 55 of the Pakistan Penal Code. 402A) The powers conferred by Section 401 or 402 upon the Provincial Government may in the case of sentences of death also be exercised by the President. These powers only vest in the heirs of a person while Article 45 of the Constitution brings such powers on the President of Pakistan, which reads as under:- "President's power to grant pardon etc." The President shall have power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other Authority". 35. There is yet another very weighty argument in this behalf. The Supreme Court has firmly established the view that the rules of natural justice (meaning thereby law of Allah) shall be deemed to have been incorporated in every statute and violation of the same shall render the proceedings null and void. In this view of the matter, we see no reason why the entire law of Allah should not be deemed to be the super law and any law or action in violation of the same should not be void. Further, the Supreme Court in a recent case gave preference to the "national interest" as against an action in accordance with the Constitution. Will it not amount to saying that the laws of Allah are not in national interest, if we do not treat them as supreme law, despite the constitutional requirement (see PLJ .1989 SC 10, Federation of Pakistan v. Muhammad Saif Ullah Klian). 36. In view of the above, our humble view is that Article 2A is an effective and operative part of the Constitution and no Court may refuse to enforce it. Consequently, the Federal Shariat Court shall exercise its jurisdiction assigned to it under Chapter 3A of the Cosntitution, whereas, the High Courts shall exercise their jurisdiction with regard to all other laws. They may declare them repugnant to the Injunctions of Islam, as contained in Quran and Sunnah of the Holy Prophet (P.B.U.H) and may also grant relief, as may be called for in the circumstances of the case. 37. The crucial question falling for determination before this Bench is whether regardless of the date on which the punishment was awarded, and the date on which the President of Pakistan issued the order impugned, in view of the provision of Article 2A of the Constitution of the Islamic Republic of Pakistan, does the President of Pakistan enjoy such powers? Our answer to this question in the light of the judgments and the principles of the Holy Book as laid down in the Qisas and Diyat ordinance is in negative. Tlie President of Pakistan had no such power to commute the death sentences awarded in matters of Hudood, Qisas and Diyat Ordinance. In this view of the matter, we are of the considered view that the power of pardon in such cases only vests with the heirs of the deceased, tlierefore, the cases in which death sentences have been awarded, the President had no power to commute, remit or pardon such sentences. However, the cases would be on different footings, if a person has been punished by way of Tazir as in such cases, tlie Head of the State has the power to pardon the offender and that too in public interest. 38. As far as para (b) of the order impugned is concerned, whereby, the President has pardoned the women except those convicted for murder who are undergoing imprisonment under sentences awarded by the Military or other Courts is not open to any exception. Same are the views in respect of para (c) of the impugned order. With regard to para (d), we hold that in case of the convicts who are above sixty years of age, and have not been convicted under the Hudood, Qisas and Diyat Ordinance, their sentences can be remitted under the order impugned. So far as para (e) and (/) of the impugned order are concerned, these are procedural in nature, and the same were not seriously disputed before us. Thus, we hold that the President had the powers to do so. Consequently, this petition is allowed, and it is declared that the death sentence awarded to the respondents could not be commutted to life imprisonment by the President. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 302 PLJ 1992 Lahore 302 Present: MALIK MUHAMMAD QAYYUM, J AZMATULLAH-Petitioner versus Ch. ABDUL HAQ and others-Respondents Civil Revision No.1034 of 1981, dismissed on 5.5.1992. Benami Transaction- —Purchase of land by petitioner's father in name of petitioner—Sale of same by his father-Declaratory suit by petitioner that his father had no right to sell land-Dismissal of suit and appeal-Challenge to-It was for petitioner to prove that purchase of property in his name by his father was not benami and that he was real and beneficial owner of land in dispute-Held: Judgments of Courts below are unexceptionable and call for no interference-Petition dismissed. [P.306]A&B PLJ 1987 SC 77 & PLD 1953 Pesh. 19 rel. Sardar Roshan All Sindhu, Advocate for Petitioner. Sh. Salamatullah, Advocate for Respondents. Date of hearing: 21.4.1992. judgment This petition under Section 115 of the CPC calls in question the decree of the Additional District Judge, Shcikhupura, affirming the decree of the trial Court, passed on llth January, 1981. 2. The dispute arises out of a suit for declaration filed by the petitioner on 4th July, 1977, to the effect that the sale deed executed on 13th July, 1967 by his father in favour of respondents with respect to a half share of land measuring 233 Kanals 18 marlas situate in village Kot Ranjeet, Tehsil and District Sheikhupura was not binding upon him as his father had no authority to execute the sale deed or to alienate the suit land. 3. The suit was defended by the respondents on the plea that the real and beneficial owner of the land was the father of the petitioner, who had purchased it in the name of his two sons, namely, the petitioner and his brother on 5 th November, 1958, when they were minors. 4. The learned trial Court framed the following issues out of the pleadings of the parties:-- 1. Whether the suit is bad for non-joinder of parties? OPD. 2. Whether the plaintiff is estopped to file the present suit? OPD. 3. Whether the suit is not numu'mablc m te ptc&cnl fotml OPD. 4. Whether the suit is improperly valued? OPD. 5. Whether relief of possession as a consequential relief is a substantial relief, if so, what is correct valuation for the purposes of Court fee? OPD. 6. Whether the defendants are entitled to special cost under Section 35-A CPC? OPD. 7. Whether the plaintiff was a benumidar? OPD. 8. Whether the father of the plaintiff was not authori/cd to alienate the suit land in favour pf the defendants? OPP. 9. Whether the sale deed dated 13lh July. 1%7 in favour of the defendants is illegal, void, without authority, without consideration, ineffective, and not binding on the rights of the plaintiff? OPP. 10. Relief. 5. In support of his case, the petitioner appeared as his own witness in addition to which he produced copy of sale deed dated 13th June, 1967 as Ex.P.l, copy of sale deed dated 5th November, 1956, as P.2, copy of the application made to the Guardian Judge as Ex.P.3, and two mutations Ex.P.4 and P.5. In rebuttal, respondent produced Talib Hussain as DW.l and Abdul Hamid, respondent No.3, appeared as DW.2. 6. The suit filed by the plaintiff was dismissed by the trial Court on 17 th July, 1979 on the finding that the petitioner was Bcnamidar for his father, who was the real and beneficial owner of the land. This finding was affirmed by the Additional District Judge. 7. Mr. Roshan Ali Sindhu, Advocate, learned counsel for the petitioner has contended that the findings recorded by the Courts below holding that the petitioner was a Benamidar to his father are not sustainable. It was emphasized that the onus of issue No.8 was on the defendants/respondents, who had failed to lead any evidence whatsoever and as such the judgments of both Courts stand vitiated. The learned counsel also made a reference to various authorities laying down the principles which could be kept in mind while judging whether or not a transaction is Benami. 8. The learned counsel for the respondents, on the other hand, maintained that the findings recorded by the Courts below cannot be interfered with by this Court in exercise of revisional jurisdiction and in any case these findings were amply supported by the evidence on the record. 9. A perusal of the plaint of the suit filed by the petitioner shows that it stands admitted that at the time when the land in question was purchased, i.e. on 5th November, 1956, the petitioner was a minor. There is also an averment in the plaint that it was the father of the petitioner, who hud purchased the land in the name of his sons. The petitioner has failed to bring any evidence on the record to show that he had any independent source of income or that this had been purchased by him. On the other hand, the evidence led by him, was to the effect that it was his mother who had purchased the land for her sons out of her own resources. As noted by the trial Court, this plea was diametrically opposed to the position taken up in the plaint wherein il was admitted that it was the father of the petitioner, who had purchased the land in the name of his sons. It has been consistently held by this Court that the English doctrine of advancement is not applicable in Pakistan and where a property is purchased by one person in the name of the other, it is presumed to be Benami; be it a case of husband purchasing the properly in the name of his wife or of a father purchasing il in the name of his children. (Sec Rain Samp and another v. Maya Shankar and (alters (43 Indian Cases 556), MJ. Medrallt v. Mrs. M.K. McCrath (PLD 1952 Lahore 533) and Aftab Nasir v. Mst. fa:al Bihi and others (PLD 1965 (W.P.) Lahore 550). It will be useful to reproduce the observation made by this Court in the last mentioned case:— There is no doubt that the doctrine of advancement of English (law) does not apply in our country, and if a property is purchased or constructed by the father in the name of his minor child, the latter holds the property merely as a Bcnamidar and the parent is the real beneficiary of the property. In this respect reference may be made to Gopeekrist Gosain v. Gungapcrsaud Gosain (6 Moore's I A 53), Maulvie Sayyud UzlmrAli v. Mst. Bcbcc Ultaf Fatima (13 Moore's I A 232), Bilas Kunwar v. Desraj Ranjit Singh and others (42 I A 202) Kerwick v. Kerwick (ILR 48 Cal. 260), Lakxhmiah v. Kothandarama (AIR 1925 PC 181), MJ. McGrath v. Mrs M.K. McGralh (PLD 1952 Lah. 533). Viewing the case from this angle, although the house in question ostensibly stands in the name of the petitioner, it cannot be ruled out that in law he is merely a benamidar unless established otherwise". ' '> Reference may also be made to Muzaffar Shah and others v. Qazi Muhammad Shafiq and others (PLD 1953 Peshawar 19). The principle stands further fortified by the observations of the Supreme Court in C/J. Habibullah v. Sheikhupnra Central Co-operative Bank Lid. (PLJ 1987 S.C. 77), the relevant portions of which appearing at pages 81 and 82 of (he report read thus :— "The law on the subject is clear enough. In a case from NWFP, that of Git/wn Ditto and another . T. Ram Ditto (AIR 1928 PC 172) the law was summed up in the following words:— "The general principle of equity, applicable both in this country and in India, is that in (he case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposiled at a Bank in the name of a wife, or, where a deposit is made, in the joint names of both husband and wife. This exception has not been admitted in Indian law under the different conditions which attach to family life and where the social relationships arc of an essentially different character. The principle to be applied has been stated in Kerwick v. Kerwick (AIR 1921 PC 96 = 48 Cal. 260 = 47 IA 275 (PC). The general rule and principle of the Indian law as to the resulting trusts differs but little, if at all, from the general rule (of) English law upon the same subject, but in their Lordships' view it has been established by the decision in the case of Gopeekrist v. Gungapcrsad (1854) 6 MIA 53 = 4 WR 46-2 Suther. 13-1 Sar. 493 (PC) and U:har Alt v. Bebee Ulfat Fatima (1869) 13 MIA 232-4, BLR 1-13 WR 1(PC), that owing to the widespread and persistent practice which prevails amongst the natives of India , whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee and beneficial interest in the property granted or transferred as well as the usages which these natives have adopted and which has been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person, providing the purchase money, such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases,where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law of India, no presumption of an intended advancement as there is in England" In view of the above legal position, it is obvious that it was for the petitioner to prove that the purchase of the property in his name by his father was not benami and that he was the real and beneficial owner of the land in question. The judgments of the Courts below are therefore, unexceptionable and call for no interference. 11. In the last, the learned counsel for the petitioner contended that the lower Courts failed to discuss the evidence produced by the petitioner. The evidence led by the petitioner was to the effect that it was his mother, who had purchased the land in his name. However, as this plea was inconsistent with the case set up in the plaint, where it was asserted that the land had been purchased by the father in the name of his son, the Courts below were justified in discarding thai evidence. 12. As regards the cases cited by the learned counsel for the petitioner, suffice it to say that these precedents have no applicability. So far as the principles laid down therein, there cannot be any cavil but none of the cases applies to the facts of the present case. As a result, this petition has no force and is accordingly dismissed, leaving the parties to bear their own costs. B ' (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 306 PLJ 1992 Lahore 306 Present: MUIIAMMAD 1LYAS, J Mst. FATIMA BIBI-Petitioner versus MUHAMMAD SADIQ and 4 others-Respondents T.A. No. 275-C of 1992, dismissed on 13.5.1992 Civil Procedure Code, 1908 (Vofl 908)-- —S. 24--Two civil suits filed by petitioner at Chiniot-Transfer of~Prayer for~ Pelilioner is a married lady and her husband can prosecute suits on her behalf- -JShe can also engage a counsel at Chiniot to look after cases-At stage of evidence, if she does not want to go to Chiniot, she can get her statement recorded in Lahore or elsewhere on commission-Petitioner's earlier application for transfer of suits was dismissed for want of prosecution which shows that she is not keen for transfer of her cases-Petition dismissed [P.307]A S/i. frJialilur Rchman, Advocate for Petitioner. Date of hearing: 13.5.1092. judgment This is a petition for transfer of two suits filed by the petitioner, Mst. Fatima Bibi, at Chiniot, District Jhang. in respect of land situated in Tehsil Chiniot. She wants the suits to be transferred to Lahore. Her learned counsel submits that the petitioner is presently residing in Karachi and apprehends danger to her life in the event of her going to Chiniol to prosecute the suits. 2. There is no document showing that any attack was made on the petitioner when she had gone to Chiniot in connection with the said suits. Learned counsel informs me that the petitioner is a married lady. Her husband can, therefore, prosecute the suits on her behalf. It is not uncommon in our country that suits brought by the ladies are prosecuted by their relatives. Petitioner can also engage a counsel at Chiniot to look after the cases. At the stage of evidence if she does not want to go to Chiniot, she can get her statement recorded, in Lahore or elsewhere, on commission. Earlier, she made such a petition for transfer of the said suits but the same was dismissed for want of prosecution. This shows that she is not keen for the transfer of her cases. Keeping all these circumstances in view, I am not inclined to transfer the cases in question and dismiss this petition in liniinc. ;. (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 307 PLJ 1992 Lahore 307 [Multan Bench] Present: MUNIR A. SHEIKH, J MUHAMMAD SHARIF SHEIKH-Petitioner Versus DISTRICT HEALTH OFFICER, MULTAN and 4 others-Respondents Writ Petition No. 1485 of 1990, accepted on 17.3.1992 Fundamental Right- —Business of sale of drugs-Licence for-Condition to first qualify as pharmacist-Whether amounts to negation of fundamental right guaranteed under Article 18 of Constitution-Question of-Scope and nature of job of pharmacist is absolutely different from business or trade of mere sale of drugs- -Article 18 of Constitution guarantees right to a citizen to enter upon lawful trade or business—In name of regulating such trade or business by licence, a person cannot be wholly deprived of right to do business itself-Held: To require a person to obtain licence under Pharmacy Act for sale of drugs that he should qualify on examination prescribed for a pharmacist, would amount to negation of his fundamental right as guaranteed under Article 18 of Constitution-Petition accepted. [Pp.310&311]A,B,C&D Sardar Muhammad Latif Klian Kliosa, Advocate for Petitioner. Mr. Tassaduq Hussain Jillani, Addl. A.G. for Respodents 1 to 4. Mr. Muhammad Naveed Hussain, Advocate for Respondent No. 5. Date of hearing: 11.3.1992. judgment In this Constitutional petition the petitioner seeks a direction to the respondents to issue Drugs Sale Licences to the qualified Dispensers and thereby facilitate their lawful vocation in accordance with Article 18 of the Constitution. A declaration has also been sought to the effect that the over-laping provisions in the Pharmacy Act are of no legal consequence in the grant of Drugs Sale Licences to the Dispensers in accordance with the Druges Act, 1976 as regulated by the Punjab Drugs Act, 1988. 2. The facts forming the back ground of this writ petition are that the petitioner who claims to be the qualified Dispenser wants to obtain licence for selling drugs under the law regulating the sale etc. of drugs. Under the Drugs Act, 1940, rules were framed in which conditions were prescribed for the grant of licence for the sale of drugs. Under rule 65(15) of Drugs Rules, 1945 the following persons were qualified to obtain licence for the sale of drugs:- (a) to hold a decree or diploma in pharmacy or pharmaceutical chemistry, of an institution approved by the licensing authority; or (b) who is a-Member of the Pharmaceutical Society of Great Britain; or (c) has had not less than four years practical experience of dispensing which in the opinion of the licensing authority is adequate and has been approved by that authority as a qualified person. These Rules of 1945 were replaced by the Drugs Rules, 1958. Under rule 21 of these rules among others a person having not less than four years practical experience in dispensing who had been approved by the licensing authority as a qualified person was entitled to obtain licence for the sale of drugs. It is the case of the petitioner's association that under the said rule a qualified dispenser with four years practical experience had always been treated to be a qualified person as contemplated by this rule and had been granted licence for the sale C5f the drugs. Drugs Act, 1940 under which the said rules were framed was replaced by Act XXXI of 1976 known as Drugs Act, 1976 which came into foite w.e.f. 18.5.1976. Section 6 of this Act, provides that the Provincial Governments shall regulate sale of drugs in the prescribed manner and may for that purpose make such orders and issue such directions to the importers, manufacturers, stockists, retailers or other dealers of drugs, as they may deem fit. Under this Act, the Punjab Drugs Rules ' 1988 have been framed in exercise of powers conferred by Section 44 of the Act. Under rules 20 and 21 of these rules a person who is not registered under Section 24(l)(a)(b) of the Pharmacy Act (XI of 1967) has been debarred from obtaining licence for the sale of drugs meaning thereby that a person who is not registered as pharmacist under the said provision of the Pharmay Act, 1967 is debarred from entering upon a trade or business of sale of the drugs. 3. The qualified Dispensers who had been issued licence for the sale of drugs under Rules 1945 and 1958 having been now required to become a pharmacist under the Pharmacy Act, 1967 and get himself registered under the said Act, before obtaining licence' under the Drugs Act, for the sale of drugs have been rendered jobless. A declaration has been sought that these provisions in the Punjab Drugs Rules, 1988 be declared to be violative of fundamental right guaranteed by Article 18 of the Constitution and as such void. It has also been prayed that in order to obtain licence for the sale of drugs simplicitor by a person he should be relieved from the requirement of passing examination in the first instance under the Pharmacy Act, to become pharmacist and getting himself registered under the said Act, before entering upon the business and trade of sale of the drugs. 4. Under the Pharmacy Act, 1940 a certificate used to be issued to a person being dispenser after he had qualified dispensers course and completion of training of one year in a Government Hospital . After qualifying examination held by <iie Punjab Medical Faculty a person was enrolled as dispenser and issued certificate accordingly from which it is manifest that a qualified dispenser had sufficient basic knowledge to deal with the sale of the drugs and had been so treated under the law to undertake the business of the sales of drugs. The question which arises for consideration is whether Rule 20 of the Punjab Drugs Rules, 1988, which requires a person before entering upon business of the sale of drugs, to become a pharmacist and get himself registered is violative of fundamental right of trade and business guaranteed under Article 18 of the Constitution and the same constitutes an unreasonable restriction on the right of a person to enter upon lawful trade or business of the sale of drugs. The business of sale of drugs simplicitor does not in any manner involve the process of its manufacturing or its administration to a patient. A person who is to carry out business of sales of the drugs has to supply the drugs to the customers on the prescription by a Medical Practitioner. Under Pharmacy Act, 1967 an examination is to be held for the purpose of qualifying a person for registration as a pharmacist under the said Act. The course of study for the purposes of admission to the said approved examination is also to be approved. Under Section 25 thereof qualifications for registration as a pharmacist or as an apprentice in pharmacy have been prescribed, according to'which among other persons holding a degree in pharmacy or a diploma in pharmacy granted by an Institution recognised by the Central Council could be enrolled as pharmacist. For a period of five years an exception was made i.e., persons who were qualified persons within the meaning of Rule 65 of West Pakistan Drugs Act, 1958, were also eligible to be registered as pharmacist. Under the said Act, a person not below the age of seventeen years on the date fixed for examination could be an applicant for the admission to such examination prescribed for a pharmacist and a person who had not been registered as an apprentice in pharmacy for a period not less than two years can also not be an applicant for admission. Under Section 31 no person could practise as a pharmacist unless he was registered pharmacist under the said Act. It is clear from the"provisions of the Pharmacy Act, 1967 as amended from time to time and the rules framed thereunder that the scope and th^ nature of the -job of pharmacist is absolutely different from the business or trade of mere sales of the drugs. A person who wants to run business of sale of drugs simplicitor if is required to first qualify himself as pharmacist after going through the examination prescribed under the said Act, before which he is required to get himself registered as apprentice for two years, the same would certainly amount to be unreasonale restrictions placed on the right of such person to enter upon lawful business or trade. No doubt under Article 18 of the Constitution which guarantees right to a citizen to enter upon lawful trade or business it is provided that such trade or business can be regulated by a licence which cannot be construed to mean that in the name of regulating such trade or business an arbitrary power has been conferred on the authorities to prescribe such terms and conditions for issuance of licence to enter upon a trade or business that a person is wholly deprived of the right to do business itself. The criteria for prescribing terms and conditions for issuance of licence to regulate a trade or business should be such which has logical nexus with the object of the law. The Drugs Act, 1976 is an independent enactment and has been promulgated for a specified purpose of regulating the sales etc. of the drugs, therefore, to require a person to obtain licence under the said Act, for the sale of drugs that he should qualify an examination prescribed for a pharmacist would amount to negation of his I fundamental right as guaranteed under Article 18 of the Constitution. 6. I am satisfied that rule 20 of the Punjab Drugs Rules, 1988 requiring that the sale of drugs shall be supervised under licence by a person who is registered under Section 24(l)(a)(b) of the Pharmacy Act, 1967, is violative of fundamental (B right under Article 18 of the Constitution guaranteed to a citizen to enter upon any lawful profession or business being arbitrary and unreasonable restrictions on the said right and as such void. 7. Learned Addl. Advocate-General argued that Article 18 of the Constitution confers right on a citizen, therefore, writ petition could be maintained by a citizen i.e. a living person and not by the petitioner as an association. The argument has no force. The writ petition has been filed by Muhammad Sharif Sheikh in the representative capacity as Secretary General Dispensers Association Punjab which has been duly recognised by the. Punjab Government. This writ petition having been filed for the benefit of dispensers and the declaration having been sought for their benefit who are citizens, as such, the objection has no bearing upon the maintainability of the writ petition. 8. It was argued that under Article 18 of the Constitution qualifications can be prescribed for regulating a business or trade, therefore, if the Drugs Rules provided that 'a person should be qualified pharmacist for obtaining a licence for th'.: sale oi the drugs the same was permissible under the said Article. I do not find myself in agreement with this argument. Article 18 of the Constitution has guaranteed a right of entering upon any profession or to conduct any lawful trade oi business T!i; qualifications can be prescribed under this Article for carrying on a prolesM'n: Hich like medical profession and legal profession whereas the conduct ol an. business or trade can be regulated by licensing system under which conuitii.n.s can bo laid down to regulate the business for if for conducting a business or trade, qualifications are allowed to be prescribed, as can be prescribed with regard to carrying out of profession, the same would deprive many people from earning their livelihood. This is not the intention of Article 18. The argument is, therefore, repelled. 9. For the foregoing reasons this writ petition is accepted. Rule 20(2) of the Punjab Drugs Rules, 1988 is hereby declared to be violative of Article 18 of the Constitution and void. The authorities are directed to issue licence for the sale of drugs on the basis of the same criteria (as) was applicable under the previous Drugs Rules, 1945 and Drugs Rules, 1958 till such time similar provisions are made in the Punjab Drugs Rules, 1988. There will be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 312 PLJ 1992 Lahore 312 [Multan Bench] Present: MUNIRA. SHEIKH, J FALAK SHER--Petitioner versus MUHAlVtMAD MUMTAZ and two others-Respondents CiviJ Revision No. 129/D of 1992, dismissed on 4.3.1992 Punjab Pre-emption Act, 1991 (IX of 1991)-- —S. 35 read with Section 6-Pre-emption-Suit for-Dismissal of-Challenge to- -Under Section 6, right of pre-emption vests in a person who is Shaft Sharik, Shaft Khalit or Shaft Jar, but it is made exercisable only in case of Zaroorat or to avoid Zarar-lt is firmly settled law that pleadings are not evidence whereas pleas raised in pleadings are to be proved by producing evidence-Admittedly no evidence was produce'd that petitioner was exercising right of pre-emption in case of Zaroorat or to avoid Zarar--Held: Suit was rightly dismissed and courts below have not committed any material irregularity or illegality in exercise of jurisdiction vested in them under law—Petition dismissed. [Pp.313&314]A,B&C Mian M. Zafar Yasin, Advocate for Petitioner. Date of hearing: 4.3.1992 judgment • This revision petition has arisen from a pre-emption suit filed by the petitioner on 4.1.1989 claiming right of pre-emption on the following grounds:— (a) Shaft Sharik (b) Shaft Hialit (c) Shaft Jar The suit was contested. The same was dismissed by the learned trial Court inter alia on the ground that the petitioner failed to prove Talb-i-Muwathibat and Talb-i-Ishhad through judgment dated 15.6.1991. The petitioner feeling aggrieved filed appeal which has also been dismissed by the learned Addl: District Judge, Vehari, through judgment dated 11.1.1992. It has also been remarked by the learned lower appellate Court that the petitioner failed to produce any evidence that he was exercising right of pre-emption in case of 'Zaroort' or to avoid 'Zarar'. 2. Learned counsel for the petitioner argued that (on) the date on which the suit was filed no law of pre-emption was in force, therefore, this case was covered by Section 35 of the Punjab Pre-emption Act, 1991 because the same was filed after 1.8.1986 and before coming into force of the said Act. He maintained that in such a suit the<pre-emptor was only to prove that right of pre-emption had been claimed as is available under this Act and nothing more, therefore, on the proof of the fact that the petitioner was Sliafi Sharik, Shaft KJtalit and Shaft Jar he should have been granted decree. As on the proof of these qualifications he shall be deemed to have claimed right of pre-emption as available under the Act and in such a suit he was not required to prove fulfilment of requirements of Talabs, Zaroorat and Zarar which a plaintiff will have to prove in a suit filed after coming into force of Punjab Pre-emption Act, 1991. 3. Since reliance has been placed on Section 35 of Punjab Pre-emption Act, 1991, it would be beneficial to reproduce the said Section % which is as under, for facility of reference: - "Sec. 35(1). Notwithstanding anything in any other law for the time being in force, all decrees, judgments or orders dismissing the suits of pre­emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre­ emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act shall subject to sub­ section (2), be decided afresh according to the provisions thereof. (2) Notwithstanding anything in Section 13 and 30, 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." 4 Under section 6 right of pre-emption vests in a person who is Shaft Shank. Shaft KJialit and Shaft Jar but under sub-secti ,1 (2) notwithstanding the fulfilment of these qualifications the right of pre-emption is made exercisable only in case of Zaroorat or to avoid Zarar. Since the right of pre-emption by a plaintiff on any of the grounds mentioned in Section 6(1) of the Act, is exercisable only in case of Zaroorat or to avoid Zarar, therefore, it cannot be held that the right of pre-emption is available to him in case he fails to prove Zaroorat and that the same was being exercised to avoid Zarar. Sub-section (2) of Section 35 provides that in such a suit notwithstanding anything contained in Section 13 the plaintiff is required to prove Talb-i-Jshhad only and he has been relieved from the burden of proving Talb-i-Muwathibal. This is indicative of the fact that but for sub-section (2) the plaintiff was required to comply with the provisions of the said Section. If the intention of the legislature was to relieve the petitioner from the burden of proving that he was exercising right,of pre-emption in case of Zaroorat or to avoid Zarar as envisaged by sub-section (2) of Section 6 a similar provision would have been enacted in Section 35 of the Act. The two Courts below have correctly held that the petitioner was required to establish through evidence that he was exercising the right of pre-emption in case of Zaroorat or to avoid Zarar in the present suit. 5. Learned counsel for the petitioner argued that in the plaint a plea was raised that the right of pre-emption was being exercised by the petitioner in case of Zaroorat and to avoid Zarar. It is firmly settled law that the pleadings are not the evidence whereas the pleas raised in the pleadings are to be proved by producing evidence. In this case admittedly no evidence was produced that the petitioner was exercising the right of pre-emption in case of Zaroorat or to avoid Zarar, therefore, the suit was rightly dismissed on that score. 6. Learned counsel for the petitioner argued that the finding of the two Courts below that the petitioner was also required to prove Talb-i-Muwathibat suffers from illegality. The argument has force. Sub-section (2) of Section 35 of the Punjab Pre-emption Act, has relieved the petitioner in such a suit to prove Talb-i-Muwathibat but nothing turns on this as the suit of the petitioner has been held to be liable to be dismissed due to absence of proof that right of pre-emption was being exercised in case of Zaroorat or to avoid Zarar. 7. Learned counsel for the petitioner argued that the Federal Shariat Court has declared the provision of sub-section (2) of Section 6 of Punjab Pre-emption Act, 1991 as repugnant to the Injunctions of Islam w.e.f 31.12.1991 from which date it ceased to be the law. The suit was filed by the petitioner on 4.1.1989. The learned trial Court passed the judgment dismissing the petitioner's suit on 15.6.1991, therefore, on this date the said provision was in force as the law. It is well settled law that the plaintiff has to establish that he had a right of pre­ emption enforceable on the date of sale, the date of institution of the suit and also the date of passing the final judgment by the learned trial Court. On the date of passing the judgment sub-section (2) of Section 6 was in force as the law, therefore, the subsequent declaration by the Federal Shariat Court about sub­ section (2) of Section 6 being repugnant to the Injunctions of Islam w.e.f. 31.12.1991 does not help the petitioner. 8. The two Courts below have not committed any material irregularity and illegality in exercise of jurisdiction vested in them under the law. The revision petition has no force which is hereby dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 314 PLJ 1992 Lahore 314 Present: IRSIIAD hassan khan, J MUHAMMAD AMIN and 7 others-Petitioners versus MEMBER (CONSOLIDATION), BOARD OF REVENUE, PUNJAB and 3 others-Respondents Writ Petition No. 1652 of 1991, accepted on 25.5.1992 Review- —Consolidation Scheme--Confirmation of--Acceptance of appeal by Additional Commissioner and amendments made therein-Second appeal and revision rejected by Commissioner and Member, Board of Revenue-Review petition accepted by Member, Board of Revenue-Challenge to-Power of review under Section 8 of Board of Revenue Act, 1957 being limited, Member Board of Revenue was not competent to set aside order passed by his predecessor- Neither there was any discovery of new and important matter or evidence nor order passed by Member suffered from any mistake or error apparent on face of record-Grounds on which review was sought, related to merits of case and same could not be permitted to be re-opened in exercise of power under Section 8 of Act—Held: Impugned order (of review) is without lawful authority and of no legal effect-Petition accepted. [Pp.320&321]A,B&C AIR 1922 P.C. 112, PLD 1962 SC 335,1981 Law Notes (SC) 296, PLJ 1979 Karachi 115, PLD 1979 SC 741 & 1991 SCMR 2307 discussed. Ch. Nazar Hussain, Advocate for Petitioners. Mr. I/fan Qadir, Addl.A.G. for Respondent No.l. Mr. M. Hanif fOiatana, Advocate for Respondents 2 to 4. Date of hearing: 25.5.1992. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order dated 26.2.1991 passed by learned Member (Consolidation), Board of Revenue, in Review Petition No.104/90, whereby he reviewed the order passed by his predecessor on 28.8.1990 By upholding the order of the Consolidation Officer dated 13.6.1985. 2. Briefly the facts are that consolidation scheme of the revenue estate of Walipur, Tehsil Shakar Garh, District Sialkot, was confirmed by the Consolidation Officer on 13.6.1985 under Section 10(3) of the Consolidation of Holdings Ordinance, 1960, hereinafter called the Ordinance, whereby khatas of the petitioners were confirmed in Scheme No.78 and that of respondents No.2 to 4 in Scheme No.l. Being aggrieved with the aforesaid order, the petitioners filed an appeal dated 24.5.1987 before the Additional Deputy Commissioner (Consolidation), District Sialkot Camp Shakar Garh. This appeal was accepted by his order dated 31.1.1989 after hearing the parties and perusing the material available before him. In consequence thereof, relevant amendments were made in the respective khatas of the parties. Respondents No.2 to 4 filed second appeal against the aforesaid order before the Additional Commissioner (Consolidation), Gujranwala Division, Gujranwala , but the same was rejected by order dated 18.9.1989. The revision petition filed by respondents No.2 to 4 also met the same fate as it was rejected by Mr. Hafizullah Ishaq, the then learned Member (Consolidation), Board of Revenue, after re-appreciating the evidence on record and providing an adequate opportunity of being heard to the parties by order dated 28.8.1990. 3. Feeling still not satisfied, respondents No.2 to 4 filed a review petition under Section 8 of the West Pakistan Board of Revenue Act, 1957, hereinafter called the Act, against the said order on the following grounds:-- (1) that the appeal filed by the petitioners against the order of the •Consolidation Officer was time barred; (2) that'the Collector vide order dated 31.8.1989 condoned the delay through a non-speaking order; (3) that the limitation was condoned without providing opportunity to the respondents herein to explain their view point; (4) that the finding recorded by the Collector regarding service on respondents No.2 to 4 herein was against ^acts; (5) that the courts below were not aware o f the correct Sharia Law on the subject and that the findings of facts were not correct; that the order for proclamation was invalid and was based on mis­ application or non-application of law; (6) that the basic order of the Collector dated 31.1.1989 was unlawful and, therefore, the subsequent proceedings are also bad; (7) that the respondents No.2 and 3 are facing great difficulties in cultivating their lands as a result of amendments made in the respective khatas of the parties; (8) that the persons whose areas were given to respondents No.2 to 4 had not filed any appeal against them; and (10) that the courts below ignored certain admissions made in the pleadings of the parties. 4. The learned Member Board of Revenue reviewed the order passed by his predecessor on the grounds stated in .paragraphs No.4 and 5 of the Impugned order, which read thus:— "4. Fact remains that the appeal of the respondents was time barred by about two years. No proper explanation was given in his Court for the condonation of the said miserable delay. Each and every day's delay should have been explained as held in 1973 SCMR 304. As a result of consolidation operations the parties were adjusted rightly. Pre- , consolidation period the petitioners held their land in 23 plots and during the consolidation operations they were accommodated in two plots but as a result of the amendments framed by the Collector (Cons) they were given land in six plots. Similarly the respondents' pre-consolidation plots were 8 which were reduced to three plots as a result of consolidation operations, as well as in amendments. As a result of these amendments the plots were divided and increased from 2 to 6 which cannot be conveniently irrigated. Reduction of plots means the real follow up of the consolidation operations and any order directing increase of number of plots with either of two sides would rather be considered as harsh and unfair and against the spirit of consolidation operations. It is also strange that simply on the basis of concurrent findings of two courts below my learned predecessor announced the order now before me. No doubt he was fortified by two orders of the lower courts but question remained that basis fortification in the order of the Collector (Cons) was not strong enough for the learned Additional Commissioner (Cons) or for my learned predecessor to bank upon. Any order unnecessarily increasing number of plots would always be considered as unfair. To this Court no improvement appears to have been done over and above the basic consolidation scheme. What was wrong with the basic scheme has not been' convincingly brought out by all the three courts (i.e. Member (Cons), Additional Commissioner (Cons) and Collector, (Cons) and that confusion is required to be removed. 5. This Court has therefore, good reasons to sustain the basic consolidation scheme dated 13.6.1985 as confirmed by the Consolidation Officer between the petitioner and the respondents. Accordingly the order of my learned predecessor dated 28.8.1990 is hereby recalled. The review petition is accepted with the result (that) the orders of two courts below i.e. order dated IS.7.1989 of the learned Additional Commissioner (Cons) and 31.1.1989 of Collector (Cons) respectively would be considered as having been interfered with and set aside between the two parties i.e. petitioners and the respondents". 5. Ch. Nazar Hussain, learned counsel for the petitioners, argued that the review petition under Section 8 of the Act was not competent, in that, there was no mistake or error apparent on the face of the record or any other sufficient reason warranting review. 6. Mr. M. Hanif Khatana, learned counsel for respondents No.2 to 4 argued that there was an error on the face of the record, inasmuch as, not a single marla t)f land of the present petitioner was given to respondents No.2 to 4 during the confirmation of the Scheme. To this extent the scheme in respect of respondents No.2 to 4 herein could not have been disturbed. Besides, no court right from the Additional Deputy Commissioner upto the Member, Board of Revenue, had given detailed reasons while dealing with the question of limitation in filing the appeal by the petitioners and affecting of service on respondents No.2 and 3 herein before the Additional Deputy Commissioner. The contention is devoid of any force. The learned Member, Board of Revenue, in his order dated 28.8.1990 took notice with particularity of the plea raised by the aforesaH respondents that they were neither served personally nor any notice was published in the newspapers. This plea was rejected by the learned Member, Board of Revenue with the observation "the grounds for condonation of delay had been given by the Collector (Consolidation) and a notice was also published in the newspaper". It would, therefore, be seen that the grounds on which the aforesaid respondents sought review of the order of the learned Member, Board of Revenue, related to the merits of the case and did not fall within the scope of review as envisaged by Section 8 of the Act which reads thus:— "8. Review of orders by the Board.— (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, on account of some mistake or error apparent on the face of the record or for other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require. (2) Every application for review of a decree or order under sub-section (1) shall be made within ninety days from the date of that decree or order". 7. The provisions of Section 8 of the Act are somewhat analogous to the provisions of review contained in Order XLVII, Rule l(c) CPC which reads thus:- "(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order". 8. The scope of review as envisaged by Order XLVII, Rule 1 CPC came up for consideration in Chhajju Ram . Neki and others (AIR 1922 P.C. 112), wherein inter-alia the following observations were made:- "For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or "any other sufficient reasons". "the expression "sufficient" if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified that is to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record". "Rule 1 of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously". Also refer Muhammad Amir Klian v. Tlie Controller of Estate Duty, Government of Pakistan , Karachi , and others (PLD 1962 S.C. 335). The following passage at page 354 on the question of review reads thus:- "No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction....It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie". 9. The scope of review as interpreted in the case of Chhajju Ram (supra) and Muhammad Amir Klian (supra) was quoted with approval by the Supreme Court in the case of Muhammad Ashrafv. Dost Muhammad etc (1981 Law Notes (S.C) 296. 10. The scope of review under Section 8 of the Act also came up for consideration in the case of Naseem Ahmed KJiaral v. Board of Revenue, Sindh (PLJ 1979 Karachi 115), the relevant page 117 reads thus:- "The language of Section 8 bears a close resemblance to the language used in the Code of Civil Procedure in so far as occasions making the remedy of review available are concerned. The only difference is that in 1964, Section 8 of the West Pakistan Board of Revenue Act was amended so as to make the remedy by way of review available in cases where sufficient reason may be exhibited for review. The words "for any other sufficient reason' follow the words which lay down the grounds for interference in review. These words have to be read ajusdem generis with the words preceding them. It is not every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of record". In ZulfiqarAli Bhutto v. Tlie Slate (PLD 1979 SC 741) with reference to scope of "review", the following observations were made:- "However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review". 10. The case of Zulfiqar All Bhutto (supra) has no application to the controversy raised herein, in that, the learned Member, Board of Revenue was fully alive of all the points raised before him. After Conscious application of his mind he recorded a finding on the entitlement of the parties in tht : .ght of the pleas raised before him. It was within his knowledge that delay in filing the appeal was condoned by the appellate authority and, therefore, this question could not be reagitated on merits in the garb of review under Section 8 of the Act. Same is the position regarding the plea raised as to validity of service on the contesting respondents. Refer Rlaz Hussain and others v. Board of Revenue and others (1991 SCMR 2307). In the precedent case, the learned Judges of the Supreme Court, after exhaustive examination of their previous judgments, reiterated that the provisions of Section 8(1) of the Act were substantially the same as in Order XL, II, Rule 1 CPC and Section 8 of the Act does not permit Revenue Board to re-Hear the matter on merits. The relevant portion reads thus:— "Section 8(1) of the Act is substantially the same as Order XLVII, CPC. It is well-settled principle that no Court or authority possesses any inherent jurisdiction to review its decree or order. Such power can be exercised where it has been expressly conferred by statute. Reference can be made to Muzaffar All v. Muhammad Shafi PLD 1981 SC 94, Hussain Bukhsh v. Settl. Commissioner Rawalpindi and others PLD 1970 SC 65 and Brig. H.H. Nawab Muhammad Abbas KJian Abbasi v. Tlie Government of Pakistan and others PLD 1984 SC 67. The power to review can be exercised where there is mistake or error of law or fact apparent on the face of the record. To find out such error one has not to scrutinize the record or evidence but it should be self-evident from a perusal of the record itself and can be pinpointed without elaborate examination. Inconsequential or insignificant errors which do not go to the root of the matter are to be ignored but if error has material bearing on the final result of the case it can be made a ground for review. Scope of review is completely different from appeal. The review proceeds on the basis of error apparent on the record whereas in appeal all questions of fact and law are considered by the appellate Court". i 11. Clearly the power to review under Section 8 of the Act being limited, the [learned Member, Board of Revenue, was not competent to set aside the order 1992 muhammad amin v. MrMBER (cons), board of revenue Lah. 321 (Irshad Hassan KJian, f) passed by his predecessor and substituting it by sustaining the basic consolidation scheme dated 13.6.1985 as confirmed by the Consolidation Officer between the contesting parties, inasmuch as, there has neither been discovery of new and important matter or evidence which, after the exercise of due deligence, was not within the respondents' knowledge or could not be produced at the time when the order was passed by Mr. Hafi/ullah Ishaq, the then learned Member, Board of Revenue, nor the order passed by the latter suffered from any mistake or error apparent on the face of the record nor there were any sufficient reason warranting review within the ambit of Section 8 of the Act. 12. The grounds on which the private respondents sought review related to I the merits of the case and the same could not be permitted to be re-opened by the to learned Member, Board of Revenue, in the purported exercise of his power under | Section 8 of the Act. C In view of the above, the impugned order of the learned Member, Board of Revenue, dated 26.2.1991 is hereby declared as without lawful authority and of no legal effect. Any action or proceeding taken in pursuance thereof is without lawful authority and of no legal effect. The result is that the order dated 28.8.1990 of the learned Member. Board of Revenue shall hold the field with all consequential benefits. The writ petition is accepted with costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 321 PLJ 1992 Lahore 321 Present: MALIK MUHAMMAD QAYYUM, J TAUQEER AKHTAR MALIK and 2 others-Petitioners versus UNIVERSITY OF PUNJAB and 2 others-Respondents Writ Petition No.2106 of 1992, accepted on 1.6.1992 Educational Institutions-- —-M.Sc. (Mathematics) Part II-Examination of-Boycott of examination- Prayer for permission to re-appear in examination by petitioners-Refusal of~ Challenge to—It was categorically stated by petitioners in their application that despite their protest, they were forced to leave examination centre on account of law and order situation created by other students—Their application was recommended by Principal and also bears certificate of Centre Superintendent that facts stated therein were correct-It is not denied that in similar matters, respondents have been holding special examination to allow students to re­ appear but in this case, they departed from this practice in interest of discipline-Held: It is well settled that even in discretionary matters, action taken must be reasonable-Petition accepted. [Pp.323&324]A,B,C&D PLJ 1986 SC 355, PLJ 1992 Lahore 187, PLJ 1990 SC 543, PLD 1991 SC 14 and PLD1991 SC 35/ Mr. Iqbal Hameedur Rehman, Advocate for Petitioners. Ch. Muhammad Farooq and Mr. Shahid Saeed, Advocates for Respondents. Date of hearing: 1.6.1992. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by Tauqecr Akhtar Malik, Muhammad Mubashir Rabbani and Afzal Mahmood, who are students of M.Sc. (Mathematics) Part II of Government Farman Christian College, Lahore. They appeared in the 1st Annual Examination held by the University of the Punjab in M.Sc. Mathematical Statistics Part II in Centre No.5 in Punjab University, Physics Department, on 29th of October, 1991. It appears that some of the students undertaking the examination started raising certain objections and slogans and staged a walk-out. According to the case of the petitioners, though they had refused to walk-out or to boycott the paper but they were forced to do so by the other candidates under the threat of bodily harm. 2. It appears that the petitioners brought these facts to the notice of the University of the Punjab by filing an application which was duly recommended by the Centre Superintendent and forwarded for sympathetic consideration by the Principal, Government F.C. College, Lahore to the Vice Chancellor, University of the Punjab, Lahore, and requested that they be re-examined in the paper as has been done in many other cases. As the petitioners did not receive any reply from the Vice Chancellor, they have filed this constitutional petition, inter alia, with the following prayer:-- "(a) Thar respondents shall.act in accordance with law and their conventional practice to accept [he request of the petitioners for holding of reexamination in Mathematics Statistics Paper II First Annual 1990. (h) That the respondents should consider the petitioners as regular students and consider re-examination so that the petitioners may not incur any loss, the result of the said paper be not declared in order that the petitioners be on equal footing with the other candidates of the same year i.e. 1st Annual 1990". 3. The learned counsel for the petitioners in support of this petition has contended that the petitioners for no fault of their were not allowed examination of the paper in question on account of the law and order situation created by the other students and the petitioners cannot be made to suffer for the same. It is emphasized that it was the responsibility of the respondents to ensure by making suitable arrangements that examinations are conducted in an orderly and disciplined manner but on account of the failure of the respondents to ensure maintenance of law and order, the petitioners cannot be made to suffer. The learned counsel has referred to three notifications issued by the respondents, copies whereof have been annexed to this petition as annexures 'B', 'C' and 'D' to show that in similar matters, ihe respondents (?) and on refusal to do so, the petitioners are being unfairly discriminated against. 4. Chaudhry Muhammad Farooq, the learned legal advisor of the Punjab University, has very frankly conceded that in view of the facts and circumstances of the case, he had recommended to the university of the Punjab that the petitioners should be re-examined as they had been deprived of their right to take the examination for no fault of theirs but on the recommendation of the Board of Studies, the Vice Chancellor has refused this request of the petitioners in the interest of discipline. 5. There is no dispute as regards the factual aspect. In the application filed by the petitioners, copy of which has been placed on record as Annexure 'A', it was categorically stated by the petitioners that despite their protest, they were forced to leave the examination centre on account of the law and order situation created by the other students, who had forcibly snatched the answer books from them. This application was not only recommended by the Principal of Government F.C. College. Lahore, but also bears a certificate by the Centre Superintendent to the effect that the facts stated in the application were correct. Thai being so. it stands established on the record and is not even disputed by the learned counsel for the respondents that the petitioners were neither party to the boycott nor to the walk-out but on the other hand had tried their best to resist it but were prevented by force from doing so. On no rational principle can, therefore, the petitioners be penali/ed. 6. There is also considerable merit in the contention of the learned counsel for the petitioners that the petitioners are being unfairly discriminated against. It is not denied by the learned counsel for the respondents that in similar matters the respondents have been holding special examination to allow the students to re­ appear. This fact is even otherwise borne out from the notifications dated 26th of January, 1992, 29th of February. 1992, and 27th of February, 1992, copies of which have been annexed to this petition as annexures 'B', 'C' and 'D' respectively. In the present case no reason for departing from this practice has been given except that the request was refused in the interest of discipline. It is not the case of the respondents that the petitioners have been guilty of or have committed any act of indiscipline. On the other hand, the contents of the application filed by them before the Vice-Chancellor, which contains an averment to the effect that the petitioners resisted the call for boycott and wanted to take examination but were prevented from doing so by other students have been certified to be correct by the Centre Superintendent. It is, therefore, not understandable as to how the interest of discipline would suffer if the petitioners are allowed to re-appear in the paper in question. Although to maintain discipline in an educational institution is of highest priority and importance but the rights of those who arc, in no way, responsible for any indiscipline cannot be sacrificed at the altar of expediency. 7. It is well settled that even in discretionary matter, the action taken must fulfil the rest of reasonableness. If any authority is needed, reference may be made to Federation of Pakistan and others v. Ch. Muhammad Aslam and others (PLJ 1086 SC 355) and the judgment of this Court in Rai Mazhar fqbal and another v. Tlie University of the Punjab, Lahore through Vice-Chancellor and 2 others (PLJ 1992 Lahore 187). Although it was discretionary with the respondents to hold or not to hold the examination but that discretion has to be exercised in a fair, just, proper and rational manner. The observations of the Supreme Court in Aman Ullah Klian and others v. Tlie Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLJ 1990 SC 543), Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14) and Muhammad Iqbal Kliokhar and 3 others v. Government of the Punjab through the Secretary to Government of the Punjab, Lahore and two others (PLD 1991 SC 35) are instructive. It may be appreciated that on account of the refusal of the respondents to the petitioners to re-appear in the examination, the future career of the petitioners may be seriously prejudiced and jeopardised. As a result of what has been stated above, this petition is allowed with no order as to costs and the respondents are directed to re-examine the petitioners in the paper in question. (MBC) (Approved for reporting) Petition accepted.

PU 1992 Lahore 324 PU 1992 Lahore 324 Present: M.M.TK. MUIIAMMAD QAYYUM, J NASEEM RIAZ-Petitioner versus CHAIRMAN, BOARD OF TECHNICAL EDUCATION, LAHORE and 2 others-Respondents Writ Petition No.1486 of 1992, accepted on 18.5.1992 Educational Institutions-- —-Examination for Diploma of Associate Engineers-Refusal to declare result of petitioner-Challenge to-According to rules, petitioner could not have sent his admission form nor deposited examination fee directly with respondent No.1--Only obligation cast upon petitioner was that he should have submitted his admission form and deposited examination fee with institution wherein he was studying—Both these conditions were fully met with—Held: Petitioner cannot be made to suffer for any lapse on part of institution-Petition accepted. [P.326]A,B&C Mr. Noor Muhammad Sheikh, Advocate for Petitioner. Rana Muhammad Arshad, Addl. A.G. for Respondents. Date of hearing: 18.5.1992. judgment Naseem Riaz, petitioner herein, is a student of Government College of Technology, Samanabad, Faisalabad . By the Notification dated 4.9.1991, the annual examination for Diploma of Associate Engineers, 1991 was scheduled to be held with effect from 26th September, 1991. The last date for submission of admission form and payment of examination fee alongwith late fee was fixed as 15th September, 1991. The candidates were required to send their forms through the institutions where they were studying. 2. The petitioner submiltcd his admission form to the Principal Government College of Technology, Samanabad, Faisalabad and also deposited the requisite examination fee well within time. However, as he did not receive the roll number, he made a representation on which he was permitted by Principal to take the examination. As the result of the petitioner was not being announced, he has come to this Court by filing this constitutional petition for issuance of a direction to the respondents to declare his result. 3. The petition has been resisted by respondents Nos. 1 and 2 who have stated in their report and para-wise comments that as the admission form of the petitioner was not received from the Principal before 15th September, 1991, the last date fixed for submission of forms, the petitioner could not have appeared in the examination but he did so without permission of the Board, which is not obliged to declare his result. 4. The learned counsel for the petitioner has contended that according to the rules applicable, the petitioner was required to submit his form through his college and to deposit the fee with it which he did before the due date and if the forms of the petitioner had not been forwarded by the Principal he cannot be penalised for the lapse. 5. The learned Additional Advocate General, however, relied upon Rule 2 of the Rules framed by the Punjab Board of Technical Education vide notification dated 30th January, 1989 to contend that as the admission form of the petitioner was not received by the Board before the prescribed date, the petitioner was not eligible to appear in the examination. 6. Rule 2 of the Rules framed by the Board of Technical Education vide Notification dated 30th January, 1989 on which reliance has been placed by the learned Additional Advocate General reads as under:-- 2. To be eligible to appear in the Diploma of Associate Engineer Examination, a candidate:— (a) must have been enrolled in a recognized affiliated institution; (£») must have paid the prescribed registration fee to the Board by such dates as fixed by the Board; (c) must have submitted his admission form and the prescribed fee for examination through the Head of his Institution by such dates as may be fixed by the Board; (d) must have been registered with the Board; (e) must have fulfilled the requirements of attendance Rules; (/) must have satisfied the Principal of the Institution where he is enrolled of his good conduct; (g) must have satisfied the Principal of the Institution where he is enrolled about his satisfactory progress in the prescribed courses of study and satisfactory performance at the Internal Tests and Examination. 7. It is an admitted position that according to the above Rules the petitioner could not have sent his admission form nor deposited the examination fee directly with the respondent. On the other hand the rules insist that the admission form must be submitted through the head of the institution concerned. It is also to be seen that in the public notice dated 4th September, 1991 whereby the schedule for examination was announced, it was specifically provided that the institutions instead of sending the fee for cuch individual student, should remit the same in lumpsum for all the students. 8. It follows from the above that only obligation cast upon the petitioner was that he should have submitted his admission form and deposited the examination fee within time with the institution in which he was studying. Both these B conditions were admittedly fully met with. That being so the petitioner cannot be made to suffer for any lapse on the part of the institution which was acting as an agent of the respondents. 9. It is to be noted that the institution, in which the petitioner is studying, is being run by Government itself under the Control of Board of Technical Education, Allama Iqbal Town , Lahore . In this view of the matter also, it is obvious that the Principal was acting on behalf of the Board while receiving fee and the examination forms. It would, therefore, be highly inequitable to hold that the petitioner could not have taken the examination as his form had not been forwarded by respondent No.3. In view of what has been stated above, the petition is allowed and respondents are directed to declare the result of the petitioner forthwith. No order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 327 PLJ 1992 Lahore 327 Present: MlAN NAZIRAKHTAR, J GOVERNMENT OF PUNJAB, THROUGH SECRETARY, HOUSING & PHYSICAL PLANNING DEPARTMENT and 3 others-Petitioners versus SAIFUR REHMAN-Respondent Civil Revision No.986 of 1989, dismissed on 16.3.1992 Civil Procedure Code, 1908 (V of 1908)-- —-O.XVII R.3-Evidence-CIosure of~Challenge to-PIaintiffs land was never acquired by petitioner but it was occupied illegally alongwith land actually acquired—Petitioners were allowed several opportunities to produce evidence but they failed to avail same--Argument that Court a- ;>ound to decide suit on same day when petitioners' evidence was closed, hj-. • ),«ierit~After closing evidence, case could be decided within a reasonable time-Held: Court was fully justified to close petitioners' evidence and had rightly exercised discretion against petitioners. [P.329JA PLD 1971 SC 434 rel. Mr. Muhammad Iqbal, Advocate for Petitioners. Ch. AkhtarAli, Advocate for Respondent. Date of hearing: 16.3.1992. judgment This revision petition arises out of a suit for possession and mandatory injunction filed by the respondent on 21.12.1985 in the Civil Court, Lahore. The respondent claimed that the disputed property did not form part of the property acquired by the Government. Hence it had no right to obtain possession of the same. 2. The petitioner resisted the suit and on the pleadings of the parties the trial Court framed the following issucs:- 1. Whether the plaintiff is entitled to the possession of the suit property? OPP 2. If possession of suit property is not delivered to the plaintiff then whether the plaintiff is entitled to a decree for alternative land measuring 10 marlas 180 Sq.ft.? OPP 3. Whether the suit is pro-mature? If so its effect? 4. Whether this Court has no jurisdiction to try the suit? OPD 5. Whether the suit is hit by Sections 42 & 56 of the Specific Relief Act? OPD 6. Whether the plaintiff has no cause of action and locus stand! to bring the suit? OPD 7. Whether the suit land stands acquired for Rehmanpura Colony by the then Land Acquiring Authority, i.e. Land Acquisition Collector Highway, OPD. 3. After recording evidence of the parties, the trial Court decided issues No.l, 2 and 7 in favour of the respondent. Issues No.3 to 6 were decided against the petitioner/defendant. Resultantly, the suit was decreed by the trial Court vide the judgment and decree dated 28.11.1987. The petitioner's appeal was dismissed by the learned Additional District Judge, Lahore vide the judgment and decree dated 21.12.1988. The petitioner's learned counsel contends that the petitioner's evidence was illegally closed on 17.10.1987 under the provision of Order 17 Rule 3 of the C.P.C. He submits that despite the petitioner's failure to produce evidence the Court had the discretion to allow further opportunity to the petitioner to produce evidence. He adds that there was no urgency and discretion should have been exercised in favour of the petitioner. He places reliance on the cases of NWTP Province through Collector, Dera Ismail Klian and 2 others v. Dr. Inayatiillah Klian and 2 others, 1990 CLC 1293 and Mst. Zainab Bibi alias Jania v. KJmda Bakhsh and another, 1986 CLC 1074. He further submits that petitioner had constituted a committee which came to a positive conclusion that the disputed Khasra No. 6698 was included in the land acquired by the Government. He adds that the suit was illegally instituted during the pendency of the inquiry proceedings. 4. On the other hand learned counsel for the respondent submits that the respondent's evidence was closed on 25.1.1987 and the next date was fixed for recording evidence of the petitioner. On 25.2.1987 the petitioner's evidence was not available and an adjournment was sought. Subsequently, the case was adjourned for 9.3.1987. Again the petitioner's evidence was not available and an adjournment was prayed for. The case was adjourned for 8.4.1987. On 8.4.1987, the Presiding Officer was on leave and the case was adjourned for 20.4.1987. On the said date the petitioner filed an application under Order 7 Rule 11 of the CPC for rejecting plaint on the ground that the respondent had no cause of action. The case was adjourned for 4.5.1987. On that date the application was dismissed and the case was fixed for 13.6.1987 for the petitioner's evidence. On that date the Presiding Officer was again on leave and the case was adjourned for 8.7.1987 for recording the petitioner's evidence. On the adjourned date the petitioner's evidence was not available and on the petitioner's request the case was adjourned for 17.10.1987 subject to payment of Rs.50/- as cost. It was noted in the order that no further adjournment would be granted. On that date the petitioner's evidence was not available whereupon the Court closed the evidence under the provision of Order 17 Rule 3 of the C.P.C. Thus, several opportunities were given to the petitioner to produce evidence but he did not avail of the same. Thereafter, the matter was adjourned for 22.11.1987. On that date, the petitioner's request for adjournment was turned down and after hearing the arguments, the matter was decided. He further submits that the Court was not bound to decide the matter on the same day when the petitioner's evidence was closed under Order 17 Rule 3 of the CPC. In this connection he places reliance on the case of Maulvi Abdul Aziz KJian v. Mst. Shah Jchan Begum ami others, PLD 1971 SC 434 and Mian Ghulam AH v. All Nawaz Klian [1981 Law Notes (Lahore) 507]. He submits that from the year 1982 upto 1985 the respondent has been approaching the petitioner for delivering possession of the disputed property to him but after having failed to get redress he was constrained to institute the suit. Referring to the letters Ex.P.9, Ex.P.ll, Ex.P.12 and Ex.P.13 written by the Land Acquisition Collector, he submits that the Collector had himself written that the respondent's land was occupied by the petitioner without acquisition and that he may be provided alternate land. 5. There is considerable force in the arguments raised by the respondent's learned counsel. After perusing the material on the record, the Courts below have come to the conclusion that the plaintiffs land was never acquired by the petitioner/Government but it was occupied illegally along with the land actually acquired. The letters wrillcn by the Land Acquisition Collector, (Ex.P.9 and Ex.P.ll to 13) support the respondent's contention that his land was occupied without acquisition. That is why ihc Collector had written to the Government to provide alternate land to the respondent. The petitioner's learned counsel has not been able to point out any material irregularity on the part of the Courts below or misreading or non-reading of evidence to justify interference in the concurrent findings of the courts below on issues No.l, 2 and 7. The argument that the Court was bound to decide the suit on the same day when the petitioner's evidence was closed has no merit in view of the clear pronouncement of the Hon'ble Supreme Court in the case of Maithi Abdul Aziz fOian v. Mst. Shah Jahan Begiun and 2 others (PLD 1971 Supreme Court 434). After closing the evidence the case could be decided within a reasonable time. The evidence in the present case was closed on 17.10.1987, the arguments were heard on 22.11.1987 and the matter was finally decided on 28.11.1987. The petitioner was allowed several opportunities to produce evidence but he failed to avail of the same. The petitioner was granted last opportunity for the said purpose but on the adjourned date i.e. 17.10.1987, again evidence was not produced. Under these circumstances, the Court was fully justified to close the petitioner's evidence and had rightly exercised the discretion against him. 6. Resultantly, the revision petition fails and is dismissed leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 330 PLJ 1992 Lahore 330 Present: manzoor hussain sial, J Mr. P.N. BOGA, deceased, through his L,Rs and another-Peiitioners versus ABDUR REHMAN KHAWAJA and 2 others-Respondents Writ Petition No.11694 of 1991 (also W.P. Nos. 3715 and 3957 of 1992) decided on 1.6.1992. Execution Pr&«;eedmgs- —Ejectment order- Execution of-Warrant of possession after dismissal of writ petition—Possession stood delivered before order of suspension of execution of High Court's order was passed-Police Officer who accompanied bailiff, acted in performance of his official duty and cannot be deemed to hav acted nialafidely-S'imilarly Police Officers who subsequently took control of premises, although misconstrued order of High Court, yet it appears that they also acted bonafidely to have status quo order implemented—Held: Execution proceedings initiated after dismissal of appeal and Constitutional petition, cannot be construed to be premature although launched with undue haste. [Pp.332&333]A,B,C&D Mr. Muhammad Akram Sheikh, Advocate for Petitioners. M/s. Abdul Maajid Sheikh and S. M. Almas, Advocates for Respondent. Date of hearing: 19.5.1992. order By this order I propose to dispose of C.M.No.1172/92, C.M.No.1239/92, C.M.No.1284/92, W.P.No.3715/92 and W.P.No.3957/92 as these are inter connected and relate to the same subject-matter. 2. The facts in brief giving rise to these petitions are that Mr. A.R.Khan (hereinafter referred to as the petitioner) on the one hand and Mr. P.N. Boga and others hereinafter referred to as the respondents), on the other, litigated between themselves about transfer of property No.SE-12-R-6 & 8, situate at 1 Cans' Bank, Lahore upto the level of the Supreme Court of Pakistan. Ultimately the dispute was resolved on 18.12.1986 in favour of the petitioner. Somewhere in 1966, during the pendency of litigation between the parties, the petitioner filed application for ejectment of the respondents from the property in dispute. The learned Rent Controller taking cognizance of the pendency of the, litigation between the parties vide order dated 27.12.1973 adjourned the ejectment proceedings sine die. After the final decision of the case by the Supreme Court of Pakistan, the learned Rent Controller pursuant to an application filed by the petitioner, revived the ejectment proceedings against the respondents. On 30.5.1991, he accepted the ejectment petition and directed ejectment of, the respondents. The learned Additional District Judge, Lahore on 27.11.1991 affirmed the order in appeal. The respondents being aggrieved against those orders filed W.P. No.11694/91, which was dismissed on 11.4.1992 by this Court. 3. It is significant to point out that on the dismissal of the writ petition neither the petitioner prayed for nor this Court suo moto allowed time to the respondents for vacation of the premises. On 19.4.1992 the petitioner armed with warrants of possession issued in execution of the ejectment order carried out eviction through the bailiff of the Court and with the assistance of the Police. Mrs. P.N. Boga, one of the respondents, on the same day at about 4.40 p.m. presented an application (C.M.No.l 172/92) before the Hon'bie Chief Justice praying for suspension of the order dated 11.4.1992 so as to enable her to approach the Supreme Court for availing the legal remedy against the aforesaid order. The application was directed to be placed before me for disposal. It was then presented at my residence at 5.30 p.m. whereupon I passed following order: "Put up before me on 20.4.1992 in Court. Status quo meanwhile". On 20.4.1992, order was passed to the following effect:-- "Heard the petitioner. Notice to the opposite side for 22.4.1992. Requisition the relevant file for that date. Status quo to continue till then". The perusal of the reports made by the bailiff and Hakim Ali S.I. who accompanied him shows that the possession of the disputed property was delivered to the petitioner decree-holder on 19.4.1992. Report Roznamcha No.17 recorded on 19.4.1992 at 5.30 p.m. by Hakim Ali, S.I. who was accompanied by the bailiff shows that the warrants of possession issued by Syed Nasir Ali Shah, Rent Controller, Lahore in respect of the disputed property were duly executed and possession of the property delivered to the petitioner. Similarly the bailiff also made report regarding delivery of possession of the property in dispute to the petitioner in execution of the warrants. His report about the delivery of possession of the property in dispute on 19.4.1992 contains the signatures of the witnesses in whose presence the vacant possession of the house in question was delivered to the petitioner. 4. On 25.4.1992 the respondents filed application under Section 151 CPC for restoration of possession of the house in question en the basis of order of status quo passed by this Court on 19.4.1992. In para 11 of the application it was mentioned that in view of the stay order granted by the Court the respondents were entitled to restoration of possession of the property in question so as to avail legal remedy in the Supreme Court of Pakistan. The prayer made in the application was that the possession of the property in dispute be handed back to them in the interest of justice and fair play. 5. On 4.5.1992 another application (C.M. No.1284/92) was filed by them alleging therein that the Senior Police Officers held inquiry and in obedience to the orders of this Court passed on 19.4.1992 at 5.30 p.m. restored the position existing on the site at the time of issuance of the stay order. Prayer was modified to the extent of the restoration of possession of two rooms unlawfully taken away from them in the garb of the order of the Rent Controller. 6. On 27.4.1992 the petitioner also filed W.P.No.3715/92 against the police officers who illegally took control of the disputed property and sought direction for their removal from the premises in dispute. One of the respondents namely Mrs. S.N. Alam on 4.5.1992 also filed W.P.No.3957/92 against the Rent Controller, the Bailiff, the Additional District Judge, Hakim Ali S.I., Akhtar Mahmood S.H.O. and the petitioner seeking declarations to the effect that the execution application was premature, the orders passed by the Rent Controller on 14.4.1992 and 15.4.1992 of no legal effect, the reports made by the bailiff as well as the Police Officer, unlawful, with a prayer to direct the petitioner to restore possession of two rooms and further to allow reasonable time for handing over the vacant possession of the house to the petitioner in case she loses her legal battle before the Supreme Court. 7. At this stage it is important to mention that the Civil Petition for Special Leave to Appeal filed against the impugned order dated 11.4.1992 passed by this Court dismissing writ petition was upheld by the Supreme Court as disclosed by learned counsel for the respondents. 8. The facts enumerated hereinbefore give rise to the following points for determination:-- (/) Whether on 19.4.1992, at 5.30 p.m. when order of status quo was passed by this Court, the possession of the disputed property stood delivered to the petitioner? (//) Whether the orders passed by the Rent Controller in execution and the reports made by the bailiff and police officer are assailable in writ jurisdiction? 9. As regards the first point, the examination of the bailiffs report and copy of report No.17 of Daily Diary made by the Police clearly establish that before 5.30 p.m. the possession of the disputed property stood delivered to the petitioner. This factum finds ample support from the contents of the application moved by the respondents themselves seeking restoration of possession of the disputed premises. 10. As far as the next point, it is true that the orders of the Rent Controller passed in execution proceedings are appealable, but the learned counsel for respondents himself sought their resolution by this Court. In order to shorten the B controversy these orders have been examined and ostensibly disclose no legal infirmity therein. The execution proceedings initiated after tMe dismissal of appeal before the District Court and Constitutional petition before this Court cannot be construed to be premature although launched with undue haste. 11. The Police Officer who accompanied the bailiff and made report in the Roznamcha at 5.30 after completion of the execution proceedings acted in performance of his official duty and cannot be deemed to have acted malafldefy. The order of status quo passed by this Court at 5.30 p.m. after delivery of possession rather enured for the benefit of the petitioner. 12. Similarly in my opinion, the Police Officers who subsequently took control of the premises although misconstrued the order of this Court, yet it appears that they also acted honafidely to have the status quo order passed by this Court implemented. It is, however, made clear that they had no jurisdiction to restore possession of the portion of the property as they were required only to maintain slants quo as it existed on the spot. In these circumstances the writ petitions filed by the petitioner as well as one of the respondents m^rit no further action and are accordingly disposed of. 13. As regards C.M.No. 1172/92, one of the respondents (Mrs. S.N. Alam) who prayed therein for some time to approach the Supreme Court did file Civil Petition for Special Leave to Appeal against the order of this Court dated 11.4.1992, and after the dismissal thereof, this application has become infructuous and is accordingly dismissed. 14. Similarly C.M. No. 1239/92 seeking restoration of possession and C.M. No. 1284/92 seeking amendment thereof have also become infructuous after dismissal of the Civil Petition for Special Leave to Appeal by the Supreme Court. 15. The local Police Officers who took control of the premises presumably in implementation of the order of status quo passed by this Court on 19.4.1992 shall forthwith iihdraw themselves from the premises in dispute after delivering vacant possession thereof to the petitioner as he would be deemed to be in possession of it, with effect from 19.4.1992, when he actually came into possession through legal process of law. All the afore-said petitions, therefore, stand disposed of in terms indicated above with no .order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 333 PLJ 1992 Lahore 333 Present: MANZOOR HUSSAIN SlAL, J Mrs. NASIM KHAN-Petitioner versus PROVINCE OF PUNJAB, THROUGH CHIEF SECRETARY and 3 others-­ Respondents Writ Petition No.3479 of 1992, dismissed on 24.5.1992 Government Accommodation— —Government servant—Application for grant of Government accommodation- Accommodation given to respondent No.4-Challenge to-House in question stands already allotted in favour of respondent No.4 and no direction in nature of mandamus can be issued to respondents for allotment of same to petitioner-Even otherwise, she has no vested right for allotment of Government residence-Held: Order of allotment to respondent No.4 was undoubtedly passed in exercise of discretion which cannot be construed by any stretch of imagination to be arbitrary—Held further: Petitioner is not entitled to allotment of house in question and same stands rightly allotted in favour of respondent No.4--Petition dismissed. [Pp.336&337]A&B PLD 1961 SC 537 and PLJ 1986 SC 355 ref. Raja Muhammad Anwar, Advocate, with Raja Mahmood Akhtar, Advocate for Petitioner. Mr. Iifan Qadir, Additional Advocate General for Respondents 1 to 3. Mr. Asif Saeed KJian KJiosa, Advocate for Respondent No.4. Date of hearing: 19.5.1992. judgment Mrs. Nasim Khan, Associate Professor, Government APWA College Lahore, petitioner herein, through this Constitutional petition seeks direction in the nature of mandamus to the respondents for allotment of House No.33-B, G.O.R.III, Lahore as also to declare the refusal of the respondents in this behalf as illegal and by way of consequential relief prays for issuance of injunction restraining the respondent No.2 from delivering possession of the aforesaid house to respondent No.4 till the decision of this petition. 2. The facts, in brief, giving rise to this petition are that in the year 1975 the petitioner was working as Assistant Professor, Government APWA College Lahore, in Grade-18. On 7.3.1975 she applied for provision to her Governmen accommodation but was advised to wait for her turn. She was promoted as Associate Professor on 28.3.1991 in Grade-19 and again applied for Government accommodation, as by then she became entitled to 'B' type accommodation, but of no avail. 3. In the month of April, 1992 the House No.33-B, G.O.R.III fell vacant and she requested for allotment of the same on the basis of being a senior applicant but to her dismay the aforesaid accommodation was also allotted to respondent No.4 who was a junior applicant as compared to the petitioner. 4. Learned counsel for petitioner contended that the respondents arbitrarily turned down her legitimate claim on one pretext or the other and had all along been treating her discriminatory. He referred to a policy letter No.3EO-5-22/64 issued in 1964 and pointed out that clause 'A' thereof provides that the Government residences are required to be allotted on the principle of first come first served but this principle was flagrantly violated in the case of the petitioner. It was argued that even the statutory functionary exercising administrative powers must conform to the principle of natural justice. He is supposed to act in discharge of his functions fairly, reasonably and justly. He referred to Messrs Faridsons Ltd. Karachi and another v. Government of Pakistan, through its Secretary, Ministry of Commerce, Karachi and another (PLD 1961 Supreme Court 537) in support of his submission. Learned counsel further submitted that the discretion vested in an executive officer is not absolute. It is vested in him for a public purpose and must be exercised for the attainment of that purpose. The discretion is always circumscribed by the scope and the object of the law that created it but it has to be exercised reasonably fairly and justly. In support of his submission he relied on Federation of Pakistan and others v. Ch. Muhammad Aslant and others (PLJ 1986 SC 355). 5. On a question learned counsel for petitioner candidly accepted the proposition that the petitioner being a civil servant cannot validly lay claim for the allotment of a particular house. Nevertheless he maintained that since her application for allotment of Government residence is pending decision since 1975 she had prior right for allotment of suitable accommodation. 6. The learned Additional Advocate-General on the other hand submitted that the petitioner has no vested right for allotment of Government provided accommodation in preference to the respondent No.4 who has been transferred to Lahore frorn another Province of Pakistan . He also alluded to the policy letter referred to above and pointed out that in paragraph (e) thereof the category of Government employees to which respondent No.4 belongs will have first priority within his respective category as against all other officers of other departments. He also referred to document 'R/l' a policy letter No.IEO-IV-21/76 dated 1 st December. 1981 where in para I it is specifically mentioned that the Government has no legal responsibility for providing residential accommodation to Government servants. He also made reference to document annexed 'R/2' to point out that the provision of residential accommodation is not one of the terms and conditions of service as such she has no vested right to approach this Court for the relief prayed for in this petition. 7. Learned counsel for respondent No.4 controverted the contentions raised by learned counsel for petitioner. In the first place he argued that this petition was not maintainable because the petitioner failed to show any document on the file indicating that the name of the petitioner was on the top of the waiting list of the employees who had applied for allotment of Government accommodation. He further stated that to the best of his knowledge, number of other applicants senior to her were awaiting their turn for allotment of Government accommodation. Learned counsel re-inforccd the submissions made by the learned Additional Advocate-General to the effect that the petitioner has no vested legal right for allotment of the house in question nor could establish that it was the responsibility of the Government to provide her residence. In support of his contentions he relied on Masudul Hassan v. Khadim Hussain and another (P.L.D. 1963 Supreme Court 203), Dr. Munir Ahmed, M.B.B.S., Medical Officer v. Chairman, House Allotment Committee, Government of Baluchistan, Quetta and another (1083 C.L.C. 1783) and Iris Sammuel Gill v. Government of Punjab (P.L.D. 1979 Lahore 467). It was argued that this Court may interfere in the administrative orders where provision of the right of hearing to the affected is condition precedent and not those passed for purely administrative convenience. He also submitted that the respondent No.4 was fully entitled to the allotment of the house in question in preference to any other employee of the category as laid down in the policy letter referred to above to which the petitioner belongs, as also because he has been recently transferred from the Province of Baluchistan arid has no accommodation available for his-residence. Lastly he stated that her refusal to accept the offer for the allotment of 'C' type accommodation on its construction further renders her ineligible for the grant of the discretionary relief from this Court. 8. I have considered the contentions raised by the learned counsel for the parties and have also perused the documents on the file. Before commencement f the arguments on merits of the case the learned Additional Advocate-General was asked to apprise the Court as to when the petitioner at the earliest can be provided Government accommodalion. On instructions from the respondent No.2 he made a categorical statement to the effect that she will be provided house on priority basis out of 'C' type residences, the construction whereof is about to start as the tenders for construction had already been called and newly constructed houses will be available within a period of eight to ten months. He pointed out that there is no vacant house available in 'B' or 'C' type residences and ordinarily she v-ill have to wait till 1994 for allotment of accommodation as per her entitlement. 9. It is significant to mention that since the house in question, stands already allotted in favour of respondent No.4, no direction in the nature of mandamus can be issued to the respondents for the allotment of the same to the petitioner. Even otherwise, she had no "csted right nor the respondents be compelled to provide her Government residence in view of the clear instructions embodied in policy decisions dated 1.12.1981 'R/l' and 7.4.1983 'R/2' respectively. The allotment order passed by the Government functionary being purely administrative in nature and based upon administrative convenience, conferring no right on the petitioner to be heard prior to its passing cannot be interfered with in writ jurisdiction. Nevertheless it is true that the executive authority is obliged to pass order fairly, justly and reasonably. The allotment of the house in question made in favour of respondent No.4 as per policy letter issued in 1964 and relied upon by the petitioner herself is unexceptionable. The order of allotment was undoubtedly passed in exercise of discretion, which cannot be construed by any stretch of imagination to be arbitrary. He look into consideration that the respondent No.4 was transferred from Baluchistan and belonged to category of employees who are I to be allotted Government residences on priority basis. 10. In these circumstances, I hold that the petitioner is not entitled to the allotment of the house in question and the same stands rightly allotted in favour of respondent No.4. It is, however, clarified that she will be allotted a house in 'C' type accommodation on its construction in terms of commitment made by the respondent No.2 through the learned Additional Advocate General. 11. The upshot of the above discussion is that this petition has no merit, but subject to the observation made above, it is dismissed vith no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 337 PLJ 1992 Lahore 337 Present: MUIIAMMAD ILYAS, J GHULAM RASOOL-Petitioner versus Mst. HAMIDA BEGUM c^c.-Respondents Civil Revision No.284 of 1991, dismissed on 16.5.1992 Civil Procedure Code, 1908 (V of 1908)-- —-O.VII R.ll-Plaint-Rejection of-Remand of suit on acceptance of appeal of respondents-Challenge to-According to latest authorities, documents other than plaint can be taken into consideration for rejecting a plaint, but such documents cannot be readily acted upon if their validity is questioned by plaintiff-In this case, plaintiff categorically asserted that Tashih Nama (correction deed) was a forged document, relying on which, plaint was rejected by trial Court-Held: Appellate Court was justified in disagreeing with trial court and his order is not open to any legitimate exception—Petition dismissed. [Pp.339&340]A&B 1988 SCMR 824, 1981 SCMR 878 and 1989 CLC 15 ( Lahore ) ref. Mr. Hasnat Ahmad, Advocate for Petitioner. Ch. Bashir Ahmad, Advocate for Respondents 1, 3, 4 & 5. Nemo for Respondents 2 & 6 to 7. Date of hearing: 16.5.1992. judgment This civil revision has arisen out of a suit brought by respondents Nos.l to 9, Mst. Hameeda Begum and others, against,,the petitioner, Ghulaflfc.' Rasool, and Respondent No.10, Muhammad Sarwar. In the-said suit, in wliich the respondent No.l and the petitioner were defendants Nos.l and 2 respectively, the validity of a sale deed had been challenged by Respondents Nos.l^t'o 9. These respondents were plaintiffs therein. Besides ihc said defendants, one Ismail was defendant No.3 in the suit but as process fee had not beet? deposited for his service, the suit was dismissed against him. The petitioner, who was, in fact, the contesting defendant, made an application for rejection of the plaint stating that the plaintiffs in the suit had executed a document known as Tasheeh Nama ( f —

^^"^ ) in which they had ratified the sale deed in question. The said Tasheeh Nama was a registered deed which had been placed on.record by the petitioner (defendant No.2). The Civil Judge, who was sei/.cd of the suit, accepted the application of the petitioners and rejected the plaint, under Order VII, Rule 11, of the Code of Civil Procedure, with the following obscrvations:- "Copy of the impugned sale deed dated 15.2.1989 and agreement to sell dated 12.12.1988 in favour of defendants Nos.2 and 3 respectively have also been placed on record. The perusal of the Correction deed ('Tesih Nama') dated L4.9.1989, proves that the plaintiffs have entered into a Correction deed ('Tesih Nama') with defendant No.2 and have rectified the impugned sale cieyd executed in favour of defendant No.2 by defendant No.l. As such the cause of action against defendant No.2 has ceased to exist as defendant No.l is a proforma defendant and suit against defendant No.3 had already been dismissed vide order dated 6.2.1990 by this Court for non-deposit of process fee. This Correction deed (Tesih Nama') is a duly registered public document and presumption of truth is attached to it. This Correction deed (Tesih Nama') dated 14.9.1989 has not been challenged by the plaintiffs so far. 2. Plaintiffs in the suit, therefore, went in appeal before an Additional District Judge. The learned Additional District Judge accepted the appeal, set aside the judgment and decree passed by the learned Civil Judge and remanded the suit to him for proceeding further in accordance with law. 3. View taken by the learned Additional District Judge was that the Tasheeh Nama was a material extraneous to the contents of plaint and, therefore, the trial Court was precluded from taking that document into consideration, for rejecting the plaint. Further reasoning of the learned appellate Court for accepting the appeal make the following reading:— "The other aspect of the case is that the learned trial Court observed that Tasheeh Nama was not challenged by the appellants in any Court. Since the said document is a registered public document and presumption of truth is attached to it hence appellants have no case, is not tenable. The presumption of truth attached to this document is rebuttable and appellants while submitting written reply to the application under Order VII, Rule 11 C.P.C. categorically asserted that the Tasheeh Nama was a forged document and separate proceedings are being taken in this respect. It is true that learned trial Court, without having any evidence on record, admitted the genuineness of contentions raised by defendant No.2 and skipped over the contentions of appellants that the said document is forged one. The case law referred by learned counsel for the respondent No.2 is not applicable in the instant case. Since it cannot be said at this stage that the contentions raised by learned counsel for the appellants are mere technicalities and suit is ultimately failed". 4. Feeling aggrieved by the order of the learned Additional DisUici Judge, the petitioner has come up in revision to this Court. 5. It was contended by learned couns'el for the petitioner that according to latest law on the subject, material other than the plaint car. also be taken into account for rejecting the plaint, under Order VII, Rule 11, of the Code of Civil Procedure, and, therefore, the learned Additional District Judge had erred in proceeding on the premises that the said Tasheeh Nama, produced by the petitioner, who was the contesting defendant, could not be taken into consideration. In this regard, reliance was placed by him on Nazcer Ahmed and others v. Chit lam Mchdi and others (1988 SCMR 824), Muhammod Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878) and Mian Muhammad Akram and oth-rs v. Muhammad Rafi (1989 CLC 15) (Lahore). 6. On the other hand, it was contended by the learned counsel for the respondents No.l, 3, 4 and 5 that since the plaintiffs in the suit had raised the plea that the Tasheeh Nama was a fictitious document, the plaint could not be rejecLd by the learned trial Court without satisfying itself that the said document was genuine. 7. It is true that according to the trend of the latest authorities, documents other than tV plaint can be taken into consideration for rejecting a plaint but such dr.uments cannot be readily acted upon if their validity is questioned by the plaintiff. In the instant case, as pointed out by the learned Additional District Judge, the plaintiffs, who are respondents Nos.l to 9 before me, had, in their reply to the application of the petitioner (defendant No.2), for rejection of plaint, categorically asserted that the Tasheeh Nama was a forged document and that separate proceedings were being taken out in that respect, but despite all this the learned Civil Judge relied on the Tasheeh Nama and reached the conclusion that in view thereof the plaintiff had no cause of action. Although the Tasheeh Nama was a registered document yet the plaintiffs were not precluded from producing evidence to substantiate their plea that it was the result of forgery. Proper course for the learned Civil Judge was, therefore, to frame an issue in regard to validity of the Tasheeh Nama and record parties evidence thereon before acting upon it. He proceeded -with undue haste in non-suiting the plaintiffs on the score of said Tasheeh Nama, the validity whereof had been challenged by the plaintiffs. The learned Additional District Judge was, therefore, justified in disagreeing with the learned trial Court. 8. What emerges from the above discussion is that the order of the learned Additional District Judge is not open to any legitimate exception. This civil revision is, therefore, dismissed with no order as to 'costs. 9. The parties shall now appear before the learned trial Court on 16th June, 1992 to enable it to proceed further with the suit in accordance with law. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 340 PLJ 1992 Lahore 340 Present: MLIIAMMAD ILYAS, J KAMIL HUSSAIN and another-Petitioners Versus MEMBER, BOARD OF REVENUE, PUNJAB, and 13 others-Respondents Writ Petition No.497 of 1984, accepted on 30.5.1992 Speaking Order— —Revision petition before Board of Revenue—Dismissal of—Challenge to—It is evident from para 3 of impugned order that detailed arguments were presented before learned Member but he-has not made mention of any of those arguments nor has he recorded separate and specific findings thereon- He did not apply his own mine! to matter in dispute-Held: Learned Member did not dispose of revision petition with a speaking order and his order is of no legal effect-Petition accepted. [P.341JA&B Ch. Mushtaq Ahmad Khan, Advocate for Petitioners. •• Rana Nacem Sanvar, Advocate for Respondents 6 to 14. Date of hearing: 30.5.1992. judgment This writ petition has arisen out of a revision petition filed by the petitioners, Kamil Hussain and another, against the respondents, Taj Din and others, challenging legality of an order, made by the Additional Commissioner (Revenue), Lahore Division, Lahore, in respect of certain land. The revision petition was dismissed bv the Member (Revenue), Board of Revenue, Punjab . The petitioners have, therefore, invoked the constitutional jurisdiction of this Court. 2. Foremost argument presented by learned counsel for the petitioners was that the learned Member (Revenue) did not pass a speaking order and, therefore, the matter deserved to be remanded back to him for fresh decision. It was pointed (out) by him Ihat learned Member (Revenue) did not apply his mind lo the facts and circumstances of the case or the arguments advanced before him and simply reproduced the order of the learned Additional Commissioner (Revenue), and dismissed the revision petition with the observations that he was satisfied with the reasoning of the learned Additional Commissioner (Revenue). 3. I have gone through the order under challenge and find that, after making introductory remarks, the learned Member (Revenue) reproduced the order of the learned Additional Commissioner (Revenue).He, thereafter recorded paragraph 3 which makes the following reading:— 3. I have heard the learned counsel for the parties in considerable detail and have referred to the record of the lower Courts. I am satisfied that the impugned order of the Additional Commissioner is well reasoned, based on facts and does not suffer from any material irregularity. I would, therefore, refuse to interfere in revision, and in consequence reject this revision". 4. It is evident from the above paragraph of the impugned order that detailed arguments were presented before the learned Member (Revenue) but he,' has not made a mention of any of those arguments nor has he recorded separate and specific findings thereon. His remarks that the order of the learned Additional Commissioner (Revenue) was well reasoned, based on facts and did not suffer from any material irregularity, and that he was satisfied with his order is a vague statement which does not warrant a conclusion that the learned Member (Revenue) had applied his own mind to the matter in dispute. Learned counsel for the contesting respondents namely, respondents Nos. 6 to 14 could not say that, in the circumstances indicated above, order passed by the learned Member (Revenue) was a proper order. I, therefore, hold that the learned Member (Revenue) did not dispose of the revision petition with a speaking order and, thus, his order is of no legal effect. 5. Resultantly, I accept this writ petition, set aside the order under challenge and direct that the learned Member (Revenue) shall redecide the revision petition in accordance with law after spelling out the parties' arguments and recording his clear findings thereon. 6. Since none of the parties is at fault, I make no order as to costs. 7. The parties shall appear before the learned Member (Revenue) on 18 th June, 1992. 8. A copy of this judgment shall be sent to the Senior Member, Board of Revenue, Punjab, with the remarks that its copies shall be sent to all the Revenue Officers in the Punjab , including other learned Members of the Board of Revenue, for future guidance. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 342 PLJ 1992 Lahore 342 Present: MUHAMMAD Il.YAS, J PAKISTAN TOBACCO CO. LTD.-Appellant versus WEST END TOBACCO CO.-Respondent F.A.O. No. 115 of 1979, dismissed on 9.5.1992 Trade Mark— —- Trade martk "Craven A" of appellant-Sale of Cigarettes by respondent under mark "CARVAN"-Suit for permanent injunction to restrain respondent from using trade mark-Dismissal of suit-Challenge to-There is much difference between two packets and no section of public is likely to be duped by packet used by respondent—Held: There is no reason to interfere with impugned judgment-Appeal dismissed. [Pp.343&344JA&B Mr. Muhammad (?) Advocate for Appellant. N^ino for Respondent. Date for hearing: 9.5.1992. judgment This appeal has arisen out of a suit brought byC the appellant, Pakistan Tobacco Company Limited, against the respondent. West End Tobacco Company. Dispute involved in the suit is with regard to the sale of cigarettes by the two Companies. The appellant is selling cigarettes under the trade mark Craven "A", which is registered one. On the other hand, the respondent is selling cigarettes under the trade mark CAR VAN. Feeling aggrieved by the sale of cigarettes by the respondent as aforesaid, the appellant brought the suit praying for the following reliefs:- "(a) Permanent injunction restraining the Defendant, its servants, agents, dealers salesmen from infringing the Plaintiff's registered trade mark No.9925 and from selling, offering for sale or otherwise passing off cigarelics not of the Plaintiffs manufacture by the use of the CARVAN packet, the get-up of the Plaintiffs Craven "A" packet the feature CARVAN or any other feature or trade mark so closely resembling the plaintiffs said registered trade mark No.9925 or the plaintiffs CRAVEN "A" packet as to be likely to deceive or cause confusion. (b) An order that the defendant do deliver up on oath for destruction all its stocks of the CARVAN packet and all advertising materials, printing blocks, dyes, plates and other implements, devices and materials bearing the features of the CARVAN packet which are in the possession, power or control of the defendant. (c) An order for an account to be rendered by the defendant of the profits wrongfully made by it or an enquiry as to damages at the election of the plaintiff and for an order for payment to the Plaintiff of all sums of money found due on taking of such accounts or enquiry as to damages. (d) Costs of the suit. (e) Such further or other relief or reliefs as may seem proper to this Hon'ble Court in the circumstances of this case".The suit was dismissed by the District Judge, Lahore. He ice this appeal. 2. The appellant's contention was that the packets in which the respondent was selling the cigarettes resembled with the packets in which the appellant was doing so and thus the respondent was likely to deceive the public. It was also maintained by the appellant thul the said act of the respondent amounted to infringement of the rights of the appellant under the Trade Marks Act, 1940. Their plea did not find favour with the learned District Judge as he felt that there was a sharp distinction between the two packets. In this connection, he remarked as follows:-- 'For instance in the red oval appearing on the packet of cigarettes manufactured by the plaintiff letter "A" is mentioned under letters Craven whereas in the packet of the defendant word CARVAN is distinctively mentioned having star mark beneath it. Further more on the packet of the plaintiff the words "FILTER" is mentioned which does not so appear on the packet of the defendant. On the CARVAN cigarettes packets there are palm trees with camels which do not appear on the plaintiffs packet. There is a great difference in the price of the two cigarettes. Ten Cigarettes of CRAVEN "A" cost Rs 1.60 wheieas the pric,: c! ten Cigarettes of CARVAN is only Rs. 0.20". 3. Besides the distinc.-ons pointed out by the learned District Judge, I have noticed that at the back of the packet of the appellant there is a lengthy writing in English with a trade mark on the top (the head of a (.at) which is not tr ere on the packet of the respondent. On the packet of the respondent there are also stars on the two sides which are not there in the packet of the appellant. Those who know English can very well make difference between the two packets and even those who are illeteratfc can do so inasmuch as on the packet of the respondent there are palm trees, sand dunes and camels which are not seen on the packet of the appellant. No one can possibly overlook the aforesaid distinctive features. I, therefore, agree with the learned District Judge that there is much difference between the two packets and no section of the public is likely to be duped by the packet used by the respondent. Despite all this, if the appellant wants to be more cautious it may introduce such changes in writings, etc., on its packet, as it may deem fit. so as to make the differences still more conspicuous. Needless to say that such changes are generally made by the business community with a view to making their products more attractive even, when they are not confronted with difficulties like those complained of by the appellant. One of the instances in point is that of the lux soap. The manufacturers of this soap frequently change the size of the cake and also use new packing material bearing fresh writings, etc., thereon. 4. In view of the above discussion I see no good reason to interfere with the judgment and decree passed by the learned District Judge and dismiss this appeal. Since the respondent has not contested the appeal, I make no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 344 PLJ 1992 Lahore 344 Present: MUIIAMMAD ILYAS, J Mst. ALLAH JAWAI etc.- Appellants versus MUHAMMAD ALI efc.—Respondents R.S.A. No.422 of 1965, dismissed on 26.4.1992 Jurisdiction-- —Two second appeals in High Court—One appeal decided by a Judge declaring decree under appeal as void—Whether another Judge (of High Court) can sit in appeal over verdict of thai Judge (of High Court) in other appeal against same decree-Question of-According to verdict of Akhtar Hassan J, whole decree had become void--His view has attained finality as review petition and Civil Petition for Leave to Appeal did not meet with success-Grievance of appellants is that interpretation placed by his Lordship on provisions of Section 2-A, clauses (b) and (c) of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, is not correct-Held: Verdict of Akhtar Hassan, J that entire decree has become void, having attained finality and holding field, present Judge has neither any occasion nor jurisdiction to examine correctness or otherwise of said decree. [Pp.346,347&348]A,B&C 1989 MLD 3663 (Lahore), 1987 CLC 587 and AIR 1927 Lahore 289 discussed. Sh. Hamid Mukhtar, Advocate for Appellants. Kit. Saeedaz Zafar, Advocate for Respondent No.2. Mirza Hafeezur Rehman and Ch. Hamiduddin, Advocates for Respondents 3, 4 and 8. Nemo for Respondents 1 and 5 to 7. Date of hearing: 26.4.1992. judgment This regular second appeal relates to certain property left by one Maula Bakhsh who died in 1924 leaving behind a widow, Mst. Jiwan, and a daughter, Mst. Zuinab. He had no male issue. Besides the said ladies, Maula Bakhsh was survived by a sister, Mst. Allah Jawai and a brother, Jalal Din. Jalal Din died without leaving any issue or widow. Mst. Allah Jawai is the appellant before me. Respondent No.2, Nazir Ali and respondent No.3, Faqir Ali are sons of said Mst. Zainab. On the death of Maula Bakhsh his land as well as two houses and a Havcli belonging to him came into the hands of his widow, Mst. Jiwan. Out of his landed property, 599-Kanals and 12 Marias of land was in village Wah Garey, Tehsil Ferozewala, District Sheikhupura, and land measuring 13 Kanals and 5 Marias was in village Tariddey Wall of the said Tehsil. The said two houses and the Haveli were also located in village Wah Garey. After the land was mutated in the name of Mst. Jiwan, she made gift of the land measuring 599 Kanals and 12 Marias situate in village Wah Garey, in favour of her daughter's sons, Nazir Ali and Faqir Ali, who, as already stated, are respondents Nos.2 and 3 in the instant appeal. This gift was made on 8th April, 1941, after the death of Mst. Zainab. The collaterals of Maula Bakhsh assailed the gift by means of a usual suit under custom. The suit was decreed by the trial Court but the judgment and decree of the said learned Court were set aside in appeal. Thereafter, the collaterals preferred a second appeal, namely, R.S.A. No.98 of 1949. Faqir Ali died during the pendency of the appeal and his legal representatives were not impleaded within the time allowed by law. Thus, the appeal abated to the extent of his half share in the land involved in the said appeal. The appeal was however, allowed to the extent of the other half share of Nazir Ali and the collaterals' suit was decreed accordingly. Thereafter, Mst. Jiwan sold the land in respect of which the collaterals' suit had been decreed. This sale was made in favour of said Nazir Ali, on 2nd July, 1959. Thereafter, Mst. Jiwan died on 26th October, 1960. Mutation of inheritance relating to the land left by her in village Tariddey Wali was attested on 18th May. 1961 and following persons were awarded shares noted against each:- Mst. Allah Jawai 7/16 Legal heirs of Mst. Zainab 7/16 Muhammad Ali brother of ,\fst. Jiwan. 1/8 On this, the appellant, Mst. Allah Jawai, filed a suit claiming 7/16 share in the entire land measuring 612 Kanals and 17 Marias, left by Maula Bakhsh, and in the two houses and the Haveli referred to above. The suit was resisted, inter alia, on the ground that she was not a sister of Maula Bakhsh. This plea found favour with the Civil Judge before whom the suit was instituted. Her suit was, therefore, dismissed by him on 29th September, 1963. She then went in appeal before an Additional District Judge who reversed the finding of the learned Civil Judge regarding the relationship of the appellant, Mst. Allah Jiwai and decreed her suit qua the property in the hands of^Nazir Ali but maintained the judgment and decree of the learned trial Court in other respects. This gave rise to two regular second appeals. One of those appeals, namely, R.S.A. No.284 of 1965 was filed by Na/Jr All and tbe other one, which is in hand, was preferred by Mst. Allah Jawai. 2. Regular Second Appeal No.284 of 1965 filed by Nazir Ali came up before my learned brother, Akhtar Hassan J. On 1st June, 1985 when it was disposed of by him with the following observations:-- "This suit was based upon Custom. Under Section 2-A, clauses (b) and (c), West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, the appeal shall abate whereas the decree under appeal has become void. The appeal is disposed of having abated". Thereafter, a review petition was filed by the appellant, Mst. Allah Jawai, which -was dismissed by my said learned brother on 27th October, 1987. Order passed by him on the review petition was assailed before the Supreme Court by means of Civil Petition for Special Leave to Appeal No.768 of 1987. This petition was, however, dismissed by the Supreme Court, on the ground of limitation, on 25lh November, 1987. 3. Mst. Allah Jawai died during the pendency of this appeal whereupon her legal representatives were brought on the record. 4. Today, when the instant appeal was taken up for hearing, a preliminary objection was raised by learned counsel for respondents Nos.l to 4 and 8 (hereinafter referred to as the respondents) that since my learned brother, Akhtar Hassan J. has declared that the decree under challenge "has become void" and his order is still holding the field, I have no jurisdiction to decide the present appeal, on merits. Learned counsel for the appellants, however, argued otherwise and ciled 5/i. Muhammad Riaz Diwana through his Legal Heirs v. Sh. Muhammad Slia/ifand others [1989 MLD 3663 (Lahore)], Lai Din and 2 others v. Mst. Zeenat Bibi and 4 others [1987 C.L.C. 587 (Lahore)] and Mst. Lachhmi v. Bhulli (A.I.R. 1927 Lahore 289) to contend that I could examine validity of the verdict of my learned brother and if I did not agree with him I could decide the instant appeal on merits. His submission was that the decision of my learned brother, by which the appeal was disposed of by him, was void inasmuch as provisions of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, hereinafter referred to as the said Ordinance, were not attracted to the appeal before him. 5. It was not the plea of learned counsel for the appellants that my learned brother had no jurisdiction to dispose of the appeal as aforesaid. His contention, in substance, was that the provisions of the said Ordinance, were not applicable to Ajthc appeal with him. In other words, he was not satisfied with my learned brother's interpretation of the said provisions. Although the order by which the appeal was disposed of is a short one yet he recorded a detailed order on the review petition giving reasons for striking down the decree under the said Ordinance. Now, the question requiring determination is whether I can sit in appeal over the verdict of my learned brother who is as good a Judge of this Court as myself. 6. As for the case-law cited by learned counsel for the appellants, the case of S/i. Muhammad Riaz Diwana through his Legal Heirs related to two suits in respect of an agreement to sell certain property. One of the suits was for specific performance of the agreement and the other was for avoiding that agreement. When the matter came up before the High Court, appeal arising out of the suit for avoiding the agreement was dismissed withn J. the whole of the decree assailed herein "has become void". His view has attained finality inasmuch as the review petition filed before him as well as the Civil Petition for Special Leave to Appeal, made by the appellants before the Supreme Court, did not meet with success. My learned brother is as good a Judge of liiis Court as myself. Learned counsel for the appellants has not cited any law remitting me to sit in appeal over the view expressed by him. Case-law relied upon by him has been found to be of no help to the appellants. As explained the real grievance of the appellants is that interpretation placed by my learned brother on the provisions of the said Ordinance is not correct. This does not mean that his order is void because it is not the case of the appellants that he had no jurisdiction to dispose of the appeal before him. In the circumstances, decision of my learned brother is either correct or incorrect, but not void. 10. As explained above, ruling of my learned brother that the entire decree assailed herein "has become void" has attained finality. It is, therefore, holding the Held. Also, for the reasons given above, I cannot sit in appeal over the verdict of my learned brother. In this state of affairs, I am constrained to proceed on the premises that the decree under appeal has already been found to be void and, therefore, there is neither any occasion nor I have the jurisdiction to examine the correctness or otherwise of the said decree. 11. With these observations, the appeal is disposed of with no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 349 PLJ 1992 Lahore 349 Present: MAI.IK MUIL\MMAD QAYYUM, J SANDAL FIBRES LTD.--Petitioner versus GOVERNMENT OF PAKISTAN, THROUGH SECRETARY, MINISTRY OF FINANCE and 7 others-Respondents Writ Petition No.10057 of 1991, dismissed on 22.3.1992 (i) Maintainability— —-Letter of Credit-Extension of-Prayer for-Whether Constitutional petition is maintainable-Question of-Although respondent No.2 was originally incorporated as public limited company, but it was nationalised under Banks Nationalization Act. 1974—Ownership, management and control of respondent No.2 stand transferred to and vest in Federal Government-Held: It is difficult to accept argument of respondents that no constitutional petition can be maintained against respondent No.2. [Pp.352&353]A PLD 1986 Lahore 424, AIR 198! SC 487, AIR 1986 SC 571 & AIR 1983 SC 848 rel. (ii) Maintainability- —Letter of Credit—Extension of—Prayer for—Whether Constitutional petition is maintainable-Question of-Lcttcr of Credit was opened by respondent Bank in pursuance to a contract between parlies-There is no violation of any statute or statutory rules-Held: There cannot be any doubt that a constitutional petition cannot be maintained to enforce contractual rights unless it is shown thai there has been some violation of any slalule or rules having force of law-­Held further: Petition is not maintainable—Petition dismissed. [Pp.353,354&355]B,C&D The Law and Current Practice (Second Edition) by Lazar Sarna, Halsbury's Laws of England, Vol.3 (fourlh Edition), page 101 (para 133), Pagel's Law of Banking, 9lh Edilion, page 531, and Chilly on Contracls, 24th Edition (Vol.11) ref. M/s. Muhammad Akram Sheikh and All Ahmad Awan, Advocates for Petilioner. Mr. Aftab Iqbal Chaudhiy, Deputy Altorney General for Respondents 1 & 8. M/s. S.M. Zafai; Muhammad Yaqoob and Ehsan Jan, Advocates for Respondents 2 to 7. Date of hearing: 10.2.1992. judgment This petilion under Article 199 of the Constilution of Islamic Republic of Pakistan, 1973 has been filed by M/s. Sandal Fibres Limiled, a company incorporated under the Companies Ordinance, 1984 against the Government of Pakistan, United Bank Limited and its officers praying for the grant of following relief:- "It is, therefore, respectfully prayed that the writ petition may kindly be accepted and respondent hank may kindly be directed to process the case of petitioner and to extend the L.C. No.213/KB/1907/90 (under Supplier Credit Scheme) for Pak Rs.144.707 Million favouring M/s. Toyo Kaisha Limited and respondent bank may also kindly be directred to hand over the import license for the import of aforesaid machinery to the petitioner and on its presentation, Controller/Deputy Controller of Import & Export be directed to extend the same in accordance with the latest import policy without charging further fee as no fee is chargeable on the extension of the same. In view of aforesaid instructions contained in letters dated 25.9.1991, 16.lfl.1991 & 19.10.1991 (Annexures 'A', 'C, & 'D', respectively), the existence/pendency of the said F.I.R. No.4 of 1990 may kindly be declared not to be treated a bar for the extension of L.C. and respondent bank and its functionaries be also restrained and prohibited from demanding from petitioner to get the bank officials involved in the said F.I.R. discharged from the said case.Any other relief as deemed fit in the interest of justice and circumstances of the case may kindly be allowed". 2. The facts froming background of the dispute are that the petitioner company entered into an agreement with M/s. Toyo Menka Kaisha Ltd., Hongkong for the purchase of textile machinery/spinning unit, consisting of 14400 spindles on 12th February 1990. With a view to import machinery, M/s United Bank Limited, respondent No.2 herein, at the request of the petitioner, opened a lelicr of credit on 10th of May, 1990, for six months in favour of the foreign supplier on the receipt of the commission. 3. Consequently, the petitioner applied for extension of the period of letter of credit but it appears that the said application was not being given due consideration by the respondents. The petitioner thereupon filed a constitutional petition (W.P.No.183/91) against the respondents in this Court. On 23rd October 1991, it was stated by Mr. Ehsan Jan, the learned counsel for the respondents, that if the petitioner fulfills the requisite formalities, the respondents shall process the application in accordance with the instructions of the Federal Government, if possible, before 30lh October, 1991. In view of this statement of the learned counsel for the respondents, the constitutional petition was not pressed by the petitioner. 4. According to the petitioner, notwithstanding the aforesaid statement of the learned counsel for the respondents and the order passed by this Court on 23rd October, 1991, the respondents were not deciding the application of the petitioner. He consequently instituted this constitutional petition. 5. When this petition came up for hearing on 4th of November, 1991, respondent No.7 was directed to appear along with the record. An objection was raised by the learned counsel for the respondents Nos.2 to 7 that as the petitionercompany was involved in a criminal case, the respondents have been advised by the Accountability Cell set up by the Government of Pakistan to await clearance from the said Cell. In these circumstances, Mr. Aftab Iqbal Chaudhry, Deputy Attorney General for Pakistan, was asked to enter appearance after obtaining instructions from the Accountability Cell. On 13th November, 1991, the learned Deputy Attorney General stated before this Court that he had established contacts with the Finance Division and Cabinet Division of the Federal Government which have no objection to the request of the petitioner being processed and decided by the Bank. The letters of Finance Division as also Cabinet Division to the same effect were placed on record. Respondent No.l was consequently directed to decide the application of the petitioner immediately without any delay. 6. On 26th of November. 1991, learned counsel for respondents No.2 to 7 stated that the request of the petitioner for the extension of period of letter of credit has been refused by the respondent-Bank. A copy of order was placed on record on 1st of December, 1991. This petition was admitted to regular hearing on 3rd of December, 1991, to consider the question inter alia as to whether the refusal of the respondent-Bank to extend the letter of credit is arbitrary being malafide 1. Mr. Muhammad Akram Sheikh, the learned counsel for the petitioner has submitted that the letter of credit was opened by the rfcspondent-Bank on the basis of the agreement arrived at between the petitioner and foreign supplier on 14th February, 1990, in which the period of shipment was mentioned as two years and, therefore, it was clearly understood between the parties that the letter of credit was to remain valid for two years and the period mentioned in the letter of credit was not of much significance. It was emphasized by the learned counsel that as per established Banking practice, the period mentioned in all letters of credit is initially six months, but between the bank and its customers, it is clearly understood that the letter of credit shall remain valid during the currency of period of agreement with the foreign supplier and the validity of letter of credit shall be extended from time to time. 8. The learned counsel has argued that the respondent-Bank having been naiionalized by the Federal Government under the Banks Nationalization Act, 1974, is an instrumentality of the State and is bound to act in a fair, unbiased and judicious manner and no decision taken by it can be whimsical, arbitrary and capricious. It was emphasized that the respondent-Bank has been giving different reasons, at different times for refusing to extend the letter of credit. In the last, the learned counsel for the petitioner has submitted that the impugned action is also against the principles of natural justice and the petitioner has been condemned unheard. 9. This petition has been opposed by respondents No.2 to 7 by filing a written statement in which various objections as to maintainability of this petition have been raised. The learned counsel for the respondent No.2 has contended that the respondent-Bank is not a person performing functions in connection with the affairs of the Federation or the Province and as such, no petition under Article 199 af the Constitution of the Islamic Republic of Pakistan, 1973, is maintainable. Again, it was objected that the rights claimed by the petitioner are based upon a contract and a constitutional petition cannot be maintained for enforcement of such rights. Another objection raised by the learned counsel was that in the petition, the petitioner has failed to challenge the order passed by the Executive Board, therefore, the petition was not maintainable. 10. On merits, the plea taken up by the learned counsel for the respondents is that the letter of credit was valid for six months as has been stipulated in the letter of credit itself and the respondents are under no legal obligation to renew the letter of credit, especially in view of the change of composition in the Board of Directors of the petitioner-company and passage of time due to which project is no more viable. So far the objection of respondent No.2 that no constitutional petition can be maintained against respondent No.2, there is no merit in it. Although it is correct that respondent No.2 was originally incorporated as a public limited company but it was nationali/ed by virtue of the Banks Nationalization Act, 1974, Section 5 \vhereof provided that the ownership, management and control of Banks shall stand transferred to and vest in-the Federal Government on the commencing day. Similarly, according to subsection (2) of Section 4, all capital of a Bank held by a person other than Federal Government, Provincial Government, a Corporation owned or controlled by the Federal Government or State Bank shall stand transferred to and vest in the Federal Government. Under Section 8(1) of the Act, all persons holding offices in a Bank as Chairman, Director etc. ceased to hold office and the Board of Directors stood dissolved by virtue of sub-section (4) and instead, an Executive Committee was set up under Section 11 comprising of a Chairman and Directors to be appointed by the Federal Government. Although under Section 5(5), the corporate status of respondent No.2 has been kept alive but this fact is not conclusive. As already observed, by virtue of the Banks Nationalization Act, 1974 not only the entire share holding of the Bank vests in the Federal Government but it has the exclusive right to manage and control it. The Executive Body is appointed by the Government. That being so, it is difficult to accept the argument of the respondents that no constitutional petition can be maintained against respondent No.2. Reference in this connection may be made to Javed Iqbal & 2 others v. F.I.A. and 3 others (PLD 1986 Lahore 424), Amy Hasia etc. v. Klialid Mujib Soherwardi and others (AIR 1981 SC 487), CeitydKInland Water Transport Corporation Lid. and another v. Brojo Nath Ganguly and another (AIR 1986 SC 571), and Tlic Gnjrat Slate Financial Corporation v. M/s. Lotus Hotels {Private) Ltd. (AIR 1983 SC 848). 12. However, the other objection raised by the learned counsel for the respondent as to the maintainability of the petition namely that the rights which the petitioner seeks to enforce by filing the present petition arc contractual in nature which cannot be enforced by constitutional petition, is well taken. According to own showing of the petitioner, the letter of credit was opened by the respondent-Bank in pursuance to a contract between the parties. A copy of this document has been placed by the respondent-Bank on the flic, of this Court. Similarly, a perusal of letter of credit opened by respondent-Bank itself shows that it was established in pursuance to an agreement between the parties. There is no violation of either any statute or of statutory rule and as such, it is difficult to see as to how this petition can be maintained. In this context, the learned counsel for the respondents has relied upon the following passage appearing in Letters of Credit. The Law and Current Practice (Second Edition) by Lazar Sarna:-- The modern commercial credit transaction has developed without the assistance of specific legislative provision defining, qualifying or otherwise identifying the letter of credit as a unique contract. The letter of credit is no: a crcaturt of the i;nv in the same sense as land registration or the corporation" "The extent of the obligations and rights of the parties to the transaction and the duration of those rights must be determined". "The relationship between the customer and the issuing bank involves a loan or credit contract". Tr. order to obtain the issuance of a letter of credit, the customer usually fills out an application or agreement in standard form setting out the cetills which will ultimately appear on the face of the letter of credit, as well as the mutual rights and obligations of the customer and the bank. The customer requests the bank to issue an irrevocable letter of credit in favour of an identified party available by draft drawn on a specific branch in a specific amount covering the cost, in the event of an underlying agreement of sale, of certain objects basically described, indicating the place of shipment and destination, as well as details of the documents to accompany the drafts. The bank is further requested to notify the beneficiary of the credit by cable, mail or other means of transmission. Finally, an expiry date; iS set with or without the possibility of extension". Similarly, in Halsbury's Laws of England, Vol.3 (fourth) Edition, it is stated at page 101 (para 133) as under:— "133. Commercial Letters of credit relationship. The contractual relationship between the issuing banker and the buyer is defined by the terms of the agreement between them under which the letter opening the credit is issued; and as between the seller and the banker, the issue of the credit duly notified to the seller creates a new contractual nexus and renders the banker directly liable to the seller to pay the purchase price or to accept the bill of exchange upon tender of the documents".Reference may also be made to Pagct's Law of Banking 9th Edition, wherein it is opined at page 531 that: "The law governing commercial letters of credit is largely the law of contract and agency". To the same effect is the view of Chitty in his famous book on Contracts, 24th Edition (Vol.11), wherein the learned author has stated at Monogram 2613 that: "Pursuant to the contract of sale the buyer, in order to procure the issue of the credit, applies to a local banker setting out his requirements. This is usually made upon a standard "application form" provided by the banker and if accepted the details there recorded represent the limits of his authority. The buyer should specify whether the credit is to be opened by air mail, surface mail or cable; the duration, extent and revocability or irrevocability of the credit; details of the manner in which shipment and insurance is to be effected; an exact description of the goods; a list of the documents against which the banker is to make payment and the name of the person to whom or to whose order the bill of lading should be addressed". "The relations between the buyer and the issuing banker depend solely on the terms of the contract between them and are not affected by rights or obligations which either of them has against or owes to other parties". 13. There cannot be any doubt that a constitutional petition cannot be maintained to enforce contractual rights unless it is shown that there has been .some violation of any statute or rules having force of law. No such question arises in the present case. This petition is, therefore, not maintainable. In view of the above finding, a detailed discussion on the merits of the case is not called for but it may be stated that on the basis of material on the record, it is evident that the petitioner has not been treated fairly, equitably and justly. Although technically speaking, the letter of credit was valid for,a period of 6 months as provided in the document itself but that document makes reference to the contract between the petitioner and the foreign supplier in which the shipment period has been mentioned as two years. The learned counsel for the petitioner has taken up the position that renewal of letter of credit during the currency of the period stipulated in the agreement for purchase of goods is a matter of routine as per Banking practice. A challenge was thrown by the learned counsel to the respondent-Bank to point out any other case where the respondent-Bank or for that matter any other Bank has ever refused to extend the period of letter of credit on the ground that the time mentioned therein has expired. However, no such instance was pointed out by the respondents. 15. It may also be stated that the petitioner submitted two applications (C.M. No.l and 2 of 1992) in which similar statement was made but in the reply filed by the respondents, although it was disputed that the extension is a matter of routine but no instance where such a refusal has been made by the respondent-Bank was pointed out. Similarly, the learned counsel for the petitioner is correct in stating that different reasons for extension in letter of credit have been given at different times. When this petition came up for hearing before this Court on llth of November, 1991, the reason given for not proceeding with the application of the petitioner was that the petitioner was involved in a criminal case, which was under active consideration of the Accountability Cell of Pakistan. However, when the Accountability Cell indicated its no objection to the extension of time, the reasons for not granting the relief to the petitioner were differently stated. It may also be noticed that one of the grounds on which the respondents have refused to extend the letter of credit is that due to passage of time the Textile Industry has gone in recession and it was not economically feasible to finance Spinning Units. This fact is, however, belied by the reply filed by the respondents to C.M.No.2 of 1992 in which it has been admitted that two letters of credit were opened by the respondents-Bank on 4th of December, 1991, and 16th of December, 1991, at the request of Nayab Spinning & Weaving Mills Ltd. and Mehar Dastgir Spinning Mills Ltd. Copies of these two letters of credit have also been filed. The other grievance of the learned counsel for the petitioner that the Executive Committee, while refusing the application of the petitioner, should have granted hearing also appears to be justified, especially when the credit worthiness of the new management was being considered by it. However, as this petition has already been held to be not maintainable, this aspect of the matter need not be dialated upon. The petitioner may, if so advised, apply to the respondents for reconsideration of the matter. For the aforesaid reasons, this petition is dismissed, as being not maintainable, with no order as to costs. t MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 355 PLJ 1992 Lahore 355 Present: KllALID PAUL KHWAJA, J Mirza ARIF BAIG-Appellant Versus MUBARIK ALI-Respondent R.F.A. No.121 of 1991, dismissed on 21.10.1991 (approved for reporting on 26.6.1992). (i) Pronote— —-Loan-Recovery of-Suit under Order XXXVII of C.P.C.-Dismissal of-- Challenge to—Objection that two of adhesive stamps affixed on pronote having not been cancelled, document is rendered inadmissible, is factually correct-It is consistent view of High Court that where all adhesive stamps on a pronote are not cancelled, document is rendered inadmissible in evidence and decree cannot ^: passed on basis of said document even if defendant admits his liability—Held: Pronote being inadmissible in evidence, no decree could be passed in favour of appellant—Appeal dismissed. [P.359JB&C AIR 1939 Lahore 31(DB), AIR 1934 Lahore 606 (BD), PLJ 1977 Lahore 698 (DB) and PLD 1988 Lahore 225 (DB) rel. (ii) Pronote- —- Loan-Recovery of-Suit under Order XXXVII of C.P.C.-Dismissal of- Challcnge to—Respondent had categorically denied his signatures on pronote and receint in question—Disputed signatures having not been sent to any handwriting expert, trial Court gave its own observations about genuineness of same—Dissimilarity between disputed signatures and those on written statement and Vakalatnama is not very inconspicuous—Trial Court was competent to form its own opinion by comparing disputed signatures with admitted signatures—Held: Opinion formed by trial Court appears to be quite justified. [Pp.358&359]A Ch. Ijaz Ahmad, Advocate for Appellant. Mr. Muhammad Afzal Bhalti, Advocate for Respondent. Date of hearing: 21.10.1991. judgment This is an appeal against the judgment and decree dated 3.5.1990 whereby the learned Additional District Judge, Sargodha dismissed the appellant's suit under Order XXXVII CPC, for the recovery of Rs.25,000/- against the respondent on the basis'of .a promissory note dated 6.4.1988. 2. The relevant facts which gave rise to the present appeal are that on 2.12.1989, Mirza Arif Baig appellant instituted a suit under Order XXXVII CPC, against Mubarik Ali Khan respondent for the recovery of Rs.25,000/-. It was asserted that the relations between the parties were cordial on account of which on 6.4.1988 the respondent borrowed a sum of Rs.25,000/- from the appellant and after receiving the said money in the presence of the witnesses executed a promissory note. He promised to repay the loan after six months but when the said amount was demanded from him, he refused to pay as a result of which the appellant was constrained to institute the prsent suit. 3. The respondent was permitted to appear and defend the suit. He filed his written statement and denied having executed the promissory note in question. He also denied having received any money from the appellant under the said document which, according to him, was fake and fictitious. 4. On the pleadings of the parties, the following issues were frame'd:-- (/) Whether pronote dated 6.4.1988 was executed by the defendant with consideration in favour of the plaintiff? OPP (ii) Relief. 5. The parties adduced their evidence on the above issues. After considering the said evidence, the learned Additional District Judge, who was seized of the matter, dismissed the suit vide the impugned judgment and decree. Feeling aggrieved, the appellant has come up in appeal. 6. I have heard the parties' learned counsel and have also gone through the record with their assistance. 7. Perusal of the impugned judgment shows that the learned trial Court had dismissed the suit on the following grounds: (1) that the payment of consideration had not been proved because the attesting witnesses of the receipt and pronote had not been examined under Article 79 of the Oanun-e-Shahadat Order; (2) that the alleged signature of the respondent which appear on the pronote in question does not tally with his signatures on the written statement and the power of attorney; and (3) that the appellant's evidence was contradictory and unreliable. 8. Learned counsel for the appellant has contended that the learned trial Court had misread the evidence and had misapplied the law and thus had come to incorrect conclusions. On the other hand learned counsel for the respondent has conceded that the provisions of Section 79 of the Qanun-e-Shahadat Order were not applicable in the present case but maintained that the suit had been rightly dismissed by the learned trial Court whose findings were amply supported by evidence on record. 9. Mirza Arif Baig appellant appeared as PW-3 before the trial Court and stated that the payment of consideration was made to Mubarik Ali Khan respondent at the time of the execution of the pronote Exh.P-A. Muhammad Shafi stamp vendor/deed writer appeared as PW-1 and stated that he had scribed the pronote in question with the consent of the parties and that Mubarik Ali respondent had signed the said pronote in his presence. He, however, stated that no payment was made in his pcrsence. Intizar Hussain PW-2, who in fact is the attesting witness of the receipt (not exhibited), has stated that he had signed the pronote in question as its attesting witness and that at the time of the execution of the pronote a consideration of Rs.25,000/- had been paid by the appellant to the respondent. He further stated that the respondent had signed the pronote in his presence. On the other hand Mubarik AH respondent appeared as DW-3 and categorically denied having executed any pronote in favour of the appellant. He further denied having received any amount from him under the said document Muhammad Ishtiaq DW-1 and Muhammad Siddique DW-2 supported him. 10. The pronote in question is Exh. P-A. It purports to have been executed on the 6th of April, 1988. The accompanying receipt is attested by Intizar Hussain PW-2 and Karam Elahi Qurcshi (not examined). The signature of Intizar Hussain aforesaid on the said receipt has been exhibited as PW-2/1 but the receipt has not been exhibited. In fact none of ihe PWs has said a word about the execution of the said receipt. Learned counsel for the respondent has rightly submitted that where payment of consideration was evidenced by a document only that document would be considered as the proof of such consideration and no oral evidence would be admissible and in the present case the failure of the appellant to prove the receipt in question would lead to the irresistible conclusion that payment of consideration had not been proved. According to the appellant the pronote was executed and the payment of consideration was made in the same sitting. However, the other two witnesses materially contradict each other on this point. According to Muhammad Shafi PW-1, the scribe of the pronote, no payment was made in his presence while according to Inti/ar Hussain PW-2, the attesting witness of the receipt, the payment was made at the time of the execution of the pronote. This contradiction is irreconcilable and is indicative of the fact that the witnesses are unreliable and undependablc. Further, Intizar Hussain PW-2 has insisted that the pronote in question was executed on Friday. The calendar, however, contradicts him, according to which it was Wednesday on 6th April, 1988. According to the particulars of Intizar Hussain PW-2, given in the receipt, he was the resident of House No.3-5-58 Block No.5 Sargodha. The appellant in his statement as PW-3 has stated that his brother Mir/a Waseem Baig had brought Intizar Hussain aforesaid from his house in Block No.5. However, Intizar Hussain PW-2 in his statement categorically stated that since 1987 he was residing in Iqbal Colony Sargodha. Learned counsel for the respondent has vehemently maintained thai the incorrect address of Inti/ar Hussain PW-2 on the receipt in question clearly indicates that the two documents were fake and fabricated. Had Intizar Hussain PW-2 been present at the time of the execution of the documents, learned counsel asserted, his incorrect address would not have been entered in the docur.^nt in question. 11. The respondent had categorically denied his signatures on the pronote and receipt in question. Disputed signatures alongwith admitted signatures of the respondent were not sent to any hand-writing expert and therefore, the learned trial court has given its own observation about the genuineness of the disputed signatures. I have also seen with care the alleged signatures of the respondent on the pronote and the receipt in question and have compared them with his signatures on the written statement and the Vakalatnama. The dissimilarity between the aforesaid two kinds of signatures is not very inconspicuous. Letters 'M' 'A' and 'K' in the signature 'M.A. Khan' are not similar. When the parties had not brought forward any expert witness to give opinion about the genuineness of the signatures in question, the learned trial court was competent to form its own opinion by comparing the disputed signatures with the admitted signatures. The opinion which it has formed in the present case appears to be quite justified. 12. Learned counsel for the respondent has raised serious objection to the admissibility of the pronote in question and has urged that the same should not be considered as valid evidence. His objection is that two of the adhesive stamps affixed on the pronote have not been cancelled and thus the document is rendered inadmissible in evidence. This objection is factually correct. The pronote bears 25 adhesive stamps of the denomination of paisas 40 each out of which two stamps i.avc not been cancelled. It is the consistent view of this Court that where all the adhesive stamps on a pronote are not cancelled the document is rendered inadmissible in evidence and decree cannot be passed on the basis of the said document even if the defendant admits his liability. In this connection decisions of this Court in Finn Sn Chand Shco Parshad v. Lajja Ram (AIR 1939 Lahore 31 DB). .So/iJ': Lai \ihal Chand . Ratfut .\'ath Singh and others (AIR 1934 Lahore 606 D B: S'lak'-u^phra Central Cooperative Bank Ltd. v. Ch. Tawakkal Ullah and anoi'iLi PU 19~" Lahore 698 (DB). and United Bank Ltd. v. Mian Abdul Klialiq (PLD 19NS Lahore 225 D.B) have been relied upon. Learned counsel for the appellant on the other hand has not been able to cite any authority either of this Court or of the Supreme Court wherein a contrary view had been taken. I, therefore, have no hesitation in holding that the pronote in question is inadmissible in evidence and no decree could be passed in favour of the appellant against ihe respondent on the basis of the said pronote. 15. In -»icw of the above discussion it is held that the evidence led by the appcliint m support of his claim was not worthy of reliance, that the signatures on the proncne and receipt in question purporting to be those of the respondent were not genuine and that the pronote in question was inadmissible in evidence on account of the fact that stamps affixed thereon had not been duly cancelled. The learned trial court was, therefore, perfectly justified in dismissing the appellant's suit There is no merit in this appeal which is also dismissed with costs. (MBC; (Approved fdr reporting) Appeal dismissed.

PLJ 1992 Lahore 360 PLJ 1992 Lahore 360 Present: Kl 1ALID PAUL KHWAJA, J MUHAMMAD YAR etc. --Appellants versus Mst. BAKHAN ere.-Respondents F.A.O. Nos. 106,107,198 and 199 of 1977, decided on 11.12.1991 (approved for reporting on 26.6.1992). Abatement-- —Declaratory suits-Evidence of parties concluded-Death of one of defendants-Whether suits had abated-Question of-Hearing is said to have been concluded in a suit when parlies' evidence is concluded-In this case, no arguments had ever been heard and, therefore, for all intents and purposes, hearing had "concluded on 15.9.1969 before death of defendant on 7.7.1970- Held: In view of provisions of Order XXII Rule 6 of C.P.C., no abatement could take place in both suits on account of death of Muhammad Nawaz dcfendant-F.A.O. Nos. 198 and 199 instituted by plaintiffs treated as revisions and accepted. [P.363]A&B PLD1961B.J. 58 re/. Raja Muhammad Anwar and Raja Mahmood Akhtar, Advocates for Appellants (in F.A.O. Nos.106 and 107 of 1977) and for Respondents (in F.A.O. Nos.198 and 199 of 1977). Mr. Abdul 'Aziz Qureshi, Advocate for Respondents (in F.A.O. Nos.106 and 107 of 1977) and for Appellants (in F.A.O. Nos. 198 and 199 of 1977). Date of hearing: 13.10.1991. judgment By this judgment, I propose to dispose of the following FAOs in which common questions of law and facts are involved:— (/) FAQ No.106 of 1977 "Muhammad Yar etc. v. Mst. Bakhan" (//) FAQ No. 107 of 1977 "Muhammad Yar etc. v. Wst. Sattan" (Hi) FAQ No. 198 of 1977 "Msl. Bakhan v. Muhammad Yar and another" (iv) FAQ No.199 of 1977 "Mst. Sattan v. Muhammad Yar and others", 2. The above appeals ha\c arisen out of the following facts:- On 4,9.1968 Mst. Sattan instituted a suit (No.95 of 1968) in the Civil Court Sargodha against Muhammad Yar, Muhammad Nawaz, Muhammad Riaz and Dost Muhammad for a declaration to the effect that she was the owner in possession of land measuring 87 kanals 5 marlas situate in village Utti Tehsil and District Sargodha which she had inherited from her father vide inheritance mutation No.157 dated 29.9.1949, that the registered sale deed dated 21.2.1967, purporting to have been executed by her in favour of Muhammad Yar, Muhammad Nawaz and Muhammad Riaz aforesaid with regard to 56 Kanals of land, was a fake and fabricated document which she had never executed, that the said sale deed being null and void was ineffective against her rights. She further sought a declaration to the effect that she had not gifted away 31 Kanals 5 Marias of her land in favour of her brother Dost Muhammad (the 4th defendant) and that mutation No. 28 dated 20.9.1967 with regard to the said gift, a mention of which had been made in the above mentioned sale deed, was also null and void. By way of consequential relief she sought the cancellation of the said sale deed. She also sought the issuance of a permanent injunction to restrain the so called vendees from interfering with her possession over the suit land. , On the same day her sister Mst. Bakhan also instituted a suit (No.196 of 1968) in same Court at Sargodha against Muhammad Yar, Muhammad Nawaz and Nfuhammad Riaz aforesaid. She also sought a declaration to the effect that she was the owner in possession of 87 Kanals 5 Marias of land situate in the above mentioned illage which she had inherited from her father through inheritance mutation No.157 dated 29.9.1949, that the registered sale deed dated 23.2.1967 purporting to have been executed by her in favour of Muhammad Yar, Muhammad Nawaz and Nfuhammad Riaz with regard to the said land was a fake and fabricated document and thus being null and void was ineffective against her rights. By way of consequential relief she sought the concellation of the said sale deed. She also prayed for the issuance of a permanent injunction to restrain the ostensible vendees from interfering with her possession. 3. The vendees, hereinafter called the defendants, resisted the suits. Dost Muhammad defendant No.4 in suit No.95 of 1968, however, admitted the claim of Mst. Sattan. On the pleadings of the parties, issues were framed in each suit. Evidence was led on the said issues and the suits were fixed for arguments when on 7.7.1970 Muhammad Nawaz, one of the defendants died. On 8.10.1970, the plaintiffs moved applications in their respective suits for bringing on record the legal representatives of the said deceased defendant. They also prayed for setting aside the abatement of the suits, if any. 4. The defendants contested the said applications on the plea that the same were barred by time and the suits stood abated. 5. On the said applications, the following two issues were framed:- (/) Whether the application is within time? (//) Whether there is sufficient cause to set aside the abatement? The plaintiffs examined Ghulam Farid Moharrir Head Constable, Police Station City, Sargodha , Bati and Khanjar as AWs. They also appeared as their own witnesses. In rebuttal the defendants examined Muhammad Hayat, Maula Bukhsh as RWs, while Muhammad Yar defendant appeared as RW.3. Ext AW.1/1 a copy of report No.32 dated 7.7.1970 entered in the Register Roznamcha at Police Station, Sargodha was also produced in evidence to confirm that Muhammad Nawaz deceased defendant had accidently died on 7.7.1970 due to electric shock. 6. After considering the said evidence, the learned trial Court came to the conclusion that the applications for bringing on record the legal representatives of Muhammad Nawaz deceased defendant moved by the plaintiffs were barred by time and therefore the suits had abated in toto because the transaction in each suit was 'compact and indivisible'. Consequently vide judgments and decrees dated 10.12.1973, the suits were dismissed. 7. Feeling aggrieved, both the plaintiffs namely Mst. Sattan and Mst. Bakhan went in appeal. The learned District Judge, Sargodha, after hearing the parties' counsel, partly accepted the said appeals vide judgments and decrees dated 16.3.1977 holding that the suits so far as they related to Muhammad Nawaz deceased defendant had abated and there was no ground for setting aside the said abatement. It was further held that the learned trial Court was wrong in holding that the transactions in question were 'compact and indivisible' and therefore abatement against one defendant would not bar the hearing of the suit against the other defendants. Consequently abatement against the remaining defendants was set aside and the suits were remanded to the learned trial Court for decision on merits. 8. Both the parties, plaintiffs as well as defendants, have brought under challenge the aforementioned decisions of the learned District Judge through the above mentioned FAOs. The plaintiffs pray for setting aside the abatement against the deceased while the defendants urge the dismissal of both the suits on the plea of total abatement. 9. I have heard the parties' learned counsel and have, with their assistance, gone through the record. 10. Perusal of the record has revealed that issues in the two suits were framed on 27.11.1968, the plaintiffs had concluded their evidence on 2.6.1969 while the defendants had closed their evidence on 15.9.1969. Thereafter the suits were adjourned to various dates for the hearing of arguments. Before any arguments could be heard Muhammad Nawaz deceased died and subsequently the suits were dismissed on the ground of abatement. It is thus established that death of Muhammad Nawaz defendant had occurred after the conclusion of evidence and before the pronouncement of judgment. Order XXII, Rule 6 lays down: 6. Wo abatement by reason of death after hearing. -Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place". In view of the above provision of law no abatement could take place in both the suits on account of the death of Muhammad Nawaz defendant who had died on 7.7.1970. It goes without saying that hearing is said to have been concluded in a suit when the parties' evidence is concluded and for the purposes of Rule 6 ibid if arguments are heard in the case then the hearing would be considered to have been concluded when arguments were heard. In the present case no arguments had ever been heard and therefore, by all intents and purposes the hearing had concluded on 15.9.1969 when the defendants closed their evidence. In support of this view Abdullah and another v. Mian Tafazzul Hussain and another (PLD 1961 B J. 58) may be referred to. 11. Surprisingly this aspect of the case was not considered either by the learned trial Court or by the learned appellate Court. It was also not urged by the plaintiffs either in their appeal before the learned District Judge or even before this court. However, when the attention of the parties' learned counsel was invited to the above mentioned provision of law they had no hesitation in conceding that B the said provision would apply in the present case and the suits would not abate despite the death of one of the defendants. It is consequently held that the plaintiffs suits could not have abated due to the death of Muhammad Nawaz defendant. Accordingly the appeals of the defendants (FAO Nos. 106 and 107 of 19~"7) are dismissed while the appeals instituted by the plaintiffs (FAO Nos. 198 and 199 of 1977) are treated as revisions and accepted. The impugned orders of abatement are set aside and the suits are remanded to the learned trial Court for decision on merits. 12. The parties shall bear their own costs. (MBC) (Approved for reporting) Abatement set aside.

PLJ 1992 Lahore 363 PLJ 1992 Lahore 363 Present: KHALID PAUL KHWAJA, J ELLAHI BAKHSH etc. --Petitioners versus MUHAMMAD AZAM etc. -Respondents Writ Petition No.4172 of 1989, accepted on 12.11.1991 (approved for reporting on 26.6.1992). (i) Civil Procedure Code, 1908 (V of 1908)-- —-O.IX R.8 read with Order XVII Rule 2-Declaratory suit-Dismissal for nonprosecution and non-production of evidence—Order set aside in revision-­ Challenge to-Presumption of truth is attached to order dated 18.2.1988 which presumption has not been dislodged by affidavit in support of assertion of respondents that they had no notice of date 28.2.1988 for production of evidence—It is fully established that they were present before court and in their presence, suit was adjourned to 28.2.1988 on which date they failed to appear and their suit was dismissed-Held: Order of trial court did not suffer from any illegality and Additional District Judge could not have interfered with and set it aside-Held further: Impugned order was blatantly opposed to law, arbitrary and unsustainable. [Pp.367&368]A&B (ii) Limitation- —Declaratory suit-Dismissal for non-prosecution and non-production of evidence-Order set aside in revision-Challenge to-Whether revision was time-barred-Question of~Suit was dismissed on 28.2.1988 and revision was filed on 5.3.1989, i.e. after about a year-Revision petition was to be filed within 90 days and if it was filed beyond that period, delay had to be satisfactorily explained-Held: Revision petition filed by respondents before District Court, was hopelessly barred by time and neither an application for condonation of delay was filed nor delay was explained. [Pp.368&369]C (iii) Maintainability- —Declaratory suit—Dismissal for non-prosecution and non-production of evidence-Order set aside in revision-Challenge to-Whether writ petition is maintainable-Question of-Impugned order was passed by Additional District Judge in total disregard of statutory law and law laid down by superior courts- Trial court's order was set aside arbitrarily and fancifully—Impugned order was not only void but also coram-non-judice-HelA: Writ petition is competent-­ Petition accepted. [P.369]D,E&F PU1988SC116/-e/. Sh. Naveed Shahryar, Advocate for Petitioners. Ch. Muhammad Bakhsh, Advocate for Respondents. Dates of hearing: 11 and 12.11.1991. judgment The relevant facts which gave rise to the present writ petition are that on 10.10.1983 Muhammad Azam etc respondents instituted a suit for a declaration to the effect that they were the owners in possession of the suit land measuring 341 Kanals situate in village Jore Skaser, District Sargodha and that the gift deed dated 6.11.1974 and sale deed dated 7.11.1974 were the result of misrepresentation and fraud and thus were not effective against their rights. By way of consequential relief they sought issuance of permanent injunction to restrain Elahi Bakhsh etc, petitioners herein, from interfering with their possession over the said land. The petitioners contested the suit setting up the plea that they were the bonafide purchasers of the suit land for a price of Rs.2,85,000/- and were also in possession of the same. On the pleadings of the parties issues were framed and the parties were directed to produce their evidence. Several opportunities were afforded to the respondents for the production of their evidence but they failed to produce any. Finally on 28.2.1988, when the case was fixed for their evidence, they and then- counsel absented themselves as a result of which the learned trial Court dismissed the suit under Order IX Rule 8 read with Order XVII Rule 2 CPC. Feeling aggrieved, on 5.3.1989, the respondents filed a revision petition to question the correctness of the order of the dismissal of their suit. The learned Additional District Judge, who was seized of the matter, accepted the revision petition vide order dated 4.6.1989 as a result of which the order dated 28.2.1988 was set aside and the case was remanded for trial in accordance with the law. The petitioners have challenged the validity of the said order in this writ petition. 2. I have heard the parties' learned counsel and have also gone through the material available on record. 3. Learned counsel for the petitioners has submitted that the revision petition instituted by the respondents was not competent insofar as the impugned order dated 28.2.1988 was passed by a competent court, that the petitioners had failed to show or even allege that the said court had exercised jurisdiction not vested in it or had not exercised jurisdiction vested in it or that the jurisdiction had been exercised illegally or with material irregularity. On the other hand, it was submitted on behalf of the respondents that the case was not adjourned to 28.2.1988 on the request of the respondents and therefore, the suit could not have been dismissed either under Order IX Rule 8 or under Order XVII Rule 2 CPC and that as the impugned order dated 28.2.1988 was a void order revision under Section 115 CPC was competent. 4. Elaborating his submission learned counsel for the respondents contended that on 27.1.1988 the suit was adjourned to 8.2.1988, that the same was not laid down before any court on the said date but was put up before the learned Senior Civil Judge on 18.2.1988 which was not a date fixed by the court and that from 18.2.1988 the case was adjourned to 28.2.1988 in routine by tKe Court and not on the request of the respondents and therefore, the suit could not be dismissed on the said adjourned date. 5. Persual of the photostat copy of the order sheet reveals that on 27.1.1988 the following order was passed by the trial Court: On 18.2.1988 the following order was passed by the learned Senior Civil Judge, Sargodha : "Present: Counsel for the parties. Order. Suit has (been) received in this court by way of transfer today. Let it be registered in the register of civil suits. Suit is more than 3 years' old, therefore, is adjourned to 28.2.1988 for the evidence of the plaintiff. No further opportunity will be granted. Announced Sd/- 18,2.1988 Senior Civil Judge" On 28.2.1988 the following orders were passed: Time: 3.50 p.m. Again and again called for. Present: Counsel for the defendant. None on behalf of plaintiff. Order: Inspite of repeated calls evidence of the plaintiff is also not present. Suit stands dismissed under Order IX Rule 8 read with Order 17(2) of the CPC with no order as to costs. File to be consigned to the judicial record room. Announced Sd/- 28.2.1988 Senior Civil Judge". 6. Learned counsel for the respondents has laid much stress on his assertion that 18.2.1988 was not a date fixed in the suit and that his clients had no notice of it. He submitted that any order passed on 18.2.1988, therefore, was illegal and void and that any subsequent orders passed in the suit would also be considered to be illegal and void. This was the only illegality which was pointed out in the order dated 28.2.1988. 1 am afraid, the contention raised on behalf of the respondents in this Court is without any substance and thus not tenable. Perusal of the revision petition in question clearly shows that the respondents had admitted that from 27.1.1988 the suit was adjourned to 18.2.1988 and not to 8.2.1988 as it is now being asserted. In fact there is no mention of 8.2.1988 as a date of hearing. In this view of the matter it does not lie in their mouth now to say that 18.2.1988 was not a date fixed in the suit. I have seen the relevant portion of the photostat copy of the order sheet which shows that in the order dated 27.1.1988 the next date is given as 8.2.1988 but I am of the opinion that figure 1 of figure 18 had somehow been omitted due to mechanical defect because the respondents in their revision petition would not have admitted 18.2.1988 as the date of hearing if the actual date was 8.2.1988. The contention which the respondents are raising now is an after-thought and perhaps the result of defective photostat copy of the order sheet. Be that as it may, the record clearly shows that on 18.2.1988 the respondents alongwith the petitioners were present through their counsel before the learned trial Court i.e. Senior Civil Judge, Sargodha to whom the suit had been entrusted for disposal. Under Article 129 of the Qanun-e-Shahadat Order 1984 presumption of truth is attached to the order dated 18.2.1988 and it will be presumed that the respondents were present before the trial Court on the said date. No doubt this presumption is rebuttable but the respondents have not made any effort to dislodge the said presumption by submitting any affidavit in support of their assertion that they had no notice of any such date. From the material available on record it is thus fully established to my satisfaction that the respondents (plaintiffs) were present before the learned trial Court on 18.2.1988 and in their presence the suit was adjourned to 28.2.1988 for the production of their evidence and on the said date they failed to appear and their suit was dismissed. The learned trial Court was fully competent to pass such an order under Order IX Rule 8 CPC read with On -r XVII Rule 2. The illegality which the respondents have pointed out in the saiJ order is no illegality at all. The following portion of the revision petition speaks volumes about the absurdity of the respondent's argument: 7. I am therefore of the firm opinion that the order dated 28.2.1988 did not suffer from any illegality and the learned Additional District Judge could not have interfered with it and set it aside in exercise of revisional jurisdiction. Further, the said order of the trial court could not be set aside merely on the ground that technicalities should not be allowed to defeat substantial justice.Cases which come to the courts of law are required to be disposed of in accordance with the law. It is true that while disposing of such case technicalities should not be allowed to defeat substantial justice but at the same time parties should not be allowed to flout law or make a mockery of it. In the present case, the respondents did not have any justification for their absence before the trial court on 28.2.1988 when their suit was dismissed. They slept over for full one' year and then one fine morning sauntered into the District Court with a revision petition in hand to have the order of the dismissal of their suit set aside so that they could resume legal proceedings to drag the petitioners into the torturous litigation which was hanging fire for the last about five years without any visible progress. They did not choose to go to the trial court with an application under Order IX Rule 9 CPC for the restoration of the suit because there they could have been asked to show sufficient cause for their absence which probably they could not have shown. Their conduct which outrightly lacked bonafides did not entitle them to any indulgence. Ordering the restoration of their suit amounted to allowing them to prosecute their suit not in accordance with the law but in accordance with their sweet will and convenience. The impugned order of the learned Additional District Judge, therefore, was blatantly opposed to law, arbitrary and unsustainable. 8. The respondent's suit was dismissed for non-prosecution on 28,2.1988. To challenge the validity of the said order of dismissal they filed a revision petition in the District Court on 5.3.1989 i.e. after about a year. It has been laid down in Manager, Jamimi and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C. 678) that a revision petition under Section 115 CPC has to be filed within the unprescribed period of 90 days and if the same was filed beyond the said period the delay had to be satisfactorily explained. The law laid down by the Supreme Court in this case has been followed in Muhammad Ayub and 9 others v. ZarifKJian and 2 others [1988 CLC 33 (Peshawar)], Ch. Maqsood Ahmad v. KJialid Pervaiz [1990 CLC 1536 (Lahore)] andAkbar Klian v. Muhammad KJian [1990 CLC 1828 (Lahore)]. In this view the revision petition filed by the respondents before the District Court was hopelessly barred by time. They did not file any petition under Section 5 of the Limitation Act for the condonation of the said delay nor did they explain the said delay in the revision petition. Even before this Court they failed to explain such delay. I, therefore, have no hesitation in holding that the revision petition before the learned District Court was hopelessly barred by time and liable to be dismissed. Learned Additional District Judge, while disposing of the revision petition, relied on PLD 1964 S.C. 97 to dispose of the objection about limitation. He conveniently ignored the latest law on the subject contained in PLD 1975 S.C. 678 and thus acted illegally. 9. Learned counsel for the respondents maintained that the impugned order passed by the learned Additional District Judge in exercise of revisionaL jurisdiction could not be challenged in writ jurisdiction as the revisional court had jurisdiction to decide the matter rightly or wrongly and the mere fact that decision of the said court on a question of fact or law was not correct did not necessarily render it without lawful authority. In this regard he relied on Abdur Rchman Bajwa \ Sultan and 9 oi'icrs (PLD 1981 S.C. 522), Hamayat KJian and another v. Ahmad Dm and 2 others [NLR 1982 S.C.J. 534 (2)] and Noor Muhammad v. Samar Klian and 2 others (PLD 1985 S.C. 131). On the other hand relying on Muhammad Zahoor and another v. Lai Muhammad and 2 others (PLJ 1988 S.C. 110) the learned counsel for the petitioners maintained that High Court in exercise of its constitutional jurisdiction could examine the validity the final orders passed by Civil Courts if (hey were wholly void or coram non judice. Their Lordships have observed at page 326 of the judgment:"A bare perusal of sub-Article (5) of Article 199 of the Constitution of Pakistan makes it plain that the constitutional jurisdiction of the High Court extends to reviewing the orders of a Court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan. We are, therefore, not in a position to lay down the wide proposition that the constitutional jurisdiction of the High Court is not at all invokable in respect of an order passed by a Civil Court. In saying so we do not in the least mean to water down the general observations made in the aforesaid decisions discouraging vexatious and incompetent constitutional petitions filed against final orders passed by the Civil Courts within the ambit of their jurisdiction unless the order is wholly void or coram non judice". In the present case it would be seen that the impugned order by the learned Additional District Judge was passed in total disregard of the statutory law and the law laid down by the superior courts and the trial court's order had been set aside arbitrarily and fancifully. In this view of the matter I am of the opinion that the learned Additional District Judge had acted without lawful authority in setting aside order dated 2S.2.19NS passed by the trial court. The impugned order th^retore v,a> not onlv void but coram non judice. The present writ petition, therefore, is quite competent. ID. The upshot of the above discussion is that the impugned order is liable to be set aside as the same has been found to be without lawful authority, void and without legal effect. Consequently this writ petition is accepted, the impugned order is set aside and the order of the learned trial court dated 28.2.1988 is restored. The respondents shall bear the costs of the suit throughout. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 370 [FB] PLJ 1992 Lahore 370 [FB] Present: M. mahboob ahmad, CJ, rashid aziz khan and malik muhammad qayyum, JJ GHULAM SHABBIR and 36 others-Petitioners versus PUNJAB SPECIAL COURT (SUPPRESSION OF TERRORIST ACTIVITIES) NO.5, FAISALABAD and another-Respondents Writ Petition No.4412 of 1990, accepted on 9.3.1992 (approved for reporting on 16.6.1992). Jurisdiction-- —Trial before Special Court (Suppression of Terrorist Activities)-Objection to jurisdiction of Court—Whether Special Court has jurisdiction to try nonscheduled offences also along with scheduled offence—Question of—It is an undisputed and well settled principle of law that a Special Court being creation of Statute, has only such jurisdiction as is conferred by Statute-It cannot extend its jurisdiction beyond scope of law creating it—Under Section 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975, a Special Court has exclusive jurisdiction with respect to offences set out in first schedule to Act—It has been held by Supreme Court, while interpreting Section 4(2) of Act, that Special Court can try only offences mentioned in Schedule annexed therewith and that an offence falling outside schedule is not triable by Special Court-Held: Finding of Special Court is not borne out by language of Statute itself nor said Court appears to have taken notice of judgments of superior Courts on proposition, which were binding upon it-Petition accepted. [Pp.371&372]A,B,C,D&E 1991 P.S.C. 998 and 1992 P.Cr.LJ 127 rel. Raja Muhammad Anwar, Advocate for Petitioners. Malik Maqbool Elahi, Advocate General and Mr. Irfan Qadir, Addl. A.G. with Mr. M.M. Saeed Beg, Advocate for Respondents. Date of hearing: 9.3.1992. judgment Mahboob Ahmad, C J.--This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question an order passed by the Special Court No.5, Faisalabad under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on 13th of June, 1990 whereby it dismissed an application filed by the petitioner objecting to its jurisdiction to try the offences not specified in the first Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. 2. Briefly stated, the facts of the case are that on 23.1.1990 a case was registered against the petitioner and others vide FIR No.41/90 at Police Station City Chiniot. On 21.5.1990, challan against 37 accused was presented by the police before Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. One of the accused namely Ghulam Shabbir, petitioner filed an application on 26th May, 1990 before the Judge Special Court objecting to the assumption of jurisdiction by him on the premises that the offence with which he was charged did not fall in the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. 3. The learned counsel for the petitioners in support of this petition has contended that according to Section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 if during the course of trial before the Special Court the Court comes to the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall try the accused only for those offences which are mentioned in the schedule. 4. The learned Additional Advocate General has, on the other hand, defended the impugned order by arguing that if during the course of one transaction different offences are committed, some of which are scheduled and the others non-scheduled, all the offences can be tried by the same Court as otherwise there would be multiplicity of proceedings. 5. Having given consideration to the respective contentions raised on behalf of the parties, we are of the view that the contention of the learned counsel for the petitioners has force. Section 4 of the Suppression of Terrorist Activities (Special Courts; acl 19~5. which is the provision conferring jurisdiction on the Special Courts set up under the Suppression of Terrorist Activities (Special Courts) Act, l''~5 is reproduced hereundcr for facility of reference:— 4. Jurisdiction of Special Court : (1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court ; Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the,constitution of the Court. Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification. (2) If. in the course of a trial before the Special Court , the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence". 6. It is an undisputed and well settled principle of law that a Special Court being creation of the Statute under which it has been set up has only such jurisdiction as is conferred by the Statute. It cannot extend its jurisdiction beyond the scope of the law creating it. Now the four corners of the jurisdiction of the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 are provided for by Section 4. Section 4(1) categorically provides for the exclusive jurisdiction of a Special Court set up under the Suppression of Terrorist Activities (Special Courts) Act. 1975 with respect to the offences which are set out in first schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. The further clarification in this regard is contained in sub-section (2) of Section 4 which again in unequivocal and unambiguous terms provides that if during the trial a Special Court is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is scheduled offence. The words in sub-section (2) "try the accused only for such offence, if any", are of significance and leave no room for interpretation other than the conclusion reached by us as above that the Special Court can try the accused for a scheduled offence only. 7. It may also be pertinently observed that the view which we have taken finds support from Ncclam Mawa: v. State reported as 1991 P.S.C. 998 and Muhammad Sharif v. Vic State reported as 1992 P.Cr.L.J. 127 wherein interpreting Section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, it has been held that the Special Court can try only the offences mentioned in the Schedule annexed therewith and that an offence falling outside the Schedule is not triable by the Special Court. We are surprised to see how the Special Court while delivering the impugned judgment has interpreted the aforementioned provisions of Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 so as to empower it to try even a non-scheduled offence. To say the least, the aforementioned finding of the Special Court is not borne out by the language of the Statute itself nor the said Court appears to have taken notice of the judgments of the superior Courts on the proposition which were binding upon it. 8. In view of the foregoing discussion, this petition is allowed and order dated 13.6.1990 passed by the Judge Special Court , Faisalabad is quashed as being without lawful authority and of no legal effect. Rcsultantly the case against the petitioners as regards the offence not covered by the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall be tried b. ihe ordinary criminal Court. There will, however, b no order as to costs. (MBC) \improved for reporting) Petition accepted. PLJ 1992 Lahore 370 [FB] Present: M. mahboob ahmad, CJ, rashid aziz khan and malik muhammad qayyum, JJ GHULAM SHABBIR and 36 others-Petitioners versus PUNJAB SPECIAL COURT (SUPPRESSION OF TERRORIST ACTIVITIES) NO.5, FAISALABAD and another-Respondents Writ Petition No.4412 of 1990, accepted on 9.3.1992 (approved for reporting on 16.6.1992). Jurisdiction-- —Trial before Special Court (Suppression of Terrorist Activities)-Objection to jurisdiction of Court—Whether Special Court has jurisdiction to try nonscheduled offences also along with scheduled offence—Question of—It is an undisputed and well settled principle of law that a Special Court being creation of Statute, has only such jurisdiction as is conferred by Statute-It cannot extend its jurisdiction beyond scope of law creating it—Under Section 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975, a Special Court has exclusive jurisdiction with respect to offences set out in first schedule to Act—It has been held by Supreme Court, while interpreting Section 4(2) of Act, that Special Court can try only offences mentioned in Schedule annexed therewith and that an offence falling outside schedule is not triable by Special Court-Held: Finding of Special Court is not borne out by language of Statute itself nor said Court appears to have taken notice of judgments of superior Courts on proposition, which were binding upon it-Petition accepted. [Pp.371&372]A,B,C,D&E 1991 P.S.C. 998 and 1992 P.Cr.LJ 127 rel. Raja Muhammad Anwar, Advocate for Petitioners. Malik Maqbool Elahi, Advocate General and Mr. Irfan Qadir, Addl. A.G. with Mr. M.M. Saeed Beg, Advocate for Respondents. Date of hearing: 9.3.1992. judgment Mahboob Ahmad, C J.--This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question an order passed by the Special Court No.5, Faisalabad under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on 13th of June, 1990 whereby it dismissed an application filed by the petitioner objecting to its jurisdiction to try the offences not specified in the first Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. 6. Briefly stated, the facts of the case are that on 23.1.1990 a case was registered against the petitioner and others vide FIR No.41/90 at Police Station City Chiniot. On 21.5.1990, challan against 37 accused was presented by the police before Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. One of the accused namely Ghulam Shabbir, petitioner filed an application on 26th May, 1990 before the Judge Special Court objecting to the assumption of jurisdiction by him on the premises that the offence with which he was charged did not fall in the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. 7. The learned counsel for the petitioners in support of this petition has contended that according to Section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 if during the course of trial before the Special Court the Court comes to the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall try the accused only for those offences which are mentioned in the schedule. 8. The learned Additional Advocate General has, on the other hand, defended the impugned order by arguing that if during the course of one transaction different offences are committed, some of which are scheduled and the others non-scheduled, all the offences can be tried by the same Court as otherwise there would be multiplicity of proceedings. 9. Having given consideration to the respective contentions raised on behalf of the parties, we are of the view that the contention of the learned counsel for the petitioners has force. Section 4 of the Suppression of Terrorist Activities (Special Courts; acl 19~5. which is the provision conferring jurisdiction on the Special Courts set up under the Suppression of Terrorist Activities (Special Courts) Act, l''~5 is reproduced hereundcr for facility of reference:— 4. Jurisdiction of Special Court : (1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court ; Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the,constitution of the Court. Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification. (2) If. in the course of a trial before the Special Court , the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence". 9. It is an undisputed and well settled principle of law that a Special Court being creation of the Statute under which it has been set up has only such jurisdiction as is conferred by the Statute. It cannot extend its jurisdiction beyond the scope of the law creating it. Now the four corners of the jurisdiction of the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 are provided for by Section 4. Section 4(1) categorically provides for the exclusive jurisdiction of a Special Court set up under the Suppression of Terrorist Activities (Special Courts) Act. 1975 with respect to the offences which are set out in first schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. The further clarification in this regard is contained in sub-section (2) of Section 4 which again in unequivocal and unambiguous terms provides that if during the trial a Special Court is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is scheduled offence. The words in sub-section (2) "try the accused only for such offence, if any", are of significance and leave no room for interpretation other than the conclusion reached by us as above that the Special Court can try the accused for a scheduled offence only. 10. It may also be pertinently observed that the view which we have taken finds support from Ncclam Mawa: v. State reported as 1991 P.S.C. 998 and Muhammad Sharif v. Vic State reported as 1992 P.Cr.L.J. 127 wherein interpreting Section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, it has been held that the Special Court can try only the offences mentioned in the Schedule annexed therewith and that an offence falling outside the Schedule is not triable by the Special Court. We are surprised to see how the Special Court while delivering the impugned judgment has interpreted the aforementioned provisions of Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 so as to empower it to try even a non-scheduled offence. To say the least, the aforementioned finding of the Special Court is not borne out by the language of the Statute itself nor the said Court appears to have taken notice of the judgments of the superior Courts on the proposition which were binding upon it. 11. In view of the foregoing discussion, this petition is allowed and order dated 13.6.1990 passed by the Judge Special Court , Faisalabad is quashed as being without lawful authority and of no legal effect. Rcsultantly the case against the petitioners as regards the offence not covered by the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall be tried b. ihe ordinary criminal Court. There will, however, b no order as to costs. (MBC) \improved for reporting) Petition accepted.

PLJ 1992 Lahore 373 PLJ 1992 Lahore 373 Present: GUL zarin kiani, J GHULAM HABIB RANA-Petitioner Versus DISTRICT JUDGE, RAWALPINDI and others-Respondents Writ Petition No.346 of 1992, accepted on 24.5.1992 Election Disputes- —Membership of Cantonment Board-Election of~Declaration of election as void-Challenge to-Election Tribunal or Inquiry Officer was obliged to hold inquiry into allegations and afford opportunity to parties to lead evidence-­ Parties were not agreed on facts-Tribunal could not have assumed without necessary proof that there was no dispute on facts-Without investigation into disputed questions of fact and affording a reasonable opportunity of defence including a right to lead evidence, Election Tribunal could not have gone to examine merits of election petition for its final decision—Held: Impugned decision is defective and this ground alone is sufficient for setting it aside-­ Petition accepted and case remanded for decision afresh in accordance with law. [Pp.380,381,382&383]A,B,C&D PLD 1966 (WP) Lahore 16, PLD 1966 (WP) Lahore 187 and PLD 1966 (WP) Lahore 669 rel. Mirza Anwar Baig, Advocate for Petitioner. Ch. Mushtaq Ahmad KJian, Advocate for Respondents. Mr. Mansoor Ahmad, Advocate for Respondents 7 & 8. Dates of hearing: 16 and 18.5.1992. judgment This writ petition from an order of learned Elec^m Tribunal, Rawalpindi, dated 30th April, 1992, declaring the election as a whote to be void and confining re-poll to a male Polling Station at Tahli Mohri and, in case, Rules did not permit for a piecemeal exercise or the 'contestants' agreed to the arrangement directing a fresh poll in the Constituency, raises some interesting points of nicety. Factual matrix which gave rise to the petition shall soon unfold itself in immediately succeeding few lines. Petitioner alongwith respondent No.2, Raja Muhammad Younas, Waqar Hussain Kiani and Muhammad Shezad contested an election for the membership of Cantonment Board, Rawalpindi, from its Ward No.4 on 28.12.1991. Petitioner polled 2562 valid votes against his immediate closest rival respondent No.2, who secured 2406 valid votes. Raja Muhammad Younas got 1169 votes and Waqar Hussain Kiani only 220 votes. Muhammad Sheh/.ad did not lay hand on any vote. As the petitioner emerged victorious by a majority vote, he was declared elected by the Returning Officer. Dissatisfied with the result of the election, respondent No.2 called it in question in an Electionpetition before learned District Judge of Rawalpindi. Election-petition was presented on 6.1.1992. Alongwith the Election-petition, respondent No.2 filed an application for a temporary injunction for restraining the petitioner from acting as an elected member of the Cantonment Board. On 7.1.1992, in an cx-parte order, learned District Judge stopped the petitioner from taking his oath of Office, and, also prohibited his functioning as an elected member of the Cantonment Board. Upon being served, petitioner entered appearance in Court on 12.1.1992 and filed his written statement to the Election-petition as well as a written reply to the application for temporary injunction. Other respondents also gave their replies. On 21.1.1992, petitioner submitted a separate application for recalling the interim order of stay operating against his functioning as member of the Cantonment Board. As the matter was not proceeding to the satisfaction of the petitioner, and, application for temporary injunction was not being decided finally with expedition, petitioner approached this Court in Writ Petition No.279 of 1992 for an appropriate relief and direction. On 7.4.1992, writ petition was disposed of in liniine hearing by calling upon learned District Judge to decide the application for temporary injunction finally by or before 30.4.1992. Prayer contained in the writ petition that this Court itself should decide the question of interim relief was not acceded to. After the decision by the High Court, petitioner moved an application on 12.4.1992 for an accelerated hearing of the application for temporary injunction. Eventually, arguments were heard on 23.4.1992, and, concluded on same day. Finally, on 30.4.1992, learned District Judge disposed of the main Election-petition resulting in a fresh poll in the Constituency on the lines given below as :— "Re-election, I am afraid, for the reasons aforesaid, and in the circumstances of this case, will have to be restricted to Tahli Mohri Male Polling Station, and votes freshly secured by both the candidates will be taken into account, alongwith the votes already cast and counted at the other Polling Stations of the Constituency, namely, Lalkurti, Tariqabad (/'/) Jhawra Kamalabud (///) Octroi Post No.22, and Female Polling Station, Tahli Mohri. I order accordingly. 18. Before parting with the judgment, I wish to make it clear that the aforesaid finding or observation will not operate as a bar to the holding of election all over again, if the contestants agree to this arrangement, or if the relevant Rules do not permit the renewed exercise to be undertaken in a piecemeal manner. In absence of these considerations, the orders about re-polling to be held at only male Polling Station, Tahli Mohri, will hold good". Aggrieved of the decision by the learned Election Tribunal and the manner of its hearing, petitioner has sought remedy from this Court in a petition for a judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan. The petition and the arguments advanced at the hearingt>y the learned'counsel for the petitioner raised following lour points for consideration by this 'Court:— (/) Without putting the parties to notice and hearing arguments on merits of the Election-petition, learned District Judge could not have finally decided the election dispute by merely hearing arguments on the application for interim relief in course of its trial; (//) Without 'inquiry' into the disputed questions of fact and circumstances raised on pleadings; settlement of issues between the parties and taking of evidence from them on points at issue, learned Election Tribunal could not have gone on merits for a final pronouncement upon them; (Hi) Learned District Judge wrongly assumed correctness of disputed facts for applying to them the Cantonments (Elections and Election Petitions) Rules, 1979; (/v) Rule 47-A of the above Rules gave finality to the decision of the Returning Officer on the validity of ballot-papers and his decision was not susceptible to a further review in the Election-petition by the Election Tribunal, and, finally after declaring the election to be void as a whole, it could not be restricted to a single male Polling Station and holding of fresh poll in the entire Constituency left to the arrangement between the "contestants' or the will of the Authorities. To support him. learned counsel referred to the definition of the term 'inquiry' in Law Lexicon and referred to number of pronouncements for elucidating different facets of his arguments. Learned counsel read out several portions of the impugned judgment to make out the point that the arguments uere mi-rely heard on the application for temporary injunction, and, not on the merits of the main case. Learned counsel unequivocally expressed at bar that he haJ ail along the impression, which was equally shared by his colleagues a>:>ouiated with him in the case that only an application for temporary injunction was fixed for arguments. It was clearly staled by him that neither the petitioner nor his counsel were ever put to notice for addressing arguments on merits of the main case. Some affidavits were also put on file in support of this view-point. Mirza Anwar Baig Advocate, learned counsel for the petitioner stated that if the Court desired, he was prepared to put his own affidavit on file. On behalf of respondent No.2, defence was ! cd by his learned counsel Ch. Mushtaq Ahmad Khan, Advocate. Mr. Babar Awari Advocate, whq conducted the case on behalf of respondent No.2 before the Election Tribunal, though present on one date of hearing in Court, did not address arguments. Ch. Mushtaq Ahmad Khan Advocate submitted that the order sheet and the impugned order Jcmonslrably showed that not only the application for temporary injunction, by the Election-petition itself was fixed for arguments and upon his instructions, aruuments on merits regarding both the matters were addressed to the Court by his side. fl was also argued that fixing of the case for arguments by the Court shall suffice the requirement of law and failing to address arguments by either party shall not be much material. Learned counsel put reliance on judgments to contend that in^view of 'inquiry' contemplated by the 'Rules', the approach of the learned Election Tribunal to the case and manner of its handling was not open to any serious exception. Mr. Mansoor Ahmad Advocate, learned counsel for respondents No.7 and 8 adopted the arguments of Mirza Anwar Baig Advocate and also submitted that arguments on merits of the Election-petition were not addressed by him. Section 15-D of the Cantonments Act, 1924 (Act No.II of 1924) deals with subject of "Conduct of Elections". It provides that "all elections to a Board shall be organized and conducted in accordance with the rules made under this Act and such rules may provide for all matters connected therewith or incidental thereto, including the time of holding the elections, by-elections, corrupt or illegal practices and other election offences and penalties therefor and the submission, trial and disposal of election petitions". Rules framed on the subject are known as the Cantonments (Elections and Election Petitions) Rules, 1979. Rules 65 to 83 relate to Election-petitions and disputes related thereto. Of them, Rules 68, 75 and 79 are relevant for the present purpose. Since arguments of the learned counsel Jurn on construction of these rules, which shall also have bearing on the ultimate decision, it shall be profitable to make a reference to them. They run as follows:— "R.68. Inquiry of the election. -Where a petition has been presented under rule 66 and the security has been deposited under rule gation; (2) search for truth, information, or knowledge; an investigation; examination into facts or principles; (3) a question; a query. Dealing with the case of a trial of Election-petition under Section 60 of Electoral College Act 1964, in Abdul Hamid v. Malik Karam Dad, P.C.S., Election Tribunal Rawalpindi and 2 others [P.L.D. 1966 (W.P.) Lahore 16], a Division Bench of this Court on the mode of inquiry and its modicum observed at page 27 that "at the same time this does not mean that Tribunals can act arbitrarily and capriciously. The Tribunals especially in cases where they are required to adjudicate upon the civil rights of the parties are under an obligation to act judicially and are bound to follow the fundamental rules of evidence and fair play which are embodied in the principles of natural justice. They are required to give an opportunity to the party affected, make some kind of enquiry, give a hearing and to collate evidence, if any, considering all the facts and circumstances bearing on the merits of'the controversy before any decision is given by them. These are the essentiaj. elements of a judicial approach to the dispute. Prescribed forms of procedure are not necessary to be followed provided in coming to the conclusions these well-recognised norms and principles of judicial approach are observed by the tribunal. This is the view taken in the last mentioned Full Bench case of the Corporation of the City of Lahore. In Sayad Shah v. Klnida Bakhsh (2) a Division Bench has held "that the proceedings held in contravention of the elementary principles of natural justice or of fundamental principles of judicial proceedings are no proceedings at all in the eye of law". 11. In the present case although the provisions of the Evidence Act and the Q>dc of'Civil Pfoccdtire'^rt" not •a'pprlitable to the enquiry by the Election Tribunal, nonetheless it is charged with the paramount duty to act judicially; to give notice of the election petition to all the interested parties; to hear them at trial of the election petition; it has to hold an enquiry and to record the evidence of the witnesses produced before it; it has got to give its decision concerning the civil right of the parties in the light of the law. Therefore, in this case the main question to be seen is that has the Election Tribunal acted judicially and followed the fundamental rules of fair play and evidence embodied in the principles of natural justice which it was bound to observe in the course of the trial of the election petition". Thereafter their lordships dealt with the facts of the case. In the same volume, another case of Abdul Shakoor v. Abdul Latif and others P.L.D. 1966 (W.P.) Lahore 187 on the same subject by a Division Bench of this Court is reported. It also dealt wilh the requirements of Section 60 of the Electoral College At 1964. At page 192 of the report, in paragraph No.10, their Lordships of the Division Bench expressed them as:- "On merits of the case, learned counsel fdr the petitioner contended that because of Rule 36(1) of the Electoral College Rules, 1964, which made the proceedings before it summary, the Election Tribunal under a mistaken notion considered itself free to decide the election petition without affording any opportunity to the parlies to adduce evidence in support of iheir respective cases. In this behalf, learned counsel strongly relied uf .1 the petitioner's affidavit and what purports to be the record oi proceedings be I ore the Election Tribunal. The record of the proceedings leaves -no manner of doubt that the Election Tribunal thought itself justified to decide the election petition merely on the allegations contained therein, and the argument addressed by the parties' counsel. It appears lhal upon the election petition being received by the Tribunal notices were issued to the parties on 6.3.1965 for their appearance on 20.3.1965. The latter date was, however, declared a public holiday and the case was adjourned to be taken at Lahore on 4.5.1965. On this date, the parlies with their counsel appeared and the record of the election was perused. Argument in the case was also heard and the case was adjourned to 5.5.1965 for orders. The record does not show that the parties were ever asked or afforded opportunity to produce evidence. The case was then thrice adjourned for one reason or the other, without order being pronoiyiced. Eventually, on 1.6.1965, the Tribunal pronounced the order declaring-the election to be void as a whole. Learned counsel for the contesting respondent did not dispute the fact that the case before the Election Tribunal was not adjourned for the evidence of parties but contended that the parlies never chose or requested for adjournment for the production of evidence. It is impossible to believe that the petitioner who had won the election by majority of 104 votes should not have availed of any opportunity to produce evidence in support of the validity of his election, should an opportunity been allowed to him. We are inclined to believe the petitioner's affidavit supported as it is by the record of proceedings before the Election Tribunal that no opportunity was allowed to him to file his written statement in answer to the allegations in the election petition or adduce evidence to refute such allegations. This constituted a clear violation of Section 60(2) of the Act. It has recently been held in Muhammad Akram v. Captain CA. Saeed (1) that Section 60 of the Act is mandatory in its requirement. Notwithstanding the fact that Rule 36 of the Electoral Rules, 1964, inter alia, makes the proceedings before the Tribunal summary, it is a fundamental requirement of the section, that reasonable opportunity should be afforded to the parties to adduce evidence. Refusal to summon witnesses or to adjourn the case for that purpose is tantamount to a denial of reasonable opportunity to produce evidence and vitiates the entire proceedings before the Tribunal. The same view was taken by another Bench in Writ Petition No.434 of 1965. Indeed, learned counsel for the contesting respondent did not question the proposition of law laid down in these two recent precedents, but remained content with the suggestion that the petitioner himself chose not to file his written statement or to produce evidence and remained content with his counsel's argument before the Tribunal. As observed above, this suggestion docs not deserve any servious notice". There is yet another case on the subject reported as Dil Muhammad v. Election Tribunal, Sialkot, and others P.L.D. 1966 (W.P.) Lahore 669, by another Division Bench of this Court in the same direction. From the above, it is clear that the Election Tribunal or the Inquiry Officer was obliged to hold an inquiry into the allegations contained in the Election-petition and afford the parties an opportunity of real defence for substantiating their divergent view-points, if need be, by leading evidence. Therefore, the election-case could not be disposed of merely on the strength of the Electionpetition by applying Election Laws to it. Parties were not agreed on facts. There was a wide gap of difference between them. So mere application of legal principles to them did not suffice. The difference was required to be bridged by necessary proof, in absence whereof, learned Tribunal could not have assumed that there was no dispute on facts. Respondent No.2 had pleaded that his valid voles numbering 468 had been wrongly excluded from the count because of absence of official mark on them. Objection to the exclusion by the petitioner was I wo dimensional. It was slated in the written statement that these ballot-papers were clandestinely and surreptitiously inserted in the ballot-box by respondent No.2 with the active collusion of the Polling Officer, and, therefore, the official mark on them was absent. Precise objection was that those were fake and un-genuuie ballot-papers. Their legal issuance from the competent source and travel in the ballot-box were both questioned. Therefofe, it could not be taken to-be a mere omission of official mark on them, either advertantly or inadvertantly. Regardless of truth or otherwise of the defence statement and its plausibility, petitioner was entitled to a right of hearing for substantiating his defence and without evidence, he could not do the needful. Parties appeared to be at issue on questions of fact and law also. Therefore, an inquiry by the learned Tribunal was necessary and mere hearing of arguments assuming that those were addressed would not suffice the requirement of law. Emphasis of learned counsel for respondent No.2, on the kind of inquiry by a Rent Controller under the Rent Control Laws envisaged by their Lordships of the Supreme Court in case of- KJiadim Mohy-ud-Din v. Rehmat All P.L.D 1965 Supreme Court 459 was not apt. Scope and object of two laws were widely different. An inquiry under Rent Ordinance by a Rent Controller is intended to achieve a different object, whereas inquiry in an election-dispute fosters purity and fairness of elections, so dear to the democratic Institutions. Dealing with an election case in Narendra Madivalapa Klieni v. Manikrao Patil Slid oi!iers--A.l.R.l977 Supreme Court 2171, the Supreme Court of India observed:- "Processual proprieties are designed to ensure fair play in adjudications and while such prescriptions are riot rigid punctilios, their observance serves to help«the Judge do effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law. In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious, the principles of procedural rectitude apply a fortiori. The Judge is the guardian of processual justice and must remember that judgment on judgment belongs, in the long run, to the people. We state <his- stern proposition here not merely because a forensic stitch in time saves cassational nine but because Courts, are on continuous trial in a democracy". Therefore, without investigation into the disputed questions of fact, and, affording a reasonable opportunity of defence including a right to lead evidence, learned Election Tribunal could not have gone on to examine merits of the Election-petition for its final decision. Its decision is, therefore, defective on this score, and, this ground alone is sufficient for setting aside of it. This brings me to the second point about non-hearing of arguments on merits of the Electionpetition by the learned Election Tribunal. Mirza Anwar Baig Advocate, learned counsel for the petitioner stated at bar that he had neither notice for hearing of arguments on merits of the main case nor had he addressed arguments on the main case. His version was that only application for temporary injunction was argued, and, at no stage of hearing, the learned Election Tribunal put him to notice for adverting to arguments on merits of the case. Learned counsel submitted that he was prepared to submit his personal affidavit on this point. Ch. Mushtaq Ahmad Advocate, learned counsel for respondent No.2 countered the submission by reference to recorded dates of hearing by the Election Tribunal, and, submitted that there were clear indications on record that the main case was fixed for arguments also. Ch. Mushtaq Ahmad Khan Advocate did not conduct the proceedings on behalf of respondent No.2 before the learned Election Tribunal. Mr. Babar Awan was his Advocate there. He did not turn up for disputing the statement of Mirza Anwar Baig Advocate. Independent of it, impugned decision itself was indicative of the fact that full-dressed arguments on the main case were not addressed to the learned Election Tribunal. In Abdullah and another v. Mian Tafazzul Hussain and a/iof/ier—P.L.D. 1961 B.J. 58 fc a Division Bench of this Court took the view that the Code of Civil Procedure did not contemplate hearing of arguments by the Court as absolutely necessary because all that can be said on the language used in Order XVIII, Rule 2, is that if the parties or their counsel want to address arguments, the Court has to give them an opportunity to do so. In Haji Ibrahim v, Ismail and 9 otlws-P.L.D. 1976 Karachi 1075, the Court took the view that hearing of parties or their counsel was necessary before making a judicial order. Hearing of arguments from the parties or their learned counsel who are trained in the legal discipline effectively assists the Court to discover truth which is necessary for administration of justice. It is part of and is an important facet of the law of hearing contained in rules of Natural justice. Without making inquiry and hearing of arguments, decision is denuded of real fragrance of a judgment and is reduced to imperfection. Having dealt with the above two points, I shall now advert to the last point, whether re-poll could be confined- to a single male Polling Station at Tahli Mohri or fresh balloting left to the arrangement between the 'contestants' and interpretation of rules to the Authorities. Rule 12 of Punjab Local Councils (Election Petitions) Rules 1979, relating to kinds of decisions by the Tribunal ispari materia with Rule 79 of the Cantonments (Elections and Election Petitions) Rules, 1979. Both the rules were similarly worded. In Muhammad HanifShah v. Tlie Election Tribunal, efc.--N.L.R. 1985 Civil 811, a Bench of this Court considered Rule 12 of Election Petitions Rules, 1979 (Punjab) for holding that order by the Election Tribunal for re-poll at some Polling Stations was not warranted under it. Since the decision of the learned Election Tribunal is being set aside on the'above two points, it is un­ necessary for me to express finally on this point. Learned counsel for respondent No.2 submitted that in the peculiar circumstances of a particular case, a partial repoll may be the only requirement of law and not fresh re-poll at all the Polling Stations because term 'whole' includes 'part' also. The argument has the merit of clear ingenuity, and, on its face appeared attractive because in a given case, an illegality may attach itself to a single Polling Station or two, without any infirmity in regard to the other Polling Stations, But as I have said above, final opinion on this point is un-necessary. Be that as it may, it was for the learned Election Tribunal to decide, whether the re-poll was required for the whole Ward or a part 'of it, and, this decision could not be abdicated either to the contesting candidates or the Cantonment Authorities. Further, since the decision was being quashed on other points, it shall be un-necessary to examine and express on the effect of absence of official mark on questioned ballot-papers as also that the decision of the Returning Officer for rejecting ballot-papers was final rendering it immune from scrutiny by the Tribunal. Having regard to the aforesaid, writ petition is allowed; impugned decision of learned Election Tribunal is set aside and is declared to have been made without lawful authority. Result of it would be that the matter shall go back to i^for its reconsideration and decision afresh in accordance with law and the observations made above. There shall be no order as to costs in this Court. Parties shall appear before the Tribunal below on 31.5.1992. Records be returned. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 383 PLJ 1992 Lahore 383 [Bahawalpur Bench] Present: MUHAMMAD ARIF, J AUQAF DEPARTMENT, THROUGH CHIEF ADMINISTRATOR, AUQAF, LAHORE and another—Petitioners versus SAEED AHMAD-Respondent Civil Revision No. 236/B.W.P of 1987, dismissed on 18.5.1992. Restoration-- -—Application for restoration, of earlier application for restoration of appeal-­ Dismissal of—Challenge to—Additional District Judge considered case of petitioners thread-bare and conclusions drawn by him have not been shown to be suffering from any infirmity in law or jurisdictional error—Finding- of fact that Petitioner Department was negligent in prosecuting case before lower " court, is supported by material brought on record-Held: Petition lacks merit and is liable to be dismissed in limine. [P.385JA PLD 1966 SC 467 and 1988 SCMR 263 ref. Mr. M.Shamsher Iqbal Chitghtai, Advocate for Petitioners. Date of'hearing 18.5.1992. order The Auqaf Department through Chief Administrator of Auqaf, Lahore and District Manager Auqaf, Bahawalpur have filed this petition under section 115 CPC challenging the order dated 24.2.1987 passed by Additional District Judge Bahawalpur whereby petitioners' application, seeking restoration of their earlier application, was dismissed. There is no need for a detailed discussion of the facts leading to the filing of this petition by the Department. Suffice it to say that a suit for declaration and perpetual injunction filed by Saeed Ahmad respondent against the petitioners was dismissed (?) by Syed Ejaz Hussain Shah, Civil Judge llnd Class, Bahawalpur on 3.1.1983. They filed an appeal there against which was dismissed in default on 6.5.1984. An application of the- petitioners seeking restoration of the appeal was also dismissed in default by the then learned Additional District Judge Bahawalpur on 6.1.1985. On the same date, the learned counsel for the petitioners moved this application for restoration of the aforereferred application on the ground that he remained busy in conducting other cases in other Courts and on inquiry at 1 PM it transpired that the application had been dismissed for default. The application was contested oh behalf of the respondent who pleaded that the appeal (Miscellaneous Appeal No. 1/85) was fixed for arguments for 5.5.1984 and was adjourned on that date to 6.5.1984 at the request of Malik Ghafoor Ahmed, the learned counsel for the petitioners. As nobody appeared on behalf of the petitioners on 6.5.1984, their appeal was dismissed in default on the said date. The application filed for restoration of appeal was also dismissed in default on 6.1.1985 as there was no representation on behalf of the petitioners on that date either. 2. Initially, the then learned Additional District Judge framed an issue regarding the existence of sufficient grounds for the restoration/re-admission of appeal but on a subsequent application of the petitioners this issue was amended as follows:-- "1. Whether there are sufficient grounds for re-admission/restoration of application moved for the restoration of appeal?" After the parties had adduced their evidence for and against the above issue the learned Additional District Judge Bahawalpur heard the arguments and dismissed the application vide the impugned order dated 24.2.1987 observing that the .Department was negligent in pursuing the case and had failed to prove any sufficient cause for the restoration of the application dismissed in default. It was specifically observed that the petitioners had engaged three Advocates in this case but^iad failed to bring an affidavit of any one of them in support of the plea taken in the application. Regarding the plea that Muhammad Ibrahim AW. 3 could not attend the proceedings on 6.1.1985 as he was on casual leave on that date it was observed that the said PW had admitted in his cross-examination that the Department used to depute somebody else for pursuing the cases in his absence which clearly indicated that the'story regarding Muhammad Ibrahim AW-3 being on casual leave on 6.1.1985 was manoeuvered by the Department afterwards in order to prove his absence. 3. Learned counsel has reiterated the stand of the petitioners before the learned Additional District Judge to the effect that the rule of procedure should not be so interpreted as to defeat the process of law and refers to Salamai Dibi and others vs". Settlement & Rehabilitation Commissioner Mitltan (PLD 1966 S.C 467) and Shaukat Hussain and others vs. Mst. Qaisarah Begun and others (1988 SCMR 263) in support of the same. 4. There is no cavil with the proposition advanced by the learned counsel on j the strength of the precedent cases. The learned Additional District Judge has considered the case of the petitioners thread-bare and the conclusions drawn by him have not been shown to be suffering from any infirmity in law. It has been correctly observed that only one of the three Advocates retained by the petitioners in this cause had filed the application on the ground that he could not attend to the hearing on 6.1.1985 as he was busy in other professional work but he has not given his affidavit in support of his application. It is not denied that the first call in the case was made at 10.30 AM on 6.1.1985 and it was only at 12.30 PM on the said date that the same was dismissed in default after making out the second call then. The findings by the learned Additional District Judge have not been shown to be suffering from any jurisdictional error. The finding of fact that the petitioner Department was negligent in prosecuting the case before the lower Court is supported by the material brought on the record by the parties.'This petition lacks merit and is liable to be dismissed mi limine. So be it. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 385 PLJ 1992 Lahore 385 Present: fazal kari,m J PIR BAKSH--App«llant Versus RAHIM BAKHSH etc.-Respondents R.SA. No. 271 of 1983, dismissed on 3.5.1992 (approved for reporting on 21.6.1992) (i) Gift- —Gift of entire land in favour of appellant by his father-Subsequent gift of one half of same land by his father in favour of respondent No. 1—Challenge to- Real purpose of gift in favour of appellant, was to preserve land for benefit of family and to prevent appellant's father from wastefully expending it on drinking-He did not intend to make appellant absolute owner--By second mutation in 1924, appellant's father made his other son, i.e. respondent No. 1 an owner of one half of land with appellant-His father remained alive till 10.1.1950 but during his life time, appellant did nothing to question validity or effect of subsequent mutation dated 14.12.1926 and kept mum till July 1971— Held: This wds strong evidence of fact that appellant had accepted his father's right to deal with land as owner and had always treated his brother (respondent No. 1) as owner of land in suit. [Pp.390&391]A&B Syed Amir Ali On Mahomcdan Law page 113 (Fifth Edition by Raja Said Akbar Khan, Vol. I), [(1875) L.R. 2 LA. 87] and ILR 1932 Calcutta 557 ref. (ii) Limitation- —Gift of entire land in favour of appellant by his father-Subsequent gift of one half of same land by his father in favour of respondent No. 1—Challenge to~ Whether suit was barred by time-Question of-There is no doubt that at least in 1935, appellant had come to know that since 1926, his brother (respondent No. 1) had become owner of one half of his father's land-Name of respondent No. 1 came to be incorporated as owner in record-of-rights by reason of mutation, and it was not a case of correction of wrong entries-Appellant having sold his entire land in 1935, had ceased to be a co-owner with respondent No. 1-Appellant was found concurrently not in possession or enjoyment of property or any part of it since 1935-Held: Courts below have rightly taken view that suit was hopelessly barred by time. [P.391]C&D 1983 SCMR 626 and AIR 1936 Lah. 37 distinguished. Mr. Amjad Hussain Syed, Advocate for Appellant. Mr. S.M. Zafar, Advocate for Respondents. Dates of hearing: 2 and-3.5.1992. judgment This RSA by the plaintiff, Pir Bakhsh, comes from the judgment and decree of the learned District Judge, Sheikhupura, dated 19.5.1983, whereby the appeal of the plaintiff against the judgment and decree of the learned Civil Judge, Sheikhupura, dated 19.4.1980, was dismissed. The learned Civil Judge had, by his judgment dated 19.4.1980, dismissed the plaintiffs suit. 2. The dispute sought to be resolved in this litigation is between the two brothers, Pir Bakhsh, plaintiff, and Rahim Bakhsh, defendant. The plaintiff was born in 1915 and the defendant, Rahim Bakhsh, was born on 12.10.1924 (Ex. D4). Jalal, father of Pir Bakhsh and Rahim Bakhsh, was owner of as much as 90 squares -of land hi village Lambare District Sheikhupura. On 11.5.1917, mutation No. 28 was attested by which Jalal purportedly transferred the whole of his land in the village by way of gift in favour of the plaintiff, his only son at that time. Jalal was blessed with another son, Rahim Bakhsh, defendant, on 12.10.1924 and on 14.12.1926, mutation No. 63 was attested, by which Jalal had the name of Rahim Bakhsh added as owner of one half of his land with Pir Bakhsh. 4. This suit was brought by Pir Bakhsh on 13.7.1971. It was a suit for a declaration that the mutation dated 14.12.1926 in the name of Rahim Bakhsh was ineffective as against his rights. It was said that at the date of mutation No. 63, viz. 14.12.1926, Jalal was not the owner of land and the purported transfer of one half of his land in favour of Rahim Bakhsh was of no legal effect. The said mutation was the result of collusion and fraud and the plaintiff, so he pleaded, had not known of it till 22.9.1966 when the Jammabandi for the year 1965-66 was prepared. 5. The case, thus, tried to be set up by the plaintiff in his plaint was that mutation No. 63 dated 14.12.1926 was wrong and as the occurrence of Rahim Bakhsh, defendant's name in the record-of-rights on the basis of that mutation was a case of wrong entries, he was entitled to have those entries corrected. 6. The defendants in the suit were Rahim Bakhsh and Muhammad Akram and others, who were transferees from Rahim Bakhsh. They filed a joint written statement, contesting the suit. It is sufficient to say that they raised two principal grounds of defence: (r) that Jalal was competent to transfer the land in suit in his favour as he did by mutation No. 63 and. therefore, the transfer thereby effected was a valid transfer: and (ii| that the suit was barred by time. It was said that the defendants had since 1926 been in continuous possession of the land in suit as owners; that they had been dealing with the land as owners and that their possession had been hostile and adverse. . The parties' pleadings gave rise to six issues; of them, the crucial issues are issue Nos. 1. 2 & 5. Issue- No. 1 is whether the suit is within time; issue No. 2 is whether the plaintiff is in possession of land in suit and if not, what is its effect and issue No. 5 is whether the plaintiff is the owner of the suit land and the entries in the revenue record are incorrect. 8. The learned Civil Judge discussed the parties' evidence, oral as well as documentary at great length and found both issue Nbs. 1 &2 against the plaintiff. He had no hesitation "whatsoever in agreeing with the defendants on the point that the plaintiff has never been in physical or constructive possession of the suit land" and that Section 18 of the Limitation Act, 1908 could not help him. He held further that the plaintiff must have known of mutation No. 63 dated 14.12.1926 .in the year 1935; "it was in the year 1935 when he should have known that the defendant was challenging or denying his title over the suit land". In his opinion, Article 120 of the Schedule to the Limitation Act applied and the suit was "badly time barred". On issue No. 5, the learned Givil Judge returned the finding that the plaintiff had become absolute owner of the suit land "through gift in his favour which is evidenced by Ex. P1/D3, copy of mutation No. 28 on 11.5.1917" and that "the subsequent gift of 1/2 of the land owned by the plaintiff to defenddant No/1 through mutation No. 63 of 14.12.1.926, which is Ex. P2, was without title and hence illegal". He held also that "the entries in Ex. Dl, copy of the jammabandi of the year 1926-27 and the subsequent jammabandis which are Ex. D2 and D.3 in which defendant No. 1 was also mentioned as a co-owner alongwith the plaintiff were against law". In his opinion, "since the plaintiff did not challenge these entries within the period of limitation provided by law, therefore, he cannot now challenge ;these entries and the effect would be that he has lost his title in the suit land". 9. The learned District Judge, by a well-reasoned judgment, affirmed the learned Civil Judge's findings of fact and law on issue Nos. 1 & 2. As regards the findings of the learned Civil Judge on issue No. 5, the learned District Judge thought that "there is some room for difference of opinion with this finding". In his opinion, a gift is perfected by actual delivery of possession and as Pir Bakhsh w&s a child aged about a year or two at the date of the 1917 mutation, he could not personally and "practically assume occupation and control of the property in suit". The land "especially as it was a huge tract, was evidently being managed, at that time even, by Jalal, the owner-donor. Obviously, then, he could revoke the earlier gift and effect another one in the supersession/modification of the previous one, by co-opting his second son with the first one". Even in equity, so held the learned District Judge, "such an act on the part of the onwer-donor could not be treated as improper, unfair or unjust, for Jalal was not depriving his first son of his due entitlement; he was only endeavouring to introduce parity between the two sons in the matter of distribution of his landed property. 10. It has been observed above that the plaintiff was born somewhere in the year 1915 or 1916. This was admitted by the plaintiff before the learned District Judge (see para 6 of his judgment). That means that the plaintiff was hardly one or two years of age at the time when mutation No. 28 (Ex. PI) was attested in his favour. The parties were not at issue on whether Jalal was in matters of alienation governed by custom or Islamic Law. As will be presently seen, there was in- the year 1935 an alienation by Pir Bakhsh plaintiff of the entire landed property then standing 'm his name in this village and that alienation had been challenged by his sons by a usual customary suit. The alienation was set aside by a judgment of this Court dated 22.2.1945. However that may be, whether Jalal was governed by custom or Islamic Law, it seems to me that, the plaintiff Pir Bakhsh being hardly one or two years old at the date of the mutation, therefore, as in case of gifts under the Islamic Law so in cases of gifts under custom, where the gift is in favour of an infant by his father or other guardian, the law lobks to the intention of the donor. This is the view expressed by that great Jurist, Syed Amir Ali, in his Mahommedan Law at page 113 (Fifth Edition by R.aja Said Akbar Khan Vol. I). This principle was laid down with considerable distinctness in the case of Ameerunnissa'Khatoon (1875) L.R. 2 I A. 87). In such cases,- to determine the real intention of the donor, his subsequent conduct has been held to be of great materiality. This would appear from a remark made by Sir Barnes Peacock in Ameerunnissa case: "But the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention". 11. In Ameerunnissa case, the father had executed two Hibbanamas in 1254 and 1256 in favour of his infant son and had them registered but later in 1259 the infant executed an Ikrar to his father "making his probable brothers and sisters co­ heirs in the properties contained in the second hibba, and his father the manager hereof. It was held that the rights of the parties "must be determined on the basis of the combined operation of the Hibbas and Ikrars". The result achieved by their ordships of the Privy Council by so reading those documents together was that "an absolute gift, was not intended, and that the transaction was either purely benamee, or, more probably, to be followed by a family settlement". A similar question also fell for consideration in Sultan Miya .Ajibakhatoon Bibi (ILR 1932 Calcutta 557); there also the donee was infant son 8 or 9 years age of the donor; the mode in which the father had been dealing with the profits of the land subjectatter of the gift was taken into consideration for the purpose of determining the "bonafides and completeness of the gift as throwing light upon the intention" and it was held that "though a gift might be purported to be made and every overt act required by the Mahommedan law for the completion of the gift made be purported to have been done, yet the trnsfer'will not take effect in the^absence of bonaflde intention to make the gift". 12. t is remarkable to note that in both the precedent cases, Ameerunnissa case and Sultan Miya case, the donee was, at the date of the gift in his favour, as in this case, the only son of the donor. 13. I must now return to the facts pf this case and apply to them the principles of law noticed above. Mutation No. 28 dated 11.5.1917 (Ex. PI) itself provides sufficient evidence of the real nature of the transaction and the intention of Jalal. It appears that Jalal was given to habits such as drinking and had been dealing with his landed property in such a way that his wife apprehended that the whole property would be squandered away leaving nothing for their children. Jalal's wife therefore, made an application to the revenue authorities complaining that he was squandering away the property and requesting that transfers of. Land being made by him should not be given effect to. The matter was reported to the Bradri and the Bradri decided that to save the property from further alienation, there should be a gift in favour" of his son. Admittedly at that time, Pir Bakhsh, laintiff, was the only son of the Zzznts. It was thus that Jalal also made an application to the revenue officer saying that .a mutation of gift be made in favour of his son. All concerned felt happy and the revenue officer attested the mutation. 14. The circumstances, in which-the mutation of gift dated 11.5.1917 came to be attested, should, in my opinion, leave no manner of doubt that there was, on the part of Jalal, no bonafide intention to make Pir Bakhsh the absolute owner of the land. It appears that at the date of the mutation Jalal was a young man and had not yet despaired of another child. His wife too was not yet past the child bearing age. The real purpose of the transaction, therefore, was to preserve the land for the benefit of the family and to prevent Jalal from wastefully expending it on drinking etc. All the circumstances tend to suggest that Jalal, his wife and the infant, Pir Bakhsh, had continued living together in the same house. The admitted facts and the inferences flowing from them all lead and lead ineluctably to the conclusion that there was no bonafide intention on the part of Jalal to make the gift in favour of Pir Bakhsh and thereby to make him an absolute owner. It is in this context and in this setting that the subsequent mutation vi/. mutation No. 63 dated 14.12.1926 must be looked at and its effect considered. The two mutations read together show and show clearly that Jalal had, for all intents and purposes, remained the owner of the land and when he was blessed with another son, Rahim Bakhsh, defendant, in 1924, he made him an owner of one half of the land with Pir Bakhsh. 15. The subsequent conduct of Pir Bakhsh, plaintiff, also went a long way to show that this is how everybody concerned had treated the matter to be. The name of Rahim Bakhsh, defendant, was incorporated as an owner with Pir Bakhsh, plaintiff, in the Jammabandi for the year 1927-28 (Ex. Dl) and his name as owner had continued to be so recorded in all the subsequent record-of-rights. Reference in this behalf may be made to the copies of the record-of-rights from the year 1931 to 1968 (Ex. D2 to D8). On account of his ownership of this land, Pir Bakhsh was Lambardar of the village. In 1935, a very significant event took ptece. It was that Pir Bakhsh alienated his entire one half land in favour of one Sultan Ahmad and shifted his residence to Faisalabad . As he had ceased to be the owner of any land in the village, he also ceased to be the Lambardar. A reference to the judgment of this Court dated 22.2.1945 delivered in the suit brought by the plaintiffs sons, challenging that sale under custom (a copy of it is to be fourfd on the file of the lower appellate Court) shows that on the very day of the sale, viz. 17th May, 1935, Pir Bakhsh filed a complaint, alleging that "he had executed the deed under some mis-representation which amounted to cheating on the part of the vendee. It was alleged by him that the deed was executed when he was under the influence of drinking". This complaint was withdrawn the same day. A week later, on the 24th May, 1935, Pir Bakhsh instituted a complaint under Section 468 and 471 of the IPC against the alienee. That matte'r resulted in compromise on the 25th July, 1935 and the complaint was withdrawn. On the 22nd January, 1936, Pii Bakhsh brought a civil suit for the cancellation of the sale deed. That suit was dismissed bv the learned Senior Subordinate Judge on the 22nd June, 1937. It was after Pir Bakhsh had failed in these attempts to have the sale deed cancelled, that his sons instituted the customary suit. Add to all this the significant facjt that Jalal had lived till 10.1.1950 (Ex. P4) but during his lifetime, Pir Bakhsh had done nothing whatever to question the validity or effect of mutation Nt>. 63 dated 14.12.1926. Undoubtedly Pir Bakhsh was major in 1935 and as he had sold his entire land to Sultan Ahmad, he uiusfhave known that according to the record-ofrights, he had been left with no land in the village. That he kept mum till July, 1971 when he instituted this suit was, therefore, strong evidence of the fact that he had accepted his father's right to deal with the land as owner and had always treated his brother Rahim Bakhsh as the owner of the land in suit. 16. On the question of limitation also, the findings of the learned Courts below appear to be unexceptionable. As has been held by the learned Courts below, there can be no doubt that at least in 1935, Pir Bakhsh had come to know that since 1926, his brother, Rahim Bakhsh, had become the owner of one half of his father's land. As has been seen, he had challenged the sale in favour of Sultan Ahmad first by two complaints and then by a civil suit and for the purposes of those complaints and suit, he must have seen the record-of-rights. The record showed that since 1940, the name of Pir Bakhsh had not occurred in the recordof-rights or in the Klwsragridawris, so much so that in the Pedigreetable Ex. D9, he was described as a Ghair Malik. The admitted position being that the name of Rahim Bakhsh as owner came to be incorporated in the record-of-rights by reason of mutation No. 63, there is hardly any merit in the contention that this was a case of correction of wrong entries. And as Pir Bakhsh had sold his entire land in the village in 1935, he had ceased to be a co-owner with Rahim Bakhsh.: Learned counsel for the plaintiff referred to Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) and Ghulam Muhammad JQian and others v. Sanumdar KJian and others (AIR 1936 Lahore 37). But those were cases n which the plaintiffs were held to be heirs but their names as heirs had not appeared in the revenue record. I cannot, therefore, agree with the learned appellant's counsel that he could bring the suit when he felt aggrieved and that he felt aggrieved in the year 1966. Learned counsel was then driven to invoke to his aid the-maxim that possession follows title and contended that as a big portion of the land in suit was Banjar or Banjar Qadeem, the plaintiff should be presumed to have remained in possession. But the plaintiff had ceased to be the owner of the land in 1926 and this maxim too cannot, therefore, help him. The plaintiff had been living in Faisalabad since 1935; the learned Courts below found, and found concurrently that he had not been in possession or enjoyment of the property, or any part of it, since then. Learned counsel for the appellant did not dispute the position that Article 120 of the Schedule to the Limitation Act applied and I concur in the view taken by the learned Courts below that the suit was hopelessly barred by time. 17. For these reasons, the appeal is dismissed, but the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Lahore 392 PLJ 1992 Lahore 392 [Rawalpindi Bench] Present: tanvir ahmad khan, J MEHMOOD AYYAZ»Petitioner versus ADDITIONAL DISTRICT JUDGE, CHAKWAL, and others-Respondents Writ Petition Nos. 1385 and 1518 of 1991, decided on 27.5.1992. Guardians and Wards Act, 1890 (VIII of 1890)- —S. 25~Minor children-Custody of--Grant of~Prayer for—Statement of minor daughter that instead of developing love and understanding during her stay of 2^ months with mother; she was better looked after at her father's house-It is true that opinion of minor shall not be taken as a deciding factor of welfare of ntinor, but it cannot be outrightly thrown over board, particularly when minor girl being of 15 years, has demonstrated her feelings in a most intelligent and . impressive manner-She could not adjust herself with mother inspite of her stay for more .than 2h months over there—Grandfather of children-has come back from Jordan for sake of.children-Father of children has not married simply far sake of children-Held: Welfare of minors best lies at house of their father-Petition accepted. [Pp.393&394]A,B&C PLD 1981 Lahore 393,1978 SCMR 299,and 1986 SCMR 1634 re/. Mr. Muhammad BashirAnsari, Advocate for Petitioner. Pirzada NoorAli Shakoori, Advocate for Respondents 3 to 7. Date of hearing:27.5.1992. judgment . This judgment wll dispose of Constitutional Petitions No.- 1385/91 and 1518/91 as the law and facts involved in these two petitions are similar and have emanated out of the same judgment. Facts in brief are that Mehmood Ayyaz-petitioner entered into a marriage contract with Mst. Mehmooda Akhtar respondent in the year 1976. Two children namely Rakhshanda Ayyaz and Jawad Mehmood son and daughter respectively were born out of this wedlock. Their ages at this juncture are 11% years and 15 years respectively. The relations between the spouses became strained which resulted in divorce taking place on 30th of March, 1988. Mst. Mehmooda Akhtar respondent fjled an application under section 25 of the Guardian and Wards Act oh 3.9.1988 for the custody of the aforestated two minor children. Petitioner contested this petition and the following issues were framed:-- "1. Is it the welfare of the minors to appoint the petitioner as a guardian of the person and proeprty of the former? OPP, 2. Relief." The petitioner as well as respondent appeared solely in the witness box to establish their respective stances. The guardian Judge after scanning their evidence through order dated 10.4.1990 dismissed this petition. Aggrieved with the same Mst. Mehmooda Akhtar filed an appeal. The learned Addl: District Judge, Chakwal, through his order dated 3.11.1991 granted the custody of Rakhshanda Ayyaz to the mother i.e. Mst. Mehmooda Akhtar and allowed the son Jawad Mehmood to remain with his father. The parties have filed their respective Constitutional petitions claiming the custody of both the minor children. I have noticed that after the judgment of the Addl: District Judge, Chakwal, petitioner-Muhammad Ayyaz tried unsuccessfully to get the operation of the impugned judgment suspended • from this Court. After being unsuccessful to secure the interim favourable order, he approached the Honourable Supreme Court where too his Civil Petition No. 282/91 against the interim order dated 10.12.1991 of this Court was disallowed on 27.1.1992. Thereafter the custody of Rakhshanda Ayyaz was handed over .to her mother Mst. Mehmooda Akhtar on 3rd of March, 1992. An effort was made more 'than once to bring about compromise between the parties but all these efforts in that direction ended in smoke. During this exercise Rakhshanda Ayyaz appeared on 24.5.1992 and stated in the clear terms that she has been undergoing a terrible mental stress in the custody of her mother, who is creating hindrances in her pursuit of seeking education. Instead of developing love and understanding during her stay of 2\ months with the mother, the minor has resolutely stated that she was better looked after at her father's house. She earnestly implored the Court that she should be allowed to join her father. It is true that the opinion of the minor shall not be taken as a deciding factor to determine the question of their welfare but certainly it cannot be out-rightly thrown over board particularly in this case when the minor Rakhshanda aged 15 years has demonstrated her feelings in.a most intelligent and impressive manner. She appears to be a girl of matured personality. Her academic career is superb which factor has been admitted by both the parties. She could not adjust herself with the mother inspite of her stay for more than 2\ months over there! Reliance is placed upon Mst. Sitghra Begiun vs. Ashfaq Ahmad Butt (P.L.D. 1981 Lahore 393), Mst. Feroza Begiun vs. Lt. Col. Muhammad Hussain (1978 S.C.M.R. 299) and Haji Muhammad Shafi and another vs. Mst. Maqbool Afza and others (1986 S.C.M.R. 1634). Similar is the attitude of Jawad Mahmood minor son who throughout has been living at his father's house. The family of father is living in city of Chakwal where they are getting education in Jinnah Public School, a known best School of the city while on the other hand the mother is living 4/5 kilometers! away from the city in a village in the house of, her brother. It is also to bep mentioned that the grand-father of the minors who was working in Jordan has come back just for the sake of children and settled permanently at Chakwal. The father of the children has also not married simply for the sake of minors. The minors are also having additional benefit being supervised by their two aunts who are Teachers in the aforesaid school. It is worth mentioning over here that the father who. during the pendency of these proceedings had gone to Masqat in pursuit of livelihood, has come back only for the sake of children. I agree with the finding of the learned trial Court that if status quo is disturbed in the present case the minors would not only suffer academically but alsc psychologically. From every angle I have considered this case and I am of the view that the welfare of the minors best lies at the house of their father. In view of what has been stated above, the judgment dated 3.11.1991 passed by the Addl: District Judge is hereby set.aside and that of Guardian Judge dated 10.4.1990 is hereby restored. There shall be no order as to costs. Before concluding it is directed that the petitioner Mehmood Ayyaz shall make arrangement for the meeting of children with their mother Mst. Mehmooda Akhtar at least once in a month which shall be increased if so desired by the minors. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 394 PLJ 1992 Lahore 394 [Rawalpindi Bench] Present: TANVIR AHMAD KHAN, J Agha MUHAMMAD AFZAL and 2 others-Petitioners versus MUNICIPAL CORPORATION, RAWALPINDI and 10 others-Respondents Civil Revision No.296 of 1991, dismissed on 11.5.1992 (approved for reporting on 8.7.1992) Temporary Injunction— —Temporary injunction-Grant of-Prayer for-Refusal of-Challenge to-- Petitioners have to prove that they have got a good prima facie case, balance of convenience lies in their favour and in case injunction is not granted, they will suffer irreparable loss-Courts below have refused to exercise discretion in favour of petitioners-They themselves have been using property in dispute (as tenants) for commercial purposes for many years and now they want that respondents (owners) should not utilize it for commercial purpose-They want different treatment for themselves as compared to respondents-Held: Petitioners have got no prima facie case and respondents 2 to 7 would suffer irreparable loss if injunction is granted-Petition dismissed. [Pp.398&399]A PLD 1967 SC 513, PLJ 1986 SC 157, PLD 1970 SC 180, PLD 1981SC 545, PLD 1979 Lahore 67,1991 SCMR 483,1991SCMR 496, PLD 1972 SC 279,1983 SCMR 1064, PLJ 1985 SC 1,1991 SCMR 429, AIR 1974 Orissa 89 (FB), AIR 1941 Nagpur 364, AIR 1977 Calcutta 174, AIR 1952 Calcutta 74, PLD 1982 Kar. 940, AIR 1968 Bombay 280 and 1992 CLC 345 ref. Mr. Habibiil Wahabul Kiiairi, Advocate for Petitioners. " Mr. Abdul Baseer Qureshi, Advocate for Respondent No.l. Mr. Mahmoodul Hassan Await, Advocate for Respondents 2 to 7. Date of heaing: 11.5.1992. judgment Petitioners through this revision petition have assailed the orders dated 26.3.1991 and 17.6.1991 passed respectively by the Civil Judge, Rawalpindi and the Additional District Judge, Rawalpindi, declining to issue restraint order as prayed for. Brief facts for the disposal of this revision petition are that the petitioners, who are occupying property No. NW-1018 situated at Muree Road, Rawalpindi, as tenants of respondents No.2 to 7 filed a suit for declaration/ permanent injunction that the building plan sanctioned by respondent No.l on 25.1.1990 for the reconstruction of the above mentioned property is illegal/void being in contravention to the Master Plan of Rawalpindi' city. They also sought declaration to the effect that the petitioners/plaintiffs being permanent residents of Rawalpindi city are entitled to basic amenities of health and sanitation and respondent No.l is bound to provide the same so as to develope the city of Rawalpindi in accordance with the Master Plan. A permanent injunction has also been sought restaining respondent No.l from sanctioning the building plan for the commercial perpose on the Muree Road, Rawalpindi. The aforestated suit was filed on 15.1.1991. However, prior to the filing of this suit, respondents No.2 to 7 filed an ejectment petition on the 3rd of February, 1990 on the ground of reconstruction and personal need against the petitioners qua this very property No.NW-1018. In this ejectment application the petitioners have also challenged the legality of the sanctioned map on the ground that the same is (in) conflict with the Master Plan of Rawalpindi and issue in this regard has been framed by the learned Rent Controller in the following words:- "Whether the Municipal Corporation Rawalpindi has any authority to sanction plan of commercial building on a residential site and whether the building plan of the suit premises has been legally and validly approved? OPD Alongvvith the declaratory suit the petitioners also filed an application for the interim restraint order to the effect that during the pendency of the suit, respondents No.2 to 7 be restrained from raising any construction and ejecting the petitioners /plaintiffs from the disputed property. This petition was controverted by respondent No.l and respondents No. 2 to 7 by filing separate written statements as well as replies to the application. The Civil Judge, Rawalpindi, through his order dated 26.3.1991 refused to grant restraint order. The petitioners filed an appeal which too was dismissed by the Additional District Judge, Rawalpindi through his order dated 17.6.1991. Hence, this revision petition. It is argued by the learned counsel that the two Courts below have failed to appreciate the nature of the case in its true perspective. The petitioners have got a good prima-facie case as the proposed construction on the basis of alleged sanctioned plan dated 25.1.1990 is clearly in violation of Master Plan of Rawalpindi which, if not restrained, would effect the petitioners' right adversely. It has also been argued that the petitioners would suffer irreparable loss and injury if the construction as alleged is not stopped. A challenge has also been thrown to the interim orders dated 17.11.1990,29.1.1991,9.7.1991 passed by the Rent Controller, Rawalpindi, and the order dated 1.4.1991 passed by the Additional District Judge, Rawalpindi, in the ejectment proceedings pending between the petitioners and respondents No.2 to 7 to show malafide on the part of the Courts below in the rent proceedings. Orders dated 17.11.1990 and 29.1:1991 passed by the Rent Controller, Rawalpindi, are to show that the petitioners'application for summoning of witnesses hed been refused by him in the arbitrary manner and the appeal against the same had been dismissed by the Additional District Judge, Rawalpindi, as being incompetent on 1.4.1991. Further grievance has been made that an application for the adjournment sine die of the rent proceedings pending between the parties was made before the Rent Controller on the ground that the petitioners/plaintiffs have since challenged the sanctioned plan before the Civil Court being in violation of the Master Plan, as such during,the pendency of the aforestated suit the rent proceedings be stayed sine die which application has been dismissed on 9.7.1991 by the Rent Controller. Learned counsel has also read out certain provisions of the Local Government Ordinance, 1979 to show that the petitioners have got no other remedy under the Ordinance to challenge the validity of the sanctioned plan and the disputed map has been passed in clear violation of the law and rules. He has also referred to certain provisions of the Master Plan which, according to him, have been violated while sanctioning the disputed plan. In support of his contentions learned counsel for the petitioners has relied upon "Hie Karachi Electric Supply Corporation Ltd.Vs.Tlie,Karachi Electric Supply Corporation Ltd. Labour Union" (PLD 1967 C 513) to contend that the action of respondent No.l in 'passing the disputed plan in violation of Master Plan is an action without lawful authority and has got no sanctity in the eye of law. He has stated that the wrong interpretation placed by the functionaries on the Master Plan had made their actions being without lawful authority. In support of his contention he has quoted from "K)i. Abdul Majeed 'Vs. Custodian of. Evacuee Property and others" (PLJ 1986 SC 157 at page 165) wherein it has been held that "the exercise of lawful authority is subject to the necessity of interpretation of the law which is being applied and where that law is wrongly interpreted, action cannot be held to be otherwise then devoid of lawful authority." To demonstrate his right he has read out from Mian Muhammad Latif Vs. Province of West Pakistan through the Deputy Commissioner,Kliaiipur and another (PLD 1970 S.C.180) where it is observed that "It is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima fade case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. The appellant has, in the present case, fulfilled all these conditions. Even the learned Additional Advocate-General and Mr. Nathu Lai, learned counsel for respondent No. 2 has not opposed the issue of injunction." Ismail Brothers Vs. Keval Ram (PLD 1981 SC 545) has also been quoted wherein an interim restraint order staying execution of Rent Controller's order of eviction was stayed as the same was secured on the basis of fraud and misrepresentation. Learned counsel has also read certain paras in extenso from Saeen Muhammad & otliers Vs. Government of Punjab (PLD 1979 Lahore 67) Dr. Abdur Raiif and others Vs. Sh. Muhammad Iqbal and others (1991 SCMR 483)), Riasat All Vs. Muhammad Jafar Hian & others (1991 SCMR 496), "Tlie Muree Brewery Co. Ltd. Vs. Pakistan through the Secretary to Govt. of Pakistan, Works Division and two others {PLD 19^2 SC 2^9). Rchmatiillah Vs. All Muhammad and another" 1983 SCMR 1064) and Province of Punjab through Education Secretary and another Vs. Mufti .4}>du; Chani (PLJ 1985 SC 1) Learned counsel appearing for respondents No.2 to 7 has argued that the suit out of which this present revision petition has emanated has been filed in a mslsfidf manner as a counter blast to frustrate the ejectment proceedings pending against toe petitioners. He has stated that the map of the disputed property as sanctioned on 25.1.1990 and the set back of 19 Ft. 6 inches and 13 Ft. 6 Looks iia.e been ghen by the respondents from their own land to make the ifckkh of ihe road in accordance with Master Plan/bye laws. He has also pointed gui thai in thw Master Plan construction of commercial structure on the Murree Road is not barred and the large number of commercial establishments have aireavi) been raised. It has further been stated that it does not lie in the month of the petitioners to challenge the commercial nature of the respondents' plan when they ihemsekes are using the disputed property on commercial lines. In support of his submission learned counsel has relied upon Bahadur Klian Vs. Ch. Muhammad Hussain and others (1991 SCMR 429) wherein the Court refused to interfere in the eviction order simply on the ground that the landlord would raise the construction on the Highway. AIR 1974 Orissa 89 (Full bench) " Krishna Klshore Bat Vs. Sankansan Small and others" has been relied upon where it is held as under:- "Law is thus well settled that mere violation of commercial rules or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the rules are framed. The Act and the rules create an obligation in favour of the plaintiffs if they prove such injuries which would be determined according to the facts and circumstances of each case ." In Cawashah Bomanji Parakh . Prafiilla Nalh Rudra (AIR 1941 Nagpur 364) it has been held as under:-- "In a suit for injunction restraining the building of a house it is incumbent on the plaintiff under S.56(k) to show some special damage or injury. The mere fact that the Municipal Committee acted beyond its powers in granting the sanction for construction of the house is not by itself sufficient to entitle the plaintiff to sue." Reliance has also been placed upon "Lalit Mohan Mitra and others v. Samirendra Kumar Ghosh and others (AIR 1977 Calcutta 174), Nandalal Ladia and another v. Pmvudayal Tikriwalla and another" (AIR 1952 Calcutta 74), Mossa Bhunji (through legal heirs) v. Hashwani Sales & Sen'ices Ltd. and another (PLD 1982 Karachi 940) and Narayandas S. Kanitga v. Sarasvatibai D. Joshi and another" (AIR 1968 Bombay 280). I have considered the contentions and have gone through the judgments/orders and the documents appended with this petition. I must hold at the very out set that I shall not dilate upon the interim orders passed in the rent proceedings to which challenge has been thrown in this petition just to show nwlafide on the part of the Court in those proceedings because of the fact that the Rent Controller, Rawalpindi, has already passed an ejectment order against the petitioners from the property in dispute through his judgment dated 22.4.1992. A copy of the same has been placed on record by the learned counsel appearing for the petitioners. Any dilation on those interim orders may prejudice the case of the either party. The sanction of the disputed map was accorded after its approval by a Committee known as "Building Plan Sanctioning Committee" headed by the Commissioner, Rawalpindi by taking into consideration the bye laws of the Municipal Committee, Rawalpindi, as well as its Master Plan. The respondents No.2 to 7 in order to secure sanction have surrendered set back of 19 feet 6 inches and 13 feet 6 inches from their own land to make the width of the Murree Road 82 feet from its centre as required under the bye laws. The map of the disputed properly appeares to have been duly sanctioned by the Municipal Committee, Rawalpindi, which according to the learned counsel appearing for the Municipal Committee, Rawalpindi, is in accord with law and rules. It is an established law that three ingredients for the grant of injunction must co-exist in order to entitle the petitioners/plaintiffs for the relief claimed. Petitioners have to show that they have got a good prima facie case; that balance of convenience lies in their favour and they are likely to suffer irreparable loss if injunction is not granted. Here in this case the respondents No.2 to 7 have embarked upon the eviction of the petitioners after equipping themselves with a sanctioned map for reconstruction of the disputed property. This right of reconsutrcution and consequent eviction L> guaranteed by Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 which in turn has also secured the interest of the tenants in case of any dereliction on the part of the landlord. Any interference would amount to frustrating the right of reconstruction/eviction provided under the law. In a case reported in 1992 CLC-345 Zakaria Dad v, Maneck Byramjijavat a learned Judge of Sindh High Court refused to grant injunction to the tenant in a suit for specific performance as the same was going to have adverse effect on the rent proceedings pending between the parties. This revision petition can be dismissed on another ground that the remedy being discretionary the two Courts below have refused to exercise their discretion favouring the petitioners. It is ironical that the petitioners have been using the property in dispute as tenants on commercial basis for the last many years and this factum has been admitted by the learned counsel for the petitioners. But on the contrary, they have thrown challenge to the respondents' sanctioned plan simply on the ground that the same is violative of the Master Plan as the property under dispute cannot be utilized for commercial purpose. The petitioners want different treatment for themselves as compared to respondents No.2 to 7. They themselves are using the disputed property for commercial purpose but do not allow respondents No.2 to 7, the owner/landlords of the property, to use the same on that basis inspite of the fact that they have got the sanctioned map in their favour. The Holy Prophet (peace be upon Him) has said that "Treat others with similar/same treatment which you like (torn others unto yourself. The two Courts below have rightly observed that the issuance of the restraint order in the circumstances of this case would adversely effect the case of the respondents who had embarked upon the eviction proceedings strictly in accordance with law under the Rent Restriction Ordinance, 1959. The petitioners have got no priina facie case and in case of grant of injunction it would be respondents No.2 to 7 who would be suffering irreparable loss and injury, particularly when their title to the property is not under dispute. No illegality or irregularity has been found in the orders of the two Courts below. Resultantly, in view of what has been stated above. I am not inclined to interfere in the impugned orders and dismiss this petition with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 399 PLJ 1992 Lahore 399 Present: MALIK MUHAMMAD QAYYUM, J M/s NADIA GHEE MILL-Pctitioner versus FEDERATION OF PAKISTAN ETC.-Respondents Writ Petiliton No. 3414 of 1992, dismissed on 16.5.1992 (Approved for reporting on 23.6.1992). Constitution of Pakistan, 1973- —Art. 199(a)(ii)~Surcharge/additional Custom duty-Imposition of—Challenge to-Whether writ petition is maintainable-Question of~High Court is empowered to issue directions of nature contempleted by Article 199 to a person who is performing functions in connection with affairs of Province or local authority within its territorial jurisdiction-Action impugned in petition is that of Collector Customs, Karachi, whose jurisdiction is confined to Karachi- Held: Petition under Article 199 of Constitution is not maintainable before Lahore High Court. [Pp.401,402,404&405]A,B&C PLD 1968 SC 387 not applicable. PLJ 1985 SC 346 and PLJ 1991 Lahore 219 (DB) distinguished AIR 1953 SC 210, AIR 1956 SC 246, AIR 1961 SC 532 and AIR 1962 SC 670 ref. Syed Kazim Hussain Raza, Advocate for Petitioner. Mr. S^A. Mannan, Deputy Attorney General for Respondents. M/s Zahid Hussain andAshtarAusafAli, Advocates on Court's call. Date of hearing: 2.5.1992. order The petitioner is running a vegetable ghee mill wherein vegetable ghee is being produced out of palm oil which is imported from abroad. Originally, this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was filed on 19.4.1992 in which the Federation of Pakistan through Secretary Commerce, Islamabad, Chairman Central Board of Revenue, Islamabad Controller of Import and Export and the Federation of Pakistan, through Secretary Ministry of Industries were cited as respondents. 2. In this constitutional petition, challenge of the petitioner was to surcharge/additional customs dutry being demanded by the Collector of Customs, Karachi where the imported consignment was lying. It was pointed out by the learned Deputy Attorney General that this petition was not competent as Collector of Customs, Karachi had not been impleaded as a respondent. On the verbal request of the learned counsel for the petitioner, he was allowed to amend this petition and properly document it. 3. In the amended petition filed by the petitioner in addition to the four respondents already mentioned, the Collector of Customs was impleaded as respondent No. 5. 4. In response to a pre-admission notice, Mr. SA. Manan, Deputy Attonery General for Pakistan, had entered appearance. He raised a preliminary objection as to lack of territorial jurisdiction of this Court. It was pointed out by him that the action impugned in this petition had been taken by the Collector of Customs at Karachi where the goods imported by the petitioner were lying. On these premises, it was argued by the learned Deputy Attorney General that this Court cannot issue any direction to respondent No. 5 nor his action can be scrutinized. 5. Learned counsel for the petitioner, on the other hand, had maintained that as the offices of respondents No.l to 4 are located in Islamabad, this petition was maintainable before this Court. Reliance has been placed by the learned counsel on Asghar Hussain vs. Tlie Election Commission Pakistan and others (PLD 1968 SC 387). Mr. Ashlar Ausaf Ali and Mr. Zahid Hussain , Advocates, who were asked to assist this Court, have also been heard. 6. As is obvious from the above, the dispute in this petition is as to whether the demand of respondent No. 5 for one per cent surcharge in addition to he custom duty is valid and whether said respondent in refusing to allow clearance of the imported consignment lying at Karachi without the payment of disputed amount is without lawful authority. Respondents 1 to 3 are neither necessary nor proper parties to the proceedings as neither any order passed nor any action taken by them has been impugned in this petition. These respondents appear to have been impleaded with a view to create some justification for filing this petition at Lahore. 7. Article 199 f the Constitution of Islamic Republic of Pakistan, 1973,z under which this petition has been filed, to the extent it is relevant for the present purposes reads as under:— "Jurisdiction of Higji Court-Subject to the Constitution, a High Court 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 (i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a Local Authority, to refrain from doing anything, he is not permitted by law to do or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect" 8. It is evident from the reading of the abvove provision that the High Court is empowered to issue directions of the nature contemplated by sub-clause (1) to a person who is performing functions in connection with the affairs of the province or the local authority within the territorial jurisdiction of that Court. Similarly, in sub-clause (2), it is provided that High Court can declare proceeding taken within its territorial jurisdiction to be without lawful authority and of no legal effect. It thus follows that a High Court cannot issue any direction to a person who is not performing any function within its territorial jurisdiction nor can it declare any action or proceeding to be without lawful authority unless the act has been done or proceedings taken within its local limits. 9. So far as the limits of territorial jurisdiction is concerned, Article 199 makes a departure in this respect from Article 98 of the Constitution of Islamic Republic of Pakistan , 1962 (which) is some-what similar to Article 226 of the Indian Constitution. Under Article 98 of 1962, Constitution, it was not necessary for the exercise of jurisdiction by a High Court that the person against whom a direction is sought, must be performing functions or had passed an order or taken proceedings within the local limits of the High Court to which the application under Article 98 was made. All that was necessary was that the person concerned must be functioning or the order must have been passed or action taken in a Province as contradistinguished from federally administered areas and the Province need not be the same where the High Court was located. However, both (in) Article 199 of the 1973 Constitution as also Article 226 of the Indian Constitution, the exercise of power is predicated by limitation as to territorial jurisdiction. 10. The distinction between the provisions of Article 98 and Article 226 of the Indian Constitution which as already observed is similar to Article 199, was noticed and brought into bold (?) relied by the Supreme Court of Pakistan in Asghar Hussain vs Election Commission of Pakistan and others (PLD 1968 SC 387) the case cited by the learned counsel for the petitioner himself. It was observed in that case that unlike Article 226 of the Indian Constitution, there was nothing in Article of 98 of the 1962 Constitution which limits the exercise of jurisdiction of a High Court to the territories falling within its jurisdiction. The provisions of Section 223-A of the Government of India Act and Article 170 of the 1956 Constitution which also confined the jurisdiction of the High Court of the Province to the territories falling within its jurisdiction were also noticed and compared with Article 98. In this context it was observed at page 395:-- "The words which limited the jurisdiction of the High Court under Section 223-A were "any person or authority .... within those territories" namely, in relation to which it exercises jurisdiction. Under Artice 170 the limits were imposed by the words: "throughout the territories in relation to which it exercises jurisdiction". On the contrary under Article 98 the governing words are:" performed in the Province in connection with the affairs of the Centre, the Province or a local authority". Under Section 223-A the person to whom a writ could be issued should have been a resident within those territories in relation to which the High Court exercised jurisdiction. Under Article 170 no writ could be issued beyond the territories in relation to which the High Court exercised jurisdiction. These limitations were, however, done away with in the 1962 Constitution presumably for the reasons that while under the 1956 Constitution the Supreme Court had concurrent jurisdiction with the High Courts to issue writs, the 1962 Constitution took away that jurisdiction and but for this arrangement the citizens of East Pakistan would have been denied the remedy provided by Article 98 of the Constitution in respect of orders made and proceedings taken, etc., by persons performing in that province functions in connection with the affairs of the Centre". Again, at page 397 it was observed that:— "Neither limitation imposed on the powers of a High Court in India by Article 226 is contained in Article 98. The plain meaning of the words: "a person performing in the Province functions in connection with the affairs of the Centre" exclude territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories which followed from the phrase: "to any person or authority, including in appropriate cases any Government, within those territories" in Article 226 of the Indian Constitution". It is evident that Asghar Hussain's case turned upon the language of Article 98 of the Constitution of 1962 and is not applicable to the cases arising under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, where the provision is wholly different. 11. As a matter of fact, Article 199 of Constitution is similar to Clause (c) of Article 98 (2) which was added by Constitution of First Amendment Act, 1963, which reads as under:— "On the application of any aggrieved person made, an order giving such directions to any person or authority including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I, of Part II of this Constitution". While interpreting this provision, it was observed by the Supreme Court in Asghar Hussein's case supra at page 397 that :-- The person or authority to whom a direction may be given under clause (c) must be functioning in relation to the territory within the jurisdiction of a High Court. The concept of territory limitation is thus introduced to ensure that writs issued by the High Court do not run to tribal areas and certain States in the Province of West Pakistan. This brings out the intention of the Constitution that the jurisdiction conferred on a High Court to issue writs and directions under Article 98(2) (a) (i) is not confined to the territories in respect of which it exercises its jurisdiction except for the enforcement of fundamental rights conferred by Chapter I of Part II of the Constitution". These observations leave no room for doubt that even under the 1962 Constitution, in case falling under clause (c), of Article 98 the High Court could only exercise jurisdiction with regard to the territories falling within its territorial jurisdiction. 12. As already observed, the provisions of Article 226 of Indian Constitution also contained a similar restriction regarding territorial limits as Article 199 of 1973 Constitution. The Indian Supreme Court in various cases like Election Commission of India vs. Saka Venkata Rao (AIR 1953 SC 210), A. Tlwngal Kanju Mitsaliar Vs. M. Venkatachalm Potti (AIR 1956 SC 246), Lt. Col KJiajoor Singh vs. Union of India & another (AIR 1961 SC 532) and Shriran Jhunijhuwala Vs The State of Bombay (AIR 1962 SC 670), has ruled that High Court can only exercise powers under Article 226 of Indian Constitution in relation to the territories within its limits. 13. Mr. Zahid Hussain and Mr. Ashlar Ausaf Ali, Advocates, have also brought to the notice of this Court an authority of Supreme Court in Messrs Al- Magh Limited. Lahore vs Tlie. Copyright Board, Karachi and others (PLJ 1985 SC 346) and a judgment of Division Bench of this Court, Muhammad Tariq Chaudhaiy, Member Senate of Pakistan vs Syed Masroor Alison and three others (PLJ 1991 Lahore 219(DB). In the first case, the order impugned before the High Court had been passed by Copy Right Board, the jurisdiction of which extended to the whole of the country. The distinction becomes clear if the following obervations of the Supreme Court in M/s Al-Iblagh case are kept in view:~ "Thus, the Board is to be constituted by the Central Government which will exercise jurisdiction in all parts of the country. Its members will belong, as far as possible, to all Provinces of the Country and its sitting can be held in every part of the country. Again, its orders, except those passed by it in its appellate capacity, can be appealed to in the High Court where the appellant resides and carries on his business. Thus, if in this case, the impugned order of the Board was not passed in its appellate capacity but its original capacity, the appellant herein could undoubtedly have filed an appeal before the Lahore High Court, because he admittedly resides and carries on business at Lahore. But it has been found by the High Court that the same appellant cannot approach the Lahore High Court in its Constitutional jurisdiction. Such an incongruous conclusion cannot easily be acceded to unless the words of the constitutional provision yielded no other interpretation". 14. So far as the other case, namely, Muhammad Tariq Chaudhaiy vs Syed Masroor Ahsan and three others (PLJ 1991 Lahore 219 (DB)), is concerned, the objection as to territorial jurisdiction was repelled in view of the observation that notification impugned in that peliliton had been issued at Islamabad and the office in question, namely that of a Senater held by the respondent in that case at Islamabad. In the present case, however, the action impugned is that of Collector Customs, Karachi (respondent), whose jurisdiction is confined to Karachi. In view of what has been stated above, it is held that this petition is notf maintainable before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan . 1973. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 405 PLJ 1992 Lahore 405 PresenrMAUK. muhammad qayyum, J MUHAMMAD ISMAIL and 3 others-Petitioners versus Malik MUHAMMAD SHAFI and others-Respondents Civil Revision No. 1798 of 1991, dismissed on 1.7.1992. (i) Civil Procedure Code. 1908 (V of 1908)- —-O. XN1II R. IS-Site-Inspection of-Prayer for-Refusal of-Challenge to Co~:entic>a that appellate Court acted illegally in rejecting application for insp-ection of site-Exercise of power under Order XVIII Rule 18 of C.P.C. wa in discretion of Court-If there was sufficient evidence on record for deciding matter in issue, inspection of property was not called for-Held: Order of appellate court in this respect is neither arbitrary nor capricious and cai^ foe no interference in exercise of revisional jurisdiction. [P.407JA&B PLJ lv'5 Lahore 178. PLD 1980 Kar. 108 and AIR 1923 Lahore 546 rel. ii» Eastintnt- —Right of easement-Claim of-Suit decreed and decree affirmed by first appellate covrt-Challenge to-It is well settled that easement of necessity can onK be claimed when it is demonstrated before court that without enjoyment of :ha; right, property for benefit of which, easement was being claimed, can no; be used at ail-Both lower courts have concurrently held that without use of passage in dispute, respondent No. 1 (plaintiff) shall have no access to his property-Held: Finding recorded by both courts below on questions of fact cannot be upset merely on ground that another view of evidence was possible on us reappraisal-Petition dismissed. [Pp.407,4d8&409]C,D,E,F&G PU 1991 SC 485 and 1991 SCMR 119 ref. Cli. Muhammad t-'amoq, Advocate for Petitioners. kji. Abdul Qaayyum, Advocate for Respondents. Date of hearing 11.5.1992 judgment This petition under Section 115 of the Code of Civil Procedure, 1908 calls in question the decree of the Additional District Judge, Lahore, dated 17th July, 1991, affirming the judgment and decree of the trial Court dated 19th Nov. 1989. 2. The back-ground in which this dispute has arisen is that originally Malik Badar Din was the owner of the land measuring 27 Kanals bearing Khasra Nos. 5083, 5093/1, 5094, 5079, 5099, 5078, 5095, 5077, 5076, 5094/1, 5103, 5102, 5101, 5100 V 5104, 5073, 5043, 5076 and 5071 situate on 21-A Davis Road, Lahore. It appears that after the death of Malik Badar Din, the land in question was divided into the five plots wnich were distributed amongst his heirs. Plot No. 1 fell to the share of Malik Mohammad Shafi, respondent No. 1, while plot No. 2 was given to Malik Sardar Ahmad, a brother of respondent No. 1, who sold it to Sheikh Muhammad Ilyas, the predecessor of the petitioners. 3. On 22nd April, 1976, Malik Muhammad Shaft respondent Np. 1, filed a suit for permanent injunction for restraining Sheikh Muhammad Ilyas, the predecessor of the petitioners, who died during the pendency of the suit and other respondents (who were impleaded as defendants) from interfering in the passage of the plaintiff over the road leading to his property which was' shown in the red colour- in the plan filed with the plaint. The suit was based upon the assertion that the passage in question had been in existence since the time immemorial and was the only access to the property of the plaintiff which would be rendered valueless in case the passage was closed. 4. The suit was defended by predecessor of the petitioners and defendants Nos. 3 and 4 who filed a joint written statement raising various preliminary objections. On merits, it was admitted that originally Malik Badar Din was owner of the entire land which was later on divided among his heirs out of which respondent No. 1 was given plot No. 1 while plot No. 2 fell to the share of Malik Sardar Ahmad, who subsequently sold it to Sh. Muhammad Ilyas the deceased defendant No. 1, the predecessor of the petitioners. 5. Out of the p'cadings of the parties, the trial Court framed the following three issues on which the parties led their evidence:-- 1. Whether there exists right of easement in favour of the pkintiff as alleged by him in the plaint? OPP. 2. If issue No. 1 is not proved whether the plaintiff has an easement of necessity over the road in dispute? OPp. 3. Relief. 6. By its judgment dated 19th November, 1989, the trial Court decided issue No. 1 against plaintiff/respondent No. 1 but held under issue No. 2 that he was entitled to use the passage as easement of necessity. On this finding the suit of respondent No. 1 was decreed. 7. Aggrieved, the petitioners took the matter in appeal before the District Court, which was, however, dismissed by an Additional District Judge, on 17 th July, 1991, who affrimed the finding of the trial Court on issue No. 2. It may be mentioned that before the learned Additional District Judge an application under Order XVIII rule 18-of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure was filed for inspection of the site but the same was rejected by the Additional District Judge, who was of the opinion that in view of the evidence led by the parties, there was no difficulty in deciding the issue involved. 8. The first contention raised by Ch. Muhammad Farooq, Advocate, learned counsel for the petitioner is that the learned Additional District Judge acted illegally in rejecting the application for inspection of site filed by the petitioners. This contention of the learned counsel is not well founded. The exercise of power under Order XVIII rule 18 of the Code of Civil Procedure for inspection of the property was in the discretion of the Court. If there was sufficient evidence available on the record on the basis of which the Court found no difficulty in deciding the matter in issue, the inspection of the property was not called for. The order passed by the learned Additional District Judge, in this respect is neither arbitrary nor capricious and calls for no interference in the exercxise of revisional jurisdiction of this Court. 9. It needs no gain saying that inspection is ne substitute for evidence and a case cannot be decided namely on the basis of opinion or impression formed during inspection. See Muhammad Jumman and another vs: Mst. Aqlan and 2 others (PLD 1980 Karachi 108), Nur Mohammad etc. vs. KJmshi Muhammad etc. (PLD 1975 Lahore 178) and Tirath Ram and others vs. Muhammad Abdul Rahim Shah and another (AIR 1923 Lahore 546). 10. The learned counsel then argued that as the respondent/plaintiff himself had filed the application for appointing a Local Commissioner before the trial Court, a Local Commissioner should have been appointed. To say the least, admittedly no such application was filed by the petitioner either before the trial Court or the lower appellate Court nor even before this Court and, therefore, it does not lie in the mouth of the petitioner to say that Local Commissioner should have been appointed on an application filed by his opponent. It was next contended by the learned counsel for the petitioners that easement of the nature claimed by respondent No. 1 can only arise if it was absolutely necessary to use the passage but not merely on the ground of convenience. Reliance was placed by him on two authorities of the Supreme Court \iz, Messrs Pakistan Watranted Ware-house Ltd. vs. Messrs Sindh Industrial Trading Estate Ltd. and another (1991 SCMR 119) andAbdul Hamid Shah and another vs Muhammad Yar and 13 others (PLJ 1991 S.C. 485) 12. The legal premises on which the argument of the learned counsel proceeds is not open to any exception, for it is well settled that easement of necessity can only be claimed when it is demonstrated before the Court that without enjoyment of the right the property for the benefit of which easement was being claimed cannot be used at all. However this argument does not advance the case of the petitioner, for in the present case both the Courts after appraising the entire material on the record have concurrently held that without the use of the passage in question respondent No. I/plaintiff shall not have any access to his property. In his impugned judgment, the Additional District Judge observed that:- "From the evidence on record it is quite clear that the plaintiff is claiming the easement of necessity because its exercise is necessary for a reasonable enjoyment of his property and it is not only a matter of inconvenience that he is refusing to use some other passage as access to his property. On the death of Malik Badar Din, his property obviously devolved on his heirs and was subsequently partitioned. On the basis of evidence on record, it is clear that the plaintiff cannot use his property without using the disputed passage and it is not merely the question of a reasonable enjoyment of the property. So it is, not a question of merely convenience or inconvenience. Hence, it stands clearly proved that the plaintiff/respondent No. 1 has the right to use the road in dispute as an easement of necessity." The learned Civil Judge also came to the similar conclusion arid held that:-- "The- plaintiff constructed his house after the construction of the defendant No. 1. All the PWs approved and corroborated that there is no access to the plot of the plaintiff except the disputed passage. In 1963 the plots were distributed as were planned by the Improvement Trust but that scheme was abandoned in 1968. The road proposed for the approach of the plot No. 1 was also abandoned. The plaintiff started using the disputed plot as necessity as he had no access or other approach towards his house. DW 2 who is the husband of defendant No. 10, deposed that he promised to give the passage to the plantiff but the compensation was not given to him. The defendant No. 10 was proceeded exparte. So she admitted the claim of the plaintiff as correct. Malik Zahoor defendant No. 11 consented that the plaintiff has no access except the disputed path. The suit was decreed to the extent of defendant No. 11 on 5.2.1989 on the basis of mutual agreement Ex. Cl. DW 3 the defendant No. 1 admitted that the plaintiff has been using the disputed passage after h^s construction. Obviously no objection was raised for a long time. DW 3 admitted that the road shown mark B in the site plan does not pass beyond the house of the plaintiff. Further added that passage was included by the plantiff in his house. He admitted that, that road does not pass up till Sundar Dass Road. The upshot of the above discussion is that the plaintiff has been using the disputed path as an entire necessity and he has no alternative except the disputed path. At the most the defendant can claim compensation as has been admitted by DW 2 in his crossexamination." 13. These findings are not shown to suffer from any misreading or nonconsideration of material evidence and therefore, cannot be interfered with in the revisional jurisdiciton of this Court. 14. The learned counsel for the petitioner, however, referred 10 various parts of the statement of certain witnesses to show that the findings arrived at by the Courts below were not correct. This argument of the learned counsel cannot be accepted as these findings are based upon correct appreciation of evidence. Be that as it may, the findings recorded by both the Courts below on questions of fact cannot be upset merely on the ground that another view of evidence was possible on its reappraisal. In this view of the matter there is no force in this petition. It is dismissed, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 409 PLJ 1992 Lahore 409 Present: MALIK MUHAMMAD QAYYUM, J PAKISTAN RAILWAYS, THROUGH CHIEF PERSONNEL OFFICER headquarters office, LAHORE-Petitioner versus S. ABDUL RAUF and another-Respondents Writ Petition No.887 of 1988, accepted on 26.5.1992. Jurisdiction— -—Railway employee-Transfer of--Complaint of unfair labour practice under Section 15 read with Section 53 of I.R.O.-Maintainability of~Under Article 212 of Constitution, a dispute regarding terms and conditions of a civil servant can be agitated only before Service Tribunal and no other forum—Question is whether respondent No.l is a civil servant-It would appear from definition of "Civil Servant" as given in Section 2(b}(iii) of Civil Servants Act, 1973 that exclusion is of a limited nature and is confined only to those employees of Railway who are workers or workmen within meaning of Factories Act, 1934 and Workmen's .Compensation Act, 1923 and not all employees-Held: Jurisdiction of N.I.R.C. to try complaint filed before it by respondent No.l was barred by Article 212 of Constitution-Petition accepted. [Pp.411 &412]A,B,C,D,&E PLD 1981 SC 172 and PLD 1992 SC 127 rel. Ch. Fazal-i-Hussain, Advocate for Petitioner. Mr. Muhammad Ahmad Hassan, Advocate for Respondent No.l Nemo for Respondent No.2 Date of hearing: 26.5.1992. judgment Sheikh Abdul Rauf, respondent No.l, was working as an Upper Division Clerk in the employment of the petitioner, when on 21st of January, 1986, he filed a complaint under Section 15 read with Section 53 of the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission, respondent No.2, alleging that the petitioner had committed unfair labour practice by ordering his transfer allegedly on account of his trade union activities. 2. The complaint was defended, inter alia, on the plea that respondent No.l was not a "workman" but was a civil servant, and as such the National Industrial Relations Commission had no jurisdiction in the matter. The objection regarding maintainability of the petition was repelled by a single Member of the National Industrial Relations Commission on 9th of February, 1987. Aggrieved by that order, the petitioner filed an appeal before the Full Bench of the Commission, which, however was dismissed, as being not maintainable on 8th of December, 1987. The order dated 9th of February, 1987 of the single Member and the subsequent order of 8th December, 1987 of the Full Bench of the Commission have been assailed in this petition. 3. Mr. Fazal-i-Hussain, the learned counsel for the petitioner, in support of this petition has relied upon Article 212 of the' Constitution of the Islamic Republic of Pakistan, 1973, to contend that as respondent No.l was a civil servant in the employment of the petitioner, the only competent forum where any dispute regarding terms and conditions of his service could be agitated was the Service Tribunal constituted under the Service Tribunals Act, 1973, and the National Industrial Relations Commission had no jurisdiction to entertain the complaint. Reliance has been placed by the learned counsel upon judgments of the Supreme Court of Pakistan in Mufti Mushlaq Ahmad v Tire Federation of Pakistan (PLD 1981 S.C. 172) and Faqir Muhammad v. 77i<? Director of National Savings, Mutton Region,' Multan (PLD 1992 S.C. 127) also an unreported decision of the Supreme Court in Civil Appeal No.578 of 1980 titled as Akbar AH and others v. Tlie Senior Administrative Officer, Pakistan Railways, and another, decided on 6th of February, 1989. 4. Mr. Muhammad Ahmad Hassan, the learned counsel .representing respondent No.l on the other hand, has however, maintained that respondent No.l was a workman and not a civil servant, as the workmen have been specifically excluded from the definition of civil servant as appearing in the Civil Servants Act, 1973. It was also objected that this petition was not maintainable as it was directed against an interim order. . 5. Having heard the learned counsel for the parties, there appears to be great deal of force in the contention raised by the learned counsel for the petitioner. Under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, a dispute regarding terms and conditions of a civil servant can be agitated only before the Service Tribunal constituted under the Service Tribunals Act, 1973 and no other forum. 6. The only question however, which emerges for determination from the respective contentions of the parties is as to whether respondent No.l is a civil servant. The argument of respondent No.l that he is not a civil servant is based upon the exclusion of a workman from definition of civil servant as given in Section 2(b)(iii) of the Civil Servants Act, 1973. As .would appear from the definition itself the exclusion is of a limited nature and is confined only to those employees of the Railway who are workers or workmen within the meaning of Factories Act 1934 arid Workmen's Compensation Act 1923 and not all employees. 7 . Unfortunately the impugned order of the Single Member (is) based upon misreading of law. On this aspect of the matter it was observed without any basis that:-- "All the Clerks employed are workmen as defined in the Industrial Relations Ordinance". This observation not only suffers from miscomprehension of true legal position but also runs counter to law preclared by the Supreme Court of Pakistan in case of Mufti Mushtaq Ahmad v. tlie Federation of Pakistan (PLD 1981 S.C. 172). 8. In any case the question involved stands conclusively determined by the Supreme Court of Pakistan in case of Akbar All and others v. Tlie Senior Administrative Officer, Pakistan Railways and another (Civil Appeal No.578/80 decided on 6th February, 1989) wherein it was observed that the Clerks working in an administrative office of Pakistan Railways are civil servants and not workmen either under the Factories Act 1934 or under the Workmen's Compensation Act 1923. This enunciation of law is fully applicable as according to the case of respondent No.l himself he was employed as Upper Division Clerk in the Saw Dust Depot outside Carriage and Wagon Shops Pakistan Railways Mughalpura. The observations of the Supreme Court in other case relied upon by the learned counsel lor the petitioner namely Faqir Muhammad v. The Director of National Savi:;:;;. Muhun Region, Multan (PLD 1992 S.C. 127) are also instructive. '', From the above it is evident that the jurisdiction of respondent ND.2 to try the complaint filed before it was barred by Article 212 of the Constitution of the l^ auiu Republic of Pakistan , 1973. 10. As regards the objection of the learned counsel for the respondent that the petition is directed against an interim order and it is not maintainable, suffice it to say that the petitioner had challenged very assumption of jurisdiction by respondent No.2, which, on the face of the record, appears to be lacking. Consequently, the objection raised by the learned counsel for the respondent cannot be given any weight. For reasons aforesaid, this petition is allowed and the order dated 9.2.1987 passed by the National Industrial Relations Commission is declared to be without lawful authority and of no legal effect. No order as to costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1992 Lahore 412 PLJ 1992 Lahore 412 [Bahawalpur Bench] Present: SH. KlllZAR HAYAT, J BASHIR AHMAD AKHGAR and another-Petitiohers versus COLLECTOR LAND ACQUISITION, SADIQABAD and 2 others-­Respondents Writ Petition No.837/BWP of 1991 (also W.P.Nos. 838 to 840 of 1991) dismissed on 19.5.1992. Punjab Land Acquisition Rules, 1983--

—R.14"Land"Acquisition of-Abandonment of Scheme-Prayer for. return of acquired land-Impugned award was delivered in 1973 which was accejpted by petitioners-They did not file any appeal or reference against it-They rather received compensation for land acquired-Chapter of acquisition had been closed 19 years ago for all intents and purposes-No provision of law has been shown whereunder petitioners are entitled to return of acquired land as of right-Held: Under Rule 14, Government in its discretion may return land to its owners if it has abandoned scheme-Held further: Objection that scheme of constructing cantonment has been abandoned, is misconceived-Petitibns dismissed. [Pp.413&414]A&B Mr. Ejaz Ahmad Chaudhry, Advocate for Petitioners. Ch. Nazir Ahmad Bhatti, Advocate for Respondents 1 & 2. Mr. Shamsher Iqbal Chughtai, Advocate for Respondent No.3. Date of hearing: 19.5.1992. order This order shall dispose of the four writ petitions, namely, W.P. No.837-91/BWP filed by Bashir Ahmad Akhgar and another; W.P.No.S38-91/BWP filed by Laiq Muhammad and 9 others; W.P.No.839-91/BWP filed by Ghulam Qadir and 5 others; and W.P.N"o.S40-91/BWP filed by Ahmed Khan and 2 others, as in all these writ petitions the award, dated 3.1.1973, delivered by Collector, Lund Acquisition. Sadiqabad, district Rahimyarkhan. respondent No.l, under Section (?) of the Land Acquisition Act has been challenged. 2. Land measuring 1993 Acres 5 Kanals 18 Marias situate in Chak Nos.lSO/P, 151/P, 152/P, 153/P 157/P, 158/P and Mauza Bountra (different portions of which were owned by the writ petitioners) was acquired for establishment of Cantonment at Sadiqabad vide impugned Award announced by respondent No.l on 3.1.1973. All the owners of the land have received compensalion of their lands in the shape of cash and alternate land and the land acquired has been taken over by the Army excepting 196 Acres 6 Kanals 13 Marias belonging to Tariq Ismail Khan as the G.H.Q. Rawalpindi, vide its letter No'.3678/1974/Land/Qtg-2(B). dated 6.12.1977, had withdrawn from its acquisition. 3. As no cantonment has so far been established on the land acquired, therefore, the writ petitioners, assuming that the scheme of establishing the cantonment has been abandoned, filed the instant writ petitions in July, 1991, praying that the Award whereby their lands had been acquired be declared to be without lawful authority and a direction be given to the respondents t& release their lands. The Ministry of Defence, Government of Pakistan, applied for becoming a party in these writ petitions which request was granted vide order, dated 14.9.1991. of this Court and the Ministry of Defence was arrayed as respondent No.3 in all these \rit petitions. 4. Learned counsel appearing on behalf of the respondents has placed on retord letter ol Can;^r.n:.r.t Executive Officer, Punnu Aqil Cantonment, dated 14.5.1992, informing that he has been instructed by the Ministry of Defence to inform this Court of their follow inn .stand:-- "The land is not proposed to be abondoned and is being utilized as Military Dairy Farm for bringing up of animals to support the adjoining Cantonments. A Cantonment is proposed to be built on the acquired land which is required for defence purposes. Due to lack of resources and Budget constraints the development has pended". 5. Be tirat as it may, the impugned award was delivered on 3.1.1973 which was accepted by the petitioners so much so that they did not file any appeal or reference as provided under Land Acquisition Act, 1894. They have rather received the compensation. The chapter of acquisition had been closed 19 years ago tor all intents and purposes. I have, however, heard learned counsel for the petitioners at some length. He has failed to show that the impugned award suffered from any legal or factual infirmity. The only grievance of the petitioners is that since the purpose of constructing cantonment on the acquired land has been abandoned, and that the purpose of acquisition having not been fulfilled their land should be returned to them. Learned counsel have failed to show any provision of law whereunder the petitioners are entitled, as of right, for return of their land due to non-use of it for the purpose it was acquired. In rule 14 of the Punjab Land Acquisition Rules, 1983, it is stated that the Government in its discretion may return the land to its owners if it has abandoned the scheme for which it had been acquired but for that matter the petitioners ought to approach the Government straigh'taway and the Government in its discretion may, if so wishes, return the land to them on the conditions it deems fit. 6. Above all the petitioners' objection that scheme of constructing cantonment has been abandoned seems to be misconceived because the Ministry of Defence, as mentioned above, has not abandoned its scheme, rather they have pended the matter due to Budget constraints. Consequently, these petitions are absolutely misconceived and are thus hereby dismissed in limine. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 414 PLJ 1992 Lahore 414 [Bahawalpur Bench] Present: KHALID paul khwaja, J HAB1B BANK LTD. KHANPUR-Appellant Versus Mst. MUNAWAR SULTANA and another-Respondents F.A.O. No.l3/BWP of 1991, dismissed on 4.2.1992. (i) Limitation Act, 1908(lX of 190fy- —S.5--Prosecution of appeal in wrong forum-Return of appeal-Delay inTiling of appeal in proper forum-Condonation of-Prayer for-Contention that appeal had been instituted in wrong forum due to mistaken advice of learned counsel as a result,of which considerable time was wasted-Held: Mistaken advice of a lawyer, on basis of which "proceedings are prosecuted before a wrong forum, has never been considered to be a good ground for condonation of delay—Held further: There is no explanation of delay of one month'after return of plaint by District Court and appeal is liable for dismissal on this account alone-Appeal dismissed. [Pp,417&418]D,E&F PLD 1965 SC 690, PLD 1977 SC 102, PLD 1983 .SC 385,1984 SCMR 890,1985 SCMR 1493; 1986 SCMR,1093 and PLD 1991 SC 957 re/. (ii) Limitation Act 1908(lX of 190$- ...... S.14--Prosecution of appeal in wrong forum-Return-of appeal-Delay in filing of appeal before proper forum—Whether time spent in prosecuting appeal in wrong forum could be excluded-Question of-Value of suit for purposes of Court-fee and jurisdiction was more lhan five lacs of rupees-­ Appeal could only be instituted in High Court as it was beyond pecuniary jurisdiction of District Court-Appeal remained pending in District Court for about four years when it was returned instead of permitting to be withdrawn-­Appeal had been filed in District Court due to carelessness and negligence and such act is never considered to be an act done in good faith-Held: Appellant is not entitled to any concession under Section 14 of Limitation Act. [Pp.416&417]A,B&C Mr. M. Shamsher Iqbal Cluig/itai, Advocate for Appellant. Date of hearing: 4.2.1992. order This appeal is directed against the order dated 11.11.1987 whereby the learned Civil Judge 1st Class. Khanpur District Rahimyar Khan dismissed the appellant's applications for temporary injunction and attachment before decree in a suit for the recovery of Rs.5,12,952.78. 2. The relevant facts, in brief, are that Habib Bank Ltd., appellant herein, instituted a suit against Mst. Munawar Sultana widow and Ch. Muhammad Iqbal father of Muhammad Aslam Farooq deceased. It was Alleged that while serving as a Manager of Habib Bank Ltd. Model Town Khanpur Branch Muhammad Aslam Farooq aforesaid misappropriated the aforesaid amount and later on committed suicide. It was further alleged that the respondents were liable to pay the suit amount out of,the estate of the deceased which they had inherited. 3. During the pendency of the suit the appellant-Bank moved the following Applications: (/) for the grant of temporary injunction to restrain the State Life Insurance Company from paying the death claim of the deceased to his legal heirs; for the attachment of the said claim before judgment; and for the attachment before the judgment of the gratuity, allowances, funds and pension of the deceased. The said applications were contested by the respondents. After hearing the parties' learned counsel the learned trial court vide order dated 11.11.1987 held: 'In the cirucmstances the grant of injunction restraining the defendants from receiving the pension, gratuity and death allowances shall not be in the interest of justice. The rights of the plaintiff can be well secured by directing defendant to furnish security for the amount 'for which the suit has been filed. As seen above defendant is ready to furnish the security, therefore, the prayer for temporary injunction is rejected and the applications for attachment before judgment are disposed of in the terms that defendant No.l shal furnish a security for the sum of Rs.5,13,000/-within 15 days of this order. After furnishing of security defendant No.l can recover the pension, gratuity and other allowances payable by the Bank and the Insurance claim of the deceased". 4. Feeling aggrieved the appellant lodged an appeal in the Court of the learned District Judge, Rahimyar Khan on 16.12.1987. On 30.10.1991 the learned counsel for the appellant submitted an application before the learned District Judge for permission to withdraw the appeal, whereupon the learned District Judge made the following order:"Since the appeal is not competent before the District Court due to the valuation of the subject matter in suit being above Rs.2,00,000/-, therefore, withdrawal of appeal cannot be allowed. However, the appeal is returned to the appellant for presentation if he so desires before the Hon'blc High Court. The appeal is returned." 5. Thereafter, on 1.12.1991 the appeal was presented in this Court alongwith an application for condonation of delay on the ground that the appellant's learned counsel had due to misunderstanding instituted the appeal in the wrong Court. 6. I have heard the learned counsel for the appellant and have also perused the material available on record. 7.. As is evident from para No. 12 of the plaint the value of the suit for the purposes of court-fee and jurisdiction was Rs.5,12,952.78. An appeal arising out of such a suit could only be instituted in the High Court as it was beyond the pecuniary jurisdiction of the District Court. The fact remains that the appeal in question was instituted in the court of the District Judge Rahimyar Khan instead of the High Court. Learned counsel for the appellant has submitted that as the appeal had been filed in a wrong cqurt due to inadvertance, therefore, the period consumed.in the said court may be excluded from the period of limitation prescribed for appeal and the delay be condoned. 8. The admitted position is that the appeal remained pending in the District Court for about four years and thereafter when it was realised that its value for the purpose of court-fee and jurisdiction was much beyond the pecuniary jurisdiction of the said court the appellant's learned counsel tried to withdraw it but the same was returned to him vide order dated 30.10.1991 and he after about a month of the said return, on 1.12.1991, presented the appeal in the High Court. The questions which fall for determination are: (a) Whether the appellant had been prosecuting the appeal in the wrong court in good faith and therefore, the period consumed in the court of learned District Judge was to be excluded? and (b) whether the circumstances of the case justify condonation of delay in the present case? 9. Perusal of the record shows that the appellant alongwith the memorandum of appeal had appended a copy of the plaint para No.12 of which was manifestly clear on the point that the value of the suit for the purposes of court-fee and jurisdiction was Rs.5,12,952.78. It is elementary that an appeal arising out of such a suit would lie in the High Court and not in the District Court. In these circumstances, I feel myself justified in holding that the appeal in the District Court had been filed due to carelessness and negligence. An act which'is done with carelessness and negligence is never considered to be an act done in good faith. Section 14 of the Limitation Act lays down that where a party in good faith has been prosecuting with due diligence a civil proceeding in a wrong court the time spent by him in the said court would be excluded from the period of limitation. The most important ingredient of this section is that the party had been prosecuting its case in the wrong court in good faith. The concession under Section 14 ibid would therefore, be available to a party only when it is established that it had been prosecuting the proceeding in the wrong court in good faith. In the present case unfortunately the proceedings taken by the appellant before the District Court were the result of carelessness and negligence and this could not be termed as prosecuting a proceeding in good faith. The appellant therefore, is noti entitled to any concession under Section 14 of the Limitation Act. 10. As regards the condonation of delay under Section 5 of the Limitation Act it has been argued on behalf of the appellant that the appeal had been instituted in the wrong forum due to the mistaken advice of the appellant's learned counsel as a result of which considerable time was wasted. Mistaken advice of a lawyer on the basis of which proceedings are prosecuted before a wrong forum has never been considered to be a good ground for condonation of delay. In this regard I am supported by Haji Abdullah Klian and others v. –Nisar Muhammad KJian and others (PLD 1965 S.C. 690), Abdul Ghani v. Ghulamfi Sowar (PLD 1977 S.C. 102), Miiza Muhammad Saeed . Shahab-ud-Din and 8 others (PLD 1983 S.C. 385), Mst. Mahmooda Begiim and others v. Major Malik Muhammad Ishaq and others (1984 SCMR 890), Nek Muhammad v. A.C., Jhelum and others (1985 SCMR 1493), SardarKhan v. Khurshid Alvned and another (1986 SCMR 1093) and Giiulam All v. Akbar alias Akoor and another (PLD 1991 S.C. 957). Learned counsel for the appellant did not find himself in a position to| controvert this legal position. 11. Further, when the memorandum of appeal had been returned to the appellant on 30.10.1991, the same should have been presented in the proper forum i.e. the High Court without further loss of time but surprisingly the appeal [was presented after a lapse of one month. There is no explanation of any such ' delay at all. The appeal is liable for dismissal on this account also. 12. The upshot of the above discussion is that the appeal is hopelessly barred by time and there is no ground-for any condonation of delay. The same, therefore, (Approved for reporting) Appeal dismissed. is dismissed in limine. (MBC)

PLJ 1992 Lahore 418 PLJ 1992 Lahore 418 [Bahawalpur Bench] Present: SH. KHIZAR hayat, J JAVEED ZIA--Petitioner versus RETURNING OFFICER/ASSISTANT COMMISSIONER, AHMADPUR EAST and 2 others-Respondents Writ Petition No.31/BWP of 1992, dismissed on 14.1.1992. Election Disputes- —Election for worker's seat in Municipal Committee-Nomination papers for— Acceptance of--Challenge to—Grievance of Petitioner is that respondent No.2 does labour on daily wages and respondent No3 having been shown as "Lohar", is a craftsman, therefore both of them are not covered under definition of "workers-According to definition in Section 3(lix) of Punjab Local Government Ordinance, 1979, a worker includes "self employed craftsman like blacksmith, carpentar, tailor and shoe-maker"-Term "worker" in common parlance means a person who does manual labour with his own hands—Held: Respondent No.l has committed no illegality by accepting nomination papers of respondents 2 and 3 as candidates for worker seat-Petition dismissed. [Pp.418&419]A&B Mr. M. Shamsher Iqbal Chughtai, Advocate for Petitioner. Date of hearing: 14.1.1992. order Javed Zia, petitioner herein, is contesting election for the worker's seat of Municipal Committee Ahmedpur East. Muhammad Saeed, respondent No.2, and Mistri Maqsood Ahmed, respondent No.3, are also rival candidates for the said seat. Nomination papers of all of them have been accepted by the Returning Officer. 2. The grievance of the petitioner is that Muhammad Saeed, respondent No.2 does labour on daily wages whereas Mistri Maqsood Ahmed, respondent No.3, is a craftsman as he has been shown as "Lohar" in die electoral roll, therefore, both respondents No.2 and 3 are not "worker" according to the definitions given in Section 3(/ur) of the Punjab Local Government Ordinance, 1979, and Section 2 (xxviii) of the Industrial Relations Ordinance XXXIII of 1969. According to the definition in Section 3 (lix) of the Ordinance of 1979 a worker includes "self employed craftsman like blacksmith, carpentar, tailor and shoe­ maker". Admittedly Mistri Maqsood Ahmed, respondent No3, is a blacksmith, therefore, prima facie he is a worker and can contest the election for worker seat. Learned counsel states that the definition has since been amended but he has not shown any Gazette Notification wherein the word "blacksmith" has been deleted from the said definition-clause. 3. As for Muhammad Saeed, respondent No.2, his profession in the electoral roll is shown as "Mazdbori" (labour). Learned counsel says that since he is a daily wager, therefore, he is not covered by the definition of "worker". The interpretation placed by the learned counsel on the term "worker" is not borne out IB by the aforesaid two statutory definitions. The term Vorker" in common parlance means a person who does manual labour with his own hands and thus includes the labourer and as such the respondent No.l has committed no illegality by having accepted his nomination papers as candidate for the worker seat. 4. Lastly it is urged that date of scrutiny of nomination papers was 9.1.1992 whereas the nomination papers of Muhammad Saeed, respondent No.2, were accepted on 7.1.1992. I have seen the photo-stat copy of the impugned order attached with the petition. It appears that first it was written as 7.1.1992 and then it was made as 9.1.1992, which may be due to slip of pen. 5. For what has been stated above, there is no merit hi this petition and is, therefore, dismissed in limine, (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 419 PLJ 1992 Lahore 419 Present: MUHAMMAD ILYAS, J AFTAB AHMAD-Petitioner Versus Mst. TAHIRA YASMEEN AND 3 others-Respondents Writ Petition Nos. 8820 and 8822 of 1991, dismissed on 1.6.1992 (approved for reporting on 2.8.1992) Khula- —Marriage-Dissolution of~Khula--Grouad of~From evidence, 'it can be clearly gathered that respondent is fed up with petitioner due to misrepresentations made by petitioner and other nefarious activities indulged in by him-Respondent has developed strong dislikeness for petitioner and it is not possible for them to live peacefully as husband and wife within limits prescribed by Almighty Allah—Held: Appellate court was justified in decreeing respondent's suit for dissolution of marriage and dismissing suit for restitution of conjugal rights-Petitions dismissed. [P.421JA&B Mian Muzaffar Hussain, Advocate for Petitioner. Date of hearing: 1.6.1992 judgment This judgment shall dispose of the writ petition in hand, namely, Writ Petition No. 8820 of 1991, Aftab AJunad versus Mst. Tahira Yasmeen and others, as well as Writ Petition No. 8822 of 1991, Aftab Ahmad versus Mst, Tahira Yasmeen and others. 2. Facts giving rise to these writ petitions are that respondent No. 1 MsL Tahira Yasmeen, hereinafter referred to as respondent, was married to Aftab Ahmad, hereinafter referred to as the petitioner. Subsequently differences arose between the spouses and the respondent filed a suit against the petitioner for dissolution of marriage. On the other hand, the petitioner brought a suit against her for restitution of conjugal rights. The Family Court, which was seized of the suits, decreed the suit of the petitioner but dismissed the suit of the respondent. She, therefore, went in appeals before an Additional District Judge. The .learned Additional District Judge accepted her appeals, in both the cases, and decreed her suit for dissolution of marriage on the ground of Khula and dismissed the petitioner's suit for restitution of conjugal rights. Feeling aggrieved by the judgments and decrees passed by the learned appellate Court, the petitioner has filed the constitutional petitions referred to above. It was contended by the learned counsel for the petitioner that there were no sufficient grounds for dissolving the respondent's marriage on the ground of KJutla and, therefore, the judgments and decrees passed by the learned appellate Court were without lawful authority and of no legal effect. 4. I have examined the evidence of the parties and find that in her statement as P.W. 1, it was stated by the respondent (Mst. Tahira Yasmeen) that at the time of marriage it was misrepresented by the petitioner that he was an Engineer but it was subsequently learnt that he had been educated up to middle standard only. It was further deposed by her that on the occasion of marriage she was told that he was Rajput by caste, but thereafter it transpired that he was a blacksmith. She belongs to an agriculturist family. Another allegation levelled by her was that he was addicted to alcohol and was involved in smuggling activities. According to her, he had also illicit relations with other women. The respondent deposed that whatever articles were given to her at the tune of marriage, had been returned by her to the petitioner. It was added by the respondent that the petitioner held out threats to her. Her statement stands supported by the depositions of Shahbaz Alt (P.W.2) and Muhammad Asghar (P.W.3). In rebuttal, the petitioner produced Ghulam Muhammad (D.W.I), Dr. Ahmad Hassan (D.W.2) and Zahid Hussain (D.W.3). He also himself went into the witness-box as D.W.4. It is, however, evident from the petitioner's own evidence that it is not possible for the spouses to live amicably. This is what was stated by Ghulam Muhammad (D.W.1) who is father of the petitioner. It was clearly deposed by him that it was wrong that the parties could live together. Precise words of his statement, in Urdu, read as follows:- Similar statement was made by Dr. Ahmad Hassan (D.W.2) who too appeared as a witness of the petitioner. He said that now the respondent has developed great hatred for the petitioner. Relevant portion of his statement, in Urdu, makes the following reading:- In his statement as D.W.4, it was said by the petitioner that he was prepared to live with respondent at all costs but he did not say that the respondent did not hate him or that it was possible for them to live nicely within the limits prescribed by Almighty Allah. 5. From the evidence of the respondent it can be clearly gathered that the respondent is fed up with the petitioner due to misrepresentations made by the petitioner and other nefarious activities indulged in by him and, therefore, she wants to say good-bye to him. In other words, the respondent has developed strong dislikeness for the petitioner and it is not possible for them to live peacefully as husband and wife. This is also discernible from the evidence of the petitioner himself, which has been referred to above. It is not even the plea of the petitioner that they can live together within the limits prescribed by Almighty Allah. In the circumstances, the learned Additional District Judge was justified in decreeing the respondent's suit for dissolution of marriage and dismissing the petitioner's suit for restitution of conjugal rights. 6. Since the judgments and decrees assailed in the aforementioned two writL petitions are not open to any legitimate exception, both the writ petitions, referred) to at the out-set are dismissed in limine. (MBC) (Approved for reporting) Both petitions dismissed.

PLJ 1992 Lahore 421 [Multan Bench] PLJ 1992 Lahore 421 [Multan Bench] Present: ch. fazal karim, J SHABBIR HUSSAIN and others-Petitioners versus CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, DERA GHAZI KHAN and others-Respondents Writ Petition Nos. 2098,2303 and 2347 of 1992, dismissed on 9.8.1992 (approved for reporting on 24.8.1992) Natural Justice-- —FSc. examination-Leakage of one paper-Cancellation of paper with direction to candidates to re-appear-Challenge to~Words "special reasons" used in rule 23, Chapter V of Calendar of Board, cover leakage of a paper- Contention that expression "proper conditions" cannot include case of leakage of paper, has no force—Paper had leaked out before examination time and Board was satisfied that this had happened, so necessary conditions for application of rule 23 were all satisfied-Held: Doctrine of "natural justice" has no application at all and to countenance plea that each individual candidate was entitled to a hearing, would amount to over-judicializing inquiry by Board under rule 23-Petitions dismissed. [Pp.4i23&424]A Sardar Muhainmad Latif KJian Khosa, Advocate for Petitioners. Mr. Allah Bakhsh, Advocate for Respondents. Date of hearing: 9.8.1992. judgment This will dispose of W.P. Nos. 2098,2303 and 2347 of 1992. 2. The petitioners in these petitions under Article 199 of the Constitution were candidates at the Intermediate Examination Annual, F.Sc, Medical (Old Course), 1992, conducted by the Board of Intermediate and Secondary Education, D.G.Khan, one of the papers at the examination being Biology 'B' Old Course, which was scheduled for 9.5.1992. On 19.5.1992, the Controller of Examinations, Ghulam Rasool Atish, lodged FIR No.92 at the P.S. B-Division, D.G.Khan under Section (VII) 3(32) of the Secondary Educational Mai-practices Act, 1950, alleging that the Biology 'B' paper had been leaked out. The petitioners received notices from the Board of Intermediate and Secondary Education, D.G.Khan (to be referred to as the Board), informing them that the paper had been cancelled and that they should re-appear in the said paper on 15.7.1992. It is by these notices that the petitioners are aggrieved. In W.P. Nos. 2303 and 2347 of 1992 the prayer also is that the requirement that the petitioners should re-appear in the said paper is without lawful authority. The respondents are also sought to be restrained from holding examination in that paper again. 3. It is maintained that the students have no access to the question papers at any stage commencing from the setting of the papers till their distribution in the examination hall and the cancellation of the paper "is absolutely ununderstandable", that as the petitioners "had not come across the alleged question papers", they are being deprived of "their fruits of labour without any legal justification" and that the responsibility for the leakage, if any, was that of the officials of the Board and the petitioners cannot be punished. It is maintained further that the petitioners were not heard before the papers were cancelled; they had a vested right for the declaration of the result and there is no justification in law for the cancellation of the paper. 4. The respondents, the Chairman, and the Controller of Examinations of the Board have filed parawise comments. Shortly stated their case is that at about 230 P.M. on 2.5.1992, an Associate Professor of Government College, D.G.Khan, met the Chairman of the Board, Ch. Irshad Ahmad, and informed him of a rumour in the city that the paper had been leaked. On 8.5.1992, at about 11.00 A.M., the Professor was informed on telephone by an unknown person that the paper had "leaked out prematurely", adding that "the said professor should contact Tanvir Photo-Stat, D.G.Khan". On the morning of 9.5.1992, when he woke up, he found a question paper lying inside the door of his court-yard, it was Biology B' paper. The Professor informed the Chairman, Dr. Irshad Ahmad Chaudhry, of what had come to his notice; consequently, the Chairman went to the house of the Professor at 7.00 A.M. and received the question paper. Thereafter the Chairman went to the office of the Controller of Examinations and then to the Officer, Confidential Press of the Board. The paper was sealed and when the examination started, it was found that the paper was the same, as had been handed ever to the Chairman by the Professor. It is stated further that the preliminary inquiry was held and it was found that the students had been obtaining the question paper "by means of different sources". 5. With the comments have been attached Annexures A and B. Annexure A is a copy of the statement made by Mirza Naseer Ahmad, Associate Professor, Govt. College, D.G.Khan, in the inquiry held by the Board and Annexure B is a copy of the statement made by Dr. Irshad Ahmad Chaudhry, Chairman of the Board, in that inquiry. Annexure C consists of cuttings from a newspaper; one of the news items was that the paper had leaked out. 6. The principal question is whether the Board was competent to cancel the paper and to require the petitioners to re-appear in the paper. Learned counsel for the respondents referred to rule 23, as contained in Chapter V of the Calendar of the Board. That rule reads: "Notwithstanding anything to the contrary in these Rules, the Board shall have the power to: (i) hold an additional Examination in the same year for special reasons, (ii) cancel the entire examination or the examination held at a particular centre if it is satisfied that the examination has not been held under proper conditions. Provided that there shall be no reexamination in case of walk out at any centre". 7. Learned counsel for the petitioners argued that this rule does not give power to the Board to cancel one paper and to hold additional examination for | the same. In any case, the words "proper conditions" in rule 23 do not cover a case like this. I am unable to agree. The rule empowers the Board to hold an additional examination for special reasons. This necessarily implies the cancellation of a paper, for unless a paper is cancelled, there can be no additional examination in it The words "special reasons" are very wide words and I cannot conceive that the leakage of a paper is not a special reason. There is then power in the Board to cancel the entire examination. Indeed if there is power to cancel the entire examination, there is also power to cancel one of the papers, for the greater includes the lesser. I must also discountenance the contention that the expression "proper conditions" cannot include a case, in which there has been leakage of the paper. One' cannot conceive of a condition more proper for cancellation than where a paper has leaked out before the examination time. When a paper has leaked out, the necessary condition of secrecy of the paper is violated and there can be no question that the examination in which a paper has leaked out is no more than a farce. The truth of the matter being that the paper had leaked out before the examination time and the Board was satisfied that this had happened, the necessary conditions for the application of rule 23 were all satisfied. In such cases, the doctrine of "natural justice", which seems to be mesmerizing people at the moment has, in my judgment, no application at all. To countenance the plea that each individual candidate at the examination was entitled to a hearing would amount to over-judicializing the inquiry which the Board is competent to make under rule 23 in order to be satisfied that the examination has not been held under "proper conditions", which expression should, in my opinion, mean that it has been marred by mal-practices, the leakage of a paper being undoubtedly a mal-practice of the gravest nature, so grave indeed that it makes a mockery of the entire examination system. 8. For these reasons, I would dismiss the petitions but would leave the parties to bear their own costs. 9. Before closing, I should mention that learned counsel for the respondents gave an undertaking that there will be fresh examination of all those candidates who had not sat at the examination, which was held on 15.7.1992 and that the reexamination will be held within about three weeks' time. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 Lahore 424 (FB) PLJ 1992 Lahore 424 (FB) Present: M. mahboob ahmad CJ, rashid aziz khan and malik muhammad qayyum, JJ AZHAR HUSSAIN and others-Petitioners versus GOVERNMENT OF PUNJAB etc.--Respondents Writ Petition No.1881 of 1991, dismissed on 10.6.1992 (approved for reporting on 1.8.1992) Jurisdiction-- —Offence under Sections 302, 307, 148 & 149 PPC-Trial of-Whether Special Court (Suppression of Terrorist Activities) has no jurisdiction to try petitioners-Question of--According to allegations in FIR and report under Section 173 of Cr.P.C, one accused had allegedly used klashinkov during commission of offence-Argument that klashinkov was not recovered, is of no relevance-Jurisdiction of court is to be determined on basis of allegations in FIR-No particulars of malafide have been stated in petition-Held: There is no merit in writ petition-Petition dismissed. [P.427]A,B&C MalikAkhtar Hussain Awan, Advocate for Petitioners. Mr. Maqbool Elahi Malik, Advocate General, with Mr. I/fan Qadir, Addl. A.G. and Mr. MM. Saeed Beg, Advocate for Respondents. Date of hearing: 10.6.1992. judgment Malik Muhammad Qayyum, J.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks a declaration that the cognizance taken by the Special Court constituted under Suppression of Terrorist Activities (Special Court) Act, 1975, at Gujranwala, of the case registered against the petitioners vide FIR No.251/88 dated 1st December, 1988, under Sections 302/307/148/149 of the Pakistan Penal Code, was illegal, malafide and without lawful authority. 2. The facts necessary for the disposal of this petition are that the aforementioned criminal case was registered against 18 persons including 9 petitioners at Police Station, Wandho, district Gujranwala , for murder of Khushi Muhammad, Zaka Ullah and Akhlaq Ahmad. According to the F.I.R. petitioner No.l was armed with Mouzer while petitioner No.2 was carrying a klashinkov which were alleged to have been used during the occurrence. Vide Notification No.8-34/H SPL-CTS/89 (GRW), the Government referred the case for trial to the Special Court for Speedy Trials, constituted under the Special Courts for Speedy Trials Act. 1987. The petitioners thereupon filed Writ Petition No.3903/89 in this Court challenging the notification whereby the trial of the case was entrusted to the Special Court on various grounds inter alia vires of the law, which was admitted to regular hearing. Later on, however, as the Special Courts for Speedy Trials Ordinance/Act lapsed, the Courts constituted thereunder ceased to function. 3. The case against the petitioner was then taken up for hearing by the Additional Sessions Judge, Gujranwala who vide his order dated 29th May, 1990 observed that according to the contents of the FIR as also report under Section 173 of the Cr.P.C. two of the accused namely Ghulam Mustafa and Azhar were armed with Klashinkov and Mouzer respectively and as the offences under Sections 302, 307 P.P.C. are alleged to have been committed in combination with offences under Sections 8 and 9 of the West Pakistan Arms Ordinance 1965 by automatic and semi-automatic weapons, the Special Court (Suppression of Terrorist Activities) constituted under the Suppression of Terrorist Activities (Special Courts) Act 1975 as amended, had exclusive jurisdiction to try the case. The file of the case was consequently sent to the learned District Judge, Gujranwala for onward transmission to the Court concerned. 4. When the cognizance of the case was taken by the Special Court (Suppression of Terrorist Activities) Gujranwala , the petitioners filed an application objecting to the jurisdiction of the Special Court to try the same on the ground that Klashinkov was never used during the occurrence nor was any such weapon recovered at the instance of any of the accused. This objection having been repelled by the Special Court on 12th February, 1991, the petitioners have now filed this constitutional petition. 5. As regards the vires of the amendment made by different Ordinances in the Suppression of Terrorist Activities (Special Courts) Act, 1975 suffice it to say that the Ordinances in question have since been replaced by the Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990, Section 5 of which makes the Act retrospectively applicable with effect from 13th October, 1989. A Full Bench of this Court has, in W.P. No.5196 of 1990 in Liaqat Pervaiz Khan vs. Government of Punjab and others already held that it was open to the Legislature to have given retrospective effect to the Amending Ordinance and no valid objection can be taken in this behalf. The offence, in the present case, was allegedly committed on 1st of December, 1988 and therefore, the Amending Act clearly brings the case of the petitioners within the ambit of Suppression of Terrorist Activities (Special Courts) Act, 1975. 6. Confronted with this situation the learned counsel for the petitioner has raised the following two contentions:- (/) That as no Klashinkov was recovered from the petitioners, the case cannot be tried by the Special Court . (//') That the prosecution was malafide. 1. We do not find any.merit in either of the contentions of the learned counsel. It is provided by Section 4 of the Suppression of Terrorist Activities (Special Court) Act, 1975, that the Special Court constituted under the Act shall have the exclusive jurisdiction to try the offences mentioned in the schedule. The relevant portions of the schedule as amended by the Suppression of Terrorist Activities ( Special Court ) (Amendment) Act, 1990 are paras (a),(ii)(a)&(c) which are reproduced hereunder:- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 1860), namely:- (//) (a) Section 302 or Section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence. (c) any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No.XX of 1965), namely, Sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi-automatic weapon such as klashinkov, a G-fll rifle or any other type of assault rifle." 8. There is no dispute that according to the allegations contained in the FI$! as also the report under Section 173 of the Cr.P.C. one of the accused nad allegedly used klashinkov during the commission of the offence. That being so, the case clearly falls within the mischief of the above reproduced paras of the schedule. The argument of the learned counsel that as klashinkov was not recovered and that none of the petitioners was arrested has hardly any relevance. The jurisdiction of the Court is to be determined on the basis of the allegations contained in FIR and the case set up by the prosecution. The trustfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover mere fact that the klashinkov had not been recovered can hardly justify the conclusion that it was not at all used. 9. As regards the other contention of the learned counsel that the prosecution is malafide we suffice by observing that the particulars of the malafide have not been stated in the petition nor any proof in support thereof is available. " We do not wish to comment any further on this aspect of the matter lest prejudice be caused to the case of the petitioners before the trial Court. For the reasons aforesaid we do not find any merit in this petition. It is dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 427 PLJ 1992 Lahore 427 Present: KHALILUR REHMAN RAMDAY, J Mrs. FARZANA KAMRAN-Petitioner versus DISTRICT MAGISTRATE, GUJRAT, and 2 others-Respondents Writ Petition No. 5575 of 1992, dismissed on 15.7.1992 (approved for reporting on 3.8.1992) (i) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- -—S. 3.-Petitioner's husband-Detention of--Challenge to-Grounds of impugned detention were not denied on factual plane-Petitioner could not demonstrate any malice which could have prompted detention in question-­ Grounds were not vague but were specific and same could validly offer a legal basis for detention in question-Nothing was available on record to substantiate submission that impugned order had been passed under directions of any superior authority-Detenu had not made any representation as provided by law-Held: There is no merit in petition-Petition dismissed. [P.435]R (ii) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- —S. 3.~Petitioner's husband-Detention of~Challenge to~Whether detention order was based on malafldes-Question of-After falling apart from IJ.I. detenu did not join any other political party—He made no public statement or launched or participated in any movement against party in power—It is also admitted that ever since detenu's alleged parting of ways with I.J.I., he had never been involved in any case nor any loss was caused to hiin-Detenu did not oppose Interior Minister or any member of his family in past elections nor there is any proof that said Minister had rivalry with detenu-Burden is entirely on person alleging malafldes, to establish same--Malafide has to be pleaded with particularity-Held: Petitioner has not been able to prove that impugned detention was ordered in bad faith nor to establish that impugned action had been taken maliciously, in colourable exercise of powers or for any collateral purpose not authorised by law. [Pp.431&432]A,B,C,D&E PLD 1974 SC 151 rel (iii) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- -—S. 3.-Petitioner's husband-Detention of-Challenge to--Whether detention order was passed under directions and District Magistrate did not apply his own mind-Question of--Nothing is available on record to support contention that impugned order was passed under directions of any superior authority-­ Held: Submission has no merit. [P.435JP&Q (iv) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- —S. 3.-Petitioner's husband-Detention of-Challenge to-Whether grounds of detention being in nature of criminal charge, could not be made basis of preventive detention-Question of-Laws are available which require designated authorities to act promptly and to intervene to prevent any action which could endanger public safety, peace or tranquility-It would not be legally justified to hold that no action could ever be taken against an individual if information received disclosed a charge of a criminal nature-Held: There is no merit in submission that since impugned grounds were essentially in nature of a criminal charge, no detention as a precautionary measure, could have been directed against detenu. [Pp.433,434&435]L,M,N&O 1990 P.Cr.LJ. 1161 and 1990 P.Cr.L.J. 1529 distinguished, (v) Maintenance of Public Order Ordinance, 1960 (XXXI of I960)-- —-S. 3.--Petitioner's husband-Detention of-Challengc to-Whether grounds of detention were vague-Question of-Detaining authority had received reports that detenu had visited U.K. where he had made a deal of narcotics worth crores of rupees; that detenu and his associates had killed their collaborator and that they were in league with President of Progressive PPP of Khairpur— Said reports had never been questioned or controverted through this petition nor same were refuted or denied even during arguments—It was not possible to disclose names of alleged collaborators of detenu because action against them was also in offing and disclosure of their names could frustrate entire exercise-Held: Grounds of detention were not vague and same having stood un-denied'and un-rebutted on record, are un-exceptionable. [Pp.432&433]F,G,H,J&K Mr. Hamid Klian and Mr. Navid Rasool Mirza, Advocates for Petitioner. Mr. Zaeemul Farooq Malik, A.A.G. for Respondent. Date of hearing: 15.7.1992. judgment This petition, under Article 199 of the Constitution, calls in question the detention of the petitioner's husband, namely, Raja Kamran Afzal who stands confined in custody for a period of ninety days through an order dated 16.6.1992 passed by the District Magistrate of Gujrat in exercise of powers conferred on him U/S 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, read with Section 26 of the said Ordinance. 2. The said impugned order was accompanied by a memorandum giving the grounds which had weighed with the said Detaining Authority in passing the impugned order. The said grounds are re-produced below for ready reference:- "(i) That according to report made by the secret Government Agencies you alongwith others have recently visited U.K. and made a deal of narcotics worth crore of rupees. Reportedly you and your associates killed one of your collaborator namely Dr. Nazar Khattak of Pashawar. You and your associates are also in league with Pir Mukhtar Ahmad Jan Khan Surhandi (President Progressive Peoples Party Khairpur Sindh) who visited Punjab alongwith some other notorious dacoits of Sindh. (ii) You alongwilh others are in the habit of drug-trafficking/arms smuggling operating within/outside Pakistan and you are planning to visit U.K. in near-future to make a'deal of narcotics. (iii) Your activities are prejudicial and detrimental to public peace and maintenance of Public Order. You are at liberty to make representation to Government against this order." 3. Mr. Hamid Khan, the learned counsel for the petitioner, submitted that the detenu was a respectable person who was elected as a member of the Punjab Assembly from Gujrat District in the General Elections held in the year 1985 and that even in the General Elections of 1988 and Iv90, in which he had participated for a provincial seat of the Assembly, as an independent candidate, he had lost only by a narrow margin. He added that even the father of the said detenu was a known political figure of the area and had been elected as a M.PA. in the General Elections held in the year 1970. 4. It was argued that:- (a) the impugned order was rooted in malice and thus being a colourable exercise of power, could not be sustained in law; (b) the grounds offered by the Detaining Authority justifying the detention in question were vague and were short of necessary details and were thus, not sufficient to enable the detenu to make an effective representation against the same; (c) the grounds in question which had influenced the Detaining Authority into directing the impugned detention were in the nature of a criminal charge which could have warranted only punitive proceedings against the detenu and preventive detention could not be based thereon; (d) the impugned order was an order under dictation which had been passed without independent application of mind by the Detaining Authority and was thus, bad in law; (e) the detention of the detenu had been directed at a Sub-Jail at Chung in District Lahore, which was outside the Detaining Authority's jurisdiction and the said detention was, therefore, invalid being a transgression of the provisions of Section 26 of the said Ordinance and finally, that, (f) a representation to the Government in the circumstances, was not an efficacious remedy and would only be an exercise in futility. 5. To support the contention that the grounds of detention, if vague and short of necessary details, would invalidate the detention order, reliance was placed on Muhammad Ajmal KJian vs. The District Magistrate (P.L.D. 1977 Lahore 20), Ahmad Fahim Mughal vs. Muhammad Saleem Klian, District Magistrate (P.LJ. 1991 Karachi 129 (DB) Kazi Abdul Quddm vs. District Magistrate (1990 P.Cr.L.J. 2016), Abdul Latif vs. District Magistrate (1989 P.Cr.LJ. 414) and Kama! Haider vs. District Magistrate (1988 P.Cr.L.J. 486). 6. Muhammad Tufail vs. S.H.O., P.S. Bhaipheru (1990 P.Cr.LJ. 1161) and Jala! vs. District Magistrate (1990 P.Cr.LJ. 1529) were cited as authorities to canvass the proposition that if prosecution on a criminal charge was possible on the grounds offered for the detention, then the said preventive detention could not be permitted to continue and Shahbaz Afghan vs. District Magistrate (1990 P.Cr.LJ. 274) and Shabbir Hussain vs. District Magistrate (1990 P.Cr.LJ. 1534) were pressed into service to contend that an order passed without application of independent mind, was a nullity in the eyes of law and deserved to be set-aside. 7. To claim that the impugned order was based on mala fides, it had been asserted through the present petition that the detenu had been elected as M.PA. from District Gujrat in the year 1985 and had later joined I.J.I. i.e. the party presently in power but that the detenu had off-late fallen apart from the ruling party and it was to teach the detenu a lesson for changing political loyalties and also to restrain him from carrying on his political activities, that the order in question had been passed. 8. In reply to a question put by me, the learned counsel stated that after falling apart from the I J.I., the detenu had not joined any other political party. It was further admitted that the detenu had never ever made any public statement in opposition to the party presently ruling in the Province or the Federation, nor had A he ever launched or even participated in any campaign or movement against the party in power. It was also admitted that ever-since the detenu's alleged parting of ways with the I.J.I., he had never been involved in any case of whatever nature nor was any loss ever caused to him of whatever kind. 9. It was contended that the present Interior Minister belonged to Gujrat and the impugned detention could well have been manoeuvered by him. It was not denied that the detenu had not opposed the said Minister or any member of his p family in the past elections nor was there any proof, documentary or otherwise, available with the detenu to support the submission that the said Interior Minister had any rivalry with the detenu. 10. Needless to mention that the ground ofmala-fides urged by the petitioner and noticed above, is only a bare, bald and vague allegation of malice which neither mentions the time when the detenu parted his ways with the ruling party nor does it mention any person who is opposed to the detenu. 11. Needless also to say that the burden is entirely upon the person alleging mala fides, to establish the same, as an official act to which a presumption of regularity is attached, cannot be challenged and consequently, invalidated merelylD upon vague allegations of malice. Mala fides has to be pleaded with particularity and must be based on specific and definite allegations. Reliance is placed on 77ie Federation of Pakistan vs. Saeed Ahmad KJtan (P.L.D. 1974 S.C. 151). 12. Consequently, it is held that the petitioner had not been able to prove that the impugned detention had been ordered in bad faith or for any personal motive either to hurt the detenu or to benefit some-one-else. Nor has the detenu been able to establish that the impugned action had been taken maliciously, in colourable exercise of powers or for any collateral purpose, not authorised by law. 13. The Detaining Authority had received reports from the Secret Government Agencies that the detenu had visited U.K. in the recent past where he had made a deal of narcotics worth crores of rupees; that the detenu and his associates had killed one of their collaborators, namely, Dr. Nazar Khatak of Peshawar; that the detenu and his associates were in league with one Pir Mukhtar Ahmad Jan Khan Surhandi, the President of Progressive Peoples Party of Khairpur, Sindh who had visited Punjab alongwith others who were notorious dacoits of Sindh, and it was on the basis of this information that the District Magistrate had felt satisfied about the detenu's possible involvement in drugtrafficking and arms-smuggling within and outside Pakistan. 14. It may be mentioned here that the above reports which had reached the Detaining Authorities had never been questioned or controverted through the present petition before me nor had the same been refuted or denied even during the course of arguments. 15. It may also be pointed out that on my query, whether the learned counsel would like me to summon the record containing the above-mentioned secret reports and information, the learned counsel's answer was in the negative on the pretext however, that the same would delay the disposal of this petition. 16. Mr. Zaeem-ul-Farooq Malik, the learned Assistant Advocate General, was, however, in possession of the relevant record and even offered to produce the same, after claiming privilege regarding its public disclosure, but in view of the fact that the grounds mentioned by the Detaining Authority had not been controverted and denied, I did not consider it necessary to examine the said record. 17. A bare perusal of the grounds of detention would demonstrate that the same were not vague. They were specific to the extent that they could possibly be. A mention had been made even of the names of the persons, their particulars and the incidents which had led the District Magistrate to reach the conclusion that he did. 18. The learned counsel, however, made, grievance of the fact that the said grounds did not contain the .names of the alleged 'collaborators' of the detenu. The learned Assistant Advocate General promptly replied that it was not possible to disclose the said names because action, even against the said associates of the said detenu, was in the offing and the disclosure of the said names at this stage! could have frustrated the entire exercise which was in hand. 19. The above examination of the grounds of detention and the detenu's re-1 action towards the same leads me to conclude that the same were not vague andjjjc further that they stood un-denied and un-rebutted on record. They were,)" therefore, un-exceptionable. 20. The detention in question had also been challenged on the ground that the District Magistrate of Gujrat who could exercise the jurisdiction U/S 3 of the M.P.O. only within his jurisdiction as ordained by the provisions of Section 26 of the said Ordinance, could not have directed confinement of the detenu at a place beyond his jurisdiction i.e., at a Sub-Jail in Chungh in Lahore District. 21. The hearing of this petition had commenced on 8.7.1992 but could not be completed on the said date on account of paucity of time and had to be adjourned for today because of the intervening holidays of Ashurra and because of my absence from the Principal Seat. 22. When the hearing of this case was resumed today, the learned Assistant Advocate General, placed on record a corrigendum issued by the Detaining Authority through which, a Sub-Jail at Gujrat had been substituted for the Sub- Jail at Chungh, as the place of the detenu's confinement. 23. The change thus brought about by the said corrigendum which was issued on 13.7.1992, rendered the above-noticed submission of the learned counsel, as in­ consequential. 24. As of today, the detention of the detenu being at a place within the jurisdiction of the District Magistrate at Gujrat, it was no longer necessary to determine the question whether the said District Magistrate could or could not order the confinement of a detenu beyond his jurisdiction. The learned counsel for the petitioner could not cite any law or authority to canvass that such an improvement or rectification made by the Detaining Authority, could not be taken into consideration and that adjudication had to be made as if the said change did not exist. 25. Consequently, I find that the present detention of the detenu did not offend against the provisions of Section 26 of the M.P.O. 26. It was next argued by Mr. Hamid Khan, Advocate, that the grounds of detention were in the nature of a criminal charge and the same, therefore, could not be made the basis of preventive detention. 27. I am afraid, I have not been able to persuade myself to accept this proposition being universally true. 28. The West Pakistan Maintenance of Public Order Ordinance, 1960, is not the first statute of its kind which envisages preventive measures including detention of a person about whom the designated authority was satisfied that he was likely to indulge in activities prejudicial to public safety or the maintenance of public order. 29. Reference may be made to the provisions contained in Chapter VIII of the Code of Criminal Procedure, 1898, 30. A bare perusal of Sections 107, 108, 109 and 110 of the Cr.P.C. would demonstrate that the preventive action could be taken against any person who was likely to indulge hi activities which could, inter-alia, breach peace or disturb public tranquility. The said provisions would also reveal that the previous conduct of any such person could not only be a relative consideration but was also an important guideline in determining the future course of activities and actions of any such person. Reference may especially be made to sub-section (4) of Section 117 of the said Code, which permits determination of such a future conduct of any such person by evidence of his general repute or otherwise which was a departure made from the provisions of Article 68 of Qanoon-e-Shahadat Order, 1984. It is true that these provisions provide magisterial inquiry prior to the passing of any final order in the said regard but it is also true that the same provisions do envisage preventive action, including detention before and during the course of such an inquiry, if the circumstances so warranted. Reference may be made to Sections 107(4), 114 and 117(3) of the CrJP.C.. 31. It may be mentioned here that the primary object of the State was to ensure that crimes were not committed and punitive action was envisaged only where the State had failed in its obligation to prevent the commission of any such crime.The laws are thus available which require the designated authorities to act promptly and to intervene to prevent any action which could endanger public . safety, peace or tranquility. To say that, in all cases, where information was " available about a future criminal conduct of a person, only penal action should be taken, would, in my opinion, render al! the preventive measures, envisaged by law, a mere redundancy. Needless to say that punitive action requires legal evidence and at times, the information, howsoever sound, may not qualify as such evidence and at other times, there may not be sufficient time to resort to punitive provisions. 32. In the circumstances, it would not be legally justified to hold that no action could ever be taken against an individual if the information received disclosed a charge of a criminal nature. It may also be mentioned here that as against a magisterial inquiry, as provided by the provisions in question of the Criminal Procedure Code, the Constitution and the M.P.O. prescribed an examination of the information in question or the grounds warranting detention, by a Board comprising, inter-alia, of a Judge of the High Court. 33. Consequently, I find no merit in the submission that since the impugned grounds were essentially in the nature of a criminal charge, no detention as a| precautionary measure, could have been directed against the detenu. 34. Muhammad Tufail's Case (1990 P.Cr.LJ. 1161) and Mai's case (1990 P.Cr.LJ. 1529), relied upon to support the above contention proceed on distinguishable facts as the detention had been based on certain criminal cases in which the detenu had either been acquitted or had suffered the punishment which is not so in the case in hand. 35. It was lastly contended that the impugned order had been passed by the District Magistrate under directions and without application of his own independent mind. The learned counsel, however, could not substantiate this submission from the record which demonstrated only that the reports of the Agencies in question which had reached the Federal Government, had been passed on to the Government of Punjab, which in turn sent the same to the respondent-District Magistrate. 36. Nothing is available on record to support the contention that the impugned order of detention had been passed under the directions of any superior [ authority. This submission, therefore, has no merit. 37. The learned Assistant Advocate General pressed Muhammad Siddique KJian's Case(P.L.D. 1992 Lahore 140) into service and canvassed that this petition was incompetent as no representation had been made against the impugned detention. 38. The learned counsel could not offer any satisfactory explanation which could permit a deviation from the said provision of law. 39. Having thus examined all the aspects of this matter and in view of the fact that the grounds in question of the impugned detention had not been denied on factual plane; that the petitioner could not demonstrate any malice which could have prompted the detention in question; that the said detention could also not Tie shown to have been based on any political or any other extraneous considerations; that the grounds in question were not vague and were specific; that the same could validly offer a legal basis for detention in question; that nothing was available on record to substantiate the submission that the impugned order had been passed under the directions of any superior authority and finally in view of the fact that the alleged detenu had not made any representation as provided by law, I find no merit in this petition which is accordingly dismissed. 40. There shall, however, be no orders as to costs. (MBC) (Approved for reporting) Petition dismissed.

P P.J 1992 Lahore 436 Present: MUHAMMAD ILYAS, ACJ ALI MUHAMMAD-Petitioner versus Mst. ZAHIDA PARVEEN-Respondent Civil Revision No. 802/D of 1992, dismissed on 15.6.1992 (approved for reporting on 15.8.1992) Concurrent Findings- -—Dowry-Recovery or payment of price of--Suit for--Suit decreed-Challenge to-Two courts below had examined evidence of both sides before recording findings in favour of respondent-Findings are supported by evidence- Questions whether respondent was given dowry and same is being retained by petitioner, are questions of fact, on which there are concurrent findings of two courts below-Held: No misreading or non-reading of evidence or any other defect justifying interference with findings of courts below, having been pointed out, it is not a fit case for exercise of revisional jurisdiction. [E437]A&B PLJ 1986 SC 149, PLD 1983 SC 53, PLJ 1986 Karachi 80,1985 CLC 217,1985 CLC 1190 and 1984 CLC 3298 rel. Mr. Abdul Waheed fQian, Advocate for Petitioner. Date of hearing: 15.6.1992. This civil revision has arisen out of a suit brought by the respondent, Mst. Zahida Parveen, against the petitioner, Ali Muhammad, for recovery of the articles of her dowry or for the payment of Rs. 24,000/- as their price. It was alleged by the respondent that she was married to Muhammad Aslam but, unfortunately, he breathed his last after about five years of then- marriage. She maintained that articles of her dowry, worth Rs. 24.000/-, were with the petitioner, who is father of her husband. She complained that she repeatedly asked the petitioner to return the articles of dowry or pay their price but he had refused to do so. Hence the suit. 2. The suit was resisted by the petitioner but it was ultimately decreed by a Civil Judge. 3. The petitioner went in appeal before an Additional District Judge but that was dismissed. He has, therefore, come up in revision to this Court. 4. It was contended by learned counsel for the petitioner that the two Courts below had not discussed the evidence on record before passing the impugned judgments and decrees and, therefore, the same were not sustainable. 5. I have gone through the judgments passed by the two Courts below and find that they had examined the evidence of both sides before recerding,finding,m favour of the respondent. It was also pointed out by the learned Additional District Judge that averments made by the petitioner were self-contradictory and, therefore, deserved no credence. It was explained by him that on the one hand it was averred by the petitioner that no dowry was given to the respondent at the time of her marriage but on the other hand it was pleaded by him drat he had not withheld or mis-appropriated any articles of her dowry. 6. Findings recorded by the learned lower Courts are supported by evidence. The questions whether the respondent was given dowry ae.4 Ute .samtj js being'retained by the petitioner are the questions of fact on which there are concurrent findings of the two Courts below. No mis-reading or non-reading of evidence or any other defect justifying interference with their findings was pointed out by the learned counsel. It is not disputed that the two Courts below had jurisdiction to'pass the judgments and decrees assailed'herein. A&o, fhe'y'are not perverse, fanciful, capricious or arbitrary and are based on evidence and not on conjectures and surmises. It is, therefore, not a fit case for exercise of revisional jurisdiction. Haji Muhammad Zaman vs. Zafar All Khan and others (P.LJ. 1986 Supreme Court 149), Kanwal Nain and 3 others vs. Fateh Khan and others (P.L.D. 1983 Supreme Court 53), Motio, and 3 others vs. Ghulam Mehdi and 6 othefs(P.L.J. 1986 Karachi 80), Mst. Kaneez Fatima and another vs. Ghulam Hussain and 10 others [(1985 C.L.C. 217) (Azad J & K)], Ghulam Muhammad vs. Abdul Sattar and others [(1985 C.L.C. 1190 ( Lahore )], and Iftikhar Hussain and another vs. Qamar-uz-Zaman [(1984 C.L.C. 3298) ( Lahore )] are some of the authorities in point. 7. Resultantly, this civil revision fails. It is, therefore, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 437 PLJ 1992 Lahore 437 Present: GUL ZARJN KlANI, J C/i. MUHAMMAD NAWAZ-Petitioner versus GHULAM RASOOL and another-Respondents Civil Revision No. 1204 of 1992, decided on 29.7.1992 (approved for reporting on 16.8.1992) Practice and Procedure-- —Pre-emption decree-Execution of~Procedure for-Within a couple of days, pre-jemption decree was put in execution and within two days, it was finalized and everything was over-Generally proverbial delays occur in execution of decrees which have become hall-mark of our system-Despite full throated cries all around, things do not seem to improve-Surprisingly, in this case, execution of pre-emption decree took only two days which looks miraculous-­ Held: It is desired that we could attain similar speed in alike matters to promote and inspire confidence of persons approaching courts for decision of their disputes-Held further: However, alacrity must be consistent with a desire to promote and maintain confidence in institution of courts. [P.439JA&B PLD 1959 (WP) Lahore 146 re/. Ch. Muhammad Abdullah, Advocate for Petitioner. Date of hearing: 29.7.1992. judgment Petitioner pre-empted the sale of land in favour of the respondents. On 17.5.1992, the trial Court decreed pre-emption, in his favour subject to his paying Rs. 1,62015/- as purchase-price for the land to the respondents, within thirty days from the date of the decree. In default of payment by due date, pre-emption suit was to stand dismissed. On 30.5.1992, respondents preferred an appeal against the judgment and decree of the trial Court to learned District Judge, Sialkot . It was marked to a learned Additional District Judge of the District. It came up before him on the same day. He admitted the appeal to hearing, and, meanwhile suspended the operation of the impugned judgment and decree subject to deposit of an adequate security for the mesne-profits of the land-in-dispute to the satisfaction of the learned trial Court. Learned counsel says that security was furnished on 1.6.1992, and, the'order became operative then. Petitioner soon complied with the terms of the decree and deposited the purchase-price in Court. On 28.5.1992, he executed his decree for delivery of possession of the land to him. On 30.5.1992, it was reported to the Execution Court that possession was delivered to the petitioner. On 6.6.1992, respondents applied to the Execution Court for re-delivery of the possession of the land-indispute to them. It was stated that the proceedings taken for delivery of possession were "Farzi" and in face of a stay order from the appeal Court could not take place. Petitioner gave a reply to the application. As yet, Execution Court has not passed any order, in restitution proceedings, which stand adjourned to a later date. Meanwhile, petitioner submitted an application to the lower appellate Court for vacating the stay order passed on 30.5.1992, and, protecting his possession of the land taken in execution of the decree from disturbance in restitution proceedings by the Execution Court. Respondents contested the prayer. By the impugned order dated 21.7.1992, lower Court referred the petitioner to Execution Court and himself did not interfere. It is this order that is being assailed in revision by the petitioner. On behalf of the petitioner, it is submitted that the lower Court ought to have either vacated the stay order or protected the possession of the petitioner from disturbance in the proceedings commenced at the instance of the respondents before the trial Court. Upon hearing the learned counsel, in my view, the learned Judge has taken the right and the fair course. It allowed an opportunity to the Execution Court to decide on the merits of the execution proceedings taken by it for delivery of possession, if any, to the decree-holder and bring on record as to how so soon the execution of the decree was complete and finalized, which in ordinary circumstances take long periods in the subordinate Courts. Within couple of days, pre-emption decree was put in execution and within two days it was finalized and everything was over. My own experience at the Bar extending a little over quarter of a century tells me otherwise. Real trouble of a litigant is set in motion with the execution of the decree obtained by him after a long ordeal. Neither the Court machinery nor the Revenue Agency through which the execution of decrees pertaining to agricultural land are processed, move with required despatch and expedition. Consequently, proverbial delays occur which have become hall-mark of our system. Despite full throated cries all around, things do not seem to improve. Reasons are not far to seek. Surprisingly, in the present case, execution of pre-emption decree took only two days. It looked miraculous. Probably, good heavens were behind it. I wish, we could attain similar speed in alike matters to promote and inspire confidence of the persons approaching us for decision of their disputes. However, alacrity must be consistent with a desire to promote and maintain confidence in the Institution of Courts. Late Waheeduddin Ahmad-J, in Mrs. Keays Byrne Vs. M. Obaidullah Kiian-PLD 1959 (W.P.) " Lahore 146, on aspect of hurry by the Civil Courts observed:- "Before concluding 1 must express that the way in which the^ execution proceedings were proceeded before the Subordinate Court in this case cannot inspire confidence of the litigant public. The Subordinate Courts in such cases ought to give reasonable time to judgment-debtors to vacate premises. If they will proceed in haste, it is bound to cause inconvenience and invite unnecessary criticism. The well known maxim, that justice should not only be done but appear to have been done, must always be the guiding principle for the Civil Courts. While practising at the Bar I have found in some of the judicial officers a tendency to proceed hurriedly with the execution of the decrees. This tendency some time results in miscarriage of justice. This should be discontinued and before issuing eviction orders they must always apply their mind whether it is a fit case where immediate eviction order should be issued. I hope the Subordinate Court concerned in future will be more careful". In quoting an extract from the judgment of my illustrious brother, I may not be taken to have expressed approval of undue delays. Golden means must govern the action of the Courts, so that none goes back genuinely disappointed from them. In the above observations, I see a hope for the learned trial Judge to proceed with and decide the dispute before him judiciously.With the above observations, civil revision is being disposed of. Copy of the final order passed on the petition for restitution of possession shall be forwarded to this Court for information. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 Lahore 440 PLJ 1992 Lahore 440 Present: MUHAMMAD ILYAS, J Mst. RAMZAN BIBI--Petitioner Versus MUHAMMAD BOOTA-Respondent Civil Revision No. 931-D of 1992, dismissed on 8.6.1992 (approved for reporting on 17.8.1992) Limitation Act, 1908 (IX of 1908)-- —Ss. 5 & U--Ex-parte decree-Setting aside of~Application for-Dismissal of— Challenge to-Whether delay in filing application could be condoned— Question of--If petitioner had no knowledge of proclamation or of passing of decree earlier, she did acquire knowledge when she made first application for setting aside ex-parte decree-She had only 30 days to make application and second application was filed after about 3 months of filing of first application-­ Withdrawal of first application with permission of court, did not allow her to seek condonation of delay-Held: There is no reason for condoning delay under Sections 5 and 14 of Limitation Act—Held further: Trial court was justified in dismissing petitioner's subsequent application for setting aside exparte decree. [P.441]A AIR 1934 Allahabad 688, AIR 1939 Calcutta 625, AIR 1938 Bombay 281 and PLJ 1984 Lahore 38 rel. Mr, Shahid Mahmood Qatiri, Advocate for Petitioner. Date of hearing: 8.6.1992. judgment This civil revision has arisen out of a suit brought by the respondent, Muhammad Boota, against the petitioner, Mst. Ramzan Bibi, for recovery of Rs. 19,500/-. As the petitioner could not be served in the ordinary manner, inspite of repeated efforts in this behalf, service was effected on her through proclamation. Even then she did not enter appearance and was proceeded against exparte. The

Civil Judge, who was seized of the suit, recorded evidence of the respondent and passed ex parts decree against her on 31st July, 1988. It was on 17th September, 1988 that the petitioner made an application for setting aside the ex parte decree. This application was withdrawn by her on 3rd December, 1989 with permission to file a fresh application. Then, on 9th December, 1989, she made another application for setting aside the ex pane decree but it was dismissed by the learned Civil Judge on the ground of limitation. Order of the learned Civil Judge in this regard was challenged by the petitioner by taking appeal before an Additional District Judge but in vain. Hence this civil revision. 2. It was contended by learned counsel for the petitioner that as the petitioner did not come to know of the passing of the exparte decree as soon as it was granted by the learned Civil Judge her application could not be dismissed on the ground of limitation. It was also urged by him that the petitioner did not come to know of the proclamation by which she was served. Assuming, without conceding, that whatever has been pleaded by the learned counsel is correct it is of little avail to the petitioner. If she had no knowledge of the proclamation or of the passing of the decree earlier, she did acquire knowledge in this behalf on 17 th September, 1988 when she made the first application for setting aside the exparte decree. Plea of lack of knowledge is, therefore, of no help to her qua the second application which was clearly time barred even if she came to know of the passing of the ex pane decree on 17th September, 1988. She had only 30 days to make the application and the second application was filed by her after about three months of filing of the first one. Withdrawal of her earlier application with the permission of the Court did not allow her to seek condonation of delay. This is that has been clearly held in several precedent cases including Sadayatan Pande vs. (Finn) Ram Chandra Gopal (A.I.R. 1934 Allahabad 688), Mohanlal Balieti and others vs. Moulvi Tabizuddin Ahmad (A.I.R. 1939 Calcutta 625), Achut Dadaji Joshi and another vs. Parashram Vasudev Mogre (A IR. 1938 Bombay 281) and Saddar Din vs. Allah Raklia (P.LJ. 1984 Lahore 38). If there was any defect in her earlier application for which it was withdrawn by her, that is her fault and she cannot take the benefit of her own wrong. There is thus no good reason for condoning delay under Sections 5 and 14 of the Limitation Act, 1908. In the circumstances, the learned Civil Judge was justified in dismissing the petitioner's subsequent application for setting aside the exparte decree on the ground of limitation. 3. There is no merit in this civil revision. It is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 441 PLJ 1992 Lahore 441 Present: MALIK MUHAMMAD QAYYUM, J Syed MUHAMMAD ASADUR REHMAN-Petitioner versus UNIVERSITY OF THE PUNJAB-Respondent Writ Petition No. 5035 of 1992, dismissed on 21.7.1992 Educational Institutions- —-F,E.L.--Examination of-Whether a candidate appearing in examination in parts, is entitled to grace marks under Regulation No. 4 relating to L.L.B. Examination-Question of—According to Regulation No. 4, University is under an obligation to grant 5 grace marks or less, but this concession cannot be made applicable to cases covered by third proviso to Regulation under which, a candidate who has taken examination La parts, is disentitled to award of any grace marks-Held: Petitioner having appeared in papers IV, V and VI and not in whole examination, his case is squarely covered by proviso under which he is not entitled to any grace marks-Petition dismissed. [Pp.443&444]A&B Miss Angela Marck, Advocate for Petitioner. Ch. Muhammad Farooq, Legal Advisor, University of Punjab . Date of hearing: 14.7,1992. judgment The petitioner appeared in the 1st Annual F.E.L. Examination of 1990 held in November, 1990 and failed in papers IV, V and VI. Subsequently, he took the Ilnd Annual F.E.L. Examination of 1990 which was held in July, 1991. This time he failed in Papers IV and VI. He represented to the University of Punjab through a written application that he was entitled to four grace marks in paper VI under Regulation No. 4 relating to LL.B. Examination appearing at page 193 of the Calendar (Vol.II), 1968-69, as amended by Notification No. 517/G.M. dated 12th 'March, 1975. This representation remained unanswered which obliged the petitioner to file this petition praying for a direction to the respondents to award him four grace marks in Paper VI and to declare the revised result accordingly. 2. In the written statement filed by the respondents, they have disputed the entitlement of the petitioner to the grace marks on the basis that this concession is available in case of a candidate who had appeared in the examination as a whole and cannot be availed of by those who appeared in a part of the examination. 3. Reliance has been placed by the respondents upon 3rd proviso to Regulation No. 4. 4. Before proceeding to examine the respective contentions of the parties Regulation No. 4. relating to LL.B. Examination which appears at page 93 of the Calendar of the University (Volume II) for the year 1968-69 as amended by notification dated 12th March, 1975, may be reproduced. It reads thus: "4. Every candidate shall, in order to be deemed to have passed this examination (whether taken in May or in September), be required to obtain forty per cent of the maximum number of marks allotted to each paper, and forty five per cent in the aggregate. Provided that a candidate shall be deemed to have passed if he (a) fails in any individual paper by a margin of 5 marks, (b) fails in the aggregate by a margin of 5 marks, (c) fails in more than one paper by a margin which can be made up by distribution of five marks over the papers/aggregate in which he fails. Provided further that a higher class shall be awarded to a candidate who misses it by a margin of 5 marks or less. Provided further that the grace marks shall not be awarded to any candidate for the purpose of enabling him to get exemption in any paper and to those who appear in the examination in parts." 5. It is not disputed by the learned counsel for the respondents that according to the said regulation a candidate is entitled to 4 grace marks if he was failing in any individual paper by margin of 5 marks or in aggregate by 5 marks or even in a case where he fails in more than one paper by the margin which can be made up by distribution of 5 marks over the papers. He has, however, contended that the case of the petitioner is covered by 3rd proviso to the Regulation, according to which the grace marks are not provided to a candidate who takes the examination in parts. 6. Learned counsel for the petitioner has on the other hand, maintained that the proviso has no applicability to the petitioner as he cannot be said to have taken the examination in parts and that the proviso in question has reference to those who are permitted by the University to take the examination hi parts under Regulation No. 7 of Chapter VII of the Calendar of the University of the Punjab Volume I (1990). 7. After a careful consideration of the regulation in question, I regret that I am unable to agree with the learned counsel for the petitioner. Although it is correct that Regulation No. 4 of the LL.B., University is under an obligation to grant 5 grace marks or less but this concession cannot be made applicable to the cases which are covered by third proviso to Regulation under which a candidate who has taken the examination in parts is disentitled to award of any grace marks. The expression "those who appear in examination in parts" applies to all cases where a candidate does not take the examination as a whole but appears in a part thereof. Learned counsel for the respondents argued that as proviso was in the nature of exception it has been strictly construed. Even if that be so, the restricted interpretation put upon the proviso by the learned counsel that it applies only to cases covered by Regulation No. 7 of Chapter VII of the Calendar of the University of the Punjab for the year 1990-91 cannot be accepted. The proviso in question makes no reference to Regulation No. 7 and on its plain language, it would apply to all cases in which a candidate has appeared in a part of the examination. 8. There is no dispute that the petitioner took 1st Annual PEL Examination held in November, 1990, as a whole and had failed in papers IV, V and VI. In thefiJ subsequent examination which is now in issue, i.e. Ilnd Annual Examination held in July 1991, he had only appeared in papers IV, V and VI and not in the whole examination. Consequently, his case is squarely covered by the proviso under which the petitioner is not entitled to any grace marks. In view of what has been stated above, this petition is without any fore It is accordingly dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 444 PLJ 1992 Lahore 444 Present: MUHAMMAD ILYAS, J ABDUL GHAFOOR-Petitioner versus : JUDGE, FAMILY COURT, SARGODHA, and another-Respondents Writ Petition No. 4814 of 1992, dismissed on 30.5.1992 (approved for reporting on 1.8.1992) | Khula- —Marriage-Dissolution of--Kliula~GTound of~Admitted fact that petitioner contracted two marriages, after entering into matrimonial alliance with respondent, clearly indicates that he is no longer happy with respondent, perhaps for reason that she is deaf and dumb lady-Divorce to two ladies by him, shows that he has little regard for a matrimonial tie-It seems that he has been dealing with wives as if they were chattel which could be parted at will—It would be unfair if not cruel, to oblige respondent to remain wedded to petitioner-Held: It is no longer possible for parties to live together as husband and wife within limits prescribed by Almighty Allah and respondent's marriage with petitioner deserved to be dissolved on ground olKliula. [Pp.445&446]A&B Mr. Jahangir Asliraf Vaince, Advocate for Petitioner. Date of hearing: 30.5.1992. judgment Facts giving rise to this constitutional petition are that respondent No. 2, Mst. Razia Khanum, who is a deaf and dumb lady, was married to the petitioner, Abdul Ghafoor. A son and a daughter were born out of their wedlock but the daughter has since expired. The son is, however, alive. After the birth of the said children, differences arose between the spouses and respondent No. 2, Mst. Razia Khanum hereinafter referred to as the respondent, left her conjugal domicile. She then filed a suit, against the petitioner, for dissolution of marriage. The suit was decreed by a Family Court on the ground of Khula. Petitioner went in appeal before an Additional District Judge but in vain. Hence this writ petition. 2. It was contended by the learned counsel for the petitioner that there was no good ground for dissolving the petitioner's marriage on the ground of KJiula and, therefore, the orders of two Courts below called for interference by this Court. 3. The respondent examined Mst. Kanizan Bibi (P.W.I), Abdul Ghafoor (P.W.2) and Sana Ullah (P.W.3) in support of her case. She did not herself go in the witness box, probably, for the reason that, as indicated above, she is, admittedly, a deaf and dumb lady and, therefore, she could neither hear nor make any statement. Mst. Kanizan Bibi is her mother. Abdul Ghafoor is a cousin of Mst Kanizan Bibi. Sana Ullah is special attorney of the respondent. 4. It can be clearly gathered from the evidence produced by the respondent that she belonged to a well-to-do family while the petitioner was a poor person. In \new of her afiiuence. therefore, the petitioner opted to contract marriage with her with a view to making use of her property notwithstanding the fact that she was physically handicapped. After producing two children, however, he thought of ha\ina a change and contracted marriage with two other ladies, one after the other, hut divorced them after some time. Admittedly, these marriages were contracted by him without the consent of the respondent. According to the respondent's evidence the petitioner maltreated her and, therefore, she was obliged to leave his house. Evidence of respondent reveals that she has developed deep hatred for the petitioner and it is no longer possible for them to live amicably. 5. The petitioner produced Abdul Hameed (D.W.I) and Talib Hussain fDAV.2) and also himself entered the witness box as D.W. 3, to rebut the evidence of the respondent. It was, however, admitted by the petitioner and his witnesses that the petitioner had married twice after contracting marriage with the respondent, and that the respondent was not a consenting party to the said marriages. The petitioner's witness, Talib Hussain is hardly in a position to make an authentic statement with regard to the mutual dealings of the parties because, according to his own admission, he generally lives in Karachi. D.W.3 is the petitioner himself. So we are left with the evidence of Abdul Hameed (D.W.I) and the petitioner, but I feel that it is not as weighty as the evidence of the respondent. 6. The admitted fact that the petitioner contracted two marriages, after entering into matrimonial alliance with the respondent, clearly indicates that the petitioner is no longer happy with the respondent, perhaps, for the reason that she is a deaf and dumb lady and that now he wants to have a partner who is not handicapped like the respondent. That he has divorced his other two wives also shows that he has little regard for a matrimonial tie. Contracting marriage with a lady and then divorcing her appears to be a fun with him although, according to the teachings of Islam, divorce is to be avoided as far as possible. I feel that the petitioner has been dealing with wives as if they were chattel which could be parted with at will. In this slate of affairs it would be unfair, if not cruel, to oblige the respondent, who is a disabled lady, to remain wedded to the petitioner. The respondent and her mother are fully aware of her (respondent's) physical drawbacks and they would not have decided to part with the petitioner unless it was absolutely unavoidable. The respondent being a handicapped lady, with a son to be looked after by her, is not likely to have an other husband of respectable status for years, if not for ever. Despite all this, she does not want to remain tied up with the petitioner as his wife. This altitude on her part speaks volumes for her immense hatred for the pelilioner allhough she is herself unable to speak. 7. Keeping all the aforementioned factors in view, I am in perfect agreement with the learned Courts below that it is no longer possible for the parties to live together as husband and wife within the limits prescribed by Almighly Allah and, therefore, the respondent's marriage with the petitioner deserved to be dissolved on the ground ofKJiula. 8. Resultantly, this writ pelilion fails. It is, therefore, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1992 Lahore 446 PLJ 1992 Lahore 446 Present: GUL ZARJN KlANI, J ABDUL RAUF and anolher-Petitioncrs versus GHULAM MUHAMMAD-Rcspondcnt Civil Revision No. 1316 of 1992, dismissed on 31.8.1992 ourt-t'ee- —Specific performance of agreement to sell-Suit for-Payment of Court-fee on--Ordcr of-Challenge to-Contention that demand of Court-fee was against Injunctions of Islam and all courts including Federal Shariat Court have jurisdiction to examine whether any law is contrary to Islamic Injunctions- Provisions of Chapter 3-A of Conslilution are over-riding—Under this Chapter Federal Sharial Court was established to examine and decide whether any law was repugnant to Injunctions of Islam-Decision of Federal Shariat Court declaring payment of Court-fee as un-Islamic has been appealed against in Supreme Court and its effect is suspended-Held: Only Federal Shariat Court has jurisdiction lo examine and decide whether any law is repugnant to Injunctions of Islam and this jurisdiction is denied to other courts—Petition dismissed. |Pp.448&449]A&B PLJ 1991 FSC 1 ref. Ch. Abdul Rchman, Advocate for Petitioners. Date of hearing: 31.8.1992. order Civil revision from an order of the trial Court requiring payment of Courtfee from the plaintiffs, in a suit for specific performance, in terms of Section 7(x) of the Court-Fees Act, 1870, was shown to raise a point of nicety and of first impression. However, upon its closer examination, the point is found to be without any merit.Relevant facts giving rise to the revision petition, briefly stated are:- Ghulam Muhammad owned 27 Kanals, 16 Marias of land, situate at Mauza Bangla Kambohan of Tehsil and District Kasur. On 6.3.1992, he agreed for its sale to the plaintiffs for a sum of Rs. 3,75,000/-. He received Rs. 75,000/- in advance by leaving a balance of rupees three lacs payable on the date and at the time of finalization of the sale. As the sale was not completed by the defendant-owner, plaintiffs instituted a cisil suit for it, in the Civil Court at Kasur on 23.8.1992. Valuation of the suit for the purpose of Court-fee and jurisdiction was fixed at Rs. 3.75.0UO/- in para-10 of the plaint; it being the amount of sale-consideration. However, no Court-fee was paid upon the plaint. An exemption from its payability was claimed in the plaint. Alongwith the plaint of the suit, an application for temporary injunction for maintaining status quo regarding the land-in-dispute was also presented to the trial Court. On the very first date of hearing i.e. on 23.8.1992, the trial Court required the plaintiffs to pay deficit Court-fee computed on the saleconsideration, till 30 August, 1992. Instead of meeting the demand for payment of required amount of Court-fee, plaintiffs assailed the direction in revision before this Court on the sole ground that demand of Court-fee on documents filed in Courts of justice was un-Islamic and, therefore, it could not be enforced. Apart from a reference to the bare text of Enforcement of Shari'ah Act 1991 (Act X of 1991), learned counsel did not much assist on the point touching jurisdiction of this Court, over the subject-matter of the dispute. Court-Fees Act, 1870, is a legislative fiscal measure of some antiquity to secure revenue for the State in return for the administration of justice in the Courts. Upon removal of time embargo in the definition of 'law in clause (c) of Article 203-B of the Constitution, Federal Shariat Court, in case of Dr. Mahmood-ur-Rahman Faisal v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others PLJ 1992 Federal Shariat Court 1, examined the charging provisions in the Court-Fees Act, on the touch-stone of Islamic Injunctions and found them repugnant to Shari'ah. The Court found that no Court-fee was chargeable for administering justice in Islamic polity and observed that declaration of law by it shall take effect from 31st December, 1991. An appeal has been filed from the decision of the Federal Shariat Court before the Supreme Court of Pakistan . Therefore, the operation of the aforesaid judgment is suspended till the final decision of the appeal by the Supreme Court. Learned counsel, therefore, did not rely on the declaration of law by the Federal Shariat Court, but pressed Enforcement of Shari'ah Act 1991, to his help and submitted that Shari'ah being the supreme law of the land, every Court, Tribunal and Authority was bound to act in accordance with it and implement its provisions, any existing Statute or law notwithstanding. Learned counsel argued that jurisdiction to examine, whether any law was contrary to Islamic Injunctions and if so, strike it down, vested concurrently in all the Courts including Federal Shariat Court. Learned counsel submitted with some earnestness that this being a point of first impression so far, may be referred to a larger Bench for an authoritative pronouncement on it. I was tempted by his this argufnent. However, I carefully pondered over the issue in the light of provisions of Chapter 3-A of the Constitution of Islamic Republic of Pakistan. Its provisions were over-riding. Under this Chapter, a Constitutional Court with the nomenclature of Federal Shariat Court was established to examine and decide whether any law was repugnant to Islamic Injunctions. Law was defined in clause (c) of Article 203-B of the Constitution. Among others, for a period of ten years from the commencement of the Chapter 3-A any fiscal law or law relating to levy and collection of taxes and fees were excluded from the purview of Federal Shariat Court . Period of ten years has since elapsed. It was on this view that Court-Fees Act fell for scrutiny before the Federal Shariat Court with the result noticed above. Article 203-G was a barring jurisdiction provision in the Constitution itself. It says that save as provided in Article 203-F (which deals with appeal to Supreme Court), no Court or Tribunal, including the Supreme Court and a High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. "Court" is defined in clause (b) of Article 203-B of the Constitution. In my thinking, only Federal Shariat Court was empowered by the Constitution to examine and decide, as to whether any law was or was not contrary to Injunctions of Islam. Jurisdiction to exercise that power in the existing state of law was denied to other Courts. Therefore Jurisdiction conferred upon Federal Shariat Court subject to an appeal from its decision to Supreme Court was exclusive and not concurrent with other Courts. It was thought necessary to avoid chaos of judicial opinion which otherwise would have been inevitable. High Court is a creature of the Constitution. It is bound to protect, preserve and uphold the Constitution. Article 175 of the Constitution ordains that no "Court" shall have any jurisdiction, save as is or may be conferred on it by the Constitution or by or under any law. Constitution is fundamental document and is supreme law. Subordinate legislation could not detract from fullness of its operation and pervasive character. When the Constitution specifically confided jurisdiction in Federal Shariat Court and barred other Courts from exercising and sharing similar jurisdiction with it, in my view, this Court must not embark on the inquiry. Act X of 1991, therefore, does not empower this Court to by-pass the express and clear provisions in Chapter 3-A of the Constitution of Pakistan, more particularly, the barring provisions in Article 203-G. As far the amount of Court-fee payable upon the plaint in the suit for specific performance, there is neither dispute nor doubt. Section 7 clause (x) of Court-Fees Act provides that in a suit for specific performance, Court-fee is payable on the agreed consideration of the sale. The plaintiffs were in clear default of their obligation and the trial Court rightly noticed this omission and correctly called upon them to fulfil their legal duty by a specified time. Civil revision is, therefore, without merits and is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 449 PLJ 1992 Lahore 449 Present: ch. mushtaq ahmad khan, J MUHAMMAD SHARIF-Petitioner versus MUHAMMAD SHAFIQUE and 2 others-Respondents Writ Petition No. 8100 of 1992, dismissed on 1.9.1992. Maintainability-- —Official witnesses not mentioned in list of witnesses—Summoning of-Orders of-Challcnge to-Whether writ petition is maintainable-Question of-Inlerim orders like granting permission to summon witnesses, passed to advance cause of administration of justice, cannot be said to have been passed without lawful authority-Interim orders cannot be challenged in constitutional jurisdiction-­ Held: In case, an order which cannot be challenged in revision, is allowed to be challenged in writ, that would amount to circumventing law and allowing frustration of statute-Held further: Impugned order is quite just and lawful, hence no fault can be found therewith-Petition dismissed. [Pp.450&451]A&B PLJ 1988 SCI 16 rel. Ustad Muhammad Iqbal, Advocate for Petitioner. Date of hearing: 1.9.1992. judgment Through this Constitutional petition, Muhammad Sharif, petitioner, who is defendant in a civil suit pending in the Court of learned Civil Judge, Kasur has challenged the orders dated 20.4.1992 and 9.6.1992 passed by the learned Civil Judge and the learned Additional District Judge, Kasur respectively, whereby the respondent was allowed to summon two witnesses through Court. The respondent wanted to produce two official witnesses, namely Patwari in order to prove that there was no report in the 'Roznamcha Waqiati' with regard to the mutation in question and Head-master of the School to bring the record so that birth entry of the respondent could be proved as case of the respondent is that he was a minor at the time of sanctioning the mutation No. 586 and therefore, neither any transaction took place nor the mutation (was) sanctioned, reflecting the transfer of the rights in the property in question. 2. Learned counsel for the petitioner in support of the petition has contended that issues had been framed about two years prior to the moving of the application for summoning of the witnesses and further that the names of the said witnesses had not been mentioned in the list of witnesses, therefore, under the law, learned Civil Judge has no jurisdiction to allow the summoning of the witnesses, hence the impugned order is illegal and without lawful authority. Learned counsel has further contended that the order passed by the Civil Judge which has been confirmed by the learned Additional District Judge in revision is illegal as no sufficient grounds have been mentioned as to why the respondent who was negligent has been allowed to summon the witnesses through Court. 3. I have perused the record and have considered the arguments raised by the learned counsel. Writ Petition has been filed against an order passed in revision by the learned Additional District Judge. Revisional jurisdiction of the District Court is concurrent with that of the revisional jurisdiction of this Court. Although in certain situations a writ petition is competent against revisional order as held by their lordships of the Supreme Court of Pakistan in a judgment reported as BLJ 1988 SC 116 'Muhammad Zahoor and another vs. Lai Muhammad'wid 2 others, yet exercise of writ jurisdiction against revisional order has to be exercised in very rare and exceptional circumstances only when it could be said that the order passed by the revisional Court has been passed without lawful authority. Interim orders.like granting permission to summon the witnesses which are of a discretionary nature and which have been passed to advance the cause of administration of justice cannot be said to have been passed without a lawful authority. Learned Civil Judge had the jurisdiction to pass the order in exercise (of) his jurisdiction. No arbitrariness .or perversity in passing of the impugned orders has either been alleged or proved. Mainly because name of the witness is not mentioned in the list of the witnesses is not a ground to urge that the learned trial Court shall cease to have jurisdiction to summon the official witness through Court, particularly, when there is no other mode for summoning of the official witness except through the assistance of Court. Even otherwise, fragmentary decisions of interim nature cannot be challengd in writ jurisdiction as held in a judgment reported as PLD 1975 (?) 457 'Ibrahim vs. Muhammad Hussain'. It has been held by their lordships that allowing the challenging of interim order through a writ would delay the decision of cases and this cannot be allowed in exercise of the discretionary jurisdiction of this Court. Even otherwise, the petitioner shall have a right to raise all the objections available under the law against interim order after the main Us is decided. Hence it cannot be said that it is a case where the petitioner does not have an alternate and afficacious remedy to challenge the impugned orders. Amendments under the Court (?) of Civil Procedure whereby revisional jurisdiction has been conferred upon District Courts meant to finalize the issues decided by the District Courts at that level and bar of second revision before the High Court is aimed at discouraging the litigants to prolong the agony of their opponents. In case, an order which cannot be challenged in revision is allowed to be challenged in writ that would amount to circumventing the law and allowing the frustration of the statute. 1 have gone through the record. I find that the order is quite just and lawful and hence no fault can be found therewith. Resultantly, the writ petition is dismissed in la:iine with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 451 PLJ 1992 Lahore 451 Present: KHALID PAUL KHWAJA, J Mst. HAMIDA BEGUM-Petitioner versus Mst. HUSSAIN AKHTAR-Respondent Civil Revision No. 1276 of 1990, accepted on 19.9.1992. (i) Civil Procedure Code, 1908 (V of 1908)-- —O.XVIi R. 3 read with Succession Act, 1925, Section 384--Succession certificate-Grant of-Application for revocation of certificate and to grant same to petitioner—Dismissal of application and appeal—Challenge to— Whether evidence of petitioner, was rightly closed-Question of--Record does not show that case remained being adjourned on request of petitioner—It would not be unjustified to infer that adjournments were on request of parties' counsel—Held: Closure of petitioner's evidence was not justified—Held further: Courts below have committed illegality which calls for interference in exercise of revisional jurisdiction—Petition accepted and case remanded. [Pp.454&455]C&D PLD 1971 SC 434 and 1985 SCMR 585 rel . (ii) Succession Act, 1925 (XXXIV 19 1925)-- —S. 384—Succession certificate—Grant of—Application of petitioner to revoke succession certificate and to grant same to petitioner-Dismissal of application and appeal-Challenge to-Whether order refusing to revoke certificate was not appealable-Question of--It is true that by impugned order, Civil Judge. had, in essence, refused to revoke certificate in favour of respondent and such order was not appealable, but petitioner, in her application, had also prayed for issuance of certificate in her name-Thus it was an order refusing to grant succession certificate and was, therefore, appealable-Held: Appeal against order of Civil Judge was competent before District Judge and present revision is also quite competent. [Pp.453]A&B Mr. Kliudiidad KJian Burki, Advocate for Petitioner. Mr. Abdul Hamid Butt, Advocate for Respondent Date of hearing: 19.9.1992. judgment The relevant facts which gave rise to the present revision petition are that on 31.3.1987 Mst. Hussain Akhtar respondent moved an application in the civil court, Toba Tek Singh for the issuance of a succession certificate in respect of the effects of Ghulam Abbas deceased. She claimed herself to be the widow of the said deceased. The requisite certificate was issued in her favour vide order dated 1.6.1987. On 22.12.1987 Mst. Hamida Begum petitioner who claimed herself to be the widow of Ghulam Abbas deceased applied for the revocation of the certificate issued in favour of the respondent and requested for the issuance of a certificate in her name on the ground that she had no notice of respondent's application. She further alleged that Mst. Hussain Akhtar respondent could not prefer any claim over the effects in dispute because she had been divorced by the deceased prior to his death. The said application was resisted by the respondent and on the pleadings of the parlies, the following issues were framed on 5.4.1989:- (i) Whether the present petition is not maintainable in the present form? OPR. (ii) Whether the Succession Certificate dated 8.6.1987 issued in favour of Mst. Hussain Akhtar is liable to be set aside as prayed for? OPA. (iii) Whether the respondent Mst. Hussain Akhtar is entitled to special costs, if so, to what extent? OPR. (iv) Relief. 2. The parties were directed to produce their evidence on 7.6.1989. She could not produce the said evidence on the said date and also on the adjourned date of 27.7.1989. The case was then adjourned to 23.9.1989 for the same purpose. On that day, the parties' counsel were present but neither the petitioner nor her evidence was present, as a result of which the application was dismissed for want of evidence. Feeling aggrieved, the petitioner lodged an appeal but her appeal was dismissed on 28.2.1990. Still not satisfied, the petitioner has lodged the present reivion petition to assail the above mentioned orders of the two courts below. 3. 1 have heard the parties' learned counsel and have also gone through the material available on record. 4. Learned counsel for the respondent has raised a preliminary objection to the maintainability of the present revision petition. According to him the order dated 23.9.1989 passed by the learned Civil Judge was not appealable under Section 384 of the Succession Act, 1925, hereinafter called the Act, and thus the appeal of the petitioner before the learned District Judge and the present revision petition against the order dated 28.2.1990 passed in the said appeal were incompetent. Section 384 of the Act reads as follows:- "(1 ) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit. by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, -on application being made therefore, to grant it accordingly, in supersession of the certificate, if any, already granted. (2 1 An appeal under sub-section (1) must be preferred within the time aliened for an appeal under the Code of Civil Procedure, 1908 (V of (3; SJDJeci to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment, of the Code of Civil Procedure, 1908 (V of 1908), as applied by Section 141 of that Code, an order of a District Judge under this Part shall be final.' Learned counsel has maintained that under the above provision only those , orders are made appealable whereby a succession certificate is either granted or refused or re'.oked and no appeal lies against any other order. He is of the view thar the impugned order, at the most, could be considered to be an order refusing to revoke a succession certificate and as such the same was not appealable under the aforesaid provision of the Act. The objection appears to be misconceived. It is true that by the impugned order the learned Civil Judge, in essence, had refused to revoke the certificate issued in favour of the respondent and such an order was not applicable (?) but the application of the petitioner was not confined to the prayer for the revocation of the certificate in question only. In the said application the petitioner had also prayed for the issuance of a succession certificate in her name in place of the one issued in favour of the respondent. Thus the impugned order dated 23-9.1989 was also an order refusing to grant succession certificate to the petitioner and therefore the same was appealable under Section 384 of the Act. An appeal against the said order was competent before the District Judge under Section 388 (?) ibid. The present revision petition, therefore, is quite competent. The objection raised by the learned counsel for the respondent is consequently overruled. 5. This brings us to the question if the petitioner's evidence was rightly closed under Order XVII rule 3, CPC. Perusal of the record reveals that issues had been framed on 5.4.1989 and the case was adjourned to 7.6.1989 for the petitioner's evidence. When the case was laid before the court on the said date the following order was passed: On 27.7.1989 the court passed the following order When the case was put up on 23.9.1989 neither the petitioner nor her evidence was present. Consequently the learned trial court passed the following order: "Present: Counsel for the parties. The petitioner's evidence is not present nor the petitioner is present in person for making his (sic) statement therefore, the present petition is dismissed for want of evidence." Sd/- C J. 1st Class, T.T.Singh. 6. From none of the above mentioned orders it is shown that the case had been adjourning from 7.6.1989 to 27.7.1989 (and) to 23.9.1989 on the request of the petitioner. It is however, revealed from the above mentioned orders that the respondent had not objected to the above mentioned adjournments and thus it would not be unjustified to infer that in the present case the suit had been adjounred from one date to another on the request of the parties' counsel and would not mean that the adjournments had been granted solely on the request of the petitioner. In this view of the matter I would hold that the case was not adjourned to 23.9.1989 at the instance of the petitioner. In this regard reliance is placed on Maulvi Abdul Aziz KJtan vs. Mst. Shall Jahan Begum and 2 others (PLD 1971 S.C. 434) and Syed Tasleem Ahmad Shah vs. Sajawal KJian etc. (1985 S.C.M.R. 585). The provisions of Order XVII rule 3 CPC therefore, were not attracted to the present case, especially when on 27.7.1989 some of the petitioner's witnesses were present and it was the learned trial court, perhaps, who did not deem ft proper to record their statements and adjourned the case. Valuable rights of the parties were involved in .this case and therefore, in the circumstances of the case the learned trial court should have shown a bit more indulgence to the petitioner by granting another adjournment subject to the payment of costs so that the case could be decided on merits. Learned appellate court has also failed to take into consideration this aspect of the case and thus has reached a conclusion which does not have the support of the law laid down by the superior courts. I, therefore, have no hesitation in holding that the closure of the petitioner's evidence in the present case was not justified. The two courts below have committed an illegality which calls for interference by this court in exercise of the revisional jurisdiction. Consequently the revision petition is accepted, the impugned orders are set aside and the application filed by the petitioner stands restored. The parties are directed to appear before the learned Senior Civil Judge Toba Tek Singh on 17.10.1992, to whom this case is entrusted for disposal. He shall give one last opportunity to the petitioner for the production of her evidence subject to the payment of Rs. 500/- as costs.Parties to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 455 PLJ 1992 Lahore 455 [Bahawalpur Bench] Present: MIAN ALLAH NAWAZ, J Mst. ZAINAB BIBI«Petitioner versus SHAUKAT Ay-Respondent Writ Petition No. 666/BWP of 1990, accepted on 12.5.1992 Khula- —-Dissolution of marriage-Suit for-Dismissal of-Challenge to-From perusal of findings of trial court, it appears that Judge, Family Court, had misdirected himself by not following principle laid down by Supreme Court that whenever relationship between spouces are so strained that it is not possible for them to live within limits prescribed by God Almighty, it is better to annul such marriage-Held: Judgment and decree passed by Family Court, are illegal and cannot be sustained-Petition accepted and case remanded. [Pp.456&457]A&B PLD1983SC169re/. Mr. A^A. Ansari, Advocate for Mian M. Tayyab Watto, Advocate for Petitioner. Mr. M. Shamsher Iqbal Chughtai, Advocate for Respondent. Date of hearing: 12.5.1992. judgment This constitution petition has been filed by Mst. Zainab Bibi under Article 199 of the Constitution of Islamic Republic of Pakistan, (1973) in order to challenge the judgment and decree dated 25.1.1990, whereby the learned Judge Family Court, Bahawalnagar dismissed the suit for dissolution of marriage brought by the petitioner and also dismissed the suit for maintenance to the extent of the petitioner and allowed the minor, maintenance at the rate of Rs. 200/- per month from the date of institution of the suit. 2. The few relevant essential facts for the adjudication of this petition are that on 12.4.1988, the petitioner filed a suit for dissolution of marriage on the ground of habitual cruelty, association with women of ill-repute and leading infamous life and casting allegations of immoral nature against the petitioner. It was pleaded that on account of aforesaid circumstances fully embodied in the plaint, the petitioner had developed insatiable hatred towards respondent No. 1 and was not prepared to live with him within the limits as prescribed by God Almighty. The suit was contested. The petitioner also filed a suit for grant of maintenance for her as well as for the minor. These suits were consolidaled.The respondent filed written statement controverting the allegations levelled in the plaints. After abortive reconciliation proceedings, the learned Judge Family Court recorded the evidence of the parties.Thereafter unproductive post conciliation proceedings were held. 3. On the scrutiny of the evidence of the parties, the learned trial Court decided all the issues against the petitioner and dismissed the suit for dissolution of marriage by rendering finding on issue No. 4 in following words: "Issue No. 4. As already discussed in the above issues, that neither the plaintiff has maltreated the defendant nor (is) in habit of association with women of ill-reputation, so in these circumstances, I do not consider that the relations between the spouses had come to such a pass, as to leave little hope for conubial-bliss. I would, therefore, hold that the plaintiff is not entitled for decree on the basis of Kiiula in the circumstances of instant case. The issue is decided against the plaintiff." The learned trial Court also by the same judgment dismissed the suit for maintenance to the extent of petitioner and decreed the suit with respect to minor. The judgment and decree in respect of the suit for dissolution of marriage is the subject matter of challenge in this constitution petition. 4. The learned counsel for the petitioner made a request for grant of an adjournment which was refused. I, therefore, proceeded to hear the learned counsel for the respondent and have gone through the grounds of this constitution petition. From their perusal it is evident that the finding of of the learned Court below has been challenged on the basis of the rule laid down in the case of Bashiran Bibi vs. Bashir Ahmad and two others (PLD 1987 Lahore 376). The learned counsel for the respondent supported the impugned decision. 5. From the perusal of the findings of the trial Court it appears that the learned Judge Family Court had misdirected himself by not following the principle laid down in Dr. Akhlaq Ahmad vs. Mst. Kishwar Sultana and others (PLD 1983 SC 169). It has been held therein that whenever the relationship between the two spouses are so strained that it is not possible for them to live within the limits prescribed by God Almighty, it is better to annul such marriage. This position of law has not been correctly followed by the learned Judge Family Court. This being the legal position, I have no doubt in my mind that the judgment and decree I passed by the learned Family Court is illegal and cannot be sustained. In result this constitution petition is allowed. The judgment and decree passed by the learned Judge Family Court is hereby set aside; the case is hereby remanded to the learned Judge Family Court, who is directed to decide the suit B afresh after hearing both the parties and taking into consideration the evidence already adduced by the parties. There shall be no order as to costs. The parties have undertaken to appear before the Judge Family Court on 6.6.1992. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 457 PLJ 1992 Lahore 457 Present: MALIK MUHAMMAD QAYYUM, J PAKISTAN RAlLWAYS-Petitioner Versus PUNJAB LABOUR COURT NO. 2 and 55 others-Respondents Writ Petition No. 4430 of 1986, accepted on 14.7.1992 Workmen's Compensation Act, 1923 (VIII of 1923)-- -—S. 2(n)(i) read with Constitution of Pakistan, 1973, Article 212 and Civil Servants Act, 1973, Section 2(b)(ii)--Clerks of Pakistan Railways-Whether covered by definition of workman—Question of—Persons employed by Pakistan Railways are not per-se excluded from definition of "Civil Servants'—It is only when it is shown that they are not employed in any administrative, district or sub-divisional office and are not employed in any of capacities as specified in Schedule II that they can claim to be workmen-Labour Court failed to record any finding on this vital aspect of matter-Held: This failure has rendered decision of Labour Court to be without lawful authority-Petition accepted and case remanded. [Pp.459&460]A,B&C PLJ 1981 SC 413 ref. Ch. Fazal-i-Hussain, Advocate for Petitioner. Mr. Muhammad Zaman Qureshi, Advocate for Respondents 3 and 4. Nemo for Respondents 1, 2 and 5 to 56. Date of hearing: 27.5.1992. judgment This petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under Section 25-A of the Industrial Relations Ordinance 1969 filed by respondents 3 to 56 who are working as clerks in the employment of Pakistan Railways, the petitioner herein, which was allowed by the Labour Court vide its judgment dated 9.9.1985. The appeal of the petitioner against the aforesaid judgment was dismissed on 4th May, 1986 whereupon this petition was filed. 2. Respondents No.3 to 56 filed a joint application under Section 25-A of the Industrial Relations Ordinance 1969 against the petitioner in which they challenged the order passed by the Works Manager, Signal Shops, Pakistan Railways, bifurcating the seniority list of the clerks employed in the said shop into two groups and directing that a separate list be maintained for each category. 3. This application was defended by the petitioner inter alia on the plea that as respondents No.3 to 56 were not workmen, the Labour Court had no jurisdiction to try the application. Unfortunately, although the Labour Court noted this objection it gave no decision thereon and proceeded to accept the application on 9th September, 1985. 4. Learned counsel for the petitioner, in support of this petition, has contended that juuisdiction of the Labour Court to try the application filed by respondents No.3 to 56 was barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the said respondents were civil servants. Learned counsel for contesting respondents has however argued that these respondents were workmen within the meaning of Workmen's Compensation Act, 1923 and they cannot therefore be considered to be civil servants. 5. It cannot be disputed that by virtue of Article 212 of the Constitution of Islamic Republic of Pakistan, the exclusive jurisdiction to adjudicate upon any dispute relating to terms and conditions of civil servants vest in the Service Tribunal constituted under the Service Tribunals Act, 1973. The controversy between the parties however is as to whether respondents No.3 to 56 can be considered to be civil servants. 6. Section 2(b) (ii) of Civil Servants Act, 1973 defines a civil servant as under:- (i>) "civil servant" 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 defence but does not include— (/) 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-charged basis, or who is paid from contingencies; (//'/) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923). 7. Learned counsel for respondents has attempted to argue that the Railways employees do not hold any civil post in connection with he affairs of the Federation but, on the other hand, are employees of Railways Board. This contention is highly misconceived. Apart altogether from the fact that Railways is one of the departments of the Government and is controlled by the Ministry of Railways which is headed by a Federal Minister, Railways is one of the subjects falling under Part II of the Federal Legislative List and is a Federal subject under the constitution. 8. It was next argued by the learned counsel for respondents No.3 and 4 that as the respondents are workmen within the meaning of Section 2(/i)(/) of the Workmen's Compensation Act, 1923, they were not civil servants in view of subclause (Hi) of clause b of Section 2 of the Civil Servants Act, 1973 which provides that workmen as defined by Factories Act, 1934 or Workmen's Compensation Act, W23 are excluded from the definition of "civil servant". It is conceded by the learned counsel that Factories Act. 1934 has no application in the present case. He has therefore relied on Section 2(n) (i) of the Workmen's Compensation Act, 1923. 9. This provision came up for interpretation before the Supreme Court of Pakistan in two cases first of which is reported as Mufti Mushtaq Ahmad v. Federation of Pakistan (PLJ 1981 S.C. 413) and the second is the un-reported decision of the Supreme Court in Akbar All and others v. The Senior Administrative Offices, Pakistan Railways and another (Civil Appeal No.578/80). In the second case, the contention that all Railways servants were workmen was repelled and it was held that categories of civil servants who were employed in any administrative district or sub-divisional office of Railways -were not workmen. Similarly, the provisions of Schedule II of the Workmen's Compensation Act, 1923 were also considered and commented upon. 10. From the above, it is evident that persons employed by Pakistan Railways are not per sc excluded from the definition of "civil servants". It is only when it is shown that they are not employed in any administrative, district or sub-divisional office and are not employed in any of the capacities as specified in Schedule II that they can claim to be workmen. 11. Unfortunately, Labour Court , despite having noticed the jurisdictional objection raised before it, failed to record any finding on this vital aspect of the matter. This failure on the part of respondent No.l has rendered its decision to be without lawful authority and of no legal effect. In these circumstances, there is no option but to remand the case to the Labour Court for decision afresh particularly on the question as to whether, in the light of the tests laid down by the Supreme Court of Pakistan, respondents No.3 to 56 can be considered to be workmen as defined in Section 2(/j)(/) of Workmen's Compensation Act, 1923. As a result of what has been stated above, this petition is allowed and the impugned judgment of the Labour Court is declared to be without lawful authority and of no legal effect with the result that the application filed by respondents No.3 to 56 shall be deemed to be pending before the Labour Court which shall decide it afresh keeping in view the observations made above. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 460 [Buhawalpur Bench] PLJ 1992 Lahore 460 [Buhawalpur Bench] Present: mian allah nawaz, J INAMUL HAQUE-Petitioner versus Mst. SHARIFAN BIBI and 2 others-Respondents Writ Petition No. 1331-F/BWP of 1991, dismissed on 12.5.1992. Kliula-- —Dissolution of marriage-Suit for-Suit decreed-Challenge to-Judge, Family Court, twice postponed hearing of application for setting aside ex-parte decree to enable petitioner to appear in person in order to render explanation for his non-appearance, but he did not appear—Explanation that he was not informed by his counsel, hardly merits consideration-Held: Judge, Family Court, was within his right in coming to conclusion that petitioner had submitted application for setting aside ex-pane proceedings as well as decree without any reasonable basis-Held further: Even otherwise, it is a well settled principle of law that when relations between spouses become so strained that it is not possible for them to live within limits prescribed by God Almighty, it is better to annul such marital tie-Petition dismissed. [Pp.461&462]A,B&C PLD1983SC169rc/. Cli. Abdul Saltar, Advocate for Petitioner. Mr. Shamslier Iqbal Clmghtai, Advocate for Respondent No. 1. Date of hearing: 12.5.1992. judgment This constitution petition arises out of a matrimonial dispute culminating into a decree lor dissolution of marriage in favour of Mst. Sharifan Bibi (herein respondent No.l). 2. The material facts to be noted are; that Mst. Sharifan Bibi (herein respondent No.l) filed a suit for dissolution of marriage against the petitioner in the Court of Family Judge, Fort Abbas on 11.5.1991 alleging therein that she was treated by the petitioner/defendant with persistent cruelty; that the petitioner did not pay her maintenance for a period of more than two years; that the petitioner had mis-appropriated her articles of dowry. It was stated therein that on account of aloresaid circumstances she had developed incurable hatered towards the petitioner and was not prepared to live with him within the limits as prescribed by God Almighty. It was prayed that the suit be decreed on the basis ofkhula. 3. The learned Judge Family Court tried to effect service upon the petitioner through registered post for 25.5.1991. The summons were not returned; therefore, service was resorted through citation in daily 'Musawat' Lahore for 12.6.1991. On the said date of hearing, the petitioner did not enter appearance. As such exports proceedings were ordered against him and the case was fixed for the evidence of respondent No.l on 26.6.1991. On the said date of hearing the evidence of respondent No.l was recorded and exparte judgment and decree was passed decreeing the suit for dissolution of marriage on the basis ofkhula. 4. Having come to know about this, the petitioner lodged an application on 8.7.ly9l before the same Court for setting aside exparte proceedings as well as exparte decree. When the application came up for preliminary hearing, the learned Judge Family Court directed that the petitioner shall appear in person on 15.7.1991. Since the petitioner had no knowledge about this order, he did not appear on the said date of hearing. Resultantly the hearing was postponed to 18.7.1991 for the appearance of the petitioner. On account of absence of information, the petitioner did not enter appearance on the said date of hearing. In this background, the learned Judge Family Court dismissed the application. 5. Feeling aggrieved, the petitioner filed appeal which was dismissed on 10.0.1991. 6. On behalf of the learned counsel for the petitioner, it was submitted that the proceedings commencing from citation up to passing of the exparte decree were wholly without jurisdiction on the ground that the petitioner was not served. 7. It was next contended that the petitioner was disabled person and had no knowledge about the orders of learned Judge Family Court directing him to enter appearance before the Court. No other point was urged. 8. Learned counsel for the respondent supported the impugned decision and lurther stated that respondent No.l, in fact, has contracted second marriage. 9. After hearing the learned counsel for the parties at a considerable length, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. The points urged by the learned counsel for the petitioner relate to the finding of fact which can only be resolved through by taking evidence. Such exercise is impermissible in constitutional jurisdiction. The learned Judge Family Court postponed the hearing of application for setting aside exparte proceedings as well as expane decree twice commanding the petitioner to appear in person in order to render explanation for his non-appearance but the petitioner did not appear. The explanation of the petitioner that he was not informed by his counsel, hardly merits consideration. Upon the material on record, the learned Judge Family Court was well within his right in coming to the conclusion that the petitioner had submitted application for setting aside exparte proceedings as well as exparte decree without any reasonable basis. The impugned order is just and not open to exception in constitutional jurisdiction. 10. Even otherwise, it is a well settled principle of law that when the relations between the spouses become so strained that it is not possible for them to live within the limits prescribed by God Almighty, it is better to annul such marital tie in order to save two living souls from the agony of hateful union. Reference be made to Dr. Akhlaq Ahmad v. Mst. Kshwar Sultana and others (PLD 1983 S.C. 169). The respondent No.l has contracted second marriage. She appeared before the Court and stated firmly that she was not prepared to live with the petitioner. 11. In the light of foregoing discussion, this petition is found to be wholly without merit and is accordingly dismissed leaving the parties to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Lahore 462 PLJ 1992 Lahore 462 [Bahawalpur Bench] Present: MlAN ALLAH nawaz, J Qari MUHAMMAD SIDDIQ-Petitioner versus ASSISTANT COMMISSIONER/DELIMITATION OFFICER, LIAQATPUR and 2 others-Respondents Writ Petition No. 1363/BWP of 1991, accepted on 27.11.1991 (approved for reporting on 9.5.1992) Delimitation-- —Union Council-Election ' of-Delimitation for-Challenge to-On facts admitted by appellate authority, it is clear that wards No. 3, 4 and 5 were delimited in contravention of principle of equality and contiguity-Delimitation of these wards was, thus, manifestly in breach of Section 14(2) of Punjab Local Government Ordinance, 1979-Held: Election Authority did not advert to this question and as such, orders passed by appellate authority and Election Authority cannot be sustained-Petition accepted and case remanded. [Pp.4648?t65lA,B&C PLD 1973 SC 24,1980 CLC 544 and PU 1991 SC 331 rel. Mr. M.M. Bhatti, Advocate for Petitioner. Mr. Abdul Majid Malik, Advocate for Ghulam Hussain Applicant. Mr. Abdul Ghafoor, Advocate for Nazar Abbas, Applicant. Ch. Chiragh Din, Applicant in Person. Haji Saifullah and Mr. Shamsher Iqbal Chughtai, Advocates for Rao KJiurshid, Haji Muhammad Nawaz and Allah Dawaya KJian, Applicants. Ch. Mumtaz Ahmad A.C. (Delimitation Officer), Liaquatpur, in person. Date of hearing: 27.11.1991. judgment The dispute in this constitution petition relates to delimitation of Electoral Units No.3, 4 and 5 of Union Council Aminabad, Tehsil Liaquatpur District Rahim Yar Khan. 2. The facts as given in the petition are; that on 1.10.1991 preliminary list of delimitation of Electoral Units of Union Council Aminabad was published by the Delimitation Officer on 1.10.1991. The petitioner on 5.10.1991 submitted objections with respect to delimitation in respect of alt Electoral Units alleging therein that delimitation of Units was contrary to the principle of equality of population and contiguity as enjoined under Section 14 of the Punjab Local Government Ordinance (VI of 1979). The objections of the petitioner with respect to Wards No.l and 2 were negatived by the Delimitation Officer but accepted with regard to the delimitation of Wards No.3, 4 & 5 and Resultantly the Delimitation- Officer prepared the proposal in the light of objections of the petitioner and sent them to the appellate authority who by order dated 12.10.1991 rejected the recomrucndation of the Delimitation Officer and up-held the delimitation shown in preliminary proposal. It was held by the appellate authority that preliminary proposal was in accordance with the previous delimitation and as such needed no interference. 3. Feeling dis-satisfied, the petitioner preferred application under sub-rule (6) of Rule 7 of the Punjab Local Councils (Election )Rules, 1979, before the election authority who dismissed the same by order dated 30.10.1991. The preliminary proposal and the order of election authority dated 30.10.1991 are the subject matter of challenge in this constitution petition. 4. On behalf of the petitioner, it was contended that according to delimitation the population of Wards No3, 4 and 5 was 717, 1634 and 1495 respectively. On the face of it, this was contrary to the principle of equality of population. 5. It was next submitted that Wards No.3, 4 and 5 were delimited in defiance of the principle of contiguity. That Ward No.3 had blocks of population which were not connected with each other. Worst was the position of Ward No.4. In order to demonstrate the contraventions of the principle of contiguity, reference was made to map of delimitation, Annexure-A. 6. The Deputy Commissioner/appellate authority submitted written reply wherein the factual contents of paras No.3, 5, 6, 8 and 9 of the petition were admitted. It is pertinent to note that these paragraphs related to factual allegations that the dclimiation of Wards No.3, 4 and 5 was violative of the principle of contiguity. Haji Saifullah, Advocate, learned counsel appearing on behalf of newly-implcaded respondents in C.M. No.4/91 strenuously supported the impugned delimitation. It was stated by him that the data of preliminary proposal given by Delimitation Officer was totally incorrect. According to him the population of Ward No.l was 1012 while the population of Wards No.2, 3, 4 and 5 was 1020, 1050, 1250 and 1200 respectively. The Delimitation Officer under extraneous pressure had agreed with the proposal of the petitioner and furnished a wrong data before the appellate authority as well as before the election authority. Elaborating his contentions further he stated that Election Authority had taken into consideration the record of the Union Council and had come to the conclusion that preliminary delimitation proposal was in accord with the principle of equality of population and the principle of contiguity. 7. Learned counsel appearing on behalf of respondents No.l, 2 and 3 stated that delimitation was not in consonance with the principle of equality and contiguity. It was however argued that the order of the election authority was final and not open to interference in constitutional jurisdiction. 8. We have heard the learned counsel for the parties at a considerable length and find force in the contentions of the petitioner. On facts admitted by the appellate authority, it is clear that Wards No.3, 4 and 5 were delimited in contravention of the principles of equality and contiguity. Thus the delimitation of Wards No.3, 4 and 5 was manifestly in breach of sub-section (2) of Section 14 of the Punjab Local Government Ordinance, 1979. The Election Authority had not adverted to this question, as such the order passed by the appellate authority as well as by the Election Authority cannot be sustained. 9. It is a settled principle of law that where-ever this Court finds order by any Tribunal, Court or Authority as without jurisdiction or in excess of jurisdiction or in manifest breach of some law, this Court has jurisdiction to come to the help of the petitioner and set aside such order in constitutional jurisdiction. Reference be made to Rahim Shah v. Tlie Chief Election Commissioner of Pakistan and another (PLD 1973 S.C. 24), Shah Jclian KJian v. Tlie Chairman Punjab Local Council Election Authority, Lahore and 3 others (1980 CLC 544) and NoorwarJan v. Senior Member Board of Revenue N.W.F.P. (PU 1991 S.C. 331). 10. In the light of foregoing discussion, we accept this petition, set aside the orders of the Election Authority as well as the Appellate Authority to the extent of delimitation of Wards No.3, 4 and 5 and remit the case to the Appellate Authority for deciding the question of delimitation of Wards No.3, 4 and 5 afresh within a week of this order, after hearing both the parties and in consonance with law. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 465 PLJ 1992 Lahore 465 Present: MALIK MUHAMMAD QAYYUM, J KHURSHID SPINNING MILLS LTD.-Petilioner versus FEDERATION OF PAKISTAN, THROUGH SECRETARY MINISTRY OF FINANCE and 3 others-Respondents. Writ Petition No. 4023 of 1988, accepted on 14.7.1992 Customs Act, 1969 (IV of 1969)- —-S. 30--Machinery--Import of--Customs and Regulatory Duty etc.—Imposition of--Challenge to--Whether petitioner is entitled to avail of benefit conferred upon by notification dated 28.6.1988, under which total exemption from customs duty has been granted-Question of-Admittedly when notification dated 28.6.1988 was issued, only half of duty had been paid while remaining was still outstanding-Held: As entire duty had not been paid so as to enable petitioner to take delivery of goods, case of petitioner falls under second proviso to Section 30-Petition accepted. [Pp.467&469]A&B PLJ 1989 Lahore 112 upheld by Supreme Court in CA. 114/90 rel. Mr. Ashlar AusafAli and Mr. Mehmood, Advocates for Petitioner. 5/j. Maqbool Ahmad, Standing Counsel for Pakistan , for Respondents. Date of hearing: 17.5.1992. judgment Khurshid Spinning Mills Limited, the petitioner herein, was at the relevant time, engaged in setting up a cotton spinning mill at Jaranwala. It imported certain machinery by opening an irrevocable letter of credit. On arrival of the goods, a request was made by the petitioner to the Customs Authorities that the goods be allowed to be placed in a Bonded Warehouse and an in-Bond Bill of Entry was filed on 25.5.1988. 2. On 28:5.1990 the petitioner approached the respondents for the clearance of the goods from the warehouse for Home Consumption, by filing a Bill of Entry in which exemption was claimed from payment of Customs duties, sales tax, surcharge and iqra surcharge. The respondents allowed 50% rebate in the custom duties under Notification No.SRO 500(l)/84 dated 14th June, 1984, but held the petitioner liable to pay 20% regulatory duty, surcharge and iqra surcharge. In this manner, the total duties payable by the petitioner were assessed at Rs.98,59,135/-. 3. It appears that the petitioner challenged the levy of surcharge, iqra surcharge and regulatory duty by filing a constitutional petition in this Court (W.P.No.2854/88) in which an interim order was passed directing release of machinery subject to the petitioner furnishing bank guarantee to the extent of the disputed amount of regulatory duty. The prayer for stay relating to iqra surcharge was refused. The petitioner thereupon filed a civil petition for special leave to appeal (C.P.S.LA 262-R/88) in the Supreme Court which was pleased to stay recovery of surcharge and iqra surcharge subject to the petitioner furnishing bank guarantee. However, as the petitioner failed to furnish bank guarantees in terms of order dated 18th June, 1988 passed by this Court and order dated 25th June, 1988 by the Supreme Court, the stay orders never became effective. It may be mentioned that writ petition was subsequently dismissed. 4. Out of Rs.98,59,135/- which as stated earlier, were assessed as duties payable, the petitioner deposited a sum of Rs.49,29,568/- on 22nd June, 1988. The remaining amount was to be paid in the form of debentures. However, before debentures could be furnished or the machinery cleared, a notification bearing No.458(l)/88 was issued by the Federal Government in the exercise of the powers conferred upon it by Section 19 of the Customs Act, 1969 and the Sales Tax Act, 1951 whereby the machinery imported for the purpose of setting up textile industry was exempted from whole of the customs duty and sales tax leviable thereon. 5. On the issuance of the above notification, the petitioner claimed exemption from the payment of custom duty but the respondents refused to allow the benefit of the notification in question on the ground that goods were imported, the duty assessed and part of it paid before the notification was issued. 6. This refusal of the respondents to allow clearance of goods without payment of customs duty has been challenged by the petitioner by filing this petition. 7. It may be mentioned that the goods in question were cleared from the bonded warehouse under an order passed by this Court on 2nd August, 1988 subject to petitioner furnishing debentures. 8. Learned counsel for the petitioner has relied upon Section 30 of the Customs Act, 1969 to contend that as the petitioner had not paid customs duty within 7 days from the date of filing of BUI of Entry for home consumption, the rate of duty applicable would be the rate prevailing on the date the duty was actually paid which in this case was in August, 1988. The learned Standing Counsel has, however, argued that as the goods in question had been imported by the petitioner prior to 26th June, 1988 when the notification was issued and as a part of duty had also been paid on 22nd June, 1988, the notification has no applicability to the goods imported by the petitioner. . Debentures for the remaining 7.7.1988 50^7 amount was furnished. 11. In this factual background, the legal contentions raised by the parties may now be examined. Both the learned counsel have relied upon Section 30 of the Customs Act, 1969 which reads as under:-- ' 'Date for determination of value and rale of import duty. The value of, and the rate of duty applicable to, any imported goods shall be the value and the rate of duty in force:-- (a) in the case of goods cleared for home consumption under Section 79, on the date on which a bill of entry is presented under that section; and in the case of goods cleared from a warehouse under Section 104, on the date on which a bill of entry for clearance of such goods is presented under that section; "Provided that (if) a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered; Provided further that in respect of goods for the clearance of which a bill of entry for clearance has been presented under Section 104, whether before or after the commencement of the Finance Ordinance, 1979, and the duty is not paid within seven days of the bill of entry being presented the value and rate of duty applicable on the date on which the duty is actually paid". 12. Section 30 as originally enacted was in different form and was amended by Ordinance 30 of 1979. The main difference between two provisions is that under proviso to Section 30 as originally enacted the rate and amount of duty chargeable in respect of the goods which have been ware-housed was to be the rate and amount chargeable at the time of actual removal of such goods from the warehouse for home consumption. However, under the amended provision, in case of goods cleared from the warehouse, rate of duty applicable was to be that which was prevailing on the day when the Bill of Entry for clearance from warehouse was presented and in the event of non-payment of duty within 7 days from the Bill of Entry being presented, the rate of duty applicable was to be that which was prevailing on the date of actual payment of duty. 13. Thus, under the amended provision, the importer was allowed 7 days' time to pay duly and if such payment was made, the rate of duty applicable would be the rate prevailing at the time when the Bill of Entry was presented for clearance from warehouse. If, however, duty is not paid within 7 days, rate applicable would be the rate applicable at the time when the duty was actually paid. 14. The case of the petitioner rests upon proviso to Section 30 as according to the learned counsel for the petitioner, expression "duty actually paid" means the payment of the entire duty. It was emphasized that the payment of duty contemplated by the proviso was such which would entitle the importer to clear the goods from the customs. 15. Learned Standing Counsel for Pakistan has however maintained that proviso to Section 30 would not be applicable to a case where a part of duty had been paid and in such event, the rate applicable would be the rate envisaged by Section 30 (b) i.e. the rate prevailing at the time of filing of Bill of Entry. I regret my inability to agree with the learned Standing Counsel. If his argument is accepted, it would entitle the importer to free/e the rate of duty by paying even a small part thereof, which certainly cannot be the intention of legislature. 16. The contention of the learned counsel for the petitioner, if examined in the context of various provisions of Customs Act, 1969 that the expression "duty actually paid" has reference to such payment as would entitle the importer to clear the goods from the customs has merit. 17. Under Section 79 of the Customs Act, 1969, the owner of the imported goods has to file a Bill of Entry cither for home consumption or for warehousing. Section 80 provides for assessment of duties and further ordains that the owner of such goods may proceed to clear the same for home consumption or warehouse subject to the provisions contained in the Act. Section 83 deals with clearance of goods for home consumption. The procedure for warehousing is provided by Chapter XI, Section 104 whereof states that any owner of warehoused goods may at any time within the period of warehousing mentioned in Section 98 clear the 1992 KHL'SHiD spinning mills LTD v. federation of pakistan Lah. 469 (Malik Muhammad Qayyum, I) goods for home consumption by paying duty assessed on such goods. Section 30(fc) of the Customs Act, 1969 makes a reference to Section 104 of the Act which stipulates that the goods can only be cleared for home consumption by paying duty assessed on the goods under the provisions of the Act alongwith rent, penalties, surcharge and other charges in respect of such goods. It is {bus clear that expression "duty" in second proviso to Section 30 has reference to entire duty assessed on the goods in accordance with the provisions of the Act. 18. In the present case, admittedly when the notification dated 28th June, 1988 was issued, only half of the duty had been paid while the remaining was still outstanding and was as a matter of fact paid in the form of debentures after the petition was filed. Consequently, as the entire duty had not been paid so as to enable the petitioner to take the delivery of goods, the case of the petitioner falls under second proviso to Section 30. 19. It was next argued by the learned Standing Counsel that as the petitioner was required to pay only half the duty in cash while other half in debentures, he should be taken to have paid the duty on 22.6.1988. 20. Furnishing of debentures instead of cash payment is provided by the "Deferment of Import Duty" Rules 198 (?) framed by the Central Board of Revenue in exercise of powers conferred upon it under Section 219 of Customs Act, 1969. Under rule 7, the Assistant Controller is authorised to allow a request for deferment of duty made by an importer subject to conditions stated therein. This rule, inter alia, provides that after request for deferment of duty has been accepted by the Assistant Collector, the importer shall furnish to the Assistant Collector the documents mentioned in sub-rule 5. Under rule 8, the Assistant Collector is authorised to accept the request after the documents are found to be in order. Even if furnishing of debentures is figuratively equated with payment in cash, the date of actual payment within the meaning of proviso to Section 30 would be the date on which debentures are actually furnished alongwith the documents mentioned in sub-rule (5) of rule 7 and same are accepted under rule 8. There is no dispute in the present case that debentures were admittedly furnished much after notification dated 28th June, 1988 was issued. Consequently, this argument of the learned Standing Counsel is of no avail. 21. In Ibrahim Textiles Mills Ltd. . Federation of Pakistan (PLJ 1989 Lahore 112) the dispute was regarding rate of duty in respect of goods cleared from warehouse for home consumption. While considering the provisions of Section 30 of Customs Act, it was observed by this Court at page 117 of the report that:-- "I have given my anxious consideration to these cases. It is obvious that in all the fifteen cases the bills of entry for ex-bonding were filed on 2.6.1987 or 3.6.1987. It is admitted by the Customs Department that the petitioners did not pay the customs duty due on these bills of entry for exbonding within seven days of their presentation. Under Section 30 of the Customs Act, 1969, the rate of duty applicable on imported goods, in the case of goods cleared under a bill of entry for home consumption, or under a bill of entry for ex-bonding, is the rate of duty in force on the date on which such a bill of entry is presented. However, under the second proviso to the said section, where customs duty is not paid within seven days from the date on which such a bill of entry is presented, the rale of customs duty becomes that which is applicable on the date on which the duty is actually paid. The petitioners, therefore, were entitled to pay the duty at the rate applicable on the dates they made the payments". The decision of this Court was upheld by the Supreme Court of Pakistan on 10th May, TW2 when it dismissed the appeal filed against the judgment of this Court. (Civil Appeal No.l 14/90, Federation of Pakistan v. M/s Ibrahim Textile Mills Ltd.). In view of what has been stated above, this petition is allowed with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Lahore 470 (DB) PLJ 1992 Lahore 470 (DB) [Bahawalpur Bench] Present: MUHAMMAD ARIF AND MIAN ALLAH NAWAZ, JJ PHULLAN (deceased), THROUGH HIS HEIRS, and others-Petitioners versus MUHAMMAD SARWAR and 2 others-Respondents Writ Petition No. 233/BWP of 1983, dismissed on 16.3.1992 (approved for reporting on 8.4.1992) (i) Application of Mind— — Land surrendered under MLR 64-Allotment to respondents 1 and 2-- Challenge to—Whether an order passed without application of mind can be sustained-Question of-Dcputy Land Commissioner while passing order on complaint of petitioners, did not apply his independent mind to facts and circumstances of case-Government functionaries arc bound to decide matters by independent application of mind free from extraneous influences/dictation from outside agencies howsoever high they may be—Held: Order of Deputy Land Commissioner being void, subsequent orders of Land Commissioner and Addl. Chief Land Commissioner, are a mere superstructure on void order and cannot be legally maintained. [Pp.473&474]A,B,C&D PLD 1970 Dacca 178, PLD 1977 Lah, 307, PLD 1976 Karachi 1219, PU 1975 SC 185. PU 1976 SC 178, PLD 1980 Lah. 571, PLJ 1982 SC 651, PLD 1985 SC 104, PLD 1969 Lahore 1039, PLD 1974 Lahore 434 and PLJ 1973 SC 42 rel. (ii) Limitation-- -—Land surrendered under MLR 64—Allotment to respondents 1 and 2-- Challenge to-Whether revision of respondents 1 and 2 before Federal Land Commissioner was barred by time-Question of--Impugned orders passed by Deputy Land Commssioner and Additional Chief Land Commssioner (which were challenged in revision before Federal Land Commission) were corumnon-judice--He\d: No limitation commences against such orders—Petition dismissed. [Pp.475&476]E&F PLD 1976 SC 208, PLD 1958 SC 104, PLD 1969 Lahore 1039 and PLD 1974 Lahore 434 rel. Mr. Abdullah Qureshi, Advocate for Petitioners. Ch. Parman Bashir, Advocate for Respondents Date of hearing: 16.3.1992. judgment The validity/propriety of the order of Senior Member of Federal Land Commission dated 24.5.1983, is called in question in this Constitution petition. 2. The few facts relevant for the disposal of this petition are; that the Agricultural land bearing Killa Nos. 23, 24 and 25 in Rectangle No. 129/1 and Killas No. 7,8,9 and 13 in Rectangle No. 129/2, situated in Revenue Estate Shamasabad Tehsil Liaquatpur District Rahim Yar Khan was surrendered by the owners under Martial Law Regulation 64 (shortly stated as M.L.R. 64). This land wa^ not disposed of under the aforesaid Regulation and so became available for grant to tenants under Para No. 18 of Martial Law Regulation 115 of 1972 (hereinafter described as M.L.R. 115). The Deputy Land Commissioner, Rahim Yar Khan, granted Killa Nos. 23, 24 and 25 in Rectangle No. 129/1 to one Muhammad Sadiq (herein respondent No.l) while Killas No. 7,8,9 and 13 in Rectangle No. 129/2 in the same Revenue Estate were granted to Muhammad Sarwar (herein respondent No.2). This happened vide separate orders dated 29.3.1974. None filed appeal/review or revision against the aforenoted orders and so these orders became final. However, it seems that one Pholan (now deceased) Ram/an (now deceased) and Shah Muhammad filed complaints to the Chief Land Commissioner, Punjab, alleging therein that the respondents No. 1 and 2 were not tenants over the land in dispute at the relevant time and were not entitled to grant of the land. These complaints were forwarded to the Deputy Land Commissioner, Rahim Yar Khan to conduct enquiry into the allegations made in the complaints. It is necessary to note over here that neither these complaints nor the order of Chief Land Commissioner forwarding the same to the Deputy Land Commissioner was brought on record of this petition. 3. Pursuant to this order, the Deputy Land Commissioner, Rahim Yar Khan, deputed the Assistant Land Commissioner to visit the spot and enquire into allegations contained in the complaint referred to above and submit his report to him. In compliance with this order, the Assistant Land Commissioner visited the land in dispute, recorded thestatementsof parties to this petition and subfffitted a report on 24.5.1974 to the Deputy Land Commissioner stating therein that respondents No. 1 and 2 were not in possession of the disputed land as tenant at the relevant time and thus were not entitled to its grant under Para 18 of the MLR 115. He recommended that the necessary correction be made in the revenue papers as well as in the orders of allotment. After the perusal of this report and without affording opportunity of hearing to respondents No. 1 and 2, the Deputy Land Commissioner, recorded a note of assent with the aforesaid report. This happened vide order dated 12.6.1975. 4. Feeling dissatisfied, the respondents filed appeal which was rejected by the learned Land Commissioner by order dated 24.2.1975, Against this order, respondents No. 1 and 2 preferred revision petition which was also rejected by the learned Addl. Chief Land Commissioner vide order dated 23.1.1983. Feeling aggrieved, respondents No. 1 and 2 filed revision petition No. RP. l(272/100)/FLC/83 before the Federal Land Commission, Islamabad ( Rawalpindi ). This was disposed of by the Senior Member of Federal Land Commission who by the impugned order dated 24.5.1983 accepted the petition and restored the initial order of grant in favour of respondents No. 1 and 2. 5. The learned counsel, in support of this petition, raised following points:- Firstly; the Deputy Land Commissioner had passed the order dated 13.6.1975 in consonance with the direction of Chief Land Commissioner, Punjab under Rules 4 and 5 of the Punjab Land Reforms Rules, 1972 (hereinafter described as Rules of 1972). On the basis of this argument it was contended that the Member Federal Land Commission comitted patent error of law by treating the impugned order of the Deputy Land Commissioner as having been passed in his review jurisdiction. Secondly; the respondents No. 1 and 2 filed revision petition after the delay of three months. It was urged that without adverting to the question of limitation, the Senior Member of Federal Land Commission accepted the same on 29.5.1983. On the basis of these facts, it was suggested that the revision petition filed before Federal Chief Land Commission was barred by time and as such the Commission had no jurisdiction to adjudicate the same. Reliance was placed on Para 29 of M.L.R. 115. 6. On the contrary, the learned counsel appearing for respondents No. 1 and 2 vigorously supported the impugned order by saying that neither any appeal nor any revision or review was filed by the petitioners against the initial order of allotment in favour of respondents No. 1 and 2. According to the learned counsel these orders had become final and could not be set aside by the Deputy Land Commissioner in miscellaneous proceedings. On the strength of this fact, it was urged that the order passed by the Deputy Land Commissioner dated 13.6.1975 was totally null and void and was not creative of any legal right in favour of petitioners. Elaborating his contention further, he contended that the orders passed by the Land Commissioner dated 24.2.1976 as well as Addl. Chief Land Commissioner Punjab dated 23.1.1983 were mere superstructure on void order. These were mere nullities and were correctly struck down by Member Federal Land Commission by impugned order dated 24.5.1983. As regards question of limitation, it was canvassed that the order of the Deputy Land Commissioner dated 13.6.1975, the order of Land Commissioner and the order of the Addl. Chief Land Commissioner dated 23.1.1983 were void orders. As such no limitation ran against these orders. Reliance was placed on Khuda Bakhsh . KJntshi Muhammad and 3 others (PLD 1976 SC 208). 7. Before we proceed to deal with the contentions of the learned counsel for the parties, we feel it necessary to note that the order of the Chief Land Commissioner Punjab forwarding the complaints of petitioners to Deputy Land Commissioner was not placed on record. Even the perusal of the report of Assistant Land Commissioner as well as the order of the Deputy Land Commissioner does not show any reference to such order. We further note, with anguish, that the Deputy Land Commissioner, Rahim Yar Khan, while passing the impugned order dated 13.6.1975, did not apply his independent mind to facts and circumstances of the case. The perusal of this order shows that the Deputy Land Commissioner merely recorded a note of agreement with the report of Assistant Land Commissioner dated 24.5.1975. Can such note be treated as an order passed after application of independent mind. Answer is simple and in negative. It is hardly necessary to be stated that our Government is a Government of laws. The functionaries of the State/Administrative agencies derive therein powers from the Constitution and laws of land. They are required to exercise their powers in a given case after taking into consideration the relevant facts and circumstances of the case within the delimited area of their authority. In doing so they are bound to decide the matters by independent application of mind free from extraneous influences/dictation from outside agencies howsoever high they may be. Reference be made to A.W. Malik v. Tlte Authorised Officer, Dacca Improvement Trust and others (PLD 1970 Dacca 178) Riaz Ahmad v. Secy; (Information Culture and Tourism Deptt) Govt. of Punjab and 3 others (PLD 1977 Lahore 307) and Muhammad Yousafv. Province of Sindh and 2 others (PLD 1976 Karachi 1219). S. This being the legal position, we have no doubt in our mind that the Deputy Land Commissioner, while passing the order dated 13.6.1975 did not apply his mind to the facts and circumstances of this case, and merely concurred with the report of the Assistant Land Commissioner. It is, thus, clear to us that the order of the Deputy Land Commissioner dated 13.6.1975 is destitute of legal authority and cannot be sustained. Since this order is void order, the subsequent orders of Land Commissioner and Addl. Chief Land Commissioner are, therefore, a mere superstructure on void order and cannot be legally maintained. 9. It is well known rule that where a power is conferred on one person then that person cannot transfer its exercise to another person. Thus an act may be ultra vires because it is done by the wrong person. Reference be made to a passage on the doctrine of substantive ultra vires by Introduction to Administrative Law by David Foulkes, Fourth Edition: "An act may be ultra vires because it is done by the wrong person. This raises particularly the problem of delegation of functions. Where a power is conferred on one person then the general rule is that he cannot transfer its exercise to another person delegatus non potest delegare. In Allingliam v. Minister of Agriculture and Fisheries (1947) 1 All E.R.780), the Minister had by regulations lawfully delegated to a County War Agricultural Committee his powers to give directions concerning the use for agricultural purpose of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction would apply. The officer consulted a local sub-committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves. Of course, where the delegate is expressly empowered by statute to sub-delegate, then no objection can be made. Section 101 of the Local Government Act, 1972 gives a wide power to local authorities to make what are popularly called "agency arrangements" (though the section does not use the word agent or delegate). By it a local authority may "arrange for the discharge of any of their functions (a) by a committee, a sub­ committee or an officer of the authority; or (b) by any other local authority". 10 Judged from this angle it is clear that the Deputy Land Commissioner had no authority to depute the Assistant Land Commissioner to make enquiry and C report. Similarly, he failed to perform his functions in proceeding with the acceptance of the Assistant Land Commissioner. We are clear in our mind that the order of Deputy Land Commissioner dated 13.6.1975 cannot be sustained. 11. It is settled law that wherein inferior Tribunal/Court, Administrative Agency has acted wholly without jurisdiction, that such action amounts to usurpation of power and such act is a nullity. Reference be made to rule laid down! in Raimaq All v. Chief Settlement Commissioner (PLJ 1973 SC 42). It was held! therein: "This is no doubt correct, but it is also now well-established that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his hook on "jurisdiction and illegallity" taken any action "beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case, it is well established that a superior Court is not found to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."This principle was reiterated in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Klian and others (PLJ 1975 SC 185), KJmda Bakhsh v. Kliushi Muhammad and three otliers (PLJ 1976 SC 178), Mst. Amina Begum v. Deputy Settlement Commissioner, Circle 1, Lahore and three others (PLD 1980 Lahore 571). and Mazhar Husain KJiw and another v. Government of West Pakistan and 5 Others (PLJ 1982 SC 651). 13. Applying these principles to the facts and circumstances of the case, we are of the view that the order of Deputy Land Commissioner dated 13.6.1975 was wholly without jurisdiction. We have examined rules 4 and 5 of Rules, 1972 and are of considered view that these are not applicable to the facts and circumstances of this case. These rules, in fact, deal with the power of Chief Land Commissioner while dealing with the subordinate land reforms authorities in administrative matter. Accordingly this conterttion is repelled. 14. The only question left for determination is as to whether the revision petition filed by respondents No.l and 2 before the Federal Land Commission, was barred by time and as such the Member Federal Land Commission had no authority to adjudicate it. It is sufficient to say that the impugned orders passed by the Deputy Land Commissioner dated 13.6.1975 (and) by the Addl. Chief Land Commissioner dated 23.1.1983 were coram-non-judice. As such no limitation commenced against such orders. If any authority is noted (?) in support of this proposition, i.e. KJmda Bakhsh v. Kliushi Muhammad and 3 others (PLJ 1976 SC 178). YousafAli v. M. Aslam Zia and 2 others (PLD 1958 SC 104) Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lahore 1039) and Syed \azir Husain v. Settlement Commissioner Lyallpur and another (PLD 1974 Lahore 434). 476 Lah. 15. In the light of foregoing discussion we do not find any merit in this I p petition which is accordingly dismissed. There shall be no order as to costs. ' (MBC) (Approved for reporting) Petition dismissed. phullan v. muhammad sarwar (Mian Allah Nawaz, J)

PLJ 1992 Peshawar 1 PLJ 1992 Peshawar 1 Present: NAZIR ahmad bhatti, J S. SAJID ALI SHAH etc.--Petitioners versus WASIM GUL-Respondent Civil Revision Na.367 of 1984, accepted on 8.6.1991. Jurisdiction— —Suit for declaration that plaintiffs were lessees of suit land and could not be ejected before expiry of lease deed-Whether civil court had no jurisdiction to entertain suit-Question of-Matter in dispute between parties was interpretation of terms and conditions of lease deed-Every dispute of a civil nature cannot create a civil right and a civil remedy-Matter in dispute was essentially that of a tenant and landlord of agricultural land-Adjudication of such a dispute is to be by a revenue court under Section 49 of NWFP Tenancy Act-There was an express bar for civil court as laid down in Section 9 of C.P.C.-Held: Suit was entertainable by a revenue court and civil court had no jurisdiction to adjudicate upon it-Petition accepted. [Pp.2&3]A,B,C&D MrM^Aman Khan, Advocate for Petitioners. Mr.Mazullah Khan Barkandi, Advocate for Respondent. Date of hearing: 8.6.1991. judgment Haji Fazal Muhammad (since dead) and Wasim Gul respondent in the revision petition in hand had instituted a suit in the court of Civil Judge, Charsadda against Syed Sajjad Ali Shah and others, petitioners herein, for a declaration that the former were lessees of the suit land till the crop of 'Kharif 1998 and they could not be ejected therefrom against the provisions of the lease deed before the expiry of the period of lease. The former had also prayed for a permanent injunction restraining the latter from ejecting the former. The defendants of the suit, who are petitioners herein, had inter alia taken up a preliminary objection to the effect that the civil court had no jurisdiction to proceed in the matter. The learned trial judge framed as many as 9 issues from the pleadings of the parties, wherein issue No.5 is with regard to the jurisdiction of that court to entertain the suit. Upon an oral request by counsel for the parties that issue No.5 regarding jurisdiction of the civil court needed adjudication before recording evidence in the case whereupon the learned Civil Judge heard arguments on the aforesaid issue and by order dated 3.9.1979 held that civil court had jurisdiction and carried out further proceedings in the matter ana after recording evidence as produced by the parties decided other issues in favour of the plaintiffs of the suit and decreed their suit by judgment dated 10.10.1983. The petitioners herein, feeling aggrieved by the aforesaid judgment filed an appeal which was heard by Additional District Judge, Charsadda. The learned appellate court did not give any finding on issue No.5 and upheld the findings of the learned trial judge on other issues and dismissed the appeal by judgment dated 10.7.1984. The defendants of the suit still feeling aggrieved came up to this court with the petition in hand. 2. The learned counsel for the petitioners only challenged the finding of the learned lower court on issue No.5. It was contended by him that the plaintiffs of the suit had sought a declaration that they were lessees of the suit land under the defendants of the suit who are petitioners herein and essentially the matter in dispute between the parties was that of tenant and landlord and since the subject matter of the suit was agricultural land, so under clause (f) of the SECOND GROUP to sub-section (3) of Section 49 of the NWFP Tenancy Act, 1950 (hereinafter referred to as the Act), the suit was exclusively triable by a revenue court. 3. The perusal of the contents of the plaint of the respondent will clearly indicate that he and late Haji Fazal Muhammad had sought a declaration in their suit that they were lessees of the suit land under the petitioners herein and were not liable to ejectment before 'Kharif 1998. As such, the matter in dispute between both the parties was the interpretation of the terms and conditions of the ease deed. Since the jurisdiction of a court is to be determined by the averments made in the plaint, and the plaint clearly disclosed that the dispute between the parties was with regard to the lease deed and its terms and conditions, hence the court competent to adjudicate upon the suit was a revenue court under the I provisions of Section 49 of the Act as already specified. 4. No doubt, under Section 9 of the Code of Civil Procedure, 1908, civil courts have jurisdiction to try all suits of a civil nature excepting suits of hich [ cognizance is either expressly or impliedly barred. In other owrds wh^re-evcr the object of proceedings is the enforcement of civil rights, a civil coun nas jurisdiction to entertain the suit independently of any Statute unless its cognizance is either expressly or impliedly barred. It shall be seen that every dispute of a civil nature cannot create a civil right and a civil remedy. Although in the present suit the dispute between the parlies was about the terms and conditions of a lease deed with regard to agricultural land, yet it did not create a civil right because the matter in dispute was essentially that of a tenant and landlord of agricultural land. The adjudication of such a dispute is to be by a revenue court under section 49 of the Act. Hence there was an express bar for the civil court to entertain the said dispute as laid down in Section 9 of the Code of Civil Procedure. Revenue Courts have exclusive jurisdiction to determine matters pertaining to rent and tenancy rights in agricultural land. This is because revenue authorities arc better acquainted with such matters. 5. The suit of Haji Fazal Muhammad deceased and Wasim Gul respondent j herein was entcrtainable only by a revenue court and it was not regarding a | dispute of a civil nature within the purview of Section 9 of the Code of Civil I Procedure. Hence the civil court had no jurisdiction to adjudicate upon the suit as j it was exclusively triable by a revenue court. 6. The finding of the learned Civil Judge on issue No.5 is, therefore, set aside and the issue is decided in the negative. In view of the aforesaid finding on issue No.5, the revision petition is accepted, the impugned judgments of both the D learned lower courts are set aside. The plaint shall be returned to the plaintiffs of the suit for presentation to a court of competent jurisdiction. There shall, however, be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 7 PLJ 1992 Peshawar 7 [D.I. Khan Bench] Present: muhammad KALyar, J MUHAMMAD RAUF KHAN•-Petitioner Versus Mir SAHIB KHAN-Respoiident Civil Revision No.115 of 1990, accepted on 1.6.1991. NWFP Pre-emption Act, 1987 (X of 1987)-- —S.13 read with Section 32--Pre-emption-Suit for-Whether procedure for making Talb-i-Ishhad was in fact, adopted-Question of--Plaintiff-respondent has neither produced any acknowledgment due receipt nor postal receipt in evidence to show that he made Talb-i-Ishhad by sending notice to vendee-It has also not been proved that notice of Talb-i-Ishhad was sent within two weeks from date of knowledge or notice under Section 32 of Act—Plaintiff had knowledge of sale as mutation was entered on 19.6.1988 and notice of Talb-i- Ishhad dated 3.8.1988 was later than two weeks from date of knowledge-Held: Conclusion arrived at by lower courts that plaintiff-respondent had fulfilled legal requirements of Act, is not correct—Petition accepted. [Pp.ll&12]A.B.C&D S.Mastan AH Shah Zaidi, Advocate for Petitioner. MrAli GoharKhan, Advocate for Respondent. Date of hearing: 1.6.1991. judgment Mir Sahib Khan, plaintiff-respondent herein, pre-empted the sale of the suit land by the owners in favour of Muhammad Rauf Khan, defendant-petitioner herein, by instituting a pre-emption suit in the Court of Senior Civil Judge, Bannu. The sale was affected through mutation No.22472 attested on 30.9.1987. The area sold was 3 kanals 3 marlas for an amount of Rs.12600/-. Mir Sahib Khan, claimed superior right of pre-emption as being co-sharer, contiguous owner and participator in the amenities and appendages. He claimed to have made Talb-i- Ishhad and Talb-i-Muwathebat on 20.7.1988. 2. Muhammad Rauf Khan, contested the suit, inter alia,on the ground that the plaintiff-respondent before filing the pre-emption suit had not fulfilled the requirements of NWFP Pre-emption Act, 1987 (Act X of 1987) and that he having refused to purchase the land was estopped to bring the suit. From the pleadings of the parties the trial Court framed the following issues :-- 1. Whether the plaintiff has got a cause of action? 2. Whether the suit is within time? 3. Whether the plaintiff is estopped to bring the present suit? 4. Whether the suit is incompetent in its present form? 5. Whether the plaintiff has not come to the Court with clean hands? 6. Whether the plaintiff has not fulfilled the legal formalities according to the Pre-emption Act, 1987? 7. Whether the plaintiff has waived his right of pre-emption? 8. Whether the plaintiff has got superior right of pre-emption? 9. What is the market value of the suit land? 10. Whether the plaintiff is entitled to the decree as prayed for? 11. Relief? ADDITIONAL ISSUE. Whether ostensible price of Rs.12600/- as given in the impugned mutation has been fixed in good faith and actually paid? 2. The parties produced their evidence which they wished and then in the light of the evidence and arguments addressed, the learned trial Judge vide his judgment dated 26.3.1990 decided issue 1 and 10 in favour of the plaintiffrespondent and issues 3, 4, 5 and 7 against him. On issue No.6 the trial Court observed that notice dated 3.8.1988, copy Ex.P.W.2/1 witnessed by Kastoor Khan (PW.3) and Akbar Zaman (PW.4) supports the contention that the requirements of Section 13 of the NWFP Pre-emption Act, 1987 were fulfilled. The superior right of pre-emption was found proved and issue No.8 was decided in plaintiffsrespondents favour. The five years average was, accepted as giving the correct market price of the suit land at Rs.6775/-. Consequently vide judgment dated 26.3.1990 plaintiffs-respondents' suit was decreed on payment of Rs.6775/-. 3. The judgment and decree of the trial Court was assailed in appeal before the learned Additional District Judge Bannu who vide his judgment and decree dated 9.7.1990 concurred with the findings of the lower Court on almost all the issues and dismissed the appeal filed by the defendant-petitioner herein. He has now come in revision to this Court. 4. S. Mastan Ali Zaidi, Advocate for the petitioner contested the findings of the Courts below mainly on issue No.6. He argued that not only notice of Talb-i- Ishhad was not given within seven days from the date of knowledge as provided under sub-section (3) of Section 13 of the NWFP Pre-emption Act, 1987 but also that notice was not sent under the registered cover acknowledgment due. Learned counsel for the petitioner was of the view that non-compliance of the provisions of Section 13 of the Act extinguished the right of pre-emption of the plaintiffespondent. About the date of knowledge from which 7 days period for notice of Talb-i-Ishhad would commence, it was argued that date of knowledge from 20.7.1988 as mentioned in the plaint is not correct. Lastly learned counsel for the petitioner submitted that his client had agreed to transfer the land in favour of plaintiff-respondent prior to the institution of the suit and to that effect mutation No.22476 was entered. Although subsequently this mutation was rejected but the fact is proved that plaintiff-respondent had the knowledge of sale prior to 20.7.1988 and so the notice of Talb-i-Ishhad was not within time. 5. MrAli Gohar Khan, Advocate representing the plaintiff-respondent supported impugned judgments and decrees passed by the Courts below and argued that notice, dated 3.8.1988, witnessed by Kastoor Khan (PW.3) and Akbar » (PVV.4) was sent to the Pre-emptor Mir Sahib Khan within two weeks of 'he Liu,.;'_.ge of sale which according to him was 20th July, 1988, the date nu,i.' ; --"-cd in the plaint. 6. The crucial point involved in this revision petition is about the notice of Talb-i-hhhad. Section 13(1) of the NWFP pre-emption Act 1987 (Act X of 1987) provides that right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the manner stated therein. Section 13 of the Act is reproduced hereunder:-- "13. Demand of Prc-empt'on.--(l) The right of pre-emption of a person shall be extinguished unic>;: inch 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 1. "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-Khusumat" means demand by filing a suit. 2. When the fact of sale comes within the knowledge of a preemptor through any source, he shall make talb-i-muwathibat. (3) Where a pre-emptor has made talb-i-muwathibat under subsection (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 exercise the right of pre-emption: Provided that in area where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of talb-imuwathibat under subsection (2) and talb-i-isbhad under subsection (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption". The provisions contained in sub-section (3) of Section 13 show that soon after the pre-emptor has made a talb-e-mawathibat under subsection (2) but not later than two weeks from the date of notice under Section 32, or knowledge whichever may be earlier, he shall make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover, Acknowledgment due confirming his intention to exercise the right of pre-emption. It will, therefore, be seen that a procedure as to how Talb-i-ishlwd is required to be made is laid down in subsection (3) of Section 13 of the Act. It may be summarised thus :-- (j) Making talb-i-ishhad by sending a notice; (»') Notice to be sent within two weeks from the date of knowledge or notice under Section 32 which ever may be earlier. (iii) Notice shall be in writing; (iv) It shall be attested by two truthful witnesses; and (v) Notice of talb-i-ishhad shall be given under registered cover Acknowledgment due to the vendee. 7. Now let us see as to whether in the instant case procedure laid down for making Talb-i-ishhad has in fact been adopted or not. Learned counsel for the plaintiff-respondent argued that notice dated 3.8.1988 attested by two witnesses namely Kastoor Khan and Akbar Zaman was sent by post within 7 days from the date of knowledge. The argument does not find support from the record. The plaintiff-respondent has neither produced any Acknowledgment due receipt nor postal receipt in evidence to show that he made Talb-i-ishhad by sending notice to the vendee. Again this fact is not proved that notice of Talb-i-ishhad was sent within two weeks from the date of knowledge or notice under Section 32 of the Act, which-ever was earlier. The date of notice under Section 32 is not known while the date of knowledge of sale as mentioned in the plaint is 20.7.1988. This is not a correct date, for, there is a mutation No.22476 copy Ex: DW.1/1 on the record admittedly entered on 19.6.1988 whereby the defendant-petitioner had agreed to transfer the suit land to the plaintiff-respondent but the same was later on cancelled. This fact is admitted by the plaintiff-respondent in his statement in Court. This piece of evidence has not been considered by the Lower Courts which falsifies the assertion of the plaintiff-respondent that he came to know of the sale on the date mentioned in the plaint. He had the knowledge of sale as mutation No.22476 was entered on 19.6.1988. The notice of Talb-i-ishhad dated 3.8.1988, albiet not proved to have been sent to the defendant-petitioner yet it was later than two weeks from the date of knowledge of sale. The mere depositions of two witnesses were not fulfilling the requirements of law. Here I would like to point out that under Section 32 of the Act, the Registrar registering the sale deed and the revenue officer attesting the mutation of a sale are bound to give public notice in respect of such registration or attestation within two weeks of registration or attestation as the case may be. Section 32 reads as follows:-- "32. Notice.--(l) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of .such registration or attestation. (2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated; Provided that if the property is situated in a city, the notice shah 1 also be given through a newspaper having large circulation in such city. (3) The charges for the notice unde subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation". The aforesaid notice is necessary because under Section 13 (3) of the Act, two weeks period for making Talb-i-ishhad would commence from date of notice under Section 32 or from date of knowledge whichever is earlier. The revenue authorities are required to be informed of this provision of law. Learned counsel for the defendant-respondent (?) confronted with the situation as in hand, argued that since the witnesses were not cross-examined about the manner of notice, it would be presumed that the same was sent by a registered post. The argument is devoid of force, for, a heavy onus lay on the defendant-respondent (?) to have proved that the notice was sent under registered cover acknowledgment due. The presumption is not recognized by the Act. Lastly it was contended by the learned counsel for the plaintiff-respondent that the proviso to subsection (3) of Section 13 of the Act should help his client because the proof of sending notice of Talb-iishhad under registered cover acknowledgment due is not required in the area where postal facilities are not available. True to that extent benefit could be given to the defendant-respondent if he had claimed the said benefit. He had all along been asserting to have complied with the requirements of susbsection (3) of Section 13 of the Act and nowhere claimed that the area wherefrom he is hailing lacks postal facilities. 8. The conclusion arrived at by the lower Courts that plaintiff-respondent had fulfilled the legal requirements of the Act is not correct. The Courts in arriving at the conclusion have committed error of law calling for interference by this Court under Section 115 C.P.C. 9. In the result the impugned judgments and decrees of the Courts below are set aside and on acceptance of this revision petition, the suit of the plaintiffrespondent is dismissed with no order as to costs. One copy each of this judgment be sent to the Revenue Board, N.W.F.P. Peshawar and to the Commissioner, D.LKhan Division with reference to the observations made above in para 7. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 13 [D PLJ 1992 Peshawar 13 [D.I.Khan Bench] Present: MUHAMMAD khiyar, J MAROOF KHAN and 3 others-Petitioners versus DAMSAZ KHAN and 3 others-Respondents Civil Revision No. 22 of 1989, dismissed on 8.6.1991 () Abaleinent- —-Pre-emption-Suit for-Suit decreed but appeal was pending when new law came in-Whether appeal stood abated on promulgation of iJWFP Pre­ emption Act, 1987—Question of—It stands settled that cases pending before trial court on 31.7.1986 in which decrees were not yet passed, would lapse and those in which decrees were passed before that date, proceedings will be taken under repealed law—Held: Instant pre-emption suit having been decreed before 31.7.1986 by lower court and appeal being pending when new law came into force, suit or appeal would not abate. [P.17JA&B PLD 1990 Peshawar 21 over-ruled. PLJ 1989 Peshawar 53, and PLJ 1990 SC 395 rd. (ii) Concurrent findings-- —-Concurrent finding that transaction was sale--Challenge to-Whether concurrent findings of fact can be challenged under section 115 C.P.C.— Question of—Revisional powers are primarily intended for correcting errors made by subordinate courts in exercise of jurisdiction—Even erroneous decisions of facts are not revisablc except when same are based on no evidence or inadmissible evidence or are so perverse as to cause great injustice—Held: Concurrent finding of facts of two courts below that transaction is sale and not exchange, is based on correct appreciation of evidence calling foj no interference under Section 115 C.P.C.-Pclition dismissed. [P.19]C S.Zafar Abbas Zaidi, Advocate for Petitioners. Mr. Muhammad Iqbal Kundi, Advocate for Respondents. Dale of hearing: 18.5.1991. judgment This civil revision u/s 115 CPC calls in question the judgment and decree daled 27-11-1988 of the learned Additional District Judge Bannu dismissing the appeal fibd by the petitioners against the judgment and decree of the learned Civil Judge, Bennu dated 20-1-1986. 2. The facts in brief are that Muhammad Narif Khan, Mst. Khan.nin and Msl. Parwarjana co-owners in khasra No. 1180 measun:>g 15 kanals 15 i 'las situated in village Khujari Khas entered into sale and exchange transaction with Maroof-Khan, Qamar Zaman-and Qamar Ali petitioners herein. The two ladies, respondents No. 3 and 4 herein sold 1 kanals and 2 marlas out of shares in khasra No. 1180 to the petitioners vide mutation No. 15601 attested on 13-1-1983. Muhammad Nazif Khan their brother-respondent No. 2 herein exhanged 35/648 shares measuring 17 marlas out of the same khasra number with petitioners 1 to 3 herein and obtained from them 17 marlas of land in khasra No. 1079 measuring 3 kanals 3 marlas and to that effect mutations No. 15599 and 15600 were attested on 13-1-1983. Damsaz Khan, plaintiff-respondent No. 1 herein instituted a suit in the Court of Senior Civil Judge Bennu. against the petitioner herein for possession of 1 kanal 19 marlas by pre-emption on the grounds of co-shareship, contiguous owner and participator in amenities and appendages. It was averred in the plaint that the entire transaction on the basis of the aforesaid three mutations was that of sale and that the transaction through mutation No. 15599 was given the colour of exchange to defeat his right of pre-emption. He challenged the sale amount of Rs. 15000/- as fictitious and prayed for the decree for possession of the land by pre-emption on payment of Rs. 5000/-. 3. Qamar Ali Khan, petitioner No. 4 herein, was not impleaded as party to the suit and subsequently on the application of Damsaz Khan plaintiff-respondent No. 1 herein he was impleaded as defendant in the suit. 4. The suit was contested by the defendants-petitioners mainly on the ground that the transaction vide mutation No. 15599 was that of exchange and not sale. Pleas of limitation and partial pre-emption were also raised. The suit land was claimed to have been purchased for Rs. 15000/-. 5. The trial Court framed the following issues from the pleadings of the parties:- 1. Whether the suit is partial and liable to be dismissed OPD? 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the plaintiff has a cause of action? OPP 4. Whether the suit is within time? OPP 5. Whether the plaintiff has performed an active role in (he sale and hence estopped to sue? OPD 6. Whether the suit of the plaintiff is bad for misjoinder of causes of action? OPD 7. Whether suit mutation No. 15599 attested on 26-12-1982 is sale and has been given the garb of exchange to defeat the pre-emptive rights of the plaintiff? 8. Whether the plaintiff has a superior right of pre-emption? OPP 9. Whctlier the sale consideration has been fixed in good faith and actually paid in suit mutation No. 15601 attested on 26-12-1982? OPD 10. What is the market value? OPP 11. Whether the plaintiff is entitled to the decree as prayed for? OPP 12. Relief? Note:-The date of attestation of mutations No. 15599, 15601 is wrongly mentioned as 26-12-1982. These mutations were attested on 13-1-1983. 6. The trial Court recorded evidence of the parties which they wished and then on the basis of evidence and arguments addressed decided issues 1, 2, 3 and 4 in plaintiffs' favour. The transaction was held to be that of sale and issue No. 7 was decided in the affirmative, plaintiffs' superior right was found to have been proved and issue No. 8 was decided in his favour. The price of land was fixed at Rs. 5048/-on the basis of five yearly average. The suit was decreed in favour of plaintiff-respondent No. 1 vide judgment dated 20-1-1986. 7. Dis-salisficd from the aforesaid judgment and decree of the trial Court, the defendants-petitioners herein filed an appeal before the learned District Judge, Bannu. During the pendency of appeal, NWFP Pre-emption Act, 1987 was enforced on 26-4-1987. The learned District Judge vide judgment dated 5-9-1987 accepted the appeal and dismissed the suit under section 35 (3) of the Act ibid. Damsaz Khan plaintiff-respondent No. 1 felt aggrieved and filed a revision petition which came up for hearing before Muhammad Ishaq Khan (Judge) as he then was, who vide judgment dated 18-4-1988 accepted the revision, set aside the judgment of the appellate Court and remanded the case to the Court for deciding appeal on merits. In doing so reliance was placed on the judgment recorded by Justice Fazal Ilhai Khan in C.R.No. 42/87 (Sultan Ali. Vs. Muqaddar Shah), wherein it is held that rights and privileges accrued to the vendee before the new law could not be taken away retrospectively. After remand, the issues raised before the learned Additional District Judge Bannu were about the nature of transaction and that of imitation. On the nature of transaction, the learned Additonal District Judge concurred with the finding of the trial Court that the transaction was of exchange and not of sale. On the issue of limitation, learned Additional District Judge held that since plaintiff-respondent No. 1 had submitted application on 3-3-1984 for impleadment of Qamar Ali Khan as defendant in the suit which was accepted on 31-3-1984 therefore the suit was within time and was not bad for partial pre-emption. On the basis of these findings, the learned Appellate Court vide judgment dated 27-11-1988 dismissed the appeal. The defendant-petitioners have now come in revision assailing the judgments and decrees of I he Courts below. 8. S. Zafar Abbas Zaidi, Advocate for the defendants-petitioners before addressing arguments on merits of the case raised a law point that appeal after the remand stood abated under the provisions of sub-section (3) of section 35 of the NWFP Pre-emption Act 1987 (Act X of 1987). It was contended by him that since the judgments and decrees passed by the Courts below had not become final as provided under sub-section (2) of section 35 of the Act and appeal was pending in the Appellate Court, therefore, it lapsed under sub-section (3) of section 35 of the Act. 9. Mr. Muhammad Iqbal Khan Kundi, learned counsel for the respondents in reply referred to the case of Sardar Ali (PLJ 1988 SC 224) to meet the legal objection raised by the learned counsel for the petitioner. 10. In the case of Kundal Khan. Vs. Agha Jan (P L D 1990 Peshawar 21) similar point as raised in this revision is discussed, it has been held as under:- "In sub-section (3) of section 35 of the Pre-emption Act 1937 it is provided that all other cases and appeals not covered undei sub-section (2) and instituted under the Act XIV of 1950 pending'before a Court shall lapse and suits of prc-emptors shall stand dismissed except those in which right of pre-emption is claimed under the provisions of Act X of 1987. Again the words "cases" and "appeals" have been inserted in this sub-section and they have been held as abated except those in which the right of pre-emption is claimed on the grounds mentioned in section 6 of the Pre-emption Act, 1987." The rule laid down in Kundal Khan's case has not been approved by the Supreme Court in Civil Appeal No. 103 of 1984 titled Jehandad Klian. Vs. Raza Muhammad Kiian decided on 30-10-1990. The relevant observations made on that behalf are as follows:- "Anothcr judgment of the Peshawar High Court has been brought to our notice in another case. It is Kundal Khan..Versus..Agha Jan (PLD 1990 Peshawar 21). This, it seems, was rendered by the said Court during the period that there was some conflict of authority as noted above, in the Supreme Court judgments; and this judgment by the Peshawar High Court was rendered to follow the then judgment in the case of Ahmad..Vs.Abdul Aziz (PLJ 1989 SC 574); which remained in the field during that period. But in the meanwhile as already mentioned the original position having been restored in so far as the present appeal is concerned, the judgment which would govern it is in the case of Mst. Lobia Jan..Vs..Roghan Shah (PLJ 1989 Peshawar 53) which was upheld and affirmed in the subsequent two cascs-Haji Abdul Hakim and Mst. Safia Begum." It, therefore, follows that now the case of Mst. Lobia Jan will govern the field. While dealing with the provisions of section 35 of the Act in Mst. Lobia Jan's case, it was held as unden- "Scction 35 of the Act X of 1987 deals with the pending cases and appeals filed line!.'' '•}-..: 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 were to lapse and suits of the pre-emptors were to be dismissed except those hi which right of pre-emption is claimed under the provisions of this Act." 11. Thus the matter now stands settled, at least for the time being. The cases pending before the trial Court on 31-7-1986 in which decrees were not yet passed would lapse and those in which decrees were passed, before 31-7-1986 the proceedings will be taken under the repealed law. The Shariat Appellate Bench of the Supreme Court in Suo Moto Shariat Review petition No. 1-R of 1989 (PLJ 1990 SC 395) has held that after 31-7-1986 requirements of talabs are the sine- A qua-non for filing of the pre-emption suits. The august Supreme Court in the case of Muhammad Yaseen..Vs..Khan Muhammad (P L D 1990 SC 1060) has observed that there was no need to refer to any other judgment on the subject because the judgment dated 26-5-1990 passed in Suo Moto Shariat Review Petition holds the field. The same view has been taken by the Supreme Court in the case of Mubarik Khan..Vs.Ali Rehman (1991 S.C.M.R. 470). 12. Article 189 of the Constitution of Islamic Republic of Pakistan 1973 makes the decision of the Supreme Court binding on all other Courts in Pakistan. Article 189 reads as unden- "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 Pakistan." The decision in Suo Moto Shariat Review petition followed by the Supreme Court is, therefore binding on all other Courts in Pakistan. The above, in my B opinion, provides answer to the arguments of the learned counsel for the petitioner. The instant pre-emption suit was decreed before 31-7-1986 by the lower Court and the mere fact that appeal was pending when the new law came into force would not abate the suit, or appeal. 13. On factual aspect of the case, learned counsel for the petitioners contended that the exchange is a legal device permissible under the law and the mere fact that the possession of the lands was not delivered the transaction will not become sale. Learned counsel for the petitioner further contended that it was for the plaintiff-respondent No. 1 to prove that transaction was that of sale and not exchange. In his opinion the suit was bad for partial pre-emption and was also time barred in as much as Qamar Ali one of the vendors was impleaded as party to the suit after the period of limitation prescribed for pre-emption suits. In support of his aforesaid contentions following case law was cited. 1. 1972 S.C.M.R. 649, 2. PLD 1983 Peshawar 13 & 205, 3. PLD 1984 Peshawar 166, 4. PLD 1986 Peshawar 109, 5. 1990 C.L.C. 1679 and 6. PLJ 1982 S.C. 163. 14. Learned counsel for the respondents on the contrary supported the judgments and decrees passed by the lower Courts and argued that the same are based on the correct appreciation of evidence requiring no interference in revision. 15. Section 4 of the N.W.F.P. Pre-emption Act, 1950 empowers the Courts to declare an alienation purporting to be other then a sale as a sale. The Courts have been doing so in view of the facts and circumstances of each case. In the instant case the two Courts have arrived at the concurrent finding of fact that he transaction in dispute is a sale. In revision u/s 115 CPC, the High Court will interfere only if it is shown that the Courts have failed to exercise jurisdiction vested in them by law or exercised jurisdiction not so vested or in the exercise o jurisdiction have committed illegalities or material irregularities, or that the findings arrived at are the result of mis-reading or non-reading of evidence. There is no such thing as above in this case. I have found that the evidence consists of the statements of the parties, and nothing more. The two Courts are of the view that the transaction on the basis of mutation No. 15599 was part of the sale transaction because mutations No. 15600 and 15601 were attested on the same day. The view taken is in accord with the evidence. The transaction in favour of the petitioners was made by the brothers and sisters, and in the facts and circumstances of the case it appears to be a disguise rather than a device. Resort to device is permissible under the law but not the disguise. In the case PLD 1960 Lahore 461 relied in Amir Nawaz Klian, Vs. Nawab fQwn (PLD 1983 Peshawar 205) it is held thal:- "There is a difference between a device and disguise. A sale, for instance. may be disguised as a mortgage or Hiba-Bil-Iwaz. When this is done. evidence can be led to reveal the real nature of the transaction by takine off the mask from the face of the transaction, so that the Court may discover whether the right of pre-emption has been successfully eluded or not. This, however, does not mean that a legitimate device becomes a disguise merely because the object is to defeat the right of pre-emption. The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner reality. In a device, the appearance is not false but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false." 16. The conclusion therefore is that the scheme or design should always be real and not false. The facts and circumstances of the case are such that no other conclusion can be arrived at except the one arrived at by the courts below. Since the transferor has not appeared as a witness the presumption would be that he was not supporting the defendants-petitioners. The case law cited by the learned council for the petitioner is distinguishable in view of the facts of the present case. In Kanwal Vs Fateh Khan (PLD 1983 SC 53) it is held that the revisional powers are primarily intended for correcting errors made by the subordinate Courts in exercise of jurisdiction and that even erroneous decisions of facts are not revisable except when the same are based on no evidence or inadmissible evidence or are so perverse as to cause great injustice. This dictum in Kanwal Nain's case was followed in Sheikh Muhammad Vs Asmat Sultana (1989 S.C.M.R. 34). I am, therefore, of the view that the concurrent findings of facts of the two Courts below that the transaction is- a sale and not exchange is based on correct appreciation of evidence calling for no interference under section 115 CPC. Same can be said about the concurrent findings of facts and law of the two Courts on issue of limitation and partial pre-emption. Qamar Ali Khan, defendant-petitioner No. 4 herein was no doubt arrayed as defendant after one year of the institution of the suit, but plaintiff-respondent No. 1 should not suffer for the act of the Court because he submitted application for impleadment of Qamar Ali within time. 17. For the foregoing reasons this revision petition being devoid of any merit is. therefore, dismissed. Parties to bear their own costs. MBO (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawar 22 (DB) [Abbottabad Bench] PLJ 1992 Peshawar 22 (DB) [Abbottabad Bench] Present: waij muhammad khan and mahbub ali khan, JJ ASiM SIDDIOUE-Petitioner versus PRINCIPAL, AYUB MEDICAL COLLEGE, ABBOTTABAD, and another- Respondents Writ Petition No. 17 of 1990, accepted on 10.9.1991. Educational Institutions- —Student of Medical College-Striking off name of-Challenge to--It is an admitted fact that petitioner, after having been sent on medical leave by College Principal, had been getting fresh admission to 1st year MBBS Class on start of every new session—After his illness, he rejoined college and passed 1 st year MBBS class examination with distinction—He was promoted to 2nd year and dues upto 17.3.1990 were also received from him-His admission in 1985 was on open merit—College authorities allowed him leave upto 29.4.1989 for treatment-Petitioner had no doubt exhausted his four chances and was no more eligible to continue studies in college in ordinary course but this had happened for reasons beyond his control-Held: Impugned letter striking off name of petitioner from college rolls is corum-non-judice, void, without lawful authority and of no legal effect. [Pp,24,25&26]A,B,C,D&E Mr. Abdullah Jan Mirza and Qazi Muhammad Shahryar, Advocates for Petitioner. Sardar Ghulam Mustafa Awan, Advocate for Respondents. Date of hearing: 10.9.1991 judgment Mahbub Ali Khan, J.--In the instant petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Asim Siddique an Exstudent of Ayub Medical College. Abbottabad has asked for a declaration that letter N 7 o. F.6-10/90 "SAS'AMC/2308-13 dated 21.3.1990 issued by the Principal of the said College. utierirn th. name of the applicant has been struck off from the College rolls is void. con.in-non-}iidicc. without lawful authority and of no leeal effect. The petitioner has further prayed that respondent No. 1, i.e., Principal, Ayub Medical College may be directed to allow him to continue his studies as a regular student 2nd year MBBS Class in the College. 2. The record indicates that Asim Siddique obtained admission in 1st Year MBBS Class of Ayub Medical College. Abbottabad in the year 1985 on merit basis. He started attending his class when in the meanwhile the petitioner fell ill and his disease was diagnosed as G.B. Symdromc. He remained on leave for medical treatment till 29.4.1989. However, the petitioner on the start of every new session sought admission in 1st Year MBBS Class of the College. He then, after having some relief from his ailment, re-joined the College and passed 1st Year MBBS Examination with distinction. The petitioner secured position amongst the 35 top students in the class of 120. He was thereafter promoted to 2nd Year MBBS Class but restrained to take part in the First Professional Examination. Asim Siddique however, paid college dues etc. upto 17.3.1990. The Principal of the College on 22.10.1989 made a reference to the Pakistan Medical and Dental Council, i.e, respondent No. 2 for advice, as to whether the petitioner was eligible to continue studies in the College in view of his failing to avail four chances to clear 1st Professional MBBS Examination. On the receipt of the reply of respondent No. 2 on 10.3.1990 respondent No. 1 ordered for the striking off the name of Asim Siddique from the College rolls with immediate effect. 3. Annexure 'C is the letter dated 22.10.1989 written by respondent No. 1 to the Secretary, Pakistan Medical & Dental Council, Islamabad on the prolonged illness of Asim Siddique. This letter shows that Asim Siddique was admitted to 1 st Year MBBS Class in 1985 and soon after his joining of the College he fell ill from G.B. Symdrome and remained on medical leave upto 29.4.1989. In his letter the Principal has admitted that the petitioner had been given fresh admission in MBBS Class on the start of every new session. A reference was, therefore, made to the Council to take advice, as to whether Mr. Asim Siddique was eligible to continue his education in the College wherein he had already exhausted four years. Annexure 'D' is the reply made by the Pakistan Medical & Dental Council to respondent No. 1 on 10.3.1990. The Council considered the matter in its 76 th Session held on 31st January & 1st Feb: 1990 at Karachi and decided as under:- "The Council considered letter No. F.6-10/89/SCS/AMC/13576; dated 22nd October, 1989, received from the Principal, Ayub Medical College , Abbottabad. Some of the members of the Council were of the opinion that if the 1 candidate could not appear into the examination which was beyond his control, his case be considered sympathetically. However, if he was absent due to prolonged illness which was of such nature that was not curable and absence will continue no purpose would be served by granting one additional chance. Therefore, the Council felt that the present Regulations of four chances availed or unavailed may be strictly adhered to and the competent authority of the College and University may take necessary action accordingly". 4. It is an admitted fact that the petitioner after having been sent on medical leave by the College Principal had been getting fresh admission to 1st Year MBBS Class on the start of every new session. After his admission in 1st Year MBBS in October, 1985 he got ailment from G.B. Symdrome and remained on medical leave with permission of the College Authorities till 29.4.1989. Thereafter he rejoined the college and passed 1st Year MBBS Class examination with distinction. He was not only promoted to the 2nd Year MBBS Class but the College Authorities also received from him dues etc. upto 17.3.1990. 5. We have been led through the prospectus of the Ayub Medical College for the session 1989-90. At page 17 of this prospectus we find rules 10 and 14 on the Admission Policy. It would be advisable to reproduce below the text of these rules:- "10. Only candidates who are declared medically fit by the College Medical Board shall be eligible for admission." "14. No student shall be re-admitted in MBBS Class who discontinues his/her studies for 2 years or more consecutively except on medical grounds." " In the language of rule 10 we see that Asim Siddique was free from all diseases when he got admission in 1st Year MBBS Class in the College in October, 1985. There is no denial that his admission was on open merit. It cannot be also now disputed in the light of the language of rule 10 as aforesaid, that when Asim Siddique thereafter sought fresh admission to 1st Year MBBS Class on the start of every new session he was found medically fit. The petitioner never did discontinue his studies but for health reasons. The College Authorities allowed him leave upto 29.4.1989 for treatment of his disease. He passed 1st Year MBBS Class with distinction and paid college dues etc. upto March, 1990. 6. Note (ii) of Regulation No. 4 (i) of the Pakistan Medical & Dental Council, Islamabad speaks on the conduct of First Professional MBBS Examination which reads as unden- "Any student who fails to clear First Professional MBBS Examination in four chances availed or unavailed shall cease to be eligible for further medical/dental education in Pakistan". Asim Siddique had no doubt exhausted his four chances and was no more eligible to continue studies in the College in the ordinary course but in the peculiar back ground of his case we see that this had happened for reasons beyond his control. He could not avail four chances provided for first Professional MBBS Examination because of illness for which he duly obtained leave from the College Authorities. The Pakistan Medical & Dental Council has taken into consideration this aspect of the matter and some of the members were of the opinion that if a candidate could not appear into the examination for reasons beyond his control, his case was to be considered sympathetically. 7. From the perusal of Note (ii) of Regulation 4(i) as reproduced before it clearly follows that only that student who fails to clear First Professional MBBS Examination in four chances availed shall cease to be eligible for further medical/dental education in Pakistan or who has intentionally avoided to take part in the examinations held during the prescribed period of four chances and did not avail the concession. This rule cannot be interpreted in the manner, that under all circumstances which may be even beyond the control of a student, he has to avail the four chances provided for the examination. This has been further made clear by rule 14 in the prospectus which states that no student shall be re-admitted in MBBS Class who discontinues his/her studies for 2 years or more consecutively except on medical grounds. 8. In this view of the matter which we take, we would be pleased to issue a writ and declare that the impugned letter No. F.6-10/90/SAS/AMC/2308-13 dated 21.3.1990 of the respondent No. 1 relating to the striking off the name of Asim Siddique from the College rolls is void, contm-non-jitdice, without lawful authority and of no legal effect and the petitioner would continue his studies as a regular student in 2nd Year MBBS Class in the Ayub Medical College as before. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 26 PLJ 1992 Peshawar 26 Present: MUHAMMAD BASHIR JEHANGIRI, J Mst. ABDARA-Petitioner versus SALIM KHAN etc-Respondents Civil Revision No. 414 of 1990, dismissed on 11.1.1992. Limitation Act, 1908 (IX of 1908)-- —Arts. 120 & 144 read with Section S-De-facto guardian of minor-Sale of land by-Challenge to-Whether suit was barred by limitation-Question of-It is settled proposition that under Muslim Law, mother is not a de-jure but defacto guardian of property of minor-She has got no authority of full disposition of a minor child's property-Sale of suit property belonging to petitioner, was void-Article 144 read with Section 8 of Act, prescribes a period of 12 years from time when possession of respondents became adverse to petitioner-Held: Finding of two courts below that mother of petitioner had validly sold property of petitioner is set aside, but as petitioner did not institute suil within twelve years after attaining majority, suit for declaration is barred under Article 120 and for possessary relief, it is barred under Article 144— Petition dismissed. [Pp.29&30]A,B&C 1991 SCMR 1566 rcl. Haji Z. Mahfuz fOian, Advocate for Petitioner. Haji M. Zaliir Shah, Advocate for Respondents. Date of hearing: 13.11.1991. judgment This civil revision has arisen from a suit by Mst. Abdara daughter of Muhammad Sher and wife of Shams-u-Zaman, brought against Salim Khan and others, defendants/respondents herein. The suit was for declaration of her title to and confirmation of her possession over her share in the land measuring 177 kanals 16 marlas bearing khasra Nos. 2437, 3437/1 and 2443, khata No. 281/549 and situate in village Yaqubi, Tchsil and District, Swabi or in the alternative for possession of her aforesaid share in the property of her father Muhammad Sher. The suit was dismissed by a learned Civil Judge, Swabi on the 16th of May, 1989. An appeal filed before the learned Addl. District Judge, Swabi was also dismissed on 28th June, 1990. Hence this revision petition. 2. The allegations on which the suit was founded were that she had inherited the disputed land from her father who died under the domain of Muslim Law. The plaintiff and the defendants succeeded to the estate as Muslim Law heirs and that she had been in possession of her share of the disputed property by receiving her share of produce from the defendants. About a year prior to the institution of her suit on 3-12-1983, she intended to alienate some of the land aforesaid and on inspection of the record it transpired that defendants Nos. 2 to 6 had alienated their share including the plaintiffs share in the disputed land to defendant No. 1 and thus on these wrong entries mutations Nos. 6029 and 6030 had been attested on behalf of defendants Nos. 2 to 7 in favour of defendant No. 1 on 7-10-1971, the propriety and validity of which had also been challenged in the suit. It has been further urged that the plaintiff was a 'pardah-nashin' lady who had neither sold any land nor she had received any slae consideration or thumb impressed the registered sale deed or any mutation or she had made any statement to any local Commissioner consenting to the attestation of registered sale deed or any mutation. 3. In defence, in two sets of written statements, it was contended on behalf of the. defendants that Mst. Zulekha, mother of the plaintiff, had by virtue of registered sale deed dated 13-10-1938 not only sold her own share but had also disposed of the share of the plaintiff. It was further averred that the sale aforesaid was successfully pre-empted by one Pardul, predecessor-in-interest of defendants Nos. 1 to 6, on whose death it devolved upon the last mentioned defendants. Defendants No. 2 to 6, it is maintained, in turn sold it to defendant No. 1 by mutations Nos. 6029 and 6030 attested on 7-10-1971 who was in possession thereof as a full-fledged owner. A few legal objections including that of limitation were raised on the contention that the plaintiffs suit having been instituted after 35 years of the said alienation was barred by limitation. The defendants by their exclusive possession as full owners over the property to the knowledge of the plaintiff for over 35 years have also acquired prescriptive ownership over it. 4. The pleadings of the parties gave rise to as many as 14 issues but for the purposes of this revision the findings of the two Courts below were mainly challenged on the following issues:- 1. Whether the suit is within time? 5. Whether the plaintiff is an owner in possession of the suit land? 8. Whether the mother of the plaintiff has sold the suit land to Shahdad and Sherdad, if so, its effects? 9. Whether the entries in the revenue record are wrong against facts and collusive and mutations Nos. 6029, 6030 attested on 7-10-1971 in the column of cultivation are void and ineffective against the rights of the plaintiff? The decision of the learned trial Judge on issue No. 1 was that the disputed land was sold on the basis of registered deed through her mother in the year 1938 when the palintiff was minor and the suit having been brought by her long after attaining majority was barred by limitation. He took up issues Nos. 5, 8 and 9 together and held against the plaintiff. The remaining issues were not pressed before the learned trial Judge by the learned counsel for the parties and were thus decided in the negative. On appeal the learned appellate Court affirmed these findings and dismissed the appeal. Hence this revision. 5. Haji Z. Mahfuz Khan, learned counsel for the petitioner, contended on the authority of Ghulam All and others vs. Mst. Ghulam Sarwar Naqvi and others (PLJ 1990 SC 139) that the sale deed having been registered in the year, 1938 against the petitioner, the impugned sale mutations attested on 7-10-1971, after the failure of the petitioner to challenge it for a long period, would not constitute such a conduct which would render the respondents' possession as adverse to her. It was next contended that Mst. Zulekha, mother of the petitioner, being not the guardian of the property of the petitioner could not have legally transferred the share of the petitioner to Shahdad and Shah Madar sons of Fazal Baig and Purdil. In this context, reliance was placed on the cases of: (1) Haji Abdullah JQian and others vs. Nisar Muhammad Klian and others (PLD 1965 SC 690) and (2) Mst. Subhan Bibi and another vs. Mst. Musarrat Jabeen and others (PLD 1969 Karachi 63). In the former authoritative pronouncement B.Z. Kaikaus, J., as his Lordship then was, re-affirmed the following dictum:-- "In Muhammaden law the only guardians of property of a minor are the father or the executor of the father or the person appointed as guardian by his will and the grand father or his executor or the person appointed as guardian by his will. The father's brother is nowhere in the list of guardians. In Imam Bandi vs. Din Mutsaddi (1) 451 A 73) the Privy Council had found the mother to be in the position of a stranger as regards the property of her children and the position of an uncle is no better than that of a mother for all who are not included among the guardians mentioned above are strangers. If the plaint does not mention that there was an agreement by the minors through a guardian it amounts to this that no legal agreement had been alleged so far as these two plaintiffs are concerned." In the latter case of Mst. Subhan Bibi, Dorab Patel, J., as his lordship then was, followed the dictum of the Privy Council in the case of Imam Bandi referred to above in the judgment of the Supreme Court in Abdullah Khan's case cited above and held that a de facto guardian of the children had no power to alienate the property and the partition was prima facie, illegal. 6. Haji Muhammad Zahir Shah, learned counsel for the respondents, on the other hand, invoked the provisions of section 6 of the Limitation Act, 1908 and contended that the onus was on the petitioner who sought to bring her case within time by virtue of disability provisions to prove that the suit was instituted within the period allowed by the Limitation Act and that having utterly failed to discharge this burden the suit was barred by time under Article 44 of the Limitation Act. According to the learned counsel, on 13-10-1938, when the registered sale deed regarding the suit land was executed by her mother the petitioner was 7 years of age and thus attained majority on 12-10-1949 and, therefore, declaration should have (been) sought within six years under Article 120 and possessory relief should have been claimed within 12 years either under Article 142 or under Article 144 of the Limitation Act and thus the suit brought on 3-12-1983 was hopelessly barred by time. In support of this proposition reference was made to Mahmood Khan vs. Muhammad Hasan and others (1991S C M R 1566). The learned counsel further urged that the suit was bad for non­ joinder of the original vendees, namely, Shah Madar and Shahdad or their successors-in-interest and further that the pre-emptive decree in favour of Purdil had not been challenged. Lastly, he submitted that the plea that original transaction of sale was void ab initio having not been taken up in the suit or in the appeal could not be agitated at the revisional stage. 7. This is a settled proposition that under the Muslim Law mother is not a de jure guardian. She is only a de facto guardian- a bare Custodian of property has got no authority of full disposition of a minor child's property. The irresistible conclusion, therefore, is that the sale of the suit property belonging to the petitioner by her mother Mst. Zulekha was void. Article 44 of Schedule I of the Limitation Act, 1908 prescribed a period of 3 years within which a ward has attained majority may sue to set aside transfer of his property made by his lawful guardian. Article that applies to a transfer by a de facto guardian, as is the case in hand, is Article 144 read with Section 8 of the Act, which prescribes a period of 12 years from the time when the possession of the respondents became adverse to the petitioner. In consequence, the finding of the two Courts below that mother of the petitioner has validly sold the property of the petitioner is set aside. It is obvious that she had no authority to sell the petitioner's property but since the petitioner has not filed the suit within 12 years i.e. from 12-10-1947 to 12-10-1959, and had instead filed the suit in the year 1983, therefore, the suit for declaration is barred under Artilce 120 and for possessory relief it is barred under Article 144 ibid. In this context, the latest authority of the Supreme Court in the case of Mahmood Khan cited by the learned counsel for the respondents is applicable to the case in hand. 8. It is, therefore, held that the petitioner was minor when the sale of her land was made by her mother in favour of the original vendees through a registered sale deed dated 13-10-1938 from whom it was successfully pre-empt d by the predecessor-in-interest of Purdil. He in turn had sold it to respondent No. 1 in the year 1971. Admittedly, the petitioner attained majority on 12-10-1947 while the present suit was brought on 3-12-1983. Thus the suit is clearly barred by time and the two Courts below have rightly held it so. 9. In view of what has been dicussed above, this petition has no merit, which is accordingly dismissed. There shall, however, be no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawar 30 [Abottabad Bench] PLJ 1992 Peshawar 30 [Abottabad Bench] Present: raza ahmad khan, JJ GHULAM SARWAR-Petitioner versus GHULAM RABBANI and 2 others-Respondents Civil Revision Nos. 123 and 124 of 1990, accepted on 27.1.1992. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX R.2 read with Order I Rule 3-Temporary injunction-Violation of~Punishment for contempt of court-Challenge to-Petitioner and respondent No.3 were sued and status quo order passed against them not by name but in their official capacities—Suit brought against official designations was bad in form and could not be entertained by trial Court-Neither temporary injunction could be issued nor in case of its alleged violation, an order could be passed against a person in his official capacity-Penalties involved in contempt proceedings being of criminal nature, proceedings are to be conducted in, as nearly as possible, in accordance with mode prescribed for dispensing justice in a criminal case failing which, order of conviction and sentence shall be regarded as un-tenable—Held: Impugned order being not in accordance with aforequoted principles of law, suffers from infirmities not curable in any manner-Petitions accepted. [Pp.33,34,35&36]A,B,C,D,E,F&G AIR 1960 Bombay 197, AIR 1962 Calcutta 283, PLD 1948 Lahore 8 and PLD 1952 Lahore 77 PLD 1971 Karachi 525 and PLD 1954 Peshawar 72 rel. Kliawaja Abdur Rashid, Advocate for Petitioner. Malik Muhammad Hwnayun, Advocate for Respondents. SyedAbdus Salam Sarwar, Advocate for Respondent No.2. Date of hearing: 17.12.1991. judgment By invoking the revisional jurisdiction of this Court, Ghulam Sarwar the petitioner herein has called into question the order of the learned Civil Judge, Mansehra dated 7.3.1989 whereby the Petitioner was convicted and sentenced to undergo two months S.I. for committing contempt of Court and respondent No.2 was ordered to deposit the compensation received by him within 15 days and which order was maintained by the learned District Judge, Mansehra vide his impugned order dated 29.11.1990. 2. Briefly stated the facts giving rise to this petition are that Ghulam Rabbani, respondent No.l herein, instituted a Civil Suit seeking a declaration that he is a co-sharer to the extent of 8/9th share in the land bearing khasra No.140 and measuring 46 kanals 3 marlas situated hi the revenue estate of Village Khushala on the ground that Mufti Mohammad Idris, who is a co-sharer to the extent of l/9th share in the unpartitioned but jointly owned land, is not entitled to sell the land to the petitioner or to the District Education Officer respondent No.3 herein; by giving out a Tatima without the consent of plaintiff-respondent No.l herein. Seeking the second relief in the suit was a prayer for the issuance of permanent injunction. An application lor issuance of temporary injunction was also submitted alongwith the plaint. 3. An ad-interim order of maintaining status-quo was, however, issued on 15.6.1988. The petitioner appeared not in person but through his Advocate Mr. Mohammad Asif on 29.6.1988 on which date the proceedings were adjourned for want of service on the rest of the defendants. It was on 16.7.1988 that respondent No.2 also appeared through Mr. Mohammad Asif Advocate and the Collector respondent No.3 herein applied for the vacation of the status-quo order. Due to (summer) vacation of the Presiding Officer, the case was taken up next on 13.9.1988. The mailer lingered on till 18.12.1988, when after hearing the arguments on the application while the learned trial Court allowed the application in terms of refraining respondent No.2 herein from alienating his land or receiving compensation therefor, the petitioner as well as respondent No.3 were ordered not to take possession of the -uit land and respondent No.4 was ordered not to pay any compensation. 4. It was vide the same order No.13 of the even date that the'trial Court took cognizance of the matter to the effect that the petitioner was issued a notice under Order 39 rule 2 C.P.C. and, finally on 7.3.1989, found the petitioner willfully and intentionally violating the orders of the Court and committed a co'ntempt of Court. Consequently he was convicted and awarded two months S.I. Respondent No.2, however, was ordered to deposit the compensation amount received by him in the Court within 15 days of the order. 5. The petitioner preferred an appeal against the aforesaid order before the learned District Judge, Mansehra who rejected the same vide his order dated 29.11.1990, but suspended the sentence under Section 151 C.P.C. on the ground that the petitioner intended to approach this Court. Hence the instant petition. 6. Another petition C.R.No.124/90 is filed by Mufti Mohammad Idris, the respondent No.2 herein. Since both these petitions arise out of the same case I would dispose them of by this single order. 7. It is contended on behalf of the petitioner that the impugned orders are without jurisdiction and of no legal effect and cannot be sustained in that the very suit was not competent and any order arising therefrom will have no legal entity. In the wake of this, the learned counsel submitted that under Order I Rule 3 C.P.C, only juristic persons can be sued as defendants and neither the Head Master, which Office the petitioner was then holding, nor D.E.O. (Males) Department of Education District Mansehra, defendant No.2 and 3 respectively in the plaint could be sued as visualized under Order I Rule 3 ibid. In such a situation in a suit not maintainable in its present form, any order, interlocutory or final, if passed, shall be without jurisdiction. He, therefore, submitted that on parity of reasoning the order under Order 39 Rule 2 can only be issued against a named person as equity acts inpersonum. In this regard he finally urged that the notice issued under Order 39 Rule 2 by a Court, being without jurisdiction, is as such void ab-initio and of no legal effect. 8. Supplementing his point of lack of jurisdiction, the learned Counsel contended that notification under Section 4 of the Land Acquisition Act having been issued on 20.3.1988, no suit could be instituted with respect to any action done (?) under the Act for the reason that the Land Acquisition Act while itself creates rights, it correspondingly provides remedies and the Civil Courts are not competent to interfere with the acquisition proceedings. Learned Counsel for the petitioner also alleged non-compliance of the provision of Section 52 of the Land Acquisition Act which would render the impugned orders a nullity. 9. He also contended with measure of vehemence that Order 39 Rule 2 is punitive provision of law and although no procedure is laid down to enforce it yet the procedure prescribed by the Code of Criminal Procedure is to be followed and, since the learned trial Court has failed to do so, both the impugned orders are untenable. 10. On factual premises the learned counsel for the petitoner argued that it was even before the institution of the suit on 15.6.1988 that in response to the notification under Section 4 of the Land Acquisition Act issued on 20.3.1988 respondent No.2 had already entered into an agreement with the petitioner to transfer his share of the land in the acquired khasra number at the rate of Rs.25000/- per kanal compensation as is evident from a copy of duly registered deed of the even date, as a consequence whereof a mutation No.1177 was entered and a Taliina was prepared. Therefore, it cannot be said that it was violative of the ad-interim injunction issued against the petitioner and the respondent No.2, the learned counsel concluded. 11. As against this it is submitted on behalf of the respondent No.l that the petitioner has admitted in his evidence recorded during the contempt proceedings that he had written the letter dated 15.8.1988 addressed to Acquisition Collector Mansehra which shows that the possession of the suit land duly demarcated by Patwari Halqa has been taken over and he had asked the Acquisition Collector to make the payment of compensation to respondent No.2. It is thus argued that having appeared through his counsel on 16.7.1988, he was presumed to have acquired the knowledge of the order of Status-quo. In this regard the learned counsel stated that his plea of ignorance was rightly repelled by the learned trial Court while convicting him for contempt of Court vide the impugned order. It was also submitted that the status-quo order has been extended from date to date in the presence of their learned counsel and as such they cannot be absolved of the liability of disobedience of the said order. Similarly, the payment of compensation was made to the respondent No.2 on 8.10.1988 which would show that the whole payment of the amount and the delivery of possession was violative of the order passed under Rule 2 of Order 39 C.P.C. He, therefore, urged that the impugned orders having been passed by the competent Courts of law after taking into consideration all the legal and factual aspects of the case are lawful and cannot be questioned in the revisional jurisdiction of this Court. 12. Syed Abdus Salam Sarwar Advocate who appeared on behalf of respondent No.2 in the instant petition, and on behalf of the petitioner in the connected revision, adopted the arguments of the learned counsel for the petitioner. 13. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas. 14. A reference to the record reveals that the petitioner and respondent No.3 were sued as per plaint filed by respondent No.l not by name but in their official capacities. Similarly, the learned trial Court passed an ad-interim order of Statusquo on 15.6.1988 and issued the same against the defendant, petitioner and the defendent-respondent No.3 in their official designations. It is an un-controverted roposition of law that a person with legal entity can only be sued as defendant in term of Order 1 Rule 3 C.P.C. inasmuch as when no Statute provides that a public person holding a public office can be sued with his official designation or what is called in legal parlance "corporate sole". The suit shall be bad in form and not maintainable. In a case of Indian jurisdiction Manahem. S.Yeshoova vs. Union of India (AIR 1960 Bumbay 197) it was held that:- "the Collector of Custom is not a legal entity but merely an office occupied by several persons from time to time as appointed by the authorities. On prima facie grounds a suit cannot be filed against any one who is not a legal entity". In another case reported as A.I.R. 1962 Calcutta 283 the rule laid down is:- "Where a Statute provides that a public officer shall be corporation sole and can be sued in his corporate "tame, the officer may be sued in that name. In the absence of such provision, the ordinary law applicable to suits must apply. There is no provision, either in the Calcutta Municipal Act, 1951 or in any other Statute that the person occupying the offices of the Commissioner, or the Chief Executive Officer and of the City Architect are corporation soles or that they or any of them may sue or be sued by their official titles. From time to time different persons occupy those offices. Therefore, under Order VII, rule 1 (c), if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons by their individual names. In the eye of the law the so-called Chief Executive Officer and City Architect, without the individual names of the persons occupying those posts given in the suit title, are not really on the record of the case". Similarly in the case reported as PLD 1971, Karachi.525, the view expressed in the aforesaid authorities was adopted and duly endorsed. 15. The learned counsel for the respondent could not offer any contra argument on this score and I feel that neither he could advance any against the proposition so consistently adhered to by the superior Courts. I have, therefore, no hesitation in holding that the suit of the respondent brought against the Official designations was bad in form and dould not be entertained by the learned trial Court. 16. The controversy thus seems to have narrowed down to the effect as to whether an order could be passed in any ancillary matter connected with or arising from a suit which is not maintainable in law. The answer cannot but be in negative. In fact I will go to the extent that in such a situation the petitioner could not be proceeded against for the contempt of Court proceedings, for, in my considered opinion, under Order 39 Rule 1 C.P.C., a temporary injunction could neither be issued to, nor in case of its alleged violation, an order could be passed against a person in his official capacity unless he was specifically named as such. In the case of Kliawaja Mohammad Sharif vs. Sahibzada Abdul Baqi (P.L.D. 1954 Peshawar 72), it is laid down:- "So far as the order under Order XXXIX Rule 2, C.P.C. against the Assistant Political Officer is concerned, I think that legally it cannot be passed at all. An injunction can only be issued against a named person. Equity acts inpersonwn, and if an injunction has got to be addressed to 1 any person, then it has to be addressed to that person by name. The Asstt: Political Officer is not an individual. It is merely a convenient nomenclature to describe the person, who is one of the officers, who manages the affairs of an Agency on behalf of the Agent to the Governor-General, and is directly responsible for the administration of the Agency. He has no legal existence at all. And it is held:- "I am consequently of the opinion that no interim or temporary injunction can be granted against the Assistant Political Officer." 17. Viewed in the perspective of the foregoing discourse, I am clear in my mind that besides the suit by itself being not maintainable, and the learned trial Court as such having no jurisdiction, the injunction ex-consequenti issued by the learned Civil Judge, Mansehra had no binding effect on the petitioner nor for that matter on respondent No.2. I sought further strength from a decision of Full Bench of Lahore High Court (PLD 1948 Lahore 8). In this case the Higl Court , in exercise of its powers under Section 115 C.P.C., had stayed the proceedings before the Election Commission and contempt proceedings were initiated for dis­ obedience of the order of the High Court. The majority of the learned Judges of the Bench, however, held that the order staying the proceedings before the Commission, being without jurisdiction, was void and that being so, no contempt of High Court was committed by disobeying it. 18. There is yet another aspect which needs to be attended to in that the penalties involved in contempt proceedings are of a criminal nature and accordingly have to be conducted in as nearly with the mode prescribed for dispensing justice in a criminal case as possible failing which, the order of conviction and sentence shall be regarded as un-tenable. It is held in case of Hatim vs. Shah Nazir (P.L.D. 1952 Lahore 77). "It is true that the present case lies in Civil jurisdiction but penalties involved are clearly of a criminal nature, and, notwithstanding that no court which feels called upon to impose these penalties should proceed as nearly as possible in the same manner as a criminal Court would proceed; in other words, that at the earliest opportunity, when it has formed the opinion that facts exist which may require the imposition of the penalties, the question or an issue which should embody all the elements of a charge under the criminal jurisdiction. The facts shoud be briefly stated, as they are alleged to stand against the defaulter, and there should be a precise reference to the law under which the Court proposes to punish him, unless he shows cause against such punishment." 19. A perusal of the impugned order of the learned trial Court reveals that it is not in accordance with the afore-quoted principle of law and as such suffers from such infirmities as cannot be cured in any manner. In this context of the matter it is not possible for me to up-hold the impugned orders of conviction and sentencing the petitioner. 20. Resultantly, I allow this petition, set aside the impugned orders of both the learned lower Courts. The petitioner stands acquitted. He is on bail and is discharged of the liability of the bond. 21. Similarly I allow the Revision Petition No.124/90 and set aside the impugned orders of the learned Civil Judge and the learned Addl: District Judge, Mansehra in so far as concerns the order directing the petitioner to return the compensation amount, he has received. In the circumstances of the case, the parties are directed to bear their own costs. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1992 Peshawar 36 [Abbottabad Bench] PLJ 1992 Peshawar 36 [Abbottabad Bench] Present: MIAN MUHAMMAD AJMAL, J AMIRULLAH and another-Petitioners Versus MUHAMMAD AYUB KHAN and 14 others-Respondents Civil Revision No.93 of 1991, dismissed on 29.1.1992. Execution of Decree- —Suit under Section 9 of Specific Relief Act-Decree passed in~Execution of decree-Objection that petitioners are tenants-at-will of decree holders and in a separate suit brought by them, status quo order having been passed, decree is not executable—Tenancy of tenants-at-will is terminable at will of landlords and they have no substantial right in property to defend their alleged possession against landlords-Subsequent suit appears to be collusive and a device to prolong possession-Decree passed by competent Court, was maintained by revisional Court-Held: Decree holders cannot be denied fruits of decree which was passed after hot contest-Held further: Courts below have properly exercised jurisdiction and impugned orders being neither arbitrary nor perverse, no exception can be taken thereto—Petition dismissed. jp8]A&B Alhaj Sardar Bahadur Klian, Advocate for Petitioners. Mr Abdul Khaliq Klian, Advocate for Respondents. Dates of hearing: 25 and 27.1.1992. judgment The petitioners through this revision petition have impugned the order dated 22.3.1988 of the learned Civil Judge 1st Class, Abbottabad whereby the application of Judgment-debtor Amirullah for staying the execution proceedings till the decision of a declaratory suit filed by him alongwith the others was rejected and thereafter in appeal before the Additional District Judge, Abbottabad, the same was maintained vide his order dated 20.5.1991. 2. Muhammad Ayub and others (landlord) filed a suit No.60/1 of 1984 under Section 9 of Specific Relief Act against Muhammad Hassan and Amirullah for possession of land measuring 34 kanals 18 marlas which was decreed hi favour of the plaintiffs by the Civil Judge 1st Class, Abbottabad on 6.3.1986. The defendants Muhammad Hassan etc. filed a revision in the Court of District Judge, Abbottabad, which was dismissed vide his order dated 17.5.1987. The decree holders then brought the execution proceedings against the judgment-debtors wherein an application was filed by the judgment-debtor that they have filed a suit No.121/1 of 1987 for declaration that successor-in-interest and legal heirs of Abdullah and Khairullah are tenants-at-will and that the revenue record be corrected accordingly and they should not be dispossessed from the suit land. Alongwith the plaint an application for issuance of stay order was also filed, whereupon Civil Judge, Abbottabad, vide his order dated 8.6.1987 ordered that status-quo be maintained till the next order. The execution Court as stated above dismissed the application for staying' the proceedings and thereafter their appeal also failed, hence this revision. 3. The learned counsel for the petitioner contended that since a suit by all the legal heirs of Abdullah and Khairullah has been filed in the court of Civil Judge, Abbottabad which is pending adjudication and on the application for issuance of stay order, the learned Civil Judge has ordered the maintenance of status-quo till further orders, therefore the executing court in view of the aforesaid order cannot proceed and execute the decree passed in the former suit No. 60/1 of 1984. He submitted that after the death of the predecessor-in-interest of the petitioners the tenancy has devolved upon all the legal heirs who have filed a suit and till its decision, status-quo has to be maintained. He relied on AIR 1930 Lahore 515. 4. The learned counsel for the responded herein contended that for the correction of entries in the revenue record, the petitioners who claim to be the tenants-at-will should have approached the Revenue Court for correction of t e alleged entries as in such matters Civil Courts have no jurisdiction and as such the suit is incompetent. The learned counsel contended that in view of the status-quo order the executing court is not barred to execute the decree passed in favour of the decree-holders. He submitted that the application of the petitioners was misconcieved and on misrepresentation of facts, the order of status-quo was obtained unilaterally. True facts were not brought to the notice of the learned court that execution proceedings are pending in the court of Civil Judge pertaining to the decree which was confirmed by the District Judge. Had the actual facts been brought to the notice of the Civil Judge that the execution proceedings of a decree is pending then in that event the Civil Judge could only issue a letter of request. He further contended that status-quo order was issued in the absence of the respondents and is still ad-interim and no date has been fixed for its confirmation or otherwise. He further contended that in revision petition this Court is only to see the legality and propriety of the order and can not go into the factual aspects of the case. Relies on PLD 1970 SC 139, PLD 1981 Lahore 340, PLD 1957 Lahore 1054 and PLD 1968 Baghdad-ul-Jadeed 7. 5. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. 6. In the former suit which was contested by Mohammad Hassan and Amirullah judgment-debtors they did not object that besides them there were other legal heirs who have now come forward and have brought a suit for declaration alongwith them. The former suit was decreed under Section 9 of the Specific Relief Act and that decree was maintained by the revisional court as well. After the execution proceedings, the suit for declaration was brought by the legal heirs of Khairullah and Abdullah who are allegedly tenants-at-will of the decreeholders. The tenancy of the tenants-at-will is terminable at the will of the land­ lord. Their possession if at all, is like licensees, and they have no substantial right in the property to defend their alleged possession against the land-lords. The subsequent suit by judgment debtors alongwith the others appears to be collusive and a device to prolong the litigation so as to create hurdles and to avail the land as long as possible. Since a decree has been passed in favour of the decree-holders by the competent court which has been maintained by the revisional court, (it) is to be executed in accordance with law. The status-quo order appears to have been obtained on concealing the true facts from the court concerned. If the court had been apprised that execution proceedings are pending then in that event the learned court could at the most issue a letter of request to the executing court. he decree holders cannot be denied the fruits of the decree which was passed after hot contest. 7. The learned courts below have properly exercised the jurisdiction and the impugned orders are neither arbitrary nor perverse, hence under limited revisional jurisdiction no exception can be teken thereto. The revision petition is without any substance and is dismissed accordingly with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawar 38(DB) [Abbottabad Bench] PLJ 1992 Peshawar 38(DB) [Abbottabad Bench] Present: MAHBUB ALI KHAN AND MIAN MUHAMMAD AJMAL, JJ Malik KHAN AFSAR-Petitioner versus THE STATE and 3 others-Respondents Writ Petition No.3 of 1990, accepted on 23.12.1991. Police Rules, 1934-- —Rr.23.4 and 23.9~Entry in Surveillance Register and opening of history sheet-Challenge to~It is conceded by A.A.G. as well as S.H.O. that there is no conviction of petitioner of any offence-It is strange that very person who has been awarded two commendation certificates by S.P. in 1988-89 coupled with cash award in recognition of his services in aid of Police followed by another cash award by Divisional Forest Officer besides his being an elected Chairman of Zakat Committee, has been put to such a degree of embarrasment by local police for no good reasons shown on record-No show cause notice was issued to petitioner by S.H.O. before making entry of his name in Surveillance Register and opening of history sheet-Held: Impugned action on part of respondent No.4 is without any lawful authority, is absolutely illegal and of no legal effect-Petition accepted. [Pp.40&41]A&B PLD 1971SC 55 and PLD 1974 SC 31 rel. Mr.Saeed Akhtar Khan, Advocate for Petitioner. MrMuhammad Aslam Khan, AA.G. for State. Date of heaing: 23.12.1991. judgment Mahbub AH Khan, J.-MaUk Khan Afsar a resident of Sector No.IV of Khalabat Township, Haripur Tehsil by way of this writ petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 takes exception to the legality of an order under which the entry of his name has been made in the Surveillance Register at Police Station, Haripur by respondent No.4 and his history sheet has been opened. He contends that these acts of the local police are without lawful authority and of no legal effect. 2. The petitioner claims himself a respectable person of his area, a landlord and an elected member of the local Zakat Committee. He further states that he has never been involved in any case of moral turpitude. Nevertheless he claims to have earned cash award and commendation certificates from the Superintendent of Police, Abbottabad for his efforts made in the prevention of anti-social activities in the Ilaqa and a cash award from the Divisional Forest Officer for pointing out the timber smugglers. But inspite of all this respondent No.4, i.e., the S.H.O. Police Station, Haripur without giving any notice to the petitioner and having no regard to his status in society placed his name hi the Surveillance Register of the Police Station and opened his history sheet. 3. To keep a constant watch on persons habitually addicted to crime the provisions for entering the names of such persons in the Surveillance Register and opening history sheet have been made available in Chapter XXIII of Police Rules, 1934. Rule 23.4(3) provides:— (3). In part II of such register may be entered at the discretion of the Superintendent:- (a) Persons who have been convicted twice, or more than twice, of offences mentioned in rule 27.29; (b) persons who are reasonably believed to be habitually offenders or receivers of stolen property whether they have been convicted or not; Similarly Rule 23.9 of the Police Rules reads as under:-- («) A history sheet, if one does not already east, shall be opened in Form 23.9 for every person whose name is entered in the Surveillance Register, except conditionally released convicts. (b) A history sheet may be opened by, or under the written orders of, a police (officer) not below the rank of Inspector for any person not entered in the Surveillance Register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons". 4." Mr.Saeed Akhtar Khan Advocate appearing on behalf of the petitioner argued that his client has never been convicted of offences mentioned in Chapter 12, 16, 17 and 18 of the Pakistan Penal Code read with Rule 27.29 of the Police Rules. He further stated that without giving a notice of show cause to the petitioner the S.H.O. chose to enter his name in the Surveillance Register and opened 'his history sheet in clear contravention of claus§ 3 to rule 23.5 and clause 4 to rule 23.9 which provide, that before entering the name of a person in the Surveillance Register under rule 23.4, a notice in writing is to be served on such person together with a statement of allegation requiring him to show cause either in writing or orally within a'period not less than 7 days and not more than 14 days as to why his name should not be entered in the said register. 5. We have been taken through a judgment of the Supreme Court of Pakistan reported in P.L.D. 1971 Supreme Court 55 wherein the Supreme Court has laid down the following law on the subject:-- "We are, therefore, of the view that whenever a history-sheet is opened under rule 23.9 of the Punjab Police Rules on the ground that the person concerned is reasonably believed to be habitually addicted to crime or to be an aider or abettor of other criminals, an opportunity of showing cause against the opening of the history sheet must be given to the person". It appears that after the pronouncement made by the Supreme Court in the case aforesaid clause (3) was added to rule 23.5 and clause (4) to rule 23.9 in the year 1971 by a notification. The Supreme Court again took the same view in the year 1974 in another case reported in P.L.D. 1974 Supreme Court 31 and laid down that whenever history sheet is opened under rule 23.9. opportunity of showing cause against the opening of the history sheet must be given to the person concerned. 6. The learned Assistant Advocate General when confronted with this situation conceded that he sees no conviction of the petitioner of any offence under Chapters 12, 16, 17 and 18 of the Pakistan Penal Code and the offences mentioned in Rule 27.29 of the Police Rules. This position has been also conceded by the S.H.O. himself in his written statement. It is strange that the very person who has been awarded two commendation certificates by Superintendent of Police of his District in the years 1988-89 coupled with some cash award in recognition of his services in aid of the police followed by another cash award of Rs.5000/- by the Divisional Forest Officer, Haripur for his help to the department in checking the transportation of illicit forest produce besides his being an elected Chairman of the Zakat Committee Khalabat Township has been put to such a degree of embarrasment by the local police for no good reasons shown on the record. 7. It is an admitted fact that petitioner has neither been issued any notice of show cause alongwith a statement of allegations either in writing or orally by the S.H.O. before making the entry of his name in the Surveillance Register and opening of history sheet. The S.H.O. thus not only violated the mandatory provisions of his own Police Rules but also the rule of natural justice which is presumed to be ingrafted into every law. The entry of the name of a person in the Surveillance Register and opening of history sheet is not an ordinary action on the part of the police. The constitution expressly restrains from taking any action detrimental to the life, liberty, body and reputation of any person save in accordance with law. We, in the circumstances, find that the impugned action on the part of respondent No.4 whereby he entered the name of the petitioner in the Surveillance Register of the police station and opened his history sheet is without any lawful authority, absolutely illegal and of no legal effect. It is accordingly set aside on the acceptance of this writ petition. Costs shall follow the event. (MBC) (Approved for reporting) „ Petition accepted.

PLJ 1992 Peshawar 41 (DB) PLJ 1992 Peshawar 41 (DB) [Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRI AND MAHBUB ALI KHAN, JJ MUHAMMAD NAZIR AFANDI-Petitioner versus INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and 3 others-­ Respondents Civil Revision No.144 of 1991, dismissed on 28.1.1992. Civil Procedure Code, 1908 (V of 1908)-- —O.VH R.10 read with Banking Companies (Recovery of Loans) Ordinance, 1979, Section 6(1) & (4)-Recovery of loan as arrears of land revenue-­ Declaratory suit against-Return of plaint for presentation before Special Court-Challenge to-Case of petitioner is that civil Court has jurisdiction to grant reliefs of declaration and permanent injunction-If civil court could grant relief, Special Court would be equally competent to do so under clause (a) of sub-sections (1) and (4) of Section 6 of Ordinance-Held: Petitioner admittedly being a borrower and respondent No.l being a banking company, Special Court constituted under Section 5 of Ordinance, would have exclusive jurisdiction to grant a declaration whether respondent No.l could or could not legally recover its dues as arrears of land revenue-Held further: Findings of Courts below that plaint should be returned to petitioner for filing it before Special Court, are unexceptionable. [Pp.46&47]A,B&C 1981 SCMR 143,1985 CLC 630 and PLD 1990 Peshawar 17 rel. Syed Sajjad Hussain Shah, Advocate for Petitioner. Malik Mahmood Akhtar, Advocate for Respondent No.l. Date of hearing: 23.11.1991. judgment Muhammad Bashir Jehangiri, J.-The petitioner has challenged in this revision petition the order of the learned District Judge, Mansehra dated 16.9.1991 whereby he affirmed the order of the learned Senior Civil Judge, Mansehra dated 3.6.1990 returning the plaint of the petitioner under Order VII, Rule 10, C.P.C. 2. The petitioner had brought a suit against the respondents for declaration that the proceedings under Section 81 of the Land Revenue Act, 1967, for recovery of dues of respondent No.l outstanding against the petitioner as arrears of land revenue were malaflde, without jurisdiction, void and ineffective against his rights particularly when the loan was duly secured through deposit of title eeds and mortgage deeds and further that no accounts had been settled between the parties. 3. The petitioner was advanced loan in 1985 by respondent No.l for setting up a Poultry Farm. It appears that he failed to pay the due instalments and, therefore, respondent No.l initiated proceedings against the petitioner for recovery of an amount of Rs.6,22,784/75 outstanding against him as arrears of land revenue and towards that end rspondent No.3 served a notice upon the petitioner. The grievance of the petitioner precisely is that loan being secured one and there being no settlement of accounts between the parties, respondent No.l could not legally recover from the petitioner a sum of Rs.6,22,784/75 alleged to be due as arrears of land revenue without affording him an opportunity to question the correctness of the said alleged liability and also on the grounds enumerated in para 10 of the plaint. Hence the suit for declaration and perpetual injunction. 4. Alongwith the plaint, the petitioner had filed an application for issuance of temporary injunction restraining the respondents from recovery of the amount in suit as arrears of land revenue till the disposal of his suit. 5. Respondent No.l, apart from resisting the suit by filing the written statement, also moved an application under Order VII, Rule 11, C.P.C., in the suit for rejection of the plaint on the grounds: (1) that plaint did not disclose any cause of action; (2) that the Court had no jurisdiction to entertain the suit for an action initiated under the Land Revenue Act, 1967 and; (3) that jurisdiction of the civil Court was barred under Section 6(4) of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter called as the Ordinance). This application was resisted. In the light of legal objections raised by respondent No.l the following preliminary issues were settled:-- 1. Whether this Court has got no jurisdiction? 2. Whether authority vests in the defendants to recover arrears of Bank loan as arrears of land revenue and the suit is incompetent? 3. Whether the suit is liable to rejection under Order 7, rule 11 CPC? The learned trial Judge after hearing the parties accepted the application and instead of rejecting the plaint he ordered its return under Order VII, Rule 10 C.P.C., for its presentation to the Special Court, Banking, which has the jurisdiction in the matter. On appeal, the learned District Judge affirmed this finding of the learned trial Court that the civil Court had no jurisdiction to entertain the suit brought by a borrower challenging his liability to pay the dues as arrears of land revenue and further that the Special Court constituted under the Ordinance had the power to grant or refuse the relief claimed in the suit. 6. Sayed Sajjad Hussain Shah, learned counsel for the petitioner, in support of this petition, raised before me the following contentions:-- (1) That both the learned lower Courts have not taken into consideration the averments made in the plaint which is the sole criterion for determination of the jurisdiction of civil Court and not the defence stated in the written statement in violation of legal principles hence committed gross illegality. This argument was based on the rule laid down in: (1) Mst. Zainab and others v. Fazal Dad and others (PLD 1966 (W.P) Lahore 1050), (2) Syed Inayat All Shah v. Province of Punjab (PLD 1978 Lahore 859) and (3) Hakim Salim Ahmad etc. v. Government of Sindli and others (1982 CLC 269). (2) That both the learned lower Courts have failed to consider that the petitioner had challenged the legality of notice issued without having given the opportunity of hearing and any show cause notice, which is the basic requirement of natural justice. (3) That the Revenue Authorities have no jurisdiction to set in motion the machinery provided under the West Pakistan Land Revenue Act, 1967 for realization of the dues as arrears of land revenue without having declared the dues as 'legal dues' and 'recoverable dues' and without having determined by the lawful authority that whether amount is due or not. In support of the last mentioned two propositions reliance was placed on: (1) Chief Commissioner, Karachi and another v. Mr.Dina Sohrab Katrak (PLD 1959 SC 45), (2) Abdul Latif v. The Government of West Pakistan and others (PLD 1962 SC 384), (3) Abdur Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671), (4) The Province of West Pakistan v. Muhammad Ayub Khuhro (PLD 1967 Karachi 673), (5) Abdul Hamid Klian v. Government of West Pakistan and others (PLD 1969 Peshawar 324), (6) Tariq Mohsin Siddiqui v. Province of Sindh and 4 others(PLD 1976 Karachi 728), (7) Messrs Pakistan Pipe and Construction Co. Ltd. v. City Mukhtiarkar and another (PLD 1984 Karachi 28), (8) Agriculture Development of Pakistan v. Sanaullah Khan and others (PLD 1988 SC 67) and (9) Haji Nabiullah and another v. Messrs Habib Bank Ltd. and 2 others (PLD 1990 Peshawar 17). 7. Malik Mehmood Akhtar, learned counsel representing respondent No.l, on the contrary, contended on the authorities of: (1) Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others (1981 SCMR 143), (2) Farooq All v. Banque Indosues and 3 others (1985 CLC 630) and (3) Emirates Bank International Limited v. Messrs Osman Brothers and 9 others (1990 MLD 1779) that jurisdiction of civil courts in the matter is barred under Section 6(4) of the Ordinance. 8. The ratio in the cases of Msl. Zainab, Syed Inayat AH Shah and Hakim Salim Ahmad, no doubt, is that the nature of a suit for the purposes of jurisdiction has to be decided on the basis of the averments in the plaint and not on any defence that may be taken up. This proposition is not attracted to the case in hand. The facts of these cases are quite different and have no relevance whatsoever to the case before me. In this context, a nice distinction was drawn in the case of Farooq Ali also cited above, by Saeeduzzaman Siddiqui, J., as his Lordship then was, and observed as under:- "In my humble view it is quite different to say that the suit is barred under some law than to contend that the jurisdiction of the Court to entertain the suit is barred under the law. In the first case the jurisdiction of the Court to entertain the proceedings may not be in question whereas in the latter case, even filing of the case before the Court is under challenge. Upon careful reading of Order VII, Rule 11 C.P.C., I am of the view that in order to vest the Court with the jurisdiction to reject a plaint under Clause (d) of Rule 11 of Order VII, C.P.C. the Court must possess initial jurisdiction to entertain the suit. If the jurisdiction of Court to entertain the proceedings is lacking inherently, then in my humble opinion, it could not reject the plaint and the only order which it could pass in these circumstances, is to return the plaint to plaintiff for presentation to the proper Court. I am quite clear in my mind that rejection of a plaint under Order VII, Rule 11 C.P.C. involves adjudication in some manner- with regard to the claim in suit which cannot be done by a Court which inherently lacked jurisdiction in the case". 9. In the precedents cited by the learned counsel for the plaintiff-petitioner the civil Courts were prima facie possessed of initial jurisdiction to entertain the suit, whereas in the case before me, the jurisdiction of the civil Courts is inherently lacking. With utmost respect, it is my considered opinion that the mere averments in the plaint would not confer jurisdiction on them where the civil Courts inherently lack it. The first contention of the learned counsel is thus not tenable. 10. There is no cavil with the propositions laid down in the chain of authorities cited by the learned counsel for the petitioner in support of his second and third contentions that (1) it is a principle of natural justice that no one should be dealt with to his material dis-advantage or deprived of his liberty or property without having an opportunity of being heard and making his defence and; (2) that before the operation of the machinery section for realization of the arrears, the authority concerned must decide whether there is an arrear due or not. The pivotal question, however, is that whether these propositions could at all be raised before the civil Courts notwithstanding the complete outster of their jurisdiction to entertain the proceedings. The answer would certainly be in the negative. The first and foremost question to be adhered to at the outset is whether the civil Courts can entertain the relief claimed by the petitioner in his suit. The relief precisely claimed is that the respondent-Bank was disentitled to recover its dues as arrears of land revenue on the grounds enumerated in para 10 of the plaint. The learned counsel for the respondent No.l has vociferously contended that jurisdiction of the civil Courts to entertain the present suit had been rightly held by the two Courts below to be barred under Section 6(4) of the Ordinance, as the suit was between a 'Borrower' and a 'Banking Company' and that it related to a 'loan' advanced by a Banking Company to a borrower. Conversely, the learned counsel for the petitioner urged that the subject-matter of the present revision is utside the scope of the Ordinance as the relief claimed in the suit could not be granted by a Special Court constituted under the Ordinance. In order to appreciate the respective contentions of the learned counsel for the parties, it would be appropriate to reproduce the provision of Section 6 of the Ordinance in order to find out if the reliefs claimed by the petitioner in the suit could be granted by the Special Court . It reads as under:- "6(1) A Special Court shall....(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), (b) ...................... (c) exercise and perform such other powers and functions as are, (or) may be conferred upon, or assigned to it by or under this Ordinance. 2 ........................... 4. No Court other than a Special Court shall have or exercise, any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court: and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court. 5 ........................ 11. The sole point thus surviving for determination is whether the declaration and perpetual injunction claimed by the petitioner could or could not be granted uner sub-section (1)(0) and (4) of Section 6 ante. In this context, I would again borrow the following observations from the case of Farooq Ali cited above:--' "A reading of Section 6(l)(a) will show that a Special Court while exercising civil jurisdiction in respect of a claim filed before it by Banking Company against the borrower or by a borrower against Banking Company in respect of or arising out of a loan shall have all powers vested in a civil Court under the Code of Civil Procedure, 1908. Section 9 of the C.P.C. confers jurisdiction on civil Court to try all suits of civil nature except those cognizance whereof is either expressly or impliedly barred. Therefore, I fail to see why a Special Court while dealing with a case which is cognizable by it under the provision of Ordinance XIX of 1979 cannot grant a relief which a civil Court could grant under Section 9 of the C.P.C. I am, therefore, of the view that the present suit is triable by a Special Court under Ordinance XIX of 1979. As the suit is cognizable by a Special Court the jurisdiction of all other Courts in respect thereof is barred under sub-section (4) of Section 6 of the Ordinance, XIX of 1979". 12. The case of the petitioner from the very outset is that civil Court has the jurisdiction to grant the reliefs claimed by him. In consequence, I am clear in my mind that if a civil Court could grant the relief, the Special Court would be equally competent to do it under clause (a) of sub-sections (1) and (4) of Section 6 of the Ordinance aforesaid. In arriving at this conclusion, 1 am further fortified by the dictum respectively of the Supreme Court, Karachi High Court and of this Court laid down in the cases of Industrial Development Bank of Pakistan v. Nadeem Flour Mills, Munir Ahmad Siddique v. Feroz Ahmad Siddiqui and Haji Nabiullah v. Habib Bank Limited all cited by the learned counsel for the respondent Bank. The petitioner being admittedly a borrower as defined in clause (b) and respondent No.l being a Banking Company as contemplated in clause (a) of Section 2 of the Ordinance, the Special Court constituted under Section 5 of the Ordinance would have the exclusive jurisdiction under sub-section (4) of Section 6 ibid to grant a declaration whether respondent No.l could or could not legally recover its dues! from the petitioner as arrears of land revenue. 13. In this view of the matter, while upholding the findings of the two Courts below that civil Court had no jurisdiction in this matter and that Special Court Banking was seized of the jurisdiction, the order of the learned trail Judge affirmed by the learned appellate Court that plaint should be returned to the plaintiff-petitioner for filing before the competent Special Court, is unexceptionable. This revision petition is, therefore, dismissed. Having regard to the peculiar nature of the controversy the parties are, however, left to bear theiri own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawer 47 (DB) PLJ 1992 Peshawer 47 (DB) [Abbottabad Bench] Present: MAHBUB ALI KHAN AND mian MUHAMMAD AlMAL, JJ MUSHTAQ HUSSAIN-Petitioner versus GOVERNMENT OF N W F P, THROUGH SECRETARY, REVENUE, and another—Respondents Writ Petition No. 83 of 1991, dismissed on 2.2.1992 Bank Guarantee- —Bank guarantee-Furnishing of-Undertaking for-Instead of furnishing bank guarantee, application filed for withdrawal of writ petition—Application for withdrawal of writ petition is only a device to avoid compliance of order to furnish bank guarantee-Petitioner has failed to honour his undertaking and appears to be in habit of defying court orders-Held: Petitioner cannot be permitted to abuse process of court and to make mockery of court orders time and again—Petition dismissed and officials concerned with acquisition proceedings ordered to be proceeded against for causing loss to Government. [Pp.49&50]A&B Mr. Abdullah Jan Mirza, Advocate for Petitioner. Date of hearing: 2.2.1992. judgment Mian Muhammad Ajnial, J--The petitioner herein, through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged the Notification No. 12384 Rev-I/75 dated 4.6.1991 of the Government of NWFP Revenue Department, Peshawar to be illegal, void, without lawful authority and of no legal consequence. 2. The Deputy Commissioner Mansehra respondent No. 2 herein, issued a Notification under Section 4 of the Land Acquisition Act on 13.11.1988 for the expansion of Tehsil Headquarter Hospital Balakot and thereafter a corrigendum Notification was issued on 28.3.1989 which also included Khasra No. 2573/2 allegedly owned by the petitioner and his brother. On the application of the petitioner the price of land was determined by negotiations, Consequently the land as prescribed in the corrigendum Notification was transferred to the Health Department through a registered deed dated 20.1.1990, (and) the petitioner and his brother were paid the compensation. Thereafter it revealed that the petitioner and his brother have received compensation for the land of Shamilat-e-Deh fraudulently in connivance with Acquisition staff and consequently a case was registered against them under Sections 419/420/468/471/403/109 PPC read with Section 5 (2) of the Prevention of Corruption Act vide FIR No. 65 dated 1.2.1990 and the petitioner was arrested. However, he was allowed interim bail on 14.3.1990 which was confirmed on 12.5.1990 by this Court. The petitioner was taken into custody by respondent No. 2 on 11.6.1991 in exercise of the powers conferred under the Notification impugned herein, and was released subsequently. 3. The learned counsel for the petitioner contended that the area measuring 13 kanals 16 marlas has been acquired from the petitioner and his brother as envisaged by the corrigendum notification. Its compensation as worked out at the rate of negotiated price i.e. 270000/-per kanal comes to Rs. 37, 26,000/-which they have received. He contended that no fraud has been committed by the petitioner and his brother; that the contract was entered into and executed through negotiation and the price was paid through Treasury Chalian. He further contended that the petitioner and his brother were the lawful owners of the land in dispute and therefore their title was not at all under shadow and they were entitled to receive the sale considerations in respect of the land sold by them. 4. We have gone through the comments of respondents wherein it has been averred that the petitioner and his brother Ilyas Hussain were not lawful owners of the, land measuring 13 kanals 16 marlas, bearing khasra No. 2573/2. Khata No. 1285/2131 of Jamabandi for the year 1966-67 revenue estate Baiakot shows that the area and khasra was 'shamilat-e-Deh'. The father of the petitioner was 'hissadar' in 'khana kasht' of Khasra No. 2573/2 which he transferred as gift in the name of his two sons i.e. Mushtaq Hussain petitioner and Ilyas Hussain in equal share vide mutation No. 5673 attested on 12.4.1975 which mutation was subjudice in suit No. 60/1 instituted on 12.3.1989, where the petitioner and his brother have made a statement through their counsel that they would not transfer the property through private negotiation. The respondents in their comments have also questioned the price fixed by negotiations and have stated that same is not based on genuine grounds. The petitioner and his brother were not the owners of land measuring 13 kanals 16 marlas and their title was under question in the Civil Court when they negotiated the deal with the acquiring department. Legally where the title is under shadow the party cannot enter into any valid transaction. As such the petitioner and his brother by concealing this fact have played fraud and forgery by showing themselves to be the absolute owners of the land in question and entering into the negotiations for the sale of it with the respondents. 5. This writ petition came up for hearing before the learned DB on 18.6.1991 and the learned counsel was heard in detail. The comments of respondents No. 1 and 2 were called for. On 8.12.1991 the petitioner made a statement in Court that he shall furnish Bank Guarantee in the sum of Rs.37, 26,000/-the total sum of money received by him and his brother Ilyas Hussain against the disputed transaction so that the writ petition may be admitted for hearing. He further stated that in case he failed to furnish Bank Guarantee within the time given by the Court, his writ petition may be dismissed. Consequently he was allowed to do the needful till 30.1.1992 and it was directed that the case be fixed for hearing in the first week of February, 1992. On 26.1.1992 the petitioner preferred an application (CM No. 21 of 1992) through counsel which was posted for hearing on 28.1.1992. The petitioner requested that he should be permitted to withdraw the writ petition as there are certain defects therein. On the said date notice to respondents was issued for a short date. To-day the case was fixed for hearing. 6. After hearing the learned counsel for the petitioner in detail and taking into consideration the available record of the case, we are of the view that the application to withdraw the writ petition is only a device to avoid the compliance of the order dated 8.12.1991 of this Court whereby in view of his statement he was directed to furnish Bank Guarantee in the sum of Rs. 37, 26,000/-by 30th January 1992. The learned counsel pressed the application for withdrawal of the writ petition which cannot be allowed in view of the unequivocal statement and undertaking of the petitioner that he would furnish Bank Guarantee equivalent to the amount which he and his brother have received with fraudulent means. The petitioner has failed to honour his undertaking by producing the Bank Guarantee within the stipulated period. The petitioner from his conduct appears to be in the habit of flouting and defying the court orders. He did not keep to his words made in the Civil Court in a civil suit No. 60/1 and in violation thereto he entered into the transaction and made hay by pocketing Rs. 37, 26,000/-and likewise hereto he attempted to softly back out from the commitment under the guise of application to withdraw the writ petition, for which he cannot be permitted to abuse the process of the Court and to make mockery of the Court orders time and again. As such this writ petition is dismissed in limine. C.M.No. 21/92 being frivolous is dismissed accordingly. 7. The officials who were associated with the acquisition proceedings and all those who have palyed any part in the transaction, appear to be equally g responsible for the loss caused to the Government. They all should be proceeded against for their mis-conduct and misdeeds for causing loss to the Government Treasury, in accordance with law. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawar 50 (DB) PLJ 1992 Peshawar 50 (DB) [Abbottabad Bench] Present: MAHBUB ALI KHAN AND MIAN MUHAMMAD AJMAL, JJ MUHAMMAD IQBAL and 3 others-Petitioners versus DEPUTY COMMISSIONER/D.M. MANSEHRA, and 3 others-Respondents Writ Petition No.9 of 1992, accepted on 28.1.1992 Preventive Detention— —-Detention of petitioner No.l for 3 months-Warrants of arrest and detention of other petitioner-Challenge to-Notification dated 27.2.1965 under Section 26 of West Pakistan Maintenance of Public Order Ordinance, 1960, provides that D.M. cannot pass an order under Section 3(1) of Ordinance for detention for a period of more than 30 days-D.M. had no authority to pass order of detention for period exceeding 30 days—No grounds of detention were served which is a clear contravention of Section 3(6) of Ordinance—No material on basis of which, impugned order was passed, has been produced-Order, in compliance whereof, warrants of arrest of petitioners 2 to 4 have been issued, has not been produced—Held: Impugned order for detention of petitioner No.l and warrants of arrest issued against petitioners 2 to 4 are without lawful authority and of no legal effect—Petition accepted with costs of Rs.10000/- to be paid by respondent No.l. [Pp.52&53]A,B,C,D,E&F PLJ 1992 Peshawar 19(DB) ref. Mr. Muhammad Akbar Khan Swati, Advocate for Petitioners. Mr. MuhammadAslam Khan, A.A.G. for Respondents. Date of hearing: 28.1.1992. judgment Mian Muhammad Ajmal, J.--The petitioners herein, through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have sought declaration that the detention order of the respondent No.l dated 30.11.1991 ordering the detention of petitioner No.l for a period of 3 months under Section 3(1) of the Maintenance of Public Order Ordinance, 1960 (hereinafter called the Ordinance) is without lawful authority and of no legal effect and that the warrants of arrest against petitioners 2 to 4 allegedly issued in compliance with the orders of respondent No.l under the Ordinance, are also without lawful authority and of no legal consequence. 2. The petitioner's case is that petitioner No.l has been arrested by the SHO Battal on 21.12.1991, in complaince with the aforesaid order of the Deputy Commissioner/District Magistrate Mansehra respondent No.l without assigning any reason and has been detained in District Jail Haripur, while against the other three petitioners warrants of arrest have been issued and the police is after them for their arrest, for which purpose several raids have been made at their houses by respondent No.3 with heavy police force. 3. The learned counsel for the petitioners contended that the petitioner No.l was not supplied a copy of the detention order nor the grounds on which the order has been based, which is a mandatory requirement under section 3(6) of the Ordinance. He further contended that the District Magistrate had no authority under the law to make an order of detention for more than a period of 30 days in view of the Notification No.3-104-H-SPI-I/64 issued by the Governor of West Pakistan under Section 26 of the Ordinance and published in the Official Gazette on 27.2.1965. He submitted that after the arrest of petitioner No.l and apprehended arrest of petitioners 2 to 4, they filed this writ petition, whereupon this Court vide its order dated 8.1.1992 directed respondent No.l to supply the copy of the order forthwith, consequently petitioner No.l was given a copy of the order of detention in jail while petitioners 2 to 4 till today have not been revealed about any such communications. He contended that the entire proceedings/order were illegal and without lawful authority and of no legal consequence. Relied on 1991 P.Cr.LJ. 338, and 1990 P.Cr.L.J. 1529 and 1534. 4. The learned Assistant Advocate Genera! informed us that he has not been furnished with any material, therefore, he is not in a position to produce any before the Court. The Prosecuting Inspector Mansehra and the S.H.O. Battal are also present in Court. The Prosecuting Inspector has informed us that there were certain cases against the petitioners for illicit cutting of timber from the forest, hence they were proceeded against under the Ordinance by the District Magistrate respondent No.l. The S.H.O. Battal respondent No.3 has informed us that warrants of arrest against the other three petitioners have been issued and attempts were made for their arrest but they avoided their arrest. When asked that has he got any order of detention or statement of allegations against the other petitioners, he replied in the negative. 5. We have given due consideration to the submissions of the learned counsel for the parties and have perused the available record of the case. 6. The impugned order of the District Magistrate, Mansehra directing the detention of petitioner No.l for 3 months is basically illegal and without lawful authority in view of the notification wherein it is provided that the District Magistrate cannot pass an order under sub-section (1) of section 3 of the said Ordinance exceeding 30 days. The same is reproduced hereunder:- "West Pakistan Maintenance of Public Order Ordinance, 1960 (Notification under Section 26) Gazette of West Pakistan, Extraordinary, 27th February, 1965 No.3-104-H-SPI-I/64. In exercise of the powers conferred on him by Section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960), the Governor of West Pakistan is pleased to direct that:- (a) the powers exercisable by Government under subsection (1) of Section 3 of the said Ordinance shall be exercised by all District Magistrates in West Pakistan subject to the condition that the period of detention under an order passed in exercise of the said powers shall not exceed 30 days; and (b) Government of West Pakistan Home Department Notification No.8113-H-SPI-I/57, dated the 22nd September 1961 and Notification No.3-3-H-SPI-I/61, dated the 14th September 1962 shall stand rescinded". It is clear from the above that the District Magistrate in exercise of the powers under sub-section (1) of Section 3 of the Ordinance had no authority to pass an order of detention exceeding 30 days. Besides this illegality the impugned order is defective and suffers from other legal infirmities as well. 7. The essential requirement of sub-section (6) of Section 3 of the Ordinance was not carried out by serving the grounds of detention on the detenu until to-day, which is a clear contravention of mandatory provision of section 3(6) of the Ordinance and resultantly renders the order of detention invalid, 8. The criminal cases, if any, the details of which were not provided by the prosecuting Inspector (inspite of the order of this Court to produce the entire record) can not be made the basis and ground for preventive detention under the Ordinance. 9. If the petitioners have faced the prosecution/trial on criminal charges, and have either been convicted or acquitted, then the same allegations can not be made the ground for ordering their detention under the preventive law, which would not only be illegal but also unconstitutional. 10. It is observed with regret that no materiai whatsoever was produced espite the order dated 14.1.1992 whereby respondents were directed to produce the record. The Assistant Advocate General rather showed his helplessness and frankly conceded that he has not been supplied any material by the respondents on the basis of which the impugned order Was passed. The presumption for not producing the record can be that there was none, as such the impugned order was not based on any material but the same seems to be mechanical and without any application of mind, which fact renders the detention order without any legal foundation. 11. As far as the case of petitioners 2 to 4 is concerned, what to speak of the statement of allegations, they have not even been supplied the orders of detention till to-day. In view of the statement of S.H.O Battal, respondent No.3 that warrants of arrest have been issued against the petitioners 2 to 4 in compliance with the orders of the District Magistrate which orders have not been made available, it seems that the same have been intentionally with-held for the reasons best known to the respondents but the police under the garb of so-called orders equipped with the warrants of arrest against the aforesaid petitioners. As no material has been produced before us although an opportunity was afforded to the respondents, we are constrained to hold that the impugned order is liable to be set-aside alongwith the warrants of arrest against the petitioners 2 to 4. 12. It would be pertinent to observe here that in writ petition No.127 of 1991 (Mohammad Rafiq alias Fiqa Vs. Tlie District Magistrate Mansehra), (reported as PLJ 1992 Peshawar 19(DB), similar order dated 1.10.1991 of the District Magistrate Mansehra was set-aside on 11.11.19^1 by this Court on almost alike reasons but it appears that no notice thererof has been taken. The case in hand gives a very deplorable picture wherein the citizen was deprived of liberty to which safeguards kave been provided by Article 10 of the Constitution of Islamic Republic of Pakistan. 13. Upshot of the above discussion is that we allow this writ petition declaring the order of respondent No.l dated 30.11.1991 for the detention of petitioner No.l and the warrants of arrest against petitioners 2 to 4 issued in ompliance with the orders of respondent No.l which are not before us, as without lawful authority and of no legal effect. The petitioner No.l is on bail, his bail bonds stand discharged. Since the powers conferred"'by law were not exercised in accordance thereto which could only be exercised judiciously within the frame work of the law itself and any violation thereto amounts to the abuse of the powers. In this case we find that powrs have not at all been judiciously exercised and were flagrantly abused, as such the writ petition is accepted with costs of Rs. 10,uOO/- to be paid by respondent No.l. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 54 (DB) [Abbotabad Bench] PLJ 1992 Peshawar 54 (DB) [Abbotabad Bench] Present: MAHBUB AH KHAN AND MIAN MUHAMMAD AJMAL KHAN, JJ HAJI ALI KHAN and 8 others-Appellants Versus ALLIED BANK OF PAKISTAN LTD.-Respondent R.FA. No. 29 of 1988, dismissed on 11.5.1992 Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-- —S. 12 read with Civil Procedure Code, 1908, Order XXXVII Rule 3-Recovery of loan-Suit for-Leave to appear and defend suit-Refusal of-Appeal against-Perusal of application for leave to defend suit does not disclose any plausible defence or suggest any triable issues—Contention that Bank could not charge penal interest, has some force as there is no clause or provision in any of documents providing imposition of penal interest in case of default—Contention that interest being against Injunctions of Islam, cannot be charged by banks, needs no further consideration in view of judicial pronouncements—Held: No illegality or substantial error apparent in procedure provided by Ordinance has been pointed out—Appeal dismissed with observation that penal interest cannot be charged by Bank. [Pp.57,58&59]A,B,C&D PLD 1987 Karachi 296 and PLD 1987 Karachi 612 rel. Mr. Ghulam Mustafa Awan, Advocate for Appellants. Mr. Rashidul Haq Qazi, Advocate for Respondent. Date of hearing: 8.3.1992. judgment Mian Muhammad Ajmal Khan, J.-- The appellants have impugned the judgment and decree of the learned Special Court, Banking Companies (Recovery of Loans) NWFP Peshawar dated 13.4.1988 vide which the appellants-defendants were refused leave to appear and defend the suit, with the result that the plaintiffrespondent Bank was granted decree as prayed for, with costs. 2. M/S Allied Bank of Pakistan Limited through its Manager brought a suit against the appellant-defendants under the Banking Companies (Recovery of Loans) Ordinance, 1979 for the recovery of Rs. 11,58,420/69 alongwith 14^ compound interest plus 2% penal interest till final recovery of the amount. 3. Vide letter No. CO/405/MKM dated 9.7.1975, the appellants were allowed loan of Rs. 5,00,000/- overdraft of Rs. l.OO.OOO/- and cash credit facility of Rs. 2,50,000/- against registered mortgage of machinery, land and property, by hypothecation of stock of chemicals and finished goods, and pledge of timber. Thereafter the appellants defendants applied for the grant of advance/fixed loan • Bum!! limit to the tune of Rs. 8,00,000/- (Eight Lacs) which was sanctioned on 18.3.1979 subject to the security for the said loan by the defendants in the following terms:-- (a) Registered Mortgage of property worth Rs. 8,50,000/- the Match Factory under the name and style of Haji Ali Khan and Company situate at Garhi Habibullah, Tehsil and District Mansehra; (b) Pledge of shares of M/S Khybcr Textile Mills Limited and Sind Alkalis Limited, worth Rs. Two Lacs Seventy thousand (2,70,000/-) alongwith transfer deeds duly verified. (c) Hypothecation of stock of raw material and finished goods of fire Matches, including stock in process in various departments of the Factory raw material including chemicals, card boards, woods, slint sheet, stored in the match factory building and stocks of finished goods stored in Match Factory building, worth Rs. 15,00,000/- at the relevant time. In view of the above mentioned sanction of the appellant defendants executed mortgage deed No. 542/1 on 19.11.1977 in favour of the plaintiffs and in addition to the above security hypothecated stock of raw materials and finished goods of fire matches, including stock in process in various departments of the factory the value of which was Rs. 15,00,000/-. The appellants-defendants also pledged the shares of Khyber Textile Mills Limited and Sind Alkalis Limited in favour of the plaintiff-respondents in order to secure the repayment of'the loans. Besides these securities, the appellants 1 to 4 had also executed Letter of Guarantee for Rs. 8,00,000/- (Eight Lacs) each on 14.11.1985 for repayment of the liabilities of the Bank. The appellants-defendants company availed and utilized the above loan but no efforts were made towards the adjustment of their loan liabilities, the repayment of Rs. 40.000/- per mensem as per terms of the sanction advice was not made inspite of the repeated notices and reminders. Jn November 1985 the appellants were asked to adjust the outstanding liability of Rs. 11,58,420/69 against which a Promissory Note dated 13.11.1985 was executed in favour of the Bank confirming the outstanding balance. The appellants-defendants inspite of several reminders and notices failed to repay the outstanding amount. Consequently the Bank under the circumstances filed a suit for the recovery of Rs. 11,58,420/69 alongwith the compound and penal interest until realization of the total amount. The appellants appeared before the Special Court and applied for leave to defend the suit on the grounds inter-alia that the personal Guarantee has become time barred, the suit is based on fictitious documents incorrect statement of account containing unauthorised entries, that the defendants have repaid the entire loan amount and the plaintiff cannot claim any amount in excess. However, the learned Special Court refused to grant leave to defend the suit and decreed the suit in favour of plaintiffs-respondent with costs. 4. The contention of the learned counsel for the appellants is that they have been making re-payment against the debts and that unauthorised charges like penal interest, taxi charges, telephone charges etc. have been made from the appellants which are against the terms of agreement entered between them. He submitted a statement of Accounts, according to which a sum of Rs. 4,21,742/- from the principal amount, a sum of Rs. 2,36,220/- from the interest and a sum of Rs. 20.883/- as insurance premium, the total of which comes to Rs. 6,78,745/- is admitted to be outstanding against the appellants. He further argued that interest being against the Injunctions of Islam is void and cannot be granted. 5. The learned counsel for the respondent contended that the Bank documents are genuine and no unauthorised or fake entries had been made therein. He further contended that the presumption of truth is attached to the Bank documents under the Bankers Books Evidence Act. He submitted that the appellants have been avoiding the re-payment of outstanding liabilities against them on one or the other pretext. He also produced the statement of penal interest for a period from 4.1.1983 to 30.3.1983 and 1.7.1983 to 30.9.1983 amounting to Rs. 28,688/- and the statement of charges amounting to Rs. 3,739/50. He contended that these charges have been made in accordance with the Bank Rules and Regulations and the agreement entered between the parties. He submitted that the appellants-defendants have been confirming the balances from time to time and are bound to honour their promissory note dated 13.11.1985 whereby they confirmed and admitted the liability of Rs. 11,58,420/69. 6. We have heard the learned counsel for the parties and have gone through the record of the case. 7. Section 6(l)(a) of Banking Companies (Recovery of Loans) Ordinance, 1979 confers civil jurisdiction on the Special Courts in respect of claims filed by the Banking Companies against the borrowers or by tke borrowers against the Banking Companies in respect of, or arising out of a loan, all the powers vested in a Civil Court under C.P.C. Section 7 of the Ordinance provides the procedure of the Special Court that suits before the Special Courts shall come up for regular hearing as expeditious as possible and except in extraordinary circumstances and on grounds to be recorded the Special Court shall not allow adjournments and Special Court in all suit including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to or to the order of the department follow the summary procedure provided for in Order XXXVII of CPC. 8. Order XXXVII of CPC provides summary procedure for disposal of suits on negotiable instruments like bill of exchange, hundies or promissory notes. After the institution of the suit under Order XXXVII, the defendant shall not appear or defend the suit unless he obtains leave from the Court as provided under sub rule (2) of Rule 2 of the aforesaid Order. It may be noted that in case of default of his obtaining such leave or failing to appear within the period provided for filing an application for leave to defend, the allegations in the plaint shall be deemed to be dmitted, and the plaintiff shall be entitled to a decree. Rule 3 of the said order empowers the court to grant leave to appear and defend the suit upon affidavit of the defendant which discloses such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. The court may grant leave to defend unconditionally or subject to such terms as to payment into court, giving security, framing and recording issues or otherwise as the court thinks fit. From the aforesaid provisions, it follows that the grant of leave to appear and defend is not a matter of routine or matter of right. The defendant has to disclose a plausible defence and where there is no substantial question of law or facts needing trial and the defence set up is vague or sham, leave can be refused and the suit decreed. The appellants could not set up a plausible defence, therefore the learned Special Court was justified to refuse leave to appear and defend the suit. . 9. The afore mentioned provisions of both the laws are meant to have expeditious and summary disposal of suits arising out of loans of the banks. The very purpose of legislating the Banking Companies (Recovery of Loans) Ordinance 1979, seems to ensure expeditious recovery of bank loans by providing summary procedure and inclusion of suits based on mortgages of all kinds would further indicate the intention to recover the loans quickly and promptly. In recovery of loan cases based on statements of account maintained by the banks to which presumption of correctness is attached under the Bankers Books Evidence Act, 1891 the defendant seeking to appear and defend the suit must disclose a plausible defence or show that there are substantial questions of facts and law which need to be tried otherwise leave has to be refused, and decree shall follow in the suit. 10. The perusal of the application for leave to defend the suit filed by defendants shows no disclosure of any plausible defence or suggests any triable issues, but only vague and routine type objections have been taken. The availing of the loan facility against the registered mortgage deed, pledge of shares, hypothecation of stock, Letter of Guarantee and execution of Promissory Note in favour of the Bank have not been denied. Regarding the statement of accounts it has been said that it was incorrect and contained unauthorised entries but no such entry was pinpointed. We do not find that any cogent and plausible or evenprima facie defence was put forward which could warrant the leave to appear and defend the suit. The learned Special Court after having taken into consideration the grounds of application for leave to defend the suit, rejected the same and observed that in view of the documentary evidence filed by the plaintiff respondent Bank the appellant-defendant was unable to make out a case for the grant of leave to defend the suit. 11. The contention of the learned counsel for the appellants that the Bank could not charge the penal interest, has some force, as there is no clause or provision in any of the documents providing the imposition of penal interest in case of default. This position was also conceded to by the learned counsel for the [B Bank, hence the Bank in absence of any such agreement cannot charge the penal interest and any entry of debit in this regard in the accounts of appellants is declared to be without lawful authority and of no legal effect. As far as other charges are concerned the Bank is authorised under the mortgage deed, hypothecation deed and other documents to recover the principal amount with interest thereon at 4% above the bank rate with monthly/quarterly rests and all charges, costs, expenses and commission which may be sustained or incurred by Jhe Bank or which may occur due to the Bank in connection therewith. Although the Bank as per aforesaid deeds was within its competence to charge other charges yet in view of the appellants financial sickness, it may be observed that if possible may consider to waive the same. 12. The last contention of the learned counsel for the appellant was that interest being against the Injunctions of Islam and the Constitution of Islamic Republic of Pakistan, the Bank cannot charge any interest and no decree can be passed for the same. In this regard reference is made to Full Bench judgment reported in PLD 1987 Karachi 296, and PLD 1987 Karachi 612 wherein it has been held that inspite of the provisions of Article 2-A of the Constitution, in view of Article 270-A the provisions of Banking Companies (Recovery of Loans) Ordinance 1979 are protected and the claim of interest made under the Ordinance though un-Islamic can be granted. In view of these observations, the contention of the learned counsel needs no further consideration. As far as the pronouncement of the Federal Shariat Court reported as PLD 1992 FSC 1 on the subject is concerned, an appeal has been filed against the same and is pending adjudication before the Honourable Appellate Bench of Supreme Court of Pakistan. 13. The appellants having admitted the loan, as well as aforesaid documents are liable to make repayment of loans. The perusal of the record shows that the appellants company failed to honour their commitment of repayment of even monthly instalments. They have been, however, making certain repayments according to their convenience and choice. There are numerous letters placed on file whereby the appellants have been time and again asked to make the repayment of the loan according to the terms and conditions but no serious efforts ere ever made for the repayment of the outstanding amount. The learned Special Court has observed that in view of the documentary evidence the appellants could not make ou! a case for the grant of leave to defend the suit and all the documents have been ack;u;v,L .L:vJ by ii in favour of the Bank. The appeal under sub-section ^2) Hu: Ordinance against the judgment and decree of the Special Coun or:u „ following grounds:— "a. the decision being contrary to law or to some usage having the force of law, or b. the decision having failed to determine a material issue of law or usage having the force of law, or c. a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits." Since the learned counsel for the appellants has not been able to point out any illegality or any substantial error apparent in the procedure provided by the Ordinance, therefore we do not find any substance in the appeal and would . dismiss it with the observations as made above that the Banking company cannot charge the penal interest when there is no agreement to that effect; in the circumstances given above the Bank, if possible may consider to waive miscellaneous charges charged from the appellant. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Peshawar 59 (DB) PLJ 1992 Peshawar 59 (DB) Present: FAZAL ELAHI, CJ AND QAZI MUHAMMAD FAROOQ, J SHAHID MUHAMMAD FAZAL-Petitioner versus PRINCIPAL, QUAID-I-AZAM COLLEGE OF COMMERCE AND BUSINESS ADMINISTRATION, UNIVERSITY OF PESHAWAR, and 2 others—Respondents Writ Petition No. 1268 of 1991, accepted on 3.5.1992. Educational Institutions-- —-Bachelor of Business Administration Part-I-Admission to-Refusal of-- Challenge to-One seat has been allocated to Chamber of Commerce and petitioner and respondent No. 2 are children of members of Sarhad Chamber of Commerce-Petitioner had obtained more marks than respondent No. 2 in F.Sc.—Contentions raised by respondents are more speculative than real as they do not enjoy blessings of Prospectus of College-Held: Impugned decision of respondent No. 1 is not sustainable, but it will be inequitable if Respondent No. 2 is punished for imbroglio created by respondents No. 1 and 3—Petition accepted and Petitioner ordered to be given regular admission without ousting respondent No. 2. [Pp.61&62]A,B,C&D Mr. Nasiml Mulk, Bar-at-law, Advocate for Petitioner. Mr. Z. Mahfooz Klian and Mr. Talat Qayywn Qureshi, Advocates for Respondents. Date of hearing: 3.5.1992. judgment Qazi Muhammad Farooq, J.-- The petitioner, Shahid Muhammd Fazal, has through this constitutional petition questioned the legality of the decision of the Principal Quaid-i-Azam College of Commerce and Business Administration, University of Peshawar, respondent No. 1 herein, whereby he was denied admission in a course in Bachelor of Business Administration Part-I for the Session 1990-91 on the seat reserved for Chamber of Commerce and Miss Sabahat Afzal Zia, respondent No. 2 herein, was allowed admission and has prayed that the said decision as well as the admission of Miss Sabahat Afzal Zia be declared as illegal, without lawful authority and of no legal consequence with a direction to respondent No. 1 to admit him on the said seat. 2. Briefly, the facts leading to this petition are that according to the Prospectus of Quaid-i-Azam College of Commerce and Business Administration, University of Peshawar one seat out of total number of seats in Bachelor of Business Administration Part-I stands allocated to the Chamber of Commerce. The petitioner is the son of an Industrialist who is a member of the Chamber of Commerce N.W.F.P. He passed F.Sc examination, from the Peshawar Secondary Board in the year 1990-91 as a regular student of Islamia College, Peshawar and obtained 728 (adjusted) marks out of 1100 marks. Thereafter, he submitted three applications to the Principal of the said College seeking admission in Bachelor of Business Administration Part-I on merit, on one of the seats reserved for sportsmen and on the seat allocated to the Chamber of Commerce. He failed to find a place on open merit as well as on the seats reserved for the sportsmen. He was also refused admission on the seat allocated to the Chamber of Commerce on the ground that it had been allotted to respondent No. 2. Feeling aggrieved he filed this petition wherein he challenged the decision of respondent No. 1 on the ground that although respondent No. 2 was the daughter of a member of the Chamber of Commerce yet having obtained 683(adjusted) marks oui of 1100 marks she was lower on merit as compared to him and as such had been wrongly allotted the seat allocated to the Chamber of Commerce. He also prayed that the decision of respondent No. 1 be declared as illegal, without lawful authority and of no legal effect and he be directed to admit him in the academic course in question in place of respondent No. 2. 3. The petition was strenuously resisted by the respondents and the objections raised by them in their written sftemems ate manifold. The Principal of the College, respondent No. 1, took the stance that the dispute w s not amenable to the writ jurisdiction of this Court as Miss Sabahat Afzal had been given admission in good faith pursuant to the nomination made by the Chamber of Commerce vide its letter dated 21.11.1990 while the application of the petitioner for admission was received on 30.4.1991. Miss Sabahat Afzal in -. written statement contended that her father was a regular member of the :--arad Chamber of Commerce whereas the petitioner's father was not a member at the time when the decision in regard to the allotment of the reserved seat was taken ort 15.11.1990 as his membership had expired on 30.6.1984 and it was renewed on 16.1.1991. It was further contended that the petitioner had not submitted any application to Sarhad Chamber of Commerce for recommendation of his name for admission on the seat allocated to it and as such he had no locus standi to assail her admission. Respondent No. 3 namely Sarhad Chamber of Commerce contended that they had received applications in the months of October and November 1990 from the children of the members and of them Miss Sabahat Afzal was selected by the Executive Committee in the meeting held on 15.11.1990 and nominated for admission against the reserved seat. It was also contended that at that time petitioner's father was not a member of the Chamber of Commerce and the petitioner had also not applied for consideration of his name for the proposed nomination. 4. The admitted facts are that in the Quaid-i-Azam College of Commerce and Business Administration, University of Peshawar one seat out of the total number of seats in Bachelor of Business Administration Part-I has been allocated to the Chamber of Commerce, the petitioner and respondent No. 2 are the children of members of Sarhad Chamber of Commerce and the petitioner had obtained more marks than respondent No. 2 in F.Sc. However, three points for determination emerge from the contentions raised by the respondents in general and respondents No. 2 and 3 in particular; first, that nomination of a candidate by the Chamber of Commerce is a condition precedent for admission on the seat allocated to it, second, that the petitioner had not submitted an application before the Chamber of Commerce for consideration of his name for the said nomination and the Executive Committee of the Chamber of Commerce had selected and nominated respondent No. 2 for admission and third that the petitioner's father was not a member of the Chamber of Commerce on 15.11.1990 when respondent No. 2 was nominated for admission. 5. The contentions raised by the respondents are more speculative than real js they do not enjoy the blessings of the Prospectus of Quaid-i-Azam College of Commerce and Business Administration, University of Peshawar . It is nowhere mentioned in the Prospectus that admission on the seat in question shall be made on the nomination of the Chamber of Commerce and as such the contention embodied in the first point for determination is a figment of the imagination of the respondents. No doubt the petitioner had not applied to the Chamber of Commerce for streeing his case for admission but this omission is meaningless because according to the instructions contained in the Prospectus he was specifically required to submit his application for admission in the College office. The relevant instruction at page-5 reads as follows:- 'Application Form for admission can be obtained from the College office. It shall be filled by the candidate in his/her own handwriting and submitted by the due date to the college office." In so far as the nomination of respondent No. 2 is concerned the least that can be said about it is that it leaves much to be desired. Her selection having been made without any publicity or notice to the members of the Chamber of Commerce and without inviting applications from the interested persons not only smacks of some kind of machination by a coterie but also offends against the principles of fairness and equal opportunity. The very instruction contained in the Prospectus requiring the candidates to file applications for admission in the college office goes a long way to suggest that it was the prerogative of the college to receive applications of the candidates seeking admission on the seat reserved for the Chamber of Commerce and forward the same to the Chamber of Commerce for scrutiny and recommendation and not vice versa. As regards the contention that the petitioner's father was not a member of the Chamber of Commerce on 15.11.1990 when the decision about the allotment of the seat in question to respondent No. 2 was made it would suffice to say that it is remarkable in weakness only as the petitioner's father was admittedly a member of the Chamber of Commerce on 30.4.1991 when the petitioner had applied for admission according to the notified Schedule of Admission. The impugned decision of respondent No. 1 is thus not sustainable. The matter, however, does not end here because the course over which the petitioner and respondent No. 2 are locked in litigation has reportedly concluded and the Annual examination is scheduled to be held in near future, therefore if admission is allowed to the petitioner by ousting respondent No. 2 at this stage it will indubitably put her educational career at stake. In any case it will be inequitable if she is punished for the imbroglio created by respondents No. 1 and 3. We would, therefore, accept this writ petition, declare the impugned decision of respondent No. 1 as without lawful authority and of no legal effect and direct that the petitioner, who was provisionally admitted at his own risk and cost on the order of this Court, should be given regular admission in Bachelor of Business Administration Part-I without ousting respondent No. 2 namely Miss Sabahat Afzal Zia. Parties to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 62 (DB) PLJ 1992 Peshawar 62 (DB) [Abbottabad Bench] Present: MAHBUB ALI KHAN AND MIAN MUAIIMMAD AIMAL, JJ M/S SAIF NADEEM KAWASAKI MOTORS LTD.--Petitioner versus GOVERNMENT OF N.W.F.P., THROUGH SECRETARY, LOCAL GOVERNMENT-Respondent Writ Petition No. 83 of 1990, dismissed on 15.3.1992. Export Tax-- —Motorcycles manufactured/assembled by petitioner-Tax on export of motorcycles-Challenge to- District Council (Export Tax) Rules 1984 and NWFP Local Government Ordinance, 1979, empower District Council to levy and collect export tax on export of goods produced within district-Held: Notifications impugned in this writ petition were not violative of any law or statutory rules-Held Further: Educational cess is an old cess being recovered under N.W.F.P. Development Cess Act, 1949, and it being statutory obligation, petitioner company is bound to pay same—Petition dismissed. [P.68JA&B 1986 CLC 533, PLD 1990 Karachi 402,1990 MLD 317 and AIR 1958 SC 341 ref. Mr. Hamid Klian, Advocate for Petitioner. Mr. Muhammad Aslain KJian, AAG for Respondent No.l. Qazi Muhammad Asif, Advocate for Respondent No. 2. Dates of hearing: 24.9.1991 and 10.11.1991. judgment Mian Muhammad Ajmal, J.~ The petitioner, M/s Saif Nadeem Kawasaki Motors Limited through its Managing Director, by this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, has challenged the Notification No. I-2/65/DCA 8355-58 dated 18.6.1990 whereby Export Tax was imposed, and its consequent recovery and realization to be without lawful authority and of no legal effect and also sought a direction restraining the respondents from recovering the same and refunding the taxes already recovered. It was further sought that the imposition of tax of Rs 15/- per motorcycle as Education Cess is also without lawful authority and of no legal effect and that the money so recovered be refunded. 2. The petitioner company is manufacturing, assembling and selling Motor Cycles in its manufacturing and assembly plant established at Khalabat Township , Haripur, a notified Industrial Estate Area, under the name and Brand of Kawasaki and carry the same for sale/supply to the various parts of the country. The manufacturing plant of the company is situate in the limits of Khalabat Township Committee and lies within the limits of Municipality of Khalabat Township Committee. 3. The learned counsel for the petitioner contended that the Industrial Estate Area Khalabat Township does not fall within the limits of District Council, Abbottabad, therefore the District Council had no authority to impose any tax in the area. The notification No. 1-2/65(86) /DCA/8355-58 dated 18.6.1990 issued by District Council Abbottabad, imposing the tax on the export of Motor Cycle at the rate of Rs. 100/- per Motor Cycle is contrary to law and without jurisdiction as no tax on the export of Motor Cycle could be levied and recovered from the petitioner company as the same is not located within the jurisdiction of the District Council Abbottabad, but the same is situated within the territorial limits of Town Committee Khalabat. He referred to Sections 134, 135 and 136 of the NWFP Local Government Ordinance, 1979 (Ordinance IV of 1979) (hereinafter called the Ordinance), which are reproduced hereunder:-- "134. Taxes to be levied. A local Council subject to the provisions of any pother law may, and if directed by Government shall, levy all or any of the taxes enumerated in the Second Schedule; 135. Notification and enforcement of taxes. (1) All taxes levied by a Local Council shall be notified and shall, unless otherwise directed by Government, be subject to previous publication. (2) Where a tax is levied or modified, the Local Council shall specify the date for the enforcement thereof, and such tax or the modification shall come into force on such date. 136. Model Tax Schedule. Government may frame Model Tax Schedules and when such Schedules have been framed, a Local Council shall be guided by them in levying a tax, rate, toll or fee." They provide that the taxes enumerated in the Second Schedule, subject to any other law and if directed by the Government can be levied by the Local Council. In item (7) of Part II of the Second Schedule, it is provided that fees for the export of goods and animals from the District, can be imposed by the District Council whereas Part III of the Schedule enumerates the taxes which can be imposed by the Municipal Corporations/Committees and Town Committees. The learned counsel contended that under Article 77 of the Constitution of Islamic Republic of Pakistan, no tax can be levied for the purpose of Federation except by or under the authority of Act of Parliament. He also referred to Article 127 of the Constitution of Islamic Republic of Pakistan where Provincial Assembly has been vested with the same powers for the Province, which provides that no tax can be imposed in respect of the Provincial subject except by or under the authority of Provincial Act of Provincial Assembly: According to him the Local Councils have no authority to levy any type of tax and realize the same without the sanction of the Provincial Assembly, as no delegation of power could be made in respect of levy'of taxes in disregard to Articles 77 and 127 of the Constitution. As such the Notification No. SO(LG-II)LG-I-15/80 dated 31.5.1980 regarding Local Councils (Imposition of Taxes) Rules, 1980, Notification No. ADMN(LG)I(18)/81 NWFP District Council (Export Tax) Rules, 1984 and consequent Notification No. I- 2/65/DCA 8355-58 dated 18.6.1990 are without lawful authority, ultra vires and of no legal effect. The learned counsel for the petitioner did not seriously press the imposition of the levy of Education Cess of Rs. 15/- per Motor Cycle and simply submitted that it is also without any lawful authority. Relies on PLD 1990 Karachi 402,1990 MLD 317 and AIR 1958 SC 341. 4. Opposing the contentions of the learned counsel for the petitioner the learned counsel for respondent No. 2 contended that the impugned notification has been issued in exercise of the powers conferred by Section 134 of NWFP Local Government Ordinance, 1979 read with Rules 7 and 8 of the Local Council

PLJ 1992 Peshawar 65 (DB) [Abbottabad Bench] PLJ 1992 Peshawar 65 (DB) [Abbottabad Bench] Present: MAHBUB ALI KHAN AND MIAN MUAHMMAD ajmal, JJ AL-IMTIAZ FOUNDATION (Regd.) THROUGH PRINCIPAL, AL-lMTIAZ academy, ABBOTTABAD--Petitioner versus INCOME TAX OFFICER, ABBOTTABAD-Respondent Writ Petition No. 138 of 1991, accepted on 19.4.1992. Income Tax Ordinance, 1979 (XXXI of 1979)-- —S. 65 read with rule 86 to second Schedule-Assessment for years 1987-88 to 1989-90--Acceptance of-Re-opening of and issuance of notice-Challenge to~ On earlier returns, Income Tax Officer, on detailed consideration of facts and scrutiny of material, passed conscious order on application of mind and while agreeing with claim of Academy, issued an exemption certificate under rule 86 to Second Schedule of Income Tax Ordinance, 1979-Held: His successer-inoffice cannot take a different view subsequently on same facts by re-opening matter and no second notice under Section 65 cottld be issued on basis of a change of opinion-Held further: Act done on part of respondent is corum- /ion-/u<#ce--Petition accepted. [P.66]A&B Mr. Ghulam Mustafa Awan, Advocate for Petitioner. Mr. Eid Muhammad Kliattak, Advocate for Respondent. Date of hearing: 19.4.1992. judgment Mahbub AH Khan, J--The petitioner herein, Al-Imtiaz Academy , is affiliated to Al-Imtiaz Foundation registered under the Societies Registration Act XXI of 1860. The aims and objects of the foundation are set forth in the Articles of Association. Al-Imtiaz Academy has been established to run an educational school at Abbottabad on non-profit basis. The petitioner-Academy, therefore, claimed exemption from the payment of income tax under Rule 86 of the Second Schedule to the Income Tax Ordinance, 1979 and on the acceptance of their plea they were issued a certificate by the Department on 30.10.1990. Thereafter in the year 1991 the Income Tax Officer, Abbottabad Circle under Seciton 65 of the Ordinance ibid on 9.10.1991 issued a notice to the Academy calling in question the previous assessment being under-assessed and asked the petitioner to submit fresh returns for the said assessment period. 2. The academy having felt aggrieved had impugned the vires of this notice (NT No. 01-29-480, dated 9.10.1991) in the instant writ petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with a prayer to declare it illegal and without lawful authority. It has been stated that after having passed a final oder on the assessment returns for the period between 1987-88 to 1989-90 by the Income Tax Officer, Abbottabad Circle his successor could not afterwards reopen the case and ask the Academy for the submission of other returns in the same matter for the same period. The respondent Income Tax Officer resisted the claim. Written comments were filed in response to the averments made in the writ petition. We have heard at length Mr, Ghulam Mustafa Awan advocate on behalf of the petitioner-Academy and Mr. Eid Mohammad Khattak the learned counsel for the respondent, 3. The learned counsel of the petitioner-Academy has raised the following contentions. That on the assessment returns submitted by the Academy to the respondent for the years 1987-88 to 1989-90 the Income Tax Officer, Abbottabad Circle after having been satisfied with the claim of the Academy furnished a certificate of exemption under Rule 86 to the Second Schedule of Ordinance XXXI of 1979. That his successor, i.e., the present respondent cannot, therefore, re-open the case and call upon the Academy for the submission of other returns in the same matter for the same period on the pretext that the returns earlier submitted were underassessed. He thereby pleaded that the impugned notice issued to the Academy under Section 65 of the Income Tax Ordinance, 1979 was thus illegal and without jurisdiction. 4. On the perusal of the record we have found that on the earlier returns submitted by the petitioner-Academy for the period in dispute the Income Tax Officer, Abbottabad Circle on detail consideration of the facts and scrutiny of the material relating to the case placed before him passed a conscious order on the application of mind and while agreeing with the claim of the Academy issued an exemption certificate under Rule 86 to the Second Schedule of the Income Tax Ordinance, 1979. His successor-in-office cannot therefore, take a different view subsequently on the same facts by re-opening the matter and no second notice under Section 65 of the Ordinance ibid could be issued on the basis of a change of opinion. The position would have been otherwise if there had been passed by the Income Tax Officer a mechanical routine order on the first returns without making a detailed scrutiny of the material relating to the controversy. In that situation the income assessing officer could initiate an action under section 65 of the Ordinance. In this view of the matter the learned counsel for the Academy has correctly placed reliance on the precedent cases reported in P.L.D. 1989 Karachi 337 and 1991 P.T.D. (Karachi) 345. The lerned counsel appearing on behalf of the respondent was unable to make any rebuttal of these arguments. 5. We as such find no sanction of law behind the issuance of the impugned notice. The act done on the part of the respondent is corwn-non-judice. Consequently, we would accept this writ petition by declaring this order illegal and without lawful authority. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Peshawar 67 [Abbottabad Bench] PLJ 1992 Peshawar 67 [Abbottabad Bench] Present: MAHBUB AL! KHAN, J KALA KHAN-Petitioner versus AYUB KHAN--Respondent Civil Revision No. 89 of 1989, dismissed on 29.6.1992. NWFP Pre-emption Act, 1987 (X of 1987)-- —-S. '13--Pre-emption--Suit for-Decree passed in-Challenge to~Whether Talabs had been correctly made--Question of-After sale mutation, respondent went to Patwari on 13.9.1987 and obtained copy of record of rights whereby he came to know about transaction—He immediately made announcement of his intention to lodge a pre-emption suit--Within a period of two weeks, he sent a notice to petitioner through registered A.D. post-Record shows that notice carrying Talb-i-Ishhad duly attested by truthful witnesses, had been sent to vendee on 21.9.1987--It is argued that respondent in fact had knowledge of transaction on 17.3.1987 and in support thereof, an attested copy of an application allegedly moved by respondent for obtaining copy of suit mutation, was placed on file of trial court-This document was not produced in evidence and exhibited in trial court and not even mentioned in pleadings by petitioner-- This document cannot be considered at this stage-Held: Talabs were correctly made in time by respondent, findings of two forums below are based on evidence, and they cannot be said to have exercised jurisdiction illegally or with material irregularity-Petition dismissed. [Pp.68,69&70] A,B&C SyedAbdus Salam Sarwar, Advocate for Petitioner. Mr. Saleli MahmudAwan, Advocate for Respondent. Date of hearing: 27.5.1992 judgment Ayub Khan respondent herein, filed a suit in the Court of Civil Judge, Haripur against petitioner Kaia rviiau and obtained a decree for possession through pre-empion of a certain agricultural land on 4.3.1989. An appeal taken by the vendee-defendant before the Additional Distrrict Judge was dismissed on 4.7.1989. Hence this petition under Section 115 C.P.C. 2. I have heard at length Syed Abdus Salam Sarwar Advocate on behalf of Kala Khan petitioner and Mr. Saleh Mahmud advocate for the plaintiffrespondent. It is the finding of the learned two courts below on issue No. 4 which has been assailed before me on behalf of the vendee-defendant. It would be as such appropriate to reproduce here the text of issue No. 4 as settled between the parties during trial of the suit which is to the following effect:— "Whether notice issued to the defendant is not proper and in accordance with existing law of pre-emption?" 3. On the enforcement of Act X of 1987, i.e., the North West Frontier Province Pre-emption Act, 1987 the right of pre-emption of a person unless such person makes demands of pre-emption in the manner provided under Section 13 of the Act ibid is said to have extinguished. A person who intends to pre-empt a sale transaction by enforcing his right of preemption shall make an immediate demand in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre-emption technically called "talbi-muwathibat". He shall be thereafter required to make the demand of "talb-iishhad" by establishing evidence as soon as possible but not later than two weeks from the date of notice under Section 32 of the Act or knowledge whichever may be earlier, by sending a notice in writing attested by two truthful witnessses to the vendee under registered postal cover with acknowledgement due confirming his intention to exercise the right of pre-emption. In an area where due to the lack of postal facilities if it is not possible for a pre-emptor to send a registered notice, he may make "talb-i-ishhad" in the presence of two truthful witnesses. Then comes the demand for "talb-e-khusumat" whereby a pre-emptor after having satisfied the requirements of the aforesaid two "talbs" shall make "talb-e-khusumat" by filing a suit in a competent court for enforcing his right of pre-emption. The evidence adduced on the issue would indicate, that after the sale transaction and attestation of the impugned mutation when the petitioner started making interference in the land purchased the respondent went to the office of the village patwari on 13.9.1987 and obtined a copy of the record of rights and thereby got knowledge of the transaction. He immediately made announcement of his intention to lodge a pre-emption suit against the vendee. Thereafter within a period of two weeks he sent a registered notice by post to the vendee-defendant with acknowledgement due £s required by Section 13(3) of Act X of 1987. A photo copy (Ex.PW 2/1) of the impugned notice has been placed on the record of the trial court. It shows that a notice carrying the demand for "talb-i-ishhad" duly attested by two truthful witnesses of the«reahad been sent by the pre-emptor to the vendee on 21.9.1987 on the home address through his counsel, Mr. Muhammad Yaqoob Awan advocate. The notice reads that the respondent got knowledge of the suit transaction on 13.9.1987 and immediately made "talb-i-muwathibat" and thereafter "talb-i-ishhad" within the prescribed period in the manner aforesaid. The learned counsel on reading para No. 4 of the notice endevoured much to built up a case, that the respondent did not make immediate pronouncement of "talb-imuwathibat" when the fact of sale came to his knowledge and placed reliance in this context on para No. 4 of the notice that the plaintiff had made "talb-imuwathibat" a week before the date of notice meaning thereby, that he made "talb-i-muwathibat" on 15.3.1987 and not on 13.3.1987 when the factum of sale came to his knowledge. This phrase mentioned in para No. 4 in no way signifies that sense. On the contrary if one reads conjointly paras No. 3 and 4 this would become quite evident, that the respondent gained knowledge of the sale transaction on 13.9.1987 when he visited the office of the patwari and made an immediate pronouncement on that very day of his intention to exercise the right of pre-emption. The writing of the word "one week" ( t&+(_jZ\ ) in para No. 4 of the notice indicates the same thing. 4. It was also argued that the respondent in fact had knowledge of the impugned transaction on 17.3.1987 and in support thereof an attested copy of an application in the name of Muhammad Ayub plaintiff was placed on the file of the trial court which the respondent had allegedly moved for issuing him a copy of the suit mutation. This document has not been produced and exhibited in evidence of the respondent during trial. Not only this, copy of the application was although obtained by the petitioner-defendant on 30.9.1987 and was in his possession when e filed written statement in the suit on 21.11.1987 but did not mention this important fact in his pleadings. He did not again write anything about this application in his list of evidence and witnesses filed subsequently. No efforts were also made for pressing this document into service when evidence of the petitioner was recorded which consisted of his own solitary statement. The document with this back ground cannot be considered in evidence at this stage and particularly so when it has not been proved in accordance with law. No original was produced in court nor any efforts made to prove that it was the respondent and none else who moved this application before the Copying Department on 17.3.1989. The defendant-petitioner has, therefore, failed to establish the accusation that the plaintiff was the author of the aforesaid application and he had knowledge of the transaction on the said date. The learned counsel next argued, that the plaintiff could not send a notice of "talb-i-ishhad" through a counsel. This argument is of no avail. Section 14 of the Act ibid speaks of demands made by a guardian or agent. It states that where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf. The word "agent" has been defined in Chambers 20th Century Dictionary (New Edition) at page 21 as, "one authorised or delegated to transact business for another" and it definitely includes a law agent or a lawyer. The plaintiff being an illiterate village person and not conversant with the technicalities of law if engaged a counsel and sent a notice to the vendee confirming his intention to exercise the right of pre­ emption there could hardly be any harm. 5. In this background of the case I find, that the pre-emptor (shafee) did make an immediate claim of "talb-i-muwathibat" at the moment he learnt of the sale on 13.9.1987 and thereafter within two weeks sent a written notice carrying the demand of "talb-i-ishhad" to the vendee attested by two truthful witnesses under registered postal cover with A.D. on his correct home address confirming further his intention to exercise the right and there is no cogent evidence to the contrary that these demands were either delayed or deficient. The two forums below have thus made findings in the decision of issue No. 4 which are based on evidence and cannot be said to have acted in the exercise of jurisdiction illegally or with material irregularity. Finding no force in this petition I shall dismiss it with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Peshawar 70 (DB) [Dera Ismail Khan Bench] PLJ 1992 Peshawar 70 (DB) [Dera Ismail Khan Bench] Present: FAZAi, ellahi, CJ and qazi muhammad farooq, J FARMAN SHAH-Petitioner versus VICE CHANCELLER, GOMAL UNIVERSITY, D.I. KHAN and 3 others-­ Respondents Writ Petition No. 103 of 1991 (also W.P. Nos. 115,119,130,146,156,172,154 of 1991 and No. 5 of 1992) accepted on 24.6.1992. (i) Educational Institutions-- —Various programmes of studies in Gomal University-Admission to-Refusal of-Challenge to-Contention'that vested right of admission in accordance with old Regulation had accrued to petitioners as new Regulation was not in field at time of submission of applications and new Regulation having been approved by Syndicate on 2.10.1991, could not operate retrospectively-Action of Vice Chancellor under Section 13(3) of Act, being of no legal effect, is to be treated as non-existent-Held: Syndicate approved new Regulation on 2.10.1991, therefore, it shall operate prospectively and not restrospectively so as to deprive petitioners of their vested right-Petition accepted. [P.76JD&E PLD 1979 SC 32 and 1989 CLC 1303 re/. (ii) Educational Institutions- —Various programmes of studies in Gomal University-Admission to-Refusal of-Challenge to-New Regulation asssaiied by petitioners was provisionally approved by Vice Chancellor in anticipation of approval of Syndicate, in exercise of powers under Section 13(3) of Gomal University Act, 1974 which are emergency powers-It is for Vice Chancellor to determine if there is an emergency, but such a determination has to be made objectively on basis of sound material and under circumstances that can stand test of judicial review- Held: There was no emergency whatsoever as old Regulation which had controlled admission ever since establishment of University, to entire satisfaction of student community, was in field when admission programme for academic year 1991-92 was Iaunched--Held further: Action taken fay Vice Chancellor under Section 13(3) of Act is of no legal effect. [Pp.74,75&76]A,B&C PL? 1992 Lahore 289 rel. S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Muhammad Klta/i KJiakwani, Advocate for Respondents. Date of hearing: 9.5.1992.' judgment Qazi Muhammad Farooq, J.-This judgment shall dispose of the Writ Petition in hand as well as eight other similar Writ Petitions viz W.P. No. 115/91, W.P. No. 119/91, W.P. No. 130/91, W.P. No 146/91, W.P. No. 156/91, W.P. No. 172/91, W.P. No. 154/91 and W.P. No. 5/92, which arise in the following circumstances. 2. The Gomal University D.I. Khan, hereinafter called the University, was set up in the year 1974. From its very inception a system emerged to grant admission to all the programmes of studies and disciplines on the basis of marks obtained in the last requisite examination, at least in 2nd Division. This system had the blessing of a Regulation which used to be incorporated in the Prospectus invariably. It is worded thus: "1. Eligibility for Admission. The candidates must have passed the last requisite examination at least in second division." 3. The Regualtion highlighted above was alluded to in the Admission Notice for the Academic Session 1991-92 also which was published in various Newspapers in the last week of August, 1991. However, the applications for admission submitted by the candidates were processed in the light of new Regulation devised by the Academic Council on 16.6.1991 as a result of which any candidates, including the petitioners, who had obtained marks on the higher side in the last requisite examination and were eligible for admission under the old Regulation failed to get admission. The new Regulation reads as under:-- "Admissions, Eligibility for Admission: 3. Admission to Higher Education Level not being a matter of right shall be selective on the basis of merit, subject to availability of academic and physical facilities except for reservation on account of belonging to a particular segment of population as may be determined by the Syndicate in each case. The candidates must have passed last requisite examination in at least second division in aggregate as well as second division in the relevant subject wherever applicable on the basis of which he/she is seeking admission. 25. In order to give a fair chance of competition, due consideration will be given to the past academic record of the candidate, while determining merit. For this purpose, the following formula shall be followed:-- (a) Post Graduate Programs:-- i. Percentage of marks obtained in merit X 1 = X ii. Percentage of marks obtained in FA/F.Sc/D.Com X 2 = Y iii. Percentage of marks obtained in BA/B.Sc/B.Com/ SDPE/B.Ed/BBA X 3 = Z Total = X + Y + Z. Merit = Total/6 (b) Other programs like, JDPE, B.Pharm, B.Com and B.B A. i. Percentage of marks obtained in Matric X 1 = X ii. Percentage of marks obtained in FA/F.Sc/D.Com. X 2 = Y (after adjusting the marks of NCC/WG) Total = X + Y ' Merit Total/3" 4. The petitioners had applied for admission to various programmes of studies for the Academic Session 1991-92 but their applications were rejected by the respondents by invoking the provisions of the aforesaid new Regulation. Feeling aggrieved they have through these Constitutional Petitions challenged the legality and validity of the new Regulation as well as the refusal of the respondents to grant them admission despite better merit on the basis of the marks obtained in the last requisite examination on the grounds; firstly, that the new Regulation was ultra vires, unreasonable and discriminatory in nature, secondly, that it was not valid as it had not been approved by the Syndicate of the University within the contemplation of Section 28(2) of the Gomal University Act, 1974 and thirdly, that vested right of admission on the basis of the old Regulation had accrued to the petitioners as they obtained more marks in the last requisite examination than those who were granted admission and the new Regulation was not in the field at the time of the publication of the Admission Notice in the Newspapers and submission and scrutiny of their applications for admission. The petitioners have also prayed that the respondents may be directed to grant them admission on the basis of merit obtained in the last requisite examination and the Regulation prepared by the Academic Council on 16.6.1991 may be declared as without lawful authority and of no legal effect. 5. The respondents in their comments have refuted the contentions raised by the petitioners and submitted that the new Regulation does not suffer from any legal or other infirmity as it was prepared by the Academic Council of the University to guard against cheating and violence rampant in the educational institutions, was provisionally approved by the Vice Chancellor of the University on 22.8.1991 in exercxise of the powers conferred on him by Seciton 13 (3) of the Gomal Univerisity Act, 1974- and was finally approved by the Syndicate on 2.10.1991. 6. Certain important and intriguing points for determination have arisen from the contentions of the parties but before addressing ourselves to the same we deem it necessary to point out that admission to the University is controlle by the Regulations which are prepared by the Academic Council under Section 24(2) read with Section 28(l)(c) and are approved by the Syndicate under Section 28(2) of the Gomal University Act, 1974 hereinafter referred to as the Act. For the sake of convenience, Section 28(2) of the Act is reproduced as under:— "The Regulations shall be prepared by the Academic Council and shall be submitted to the Syndicate which may approve them or withhold approval or refer them back to the Academic Council for re-consideration. A Regualtion prepared by the Academic Council shall not be valid, unless it receives the approval of the Syndicate." It will also be helpful to reproduce hereunder Section 13(3) of the Act on the strength of which the Vice Chancellor had approved the Regulation in question on 22nd August, 1991 in anticipation of the approval of the Syndicate:-- The Vice-Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action for approval to the officer, Authority or other body which in the ordinary course, would have dealt with the matter." 7. The first point for determination relates to the vires and nature of the Regulation in question. It was contended by the learned counsel for the petitioners that the Regulation was unreasonable and discriminatory in nature as it had closed the doors of the University on those students who belong to far flung and God-forsaken areas of D.I. Khan and Bannu Divisions and cannot obtain good marks in Matric due to poor standard of education and living conditions prevailing in those areas but show improvement at College level and that such an unenviable Regulation had not been adopted by any other University in the Country. It was further contended that the Regulation was not only in conflict with the Act but had also caused enxiety and unrest in the student community. We find no substance in the contention that no other University in the Country has adopted such a Regulation because in the course of arguments and from the contents of one of the petitions it transpired that a somewhat similar Regulation is in vogue in the Quaid-e-Azam University, Islamabad. There is also no force in the contention that the Regulation is ultra vires as no provision of the Constitution or of the Act was brought to our notice with which it is in conflict. The remaining contentions may not be wholly devoid of force but we cannot evaluate the Regulation and examine its rationale as it has been prepared by the Academic Council and ratified by the Syndicate within the framework and purview of the Act. It is for the Syndicate to re-examine it in the larger interest of the University and academic peace. We have reason to expect that the Syndicate may re-examine it because it appears that the Syndicate had no choice but to ratify it in view of the action already taken by the Vice Chancellor under Section 13(3) of the Act and completion of the process of admissions. 8. The Regulation assailed by the petitioners was provisionally approvea by the Vice Chancellor on 22nd August, 1991, in anticipation of the approval of the Syndicate. He had taken this extra-ordinary step in exercise of the powers vested in him under Section 13(3) of the Act. The powers envisaged by Section 13(3) of e Act though unexceptionable are not unefettered as they can be exercised only in an emergency. In this backdrop the point that falls for determination is as to whether there was an emergency requiring immediate action under Section 13(3) of the Act. 9. It was contended by the learned counsel for the respondents that there was an emergency in the opinion of the Vice Chancellor which required immediate action as the Regulation approved by the Academic Council on 116.6.1991 had been included in the Prospectus for the year 1991 but its approval I by the Syndicate could not materialise on account of adjournment of the meeting of the Syndicate held on 20.8.1991 due to disturbance at the campus and it was not possible to convene the next meeting of the Syndicate in near future. We find no force in the contention as it is more speculative than real. No doubt, it is for the Vice Chancellor to determine if there is an emergency but such a determination has to be made objectively on the basis of sound material and under circumstances that can stand the test of judicial review. In this context the relevant portion of the judgsnnet reported as Rehmatullah vs. University of the Punjab and 2 others (PLJ 1982 Lahore 289) may be reproduced advantageously:— "It is thus quite clear from the above that though it is for the Vice Chancellor to decide if there is an emergency, yet he must have some reasonable evidence or material before him which is relevant to the purposes of the Law and is neither arbitrary, fanciful or capricious. Moreover, the mere satisfaction or opinion of the authority is not sufficient and no rule of law can oust the power of judicial review by use of any words. There must be such evidence or material before him which may also satisfy any other reasonable person and the courts shall go into the same, in exercise of their power of judicial review, to verify that" We are convinced that there was no emergency whatsoever as the old Regulation which had controlled the admissions eversince the establishment of the University to the entire satisfaction of the student community was in the field when the admission programme for the Academic Year 1991-92 was launched. The first circumstance that had weighed with the Vice Chancellor to form his opinion was that the Regulation prepared by the Academic Council had been incorporated in the Prospectus for the year 1991. This circumstance points more to mal­ administration than emergency because there was no justification for including in the Prospectus for the year 1991 a Regulation prepared by the Academic Council which had not been ratified by the Syndicate. Needless to mention that a Regulation prepared by the Academic Council is not valid unless it receives the approval of the Syndicate and under Section 28(2) of the Act the Syndicate is empowered to withhold approval or refer it back to the Academic Council for reconsideration. The second circumstance pointed out by the learned counsel for the respondents is equally intriguing. The Syndicate had admittedly disposed of item No. 1 on the Agenda in its meeting held on 20.8.1991 and there is no material on record to confirm the assertion that the meeting was interrupted. Be that as it may, in view of the significance of the new Regulation and its inclusion in the Prospectus for the year 1991 one has to pause to think as to why it was not placed as item No. 1 on the Agenda for the meeting of the Syndicate held on 20.8.1991, which was presided over by the Vice Chancellor himself. If it had been so placed on the Agenda and the attention of the Syndicate had been drawn to its importance and the urgency involved, the Syndicate would have definitely taken it up for consideration. The contention that it was not possible to convene the next meeting of the Syndicate in near future is no better than the other contention raised in this context. The last date for submission of the applications being 5th September, 1991 the University Administration had fifteen clear days to convene the meeting of the Syndicate. The task was no doubt a bit demanding but it was not difficult. It would thus follow that the action taken by the Vice Chancellor under Section 13(3) of the Act is not defendable on reason and as such is of no legal effect. 11. In so far as the validity of the new Regulation is concerned it will be enough to say that it was prepared by the Academic Council and approved by the Syndicate on 20.8.1991 and as such its validity is unquestionable. 12. Adverting to the remaining points for determination we find merit and force in the contention raised by the learned counsel for the petitioners that vested right of admission in accordance with the old Regulation had accrued to the petitioners as the new Regulation was not in the field at the time of submission and scrutiny of their applications for admission and in any event having been approved by the Syndicate on 2.10.1991 it could not operate retrospectively. The new Regulation was not mentioned at all in the Admission Notice and was indubitably included in the Prospectus for the year 1991 without obtaining the approval of the Syndicate. It was also not in the field as a valid Regulation at the crucial time namely the last date for submission of applications for admission. The action taken by the Vice Chancellor under Section 13 (3) of the Act being of no legal effect is to be treated as non-existent and kept out of consideration altogether. The Syndicate had approved the Regulation on .10.1991, therefore, it shall operate prospectively and not retrospectively so as to deprive the petitioners of their vested right. In this view we are supported by the observations made in PLD 1979 SC 32 and 1989 CLC 1303. The respondents are thus legally bound to grant regular admission to the petitioners without ousting the students who were admitted under the new Regulation as they are not esponsible for the plight of the petitioners. For the foregoing reasons, we accept these writ petitions, set aside the orders of the respondents whereby the petitioners were refused admission in the University and direct that the petitioners, who were provisionally admitted at their own cost and risk on the orders of this court, be allowed to complete their courses as they shall be deemed to have been regularly admitted. Parties to bear their own costs. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1992 Quetta 1 (DB) PLJ 1992 Quetta 1 (DB) Present: munawar ahmad mirza and iftikhar muhammad chaudhry. JJ Mst. NAZ BIBI--Petitioner versus KHUDA BAKHSH and another-Respondents Const Petition No.177 of 1991, dismissed on 24.9.1991. Jurisdiction-- —Minor children-Custody of~Whether temporary visit of minors to Quetta alongwith their mother would provide jurisdiction to court at Quetta- Question of—On date of institution of suit, petitioner alongwith minor children, was residing at Quetta-Record clearly indicates that children •throughout have been living in custody of their father at Chattar-Held: Temporary visit of children to Quetta during treatment of their mother, by no means would constitute shifting of ordinary residence to Quetta merely because their mother chooses not to go back for living with her husband-Held further: Application moved by petitioner was not entertainable for want of jurisdiction at Quetta-Petition dismissed. [Pp.3&5]A&B AIR 1937 Lahore 797 and PLD 1970 Lahore 596 rel. Mr.W.N.Kohli, Advocate for Petitioner. M/s. Akhtar Zainan and S.Mumtaz Hussain Baqri, Advocates for Respondent. Date of hearing: 24.9.1991. judgment Munawar Ahmed Mirza, J.--This petition is directed against judgment dated 11.6.1991 passed by learned Additional District Judge-I, Quetta. 2. Facts concisely stated are that on 3.12.1988 petitioner filed an application under section 25 of Guardian and Wards Act in the Court of Civil Judge-III-cum- Family Court, Quetta claiming custody of five minor children i.e. (/) Bibi Zahida (//) Bibi Rubina (Hi) Bibi Tahira (iv) Master Zahoor Ahmed and (v) Master Mir Ahmed. 3. Respondent No. 1 contested the proceedings an filed written statement in February, 1989 wherein question of jurisdiction of Courts at Quetta was specifically agitated. Trial Court on the pleadings of parties, framed following 3 issues on 14.3.1989:- 1. Whether the court has no jurisdiction and application is not maintainable in view of L/Objection 'A' and 'B' of the written statement? 2. Whether the applicant is entitled to the relief claimed for? 3. Relief. Record reveals that petitioner in support of her entitlement for the custody of minor children adduced A.W. (/) Mulla Pasund (//) Haji Ghulam Nabi and (//'/) Haji Abdul Karim' apart from her own statement. Whereas respondent No. 1 in rebuttal has examined (/) Nabi Bakhsh (//") Fazal Karim and (Hi) Yar Muhammad besides himself. Learned Civil Judge-Ill, Quetta on ^appraisement of evidence accepted the application, holding that petitioner is entitled for the custody of the children. Respondent preferred Civil Appeal No. 16/91 against the order of trial Court, before learned Additional District Judge-I, Quetta who eventually accepted the same by means of judgment dated 11.6.1991, directing dismissal of application on question of jurisdiction as well as merits. Petitioner is now aggrieved fr6m the last mentioned judgment of appellate Court. Mr. W.N.Kohli learned counsel for petitioner strenuously urged that impugned order, as regards findings on the point of jurisdiction, and merits, treating proverty as ground for disentitling petitioner to have custody of minor children was extraneous to the provisions of Guardian and Wards Act, therefore, according to him the judgment is patently defective. On the other hand Mr. Akhtar Zaman, learned counsel for respondent No. 1 maintained that minor children have been ordinarily residing in village Chattar of Tehsil Dalbandin, therefore, the courts at Quetta have absolutely no jurisdiction. He further submitted that the evidence was correctly re-evaluated by the appellate court and findings arrived at by learned Additional District Judge-I Quetta are un-exceptionable. We have carefully gone through arguments addressed by learned counsel for the parties in the light of available record. Firstly we have, thoroughly considered the question of jurisdiction which was in controversy between the parties. Apart from the evidence on record we enquired from Mr. W.N.Kohli learned counsel for petitioner, the period for which according to him the minor children stayed at Quetta. He categorically admitted that children alongwith their mother were continuously residing at Chattar till November, 1988 but they came to Quetta and stayed with Mulla Pasund during . November 1988 from where they were removed by respondent No. 1. It is further conceded by learned counsel, that on the date of institution of suit-viz 3.12.1988, the petitioner alongwith minor children were residing there. However, he attempted to argue that stay of minor children at Quetta during November, 1988 and thereafter of their mother's stay at Quetta or Kalat be deemed as ordinary residence of minors within the territorial jurisdiction of Quetta. We are unable to agree with this novel approach concerning, ordinary residence of children. Record clearly discloses that children throughout have been living in the custody of father i.e. respondent No..JL who is natural guardian of the minors, at Chattar Tehsil Dalbandin. Their temporary visit (to) Quetta during treatement of their mother by no means would constitute shifting of ordinary residence, to Quetta merely because mother chooses not to go back for living with her husband. In this view we are supported by observations in case Mst. Nazir Begum versus Ghulam Qadir Klian and others (A.I.R. 1937 Lahore-797) "S.9 (1) Guardian and Wards Act, requires that an application for guardianship of the person of the minor sould be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In 53 PLR 1902 the minor's father had lived both in Delhi and Khan Khoda in the Rohtak District dying in the latter place. The child was born at Khan Khoda but brought to Delhi by her mother wR& died a few weeks later in the house of a relative in Delhi; Robertson, 3, held that the minor ordinarily resided in Khad Khoa. To much the same effect is the Division Bench ruling of the Bombay High Court reported in AIR 1932 Bombay 592.1 hold that the minor, who had lived all her life in the Multan District until a few weeks before the application, ordinarily resided in Multan District." In the case of Mohammad Saddique Siddiqi Vs. Mst. Aziza Bibi and 3 others reported in PLD 197O Lahore Page-596, expression ordinary residence under section-9 (1) of the Guardian and Wards Act was discussed. Paras-4 and 14 of the judgment are reproduced hereunder for better appreciation of jurisdictional aspects in instant case:- - "4. The first point argued by the learned counsel for the appellant was that according to subsection (1) of section-9 of the Act, an application with respect to the guardianship of the person of a minor can be made only to the District Court having jurisdiction in the place where the minor ordinarily resides. He submits that the expression, "where the minor ordinarily resides, "in the aforesaid provision of law appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of filing of the application for the enforcement of the guardianship and custody of the minor and the phrase "ordinarily resides" indicates ordinary residence even at the time of the presentation of the application. The contention appears to be sound as the emphasis is undoubtedly on the minor's ordinary place of residence. Such a place is to be determined by finding out as to where the minor (was) ordinarily residing and where such residence would have continued but for the recent removal of a minor to a different place. Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and inspite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have (been) removed, can become the ordinary residence of the minor only after the minor has settled down at the stage of casual or temporary residence. The question of determining the court's jurisdiction on the basis of the place where the minor ordinarily resides, have come up for consideration in a series of cases, some of which will be mentioned in the later part of this judgment." 14. Learned counsel for the respondents argued that it is the minors actual place of residence where, he, infact is, at the time of the application which must necessarily and in all circumstances determine the jurisdiction of the Court under section 9 (1) of the Act. The contention has no force for various reasons, firstly, in section 9 (1) the phrase used is not where the minor 'resides' but where he 'ordinarily resides'. If the contention of the learned counsel is accepted it will tantamount to drop the word 'ordinarily' or to make it redundant which it is obvious cannot be done. Secondly, the word 'Ordinarily' has been intentionally used to bring in a consideration other than that of mere factual residence-See the case-law already referred. Tawaif v. Paramatma Prasad (1) Jhala Harpalsinh Natwar Sinhji v. Bai Arunkanvar (2), Thirdly, the word 'ordinarily 5 means more than mere temporary residences will also become residences within the meaning of the clause under construction which, it is obvious, cannot be the intention of the legislature on the subject-See Chandra Kishore and another v. Smt. Hemlata Gupta. (1), Mubarak Shah Khan v. Mst. Wajeh-ul-Nisa and others, (2), Mst. Nazir Begum v. Ghulam Qadir Khan and Sm. Vimalabai v. Baburoo Sahmroo Kshirsagar in (3) and In re. Erskin (4) where Lord Esher Master of Rolls with whom the other two lords justices concurred, wrote as follows with regard to the interpretation of the phrase" ordinarily resided".- "The petitioning creditor desired to show that within a year before the presentation of the petition, the debtor had 'ordinarily resided' in England. If a young man came to stay with a relative in London for some weeks -it could not be said that he resided in London. If a person when went to a hotel and stayed there a month, he could not be said from that to reside there. This young man came to London for what purpose they did not know. All they knew was that when he was in London he had a bedroom at a lodging house in Half Moon-street and he slept there at the intermittent times stated in the affidavits. It was perfectly consistent with that state of things that he was a mere visitor there. There was really no evidence that the debtor resided in England. But further than that, the section required that he should have "ordinarily resided" in England. Hermerely came to London a visit. Even, however, if they assumed that he resided here, he did not 'ordinarily reside' in London. Therefore, upon the two grounds the petitioning creditor failed. There was, first, no evidence that the debtor, 'resided in London, secondly there was no evidence that he 'ordinarily resided in London. The appeal must, therefore, be allowed, the receiving order must be rescinded, and the petition must be dismissed. Fourthly if the construction as put forward by the learned counsel for the respondent is accepted then it will seriously affect those situations where a minor is removed from place to place in order to defeat the process of law and the jurisdiction of Courts. The interpretation put by the learned counsel will then not be workable and in cases of removal will lead to defeat the ends of justice as pointed out in Sarat Chandra Chakarbati and another and in Mst. Nazir Begum v. Ghulam Qadir Khan and another and in Sarada Nayar v. Vayankara Amma and others (5), some points and passages from which have already been borrowed by me and reiteraated in paragraph-4 of this judgment." Thus respectfully following principles of law, enunciated in aforequoted reports and also keeping in view facts of instant case, we are satisfied that application moved by petitioner, was not entertainable for want of jurisdiction, as such conclusion arrived at by the Appellate court, does not suffer from any infirmity, material illegality and irregularity warranting invocation of extra ordinary constitutional jurisdiction of this court. . Consequently petition is dismissed. However, there would be no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Quetta 5 (DB) PLJ 1992 Quetta 5 (DB) Present: MUXAWAR AHMAD MIR2A, ACJ AND IFTIKHAR MUHAMMAD chaudhry, J Malik ABDUR RAHIM and another Petitioners versus ANAYATULLAH KHAN and another-Respondents Const. Petition No.273 of 1990, dismissed on 25.3.1991. Baluchistan Ground Water Rights Ordinance, 1978 (IX of 1978)-- —S.4(p)-Sinking of tube-well-No objection certificate-Issuance of--Challenge to—Whether Provincial Water Board had authority to give permission to respondent No.l for sinking of tube-well--Question of-Under Section 4(P) of Ordinance, Provincial Water Board has been given supervisory powers-Board does not enjoy powers for passing any order it deems fit-It can pass remand order in case of material irregularity in proceedings before lower functionaries-Held: Perusal of impugned order makes it clear that Board has exercised jurisdiction which was not available under law in allowing respondent No.l to sink tube-well—Held further: Tube-well having already been sunk in pursuance of Board's order, discretionary relief cannot be granted merely for academic purpose-Petition dismissed. [P.8]A,B&C PLJ 1989 SC 10 nl Mr.Muhammad Zafar, Advocate for Petitioners. Mr.Ehsanul Haq, Advocate tor Respondents. Date of hearing: 11.3.1991. judgment Iftikhar Muhammad Chaudhary, J.-Brief facts for the disposal of this petition are that respondent No. -1 filed an application before District Water Committee praying for issuance of 'No Objection Certificate, under the Provisions of Balochistan Ground Water Rights Ordinance 1978 (hereinafter referred to as 'the Ordinance') for excavating a tubewell in Killi Katir situated at Kuchlak, District Quetta, as such certificate dated 30th of May, 1990 was issued to respondent. 2. The petitioner Abdul Rahim feeling aggrieved from the order of issuance of 'No Objection Certificate' challenged it before appellate authority i.e. Commissioner, Quetta Division, who accepted the appeal and remanded the case o District Water Committee vide order dated 20th of July, 1990. 3. On remand of case, after hearing the parties the District Water Committee dismissed the application of petitioner vide order dated 01-9-1990 mainly for the reason that Government of Balochistan has imposed ban on sinking of new boring by private individuals in Quetta Valley. The order of District Water Committee reads as under:- "Parties present and heard in person., -After lengthy discussion/delebration the Committee unanimously rejected the application submitted by Mr. Inayatullah with the remarks that:- "The Government of Balochistan in the planning and Development Department, Quetta has imposed ban on sinking of new boring by the private individuals in Quetta Valley and Cantonment, the request made by the applicant cannot be acceded to because the applicant wants to sink a new boring." The respondent No. 1 filed appeal against above said order before Appellate Authority i.e. Commissioner, Quetta Division, who heard the case on 10th of November, 1990. However during arguments, it was pointed out that Provincial Water Board vide order dated 4th October, 1990, had already allowed the respondent No. 1 permission for sinking tubewell. In view of this factual position following order was passed:- "10-11-1990: The Provincial Water Board vide its order dated 4th October, 1991 has allowed the appellant's prayer for installation of the tubewell. The appeal has thus become infructuous and is disposed of accordingly. Record of the case be returned to the lower court." The petitioners have now assailed the order of Provincial Water Board in this Constitution petition. 4. In support of petition, Mr.M. Zafar, learned counsel for petitioners has contended as follows:- (/) The Provincial Water Board has no jurisdiction under the Ordinance to issue 'No Objection Certificate' to respondent No. 1 as District Water Committee has been authorized to issue 'No Objection Certificate' for excavation of New Tubewell, that too, after hearing the concerned parties therefore, the order dated 4th October, 1990 has been passed without jurisdiction. (//) The Provincial Water Board passed order impugned in petition without hearing the parties as such, order dated 9.10.1990 being in violation of principle of audi-alteriim-partwn is liable to be declared as without lawful authority. 5. On the other hand, Mr. Ehsanul Haq, learned counsel for respondent No. 1 has contended as follows:- (7) The petition is not maintainable because in pursuance of order of Provincial Water Board respondent No. 1 has completed the excavation of tubewell and now no further excavation work is to be done. In support of this plea, he filed an undertaking in the court to the effect that no further excavation will be carried out in the tubewell. Resultantly he requested that petition maybe dismissed. (//') The petitioners even on merits have no case because in the objection filed by them before District Water Committee, they have not stated that if respondent No. 1 will succeed in excavating the well it will adversely effect their existing tubewells. (///') The District Water Committee has also obtained report from the Revenue Staff, copies whereof are available on record, according to reports, the respondent No. 1 is excavating his tube well at a distance which is sufficiently away from 'Riwajee' distance. (/v) The Provincial Water Board in exercise of jurisdiction under section-4 clause (p) of Ordinance, has authorized the respondent No. 1 to excavate the well and the order has been passed with lawful authority and jurisdiction. (v) The relief in writ jurisdiction is of discretionary in nature and even if it is held that order of Provincial Water Board is illegal and void still keeping in view the cwcumstances of this case regarding completion of tubewell, discretion may not be exercised in favour of petitioner and petition may be dismissed. 6. We have heard both the learned counsel and have also perused the record placed before us. 7. In order to resolve the controversy relating to the jurisdiction of Provincial Water Board, it is necessary to examine the provisions of Ordinance of 1978, whereby Provincial Water Board has been empowered to exercise revisional jurisdiction under section-4 subsection (P). For reference aforesaid subsection-(P) of section-4 is reproduced below:- "(P) The Provincial Water Board shall have the power to call for the record of any case relating to the Water rights pending either before the District Water Committee or the Commissioner, to examine and satisfy itself as to the regularity, propriety and legality of these proceedings. It may set aside any of the order and quash the proceedings, if it considers that any material irregularity has occured so as to occasion a miscarriage to justice". S. The above provision of law can be bifurcated into two parts, firstly by I virtue of which Board has been empowered to call for record of ca^c pending before District Water Committee aiiJ Commissioner relating to the water rights in order to satisfy itselt in respect of regularity, propriety and legality of the proceedings whereas secondly the Board enjoys jurisdiction to set aside the order or to quash the proceedings if it is found that material irregularity has been committed in the proceedings, which has occasioned miscarriage to justice, as such, it is abundantly clear that Provincial Water Board enjoys the jurisdiction of supervisory nature in order to control proceedings of lower forums, however Board does not enjoy powers for passing any order (it) deems fit in the circumstances of case, if on having been satisfied that the order and proceedings pending before lower functionaries suffer from material irregularity then after setting aside the order or quashing the proceedings it would be the legal duty of the Board to remit the case to Commissioner or District Water Committee, as the case may be. 9. In view of above observations, the perusal of impugned order makes it clear that Board has exercised jurisdiction which was not available under aforesaid law hence the order is declared void and illegal. 10. Now reverting back towards the other contentions of learned counsel of respondent namely that even if it is held that order of Provincial Water Board is void still under peculiar circumstances of this case, writ may not be issued because in complaince of order of Provincial Water Board, excavation of tube-well has already been completed and presently water is flowing out of it. This position has not been controverted on record. It is pertinent to note that petitioner except challenging validity of impugned order has not sought any relief in this Constitution Petition. Now after completion of the well the whole complexion of dispute between the parties has altogether changed. In the peculiar situation, when well is already complete in pursuance of order which otherwise cannot withstand to the test at the touch stone of law as such, issuance of >,vrit is likely to cause serious complication. We may observe here that provisions of Baluchistan Underground Water Rights Administration Ordinance, otherwise provide adequate remedy, and aggrieved party can approach the specified authority for effective redress, keeping in view changed factual position and settled law about right being discretionary relief cannot be granted merely for academic purpose. Reliance can be placed on case of Federation of Pakistan v. Muhammad Saifullah Klian reported in P.L.J. 1989 S.C.. Page-10. Relevant para reads as under:- "The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a 1 good case, it may refrain from giving him the relief, if greater than harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good". In view of the above principle enunciated by the Hon'ble Supreme Court and subject to observations made hereinabove, we are not inclined to allow the petition, which is hereby dismissed with no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Quetta 9 (DB) PLJ 1992 Quetta 9 (DB) Present: MIR HAZAR KHAN KHOSO, CJ AND MUNAWAR AHMAD MlRZA, J Haji ZAKOOM and 6 others-Petitioners versus FEDERATION OF PAKISTAN, THROUGH MINISTRY OF INTERIOR, ISLAMABAD, and 2 others-Respondents Const. Petition No.237 of 1990, accepted on 3.2.1991. Pakistan Border Area Foodstuffs (Control) Order, 1958-- —S.5(f)--Foodstuffs—Transportation of—Permits for—Direction of respondent No.3 not to allow petitioners to transport foodstuffs to Killi Mehmoodabad- Challenge to--No material was placed on record to show that Killi Mehmoodabad does not fall within local limits of Chaman—Under Section 5(/) of Order, 1958, District Magistrates are empowered to issue permits for transporting foodstuffs in border area and respondent No.3 has no authority to challenge same and restrain petitioners from transporting foodstuffs on valid permits-Held: Action taken by respondent No.3 in not allowing petitioners to transport foodstuffs on basis of valid permits, is illegal, void and without lawful authority [P.13]A,B&C Mr^Azizullah Meinon, Advocate for Petitioners. Mr.Muhammad Riaz Ahmad, Standing Counsel for Respondents. Date of hearing: 27.12.1990. judgment Mir Hazar Khan Khoso, CJ.—By this Constitution Petition under Article- 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioners have prayed for relief as under :- "It is humbly prayed that this Hon'ble Court may be pleased to direct third respondent to refrain from stopping the petitioners from transporting items of Foodstuffs etc. issued under Rahdari to Killi Mehmoodabad as his said action is not permitted under any law, rather the third respondent is acting in unlawful manner and in violation of the provisions of West Pakistan Border Area Foodstuff (Control) Order, 1958, thus he may further be directed to act according to law. Cost of the Petition may also be awarded". 2. The brief facts giving rise to this petition are that petitioners are shop­ keepers and residents of Killi Mehmoodabad Ward No.17, Municipal Committee, Cham an, living within the border area which is covered by the provisions of Pakistan Border Area Foodstuffs (Control) Order, 1958, where under Section 5(/) no person is allowed to transport foodstuffs without a permit issued by the District Magistrate. For convenience sake relevant provision of law is reproduced as under "5. No person shall except under a permit from the District Magistrate transport foodsuffs :- (/) into the border area by any means from a place outside the said area": 3. It is case of the petitioners that inspite of valid permits issued by District Magistrate, the Commandant Pishin Scouts, Chaman is not allowing them to transport foodstuffs in Killi Mehmoodabad, hence relief in terms mentioned hercinabove be granted to them. 4. We have heard Mr.Azizullah Memon Advocate for petitioners and Mr.Muhammad Riaz Ahmad, learned Standing Counsel for respondents. 5. It was urged by Mr.Azizullah Memon, learned counsel for petitioners that despite permits issued by District Magistrate, Pishin, the respondent No.3, does not allow them to transport the foodstuffs to Killi Mehmoodabad. He vehemently convassed that such action of respondent No.3 is in clear violation of Section 5(/) of the Border Area Foodstuffs (Control) Order, 1958, hence directions be issued to him that he should not stop the petitioners from transporting the foodstuffs there. 6. Whereas, it was strenuously stressed by Mr.Muhammad Riaz Ahmad learned Standing Counsel that Killi Mehmoodabad does not fall within the limits of Municipal Committee, Chaman besides the petitioners were getting permits of huge quantity of foodstuffs from District Magistrate, which is being utilized for smuggling foodstuff to Afghanistan, hence they are not being allowed to transport foodstuffs to Killi Mehmoodabad. 7. To appreciate, the contentions raised by parties, it would be pertinent to reproduce certain portion of parawise comments filed by three respondents. "1. Contents of Para-No.l are misconceived. The said petitioners are neither shopkeepers of Killi Mehmoodabad nor Killi Mehmoodabad has any organized shops. The formation pertaining to number of families and facilities like schools, mosques, tubewells has been exaggerated with the sole purpose to benefit the petitioners. This information not only merits to be confirmed through a commission, but Haji Behram Khan Chairman, Municipal Committee, Chaman and Mr Jalal Khan the then Assistant Commissioner, Chaman be made party in this case for furnishing misleading memos/certificates attached at Annexures 'A' and 'B' 'C and 'D' of the petition. The authenticity of information contained in Anncxure 'A' and 'B' can best be challenged by comparing following figures shown therein :- (a) Families. Annex. 'A' Annex. 'B' 1000 900 Mosques. Over 20 22 (b) Distance from Border. 6 K.M. 3 K.M. Para-1 is also misconceived so far it states that Killi Mehmoodabad is within the Municipal Limits because it gives wrong impression that Killi Mehmoodabad is part of or extention of the built-up area of Chaman Town. The factual position is that like all the Killies in the area, Killi Mehmoodabad is an independent and well detached settlement away from Chaman Town. Thus Killi Mehmoodabad being between the Custom Barrier and the Border Zero Line cannot be equated with Chaman Town which is away from Custom Barriers and is treated as a free market where any one can sell or buy anything including foodstuff without any restriction. It is also misconceived so far it attempts to cover Rahdaris issued by District Magistrate Pishin on equal footing to Chaman and Killi Mehmoodabad which happens to be between Custom barrier and Border Zero line. The Commandant has no legal obligation to accede to such a request". The respondent No.2 has taken monotoneous stand. However, respondent No.l though has taken the same stand but in the end of Para-15 has given undertaking that it is however, re-assured that valid Rahdaris will be honoured in accordance with law of land". In background of above said facts the real dispute between the petitioners and respondents can be divided in two issues :- (/) Whether Killi Mahmoodabad falls beyond limits of Municipal Committee, Chaman ? and (/'/) Whether petitioners procured permits of huge quantity of foodstuffs for purpose of smuggling ? 8. We have minutely gone through the documents filed by parties and have given thorough consideration to the contentions raised by learned counsel (for) parties. It may be seen that in letter dated 12th of April, 1990 the Chairman, Municipal Committee, Chaman, has categorically stated that Killi Mehmoodabad falls within the limits of Municipal Committee, Chaman. The same is reproduced as under :- To The Inspector General, Frontier Corps, Balochistan, Quetta. Subject: PERMISSION OF RAHDARI FOR THREE KILLIES WITHIN MUNICIPAL OMMITTEE CHAMAN LIMIT: R/Sir, Being Chairman, Municipal Committee, Chaman I Behrani Khan Achakzai, personally invite your kind attention to a very important issue faced by habitants of Ward No,17 Killi Mehmoodabad, Killi Haji Khaliqdad and Killi Haji Habibullah Chaman:- That above cited Killies are included in Municipal Limit, while these Killies are away 11/2 KM from Chaman Town , where a barrier check post of Pishin Scouts falls in the way to Killies. However, Deputy Commissioner, Pishin, issues Rahdari for all Food Commodities of daily required articles, from a long period, but it is regretted to say that Commandant Pishin Scouts, recently transferred to Chaman does not allow Rahdari goods to these Killies. Although your kind honour and Chief Secretary Government of Baluchistan, Quetta have ordered through wireless message to allow Rahdari goods, but Commandant Pishin Scouts Chaman does not act upon these orders and residents of three thick populated Killies are deprived from their basic rights. Deputy Commissioner District Pishin has also requested the Commandant to allow Rahdari articles for these Killies ut in vain. This behavour is not justified for him. Therefore your honour is requested to very kindly ask the Commandant Pishin Scout Chaman to allow legal articles permitted by Deputy Commissioner, Pishin for these Killies. I shall be grateful to you for your kind co-operation of the area demand. This case may kindly be considered on priority basis please. Sd/- (Haji Behram Khan Achakzai) Chairman Municipal Committee, Chaman". Besides this, letter No.PS/CS/90 (D) dated 13th January, 1990 issued by Chief Secretary Government of Baluchistan to Inspector General, Frontier Corps, Baluchistan (Annexure 'E') has affirmed the position. It reads as under :- From:- The Chief Secretary. Government of Baluchistan, Quetta . To The Inspector General, Frontier Corps, HQrs. Frontier Crops, Baluchistan, Quetta. No.40-PS/CS/.90(D) Dated the 13th January, 1990. Subject: TRANSPORTATION OF FOODSTUFFS AND OTHER ESSENTIAL NECESSITIES OF HUMAN LIFE: Enclosed is an application of one Haji Habibullah Councillor, Mahmoodabad Chaman, District Pishin. As can be seen from application, he has been given a monthly quota for the transportation of foodstuffs and other essential items for the inhabitants of Killi Khaliqabad, Killi Haji Mehmood Killi Haji Habibullah etc. However, the Rahdari issued by the Deputy Commissioner for these Villages is not being honoured. These villages are in Pakistan and one cannot expect the inhabitants of these villages to stock or to g 't their individual rations. It is, therefore, requested that the Rahdari for essentia> foodstuffs meant for these inhabitants be honoured and the Colonel Incharge be directed to allow the food stuffs to move to these villages. Sd/- (S.R.Poonegar) Chief Secretary Government of Baluchistan, Quetta. 9. On ihe other hand, except oral arguments advanced by learned Standing Counsel for respondents, no material was placed on record before us to show that Killi Mahmoodabad docs not fall within the local limits of Chaman. In such situation we have no hestiation in arriving at the conclusion that Killi Mahmoodabad falls within the limits of Municipal Committee, Chaman. 10. Turning to the second issue, it may be observed that Section 5(0 of the West Pakistan Border Areas Foodstuffs (Control) Order, 1958, confers powers upon the District Magistrates to issue permits for transporting Foodstuffs in the Border Area. Nowhere the law authorises respondents to question permits issued by the District Magistrate. The law authorises the respondent No.3 to see whether a person holds a valid permit issued by District Magistrate for purpose of transporting foodstuffs within the border area or not. It is therefore, very easy to say that respondent No.3 is acting in a manner which is not permitted by law. The letters issued by Chief Secretary, Government of Baluchistan and the Chairman, Municipal Committee, Chaman to Inspector General, Frontier Corps confirm the illegal action (if respondent No.3. Thus law is clear that a District Magistrate has the authority to issue permits for transporting foodstuffs in the Border area and respondent No.3 has no authority to challenge the same and restrain the petitioners from transporting foodstuffs on valid permits. The respondent No.l in parawisc comments has given assurance that valid Rahdaris would be honoured in accordance with law of land. Indeed it is not a concession given by the respondent No.l but the Constitution guarantees such right of citizens. 11. In these circumstances, we are inclined to declare that action taken by respondenl No.3 in not allowing the petitioners to transport foodstuffs on basis of valid permits issued by District Magistrate to Killi Mahmoodabad is illegal void and without lawful authority; consequently the respondent No.3 is directed to desist from interfering with the transport of foodstuffs by petitioners on valid permits issued by District Magistrate, Pishin to Killi Mahmoodabad. 12. Before parting we may observe that the Chief Secretary, Government of Baluchistan and the Secretary, Ministry of Interior, Government of Pakistan should see that cilizens of Pakistan residing within the border areas of Baluchistan are not deprived of their legal rights ensured under the Constitution of Pakistan. If there is any working misunderstanding between the provincial administration and Federal Agency that may be resolved amicably. The petition is accepted with costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Quetta 14 (DB) PLJ 1992 Quetta 14 (DB) Present: MlR hazar kuan Klioso, CJ AND iftikiiar MUHAMMAD CHAUDHRY, J MUHAMMAD ANWAR-Petitioner versus CHIEF ELECTION COMMISSIONER, and another-Respondents Const. Petition No.66 of 1991, dismissed on 12.3.1991. Houses of Parliament and Provincial Assemblies (Election) Order, 1977'(P-O.5 ol'1977)-- —Art.5-Scnale~Election to reserved seats of-Rejection of nomination papers—Challenge to—Whether petitioner was qualified to contest election of Senate against seat reserved for Professionals—Question of—Petitioner does not possess any other professional qualification which is recognized nationally or internationally-Mercly obtaining digree of law and getting himself enrolled as an Advocate, is not sufficient to satisfy condition-Petitioner has not demonstrated before court anything to show that due to extra-ordinary eminence and excellency or efficiency in field of law, he has made remarkable performance amongst members of legal fraternity which placed him at a high level—Meld: Appointment of petitioner as Special Assistant to Chief Minister would not amount to recognizing his legal knowledge in profession—Petition dismissed. [Pp.l7,18&19]A,B&C PLJ 1988 SC 169 rel. Mr. Tariq Mahmood, Advocate for Petitioner. Mr.Mithaminad Rlaz Ahmad, Standing Counsel, and Raja M. Afsar, Advocate General for Respondents. Dale of hearing: 10.3.1991. judgment Mir Hazar Khan Klioso, CJ.--The petitioner has challenged the order of Reluming Officer to the Senate for Baluchistan, dated 2nd of March, 1991 and order dated 6th of March, 1991 passed by Chief Election Commissioner, whereby appeal of petitioner against the aforesaid order of Returning Officer was dismissed. 2. Facts in brief, for disposal of this petition, are that petitioner filed nomination papers for election to Senate against reserved seat of Professionals allocated to the Province of Baluchistan. The Returning Officer on the day of scrutiny examined all the points raised before him and passed prder dated 2.3.1991 whereby his nomination pepers were rejected. Relevant portion of the order is reproduced hereunder:-- "3. In view of what has been discussed above and after listening the arguments of Mr.Muhammad Anwar Durrani and Mr.Khalid Malik, Advocate I am of the opinion that Mr.Durrani has failed to establish that he is a man of distinction in his profession or possesses any Professional competence as envisaged in the law". The petitioner challenged the order of Returning Officer before the Chief Election Commissioner, the appeal also met with same fate and was dismissed vide order dated 6th of March, 1991. 3. In support of the petition, Mr.Tariq Mehmood, learned counsel for petitioner, has contended as follows :-- (/') Petitioner being a practising lawyer in Quetta Bar has Special knowledge of law therefore, he is qualified to contest the election in Senate against reserved seat of Professionals. (h) Petitioner was appointed twice as a Special Assistant to Chief Minister with a status of Provincial Minister on legal matters and Information by the Government of Baluchistan vide Notification dated 1st of April, 1989, and subsequently during tenure of CareTaker Provincial Government, he was again appointed on 19th August, 1990 as Special Assistant lo Chief Minister with a status of Provincial Minister on Legal Matters and Information. In view of these two assignments of the High Office, the petitioner has attained distinction in profession of law. (///) Petitioner was elected by the members of Baluchistan Bar Association, twice as General Secretary and once as Vice President, which amount to recognition of his professional qualification. 4. On the other hand, Mr.Riaz Ahmad learned Standing Counsel has opposed the petition by contending;— (/) That there is concurrent finding of acts recorded by respondents against the petitioner thus in writ jurisdiction such finding cannot be interfered wilh. (//) That petitioner does not fall within the category of professionals as defined under Article-5 of the Houses of Parliament and Provincial Assemblies (Election Order), 1977. (Hi) That mere appointment as Special Assistant or Advisor to Chief Minister of Province, will not create any professional distinction in his favour. To strengthen his arguments he stated that in the notification of his appointment as Advisor to Chief Minister it is not mentioned that in recognition of his high calibre or knowledge in any special field of law, he is being appointed as Special Assistant to Chief Minister of Province. 5. Raja M. Afsar, learned Advocate General also argued the case at length and opposed the petition on various grounds. The main thrust of his arguments was that petitioner has not shown any remarkable performance in field of law as an Advocate and he does not possess knowledge in a special area of law and just qualifying examination of L.L.B. and getting himself enrolled as an Advocate is not sufficient to claim himself a man of distinction in the profession of law. 6. In order to decide the moot question involved in this case, i.e. whether petitioner does possess qualification of a professional or technocrat within the meaning of Article-5 of the Houses of Parliament and Provincial Assemblies (Election Order), 1977 or not, it would be profitable to reproduce the definition of word Professional as explained in above quoted law:— "(c) "Professional" means a person of distinction with nationally or internationally recognised professional qualifications and practical experience at a high level in a specialised area of knowledge who has been practising in his specialisation by adopting it as his principal calling, vocation or employment". The analysis of the definition of word 'Professional' indicates that following requirements are to be fulfilled by a candidate in order to make himself qualified for contesting election in Senate against the reserved seat for Professionals: He must be a person of distinction; He must possess nationally or internationally recognized professional qualification. (iii) He must have practical experience at a high level in a Specialised area of knowledge; and (lY) He has been practising in his specialised field as his principal calling; vocation or employment. 7. Keeping in view above requirement of law, it is necessary to examine coulmn No.10 of nomination papers, where petitioner has given his special qualification and skill, the same reads as under:— "M.A.LL.B. Lawyer. Practising as an Advocate Civil and Criminal side. More than 15 years. Advocate pf High Court". In the sheet annexed with the nomination papers following facts have been stated by the petitioner:-! "1. Struggled for "Rule of Law" for instance, filed Constitution petition in the High Court of Baluchistan as an Advocate, challenging the illegal dissolution of Baluchistan Provincial Assembly. The Assembly was restored by the High Court. The said decision is unique in the history and is in fact a land mark for future. 2. During his tenure as Special Assistant to the Chief Minister, Government of Baluchistan for Legal Affairs, with the status of Provincial Minister, actively participated in Constitutional requirement relating to separation of judiciary. 3. During the previous Martial Law Regime, when the powers of judiciary were usurped he actively participated in various lawyer's conventions for restoration of Rule of Law, independence of judiciary and revival of Democracy. Such conventions were held on national scale, at Karachi, Peshawar and Lahore in years 1981 and 1983. He participated and addressed in said conventions as Acting President of Baluchistan Bar ssociation which is a body of Lawyers of entire Baluchistan . 4. That UNICF (an organ of United Nations Organization) have held Seminars on the "Children Rights" at Quetta and Ziarat in the year, 1990 where he addressed in the capacity of Legal Expert. 5. He is active member of Human Rights Commission and had been participating in all such functions which relate to law. 6. He rendered legal, advice in Pushtoo Programme Broadcasted from Quetta Radio Station". 8. The credentials given by petitioner in nomination papers are not sufficient to hold that he is a man of distinction in legal profession. 9. In order to prove this requirement of law, it was incumbent upon him to show high performance of his calibre, achievement and competency in the profession of law, so that he could have placed himself at a high pedestal, comparing to other members of profession. He also does not possess any other professional qualification, which is recognized nationally or internationally, merely obtaining the degree of law and getting himself enrolled as an Advocate, is not sufficient to satisfy this condition; in this context, no material is available on record to prove his special qualification in the field of law, on the basis of which he was recognized nationally or internationally. Similarly no iota of evidence was produced before us to point out his practical experience at a high level in a special area of knowledge and there is also no indication on record to show that he was practising in special field of law. It may be observed that the Constitution has created reserved seats for Professionals in the Highest Legislative body i.e. Senate, therefore a candidate who has just qualified an examination would not be able to represent his class of profession effectively. The Hon'ble Supreme Court has 1 considered this legal proposition in case of Farooq Hassan v. Mumtaz Ahmad, reported in P.L.J. 1988 S.C. 169. Relevant portion at page 184 is reproduced below:-- "The reservation made for a distinct professional or occupational group in the highest legislative body of the country is an exception and a special provision which has to be interpreted strictly and only those who satisfy the conditions of competence, of qualification, or experience and of standing as prescribed in the law can be held eligible. There can be no relaxation of the requirement of the law". 10. The petitioner has not demonstrated before us anything to show that due to extraordinary eminence and excellency or efficiency in field of law he has made remarkable performance amongst the members of legal fraternity which had made him a person of distinction and due to outstanding credentials in his favour in the rank of Advocates, he has placed himself at a high level. 11. As field of law is a vast field and there are many branches of law, thus any person who is putting himself as a candidate in Senate against reserved seat for professional, he has to point out about his achievements, research work etc. in rder to bring himself within the definition of professional. The high knowledge of law should also be of such a category which is recognized nationally and internationally, as for instance, in our country we can refer to many eminent Jurists like late A.K.Brahvi and Mahmood Ali Qasoori. They were prominent in the profession as they had made full justification with their job, resulting in production of creative and research work which is recognition of their high knowledge in special area of law. 12. Although an Advocate had the knowledge of law, but to prove himself as professional, he has to prove an extraordinary competency in the field of law. In absence of such like thing, no relaxation can be given to anyone. We should keep in our mind that compromise in relaxing the requirement of law, infact would amount to circumvent the status of institution of Senate which is a highest legislative body in the country. 13. Indeed to be a member of Senate against reserved seat of Professional itself is a matter of great proud and privilege and before assuming such high office one should prove his talent and knowledge by making himself a distinctive person than the other. 14. The great thrust of the petitioner's counsel was that he was appointed twice as Special Assistant to Chief Minister of Baluchistan on legal matters as such, or» this he can claim distinction in the legal profession. The perusal of the Notifications of appointment dated 1.4.1989 and 19.8.1990 indicates that petitioner's appointments were made by Government of Baluchistan in pursuance of Rule 9(fo) of the Rules of Business, 1976. However this rule does not provide any academic qualification for the appointment of Advisor or the Special Assistant to Chief Minister. For reference above rule is quoted below :—"9-B. There may be a Special Assistant or Special Assistants to the Chief Minister with such status and functions as may be determined by the Governor on the advice of the Chief Minister. 9-C. There may be an Advisor or Advisors to the Chief Minister with such status and functions as may be determined by the Governor on the advice of Chief Minister". Since the appointment of petitioner was a matter of discretion therefore it would not amount to recognising his legal knowledge in profession and this would also not make him known nationally and internationally with reference of his special knowledge in the field of law. The upshot of the above discussion is that petition having no force is ordered to be dismissed with no order as to costs. This constitutes the reasonings of our short order of even date. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Quetta 19 PLJ 1992 Quetta 19 Present: MUNAWAR AHMAD MlRZA, ACJ GOVERNMENT OF BALUCHISTAN-Petitioner versus GHULAM MUHAMMAD-Respondent Civil Revision No. 244 of 1990, accepted on 12.6.1991 (i) Ex-parte Decree-- —-Declaratory suil-Ex-parte decree passed in-Challenge to—Whether ex-parte decree could be passed merely because defendant was absent-Question of- After drawing ex-parte orders, trial court recorded statements of certain witnesses but while passing ex-parte decree, no reference was made to any evidence and judgment was pronounced against petitioner merely because of its absence-Superior Courts have always looked with disfavour decrees granted against absentees without consideration of available record or application of mind-Spirit of law clearly suggests that whenever trial court does not find it necessary to examine evidence, it must give reasons for deciding claim without further proceedings-Held: Ex-parte decree passed by trial court merely because defendants were absent, has no legal sanction and is clearly devoid of lawful authority. [Pp.21&23]A&B PLJ 1986 Ouetta 168, PLD 1962 SC 663, PLD 1969 Quetta 81 and PLJ 1978 SC 189 rel. (ii) Limitation-- — Declaratory suit— Ex parte decree passed in—Challenge to—Delay in filing appeal-Whether glaring illegality should be allowed to perpetuate or revisional jurisdiction be exercised to rectify inherent wrong-Question of- Courts have always insisted for determination of dispute on merits-Under settled practice, perfunctory, wreckless,, non-speaking, arbitrary, malafide or unjust orders have never been approved— Held: Mere technicalities cannot obstruct powers of superior courts about correcting patent illegality or extremely unfair decision-Petition accepted and case remanded for fresh decision. [P.24JC Raja M. Afsar, Advocate General for Petitioner. Mr. Khalid Malik, Advocate for Respondent. Date of hearing: 9.6.1991. judgment Brief facts leading to the filing of present petition are, that respondent Ghulam Mohammad on 28.3.1987 instituted civil suit for declaration, ownership and possession concerning land and Bund Styled as Chukani-Sheap situated at Turbat. It was alleged that said property was purchased by him from Malik Dinar Khan Gichki during year 1965. Defendant Deputy Commissioner, Turbat submitted written statement, repudiating the claim in suit. Questions regarding maintainability of suit, deficiency of court fee, and bar through res-judicatq were specifically raised by way of preliminary objections. It was asserted that land in dispute belonged to Government of Balochistan and respondent Ghulam Muhammad had absolutely no right or interest in the same. Subsequently none appeared on behalf of petitioner (and) accordingly exparte decree was passed by learned Qa/,i Turbat on 23.11.1988. Said judgment is reproduced below in extenso:- Petitioner submitted an application for setting aside exparte decree towards December, 1989 which was dismissed as barred by time. Thereafter in January, 1990 appeal No.6 of 1990 was preferred before Majlis-e-Shoora, Mekran challenging exparte decree and subsequent orders passed by trial court. It may be seen that appeal was eventually dismissed by said court on 26.3.1990. Thereafter present petition was moved challenging exparte decree of learned Qazi Turbat, (and) subsequent orders as well as judgment of Majlis-e-Shoora, dated 26.3.1990. At the out-set, Mr. Khalid Malik learned counsel for respondent objected to the maintainability of petition on the ground of limitation. It was further contended that appeal No.6/90, filed by petitioner before Majlis-e-Shoora, Mekran challenging exparte decree and orders passed thereafter, were similarly barred by time, therefore, in the absence of application for condonation, Majlis-e-Shoora rightly dismissed the same. Raja M. Afsar Advocate General replying the objections, argues that exparte judgment and decree dated 23.11.1988 passed by learned Qazi Turbat lacked reasoning and reflected non-application of mind; thus same was ex-fade void. According to him question of limitation had no relevancy as regards void orders. He further submitted that trial court while passing exparte decree was obliged to dilate upon preliminary objections raised in the written statement besides making comments on the merits. However failure to comply with basic legal requirements resulted in gross-miscarriage of justice. In the instant case after drawing exparte proceedings trial court recorded statements of certain witnesses, namely Muhammad Younus, Muhammad Sharif, Behram, and Arz Mohammad. But while passing exparte decree, no reference was made to any portions of evidence and judgment had been pronounced against petitioner merely because they were absent. In the circumstances it has to be seen whether exparte judgment and decree dated 23.11.1988 passed by trial court is legal and sustainable. There has been consistant practice of the courts to record ex pane evidence and after examining claim of plaintiff exercise its discretion judiciously, for granting exparte decree. No doubt by virtue of amendment introduced through Ordinance XII of 1972 in Order IX Rule 6(1)(0) C.P.C. courts, can pass exparte decree even without recording evidence because under the amended provisions now pleadings must be filed on oath or solemn affirmation. Nevertheless superior courts have always looked with disfavour, decrees granted against absentees, without consideration of available record or application-ofmind. Factually amended provisions do not provide any arbitrary authority or blatant discretion to award decrees by closed eyes. Even now, it is stressed that trial courts, may record some evidence in support of plaintiffs claim and after conscious appraisal of the claim should decide the matter. Spirit of law clearly suggests that whenever trial court does not find it necessary to examine evidence it must give reasons showing justification for deciding the claim without taking further proceedings. In order to ascertain legal requirement for passing exparte decree under un-amended provision as well as subsequent to amendment of 1972 reference to some of reported judgments would be necessary. Extracts from following judgments are reproduced:- (/) East and West Steamship Co. vs. Queensland Insurance Co. (P.L.D. 1962 Supreme Court 663). "There can be no doubt of the duty of the court to ensure, even when proceedings are exparte, that its decision is in accordance with the facts, which should be ascertained with as much care as possible in the absence of any contesting party. In the present case, however, there seems no occasion to doubt that the fact of the loss and the evaluation of the goods which were lost was carried out according to recognised principles applicable to contracts of marine carriage, and the practice of marine insurance." (//) Shewal Mai vs. Seth Bhawani Mai Tara Chand (P.L.D. 1969 Quetta 81) "8. In view of the above authority of the Supreme Court, I proceed to consider the objection of Mr. Hanafi that the ex-parte order passed by the Hakim or the Nazim Dhadar was without jurisdiction. I may mention that the interpretation which has been advocated to by Mr. Mirza Mohammad Ahmad does not appeal to me as fair and just to the party against whom exparte proceedings may be ordered, because the consequence of his interpretation would be that the Hakim would be able to grant an exparte decree with blindfolded eyes as soon as he comes to the conclusion that the defendant has failed to appear in spite of service because admittedly he has no jurisdiction to try suit. The present view of the law as enunciated by the Supreme Court, in a matter of this nature is that the court cannot grant an exparte decree without applying its mind to the facts and the law of the case—See in this respect East and West Steamship Co. vs. Queensland Insurance Co. Moreover purely technically, there seems to be no reason for giving a restricted meaning to Section 22 of the said Code by excluding from its ambit those cases in which ex-parte preceedings may have been ordered." Shamroz Klian and another vs. Muhammad Amin and others (PLJ 1978 Supreme Court 189). "The words "and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the courts or does it mean as submitted that it was incumbent on courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, courts would be compelled to decree patently time-barred suit or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the legislature, nor would be justified in doing so because the amended rule now reads: " ............... the Court may proceed ex-pane and pass decree without recording evidence...." This means that the court may proceed ex-parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents. The petition is without merit and is dismissed." (iv) Mistri Muhammad Hassan vs. Haji Said Muhammad and others (P.L.J. 19860uetta 168). "Undoubtedly the court is competent to pass a decree without recording evidence. But this does (not) absolve the court of its responsibility of being satisfied about propriety and genuineness of the claim on the basis of averments of plaint duly verified on oath and documents etc. attached therewith. Discretion for proceeding to pass a decree without recording evidence is obviously available in just and proper cases. It however, cannot be deemed to be exercisable in an arbitrary, capricious or fanciful manner. Evidently the court in deciding to proceed without recording evidence is expected to be guided by judicial principles to satisfy its judicious conscience for approving assertions in the plaint. For arriving at proper conclusion it is obligatory for the court to specify its basis for doing so on sound and cogent reasoning. Thus even if for justifiable grounds, evidence is not found necessary to be recorded; yet strong basis must pre-eminently exist to substantiate the claim which obviously should be reflected from judgment in the shape of sound, cogent and convincing reasonings." It is thus quite obvious that observation of the trial court for passing ex-parte decree merely because defendants arc absent has no legal sanction. The ex-parte decree was clearly devoid of lawful authority. It was then contended that appeal has been filed after considerable delay and valuable right accrued in favour of plaintiff respondent which could not be lightly taken away. Learned Advocate General repelling above contentions argued that, bar of limitation is not operative in respect of void orders, and whole edifice constructed on the basis of such defective proceedings automatically crumbles. To substantiate his submission, reliance (is) placed on the observation in cases (i) Yousuf All v. Mohammad Aslam Zia and others (PLD 1958 SC 104) (ii) Mumtaz Klian \s.Chief Settlement and Rehabilitation Commissioner and another (PLD 1966 SC 276) (iii) Syed Nazir Hussain vs. Settlement Commissioner Lyallpur (PLD 1974 Lahore 434)(iv) Mst. Rehmat Bibi and others vs. Punnu Khan and others (1986 SCMR 962) (v) Manager, Jammu & Kashmir, State Properties in Pakistan vs. KJiuda Yar and another (PLD 1975 SC 678) (vi) Khuda Bakhsh vs. Khushi Mohammad and 3 others (PLD 1976 SC 208) (vii) Sind Employees Social Security Institution vs. Dr. Mumtaz All Taj and another (PLD 1975 SC 450) (viii) Chittaranjan Cotton Mills Ltd., Staff Union (PLD (?) SC 197), (ix) Syed Qasim Shah vs. Deputy Commissioner, Kachhi District and another (PLD 1976 Quetta 42). There is apparently considerable delay in filing the appeal before Majlis-e-Shoora. However, question arises whether glaring illegality, should be allowed to perpetuate or revisional jurisdiction even suo-moto be exercised to rectify inherent wrong. It may be seen that courts have always insisted for determination of dispute on merits after proper opportunity and due consideration of claim of parties. Similarly under settled practice, perfunctory, wreckless, non-speaking, arbitrary, malafide or unjust orders have never been approved specially when dispute relates to rights concerning immovable property. Thus mere technicalities cannot obstruct powers of superior court about correcting patent illegality or extremely unfair decision. Evidently original ex-parte decree dated 23.11.1988 does not disclose any reasoning or application-of-mind. It has been passed flagrantly disregarding essential requirement of law. Besides testimony of witnesses recorded by plaintiff/respondent in the shape of ex-pane evidence does not indicate how Malik Dinar Khan claimed ownership of suit property. Substantial evidence has not been produced by plaintiff/respondent. None of the objections raised in the written statement have at all been attended to by the forums below. Even appellate court has not visualised inherent defects of ex-parte decree. Keeping in view illegalities apparent on the face of record, in my opinion it is a fit case for exercising revisional jurisdiction so that wrong is remedied and defects of both sides are rectified. Accordingly to avoid prejudice to the parties and for ensuring determination of dispute on merits, I am inclined to accept the petition, set aside the exparte judgements and decrees as well as orders passed by both the courts below and remand the case to learned Qazi Turbat for disposal according to law after proper notice to the parties. There shall however be no order for costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Quetta 25 (DB) PLJ 1992 Quetta 25 (DB) Present: munawar ahmad mirza, CJ and iftikhar muhammad chaudhry, J SWE-PAK PHARMACEUTICALS LIMITED-Petitioner versus REGISTRAR, TRADE UNIONS, BALUCHISTAN, and another-Respondents Const. Petition No. 192 of 1991, dismissed on 10.12.1991 Industrial Relations Ordinance, 1969 (XXIII of 1969)- —-S. l(3)(a)~Employees Union-Declaration as Collective Bargaining Agent-­ Challenge tq-Whether employees of petitioner organisation perform functions connected with or incidental to defence services and provisions of I.R.O. are not applicable to them—Question of—Principle for excluding operation of I.R.O. to any institution or organisation presupposes that services of employees therein have nexus with functions, responsibilities or obligations relatable to Armed Forces-It is clear that functions of employees or manufactured products of petitioner's concern, have absolutely no direct or incidental link or connection with Armed Forces or Administration of State- Held: Formation of Union by workers in Petitioner's organisation, unless otherwise prohibited, is not violative of law-Petition dismissed. [Pp.27,31&32]A,B&C PLJ 19S- 7 Tr.C (Labour) 30. 1988 SCMR 765 and 1990 P.S.C.C. 1258/e/. 1974 PLC 10. 1976 PLC 322. 1976 PLC 855, 1977 PLC (S.C.) 110,1979 PLC 260, 19~9 PLC 148. 1983 SCMR 1101 and 1990 PLC 218 distinguished. Mr. M. Zafar, Advocate for Petitioner. M/S Suleman Habib, K.N. Kolili and Zafar Mandokhel Advocates for Respondents. Date of hearing: 2.12.1991. judgment Munawar Ahmad Mirza, CJ.~Facts relating to present petition are very brief and simple. 2. SWE-PAK Pharmaceuticals Ltd. is a Company incorporated under the Companies Ordinance, 1984. It is engaged in the business of manufacturing and marketing of intravenous solutions. The petitioner Company has its factory at Hub with Head Office at Islamabad. It is allleged that petitioner is a subsidiary of Shaheen Foundation Pakistan Air Force and beneficiaries therefrom are persons connected with or incidental to Pakistan Air Force. Admittedly 76 employees are working in petitioner's organization. Towards January, 1991 employees of petitioners approached Registrar Trade Unions Baluchistan for registration of Unions. Eventually on 27th February, 1991 certificate for registering SWE-PAK Unions. Eventually on 27th February, 1991 certificate for registering SWE-PAK Pharmaceuticals Employees Union was issued by the Registrar Trade Unions Baluchistan and intimation sent to petitioner. Subsequently respondent Union applied to Registrar, for being declared as Collective Bargaining Agent. Necessary certificate was also issued on 6th June, 1991. 3. Aggrieved from Certificate of Collective Bargaining Agent, petitioner in April, 1991 filed a petition under Section 34 of Industrial Relations Ordinance, 1969 before Labour Court-Ill, Balochistan at Hub which was contested by respondent Union. Learned Presiding Officer Labour Court-Ill rejected the application being incompetent vide order dated 27th May, 1991. 4. It is the case of petitioner that its organization being subsidiary of Shaheen Foundation and created for benefitting persons connected with or incidental to Air Force, is immune from operation of Industrial Relations Ordinance, thus Section l(3)(a) of Industrial Relations Ordinance creates bar for registration of Union of the workers engaged in petitioner's organization. Accordingly registration of said Union declaring it as Collective Bargaining Agent, is violative of law. Therefore being dis-satisfied from decision of Labour Court instant Constitutional Petition was filed on 30th August, 1991 in which following relief was sought:- "It is, therefore, prayed that this Hon'ble Court be pleased to set aside the orders dated 27.2.1991 and 5.6.1991 as having been passed without lawful authority, without jurisdiction, void and of no legal effect and also set-aside the notice dated 4th August, 1991 being without lawful authority and jurisdiction with costs of the Petition with any other relief which is deemed fit and proper under the circumstances of the petition". \ 5. Respondent Union filed counter affidavit contesting the claim in petition. It was asserted that petitioner is an independent industrial commercial organization having a separate entity from Shaheen Foundation. It was expressly averred that petitioner company has its own Memorandum and Article of association specifying aims and objects thereby (and) has no inter-dependence or connection with Shaheen Foundation. It was further explained that petitioner being commercial organization was set up for earning profits through business therefore provisions of Industrial Relations Ordinance were applicable to its employees. 6. Registrar Trade Unions also filed counter Affidavit on 20th August, 1991 wherein it was explained that petitioner's company is industrial and commercial organization, therefore, its employees had been rightly registered as Trade Union. It has been asserted that action for registration of Trade Union and issuance of certificate declaring respondents-Union as Collective Bargaining Agent was in accordance with Section 22 of I.R.0.1969. 7. Mr. M.Zafar Advocate vehemently contended that petitioner-Factory had been set up as subsidiary of Shaheen Foundation for providing benefits only to persons connected with or incidental to Air Force. It was argued that by virtue of Section T(3) I.R.O. Petitioner Factory was exempted from the application of Industrial Relations Ordinance. Learned counsel canvassed that action of Registrar Trade Unions regarding grant of registration certificate to petitioner's employees or issuance of Collective Bargaining Agent Certificate in their favour lacked jurisdiction and was totally without lawful authority. He has referred case law to substantiate his contention. Whereas on the other hand Mr. Suleman Habibullah learned counsel for respondent No.2, contended that petitioner is factory carrying out its commercialenterprise for acquiring gains. It was argued that element of beneficiaries has no relevancy for examining applicapability of Industrial Relations Ordinance, 1969. Learned counsel submitted that without availing alternate remedy under Section 37 I.R.O. present petition was not competent. We have carefully considered the arguements advanced by learned counsel for parties in the light of available record and case law. In the instant case most pivotal question requiring determination would be whether employees of petitioner's Organization, perform functions connected with or incidental to defence Services of Pakistan or have obligations and services associated with administration of State. Petitioner is admittedly incorporated under the Companies Ordinance, 1984 and engaged in business of manufacturing and marketing of intravenus solutions. Aims and objects for establishing Company are specified in Para-3, of Memorandum and Article of Association. Petitioner Company is performing its functions with Swedish Collaboration where extent of participation, financing and share are also specified in Article of Association. Therefore, it is to be ascertained whether petitioner would be entitled to protection under Section 1(3) I.R.O. For reference relevant provision is reproduced below: - "1. Short title, extent, application and commencement: (1) ................ (2) ............................................. (3) It shall not apply to any person employed- (a) in the Police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government; (b) in the administration of the State other than those employed as workmen by the Railway, Posts, Telegraph and Telephone Departments; (c) as a member of the Security Staff of the Pakistan International Airlines Corporation, or drawing wages in such pay group, not lower than group V, in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette specify in this behalf. (d) ........................... (/) ................ Before diaiating upon circumstances wherein party can claim exemption from the operation of I.R.O. it would be appropriate to review ratio decidendi of reported judgments placed for consideration in this case. (/) Gammon (Pakistan) Ltd Rawalpindi vs. Muzaffar KJian and 7 others (1974 P.L.C. 10). In this matter respondents were employees of Gammon (Pakistan) Ltd. The organisation dealt with construction work. It was assigned construction work of the Ordinance Depot. Labour Appellate Tribunal Punjab, held that irrespective of company being private concern for the limited purposes of construction of Ordnance Depot its employees were not regulated by provisions of I.R.O. (//) Workers Union vs. Registrar Trade Unions (1976 P.L.C. 322). The construction company was assigned work by Pakistan Navy at Islamabad for construction of its residential complex. It was held by Punjab Labour Court, that workers employed by construction Company for the implementation of said project would be deemed to perform functions incidental to services rendered for Armed Forces whereby provisions of I.R.O. woud be inapplicable. (Hi) United Builders & Associates vs. Presiding Officer, Punjab Labour Court No.l and others (1976 P.L.C. 855). Petitioner Company was engaged in constructing Highway of National importance under the control of Armed Forces. Persons employed by the contractors for implementation of said contract work were found immune from availing benefits of I.R.O. for enforcing their rights till completion of road-construction-work controlled by the forces. (iv) Ch. Raftq Ahmed Shah and another vs. Chainnan Punjab Road Transport Board (1977 PLC (CST) 110). This judgment has no relevancy for the issues involved in this matter, as provisions of I.R.O. were held to be inapplicable on the ground that appellant was declared Civil Servant. (v) Din Muhammad alias Dona vs. Manager Army Stud Farm Depalpur, District Sahiwal (1979 PLC 260). Services of appellant were terminated by the employer but directed to be restored by Labour Court. On re-appraisal Labour Appellate Tribunal Punjab declared that purpose of Farm was to produce horses and mules for the use of Armed Forces of Pakistan and its income eventually to be utilized for rehabilitation of the service-men, Ex-service-men and their families therefore by virtue of Section 1(3) provisions of I.R.O. 1969 were found inapplicable. (vi) Abdul Rashid vs. Mohammad Shaft Bhatti Manager Military Dairy Farm, Malir Cantt., Karachi (1979 P.L.C. 148). It was found by the appellate Tribunal that Dairy Farm was connected with defence services, therefore, application of I.R.O. was excluded and jurisdiction of Labour Court clearly barred. (vii) Rahmat Gill & another vs. Quetta Cantonment Board (P.L.D. 1983) (?). Action was taken against two employees of Quetta Cantonment Board; one being sweeper and other a Chowkidar. It was held that services of said persons were of essential nature and Cantonment authorities being attached to Armed Forces, services of aforementioned employees were incidental to and directly concerned with Armed Forces thus excluding application of I.R.O. (viif) Canteen Stores Department Employees Welfare Union, Karachi vs. Canteen Stores Department and others (1983 SCMR - 1101). In this matter employees of Canteen Stores Department were found to be excluded from the ambit of Industrial Relations Ordinance by virtue of its Section 1(3). It was observed that C.S.D. employees had to provide services to Armed Forces, therefore, covered by exemptions prescribed under I.R.O. (ix) National Radio and Telecommunication Corporation Employees and Workers Unions, Haripur through its General Secretary vs. Labour Appellate Tribunal N.-W.F.P. Peshawar and others (1990 P.L.C. 218). It was held that employees were working in Company having installation connected with Armed Forces, because electric-equipments rrianufactured by said organization were being used and supplied to armed forces of Pakistan. Thus provisions of Industrial Relations Ordinance were not applicable to its employees. In all the above quoted cases it is quite apparent that functions performed by the employees of various concerns were either incidental or directly connected with duties/obligations related to Armed Forces. As such provisions of section l(3)(a) of Industrial Relations Ordinance were found to be totally inapplicable. In the instant case it is an admitted position that petitioner company has enjoined upon itself manufacturing intravenous solution being life saving drug, besides its marketing throughout the country and abroad. Undoubtedly use of product is not restricted to Army authorities or its families as distinguished from circumstances mentioned in aforequoted reports. In the peculiar situation it needs to be determined whether activity under-taken by petitioner would be incidental to, or connected with functions of Armed Forces or Administration of State. It is petitioner's own case that its employees are engaged for manufacturing medicinal solution to cater requirements for special kind of patients, all over. This is quite apparent that failure of petitioner's Company to carry out manufacturing the commodity at best would result in great loss and embrassment to management but by no stretch would adversely affect, functions of any section of Army or services incidental to or connected with Armed Forces. Main object of petitioner company as reflected from Article of Association appears to be, persuit for gains and profits with Swedish Collaboration, for the welfare of families of ex-servicemen etc. It may be seen that in the aforequoted reported judgments, whether relating to construction of navel complex, building of roads of national importance at the desire of Armed forces; maintenance of horses and mules; beneficial or effective management of C.S.D. shop, utilization of dairy milk by Armed forces or manufacturing of electronic-equipments for military use are obviously directly, connected with Armed Forces. Any interruption or ineffective performance of respective functions by the employees associated with such concerns/organizations would tarnish affairs connected with or incidental to forces. Honourable Supreme Court while considering the question of exemption claimed by Old Age Employees Benefit Institution, has discussed relevant principle of law, and declared that its functions do not constitute affairs connected with administration of State. Observation in Employees Old Age Benefit Institution versus National Industrial Relations Commission and others (1988 S.C.M.R. 765) are highly instructive and are reproduced below: - "6. It is difficult to accept this contention. The State has multifarious functions to perform in different fields in discharge of its constitutional responsibilities, affecting the citizens in almost all walks of life. For this reason it is the largest employer of man-power in the country. If all persons who are concerned with implementing constitutional responsibilities of the State, are to be treated as employed in the administration of slate within the meaning of clause (&) of Section 1 (3) of the Ordinance, it will as a consequence, effectively put the largest employer in the country beyond the reach of labour laws. This could hardly be the intention behind clause (b). It is to be noticed that certain categories of State employees, for example, those serving in defence forces and police, have been expressly excluded from the ambit of the Ordinance, even though they too discharge duties relatable to the constitutional responsibilities of the State. If clause (b), ibid, was intended to cover all those who were employed in connection with the constitutional responsibilities of the State it would have been un­ necessary to specifically exclude certain categories of State employees by name. Quite obviously, the expression 'administration of State' has been used in a limited sense in the said clause. In Sind Road Transport Corporation Vs. Staff Union (1975 PLC 361) this expression came up for consideration before Division Bench of the Sindh High Court and the learned Judges took the view: "The expression 'administration of the State' is to be interpreted in the limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government We see no reason to place a different interpretation on the clause. The appellant institution is entirely concerned with providing old-age benefits to persons serving in industrial, commercial and similar organizations. Its employees are not covered by the exclusion caluse (b). The contention that the appellant institution is one maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons and, therefore, covered by clause (/) of Section 1 (3) is also untenable. It is to be noticed that under Section 3, Employees' Old-Age Benefits Act, all persons employed in an industry or an establishment under a contract of service or apprenticeship are required to be insured. Under Section 9, the contributions in respect of insurance of the employees are to be paid by their respective employers. The contributions so collected together with donations, grants and bequests received by the appellant institution constiute a Fund set up under Section 17. Out of this Fund, the appellant institution pays allowances to insured persons who fulfil certain qualifications as laid down in Section 22 and 23. The appellant institution does not run a hospital or a nursing home of its own. In fact in order to receive an allowance out of the Fund administered by the appellant, one need not even be sick, infirm, destitute or mentally unfit; all that is required is that he should be an insured person, he should have attained a certain age, he should have retired from insurable employment and contributions with regard to him should have been paid by his employers for a certain minimum period. In the circumstances, it cannot be said that the appellant institution is being maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons. It cannot, therefore, take advantage of the exclusion clause (/) of Section 1 (3) of the Ordinance". In the similar circumstances the Punjab Labour Appellate Tribunal in case Garrison Engineers Constmction (North) Gujranwala Cantonment through Major Muhammad Naseem, Engineer Vs. Shujauddin (P.LJ. 1987 Tr.C (Labour) 30) have held that M.E.S. which is primarily Military concern, was not entitled to protection under clause 1 (3) of I.R.O. Relevant portion is reproduced below: - "The simple reason that they were employed to work for the projects taken by the MES would not make the respondents as Army employees. However, so far as MES is concerned, as held in the ruling mentioned above it is an Army organization but it does not mean that every person employed by it would be treated as an Army employee or connected with the Defence. The other fact which shows that the Industrial Relations Ordinance applies is that the MES does not work for the Army only. According to Section 1 (4) of Defence Service Regulations, Pakistan and Regulations for the Military Engineering Service, the MES carries out Engineering Senice not only for the Army, PAF and PN but also for POP. Provincial Govrernment departments and Ministries/Departments through Ministry of Defence. Obviously the works done for the departments of Provincial Governments or for the Ministries cannot be said to have any connection with the Defence. The mere fact that with the permission of Ministry of Defence the MES can work for Provincial Government departments and for the Minstries, would not be sufficient to say that the said works are connected with the Defence. In the absence of subclause (/v) of Clause 4 there can be force in saying that all the works done by MES were for the Army and for the Defence but since the MES (is) authorised to work for Provincial Government Departments also, unless it had been proved that the respondents were employed, particularly for the works connected with the Armed Froces or the Defence, it could not be said that the Industrial Relations Ordinance was not applicable". Thus under-lying principle for excluding operation of Industrial Relation, Ordinance, 1969 to any institution or organization, pre-supposes that services of the employees therein have nexus with functions, responsibilities or obligations |B relatable to Armed Forces of Pakistan. The Honourable Supreme Court in case of Controller Stationery & Fonns Government of Pakistan Vs. Tlie Registrar, Trade Union Sind & others (1990 Pakistan Supreme Court Cases 1258) has specified test for determining basis for applicability or otherwise of Section 1 (3) I.R.O. to any organization. Relevant portion is reproduced below: - "8. From the above cited cases, it is evident that in order to bring an employee within one of the categories excluded by subsection (3) of Section 1 of the I.R.O. it is not necessary that the finances or the funds should come from the government or installations should be under the control and management and control of a corporate body, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services or installations connected with or incidental to the Armed Froces of Pakistan or in the administration of the State. Keeping in view the functions of the appellant which not only supplies the printing materials to the various organizations relating to the Armed Forces listed at pages 43 & 44 of the paper book, but also caters for the requirements of all other Government Departments and other State organs/functionaries, and which are used inter alia for facilitating communications between the various Armed Froces establishments and other government functionaries and without which no government department can function, it can be concluded that the appellant's employees are covered by clause (a) and (b) of subsection (3) of section 1 of the I.R.O. It may be pertinent to point out that in the aforesaid clause (b) of subsection (3) the persons employed as workmen by the Railway, Posts, Telegraph and Telephone Departments, have been excluded from the expression "in the administration of the State" for the purpose of application of the provisions of the I.R.O. It can, therefore, be concluded that the Law Makers wanted to exclude the workmen of the departments specified in clause (b) and not other workmen who may be employed in the administration of the State". Applying the said principle to the instant case it is quite clear that functions of the employees, or manufactured products of the petitioner's concern have absolutely no direct or incidental link or connection with Armed Forces or Administration of State. Mere fact that some of the officers of Armed forces by virtue of their official status have been designated as Chairman or Director of any concern which otherwise is engaged in manufacturing general products for supplying the same, to all classes of people including export abroad, would not, in our opinion, warrant exemption from the provisions of I.R.O. Accordingly formation of Union by the workers in petitioners' orgnization unless otherwise prohibited, is not violative of law. In such view of the matter, other aspects regarding maintainability of the Petition, raised by respondents do not need any consideration. For the above reasons, we are satisfied that petition has no merits and as such must fail. However, parties are left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Quetta 33 (DB) PLJ 1992 Quetta 33 (DB) Present: amirul mulk mengal and iftikhar muhammad chaudhry, JJ MUHAMMAD ILYAS KHAN--Petitioner versus PRESIDENT, CANTONMENT BOARD-CUM-APPELLATE AUTHORITY, QUETTA and 2 others-Respondents Const. Petition No.316 of 1991, accepted on 17.12.1991. Cantonments Act, 1924 (II of 1924)-- —-S.15-B(2)(e) read with Cantonment Elections and Election Petition Rules, 1979, Rule 12-Nomination papers-Rejection of-Challenge to-From list supplied by official respondents, it transpires that except a bungalow in Cantonment Board Colony, which petitioner is occupying on lease, he is not in occupation of any other property himself and he is not liable for pecuniary benefits of his family members—A person can be disqualified on any (one) or more grounds as mentioned in Section 15-B-of Act read with Rule 12 of Rules- -No clause of Section 15-B(2) has been pointed out under which petitioner could be disqualified—Held: Since nomination papers have been rejected on extraneous grounds not covered under Section 15-B read with rule 12, impugned orders are without any lawful authority and of no legal effect- Petition accepted [Pp.36&37]A&B PLJ 1989 SC 312, PLJ 1991 SC.279 and 1988 CLC 543 rel. Mr.Shakeel Ahmad, Advocate for Petitioner. Mr.Riaz Ahmad, Standing Counsel for Respondents 1 & 2. Mansoor Ahmad, Respondent No.3, in person. Date of hearing: 16.12.1991. judgment Amirul Mulk Mengal, J.-The petitioner has challenged rejection of his nomination papers by Returning Officer and Appellate authority passed respectively on 5th of December, 1991 and llth of December, 1991. 2. Facts briefly stated are that the petitioner is a sitting member of the Quetta Cantonment Board. He has otherwise remained member of Quetta Cantonment Board for last 12 years. It is alleged that during this period he benefitted himself and his family members. Furthermore his nomination papers were rejected by the Returning Officer at the time of scrutiny of the papers taking into consideration the following grounds:- (a) Mr.Muhammad Ilyas Khan son of Muhammad Ajab Khan benefited himself and his entire family during his long tenure. (b) The whole family is occupying Cantt. Board residential accommodation on nominal rents. Same is about the Commercial Property. (c) Mr.Muhammad Ilyas Khan S/o Muhammad Ajab Khan has acquired substantial property. (d) His reputation is seriously questioned. Only with his help his family especially his elder brother could construct a 4 bedroom bungalow unauthorisedly to grab Cantt. Board Dairy farm permanently. The petitioner feeling aggrieved of his rejection orders preferred an appeal under Cantonment Elections and Election Petition Rules, 1979 (hereinafter referred to as the Rules) before the appellate authority who vide order dated 11.12.1991 rejected the appeal and upheld the orders of the Returning Officer. Learned Appellate Authority was also impressed by the same grounds. Relevant observations made in the order are hereby reproduced:— "after examining the appeal with reference to the grounds of rejection of the Nomination Papers by the Returning Officer, the record and hearing the appellant/his counsel, I am satisfied that there are sufficient grounds for rejection of the Nomination Papers, which are in disregard and violation of provisions of the Cantonments (Elections and Election Petitions) Rules, 1979 and Cantonments Act, 1924. He is ineligible for election. I, therefore, uphold orders of the Returning Officer and dismiss the appeal". 3. We have heard learned counsel for petitioner, learned Standing Counsel for respondents No.l and 2 and respondent No.3 in person. 4. Mr.Shakeel Ahmad vehemently urged that qualifications and disqualifications for being a Member of the Cantonment Board have been described in Section 15-B of the Cantonments Act, 1924 (hereinafter referred to as the "Act"). According to him mere allegations if not proved otherwise would not debar any candidate from contesting elections unless a candidate is found disqualified within the purview of Section 15-B(2) of the Act. To supplement his contention it was urged that even if the candidate has acquired substantial property or has given benefit to himself or his family members, the same would not form basis for his disqualification unless he is otherwise disqualified, under Section 15-B of the Act. Learned counsel assailed the observations of the Returning Officer whereby he was pleased to reject the nomination papers of the petitioner after having found that his membership would be detrimental to the interest of Cantonment Board. It was canvassed that such reasons would not debar the candidate from contesting election of the Board as per provisions of Section 15-B read with Rule 12 of the Rules. In support of his contention the counsel relied on 1988 C.L.C. 543 wherein it was held by a Division Bench of Sindh High Court as under:— "A person can only be disqualified under Clause(e) provided he is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. The Board amounts the Cantonment Board. From the record, it is clear that Respondent No.3, himself has not been allotted any plot or has any pecuniary interest. Due to the pecuniary interest of his son or any family member, no one can be deprived of contesting the election as he is not disqualified on this allegation". According to the learned counsel this authority applies on all fours to the facts of the present case because allegations against the petitioner are that he is occupying a bungalow himself in the Cantonment Board Colony whereas his brothers and nephew are also occupying various properties including shops, Military Dairy Farm etc. The Bungalow allotted to the petitioner in fact is a rented one and there is no allegation that he has committed any default in payment of rent. As far as the benefits to his family members are concerned, in view of the ratio decidendi of the aforementioned case, he concluded that same shall not disqualify petitioner from contesting ejections. He also referred to 1986 S.C.M.R. 392, PLD 1984 Karachi 76 and 1984 S.C.M.R. 537. According to the learned counsel any allegation regarding the integrity of petitioner may be a basis for his removal as a member by the Federal Government but the same, however, can not constitute a disqualification for his candidature in the forthcoming elections. 5. Learned Standing counsel vehemently opposed the contentions so raised. He also filed counter-affidavit on behalf of official respondents. In the counter-affidavit so filed we find that the same allegations have been repeated. However, learned Standing Counsel argued that the petitioner is disqualified within the meaning of Section 15-B(2)(e) of the Act. For the sake of convenience we intend to reproduce the same hereunder:— 15-B. Qualifications and disqualifications of members: (1) A person who is not less than twenty-one years of age on the first day of January preceding the election shall be qualified to be elected as a member of Board if his name appears for the time being on the electoral roll of the ward from which he seeks election and he is not subject to any disqualification for being elected as, and for being, a member of, a Board. (2) A person shall be disqualified for being elected, as and for being a member of, a Board if he:-- (a) has ceased to be a citizen of Pakistan or has voluntarily acquired the citizenship of a foreign state or has made a declaration of allegiance or adherence to a foreign state; (b) is an undischarged insolvent; (c) has been ordered to execute a bond under Section 110 of the Code of Criminal Procedure, 1898 (Act V of 1898), or has, on conviction for an offence involving moral turpitude, been sentenced to imprisonment for a term of not less than six months, unless five years or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, have elapsed from the date of the expiration of the period of the bond or sentence, as the case may be; (c) is a whole-time salaried official in the service of Government or of a public statutory corporation, a corporation under the control of Government, a Board or a local body or other local authority; (e) is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. Of) .................. fe) ............... He thus argued that the words used in sub-clause (e) "or has otherwise any pecuniary interest in its affairs" means nothing but any interest including benefit of residence, allotment of shops as well as plots etc. He, therefore, argued that sufficient material was brought on record to show that the petitioner has benefitted himself as well as his family members. Therefore the petitioner is disqualified within the purview of Section 15-B(2)(e). Learned Standing counsel also invited our attention to Sections 32 and 33 of the Act read with Rule 12 and submitted that any sitting member who has violated any provision of the Act is equally disqualified. 6. The respondent No.3 submitted that the petitioner has not worked for the benefit of civilian community in his constituency but to the contrary he has utilized all his energies to support himself and his family as a member of the Cantonment Board. He, therefore, should not be allowed to contest elections. 7. We have given our conscious thought to the arguments so advanced. A person xan be disqualified under any of the grounds as mentioned in Section 15-B of the Act. The only sub-clause as envisaged in Section 15-B is Clause (e) of sub­ section (2) which would be relevant' for our discussion. We have already reproduced the same. This aspect has already been dealt with by the Sindh High Court in 1988 CLC page 543 and it was held that a candidate can only be disqualified under Clause (e) provided he is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs. From the list supplied by official respondents it transpires that except a bungalow in the Cantt. Board Colony, which the petitioner is occupying on lease, he is not in occupation of any other property himself for the purpose of drawing pecuniary benefits. He is not liable for the pecuniary benefits of his family members. 8. "Pecuniary interest" has been defined by Stroud's in its Judicial Dictionary as under:— "Pecuniary interest" (1) If a salary is attached to the office of mayor, that is a "pecuniary interest" within Municipal Corporations Act 1882 which prevents a member of the council from voting for himself. (2) A "pecuniary interest" whereby a member of a local authority is precluded from voting is to be construed irrespective of whether the vote would be to the pecuniary advantage or disadvantage of the person voting". Since the petitioner was not disqualified on any of the grounds mentioned in Section 15-B(2) by the Returning Officer hence the reasons/grounds of his rejection of nomination papers are out of the purview of aforesaid section. We feel that a person can be disqualified on any (one) or more grounds as mentioned In Section 15-B of the Act read with Rule 12 of the Rules. Rejection of papers of any candidate on any other allegation howsoever wild it might be cannot be sustained in law because it would be beyond the scope of statutory provisions. Learned Standing Counsel has failed to point out any clause of Section 15(B) subsection (2) under which the petitioner could be disqualified. Facing difficulty to meet this situation the learned Standing Counsel attempted to argue that the petition is not competent in view of the bar created under Rule 65 of the Rules. We have perused Rule 65 which pertains to the filing of election petitions. Admittedly election petitions can be filed after conduct of elections and not at this stage. Learned counsel referred to PLJ 1989 SC 312 and PLJ 1991 SC. May Part B 279 and argued that even rejection of nomination papers can subsequently be challenged in an election petition. We are not impressed with the argument so advanced for the reason that firstly only a candidate can file an election petition and secondly that a candidate can raise objections to the acceptance of nomination papers in an election petition provided the candidate is proved as •being disqualified under Section 15-B(2) of the Act. As such argument so advanced is devoid of any force. Since the nomination papers of the petitioner have been rejected on extraneous grounds not covered under Section 15(B) read with Rule 12, therefore, we are inclined to set aside order dated 5.12.1991 passed by Returning Officer as well as order dated 11.12.1991 passed by the appellate authority as having been passed without any lawful authority and are of no legal effect. Consequently we accept this petition and declare petitioner as validly nominated candidate for the forthcoming election of Cantonment Board, Quetta. The Returning Officer shall enlist him as a validly nominated candidate and shall allot him symbol as per Rules. There shall, however, be no order as to costs. 9. The above are the reasons for our short order announced in open Court on 16.12.1991. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Quetta 38 PLJ 1992 Quetta 38 Present: IFTIKHAR MUHAMMAD CHAUDHRY, J Hafiz ABDUL MAJEED-Appellant versus MUHAMMAD YOUNIS-Respondent F.A.O. No. 92 of 1990, dismissed on 18.8.1991. Relationship of landlord and tenant-- —Petition for ejectment of tenant-Denial of relationship of landlord and tenant by appellant—Whether appellant was rightly ejected—Question of~ Appellant is admittedly tenant of previous landlord from whom respondent purchased superstructure-Notices under Section 13-A of Urban Rent Restriction Ordinance about transfer of ownership were given to appellant by both of them, but inspite of receipt of these notices, appellant refused to make payment of rent to respondent-Attitude of appellant is adament and indifferent and he had contumaciously denied relationship—Held: It is settled principle of law that once it is held that relationship exists between parties and denial was contumacious, Controller is empowered to forfeit tenancy straightaway-Held further: Ejectment of appellant has rightly been ordered- Appcal dismissed. [Pp.42&43]A,B,C,D&E PL.T 1982 Peshawar 31 rel. M/.i Riaz Ahmad and Kamran Murtaza, Advocates for Appellant. Mr. K.N. Kohli, Advocate for Respondent. Dates of hearing: 18 and 19.6.1991. judgment This is an appeal from the order dated 30th of June, 1990 passed by Civil Judge-11 Cum Controller, in Eviction Application No. 327/86 whereby directions have been made to appellant for handing over vacant possession of the shop bearing Municipal No. 2-43/12-2 (1522) situated at Fatimah Jinnah Road, Quetta (hereinafter referred to as "the disputed property") to respondent within a period of two months. 2. Concisely stating the facts are that respondent filed eviction application against appellant seeking ejectment of appellant on the grounds as under:- (a) Default in payment of rent with effect from December, 1985 to onward; (b) Disputed shop is required reasonably and in good faith by the respondent for his own use. The appellant resisted eviction application denying the relationship of landlord and tenant between the parties and the grounds on which eviction was sought were also controverted. 3. The trial court framed following issues in order to settle down controversy between the parties:- "1. Whether there exists no relationship of landlord and tenant between the parties? 2. Whether the respondent has failed to pay rent or tender rent of the disputed shop to the applicant with effect from December, 1985 and onwards? 3. Whether the premises in question is required reasonably and in good faith by the applicant for his own use? 4. Relief? The respondent besides his own statement produced two witnesses in support of his contention, whereas appellant got examined himself as well as adduced evidence of twelve witnesses to substantiate his claim. 4. The Controller finally determined the issue of relationship, in favour of respondent and against appellant whereas remaining issues i.e. relating to default in payment of rent and personal bonafide use and occupation were also decided in affirmative and consequently directed ejectment of appellant from the disputed premises. 5. In support of appeal, Mr. Riaz Ahmad, learned counsel has urged as unden- (a) The Controller has wrongly decided issue pertaining to relationship of landlord and tenant between parties. The appellant had produced overwhelming evidence to prove that respondent is not the landlord of the premises in dispute but the Controller without taking into consideration material on record has wrongly decided this issue in favour of respondent. (b) The respondent had nol led evidence in support of issues No. 2 and 3 therefore, these issues have been decided in affirmative illegally and without lawful authority. It was lastly contended that in view of the facts and circumstances of the case appeal be accepted and eviction application filed by respondent be dismissed. 5. The counsel for respondent, Mr. K.N.Kohli, contended as under:- (a) The respondent had produced sufficient evidence on record to prove relationship of landlord and tenant between the parties. Infact the denial on behalf of petitioner was contumacious, therefore Controller with lawful authority had decided issue No. 1 in affirmative. (b) The trial court has rightly decided issue relating to default in payment of rent, in favour of respondent. Learned Counsel for respondent candidly conceded that Controller had passed eviction order on the ground of personal bonafide use and occupation without recording evidence therefore, to this extent, he is not in a position to support the order but he stated that as relationship of landlord and tenant was contumaciously denied by appellant as such, tenancy was liable to be forfeited forthwith and without deciding issue of personal requirement ejectment of appellant can be directed. 6. I have heard learned Counsel for both the sides and record of case has also been perused carefully with their assistance. 7. Before dealing with the respective contentions of both the counsel, it is necessary to examine the pleadings of parties in order to know their respective stands. 8. The eviction application filed by respondent reveals that three shops bearing Municipal Nos. 2-43/12-1 (1523) 2-43/12-2 (1522) and 2-43/12-3 (1512), were constructed on a plot belonging to the Municipal Corporation by one Syed Ahmed Shah son of Syed Sultan Shah. Out of these three shops two were leased out to respondent bearing Nos. 2-43/12-1 (1523) and 2-43/12-3 (1512) in which, he installed a Printing Press in the name and style of Sarhad Art Printing Press whereas third shop bearing No. 2-43/12-2 (1522) was rented out to appellant at monthly rent of Rs. 135/-. 9. The respondent purchased superstructure of the shops which are in his possession as well as of disputed shop from Syed Ahmed Shah. The previous landlord after having sold the rights of superstructure to respondent issued a notice to appellant on 29th March, 1986, whereby he was informed that respondent had acquired the right of ownership in his favour therefore, appellant should pay rent to him at the rate of Rs: 135/-per month. Similarly another notice was sent by respondent to appellant and he was attorned as his tenant in the disputed shop. 10. The appellant had failed to make payment of rent at the stipulated rate therefore, eviction application was filed on the ground of default in payment of rent as well as on ground of personal bonafide use and occupation. 11. The appellant while filing written statement raised objection that there is (no) relationship of landlord and tenant between the parties, however, on merits he admitted that originally shop in question was leased out to him by Syed Ahmed Shah and he is depositing the rent in his name with Rent Controller from the month of December, 1985 to onward, he further staled that shop which is in his occupation has been purchased fictitiously by respondent from Syed Ahmed Shah. In the written statement, it was further elaborated that shop is constructed on a piece of land measuring 380 Sq. Ft. belonging to Municipal Corporation, Quetta, and the lease of land was on the name of Syed Ahmed Shah for a period of 30 years with effect from 1st of July, 1967, the underneath land has been acquired by Municipal Corporation for the public purposes as per notice No. 220 dated 22nd January, 1986. In view of these circumstances there was no justification for selling the lease rights of the shop in question. He further stated that so called sale is unwarranted by law. 12. Notice sent by respondent as well as by previous landlord was also acknowledged in the written statement. Appellant also stated that replies of the notices were sent to respondent through counsel in which, specifically it has been mentioned that appellant shall make payment of rent to Syed Ahmad Shah and not to Muhammad Younus. In this context para-3 of the written statement is relevant for deciding all relative questions hence same is reproduced hereunder for reference:- "3. Contents of para No. 3 as alleged, having been incorrectly mentioned therefore, strongly repudiated. As a matter of fact, the shop in occupation of the replying respondent has been purchased fictitiously from one Syed Ahnidd Shah. The shop consists upon a piece of land measuring 380 square feet, belonging to Quetta Municipal Corporation, situated at Fatnna Jinnah Road, Quetta was leased out to one Syed Ahmad Shah for a period of 30 years with effect from 1.7.1967 and the same for the requirement of the public purposes was resumed by Quetta Municipal Corporation as per Notice No. 220 dated 22.1.1986. Copy of the same is enclosed and marked as Annexiire-'B', and in these circumstances there was no justfication for selling the lessee rights of the shops in question. The so called sale is unwarranted by law. A notice dated 29.3.1986 was sent to replying respondent through Raja Fayyaz Ahmad, Advocate on behalf of Syed Ahmad Shah and Muhammad Younis which was accordingly replied on 13.4.1986 through his counsel, Mr. Muhammad Riaz Ahmed, Advocate, wherein it has been specifically mentioned that the replying respondent shall make payment of the rent to Syed Ahmad Shah and not to Muhammad Younis. Copies of the Notices and reply thereto are enclosed as Annexure-'C', '£>', 'E' & 'F' respectively. The replying respondent has never admitted the applicant as his landlord, as such the applicant has got no right, title and interest over the property in question and in these circumstances Muhammad Younis has also submitted a suit for Declaration and Injunction in the Court of Civil Judge, Quetta, which is pending adjudication. Copy of the suit is attached and marked as Annexure-'G'. Written statement of the Municipal Corporation Quetta, whereby they have mentioned that there is no agreement of sale regarding lease of the land in question between Muhammad Younis and that of Mayor, Municipal Corporation, Quetta is also attached and marked as Annexure-'H'. As such, the respondent is tendering the rent before the Rent Controller, Quetta and rent upto 31st December, 1986 stands paid in favour of Syed Ahmed Shah." The appellant also denied the claim of respondent on the ground of personal bonafide use and occupation. 13. Now reverting to the contentions of Mr. Riaz Ahmad that the Controller had wrongly decided issue of relationship of land-lord and tenant between the parties. The appellant is admittedly tenant of previous landlord Syed Ahmad Shah who after selling the proprietary rights in superstructure of disputed property informed the appellant through a notice which was duly received and acknowledged by him about the change of landlordship of disputed property. Similarly respondent in accordance to the provisions of Section 13-A of Ordinance VI of 1959 also intimated to appellant that he has attained the status of landlord after purchasing the disputed property from Syed Ahmad Shah, appellant was also attorned as statutory tenant and rent was demanded from him but surprisingly appellant inspite of receiving thes notices refused to accept the respondent as landlord and in para-3 of the written statement, which has been reproduced hereinabove, categorically mentioned that he will make payment of rent to Syed Ahmad Shah and not to Muhammad Younis. Besides this, appellant further objected on the transaction of sale between previous landlord and respondent and contended that the respondent has purchased the shop in question fictitiously from Syed Ahmad Shah and mover-over Municipal authorities have issued a notice dated 22.1.86 in accordance to which, underneath land of disputed shop was ordered to be resumed for public purposes by Mayor, Quetta Municipal Corporation and previous landlord was called upon to handover possession of the underneath land of shops within a period of three months from the date of notice, let as it may be, fact remains that if Municipal Corporation even succeeds in acquiring the underneath land of disputed property, appellant would not become the owner of superstructure of shop in which, he was inducted as tenant by previous landlord, and if the respondent had purchased ownership rights in disputed property inspite of the fact, that Municipal Corporation had desired to acquire the property in the public interest, how the appellant can deny the relationship of landlord and tenant for these reasons. 14. During course of arguments, counsel for appellant informed that Municipal authorities have also started collecting rent from appellant of the underneath land therefore, he has acquired the status of tenant of Municipal Corporation in the disputed property. It may be observed that Municipal Corporation is not empowered under the law to accept the appellant as their tenant in respect of land on which, shop in dispute has been constructed unless previous lease which was in name of Syed Ahmad Shah is cancelled. Moreover if appellant had succeeded in establishing that he has become the tenant of underneath land of Municipal Coroporation , he will not be recognized,by the Municipal Corporation as tenant in disputed shop. In such view of the matter, appellant is under legal obligation to first of all handover the vacant possession of premises to landlord and thereafter if he has any claim of whatsoever nature, he can agitate the same by filing a civil suit in the court of competent jurisdiction. 15. The attitude of appelllant appears to be adamer.t and indifferent, the tenant cannot attain the status of landlord irrespective to the fact that title of the landlord is defective for any reason, therefore, stand taken by appellant in the ritten statement as well as efforts which are now being made by h™ to become the lessee of the underneath land clearly proves that he had contumaciously denied the relationship of landlord and tenant between the parties. 16. Although the Controller had proceeded to decide the question on merits but this is settled principle of law that once it is held that relationship of landlord and tenant exists between the parties and the denial was contumacious the Controller is empowered under the law to forfeit the tenancy rights straightaway and direct the ejectment of such tenant forthwith. In this behalf reference can be made to case reported in PLJ 1982 (?) P-31 Malik Anayatullah Vs. Faryad and others. Since it is established that appellant wanted to set-up adverse title against the landlord by refusing to accept him as landlord therefore, Controller would have passed order of ejectment against appellant without deciding other issues. Keeping in view aforesaid circumstances, I am inclined to hold that relationships of landlord and tenant do exist between the parties and denial of relationship of landlord and tenant was contumacious on part of appellant therefore, the tenancy is ordered to be forfeited and his ejectment from disputed property is ordered accordingly and under the circumstances there is no need to dilate upon other contentions raised by Counsel for parties. Resultantly appeal is dismissed with costs and appellant is directed to handover the vacant possession of premises in dispute forthwith to respondent. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Quetta 43 PLJ 1992 Quetta 43 Present: IFTIKHAR MUHAMMAD CHAUDHRY, J . IKRAMUL HAQ and 2 others-Appellants Versus RAFIQUE AHMAD KHAN-Respondent R.FA. No.l of 1991, dismissed on 10.12.1991 (approved for reporting on 29.1.1992). (i) Special Oath- —Declaration and Partition of property—Suit for-Offer by appellants for special oath to be taken by respondent (defendant in suit)-Acceptance of offer-Whether appellants (plaintiffs in suit) could be allowed to resile from offer-Question of-Oral offer was made by appellants but that was not reduced to writing-Appellants had not resiled from offer but they had incorporated conditions in their application which were never part of oral offer made by them--Held: There is no cavil with proposition that after making an offer, permission cannot be given to resile from same except in a very proper case. [Pp.50&51]A&B PLJ 1981 SC 330 re/, (ii) Special Oath- —Declaration and partition of property-Suit for—Offer by-appellants for special oath to be taken by respondent (defendant in suit)-Acceptance of offer-Whether rule of caution was not fully observed by lower Court-­ Question of-Parties had sufficient time to think over before accomplishment of offer—Appellants even uptil now, have not resiled from their offer—No independent request was made by appellants for resiling from their offer-­ Held: Appellants and respondent were fully conscious about consequences of making offer and acceptance thereof, and as such, rule of caution was fully observed by lower Court-Appeal dismissed. [P-53JC 1991P.S.C. 149 re/. Mr. Muhammad Aslain Chishti, Advocate for Appellants. Mr. Shakeel Ahmad, Advocate for Respondent. Date of hearing: 25.11.1991. judgment The appellants are aggrieved against order/decree dated 6.11.1990 passed by Additional District Judge, Quetta whereby their suit was dismissed. 1. Briefly stating the facts of the case are that appellants instituted suit for declaration, partition and possession against respondent in respect of property entered in Khasra No.13070/12083/7498, Khewat No.73, Khatooni No.108 measuring 11329 sq.ft. situated at Quarry Road, Quetta (hereinafter referred to as disputed property) on averments that late Bashir Ahmed Khan predecessor-ininterest of appellants and respondent were real brothers, they got allotted/transferred an evacuee plot measuring 38440 sq.ft. in their name bearing Khewat No.73, Khatooni No.108, Khasra No.13070/12083/7498 Ward No.12, Quarry Road , Quetta . The plaintiffs' predecessor was owner to the extent 7/24 and respondent was entitled to the extent (of) 17/24 shares in the plot therefore, appellants are entitled for a share of 11329 sq.ft. 2. The respondent/defendant contested the suit by filing written statement hi which inter alia it was pleaded that appellants' father and respondent were joint owners of the evacuee plot description whereof is given above and besides it there was another property bearing municipal No.4-37/39-F, situated at Pinni Road, Quetta constructed on Khasra No.8040/3836 measuring 2574 sq.ft. which was owned by both brothers named above in equal shares, till 1966 both were continuously holding their respective shares in this house, however, by a private and domestic settlement between defendant and late Bashir Ahmed Khan this house was given exclusively to him in lieu thereof he relinquished his share in suit land. As such, from 1966 respondent is exclusively enjoying ownership in the suit land to the exclusion of all others, so much so, he constructed a bunglow on a portion of land in the year 1972 and also sold a portion of suit land in 1976 without any objection by appellants who succeeded their father on his death in the month of December, 1969. As for the disposal of this appeal detailed narration of facts is not necessary, however, in order to understand briefly the respective claims of parties above facts have been mentioned. 3. The trial Court after having framed issues called upon appellants to produce evidence, as such after examining four witnesses, they reserved their statements for rebuttal, whereas respondent examined one witness and when examination in chief of attorney of respondent was recorded, and case was postponed, from 5th August, 1989 to 27th August, 1989 for cross examination, on this date of hearing following order was passed:-- "The attorney of plaintiff Mr. Anwarul Haq alongwith his counsel Mr. Taufiq Ahmed and attorney of defendant alongwith counsel Mr. Qaisar Shaheen have appeared. The attorney of plaintiff has given offer that if Mr. Rafiq Ahmed defendant takes oath on Holy Quran stating that there was a settlement between him and his brother Bashir Ahmed Khan to the effect that Rafiq Ahmed had relinquished his share in the house situated at Stewart Road, Quetta and all other accounts were settled between them, the plaintiff offered that his suit may be dismissed by Court. Today Mr. Rafiq Ahmed Khan defendant was called and he personally appeared. He looks a man of 75 years old. He has shown his willingness to take special oath on Holy Quran on the above terms. But the attorney of plaintiff Mr. Anwarul Haq backed out. But today he came forward with a new condition. When himself sinking in deep water, the new proposal made by plaintiffs attorney was put in writing before defendant who in turn stated that he is not prepared to take oath according to the words written in the application. But he has to take oath according to previous offer and in addition to that he is also prepared to take oath that averments in the statement are true and claim made in the plaint and application are false, to which plaintiffs attorney did not agree. To come up on 23rd September, 1989". 27.8.1989. Sd/' Muhammad Naeem, Additional District Judge-I, Quetta . 4. The perusal of record reveals that on aforesaid date of hearing besides oral offer of administering special oath to respondent the appellants also moved an application requiring the respondent to take special oath to the effect that in presence of Abdul Ghani Khan son of Ali Khan, Taufiq Ahmed Khan it was decided that house was given to Bashir Ahmed Khan and in lieu thereof he relinquished all his rights in disputed property in favour of respondent as well as his children etc. Before next date of hearing an application was also moved by respondent before lower court praying that to prevent the abuse of process of the Court, a date may kindly be fixed for administering oath to respondent on Holy Quran in the terms originally proposed by plaintiff, through their attorney Anwarul Haq and duly consented by his Advocate Akhtar Zaman in Court and objection if any in respect of execution of this lawful contract may also be brought on record as the matter has already been taken from the province of law to the domain of morality, religious dictates and commandments of Almighty Allah. Subsequently appellants filed reply of above application on 5.10.1989 and specifically stating that the alleged offer on unspecified oath may kindly be treated as withdrawn and after dismissing application under reply, the case may be proceeded and decided on merits. 5. The trial Court, however, recorded statement of respondent on Holy Quran on 8.10.1989, complete text of his statement as incorporated in the order sheet of 8.10.1989 is reproduced hereinunder for reference:-- 6. The lower Court after hearing arguments of parties' counsel in respect of application filed by respondent dated 23.9.1989, passed impugned judgment/decree, whereby appellants suit was dismissed. The appellants have assailed the impugned order in instant appeal. 1. The learned counsel for appellant Mr. Muhammad Aslam Chishti urged as under:-- (1) On the material available on record i.e. application dated 27.8.1989 the respondent had refused to accept the proposal of special oath on specific terms, therefore, Court had no jurisdiction to administer oath to respondent and to decide the matter against appellants. (2) If at all, special oath was to be administered to respondent that should have been strictly as per terms mentioned in application dated 27.8.1989. (3) The perusal of original record of trial Court does not indicate that any oral offer was ever made by appellants' attorney to respondents' attorney, on or before 27.8.1989, as such the terms specified in the order sheet dated 27.8.1989 cannot be considered as an offer made by appellants. (4) The appellants/plaintiffs had not agreed to adminstering oath to respondent, as such, court administered oath and recorded statement of respondent on its own, as such statement cannot be used against appellants for deciding the case. (5) The trial Court had fallen in error in administering special oath to respondent before deciding application filed by him on 23rd September, 1989 as well as reply of appellants to this application dated 5th October, 1989. Similarly application of appellants dated 27.8.1989 was also awaiting decision. As such without disposing of all these Misc: applications etc lower Court had no authority to record statement of respondent on special oath. (6) The trial Court has conducted proceedings of administering special oath to respondent entirely in derogation of principle governing such proceedings, so much so, dictum laid by superior courts regarding observing rule of caution was also not followed. 8. On the other hand, Mr. Shakeel Ahmed, learned counsel for respondents contended as follows:— (1) The appellants' attorney on 27.8.1989 made oral offer/proposal to defendants counsel in the Court to the effect that if defendant takes oath on Holy Quran that there was settlement between him and his brother late Bashir Ahmad Khan, that Rafiq Ahmed Khan had relinquished his share in the house situated at Pinny Road, Quetta and in lieu thereof Bashir Ahmed Khan relinquished his share in suit lands and all other accounts. This offer was accepted and respondent agreed to take oath but subsequently appellants attorney submitted an application mentioning therein certain conditions. However, in that application as well oral offer was not revoked. As such under law Court was quite justified to administer oath to respondent on Holy Quran as per first oral offer, therefore, it is absolutely incorrect to contend that no offer was made by appellants to respondent for taking special oath. (2) The trial Court recorded statement of respondent on oath on 8 th October, 1989 and thereafter on hearing arguments of both the parties decided appeal. Therefore, contention raised by counsel that Court had fallen in error in recording statement of respondent on special oath before deciding applications dated 27.8.1989 and 23.9.1989 filed by appellants/respondents respectively is not correct. The Court has observed proper procedure in administering oath so much so, the rule of caution was also followed. Even today it is not the case of appellants that special oath may not be administered to respondent but his case is that special oath may be adminsitered to respondent as per terms incorporated in application dated 27.8.1989. (3) Under the provisions of Oaths Act, 1873 appellants are estopped to withdraw their first offer made by them. 9. Arguments of both the parties were heard and thereafter counsel appearing for respondent submitted an application contending therein that in order to resolve controversy, it would be proper that Mr. Akhtar Zaman, Advocate who was appearing on behalf of appellants before lower Court particularly on 27.8.1989 when offer was made by appellants to respondent for making statement on Holy Quran be summoned. Notice of this application was given to appellants' counsel who opposed this application and prayed for its dismissal. Keeping in view these circumstances, instead of summoning Mr. Akhtar Zaman, Advocate, it was felt necessary to issue notice to Advocate Akhtar Zaman of the aforesaid application. However, he filed his reply on 11.11.1991 in which he submitted that his client Anwarul Haq instructed to offer to the Court that if Khan Rafiq Ahmed Khan himself takes an oath to the effect that private partition took place between parties and plot went to the share of defendant and house to the share of plaintiff then he would withdraw his suit and he communicated the said offer to the Court. On the next date of hearing Mr. Rafiq Ahmed Khan was present whereupon trial Court directed to file offer in writing on which appellant Anwarul Haq gave in writing an application in which it was urged that if Khan Rafiq takes an oath that private partition took place between parties in presence of such and such witnesses the names of whom I do not remember now and plot went to the share of defendant and house to the share of plaintiff, the plaintiff will withdraw suit. Mr. Akhtar Zaman further emphasised in reply that above application was shown to Rafiq Ahmed for taking oath on such terms. Mr. Muhammad Aslam Chishti seriously objected to this application and contended that Mr. Akhtar Zaman was counsel of appellants, therefore, he has not been authorised to divulge communication which took place between counsel and appellant to any one else, as such, without instructions of appellants he had no authority to file reply in» above terms. Moreover, if at all the version is accepted, then said Advocate may be summoned in Witness Box so that his statement be impeached through cross examination. On the other hand, Mr. Shakeel Ahmed counsel argued that no privilege can be claimed in this behalf by appellants because question of offer was made in open Court, as such, this matter is now open before every one, as such, nothing secret has been divulged by Mr. Akhtar Zaman. Even otherwise, he has stated true facts before Court, therefore, in the interest of justice his version may be accepted and appeal may be decided keeping in view the fact that an oral oath was made by appellants for administering special oath to respondent which is now confirmed by their own counsel. 10. I have heard learned counsel for parties at length and with their assistance, proceedings of administering special oath were also considered. 11. Before dilating upon the factual controversy between the parties regarding administering special oath it is to be seen that under which provision of law the proceedings were conducted. In this behalf in Statute Books there are' two provisions:— (/) Article 163 of Qanoon-e-Shahadat Order 1984. According to which when plaintiff takes oath in support of his case, the Court shall on his application call upon defendant to deny the claim on oath. Admittedly in instant case plaintiff has not made statement in support of their case on oath nor defendant made offer to them for taking oath, thus, this case is. not covered under aforesaid provision of law. (/'/) The second provisions of law are covered under Section 9 of Oaths Act, 1373. According to these provisions Court may ask a party or witness whether he will make an oath proposed by opposite party and if such offer is accepted, special oath will be administered to the other side for purpose of recording of statement in accordance with procedure as laid down under Section 10 of oaths Act, 1873. This section prescribes mode for administration of oath. In my opinion lower Court in present case conducted proceedings of administering special oath to respondent under aforesaid provisions of law. As such it is necessary to examine whether any proposal/offer was made by appellants through their attorney to respondent for taking special oath on Holy Quran, as per terms which have been recorded in Order Sheet dated 27.8.1989. In this behalf it may be observed that according to contention of learned counsel for appellants there was no oral offer made by appellants through their attorney to respondent, because on 27.8.1989 parties appeared before Court; the appellants submitted an application in which terms of offer were incorporated, but other side refused to accept the same and according to learned counsel in pursuance of written offer it cannot be presumed that oral offer was also made, in which different conditions were put forth. Mr. Shakeel Ahmed has controverted the stand taken by appellants' counsel on the ground that if order dated 27.8.1989 is read minutely, it would indicate that prior to submitting application by appellants they made an oral offer of administering oath to respondent. 12. The perusal of above noted order indicates that an offer was made by appellants' attorney to the effect that if Mr. Rafiq Ahmed Khan (respondent/defendant) takes oath on Holy Quran stating that there was a ettlement between him and his brother Bashir Ahmed to the effect that Rafiq Ahmed had relinquished his share in the house situated at Stewart Road, Quetta and all other accounts were settled between them, then plaintiffs suit be dismissed. On this offer respondent was summoned by Court for purpose of administering oath in accordance with above noted terms. The latter portion of order indicates that attorney of appellants backed out and today he came forward with new condition, when sinking himself in deep water and a new offer was put in writing. Although in this order an ambiguity is noticed because it is not understandable that by using the word "today 1 what does it mean? whether it was agreed prior to the above date of hearing between parties for administering special oath or not. However, this ambiguity can be removed by considering that offer was made by appellants before above date of hearing, but that was not reduced into writing. Anyhow, directions were made to respondent to appear on aforesaid date of hearing, otherwise there was no necessity to summon respondent in person. As such it is held that oral offer was made by appellants to respondent for administering special oath. 12. Now question arises as to whether appellants can resile from oral offer because under the provisions of Section 9, 10 and 11 of Oaths Act right of resiling from offer has not been conferred. In this context application dated 27.8.1989 has to be examined; for the sake of convenience same is reproduced as below: ~ sd/ . Sd/- Akhtar Zaman, Anwarul Haq Advocate The contents of above application reveal that appellants had not resiled from offer rather they had incorporated conditions which were never part of the oral offer made by them, as such Court was not competent to allow the application. Even otherwise this application has been moved under Article 164 of Qanoon-e- Shahadat Order, 1984 perhaps section and Act have been wrongly quoted, the correct provision of law is Article 163 of Qanoon-e-Shahadat Order, 1984 which was not maintainable because under the scheme of this law, oath is to be taken by plaintiff and not by defendant, as such, lower Court has rightly refused to consider this application. There is no cavil with the proposition that after making an offer permission cannot be given to resile from the same except in very proper case, in this behalf, for reference reliance can be placed on judgment of Supreme Court in the case "Atiqullah v. Kifayatitllah" reported in PLJ 1981 Supreme Court 330, relevant para is reproduced as under:-- "It may be mentioned that Section 9 of the Oaths Act, 1873 provides that if a party to a judicial proceed; ag undertakes to be bound by evidence given on special oath or solemn affirmation by the opposite party or by a witness, then the Court may inquire from the opposite party whether he agrees to this offer or not. If that party does not agree then that is the end of the matter. If however, the other party accepts the offer and agrees to take the requisite oath, th jn as provided by Section 10 of the Oaths Act, the Court may proceed t o administer the oath or may issue a commission to any person to administer it". The Honourable Supreme Court of Pakistan and Courts across the border, time to time had elaborately discussed this issue, for reference reliance is placed on "A/oH Rain Mira Klian Mehr v. Kalu Faqira Mehr" reported in AIR 1937 Nagpur 212, "Saleem Akhtar v. KJnishi Muhammad" reported in 1974 SCMR 224, "Muhammad All v. Major Muhammad Aslam and others" reported in 1991 PSC 148. 14. The aforesaid discussion leads me to take up other contention of learned counsel namely that the procedure was not followed by Court and rule of caution was also not observed. It may be seen that on 8th October 1989 in presence of parties Advocates, statement of respondent was recorded on special oath, who deposed entirely in conformity with the offer which was made by appellants to respondents' attorney i.e. Taufiq Ahmed as per order dated 27.8.1989. Mr. Muhammad Aslam Chishti argued that superior courts have laid dictum that before ensuing proceedings of special oath, the Court should satisfy itself, that offer and aceptance has been made consciously and parties are fully aware about the consequences of the same. In furtherance of his contentions, learned counsel contended that in this regard time should be allowed to parties for deliberation over the offer and acceptance before its accomplishment. In order to strengthen his arguments reliance was placed by him on the judgment of Honourable Supreme Court in the case of "Asifa Sultana v. Honest Traders" reported in PLD 1970 Supreme Court 331, "Muhammad All v. Major Muhammad Aslam" reported in 1991 PSC 149 for benefit para 11 out of this judgment is reproduced as under:— "In case such as the present, where it is not possible to lay down guiding principles as to what facts or circumstances in a given case would induce a Judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often that not during examination of party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Quran or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be binding in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of the parties, appear to be such as would make a mockery of the oath. The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasised for such a procedure would give parties some Short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, nor do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because Sections 9 to 11 of the Oaths Act do not admit such intrusions, but we would say that all this may be treated as a note of caution, for a court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them". In view of the above law laid down by Honourable Supreme Court of Pakistan, it would be seen in instant case that parties had sufficient time to think over before accomplishment of the offer. In this behalf it may be observed that after making an offer orally appellants attorney had not resiled from the same except he wanted to put up two new conditions, in application dated 27.8.1989 in respect of which I have already observed in above paras, that application was not maintainable. Now, even today the appellants have not resiled from their offer. Although Mr. Aslam Chishti argued that in the reply dated 5.10.1989 filed by appellants to the application of respondent dated 23.9.1989 it was prayed that the case be decided on merits. In this context it is necessary to note here that no independent request was ever made by appellants for resiling from their offer showing any exceptional circumstances enabling the Court for granting permission to resile from offer. As such it is held that appellants and respondent were fully conscious about the consequences of making offer and acceptance thereof for administering special oath to respondent for the purpose of decision of case because such statement would produce a conclusive and unimpeachable evidence in favour of respondent and against appellants. As such rule of caution was fully observed by the lower Court. 15. Mr. Muhammad Aslam Chishti next argued that without deciding the application dated 27,8.1989 filed by appellants attorney as well as application filed by respondent dated 23.8.1989 Court has no jurisdiction to decide the suit. I have perused the impugned order which clearly indicates that these applications were disposed of impliedly and suit was decided as per terms of oral offer. Even otherwise, non-disposal of applications had not caused prejudice to any of the parties because in respect of application made by appellants dated 215.1989 it had already been held that same was not competent in the circumtfances of the case. 16. Under the circumstances, no separate order is required to be passed on the application filed by respondent's counsel for summoning Mr. Akhtar Zaman, Advocate. For the foregoing reasons, I am inclined to hold that appeal has no merits which is accordingly dismissed. As the parties are inter-se related to each other, therefore, they are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Quetta 54 PLJ 1992 Quetta 54 Present: MUNAWAR AHMAD MIRZA, CJ ESSA KHAN and two others-Appellants versis Malik HABIBULLAH-Respondent FA.O. No. 12 of 1992, dismissed on 22.4.1992. (i) Default- ---Tenant-Ejectment of--Order of-Challenge to~Default in payment of rent-­ Ground of—It is a matter of record that appellant had failed to pay rent for more than ten years at time of institution of eviction application-Similarly 'on previous occasion, from October 1979 upto March, 1980, default was committed by him-Appellant had not expressly admitted liability regarding rent due, rather efforts were made to suggest relinquishment of right of recovery of rent by landlord-Facility contained in amending Ordinance VIII of 1985 cannot embrace limitless or contumacious non-payment for extra­ ordinary or unreasonable period of time or repetition of such conduct-Held: Appellant is not entitled to protection claimed by him and was liable to ejectment on account of wilful default in payment of rent-Appeal dismissed. PLJ.1991 SC 177 re/. (ii) Sub-letting-- — Tenant-Ejectment of-Order of-Challenge to--Sub-letting of premises-­ Ground of~There is positive evidence showing relationship of master and servant between appellant and two respondents-Appellant is admittedly a contractor and manages his affairs in that behalf through respondents 2 &3 who are working for him-Held: Conclusions of trial Court on this issue are based merely on conjectures and impressions which cannot be sustained-­ Finding of trial Court on issue of sub-letting reversed. [P.58JC Mr. Mumtaz Hussain Baqri, Advocate for Appellant. Mr. Tariq Mahmood, Advocate for Respondent. Date of hearing: 21.4.1992. judgment This appeal is directed against order dated 20.2.1992 passed by learned Civil Judge-I-cum-controller, Quetta whereby appellant has been directed to hand over vacant possession of shops bearing No.10-5/101-952-953 situated on Brewary Road, Quetta to respondent Malik Habibullah. 2. Relevent facts briefly stated are that on 30.10.1990 respondent Malik Habibullah filed an application seeking eviction of appellants as well as respondents No.2. and 3 from shops bearing Municipal No.10-5/101-952-953 situated on Brewary Road , Quetta . It was alleged that shops were let out to appellant at monthly rental of Rs.30/- but he proved to be troublesome tenant. It is the case of landlord that appellant initially defaulted in payment of rent from October,1979 to March,1980 and thereafter again has failed to pay rent from' the last more than 10 years commencing from April, 198j3y$l filing of aviction proceedings. Plea of subletting the premises to respondeip^o.2 and 3 was also raised. Appellant, Essa Khan (ii) respondent No.2 Abdul Sattar and (iii) respondent No.3 Syed Abdul Karim have jointly filed written statement. It was asserted that respondents 2 and 3 were employees of Appellant No. 1 and not sub­ lessees. Though non-payment of rent from April, 1980 was admitted, yet it has been explained that on account of facility provided to landlord by deceased brother of appellant in vacating other premises, rent for the shops in dispute was not received by him. Para 2 of written statement relating to said explanation is reproduced below for ready reference:- "2. Contents of para 2 are denied. There is no deliberate and wilful default in payment of rent. In fact respondent is also tenant alongwith his late brother in the adjoining Tall. The appellant requested the respondent to vacate a portion of the said Tall, so that he could construct shops over it. The respondent vacated the said portion and applicant constructed 16 shops over it. In the month of April, 1980 when respondent offered the rent due, applicant did not accept the same on the plea that the respondent has done favour to him by vacating a reasonable space for constructing shops and that he is earning a lot from those shops and in lieu of this favour he will not accept the rent of the shops in dispute in future. The respondent under this bonafide impression did not pay rent. However, he is willing to pay the outstanding amount." Learned Controller on 2nd February, 1990 framed following 4 issues and gave the parties opportunity of leading evidence :- 1. Whether the respondent No. 1 is bad paymaster and has failed to pay or tender the rent from 2.4.1980 ? 2. Whether the respondent No. 1 has subletted one shop to respondent No. 2 and other shop to respondent No. 3 without prior permission/consent of the applicant. 3. Whether single eviction application for 2 shops is maintainable ? 4. Relief. Record reveals that landlord Malik Habibullah adduced two witnesses(i) Ghulam Rasool and (ii) Abdul Sattar besides himself to support default and sub­ letting. Whereas appellant in rebuttal has examined (RW-i) Jalal (RW-ii) Karim (RW-iii)Ghaffar (RW-iv) Syed Ali besides himself. Learned Civil Judge-cum- Controller allowed the eviction application by means of judgment dated 20th Fabruary, 1992 directing appellant to hand over vacant possession of shop Nos.10- 5/101-992 and 993 Brewery Road, Quetta to landlord Malik Habibullah. Aggrieved from aforesaid decision, present appeal was filed on 2.3.1992. Mr. Mumtaz Hussain Baqri, Advocate strenuously contended that appellant, on receiving notice of eviction application immediately deposited/tendered the arrears of rent, therefore, he was entitled to protection of proviso to Section 13 (2)(a) introduced through Ordinance VIII of 1985 Baluchistan Urban Rent Restriction (Amendment) Ordinance (P.L.D.1985 Balochistan Statute-72).It was further argued that evidence adduced in the case does not establish sub-letting, therefore, conclusions of trial court in that behallf are defective. Reliance was placed on the observation in case P.L.D.1980 Karachi-126. On the other hand Mr.Tariq Mahmood, Advocate vehemently opposing the appeal argued that default of appellant from October, 1979 to March, 1980 as well as persistent failure to pay or tender the rent since April, 1980 was not disputed. He emphasised. that plea raised by appellant in the writte'h statement was inconsistent with willingness to pay the rent, therefore, he could not avail protection of Ordinence VIII,1985. To supplement his submission, rei'iance was placed on the observation in case Hazrat Umar vs. Zafar Majid (P.LJ. 1991 S.C.177). He further contended that sub-letting was established therefore on said issue, decision of trial court does not suffer from any defect or illegality. I have carefully considered the arguments addressed by learned counsel for parties. It is an admitted position that appellant has not paid rent to respondent/landlord with effect from April, 1980. Attempt was made to suggest that landlord on account of favour shown by brother of appellant had voluntarily declined to receive, the rent from him. On such view of the matter protection of amending Ordinance VIII of 1985 was claimed. Relevant provision is reproduced here for ready reference:- "Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall,if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made he shall make an order rejecting the application". It is a matter of record that appellant had failed to pay the rent for more than (ten) 10 years commencing from April,1980 when eviction application was instituted. Similarly on previous occasion, from October, 1979 upto March, 1980 I default was committed by him. Pleadings further disclose that appellant had not expressly admitted liability regarding rent due, rather efforts were. made to suggest relinquishment of right by landlord as regards recovery of rent. In the peculiar circumstances explanation furnished by appellant, is neither reliable nor plausible therefore must be excluded from consideration. There is no gain-saying the fact that tenant has legal and moral obligation to tender rent with complete promptitude when it falls due. Section 13(2)(i) of Baluchistan Rent Restriction Ordinance VI of 1959 mentions a period when non-payment of rent becomes actionable. Amending Ordinence of 1985 certainly makes default condoneable provided liability on this score is implicitly admitted, indicating repentance with willingness to clear all the dues. But question arises whether admitted continuous non-payment of rent for ten long years could attract protection of amending Ordinance VIII of 1985 reproduced above. I am afraid such construction or relaxation would frustrate real spirit and object of law. Facility contained in the amending Ordinance VIII of 1985, appears to minimize pangs of prolonged litigation where default for a moderate period has occasioned for the first time. But it can not embrace limitless or contumacious non-payment for extraordinary or unreasonable period of time or repetition of such conduct. Identical provision of amending Ordinance 01 N.W.F.P.has been examined by Hon'ble Supreme Court in case Ha-.rat Umar vs. Zafar Majid (P.L.J. 1991 S.C.177). Relevant observations are reproduced below:- "Taking advantage of this amendment an argument has been advanced in this appeal that the liability to pay the rent for the default period was not denied by the appellant. His only plea was that the respondent/landlord having declined to receive the rent in an ordinary mode, the appellant/tenant was compelled to remit the amount through money order but the landlord had refused again to receive the amount. Therefore, as argued by the learned counsel, the condition laid in the aforequoted proviso to avoid eviction on the ground of default had been satisfied. We do not agree with him. It was disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly, appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the proviso would have been satisfied if the tenant would have, at proper time, accepted, amongst other conditions his liability to pay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in proviso. In this case none of the conditions is satisfied. For example the appellant did not accept his liability to pay the rent. As to the facts, when he had filed the written statement, the rent, according to his own admission in para 5 of his written statement was still due. Notwithstanding the aforementioned averment in the written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the proviso. Accordingly, he can not get any advantage on account of the newly added proviso". In the instant case also appellant had raised disputed question in the written statement. Besides as mentioned above, non-payment related to unreasonable period, and contains repetition of default. For the .above discussion and relying on the aforequoted observation 1 ; I am inclined to hold that appellant is not entitled to protection claimed by him and was liable to ejectment on account of wilful default in payment of rent. Now reverting to question of sub-letting, It may be seen that there is positive evidence showing relationship of master and servant between appellant and two respondents. They in their respective versions have unequivocally confirmed this position. Besides respondent/landlord and all other witnesses independently expressed about working of respondents 2 and 3, at shop-in-dispute on behalf Of appellant for last more than 7 to 8 years. Appellant is admittedly a contractor and manages his affairs in that behalf through respondents 2 and 3 who are working for him. There is no tangible evidence on record which may indicate sub-letting of premises to respondents 2 and 3. The conclusions of trial court on this issue are based merely on conjectures and impressions which can not be sustained. Accordingly I am inclined to reverse findings of trial court on this issue and hold that sub-leasing of premises to respondents 2 and 3 has not been established. Thus on account of findings pertaining to wilful default committed by appellant, as already discussed above decision of Controller directing eviction of appellant is upheld. Consequently appeal stands dismissed. However appellant is granted four months time to hand over vacant possession of the premises. Parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 Quetta 58 (DB) PLJ 1992 Quetta 58 (DB) Present: MUNAWAR AHMAD MlRZA, CJ AND AMIRUL MULK MENGAL, J SARFRAZ KHAN-Petitioner versus ALLAH DAD and 2 others-Respondents Cons. Petition No. 213 of 1992, dismissed on 8.6.1992. Nomination Papers— —Election to reserved seat for peasants-Nomination papers-Rejection of~ Challenge to-Bare perusal of definition in Section 3(39) of Baluchistan Local Government Ordinance, 1980, suggest that persons applying for special interest seats reserved for specified class, should fulfil requirements contained therein-Petitioner is admittedly a licensed arms dealer belonging to rich family and undisputedly stands to acquire share in landed property left over by his deceased father-Real intention of legislature was to allocate seat to peasant who is physically engaged in cultivation for his maintenance-Held: Any person having independent source of income other than cultivation, would not come within definition of "peasant"—Petition dismissed.- [Pp.60&61]A,B,C&D Mr. Ehsanul Haq, Advocate for Petitoner. Mr. Basharatullah, Advocate for respondent No.l. Mr. Abdul Qayyum, Member, Election Authority for Respondents 2 & 3. Date of hearing: 8.6.1992. judgment Munawar Ahmad Mirza, CJ--Facts concisely mentioned are, that petitioner filed nomination papers to contest election against special interest seat reserved for peasants District Council, Nasirabad. Petitioner's nomination paper was rejected by learned Deputy Commissioner Nasirabad/Returning Officer on 25.5.1992. Aggrieved from said decision petitioner preferred an appeal before learned "Commissioner Nasirabad-cum-Appellate Authority which too was rejected by means of order dated 30.5.1992. Operative portion is reproduced below:-- "I have considered the facts mentioned by the Deputy Commissioner/Returning Officer Nasirabad in his order. It is an admitted position that the appellant is son of late Sardar Moheem Khan Umrani and is brother of Mir Fateh Ali Umrani, the present Sardar of Umrani tribe who is also an M.PA. It is beyond all proportions to treat him peasant for the purpose. I therefore do not find any valid reason to disagree with the impugned order of the Deputy Commissioner/ Returning Officer Nasirabad which is upheld. The appeal stands rejected and the appellant cannot contest election from the said seat of Peasant in District Council Nasirabad. Dissatisfied from rejection of nomination papers by both the forums present Constitutional Petition has been filed. Mr. Ehsanul Haque, leanred counsel for petitioner vigorously contended that petitioner is landless person and merely cultivates land of others. According to him nomination papers of petitioner were arbitrarily rejected by both the forums Deferred above. Mr. Basharatullah, Advocate for respondent No. 1 vehemently opposing the petition, argued that petitioner is an arm dealer, a wealthy person possessing huge landed property, thus his candidature was rightly rejected through impugned orders. Learned Advocate General has confirmed that petitioner is a rich person, a licensed arms dealer and owns landed property, therefore, under law does not qualify conditions of a 'Peasant'. Capt. Aftab Ahmad, Deputy Commissioner, Nasirabad pointed out that huge landed property belonging to petitioner was notionally in the name of petitioner's deceased father which by operation of law obviously vests in all legal heirs including petitioner. We have considered contentions advanced before us. 'Peasant' for purposes of contesting reserved seat of special interest has been defined by Section 3(39) of Baluchistan Local Government Ordinance, 1980 (hereinfater referred as the Ordinance). Said definition is reproduced below:- "3(39) 'Peasant' means a person who is landless tenant or who for a continuous period of five years preceding the year in which the election is held is or has been owner of not more than five acres of land and engages himself personally in cultivation for his maintenance". Bare perusal of definition reproduced above suggests that persons applying for special interest seats reserved for specified class, should fulfill requirements contained therein. It appears that ethos and objects of law for providing separate seats was to ensure induction of deprived class and people of special interest who on account of their social handicaps might face serious ordeals in getting elected as member of Local Bodies. It is obligatory for the court to strike balance and • protect rights of oppressed classes, to save the system from being eroded. We feel that Legislator desired preservation of people from special interest for effective proper and broad-based administration of the affairs of Local Bodies. In this back-ground it may be seen that petitioner is admittedly a licensed arms dealer, belonging to rich family of the area and undisputedly stands to acquire share in landed property, left over by his deceased father, therefore, he cannot be deemed peasant within the definition contained in Section 3(39) of Baluchistan Local Government Ordinance. Furthermore, words used in section 3(39)" ............... engages himself personally in cultivation for his maintenance" are very important and have been intentionally used by the legislature to connote status and position required for specified class of members. From plain reading of aforesaid words, intention of the legislature can be conveniently gathered. Real object of above-referred words was to allocate seat to peasant who is physically engaged in cultivation for his maintenance. The definition, to our calculated opinion, excludes absentee tenants who although entered as tenants in the record of rights; yet sublet the rights of tenancy to other persons for actual or physical cultivation of lands on their behalf. Thus in our considered opinion only peasants who have no other means for their livelihood and are physically engaged in the cultivation of land for their maintenance are covered under the definition of peasant within the meaning of Section 3(39) of the Ordinance. Any person having independent source of income other than the cultivation of land, therefore, would not come within the definition of 'peasant under aforementioned clause. Petitioner's attempt to indirectly grab seat reserved for a poor cultivator, therefore, cannot be allowed to materialise by invoking discretionary remedy by way of writ petition. Both the forums below have rightly rejected nomination paper filed by petitioner. For the above reasons, we do not find any merit in the petition, which is consequently dismissed. However, there shall be no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 Quetta 61 PLJ 1992 Quetta 61 Present: iftikhar muhammad chaudhry, J AKEEL AHMAD SHAH-Pctitioner versus OWNERS OF SHAMLAT DEH MAUZA POT, THROUGH MALIK HAJI ROZAY and 4 others-Respondents Civil Revision No. 110 of 1992, accepted on 31.5.1992 Limitation— —Appeal—Whether barred by limitation—Question of—Appeal was preferred a day earlier from date of expiry of period of limitation as time consumed for obtaining copies was seven days whereas appeal was preferred on 29th day after date of order of Qa/i—Held: Due to miscalculation of period of limitation, impugned order has been passed-Impugned orders of Qazi and Majlis-e-Shoora set aside and case remanded for proceeding on merits. [Pp.62&63]A&B Malik Sultan Mehmood, Advocate for Petitioner. Mr. Azizullah Kltan, Advocate for Respondents 1, 3 & 4. Respondent No. 2 absent. Respondent No. 5 in person. Date of hearing: 31.5.1992. judgment Petitioner was dis-satisfic-d from the order passed by Oazi, Bori dated 20th October, 1991 and order/decree passed by Appellate Court/Majlis-e-Shoora, Loralai, dated 21st March, 1992, whereby appeal filed by petitioner was dismissed as barred bv limitation. Thus this Revision Petition has been filed. 2. During hearing of the petition, it transpired that learned Majlis-e-Shoora, failed to calculate the period of limitation correctly for ascertaining, whether appeal was within time or not. It may be seen that on the order dated 20 th October, 1991, copyist has given a certificate containing various dates, certifying the date when application for obtaining copies was filed and when copies were ready and delivered, perusal whereof indicates, that application was moved on 22.10.91, which were prepared on 28.10.1991 and delivered on 04.11.1991. 3. No doubt, it is obligatory upon the applicant to approach the copy branch, with great promptitude for receiving the copies after their preparation and if despite the fact that copies were ready but were not collected within reasonable lime then in that case, person aggrieved from the order, owes an explanation to the court to satisfy that under what circumstances he could not collect the copies at an earliest date. 4. It has also been noticed time and again that no regular system has been evloved by copy branch of various courts. So much so no date is being given in writing for collecting the certified documents judgments/orders etc. In this behalf, it would be appreciated if Presiding Officer shall issue directives to all concerned that while receiving application for supply.of certified copies of documents, a date be also given on the receipt issued for the copying fee, indicating that when the applicant is required to attend the office for collecting the copies and if on the fixed date certified documents are not collected, then time shall start running against him and an obligation will also be fixed on such person to state that why proceedings have not been filed within time. 4. In the instant case, appeal was preferred a day earlier from the date of expiry of the period of limitation as time consumed for obtaining copies was seven days whereas appeal was preferred on 29th day after the date of order by Qazi. As such, due to miscalculation of period of limitation impugned order has been passed. 5. Mr. A/.i7.ullah Khan, learned counsel for respondents candidaly conceded that appeal was not barred by time, however, he additionally argued that instead of remanding the case to Majiis-e-Shoora, impugned order dated 20.10.1991 be set aside and case be sent to learned Qazi for commencing proceedings from the stage where it was left, when suit was dismissed. 6. Mr. Sultan Mchmood, learned counsel for petitioner however, did not agree to the offer of respondents' counsel and stated that actually Qazi vide order dated 23rd September, 1991, had directed the petitioner for impleading Haji Shah Muhammad, Abdul Salam and remaining Patidaran as defendants in the suit and against that order, revision was filed before Majlis-e-Shoora, but as subsequently suit was dismissed and appeal also met with same fate therefore, the revision was also dismissed by Maj!is-c-Shoora as having become infructuous. The examination of record reveals that no such order is available on the file. Even otherwise, courts exercising jurisdiction under Order-1 Rule-10 CPC are competent to direct for impleading or deleting any person either as plaintiff or defendant in order to adjudicate the matter in a befitting manner. Thus apparently no prejudice would be caused to any of the party if the Patidaran, whose names are mentioned in the order dated 23rd September, 1991 are impleaded as defendants. 7. Mr. Sultan Mehmood, Advocate expressed apprehension that the Patidaran are numerous in number therefore, it would not be possible to implead them as party individually by their names. In this behalf, it may be observed that petitioner has filed the suit in representative capacity against respondents and if there would be difficult situation as has been expressed by learned counsel, in that case Order 6 Rule 8 of the Code of Civil Procedure can be pressed into service to comply with the order of the Court. In view of the above discussion and concession made by Mr. Azizullah Khan, counsel for respondents, impugned order dated 20.10.1991 passed by Qazi Bori and dated 21.3.1992, passed by Majlis-e-Shoora, Loralai are set aside. Case is remanded to trial Court for proceedings on merits in accordance with law from the stage when the order dated 2th October, 1991 was passed. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1992 Quetta 63 (DB) PLJ 1992 Quetta 63 (DB) Present: ML NAWAR AHMAD MlRZA, CJ AfMD IFTIKHAR MUHAMMAD OIAUDHRY, J SHABBIR AHMAD-Petitioner versus CHAIRMAN, DISTRICT COUNCIL, LASBELA, and two others-Respondents Const. Petition No. 293 of 1992, accepted on 20.8.1992. Maintainability- —-District Tax-Right to collect-Auction of--Contract given to respondent No. 3 through private and concealed negotiation-Challenge to-Whether Constitutional petition is maintainable—Question of-Respondent No. 1 himself postponed holding of auction at close of day on 30.6.1992, but gave contract to respondent No. 3 on same day through secret negotiations-All moral and legal requirements were flagrantly disregarded by respondent No. 1 while assuming authority not vested in him under law-Though appeal is provided, but its adequacy, expediency and speediness for challenging same, has to be judged in peculiar circumstances-Held: When impugned action is patently arbitrary, aggrieved person cannot be forced to place himself at mercy of same hierarchy, thus maintainability of petition cannot be questioned- Petition accepted [Pp.67&68]A,B,C,D& E PLD 1967 SC 294 and PLD 1972 SC 279 rel. M/s Ehsanul Haq and Muhammad Iqbal, Advocates for Petitioner. Mr. Farooq Rashid, Advocate for Respondent No. 1. Raja M. Af.iar, Advocate General for Respondent No. 2. Mr. S^4.M. Quadii, Advocate for spondent No, 3. Date of hearing: 20.8.1992. judgment Munawar Ahmad Mirza, CJ.~ Facts giving rise to the petition are concised and simple. 2. The Chairman District Council Lasbella, respondent No. 1 advertised the auction for the rights to coIlecf'District Tax" concerning financial year 1992-1993 with effect from 1.7.1992 till 30.6.1993 which was scheduled for 30th June, 1992; during working hours. Admittedly petitioner alongwith two call-deposits of Rupees One Million (Rs. 10,00,000/-) each attended the office of respondent No.l on the appointed date viz 30.6.1992 and kept on waiting till working hours to participate in the proposed auction. Since no one else turned .up therefore auction could not be held. Accordingly respondent No. 1 communicated the post­ ponement of auction to Secretary Local Government of Balochistan, Quetta through wireless message No. 2427-28 of even date which is reproduced below for ready reference:— "FROM: CHAIRMAN DISTRICT COUNCIL LASBELLA TO: SECRETARY LOCAL GOVERNMENT BALOCHISTAN QUETTA (W) COMMISSIONER KALAT DIVISION AT KHUZDAR. No. 2427/28 DATED 30.6.1992. DATE FOR AUCTION OF RIGHTS FOR COLLECTION DISTRICT TAX WAS FIXED FOR 30.6.1992 BUT ONLY ONE PARTY APPEARED (.) HENCE NO AUCTION WAS CONDUCTED (.) NEXT DATE FOR RE-AUCTION IS BEING FIXED FOR INFORMATION PLEASEQ 3. It appears that subsequently on the same day i.e. 30.6.1992 some how respondent No. 1 negotiated with respondent No. 3 and awarded contract for collecting "District Tax", to him, for a sum of Rs. 10.5 million. Information in that behalf was conveyed to Secretary Local Government Balochistan through wireless message No. 2429-30, which is also reproduced here under:- " WIRELESS MESSAGE FROM: CHAIRMAN DISTRICT COUNCIL LASBELLA TO: SECRETARY LOCAL GOVERNMENT BALOCHISTAN (W) COMMISSIONER KHUZDAR No. 2429-30/ DATED 30.6.1992. THE DATE FOR AUCTION OF RIGHTS FOR COLLECTION OF DISTRICT TAX FOR 1992-93 WAS FIXED FOR 30.6.1992 BUT ONLY ONE PARTY APPEARED (.) HENCE NO AUCITON WAS MADE(.) HOWEVER ONLY PARTY M/s BALOCHISTAN TRADERS KARACHI SUBMITTED HIS OFFER RS. 1,05,00,000/- (ONE CRORE AND FIVE LACS) TOTAL COLLECTION OF DISTRICT TAX ON INDUSTRIAL FINISHED GOODS DURING LAST FIVE MONTHS AND TWELVE DAYS DEPARTMENTLY PLUS CONTRACT WAS RUPEES TWENTY SEVEN LACS EIGHTY NINE THOUSAND ONE HUNDRED FORTY FIVE(.) KEEPING IN VIEW THE SHORTAGE OF TIME THE OFFER OF M/S BALOCHISTAN TRADERS KARACHI FOR RUPEES ONE CRORE FIVE LACS IS RECOMMENDED FOR APPROVAL (.) M/S BALOCHISTAN TRADERS HAVE ALSO DEPOSITED RUPEES TWENTY LACS AS SECURITY DEPOSIT(.) Learned Advocate General made positive assertion that no written approval of the contract was at all accorded by Secretary Local Government (Respondent No. 2). Ama7ingly respondent No. 1 vide letter No. 2443-47/DL dated 1st July, 1992 conveyed to respondent No. 3 acceptance of contract, in his favour which is also reproduced hereinunder:-- "FROM: The Chairman District Council, Lasbella. To: M/s Balochistan Traders, Karachi. Memorandum No. 2443-47/DL Dated 1st July, 1992. Subject: TRANSFER OF RIGHTS FOR COLLECTION OF DISTRICT TAX FOR THE YEAR 1992-93. Your offer for Rs. 1,05,00,000/- has been approved verbally by the Secretary Local Government Balochistan, Quetta, therefore the rights for collection of District Tax as per schedule given with the terms and conditions are hereby transferred to you w.e. from 1 7.1992. Your are directed to please deposit Rs. 10,05,000/- on account of 10% of your bid, Rs. 3,15,000/- on account of 3% income tax and non judicial stamp papers for Rs. 2,10,000/- at the rate of 2% may also be provided Sd/Chairman District Council Lasbella". Petitioner feeling aggrieved has instituted instant Constitutional Petition on 7.7.1992 alongwith an application for interim injunction, challenging propriety of above action taken by respondent No. 1. After hearing the parties through their counsel ad-interim order was passed by this Court on 27.7.1992. 4. Respondent No. 1 has filed counter affidavit asserting that contract was rightly granted to respondent No. 3. It has been mentioned that petitioner never made any offer/bid as alleged in the petition. Respondent No. 3 also refuted assertion made by petitioner and raised several objections questioning maintainability of the Petition. It is pertinent to mention here that at the very out­ set learned counsel for petitioner without prejudice to claim set forth in petition in unequivocal terms filed following undertaking:-- "IN THE HIGH COURT OF BALOCHISTAN QUETTA. In ref. C.P. No. 293/92 Shabir Ahmad—Petitoner. versus District Council Lasbella ete.-Respondents. Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan . May it please your Lordships. 1. That the above noted matter is pending in this Hon'ble Court and is fixed for hearing for today i.e. 20.8.1992. 2. that the applicant/petitioner had already offered (Rs. one crore 10 lacs) to have the rights of collection of Zilla Tax from the respondent No. 1 for the year 1992-93. Now keeping in view the changed circumstances and national interest the applicant offers to have the rights of collection of Zilla Tax by paying Rs. 1,50,00,000/-. The applicant shall be liable to abide by the auction rules of the respondent No. 1 i.e. the deposit of security amount and 10% of the amount of the bid. 3. Needless to submit that the bid of one Crore and fifty lacs is for the whole year. The applicant will pay the amount of instalment according to proportionate period. It is, therefore, humbly prayed that the petition may graciously be decided according to the offer given by the petitioner. Dated. 20.8.1992. Signed. Ajgdicant/petitioner Advocate (Shabir Ahmad)" 5 M/s Ehsanul Haq, and Muhammad Iqbal Mehr Advocates for petitioner strenuously urged that auction proceedings were postponed by respondent No 1 after 2 n m on 30.6.1992 as clearly reflected from wireless message No. 2427-28. Therefore according to them respondent had absolutely no authority for pnvateconcealed-negotiation with respondent No. 3. It was canvassed that closed-door transaction without announcing fresh auction was malafide, patently unjust and violative of rules. Learned Advocate General candidly conceded that proceedings conducted by respondent No. 1 (Chairman District Council Lasbella) were totally devoid of lawful authority. He pointed out that Secretary had not granted the approval therefore agreement in favour of respondent No. 3 concerning right to collect District Tax had absolutely no legal sanction. He thus supported the petition. Mr. Farooq Rashid learned counsel for respondent No. 1 objected to the maintainability of petition and submitted that respondent No. 1 was fully competent to award the contract to respondent No. 3. He thus opposed the petition. Mr. S.A.M. Quadri Advocate submitted that, bonaflde offer made by respondent No. 3 above reserved price was duly accepted by respondent No. 1 whereafter lawful contract was executed between them. According to learned counsel there existed disputed points which can not be conveniently resolved through constitutional petition. It was argued that alternate remedy by way of appeal under Section 149 of the Local Government Ordinace was available to the petitioner. Learned counsel further canvassed that amount of call-deposits having been withdrawn grievance could not be lawfully agitated against respondent. Reliance has also been placed on judgments reported as (i) P.L.D. 1991 Supreme Court 102 and (ii) N.L.R. 1991 (CLJ) 770. 6. We have carefully considered the arguments advanced by learned counsel for parties and case law referred by them. 7. Pivitol point requiring consideration in this case would be whether respondent No. 1 having himself postponed holding of auction at the close of day on 30.6.1992 was competent to conduct any secret or concealed negotiation with third respondent without adverting to fresh auction or observing normal procedure. Mr. Farooq Rashid, learned counsel for respondent No. 1, on enquiry could not quote any provision of law or rules enabling respondent No. 1 to assume authority to hold private negotiation for granting contract to respondent No. 3. No one amongst the learned Advocates could justify clandestine bargaining by public representative, in respect of Exchequer which is trust of general public, while regulating official business. It is pertinent to mention that the postponement of auction was communicated after close of wroking hours on 30.6.1992. Therefore by any stretch or methodology re-auctioning or grant of said contract could not lawfully take place prior to 8 a.m. on 1.7.1992. Thus all moral and legal requirements were flagrantly disregarded by respondent No. 1 while assuming authority not vested upon him under the law. 8. It may be true that appeal is prescribed but its adequacy, expediency, speediness for challenging the same has to be judged in the peculiar circumstances of each case. When impugned action is patently arbitrary showing glaring disregard to law, and strikingly contravenes rules and procedure; an aggrieved person can not be forced to place himself at the mercy of the same hierarchy. We on thorough probe into the matter are satisfied that action reflects inherent defect, prickingly unjust conduct, mis-exercise of authority and malafide, therefore, petition is certainly competent. In this view we are supported by (i) Syed Ali Abbas and others vs. Vishan Singh and others (P.L.D. 1967 Supreme Court-294) and (ii) Murree Breweiy Co. Limited Vs. Pakistan through the Secretary to Government of Pakistan Works Division and others (P.L.D. 1972 Supreme Court 279). Learned Advocate General in the peculiar circumstances has rightly conceded about illegality of action taken by respondent No. 1 by supporting the petition. 9. We are persuaded to observe that people have reposed highest degree of confidence in public representatives. They are expected to exert strict vigilance over public ex-chequer. To avoid unnecessary loss and complications as well as financial indiscipline in chosen institution, it would be encouraging if maximum precautions are taken while dealing with official business specially in money transaction. 10. It may further be observed that controversy evolves to admitted facts which absolutely need no enquiry. Thus maintainability of petition on this score in our view conveniently cannot be questioned. Besides call-deposits got prepared by petitioner relate to a particular event wherein petitioner intended to participate in auction and due to failure of respondent to hold fresh auction, reasonable justification existed for encashing said call deposits. Therefore this objection too will have no bearing on the maintainability of the petition. 11. For the foregoing reasons we are inclined to accept the petition declaring action of respondent No. 1 awarding right to collect District Tax (of) Lasbclla to respondent No. 3 for financial year 1992-93 as devoid of lawful authority and ultimately of no legal effect. 12. However, while parting we may observe, that petitioner has made offer to pay Rs. 15 million in consideration of right for collecting District Tax of Lasbclla extending for one year commencing from 1.7.1992 to 30.6.1993 with period-wise proportionate adjustment. As it is conceded before us, that normal procedure for awarding contract is regulated by open auction-bids, therefore, respondent No. 1 shall hold fresh auction for collecting District Tax for remaining period of current financial year as indicated in the wireless message No. 2527-28 dated 30.6.1992. 13. In order to ensure bonafides of petitioner, he should deposit sum of Rs. 20 lacs with respondent No. 1 within 5 days. Respondent No. 1 after due publication should hold fresh auction by or before 1.9.1992. Petitioner shall be deemed one of the participant subject to his depositing above said amount and conditions prescribed under rules. Highest bidder shall obviously be entitled to the grant of contract. To avoid complication it is further observed that respondent No. 3 may continue collection of District Tax till 31.8.1992 subject to interim order passed by this Court. However, after clearing instalments for the months of July and August, 1992, he shall be entitled to withdraw balance amount if any. Petition is disposed of in the above terms. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1992 SC(AJK) 1 PLJ 1992 SC(AJK) 1 [Appellate Jursidiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J Syed SHAUKAT HUSSAIN GILLANI-Appellant versus ABDUL REHMAN ABBASI and 2 others-Respondents Civil Appeal No.50 of 1990, dismissed on 14.12.1991. [On appeal from order of Service Tribunal, dated 30.4.1990, in Service Appeal No.406 of 1988.] Aggrieved Person— —Promotion of respondent as Naib Tehsildar-Challenge to-Whether appellant was an aggrieved person-Question of-Under Section 4 of Service Tribunal Act, 1975, a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person-Held: Civil servant who invokes jurisdiction for redressing his grievance, must show that he was an aggrieved person as envisaged under relevant law—Appeal dismissed. [P.3JA Mr.Ghulam Mustafa Mughal, Advocates for Appellant. Sardar Rafiq Mahmood Khan and Raja Muhammad Hanif Khan, Advocates for Respondents. Date of hearing: 3.12.1991. judgment Sardar Said Muhammad Khan, CJ.~This appeal, by leave of the Court, has been directed against the judgment of the Service Tribunal dated 30.4.1990 whereby the appeal filed by Abdul Rehman, respondent No.l, was accepted and the order of the Secretary Revenue was set aside. Brief facts giving rise to the present appeal are that Abdul Rehman, respondent No.l, was promoted as Naib Tehsildar from the Ministerial staff and was posted in the Office of the Collector Land Acquisition, Muzaffarabad, on 19th November, 1987. The appellant who was serving as Qanoongo challenged the promotion of respondent No.l before the Secretary Revenue on the ground that he being a Girdawar was entitled to the promotion in place of Abdul Rehman, respondent No.l. The appeal was accepted and the promotion of Abdul Rehman was set aside. Abdul Rehman, respondent No.l, then preferred an appeal to the Service Tribunal which was accepted and the order of the Secretary Revenue was set aside holding that the promotion of respondent was in accordance with rules. We have heard the arguments and perused the record. It has been contended by Mr.Ghulam Mustafa Mughal, Advocate, that the Service Tribunal has committed an error in holding that no Departmental Committee was constituted for promotion from the Ministerial staff as a Naib Tehsildar. The learned counsel has referred to a notification which shows that in fact in the Revenue Department various Departmental Committees were constituted in pursuance of the rules known as the Azad Jammu and Kashmir Civil Servants [Conditions of Service] Rules 1977. Thus the learned counsel contended that the rules of 1980 which govern the appointments of Naib Tehsildars cannot be said to be contradictory to the rules known as the Conditions of Service Rules 1977. The learned Counsel maintained that two sets of rules are supplementary to each other and not contradictory. He has contended that in view of that fact the appointment of respondent was not made on the recommendation of any Departmental Committee, thus the same having been made in contravention of rules cannot stand. In reply the learned counsel for the respondents argued that irrespective of the contention of the learned counsel for the appellant with regard to the existence of the Departmental Committee and the fact as to whether two sets of rules were supplementary or contradictory to each other, the fact remains that the appellant had no locus standi to challenge the appointment of the respondent because it has been found by the Service Tribunal that quota reserved for Ministerial staff and for Field staff for promotion as Naib Tehsildar had already been exhausted at the time when the impugned order was passed. When the learned counsel for the appellant was confronted with the contention of the learned counsel for the respondent, he replied that if respondent was considered despite the fact that there was no quota entitling him to be appointed as Naib Tehsildar, the case of promotion of the appellant could also be considered on the same rationale. We have given our due consideration to the arguments. Irrespective of the controversy regarding the application of the rules, we are of the view that the question of correct application of the rules in the instant case would arise only if the appellant shows that he had right to be considered for promotion as Naib Tehsildar. The fact that quota in case of Ministerial staff and the Field staff had already stood exhausted, none of the contending parties could claim promotion as Naib Tehsildar as of right. Thus, we are not persuaded by the arguments advanced by the learned counsel for the appellant that promotion of the respondent should be set at naught, despite the fact that the appellant had no right to be considered for promotion as Naib Tehsildar. Under Section 4 of the Service Tribunal Act 1975 a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person. At least a civil servant challenging the appointment of another civil servant should, pnma facie, show that he had a chance to be considered for appointment against the civil post at the relevant time. If he is not found to be qualified for appointment either by initial recruitment or otherwise, he cannot be permitted to challenge the appointment of another civil servant on the ground that although he was not qualified to be considered for the appointment yet his rival was also suffering from the same disqualification. The civil servant who invokes the jurisdiction for redressing his grievance must show that he was an aggrieved person as envisaged under the relevant law. In view of what has been stated above finding no force in the appeal it is hereby dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC (AJK) 3 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 3 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J MASUD AHMAD and 2 others-Appellants versus UNITED BANK LTD.-Respondent Civil Appeal No.46 of 1991, dismissed on 23.11.1991. [On appeal from judgment and decree of High Court, dated 24.1.1991 in CA.20 of 1987.] Limitation Act, 1908 (IX of 1908)-- —S.14 read with Section 5-Appeal in wrong forum-Prosecuting of-Whether time spent on prosecuting appeal in wrong forum, can be excluded-Question of-Although Section 14 does not apply to appeals, yet it can be made applicable by analogy-Held: If a litigant shows that he had been in good faith prosecuting another civil proceeding within meaning of Section 14, such circumstance may be treated as a sufficient cause for condonation of delay under Section 5 of Act—Held further: Circumstances as appearing in this case cannot be termed as being result of good faith, rather they constitute gross negligence-Appeal dismissed. [Pp.6,8&9]A,B&C AIR 1937 P.C. 276 and PLD 1977 S.C. 102 rel. PLD 1975 AJK131 over-ruled. Mr.Nazir Ahmad Ghauri, Advocate for Appellants. Ch.Muhammad Taj, Advocate for Respondent. Date of hearing: 23.11.1991. judgment Basharat Ahmad Shaikh, J.--This is an appeal against a judgment of the High Court by which a Division Bench on 24.1.1991 dismissed the appeal filed by the present appellants as being time-barred. 2. The facts giving rise to the present appeal are that the respondent Bank filed a suit for recovery of Rs.18,699.66 in the Court of Sub-Judge Mirpur on December 29, 1979. The suit was decreed on 23.1.1986. The appellants filed an appeal against the aforesaid decree in the Court of District Judge Mirpur. Subsequently it was realised that, in view of the amount involved, the appeal was competent only in the High Court and an application was filed in the Court of District Judge requesting that the appeal may be returned for being presented to the High Court. The appeal was returned to the appellants on April 7, 1987 and was filed in the High Court on the same day. The time allowed for filing appeal in the High Court in the meanwhile had run out. In the High Court a new memo of appeal was filed with which the original appeal returned by the District Judge was also attached. It was stated in the last para of the memo of appeal that the appeal had been inadvertently filed in the Court of District Judge and that on having "come to know" the memo of appeal and the requisite copies had been taken back from the District Judge and were being filed in the High Court and that, therefore, the appeal was within time. A separate application was also moved in which the same statement was repeated with the addition that it was prayed that if appeal was considered as barred by time condonation may be granted. 3. While holding that the appeal was time-barred, the Division Bench came to the conclusion that the appellants without due care and attention chose a wrong forum and thus mistake could not be deemed to be bona fide. It was observed that only bonafide mistakes attract the application of Section 14 of the Limitation Act. The learned Judges relied on the definition of "good faith" as contained in Section 2(4) of the Limitation Act and observed that if due care and attention had been exercised then it would have been easily found that the appeal had to be filed in the High Court and not in the Court of District Judge. The learned Judges disagreed with an earlier Division Bench case reported as Sardar Ismail Khan v. Sardar Bagga Khan [PLD 1975 Azad J & K 131] which was to the effect that a litigant cannot be penalised for the wrong advice of a legal practitioner who is duly licensed by the High Court and is, therefore, known as a fit person to be engaged and entrusted with the litigation by the people who are themselves ignorant of the law and procedure. 4. Mr.Nazir Ahmad Ghauri, the learned counsel for the appellants, contended that circumstances of the case were such that it was apparent that the appeal filed in the Court of District Judge was due to inadvertence based on the wrong advice of the counsel and that circumstances did justify deduction of time or condonation of delay. He vehemently contended that view taken by the Azad Jammu and Kashmir High Court in Sardar Ismail Khan v. Sardar Bagga Khan [PLD 1975 Azad J & K 131] was the correct exposition of law. He also relied on Ashiq Hussain Shah v. Ashiq All Shah [1982 S.C.M.R. 1110], MA. Mil v. Group Capt. (Reid.) Salah-ud-Din Klian [1983 C.L.C. 1685], Saddar Din v. Allah Rakha (PLJ 1984 Lahore 38), Muhammad Ayub v. Sain Dass [PLD 1963 Azad J & K 38], Al-Haj Mian Ghulam Yasin v. Managing Director, AKLASC, Muzaffarabad [PLJ 1988 AJ&K 15] and Muhammad Sharif Khan v. Mst.Manzoor Begum [PLJ 1981 AJ&K 131]. 5. On the other hand Ch.Muhammad Taj, the learned counsel for the respondent, contended that mistaken advice of the counsel was not in law a recognised ground for condonation of delay. He relied on a judgment of the Supreme Court of Pakistan reported as Abdul Ghani v. Ghulam Sarwar [PLD 1977 S.C. 102]. This judgment has also been relied upon by the learned Judges in the High Court in the judgment under appeal. 6. During his arguments the learned counsel for the respondents relied on Section 14 of the Limitation Act in order to bring his case within limitation. We may however observe that this section has nothing to do with appeals and its application is confined to suits. In this provision of law it is laid down that in computing the period of limitation prescribed for a suit, the time spent by the plaintiff in prosecuting, with due diligence, another civil proceeding shall be excluded; if other conditions regarding cause of action are fulfilled. It is true that sub-section (1) of Section 14 provides that time spent in prosecuting an appeal is also to be excluded but this exclusion is allowed only if a suit, not an appeal, has to be instituted. If a person files a suit and shows to the Court that he had been, with due diligence, prosecuting a civil suit and subsequently an appeal the time spent not only in prosecuting the civil suit but also the appeal would be excluded. However, if a person files a civil appeal and wishes to seek exclusion of time which he spent, even with due diligence, in another civil suit or appeal Section 14 would not be applicable. While Section 14 applies to civil suits, Section 5 of the Limitation Act is applicable to appeals, applications and review petitions. The grounds which are available for applying Section 5 are substantially different. Section 5 caters to different situations which may be covered by the words "sufficient cause". So far as the meaning of "sufficient cause" is concerned it has become well - known through judicial pronouncements. It was observed by B.Z. Kaikaus J., in Ata Ullah Malik . The Custodian Evacuee Property & others [PLD 1964 S.C. 236] that: ....sufficient cause had been defined as circumstances beyond the control of the party and I do not know uf any case wherein this definition of sufficient cause had been rejected". This observation was re-affirmed by the Supreme Court of Pakistan in the case reported as Abdul Ghani v. Ghulam Sarwar [P.L.D. 1977 S.C. 102]. 7. Although, as seen above, Section 14 does not apply to appeals but it has been held in a number of cases that its contents can be made applicable by analogy so that if a litigant shows that he had been in good faith prosecuting another civil proceeding within the meaning of Section 14 such circumstance may be treated as a "sufficient cause" for condonation of delay within the meaning of Section 5. Among the cases in which this proposition has been laid down, we may refer to Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others [AIR 1937 P.C. 276] and Abdul Ghani's case mentioned above. 8. This takes us to the question whether the appellants can successfully urge that the appeal filed in the Court of District Judge had been filed and prosecuted with good faith. If tae appellant's contention is shown to be well founded, it would furnish a "sufficien' cause" for condonation of delay. Notwithstanding the fact that both the learned c^ .msel who appeared in this appeal were not aware of it, this B proposition stands concluded by judgments of this Court that circumstances as appearing in the present case cannot be termed as being the result of "good faith"; rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonaiion does not arise. It may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment. 9. In an un-reported case of this Court entitled Muhammad Hussain Khan v. Abdul Karim [Civil Appeal No.41 of 1978, decided on 7.3.1984] a decree based on right of prior purchase was passed in favour of the plaintiff on payment of Rs.20,000/-. The plaintiff filed appeal to challenge the pre-emption amount. The defendant also appealed in respect of the claim for pre-emption. Both the appeals were filed in the Court of District Judge who returned both the memorandums of appeal on the ground that he could not hear the appeals due to lack of pecuniary jurisdiction. Appeal filed by the plaintiff in the High Court was dismissed in limine as time-barred after rejecting the plea that the appeal with the District Judge was filed through a bonaflde mistake. Appeal filed in this Court was dismissed. It was observed as follows by one of us (Sardar Said Muhammad Khan, J.): It has been vehemently argued by the learned counsel for Abdul Karim, appellant, that the learned single Judge of the High Court erred in refusing the prayer for the condonation of delay. He has argued that the delay was caused due to a bona fide mistake of the counsel, who believed that the appeal was competent to the District Court. There is ample authority in support of the proposition that the mistake of law is not a sufficient cause for the condonation of delay unless such ignorance of law is bona fide and is unaccompanied by negligence. The maxim 'ignorantia legis niminem excusaC has been firmly established in the superior Courts of sub-continent and it would amount to shaking of the established authority to maintain that ignorance of law or mistake of law arc valid reasons for condoning delay; especially so when such ignorance could have been avoided by resorting to the relevant law on the subject. We are fortified in our view by cases: 'Aon Muhammad v. Rehabilitation Commissioner' [PLD 1966 Lahore 319], 'Abdul Ghani v. Ghulam Sarwar' [PLD 1977 S.C. 102], Rehmat Ullah Chugtai .AzadKashmir Government [PLD 1967 AJK 47], Sardar Ali v. Chief Secretary Government ofAzadJ & K [PLD 1974 AJK 5] and Ghulam Fatima v. Federation of Pakistan [PLD 1970 Lahore 493]. It may be further observed that it has to be ascertained in each and every case as to whether or not the mistaken advice was the result of absence of due care and attention. If the Court comes to the conclusion that it was due to lack of reasonable skill on the part of the counsel, it will stand on the same footing as negligence. There may be cases where law on the subject is not clearly established by the judicial pronouncements or the relevant statutory provision admits of more than one interpretation. In such cases, it may be argued that the mistake of the counsel could not be avoided despite the possible efforts in that regard. But, where the statutory provision is clear and there is no ambiguity in the law resulting hi a mistaken belief of a legal adviser, there remains hardly any ground for approving the argument that the delay in filing the appeal should be condonded because the counsel for a party committed a bona fide mistake. A mistake which is the result of lack of due care and caution expected from a legal adviser cannot be termed as a "bona fide mistake' by any stretch of imagination. In the instant case, the objection with regard to the jurisdiction value of the suit was raised in the trial Court and it was made subjectmatter of an issue, which was decided by the trial Court. The findings on the relevant issue were not assailed when the appeal was filed before the District Judge. Besides, when the appeal was pending before the District Judge an objection was raised by the opposite party on 7.6.1976 that the appeal was not competent to the District Judge; but no steps were taken by the appellant or his counsel to rectify the mistake by filing the appeal in the proper forum, i.e., the High Court. The facts of the Instant case are such that there is hardly any force In the argument that despite the aforesaid negligent conduct the case is one of bona fide mistake justifying the condonation of delay in filing the appeal. Therefore, the argument that the impugned order of the High Court dismissing the appeal suffers from legal infirmity is not tenable and is hereby repelled". 10. The facts in Farooq Ahmad v. Mst. Rashida Bibi [Civil Appeal No.6 of 1988, decided on 19.2.1989] were that a decree for Rs.15,000/- was passed in favour of the plaintiff on the basis of dower. The defendant filed appeal with the District Judge who returned the appeal as it lay to the High Court. Appeal was preferred in the High Court after the prescribed limitation and condonation was sought on the basis of 'bona fide mistake'. It was held by the High Court that it was a case of 'gross negligence' and dismissed the appeal. This Court upheld the view of the High Court with the following observations :— "We have given our due consideration to the arguments raised by the learned counsel for the parties. It may be observed that even an experienced counsel may be misled regarding limitation on account of ambiguity in law or due to divergent judicial pronouncements. But where the law is well settled and there is no ambiguity regarding the correct forum for filing the appeal, the case does not come within the ambit of 'bona fide mistake'; rather it would be a case of 'gross negligence'. In view of the relevant provision embodied in the Courts and Laws Code Act, there is no ambiguity that the appeal was competent to the High Court and not to the District Judge. The learned counsel for the appellant could have avoided the mistake by resorting to the relevant provisions of law. Thus, the argument that the counsel for the appellant took due care and caution while choosing the forum for filing the appeal cannot be accepted. In the aforesaid view of the matter we see no reason to differ from the view taken by the High Court and hold that in the instant case the mistake in choosing the wrong forum was the result of gross negligence on the part of the counsel for the appellant and thus cannot be regarded as 'bona fide mistake'. It may be observed that the counsel for the party is expected to be careful in such cases; otherwise the aggrieved party, as has been held in some of the authorities, may sue his counsel for damages". 11. As the point involved in the case stands concluded by the aforesaid judgments of this Court, the case law cited by the learned counsel for the appellant is of no avail to him. This includes Sardar Ismail JQian v. Sardar Bagga [PLD 1975 AJK 131] as it stands overruled. The appeal has no merit and is, therefore, dismissed with costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC(AJK) 9 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 9 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J ABDUL HAQ-Appellant versus GHAZANFAR ALT and 3 others-Respondents Criminal Appeal No.9 of 1991, partly accepted on 27.11.1991. [On appeal from judgment of Shariat Court , dated 28.5.1991, in Cr.A. No.16 and Cr.R.No.20 of 1991.] Alibi-- —Murder case-Bail-Grant of-Cancellation of-Prayer for-Whether respondent No.l was rightly released on bail on plea of a/jfej-Question of~ Prosecution is producing 3 witnesses who are State functionaries responsible for arresting and subsequently detaining person under reference at Mandi Bahauddin—They have stated in their Police statements that person who had been with them, was not respondent No.l-It was a clever device on part of respondent No.l to have some person personated for him to create alibi— Held: It cannot be said that there is not enough material to connect respondent No.l with offence—Held further: Plea of alibi is yet to be gone into by trial Court which initially rejected application for bail-Bail of respondent No.l cancelled. [Pp.l2&13]A&B Ch.Muhammad Taj, Advocate for Appellant. Kli^lli Muhammad, Advocate for Respondents. Date of hearing: 23.11.1991. judgment Basharat Ahmad Shaikh, J.--This appeal has been filed by Abdul Haq on whose instance a case of murder was registered by Mirpur Police against Ghazanfar Ali, Aftab Hussain and Mahboob Hussain sons of Feroze Din, the respondents before us. All the three have been granted bail and the complainant seeks, through this appeal, cancellation of their bail. The order under appeal was passed by the Shariat Court on 28th of May 1991 and Ghazanfar Ali was ordered to be released on bail. By the same order the Shariat Court rejected the prayer for cancelling the bail of Aftab Hussain and Mahboob Hussain. 2. The occurrence in the case took place on the llth of February 1991 at about 6-30 a.m. It is stated in the F.I.R. that complainant Abdul Haq and Muhammad Yusuf, who had come to Abdul Haq's house for an over-night stay, were standing in the court-yard of Abdul Haq's house when accused Ghazanfar Ali along with two unknown persons entered the court-yard and started firing with 'klashnikov' guns as a result of which Muhammad Yusuf received fatal wounds and died on spot. It is stated in the F.I.R. that the occurrence had also been v^fiwased by Tariq Mahmood and Masud, two sons of the complainant Abdul Haq. The F.I.R. further states that after committing the offence the accused persons escaped in a car, bearing registeration No. Karachi 092-226, which was parked at nearby place on the road side. Complainant Abdul Haq and three respondents are, inter-se, first cousins, and according to the F.I.R. are inimical to each other. A case under Section 5 of the Islami Tazeerati Qawaneen Nifaz Act and Sections 307/34 P.C. having been registered against Ghazanfar Ali, accused respondents Aftab Hussain and Mahboob Hussain were also found to be connected with the offence and were arrested under the aforesaid sections as well as Section 109 of the Penal Code. 3. The District Criminal Court while disposing of the bail applications filed by the accused persons, allowed bail to Aftab Hussain and Mahboob Hussain but a similar prayer made by Ghazanfar Ali was declined. Complainant Abdul Haq challenged the order in respect of granting bail before the Shariat Court while Ghazanfar Ali applied to the Shariat Court for being granted bail. The Shariat Court by its order under appeal affirmed the order granting bail to Aftab Hussain and Mahboob Hussain, and also ordered that Ghazanfar Ali be released on bail on usual conditions of furnishing bail bond etc. 4. So far as Aftab Hussain and Mahboob Hussain are concerned it does not seem to be seriously contested so far that they were in judicial lock-up in Mirpur at the time of incident. They were granted bail, inter alia, on that ground. It is also claimed by Ghazanfar Ali that he too had been arrested at Mandi Bahah-ud-Din and was in judicial lock-up from 7th February to 14th February and therefore was wrongly named as the assailant in the incident which took place on 10th of February. The order granting bail to him also appears to be mainly based on the ground of alibi. 5. We have heard Ch. Muhammad Taj, the learned counsel for complainant Abdul Haq, who is the appellant before us, as well as the learned counsel for the respondents, KhAli Muhammad. We have gone through the order of the Shariat Court with the assistance of the learned counsel. Both the learned counsel addressed arguments in support and opposition of the issue in hand at some length. It is contended by Ch.Muhammad Taj that the learned Judge in the Shariat Court has embarked on a detailed examination of the merits or otherwise of the evidence which the prosecution proposes to adduce in the case and has given undue weight to the plea of alibi raised by Ghazanfar Ali. He submitted that the fact that all the three accused persons were under detention, as claimed, at the time of occurrence is itself an intriguing development which needs to be noticed in the case because all of them were arrested in bailable cases under the Arms Act and it seems clear that this was done to create an alibi. He contended that in fact the person who was actually confined in custody at Mandi Bahah-ud-Din was not Ghazanfar Ali accused but some other person who had been planted to personate as Ghazanfar Ali to create alibi. KhAli Muhammad, the learned counsel for the accused persons, submitted that the conclusions drawn by the learned Judge Shariat Court were un-exceptionable and, in any case, the discretion exercised by the learned Judge does not show any arbitrariness with the result that this Court should not like to interfere in the matter. 6. A perusal of the order of the learned Judge in the Shariat Court shows that the learned Judge analysed the plea of alibi raised by Ghazanfar Ali and noted that full particulars, namely, name, parentage and his residence in Mirpur of the person who was confined at Mandi Bahah-ud-Din were the same as those of accused Ghazanfar Ali. It was also noted that the Assistant Superintendent Jail and Warden stated that they could only state what were the entries in the record but unable to confirm or deny that Ghazanfar Ali accused was in fact the person who remained in Jail from 7th February to 14th February. In para 12 of the order the learned Judge mentioned that in the Challan filed in the District Criminal Court at Mirpur, Assistant Superintendent Sub-Jail Mandi Bahah-ud-Din, Warden Riaz Hussain Shah, Constables Mukhtiar Hussain Shah and Shabir Hussain Shah, Muhammad Aslam Assistant Sub-Inspector, belonging to Mandi Bahah-ud-Din Police Station are shown as prosecution witnesses and their statements recorded under Section 161 Cr.P.C. contain the assertion that Ghazanfar Ali accused in the case who had been taken to Mandi Bahah-ud-Din in connection with the plea of alibi was not the same person who was arrested and sent to the judicial lock-up at Mandi Bahah-ud-Din. After taking into account all these factors the learned Judge proceeded to record the following observations: "13 .................... The question that naturally arises and remains yet to be determined is as to whether this accused Ghazanfar Ali in the instant case in fact was arrested on 6.2.1991 by Mandi Bahah-ud-Din Police and thereafter remained in the judicial lock-up in sub-jail Mandi Bahah-ud- Din from 7.2.1991 to 14.2.1991 as is shown in the police record and sub-jail record Mandi Bahah-ud-Din. This obviously is to be inquired into and determined by the trial Court. 14. Taking the tentative view of the facts available on record I feel satisfied that a case for allowing bail to the accused-appellant Ghazanfar Ali appears to have been made out. The point, on careful consideration, is found to have not been attended to by the trial Court in its correct perspective while deciding the bail petition moved by the accusedappellant. 15. For the afore-stated reasons, I feel inclined to accept the appeal. Accused-appellant Ghazanfar Ali shall be released, if not required in any other case or for any other offence, on bail on furnishing bail bond in the sum of Rs.3,00,000/- with two sureties severally responsible in the same amount to the satisfaction of any Magistrate First Class Mirpur on the condition that he surrenders his International Passport British/Pakistani to this Court". 7. The observations quoted above show that the learned Judge expressed the view that whether or not the person who was in sub-jail Mandi Bahah-ud-Din at the date of occurrence was in fact Ghazanfar Ali accused was to be determined by the trial Court. However, after making this observation in para 14, the learned Judge reached the conclusion that on the tentative view of the facts available on the record he was satisfied that a case for bail had been made out. In our considered view the conclusion drawn by the learned Judge is not sustainable in law. It is now well settled rule which has been stated by the learned Judge himself in the order under appeal that a tentative assessment of the prosecution evidence can be made but the conclusion drawn by the learned Judge does not seem to be in accordance with this principle. The prosecution is producing three witnesses who are, as appears from the record, State functionaries responsible for arresting and subsequently detaining the person under reference at Mandi Bahah-ud-Din. They have stated in their Police statements that the person who had been with them was not Ghazanfar Ali, the respondent before us. In other words the prosecution has evidence to prove that it was a clever device on the part of Ghazanfar Ali to have some person personated for him to create an alibi. The accused person is named in the F.I.R. There is no question of any mistaken identity because the complainant and the accused are first cousins inter-se. It is no doubt that the incident took place at 6-30 a.m. and the sun rose at 6-49 a.m. on the day of occurrence, as has been highlighted on behalf of respondent Ghazanfar Ali, but that does not mean that there was darkness at 6-30 a.m. This is so even if it was raining at the relevant time. The broad principle is that bail is refused in murder cases if the material on the record tends to connect the accused person with the offence. Another test which has been laid down by the superior Courts while dealing with bail matters in cases in which death or life imprisonment is the prescribed sentence is that an accused would not be granted bail if the prosecution evidence, if left unrebutted, would prove the charge. We have already indicated the material which is available on the record on which the prosecution relies. In our view to enlarge Ghazanfar Ali in presence of this material would only be possible if we tentatively declare that this material is not enough to connect the accused with the offence. In our considered view there is no such situation in the case. The plea of alibi is yet to be gone into by the trial Court, as has been pointed out by the learned Judge of the Shariat Court himself, and we would rather leave this function to be performed by the trial Court which initially rejected the application for bail moved by Ghazanfar Ali accused. 8. So far as the other accused persons are concerned their alibi tentatively has some force because there is nothing in the prosecution case to show that they were not in fact in confinement at the relevant time. Apart from that they are not charged with direct participation in the crime. They were released by the trial Court and that order was affirmed by the learned Judge in the Shariat Court. This factor also goes in favour of the two accused persons. We, therefore, find no grounds for interference in so far these two accused Aftab Hussain and Mahboob Hussain are concerned. The upshot of the aforementioned analysis is that by setting aside the order passed by the Shariat Court granting bail to Ghazanfar Ali we cancel his bail bonds. It is stated that he has already been arrested in connection with another B murder case and is confined in the judicial lock-up. If not, he shall be taken in custody at once. He will be detained in judicial lock-up till the completion of the case against him. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 SC(AJK) 13 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 13 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN CJ, AND BASHARAT AHMAD SHAIKH, J A.J.K GOVERNMENT, THROUGH ITS CHIEF SECRETARY and 2 others- Appellants versus NEELUM FLOUR MILLS-Respondent Civil Appeal No.25 of 1991, accepted on 14.12.1991 [On appeal from judgment of High Court, dated 10.4.1991 in W.P. No.7 of 1987, reported as PLJ 1991 AJK 34]. Writ Jurisdiction-- —Agreement of milling wheat-Handling charges-Refusal to pay-High Court accepted writ petition-Challenge to-Contenlion that writ jurisdiction could not be exercised for enforcement of contractual liabilities—There is no law which provides for payment of handling charges-Held: Section 44 of AJK Interim Constitution Act, 1974 clearly indicates that writ jurisdiction is exercisable only if petitioner before High Court bases his grievance on violation of law and thus any grievance which is based on violation of a contract is clearly excluded-Appeal accepted. [Pp.l5,16&17]A,B,C&D Sardar Rafique Mahmood Khan, Advocate for Appellants. Mr. Farooq Hussain Kashmiri, Advocate for Respondent. Date of hearing: 2.12.1991. judgment Basharat Ahmad Shaikh, J.--The High Court has accepted a writ petition filed by Neelum Flour Mills, (reported as PLJ 1991 AJK 34) the respondent herein, and has declared that the order passed by the Director Food with the approval of the Secretary Food which was to the effect that Neelum Flour Mills would not be paid "handling charges" has been declared as having been passed without jurisdiction and has been quashed. The Azad Government as well as Secretary and Director of the Food Department have challenged the judgment of the High Court with the leave of this Court. 2. The facts narrated in the writ petition on behalf of Neelum Flour Mills, in short, are that the Government and the Neelum Flour Mills (hereinafter to be referred to as 'the Mills') entered into an agreement on 18.4.1984 for milling of wheat. In pursuance of this agreement a Government order was also passed. Handling charges were paid to the Mills for about two years but the Director Food suddenly refused to pay these charges and also issued the impugned order on 17.12.1986 that the amount already paid on that account shall be recovered from the Mills. A number of grounds were enumerated in the writ petition to challenge the action of the Director Food. It was ultimately prayed that the impugned order calling upon the petitioner to refund Rs.8,832/- may be declared illegal, without lawful authority and void. It was also prayed that a writ of mandamus or any appropriate writ may be issued to the respondents directing them to pay handling charges to the petitioner (to) which it is entitled under the agreement dated 18.4.1984 as well as the Government order issued in pursuance thereof. In the written statement the respondents adopted the position that handling charges were only to be paid to the Mills with respect of the stock of wheat which was to be transported by the Mills from the Government godown and not from the stock which were to be transported to the Mills godown from the contractor of the Department. 3. The High held that the respondents were under duty by virtue of "doctrine of acceptance by silence" to refrain from realising the amount in question. For this proposition the Court found support from Karachi Gas Co. Ltd. v. Dawood Cotton Mills (PLD 1975 S.C. 193). The High Court also found that the order passed by Director Food with the approval of the Secretary Food was not valid because both these officers were a party to the agreement entered into with the Mills and in that capacity they had no authority to unilaterally stop payment of handling charges or to recover the amount already paid. It has also been observed in the order under appeal that payment to the Mills on account of handling charges had been made to the Mills in accordance with the terms of the agreement and not by mistake, as claimed by the Director of Food. 4. When petition for leave to appeal in this Court came (up) for hearing it was argued, inter alia, by the learned counsel for the appellants that the order of the High Court was un-sustainable in view of the legal position, as claimed, that writ jurisdiction could not be exercised for enforcement of contractual liabilities. This point has not been raised before the High Court but since it was a point which went to the root of the case and related to the jurisdiction of the High Court leave was granted on this point in accordance with the consistent practice of this Court. 5. We have consequently heard detailed arguments on this aspect of the case. We have also heard the learned counsel at some length in so far as merits of the case are concerned. This Court has already laid down the law that contractual liability cannot be enforced through a writ petition in an un-reported judgment Mufti Nazir Hussain vs. Azad Government (Civil Appeal No.49 of 1979 decided on 2.1.1980). Mufti Nazir Hussain a retired District Oazi was re-employed as District Oazi as a stop-gap arrangement necessitated because of the absence of permanent District Oazi who had proceeded to Saudi Arabia for higher studies. His services were terminated after some time, whereupon Mufti Nazir Hussain filed a writ petition in the High Court challenging the termination order. The main ground taken in the petition was that he had been re-employed on contractual basis that his service would continue till the return of the permanent incumbent from Saudi Arabia and his services therefore could not be terminated earlier. Violation of the principle of audi alteram partem was also made a ground of attack in the impugned order. The writ petition was accepted and the termination order was quashed. The A/ad Government challenged the order of the High Court before this Court. The learned Advocate-General contended before this Court that no writ petition could lie to enforce a contractual obligation. This Court came to the conclusion that by getting the impugned order vacated all that Mufti Nazir Hussain wanted was the enforcement of contractual liability through a writ petition. Muhammad Aslam, J. speaking for the Court observed as follows:- "We find this objection quite forceful as there is no escape from the fact that such a writ petition for enforcement of service contract does not lie. It is well settled that for the enforcement of a contract or an agreement, relief cannot be allowed through a writ (of) mandamus and the superior Courts have refused to issue directions, as sought by the respondent herein, on the ground that proper remedy is available through a suit in the civil Courts. To cite a few authorities, we may refer to Tlie Chandpur Mills Ltd. v. Tlic District Magistrate, Tippera and another (PLD 1958 S.C. 267), Pakistan v. Naseem Ahmad (PLD 1961 S.C. 445), Messrs Momin Motor Company v. Tlie Regional Transport Authority, Dacca (PLD 1962 S.C. 108), M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore & another (1968 S.C.M.R. 1136), Shamshad Alt Khan v. Commissioner, Lahore (1969 S.C.M.R. 122) and Mir Rasool Bux Khan Sundrani & Co. v. People's Municipality, Sukkur and others (PLD 1975 Kar. 878). No doubt some of these authorities, as pointed out by the learned counsel for the respondent, pertain to agreements about property, but the principle enunciated in them is the same; namely that the Courts, while exercising extra-ordinary writ jurisdiction, do not issue orders or directions for the enforcement of contractual obligations. 1. Pakistan, and (2) Administrator of Karachi v. Naseem Ahmad (PLD 1961 S.C. 445) contain almost an identical case where the police employees sought through writ (of) mandamus a direction from the High Court for their re-instatement on the basis of service contract. The High Court issued the writ for restoring the government servants to their offices. Against this decision, the Government went in appeal before the Supreme Court where over-ruling the High Court's view, it was held 'a writ of mandamus does not lie to restore a Government servant to office. In view of this state of law, and agreeing with the contention of the learned Advocate-General, we hold that the respondent herein could not seek his remedy as stated in the writ petition, through the extraordinary writ jurisdiction of the High Court and if so advised, he could seek his relief through a suit before a civil Court." 6. The learned counsel for the respondent vehemently contended that even if the rule that contractual liability is not enforceable through a writ petition is assumed to be correct the present case was not hit by the mischief of this rule. He contended that the appellant did not pray in his writ petition that the contractual liability may be enforced. What was prayed before the High Court was that the order passed by the Director Food that handling charges would not be paid to the Mills and that the amount of handling charges already paid may be recovered from the Mills was without lawful authority. In light of Mufti Na/ir Hussain's case and other judgments mentioned in the observations quoted above, the distinction sought to be created by the learned counsel is superficial and has no force. A similar argument was raised in Mufti Na/.ir Hussain's case but was repelled. The simple question before us is this: under what authority the Mills claim that handling charges should be paid to it? There is no law which provides for payment of handling charges. It is only the contract between the parties which provides for the payment of handling charges. Therefore, it is a simple case of enforcement of contractual liability. We find force in the argument of Sardar Rafique Mahmood Khan, the learned counsel for the appellants,,that the phraseology of Section 44 of the A/,ad Jammu and Kashmir Interim Constitution Act 1974 clearly indicates that jurisdiction conferred bylhat section is exercisablc only if the petitioner before the High Court bases his grievance on violation of a law and thus any grievance which is based on violation of a contract is clearly excluded. 7. When this judgment was being written the learned counsel for the respondent. Mr. Farooq Hussain Kashmiri, sent a request that the judgment of Madhya Pradesh High Court M/s. Shree Ganesh Trading Co. Saugor v. The State ofMadhya Pradesh & others (A.I.R. 1973 M.P. 26) may also be considered. We have gone through the judgment. One of the points which has been laid down in that judgment is that writ jurisdiction can be exercised in respect of matters arising partly out of contracts and partly out of statutes. There is no such situation in the present case and the rights of the parties are only governed by the contract under reference. Without going into the question whether handling charges are payable to the Mills or not, we are of the view that the case is clearly hit by mischief of rule that a writ does not lie to enforce a contract. The appeal is accepted and the writ petition filed by the respondent stands dismissed. Since this legal objection was not raised before the High Court there would be no order as to the costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC (AJK) 17 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 17 [Appellate Jurisdiction] Present: sardar said muhammad khan ci and basharat ahmad shaikh, J. MAQBOOL HUSSAIN alias MAQBOOL AHMAD-Appellant versus JAMAL DIN and 7 others-Respondents Civil Appeal No. 10 of 1991, accepted on 4.11.1991. [On appeal from order of High Court, dated 12.12.1990, hi C.R. No. 43 of 1988] Abatement.-- —-Non-impleadment of heir of deceased defendant-Whether suit stood abated- -Question of--Question of abatement of suit depends upon as to whether Rahim Bakhsh, defendant, was a necessary party in suit filed by appellant—It is on record that Rahim Bakhsh had sold his total share in suit land in his life tune and he had no interest left in suit land-It cannot be said at any stretch of imagination that Rahim Bakhsh was a necessary party in suit for possession-­ Held: As Rahim Bakhsh was not a necessary party, his death would not effect suit for possession and no question of abatement of suit arises-Appeal accepted. [Pp.l9&20]A&B AIR 1921 Lah. 357, AIR 1932 Lah. 641,PLJ 1974 Lah. 458, PLD 1975 Lah. 143, AIR 1923 Lah. 647 and AIR 1926 Cal. 512 rel. Raja Sher Muhammad Khan, Advocate for Appellant. Syed Nazir Hussain Shah Kazmi, Advocate for Respondents. Date of hearing: 16.10.1991. judgment Sardar Said Muhammad Khan, C J.-This appeal has been directed against the order of the High Court dated 12-12-1990 whereby the revision petition filed by Jamal Din and others, respondents, was accepted and the suit of the appellant, herein, was declared to have been abated due to non-impleadment of Mst. Taja Begum, a legal representative of Rahim Bukhsh, deceased-defendant. Brief facts giving rise to the present appeal are that a declaratory suit was filed by Maqbool Hussain alleging that the suit land comprising survey Nos. 7,10 and 151, measuring 37 kanals 16 marlas, was in the ownership of Jamal Din and Rahim Bukhsh, defendants Nos. 1 and 2, but he had forcibly taken the possession of the same in the year 1971 and since then is holding the land alongwith a house adverse to the aforesaid owners. However, Rahim Bukhsh, defendant No. 2, who was father of the appellant, herein, had transferred his share in the suit land through a registered sale-deed to defendant No. 3, Mst. Akbar Jan, despite the fact that he had no subsistent right of ownership in the suit land because the possession of the plaintiff-appellant had ripened into ownership. The plaintiff claimed that the sale-deed executed by Rahim Bukhsh to the extent of his share may be declared null and void and also sought declaration that his possession over the whole of the suit land measuring 37 kanals 16 marlas had ripened into ownership. A cross suit for possession was filed by Jamal Din and Mst. Akbar Jan, defendants, against Maqbool Hussain alongwith a house alleging that the hah 0 of the suit land belonged to Jamal Din and the other half had become the ownership of Mst. Akbar Jan, plaintiff-respondent as a result of the sale-deed dated 14-7-1986, executed by her father, Rahim Bukhsh, in her favour. It so happened that during the pendency of the suit, Rahim Bukhsh died. One of his legal representatives, Mst. Taja Begum, daughter of Rahim Bukhsh, was not brought on the record; other representatives of the deceased were already on the record. An objection was raised that Mst. Taja Begum should be arrayed in the line of defendants as one of the legal heirs of Rahim Bukhsh. The learned Sub-Judge brought her on the record despite the objection that limitation for the impleadment of Mst. Taja Begum had already expired. The learned Sub-Judge expressed the view that the limitation in the instant case would not be governed by Article 181 of the Limitation Act and as such the application for bringing her on record is not time-barred. Consequently, Jamal Din filed a revision petition in the High Court challenging the order of the trial Court so far as the same pertained to the impleadment of Mst. Taja Begum as defendant in the suit filed by Maqbool Hussain contending that the suit stood abated due to non-impleadment of Mst. Taja Begum. It has also been recorded in the memorandum of revision petition that as Rahim Bukhsh, before his death, had executed the sale-deed of his share in favour of Mst. Akbar Jan; he had no interest in the property and, thus, even on that score Mst. Taja Begum should have not been impleaded as defendant. The High Court accepted the revision petition holding that the declaratory suit claiming the adverse possession filed by Maqbool Hussain had abated in toto because in case the suit is proceeded so far as the share of Jamal Din is concerned, contradictory decrees may come into existence. We have heard the arguments and perused the file. The learned counsel for the appellant, Raja Sher Muhammad Khan, has argued that his case before the High Court was that as Rahim Bukhsh had sold his share in the suit land to Mst. Akbar Jan, he was no more a necessary party and, thus, the suit filed by him would not be affected. The learned counsel for the respondents, Syed Nazir Hussain Shah Kazmi, contended that the impugned order of the High Court did not suffer from any legal infirmity and it was rightly held by the High Court that the suit would abate in toto. He has cited the following authorities in support of his contention that where the interests of the defendants are indivisible and inseperable, the suit or appeal must abate in toto. 1. AksarAli v. Fatal Karim (1982 C.L.C. 1309); and 2. Muzaffar v. Moulvi Azizur Rahman (1983 C.L.C. 16). We have given our due consideration to the arguments raised at the Bar and are of the opinion that the question as to whether the suit to the extent of Rahim Bukhsh would abate or not depends upon as to whether Rahim Bukhsh was a necessary party in the suit filed by the appellant, herein. It is on the record that Rahim Bukhsh had sold his total share in the suit land in his life time and he had no interest left in the suit land. Jamal Din and Mst. Akbar Jan did not array Mst. Taja Begum as defendant in their suit for possession. The fact that Mst. Akbar Jan had averred in the plaint filed in the suit for possession that she had purchased the total share from Rahim Bukhsh and as such was the sole owner so far as the share of Rahim Bukhsh, her father, was concerned and he had no interest left in the land. In other words, Jamal Din and Mst. Akbar Jan claim exclusive ownership of the total area of the suit land and it is not their case that there was any share left in the suit land so far as Mst. Taja Begum was concerned. Even in the memorandum of revision petition filed by Jamal Din in the High Court it has been mentioned that Mst. Taja Begum was not a necessary party to be impleaded in the suit of adverse possession because Rahim Bukhsh had transferred his share to Mst. Akbar Jan in his life time. Thus, in view of the stand taken by Jamal. Din it cannot be said at any stretch of imagination that Rahim Bukhsh was a necessary party in the suit for possession. It is settled principle of law that if a defendant or plaintiff is not a necessary party, the death of such a party would not affect the suit and no question of abatement arises. A reference may be made to the following authorities which support the aforesaid proposition:- 1. Jai Kishen Das v.Arya Priti Nidhi Sabha (A.I.R. 1921 Lah. 357); 2. BishambarDas . Kanshi Parshad (A.I.R. 1932 Lah. 641); 3. Shah Jahan Begum v. Baloch (P.LJ. 1974 Lah. 458); 4. UmidAli v. Wall Muhammad (P.L.D. 1975 Lah. 143); 5. Lekha v. Bhani (A.I.R 1923 Lah. 647); and 6. Madhususdan Chakravarti v. Satish Chandra Nag (A.I.R. 1926 Cal. 512). The upshot of the above discussion is that as Rahim Bukhsh was not a necessary party in the suit for adverse possession, his death would not affect the non-impleadment of one of his legal heirs, i.e., Mst. Taja Begum. Consequently, we accept the appeal, set aside the impugned order of the High Court and direct that the declaratory suit filed by the appellant, herein shall be proceeded according to law. No order is made as to the costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC (AJK) 20 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 20 [Appellate Jurisdiction] Present: sardar said muhammad khan,cj and basharat ahmad shaikh, j Mst. JAN BEGUM and 3 others-Appellants versus MUHAMMAD ISLAM and 6 others-Respondents Civil Appeal No. 37 of 1991, dismissed on 28.10.1991. [On appeal from Judgment and decree of High Court, dated 19.3.1990, in Civil Appeal No. 23 of 1989.] Civil Procedure Code, 1908 (V of 1908)- —O. XLI R. 27-Specific performance of agreement-Suit for-Additional evidence-Production of-Prayer for--Refusal of-Challenge to—Document sought to be produced in additional evidence, was in knowledge of predecessor-in-interest of appellants but he made no effort to adduce same in evidence-No attempt was made to adduce same as additional evidence in court of District Judge-Matter pertains to adducing additional evidence at stage of second appeal, for which no sufficient cause has been shown—Held: It is settled principle of law that additional evidence under Order XLI Rule 27 C.P.C. can be adduced only for sufficient reasons or if it is necessary for enabling court to pronounce judgment-Held further: Findings of District Judge do not suffer from any infirmity and appeal has no merits. [Pp.23&24]A&B PLD 1978 SC (AJ&K) 112,1983 CLC 1912, PLD 1984 Lah. 139, PLD 1983 SC (AJ &K)188, PLD 1984 AJ&K 41, PLD 1977 AJ&K 78 and PLD 1969 SC 60 not relevant. Ch. Muhammad Sharif Tariq, Advocate for Appellants. Mr. Muhammad Yunus Surakhvi, Advocate for Respondents. Date of hearing: 26.10.1991. judgment Sardar Said Muhammad Khan, CJ.-This appeal has been directed against the judgment of the High Court dated 19-3-1990 whereby the appeal filed by the appellants, herein, was dismissed. Brief facts giving rise to the present appeal are that Muhammad Hussain (who has died and whosejegal representatives are on the record) brought a suit for specific performance of the contract in respect of the land measuring 13 kanals 13 marlas, comprising survery No. 162, situate in village Saroa, Tehsil Sehnsa. The case of Muhammad Hussain, deceased-plaintiff, was that he had "purchased the land from Walayat and others andihus the suit land came into his possession as a vendee. Muhammad Ismail brought a suit for possession on the basis of right of prior purchase which was compromised between the parties on the assurance of the pre-emptor that after the suit was decreed in his favour, he would transfer the suit land to Muhammad Hussain through a sale-deed but-subsequently,he refused to oblige him. Thus, he sought a decree for specific performance of contract against Muhammad Ismail, pre-emptor, for executing the sale-deed of the said land in his favour. The averments made by the plaintiff were denied by the. respondents/decree-holders; the suit was resisted on all grounds. The counsel for the appellants filed an application in the High Court for producing additional evidence in form of an attested copy of the document which was allegedly executed by Muhammad Ismail, respondent, at the tune of the compromise hi the pre-emption case. The prayer was rejected by the High Court. So far as the merits of the case were concerned, the counsel for the appellants conceded in the High Court that if the additional evidence was not brought on the record, he had no case. Consequently, the High Court dismissed the appeal. We have heard the arguments and gone through the record. The learned counsel for the appellants, Mr. Muhammad Sharif Tariq, vehemently argued that the High Court has committed error in rejecting the prayer for bringing the attested copy of the relevant agreement, executed by Muhammad Ismail, which would have established the fact that the averments made by him hi the plaint are correct. The learned counsel has further contended that the counsel for the appellants who was given the general power to prosecute the case was not competent to give any concession to the opposite party by stating that be had no case and thus his admission on the question of law is not binding on the appellants. Therefore, the High Court was not justified hi dismissing the appeal on the basis of admission made by the counsel for the appellants. The learned counsel has cited the following authorities in support of his contentions: In Muhammad Yasin v. Mst. Begum Noor [P.L.D. 1978 S.C. (AJ&K) 112], it was opined that an action of a pleader authorised to act on behalf of his client is not binding upon his client, if such an action is not shown to have been performed in proper conduct of case. In Muhammad Akbar v. Mst. Faziha Begum (1983 C.L.C. 1912), it was held that if a counsel abandons an important point as a result of collusion and connivance with the opposite party or for the ulterior motive, the party is not bound by his act or a statement. In Muhammad Hussain v. Settlement Commissioner (P.L.D. 1984 Lah. 139), it was observed that the provisions contained in Order XIII rule 2, C.P.C., are for the purpose of preventing any fraud and not to penalise the parties for nonproduction of the document at proper stage; and that the Court has discretion in such a matter which is to be exercised on sound judicial principles depending upon the facts and circumstances of each case. It was held that if a party had no opportunity to produce the documentary evidence at proper stage, such party may be permitted to produce the same if authenticity of the document is not disputed. In Haji Muhammad Yousaf Klian v. Abdul Aziz Khan [P.L.D. 1983 S.C. (AJ&K) 188], it was .held that an appellate Court has power to record additional evidence to adjudicate upon the controvertial issue effectively and conclusively. It was observed, in the circumstances of the case, that the High Court should not have remanded the case but should have taken additional evidence in the case itself to decide the question as to whether the suit for pre-emption was hit by the principle of partial pre-emption. In Faizullah v. Mst. Zaini (P.L.D. 1984 Azad J&K 41), it was observed that the question of admission of document lies within the discretion of the trial Court and the discretion exercised would not be interfered with if the same has been exercised properly. It was further opined that the admission of a document is essentially a procedural matter and as such it may be received liberally for advancing the cause of justice. In Umar Hayat v. NasikAlam (P.L.D. 1977 Azad J&K 78), it was held that if a document was not placed on the record on the date of first hearing, the same may be produced subsequently, if sufficient cause is shown. In T\e Secretary to the Government of West Pakistan v. Gulzar Muhammad (P.L.D. 1969 S.C. 60), it was held that if important evidence was discovered subsequently, there are three courses open for the party concerned to seek relief, i.e., (0 to apply for admission of fresh material as additional evidence; (ii) to apply for review of the judgment; or (Hi) to appeal from the judgment. The first question which needs to be resolved is as to whether the appellants were justified in failing to produce the relevant document when their case was pending in the trial Court or in the first appellate Court. The learned counsel for the appellants, Ch.Muhammad Sharif Tariq, has argued that in fact the aforesaid document was executed when their suit was already pending in the trial Court. In other words his case is that although the document in question was not in existence when the suit was filed; but the same was in existence when the suit had not yet been decided by the trial Court. It implies that, according to the counsel for the appellants, the document in question was in the knowledge of Muhammad Hussain, the predecessor-in-interest of the appellants but he made no effort to adduce the same in evidence. Similarly, no attempt was made to tender the aforesaid document as additional evidence in the Court of District Judge. The application for allowing additional evidence was for the first time submitted in the High Court wherein it had been mentioned that as the appellants could not find the said document earlier, they could not produce the same in evidence earlier. It appears that arguments advanced on the point were somewhat at variance with the stand taken in the application, i.e., it was contended before the High Court that the document was not in the knowledge of the appellants at the relevant tune. We are of the opinion that the reasons given by the learned counsel for. the appellants for failing to produce the document at proper stage have no substance because the document, according to the appellants, was in existence when Muhammad Hussain, predecessor-in-interest of the appellants, was alive and had the knowledge of the document in question, because the document was executed by Muhammad Ismail, respondent, when his suit was pending in the trial Court. Most of the authorities cited by the learned counsel for the appellants pertain to filing of documents under Order XIlI rule 2, C.P.C., i.e., whether a document can be brought on the record after the first date of hearing of the suit. In the instant case, the question does not relate to the filing of the document at a date subsequent to the first hearing of the suit; rather the matter pertains to adducing additional evidence at the stage of the second appeal for which no sufficient cause has been shown. It is correct that in proper cases, the Court has discretion to allow additional evidence at appeal stage but the same cannot be allowed to fill up the lacunas or as a matter of routine. It is not a case of technicality which should be liberally construed in favour of the party concerned; rather it is a case of filling up the lacunas in a case; and no sufficient cause has been shown for not producing the document in the trial Court. It is settled principle of law that additional evidence under Order 41 Rule 27, C.P.C., can be adduced only for sufficient reasons or if it is necessary for enabling the Court to pronounce judgment. No such eventuality exists in the instant case. Coming to the merits of the case it may be observed that irrespective of the fact as to what would be the effect of the admission of the counsel for the appellants in the High Court that he ha'd no case if the aforesaid document is not allowed to be tendered as additional evidence, the learned counsel for the appellants was allowed to address arguments on merits of the case. The learned counsel has referred to the statements of witnesses, namely, Haji Sain, Kufait Ali, Lai Din and Muhammad Hussain. The testimony of the said witnesses had been held by the District Judge to be of no avail to the case of- the appellants. The contention of the learned counsel for the appellants that Muhammad Ismail had agreed to execute a sale-deed in favour of Muhammad Hussain, deceased, in case the latter accepted his claim and the suit is decreed in favour of Muhammad Ismail, is not substantiated by the statements of the aforesaid witnesses. It may be observed that in pre-emption suit Muhammad Yusuf was 'Mukhtar' on behalf of Muhammad Ismail, plaintiff. Haji Sain has stated that he was not aware of any compromise in the Court. However, he stated that there was negotiation in a Tunchayat' between Muhammad Ismail and Muhammad Hussain wherein Muhammad Ismail pre-emptor had offered Muhammad Hussain that he might get decree of the suit land in his favour of payment of Rs.18,000/-. The witness does not state regarding any execution of sale-deed by Muhammad Ismail in favour of Muhammad Hussain after.passing of the decree by the High Court. Lai Din, Kufayat Ali, and Muhammad Hussain also made similar statements, i.e., it was decided in the Tunchayat' that the land would be decreed hi favour of Muhammad Hussain on payment of a certain amount. These witnesses did not state that the sale-deed was to be executed by Ismail, respondent, after passing the decree. Muhammad Hussain, plaintiff-deceased, had stated in the Court as his own witness that Muhammad Ismail had promised to execute a sale-deed hi his favour. His statement is in derogation to the deposition of the other witnesses of the Tunchayat' which has already been referred to. Muhammad Yusuf, who was a witness of Muhammad Ismail, has stated that although there had been Tunchayat' in the matter, but the decision was not acted upon according to the decision of the Tunchayat'. The brief survey of the evidence of the parties shows that the decision taken in Tunchayat' was to the effect that the suit land would be decreed hi favour of Muhammad Hussain. None of the witnesses stated that there was any agreement between the parties regarding execution of any sale-deed. Thus, we are of the opinion that the contention of the learned counsel for the appellants that there is other sufficient evidence on the record which supports his case that Muhammad Ismail had agreed that after the decree in the suit of pre-emption, the land would be transferred to Muhammad Hussain through a sale-deed is negatived from the evidence on the record. Thus, irrespective of the effect of the admission of the counsel for the appellants in the High Court, we are of the view that findings of the District Judge do not suffer from any infirmity and, thus, there is no merit hi the case of the appellants. . In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. No order as to the costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC(AJK) 25 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 25 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ and basharat ahmad shaikh, J SAKHI MUHAMMAD and another '--Appellants versus FATEH MUHAMMAD and 3 others --Respondents Civil Appeal No.34 of 1990, dismissed on 28.10.1991. [On appeal from judgment and decree of High Court, dated 18.1.1990, in Civil Appeal No.28 of 1987.] Partial Pre-emption- —Pre-emption-Suit for--Two plaintiffs claiming one-half share each-Deletion of one plaintiff-Whether remaining plaintiff was entitled tsfeotal land or his suit was hit by principle of partial pre-emption-Question of—It is settled principle of law that court, while deciding a case, may take into consideration subsequent events coming into existence after institution of suit or at appellate stage-Ordinarily Court should require amendment of plaint but in certain cases, court need not require amendment—Initially respondent No.l sought half of suit land only because his son had sought other one-half as co-plaintiff- Held: Contention that as respondent No.l did not amend plaint to seek entire land, his suit would be hit by partial pre-emption, is not tenable—appeal dismissed. [Pp.28&29]A,B,C&D NLR 19SO A.C. 164. AIR 1954 M.B. 193, AIR 1941 F.C. 5, AIR 1950 Madras 321, PLD 1962 Pesh. 124 and 1981 CLC 462 rel. Raja Muhammad Siddique Klian, Advocate for Appellants. Ch.Muhammad Taj, Advocate for Respondent No.l. Date of hearing: 27.10.1991. judgment Sardar Said Muhammad Khan, CJ.-This appeal has been directed against the judgment and decree of the High Court dated 18.1.1990 whereby the appeal filed by the respondent, herein, was accepted and the suit for pre-emption was decreed in toto. Brief facts leading to the present appeal are that one Muhammad Zaman, the predecessor-in-interest of proforma respondents, transferred the suit land vide a registered sale-deed executed on 28.8.1978 in favour of the appellant, for an ostensible consideration of Rs.2,50,000/-. Fateh Muhammad, respondent herein, and his son, Abdul Karim, filed a joint suit exercising the right of pre-emption against the said sale-deed on the basis of superior right of pre-emption. Subsequently, at the time of hearing the final arguments, the name of Abdul Karim was struck off from the line of the plaintiffs on the ground that he was a stranger and had no right of pre-emption against the vendee. So far as the plaintiff-respondent was concerned, his suit was dismissed on the ground that it was hit by the principle of partial pre-emption as, according to the plaint, Fateh Muhammad and Abdul Karim, plaintiffs, prayed for a decree in equal shares, i.e., 1/2 each. One appeal to the District Judge, the findings of the trial Court were confirmed. However, on second appeal to the High Court, the appeal filed by Fateh Muhammad, respondent, was accepted and a decree on the basis of right of prior purchase of the entire suit land was passed hi his favour on the ground that after striking off the name of the plaintiff, Abdul Karim, the plaintiff-respondent, Fateh Muhammad, was entitled to whole of the suit land, despite the fact that he had claimed the decree only to the tune of half of the suit land. We have heard the arguments advanced at the Bar. It has been contended by the learned counsel for the appellants, Raja Muhammad Siddique Khan, Advocate, that the High Court has committed error in decreeing the entire land on the basis of right of prior purchase in favour of Fateh Muhammad. The learned counsel has contended that in view of the prayer made by Fateh Muhammad, plaintiff-respondent, in the plaint, which was not amended at any stage, he exercised the right of prior purchase only to the extent of half of the suit land and as such his suit is hit by the principle of partial pre-emption. The learned counsel for the appellants has further contended that the authorities relied upon by the High Court are distinguishable and have no bearing on the facts of the case in hand. The case reported as Muhammad Ashraf v. Muhammad Khan [P.L.D. 1983 S.C. (AJ&K) 181], according to the learned counsel, has no application to the case in hand because in that case, two plaintiffs-pre-emptors sought a joint decree without specifying fractional shares; and that in the High Court an application was submitted on behalf of a co-plaintiff, Muhammad Din, that his name might be deleted from the line of the appellants and the matter might be decided between the other plaintiff and the vendee. The learned counsel maintained that in the instant case both Fateh Muhammad and Abdul Karim, plaintiffs, had appealed before the District Judge and contended that they were entitled to the decree to 1/2 each. After the dismissal of the appeal by the District Judge, Abdul Karim did not file any appeal to the High Court. In case reported as MitradBakhsh v. Abdul Ghafoor (N.L.R. 1980 A.C. 164), one of the plaintiffs-preemptors who claimed the property to the tune of l/4th of the total areas of the land sold was found to be a stranger. Jn the plaint, the aforesaid plaintiffs sought decree to the extent of l/4th share while the remaining 4/5th share was claimed by the other co-plaintiffs. The name of the plaintiff who sought decree of possession on the basis of pre-emption to the tune of 1/4 was deleted as being stranger. A decree on the basis of right of pre-emption was passed in favour of remaining plaintiffs-pre-emptors for entire land sold, i.e., including the l/4th share of the plaintiff whose name was deleted as being stranger, on the ground that in the plaint, the plaintiffs had prayed that they might be allowed such other relief as in the interest of justice might be granted to them. The learned counsel for the appellants has contended that this authority is also distinguishable because in the plaint filed in the said case, it was clearly prayed that any other relief to which the plaintiffs might be found entitled to, might be given to them but no such prayer was made in the plaint filed in the case in hand. In reply, Ch.Muharnmad Taj, the learned counsel for the respondent, has argued that the principle enunciated in the authorities relied upon by the High Court is fully applicable to the case in hand and the impugned judgment does not call for any interference. We have given our due consideration to the arguments advanced at the Bar. It may be stated at the very outset that the learned counsel for the appellants, Raja Muhammad Siddique, has conceded that Abdul Karim, whose name was struck off, was also entitled to the decree in alternative because so far .as the vendee was concerned he had also superior right of pre-emption. It may be stated here that under Section 12 of the Right of Prior Purchase Act (which is corresponding provision to Section 13 of the Punjab Pre-emption Act), when the right of prior purchase vests in several persons, the right may be exercised by all such persons jointly or severally. It means that Fateh Muhammad and his son Abdul Karim could bring a joint suit for asserting their right of prior purchase in view of the provisions contained in Section 12 of the Right of Prior Purchase Act, as was done in this case. However, as has already been pointed out, instead of claiming an alternative decree they claimed suit land to the tune of 1/2 share each. Thus, the name of Abdul Karim was struck off from the line of the plaintiffs as being stranger: it was not in consonance with the provisions contained in Section 12 of the Right of Prior Purchase Act. Although Abdul Karim assailed the finding of the trial Court before the District Judge but he did not appeal against the judgment and decree of the District Judge to the High Court. Had his name not been struck off from the line of plaintiffs, he might have got a decree of half of the suit land or, at least, a decree for entire suit land in alternative. So far as the authority reported as Muhammad Ashraf v. Muhammad Khan [PLD 1983 S.C. (AJ&K) 181] is concerned, it is not clear from the facts reported as to whether the plaintiffs had sought joint decree in that case or for specific shares. However, the fact remains that in that case the decree passed in favour of Muhammad Din, coplaintiff, was set aside by the High Court not on the ground that the counsel for the appellant had prayed that his name should be deleted from the line of the plaintiffs but because he had failed to prove the right of prior purchase against the vendee. The moot point in that case was as to whether after striking off the name of one of the plaintiffs as stranger, the remaining plaintiffs were entitled to a decree in exercise of right of pre-emption. There was no question of partial pre­ emption involved in that case. Therefore, the same is not helpful so far as the present case is concerned. The other authority, Murad Bakhsh v. Abdul Ghafoor (N.L.R. 1980 A.C. 164), is applicable to the facts of this case, except that in that case it was prayed in the plaint that "any other relief might be given to the plaintiffs to which they may be found entitled", whereas no such prayer has-been made in the instant case. The question which falls for determination is as to whether in the instant case the High Court was justified in passing the decree for entire suit land in favour of Fateh Muhammad, plaintiff-respondent, despite the fact that he had prayed only for 1/2 share of the suit land on the basis of pre-emption; and after the deletion of the name of co-plaintiff, Abdul Karim, his son, the suit was hit by the principle of partial pre-emption, specially so because he did not amend the plaint. It may be observed that ratio decedendi in the case, referred to above, and reported as Murad Bakhsh v. Abdul Ghafoor (N.L.R. 1980 A.C. 164) is identical to the case in hand except that in the said case, in prayer clause, the plaintiffs had prayed that they might be given relief to which they might be found entitled. It may be pointed out here that the High Court, while deciding the aforesaid case, did not require the plaintiffs in that case to amend the plaint in view of the fact that one of the plaintiffs name was struck off from the record. It is settled principle of law that the Court, while deciding a case, may take into consideration the subsequent events which might have come into existence after the institution of the suit or at the appellate stage. Ordinarily, it is desirable that in such a case the Court should require the party concerned to amend its pleadings but if the facts needed to be introduced by amendment do not necessitate investigation or the same are admitted by the opposite party or can be easily resolved by the material on the record, the Court need not require the amendment of plaint; the Court can give the relief to the party concerned without any amendment. A reference may be made to some authorities which testify out view: In case reported as Ramcharan Tulsiram v. Murlidhar Ramchandra (A.I.R. 1954 M.B. 193), it has been observed that it is well established principle of law that although ordinarily the Court has to determine rights and obligations between the parties as they exist on the date of institution of the suit yet in proper cases it may be obligatory upon it to take into account the subsequent events including changes in law and to mould the relief according to the changed circumstances. Identical view was expressed in cases reported as Lachmeshwar Prasad Shukul v. Keshwar Lai Chaudhuri (A.I.R. 1941 F.C. 5) and Lakshmi Ammal v. Narayanaswami Naicker (A.I.R. 1950 Madras 321). In the latter case it has been observed that if the cause of action was not available to the plaintiff on the date ( when the suit was filed, the Court has discretion to grant an amendment of the plaint to enable the plaintiff to include the fresh cause of action. It was further held that where the facts are not in dispute, the Court can give the relief to the plaintiff without seeking the formal amendment of the plaint. In Khisro Nawaz v. Khanimullah (P.L.D. 1962 Pesh. 124), it was held that the fact that the suit is not properly framed, does not disentitle the plaintiff to relief which is otherwise clearly admissible to him in the interest of justice. In Mst. Salam Abbasi v. Ahmed Suleman (1981 C.L.C. 462) it was observed that the relief admissible to a plaintiff should not be denied on the ground that the suit was not properly framed or the same was not specifically prayed in the plaint. If the relief is claimed upon a specific ground, the Court has power to give the relief upon a ground different from that on which the same was claimed provided it gives no element of surprise to the other party. In the instant case the name of Abdul Karim, co-plaintiff, was struck off by the trial Court; and he had also appealed before the District Judge which was dismissed. The fact that the respondent-plaintiff did not seek amendment of the plaint to claim whole of the suit land hi exercise of right of prior purchase would not disentitle him to get a decree of the entire land; especially so when he has specifically mentioned in the memorandum of appeal filed in the High Court that a decree for entire suit land may be passed in his favour. It may be observed here that initially the respondent-plaintiff sought hah 0 of the suit land only because Abdul Karim was also co-plaintiff who sought decree to the extent of one-half of the suit land. Obviously, when Abdul Karim's name was struck off under the impression that he was a stranger, there is no bar in law to decree the entire suit land in favour of the plaintiff-respondent as has been done in the instant case by the High Court. In the circumstances, listed above, the contention that as the respondentplaintiff did not amend the plaint to seek the entire land in exercise of right of prior purchase, his suit would be hit by partial pre-emption is not tenable, especially so when the respondent-plaintiff has clearly mentioned in para 10 of the memorandum of appeal filed in the High Court that the suit land should be decreed in his favour as well as in favour of Abdul Karim, proforma respondent, in equal shares; in alternative, he has prayed that if the same cannot be done and any amendment is necessary, he should be allowed to amend his plaint or a decree for entire suit land may be passed in his favour. The High Court did not feel the •necessity of getting the plaint amended and gave the relief to the respondentplaintiff, Fateh Muhammad, in terms that the whole of the suit land has been decreed in his favour. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. No order is made as to the costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC (AJK) 29 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 29 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J BASHIR AHMAD KHAN-AppeUant versus CUSTODIAN OF EVACUEE PROPERTY, MUZAFFRABAD and another-- Respondents Civil Appeal No. 34 of 1991, dismissed on 8.3.1992 [On appeal from order of High Court, dated 30.6.1991, in Writ Petition No. 14 of 1981] (i) Rehabilitation Act, 1956 (XLII of 1956)-- —-S. 12 read with Pakistan Rehabilitation Rules, 1951, Rule 10(2), and Administration of Evacuee Property Act, Section 43(4)-Evacuee land-­ Allotment of-Revision by respondent No. 1 against allotment-Acceptance of revision—Challenge to—Powers of appeal, revision or review of Custodian under Section 43 of Administration of Evacuee Property Act, pertain to orders passed under Sections 20, 22 or 23 of that Act and not to an order passed by Rehabilitation Commissioner under Rehabilitation laws—Period of limitation in this case, for revision before Custodian, would be ascertained under rule 10 of Pakistan Rehabilitation Rules, 1951 and not under Section 43 of Administration of Evacuee Property Act-High Court should have considered question of limitation and whether delay was condoned by Custodain or not~It is evident that Custodian had condoned delay-Held: Contention that there was no valid ground for condonation of delay in filing revision petition, is not tenable especially when respondent No.2 was not party to proceedings of allotment in favour of appellant. [Pp.32&33]A&B (ii) Writ jurisdiction-- —Evacuee land—Allotment of—Revision of respondent No.l against allotment-­ Acceptance of-Challenge to-Even if it is assumed that delay in filing revision petition before Custodian, was not rightly condoned, fact remains that writ jurisdiction cannot be exercised in aid of perpetuation of injustice or to protect an ill-gotten gain by a person-Possession of appellant's father over suit land was illegal which was not approved by Custodian or Rehabilitation Authorities-Held: Even if it is found that Custodian was not justified in condoning delay, his order cannot be disturbed in exercise of writ jurisdiction- Appeal dismissed. [Pp.33&34]C&D PLD 1974 SC 106 and PLD 1973 SC 236 rel. Sh. Abdul Aziz, Advocate for Appellant. Nemo for Respondents. Date of hearing: 29.2.1992. judgment Sardar Said M««;uuii«ad Khan, CJ.-TMs appeal has been directed the judgment of the High Court dated 30.6.1991, whereby the writ petition filed by appellant, herein, was dismissed. Brief facts resulting in the present appeal are that evacuee land measuring 26 kanals, situate in village Jaglari, TehsU Bagh, was originally allotted to one Muhammad Bashir son of Kala who was refugee from the Indian-held Kashmir . He abandoned his right of allotment by a written agreement executed on 24.8.1963 in favour of Noor Ahmad, the father of the appellant, herein. Before execution of the aforesaid agreement, the land measuring 4 kanals was transferred by Noor Ahmad, the father of the appellant herein, through a registered sale-deed to the appellant, his son. After the said transfer, Noor Ahmad then applied on 3.9.1963 for the allotment of disputed land to the appellant herein; he also got his statement recorded before the Tehsildar on 6.9.1963 to the effect that land in dispute had been in his possession since long and some time earlier he transferred the possession of the said land to the appellant. The original allottee also made a statement before Tehsildar on 6.9.1963 and surrendered his allotment whereafter the same was allotted in favour of the appellant on the recommendation of Tehsildar. Consequently, the land was allotted to the appellant by the Rehabilitation Commissioner on 28.11.1969. Sher Dil. respondent herein, challenged the allottment of the appellant herein, by filing a revision petition to the Rehabilitation Commissioner on 7.2.1979 which was dismissed on 30.9.1980 on the ground that the impugned order having been passed by his predecessor was not revisable by him;.and that the respondent should have challenged the final order of the allotment made in favour of the appellant on 28.11.1969 and not of A.R.C. Sher Dil, respondent, thereafter, sought reversal of the order made in favour of the appellant through the revision petition filed before the Custodian on 25.10.1980. The revision petition filed by Sher Dil, respondent, was accepted and the allotment in favour of the appellant was cancelled on the ground that as the previous allotment made in favour of Bashir Ahmad son of Kala, refugee, was not cancelled, the subsequent allotment in favour of the appellant could not be made. Consequently, the appellant challenged the order of Custodian by way of a writ petition hi the High Court which was dismissed on 28.4.1985. The appellant was thus obliged to prefer an appeal to this Court which was partly accepted in terms that it was not necessary for the Rehabilitation Authorities to pass a specific order for the cancellation of the allotment of the previous refugee-allottee, namely, Bashir Ahmad son of Kala, because under Section 7 of the Rehabilitation Act, after the abandonment of his right by the previous allottee, subsequent allotment could be rightly made in favour of a deserving person. However, the case was remanded back to decide the other points involved in the case including the point of limitation regarding the revision petition filed before the Custodian. While remanding the case, the following observations were made by this Court:- "The other points taken by the appellant in his writ petition wherein the challenge has been made to the correctness of the learneld Custodian's judgment on the points of limitation, condonation of delay and on merits, on perusal of the impugned judgment, are found to have been left undecided by the High Court. Under the circumstances instead of deciding those points ourselves we think it proper to first have the wisdom of the High Court on those points." It is evident that the point regarding the question of limitation was also to be decided by the High Court. The High Court has again dismissed the writ petition on merits as well as on the point of limitation by observing that under sub-section (4) of section 43 of the Administration of Evacuee Property Act, the Custodian enjoys the power of revision at any time, irrespective of the point of limitation. It is against the aforesaid judgment of the High Court that the present appeal has been preferred to this Court. We have heard the arguments and perused the file. It may be stated at the very outset that the High Court has committed error while dealing with the question of limitation under the provisions of sub-section (4) of Section 43 of the Administration of Evacuee Property Act, because the powers of appeal, revision or review of the Custodian under Section 43 of the Administration of Evacuee Property Act pertain to the orders passed under Sections 20, 22 or 23 of the Administration of Evacuee Property Act and not an order passed by the Rehabilitation Commissioner regarding the allotment of an evacuee land under the provisions of the Rehabilitation laws. The question of limitation was dealt with by this Court in the previous judgment whereby the case was remanded to the High Court and it was opined that under the Rehabilitation law, the period of limitation for revision petition under Section 12 of the Rehabilitation Act, 1956, read with rule 10(2) of the Rules known as Pakistan Rehabilitation Rules of 1951, is fifteen days reckoned from the date of the order sought to be revised. However, under sub-rule (3) of rule 10, Sections, 4, 5 and 12 of the Limitation Act and the like provisions of any other enactment relating to the limitation for the tune being in force, have been made applicable while computing the period of limitation under the Rehabilitation Rules. Thus, in the instant case, the period for the limitation for the revision petition before the Custodian would be ascertained in view of the provisions of rule 10 of the Pakistan Rehabilitation Rules, 1951 and not in view of the provisions contained in Section 43 of the Administration of Evacuee Property Act, 1957. The High Court should have considered the question as to whether in the instant case the revision petition before the Custodian was time-barred; and whether the question of limitation was considered and delay was condoned by the Custodian or not. In the instant case, the Custodian while dealing with the question of limitation has made the following observations:- "As the order was passed ex-parte, respondent cannot claim that petition was barred by limitation. In case of an ex-parte order, limitation will start from the time of knowledge of the party. In present case, there is nothing to show that petitioner had the knowledge of allotment at the time of passing of impugned order. The point of limitation, being devoid of force is rejected." It is evident that the Custodian has dealt with the question of limitation and has condoned the delay in filing the same. Ordinarily, if the delay is condoned by thfe relevent tribunal, the same is not disturbed in exercise of writ jurisdiction. T|ius,the contention of the learned counsel for the appellant that there were no valid grounds for the condonation of delay in filing the revisin petition, is not tenable; especially so when Sher Dil was not a party to the proceedings in whicKJ the allotment was made in favour of the appellant. There is yet another aspect of the matter. The findings of the Custodian and the High Court, as indicated earlier, are that the appellant was minor when the land in question was allotted to him as a 'destitute'. It is on the record that this allotment was manoeuvred by Noor Ahmad, the father of the appellant, by transferring his property to his sons, including the appellant. The learned counsel for the appellant argued that in the year 1969 the relevant law was amended and a family owning less than thirty kanals of land, became entitled to the allotment of evacuee property. The question arises if Noor Ahmad could avail of the benefit of any such amendment, why he did not obtain the allotment of the land in his favour. Besides, for being a 'destitute', one has to show that he has no adequate means of income other than landed property. There is no such proof on the record that Noor Ahmad or for that matter the appellant fell within the ambit of the word 'destitute' as envisaged under the relevant Government Order. Thus, the findings of the Custodian and that of the High Court are not open to any exception on the point that the allotment in favour of the appellant, herein, was made in contravention of law. Even if it is assumed that the delay in filing the revision petition before the Custodian was not rightly condoned, the fact remains that the writ jurisdiction cannot be exercised in aid of perpetutation of injustice or to protect an ill-gotton gain by a person. If a party seeks relief by invoking writ jurisdiction, it must show that it has come with clean hands; it has a tangible right, if not a purely legal right, which has been violated. The possession of Noor Ahmad over the suit land was an illegal possession which was not approved by the Custodian or the Rehibilitation Authorities. Therefore, the allotment of the appellant having been made in contravention of law cannot be protected by assailing the order of the Custodian by invoking writ jurisdiction of the High Court. Even if it is found that the Custodian was not justified in condoning the delay in filing the revision petition before him, his order cannot be disturbed in exercise of writ jurisdiction. There is a ring of authorities in support of the aforesaid principle some of which are as underp­in Wall Muhammad . Sakhi Muhammad (P.L.D. 1974 S.C. 106), it was observed that the relief in writ jurisdiction being discretionary cannot be invoked to help the retention of ill-gotton gains by a party even if the order passed by a tribunal below is not found strictly justifiable. It was further observed that it is well settled principle of law that the High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill-gotton gains. InRaunaqAli v. The Chief Settlement Commissioner (PLD 1973 S.C. 236), it was held that an order in the nature of a writ of certiorari or mandamus is discretionary order and its object is to foster justice and right a wrong, therefore, before a person can be permitted to invoke this discretionary power, 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, rather it cures a manifest illegality, then extra-ordinary jurisdiction ought not be allowed to be invoked. Applying this principle, the Supreme Court of Pakistan refused to set aside an order passed by the Officer on Special Duty which was clearly without jurisdiction because by this order an illegal order passed by the Deputy Claims Commissioner had been vacated. In the light of what has been stated above, finding no force in this appeal it is dismissed with costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1992 SC (AJK) 34 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 34 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J BARKAT HUSSAIN-Appellant versus Sardar MISRI KHAN-Respondent Civil Appeal No. 57 of 1991, accepted on 7.3.1992 [On appeal from judgment of High Court, dated 23.9.1991, in W.P. No. 25 of 1983] Writ Jurisdiction-- —Evacuee land-Allotment of-Revision against allotment-Acceptance of-In writ petition, Custodian's order quashed-Challenge to—Contention that in writ petition, Custodian whose order was challenged, was not impleaded as party and writ petition was liable to dismissal-This point was not raised before High Court, but since it is a pure question of law which goes to root of case, there is no impediment in raising this point for first time in Supreme Court-Writ does not lie against a private person-Held: Writ petition filed by respondent should have been dismissed on that short ground-Appeal accepted and order of Custodian remanding case to A.R.C. restored. [Pp.35&36]A,B,C&D PLJ 1990 SC (AJK) 38 and 1990 PSC 1014 rel. PLD 1990 SC (AJK) 23 Not applicable. Sardar Muhammad Nawaz KJian, Advocate for Appellant. Raja Sher Muhammad Klian, Advocate for Respondent. Date of hearing: 29.2.1992. judgment Basharat Ahmad Shaikh, J.—Respondent Misri Khan was allotted evacuee land measuring 12 kanals and 7 marlas situated in village Kharick on 21.5.1969. It appears that he claims this allotment in lieu of land left by him in occupied part of the State. Appellant Barkat Hussain filed a revision petition against the order of the allottment mentioned above on 7.7.1981 on the ground that the land allotted to Mirsi Khan was in his possession as an heir of a 'Shaheed' and could not have been allotted to any one else. He explained the delay in filing of the revision petition. The revision petition was accepted by learned Custodian on 30.7.1983 who remanded the case to Assistant Rehabilitation Commissioner Poonch for decision on merits after hearing both the parties. The learned Custodian observed that it was not shown that Misri Khan belonged to those categories of persons to whom evacuee property could be allotted, therefore, he was not found suitable person for the allotment of the land. Mirsi Khan filed a writ petition in the High Court challenging the order of the learned Custodian. The writ petition was accepted and Custodian's Order was quashed. Hence this appeal by leave of the Court. We have heard the learned counsel for the parties, Sardar Muhammad Nawaz Khan and Raja Sher Muhammad Khan, in support and opposition, respectively, of the judgment delivered by the High Court. The learned counsel for appellant Barkat Hussain has raised a technical point which must be attended to first. He contended that in the writ petition filed by Misri Khan the Custodian of the Evacuee Property, whose order was challenged, was not made a party and the writ was, therefore liable to be dismissed on this short ground. This point was not raised in the High Court and has been raised for the first time in this Court in the petition for leave to appeal as well as in the concise statement. Since it is a pure question of law which goes to the root of case, there is, in accordance with the settled practice, no impediment in raising the point for the first time in this Court. The point urged by Sardar Muhammad Nawaz Khan stands concluded at least by two judgments of this Court reported as 'Abdul Hamid Khan vs. Muhammad Zameer Klian and others' (1990 PSC 1014) and 'Muhammad Resham KJian vs. Chairman, Inspection Team and 3 others" (P.L.J. 1990 SC(AJ&K) 38). It was held in Muhammad Resham's case that it is an elementary requirement that in a writ petition the functionary whose order is challenged should be made a party otherwise the writ petition entails dismissal. We may usefully reproduce the following passages from the judgment:- Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir + overnment, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'person' is defined in Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below: - "44 (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) In this section, unless, the context otherwise requires, 'Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services." It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone." Similarly in Abdul Hamid's case it was held that in writ jurisdiction whether the Government or the concerned Government functionary has any interest in the subject matter or not a writ could not be said to be properly constituted unless the concerned public functionary or the Government is arrayed as a party. We have observed that the present case has another peculiarity that Barkat Hussain is the sole respondent in the writ petition which means that a writ was sought against a private person. There is no manner of doubt that a writ does not lie against a private person. We have no doubt that no effective order can legally be passed on the writ petition as framed. In view of the settled legal position, we are of the view that the writ petition filed by Misri Khan, respondent before us, should have been dismissed on that short ground. Raja Sher Muhammad Khan cited the judgment of this Court reported as 'Sardar Muhammad Ibrahim Klian vs. Azad Jammu and Kashmir Government' (P.L.D. 1990 S.C. (AJ&K) 23, but, as pointed out to him in the Court, it proceeds entirely on different facts. In the precedent case it was held that Azad Government of the State of Jammu and Kashmir was only a proper but not a necessary party. It was also held that Government had taken upon its shoulder to act and defend the cause of the Azad Jammu and Kashmir Council. Both these factors do not exist in the present case. Therefore, Sardar Muhammad Ibrahim Khan's case has no application. We may observe that the order passed by the learned Custodian was an order of remand by which rights of the appellant Barkat Hussain and respondent Misri Khan had not been conclusively decided. The learned Custodian remanded the case for decision on merits and the parties were directed to appear before the Assistant Rehabilitation Commissioner. It was clearly ordered that the claim of both the parties shall be considered by the Rehabilitation authorities. Consequently we accept the appeal and the order of the High Court under appeal is set aside. This would have the effect of restoring the order passed by the learneld Custodian of Evacuee Property on 30.3.1983 as a result of which the case shall stand remanded to Assistant Rehabilitation Commissioner Poonch. There would however (be) no order as to the costs. (MBC) Approved for reporting) Appeal accepted

PLJ 1992 SC(AJK) 37 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 37 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J MUHAMMAD SHAFT KHAN and another-Appellants versus GHULAM DIN and 4 others-Respondents Civil Appeal No. 61 of 1991, decided on 26.4.1992. [On appeal from judgment of High Court, dated 20.11.1991, passed in Writ Petition No. 55 of 1991.] (i) Administration of Evacuee Property Act, 1957 (XII of 1957)- —S. 18-A—Evacuee land—Allotment of—Whether allotment chit of respondent's predecessor was valid and they were entitled to proprietary rights-Question of-Present respondents did not present allotment chit of 1952 before Custodian who had no occasion to adjudicate upon its validity- High Court can only examine claim of respondents if they approach it after exhausting available remedies-Held: There was no legal warrant for any verdict on allotment chit of 1952, of respondent's predecessor, by High Court- Part of relief granted by High Court recalled. [Pp.44&45]D (ii) Finding of Fact— —Finding of fact-Reversal of-Challenge to-Whether finding of fact can be disturbed by High Court in writ jurisdiction-Question of-Contention that findings of Custodian were sacrosanct and could not be disturbed in writ jurisdiction-Held: Correct state of law is that a finding of fact cannot be disturbed in writ jurisdiction except when court comes to conclusion that it is based on no evidence-Held further However, High Court has wrongly recorded finding that name of appellant's predecessor was inserted by fabrication-Finding of High Court vacated. [P.40JA 1969 SCMR 16,1970 SCMR 158 and PLJ 1986 SC(AJK) 99 rel. (iii) Proprietary Rights-- —Evacuee land-Allotment of-Proprietary rights of-Claim of-From allotment chit of appellant's predecessor, it is evident that evacuee land was given to him because his land had come under road—This is not a ground for allotment of evacuee land under relevant laws relating to evacuee property—Moreover, this allotment chit was valid only for one year and allotment made under it terminated by afflux of time on 31.12.1951-Held: Under Section 18-A of Administration of Evacuee Property Act, 1957, it is only an allottee on whom proprietary rights can be conferred and appellant's predecessor could not be granted proprietary rights as he was not an allottee within meaning of Section 18-AofAct. [Pp.41,42&43]B&C Sardar, Rafique Mahmood Khan, Advocate for Appellants. Syed Nazir Hussain Shah Kazmi, Advocate for Respondents 1 to 3. Date of hearing: 4.2.1992. judgment Basharat Ahmad Shaikh, .(.--Respondents Ghulam Din, Sain and Mst. Parveen Akhtar, who are the legal representatives of Said Muhammad, moved an application before the learned Custodian of Evacuee Property wherein it was stated that Muhammad Shafi Khan and Muhammad Yusuf Khan sons of Hussain Khan, the present appellants, were trying to obtain proprietary rights of the disputed evacuee land on the basis of a forged allotment chit and that the file prepared on their initiation had reached the Custodian's office. It was prayed that the proprietary rights may not be granted to Muhammad Shafi Khan and Muhammad Yusuf Khan. This application was rejected in toto on 22.3.1990. Thereupon a review petition was filed which was decided on 3.5.1991. This time the learned Custodian amended his predecessor's order and ordered that proprietary rights of the disputed land will be jointly granted to both the contesting parties. The present respondents were found entitled to two third share while the remaining one third share was to go to the appellants. This was done in pursuance of the recommendation made by the Rehabilitation Commissioner in the entitlement certificate issued by him. Being still dissatisfied respondents Chulam Din etc. filed a writ petition in the High Court. A learned single Judge accepted the petition and quashed both the aforementioned orders passed by the learned Custodian. It was found by the High Court that only the respondents were genuine allottees of the disputed land. Hence this appeal by leave of this Court. The claim of Ghulam Din etc. in their writ petition filed on 11.8.1991 was that the evacuee land under survey No. 2368 measuring 16 kanals and 2 marlas and other survey numbers was allotted to their predecessor-in-interest Said Muhammad on 28.4.1952 on the basis of being a refugee. It was submitted that Said Muhammad remained in possession of the land allotted to him till his death in 1989 and after that the petitioners were in possession thereof except that the respondents Muhammad Shafi Khan and Muhammad Yusuf Khan, sons of Hussain Khan, had taken over forcible possession of land under survey No. 2368. They claimed that the genuine allotment chit is the one issued on 28.4.1952 whereby disputed land was allotted to Said Muhammad son of Sheroo. Certificate (photo copy) of the chit was filed with the writ petition. Another order passed on 25.8.1952 was also placed on the file showing that this allotment was subsequently again approved by the Revenue Assistant Poonch on the recommendation of Tehsildar, Copies of extracts.from register of allotments and Khasra-girdawaris pertaining to years 1988 to 1990 were also filed. Also placed on the file was a photostat copy of the allotment chit on which reliance had been placed by present appellants Muhammad Shafi Khan etc. In this chit the names of allottees were shown as Said Muhammad son of Sheroo, Kaloo son of Noor Din and Hussain Khan son of Kaloo Khan. About this chit it was alleged that it was forged; it was only temporary just for the year 1951; and also that it did not contain any khasra number or any other description of the land by which it could be identified. In their written statement Muhammad Shafi Khan and Muhammad Yusuf Khan controverted the contents of the writ petition and claimed that the allotment chit of 15.5.1951 was genuine while the chit produced by the other party bearing the date 28.4.1952 was fabricated. It was asserted that land comprising Khasra Nos. 2336, 2337, 2609 min, 2612, 2303, 2333, 4326, 2610 and 2368 measuring 66 kanals 9 marlas was jointly allotted to Hussain Khan, their father, as well as Said Muhammad, the predecessor-in-interest of writ petitioners in proportion of 1/3 and 2/3 vide the allotment chit of 15.5.1951. They claimed continuous possession and also that they had constructed a house in Khasra No. 2368. The allegation of forcible possession was vehemently denied. Five documents were attached with the written statement. One is copy of the allotment chit of 15.5.1951 (Anex. 'A') while the second (Annexure 'B') is copy of the reports of some rehabilitation officials made in the year 1987, probably during the prepartion of the entitlement certificate. Annexures "C" and "D" are Khasra-girdawaris relating to khasra No. 2368 for the years 1985 to 1991. Annexure 'E' is the recommendation/entitlement certificate issued by the Rehabilitation Commissioner which is under dispute. All these documents are unattested. No affidavit was filed with the written statement although the writ petition was accompanied by an affidavit. Certain documents were placed on the record on behalf of Muhammad Shafi and others, who were repondents before the High Court, after the hearing of the arguments when the judgment had been reserved. These documents were taken into consideration by the learned Judge who heard the case in the High Court in the interest of justice. One of them is certified copy of allotment chit of 15.5.1951. The other documents will be referred to at the proper place. The learned Judge accepted the writ petition and set aside the orders passed by the Custodian on 22.3.1990 and 3.5.1991. It was held by him that petitioners before him, Ghulam Din etc. were the genuine allottees. The learned Judge based his conclusion on the following grounds:— (f) the allotment in favour of Said Muhammad made on 28.4.1952 is duly entered in the register of allotment maintained by the Custodian Department; it is also incorporated in the revenue record which is on the file with the exception that khasra No. 2368 measuring 16 kanals and 2 marlas is shown in occupation of Muhammad Shafi and others w.e.f. the year 1989; («) the allotment chit produced by the respondents which purportedly shows Hussain Khan as co-allottee does not find mention in any of the revenue record except the report of Naib Tehsildar and the recommendation of the Rehabilitation Commissioner; (///) The entries in respect of Hussain Khan appear to be forged and subsequently entered; (j'v) the allotment chit relied upon by the heirs of Hussain Khan carries the date of the 15th of May 1951 but there are certain reports in support of allotment made on 20.11.1951 and 21.11.1951 which means that they were made after the date of allotment; (v) that the allotment chit of 1951 was only for one year and it ceased to be valid after that; and (vi) Provisions of Bait-ul-Mall Property Act, 1950 or the Protection of Evacuee Property Act 1950 (of which the relevant provisions are duly reproduced in the judgment under appeal), show that at the relevant time, namely, 15.5.1951 only a refugee was entitled to allotment and a local could not get allotment of evacuee land. Arguing on behalf of the appellants, Sardar Rafique Mahmood Khan, vehemently contended that learned Judge in the High Court wrongly vacated the findings of fact recorded by the learned Custodian of Evacuee Property who had exclusive jurisdiction under the relevant law to decide the questions involved in the matter. He contended that the findings of fact of such functionaries are sacrosanct and cannot be disturbed by the High Court while exercising writ jurisdiction. He particularly objected to the finding recorded in the judgment under appeal that the name of Hussain Khan in the allotment chit of 15.5.1951 is a "brazen fabrication". The sanctity of findings of fact of tribunals or functionaries of exclusive jurisdiction is undisputed but we are unable to agree with the proposition that such findings cannot be disturbed at all. The correct state of law is that a finding of fact cannot be disturbed in writ jurisdiction except when the Court comes to the conclusion that it is based on no evidence as held in Muhammad Aslam v.Atta Muhammad [1969 SCMR. 16] or, as laid down in N.M. Khan v. CS. & R.C. [1970 S.C.M.R. 158], where it is based on erroneous deduction from facts which manifestly could not support such an inference or, as held in Chief Election Commissioner v. Ch. Abdul Majid [PLJ 1986 S.C. (AJ&K) 99], if it is patently wrong, is based on inadmissible evidence or there is gross nonreading or misreading of evidence. However, we agree with the learned counsel that the learned Judge in the High Court has wrongly recorded the finding that Hussain Khan's name was inserted by fabrication. No evidence was on the file of the High Court on the question of fabrication. The High Court did not itself record any finding on this point. How then such a finding could be recorded, we are unable to see. Therefore, we vacate this finding. However the judgment under appeal contains other reasons for the conclusion that the allotment chit under reference has been wrongly acted upon by the learned Custodian and it was illegal to grant proprietary rights to the legal representatives of Hussain Khan. After noting the facts and examining different laws relating to evacuee property with the help of the learned counsel for the parties, Sardar Rafique Mahmood Khan and Syed Nazir Hussain Shah Kazmi, we have reached the conclusion that some of these reasons are weighty. We have also reached the conclusion that the writ petition has been rightly accepted. We assume that the allotment chit of 15.5.1951 in the shape as it exists [containing names of three allottees] is a genuine document. But for the reasons we would be presently recording we find that it is a document which has no legal value. This chit does not contain the numbers of the land which was purported to have been allotted. All that it shows is that the allotted land is in Nar Sher Ali Khan and its total area is 66 kanals and 5 marlas, out of which 35 kanals and 16 marlas are irrigated while the rest is unirrigated land. It is incorporated in it that it has been allotted to three persons Said Muhammad son of Sheroo, Kaloo son of Noor Din, Hussain Khan son of Kaloo Khan but does not say how the distribution would take place and in what ratio. Previous residence of Said Muhammad is Degwar Maldayalan, of Kaloo Pooch City while Hussain Khan is from Nar, which means he was a local. It is stated in the allotment chit that Said Muhammad and Kaloo are being allotted land on the basis that they are refugees while the land to Hussain Khan is being allotted as a measure of compensation for road, it is entered in it that the allotment is only for the year 1951. Among the documents filed after the hearing of the writ petition, as mentioned above, is a certified copy of an application moved by Said Muhammad praying for allotment of evacuee land. When this application was processed it was noted by the concerned official that land belonging to Hussain Khan son of Kaloo Khan had come under road and in this connection he was given evacuee land. Another document also filed with the document just mentioned is an extract from proceedings of the file relating to proprietary rights initiated by Muhammad Shafi Khan etc. It is also noted therein that the evacuee land was given to Hussain Khan because his land had come under road. In the provisions of the relevant laws relating to evacuee property this is not a ground on which an allotment could be made. Thus the purpose for which the allotment was made was not recognised by law and the allotment was illegal. Most significant factor which totally destroys legal value of the allotment chit is that it was valid only for one year and the allotment made under it terminated by afflux of time on 31st of December 1951. These factors show that the allotment chit was not only unlawful but non-existent. According to Section 18-A of the Administration of Evacuee Property Act 1957 it is only an allottee on whom proprietary rights can be conferred. Since allotment chit was non-existent there was no allottee within the meaning of Section 18-A who could be granted proprietary rights. This Section also provides that proprietary rights could only be granted if the allottee was entitled to the allotment of the evacuee land. Since the allotment had been made for a purpose not recognised by law Hussain Khan could not be found to be entitled to the proprietary rights. This I furnishes an independent reason for refusing the grant of proprietary rights. When the learned Custodian of Evacuee Property passed his two orders impugned in the writ petition on 22.3.1990 and 3.5.1991 the law on the subject as contained in sub-section 2 of Section 18-A mentioned above was as follows:— "(2) The proprietary rights in pursuance of sub-section (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and realising from such allottees the cost and dues xxxx xxxx xxxx xxxx" The provision shows that when entitlement certificate reached the learned Custodian he was bound to satisfy himself about the genuineness of the claim. The respondents Ghulam Din etc. brought to his notice the legal lacuna of the entitlement certificate, by moving an application and subsequently by the review petition. However, the learned Custodian failed to correctly appreciate the factual and legal features of the case and passed orders which were illegal. The learned Custodian also failed to note the legal provision that in the year 1951, when the allotment chit accepted by him as valid was issued, there was no provision in any law for allotment of evacuee land and the allotment chit, despite " its title and contents, was not an allotment but a lease. It was in 1952 that with the enactment of Azad Kashmir (Rehabilitation) Ordinance provision for allotment was made for the first time. Prior to that the laws in force in respect of evacuee property were Abandoned Lands Management Act, 1949, Baitulmal Property Act 1950 and Protection of Evacuee Property Act, 1950. The Abandoned Lands Management Act 1949 is the law which shows the actual position of this allotment chit. In Section 3 of this Act it was provided as follows:— "All leases for cultivation of abandoned land and management of other abandoned immovable property shall be granted on a cash rent to be fixed by the Deputy Commissioner of the disctrict in which such property is situate on such terms and for such period as may be thought fit by him." "Abandoned land' is defined in Section 2 as "land abandoned by non- Muslims in the liberated territory under the administration of the Azad Kashmir Government".- There is no provision in this Act for allotment of evacuee land. In Baitulmal Property Act 1950 it is provided in Section 4 that the Tehsildar, subject to the control of Deputy Commissioner, shall maintain strict control over the abandoned land for the purposes of Abandoned Lands Management Act of 1949 and to see that such property is let out to proper persons. Section 7 provides that while granting leases of abandoned lands the dependants of Shaheeds, dependants of Mujahids and refugees would be granted leases and if no tenants are available from these categories then it may be let out to suitable person of the locality. There is no provision for allotment of evacuee land in this Act also. Another connected law was Azad Kashmir Protection of Evacuee Property 1950. This Act provides for the appointment of a Custodian and for the vesting of evacuee property in the Custodian. Sub-section (i) of Section 5 lays down that whenever any Rehabilitation authority requires any evacuee property for the purposes of social and economic rehabilitation of refugees under any law for the time being in force such authority shall send a written intimation in respect of particulars of the property to the Custodian. Sub-section (ii) of the same was to the following effect:-- "(»') Persons who have been allotted any evacuee property by way of lease, by any Rehabilitation Authority, without compliance with the procedure laid down in sub-section (1) shall be deemed to be tenants or lessees on such terms and conditions as may be agreed upon by the Custodian and the Rehabilitation Authority concerned and the said Authority shall be deemed to be a duly authorised agent of the Custodian for this purpose. It shall be the duty of such Rehabilitation Authority to furnish all available particulars of the allotted property and of the allottee to the Custodian immediately or as soon as may be after the allotment." Although in sub-section (i) the Rehabilitation Authority was mentioned and the law for rehabilitation of refugees was also mentioned but no such law was in existence at that time nor was Rehabilitation Authority created when this Act was passed. This law appears to have been enacted as a preparation for the scheme of allotment which was subsequently provided for in the Rehabilitation Ordinance 1952. In sub-section (ii) reproduced above reference is made to "allotment by way of lease". This provision clearly shows that prior to the enactment of Rehabilitation Act in 1952 the leases of abandoned lands given under Section 3 of the Abandoned Lands Management Act were called 'allotments'. Thus the cumulative effect of the laws existing before 1952 was that there were leases of evaucee property which were for year to year and rent had to be paid by the lessees and that such leases were described as allotments. It is also clear that such leases could be given not only to refugees but also to the dependents of Shaheeds, Mujahids and Refugees and, if the persons of these categories were not available, then even to other persons. The conclusion, therefore, is that leases made before the enactment of the Azad Kashmir (Rehabilitation) Ordinance 1952, although called allotments, were in fact leases and not allotments in the sense of the word as used in the aforementioned Rehabilitation Ordinance 1952 and the Administration of Evacuee Property Act 1957. Thus the allotment chit of 15.5.1951 in fact created yearly lease. Therefore, the person who held such a lease was not an "allottee" within the meaning of Section 18-A of the aforesaid Act of 1957. Consequently proprietary rights could not be granted to him. The two orders of the learned Custodian are thus clearly contrary to law and are unsustainable. Let us now turn to the other allotment chit. Its date is 28.4.1952. It shows that land measuring 55 kanals and 12 marlas (not 66 kanals 5 marlas as incorporated in the other chit) comprising six khasras mentioned therein was allotted to Said Muhammad, the predecessor-in-interest of the present respondents Ghulam Din etc This chit is also for one year, namely, year 1952. (In the judgment under appeal it has been observed, due to oversight, that this chit is not for a specified period). This chit on the face of it also appears to be a lease. However the learned counsel for the respondents argued that it was in fact a proper allotment without limit of time. He relied on the order subsequently recorded on 18.8.1952 to which we have already referred earlier. It is contended by the learned counsel that by order of 18.8.1952 (certified copy of which is on the file) the Rehabilitation authorities approved the allotment by lease as a proper allotment order under the Azad Kashmir (Rehabilitation) Ordinance 1952 which, as he claimed, had been enacted before 18.8.1952, the date on which the allotment was approved. He also mentioned that all the allotments by way of lease subsisting in favour of refugees upon the coming into force of the Azad Kashmir (Rehabilitation) Ordinance 1952 were approved as allotments under the said Ordinance. According to the learned counsel the facts that this allotment is duly recorded in the allotment register as well (as) the Khasra-girdawaris of all the subsequent years also prove his contention. Syed Nazir Hussain Shah Kazmi, therefore, submitted that the High Court had rightly held the allotment chit of 28.4.1952 as a valid allotment order in favour of Said Muhammad entitling his legal representatives to get the proprietary rights of the land in dispute. We regret that we cannot uphold the finding of the High Court in respect of allotment chit of 28.4.1952 because while recording this finding the High Court seems to have travelled beyond the scope of the writ petition of which it was seized. The circumstances in which the petition was filed have already been enumerated and need not be repeated. In short the writ arose out of the proceedings initiated by the present appellants for grant of proprietary rights. The present respondents objected to it by moving an application, which was rejected and then they moved a review petition which was partly accepted. The allotment chit of 1951 had been challenged by the present respondents. Their only request before the learned Custodian was that proprietary rights may not be granted to Muhammad Shafi Khan etc. because the allotment chit of 1951 was forged. They did not present the allotment chit of 1952 before the learned Custodian who, therefore, had no occasion to adjudicate upon its validity. This is as it should be. The Custodian of Evacuee Property cannot adjudicate upon the claim for obtaining proprietary rights on an application directly presented to him. A person seeking proprietary rights has to make an application to the Rehabilitation Commissioner and first (obtain) an entitlement certificate from him. It is only then that the Custodian can take cognizance of the matter. No such situation obtains in the present case. We are not aware whether Ghulam Din etc. havs filed an application for grant of proprietary rights and if so what proceedings have been taken on it. The High Court can only examine the claim of Ghulam Din etc. if they approach it after exhausting the available remedies. The High Court has no jurisdiction to directly adjudicate any such matter. The allotment chit of 1952 was not before the learned Custodian. There was, therefore, no legal warrant for any verdict on it by the High Court. This question, therefore, has to be left open to be, decided by the concerned authorities in a properly constituted proceedings. As a consequence of the foregoing, the relief granted by the High Court has to be modified. The relief granted by the High Court was in the following terms:- "In view of the above, the writ petition is accepted with costs, and the orders of Custodian dated 22.3.1990 and 3.5.1991 are quashed. Petitioners are found as genuine allottees and are accordingly entitled to the logical and legal consequences of allotment." ( Underling is ours) Th( relief granted in the last sentence which has been underlined by us is recalled. Rest of the relief as reproduced above is affirmed. (MBC) (Approved lor reporting) Orders accordingly.

PLJ 1992 SC(AJK) 45 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 45 [Appellate Jurisdiction] Present: SARDAR SAID MUIIAMMAD KlIAN, CJ MILITARY ESTATE OFFICER, HAZARA CIRCLE, ABBOTTABAD- Petitioner versus MUHAMMAD SALIM KHAN and another -Non-Pctitioners Civil P.L.A. No.21 of 1992, dismissed on 8.4.1992 [On appeal from Order of High Court, dated 4.1.1992, in Civil Appeal No.9 of 1991] Land Acquisition Act, 1894 (I of 1894)-- —-S.50--Land--Acquisition of-Price of land acquired enhanced by Reference Judge—Challenge to—Whether appeal was competent—Question of— Contention that if Organization, for whose benefit, property is acquired, is entitled to appear before High Court in reference and to lead evidence, there is no logic as to why it is not entitled to prefer an appeal against order passed by Reference Judge-Held: A company, local authority or any other Organization for whose benefit, land is acquired, is not entitled to seek a Here in italics. reference or to prefer an appeal against order passed on reference by District Judge-Petition dismissed. [Pp.47,48&49]A&B PLD 1987 SC(Pak) 485,1992 CLC 67, and AIR 1953 Nagpur 256 rel. Raja Aluliaininad Hanif Klian, Advocate for Petitioner. Mr. Glntlam Mustafa Mughal, Advocate for Non-Petitioner. Date of hearing: 8.4,1992. order This petition has been directed against the judgment of the High Court whereby the appeal filed by the petitioner herein, was dismissed as being incompetent. The brief facts giving rise to the present petition are that evacuee land measuring 51 kanals 3 marlas, comprising survey No.1840, was allotted to non-petitioner Muhammad Salim Khan. Out of the aforesaid land, land measuring 20 kanals and 12 marlas was acquired by the Government for army under the provisions of Land Acquisition Act, and thus a notice was issued under Section 4 of the Land Acquisition Act (hereinafter shall be called as the Act). After completing the proceedings the amount of compensation was fixed at the rate of Rs. 15000/- per kanal vide award of the Collector Land Acquisition dated 3.11.1988. Feeling dissatisfied with the aforesaid award the contesting respondent made an application before the Collector Land Acquisition praying for a reference to the District Judge. Consequently a reference was made to the District Judge who made over the same to the Additional District Judge for hearing and disposal. The Additional District Judge modified the award and enhanced the amount of compensation to Rs. 25000/- per kanal. An appeal was preferred by the petitioner, herein, to the High Court which was dismissed on the preliminary ground that under Section 50 of the Land Acquisition Act the local authority or the Company etc. for whose benefit the land is acquired is not competent to seek a reference against the award or appeal against the order passed by the Reference Judge. I have heard the arguments and perused the record. The learned counsel for the petitioner, Raja Muhammad Hanif Khan, has argued that the point regarding the competency of the order or otherwise of the appeal was not heard by the High Court and thus the petitioner was condemned unheard. The learned counsel for the respondent, Mr. Ghulam Mustafa Mughal, has controverted the contention of the learned counsel for the petitioner and has argued that the point was argued in the High Court and he had also submitted authorities at the time of the arguments which have been -discussed in the impugned order. A perusal of the judgment of the High Court shows that the appearance of the learned counsel for the petitioner has been recorded. It is also not the case of the petitioner that he was not present in the Court at the time of arguments; rather his case is that the point on which the appeal was dismissed was not thoroughly argued. After giving my due considefcation to the matter. I have no hesitation in holding that the contention of the learned counsel for the petitioner that the point at issue was not argued in the High Court is not tenable, especially in view of the contents of the judgment and the stand taken by the learned counsel for the nonpetitioner. The learned counsel for the petitioner has also argued that the High Court has committed an error in holding that the appeal by the petitioner, herein, was barred under Section 50 of the Land Acquisition Act. He has contended that if the petitioner or'for that matter the Organization for whose benefit the property is acquired is entitled to appear before the Court in reference and to lead evidence, there is no logic as to why he is not entitled to prefer an appeal against the order passed by the Reference Judge. In reply the learned counsel for the respondent has cited a number of authorities wherein the superior Courts of Pakistan and India, while interpreting Section 50 of the Land Acquisition Act, have consistently held that a Company, Establishment, Department or any other Organization for whose benefit the land is acquired under the provisions of the Land Acquisition Act has no locus standi to seek the reference against the award or to prefer an appeal against the order of a Reference Judge. The Supreme Court of Pakistan has observed in a case reported as 'Pir KJian v. Military Estate Officer' (P.L.D. 1987 SC (Pak) 485) as under:- "From a perusal of the above provisions, it is manifest that Section 50(2) expressly and in terms controls Section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to' sub-Section (2) of Section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purposeof determining the amount of compensation but a reference under Section 18 by them is barred (vide the proviso to sub­ section (2) of Section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of Section 50(2), there is no alternative but to give effect to it. Hence, so far as a local authority or a company is concerned, the award by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under Section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under Section 18 of the Act by the Court." The matter has also come up for consideration in case reported as 'Province of Punjab, Lahore and another vs. Shah Rasool and 3 others' (1992 CLC 67) wherein the view taken was affirmed and reliance was placed on the following authorities:- 'Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others' (1988 SCMR 812), Wapda v. Muhammad Farid and others (1990 SCMR 98), 'Behram Klian and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160), 'Municipal Corporation of Pabna v. Jogendra Narain Baikut 4L C. 382, 'Faqir Chand v. Municipal Committee, Hazro' (1913) 47 PR 225, 'Collector and Chairman District Board, Gujranwala v. Hira Nand' (AIR 1929 Lah. 10, 'Nihal Chand and others v. District Board, Mianwali, (AIR 1936 Lah. 564), 'Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya and another' '-(P..L.D. 1960 Dacca 461), 'Municipal Corporation of Pabna v. Jogendra Narain Baikut and others' 13 CWN 116, 'Commilla Electric Supply Ltd. v. Messrs east Bengal Ltd. and others' 43 CWN 973; 'Sindh Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others' (P.L.D. 1960 (W.P.) Kar. 826, 'Kasimbhai and another v. Deputy Commissioner, Dadu and others, (P.L.D. 1968 Kar. 126), 'WAPDA through its Chainnan, Lahore v.Aurangzeb Klian and 17 others' (P.L.D. 1975 Pesh. 1), 'Brigade No.'1 Chattar Dome! and Garhi Dopatta through Military Estate, Hazara v. Custodian Evacuee Property and 7 others' (1986 MLD 2077) and 'Mirpur Kims Sugar Mills Limited, Karachi v. Moulvi Muhammad Saleh and -3 others' (1979) CLC 7). It may be stated that even the superior Courts of India have also taken the same view. A reference may be made to a case reported as 'R.S. Deoji Dharsi and Sons, v. Ghisulal and another (A.I.R. 1953 Nagpur 256) wherein it was observed that in a reference made by the Collector, the company or the local authority has no locus standi except for the purpose of watching and assisting the Collector. It was observed that they are not the real parties to the dispute before the District Judge and thus cannot file an appeal against the decree passed by the District Judge. It was observed that such an appeal could only be preferred by Collector or the Provincial Government. A number of authorities were relied upon in this case in support of the aforesaid view. It follows from what has been stated above that a Company, Local Authority or any other Organization for whose benefit the land is acquired is not entitled to seek a reference or to prefer an appeal against the order passed on reference by the District Judge. It n^ay be stated here that the Collector was also one of the appellants in the High Court but he has not preferred any petition for leave to appeal to this Court. Had the Collector also sought the petition for leave to appeal the result of the petition probably might have been different? The learned counsel for the petitioner, Raja Muhammad Hanif Khan, has also contended that even if it is assumed that no appeal was competent before the High Court, the High Court had the powers to go into the merits of the case under its revisional jurisdiction vested in it under Section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949. Irrespective of the validity of the arguments advanced by the learned counsel for the petitioner, as no such request was made by the petitioner in the High Court to treat the memo of appeal as a revision petition, it is too late in the day for the petitioner to urge in this court that the appeal should have been treated as revision by the High) Court and disposed of as such. In the light of what has been stated above finding no force in this petition it is hereby dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC(AJK) 49 PLJ 1992 SC(AJK) 49 Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J AZAD KASHMIR TRANSPORTERS MUTUAL ASSISTANCE CO­ OPERATIVE SOCIETY MUZAFFARABAD-Appellant versus A.J.K. GOVERNMENT, THROUGH CHIEF SECRETARY, and 15 others-­ Respondents Civil Appeal No.19 of 1992, dismissed on 7.6.1992 [On appeal from judgment of High Cpurt, dated 14.12.1991, in W.P. No.41 of 1987.] Compensation— —Road accident—Death of 5 persons and injuries to 4 persons—Compensation for—Payment of—Whether appellant was not liable to pay compensation- Question of-Respondent No.5 who is owner of bus, could be held guilty of contravention, of Motor Vehicles Ordinance only if he had permitted an un­ licensed person to drive bus, but he has done no such thing-Person engaged by him was an experienced and licensed driver—Certificate issued by appellant has to be treated as interchangeable with bank guarantee for all practical purposes but it will not extend to those cases in which there has been violation of motor vehicles law by permit holder—Held: No case was made out before High Court because order impugned before High Court was not an order without lawful authority and of no legal effect—Appeal dismissed. [Pp.51&52]A&B Sardar Rafique Mahmood Kiian, Advocate for Appellant. Mr. Abdullah Shah Masudi, Advocate for Respondent No.5. Date of hearing: 2.6.1992. judgment Basliarat Ahmad Shaikh, J.--The present appeal arises out of an order of the High Court passed on 14.12.1991 dismissing the writ petition filed by the Azad Jammu and Kashmir Transporters Mutual Assistance Co-operative Society, the appellant before us. The writ petition had been filed by the aforesaid Society in order to get rid of the liability imposed on it, initially by the Claims Tribunal and subsequently upheld by the appellate authority, that the Society should pay a sum of Rs.88,000/- as compensation for the death of five persons and injuries to four persons caused by a road accident. They all were travelling in Bus No.AJK-A 875 belonging to Bani Hus'sain respondent. The case of the Soceity is that it is Bani Hussain who is legally liable to pay compensation and that the liability has been illegally fixed on the Society. It is provided in Section 67 of the Azad Jammu and Kashmir Motor Vehicles Ordinance 1971 that if any death or injury is caused as a result of use of stage/contract carriage the permit holder shall be liable to pay compensation as specified in law. For adjudication of claims for compensation a Claims Tribunal is constituted by the Government under Section 67-A and appeal lies to an appellate authority. The liability imposed on the permit holder, however, can be shifted in accordance with clause (c) of Section 49-A(l) of the Ordinance if a Transporters Mutual Assistance Co-operative Society registered under the Co-operative Act guarantees by issuing a certificate that it would make the payment of compensation payable by the permit holder. The appellant Society answers to the description of a mutual society and has admittedly issued a certificate in.favour of respondent Bani Hussain. Before the Claims Commissioner, the appellant Society as well as Bani Hussain respondent, who is owner of bus under reference, were implcaded as respondents. It was pleaded on behalf of the appellant Society that at the time of accident the bus was being driven by an incompetent driver who was not even licenced to drive the vehicle. It was contended that due to this violation of the Motor Vehicles Ordinance the Society was not liable to pay the compensation. The Tribunal held that so far as the owner of the bus was concerned he had taken the necessary precautions and was not guilty of any infringement of the Motor Vehicles Ordinance. It was found that the driver who was employed by the bus owner was an experienced and licenced driver and on the day when the bus met the accident under reference it was the licenced driver who was dirving the bus but a few kilometers short of Chakothi the driver gave the bus to an unauthorised person Ali Hussain. A judicial inquiry was also reportedly held and result of the inquiry led to the same finding as just mentioned. Before noticing the relevant provisions it may be observed that so far as the facts arc concerned they are un-disputed. It was not the case of the appellant in the writ petition filed by it that the findings recorded by the Claims Tribunal as affirmed by the appellate authority were wrong. In fact in the writ petition filed in the High Court the findings of the Claims Tribunal as well as the result of the judicial inquiry were relied upon. The ease of the appellant is that in the certificate issued under Section 49-A of the Motor Vehicles Ordinance by the appellant Society it is clearly mentioned that the Society would not be responsible for the payment of co'mpcnsation if any provision of the Motor Vehicles law is contravened. Respondent Bani Hussain also does not deny that in case of any such contravention the Society is not responsible for the payment. However, it has been contended on his behalf by Mr. Abdullah Shah Masudi, Advocate, that he has not been guilty of any contravention. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, however, vehemently contended that in Section 3 of the Ordinance there is a prohibition that a person who does not hold an effective licence shall not drive a motor vehicle in any public place and Section 5 provides that the owner of a motor vehicle shall not cause or permit any person who does not have a valid licence to drive a motor vehicle in public place. He contended that the Claims Tribunal has found that the bus was being driven at the relevant time by an unliccnced person which was a clear contravention of law. Therefore, the liability was not that of the appellant Society. We have given earnest thought to the sole point involved in the case. So far as Bani Hussain respondent is concerned the provision which is relatable to him is Section 5 of the Ordinance to which a reference has already been made. The section is in following lerms:-- "5. Owners of motor vel'.ic/cs no! :o pcnnit contravention of Sections 3 or 4. No owner or person in charge of a motor shall cause or'permit any person '.'.bo coes not satisfy the provisions of Section 3 or Section 4 to drive the '-.chicle". Bani Hussein could be held guilty of contravention, of the Motor Vehicles Ordinance o~:» ;' he had permitted an unlicenced person to drive the bus but he has done no >uch thing. As is undisputed, the person engaged by him to drive the vehicle \vu> j responsible and experienced driver who carried a valid driving licence. The fjet is that when the bus left Muzaffarabad it was being driven by the same regular Jri 1 .cr. Il is not a case in which an owner finds that the regular driver is not avjiiji-iii; and he asks an unlicenced person to drive the bus so that he may be abie to make some money. The violation of law has been done by Ali Hussain, who is not the owner of the bus, by unauthorisedly driving the bus without having j 'icence. In these circumstances the owner of the bus cannot be held responsible tor v. THravention of the Ordinance. The certificate issued by the appellant Society does i.;, Jo vn that the Society would not be liable to pay compensation if the law relating to motor vehicles is violated but the reasonable construction is that the contravention of law referred to in the certificate is that contravention which is by one of the parties to the arrangement and not by third persons. If any other interpretation is adopted then the Society would be absolved of its responsibility if the licenced driver crosses speed limit and thus violates the law. The Society issues a certificate under clause (c) of Section 49-A in lieu of a bank guarantee. In turn the bank guarantee is a "security for payment of any compensation- that the applicant (permit holder) may be required to pay under the provisions of Section 67". Therefore, the certificate has to be treated as interchangeable with the bank guarantee for all practical purposes. However, the certificate would not extend to those cases in which there has been a violation of the motor vehicles law by the permit holder. We find that no case was made out before the High Court because the order impugned before the High Court was not an order without lawful authority and of no legal effect. The appeal arising therefrom also has thus no froce. However, there would be no order as to the costs in this Court. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC(AJK) 52 [Appellate Jurisdiction] PLJ 1992 SC(AJK) 52 [Appellate Jurisdiction] Present: sardarsaid muhammad khan, CJ and basharat ahmad shaikh, Mst. GHULAM FATIMA and 5 others-Petitioners versus MANZOOR HUSSA1N and 5 others-Respondents Civil Petition No.33 of 1992, accepted on 30.5.1992. [On appeal from judgment of High Court dated 20.4.1992. in C.R. 42 of 1991.] Azad Jammu & Kashmir Enforcement of Shariat Act. 1989- —$.4(5) read with Azad Jammu & Kashmir Right of Prior Purchase Act, Section \4(b)~ Provisions "firstly" and "secondly" of clause (b) of Section 14— Repugnant to Injunctions of Islam—Declaration of—Prayer for—Failure to fix date on which judgment was to take effect—Effect of—It is provided in Section 4(5) of Shariat Act that if High Court decides that any provision of law is repugnant to Shariah, it shall specify on which day decision shall take effect-It was held by Supreme Court that result of failure to specify date was that jugment of High Court was only an academic exercise having no practical effect-Held: In this case, High Court was not right in holding that there was no justificalion for making a reference in respect of provisions under reference-Appeal accepted. [Pp.53&54]A&B Judgment in Civil Appeal 108 of 1991 rd. Ch. Muhammad Sharif Tariq, Advocate for Petitioner. Ch. Muhammad Azam KJian, Advocate for Respondent No.l. Date of hearing: 30.5.1992. judgment Basharat Ahmad Shaikh, J.-Since a short point is involved in this petition for leave to appeal it is converted as appeal. Msl. Ghulam Fatima and others moved an application before the learned Sub-Judge that the provisions "firstly" and "secondly" of clause (b) of Section 14 of the Jammu and Kashmir Right of Prior Purchase Act were repugnant to Shari'ah and prayed that this question may be referred to the High Court under Section 4 of the Azad Jammu & Kashmir Enforcement of Shariat Act 1989. The trial Court rejected the application. The revision petition was thereupon filed in the High Court which has also been dismissed. The ground on which the trial Court and, subsequently, the High Court declined to Accede to the prayer for making a reference was that Full Bench of the High Court had already decided on a reference that the aforesaid provisions of the Act are repugnant to Shari'ah in Muhammad Jamil Niazi vs. Nazar Hussain and others (Shariat Reference No. 46 of 1990). In the order under appeal the learned Judge in the High Court has expressed the following view:— "A reference on these points has already been answered by the Full Bench of this Court and there is no fun of referring the same matter to the High Court again." It is correct that the High Court declared in Muhammad Jamil Niazi's case that provisions "firstly" and "secondly" mentioned above are repugnant to Shari'ah, but in that judgment the High Court failed to fix a date or. which the judgment of the Court was to take effect. The relevant provision of the Enforcement of Shariat Act 1989 is contained in sub-section (5) of Section 4, which is as follows:- "(5) If the High Court decides that any such law or provision of law is repugnant to Shari'ah it shall set out in its decision - (a) the reasons for its holding the opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: Provided " . ' It is laid down in the above extracted provision that if the High Court decides that any provision of law is repugnant to Shari'ah it shall specify on which day the decision shall take effect. The Full Bench in Muhammad Jamil Niazi's case did not specify any date on which the decision was to take effect. The effect of failure of the High Court to fix a date as aforesaid was exmined in Mst. Fatima Bi vs. FarzandAli and another (Civil Appeal No. 108 of 1991, decided on 27.4.1992) and it was held that the result of this failure was that the judgment of the High Court was only ah academic exercise having no practical effect. The Government has also not arranged to have the relevant provisions repealed. Consequently the aforesaid provisions continue to be the law of the land. Therefore, the High Court Was not right in holding that there was no justification for making a reference in respect of the provisions \mder reference. Consequently, the order of the High Court is set aside. It is directed that the trial Court shall accept the application moved by Mst. Ghulam Fatima and others and send a reference to the Court which is competent to decide the matter. There would be no order as to the costs i$ this Court. (MBC) (Approved for reporting) Appeal accepted

PLJ 1992 SC (AJK) 54 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 54 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, REHMATULLAT-Appellant versus KHALILUR REHMAN and another-Respondents Civil Appeal No. 6 of 1992, accepted on 31.5.1992. [On appeal from judgment and decree of High Court, dated 30.11.1991, in Civil Misc. No. 48 of 1990.] Pre-emption- —Pre-emption-Suit for-Purchase money deposited but withdrawn without permission of court-Effect of-When under Order XX Rule 14 of CPC, court directs plaintiff to deposit purchase money, manifest intention of law is that amount shall not be withdrawn-According to this provision, if purchase money is not paid in court, suit has to be dismissed-Held: Reasoning adopted by learned Judge (of High Court) that there is no penal provision, cannot be upheld because a penalty is already provided in shape of provision that if purchase money is not paid, suit shall stand dismissed—Appeal accepted. [Pp.56&57]A&B PLD 1975 Lahore 524 re/. Mr. Riaz Alain, Advocate for Appellant. Nemo for Respondents. Date of hearing; 23.5.1992. judgment Basharat Ahmad Shaikh, J.--Khalil-ur-Rehman, the respondent before us, was the plaintiff in a pre-emption suit which was decreed on 28.12.1983. In accordance with the orders of the Court he deposited the purchase-money on 27.2.1984. The decree passed in favour of Khalil-ur-Rehman was unsuccessfully challenged successively before the District Judge, High Court as well as this Court. The decree passed in his favour was intact when on 26.5.1988 the plaintiff withdrew the purchase-amount from the Court without seeking 'formal permission. On 23.1.1989 the present appellant Rehamatullah, vendee in the case, moved an applcatfon before the learned Sub-Judge that since the plaintiff had withdrawn the purchase-amount the decree passed in the case had become unenforceable. He requested that the decree may be cancelled. The learned Sub-Judge accepted the application on 6th of August 1989 and cancelled the decree after hearing both the parties. Khalil-ur-Rehman appealed against that order to the learned District Judge who dismissed the appeal. However, a learned single Judge of the High Court has accepted the appeal filed by him and has ordered that the decree in favour of Khalil-ur-Rehman shall remain operative and he shall deposit the decretal amount within sixty days from the date of the judgment which was pronounced on 3.11.1991, failing which the decree shall stand cancelled. Hence this appeal by leave of the Court. Plaintiff-respondent Khalil-ur-Rehman has not put, in appearance. Consequently, we have only heard Mr. Riaz Alam, Advocate, in support of the appeal. He vehemently contends that the view taken by the learned counsel (?) in the High Court is not sustainable. He further contends that this view is not fortified by any precedent case. Mr. Riaz Alam relies on Fazal Hussain vs. Musharaf Sultana (1991 S.C.M.R. 487) and Ismail and others vs. Muhammad Aslam and others (PLD 1980 Lah. 104). So far as Fazal Hussain's case is concerned it is only an order by which leave was granted by the Supreme Court of Pakistan. However, the case from the Lahore Jurisdiciton fully supports the contention of the appellant's counsel. In that judgment it has been laid down by the learned Judge of the Lahore High Court that if pre-emption money is withdrawn by pre-emptor without leave of the Court his suit or appeal is liable to be dismissed. Among the cases followed by the leanred Judge is the case of Abdul Ghafoor and another vs. Mst. Iqbal Begum and another (PLD 1975 Lah. 524). In the judgment under appeal, the learned Judge adopted the reasoning that Khalil-ur-Rehman, plaintiff, has successfully protected rusMecree throughout and was still protecting it. He had never been ordered by any appellate Court to file security and none of the Courts had burdened him with costs for which security is required under law. He, therefore, concluded that clause (a) of Section 21 (5) of the Jammu and Kashmir Right of Prior Purchase Act does not apply in this case. Clause (a) which has been found inapplicable by the learned Judge is to the following effect:— "(a) If the plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal shall be dismissed." We agree that the aforementioned provision is applicable to security or deposit which is required for the dischage of costs. In fact the whole of Section 21 mentioned above deals with costs while the present case relates to purchasemoney. Then the learned Judge analysed Order XX rule 14 of the C.P.C. which deals with deposit of purchase-money by the pre-emptor and made the following observations while reaching the conclusion that the decree remained unaffected by withdrawal of the purchase-money:-- (a) the trial Court had no authority to allow the decree-holder to withdraw the amount; (b) the title in the suit land had passed on to the plaintiff decree-holder and the amount remained in trust for the judgment-debtor and the Court could not order for the repayment of that amount to the pre-emptor; (c) there is no provision containing a penalty for withdrawal of the decretal amount as it could never be visualised that fault of paving the decretal amount can ever be committed by the Court; and (d) the plaintiff canot be deprived of the decree for fault of the Court; After examining the relevant provisions and reasoning contained in the judgment under appeal we are disposed to hold that the learned Judge fell in error in coming to the conclusion as recorded by him. When under Order XX rule 14 the Court directs the plaintiff to deposit the purchase-money together with costs the manifest intention of the law is that the amount shall not be withdrawn. According to this provision if purchase-money is not paid in the Court the suit has to be dismissed. We cannot see ar>y distinction between the situation in which a person does not deposit the purchase-money and a situation in which a person after having deposited the aforesaid money withdraws it. The purpose of deposit of the aforesaid amount clearly is that this amount will be paid to the unsuccessful vendee and not that it should be repaid to or withdrawn by the plaintiff himself. The reasoning adopted by the learned Judge that there is no penal provision cannot be upheld because a penalty is already provided in shape of the provision that if purchase-money is not paid the suit shall stand dismissed. We are equally convinced that the observation of the learned Judge that there was fault on the part of the Court is also unsustainable. The amount was withdrawn without formal permission of the Court and to blame the Court in the circumstances appears to us to be somewhat far-fetched. We may point out that the learned Judge did not cite any case in support of the view he took in the case. However, he relied upon some cases which related to the view that clause (a) of Section 21(5) is not attracted to the present case. We have already observed that we also subscribe to that view. However, as already mentioned, the Lahore High Court has expressed the correct view in Abdul Ghafoor's case. It is stated by Mr. Riaz Alam that Khalil-ur-Rehman has not deposited the pre-emption amount within sixty days from the date of the judgment of the High Court and thus the decree once again stands cancelled in pursuance of the order made by the High Court. In absence of a documentary proof it is not right for us to pass an order in this respect. Even otherwise, if the amount ha not been deposited the decree which was revived by the High Court shall stand cancelled by virtue of the specific order passed by the High Court. The learned counsel for the appellant also contended that the appeeal filed by respondent Khalil-ur-Rehman was liable to be dismissed for his failure to implead a necessary party. Since we are, in any case, setting aside the order of the High Court we need not decide this point. As a result of the foregoing we conclude that the judgment of the High Court L is liable to be vacated and it is ordered accordingly. Since the respondent has notf appeared there would be no order as to the costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC (AJK) 57 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 57 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J MAQSOOD HUSSAIN-Appellant versus CHAIRMAN, MUNICIPAL COMMITTEE, MIRPUR, and 3 others-­Respondents Civil Appeal No. 9 of 1992, accepted on 30.5.1992. [On appeal from order of High Court, dated 23.11.1991, in W.P. No. 9 of 1990.] (i) Aggrieved Person— —Allotment of plot to respondent No. 4 as "awkward piece"--Challenge to~ Whether appellant was not an aggrieved person—Question of—Contention that plot was allotted to respondent No. 4 in year 1987 when appellant had not yet submitted any application for allotment of plot in dispute, so he is not an aggrieved person—Assuming for sake of arguments that order passed in September, 1987 was a final order, fact remains that plot in question was available for allotment to any deserving person from public at large and appellant falls in category of persons entitled to allotment of plots-Held: If order of Chairman was violative of law and without jurisdiction, that would not debar appellant from seeking allotment of plot in question [Pp.61&62]D (ii) Allotment— —Allotment of plot to respondent No. 4 as "awkward piece"—Challenge to~ Whether land comprising plot in dispute could be regarded as "awkward" land and could be' allotted by Chairman-Question of-Definition of words "awkward piece" is given in Rule 2(l)(b) of Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, 1985-It is a condition precedent that piece of land (to be treated as awkward piece) should be of such nature that it could not be converted into a plot/farm in view of its location or situation-It is crystal clear from proviso to Rule 4 of above Regulations that even an "awkward piece" of land can only be disposed of by Committee and not by Chairman alone-Held: View taken by High Court that "awkward piece" could be regularised by Chairman alone, is clearly violative of rules and is not tenable-Appeal accepted. [Pp.59,61&62]A,B,C&E Mr. Muhammad Azeem Dutt, Advocate for Appellant. Mian Muhammad Saeed, Advocate for Respodents 1 to 3. Ch. Muhammad Taj, Advocate for Respondent No. 4. Date of hearing: 25.5.1992. judgment Sardar Said Muhammad Khan, CJ.-This appeal has been directed against the judgment of the High Court dated 23.11.1991, whereby the writ petition filed by the appellant, herein, was dismissed. Brief facts of the case are that the appellant is a Mangla Dam affectee. Applications were invited by the respondents Nos. 1 to 3 for the allotment of the plots, including the disputed plot numbered as 11/D, situated in sub-sector B-5, Mirpur. The case of the appellant is that the aforesaid plot was one of the plots which were available for the allotment and was to be allotted according to the provisions of rules known as Mirpur Municipal Committee, Regulations for development and disposal of plots/estates, 1985. Consequently the appellant applied for the allotment of the plot in question which was also accompanied by a draft in the sum of Rs. 6,320/- as earnest money. However, subsequently, the appellant came to know that the plot in question was allotted to Dr. Zafar Iqbal, respondent, as an 'awkward' land under the relevant rules on September 28,1987, by the Chairman of the Municipal Committee. The case of the appellant is that in fact the disputed piece of land was converted into a plot in pursuance of regular scheme and the Chairman had no authority to allot or sanction the merger of the same into a plot of the respondent as an 'awkward' land. He has contended that even otherwise the plot was not adjacent to the plot allotted to respondent, Zafar Iqbal, and does not fall within the category of 'awkward' land. He has further alleged that in fact the plot was not finally allotted to the respondent on September 28, 1987 but was allotted on 10th October, 1988, after the application for allotment of the appellant. According to the learned counsel for the appellant the order of the Chairman treating the plot in question as an 'awkward' piece of land vide order dated 28.9.1987 cannot be regarded as an order of allotment of plot or for that matter the order of approval of merger of 'awkward' land into a plot which already stood allotted to respondent No. 4. The High Court has taken, the view that the question as to whether the piece of land in question was an 'awkward' land or not, is a question of fact and in view of the order passed by the two Chairmen of the Municipal Committee of the time, in the year 1987 and other in the year 1988, it cannot be said that the plot in question was not an 'awkward' piece of land but was a plot which was available for allotment to a deserving claimant under the relevant rules in pursuance of the general scheme of the allotment. The High Court did not deal with the question as to whether the Chairman of the Committee had the authority to take out a plot from the 'approved scheme', treat it an 'awkward' land and permit its merger as an 'awkward' land. It has been vehemently argued that in the first instance the piece of land which stood numbered as plot No. 11/D could not be treated to be an 'awkward' place in view of the definition of the words 'awkward piece' given in the relevant rules; in alternative, even if it can be regarded to be an 'awkward' place despite the fact that the same was converted into a plot, that could not be done by the Chairman alone but only the Committee was competent to do so. The moot point involved in the case is as to whether in view of the definition of 'awkward piece' given in the aforesaid rules, the land comprising the plot in question can be regarded to be an 'awkward' land under the relevant provisions of the rules. For the sake of convenience the definition of the words 'awkward piece' may be reproduced as under, which is given in Rule 2, sub-rule (1) (b) of the aforesaid Rules of 1985. The same is as under:- '"Awkward Piece' means a piece of land adjoining to any plot or farm, which cannot be fanned into a separate plot or farm and can only be utilized by merging it into the adjoining plot/farm;" It is evident that only that piece of land can be regarded to be an 'awkward piece' which cannot be formed into a separate plot or farm and can only be utilised by merging it into the adjoinig plot/farm. It is clear from the plain reading of the definition that the piece of land which is capable of being made a plot or can be utilized as a separate plot, cannot be regarded as an 'awkward piece' of land and the Chairman or for that matter the Committee has no power to dispose of it as an 'awkward piece'. It is condition precedent that the piece of land should be of such nature that could not be converted into a plot/farm in view of its location or situation. The next question which needs determination is that even if it is assumed for the sake of argument that the plot in dispute could be regarded as an 'awkward piece' of land in view of the aforesaid rule, could it be taken out of pool of general plots and regarded as an 'awkward' land. The very scheme of the Rules is clear enough. Rule 16 of the Mirpur Municipal Committee, Regulations for development and disposal of plots/estates, 1985, was referred to by the learned counsel for the respondents in support of his contention that the Chairman was competent to pass the impugned order. Rule 16 is reproduced as under:-- "16. Regularization of Encroachments etc: The Chairman may regularise the encroachments subject to the provision of Master Plan and Local Governmeit (Ordinance on any piece of Government land/rejected area in a prescribed manner; provided that:-- (i) The person who has encroached upon the Government land or rejected area, falfs in criteria under clause 9(2) above; (ii) The encroachment does not affect the Master Plan/Original Planning; (iii) The encroachment may not affect any road, plot, or areas reserved for Gevernment buildings, like Hospitals, Schools, Dispensaries, or any other public institution or areas reserved for disposal works sewers of water supply lines, etc; (iv) the encroachment which has been affected prior to 30.6.1981 and the same is sufficiently approved by the official records; (v) the encroachment is by no means against the approved housing scheme and more than one kanal." It may be stated that rule 16 deals with a 'rejected place' which is defined in sub-rule l(h) of rule 2 of the Rules and not 'awkward piece' which is defined in sub-rule l(b) of rule 2 as has been already stated. The place in dispute has been given to respondent No. 4 as an 'awkward piece' and not as 'rejected place' as is evident from the relevant orders dated 28.9.1987 and 10.10.1988. However, under clause (ii) of rule 16, encroachment should not effect the Master Plan or the Original Plan. Under clause (iii), the encroachment should not affect any road, plot or area reserved for Government buildings etc.; and under clause (v), encroachment should by no means be against the approved housing scheme and be more than one kanal. It is evident that the land already given the shape of a plot and available for allotment could not be regarded to be 'rejected place' under rule 16, referred to above. So far as the power of the Committee is concerned, rule 3 of the Rules envisages that the Committee has power to develop the piece of land or any property vesting in it but it is condition precedent that such utilization of land should not affect the sanctioned plan of the plots. Sub-rule (2) of rule 3 envisages that the Committee may prepare mini development scheme for obtaining development grants from the Government or sponsor, etc. Under subrule (3) of rule 3, again it is only the Committee which has been invested with the" powers of developing and improving any existing 'abadi' or locality; and under sub-rule (4) of rule 3, no other person or agency other than the Committee is competent without the prior sanction of the Committee to develop any estate within the specified area. It is pertinent to state here that under proviso to rule 4 an 'awkward' piece of land can only be 'disposed of by the Committee by allowing its merger into a plot or farms etc. and not the Chairman of the Committee. For the sake of convenience, proviso to rule 4 is reproduced as under :-- "Provided that an 'Awkward' piece of land may be disposed of by the Committee, by allowing it to be merged into the adjoining plots/farms etc. on such terms and conditions as may be determined by it, or it may be utilized by the Committee in any other manner." It is crystal clear from the aforesaid proviso that even an 'awkward piece' of la'nd can only be disposed of by the Committee and not by the Chairman alone. The above state of law clearly shows that even if it is assumed for the sake of arguments that the piece of land in question can be regarded as an 'awkward piece', it could be dealt with by the Committee and not by the Chairman as has been done in the present case. Rule 16 deals with 'rejected area' which the Chairman of the Committee is competent to regularise if the same falls within the purview of rule 16, but if the land falls within the definition of the words 'awkward piece' then it can be disposed of by the Committee and not by the Chairman of the Committee. The word 'Committee' has been defined in rule 2 caluse (l)(a) meaning The Mirpur Municipal Committee constituted under the Local Government Ordinance, 1979 as amended from time to time'. Thus, the view taken by the High Court that 'awkward piece' could be regularised by the Chairman alone is clearly violative of the rules and is not tenable. The learned counsel for ihe respondent No. 4 Ch. Muhammad Taj, has vehemently argued that under rule 16. the Chairman had ample power to regularise such pieces of land because there is no bar to the exercise of the power of the Chairman under the aforasaid Rules. It may be stated that the question of 'bar' does not arise because the power of Chairman even in case of the 'rejected places' is circumscribed by the conditions enumerated under rule -16 of the aforasaid Rules. Next, it has been half-heartedly contended by the learned counsel for the respondent No. 4 that the appellant is not an 'aggrieved 1 person because the plot was allotted to respondent No. 4 in the year 1987, when ihe appellant had not yet submitted any application for the allotment of the plot in dispute. Assuming for the sake of argument that the order passed in September, 1987 would be regarded to be a final order in the matter, the fact remains that plot in question was available for allotment to any deserving person from public at large. Thus, if the order of Chairman dated 28.9.1987 was violative of the law and without jurisdiction, that would not debar the appellant from seeking the allotment of the plot in question. It is not disputed that the appellant falls within one of categories which have been declared entitled to allotment of plots in Mirpur Town . It is true that no right in the strict juiristic sense vests in him, but clearly the appellant is a person who has personal interest that the respondents should not perform their legal duties in a manner not provided by law because if the plot in question becomes available for allotment to a deserving person it is certainly an advantage or benefit which would accrue to the appellant. If any authority is needed on this point we may refer to Mian Fazal Din vs. Lahore Improvement Trust, Lahore (PLD 1969 S.C. 223) and particularly the following passages from the judgment of Hamoodur Rehman, C J., who spoke for the Court in that case:-- A right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. A corporation entrusted with the task of formulating town improvement schemes had appropriated a particuar site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition." As a result of the foregoing the appeal is accepted and the order of the High Court is set aside. The writ petition filed by Maqsood Hussain stands accepted and the allotment in favour of Dr. Zafar Iqbal is held to have been made without lawful authority and is of no legal effect. The concerned authorities may consider the application for allotment by the appellant, herein, under the relevant rules. There would be, however, no order in respect of the costs of this appeal. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC (AJK) 62 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 62 [Appellate Jurisdiction] Prcsi.nl: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J ALAM DIN-Appcllant versus CHAIRMAN, MUNICIPAL COMMITTEE, MIRPUR, and 3 others-­Respondents Civil Appeal No. 20 of 1991, accepted on 30.5.1992. [On appeal from order of High Court, dated 24.9.1990, passed in Writ Petition No. 83 of 1989.] Amendment— —Writ Petition-Amendment of-Application for-No decision of amendment application-Effect of-While Writ Petition was pending in High Court, appellant filed an application seeking amendment of writ petition-Prayer for amendment was not taken into consideration by High Court nor respondent was asked to file any objections to proposed amendment—Question of amendment and effect of application purported to have been made to Chairman, has direct bearing on point whether appellant is an aggrieved person within meaning of relevant constitutional provisions-Held: There is no alternative but to remand case to High Court for considering amendment application and to decide matter one way or other-Appeal accepted. [P.64]A&B Cli. Muhammad Riaz Inqlabl, Advocate for Appellant. Ch, Muhammad Taj, Advocate for Respondent No. 4. Respondents 1 to 3: Exparte. te of hearing: 26.5.1992. judgment Sardar Said Muhammad Khan, CJ.—This appeal has been directed against the judgment of the High Court dated 24.9.1990, whereby the writ petition filed by the appellant, herein, was dismissed. Brief facts giving rise to the present appeal arc that plot No. 203-B, situate in Sector F-2, Mirpur Town , was allotllcd to respondent No. 4, Muhammad Anwar, on 5.7.1989. The said allotment purports to have been made on the ground that the disputed land was allegedly encroached upon by the respondent. The appellant challenged this allotment through a writ petition, filed by him in the High Court, which was dismissed in limine on 25.11.1989 on the ground that no document had been filed with the writ petition to substantiate the averments made in the writ petition, except that an' un-attested photostat copy of the notice which was not admissible in evidence. Alam Din, appellant herein, after the dismissal of his previous writ petition, filed another writ petition on 29.11.1989 which was also dismissed on 24.9.1990 by the High Court on merits. Consequently, an appeal was preferred to this Court which was dismissed on the ground that as the previous writ petition filed by the appellant, herein, was dismissed, the second writ petition was not competent. A review petition was preferred by the appellant, herein, challenging the judgment of this Court on the ground that the previous dismissal being on technical ground, would not constitute res ju/iirata. The review petition was admitted for regular hearing and disposed of on merits whereby the same was accepted and the original appeal file was restored on its original number. We have given our due consideration to the arguments of the learned counsel for the parties in the light of the relevant record. While the writ petition was pending in the High Court, the appellant filed an application seeking an amendment of the writ petition on 11.3.1990 along with an application purported to have been made by Alam Din son of Ghulam Hussain, the present aappellant. There are notes on the application for allotment by the Estate Officer and others. However, the prayer for amendment of the writ petition was not taken into consideration by the High Court nor the respondent was asked to file any objections to the amendment application or the application made to the Chairman, Municipal Committee, for the allotment of the plot which, according to the appellant, had been in his possession since 1974. It may be pointed out that for just decision of the case the question as to whether the application attached to the amendment application was, in fact, made by the appellant, herein, and whether he could be permitted to amend the memorandum of the writ petition should have been considered by the High Court. However, for one reason or the other, it has not teen done. The question of amendment and the effect of the application purported to have been made to the Chairman has direct bearing on the point as to whether the appellant is an 'aggrieved' person within the meaning of the relevant constitutional provisions. As no objections have been filed by the respondent nor we have the wisdom of the High Court before us on the point reflected above, we have no alternative but to remand the case to the High Court for considering the amendment application and decide the matter one way or the other. It may be pointed out that the question of amendment is also important because the High Court came to the conclusion that previous copy of the application 'form' on which the appellant alleged to have made the application for the allotment was made by Muhammad Alam son Alam Din and not Alam Din son of Ghulam Hussain, the present appellant. This aspect of the matter weighed with the High Court while passing the impugned order. Thus, we accept the appeal, set aside the impugned order of the High Court and remand the case back to the High Court with the direction that it shall first decide the question of amendment application one way or the other and thereafter decide the writ petition afresh according to law. The appeal stands disposed of in the manner as indicated above. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC(AJK) 65 PLJ 1992 SC(AJK) 65 Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J Khawaja EJAZ AHMAD-Appellant versus CHAIRMAN, MIRPUR DEVELOPMENT AUTHORITY and another-- Respondents Civil Appeal No.ll of 1991, dismissed on 30.5.1992 [On appeal from judgment of High Court, dated 23.11.1991, in W.P. No.48 of 1990.] Termination— —Employee of Mirpur Development Authority-Termination of Services of~ Challenge to-Under Section 23 of Mirpur Development Authority Ordinance, power of appointment of officers, servants, experts consultants, always stood vested in Authority from its very inception-Mirpur Development Authority Establishment Service Rules, 1988 did not vest in Authority any new power so far as appointment of Town Planner in BPS-17 is concerned-Under these rules, power to appoint a Town Planner in BPS-17 was vested in Authority and npt in Chairman—Held: If Chairman did not have power to appoint or remove Town Planner, then order of appointment of appellant was bad in law-Held further: If so, it creates no right and does not entitle appellant to file a writ petition in order to have an illegal order revived—Appeal dismissed. [Pp.66&67]A&B KJi. NoorulAmin, Advocate for Appellant. Mr. Muhammad Yunus Surakhvi, Advocate for Respondents. Date of hearing: 27.5.1992. judgment Basharat Ahmad Shaikh, J.--The appellant, Kh. Ejaz Ahmad, was working as a Town Planner in BPS- 17 in the Mirpur Development Authority when on 1st of April 1990 the Chairman of the Authority ordered the termination of his services with one month's pay in lieu of notice period in accordance with the terms and conditions of his 'appointment. Feeling aggrieved Kh. Ejaz Ahmad filed a writ petition in the High Court. The writ petition has been dismissed by a learned single Judge in the- High Court vide his order dated 23.11.1991. With leave of this Court he has appealed against that order. In the writ petition filed in the High Court the main plank of attack was that the order of termination was without jurisdiction because under the Mirpur Development Authority Establishment Service Rules 1988, .the appointing authority of the appellant was the Mirpur Development Authority and it is only the Authority which could terminate his services. The High Court found that the members of the Mirpur Development Authority had by a resolution delegated all the powers of the Authority to the Chairman and that the phraseology of the resolution was comprehensive enough to include the power of appointment and termination. The High Court also formed the view that the appointment of Kh. Ejaz Ahmad was made by the Chairman subject to approval of the Mirpur Development Authority but there was nothing on the record to show that the appointment had been approved by the Authority. It was also held that a temporary employee could not seek relief from a Court of law if his services are terminated in conformity with the terms of agreement. Before us the learned counsel for the appellant, Kh.Noor-ul-Amin vehemently contended that the conclusions drawn by the learned Judge in the High Court are unsustainable. He submitted that the resolution delegating the powers of the Authority to the Chairman was passed in the year 1977 while the Mirpur Development Authority Establishment Service Rules 1988 were made by the Government on 3rd of December 1988 and the power to appoint a grade 17 Town Planner was vested in the Authority by virtue of these Rules. He submitted that the resolution mentioned above can only have the effect of delegating those powers which were vested in the Authority on the date when the resolution was passed. He, therefore, contended that any power which came to be vested in the Authority after the aforementioned delegation could not by any rule of interpretation be construed to have been already delegated. As a broad principle this proposition appears to have force, but has no application to the present case. Section 23 of the Mirpur Development Authority Ordinance deals with the appointment of Officers and Servants and lays down as follows:- "23. Appointment of Officers and servants etc. (1) The Authority may, from time to time, appoint such officers, servants, experts or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit. Provided that salaried officers and servants of Grade 19 and above shall not be appointed except with the previous sanction of the Government. (2) Subject to the proviso to sub-section (1), the Chairman may, in cases of urgency, appoint such officers, servants, experts or consultants and on such terms and conditions as he deems fit; Provided that every appointment made under this sub-section shall be reported to the Authority without unreasonable delay". A plain reading of this provision of law shows that the power of appointment of officers, servants, experts and consultants, always stood vested in the Authority from its very inception with one exception which is contained in the proviso that officers and servans of Grade 19 and above could only be appointed by the Authority with the previous sanction of the Government. It is, therefore, clear that the Rules mentioned above did not vest in the Authority any new power so far as the appointment of Town Planner in BPS-17 is concerned. It only resulted the method of appointment. The argument, therefore, fails. It may also be observed that the appointment order of the appellant was made by the Chairman of the Authority on 6.2.1989 when the Mirpur Development Authority Establishment Service Rules mentioned above had already been promulgated on 3rd of December, 1988. Under these Rules the JJ power to appoint a Town Planner in BPS-17 was vested in the Authority and not in the Chairman. If the Chairman did not have the power to appoint or remove the Town Planner then the order of appointment was bad in law. If so, it creates no right and does not entitle the appellant to file a writ petition in order to have an illegal order revived. Finding no force in the appeal, it is hereby dismissed. (MBC) Approved for reporting) Appeal dismissed.

PLJ 1992 SC(AJK) 67 PLJ 1992 SC(AJK) 67 Present: BASHARAT AHMAD SHAIKH., J MUHAMMAD RASHEED KHAN--Appellant versus Sardar SAJAWAL KHAN-Respondent Civil Appeal No.7 of 1991, dismissed on 16.6.1992. [On appeal from judgment and decree of High Court, dated 1.11.1990, in Civil Appeal No.74 of 1978.] (i) Question of Law- —-Right of prior purchase-Suit.for-Dismissal of-Challenge to-Whether a law point abandoned in High Court, can be taken up again in Supreme Court-­ Question of~It is a consistent practice of Supreme Court to allow pure questions of law to be raised for first time-Fact of matter is that point which is being raised, is not a new point at all-It was raised before Sub-Judge and District Judge but was abandoned in High Court through an application-Held: Wist ;re with conscious application of mind, a point is abandoned, it cannot be raised again in Supreme Court. [Pp.69&70]A NLR 1992 SCJ 441 and NLR 1983 SCJ 92 rel. PLJ 1988 SC (AJK) 92 and PLD 1990 SC (AJ&K) 23 ref. (ii) Waiver-- —-Right of prior purchase-Suit for--Dismissal of--Challenge to--Whether appellant had waived his right of prior purchase-Question of--If a person attests sale, he knows which property is being sold and also knows fact as to who is vendor and who is vendee-If he is closely related to vendor, as in present case, these facts cannot escape his attention-It is not function of Supreme Court to enter into reappraisal of evidence and findings of fact recorded cannot be vacated even if another view of evidence is possible- Findings of fact can only be set aside if they are result of gross misreading or non-reading of evidence-Held: No part of evidence having been pointed out which was not reconsidered by courts below or High Court, no case for interference in findings of fact has been made out-Held further. Appellant had clearly waived his right to sue for pre-emption-Appeal dismissed. [Pp.71

72,73&74]B,C,D&E PLJ 1984 SC 366, PLD 1972 SC 133 and 1980 CLC 2063 ref. Mr. A.D. Klian, Advocate for Appellant. Mr. Ghulam Mustafa Mughal, Advocate for Respondent. Date of hearing: 9.6.1992. judgment This appeal by leave of the Court is the culmination of a pre-emption suit filed in the year 1960 by the appellant before us. The suit land was sold by the appellant's mother Mst. Nishada Begum (who had remarried) to Sardar Sajawal Khan through a registered sale-deed executed on September 18, I960, for a sum of Rs.1500/-. In the suit filed by the present appellant Muhammad Rasheed Khan, apart from seeking possession on the basis of right of prior purchase, the plaintiff also challenged the sale, deed on the ground that it was violative of the provisions of the Land Reforms Act 1960. The quantum of purchase price was also challenged asserting that the actual amount was Rs.500/- and not Rs.1500/- as shown in the sale-deed. In the written statement the averments incorproated in the plaint were repudiated and it was also alleged that the plaintiff was a consenting party to the sale of the suit land and as a token of his consent he had signed the sale-deed as a marginal witness. The suit was dismissed mainly on the point of waiver on January 28, 1965, but an appeal taken to the District Judge succeeded and the case was remanded after framing of two additional issues which related to the purchase price and the alleged violation of the Land Reforms Act. This order was challenged before the High Court which partly accepted the appeal and issued a direction to the trial Court to submit its findings to the High Court sfter recording the evidence. In the second round the District Judge held that the sale in question was in contravention of the Land Reforms Act and was thus invalid. It was concluded, therefore, that no sale had taken place and the suit for pre-emption was not maintainable. Due to this conclusion Muhammad Rasheed Khan was also aggrieved and filed second appeal before the High Court. Sardar Sajawal Khan also appealed. Muhammad Rasheed Khan filed an application in the High Court and prayed that he did not want to press his objection that the sale was in violation of the Land Reforms Act. The learned Judge in the High Court who was seized of the case accepted the prayer by making an observation that this objection did not "warrant detailed observations of this Court". It was however also observed that in the sale-deed it was stated that the vendor was alienating her entire estate which was indicative of the fact that at the relevant time she had been told by the revenue officials that the total estate which had devolved upon her was 25 kanals of land. She acted on this information and stated in the sale-deed that she was alienating her entire estate comprising 25 kanals. In light of these facts the leaned Judge in the High Court formed the view that if a few marlas of land was later on found to be part of her estate in addition to 25 kanals mentioned in the sale-deed it would not invalidate the sale-deed. It was further observed by the learned Judge that in any case since the issue was not pressed it was decided against the present appellant. This point has again been raised before me and will be disposed of at the proper stage. The learned Judge in the High Court after going through the evidence of the parties as well as the case law on the subject reached the conclusion that Muhammad Rasheed, the plaintiff-pre?emptor, was a consenting party to the alienation of the land, as such he was estopped from asserting his right of prior purchase. Consequently, the suit filed By Muhammad Rasheed Khan was dismissed. It may be observed that when the second appeal was filed in the High Court the learned Judge who was initially seized of the case formed the view that recording of additional testimony would be in the interest of justice. Therefore, the High Court examined two finger print experts and their evidence also forms part o f the evidence in the case. As mentioned above the learned counsel for the appellant, Mr. A.D.Khan, raised the objection that the sale in question was in violation of the Land Reforms Act. This point was upheld by the learned District Judge but was subsequently given up before the High Court through a written application. However, the learned Judge in the High Court, apart from observing that the point need not be resolved because it had been abandoned, also expressed the view that on merits also it did not have force. The learned counsel for the appellant submitted before me that it is a question of law and can be raised for the first time in this Court by including it in the petition for leave to appeal as well as in the concise statement which conditions have been fulfilled by the appellant. The learned counsel relied on a judgment of this Court (in) Raja Muhammad Niaz Khan v. AJ&K Government (PLJ 1988 S.C. (AJ&K) 92], in which it was observed that it was a consistent view of this Court that a legal point could be raised for the first time before this Court. He also relied on Muhammad Ibrahim Khan v. Azad Government [PLD 1990 S.C. (AJ&K) 23]. There is no doubt that it is a consisted practice of this Court to allow pure questions of law to be raised for the first time and there is no doubt also that the question which is being now raised beore us is a question of law because, although certain facts are involved in it, the fact is clearly established from the evidence on the record that few marlas of land continued to be the ownership of Mst. Nishada Begum, the vendor in the case. However, fact of the matter is that the point which is being raised before this Court is not a new point at all. This point was raised before the Sub-Judge and subsequently before the District Judge. In the appeal filed by Muhammad Rasheed Khan in the High Court he made an application that he wanted to abandon this point and thus, with the permission of the Court, abandoned it. He now raises it again ,before me but no case law has been cited on behalf of the appellant that this can be done. The learned District Judge held that in view of the violation of the Land Reforms Act there was no sale in the eye of law and therefore there was no question that the sale may be preempted by Muhammad Rasheed Khan. It is obvious that it was this situation which he wanted to avoid and that is why he abandoned this point. It is obvious that if this point is accepted he gains nothing and only the sale would be invalidated. He, therefore, took a chance that he might succeed in getting a decree of possession from the High Court but having failed in his effort he has again taken a u-turn. In our view where with conscious application of mind in furtherance of the interests of a party a point is abandoned it cannot be raised again in this Court. A Court of law deals with the rights and liabilities of the people who come before it for adjudication of their disputes. In my view this is a very serious business in which the game of hide and seek cannot be allowed. I am fortified in this view by a judgment of this Court reported as AskarAH v Fazal Karim [NLR 1982 S.C.J. 441], which lays down the rule that the point abandoned in the lower Courts cannot be re-agitated, as well as a judgment of the Supreme Court of Pakistan reported as Pakistan v. Mst. Faizan [NLR 1983 S.CJ. 92] which is to the effect that a point specifically given up before the High Court cannot be raised in the Supreme Court. The only other point involved in the present case is the question of waiver which has been decided against the appellant. The learned counsel for the appellant contended that attestation of a document itself does not operate as an estoppel. He cited Banga Chandra Dhur Biswas and another v. Jagat Kishore Achariya Chowdhuri and others [AIR 1916 P.C. 110], Pandurang Krishna}! v. M. Tukaram and others [A.I.R. 1922 P.C. 20], Abdul Aziz and others v. Abdullah and others[A.l.R. 1925Lah. 413], Mustaqim v. Slier Bahadur [P.L.D. 1962 Pesh. 14] and Luqman v. Allah Diwaya and others [PLD 1967 Pesh. 166]. Out of these cases Peshawar High Court judgment in Mustaqim's case is not relevant because in that case the pre-emptor associated himself with the sale as a representative of another person and not in his personal capacity. In these circumstances it was held that due to the obvious distinction between representative capacity and personal capacity no question of waiver arose. The other cases are all tied up in a chain. The basic case is the Privy Council case of Banga Chandra Dhur Biswas, which has been followed in the other cases mentioned above. In these cases it has been held that mere attestation does not prove that the signature of an executing party has been attached to a document in presence of a witness. It even does not involve the witness in any knowledge of the contents of the deed nor affects him with notice of its provisions. By itself attestation would not create estoppel nor imply consent. However.it is an essential part of the principle that by evidence it can be proved that an attestation took place in circumstances which would show that the witness did in fact know all the contents of the documents. The following passage from Pandurang Krishnaji's case is extracted below:-- "....Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of course, possible, as was pointed out by their Lordships in the case of Banga Chundra Dhur Biswas v. Jagat Kishore Achariya Chowdhari [A.I.R. 1916 P.C.110] that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document but no such knowledge ought to be inferred from the mere fact of the attestation". It may be observed that Pandurang Krishnaji's case was not a pre-emption case and the Judges were called upon to hold that by attesting a deed the witness relinquished for no consideration whatever a right which was of a great value. The earliest Privy Council case of Banga Chandra Dhur Biswas was also not a pre­ emption suit and involved disposition of property in respect of which estoppel was being pleaded. However, Abdul Aziz's case in which a learned single Judge of the High Court followed Pangudrang Krishnaji's case was a pre-emption suit. However, the precise principle which was laid down was that the attestation of a deed did not by itself estop the person attesting it from denying that he knew its contents or that he consented to the transaction which it effects. In Luqman's case a Judge of the Peshawar High Court also followed this view and held that person who attests a deed can deny that he consented to transaction affected by deed. It may be noticed that the cases in which the proprietary right or share in a property is involved are a class which is distinct from the class in which the pre-emption suits fall. While in the first category of cases, a person who attests a document cannot be saddled with the intention that by becoming a witness he was surrendering his right because he may not be knowing the exact details of the transaction. However, if a person attests a sale he knows which property is being sold and also knows the fact as to who is the vendor and who is the vendee. If he is so closely related to the vendor as in the present case these facts cannot escape his attention. If he has any objection to the sale and he thinks that it is he to whom the property should be sold no reason comes to mind why he should attest the document. Be that as it may. I have no quarrel with the proposition that such a person may plead that he was not aware of the contents of the document. It follows that if he succeeds in proving it then there would neither be estoppel nor waiver. However, it is clear that if it is proved that he was aware of the contents and he associated himself with the completion of the sale he would be deemed to have waived his right. The Supreme Court of Pakistan has held in Baqri v. Salehon [PLD 1972 S.C. 133] and Naseer Ahmad v. Arsliad Ahmad [PLJ 1984 S.C. 366] that right of pre-emption can be waived by conduct before the actual sale takes place. The learned counsel for Sardar Sajawal Khan, Mr. Ghulam Mustafa Mughal, cited the case of Ghulam Muhammad v. Muhammad Bakhsh [1980 C.L.C. 2063] in which a learned Judge of the Lahore High Court held that when it was proved from the evidence on record that the contents of the document were known to the pre-emptor who subsequently filed a suit this fact would work as an estoppel. In that case the pre-emptor had signed the sale-deed as an attesting witness and although he denied his attestation, it was proved that he not only signed as a witness but also that he knew about the contents. Now coming to the facts of the present case the learned Judge in the High Court has given a clear cut finding in para 11 in the following words:-- "The aforesaid evidence obviously leads to the conclusion that pre-emptor was a consenting party to the alienation of the suit land by his mother to the vendee-defendant". Initially the learned Sub-Judge had also recorded the same finding on the evidence then on the file. However, this finding of fact was set aside by the learned District Judge ;n his judgment pronounced on 11.12.1973. The learned District Judge pointed out some contradictions between the witnesses and observed that their evidence could not be relied upon. He also held that consent cannot be inferred from oral evidence and in this connection relied on PLD 1962 Pesh. 14, PLD 1968 BJ. 6 and an un-reported case of the Azad Jammu and Kashmir High Court Muhammad Din v. Abdullah decided on 16.6.1962. This unreported judgment is not before me. However, I have perused the other two cases and find that no such proposition has been laid down in these cases. In fact there is no law to stop a person from proving by oral evidence the factum of consent, waiver or estoppel. The learned Judge then observed that if the plaintiff was really a consenting party or wanted to waive his right he should have given a note to that effect in the sale-deed. The evidence was then appraised by the learned Judge of the High Court in the judgment pronounced on 17.9.1978. By that time the additional evidence in the shape of statements of two finger print experts had also been recorded. After an elaborate discussion the learned Judge recorded his following conclusion:— "I have no doubt that in view of this evidence it is proved beyond-doubt that Muhammad Rashid was present on the spot when the sale-deed was written and he affixed his thumb impression on the same and also signed it. As stated earlier, no particular evidence is necessary to prove wiaver. The presence of the plaintiff, Muhammad Rashid at the time of sale and at a place where he had no other business to be present and about which presence he has no explanation to offer, whatsoever, does in my opinion, clearly signify his agreement to the sale in question". This judgment was set ajside by this Court on the ground that there was inordinate delay between the hearing of arguments and the pronouncement of judgment. After the remand the evidence has again been examined by a learned Judge of the High Court. It is well settled that it is not the function of this Court to enter into reappraisal of the evidence and findings of facts recorded cannot be vacated even if another view of the evidence is possible. The findings of fact can be set aside by this Court only if they are result of gross misreading or nonreading of evidence. In the judgment under appeal all the material evidence on the record has been duly brought under consideration by the learned Sub-Judge, the learned District Judge as well as by the High Court. Before me the learned counsel who appears for the appellant pointed out that there are discrepancies between the statements of the witnesses on the point as to who asked Muhammad Rasheed Khan appellant whether he wanted to pruchase the suit property. Although I find that this discrepancy is there but I also find that the witnesses are one on the point that in their presence the appellant stated clearly that he did not want to purchase the property and his mother might do so. The discrepancy mentioned above was duly considered by the learned Judge in the High Court and despite that, in view of the overall evidence led by the parties, came to the conclusion that pre-emptor was a consenting party. In the judgment under appeal the following findings have been recorded: (/) The thumb impression on the sale-deed is proved to be that of Muhammad Rasheed Khan, the pre-emptor. Finger Print Expert, Mr. Muhammad Yaqoob Khan, D.S.P., testified that the thumb impression on the sale-deed was identical to the admitted thumb impression of the plaintiff. The lengthy cross-examination to which he was subjected did not shake his testimony. The other Finger Print Expert, Mr. Zaka A. Malik gave the opinion that thumb impression on the sale-deed was superimposed and did not provide sufficient material to form a conclusive opinion. (ii) The signature of Muhammad Rasheed Khan on the sale-deed also 'compared' with the admitted signature on the power of attorney filed in the case. (///) The overall result of the evidence of Munshi Feroz Din, Petition-Writer, the scribe of the sale-deed, Munshi Ahmad Ullah, another marginal witness, Mina Khan, husband of vendor Mst. Nishada Begum and step­ father of the plaintiff, and Sardar Sajawal Khan, defendant, leads to the conclusion that pre-emptor was a consenting party. The testimony of these witnesses and the discrepancy, mentioned above, were duly analysed. It was also noted that Mst. Nishada Begum was produced by the pre-emptor but she was not asked any question about the presence of the plaintiff as well as affixation of thumb impression or signature on the sale-deed. No part of the evidence was pointed out to me which was not considered by Pj the Courts below or the High Court. Thus, no case for interference in the findings I of fact has been made out. Before parting with the case I may point out that the learned counsel raised another point while opposing the acceptance of the appeal. The point is that the High Court of Azad Jammu and Kashmir , while acting under the provisions of the Enforcement of Shariat Act, has declared that the provision of Right of Prior Purchase Act which entitles a person to claim prior right on the basis of kinship is against the injunctions of Islam. The learned counsel referred to the un-reported judgment of the High Court titled Muhammad Jamil Niazi v. Nazar Hussain and another decided on 24.1.1991. This Court has had an occasion to examine a similar contention raised in another case and has rejected the plea on account of the dear position that a simple declaration by the High Court which is not followed by an amendment does not repeal or invalidate the relevant provision of law which has been found against the injunctions of Islam. However, since I have otherwise decided to reject the appeal it is not necessary to decide this point in the present case. In light of the proved facts of the case and the state of law as discussed ;£i|above, I hold that the appellant had clearly .waived his right to sue for prelemption. I, therefore, dismiss the appeal with costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC (AJK) 74 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 74 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ and basharat ahmad shaikh, J NISAR AHMAD KIYANI-Appellant versus AJ.K. GOVERNMENT, THROUGH CHIEF SECRETARY and another- Respondents Civil Appeal No. 10 of 1990, dismissed on 17.6.1992. [On appeal from judgment of Service Tribunal, dated 30.1.1990, passed in Service Appeal No. 19/224 of 1988] (i) Azad Jammu & Kashmir Civil Servants (Efficiency '& Discipline) Rules, 1977- —R. 7-A-Government servant-Compulsory retirement of~Challenge to— Contention that it was incumbent upon authorised officer to provide a copy of inquiry report, serve upon appellant a fresh charge-sheet, get his explanation and forward said material to Authority-Bare reading of Rule 7-A shows that it does not postulate procedure suggested by appellant—Held: Rule 7-A does not envisage procedure as suggested by learned counsel for appellant and his argument has no merits-Held further: Evidence shows that fictitious bank account was opened in name of contractor by appellant, supply orders were fictitious and in fact money was misappropriated and embezzled by appellant-­ Appeal dismissed. [Pp.81,83&84]E,F&G PLJ 1981 SC 545, PLJ 1982 SC 519, 1983 PLC (CS) 266, PLD 1980 SC 279, and 1984 PLC (CS) 1382 not followed. (ii) Bias- —Government servant-Compulsory retirement of-Challenge to~Contention that Authorised Officer remained associated with Vigilance Commission as Member, therefore he was debarred from acting as Authorised Officer hi this case-Scheme of Azad Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, leaves no room for argument that in this case, Authorised Officer would be either deemed biased or sitting as a judge in his own 6iuse--Held: Unless and until it is shown that accused appellant was prejudiced, proceedings cannot be regarded to have vitiated. [Pp.78&80]B&C PLD 1964 Lah. 743, PLD 1970 Lah. 811, PLD 1967 Lah. 1251, 1989 CLC 905, 1986 PLC (CS) 176 & 1984 PLC (CS) 592 ref. » (iii) Compulsory Retirement- —Government servant-Compulsory retirement of—Challenge to-Contention that appellant was not provided opportunity to cross-examine witnesses produced at inquiry stage-Perusal of memorandum of appeal indicates that this ground was not specifically taken in appeal before Service Tribunal-Had appellant been denied'Opportunity of cross-examination, he would have clearly stated so in memo of appeal-Held: Mere fact that inquiry officer did not record that an opportunity of cross-examination was given to appellant, would not prove that in fact no such opportunity was given to appellant. [Pp.80&81]D AIR 1964 SC 719, AIR 1963 SC 375 and AIR 1970 SC 2086 not applicable. (iv) Inquiry— —Government servant- Compulsory retirement of—Challenge to-Contention that inquiry officer was not occupying post or grade higher than that of appellant—Malik Muhammad Iqbal, Inquiry Officer was Superintending Engineer and was functioning as Electrical Inspector while appellant was only an Executive Engineer at relevant time-Thus appellant could not be regarded as equal in status quo Inquiry Officer-Held: Contention that inquiry having been conducted by a person who was not competent to act as such, is not tenable. [P.78JA PLD 1964 Lahore 264 ref. Raja Muhammad Hanif KJian, Advocate for Appellant. Sardar Muhammad Sadiq Klian, Additional A.G. for Respondents. Date of hearing: 9.6.1992. judgment Sardar Said Muhammad Khan, C J.--This appeal has been directed against the judgment of the Service Tribunal dated 31.1.1990, whereby the appeal filed by the appellant, herein, was dismissed by the Service Tribunal. Brief facts of the case -are that the appellant was serving as Executive Engineer in the Electricity Department when, on the basis of report of a Vigilance Commission set up by the Government, he was placed under suspension along with some of his staff members for misappropriating the Government money and, thus, committing gross misconduct; he was charge-sheeted and an inquiry was conducted by Malik Muhammad Iqbal, Superintending Engineer, who was posted as Electrical Inspector at the relevant time. On the basis of the inquiry report the appellant was found guilty of committing misconduct and consequently he was awarded punishment of compulsory retirement from the service. Previously the appellant had filed an appeal before the Service Tribunal but the same was dismissed. Consequently, an appeal was preferred to this Court which was accepted on a technical ground and the case was remanded back to the Service Tribunal to decide the appeal afresh according to law. The Service Tribunal again dismissed the appeal of the appellant herein. It is against the second dismissal of the appeal of the appellant by the Service Tribunal that the present appeal has been preferred. We have heard the arguments and perused the file. It has been contended by Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, that Malik Muhammad Iqbal, who conducted the inquiry of the appellant, was not ""senior in rank' to the appellant when he was appointed as such and, therefore, the inquiry is violative of rule 6(5) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. He has contended that the appellant was promoted as Superintending Engineer/Executive Engineer as early as on 5.7.1976; he has referred to an order by which the appellant was promoted and appointed as Executive Engineer/Superintending Engineer in place of Muhammad Azad Khan on 5.1.1976. The learned counsel has also relied upon the order dated 10.8.1976, which forms Annexure 'A' to the petition, whereby the appellant was posted as Superintending Engineer/Executive Engineer, Muzaffarabad, and was assigned the duties to install new lines and maintenance of old electricity lines. He has also argued that vide order dated 2.8.1984, an additional post was created in NPS-19 and the appellant was paid his pay as Superintending Engineer/Executive Engineer from 5.6.1976 to 27.2.1980 against the said post. The stand taken by the Government on the above reflected point in the written statement is that the appellant was never permanently promoted as Superintending Engineer in NPS-19. He had been only temporarily holding the charge. It has been further contended by the counsel for the respondents that when the appellant was suspended vide order dated 9.6.1982, the copy of which is at page 66 of the file, the appellant was holding the post of Executive Engineer and not of Superintending Engineer as is evident from the said order. It may be stated here that previous to the suspension in the instant case, the appellant was also suspended for some criminal charges. Thus, the question which needs to be resolved is that irrespective of the fact whether the promotion of the appellant as Superintending Engineer was temporary or permanent, we have to see as to whether when Malik Muhammald Iqbal, Superintending Engineer, was appointed as Inquiry Officer, the appellant was performing the duties as Executive Engineer or Superintending Engineer. The order of the suspension dated 9.6.1982, the copy of which is at page 66 of the file, shows that the appellant was suspended when he was performing the duties as Executive Engineer and not as Superintending Engineer. Besides, the order whereby Malik Muhammad Iqbal was appointed as Inquiry Officer clearly records that he was appointed as Inquiry Officer in the case against the appellant who was described to be functioning as Executive Engineer in the Electricity Department; it was not recorded in the said order that the appellant was Superintending Engineer. It may also be stated that vide order dated 27.2.1980, the appellant who had been suspended was re-instated 'on his post' as Executive Engineer. It is also mentioned in the said order that he would be adjusted as an Executive Engineer when the post is created in the Department. By the aforesaid order, his posting as acting Executive Engineer, Mirpur, was suspended. Moreover, the charge-sheet which was served upon the appellant in the instant case also records the appellant as Executive Engineer, Kotli Division; the appellant submitted a detailed explanation to the charge-sheet but nowhere stated that he was Superintending Engineer and not the Executive Engineer. It is clear from what has been stated above that in the year 1980, when the appellant was re-instated from his suspension, he was re-instated as Executive Engineer and not as Superintending Engineer. Mere fact that he was given pay of NPS-19 from 5.6.1976 to 27.2.1980, vide order dated 2.8.1984 against a specially created post, would not prove the fact that the appellant was Superintending Engineer on 26.6.1982 when Malik Muhammad Iqbal, Superintending Engineer, was appointed as his Inquiry Officer because even pay of NPS-19 against specially created post was given only upto 27.2.1980. Even if it is assumed for the sake of argument that the order dated 2.8.1984 would imply that the appellant was restored to his original status of Superintending Engineer/Executive Engineer in August, 1984, that would not invalidate the appointment of Malik Muhammad Iqbal as Inquiry Officer which was made on 26.6.1982 because the retrospectivity of the said order, if at all it is assumed that it was given retrospective effect, would not render anything already done as invalid or illegal. The learned counsel for the appellant has referred to a case reported as Mian Muhammad Hayat, Superintending Engineer v. Government of West Pakistan (PLD 1964 Lah. 264), wherein it has been held that the Inquiry Officer must be occupying a post or grade higher than that of accused officer; and that the seniority and rank are to be determined with reference to salary and position or warrant of precedent in a case of inquiry under the relevant provisions of the rules. We have no quarrel with the principle laid down in the aforesaid case but we find that at the relevant time Malik Muhammad Iqbal, the Inquiry Officer, was Superintending Engineer and was functioning as Electrical Inspector, whereas the appellant was only an Executive Engineer. Thus, he could not be regarded as equal in status qua Malik Iqbal, the Inquiry Officer. Therefore, the contention of the learned counsel for the appellant that the inquiry having been conducted by a person who was not competent to act as such, is not tenable and is hereby repelled. jNext, it has been argued by the learned counsel for the appellant that Muhammad Yusuf Awan, who acted as 'Authorised Officer' in the mstant case, remained associated with the Vigilance Commission as member, therefore, he was debarred from acting as 'Authorised Officer' in the case. The learned counsel has relied on the following authorities in support of his contention:- In Mian Muhammad Abdullah v. The Road Transport Corporation, Lahore (PLD 1964 Lah. 743), it was held that the Inquiry Officer having formed an opinion against the employee in the meeting of the Corporation as Inquiry Officer, was disqualified from attending the meeting of Road Transport Corporation to consider his case, because he had already given his opinion while submitting the inquiry report. In case reported as Major Muhammad Nawaz v. Pakistan (PLD 1970 Lah. 811), it was held that the order was passed by the competent authority on the basis of inquiry held by an officer who was biased; because the concerned officer against whom the inquiry was held had protested against the appointment of the Inquiry Officer but this fact was not brought into the notice of the competent authority. In these circumstances the report was held as violative of natural justice and, thus, the order of the competent authority was held to have been vitiated. In Dr. Abdul Hafeez . Chairman, Municipal Corporation, Lahore (P.L.D. 1967 Lah. 1251), it was held that the Members who submitted the report as a Review Committee could not attend the meeting of the Municipal Committee to consider the report of the Review Committee because their participation in the subsequent meeting of the Municipal Committee would violate the principle that 'no one should be a Judge in his own cause'. In Azad Government of the State of Jammu and Kashmir v. Muhammad Akram Shah (1989 C.L.C. 905), it was observed that under rule 2(3) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, the authority or authorised officer when personally interested in the result of proceedings, would be debarred from acting as such. It was observed that the cases in which the authorised officer can be regarded personally interested in the proceedings may be numerous and each case is to be decided in view of its peculiar circumstances. It was held that as the concerned civil servant had brought into the notice of the Commission that the promotion of the concerned civil servant, who acted as 'authorised officer' was not according to the rules, the possibility that 'authorised officer entertained bias against the concerned civil servant cannot be excluded and, thus, he should not have acted as authorised officer in the case. 14. In S. SaadatAli Shah v. Inspector General of Prisons, Punjab [1986 PLC (CS) 176], the officer who conducted the preliminary inquiry subsequently also acted as authority and imposed penalty. The objection that the officer who had held the preliminary inquiry should not have acted as 'authority" in the circumstances of the case, was upheld and proceedings were declared to have vitiated. In Muhammad Shabbir v. Executive Engineer, Hafizabad Division (E), WAPDA [1984 PLC (CS) 592], it was held that the mere fact that the competent authority, the Chief Justice in the case, decided the matter in the meeting of the Judges would not vitiate the proceedings, as it has not been shown that any prejudice was caused to the concerned civil servant. However, it was observed that the procedure envisaged hi rule 5(1) and (iii) should not have been combined and mixed so as to avoid any confusion. In Akram Shah's case, referred to above, it was held by this Court that under rule 2(3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules only a person who is 'personally interested' in the result of proceedings is debarred from acting as an 'authorised officer'. It was observed in the aforesaid case as to when an 'authorised officer' or 'authority" would be regarded as 'personally interested' is to be decided in view of the facts and circumstances of each case. The cases cited by the learned counsel for the appellant are distinguishable and some of them do not arise out of the proceedings under the Civil Servants (Efficiency and Discipline) Rules, 1977. Thus, those cases are irrelevant and are not applicable to the facts of the case in hand. In the instant case, rule 2(3) of the Efficiency and Discipline Rules clearly lays down as to when an authorised officer is debarred to act as such; it envisages that he would be so debarred only if he is 'personally interested" in the result of the proceedings. In the instant case it cannot be said by any stretch of imagination that Muhammad Yusuf Awan, who acted as an 'authorised officer', was debarred to act as an 'authorised officer' merely because he was a member of Vigilance Commission which reported the matter of the accused and others to the Government. It may be stated here that under rule 5 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, 'authority" on the basis of its own knowledge or information, has to form the opinion as to whether there are sufficient grounds for proceeding against a civil servant and if it comes to the conclusion that there is sufficient material for proceeding, it shall direct the 'authorised officer' to proceed against such a civil servant. After inquiry, the matter may be referred by the 'authorised officer' to the 'authority" under rule 8 of the said Rules for imposing the penalty and it may pass a major penalty under the rules. In that case it cannot be said that as initially the matter was referred by the 'authority" to the 'authorised officer', after its satisfaction that there was sufficient material against the civil servant concerned, it was debarred from acting as 'authority,. If the 'authority' is not debarred from acting as such, despite ordering the initial proceedings against an officer, how can an 'authorised officer' be debarred to act as such only because he was associated with the Vigilance Commission as member. In such a case it cannot be said that he would be personally interested in the result of the proceedings or would be biased against the officer concerned. The scheme of Civil Servants (Efficiency and Discipline) Rules, 1977, leaves no room for the argument that in the instant case the 'authorised officer' would be either deemed to be biased or he would be deemed to be a person sitting as a Judge in his Own cause. It may also be observed that the authorised officer did not hold inquiry himself; rather it was held, by an officer £ appointed by the authorised officer and even after the completion of the inquiry, the case was referred to the 'authority' which was not bound by the view taken by the authorised officer; the authority has to pass appropriate order independently on the merits of the case. Thus, even if it is assumed for the sake of argument that it was not proper for the authorised officer to act as such in the instant case, until and unless it is shown that the accused-appellant was prejudiced, the proceedings cannot be regarded to have vitiated. It is well settled principle of law that if there is an irregularity which does not cause arty prejudice to the accused person, it would not vitiate the proceedings taken in the case. In Akram Shah's case, referred to above, the proceedings were set aside because there was clear presumption of bias in the mind of the 'authorised officer' against the accused; in that case the accused civil servant had reported to Commission against the concerned authorised officer that his promotion was against law. The accused civil servant had raised the objection before the authorised officer that he should not act as such but despite that he acted as an authorised officer; besides, it was he who had complained against the accused to the authority. Next, it has been argued by the learned counsel for the appellant that the appellant was not provided an opportunity to cross-examine some of the witnesses produced at the inquiry stage, especially Sultan Rome and Javed Akhtar According to the learned counsel for the appellant, the witnesses on whom the cross-examination was permitted, it is clearly recorded so but in the case of aforesaid two witnesses, it is not recorded that the appellant was given the opportunity of cross-examination of the witnesses. It may be stated that the perusal of the memorandum of appeal filed in the Service Tribunal would indicate that this ground had not been specifically taken in the memorandum of appeal filed in the Service Tribunal that the appellant was not allowed to cross-examine the aforesaid two witnesses. The perusal of the said memorandum of appeal would reveal that it is so detailed that even objection that the statements of the witnesses were recorded in presence of one another in violation of law was also raised. Had the appellant been denied the opportunity of cross-examination of the said witnesses, he would have clearly stated so. The mere fact that the inquiry officer did not record that an 'opportunity of cross-examination was given to the appellant would not prove that in fact no such opportunity was given to the appellant. The learned counsel has cited M/s, khardah and Co. Ltd. v. The Workmen (A.I.R. 1964 S.C. 719), State of Mysore v. Shivabasappa Shivappa Makapur (A.I.R. 1963 S.C. 375) and The State of Punjab v. Dewan Chuni Lai (A.I.R. 1970 S.C. 2086) on the point, wherein it was held that the inquiry should be held in presence of the accused person or if the evidence was recorded in his absence, he should be given an opportunity to cross-examine the witnesses. We have no quarrel with the view taken in those cases, but as in the instant case, it has been factually found to be incorrect that the appellant was refused the opportunity to cross-examine the aforesaid two witnesses, the said authorities do not help the i case of the appellant. Next, the learned counsel for the appellant has argued that under rule 7-A'of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, it was incumbent upon the authorised officer to provide a copy of the inquiry report, serve upon him fresh charge-sheet, get his explanation to the same and also forward the said material to the 'authority'. In other words, according to the learned counsel for the appellant, after receiving the report of the inquiry officer, not only a copy of the findings against the appellant as a result of the inquiry should have been provided to the accused but a fresh charge-sheet should have been served upon the accused-appellant and an explanation ought to have been obtained from him; the said material should have been also transmitted to the 'authority. The learned counsel has cited Che following authorities in support of his contention: In Syed Mir Muhammad v. N.W.F.P. Government (P.LJ. 1981 S.C. 545), it was held that failure to spell out allegations forming basis of charge, if does not cause any prejudice to the accused, would not vitiate the action. However, non-compliance of rules 5 and 6 of the N.W.F.P. Government Servants (E&D) Rules, 1973, whereby the copy of the report of the Inquiry Officer and show cause notice to explain the action which was proposed to be taken against the concerned civil servant, would vitiate the inquiry. In case reported as Federation of Pakistan v. Abdul Razzaq (P.LJ. 1982 S.C. 519), it was observed that the Inquiry Officer, after holding the inquiry, should have provided a copy of the report to the respondent as was held in case reported as S>'ed Mir Muhammad v. N.W.F.P. Government (P.LJ. 1981 S.C.545). As it had not been done, the Service Tribunal was held justified to accept the appeal of the concerned civil servant. In Qi. Munawar Hussain Bhatti v. Pakistan Water and Power Development Authority [1983 P.L.C. (CS ) 266], the principle laid down in Syed Mir Muhammad's case (PLJ 1981 S.C. 545), was not followed and, thus, the appeal filed by the aggrieved civil servant was accepted. In case reported as Sohrab KJian Kalwar v. Secretary to the Government of Sindh, Department of Food (P.L.D. 1980 S.C. 279), it was held that under rule 5 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the appellant had been given a choice for personal hearing and as such an opportunity of personal hearing should not have been denied to a civil servant without sufficient cause. Consequently, the removal of the civil servant concerned was set aside. In case reported as M, Humayun Zaheer v. Chief Director, Central Directorate of National Savings [1984 P.L.C. (C.S.) 1382], the non-compliance of rule 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973, by not communicating the findings of the inquiry report and failure to show cause notice were held fatal to the inquiry and, thus, the proceedings were quashed. It may be stated that the aforesaid authorities are based on the basic authority of the Supreme Court of Pakistan reported as Syed Mir Muhammad v. N.W.F.P. Government (P.L.J. 1981 S.C. 545), referred to above. The aforesaid authority was considered by this Court in an unreported case entitled (Shams Din Shah v. Azad Government and others (Civil Appeal No. 56 of 1990 decided on 16.5.1992) and it was opined that rule 7-A of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, as is in force in Azad Kashmir, does not visualise to furnish a copy of the findings of the inquiry officer to the accused and serve upon him a fresh charge-sheet so as to obtain his explanation. Consequently, the objection was overruled. While dealing with the point, it was observed as under:- "It may be seen that it is the list of material which comes into existence before the Authorised Officer applies his mind to the question whether the charge has been proved. First in the list is the charge-sheet. This is a reference to charge which is served on the accused under sub-rule (6) of rule 6. Second is statement of allegations which is served on the accused under the same sub-rule. Then comes the explanation of the accused. Its cross-reference is found in sub-rule (6) of rule 6. Similarly the finding of the Inquiry Officer clearly refers to sub-rule (6) of rule 7. In view of the fact that other matters to which reference is made in rule 7-A are those about which provision is made in preceding rules it does not seem possible to hold that .the explanation of the accused referred to in this rule is not the one which was filed earlier but is a fresh explanation. It may be noticed that wherever in the Rules a right or liability is created a specific provision to that effect is clearly made and not by indirect or implied method as is being argued by the learned counsel for the appellant. It is also important to note that rule 7-A speaks of 'explanation' of the accused and not 'explanations'. If the explanation mentioned in rule 7-A is another explanation then what about the explanation already filed by the accused in sub-rule (6) of rule 6? It cannot be the intention that previous explanation will be removed from the record and the second explanation will be considered. It may also be seen that sub-rule (2) of rule 7 provides that if the accused fails to furnish his explanation which he is required to do under sub-rule (6) of rule 6, the Inquiry Officer shall proceed with the inquiry but no such provision is made in rule 7-A. If the argument of the learned counsel is accepted then if the accused does not file explanation under the said rule there will be no power left with the Authorised Officer to proceed further against him. Keeping all these factors in view we are unable to accept the interpretation that the explanation of the accused mentioned in rule 7-A is a new or fresh explanation distinct from the explanation referred to in sub-rule (6) of rule 6. Having reached this conclusion making available of the report of the Inquiry Officer to the appellant becomes purposeless." To elucidate the matter further, rule 7-A is reproduced as below: - "The Authorised Officer, on receipt of the report of the Inquiry Officer or Inquiry Committee, shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall after affording the accused an opportunity of showing cause against the action proposed pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge sheet, a statement of allegations served on the accused, explanation of the accused, the finding of the Inquiry Officer or the Inquiry Committee, as the case may be, and his own recommendations regarding the penlty to be imposed. In case it is proposed to drop the proceedings, the authorised officer shall submit the case with all relevant material/documents to the Authority for appropriate orders." The bare reading of rule 7-A shows that it does not postulate the procedure suggested by the learned counsel for the appellant, i.e., that the accused-appellant should have been provided a copy of the inquiry report and a fresh charge-sheet should have been served upon the accused so as to obtain his explanation afresh; this material should also be sent to the 'authority 1 . We see no reason to depart from the view taken in Shams Din's case, referred to above, and we hold that as rule 7-A does not envisage the procedure as suggested by the learned counsel for the appellant and, thus, his argument has no merits. Lastly, it has been contended by the learned counsel for the appellant that the Service Tribunal has not laken into consideration the copy of letter which is Annexure 'C to the appeal of Nisar Kiyani. It is a letter written by the Executive Engineer, Kotli Division, in reply to letter written by the authorised officer appointed in this case. What were the contents of the letter written by the authorised officer are not on the record but a copy of another letter is placed on the record which is purported to have been also written by the Executive Engineer, Kotii, on 5.3.1983 in-reply to certain queries which were made from him by the authorised officer regarding the supply of items by Sultan Rome, Contractor. In that letter it is clearly recorded by the Executive Engineer that it was not possible to say as to whether the items mentioned in the letter written by the authorised officer were supplied by Sultan Rome or not because at various times such items were purchased which were used for completion of various works. Evidently, contrary to the letter dated 5.3.1983, the letter referred to by the learned counsel for the appellant dated 30.3.1983 records that different items of articles (goods) which were received against the vouchers were entered into the stock register and the same had been used for carrying out different works. The letter does not show as to about which inquiry the queries were made because the reply letter states 'Inquiry against Electricity Department'. Even if it is assumed for the sake of argument that the letter dated 30.3.1983 pertains to the charges against the accused-appellant, that does not necessarily mean that the items which are alleged to have been supplied by Sultan Rome were in fact supplied and were received by the appellant for carrying out the departmental works, especially so when the said letter is contradictory to the letter dated 5.3.1983 placed on the record. Even otherwise, the said letters were not admissible in evidence without proving the same by producing their writers and without providing an opportunity to the opposite party for cross-examination. Hence the contention that the aforesaid letter disproves the charges against the appellant is not tenable and is hereby rejected. No other point was urged for assailing the findings of the Service Tribunal against the appellant. However, we, for our own satisfaction, have gone through the evidence and have come to the conclusion that fictitious bank account was opened in the name of Sultan Rome, Contractor, by the appellant under No. 158; that the supply orders to Sultan Rome, Contractor, were fictitious and fake; in fact the money was misappropriated and embezzled by the appellant with the connivance of some other employees of the department. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC (AJK) 85 [Appellate Jurisdiction] PLJ 1992 SC (AJK) 85 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN CJ, AND BASHARAT AHMAD SHAIKH, J Mst. JHALI and 6 others-Appellants versus LAL KHAN and another-Respondents Civi! Appeal No. 81 of 1991, dismissed on 8.8.1992 [On appeal from judgment and decree of High Court, dated 8.5.1991, passed in Civil Appeal No. 71 of 1990] Appeal— —Suit under Section 9 of Specific Relief Act—Dismissal of—Appeal against— Whether appeal was competent-Question of--It is clear that Sub-Judge was in total misconception about what he was required to decide in a suit under Section 9 of Specific Relief Act-He was required to attend to question whether plaintiffs had been dispossessed from suit land within six months prior to filing of suit and if finding was in affirmative, he was bound to put plaintiffs back in possession—Suit was not based on title and revision petition lay against order of dismissal of suit-There is no misreading or non-reading of evidence- Held: Learned Sub-Judge and District Judge did not apply their minds to factual aspect, and case could have been remanded by High Court, but dismissal of suit having not been challenged before High Court in revision petition, plaintiffs, were not entitled to any relief in second appeal before High Court-Appeal dismissed. [Pp.86,87&88]A&B Ch. Muhammad Sharif Tariq, Advocate for Appellants. Raja Muhammad Siddique Klian, Advocate for Respondents. Date of hearing: 30.5.1992 judgment Basharat Ahmad Snaikli, J.-This is an appeal, by leave of the Court, from the judgment of the learned single Judge of the High Court recorded on 8.5.1991 whereby second appeal filed by the present appellants was dismissed with costs. The relevant facts are that Muhammad Sharif, who is now represented by his widow Mst. Jhali and his two sons, Gulfraz and Muhammad Fiaz, as well as his five brothers, Khan Muhammad, Kala, Muhammad Akbar and Kaka, filed a suit for possession under Section 9 of the Specific Relief Act against Lai Khan, the respondent before us, in the Court of Sub-Judge Sehnsa on 2nd of August, 1982. It was averred in the plaint that land measuring 11 kanals 1 marla under survey No. 431/2 situate in village Pehyai was in possession of the plaintiffs since long. It was claimed that the plaintiffs were co-sharers with defendant Lai Khan. It was alleged that defendant Lai Khan forcibly dispossessed the plaintiffs from land measuring 7 kanals out of survey No. 431/2 mentioned above. These averments were controverted by Lai Khan in his written statement. The suit was dismissed on 30th of December, 1984. Appeals taken to the learned District Judge and subsequently to the High Court also failed. The High Court has found that the suit filed in the Court of Sub-Judge Sehnsa was a suit under Section 9 of the Specific Relief Act. It was held that since no appeal lies from any order or decree passed in a suit instituted under Section 9 mentioned above, the appeal filed by the present appellants before the District Judge against the dismissal of the suit was not competent. It was observed that a revision petition was competent but the unsuccessful plaintiffs had not filed a revision petition in the High Court to challenge the dismissal of the suit. The High Court then proceeded to hold that the plaintiffs had failed to prove that the suit had been filed within six months of the alleged dispossession. The main point urged on behalf of the present appellants in the petition for leave to appeal was that the suit was not in fact merely under Section 9 of the Specific Relief Act but was also based on title and possession could have been given by the Court even after holding that the suit had not been filed within the stipulated poi'od of si:: months. Leave was granted in the case mainly to consider this contention. The learned counsel for the appellants, Ch. Muhammad Sharif Tariq, took us through the judgment of the learned Sub-Judge in order to prove that the suit had been decided as a suit for possession based on title and not as a suit under Section 9 of the Specific Relief Act. We find that the manner in which the case has been dealt with by the learned Sub-Judge does leave scope for such an argument. It was observed by the learned Sub-Judge that the land in dispute was Shamlat land and it appeared from the documentary as well as oral evidence that the defendants were in possession of 7 kanals of land from the year 1982 while before 1981 the whole land under the relevant survey number measuring 11 kanals and one marla was in possession of the plaintiffs. He further observed that the plaintiffs did not prove as to how much land they were entitled to retain in possession in accordance with their share in the shamlat. It is clear that the learned Sub-Judge was in total misconception about what he was required to decide in a suit under Section 9 of the Specific Relief Act. What he was required to do was to attend to the question whether the plaintiffs had been dispossessed from any land within six months prior to the filing of the suit and if the finding was in affirmative he was bound under law to put the plaintiffs back in possession A notwithstanding any title that may be set up in such a suit. When the issues were framed in the case the learned Sub-Judge clearly conformed to the requirements of a suit under Section 9 mentioned above. Out of five issues framed by the Court none related to title. Issue No. 1 was to the following effect: "whether the suit land is in possession of the plaintiff." Issue No. 2 was:"whether the defendant forcibly dispossessed the plaintiffs from the suit land in May 1982 and thus the plaintiffs were entitled to recover the possession." In light of these issues the parties led evidence. A perusal of the evidence led by the parties also clearly shows that the parties led evidence only in relation to the issues framed and they conformed to the requirements of Section 9 of the Specific Relief Act. Now the question is whether Ch. Muhammad Sharif Tariq is right in submitting that the suit had been treated as a suit based on title and, therefore, an appeal was competent to the learned District Judge. We do not find any force in this contention.The plain reading shows that the suit was a suit under Section 9 of the Specific Relief Act. Issues had also been framed in accordance with the requirements of that suit and the parties had led the evidence accordingly. When the learned Sub-Judge attended to the question of title his approach was clearly against law but the illegality committed by the learned Sub-Judge while disposing of the suit would not change the nature of the suit. If wrong approach of the learned Sub-Judge can change the nature of the suit the party which led the evidence in light of the issues framed by the Court would be badly prejudiced and would suffer on account of the fact that they were never conscious at the time of leading of evidence that ultimately the suit would be treated as suit based on title. Therefore, we hold that the suit was a suit under Section 9 of the Specific Relief Act and was not based on title. Consequently it should have been decided as such. In our view the unsuccessful party, namely, the present appellants should have taken the matter to the higher forum to get rectification of the illegality committed by the learned Sub-Judge. The proper forum in the present case was the High Court where a revision petition could be filed. The appellants filed an appeal with the District Judge. Since the appeal did not lie the appellants placed themselves in a position where no Court is able to help them, even if they have a good case on merits. It has pained us to see that not only the learned Sub-Judge but also the learned District Judge treated the suit as one based on title and failed to apply his mind not only to the requirements of such suit but also to the issues framed in the case while finally deciding the appeal. However, that does not change the legal position. The remedies of appeal and revision have been provided by law for the precise purpose of getting wrong decisions vacated. We may also take into consideration the fact that the learned Judge in the High Court has very rightly observed that if a party fails in a suit under Section 9 of the Specific Relief Act he still has an alternate remedy of a regular suit for possession on the basis of title. If we hold that the present case was one based on possession then that would amount to depriving the present appellants from the remedy which is available to them. Even otherwise the learned Judge in the High Court has found that the appellantls failed to prove that they had been dispossessed within six months. We have not been able to find any misreading or non-reading of evidence on this point. We do observe that so far as the learned Sub-Judge and the learned District Judge were concerned they did not apply their minds to this factual aspect and no finding was recorded by them on this point. Normally in such a situation the case could have been remanded by the High Court but, as already noticed, the dismissal of the suit was not challenged by the present appellants by filing a revision petition in the High Court. Therefore, they were not entitled to any relief in .the second appeal before the High Court. For the aforesaid reasons the appeal is dismissed with no order as to the costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC(AJK) 88 PLJ 1992 SC(AJK) 88 [Appellate Jurisdiction] Present: sardar said muhammad khan CJ and basharat ahmad shaikh, J MUHAMMAD MEHRBAN-Appellant versus SADDAR DIN and another-Respondents Civil Appeal No.25 of 1992, accepted on 27.6.1992 (approved for reporting on 9.8.1992). [On appeal from judgment of High Court, dated 25.1.1992, in C.R. No.27 of 1991.] Consolidation-- —First suit at stage of arguments-Second suit filed—Consolidation of both suits-Whether Consolidation of suits was legally justified and conducive to interest of justice-Question of-Trial of suit for possession filed by appellant, had already been completed when cross suit was filed by respondent-­ Substantial issues were same except for an additional issue regarding jurisdiction of Court-Both Courts below have omitted to consider mandatory provisions of Section 10 of CPC whereunder it is mandatory to stay trial of subsequent suit—Held: It cannot be said that it was conducive to interest of justice to consolidate suits and with-hold decision in former suit- Consolidation set aside in exercise of powers under Section 42-A of Interim Constitution, 1974 and rules 4 & 5 of Order XLIII of AJK Supreme Court Rules, 1978-Appeal accepted. [Pp.91 &92]A,B,C&D PLJ 1985 Lahore 216 and PLJ 1981 Lahore 141 ref. Mr. Nazir Ahmad Ghouri, Advocate for Appellant. Ch. Lai Hussain, Advocate for Respondents. Date of hearing: 22.6.1992. judgment Sardar Said Muhammad Khan, CJ.-This appeal has been directed against the judgment of the High Court dated 25.1.1992, whereby the revision petition filed by Saddar Din, respondent, was accepted and the order of Sub-Judge dated 2.9.1991 was set aside. The facts giving rise to the present appeal are that a suit for possession of plot No.321, measuring 10 marlas, situate in Dudyal Hamlet, was filed by Muhammad Mehrban, appellant herein, in the Court of Sub-Judge, Dudyal, on 21.3.1987. After recording the evidence of the parties, the case was fixed for arguments on 6.4.1989. Somehow or the other, the arguments could not be heard in the case and several adjournments were given by the Court. Saddar Din, defendant-respondent, filed a cross suit on 14.3.1990 against Muhammad Mehrban, appellant herein, alleging that he had purchased 10 marlas of land out of plot No.321, in Dudyal Hamlet, through an oral transaction and had constructed a house over the same costing Rs.2,00,000/- (Rupees two lacs); in alternative he also prayed for declaration that his adverse possession over the plot had ripened into ownership. After the written statement filed in the case by the appellant herein, the trial Court, vide interim order dated 9.9.1990, instead of hearing arguments in the suit filed by Muhammad Mehrban, appellant, ordered to .keep ihe decision in the former suit pending on the ground that a cross suit had been filed by Saddar Din, respondenl. On 12.11.1990, the learned Sub-Jude passed order whereby he consolidated both the suits and directed that the proceedings shall continue in the suit entitled Muhammad Mehrban v. Saddar Din; on 2.9.1991, the trial Court passed an order stating that the evidence of the parties had already been recorded in the suit filed by Muhammad Mehrban and the additional issues do not arise due to the institution of the suit by Saddar Din, except that of jurisdiction of the Court to try the same. Consequently, the learned Sub-Judge framed an additional issue in terms as to whether the Court had the jurisdiction to try the subsequent suit. It was also recorded by the trial Court in -its interim order that Saddar Din, respondent, did not want to lead any evidence on the additional issue framed. Consequently, the trial Court fixed the suits for arguments but meanwhile a revision petition was filed by Saddar Din, respondent, in the High Court praying that he should be given an opportunity to adduce evidence on the additional issue, i.e., regarding the jurisdictional competence of the Court. The stand taken in the revision petition was that irrespective of the order of the trial Court that Saddar Din, respondent, did not intend to lead evidence, he was entitled to an opportunity to lead evidence on the additional issue. The learned single Judge in the High Court came to the conclusion that despite consolidation of the suits, the respondents were entitled to lead evidence on the additional issue. Muhammad Mehrban, appellant herein, assails the order of the High Court on the ground that as the issue regarding the jurisdictional value of the house was also subject-matter of the former suit, no further evidence was necessary, especially so when the respondent had declined to lead any evidence. We have heard the arguments and perused the record. 11 has been contended by Mr. Nazir Ahmad Ghouri, Advocate, the learned counsel for the appellant, that the trial Court should have heard the arguments in the suits because the respondent, Saddar Din, did not want to lead any evidence on the additional issue and even otherwise the issue regarding jurisdictional value of the property in dispute was also subject-matter in the former suit wherein the evidence had already been recorded. According to the learned counsel for the appellant, the High Court was not justified in passing the impugned order to the effect that the respondent-plaintiff should have been provided an opportunity to lead evidence on the additional issue framed by the trial Court. He has cited some authorities purporting to be supportive of his contention. In Muhammad Saleem v. Haflz Ahmad Din (P.L.D. 1975 Lah. 425), it was held that the issue of law regarding the territorial jurisdiction of the Court should be decided as a preliminary issue and the Court was not justified in refusing to decide the issue of law as a preliminary issue. In Muhammad Nasantllah v. Muhammad Ayaz KJian (P.L.D. 1975 Lah. 886), it was opined that the issues regarding the jurisdiction and the court fee should have been treated as preliminary issues and decided first but omission to do so was merely an irregularity which would not vitiate the trial. In case reported as T. Ganapathia Pillai . N. Somasundaram Filial (A.I.R. 1950 Madras 213), it was observed that under Order XIV, Rule 2, C.P.C., the Court has discretion to decide a mixed issue involving the question of law and fact as a preliminary issue. In Sowkabai Pandharinath v. Tukojirai Holkar (A.I.R. 1932 Bombay 128), it was held that under Order XIV, Rule 2, C.P.C., a preliminary issue cannot be framed on the question of fact. However, if one or more issues have been framed, the Court is legally competent to decide the same as preliminary issues, postponing the decision on the remaining issues. . It is evident that the authorities cited by the learned counsel for the appellant do not deal with the question involved in the present case. As has already been pointed out, in the instant case the question which needs consideration is as to whether the plaintiff-respondent was entitled to an opportunity to lead evidence on the additional issue or not. Ch. Lai Hussain, the learned counsel for the respondents, has contended that the trial Court was justified in consolidating both the suits; and that the plaintiffrespondent has a right to lead evidence on the additional issue framed. He has argued that the plaintiff cannot be deprived of an opportunity to lead evidence on additional issue merely because the suits had been consolidated by the trial Court. The learned counsel has referred to the following authorities in support of his proposition:— In case reported as Msl. Hafizan v. Muhammad Yasin (P.L.J. 1985 Lah. 276), it was held tha it is settled principle of law that the Court has inherent power to consolidate two suits together and recast the issues. It was opined that as the cross suits pertained to dissolution of marriage and for the restitution of conjugal rights, the same were rightly consolidated and issues were recast. In case reported as Pakistan through General Manager PAFI, Lahore v. M/s. Agro Marketing Corpn. (P.L.J. 1981 Lah. 141), it was observed that it is well settled principle of law in view of long chain of authorities that consolidation of the suits can be ordered by the Court in exercise of its inherent jurisdiction in proper cases and it is not necessary that the parties should give consent to such consolidation. The Court also expressed the view that the purpose of consolidation was to avoid multiplicity of the litigation and to avoid the contradictory decrees. It may be stated that in the instant case none of the parties challenge the consolidation order but after giving due consideration to the matter, we are of the view that the consolidation of the suits was not proper in the present case, because it was not conducive to the interest of justice. The trial of the suit for possession filed by the appellant herein, had already been completed and the same was fixed for arguments when the cross suit was filed by the respondent. As has been held by the High Court that substantial issues between the parties in both the suits were the same, except that an additional issue regarding the jurisdiction of the Court was framed. We are of the view that irrespective of the question as to whether the plaintiff-respondent was entitled to lead evidence in the latter suit or not, the moot point which needs resolution in the case is as to whether the consolidation order of the suits was legally justified and conducive to the interset of justice. It may be stated here that both the Courts below have omitted to consider the mandatory provisions contained in Section 10 of the C.P.C. For the sake of convenience, Section 10 of the C.P.C. is reproduced below:-- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom .they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Azad Kashmir having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Azad Kashmir established or conu.iued by the Government and having like jurisdiction, or before the Supreme Court." It is evident from bare reading of Section 10 of the C.P.C. that it is mandatory to stay the trial of the suit filed subsequently subject to the conditions envisaged therein. It has already been stated that in the instant case not only the parties are the same but the issues arising in the subsequent suit filed by Saddar Din, respondent, are also the same as were framed in the earlier suit filed byJB Muhammad Mehrban, appellant; only one additional issue regarding the jurisdictional competence of the trial Court was framed. In such circumstances, it cannot be said that it was conducive to the interest of justice to consolidate the suits and withhold the decision in the former suit. The evidence in the former suit had already been recorded and it was fixed for arguments, how the consolidation could be regarded in the interest of justice. The evidence recorded in the former suit before consolidation cannot be read in the latter suit; at least the parties can be denied the opportunity to lead evidence on an issue framed in the subsequent suit. As the trial in the earlier suit had already been completed, it was not just to consolidate the suits in exercise of inherent powers. The practice of consolidation of suits, which has become an essential part of our procedure, is meant to advance the ends of justice and not to defeat them. If the main issues in both the suits are identical then the second suit would be barred by the principle of res judicata and the question of contradictory decrees does not arise; irrespective of the fact as to whether the former suit is decreed or dismissed, the principle of res judicata will be operative against one or the other party. Thus, the question of possibility of contradictory decrees is not only remote but the fact would not render the provisions of Section 10, C.P.C., as nugatory. Thus, in the instant case the proper course for the trial Court was to postpone the trial of the latter suit and hear the arguments in the suit Hied by the appellant herein, and decide the same. So far as the proceedings in the latter suit are concerned, those would have their legal course after the judgment in the former suit. Although the parties have not questioned the validity of the order of consolidation by the trial Court, yet in the interest of justice we ourselves took note of the fact and set aside the order of consolidation in exercise of the powers which vest in this Court under Section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and under rules 4 and 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Consequently, the consolidation order, the order- to recast the issues and the impugned order are hereby set aside. It is directed that the trial Court shall hear the arguments in the former suit filed by the appellant herein, and decide the same in accordance with law while the proceedings in the suit filed by the respondent, Saddar Din, shall be kept in abeyance as contemplated under Section 10 of the Code of Civil Procedure. The orders of the trial Court to recast the issues and to hear arguments in both the suits also stand amended as indicated above. The upshot of the above discussion is that the appeal filed by the appellant is accepted as indicated above. In the circumstances of the case no order is made as to the costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 1 PLJ 1992 SC 1 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN ACJ, ABDUL SHAKURUL SALAM, ABDUL QADEER chaudhry, rustam S. sidhwa and saleem akhtar, JJ BASHIR and 3 others-Petitioners/Appellants versus THE STATE-Respondent Criminal Misc. Petition No. 15-R of 1988, in Cr. A. No. 144-R of 1979 (also Crl. Misc. Petition No. 18-R of 1990 in Crl. A. No. 133 of 1981, Crl. Petition No. 169-R of 1989, Crl. A. No. 164 of 1987, Crl. A. No. 176 of 1986, Crl. A. No. 186 of 1986, Civil Appeals Nos. 440, 441 and 442 of 1986) decided on 29.8.1991. [From order of Supreme Court, dated 7.11.1983, in Crl. A. Nos. 144 and 145 of 1979, from judgment of Supreme Court dated 11.5.1985, in Cr. A. 133 of 1981, from judgment/order of Lahore High Court, dated 24.5.1989, passed in Crl. Misc. No. 171/M of 1989, from order of Lahore High Court, dated 11.1.1983, passed in Crl. A. No. 1165 of 1979, from judgment of Lahore High Court, dated 8.4.1986, passed in Crl. Misc. No. 5-M of 1984, from judgment of Lahore High Court, dated 4.3.1981, passed in Crl. A. No. 555 of 1979, from order of Lahore High Court, dated 8.4.1986, in W.P. No. 373 of 1984, from judgment of Lahore High Court, dated 8.4.1986 in ICA No. 252 of 1983 and from judgment of Lahore High Court, dated 9.4.1986, in W.P. No. 768 of 1984 respectively.] (i) Concurrent Sentence— —Death sentence—Commutation to imprisonment for life—Whether High Court or Supreme Court can direct such commuted sentence to run concurrently with other sentence—Question of—Convict can always approach person or authority granting commutation to permit commuted sentence or sentences to run concurrently with other sentences-Person who has power to commute, also has power to order that same with others may run concurrently-Held: If during examination, a sentence has already been commuted, it cannot deter High Court or Supreme Court from examining whether sentences as awarded before commutation, deserve to run concurrently. (Per Rustam S. Sidhwa, J). [P.28&29JJ (ii) Concurrent Sentence— —Death sentence-Commutation to imprisonment for life-Whether commutation of sentence by Government affords ground to convict to claim that -sentences should run concurrently-Question of-Enhancement or reduction of a sentence is a judicial function, but once remission or commutation of sentence is granted partly, by any authority, overall effect is that convict is not inflicted with entire punishment awarded to him but judgment and sentence remain in field-Held: Mere fact that Government has decided to give up infliction of punishment partly, will hardly afford a ground to convict to claim that sentences should now run concurrently. (Per Saleem Akhtar,J). [P.31JK (iii) Concurrent sentence— —Imprisonment for life-Sentence of-Whether such sentence is to run concurrently with other sentence-Question of-Held: Unless ordered to run concurrently under Section 35(1) of Cr.P.C., sentence of imprisonment for life will run consecutively in view of its quantification, in term of years under Section 57 of PPC—Held further: Executive order of commutation of sentence of death into life imprisonment takes effect forthwith making such sentence to run concurrently with any other sentence ordered by Court. (Order of Court). [P.32]M&N 1985 SCMR 153,1986 SCMR 1573,1986 SCMR 1627 and 1987 SCMR 1382 reviewed. (iv) Concurrent Sentence— —Sentences—Awarding of—Omission to direct sentences to run concurrently-- Whether omission can be supplied-Question of--It is duty of court to finally address itself to question whether sentences awarded should run concurrently or consecutively-In case of failure on part of trial court to determine these questions, difficulty would arise because of Section 369 of Cr.P.C.~During appeal or revision, High Court could itself examine these questions-Held: In case of failure by High Court to determine these questions, resort can be had to Section 561-A of Cr.P.C. and Supreme Court can detrmine same in its own inherent powers under Order XXXII Rule 6 of Supreme Court Rules, 1980. (Per Rustam S. Sidhwa, J). [P.27&28]G&H iv) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 35 (1) read with Section 397-Death sentence- commutation to imprisonment for life-Whether sentence so commuted is to run concurrently with other sentence or consecutively—Question of—Cases where court sentenced a convict to death and subsequently death sentence is commuted to life imprisonment by an executive order, are neither covered by Section 35(1) nor Section 39 ^ of CrJP.C.--Held: In absence of any provision directly applying :: case, sentence so commuted shall be required to be undergone concurrently and no consecutively. (Per Shafiur Rahman, ACT). [P.17]C m i Criminal Procedure Code, 1898 (V of 1898)-- —S.35(l)-Imprisonment for life-Sentence of-Whether Section 35 of Cr.P.C. compels court which has sentenced a person to life imprisonment with any other or similar sentence, to order said sentences to run concurrently- Question of~Like sentence of death which, when executed, excludes execution of a similar sentence, serving out of a sentence of life imprisonment, by legal fiction, would amount to serving out of a sentence for remaining span of normal life of convict, thus debarring any further execution of any other or similar sentence awarded in same trial—Held: A sentence of imprisonment for life cannot be permitted to run consecutively with any other or similar sentence awarded in same trial. (Per Rustam S. Sidhwa, J). [P.19&25]E&F (vii) Criminal Procedure Code, 1898 (V of 1898)-- —-S.35(l)&(2) read with Pakistan Penal Code, 1860, Section 57-Imprisonment for life-Sentence of-Whether proviso to Section 35(2) of Cr.P.C. applies to eases of imprisonment for life imposed in murder trial—Question of—Proviso (a) to sub-section (2) of Section 35 of Cr.P.C. does not apply to cases of sentence awarded by Sessions Court in original trial-Held: Proviso does not apply to cases of imprisonment for life imposed in murder trial. (Order of Court). [P.32]L (viii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 35(2)-Death sentence-Commutation to imprisonment for life-Whether sub-section (2) of Section 35 is applicable to trial by Sessions Judge and to conviction and sentence imposed by that Court-Question of—It is clear that Section 35(2) deals only with sentencing power of Magistrates at a trial and proviso has necessarily to be restricted to courts of Magistrates with limited sentencing power-Present cases involve sentences passed by Sessions Judge who has no limitation on his powers—Held: Section 35(2) of Cr. P.C. has no application to trial by Sessions Judge and to conviction and sentence imposed by that court. (Per Shafiur Rahman ACJ). [P.16&17]A,B&D 1985 SCMR 153,1986 SCMR 1573,1986 SCMR 1627 and 1987 SCMR 1382 reviewed. Nemo for Petitioners/appellants (in Cr.M.P. 15-R of 1988). Mr. M. Nawaz Abbasi, AA.G. and Rao M. Yusaf Khan, AOR for respondent (in Cr. M.P. 15-R of 1988) 18-R of 1990, Crl. PLA No.l69-R of 1989, CrA. 164 of 1987, and CrA 186 of 1986. Mr. MA. Zafar, Senior Advocate, Supreme Court, and Mr. M. Aslam Chaudhry, AOR (absent) for Petitioners/appellants (in Cr.M.P 18-R of 1990). Nemo for Petitioners (in Cr.PLA No. 169-R of 1989). Mr. M.B. Zaman, Senior Advocate, Supreme Court (absent) and Ch. Akhtar AH, AOR for appellants (in Cr. A. No. 164 of 1987). Mr. M. Nawaz Abbasi, AA.G. and Rao M. Yusuf Khan, AOR for appellant (in CrA. No. 176 of 1986). Respondent: Not represented (in CrA. No. 176 of 1986). Mr. M. Younas Bhatti, Advocate, Supreme Court (absent) for appellants (in Cr. A. No. 186 of 1986). Mr. M. Nawaz Abbasi, AA.G. and Rao M. Yusaf fOian, A.O.R. for appellants (in CA. Nos. 440 to 442 of 1986). Nemo for respondents (in CA. Nos. 440 to 442 of 1986). Date of hearing : 25.3.1991. judgment Shafiur Rahman, ACJ.~In all these Petitions and appeals a common question of law of public importance is involved, namely, the interpretation of Section 35 of the Criminal Procedure Code for determining the limitation on the power of the courts to award concurrently or consecutively the maximum sentence of imprisonment. This question for examination has been placed before a larger Bench as it also entails reconsideration of the decisions given in laved Shaikh v. The State (1985 SCMR 153), Juma Khan and another v. The State (1986 SCMR 1573), Muhammad Ittefaq v. The State (1986 SCMR 1627) and Khan Zaman and others v. The State (1987 SCMR 1382). 2. Arguments on this question of law were heard on an earlier occasion on 3.8.1988, arid thereafter on 7.1.1991 and now finally before a differently constituted Bench of Judges on 25.3.1991. 3. The factual background in which this question has come up is separately, indicated as hereunder:- (/) Cr.M.P. 15-R/88 in CrA.. 144/1979 All the four petitioners who are brothers were tried for offences under Sections 302/326/324/34 PPC. They were all convicted for these offences by the trial court. Their convictions were maintained by the High Court and the Supreme Court. Ultimately, under the order of the Supreme Court, they all stand convicted under Section 302/34 PPC and sentenced to life imprisonment, under Section 326/34 PPC sentenced to 10 years R.I. and under Section 324/34 PPC sentenced to 3 years R.I. The Supreme Court while reducing the sentence of Bashir to life imprisonment ordered as hereunden- "The remaining sentences of imprisonment which have been ordered to run consecutively and the sentences of fine, are however maintained". By this Criminal Miscellaneous Petition the convicts have taken up the grounds that "the consecutive running of the sentences is violation of proviso (a) to Section 35(2) of the Criminal Procedure Code" and that "as such proviso (a) to sub-section (2) of Section 35 Cr.P.C. indicates that it prohibits the giving of "CONSECUTIVE SENTENCES" in one trial beyond the period of 25 years, the maximum sentence, short of the death sentence which could be imposed on all offenders. The said provision (Section 35 Cr.P.C.) is in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer to maximum sentence of imprisonment for any heinous crime should not exceed the sentence of life imprisonment". The prayer made is that the sentence of life imprisonment under Section 302/34 PPC, of 10 years R.I. under Section 326/34 PPC and 3 years R.I. under Section 324/34 PPC be ordered to run concurrently instead of consecutively. («) Cr.M.P.lS-R/90 in CrAppeal 133/81. The petitioners in this case were tried for the offences under Sections 302, 307 (two counts), 452 (two counts) read with Sections 149 and 148 PPC. They were convicted by the trial court and their convictions were maintained by the Supreme Court by our judgment dated 11.5.1985 (1985 SCMR 1415). While imposing life imprisonment for the offence under Section 302 PPC, their convictions under Sections 307/149 (two counts) - sentence of 5 years R.I. on each count, and under Section 452/149 PPC (two counts) - sentence of 2 years R.I. on each count, were maintained. However, no order was made or direction given with regard to the sentences being consecutive or concurrent. The petitioners claim to have undergone the sentence of imprisonment for life but the Jail authorities refused to relieve them on the ground that no order for the sentence of imprisonment being concurrent having been passed, the sentences were to run consecutively. In order to claim an order that the sentences must run concurrently, they relied on Section 35(2) of the Criminal Procedure Code read with the judgments of this Court hi the cases of laved Shaikh (1985 SCMR 153), Juma Khan (1986 SCMR 1573), Muhammad Ittefaq (1986 SCMR 1627) and Khan Zaman (1987 SCMR 1382). (in) Cr.P.L,No.l69-R/1989 The five petitioners in this case were tried for the offences under Sections 302, 307, 449, 149 and 148 PPC. They were sentenced to death under Section 302/149 PPC under Section 307/149 to 10 years R.I., under Section 449/149 to 10 years R.I., and one year R.I. under Section 148 PPC. Their conviction and sentence was maintained upto the High Court. By general amnesty that was announced in the year 1988 their death sentence was converted into life imprisonment. The petitioners moved an application in the High Court under Section 561-A of the Criminal Procedure Code for getting all the sentences of imprisonment including of life imprisonment as concurrent, and also claimed the benefit of Section 382-B Cr.P.C. The High Court refused to exercise the jurisdiction in the matter as the question of their conviction and sentence had finally been disposed of by the Supreme Court. Hence, this petition was made seeking a direction to the Jail authorities to treat the sentences awarded to the petitioners as concurrent and also allowing them the benefit of Section 382-B of the Criminal Procedure Code. (iv) Criminal Appeal No. 164 of 1987 In this appeal the convicts stand convicted under Section 302/149 PPC to life imprisonment, under Section 376 PPC to 10 years R.I. and under Section 307 PPC to 7 years R.I. One of the arguments raised on which leave to appeal has been granted is that "neither the trial Court nor the High Court has directed that the substantive sentences of imprisonment for the different offences should run concurrently; consequently, the said sentences of imprisonment will take effect consecutively. As a result the limit imposed by the proviso (a) to Section 35(2) Code of Criminal Procedure will stand exceeded. This will be illegal and in conflict with the view taken by this Court in Javaid Shaikh v. The State (1985 SCMR 153). This contention needs examination. Leave to appeal is granted to consider legality of the sentences imposed upon Zahoora, Afzal, Feroz, and Arif'. (v) Crimea! Appeal No. 176/1986 Muhammad Tariq respondent stood convicted of the offence under sentence 302 PPC on two counts and sentenced on one count to death and on another to life imprisonment. His Petition for leave to appeal in the Supreme Court failed and also a review petition. However, on a mercy petition the Governor of the Punjab commuted the sentence of death awarded to him for the murder of Khadim Hussain to life imprisonment. He was, therefore, required to undergo imprisonment for life on each count. There being no order under Section 35 of the Criminal Procedure Code as to whether the two sentences of imprisonments were to run concurrently or consecutively, Muhammad Tariq filed a Petition in the High Court seek'ng a direction that they should be ordered to run concurrently. This was heard alongwith two other matters of similar nature and the High Court following the decision of this Court in Javed Shaikh's case (1985 SCMR 153) upheld the contention and ordered the sentences to run concurrently. The State has objected to such a direction and has come up in appeal before this Court. (v/) Criminal Appeal No. 186/1986 Bashir and three others stand convicted under Section 302/34 PPC and 30? 34 PPC. They were awarded imprisonment for life for the former and seven years R.I. for the second charge. Their appeals failed uv ±e Hich Go .in. This Court while granting leave to appeal on merits also noted lite legal ground taken therein noted in the following words:- Tt was lastly contended by the learned counsel that the petitioners have been awarded life imprisonment (i.e. 25 years) under Section 302 of the Pakistan Penal Code and further sentenced to seven years rigorous imprisonment under Section 307 PPC which sentences, in the absence of any order that the same will run concurrently are, therefore, to run consecutively. This was not in consonance with the provisions of Section 35 Cr.P.C. Reference is invited to Javed Shaikh v. State (1985 SCMR 153) in support of his contention". (vh) Civil Appeal No.440/1986 Abdur Rashid alias Malangi was tried under Section 302/307 PPC by the Additional Sessions Judge, Lahore and convicted for both the offences. He was sentenced to death under Section 302 and to seven years R.I. under Section 307 PPC. The conviction and sentence were maintained upto the Supreme Court. However, on a mercy petition, the Governor of the Punjab on 5.1.1983 commuted his sentence of death to life imprisonment. Thereafter by a Writ Petition (No.373 of 1984) Abdur Rashid moved the High Court for treating the sentences as concurrent. This Writ Petition was allowed alongwith the two others on the basis of a decision of this Court in Javed Shaikli's case. The State has come up in appeal against the decision of the High Court. (viii) Civil Appeal No.441 of 1986 Lai, Shahara and Allah Yar were convicted under Section 302/34 PPC (two counts) and under Section 324/34 PPC. They were sentenced to death on each count under Section 302/34 PPC and required to suffer one year R.I. under Section 324/34 PPC. It was ordered that in case both the sentences of death were altered to sentences of imprisonment, then sentence awarded in default of payment of fine and the sentence under Section 324/34 PPC shall run concurrently. Then" conviction and sentence were maintained upto this Court. However, on a mercy petition, the President of Pakistan commuted their sentence of death to that of imprisonment for life. This decision was conveyed to the Superintendent Jail, Faisalabad by Sessions Judge, Faisalabad by letter dated 11.6.1980 stating therein that "since the original order of conviction does not speak of the sentences to run concurrently, it will be presumed under Section 35(1) Cr.P.C. to run consecutively". Lai and Shahara convicts, after two years of that letter filed Writ Petition (No.4907 of 1982) praying that their sentences be directed to run concurrently. This petition was dismissed in limine on 21.12.1982 (by) learned Judge in Chamber. No further proceedings were taken against that order. Berkha, a real brother of Shahara and Allah Yar and a cousin of Lai, without disclosing the institution of the earlier Writ Petition (No.4907/1982) filed another Constitution Petition (Writ Petition No.1641/1983) for the same relief which was dismissed by the same learned Judge on 16.11.1983. He preferred an Intra Court Appeal (I.CA. No.252 of 1983) and it was disposed of by a consolidated judgment. The contention in this case was that there was a direction of the trial court that in case the death sentence was converted into life imprisonment, the sentences of imprisonment were to run concurrently. The High Court allowed this appeal (I.CA.252/1983) in view of decision of this Court in Javed Shaikh's case. The State has objected to it and has preferred this appeal. (ix) Civil Appeal No.442 of 1986. Muhammad Aslam respondent No.2 was tried alongwith others for offences under Sections 302/307/452/148/149 PPC. He was convicted under Section 302/34 PPC and sentenced to life imprisonment (three counts), under Section 307/34 PPC and sentenced to three years R.I. (four counts) and under Section 452/34 PPC sentenced to one year R.I. The trial court directed that the sentences of Muhammad Aslam under Section 307/34 PPC and 452/34 PPC shall run concurrently with the sentence passed under Section 302/34 PPC. The High Court maintained > the conviction and sentence of Muhammad Aslam. So did the Supreme Court. The only direction given by the Supreme Court was that as the occurrence has taken place before the Law Reforms Ordinance, the sentence of life imprisonment shall stand substituted for transportation for life. Mrt.Aziz Begum (respondent No.l) mother of Muhammad Aslam filed a Writ Petition (No.768 of 1986) in the High Court contending that he had served the entire sentence and was entitled to come out of the prison and his continued detention in jail was illegal. The jail authorities took the view, and so did the State that "there was no direction in the judgment of the learned Additional Sessions Judge that the sentences of life imprisonment (to be treated as transportation for life in view of Supreme Court judgment) on each count under Section 302/34 PPC for the murder of Mtf.Niggo, Gulab Din and Maqsood were to run concurrently and therefore, the sentences of transportation for life under Section 302/34 PPC on three counts would run consecutively under Section 35 Cr.P.C. though the sentences awarded under Section 307/34 PPC and 452/34 PPC would run concurrently with the sentences under Section 302 '34 PPC. Sentences of Muhammad Aslam convict, come to 14 x 3 = 42 years plus three years i.e. 45 years. Giving all the benefits of remission and relief under Section 382-B Cr.P.C. the probable date of release of the convict comes to 25.6.2011 in case he pays the fine of Rs.15,000/-". A Full Bench of the High Court seized of the matter took the view that the judgment of the Additional Sessions Judge/trial court had in fact directed that all sentences of imprisonment would run concurrently and not consecutively. The Court observed as hereunder:- "...the judgment of the learned trial Judge dated 17.4.1975 is clear and admits of no ambiguity. The learned trial Judge after convicting Muhammad Aslam and his co-accused on various charges and on different counts, in para 37 of his judgment, used the word 'sentence' in a singular form and not in plural sense. It is clear from this judgment that the learned trial Judge was clear in his mind that all sentences of imprisonment would run concurrently and not consecutively. This petition is, therefore, allowed with no order as to costs". The State has objected to such interpretation of the judgment of the trial court by the High Court. 4. The cases which come up for reconsideration in the present appeals and petitions/applications had also similar facts as are involved in these applications/appeals. For example, in the case ofJaved Shaikh (1985 SCMR 153), the trial court had convicted the accused under Section 302 PPC to life imprisonment and under Section 307 PPC to seven years R.I., ordering at the same time that the sentences shall run consecutively. In that case leave was granted to consider "whether, in view of the provision of Section 35, Cr.P.C. which prohibits making of consecutive sentences aggregating more than fourteen years, the sentences, as awarded to the convict were proper in law". It was decided by a Bench of four learned Judges of which I also happened to be a member, as hereunder:- "A perusal of proviso (a) to subsection (2) of Section 35, Cr.P.C. indicates that it prohibits the giving of consecutive sentence in one trial beyond the period of fourteen years, the maximum sentence, short of the death sentence, which could be imposed on an offender before the promulgation of the Law Reforms Ordinance, 1972. The said provision (Section 35, Cr.P.C.) appears to be in consonance with the scheme and intendment of the Pakistan Penal Code that an offender should only suffer the maximum sentence of imprisonment for any heinous crime (as it stood until 1972) which should not exceed fourteen years. Therefore, the imposition of the sentence of life imprisonment (which means 25 years' R.I.), plus seven years' R.I. under Section 307, P.P.C. would be inconsistent with the intendment of the provisions of proviso (a) to subsection (2) of Section 35, Cr.P.C. inasmuch as the maximum punishment prescribed for heinous offences shall be exceeded. The difficulty in this case can be overcome if the sentences awarded to the appellant in respect of the two convictions under Section 302, P.P.C. and under Section 307, P.P.C. in one and the same trial are directed to run concurrently instead of running consecutively". 5. In the case ofJuma KJian (1986 SCMR 1573) for the double murder, the High Court had maintained the conviction under Section 302 PPC but converted the sentence into life imprisonment without specifying whether the sentences were to run concurrently or consecutively. The jail authorities were treating it on the strength of Section 35(1) of the Criminal Procedure Code to be consecutive. The convict had moved an application under Section 561-A of the Criminal Procedure Code for directing the jail authorities to treat the sentences concurrent. The High Court had referred them to the Supreme Court whereupon an application under Order XXXIII Rule 6 of the Supreme Court Rules, 1980, was filed and was dealt with by two learned Judges holding as hereunder:- "After hearing both the learned counsel, we are inclined to accept the prayer of the petitioners and to clarify that the sentences of imprisonemnt for life on each count imposed upn them are to run concurrently and not consecutively. We may add that under Section 35 of the Cr.P.C. the total period of imprisonment at one trial cannot exceed 25 years. If the sentences imposed on the petitioners in this case are allowed to take effect consecutively the sentences would exceed 25 years. This, of course, is not permitted by Section 35 of the Cr.P.C. (See also Javed Shaikh v. Tlie State 1985 S.C.M.R. 153)". 6. In the case of Muhammad Ittefaq (1986 SCMR 1627), a Bench of five Judges, of which I happened to be a member, has disposed of the Criminal Miscellaneous Petition arising out of a Criminal Appeal, as hereunder:- "While restoring the order of the trial court, no direction was made for the concurrent running of the sentences of imprisonment for life on two counts under Section 302, P.P.C. read with Section 34, P.P.C. and the sentences of imprisonment awarded again on two counts under Section 307, P.P.C. read with Section 34, P.P.C. This error crept in because the trial Court had awarded death sentences to the petitioner. The consecutive running of the sentences is violative of Proviso (a) to Section 35(2) of the Criminal Procedure Code. Reference in this regard may be made to Javed Shaikh v. The State 1985 SCMR 153. In one other case namely Criminal Review petition No.4-R of 1985, there was also an omission and this Court had ordered for the concurrent running of sentences of imprisonment. Accordingly, we, in the interest of justice, direct that all these sentences of imprisonment should run concurrently". 7. In the case of Klian Zaman (1987 SCMR 1382) the High Court had converted the death sentence into life imprisonment on two counts. The appeal in the Supreme Court was not pressed on merits but benefit of Section 35(2) Cr.P.C. was invoked relying on the case of Javed Shaikh and the two other cases of Jwna Nian and Muhammad Ittefaq, The petition was converted into an appeal and the Order of the High Court directing the sentences to run consecutively was substituted by the expression that the sentences shall run concurrently. 8. In none of the decisions of this court the specific provision of Section 35 Cr.P.C. was considered in its entirety specifically and exhaustively. It was assumed that it applied to trials held by the Sessions Judges for offences under Section 302 PPC etc. Of relevance in the context are Section 53 of the PPC as it stood before its amendment in 1990 under the Qisas and Diyat Law, Section 57 of the PPC, Sections 35, 397 and 369 of the Criminal Procedure Code. These are reproduced hereunder:- Section 53 of PPC "The punishment to which offenders are liable under the provisions of this Code are,— First, - Death; Secondly, -- Imprisonment for life. Tliirdfy, - (Omitted by Act 2 of 1950). Fourthly, — Imprisonment, which is of two descriptions namely:- (1) Rigorous, that is, with hard labour, (2) Simple; Fifthly, - Forfeiture of property; Sixthly, -- Fine". Section 57 of PPC"Fractions of terms of punishment.— In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to transportation for twenty-five years". Section 35 of Cr.P.C. "35. Sentence in case of conviction of several offences at one trial.--(l) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) Maximum term of p">r~!::;ic>it.~]n the case of consecutive sentences, it shall not be n.xcv:ui y tor the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: - Provided as follows:- (a) in no case shall such person be sentenced to imprisonment for a longer period than 14 years; (ft) if the case is tried by a Magistrate (other than a Magistrate acting under Section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict. (3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence". Section 397 of Cr.P.C. "397. Sentence on offender already sentenced for another offence.- When a person already undergoging a sentence of imprisonment, or imprisonment for life, is sentenced to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided further, that where a person who has been sentenced to imprisonment by an order under Section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the later sentence shall commence immediately". Section 369 of Cr.P.C "369. Court not to alter judgment—Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error". 9. The exact law invoked in the matters for consideration before us and on the decisions which are required to be reconsidered was limited to the proviso to sub-section (2) of Section 35 of the Criminal Procedure Code. An effort was made by the learned counsel for the petitioners/appellants to contend that this proviso was in fact a proviso to both sub-section (1) and sub-section (2) of Section 35 Cr.P.C. However, the physical placement of the proviso and its contents both relate to and extend over sub-section (2) and not to other sub-section [sub-section (1)]. The principles governing the interpretation of a proviso and the serious limitations from which it suffers have been indicated by this Court recently in K.E.S.C. Progressive Workers Union through its Chairman v. K.E.S.C. Labour Union through its General Secretary and 7 others (Civil Review Petitions No.64 to 66 and 98 of 1990) decided on 11.2.1991, in the following words:- "The accepted principles of interpreting a proviso have been enunciated as hereunder:- (/) Wilberfore on Statute Law, page 303:- "A proviso is of great importance when the court has to consider what cases come within the enacting part of a section and it is always to be construed with reference to the preceding parts of the clause to which it is appended". (/f) Maxwell on the Interpretation of Statutes, Twelfth Edition by P.StJ. Langan, Page 189:- "It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken "absolutely in their strict literal sense, "but that a proviso is "of necessity...limited in its operation to the ambit of the section which it qualifies". (Hi) The Interpretation of Statutes and General Clauses Acts....,Se-enlh Edition (1984) by N.S. Bindra, Page 77:- "A proviso must be considered with relation to the principal matter to which stands as a proviso. To treat the proviso as it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, L.J., in R. v. Dibdin (1910 P. 57, 125 affirmed in 1912 A.C. 533). Proviso and sub-clauses should be governed by the operative portion of the section". (/V) Craies on Statute Law, Seventh Edition by S.G.G. Edgar, Page 219:- "The courts, as, for instance, in Ex p. Partington, [(1844) 6 Q.B. 649, 653], Re Brocklebank, (1889) 23 Q.B.D. 461], and Hill v. East and West India Dock Co., [(1984) 9 App. Cas. 448], have frequently pointed out this fallacy, and have refused to be led astray by arguments such as these which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso". (v) Tfie Construction of Statutes by Earl T. Crawford, Page 605:- "As a general rule, however, the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute". (v/) Bennion on Statutory Interpretation, Page 572:- "In the case of precision drafting, the proviso is to be taken as limited in its operation to the section or other provision it qualifies". Some of the illustrative cases in which this statement of law has found clear expression are; Leah v. Two Worlds Publishing Co. Ltd. [(1951) 1 Ch. 393], Lloyds and Scottish Finance Ltd. v. Modem Cars and Caravans ( Kingston ) Ltd. [(1966) 1 Q.B. 764] and Messrs East and West Steamship Company v. Pakistan (PLD 1958 S.C. 41). In the case of Leah, at page 398 it was held as hereunder:- "...indeed it cannot be disputed, that a proviso must be construed and treated as if it were, not a parallel positive enactment, but a limitation on a proposition which is direct and objective".In the second case i.e., Lloyds and Scottish Finance Ltd., it was held by Queen Bench Division at Page 780 that "the proviso must of necessity be limited in its operation to the ambit of the section which it qualifies". In the third case i.e., East and West Steamship Co., at Page 72, the following observations were made by the Supreme Court:- "One of :he r'.jin; it r-les of statutory interpretation is that a proviso '<& to be r; dreed as someihmg which excepts a particular case from a eeacraJ principle. The effect of a proviso is to except something oat of the preceding portion of the enactment or to qualify sone tiling enacted therein which but for the proviso would be within k". 10. In S.Sundsram Pului. etc. . V.R.Pattabiraman (AIR 1985 S.C. 582) the List err relation scope and effect of a proviso was dealt with, in the following "Odeers in "Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following P.317 "Provisos-These are clauses of exception or qualification in an Act, excepting something out of, or qualifying soemthing in, the enactment which, but for the proviso, would be within it".P.318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment". Sarathi in 'Interpretation of Statutes' at pages 294-295 has collected the following principles in regard to a proviso:- "(o) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation: but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is subordinate to the main section. (/) A proviso does not enlarge an enactment except for compelling reason. (g) Sometimes an unnecessary proviso is inserted by way of abundant cautions. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (/) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (/) A proviso may sometimes contain a substantive provision."." Relying on Dwarka Prasad, v. Dwarka Das Saraf (AIR 1975 S.C. 1758), in the same judgment, the following observations were approved:- "If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction". 11. If the above principles relating to interpretation of a proviso are applied to the interpretation of proviso under consideration, then different conclusions follow. Sub-section (2) - the operative part, deals only with those courts and those courts only which have limited sentencing powers. The limited sentencing powers are provided for in Sections 30, 32 and 34 Cr.P.C. whereby none of the Magistrates is authorised to pass a sentence of more than seven years R.I. for an offence. High Courts and Sessions Judges have been empowered by Section 31 Cr.P.C. to pass any sentence authorised by law. 12. It is clear, therefore, that Section 35(2) deals only with the sentencing power of the Magistrates at a trial and the proviso has necessarily to be restricted | to the courts of the Magistrates with limited sentencing power. On no principle of | interpretation can the proviso be extended so as to out strip the substantive scope of sub-section (2) of Section 35 Cr.P.C. and to refer to the courts whose power of sentencing is not so limited. 13. In the cases before us, we are not dealing with the cases of sentencing by Magistrates or courts having limited power, of sentencing. It is the sentences passed by the trial court i.e. Sessions Judges who, as pointed out under Section 31 of the Criminal Procedure Code, has no limitations on his powers except to pass a sentence authorised by law. There is no higher court for a Sessions Judge within the meaning of sub-section (2) of Section 35 Cr.P.C. In the circumstances, this section has no application to the trial by the Sessions Judge and to the conviction and sentence imposed by that court and for that reason the decisions on which reliance has been placed and which have come up specifically for reconsideration and review, cannot be sustained. The legal question raised is answered accordingly. 14. The cases where the Court has sentenced a convict to death and subsequently by an executive Order the death sentence is commuted into life imprisonment, the position is somewhat different. It is different because neither Section 35(1) nor Section 397 Cr.P.C. in terms apply to such a case. The court cannot pass any order with regard to its being concurrent or otherwise. In the absence of any provision directly applying to the case, the sentence so commuted shall be required to be undergone concurrently and not consecutively. 15. In passing one must note a significant amendment that has been introduced in the Indian Criminal Procedure Code in Section 397 Cr.P.C. which is materially different from our pro%ison. It is in the form of sub-section (2) and reads as hereunder:- When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence". 16. In Mew of the foregoing discussion and the interpretation of law directly in issue, we have come to the conclusion that our judgments in the cases ofJaveed Shaikh (1985 SCMR 153), Junta Kltan & another (1986 SCMR 1573), Muhammad Ittefaq (1986 SCMR 1627) and KJtan Zaman and others (1987 SCMR 1382) not D correctly interpret Section 35(2) of the Criminal Procedure Code and require review. We accordingly review the same, restricting the effect and import of sub­ section (2) of Section 35 Cr.P.C. to the judgments and sentences by courts other than and subordinate to the Sessions Judge and the High Courts i.e., the magistrates and the Assistant Sessions Judges, wherever in existence. 17. In view of the law laid down, the individual matters, which require disposal, are dealt with as hereunder:- (i) Cr.Misc. Petition No. 15-R/1988 in Criminal Appeal No. 144-R/1979. As this court had while reducing the sentence of Bashir to life imprisonment, consciously ordered as hereunder:- "The remaining sentences of imprisonment which have been ordered to run consecutively and the sentences of fine, are however maintained". Such an observation being lawful, does not need review either under Section 369 Cr.P.C. or under the Supreme Court Rules, and hence this Miscellaneous petition is dismissed. (if) Cr.Misc.Petition No. 18-R/1990 in Criminal Appeal No. 133/1981. As the Court had given no direction under Section 35(1) of the C -imlaal Procedure Code that the sentences should run concurrently provisions of this sub-section will apply and there is no particular illegality in its taking effect. Consequently, the judgment needs no interference and the Miscellaneous petition is dismissed. '(Hi) Cr.P.LA. No.l69-R/1989. As in this case life imprisonment had been ordered by an executive order and we have already held that the executive order shall imply concurrent running of the sentences, because none of the provisions of the Criminal Procedure Code will apply to such a sentence, this petition is converted into appeal and allowed to the extent that only sentence commuted to life imprisonment shall run concurrently with the other sentences awarded in the case. As regards the prayer of benefit under Section 382-B of the Criminal Procedure Code, it cannot be claimed outside the judgment and independently of it from the Supreme Court. (iv) Criminal Appeal No. 164 of 1987. This appeal to the extent it challenges the consecutive sentences will fail because sub-section (1) of Section 35 Cr.P.C. will govern the case and its operation will be lawful and in accordance with the provisons made by the legislature. (v) Criminal Appeal No. 176/1986. It is a case of commutation of sentence to life imprisonment and as held such sentence will run with other sentences. The State's appeal is allowed only to the extent that only commuted sentence of life imprisonment will run concurrently and not the others which are governed by Section 35(1). Javed Shaikh's case having been reviewed the law laid down therein will not be available making the other sentences to run concurrently. (vi) Criminal Appeal No. 186/1986. The legal question reserved "for the larger Bench stands answered. The appeal shall otherwise await disposal on merits. (vii) Civil Appeal No.440/1986. It is a case of commutation of sentence of death into life imprisonment. The effect, as held above, of commutation of sentences would be that the sentence of life imprisonment would run concurrently with other sentences awarded. The judgment of the High Court is correct, though the reasoning and the ground therefor is somewhat different. This appeal, therefore, fails and is dismissed. (viii) Civil Appeal No.441 of 1986. It being a case, of commutation of sentence of death and the original Order of the Court also providing that in case death was not confirmed and altered to the sentence of life imprisonment the sentence was to run concurrently, the view taken by the High Court is correct. Hence, the appeal stands dismissed. (tc) Civil Appeal No.442 of 1986. The order of the trial court notwithstanding the alteration of the sentence from life imprisonment to transportation for life providing that the sentences shall run concurrently will hold good. The view taken by the High Court is correct and this appeal must on that account fail. Hence, it is dismissed. 18. All the applications stand disposed of accordingly. If in any appeal further question of fact or law is required to be examined, that appeal shall be individually taken up for disposal, the legal question raised therein having been answered. Rustam S. Sidhwa, J.~ I have read the able judgment of my learned brother Shafiur Rahman, J. In Criminal Appeals CrA.Nos.176 and 440 to 442 of 1986 leave was granted inter alia to examine questions of law, including the interpretation of Section 35 Cr.P.C. In Criminal Appeal CrA.186/86 leave was granted to examine the question whether the sentences which were to run consecutively were not in consonance with the provisions of Section 35 Cr.P.C., for which reference was invited to Javed Sheikh's case. In Criminal Appeal 164/87 leave was granted to consider the legality of the sentences imposed in view of the limit prescribed by Section 35(2) proviso (a) which stood exceeded. In miscellaneous petitions 15-R and 18-R of 1988 the petitioners themselves have raised inter alia the question of Section 35(2) proviso (a) as having been violated. In Criminal petition 169/89 the petitioner has merely prayed for the sentences to be ordered to run concurrently. Arguments on Section 35 Cr.P.C. were heard, though the greater concentration was on proviso (a) to sub-section (1) thereof. Since I wish to touch sub-section (1) of Section 35 Cr.P.C., I wish to express myself separately and take the liberty to do so herewith. 2. The main question that arises for consideration is whether Section 35 L Cr.P.C. compels a Court which has sentenced a person to life imprisonment with any other or similar sentence, to order the said sentences to run concurrently. In order to understand the problem, it is necessary to set out certain sections of the Pakistan Penal Code and the Code of Criminal Procedure as they were in force before the Law Reforms Ordinance, XII of 1972, and thereafter. BEFORE THE LAW REFORMS ORDINANCE, 1972 Pakistan Penal Code 53. The punishments to which offenders are liable under the provisions of this Code are,~ First, - Death; Secondly, -Transportation for life; Thirdly, - (Omitted); Fourthly, - Imprisonment, which is of two escriptions,namely :- (1) Rigorous, that is, with hard labour; (2) Simple; Fifthly, -- Forfeiture of property; Sixthly, - Fine. 54. In every case in which sentence of death shall have been passed, the Central Government or the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. 55. In every case in which sentence of transportation for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. 57. In calculating fractions of terms of punishment, transportation for life shall be reckoned as equivalent to transportation for twenty years. 58. In every case in which a sentence of transportation is passed the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation during the term of his imprisonment. 59.1n every case in which an offender is punishable with imprisonment for a term of seven years or upwards, it shall be competent to the Court which sentences such offender, instead of awarding sentence of imprisonment, to sentence the offender to transportation for a term not less than seven years, and not exceeding the term for which by this Code such offender is liable to imprisonment. 60. In every case in which an offender is punishable with imprisonment which may be of either description it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple. CODE OF CRIMINAL PROCEDURE 35.--(l) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code, sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment or transportation to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court :- Provided as follows:- (a) in no case shall such person be sentenced to imprisonment for a longer period than 14 years; (5) if the case is tried by a Magistrate (other than a Magistrate acting under Section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdcition, competent to inflict. (3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence. 368. (1) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (2) Sentence of transportation shall specify the place to which the person sentenced is to be transported. S.397. When a person already undergoing a sentence of imprisonment or transportation is sentenced to imprisonment or transportation, such imprisonment or transportation shall commence at the expiration of the imprisonment or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. provided that, if he is undergoing a sentence of imprisonment and the sentence on such subsequent conviction is one of transporation, the Court may, in its discretion, direct that.the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced. Provided further, that where a person who has been sentenced to imprisonment by an order under Section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. 402. (1) The Provincial Government may, without the consent of the person sentenced, commute and one of the following sentences for any other mentioned after it:- Death, transportation for life, penal servitude, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine. (2) Nothing in this section shall affect the provisions of Section 54 or 55 of the Pakistan Penal Code.AFTER THE LAW REFORMS ORDINANCE, 1972 Pakistan Penal Code 53. In para Secondly the words "transportation for life" substituted by the words "imprisonment for Life". 55. The word "transportation" substituted by the word "imprisonment". 57. The words "transportation" and "twenty years" substituted by the words "imprisonment" and "twenty-five years". 58. Section wholly omitted. 59. Section wholly omitted. ODE OF CRIMINAL PROCEDURE 35(1). The words "or transportation" omitted. 368 (2). Sub-section (2) wholly omitted. 397. The words "or transportation" substituted by the words "imprisonment for life" and the first proviso omitted by Central Act XXV of 1974. 402(1). The words "transportation for life" in the second para of sub-section (1) substituted by the words "imprisonment for life" by Central Act XXV of 1974. 4. The six different types of punishments to which offenders are liable under the Pakistan Penal Code are stated in Section 53 thereof. The first is death; the second was transportation for life, but is now imprisonment for life; the third was penal servitude, which was omitted by Central Act II of 1950; the fourth is imprisonment, which is of two description, namely (/) rigorous, that is, with hard labour and (//) simple; the fifth is forfeiture of property; and the sixth is fine. The old sentence of transportation for life, which is now imprisonment for life, and the sentence of imprisonment are therefore two distinct types of punishment. 5. The old sentence of transportation for life meant a sentence of transportation or banishment overseas for the whole of the remaining period of the convict's natural life. See Nga Tha Byit (1893-1900, L.B.R. 13) and Vushori Lai v. Emperor (AIR 1945 P.C. 64 = 72 I A. 149). Likewise, the now substituted sentence of imprisonment for life means a sentence of imprisonment within the country for the whole of the remaining period of the convict's natural life. See Muhammad Hussain v. State (PLD 1968 Lah, 1) and State of Madhya Pradesh v. Rattan Singh (AIR 1976 S.C. 1551). The sentences of transportation and imprisonment for life are therefore sentences of indefinite duration running through the whole of the remaining period of the convict's natural life. Likewise, the old sentence of transportation for a term, as provided by Section 59 PPC, meant a sentence of transportation or punishment for a limited period or term. Though in certain cases, not all persons sentenced to transportation for life or for a limited term were banished from the realm to serve out their sentences, the cauterisation of these sentences as 'transportation" was specifically adhered to in order to maintain thai fear arid a'.ve to ensure that they served their purposes as strong deterrents. However, the sentence of imprisonment, whether rigorous or simple, is nothing but a confinement of a person in a penitentiary, gaol or jail involving restraint of liberty. It is for a limited period as ordered by the Court. 6. Since the old sentence of transportation for life was of indefinite duration and it was not possible to predict how long a convict would live, to lay a basis for the remission system for the purpose of working out the remission, the said old sentence of transportation for life was trated as one for a definite period i.e. 20 years, as provided by Section 57 of the Penal Code and para 198 (/) (»') of the Punjab Jail Manual. By virtue of policy decisions taken by the Provincial Government from time to time and the rules framed under the Prisons Act, 1894, the case of a person sentenced to transportation for life in a case of murder could be sent up for release under Section 401 of the Code of Criminal Procedure to the Provincial Government under Para 141 of the Punjab Jail Manual if the convict had completed an aggregate period of 14 years' imprisonment, including all remissions earned. If he was not released, he had to wait till 20 years' imprisonment was served. The same is the position now in respect of a sentence of imprisonment for life which is treated as one for 25 years under Section 57 of the Penal Code, but it is basically for the limited purpose of the remission system. In the case of a sentence of imprisonment for life, the case of the convict can be sent up for release under rule 140 of the Pakistan Prison Rules, 1978, after he has undergone a minimum of 15 years substantive imprisonment, exclusive of remissions. This substantive period of 15 years provided by the rules framed under the Prisons Act, 1894, also serves merely as a basis for the working of the remission system, namely, that where the life convict has completed a substantive period of 15 years, excluding remissions of all kinds earned by him, his case can be forwarded to the Provincial Government for release, which the Provincial Government would normally make under Section 401 of the Code of Criminal Procedure. Where the release is not so granted, the life convict has to wait for his release till 25 years have been served. With the recent enforcement on 4.1.1991 of the Criminal Law (Second Amendment) Ordinance, I of 1991, the powers of the Provincial Government, the Federal Government and of the President to suspend, remit or commute any sentence under any of the powers available under the Penal Code and the Criminal Procedure code have been made subject to consent of the victim or his heirs, as the case may be. Notwithstanding this change, it is clear that apart from matters specifically relating to the remission system, fictionally for all legal purposes a sentence of transportation for life then meant and imprisonment for life now means a sentence for the remaining span of the natural life of the convict. 7. The two types of sentences i.e. (a) transporation or imprisonment for life and (b) transportation or imprisonment for a term are two distinct sentences, each being used in contradistinction to the other, both in the Penal Code and in the Code of Criminal Procedure. This is apparent from the following factors. In the Penal Code, wherever a sentence of transportation for life was intended, it was so clearly expressed. This scheme was also adhered to in the Code of Criminal Procedure. Now, however, wherever a sentence of imprisonment for life is intended, it is so stated separately in both the Codes. Likewsie, wherever a sentence of transportation for a term was involved, it was so separately expressed, and wherever a sentence of imprisonment for a term is involved, it is so separately expressed. This is also so in respect of provisons dealing with commutation. The commutation of the sentence of imprisonment for life to imprisonment of either description for a term is provided separately by Section 55 of the Penal Code. Likewise, the commutation inter alia of the sentences of imprisonment for life and of imprisonment, whether rigorous or simple, is provided by Section 402 of the Code. It is only in two sections of the Code of Criminal Procedure, namely, Sections 35 a»d 397, that the word "transportation" was used to convey both the punishments of transportation for life and transportation for a term. After the 1974 amendment, in Section 397 the words "or transportation" were substitued by the words "imprisonment for life". Here the classification between imprisonment for a term and for life was thus introduced. No such amendment was made in Section 35. Here the classification of imprisonment as for a term was allowed to stand. Both Sectons 35 and 397 deal with the rule of consecutive sentences. Thus, the sentences of imprisonment for life and the sentence of imprisonment, whether rigorous or simple, cannot be interchanged, one for the other, whilst interpreting Section 35(1) of the Code of Criminal Procedure, merely on the basis thai they form part of the same genus or by any rule of liberal construction. The earlier classification of the word "imprisonment" as being one for a term being clear and having been maintained, has to be acepted as such. 8. With the above background, I would now examine Section 35 of the Code pf Criminal Procedure. Under sub-section (1) of Section 35, where a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Penal Code, sentence him for such offences to the several punishments prescribed therefor which such Court is competent to inflict. This provision brings to the fore cases invoHng joinder of charges, as provided by Sections 234 to 236 and 239 of the said Code, where a vested right accrues to an accused to demand a single trial in respect of the several offences for which he may be charged, instead of being vexed by a string of trials covering those offences, and where the Court itself, by virtue of the special facts and circumstances before it, finds itself legally compelled to exercise its judicial discretion in favour of the accused and order a single trial. Thus, though it may be true that a person tried and convicted separately for each offence would have to suffer each of the punishments awarded in each of the cases consecutively, but where a single trial is legally permissible and held and a person is convicted therein for two or more offences, the remaining words of sub-section (1) of Section 35 clearly provide that such punishments, when consisting of imprisonment, would commence one after the other in such order as the Court may direct, unless the Court directs that they should run concurrently. The word 'imprisonment' is alone used. Prior to the amendment in 1974, the words used were 'imprisonment or transportation'. Thus (a) sentences of transportation for life or for limited terms and (fc) sentences of imprisonment, such as rigorous or simple, for limited terms had to commence the one after the expiration of the other, unless the Court directed that they should run concurrently. The word 'imprisonment' then distinctly meant imprisonment for a limited term. However, two years after the enactment of the Law Reforms Ordinance, 1972, by Section 4 of the Criminal Procedure (Amendment) Act, XXV of 1974, though the words 'or transportation' were omitted, the words 'or imprisonment for life' were not substituted hi their stead. A host of amendments made by the said 1972 and 1974 enactments to the Penal Code and the Code of Criminal Procedure substituted the words 'imprisonment for life' for the words 'transportation for life' wherever they appeared. The substitution was made in Section 397 of the Code which related to the sentence of an offender who had already been sentenced earlier. Here the rule of consecutive sentences is provided for. The omission of the words 'imprisonment for life' in sub-section (1) of section 35 of the Code for the worus 'or transportation' cannot therefore be treated as of any inadvertant import. It appears to be a deliberate omission and the reason for it is not far to seek, Previously, section 57 of the Penal Code provided a period of 20 years for the purposes of calculating fractions of terms of imprisonment in respect of cases relating to transportation for life, whereas after the enactment of the Law Reforms Ordinance, 1972, the said period for the purposes of life imprisonment was raised to 25 years. Considering that the period for the purposes of remission system was raised from 20 years to 25 years and the general run of hardened convicts that are convicted to life terms fall in middle age groups who can almost be compelled to serve out 25 years' imprisonment, if remissions are not granted, which would almost take them through their natural life, the necessity of substituting the words 'or imprisonment for life' for the words 'or transportation' was not perhaps considered desirable and the word 'imprisonment' which cove.i ed punishment for a limited term, was allowed to remain. In these circumstances, a | sentence of imprisonment for life cannot be permitted to run consecutively with f any other or similar sentence. Like the sentence of death, which, when executed, excludes the execution of a similar sentence, so the serving out of a sentence of life imprisonment by legal fiction would amount to the serving out of a sentence for the remaining span of the normal life of the convict, thus debarring any further execution of any other or similar sentence awarded in the same trial. Where a penal statute provides a clear benefit to an accused, it cannot be taken away or whittled down by any forced construction, and where a particular category or class which was previously consistently maintained, such as for "imprisonment, as involving punishment for a term, has been allowed to stand now alone by itself and life imprisonment has not been added, the intention of the draftsman is to take the case of life imprisonment out of the rule of section 35 (1) and I would hold that the observations in Javed Sheikh's case (1985 SCMR 153) that section 35 (1) of the Code covers life imprisonment, are not entirely correct and call for review. 9. At this stage I may mention that there is also section 382-B of the Code where the words "sentence of imprisonment" appear and which section directs the Court, where it passes a sentence of imprisonment for an offence, to take into consideration the period, if any, during which such accused has been detained in custody for such offence. This section was introduced by the Law Reforms Ordinance, 1972. It was not a part of the format of the Code as originally planned and conceived. Since this section provides a benefit to an accused, it can be beneficially construed in favour of the accused to cover the case of life imprisonment as well. In Qadir and Bashir v State (CrA. Nos. 142 and 143 of 1987 decided by a Bench of three Judges on 28.4.1991), this Court has construed the said section beneficially to include cases of life imprisonment. But section 35 (l)'of the Code cannot be so beneficially construed, for it would work an injustice by placing life imprisonment in the category of imprisoment which is only intended for a term. 10. The next question is, what is the effect of proviso (a) to sub-section (2) of Section 35 of the Code on the same matter? Does it imply that since all consecutive sentences shall not run for more than fourteen years, a sentence of life imprisonment awarded to an accused cannot be ordered to run consecutively with any other or similar sentence. My learned brother Shafiur Rahman J, has dealt with this matter in some detail and I need not drag a greater length of chain. I agree with his view that section 35 (2) is only intended to cover cases dealt with by Magistrates and that it does not apply to cases dealt with by the Sessions Judge or the High Court. Accordingly, the earlier view expressed by this Court in Javed Sheikh's case, Juma Khan's case, Muhammad Ittefaq's case and Khan Zaman's case as regards the effect of section 35 (2) proviso (a) of the Code, not being correct, also requires to be reviewed and I support my learned brother in that respect. 11.1 would now turn my attention to the question of punishment. Chapter III of the Pakistan Penal Code deals with the question of punishment, whereas Chapter III of the Code of Criminal Procedure deals with the powers of Courts to impose the same. I need not discuss in detail the rationale of punishments, other than state that it is the sacred and mandatory duty of the Courts to determine the right measure of punishment, so that no injustice is done. Though the nature of punishment, may sometimes be circumscribed, generally the range available or offered is sufficient to place the case in the field of judicial discretion, which has to be exercised, subject to accepted and sound judicial considerations. However, the necessity of proportion between the offence and penalty and some balance between the motivating factors and the result produced, have to be kept in mind, apart from so many other factors, which keep rising separately in each case and cannot admit of any codification. Last but not least, the duty of the trial Court to finally address itself to the question whether the sentences awarded should run concurrently or consecutively, irrespective of the rule contained in section 35 (1) of the Code, and whether the detention undergone by an accused during his trial should be treated as period spent by him as a convict, for the purposes of the . benefit available under section 382-B of the Code, are as much mandatory for determination as the question of punishment itself. Basically, they are matters ancillary to the question of punishment, but otherwise highly important. Where there is a failure on the part of the trial Court to determine these questions, difficulty would arise, because of section 369 of the Code. However, during appeal or revision before the High Court, the High Court could itself examine these questions, subject to limitations, if any, provided by law and principles laid down by this Court, and determine these matters. Again, where by inadvertance there is failure on the part of the High Court to determine these questions, I cannot see any reason why resort cannot be had to section 561-A of the Code to cure the failure, in order to secure the ends of justice. Surely an attempt to cure inadvertant omissions in the nature of errors ancillary to punishment, cannot be allowed to be frustrated by section 369 of the Code. Section 369 falls under Chapter XXVI of Part VI of the Code, whereas sections 424 and 430 fall in Chapter XXXI of Part VII of the Code. Under section 424, the rules contained in Chapter 'XXVI as to the judgment of a Criminal Court of original jurisdiction mandatorily apply, so far as may be applicable, to the judgment of any Appellate Court other than a High Court. Under section 430, judgments and orders passed by an Appellate Court upon appeal are treated as final, except in the cases provided for in section 417 and Chapter XXXII. Section 417 deals with appeals against acquittal and Chapter XXXII deals with references and revisions. In view of sections 424 and 430, the bar of section 369 only applies to judgments of the High Courts given in the exercise of their criminal original jurisdiction, but not if given in the exercise of their criminal appellate jurisdiction. In Gulzar Hasan Shah v. Ghulam Murtaza (PLD 1970 S.C. 335) this Court, whilst dealing with the question whether an order of cancellation of bail of an accused could be recalled by the High Court, observed that "in rare and exceptional cases the High Court has inherent pbwer to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430 with a view to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice". This view was expressed after the learned Judge expressed the rule that he was conscious of the fact that general principles of finality of judgment attached to the decisions or orders of the High Court passed in criminal cases. This view was followed in Amiruddin v State (PLD 1977 S.C. 602), which also related to a bail matter, and by a Full Bench of the Lahore High Court in ZulfiqarAli v State (PLD 1984 Lah 461), which held that the High Court under section 561-A could'grant relief under section 382-B of the Code hi a case decided by itself where inadvertantly it had omitted to give relief under the I latter section. Section 561-A recognizes the inherent powers possessed by a High Court to secure the ends of justice and as a Court of law and justice the High Court has inherent jurisdiction over its own record and, to quote Muhammad Munir C.J., from Crown v Habibullah (PLD 1952 Lah 587 at 600) "if any order to supply the ommission of the statutory direction is necessary, I have no doubt we have jurisdiction to make such order even though we might have become functus officio after signing our judgment, and therefore incompetent to alter or review it." The power of the High Court to supply the inadvertant omission cannot therefore be denied to the High Court. Finally, where by inadvertance there is failure on the part of the Supreme Court to determine these questions, its own inherent powers under Order XXXII rule 6 of its own Rules could be availed to secure the ends of justice. 12. I now turn to the question of commutation. The power to commute a sentence, whether under the Constitution, the Pakistan Penal Code or the Code of Criminal Procedure, is vested either in the President, the Federal Government, or the Provincial Government within whose limits the offender has been sentenced. This power is within the field of the executive and definitely outside the scope of the judiciary. Presently there is no provision in the Constitution, the Pakistan Penal Code or the Code of Criminal Procedure which provides that the commuted sentence or sentences shall run concurrently, with others, if any awarded by the Court. The view of my learned brother that where a person is convicted at one trial for two or more offences and if one of them is sentenced to death and the same is commuted to life imprisonment, "in the absence of any provision directly applying to the case, the sentence so commuted shall be required to be undergone concurrently and not consecutively", impliedly accepts the fact that since sections 35 and 397 Cr.P.C, are not applicable, the rule stated in para 8 applies as the case is taken out of the ambit of section 35 (1) of the Code. 13. Where a commutation is granted, the convict can always approach the person or authority granting the commutation to permit the commuted sentence or sentences to run concurrently, with the other sentences, if any awarded. The person who has the power to commute, also has the power to order that the same, with others, may run concurrently. But this, however, does not prevent the High Court or the Supreme Court to examine the original sentences awarded, to see i whether they should run concurrently or not. Where a sentence is commuted, it only acts as a substitute for the earlier sentence awarded. If during such \ examination, a sentence has already been commuted, it cannot deter the High Court or the Supreme Court from examining whether the sentences, as awarded before the commutation, deserve to run concurrently, and if it finds that they should run concurrently, it can order accordingly. 14. In view of the above, I would deal with each case as follows:- (0 Cr.M. No. 15-R of 1988 in Criminal Appeal No. 144-R of 1979: I agree with the view of my learned brother that this petition be dismissed. (h) Cr.M. No. 18-R of 1990 in Criminal Appeal No. 133 of 1981: As stated in para 8 above, the sentences should run concurrently. Even otherwise the same Bench that heard Criminal Appeal No. 133 of 1981. can examine the question whether it had not by inadvertance failed to order the sentences to run concurrently, in which case it can order accordingly under its inherent powers. This Bench should not go into this matter. (Hi) Cr.P.L^i. No. 169-R of 1989: I agree that this petition be admitted and the appeal be placed before the same Bench that heard the case finally in the Supreme Court so as to examine the question whether it had not by inadvertance failed to examine the question, or by inadvertance failed to order the sentences, as awarded before the commutation, to run concurrently, in which case it can open up the question or order accordingly under its inherent powers. (rv) Criminal Appeal No. 164 of 1987: This appal has already been admitted to consider the legality of the sentence imposed. It should be placed before a Bench to determine this matter, so that this Court can also determine the ancillary question whether in the circumstances of the case, the sentences should be ordered to run concurrently. (v) Criminal Appeal No. 176 of 1986: The High Court on the basis of Javed Sheikh's case has allowed the sentences to run concurrently. The State's appeal against this order is now before the Supreme Court.As stated in para 8 above, the sentences should run concurrently.The respondents can support the High Court's order on facts, even if the legal basis fails. In appeal the Supreme Court cannot shut its eyes to the question of legality of the sentence. This appeal should be placed before a Bench to determine this matter. (vi) Criminal Appeal No. 186 of 1988: This appeal has been 1 admitted on merits. It should be placed before a Bench for necessary disposal. (vh) Civil Apeal No. 440 of 1986: Same view as in (v) above. (viii) Civil Appeal No. 441 of 1986: There was a direction by the trial Judge that if the sentences of death were altered to sentences of imprisoment, the other sentences awarded would run concurrently. The High Court allowed appeal I.CA. 252/1983 in view of this fact and Javed Sheikh's case. The State's appeal is now before the Supreme Court. There being no merit in this appeal, the same be dismissed. (be) Civil Appeal No. 442 of 1986: I agree with the view of my learned brother that the appeal be dismissed. Saleem Akhtar, J.--I have read the exhaustive judgments proposed by my learned brothers Shafiur Reliman, J and Rustum S. Sidhwa, J. So far question of reviewing the decision given in Javaid Shaikh vs. The State (1985 SCMR 153) is concerned, I entirely agree with my learned brother Shafiur Rehman, J for the reasons stated in paragraph 13 of the judgment. 2. With respect I have not been able to persuade myself to the view that where a person is convicted at one trial for two or more offences one of them being death sentence and if the same is commuted to life imprisonment then sentence so commuted shall be required to be undergone, concurrently and not consecutively. The remission or commutation of sentence is an executive act. Section 53 of the PPC provides different types of punishments while Section 54 empowers the Federal or the Provincial Government to commute punishment for any other punishment provided by this Code in case in which the sentence of death shall have been passed. Section 55 confers the power to commute the sentence of imprisonment for life to punishment of imprisonment of either description not exceeding fourteen years. Section 401 Cr.P.C confers a power on the Provincial Government which may at any time unconditionally or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Subject to Section 403 B and without prejudice to Section 54 and 55 PPC the Provinicial Government is empowered under Section 402 Cr.P.C. to commute the sentence for any other sentence mentioned in it. Under Section 402A Cr.P.C the powers conferred under Sections 401 and 402 in the case of sentence of death can be exercised by the President. The President and the Governor have also the power to remit, reprieve, and grant pardon under the Constitution but it is not necessary to deal with it any further. 3. Reference to the aforestated provisions has been made to illustrate the source from where the power to remit or commute the sentence is derived by the Provincial or the Federal Government. The power conferred on the Government is discretionary and executive in nature. These provisions do not empower the Government to reverse, set aside or alter the judgment of the court convicting and sentencing a person to a punishment. In G.L. Bhattacharya vs. The State, PLD 1964 SC 503, the President had passed an order to reduce the sentence. Cornelius, CJ, while referring to Article 18 of the Constitution of 1962 (similar to Article 45 of the Constitution of 1973) observed as follows:- "It is plain that the order was made without reference to that Article, for it states that the President had been pleased 'to reduce the sentence' while Article 18 gives power to 'grant pardons, reprieves and respites, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority, but does not empower the President to reduce a sentence. In fact, the function of determining a sentence is exclusively a judicial function and equally, it is a purely judicial function to enhance or reduce a sentence."The enhancement or reduction of a sentence is a judicial function but once remission or commutation of sentence is granted partly, by any authority, the overall effect is that the convict is not inflicted with the entire punishment awarded to him. The judgment and sentence remains in the field for all purposes except that its infliction or execution is partly given up. In these circumstances it is to be considered whether a partial remittance or commutation as ordered by the Government will entitle the convict to claim that the sentences may run concurrently. Section 35 clearly provides that where the court does not specifically mention in the order that the sentence shall run concurrently they will run consecutively. This is the exclusive jurisdiction of the court to order the sentences to run concurrently. Then mere fact that the Government has decided to give up the infliction of punishment partly will hardly afford a ground to the convict to claim that the sentences should now run concurrently. Where the death sentence is commuted to life imprisonment, the judgment of the court is not altered. Therefore, it has to be executed to the extent of commutation which though not legally but in effect may amount to substitution by not enforcing the sentence ordered by the court. 4. In view of the foregoing discussion the individual matters which require disposal may be dealt with as under:- 1. I agree with the judgment of my learned brother Shafiur Rehman, J. in the following matters: (0 Cr. Misc. Petition No. 15-R/1988 in Criminal Appeal No. 144-R/1979. (if) Cr, Misc. Petition No. 18-R/1990 in Criminal Appeal No. 133/1981. (/«) Criminal Appeal No. 164 of 1987. (/v) Criminal Appeal No. 186 of 1986. (v) Civil Appeal No. 441 of 1986. (vi) Civil Appeal No. 442 of 1986. 2 Criminal Petition for leave to appeal No. 169-K of 1989. This petition be admitted to examine the question whether in absence of any specific direction by the court, can after commutation or remission of sentence the court subsequently issue direction that the sentence of imprisonment should run concurrently. 3. Criminal Appeal No. 176 of 1986. As Javaid Shaikh's case has been reviewed, this appeal should be placed before a Bench to consider the above question. 4. Civil Appeal No. 440 of 1986. Same view as above. ORDER OF THE COURT The Court is unanimously of the view that the judgments of this Court in Javed Shaikh versus the State (1985 SCMR 153), Juma Khan and another versus the State (1986 SCMR 1573), Muhammad Ittefaq versus the State (1986 SCMR 1627) and Khan Zaman and others versus the State (1987 SCMR 1382) require review and are hereby reviewed to hold that proviso (a) to sub-section (2) of section 35 Criminal Procedure Code does not apply to cases of sentence awarded by the Sessions Court in original trial. It does not, therefore, apply to cases of imprisonment for life imposed in murder trial. The court by majority of opinion holds that- (/) the sentence of life imprisonment, unless ordered to run concurrently under sub-section (1) of section 35 Cr.P.C. will run consecutively in view of its quantification in terms of years under section 57 of the Pakistan Penal Code; and («) the executive order of commutation of sentence of death into life imprisonment takes effect forthwith making such sentence to run concurrently with any other sentence ordered by the Court.The Court unanimously holds that Criminal Miscellaneous Petition No. 15- R/1988 in Criminal Appeal No. 144-R/1979 and Civil Appeals No. 441 & 442/1986 be dismissed and are hereby dismissed and that Criminal Appeal No. 186/1986 shall await disposal on merits.By majority view, the court holds that-(z) Cr.M.P.No. 18-R/90 in Cr A. 133/1981 stands dismissed. («) Cr.P.LA.No. 169-R/1989 is converted into appeal and allowed to the extent that only sentence commuted to life imprisonment shall run concurrently with the other sentences awarded in the case. As regards the prayer of benefit under section 382-B of the Criminal Procedure Code, it cannot be claimed outside the judgment and independently of it from the Supreme Court. (hz) Criminal Appeal No. 164/1987 to the extent it challenges the consecutive sentence stands dismissed. In other respects it will await hearing. (/v) Criminal Appeal No. 176/1986 is allowed only to the extent that only commuted sentence of life imprisonment will run concurrently and not the others which are governed by section 35 (1) of the Criminal Procedure Code. (v) Criminal Appeal No. 440 of 1986 is dismissed. (MBC) (Approved for reporting) Orders accordingly

PLJ 1992 SC 33 PLJ 1992 SC 33 Present: Dr. nasim hasan shah, ali hussain qazilbash and muhammad rafiq tarar, JJ MUHAMMAD BASHIR-Appellant versus CHAIRMAN, PUNJAB LABOUR APPELLATE TRIBUNAL, and 2 others-­ Respondents Civil Appeals Nos.742 of 1988, 498 and 566 of 1989, dismissed on 15.7.1991. [On appeals from judgments dated 2.12.1985,19.7.1986 and 1.4.1987 of Lahore High Court, in W.P. Nos.1556 of 1985, 2939 and 5165 of 1986 respectively.] Back Benefits— —Employees—Re-instatement into service of—Back benefits—Award of Principles for-Two principles are now established under judgments of Supreme Court, namely (1) that back benefits do not automatically follow order of re-instatement where order of dismissal or removal has been set aside, and (2) that onus of proof that workman.was not gainfully employed during period of dismissal or removal from service, lies on employer subject to proviso that workman has asserted at least orally in first instance that he was not gainfully employed elsewhere. [P.35&36]A&B PLD 1985 Quetta 100,1985 SCMR 1882 and PLJ 1990 SC 373 discussed. Mr.Muhammad Asghar Malik, Advocate, Supreme Court, instructed by Ch. Mehdi Khan Mehtab, AOR for appellant (in CA.742 of 1988). Respondents: Ex-parte (in CA.742 of 1988). Mr.MAsadullah Siddiqui, Advocate, Supreme Court, instructed by Sh. Salahuddin, AOR for Appellant (in CA. 498 of 1989). Mr.M.Bilal, Advocate, Supreme Court, for Respondents 3 to 6 (in CA.498 of 1989). Respondents 1 & 2: Ex-parte (in CA. 498 of 1989). Ch.Ghulam Qadir Cheema, Advocate, Supreme Court, and Ch.Mehdi Khan Mehtab, AOR for Appellant (in CA.566 of 1989). Mr.Shahid Hamid, Advocate, Supreme Court for Respondent No.l (in CA.566 of 1989). Respondents 2 & 3: Ex-parte (in CA. 566 of 1989). Date of hearing: 1.7.1991. judgment Nasim Hasan Shah, J.-The above noted three appeals have been heard together as the question of law arising in all of them is common namely that when the services of a workman are found to have been terminated illegally is he entitled to the back benefits on re-instatement, unless it has been proved that he was engaged in some gainful employment during the period that he remianed out of service? The Division Bench of the Baluchistan High Court in National Bank of Pakistan & another Vs. Muhammad Asif Ahmad & others (PLD 1985 Quetta 100) found that where the Presiding Officer after assessing the evidence led by the parties came to the conclusion that the termination order was illegal and offended against law prescribed in this behalf and this finding was also confirmed by the Appellate Tribunal, the workman was entitled, as a natural corollary to the back benefits unless it could be shown that he was gainfully employed elsewhere during this period, the burden of proving which fact lay on the employer. The question has arisen whether the above dictum enunciates the correct law on the subject?This Court has had occasion to deal with somewhat similar questions more than once. In the case of Dilkusha Enterprises Ltd. Vs. Abdul Rashid and others (1985 S.C.M.R. 1882) the question arose whether the onus to prove that he was not gainfully employed during the period that he (the workman) remained out of service rested on him and was to be discharged by him? This Court in this case observed- "We are unable to agree with the broad proposition of law that the initial burden to prove lies, upon the worker to establish that he was not gainfully employed elsewhere during the relevant period in order to succeed to the grant of back benefits, for, this being a negative fact the worker can hardly establish it with anything substantial evidence except his oral assertion that he was not gainfully employed elsewhere and then it would be for the employer to prove affirmatively that he was so employed". The same question arose in Qadeer Ahmad Vs. Punjab Labour Appellate Tribunal, Lahore and another (PLJ 1990 S.C. 373) and was dealt with more elaborately. In this case, the Court observed that the back bnefits did not necessarily follow from the order of the Court holding the order of dismissal from service as wrongful and went on to add: "The law laid down by this Court in Pakistan through General Manager, P.W.R. Lahore Vs. A.V. Issacs (PLD 1970 S.C. 415) related to anunconditional setting aside of the order of dismissal and restoration to office of a functionary. A case where the functionary is kept out of office for no fault of his. Where a functionary is kept out of office partly or wholly on account of conduct attributable to him, then in that case the availing of the back benefits does not follow either under the law or principles laid down in Mrs. A.V. Issacs's case. So far as the Government servants are concerned, under Section 17 of the Civil Servants Act, the. authority setting (aside) the dismissal order has been authorised to pass such orders as regards back benefits as it considers fit. The proviso reads as under: "Provided further that where a civil servant has, under an order which is later set-aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine". In the case of workmen availing of Section 25-A of the Industrial Relations Ordinance for redress of their grievances a similar power in more general terms is possessed by the Authorities dealing with the grievances as the Labour Court has been authorised under clause (5) of Section 25-A to "go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case." The Court then went on to observe-" "As regards the question of entitlement to back benefits, the established proposition is that where the order of dismissal or removal has been set-aside unconditionally, found to be without jurisdiction and uncalled for, necessarily the back benefits have to be paid. It has to be paid under the authority of the Tribunal or person setting aside the order of dismissal and if no such order is passed, then under the orders of the competent authority in the matter Mere setting aside of the order of dismissal irrespective of whether it is set-aside conditionally or unconditionally would not, as claimed by the appellant, entitle the affected functionary to claim arrears of pay and back benefits". We might add that what will be "just & proper" under clause (5) of Section 25-A of the Industrial Relations Ordinance will depend on the question whether the order of removal or dismissal is found to be without jurisdiction, unwarranted and uncalled for or whether it has been actuated partly or wholly on account of the conduct attributable to Kim. In the former case he would be entitled to avail of the back benefits while in the latter case, his claim in that regard may not be "just & proper". However, two principles are now established under the judgments of this Court: (a) that back benefits do not automatically follow the order of re-instatement I» where the order of dismissal or removal has been set-aside; and ' (&) as regards the matter of onus of proof in cases where a workman is entitled to receive the back benefits it lies on the employer to show that the workman was not gainfully employed during the period the workman was deprived of service till the date of his re-instatement thereto; subject to the proviso that the workman has asserted at least orally, in the first instance, that he was not gainfully employed elsewhere. On his mere statement to this effect the onus falls on the employer to show that he was so gainfully employed. The reason is that back benefits are to be paid to the workman not as a punishment to the employer for illegally removing him but to compensate him for his remaining jobless on account of being illegally removed from service. We may now take up the above mentioned three appeals for determination in the light of the above noted principles. CIVIL APPEAL NO. 742 OF 1988 (Muhammad Bashir Vs. Chairman, pb. Labour Appellate Tribunal & 2 others) In this case,- the back benefits were allowed by the Labour Court to the workman but on appeal they were disallowed because the Appellate Tribunal found that the employees (including the appellant) were guilty of "contributory negligence", in that the water guage was kept low continuously, knowing that it may result in damage to the boiler and this fact was not notified to the higher authorities nor they were moved to change the boiler or to reduce its load and this "contributory negligence" was held to have disentitled the workman from back benefits. In our opinion, though the order of re-instatement was proper on the legal plane but as the conduct of the workman was not blameless and this contributed to the loss caused to the management which they were bound to serve loyally and devotedly, the refusal to pay back benefits was unexceptionable. As such an order to this effect was quite "just and proper" within the meaning of sub-section (5) of Section 25-A of the Industrial Relations Ordinance. This appeal, therefore, is liable to be dismissed. CIVIL APPEAL NO. 498 OF 1989 (Muhammad Idrees Vs. Punjab Labour Appellate Tribunal, Lahore & 5 others) In this case, the back benefits were refused on the ground that the workman involved did not state, even in his statement that he was not gainfully employed elsewhere during the relevant period. Since no oral assertion was even made on the part of the workman that he had not been -gainfully employed during the period of his severence from service, the Courts below were justified in not allowing back benefits to him. This appeal too is liable to be dismissed. CIVIL APPEAL NO. 566 OF 1989 (Syed ArifHussain Naqvi Vs. 77ie Personnel and Administrative Manager etc.) In this case, the learned Labour Court ordered re-instatement of the appellant in service but declined to pass any order for back benefits. Since there was no evidence nor even any oral assertion that the appellant had remained unemployed during the period in question, the Labour Court rightly declined to grant him the back benefits. However, before the Appellate Tribunal, the appellant did apply for permission to lead additional evidence to show that he was not gainfully employed during the period that he was out of service. According to him he had inadvertantly omitted to mention this fact in his evidence and that he may be allowed to state and prove the same by way of additional evidence. The prayer for additional evidence was, however, rejected by the learned Appellate Tribunal and the High Court has also upheld the order of the Appellate Tribunal on this point. In our opinion, procedural and technical rules which unnecessarily impede the ascertainment of the exact and true position of the case should not be strictly enforced, especially in such proceedings. We were inclined, therefore, to set-aside the order of the Appellate Tribunal as well as that of the High Court and send back the case to the Labour Court for allowing the appellant to assert that he had not been gainfully employed during the period that he was out of service. However, on perusal of the order of the Labour Appellate Tribunal we found that on the merits the charge relating to the receipt of illegal gratification by the appellant had been established before the Inquiry Officer but the said "learned" officer arrived at a curious conclusion wherein he exonerated the appellant of that charge but convicted him of the other charge (of illegally removing polyester which charge had not been established). Therefore, the appellant obtained benefit of exoneration on the more serious charge of illegal gratification, of which he was really guilty, and ultimately also received the benefit of having been wrongly found guilty of the other charge, which was not really established. Therefore, we do not think that the re-instatement of the appellant can be deemed to be the reinstatement of a workman whose conduct was not partly responsible for his removal from service. He could, therefore, be refused arrears under clause (5) of Section 25-A, as discussed above. This appeal too is, accordingly, liable to dismissal. The overall conclusion is that all the three appeals fail and are dismissed hereby. The parties, however, will be left to bear their own costs. . ' (MBC) (Approved for reporting) Appeals dismissed.

PLJ1992SC37 PLJ1992SC37 [Appellate Jurisdiction] Present: muhammad AKZAL zullah, CJ and saad saood jan, J MUHAMMAD NAWAZ-Appellant Versus ABDUL HAKIM and 11 others-Respondents Civil Appeal No.729 of 1988, partly accepted on 8.6.1991. [On appeal from judgment dated 6.3.1985, of Lahore High Court, in W.P.No.400- R of 1977.] Settlement and Rehabilitation Matters— —Evacuee land—Excess land than entitlement of claimant—Retention by claimant-Challenge to-When a claimant having unsatisfied P.I. Units is . pitched against a claimant who after having received his entitlement, seeks additional land or seeks to retain land already obtained in excess of his entitlement, former would have preference both in law and in propriety—Held further: Appellant being informer and claimant, would be entitled to utilize land in dispute for satisfaction of his unsatisfied P.I. Units in preference to respondents retaining area in excess of their entitlement. [P.39JA&B Syed Muhammad Zainul Abidi/i, Advocate, Supreme Court, and Mr.Iqbal Ahmad Qureshi, AOR (absent) for Appellant. Maulvi Sirajul Haq, Senior Advocate, Supreme Court, and Mr.Ejaz Ahmad Khan, AOR (absent) for Respondents 1 to 11. RaoM.Yousaf KJian, AOR for Respondent No.12. Date of hearing: 8.6.1991. judgment Muhammad Afzal Zullah, CJ.-This appeal through leave of the Court is directed against a judgment of the High Court; whereby in a land settlement case the respondents' side was allowed to retain area in excess of entitlement; notwithstanding the appellant informer side having not yet been able to satisfy their P.I. Units. The facts and point noted in the leave grant order are as follows:- The appellant laid information before the Settlement authorities that Mst. Lalan had obtained allotment of land much in excess of her actual entitlement. The Additional Settlement Commissioner held an inquiry and found that she had obtained allotment in excess of her entitlement to the extent of 986 units. Accordingly, he cancelled the excess allotment and directed that the area becoming so available should be given to the appellant. His order was challenged in appeal by Jamal Din, predecessor-in-interest of respondents No. 1 to 5, and some others but their appeal was dismissed. Jamal Din and the daughter of Mst. Lalan filed a writ petition in the High Court. Their case was that the excess allotment had been obtained on account of miscalculation of produce index units inolved in the allotment and that under the instructions issued by the Chief Settlement and Rehabilitation Commissioner they were entitled to purchase the area which they were being made to surrender. A learned Single Judge in the High Court accepted the writ petition and remanded the case to the Settlement Commissioner for redecision. After the remand the Settlement Commissioner took the view that it was not a case of miscalculation but one of concealment of true entitlement. Accordingly, he upheld the earlier order of the Additional Settlement Commissioner. The order of the Settlement Commissioner was once again challenged in writ jurisdiction. A learned Single Judge set aside the order of the Settlement Commissioner and directed that the excess area should be sold to the allottees at the rate of Rs. 100/- per produce index unit in four equal instalments to be payable within two years. In support of this plea it was contended that there was a definite finding by the Settlement Commissioner that the excess allotment had been obtained through misrepresentation and that it was not open to the High Court to interfere with this finding in \vrit jurisdiction. Apart from that, an informer had a statutory right to obtain the land becoming available as a result of the information supplied by him. The order of the learned Single Judge had the effect of depriving the appellant of this statutory right. After reading of the leave grant order both the learned counsel were put on notice that we would hear a further question: as to whether in the circumstances of this case the High Court should have exercised its discretion in Writ jurisdiction in favour of the respondents' side? As is apparent from the record, there is a finding of fact that the respondents' side had obtained land in excess of their entitlement. The factual controversy, as to whether there was or was not any fraud or misrepresentation, does not make much difference. It has been ruled in number of cases that when in the same matter a claimant having unsatisfied P.I. Units is pitched against a claimant who after having received his entitlement, seeks additional land or seeks to retain land already obtained in excess of the entitlement the former would have preference both in law and in propriety. This answer would resolve all the questions which arise in this case. The appellant being informer and claimant would be entitled to utilize the land in dispute for the satisfaction of his unsatisfied P.I. Units in preference to the respondents retaining area in excess of their entitlement. The High Court, therefore, to say the least, should not have exercised its discretion in Writ jurisdiction in favour of the respondents. Accordingly, we partly allow this appeal with the direction that if in case till now the appellant's unsatisfied units have already been satisfied, the land would be left with the respondents in accordance with the directions of the High Court. The same principle would apply mutatis mutandis to any part of the appellant's claim and the corresponding part of .the excess land. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 SC 40 PLJ 1992 SC 40 [Appellate Jurisdiction] Present; muhammad afzal zullah, CJ and abdul shakurul salam, J SHUKAR DIN-Petitioner versus INAMULLAH and another-Respondents . Criminal Petition No.323-L of 1991, dismissed on 24.11.1991 [On appeal from judgment dated 25.8.1991, of Lahore High Court, in CrlA.No. 511 of 1991.] Remand— —Conviction of respondent No.l in murder case-Appeal resulting into remand-Challenge to-Respondent No.l was convicted for murder and was sentenced for life imprisonment and fine-High Court found that complaint case filed by accused side which purported to be a cross-case, had not been tried and concluded in accordance with law laid down by superior courts-High Court accepted appeal and remanded case for fresh trial in accordance with law—Held: No justification has been made out for interference—Leave refused. [P.40&41]A ,B,C &D Ch. Muhammad Abdul Wahid, Senior Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Petitioner. Ch. M.Ismail, Senior Advocate, Supreme Court for respondent No.l. Mr. S.D. Qureshi, Advocate, Supreme Court for State. Date of hearing: 24.11.1991. order Muhammad Afzal Zullah, C J.-The complainant side in a challen case has called in question the remand of the case by the High Court on appeal filed by the accused/convict in the said case. According to learned counsel the respondent Inamullah was challaned in a case registered by the police on the complaint of the petitioner. He was convicted for murder with the sentence of Me unprisonment and fine. During the hearing of the appeal the learned Judge in the High Court discovered that the complaint case filed from the accused side which purported to be a cross-case had not been tried and concluded in accordance with law laid down by the superior Courts from time to time. As a result the respondent's appeal was allowed and the case was remanded for fresh trial in accordance with law. After some arguments learned counsel for the petitioner has stated that the J 'j afore noticed rule of practice had not been satisfied and that in so far as the legality of the order of remand is concerned, it may not be possible to assail thel same. He, however, vehemently argued that this defect should have been pointed out at the trial stage by the other side. But he failed to advance the point any further when questioned as to why the petitioner side did not perform the same duty to the Court-as all the parties and their counsel were bound to assist the Court in pursuance of the rule of good conduct in the Court; namely when seeking justice do justice. This saluable rule of practice has also the support of Islamic jurisprudence. In the light of the foregoing discussion no justification has been made out foiJD interference by this Court. Leave to appeal, therefore, is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 41 PLJ 1992 SC 41 [Appellate Jurisdiction] Present: SAAD SAOOD JAN AND RUSTAM S. SlDHWA, JJ MUHAMMAD YOUSAF and 3 others-Appellants versus ZAFARULLAH and another-Respondents Civil Appeal No.692 of 1989, dismissed on 21.10.1991. [From judgment dated 26.11.1989, of Lahore High Court, passed in C.R. 1075 of 1989.] Provincial General Clauses Act, 1956 (W.P. Act VI of 1956) —S.8-Pre-emption suit-Decree passed in-Order passed for deposit of decretal amount-Whether date on which order was passed, is to be excluded while reckoning period-Question of-This is a case not of enactment or contract, but of an order passed by a Judge—Under Section 8 of Provincial General Clauses Act, 1956, a date from which period of time is to be reckoned, has to be excluded while computing period-Held: View of learned single Judge is appropriate and correct-Appeal dismissed. [Pp.43&44]A PLJ 1978 Lahore 158 distinguished. Mr.Talib H. Rizvi, Advocate, Supreme Court, instructed by S-AK Imam Naqvi, AOR for Appellants. SAbulAasim Jaferi, AOR (absent) for Respondent No.l. Mr.C-A. Rehman, Advocate, Supreme Court, instructed by Ch.Ghulam Mujtaba, AOR for Respondent No.2. Date of hearing: 21.10.1991. 4 judgment Rustam S. Sidhwa, J.-This is an appeal by Muhammad Yousuf and others, appellants, against the judgment of learned Single Judge of the Lahore High Court dated 26.11.1989 accepting the revision petition filed by Zafarullah and another, respondents, and remanding the execution petition filed by them for further disposal by the Executing Court in accordance with law. 2. A decree for possession through pre-emption with respect to the land in dispute was passed in favour of Zafarullah and another, the present respondents, against Muhammad Yousuf and others, the present appellants, by the trial Court on 6.11.1983, subject to deposit of Rs. 99500/- within one month of the date of decree. No appeal was filed against this decree which became final. However, during the course of execution, an objection was raised by the appellants that the respondents had failed to comply with the terms of decree and as such their suit stood dismissed. It was asserted that though the decree required the deposit of the purchase money within one month, the amount was deposited on 6.12.1983, which was not due compliance of the decree. This objection was upheld by the Executing Court, with the result that the execution petition filed by the respondents was dismissed on 21.12.1987. Aggrieved, the respondents filed an appeal, which too was dismissed by an Additional District Judge on 11.2.1989. The respondents thereupon filed a revision petition in the High Court, whLh was accepted, the impugned orders of the Courts below were set aside and the execution petition filed by the respondents was remanded to the Executing Court for disposal in accordance with law. Being aggrieved by the said judgment, the appellants preferred the present direct appeal to this Court, which is now before us for disposal. 3. On behalf of the appellants it is submitted that the learned Civil Judge on 6.11.1983 decreed the suit of the respondents in the following terms:- The words " • - — ^S^dZ- £J "clearly indicate that time of one month was to be computed from 6.11.1983 and not from 7.11.1983, as has been done by the learned Single Judge. In support of his submission the learned counsel relies upon Ala Muhammad v Malik Noor Muhammad (PLJ 1978 Lah 158). 4. On behalf of the respondents it is submitted, relying upon the provisions of Section 8 of the Provincial General Clauses Act, 1956, that the date from which the period was to commence being 6.11 1983, the said date had to be excluded while computing the period of one month. In this connection the learned counsel refers to Puran Chand v Muhainmad Din and others (AIR 1935 Lah 291) and Ramchandra Govind Unavne v. Laxman Savlerman Ronglie (AIR 1938 Bombay 447). 5. We have given our anxious consideration to the arguments advanced by the learned counsel for the appellants and the respondents and have also perused the| record. The trial Court clearly ordered the balance pre-emption money to be computed "from today within a period of one month". The legal question that arises is whether the period of one month is to be computed from 6.11.1983 or 7.11.1983, The learned Single Judge has referred to the statement of law appearing in Hnlsobury's Laws of England (4th Edition), Volume 55, Para 1127, which may be reproduced here with advantage:- "Whcn a period of time running from a given day or event to another day or event is prescribed by law or fixed by contract, and the question arises whether their computation is to be made inclusively or exclusively of the first mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as "from such a day" or "until such a day" are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first dav and to include the last day." Reference was also made to Re Lyinpone Investments Ltd (1972: (2) All E. Re. 385) and Re Figgis (deceased) Robe/ts and another v. Maclarcn and others (1968, 1 All. E.R. 999). 6. This is a case not of enactment or contract, but of an order passed by a Judge. The order will therefore have to be construed as to effectuate the intention of the Court, regard being had to the context and the purposes for which the order was passed, not overlooking the need of an equitable interpretation desirable in the interest of the person who has to make the deposit and who should be free from any doubt. Now an order of the Court must have some semblcncc of uniformity with the interpretation which the law would put and equity support in ! such a case where a time is prescribed for the doing of an act by a statutory j A enactment. (See Ramchandra Govind Unavne's case (supra). Under Section 8 of the Provincial General Clauses Act, 1956, a date from which the period of time is to be reckoned has to be excluded, while computing I he period. See Puran Chand's case and Ramchandra Govind Unavne's case (supra). For the purpose of uniformity, the same interpretation should be given where a Court's order fixes the date from which a period has to commence. The view of the learned Single Judge is therefore appropriate and correct. His interpretation is also equitable and removes all difficulties that may arise in the way of persons who may be called upon by Courts to make such deposits and find themselves in a dilemma when trying to interpret such orders. 7. The construction suggested by the learned counsel for the appellants cannot be accepted. The. case cited by the learned counsel for the appellants is distinguishable and has no relevancy to the present case. The learned counsel for the appellants has not been able to cite any ruling of any Court directly in his favour. The view ofthe learned Single Judge therefore appears to be legal and correct. 8. There being no merit in this appeal, the sgjne is dismissed without any order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 44 PLJ 1992 SC 44 {Appellate Jurisdiction] Present: ABDUL SHAKURUL SALAM, RUSTAM S. SlDHWA AND MUHAMMAD afzal lone, JJ MUHAMMAD HAFEEZ JAVAID-Appellant versus SECRETARY, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF PUNJAB, LAHORE, and another-Respondents Civil Appeal No. 396 of 1988, accepted on 25.11.1991. [On Appeal from judgment dated 30.5.1982, of Punjab Service Tribunal, Lahore ] (i) Punjab Civil Servants Act, 1974 (VIII of 1974)-- —S. 16—Government Officer—Sent on deputation to private firm—Recalling of- -Dismissal from service on not reporting back to his parent department-­Challenge to-It is necessary for court to determine whether appellant should be entitled to arrears of pay and, if so, to what extent-It is unlikely that appellant remained idle throughout period of his dismissal—Held: Whilst applying proviso to Section 16 of Act, period of his dismissal may be treated as leave without pay after adjusting leave due to him (per majority). [Pp.48&49]B&C (ii) Service Matters-- —Government Officer-Sent on deputation to private firm-Recalling of- Dismissal from service on not reporting back to his parent department- Challenge to-Appellant was sent on deputation by respondent No. 1 for two years—Government may have a right to recall its officer but it has to exercise this right for reason and not on whim or change of mind—Respondent No.l gave no reason for recall of appellant nor responded to representation of respondent No. 2— Appellant was willing to return to his department but respondent No.2 to whom he had been sent to serve, did not relieve him-His 21 years service was short-shrifted for annoyonce that he did not report back-­ Appeal accepted. (Per Abdul Shakurul Salem J.) [Pp.47&48]A Mr. Sher Zaman Klian, Advocate, Supreme Court, and Mr. ' Qurcshi,AOR for Appellant. Mr. Qamamddin Meo, AOR for Respondent No.l. Respondent No.2 Ex-paite. Date of hearingL 30.6.1991. judgment Abdul Shakurul Salam J.-This appeal by leave arises in the following circumstances. 1. The appellant after obtaining "his M.Sc Degree was appointed' as an Agricultural Assistant in the Department of Agriculture, Government of Punjab on 15.1.1958. In course of time he was promoted and was working as an Agricultural Economist, Directorate of Farm Water Management Development Project, Lahore . The respondent No. 2 a firm represented to the Government of the Punjab, respondent No. 1 on 26.7.1977 that they were one of the Pesticides Distributor in the private sector appointed by the Government of the Punjab for sale of Pesticides and Sprayer etc. and to provide training and other services to farmers, the services of the appellant maybe loaned to them. The Government of the Punjab placed the services of the appellant "at the disposal" of the respondent No. 2 "on deputation for two years with effect from 4.8.1977 on the usual terms and conditions circulated by the Government of the Punjab, Finance Department letter No. FD-SR-II-6 (57)/73-2785 dated 9.2.1974". This is vide order dated 3.8.1977. The appellant joined the respondent No. 2 and was working with it when on 3.10.1978 the respondent No. 1 recalled the appellant for duty in the Agriculture Department. On 23.1 1.1978 a letter was issued to the appellant by ihe respondent to the following effect:- "It is observed with regard that you have not cared to report for duty in this depatment so far, you are, therefore, requested once again called upon to comply with the Government order directing you to rejoin your department by 10-12-1978 without fail. It is hereby made clear to you that your failure to comply with the Government orders amounting to mis-conduct which may attract disciplinary action against you under E & D Rules." The appellant requested the respondent No. 1 to direct the respondent No. 2 to relieve the appellant as he could not just leave duties with respondent No. 2 as he might be liable under Rule 10 of the Punjab Civil Servants (E & D) Rules, 1975. The respondent No. 2 on its part vide memorandum dated 9.12.1978 represented to the respondent No. 1 that the services of the appellant were lent for two years. They entrusted their pesticides worth lacs of rupees which were sold to dealers and the farmers on cash and credit basis throughout the Punjab province and have yet to collect the sale price. It was stated that "We are surprised to learn that the agriculture department all of a sudden ordered the said officers to rejoin the department by 10.12.1978 without fail. This act of the department is unilateral and arbitrary as it ignores our financial involvement through them. In case they are called back we will be left high and dry and without proper arrangement to collect our dues from the dealers and farmers. This will cause us irreparable loss, as such we are not in a position to relieve them at this stage. We, therefore, request you to please reconsider the position and rescind your decision and save us from the financial loss". However on 13.12.1978 respondent No. 1 issued a memorandum to the respondent No. 2 that "It has been desired by Government that the officers of this department serving with you on deputation must report back for duty in this department. They have already been repeatedly served with notices issued in this behalf, but they have failed to comply. You are now advised in your own interest as well as the interest of the employees concerned to relieve them immediately with the direction to report to this department for duty immediately". On 20.5.1979 the appellant was issued a show cause notice by an Enquiry Officer appointed by respondent No.l to explain "in black and white within seven days of the issue of this letter as to why severe disciplinary action should not be taken against you on account of gross neglegence/misconduct under E&D Rules 1975." It was added that if the appellant desired "to be heard in person you are allowed to appear before the undersigned within this period". The appellant submitted the reply pointing out that he had joined the respondent's firm on deputation under legal orders of the Government. He did not join the firm on his own request but was sent to the firm by the Government. He was not in a position to report back to the department unless he was relieved by the firm. It was requested that "the firm may kindly be directed to relieve him so as to enable him to join back the department". It was "requested that Ihe Enquiry Officer may approach the Government for directing the respondent No. 2 to relieve him as early as possible as he was not in a position to join back at his own accord because pesticides eic. worth Rs. 5,00000/- of the respondent No. 2 had been given on credit to the dealers and growers and the amount was still recoverable. If he left the amount unrccovcrcd the respondent No. 2 will hold him responsible for the loss". He requested that he may be "given date and time to enable him to appear in person." This is dated 26.5.1979. On 10.6.1979 the respondent No. 2 again requested the respondent No. 1 to extend the period of deputation expiring on 3.8.79 lor at least six months further so that the respondent No. 2 could recover their sale proceeds of pesticides. However, vide order dated 15.7.1979 the appellant was dismissed from service by the respondent No.l. The appellant filed a review petition which was rejected on 30.8.1980. He filed an appeal before the Punjab Service Tribunal. It failed on 30.5.1982. He filed Civil Petition lor Special Leave to Appeal in this court. It was granted on 16.8.1988 "to examine whether in dismissing the petitioner, the respondent did not act in contravention of its own undertaking, sending on deputation the petitioner for two years, unilaterally recalling him from such deputation, failing to respond to any of the genuine causes given by the petitioner or the employer to whom he was deputed. The order recalling him from deputation is also not expressed to be in public interest so as to account for the unilateral repudiation of the terms of deputation." 2. Learned counsel for the appellant emphasized and elaborated the points noted in the leave granting order. He submitted that the appellant was sent on deputation to the respondent No.2 vide order dated 3.8.1977 for two years w.e.f. 4.8.1977 ending on 3.8.1979. Before expiry of the period of the deputation, the appellant was recalled vide order dated 3.10.1978. Not only this could not be done without any cause but the appellant could not leave the service of the respondent No. 2 to whom the services of the appellant were lent and he was sent on deputation. Unless he was to be relieved by the respondent No.2, the appellant could not just leave the service of the respondent No.2. It was submitted that the Government may have a right to recall an Officer sent on deputation but that has to be done when either the exigencies of the Government Department so required in public interest or the authority or the body to which the services of a Government Servant have been lent and he huH been sent on deputation to it, release him. When the deputation is for a fixed period it cannot be put to an end before the expiry oi the period of the deputation. The authority or body to which an Officer is sent on deputation may be landed in trouble and Officer also liable. Termination of deputation before lime can only be reasonable with the consent of the two parties. Right if any of recall before time cannot be arbitrarily exercised by a Govt. of Laws. In any case, a deputationist cannot on his own leave the job to which he has been sent. He placed reliance on "Muhammad Shaft vs. Plant Protection Advisor and Director, Department of Plant Protection, Government of Pakistan" 1985 S.C.M.R. 1893 and "Moulvi All Gohar vs. TJie Grown" 1969 S.C.M.R. 503. 3. Learned counsel for the respondent No.l has submitted that the Government changed its policy not to send its Officers on deputation to private firms. But this decision admittedly was taken after the appellant had been sent on deputation. 4. We have heard the learned counsel for the parties and perused the record with their assistance. It is quite clear that the appellant was sent on deputation by the respondent No. 1 to the respondent No.2 vide letter of the respondent No. 1 dated 3.8.1977 for two years. The arrangement involved three parties; Government, its Officer and the body to which the Officer was deputed. The Government may have a right to recall its Officer but it has to exercise this right for reason, not on whim or change of mind and in consultation or with consent of the body to which it had sent its Officer, because the body may have arranged its affairs in such a manner that a sudden recall of the Officer may land it to trouble or losses as in this case the respondent No. 2 had provided pesticides to farmers on loan through the Officer who was yet to recover the amounts. The respondent No. 1 have no reason for recall of the appellant nor responded to the representation of the respondent No.2. Governments function rationally and responsibly-not arbitrarily and swayed with the feel of power. It may have power to do something or recall its Officer but if it exercises its power without consideration of loss to others unreasonably or without showing a sense of responsibility befitting a Government, it loses much of its creditability and ability to govern in accordance with law. The appellant was sent on deputation for two years. Before the expiry of the period, he was ordered to report back. He said that he was willing to do so, but asked the respondent No. 2 to whom he had been sent to serve to relieve him. The respondent No.2 did not relieve him. It continued representing to the respondent No.l that the recall was uncalled for. Nevertheless, the appellant was dismissed for not reporting back. How could he do so without being relieved by the respondent No.2. Even a guest does not abruptly leave until he gets consent of the host. Can a Physicist deputed to work in an atomic Centre when recalled leave the Centre without permission and entrusting the job in his hand to another responsible person? If he were to do so, damage rftay be enormous. Who would be responsible? The Tribunal in dismissing the appellant's appeal took into consideration that employment with private firms is lucrative. That may be so. But that does not affect the principles governing and regulating deputation. The appellant was asked whether he would like to be heard in person to explain his position. He said; yes, and asked for time and date. He was not replied. His twenty one years' service was short-shrifted apparently for annoyance that he did not report back when called upon which he could not do without being relieved by the respondent No.2 to whom he was sent to serve. Therefore, in all the circumstances of the case this appeal deserves acceptance. It is so ordered with costs throughout. In view of second proviso to section 16 of the Punjab Civil Servant Act, 1974, the appellant will be entitled to salary, subject to adjustment of the remuneration received from the respondent No. 2 Rustam S. Sindhwa, J.--I have read the judgment of my learned brother A.S. Salam J. and agree with his finding that Muhammad Hafeez Javid appellant be re­instated'in service. However, as regards certain observations made by my learned brother over and above the factual appraisal of the case or the law on the subject, I would add that they may be treated as personal to the author Judge. In view of the second proviso to section 16 of the Punjab Civil Servant Act, 1974, it is necessary for this Court to determine whether the appellant should be entitled to arrears of pay and, if so, to what extent. It is unlikely that the appellant remained idle throughout the period of his dismissal. Whilst applying the said proviso, I would suggest that the period of his dismissal may be treated as leave without pay, after adjusting the leave due to him. Muhammad Afzal Lone, J.--I agree with my brother R.S. Sidhwa, order of the court The appeal is allowed. But as regard salary during the period of dismissal, by L, majority it is directed that the period of dismissal may be treated as leave without f pay after adjusting the leave due to him. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 49[Appellate Jurisdiction] PLJ 1992 SC 49 [Appellate Jurisdiction] Present: muhammad afzal ZuuAH CJ and abdul shakurul salam, J MUHAMMAD RAFIQ and others-Petitioners versus HASHMAT ALI and others-Respondents Civil Petition Nos.339-L and 340-L of 1991, dismissed on-12.11.1991. [On appeal from judgment dated 27.2.1991 of Lahore High Court, passed in Civil Revision Nos.2814 and 2815 of 1989,] (i) Grow More Food Scheme- —Agricultural land-Allotment under Grow More Food Scheme-Proprietary rights—Suit for—Suit dismissed but High Court accepted revision petition- Challenge to—No infirmity or illegality is pointed out in order of High Court-­ Held: Impugned order is just and in accordance with law and no interference is called for-Petition (340-L of 1991) -dismissed. [P.51JB (ii) Grow More Food Scheme-- —Agricultural land-Allotment under Grow More Food Scheme-Suit for declaration of rights-Dismissal of-Challenge to-Petitioners (in C.P. 339-L of 1991) were non-suited on ground that land in dispute was never included in schedule of Islamabad Oustees Scheme and its allotment to predecessor of petitioners was void ab-initio-- Held: Judgment and decree of appellate court as upheld by High Court, call for no interference-Petition dismissed. [P.50]A Mr.Muhammad Ismail Qureshi, Senior Advocate, Supreme Court, instructed by Syed Abul Aasim Jaferi, AOR for Petitioners (in both petitions). Ch.Muhammad Ashraf, Advocate, Supreme Court, instructed .by Mr.Mehdi Khan Mehtab, AOR for Respondent No.l (in both petitions). Date of hearing: 12.11.1991 judgment Abdul Shakurul Salam, J.-This order will dispose of Civil Petitions No.339- L of 1991 and 340-L of 1991. CIVIL PETITION NO339-L OF 1991. 1. Relevant facts are that the land bearing Khasra Nos.13/2 and 14 to 25 situated in Chak No.359/EB, Tehsil Burewala, District Vehari was allotted to Hashmat Ali respondent No.l under the Grow More Food Scheme on 14.12.1956. He came in possession thereof on 8.4.1957. This land alongwith some other was allotted to Faqir Muhammad, predecessor-in-interest of the petitioners, under the Islamabad Oustees Scheme on 20.1.1962. Petitioners asked for possession from the respondent. The latter filed a suit for a declaration of his rights which was dismissed by the learned Senior Civil Judge, Vehari on 3.2.1986. However, the respondents succeeded on appeal vide judgment and decree of the learned District Judge, Vehari dated 26.10.1987. The petitioners filed a revision petition which was dismissed by a learned Judge of the High Court on 27.2.1991. Hence this petition. 2. Contention of the learned counsel for the petitioners is that the decree of the learned appellate Court in favour of the respondents as upheld by the learned High Court is contrary to law. 3. The petitioners have been non-suited on the ground that the land under the Grow More Food Scheme allotted to the respondent No.l was "never included in the schedule of the Islamabad Oustees Scheme as admitted by Javid Ali, Colony Clerk DW-4 in his cross-examination. That being so, its allotment to Faqir Muhammad deceased was void ab-initio". Learned counsel for the petitioners has not been able to point out that the land in dispute was in the schedule of the Islamabad Oustees Scheme. Consequently, it could not have been allotted in favour of the predecessor in interest of the petitioners. The judgment and the decree of the learned appellate Court as upheld by the learned High Court calls for no interference. This petition is therefore, dismissed. CIVIL PETITION NO340-L OF 1991 4. Relevant facts are that Barkat Ali respondent No.l was allotted land measuring twelve and half acres bearing Killa Nos.l to 12, and 13/1 of square No.13 in Chak No.359/EB Tehjil and District Pakpattan under the Grow More Scheme on 14.12.1956. Possession was delivered to him on 8.4.1957. Behind his back, without cancelling the allotment the land in question alongwith some other was allotted to Faqir Muhammad, predecessor in interest of the petitioners on 20.1.1962. Barkat Ali having had no relief from the relevant revenue authorities filed a suit to secure his rights. Having lost in the lower Courts he filed a revision petition hi the Lahore High Court. After re-examining the entire evidence on record, a learned Judge of the High Court held that "the petitioner (Barkat Ah') throughout remained in physical possession of the land, a part of which was • Banjar and he had brought it under cultivation with considerable expenditure and labour. There is no allegation that the petitioner had ever violated the terms of tenancy. No order of cancellation of lease or resumption of land was passed against him by the Collector. In view of the above referred memoranda issued by. the Board of Revenue the petitioner is entitled to the grant of proprietary rights in respect of the land comprised in his tenancy". On these findings the suit of Barkat All respondent was decreed vide order dated 27.2.1991. 5. We heard the learned counsel for the heirs of Faqir Muhammad, the petitioners, seeking leave to appeal. He has not able to point out any infirmity or illegality in the order of the learned Judge of the High Court. The order is just and in accordance with law. No interference is called for. Leave to appeal is [ refused. The petition is dismissed. (MBC) (Approved for reporting) Both Petitions dismissed.

PLJ 1992 SC 51 PLJ 1992 SC 51 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND ABDUL SHAKURUL SALAM, J Mst. RAHIM NOOR-Petitioner versus Mst. SALIM BIBI and two others-Respondents Civil Petition No.323-L of 1991, dismissed on 12.11.1991. [On appeal from judgment dated 17.2.1991, of Lahore High Court, in W.P. No.4137 of 1990.] Amendment— —Permission to amend plaint-Grant of-Challenge to-Contention that it was at a very late stage that amendment was sought and petitioner has been put to inconvenience-Respondent wanted to correct her father's name in plaint-She had given name of her father as Rahim Bakhsh while appearing as her own witness nearly 3 years before making of application—It was on account of gross mistake that correction could not be made—Petitioner wants to change real parentage of respondent on account of mere technicality—Held: Courts in Pakistan cannot permit nor can such an approach to law and justice be accepted as valid-Held further: CPC does not prohibit permission to amend pleadings even at late stage when it is otherwise necessary—Petition dismissed. [P.52]A&B Mr.Hamad KJian, Advocate, Supreme Court, and Mr.Ejaz Ahmad KJwn, AOR for Petitioner. Nemo for Respondents. Date of hearing: 12.11.1991. order Muhammad Afzal Zullah, CJ.-Permission to amend a plaint granted to respondent/plaintiffs side has been brought under challenge through this petition for leave to appeal.The High Court held that respondent No. 1 had based her suit on a sale deed wherein the vendees are mentioned as Khuda Bakhsh and Rahim Bakhsh. The respondent wanted the correction of her father's name in the plaint as Rahim Bakhsh. The respondent had also as PW-4 stated that she is the daughter of Rahim Bakhsh and niece of Khuda Bakhsh. Thus the exercise of discretion by the trial Court was held to be legal and proper. Learned counsel has contended that it was at a very late stage that the amendment was sought. The petitioner has been put to inconvenience. She will have to submit a fresh written statement and the possibility of new issues and further evidence cannot be excluded. But this, even if so, can not relieve the petitioner also from being fair and just to the other side. Learned counsel perhaps was not aware that the respondent when appearing as her own witness had given her father's name as Rahim Bakhsh nearly 3 years before the making of the application. It was on account of gross mistake committed by the lawyers and/or their agents and may be by the trial Court also that the correction could not be made at an earlier stage. Learned counsel vehemently argued that notwithstanding all this the respondent should not be permitted to call herself as the daughter of Rahim Bakhsh. In other words he, on account of mere technicality wants to change the real parentage of the respondent. The Courts in Pakistan cannot permit nor can such an approach to law and justice be accepted as valid. Even our Constitutional set up, apart from the laws, does not permit it.C.P.C. does not prohibit the permission to amend pleadings even at late stage, when, of course it is otherwise necessary. The impugned order being eminently just and proper this petition, accordingly, is dismissed and leave to appeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 52 PLJ 1992 SC 52 [Appellate Jurisdiction] Present: Dr. nasim hasan shah, saad saood jan and muhammad rafiq tarar, JJ Miss. L.M. STRATFORD (deceased) represented by Principal, New School etc.- Appellants Versus Syed AMJAD HUSSAIN and 9 others-Respondents Civil Appeal No.263 of 1988, accepted on 17.11.1991. [On appeal from judgment dated 3.6.1980, of Lahore High Court, in LPA No.50 of 1970.] Settlement and Rehabilitation Matters— —LH form of appellants—No clear cut order rejecting same passed—Property transferred to contesting respondents-Whcther transfer order in favour of contesting respondents had any backing in law-Question of-Order of transfer was passed without due notice to appellants and without affording them an opportunity to be heard—If transfer of a house is ordered for compensating a claimant for losses suffered due to Partition of country, provisions of Section 10 of Displaced Persons (Compcnsalion and Rehabilitation) Act, 1958, are not attracted-Order of Chief Settlement Commissioner transferring property to respondents, is a nullity at law—Held: Result is that said property is still available for transfer and appellants are entitled to its transfer-Appeal accepted.. [ Pp.58,59,60,61&62]A,B,C,D,E,F&G Ch.Khalilur Rahman, Senior Advocate, Supreme Court, instructed by Rana MaqboolAhmad Qadri, AOR for Appellants. Mr.S.M.Zafar, Senior Advocate, Supreme Court, assisted by Syed Zahid Hussain, Advocate, Supreme Court, instructed by Mr.Tanvir Ahmad, AOR for Respondents 1 to 9. Rao Muhammad Yousaf Klian, AOR for Respondent No.10. Date of hearing: 17.11:1991. judgement Nasim Hasan Shah, J.-This appeal, by leave of this Court, is directed against the judgment dated 3.6.1980 passed by the Lahore High Court in L.P.A.No. 50 of 1970. The facts, which form the background to this appeal, are that the appellants were running a school in the house in dispute bearing No. 3-4/B, Model Town, Lahore. They submitted an application on Form LH on 6.8.1959 for the transfer of the said house, whose value admittedly is more than Rs. 10,000/-. The LH form, it appears, was rejected by the Deputy Settlement Commissioner on 4.12.1959, but without hearing the appellants or informing them of the order passed by him in this regard. The appellants, therefore, continued submitting application and representations for favourable disposal of their LH form. In the meanwhile, the predecessor-in-interest of respondents Nos. 1 to 9 namely Syed Muhammad Hussain Shah, a claimant displaced person, was trying to get the house where he was living namely House No.S-15, Manohar Street, Nicholson Road, Lahore, transferred in his favour. But he was unsuccessful in this attempt and the house was transferred to its other occupant. Since he also deserved to be accommodated, the Chief Settlement Commissioner vide order dated 5.1.1961 directed the Additional Setllement Commissioner to find alternate suitable accommodation for him. To secure implementation of this directive Syed Muhammad Hussain Shah submitted an application to the Additional Settlement Commissioner informing him that house namely House No. 4-B, Model Town Lahore was available for transfer which may be transferred to him. As the information about the said house being available was supported by the Deputy Settlement Commissioner, the Additional Settlement Commissioner apprised the Chief Settlement Commissioner accordingly. In his report, he pointed out that this house was "in occupation of a school-New High School for Girls and Boys since the pre-independence days and is still in use as such though under the management of a different committee. He also informed him that the School was not a recognised institution and that the application made by the school management for its transfer had been rejected against which no appeal had been lodged by the management. The Chief Settlement Commissioner thereupon passed an order on 25.2.1961 directing the Additional Settlement Commissioner "to transfer the property as alternate accommodation to Syed Muhammad Hussain Shah". A P.T.O., in pursuance of the said order of the Chief Settlement Commissioner for the transfer of the House No. 4-B, Model Town. Lahore was thereafter issued on 28.2.1961 in favour of Syed Muhammad Hussain Shah. Shortly thereafter, on 13.3.1961. the said transferee sent a notice to the appellants intimating them that he had been transferred the premises and that they should attorn to him. On receipt of the notice, the Principal & Chairman of the school (the late Miss L.M. Stratford) filed an appeal on 29.3.1961 before the Additional Settlement Commissioner praying for setting aside of the P.T.O. issued to Syed Muhammad Hussain Shah and also prayed that the property be transferred in their favour. In this appeal, the following grounds, intcr-alia, were taken up: "4. That the appellant has been pursuing her case from time to time with the Settlement authorities but no satisfactory action was taken to the relief of the appellant. The appellant on different occasions filed written statements and applications and it was only on the receipt of a notice from respondent No. 2 that the appellant was informed of the transfer of 4-B, Model Town vide P.T.O. No. 817930 dated 28.2.1961 to the respondent No. 2. 7. That all the recognised and private schools are given special protection by the Settlement Department for the transfer of the properties in their possession, even when the value of the property is more than Rs. 10,000/- in case of locals. 8. That the LH form of the appellant was summarily rejected by the D.S.C. without holding any inquiry or recording statement of the appellant. The action taken by the respondent No. 1 is, therefore, illegal and ultravires in so far as it is against the instructions contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Settlement Scheme No. 1)". The appeal was heard by the Additional Settlement Commissioner (Judicial), Lahore Division. In his order passed on 25.7.1961 he observcd- "I find that Miss Stratford filed a LH form on behalf of the aforesaid school in respect of two properties in suit that her LH form was rejected on the 4th December, 1959, she had not challenged that order to this appeal dated the 29lh March, 1961, that a report was submitted by the Addl. Settlement Commissioner No. II, Lahore, to the Settlement Commissioner (Policy), Lahore, in respect of No. 4-B, Model Town, Lahore on which the learned Chief Settlement & Rehabilitation Commissioner passed the following orders:- "Please ask the Addl. Settlement Commissioner, Lahore to transfer this property as alternative accommodation to S. Mohammad Hussain as already directed by the Rehabilitation Commissioner, Lahore and by me in the judicial orders". In compliance with the above order the D.S.C. transferred Property No. 4-B-III to the respondent". He went on to add- "This school is not recognised by the Secretary Board of Secondary Education vide his letter No. 879/Recog. dated the 9th May, 1961. Ex. 1 that the appellant had filed LH form for the transfer of the properties which was rejected on uie 4th December, 1959 by the D.S.C. Center-V, Lahore, that the appellant had not filed any application for the transfer of these properties upto the 21st May, 1960 as laid down in the Press Note. dated the 3rd May, 1961 issued in respect of the transfer of Hospitals and other charitable, religious or educational trusts etc." Thus the appeal was dismissed on two fold grounds: (a) that the appellant was not entitled to the transfer of the property; and (b) the appeal did not lie (seemingly on the ground that the property was transferred under orders of the Chief Settlement Commissioner dated 25.2.1961). The appellants being of the opinion that their appeal had been dismissed basically on account of the last mentioned ground filed a review petition before the Chief Settlement Commissioner for recalling his order dated 25.2.1961 (regarding transfer of House No. 4-B, Model Town, Lahore in favour of Syed Muhammad Hussain Shah). In this petition of review, it was, inter-alia, submitted that the respondent was not in occupation of the school building; that he had not submitted any form for its transfer; therefore, the property in question could not be transferred to him. He also submitted that there was no order whereby the appellants form was rejected. The prayer made was that the impugned order be set-aside on review and the school building transferred to the appellants. This petition, however, was summarily rejected on 18.5.1962. The order of rejection was passed again, without hearing the appellants. The appellants thereupon moved the Lahore High Court by a writ petition (W.P.No. 1070/R/1964) to question the above order of the Settlement authorities. This petition was heard by the late Mr. Justice Karam Elahi Chauhan, who in an elaborate order proceeded to accept the petition. His Lordship observed that no clear cut order existed to show that the appellants' foun had been rejected. He pointed out that the order which was being construed as the order of rejection was merely a note dated. 4.12.1959 which was to the following effect: "Subject: Property No. 3-4-B, Model Town , Lahore I have visited the spot myself, 4-B, is a bunglow wherein a school is being run by Miss. L.M. Stratford, who has submitted Form LH, for the transfer of the adjoining Plot No. 3-B, wherein out-houses are built. These .out-houses are occupied by Mst. Shafiqa widow of Abdul Rashid. She claims to be a displaced person. She has not submitted her NCH form own to the reason that she was never accepted as tenant by the Rehabilitation Department. Since these out-houses are the part and parcel of the plot, therefore, the case will be dealt with as soon as clear cut instructions about the disposal of plots are received from the Government. The value of the building of the School is more than Rs. 10,000/-; therefore, it appears that due to error it has not been shown as available for ear-marking by the claimants under the relevant category. Necessary particulars of the premises should be submitted to the Addl. Settlement & Rehabilitation Commissioner, Lahore, with the request tLai it may kindly be included in the li:' of ca'cprry 'B' Houses. Submitted for favour of information. "A.S. and R.C." Sd/D.S.C.Center V Lahore" Commenting on the above note and the earlier note dated 31.12.1959, the learned Judge observed- "A perusal of the above two notings would show that they do not purport to pass any final order with regard to the claim of the petitioner about the property in dispute. The note Annex. R/3 was marked to the Addl. Settlement & Rehabilitation Commissioner with a request that the property in dispute may kindly be included in the list of Category 'E' Houses. There is nothing to show as to what orders where passed by the Addl. Settlement and Rehabilitation Commissioner on the above noting. This would show that the contention of the petitioner that the relevant form remained undisposed of is correct. The necessary corollary of all this will- be that the order passed by the learned Chief Settlement & Rehabilitation Commissioner on 25.2.1961 would be without lawful authority as it was passed without disposing of the petitioner's form". He went on to add- "Apart from the fact that the order by the Chief Settlement Commissioner %vas passed when the form of the petitioner was still undisposed, there is a serious objection to the order of the learned Chief Settlement Commissioner, in as much as the same is not backed by .any provision of the Act, its schedule or any rules on the subject". The conclusion in this connection was expressed thus: "The view which I am taking about the point under discussion is shared by the Department in its two reports submitted to this Court and the oral arguments of the learned Settlement Commissioner (Legal) at the Bar who has conceded that the transfer by the Chief Settlement Commissioner was without lawful authority." Accordingly, the writ petition was accepted and the orders passed by the Settlement authorities were declared to be without lawful authority and of no legal consequence against the appellants. The case was remanded to the Deputy Settlement Commissioner for disposal of the form of the appellants in accordance with law. This judgment was passed on 4.2.1970. The judgement of the learned Single Judge was challenged by a Letters Patent Appeal by the heirs of Syed Muhammad Hussain Shah who had died hi the meanwhile. The Letters Patent Bench accepted the appeal vide judgment dated 3.6.1980 mainly on two grounds, namely that the writ petition suffered from laches and that the remanding of the case for the disposal of LH form was of no avail because under Para 20 of the Settlement Scheme No. 1 if a building which was a house or a shop on 14 August, 1947 had been converted to some other use, then the Chief Settlement Commissioner would determine as to whether it should be disposed of as a house or a shop or any other type of property. In furtherance thereof in the press note dated 3 May 1960 (printed at pages 139-141 of the Settlement Manual-Old Edition) the Chief Settlement Commissioner directed that if a house or shop had been converted to some other use after 14 August 1947 then it would be transferred in the manner given therein. But, according to the L.PA. Bench in so far as in the instant case, the property had not been converted into a school after 14 August, 1947 the provisions of Para 20 of Settlement Scheme No.l read with the aforesaid press note were not applicable to the case. Furthermore, since the value of the property was more than Rs.10,000/- then as a house it could not be transferred to a local. Leave to appeal was granted to examine, inter-alia, whether the L.PA. Bench while interpreting Para 20 of the Settlement Scheme No.l read with the aforesaid press note could set-aside the order of the learned Single Judge whereunder the matter was remanded to the settlement authority for the determination of the main point in controversy namely whether the form filed by the appellants had been disposed of in accordance with the law. And, furthermore as to what is the correct interpretation of Para 20 of Settlement Scheme No.l read with the aforesaid press note. We have heard Ch.Khalil-ur-Rehman, learned counsel for the appellants and Mr.S.M.Zafar, learned counsel for the respondents at full length. It has not been disputed before us that the LH form filed by the appellants which was disposed on 4.12.1959 was without issuing any notice to them or hearing them. Indeed according to the learned Single Judge, the said form has in fact not so far been disposed of as the order of the Deputy Settlement Commissioner dated 4.12.1959 was merely a note requesting the Additional Settlement & Rehabilitation Commissioner to include the school building in the list of Category 'B' Houses, a request which was not heeded^ to, as no order in this respect (was) ever passed by the learned Additional Settlement Commissioner. We, however, consider that in so far as the Deputy Settlement Commissioner had mentioned in his note that the value of the property was more than Rs.10,000/- and that it should be included in the ear-marking list these recitals indicate sufficiently that the appellants' prayei for transfer of the disputed property on their form LH had not been accepted. It is true that no clear cut orders to the effect that their LH form was being rejected were passed, but the terms of the order dated 4.12.1959 are to the said effect. In our opinion, however, the more serious objection to the said order is that it was passed without due notice to the appellants and without affording them an opportunity to be heard. Even more importantly, the order of transfer dated 25.2.1961 in favour of the contesting respondents suffers from an inherent defect, namely that it is not backed by any provision of law. Mr.S.M. Zafar, in .order to refute this objection, relied on Section 10 of Displaced Persons (Compensation & Rehabilitation) Act, 1958. Section 10 aforesaid, at the relevant time, was couched in the following terms: "Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the Compensation Pool: (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; or (b) in such other manner as may be approved by the Central Government". Under Para 4 of the Schedule, persons not in possession can, in certain situations, be transferred a house not in their possession. This Para lays down : "4. A house not transferred under paragraphs 1, 2 and 3 shall be available for transfer to any claimant who applies in that behalf and to whom a house has not been transferred under paragraph 1, and shall be transferred to such claimant at a price determined on evaluation basis: Provided that- (o) except in the case of a house the value of which does not exceed twenty-five thousand rupees, the claim of such a claimant is at least fifty per cent of the value of the house; (b) not more than one house shall be transferred to any one claimant under this paragraph; and (c) if there is more than one applicant for the transfer of the same house, the transfer shall be effected by drawing lots in such manner as may be prescribed". However, a Scheme has been framed, viz. Settlement Scheme No.V, for the purpose of implementing this provision. This Scheme, briefly stated, provided for drawing up of lists of houses (which have not been transferred under Paras 1, 2 and 3 of the Schedule ) in three categories, depending upon their annual rent, for transfer to claimants who have been unsuccessful in obtaining transfer of any htmse in lieu of their claim. Now admittedly the predecessor of respondents Nos.l to 9 has not been transferred the house in dispute under Scheme No.V but he has obtained its transfer under the orders of the Chief Settlement Commissioner, on the ground that he could not, for one reason or the other, obtain transfer of the house which was in his possession. A transfer, on such a ground can, prima-facie, be made only under the provisions of Scheme No.V aforesaid. But, according to Mr.Zafar, this was possible also under the provisions of Section 10(1) of the Act. He submitted that the Chief Settlement Commissioner is empowered to transfer the property out of the compensation pool "on evaluation basis or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule" (underlining is ours). According to him, the Chief Settlement Commissioner has unfettered powers to transfer a property under Section 10(1) of the Act as hereunder he can order the transfer of an evacuee property by means of auction or "otherwise" the only limitation being that the order of transfer should not be inconsistent with the provisions of the Schedule. In this case, it is contended by the learned counsel, that as the order of transfer fell within the ambit of the provisions of Para 4 of the Schedule, the transfer made in favour of the respondents was fully within the four corners of the provisions of Section 10(1) of the Act. We regret we cannot agree. A careful perusal of the provisions of Sub­ section (1) of Section 10 shows that it empowers the Chief Settlement Commissioner to order the transfer of any property out of compensation pool on evaluation basis or through sale by means of auction or otherwise. In other words, in case where the Chief Settlement Commissioner decides to transfer a property by means of sale, this mode of transfer can be resorted to either through auction or otherwise. But before the transfer by means of auction or "otherwise" is ordered there should be a prior decision to dispose of the property by means of sale. However, if the transfer of a house is ordered for the purpose of compensating a claimant for the losses suffered by him on account of his forcible migration to Pakistan on account of the disturbance attendant to the Partition of the country, the provisions of Section 10 are not in point and are not attracted. In such cases, the relevant provision in the Act which is applicable is Section 16, which lays down: "16. Payment of interim compensation to (1) Subject to the provisions of this Act and the rules made thereunder, the 'Central Government may, by order in writing, require the Chief Settlement Commissioner or any other officer specially empowered by the Central Government in this behalf to prepare, in anticipation of the settlement of claims, one or more shcemes- (a) or the grant of interim compensation to widows, orphans or old or infirm persons against verified claims in accordance with the prescribed sale; (b) for the transfer of immovable property on evaluation basis or otherwise to claimants, non-claimants or locals in accordance with the provisions of the Schedule; orNow, in respect of transfer of houses under Para 4 of the Schedule, a Scheme has been framed (Settlement Scheme No.V) and this Scheme provides with exactitude the manner in which houses liable to transfer under said Para are to be disposed of. This Scheme, to the extent relevant, is reproduced below: "Whereas the Central Government has required the Chief Settlement Commissioner under Section 16(l)(b) and (c) of the Displaced Persons. (Compensation & Rehabilitation) Act 1958, to prepare a Scheme for the transfer of houses to claimants-by the drawing of lots under Para 4 of the • Schedule to the Act and for the making of deferred payment in accordance with the provisions of the Schedule to the Act. And whereas the Central Government has approved the scheme prepared by the Chief Settlement Commissioner and has authorised him to execute it. Now, therefore, the Chief Settlement Commissioner is pleased to publish the following scheme which shall be called Settlement Scheme No.V " "2. The Deputy Settlement Commissioner of the area shall from time to time prepare centre-wise and town wise lists of houses in each category, which are available for transfer to claimants by the drawing of lots under Para 4 of the Schedule to the Act" (underlining is ours)'. In the present case, the house in dispute was being transferred to compensate Syed Muhammad Hussain Shah for the property abandoned by him in East Punjab and not by means of sale. Hence the only manner in which this transfer could be made to him was the manner laid down in Settlement Scheme No.V. Insofar as the impugned order of the Chief Settlement Commissioner dated 25.2.1961 ordering the transfer of the house in question in disregard of its provisions to the predecessor of the respondents, the said order had no backing in law. Accordingly, the order of transfer dated 25.2.1961 made in favour of Syed Muhammad Hussain Shah, being violative of the express provisions of the Scheme framed under Section 16(1) (b) of the Act was a void order and a nullity at law. On this view of the matter, the objection with regard to laches is of no significance. The discussion made above also shows that the LH form of the appellants has not been attended to as provided for in law and that is yet to be disposed of hi accordance with law. It has also been found that the order dated 25.2.1961 of the ; Chief Settlement Commissioner transferring the disputed property to the respondents is a nullity at law. The result is that the said property is still "available" for transfer and it seems to us that in the present state of the law, the appellants herein are entitled to its transfer. The upshot is that the appeal succeeds and is allowed. The judgment of the High Court passed in L.P.A. No.50 of 1974 on 3.6.1980 is hereby set-aside, while that of the learned Single Judge of the High Court dated 4.2.1970 passed in Writ Petition No.1070 of 1964 is restored. Since complex questions arose for decision in this case, the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 62 PLJ 1992 SC 62 [Appellate Jursidiction] Present: SAAD SAOOD JAN, ABDUL SHAKURUL SALAM AND MUHAMMAD RAFIQ tarar, JJ DIN MUHAMMAD and 2 others-Appellants versus ABDUL REHMAN KHAN-Respondent Civil Appeal No.444 of 1988, accepted on 3.11.1991. [On appeal from judgment dated 6.2.1983, of Lahore High Court, in C.R.No.671 of 1977] Stay Order-- —Supreme Court-Stay order passed by--Non-communication of--Suit proceeded and decreed by trial court—Whether stay order operates from time it is made or from time it is communicated—Question of—Order was communicated to High Court who further forwarded it to trial court though communication is not on file of trial court-It is to be kept in view that just as law operates moment it is enacted and ignorance of it is no defence, so an order made by a superior court operates when it is made and non-knowledge or ignorance will not permit lower court to render order of superior court ineffective or nullity-Held: After order of Supreme Court under Order XLI Rule 5 of CPC, staying further proceedings, trial court could not continue trial nor pass resultant decree-Appeal accepted and case remanded. [Pp.64&65]A,B&C PLD 1949 Lahore 100, PLD 1960 (WP) Karachi 690, PLD 1955 Lahore 34 and 1974 SCMR 509 rel. S^4bid Nawaz, AOR for Appellants. Mr.Rashid Masud, Advocate Supreme Court, instructed by Mr.Tanvir Ahmad, AOR for Respondent. Date of hearing: 29.10.1991. judgment Abdul Shakurul Salam, J.-This appeal by leave arises in the following circumstances. 1. Relevant facts for the disposal of this appeal are that Abdul Rehman Khan cited as respondent filed a suit for a declaration that the order of the Deputy Custodian Evacuee Property, Lahore dated 14.10.1970 or 30.4.1968 in favour of Khuda Bukhsh, predecessor-in-interest of the appellants, was forged. The appellants pleaded that the suit was not maintainable being collusive with the tenants- of the property who had been ordered to be ejected and that the plaint may be rejected under Order VII Rule 11 CPC in view of the bar contained in Section 15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959. The plaint was rejected by the learned Civil Judge, Lahore vide order dated 31.7.1976. The order was upheld by the learned Additional District Judge, Lahore vide order dated 31.7.1977. However on the revision petition filed in the name of Abdul Rehman Khan before the High Court, the case was remanded to the learned trial court for fresh decision. This is vide order dated 6.12.1983. On 31.8.1988, the appellants were granted leave to appeal and "proceedings stayed meanwhile". 2. Today at the hearing it is pointed out by the learned counsel for the heirs of Abdul Rehman Khan who had been representing them since the demise of Abdul Rehman Khan at the initial stage of the suit that since the appellants never informed the learned trial Court that this Court had stayed further proceedings, the trial continued and the suit has since been decreed. The decree is dated 28.7.1990. In reply, the contention of learned counsel for the appellants is that when this Court had stayed the proceedings, no decree could be passed. On the other hand, the learned counsel for the heirs of Abdul Rehman Khan submitted that in the absence of information or communication of the order of this Court, the trial Court could proceed and decree the suit. He referred to "Emperor v. Turab IQian" (AIR 1942 Oudh 42). Reference to page is incorrect. May be it is to page 84. But the case reported at this page has no application to the facts of the case. He then referred to "(Kasaribada) Venkatachela-patir.ao-Decree-holder . (Maddipatla) Kameswaramma-Judgment-debtor" (AIR 1918 Madras 391) wherein it was laid down that after stay of execution by appellate Court steps taken by lower Court before communication are valid. He then referred to "Liakat Mian v. Padampat Singhania & Others" (AIR (38) 1951 Patna 130) wherein the majority of the learned Judges held that "the order passed by an appellate Court staying execution of the decree appealed from becomes operative the moment it is made and not after communication to the subordinate Court. It follows that from the moment the stay order is passed the executing Court is deprived of the power of executing the decree and any action taken by it in execution of the decree would be without jurisdiction". This clearly goes against the learned counsel quoting it. He then referred to "Sewa Singh v. The State" (AIR (39) 1952 Allahabad 50) wherein a learned Judge in a criminal matter observed that "an order of stay cannot be effective unless it is communicated to the subordinate Court. It has no means of knowing that it must refrain from proceeding with a certain case, other than the receipt of the stay order itself. The judgments delivered by the Court inspite of the stay order, which, however had not been communicated to it before the judgments were delivered, are not illegal". To the same effect is "Mahmood Hussain S/o Muhammad Hussain v. Emperor" (AIR (3) 1943 Lahore 191) wherein it was laid down that "an order by the High Court staying further proceedings in the lower court on an application under Section 526 can only be deemed to take effect when it is communicated to the lower Court concerned". Both the last two cases relate (to) c/iminal side. 3. The controversy stands settled as far as Courts in Pakistan are concerned. It was laid down it a Full Bench judgment reported as "Karam All & others Decree Holders v. Raja and others judgment-debtors" (PLD 1949 Lahore 100) that "both onprinciple and authority as well as on a plain construction of Order XLI, R.5, the answer to the question referred is that a stay order under Order XLI, R.5 operates from the time that such order is made and not from time it is communicated to the executing Court". In the case of "Persumal and others v. Government of Pakistan and others" (PLD 1960 (WP) Karachi 690) a Full Bench referred with approval the case of "Syed Nazir Ahmad v. Syed Muhammad Saeed and another" (PLD 1955 Lahore 34) wherein it was laid down that "there can be no doubt that any proceedings taken by the learned Senior Civil Judge after the High Court Order were entirely without jurisdiction". The learned Full Bench held that "the legal provision does not admit of any doubt that an order passed by an inferior Court during the subsistance of a stay order made by a superior Court is an absolute nullity". The Full Bench Judgment of the Lahore High Court referred to above namely "Karam All v. Raja" (PLD 1949 Lahore 100) was sought to be reconsidered by this Court in "Abdul Rashid KJian and 2 others v. Mst. Nasim Akhtar" (1974 S.C.M.R. 509) but this Court declined to do so and observed that "in our opinion the view expressed by the Lahore High Court is in accordance with law. It is not necessary to re-examine the question already decided by the Lahore High Court". In this view of the matter, there is no escape from the conclusion that after the order of this Court staying further proceedings, the trial Court could not continue the trial nor pass the resultant decree. 4. In the case in hand, order of this Court was communicated to the High Court who further forwarded it to the trial Court, though the communication is not on the file of the trial Court. Such a contingency was envisaged in the Full Bench case of the Lahore High Court in "Karam All y. Raja" (PLD 1949 Lahore 100 at 114) where it was observed that "the order may, by collusion between the party interested and the ministerial officer of the appellate Court or the executing Court, be suppressed". Nevertheless it was held that a stay order will "operate from the time that such order is made and not from the time it is communicated to the executing Court". Besides the reasons in the precedent cases it has also to be kept in view that just as law operates the moment it is enacted and ignorance of it is no defence, so an order made by a superior Court operates when it is made and non-knowledge or ignorance will not permit the lower Court to render the order of the Superior Court ineffective or nullity. It is the other way round. No doubt, non-knowledge will not entail liability for any action taken but action will not be clothed with legality when legal authority to proceed had been stopped or stayed. 5. For the foregoing reasons, the proceedings taken and the resultant decree after the stay order by this Court being nullity, the learned trial Court is directed to proceed to determine the suit afresh as regards the declaration sought by the plaintiffs that the order of the Deputy Custodian dated 14.10.1970 or 30.4.1968 relied upon by the defendants—appellants, was forged. It may be clarified that validity of the order is not to be adjudged as the Civil Courts do not have jurisdiction. What is to be determined is whether the order was passed by the Deputy Custodian or that had been forged. The parties may rely on the evidence already furnished in the suit or adduce more. The appeal is accordingly disposed of. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 65 PLJ 1992 SC 65 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, SAAD SAOOD JAN AND AJMAL MIAN, . ' JJ FEDERATION OF PAKISTAN and 2 others-Appellants versus ' Ma}. (Reid.) WAZIR AHMAD-Respondent Civil Appeals Nos.95 to 100 and 683 of 1990, accepted on 14.7.1991 (Approved for reporting on 30.7.1991). [On appeal from judgments dated 5.3.1989, 20.4.1989, 6.3.1989, 5.3.1989, 23.2.1989, 27.8.1989 and 1.3.1990, passed by Federal Service Tribunal, in Appeals Nos.249-R, 383-R, 416-R, 364-R of 1987, 41-R, 36-R of 1988 and 95(P) of 1989 respectively.] (i) Civil Servants Act, 1973 (LXXI of 1973)-- —S.17--Members of Armed Forces-Transfer to civil service of-Dcduction of military pension from their salaries-Challenge to--Dw.'nction disallowed by Tribunal-Appeal against-Contention that view of Tribunal that military pension could not be deducted, stood already approved by Supreme Court-It will be noticed that in cited case, while refusing leave, Supreme Court did not base its judgment upon provisions of Section 17 of Act—Hedl: Order of Supreme Court in cited case, could hardly support proposition that Section 17 of Act did not permit deduction of military pension from pay of an ex-army officer employed in a civil department-Appeals accepted. [P.70JE&F 1984 PLC (CS) 870,1984 SCMR 1297 and PLJ 1987 Tr.C. (Services) 178 destingushed. (ii) Civil Servants Act, 1973 (LXXI of 1973)-- —S.17 read with Civil Service Regulation, Reg.526--Members of Armed Forces—Transfer to Civil Service of—Deduction of Military pension from their salaries-Challenge to-Deduction disallowed by Federal Service Tribunal-­ Appeal against—Held: Reading Section 17 together with Regulation 526, it would appear that while determining regular pays of respondents for posts held by them in civil departments, Accountant General was competent to deduct amount of their military pension. [Pp.67&68]A&B (iii) Civil Servants Act, 1973 (LXXI of 1973)-- —Ss.17 & 25 read with Civil Service Regulations, Reg.526--Provisions of Regulation 526—Whether have ceased to have effect after enactment of Act-­ Question of—Contention that Section 17 of Act created a right in civil servant to receive pay sanctioned for post which he was holding but Regulation 526 detracted from that right, so it could no longer be treated to have been kept alive by Section 25 of Act, being inconsistent with provisions of Act-Held: There is no merit in this contention and Regulation 526 can hardly be treated as inconsistent with Section 17 of Act. [P.68JC (iv) Civil Service Regulations- —Reg.526(b)-Provisions of clause (b) of Reg.526--Not applicable to officers of late Indian Political Service—Whether respondents in CA. Nos.100 and 683 can take advantage of this provision-Question of-Respondents In Civil Appeals Nos.100 and 683 were appointed to Tribal Areas Group-Contention that by virtue of note added to C.S.R. 526, their cases stood excluded from operation of clause (b) of C.S.R. 526-Held: Indian Political Service having been abolished long before respondents joined Tribal Area Group and they being not members of late Indian Political Service, cannot take advantage of said note which in any case, has been omitted. [P.68&69JD Ch.Ijaz Ahmad, Deputy Attorney General, and Ch. Akhtar All, AOR for Appellants (in all appeals). Kh. M. Farooq, Advocate, Supreme Court, with Mr.Imtiaz Muhammad Khan, AOR for Respondents (in CA.95 & 98 of 1990). Mr.M.Bilal, Advocate, Supreme Court, with Mr.Manzoor Ilahi, Ex-AOR for Respondents (in CA.% of 1990). Respondent hi person (hi CA. 97 of 1990). Nemo for Respondents (in CA. 99 and 100 of 1990). Qazi Abdur Rehman, Advocate, Supreme Court, and Haji Bashir Ahmad, AOR for Respondent No.l (absent) in CA.. 683 of 1990). MrJ.D. Akbarji, Advocate General NWFP, and Mr.M~A. Qayyum Mirza, AOR (absent) for Respondent No.2 (in C.A.683 of 1990). Date of hearing: 14.7.1991. judgment • Saad Saood Jan, J.--These are seven appeals by special leave of this Court from the judgments of the Federal Service Tribunal. These appeals have been heard together as the facts are similar and common questions of law arise for consideration. 2. The respondents in these appeals were members of the Armed Forces and held ranks of or equivalent to Major and above. Except in the case of respondent in Civil Appeal No.96, their services were transferred to civil departments while they were still serving in the Army. Subsequently, they were retired from the Army and permanently inducted in the civil departments. The respondent in Civil Appeal No.96 retired from the Air Force with effect from 12.9.1979 and was permanently absorbed in the Foreign Service with effect from 15.9.1979. While determining their respective pays in the civil departments, the Accountant General deducted the military pensions which they were receiving on account of service in the Armed Forces. They represented against the deductions and claimed that they were entitled to receive the pay of the' post they were holding in the civil departments in addition to their military pensions. Their representations bore no fruit. Consequently, they filed appeals before the Federal Service Tribunal. The learned Tribunal upheld their claims and declared that the deductions made from their pays on account of military pension were illegal. Through these appeals the Federal Government has called in question the legality of the judgments of the learned Tribunal. 3. Admittedly, after their induction in civil departments on a permanent basis the respondents are governed by the Civil Servants Act, 1973. Section 17 of the Act states: "A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade ". The expression "in accordance with the rules" is of significance in this section: it makes the entitlement of a civil servant to the pay sanctioned for the post or grade he is holding, subject to the relevant rules. Now, Regulation 526 of the Civil Service Regulation provides: "(a) When a person formerly in military service obtains employment in the civil department after having been granted a military pension, he shall continue to draw his military pension, but the authority competent to fix the pay and allowances of the post in which he is re-employed shall have power to take into account the amount of pension, including such portion of it as may have been commuted. (b) A military officer, departmental officer, warrant or non-commissioned officer or soldier who is granted a pension under military rules while he is in civil employ, shall draw such pension while he is in civil employ, but the authority competent to fix the pay and allowances of the post hi civil employ, may, with effect from the date from which the pension is granted, reduce such pay and allowances with reference to such officer or soldier by any amount noi exceeding the amount of such pension". Reading Section 17 together with this Regulation it would appear that while determining the regular pays of the respondents for the posts held by them in the civil departments, the Accountant-General was competent to deduct the amount of their military pensions. 4. An argument was raised that Regulation 526 ceased to have effect after the enactment of Civil Servants Act as it was in conflict with the provisions of Section 17. It was urged that Section 17 created a right in the civil servant to receive the pay sanctioned for the post which he was holding; and as the said regulation detracted from that right it could no longer be treated to have been kept alive by Section 25 of the Act which saved all existing rules, except those which were inconsistent with the provisions of the Act. We find little merit in this contention. As already noticed, under Section 17 the entitlement to pay of a civil servant is not an unqualified one. On the other hand its quantum is to be determined by the relevant rules. In the circumstances Regulation 526 can hardly be treated as inconsistent with Section 17. 5. It was contended cfn behalf of some respondents that the expression "in accordance with the rules", had a restricted meaning inasmuch as it was intended to regulate different special pays and allowances which were included in the definition of the word "pay" as given in Section 21(d), Civil Servants Act, and Fundamental Rule 21(a). This contention is devoid of force. It is founded on a mere assumption without support from anything contained in the Act. The word "rules" has been defined hi the Act as meaning rules made or deemed to have been made under the Act. In the context of Section 17 it has relevance to all such rules which deal with the fixation of the pay of a civil servant. No doubt CSR 526 is one such rule. If the right to pay was an unqualified one any direction given, consequent upon disciplinary proceedings that a certain amount be deducted from the pay of a civil servant to recoup the loss suffered by the Government as well as the direction that the period of suspension be treated as leave without pay would become ultra vires of Section 17. 6. A note was added to C.S.R. 526 to the effect that the provisions of clause ! (b) thereof would not apply to officers of the late Indian Political Service. The

1 [respondents hi Civil Appeals No. 100 and 683 were appointed to Tribal Areas Group. It was contended on their behalf that by virtue of the said note their cases stood excluded from the operation of clause (b) ibid. This contention is again without any merit. The Indian Political Service was abolished long before the respondents joined the Tribal Areas Group. They were not members of the late Indian Political Service. Thus they cannot take advantage of the said note which in any case has been omitted. 6. In coming to the conclusion that the respondents were entitled to the military pensions in addition to the pay for the posts they were holding in civil departments, the learned Tribunal relied upon three of its earlier judgments reported as Khuda Dad Khan v. Military Accountant-General (1984 P.L.C. (C.S.) 870), FazalAkbar v. Accountant-General Pakistan (PLJ 1987 Tr.C (Services) 178) and Sufi Abdur Rashid v. Secretary, Ministry of Interior (Appeal No.53(R) of 1985). Khuda Dad Khan was a Subedar in Pakistan Army when he was selected for the post of Lecturer in the Cantonment Board College, Kharian. Later, he was retired from the Army and permanently absorbed in the College. He was being paid the pay of the Lecturer in addition to military pension. Subsequently the College was taken over by the Federal Government. While fixing his pay the Accountant- General deducted the amount of his military pension. He filed an appeal before the Federal Service Tribunal. The learned Tribunal accepted the appeal holding, inter alia, that he was entitled to full pay of the civil post under Section 17, Civil Servants Act, and that any rules or instructions in so far as they were inconsistent with the provisions thereof ceased to operate and could not be availed for taking away a right guaranteed by the statute itself. The Ministry of Education sought leave to appeal from this Court from the judgment of the learned Tribunal. The leave was refused with the following observations: "It is not denied before us by the learned Deputy Attorney-General that the respondent had been before the governmentalization of the College, in receipt of the pay of his post in the College in addition to his army pension and that the same was not in contravention of any rule then in force. Apart from the reasons given by the Tribunal, we find that by letter No.l04/57/77-Min-II, dated 10th September, 1977, issued by the Cabinet Secretariat, concerning the transfer of control and management of the Cantonment and Garrison Schools and Colleges, the pay of the transferred staff was protected in the following words: (c) Terms and conditions of service of the transferred staff.— transferred staff referred to in sub-paras. l(a) and (b) above will continue to be governed by their present terms and conditions of service'. The terms and conditions of service existing at the time of the governmentalization of the College having been thus protected, the learned Deputy Attorney-General was unable to show how the respondent could be subjected to rules which would operate in derogation of that protection. No justification has, therefore, been made out for interference with the order of the Tribunal. The petition is dismissed. (1984 S.C.M.R. 1297)". It was contended on behalf of the respondents that the \ie\v of the Tribunal that military pension could not be deducted from the pay of a civil servant without violating the provisions of Section 17, Civil Servants Act, already stood approved by this Court. It is difficult to accept this contention. It will be noticed that while refusing leave to the Federation, the Court did not base its judgment upon the p. provisions of Section 17 but on a special condition of service which was guaranteed to Khuda Dad Khan by the order by which his College was transferred to the Federal Government. The order of this Court could, therefore, hardly be cited in support of the proposition that Section 17 did not permit deduction of military pension from the pay of an ex-army officer employed in a civil department. The case reported as Fazal Akbar v. Accountant-General, Pakistan ' (PLJ 1987 Tr.C (Services) 178) mainly proceeded on the view taken by the Tribunal in Khuda Dad Khan's case although there was an observation to the effect that the words "in accordance with rules" did not refer to such rules as would place a clog on right of civil servant to get full pay of his post. In the case of Sufi Abdur Rashid v. Secretary, Ministry of Interior (Appeal No.53(R) of 1985) the learned Tribunal reiterated the same view adding that with the enactment of Section 17, Civil Servants Act, any rules or instructions in so far as inconsistent with the provisions thereof (Section 17) ceased to operate and could not be availed of for taking away a vested right guaranteed by Section 17 itself. As will be noticed.our examination of Section 17 does not support the construction placed upon it by the learned Tribunal. 7. For the reasons stated above, all these appeals are accepted and the F judgments of the learned Tribunal are set aside. There will be no order as to costs. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 SC 70 PLJ 1992 SC 70 [Appellate Jurisdiction] Present: shafiur rahman, abdul shakurul salam and muhammad rafiq tarar, JJ GHULAM MUHAMMAD and others-Appellants Versus CUSTODIAN, EVACUEE PROPERTY, PUNJAB and another-Respondents Civil Appeal No.460 of 1988, dismissed on 3.11.1991. [On appeal from judgment dated 24.4.1984, of Lahore High Court, in LPA No.80 of 1970] Pakistan Administration of Evacuee Property Act, 1957 (XII of 1957)-- —-S.22 'read with Section 14-A and Limitation Act, 1908, Article 148-- Declaration that land in dispute was not evacuee property—Application for— Dismissal of—Challenge to—After 1.3.1947, rights and interests of evacuees in any property left by them, were frozen and came to be vested in Custodian-­ Held: Claim of appellants that they having remained in possession after 1.3.1947, time will continue to run against evacuee and on completion of 60 years period, evacuee lost every interest or right in property and so also Custodian, is untenable—Held furthter: Effect of Section 14-A was that rights of mortgagees were effaced and instead was created a mere charge-Appeal dismissed. [Pp.74,75&76]A,B&C PLD 1969 Lahore 622,1970 SCMR 73,1981 SCMR 550 and PLD 1981 SC 262 rel. Mr.Shahzad Jehangir, Senior Advocate, Supreme Court, instructed by S~Abul Aasim Jaferi, AOR for Appellants. Respondents: Ex-parte. Date of hearing: 26.10.1991. judgment Abdul Shakurul Salam, J.—This is an appeal against the judgment of the learned Division Bench of the Lahore High Court in L.P.A. No.80 of 1970 dated 24.4.1984. 1. The relevant facts for the disposal of this appeal are that an area measuring 75 kanals situated in Village Bonga Khan Singh in Tehsil Depalpur District Okara was mortgaged by evacuees in favour of the predecessor-in-interest of the appellants on 18.4.1888. On 9.9.1959 the appellants filed an application under Section 22 of the Pakistan Administration of Evacuee Property Act (XII of 1957) for a declaration that the land in dispute was not evacuee property. The application was rejected by the Deputy Custodian of the Evacuee Property, Lahore vide order dated 10.9.1960. However appeal was accepted by the Additional Custodian vide order dated 20.4.1961. On the motion of the Rehabilitation Authority, the learned Custodian of the Evacuee Property took up the matter and rejected the contention that the land in dispute mortgaged having not (been) redeemed for more than 70 years was not evacuee property. The order of the Additional Custodian dated 24.4.1971 was set aside and the order of the Deputy Custodian dated 10.9.1960 was restored. It was further directed that the appellants will be "entitled to remain in possession till Rs.250/- are paid to them. This amount may be paid by the Deputy Rehabilitation Commissioner, Montgomery and on payment of this amount, he will be entitled to recover possession of this land and to give its possession to the allottees". This is vide order dated 5.12.1962. This was challenged through a Constitutional petition in the Lahore High Court which was dismissed by a learned Single Judge vide order dated 1.4.1979 and the L.PA. dismissed by a learned Division Bench of the said Court vide order dated 24.4.1984. 2. The appellants were granted leave to appeal to examine whether "in the context of relevant provisions and cases relied upon in the impugned judgment, the time would also run in the cases like the present one relating to right of foreclosure/redemption wherein suir property was mortgaged by the non-muslim evacuee owner". 3. Contention of the learned counsel for the appellants is that the mortgage dated 18.4.1888 having not been.redeemed within 60 years as prescribed by Article 148 of ihe Limitation Act, 1908, the Custodian successor-in-interest of the evacuee mortgagor lost every right in the land and it became non-evacuee vesting in the Muslim mortgagees the appellants. 4. Some statutory provisions relevant for resolution of the point may be quoted as below :— Pakistan (Administration of Evacuee Property) Act, (XII of 1957). S.2(2) "evacuee" means any person- (a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories; (3) "evacuee property "means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity). S.5. Act to override other laws"-- (1) The provisions of this Act and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained hi any other law for the time being in force, or in any instrument baving effect by virtue of any such law; (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from any property shall apply, or be deemed ever to have applied, to evacuee property. 5.7. Vesting of evacuee property in Custodian. (1) All evacuee property shall vest and shall be deemed to have vested ha the Custodian with effect from the first day of March, 1947. 5.8. Certain rights not to be extinguished. (1) Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupancy or tenancy rights, or rights-as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights on the occupancy tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of~ (a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee; or (b) the Custodian. (2) Where any person acquired or has acquired any rights in respect of any property by reason of his being in possession of that property whether in pursuance of a grant, lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property. S.10. Holding of evacuee property and its surrender. (1) Every person who is, or has at any time after the twenty eighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as i.he case may be, such property on behalf of the Custodian. (2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to beh'eve is evacuee property and whose authority or right to occupy, supervise or manage such property after the twenty eighth day of February, 1947, has not been accepted or approved by the Custodian, shall, as soon as may be but not later than such date as may be notified by the Central Government in the official Gazette, intimate to the Custodian in writing his willingness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid. (3) The provisions of sub-section (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority. S.16. Exemption from legal process- (1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force". 5. The aforesaid provisions of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), are the latest in the series of similar provisions of earlier statutory instruments. A perusal of the afore-quoted provisions clearly shows that any property in which an evacuee had interest, the'same shall become evacuee property and shall vest in the Custodian with effect from 1.3.1947. Section 2(2 & 3) and 7. The Act is to override other laws to the contrary. S.5. Rights of the evacuees are not to be extinguished. S.8. All persons in possession of evacuee property shall hold the same on behalf of the Custodian. S.10. Property vesting in the Custodian shall be exempt from legal process and the Custodian was not to be divested of such property by operation of any law. S.16. The result is that after 1st of March, 1947, rights and interests of the evacuees in any property left by them were frozen and came to be vested in the Custodian. Nobody could claim any right or accretion of any right in respect of evacuee property after the aforesaid date of 1.3.1947. Therefore, the claim of the appellants that they having remained in possession after 1.3.1947 time will continue to run against the evacuee and on completion of 60 years period the evacuee lost every interest or right in the property and so also the Custodian, is untenable. Reliance of the learned counsel for the appellants on "Muhammad Klian and others . Chief Settlement and Rehabilitation Commissioner, West Pakistan and another" (PLD 1962 S.C. 284) to the effect that "the right, title and interest of the appellants (mortgagee) has not been acquired by notification issued under Section 4 of the Act" is not the whole truth as the observation is followed by "unless the appellants' mortgage is redeemed either by the Government or by the allottee"; of course, till then the appellants were held "entitled to retain possession under the mortgage". The operative order is to the following effect: "The appeal is, consequently, allowed and a direction issued to the respondents, prohibiting them from dispossessing the appellants of the property in dispute until the mortgage in their favour is redeemed by due process of law". This is exactly what the learned Custodian had ordered in the impugned order, directing further that the mortgagee money be paid by the relevant authority. 6. After the aforesaid decision, the Displaced Persons (Land Settlement) Act (XLVII of 1958) was amended by the Displaced Persons Laws Amendment Ordinance (XIII of 1964) whereby Section 14-A was inserted in the former Act. It is to the following effect: S. 14-A. Allotment of Certain Lands und^r Mortgage etc. (1) Notwithstanding anything contained in any law for the time being in force or in any judgment of any court, where a person has been allotted, under any Scheme prepared under Section 14, any land which was at any time before the commencement of this Act subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid. Provided that:— the mortgage money due to the mortgagee shall be charged on such land; (2) The Settlement Authority may declare that the land which is subject to a mortgage shall remain subject to a charge until the- mortgage is redeemed, arid any such charge shall be deemed to be a charge created by the Custodian under Sub-Section (4) of Section 4. (3) The Collector of the district wherein the land referred to in Sub-Section (1) is situated or, if any such land is situated in more than one district such Collector as the Chief Settlement Commissioner, may direct, shall, with the assistance of such Revenue Officers as the Collector may think fit, assess the amount of the charge referred to in Sub-section (2). Provided that if the amount of any such charge has, before the commencement of the aforesaid ordinance, been determined by the Custodian or any competent authority, such amount shall be deemed to be the amount validly assessed. The effect of the amendment was that the rights of the mortgagees were effaced and instead was created a mere charge. A case involving the point in issue came up before the Full Bench of the Lahore High Court in "Muhammad Nawaz Khan and others v. Muhammad Amin and others" (PLD 1969 Lahore 622), wherein it was laid down at page 631 of the report that "the effect of the proviso to sub­ section (1) of Section 14-A is to efface the mortgagee rights held by the petitioners (Muslim mortgagees) in the land in question (of non-Muslim evacuees) and in thier stead to create a mere charge on the land to the extent of the mortgage sum". This judgment was approved by this Court in the case of "Subedar Muhammad Tufail v. Chief Settlement Commissioner and others" (1970 S.C.M.R. 73), so also in the case of "Muhammad Hussain v. Muhammad Sharif (1981 S.C.M.R. 550). In the subsequent case "Jalal Shah and others v. Custodian and others" (PLD 1981 S.C. 262) it was observed at page 264 that "it is not disputed that after the "Partition of the Sub-Continent" the appellants could not have prescripted against the Custodian according to the relevant law on the subject". In other words the law of limitation ceased to operate as against the evacuee or the Custodian. 1. In view of the statutory provisions and precedent quoted above, there is !no escape from the conclusion that the appeal has no force. It is, therefore, • dismissed but as nobody has appeared to oppose the appeal there shall be no order as to costs. (MBQ (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 76 PLJ 1992 SC 76 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, dr. nasim hasan shah, shafiur rahman, saad saood jan, naimuddin, abdul shakurul salam, abdul qadeer chaudhry, ajmal mian, rustam S. sidhwa, muhammad afzal lone, sajjad ali shah and wali muhammad khan, JJ In the matter of Contempt against Daily Frontier Post Criminal Misc. Petition No.93 of 1990, decided on 6.11.1991. Contempt of Court— —Report in newspaper-Whether contempt of court has been committed-­ Question of~In stating that he had no legal back ground so as to understand functioning of Judges of Superior Courts, respondent perhaps was right because instead of there being any tnens rea to malign court, it appears that he was not clear as to what position he should have taken when answering contempt notice-Held: It is deemed fit and proper not to proceed further and to drop case against respondent-Contempt notice discharged. [P.78JA&B Mr. Adz A.Munshi, Attorney General for Pakistan. Mr. N.M.Khan, Advocate, Supreme Court with Mr. Qaiser Butt, Reporter, "The Frontier Post". Date of hearing: 6.11.1991. order Muhammad Afzal Zullah, CJ.-This order shall be treated as in continuation of the order dated 10.1.1991 which was passed in connection with three press reporters one being Mr.Qaiser Butt of the Frontier Post, the respondent herein. It was then observed as follows :— "In the case of the daily THE FRONTIER POST' the contemptuous matter was published in its issue dated 27th September, 1990, which was a false statement in regard to certain proceedings of this court to the effect that "the order was given in the office of the Advocate General". This . statement was attributed to one MrAftab Ahmad Khan Sherpao, who, however, clarified his position through press staling that he had been misquoted. " Mr.Qaiser Butt, Reporter, The Frontier Post', Peshawar, has submitted his reply to the show cause notice and after answering a few questions pertaining to his reply has ultimately requested for time to engage a counsel to represent him. The request is allowed and the proceedings against him are adjourned". Today the respondent has appeared with his counsel, Mr.N.M.Khan. About a year has passed since the show cause notice was issued in this case. During this period there has been a discernible improvement in the quality of the press coverage of court proceedings; and, as regards the Frontier Post also, there is some difference for the better in so far as its attitude towards the coverage and comments about the court proceedings, is concerned. In our view, it would become still better and immensely good if while making assignments for court coverage proper education and training in that branch of journalism and its ethics should be kept in view by the Chief Editors; and, with regard to the old and experienced reporters a short training facility in the same subject is provided to them as a refresher course. There would still be much better performance and results if the concerned sub-editors are also advised by the editors to keep in view an immediately visible and discoverable nexus between the headlines of the news and the detailed contents-together with facility of their further training and vigilance by the Chief Editor. It is hoped and expected that with this and other steps which the publishers and/or the Chief Editors may.decnj to be necessary the situation would improve to further considerable extent. 1 ' It'is also hoped that thus the occasion for issuing notice of contempt by the courts regarding their functioning and court proceedings, may not arise at ill. The respondent while submitting ,his written reply (which as noted in the earlier order of this Court it seems was without the assistance of the counsel) had made the following straightforward statement with regard to his own performance as a reporter of the court proceedings :-- "That the undersigned has no legal background and would not understand the functioning of the judges of the Superior Courts. He has faithfully reproduced what was said by a former Chief Minister in his speech. The undersigned is aware that a clarification by the said former Chief Minister appeared in the newspaper for which he is working as a reporter. The said clarification is not made on behalf of the newspaper but Mr.Sherpao clarified his own position by stating that he was misquoted ............................... That the undersigned is not aware as to the import of the above mentioned statement reported in the other newspapers but the Daily Erontier Post reproduced what was said by Mr.Sherpao in the following language ':— "He said that the stay order was given in the office of the Advocate General and added that the Government did not even wait to let the ink of the Peshawar High Court dry". It shall thus be seen that the newspaper never quoted Mr.Sherpao as saying that a Judge of the Supreme Court had gone to the office of the Advocate General for issuing the stay order as he put it in his clarification. Before the said clarification it has never occurred to the undersigned or to the publisher that Mr.Sharpao by stating that the stay order was given in the office of the Advocate General meant that the Hon'ble Judge came to the office of the Advocate General". This reply gives an explanation the acceptance or otherwise of which depends upon the attitutde of the respondent towards the Court and his performance as a court reporter. When he stated that he had no legal background so as to understand the functioning of the Judges of the Sperior Courts, he, perhaps, was right because instead of there being any mens rea to malign the Court it appears that he was not clear as to what position he should have taken when answering the contempt notice. This was obviously so because he had no legal advice nor it appears he was well aware about the law of contempt. This supposition gets full support from his reiteration before us today that "had this connotation been known to [him] he might not have reported the matter for publication even if so stated by Mr.Sherpao as he holds this August Court in great esteem". Not only this today he without any hesitation repeated the statement made in his very first response in writing to the show cause notice issued by this Court in a somewhat lengthy reply, as its paragraph No.l. It reads as follows : "That not only the undersigned brt the entire staff of the Daily Frontier Post has respect and veneration for the Honourable Judges of this August Court and they believe in the dignity and honour of the highest Court of this Country and has never published a false statement in their newspaper which could scandalize an honourable Judge of this Hon'ble Court". In the light of what has been stated above, particularly the aforequoted part of paragraph No.l of his reply, and in the circumstances of this case we deem it fit and proper not to proceed any further and to drop the case against the respondent. Accordingly, the notice for contempt is discharged. (MBC) (Approved for reporting) Notice discharged.

PLJ 1992 SC 78 PLJ 1992 SC 78 [Shariat Appellate Jurisdiction] Present: dr. nasim hasan shah, chairman, shafiur rahman, abdul qadeer chaudhry, pir muhammad karam shah and maulana muhammad taqi usmani, JJ FEDERATION OF PAKISTAN , THROUGH SECRETARY, MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS, GOVERNMENT OF PAKISTAN-Appellant versus ZAFAR AWAN-Respondent Shariat Appeals Nos.16 and 17 of 1989, dismissed on 30.11.1991. [On appeal from judgment of Federal Shariat Court, dated 29.6.1989, passed in Shariat Petitions No.18/1 and 19/1 of 1987]. Criminal Procedure Code, 1898 (V of 1898)-- —S.197 read with Pakistan Criminal Law Amendment Act, 1958, Section 6(5)-- Provisions about prior sanction for prosecution of public servants—Declaration that said provisions are un-Islamic-Challenge to—It is conceded that provisions under examination, act as a clog or impediment for an aggrieved party against a State functionary to seek redf ess in a court of law-Held: Such an unguided clog on right of an aggrieved person to seek redress is clearly against Injunctions of Islam-Appeals dismissed. [Pp.83,84&85]A&b Hafiz S-A.Rahman, Advocate, Supreme Court, instucted by Ch. Akhtar AH, AOR for Appellants. Respondent: In person. Date of hearing: 20.2.1991. judgment Shafiur Rahman, J.--The Federation of Pakistan has preferred two separate appeals as of right under Article 203-F(1) of the Constitution of the Islamic Republic of Pakistan, 1973 against the common judgment of the Federal Shariat Court dated 29th of June, 1989 disposing of thereby two separate petitions filed by the respondent; the one (Shariat Petition No.19/1 of 1987) seeking under Article 203-D of the Constitution a declaration to the effect that Section 197 of the Criminal Procedure Code (Act V of 1898) is repugnant to the Injunctions of Islam while by the other (Shariat Petition No.19/1 of 1987) a similar declaration in respect of sub-section (5) of Section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act No.XL of 1958). Both these Petitions filed by the respondent were allowed by a common judgment. Hence these appeals. 2. In Shariat Appeal No.16 of 1989, the provision challenged was Section 197 of the Criminal Procedure Code which reads as hereunder :— "(1) When any person who is a Judge within the meaning of Section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except when the previous sanction— (a) in the case of a person employed in connection with the affairs of the Federation, of the President; and (b) in the case of a person employed in connection with the affairs of a Province, of the Governor of the Province. (2) The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held". 3. The grounds on which this provision was challenged as contrary to Injunctions of Islam were inter-alia as hereunder :-- (/) "That the embargo of prior sanction for prosecution of the public servants gives them a safeguard and protection and makes a distinction between the people of high status and the ordinary citizens. This is violative of the supremacy of religion and law; i.e. Quran and Sunnah". (//) "That the Quran and Sunnah make every one equal before law whereas the said section makes the public servants above the law". (///) "That the Quran and Sunnah give no immunity, safeguard or protection to any one, whosoever he may be, and even the head of the State may be challaned in the court both in official and private capacities".Reliance was placed on the following Quranic dispensation :-- "Sura 2 Verse 133 Sura 4 Verses 58, 65,105,108 and 135. Sura 5 Verses 8, 42, 43, 44, 45 and 47. Sura 7 Verse 29. Sura 16 Verse 90. Sura 28 Verse 4. Sura 38 Verse 26. Sura 42 Verses 15, 40 and 43. Sura 49 Verses 10 and 13. Sura 57 Verse 25. Sura 60 Verse 8". 4. In Shariat Appeal No. 17 of 1989, the provision challenged was sub section (5) of Section 6 of the Criminal Law Amendment Act, 1958 (Act XL of 1958). The portion impugned before the Federal Shariat Court reads as hereunder :— "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act: Provided that in cases where the complaint or report referred to in sub-section (1) of Section 4 is not accompanied by such sanction, the Special Judge shall, immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall be deemed to have been duly accorded: Provided further that no such sanction shall be required in respect of a case transferred under the proviso to sub-section (3) of Section 4 or by virtue of sub-section (3) or sub-section (4) of Section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred. Explanation.--^ 'or the purpose of this sub-section, "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government". The same grounds were taken up for attacking this provision as taken up for challenging Section 197 of the Criminal Procedure Code. An objection with regard to the procedural nature of this provision was also raised but the same was rejected. On merits, the case was found equally covered by the grounds and the reasoning which were availed of for deciding the repugnancy of Section 197 of the Criminal Procedure Code. A declaration in respect of this sub-section was also granted with a direction to amend both the laws by the 1st of January, 1990 failing which both the provisions requiring the previous sanction or a sanction of the President or a Governor of a Province or any executive authority were ceased to have effect. In the memorandum of appeal the two grounds urged before the Federal Shariat Court have been reiterated; the first being that both the provisions under attack are procedural in nature and hence do not come within the definition of 'law' so as to be open for proceeding under Chapter 3-A of the Constitution. The other ground is that prescribing of prior sanction of the competent authority, the President or the Governor, or their nominee before launching a prosecution in respect of an act having colour of Office was not unislamic. 5. A preliminary objection to the competence of such a Petition on the ground that the provision attacked was procedural in nature and hence outside the purview of law as given in Chapter 3-A of the Constitution was rejected and the conclusion drawn on this question was as hereunder :-- "It is thus quite clear from the above that what has been barred is a vested right of an aggrieved person and what is enforced on the public servant and the Government are not the procedural but substantive rights under the two impugned sections. These provisions also deprive the Courts of Law of their power to adjudicate upon the grievances of a citizen and worse of all is that the ouster is based on the option and discretion of the executive. Allah Subhanahu in verse 59 of Chapter IV lays down as under :-- "O ye who believe obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last Day". This verse provides the most concise but a complete Constitution for an Islamic State. It confirms sovereignty of Almighty Allah and dictates obedience of the-laws of Allah as revealed through and explained and interpreted by the Holy Prophet (PBUH) and demands also of people the obedience of those in authority. However, if any citizen disputes the laws, commands or orders of the men in authority, he is entitled to go to Courts to get adjudicated his dispute in accord with the laws of Allah and His Prophet. The decision of such a dispute by those in authority is clearly excluded. The Courts in this respect are not part of the —^Ji\ o_>J and they have to consider whether the orders etc., of the . Vl)lci>\ are in accordance with Quran and Sunnah or not. This verse thus not only provides a guarantee for the independence of judiciary from the executive but enjoins the judicial review of the administrative acts on the touchstone of Quran and Sunnah. It is thus a guarantee of the rule of law through valid laws and lays down that not only every person has the right to get his dispute decided but only by a body which is not only not the executive authority but is independent of it. Thus any law circumventing the above concepts is repugnant. It is argued that as according to Section 197 Cr.P.C., and Section 6(5) of Criminal Law Amendment Act, 1958 an aggrieved person, the prosecutor or even the Court "u'as to first of all to go to an executive authority ' -•'" JMcJ>->! ' in order to get permission to proceed against the public servant and as the President or as the case may be, the Governor can refuse that permission, these provisions are a clog on the right of an aggrieved person and a restriction on the jurisdiction of the Court and S£ c therefore repugnant". On merits, the court decided as hereunder :- (Sunan Abu Daud Vol.11, page 223 Print Beirut ). The Law Officers, appearing on behalf of the various Governments had no argument to advance in favour of these provisions. In fact, the Supreme Court in PLD 1981 S.C. 573 repeated its previous view mentioned in para 5 above in the case of Syed Ahmad". The relief granted by the Court was in the following words :-- "The provision of the sanction of the President, the Governor of a Province or any other executive authority is, therefore, repugnant to Quran and Sunnah of the Holy Prophet and it is, therefore, desired that the President shall take steps so that the above laws are suitably amended before the 1st of January, 1990 failing which the provision requiring the previous sanction or a sanction of the President or a Governor of a Province or any executive authority shall cease to have effect ". The only concession made or shown in the judgment was that the legislature may provide levels of the various fori as long as it does not deny or restrict the right of the person to go to the Courts or confronts him with such an obstacle as may amount to defeating that right. 6. It is conceded that the provisions which are under examination act as a clog or impediment for an aggrieved party against a State functionary to seek redress in a Court of law. In the matter of granting the permission or not granting it, the law provides no guidance nor. is the aggrieved party even to be informed of the grant or refusal of such a sanction. As the provision stands, it on the one hand, amounts to stifling the prosecution of a genuine grievance and on the other hand protects absolutely the functionary who commits the wrong or affords the grievance. It is conceded that the remedy cannot be denied to one having a legal right nor can the examination of the grievance be shut out at the absolute discretion of the competent authority. Hence, these provisions, as they stand, are clearly violative of the Injuctions of Islam which make all public power a trust and hence all persons exercising it accountable to the persons suffering at its hands and this process of accountability can take place only in forums and avenues which are independent and regulated by properly set out guide-lines for the prosecution and adjudication of causes. 7. There is even, in our Constitution, a provision empowering the legislature to set up one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of inter alia "matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant" [Article 212(1) of the Constitution]. It will be noted that both the impugned provisions of the law deal with wrongful acts performed by the named functionaries in the colour of their office. What is crime and not relatable to their official position on the basis of judicial precedent and interpretation of both these sections has already been kept outside the requirement of section as held in H.H.B. Gill and another v. The King (AIR 1948 Privy Council 128). It is only peripheral cases which can be related to the official functioning that fall in this category for which sanction has been made necessary. 8. During the course of the arguments, a reference has been made to a decision from the Indian jurisdiction in the case of Matajog Dobey and others v. H.C. Bhari and others [PLD 1957 S.C. (India) 160] to emphasize that the provisions of Section 197 of the Criminal Procedure Code do not either violate equality or show want of rational discrimination in the matter of protection of one class of persons against the other. The observations relied upon are as hereunder:- "Article 14 does not render Section 197, Criminal P.C. ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that Section 197, Criminal P.C., vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the Legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so far there is no discrimination as against any complainant". 9. In the observations relied upon, the provision of law has been protected on the ground that such protection from harassment is justified as it is based on reasonable classification. However, no answer is provided therein as to what happens to a genuine sufferer at the hands of a public servant. The harassment part can be taken care of by making the complainant who files or institutes frivolous matters liable to cost and damages as has been provided in Section 544- A of the Criminal Procedure Code. Under the cover of a possible harassment a genuine sufferer cannot be denied the right to seek his remedy from an independent forum. 10. There are other cases referred to like R.C. Pollard v. Satya Gopal Mazumdar (AIR 1943 Calcutta 594), Matiar Rahman Dewan v. The State (PLD 1958 S.C. 21), Syed Ahmad v. Tlie State (PLD 1958 S.C. 27) and Iqbal Hussain Siddiqui and two others v. Tlie State (1970 S.C.M.R. 726) followed by Syed Mmhtaq Hussain Shah Bokhari v. Tlie State and another (PLD 1981 S.C. 573), all indicating that proceedings can start in a criminal court against the functionary unhampered till the stage when it is found that there is nexus between the act complained of and the official position enjoyed by him in which case and at that stage the sanction of the competent authority is to be sought for and obtained before proceeding further. 11. Such an unguided clog on the right of an aggrieved person to seek redress is clearly against Injunctions of Islam. As pointed out by the Federal Shariat Court, and as enjoined by the Constitution, a separate forum can certainly be provided for redressal against wrongful acts of public functionaries in the matter of crime committed in the colour of their offices, in the matter of wrongful civil acts in the form of damages and in the matter of administrative excesses in the form of declaration and injunctions. With these observations we dismiss both the appeals extending the period for bringing about the change in the law till 30 th June, 1992 failing which these provisions of law will cease to have effect. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1992 SC 85 PLJ 1992 SC 85 Present: shafiur rahman, abdul qadeer chaudhry, rustam S. sidhwa, muhammad afzal lone and wali muhammad khan, JJ ASGHAR ALI and others-Appellants versus ABDUL GHAFFAR ABDUL REHMAN-Respondents Civil Appeals Nos.l48-K of 1984, 85-K, 86-K, 87-K, 88-K, 89-K and 90-K of 1989, K-50 of 1986, 166-K, 167-K, 168-K, and K-302 of 1990, decided on 24.11.1991. (Approved for reporting on 7.12.1991). [On Appeal from judgments dated 8.12.1983, 3.8.1987, 3.8.1987, 3.8.1987, 13.8.1987, 13.8.1987, .13.8.1987, 20.9.1984, 21.11.1988, 21.11.1988, 21.11.1988 and 6.12.1989, passed in FRA Nos.716 of 1980, 421, 765 of 1984, 547 of 1985, 421 of 1984, 765 of 1984, 54 of 1984, 43 of 1988, 112, 113 of 1987 and 907 of 1986, respectively, of High Court of Sindh.] Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)-- —S.13(2)(w) read with Section 13(5-B)--Tenant-Ejectment of-Reconstruction of building-Ground of-Whether provisions of Section 13(2)(v/) are subject and subservient to provisions of Section 13(5-B)-Question of—Conjoint reading of Section 13(2)(w) and 13(5-B) makes it amply clear that two provisions relate to two different stages-Section 13(2) (vi) comes into operation before eviction order is passed whereas Section 13(5-B) is attracted after tenant is physically evicted—Section 11 does not prohibit conversion of non-residential building into residential one-Held: Landlord cannot be debarred to carry out his plans simply because it will prove an obstacle in way of tenant to exercise his option available to him ; under Section 13(5-B)~Held further: Provisions of Section 13(2)(vi) are not subservient to or controlled by provisions of Section 13(5-B). [Pp.89,92&93]A,B,C&D PLD 1980 SC 206, PLD 1983 SC 342 and PLD 1978 SC 78 rel. Mr.Badnidduja KJian, Advocate, Supreme Court, and Mr.Nazir Ahmad Siddiqui, A.O.R. (absent) for Appellants (in CA. 148-K of 1984). Mr.N-A. Farooqi, Advocate Supreme Court, and Mr.M^A.I. Qami, A.O.R. (absent) for Respondents (in CA. 148-K of 1984). Mr.Naseem Ahmad Farooqi, Advocate Supreme Court and Mr.M~A.L Qami, A.O.R. (absent) for Appellants (in CA. 85-K, 86-K and 87-K of 1989). Mr.Badnidduja Khan, Advocate, Supreme Court, for Respondents (in CA. 85-K, 86-K and 87-K of 1989). Mr.Badrudditja KJian, Advocate, Supreme Court, for Appellants (in CA. 88- K, 89-K and 90-K of 1989). Mr.Naseem Ahmad Farooqi, Advocate, Supreme Court, and M^A.I. Qami, A.O.R. (absent) for Respondents (in CA. 88-K, 89-K and 90-K of 1989). Mr.S.Mumtaz Hussain, Advocate, Supreme Court for Appellant (in CA. K- 50 of 1986). Mr.A.Aziz KJian, A.O.R. (absent) for Respondents (in CA. K-50 of 1986). Mr.Muneer Malik, Advocate, Supreme Court and Mr.Rashid Akhtar Qureshi, A.O.R. (absent) for Appellants (in CA. 166-K, 167-K and 168-K of 1990). Mr.Zaheer Ahmad KJian, Advocate, Supreme Court and Mrs.Majida Razvi, A.O.R. (absent) for Respondents (in CA. 166-K, 167-K and 168-K of 1990). Respondents 2 to 9: Ex-parte (in CA. 166-K of 1990). Mr.Rashid Akhtar Qureshi, A.O.R. (absent) for Appellants (in CA. No.K-302 of 1990). Mr.Badrudduja KJian, Advocate, Supreme Court, for Respondents (in C-A.No. K-302 of 1990). Date of hearing: 10.11.1991. judgment Wali Muhammad Khan, J.--In the instant appeal No.l48-K of 1984 leave to appeal has been granted to consider whether the order of the learned Single Judge of the High Court of Sindh, holding that respondent was a tenant of shop located in commercial building and in the proposed new building which was for residential purposes, the benefit of law available to him under Section 13(5B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was not available to him, petitioners were not entitled to evict him, was not in conflict with the principle laid down by this Court in the case of Abdul Hadi alias Abdul Hadi Hasan and two others v. SyedAli Haider and others (P.L.D. 1983 S.C. 342), Abdul Bari v. Kliadim Hussain (P.L.D. 1978 S.C. 78) and Zoab .AkbarAli (1983 SCMR 391). In the other connected appeals No.85-K of 1989; 86-K of 1989; 87-K of 1989; 88-K of 1989; 89-K of 1989; 90-K of 1989; K-50 of 1986; 166-K of 1990; 167-K of 1990; 168-K of 1990 and K-302 of 1990, fixed for today, inter-alia, the same point is involved, therefore, leave to appeal has also been granted in the said appeals, and we propose to dispose of all the appeals through this single judgment. Before dealing with the legal controversy it would be profitable to briefly state the facts of each case being disposed of through this judgment : (0 Civil Appeal No.l48-Kof 1984. On 24.5.1976 Asghar Ali and others appellants/landlords filed an ejectment application against Abdul Ghaffar Abdul Rehman respondents/tenants for their eviction from shop No.6 of Antria Building, situated on plot No.W.O.7/34, Wadhumal Odharatn Quarters, opposite City Courts, Karachi on the ground of default in payment of rent and for re-construction of the residential building. The respondents contested the suit and controverted the allegations of the appellants in toto and averred that the plea of reconstruction was not reasonable and in good faith. The plea of default was dropped and the learned Rent Controller, VII Court, Karachi ordered the eviction of the respondents on the ground of reconstruction alone. The respondents/tenants challenged the order before a learned Single Judge of the High Court of Sindh in Regular First Appeal which found favour with him and he, vide his order dated 8.12.1983, set aside the order of the Rent Controller impugned before him and dismissed the eviction petition of the appellants/landlords. Hence the instant appeal No.l48-K of 1984 by the landlords. (h) Civil Appeals No.85-K of 1989; 86-K of 1989; 87-K of 1989; 88-K of 1989; 89-K of 1989 and 90-K of 1989. Asghar Ali and others, respondents herein, filed three different eviction petitions against their shop tenants Bajwa Brothers, appellants in Civil Appeal No.85-K of 1989; Nuruddin Shamsuddin Brothers, appellants in Civil Appeal No.86-K of 1989; and V.M.Company, appellants in Civil Appeal No.87-K of 1989 on the ground of reconstruction of residential building thereon which were duly contested. The learned Rent Controller, vide his order dated 3.3.1984, ordered the eviction of the tenants aforementioned. The appeal filed against it was dismissed by a learned Single Judge of the High Court of Sindh vide order dated 3.8.1987 by maintaining the order of the Rent Controller but subject to the condition that the tenants shall vacate the premises within three months of the filing of the revalidated or fresh plans, duly sanctioned, by the landlord before the Rent Controller. Hence the instant appeals by the tenants. The landlord also felt aggrieved from the judgment of the High Court so far as the imposition of conditions are concerned and pray for the expungment thereof through Appeals No.88-K of 1989; 89-K of 1989 and 90-K of 1989. (Hi) Civil Appeal No.K-302 of 1990. Asghar Ali and others instituted an application for the eviction of Quaid Johar and others from shop in their possession on the ground of demolition and reconstruction of residential building which was allowed by the learned Rent Controller vide order dated 18.9.1986 and the appeal filed against it was dismissed by a learned Single Judge of the High Court of Sindh vide order dated 6.12.1989. Hence the instant appeal by the tenant/appellant on the ground, inter alia, that the learned Judge has completely ignored the well established principle of law in that, if the object of reconstruction is to override the mandatory provision of sub­ section (5-B) of Section 13 of the Ordinance, then the subsequent construction cannot be deemed to be bonafide, reasonable and in good faith. (iv) Civil Appeal No.K-50 of 1986. Azizullah respondent herein, filed an ejectment application in the Court of Rent Controller, Larkana against Abdul Rasool appellant herein, for his ejectment from shop No.CS-761 on the ground of reconstruction and bona fide personal need. The learned Rent Controller, vide his order dated 15.4.1984 allowed the same and the appeal filed against it was dismissed in limine by a learned Single Judge of the High Court of Sindh Bench at Sukkur vide order dated 20.9.1984. (v) Civil Appeals No.l66-Kof 1990; 167-K of 1990 and 168-Kofl990. Abdul Ghaffar appellant in Appeals No.l66-K of 1990; 167-K of 1990 and 168-K of 1990 is the owner of a double storeyed building bearing Survey No.468/1, Quaid-e-Azam Road, Jacobabad consisting of five shops on the ground floor, three of which are in occupation of respondents and the upper storey of the building is being used by the appellant as his residence. An application for the eviction of the shop tenants was filed on the ground of reconstruction after demolition having obtained necessary sanction from the competent authority. The prayer of the landlord was declined by the Rent Controller vide order dated 28.5.1988 mainly on the ground that the commercial portion of the building cannot be converted into residential. The appeal filed against it before the High Court was dismissed vide order dated 21.11.1988 with an observation 'that the purpose underlying subsections (3) and (4) in relation to clause (2)(w) seems to be that in the case where the application for ejectment has .been filed only on the ground of reconstruction, the plans must conform to the needs of the tenants as well, because they may claim re-induction into possession after reconstruction, unless the eviction has been sought not only on the ground of reconstruction but on the ground of personal use of the landlord or his children as well. Hence the appeals by the landlord. As narrated above, the question requiring determination in the cases in hand is whether the plea of the landlords for the eviction of the tenants on the ground of requirement reasonably and in good faith for reconstruction is subject to the provisions of Section 13(5-B) whereunder the tenant of the old building is entitled to apply to the Controller for an order directing that he be put in possession of such area in the new building as it does not exceed the area of old building of which he was in possession. In other words, whether the Rent Controller, before ordering the eviction of the tenant, is required to consider the aforementioned provisions in juxtaposition to determine whether in the proposed new building plan provision exists for putting the tenant in possession as provided for under Section 13(5-B). This very controversy came up for consideration before this Court earlier too, in the case of Abdul Ban v. Kliadim Hussain (P.L.D. 1978 S.C. 78), the facts of which are more or less identical to the facts of the case in hand, inasmuch as there too, the old building was commercial and was being converted into residential building exclusively. It was agitated before their Lordships that the conversion of non-residential building into residential one would make the provision contained in Section 13(5-B) as nugatory as in that case the tenant of a non-residential building could not, obviously, ask to be put into possession of the new building owing to the change in its character. Their Lordships repelled the contention in the following words :— "We regret we cannot subscribe to this line of reasoning, as we find that clause (v/) of subsection (2) of Section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5-B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirements of the community at large, may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable. This does not appear to be the case here. We consider, therefore, that the ground of reconstruction mentioned in clause (v/) of subsection (2) of Section 13 does not limit the same to reconstruction of a building of the same type and character and for the same purpose, namely, residential or non-residential as the case may be. However, the provisions of subsection (5-B) would come into play if the reconstructed building is of the same type and character and suitable for the same use as was the old building". The point in issue was again considered; in the case of Ghulain Nabi v. Mushtaq Ahmad (P.L.D. 1980 Supreme Court 206) wherein it was stressed that the addition of the words "reasonably" and "in good faith" through amending Ordinance 1965, the Rent Controller while considering these necessary ingredients of Section 13(2)(v/) has to take into consideration the provision of subsection (5-B). Their Lordships did not subscribe to the proposition and observed as follows :-- "This subsection only confers a right on a tenant to a lease of the demised premises after their reconstruction, and as the Controller is empowered to lease to the tenant in the new building a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and its occupation by another person. In view of the laws delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity. Thirdly, whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature". The latest judgment of this Court dealing with the legal question involved, is the case of Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed All Haider and others (P.L.D. 1983 S.C. 342) which is on all fours with the facts of the present case. It would be profitable to reproduce the relevant paragraphs for ready reference which are as under :— "We are unable to agree. Section 13(2)(w) of the Rent Restriction Ordinance enables a landlord to seek eviction of his tenant if the building occupied by him is required for reconstruction and the landlord has obtained the necessary sanction for it from the local authority competent to sanction the reconstruction. It is true that under Section 13(5-B), the tenant is entitled in case where the landlord has obtained the possession of a building on the ground of reconstruction to the possession of the area in the new building comparable to the one he was occupying in the old building and that he will be unable to exercise this option if the shops are converted into a residential building through reconstruction which makes no provisions for any shop. But this does not imply that because of this, the provisions of subsection (5-B) of Section 13 are rendered nugatory. It is a cardinal rule of interpretation that all parts of an enactment are to be read together and all parts thereof given due effect and that effect must be made to harmonise the seemingly inconsistent provisions. We observe that clause (v/) of subsection (2) of Section 13 of the Ordinance also does not impose any restrictions or limitations as to that type of a new building may be built on the site of the old building, after reconstruction. We also note that there is no law which prevents a nonresidential building from being converted, after reconstruction, into a residential one. Consequently, if the contention raised by the petitioners was accepted and subsection (5-B) of Section 13 was held to debar a landlord from making reconstruction, whereby shops could not be demolished and a residential building constructed on the site, this would amount to imposing a limitation which does not exist in law. The reading of both the provisions in harmony would yield the result that subsection (5-B) of Section 13 comes into play only where the old building consisting of shops even after reconstruction retains the character of shops and also in those cases where the old building is a residential building and new building on re-construction is again built as a residential building. This subsection would not apply in cases where a non-residential building is, after reconstruction, converted into a residential building". Nevertheless, the learned counsel for the tenants submitted that the view expressed by this Court in the aforesaid three judgments has been deviated from in the judgments reported as Ghulam Haider v. Muhammad Hanif and others (1979 S.C.M.R. 396); Zoab and 5 others v. Akbar Alt (1983 S.C.M.R. 391); Mrs.Zehra Bcgiim v. Messrs Pakistan Burmah-Shell Ltd., (P.L.D. 1984 SC 38) and Mrs.Faiz Muhammad and 3 others v. Widow of Late Syed Abdul Sattar Shah and 7 others (1991 S.C.M.R. 1994). We have minutely gone through all of them and found them either inapplicable at all or distinguishable. The cases of Mrs.Faiz Muhammad and 3 others v. Widow of Late Syed Abdul Sattar Shah and 7 others (1991 S.C.M.R. 1994) and that of Mrs.Zehra Begum v. Messrs Pakistan Bunnah- Shell Ltd. (P.L.D. 1984 S.C. 38) do not deal with Section 13(5-B) at all and, therefore, they are of no help so far as the dilemma involved herein is concerned. The case of Zoab and 5 others v. Akbar All (1983 S.C.M.R. 391) is however distinguishable in the sense that the newly constructed building therein included commercial shops and the evicted tenant applied, under Section 13(5-B), to be restored to the possession of shop on the roadside whereas the landlord had offered him a shop on the rearside. To the same effect is the case of Ghulam Haider v. Muhammad Hanif and others (1979 S.C.M.R. 396) in which also the landlord was avoiding to install the tenant in the reconstructed building in the shop constructed on the roadside. In both these cases the conversion of commercial building into residential one exclusively was not involved. Admittedly, the above quoted judgments of this Court reported as Abdul Ban v. Khadim Hussain (PLD 1978 SC 78), Ghulam Nabi v. Mushtaq Ahmad (PLD 1980 SC 206) and Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed All Haider and others (PLD 1983 S.C. 342) provide answer to the legal propositions requiring determination in the instant appeals. Nevertheless, Mr.Farooqi the learned counsel for the tenants vehemently argued that no provision of a statute can be held redundant and that Section 13(5-B) which provides safeguards to the dislodged tenants cannot be negated. He submitted that the addition of "reasonable and good faith" in Section 13(2)(vz), was with the purpose to deter the landlords from evicting their tenants at their whims. According to him the provision of Section 13(5-B) is a check upon them and if the same is made ineffective, the landlords would be free to dislodge the established business of their shop tenants. He added that Section 13(5-B) is a clog on the right of the landlord to evict his tenant on the ground of reconstruction without making provision in the proposed plan for putting the tenant in possession over an equal area. He stated that the provisions being remedial in nature, liberal and purposeful interpretation is to be placed upon it in favour of the tenants as the rent laws are primarily for their benefit and protection. The conjoint reading of Section 13(2)(v/) and 13(5-B) makes it amply clear that the two provisions relate to different stages of the eviction proceedings. Section 13(2)(w) comes into operation during the course of proceedings before the Rent Controller before the order of eviction is passed, and the learned Rent Controller has to satisfy himself that the landlord requires the premises reasonably and in good faith for reconstruction. On the contrary, the provision of Section 13(5-B) is attracted after the tenant is not only physically evicted from the area in his possession but the proposed new construction is also nearing completion. The stages of operation of the two provisions being different the latter provision cannot stand in the way of the earlier one and the Rent Controller has to form his opinion about the reasonableness and good faith of the landlord, independent of Section 13(5-B) albeit on the proper appraisal of the other evidence produced before him. Additionally, Section 11 of the Rent Restriction Laws provides that no person shall convert residential building into a non-residential building except with the permission in writing of the Controller but there is no corresponding provision therein to prohibit the conversion of non-residential building into residential one, the reason obviously being that the Legislature did not consider it proper and expedient to check the increase in residential buildings. Otherwise too, the rights of the landlords to improve their property in the manner they like for beneficial enjoyment if they possess the necessary nfeans therefor cannot be disputed. In the absence of any legal hindrance in the way of landlords to convert commercial building into residential, the landlord cannot be debarred to carry out his plans simply because it will prove an obstacle in the way of tenant to exercise his option available to him under Section 13(5-B). The apparent inconsistency between the two provisions of the statute has been amply taken care of by the Legislature itself by allocating separate operational field to each, 13(2)(v/) having operation uncontrolled by 13(5-B) and 13(5-B) operating at a stage when Section has already taken effect. In view of what has been discussed above, we have no reason to dissent from the dictum of the above quoted cases of Abdul Bari, Ghulam Nabi and Abdul Hadi, and hold that the provisions of Section 13(2)(v/) are not subservient to or controlled by the provisions of Section 13(5-B) and have to be considered independently by the Rent Controller while dealing with eviction petition under the Rent Laws, moreso, when the proposed reconstruction is from commercial building to residential one. The other grounds urged in the appeals have been considered by us but since they relate to factual aspects of the case which have been duly considered by the lower forums we are not inclined to re-open them. Resultantly, the appeals are disposed of as under :-- Civil Appeal No. 148-K of 1984. The appeal is accepted, the order of the High Court is set aside and that of the Rent Controller is restored. The tenant shall vacate the premises within three months of the filing of renewed plan by the landlord to the Rent Controller, notice whereof shall be given to the tenant. Civil Appeals No.85-K, 86-K and 87-K of 1989. The appeals are dismissed with no order as to costs. Civil Appeals No.88-K, 89-Kand 90-Kofl989. The appeals are accepted and the word "renewed" is substituted for the word "revalidated" in the concluding para of the judgments of the High Court. Civil Appeal No.K-302 of 1990. The appeal is dismissed with no order as to costs. Civil Appeal No.K-50 of 1986. The appeal is dismissed with no order as to costs. Civil Appeals No, 166-K, 167-Kand 168-Kofl990 The appeals are accepted and the judgments of the High Court as well as the Rent Controller are set aside. The eviction petition filed by the appellants against the tenants/respondents is accepted and the tenants/respondents are directed to vacate the premises within three months of the filing of the renewed sanctioned plan by the landlord to the Rent Controller, notice of which shall be served upon the tenants/respondents. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 94 PLJ 1992 SC 94 Present: dr.nasim hasan shah, rustam S. sidhwa and muhammad afzal lone, J. M/s. FRIEND ENGINEERING CORPORATION-Appellant versus GOVERNMENT OF PUNJAB and 4 others-Respondents Civil Appeal No.93 of 1987, accepted on 31.7.1991. [On Appeal from judgment dated 28.2.1987, of Lahore High Court, passed in RSA No. 148 of 1977.] (i) Jurisdiction-- —Rendition of accounts—Suit for—Whether preliminary decree passed by trial court, was without jurisdiction—Question of—By jurisdiction is meant a power to hear and decide legal controversy between parties, to pronounce judgment and execute same-Held: It cannot be said that Civil Judge seized of suit, who passed preliminary decree, was not possessed of such power-Held further: Respondents' absence from trial court and their consequential failure to defend suit, would have effect of waiving objection about jurisdiction. [P.97JB (ii) Preliminary Decree— —Preliminary decree—No appeal filed against—Whether preliminary decree could be set aside in appeal against final decree—Question of—Preliminary exparte decree was within knowledge of respondents but they did not prefer any appeal against it-Failure of Civil Judge to take suo moto notice of form of suit and passing of preliminary decree without calling upon appellants to establish that respondents were an accounting party, would at most, be an illegality against which respondents could seek remedy through an appeal provided by Section 97 of CPC-It appears that Section 97 was not even present to mind of learned single Judge while setting aside preliminary decree—Held: Respondents could not have been permitted to circumvent period of limitation and by-pass provisions of Section 97 in challenging preliminary decree through an appeal against final decree-Appeal accepted. [Pp.97,98&99]C,D,E&F ' (iii) Rendition of Accounts— —Rendition of accounts—Suit for—Whether respondents were under obligation to render accounts to appellant—Question of—Liability to render accounts is foundation for maintainability of a suit for rendition of accounts-Such a liability exists when there is fiduciary relationship between parties-In this case, relationship between parties is undoubtedly contractual-Held: Respondents are not under any obligation to render accounts to appellant. [P.97]A Syed Najamul Hassan Kazmi, Advocate, Supreme Court, instructed by Ch.Akhtar All, A.O.R. for Appellant. Mr.Muliammad Nawaz Abbasi, A.A.G. and Rao Muhammad Yousaf Khan, A.O.R. (absent) for Respondents. Dale of hearing: 7.11.1990. judgment Muhammad Afzal Lone, J.--This appeal under Article 185(2) of the Constitution filed by the plaintiff in a suit for rendition of accounts is directed against the High Court's judgment dated 28.2.1987, whereby the respondents' first appeal was accepted; the preliminary as well as final decree passed by the trial Court in favour of the appellant were set aside, and the suit was remanded to the trial Court with the direction to decide it afresh after filing of the amended plaint by the appellant for recovery of specific amount. 2. The relevant facts are that the respondents awarded a contract to the appellant for repairing gliara along Shahdara protection bund and for providing pushla alongwilh R.D.13/14 Shahdara protection bund. According to the appellant, he executed the work and supplied some material to the respondents in pursuance of several work orders placed on him; in August 1974 he was issued a Cheque for Rs.3,92,178/-, as a running payment, for a portion of the work completed by him, but the payment of the cheque was stopped and it was retrieved back from him by the respondents. That despite his request the cheque was never re-issued to him. He then filed a suit against the respondents for rendition of accounts on the pica that they failed to furnish details of the running payment and render accounts maintained by them, disclosing the full information about the work completed and supplies made lo them by the appellant. In the written statcmenl ihe respondents objected to the form of the suit and also raised some other objections which were put into preliminary issues. At a later stage, they did not appear in the Courl; consequently were proceeded against ex-parte, and on 12.5.1976 the trial Court passed a preliminary decree against them; appointed one Syed Ali Shah an Accountant of the office of the Deputy Controller PTNT Department as Local Commissioner, with the direction that after hearing the parties and examination of their accounts he would submit his report on 29.7.1976. However, the report was filed by him on 26.2.1977, wherein he opined that a sum of Rs.3,57,517/- was due to the appellant from the respondents. The latter filed objections against the report, which mainly were, that the Local Commissioner was appointed without their knowledge and consent; the work orders were not issued by the competent authority; in this respect a departmental inquiry was being conducted and that the report was also inconsistent with the factual position of the suit. The learned trial Court by a detailed and wellreasoned order dated 30.4.1977 turned down all the objections, passed a final decree for Rs.3,57,517/- in terms of the Local Commissioner's report in favour of the appellant, who was allowed a period of two months to make good the deficiency in the court-fee. 3. The respondents assailed this decree before the High Court through an appeal under Section 96 CPC. During the course of its hearing, on their behalf, it was contended that they were not under any legal obligation to keep and render the accounts for the work done by the appellant. This argument weighed with the learned Single Judge, who maintained that the appellant was well aware of the work performed by him and,could sue for a specific amount of remuneration therefor. In this view of the matter, the High Court accepted the respondents' appeal and alongwith the final decree also set aside the preliminary decree and remanded the suit to the trial Court, as observed in the opening para of this judgment. 4. From the appellant's side it is argued that the preliminary decree is appealable under Section 97 CPC., but the respondents never filed any such appeal within the period of limitation and were thus debarred from challenging the same in appeal from the final decree. It is submitted that the High Court acted illegally in setting aside the preliminary decree, while hearing the appeal under Section 96 CPC against the final decree. On the other hand the argument of the respondents' is that relationship between the parties being contractual, they were not liable to render accounts to the appellant, who should have filed a suit for recovery of specific amount. Their, submission is that an objection to the competency of the suit, in the form of rendition of accounts, having been raised in the written statement, an important issue fell for consideration before the trial Court, and even if they were absent, the trial Court could not have passed an expane preliminary decree against them without satisfying itself by recording evidence or examining other material, that the respondents were really an accounting party. In the absence of any such material, according to the respondents' learned Counsel, the preliminary decree suffered from a jurisdiclional defect and being wholly void could be ignored and set aside by the High Court in hearing the appeal against the final decree. 5. It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of partners of a firm, guardian and ward, principal, and agent trustee and beneficiary of the trust. These instances are only enumerative and under Order XX rule 16 CPC., the Court is empowered to pass a preliminary decree where it feels necessary that to ascertain the amount due to one party from the other side, the accounts should be taken. But, in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation to render accounts to the appellant. The work done, the material supplied to the department and the payments received from them by the appellant were well within his knowledge. It was, therefore, for him to have ascertained the amount due to him and filed a money suit for recovery thereof. 6. A question arises, when the suit for rendition of accounts was not maintainable, whether the ex-pane preliminary decree was void, without jurisdiction and thus, could be ignored by the High Court in appeal from the final decree. Our answer is in the negative. By jurisdiction is meant a power to hear and decide legal controversy between the parties, to pronounce judgment and execute iJae same. It cannot be said that the learned Civil Judge who was seized of the sirit and passed a preliminary decree was not possessed of such power. If the order made by him is contrary to law that would not render it as one without jurisdiction. It is correct that in the written statement there was an objection to the form of the suit. It is to be noticed that such an objection does not involve any consideration of public policy. It is well settled that where public policy is not involved any party may waive of the benefit of the law made for his advantage. The respondents' absence from the trial Court and their consequential failure to defend the suit would have the effect of waiving of the objection. What would have been the position of the decree, had there been no objection to the form of the suit by the respondents? Could such a decree be treated as void and a nullity? Where a party can waive of a plea, any decision of the Court in disregard of such a plea, cannot involve a jurisdictional issue, for, jurisdiction, is not dependent on the will of the parties to the suit. 7. A preliminary decree is appealable, but the respondents did not prefer any appeal against the ex-pane decree dated 12-5-1976. It is in the report of the Local Commissioner that from 16th December, 1976, to 26th December, 1977 the officials of the department appeared before him on several occasions, produced the account books and participated in the proceedings. The trial Court's order also reflects that the Counsel for the respondents entered appearance in the Court alongwith the Local Commissioner on 29-11-1976,10-1-1977 and 26-2-1977. It can thus, safely be presumed that they stood posted with the knowledge of the preliminary decree in pursuance whereof the Local Commissioner had embarked upon taking the accounts. Section 97 CPC., expressly ordains: "Where any party aggrieved by a preliminary decree . ........................ does not appeal from such decree, he shall be precluded from disputing its correctness in an appeal, which may be preferred against the final decree." It was thus, not open to the respondents to throw a challenge to the validity of the preliminary decree against an appeal from the final decree. The order of the High Court in striking down the preliminary decree, is evidently violative of mandatory provisions of Section 97 CPC, and thus, cannot be sustained. The failure of the learned Civil Judge to suo moto take notice of the form of the suit and passing of preliminary decree by him without calling upon the appellant to establish that the respondents were an accounting party would at the most be an illegality against which they could seek remedy through an appeal provided by Section 97 CPC. As regards a void order, it will not be out of place to refer here to the following observations appearing in M/s. Conferee Ltd., Vs. Syed All Shah etc. (PLD. 1977 SC. 599): "....We would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions." It is significant to note that there is nothing in the impugned judgment to reflect that the High Court proceeded on the assumption that the preliminary decree was void and a nullity. It appears that section 97 was not even present to the mind of the learned Single Judge. The respondents could not have been permitted to circumvent the period of limitation and bypass the provisions of Section 97 CPC. 8. With a view to see that complete justice is done in this case, we have also gone through the report of the Local Comissioner, prepared by him on examination of the accounts of both the sides, which demonstrates that the cheque for Rs. 3, 92, 178/-issued to the appellant, but withdrawn subsequently, related to the work done by him under 15 work orders. It is noteworthy, that out of this amount, the respondents paid to him a sum of Rs. 1, 71, 210/-during pendency of the suit and showed rest of the amount as adjusted against Government dues, security and income tax deductions etc. This would militate against their claim that the work orders were issued to the appellant without sanction of the competent authority. We find that it was on the basis of a detailed inquiry and scrutiny of the accounts that the Local commissioner came to the conclusion that a sum of Rs. 3, 57, 517/-was payable to the appellant by the department. The acceptance of this report, and passing of a final decree on the basis thereof by the trial Court, is not open to any valid criticism. We have noticed that the suit was filed in the year 1975. The appellant has already paid the requisite court-fee on the amount awarded to him. As already observed, the Local Commissioner made his report after a searching look into the respective claims of the parties, in the light of their accounts. We feel, that even if the suit is re-heard on merits, the result would not be different one. For all these reasons this appeal is accepted and the impugned judgment set aside. Consequently, the judgment and decree of the trial Court stand restored. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 99 PLJ 1992 SC 99 [Appellate Jurisdiction] Present: muhammad rafiq tarar and saleem akhtar, JJ ABDUR RAHIM-Petitioner versus THE STATE-Respondent Criminal Petition No.78-R(S) of 1988, decided on 4.11.1991. [On appeal from judgment and order of Federal Shariat Court , dated 19.6.1988, in Criminal Appeal No.85-L of 1988.] Pakistan Penal Code, 1860 (XLV of 1860)-- —S377 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 12~Sodomy~Offence of-Conviction for—Challenge to—Contention that father of victim has connection with police and petitioner has been falsely involved due to enmity with police-Delay in lodging report has not been explained-After a delay of more than 76 hours, there was no possibility of semen remaining in anal canal due to bowel action-Further contention that considering location of building and room in which alleged offence was committed, it was not possible for complainant to have heard cries of victim or peeped through door as stated in FIR-Held: Contentions require consideration-Leave granted. [Pp.lOO&101]A,B&C Mr.Muhammad Bilal, Advocate, Supreme Court and Mr.Manzoor Illahi, AOR for Petitioner. ChMAkram, Advocate, Supreme Court, and Rao M. YousafKJian, AOR for State. Date of hearing: 4.11.1991. order Saleem Akhtar, J.--This is a sufficiently old matter on record in which notice to State was issued as ordered earlier. The petitioner was convicted by the Additional Sessions Judge, Mianwali, under Section 377 PPC and Section 12 of Ordinance VII of 1979. In appeal the Federal Shariat Court partly accepted it and sentence under Section 12 of Ordinance VII of 1979 was set aside while sentence under Section 377 PPC was reduced from 7 years R.I. to 5 years R.I. 2. The action was initiated on the FIR lodged by Ghulam Muhammad on 8.11.1986 alleging that his minor son Sarfraz Ahmad, aged 7 years, had gone for purchasing samosa but as he did not return for sufficiently long time, he closed his shop and alongwith Abdul Quddus and Master Abdul Hayee who were present at his shop, went in search of his son. When they reached in Koocha Malik Muzaffar situated on the back side of Tawl of Madad Khan near the house of Malik Ahmad Khan, Advocate, they heard the cries of Sarfraz from that house on which they peeped through the doors of that house and saw that the petitioner who was known to them previously, was committing sodomy with his son who was crying. They knocked the door on which petitioner put on his shalwar and succeeded in running away through the door of the Baithak of that house. The report was lodged on 8.11.1986 at 7-30 p.m. after a delay of about 76 hours. The only explanation given was that the relatives of the petitioner were pressurizing and beseeching the complainant for not lodging the report. 3. Mr.Muhammad Bilal, the learned counsel for the petitioner, contended that Ghulam Muhammad PW8, father of the victim has connection with the police as admitted by him and the petitioner has falsely been implicated due to enmity with the police. Besides this plea the learned counsel emphasized that delay in lodging the report has not been explained and creates doubt in the prosecution case. The prosecution has relied on the medical report and the report of the chemical examiner. The doctor has stated that swabs were taken from inside and outside the anal canal of Sarfraz and sent for chemical examination. The chemical examiner certified that the swabs were stained with semen. Attacking the veracity of this piece of evidence the learned counsel pointed out that sodomy was alleged to have been committed on 5.11.1986 but the report was lodged and medical examination carried on 8.11.1986 after a delay of more than 76 hours during which period due to bowel action by the alleged victim there was no possibility of the semen remaining in the anal canal. The learned counsel referred to Taylor's Principles and Practice of Medical Jurisprudence, edited by A. Keith Mant where the following observation was made:-- "Specimens to be taken in cases of alleged anal intercourse. As in the medical investigation in cases of rape, the taking of valid specimens is the responsibility of the examining doctor. The choice of specimens will of course vary with the details of the allegations and with the time interval that has elapsed between the alleged incident and the medical examination. The following list is neither exclusive nor is it mandatory, and it must be remembered that seminal traces within the bowel are difficult to identify if more than 24 hours have passed since the alleged act, and are also lost in the majority of cases if there has been a bowel action between the time of the alleged incident and the medical examination, wiping or washing of the anal verge contamination by semen or lubricant." The learned counsel also referred to an unreported judgment of the Federal Shariat Court, Muhammad Anwar v. Tlie State, Criminal Appeal No.93/I/87 where in similar situation it was observed as follows :-- "So far the shalwar is concerned it appears highly improbable that for all those days the complainant was wearing the same shalwar and that it was stained with the semen of the accused. Similar appear to be the position about the result of the anal swabs. It cannot be said with certainty that semen could remain in the anal canal for such a long period when the complainant might have passed stools on a good number of occasions. According to Medical Jurisprudence by Modi and Dr. S. Sadiq Hussain spermatozoa are disintegrated quickly in presence of organic matter and moisture but in cases sperms have been detected in folds inside the rectum and escaped contact with organic matter. The opinion in this connection is, however, not quite definite". The learned counsel ako contended that considering the location of the building and the room in which the alleged offence is stated to have been committed it was not possible for the complainant to have heard the cries of victim Sarfraz or peeped into the door as stated in the FIR. 4. These contentions among others require consideration. We, therefore, grant leave. (MBC) (Approved for reporting) Leave granted.

PLJ 1992 SC 101 PLJ 1992 SC 101 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J MOSAM KHAN and 4 others-Petitioners versus MIR ALAM KHAN-Respondent CPLA No.178 of 1991, dismissed on 19.10.1991. (Approved for reporting on 11.11.1991). [On appeal from judgment and order of Peshawar High Court, D.I.Khan Bench, dated 29.5.1991 in C.R.No.29 of 1989 (reported as PLJ 1991 Peshawar 65)] Civil Courts Ordinance, 1962 (W.P.Ord.11 of 1962)- —S.23 read with Civil Procedure Code, 1908, Order IV Rule 1-Pre-emption suit-Presentation of plaint-Civil Judge was on leave and no arrangement was made for receiving plaints etc.-Plaint presented on expiry of leave but it was beyond limitation by one day--Whether suit was time barred-Question of- Practice of presenting plaint to Additional District Judge in case Civil Judge is on leave, does not debar a plaintiff to exercise his right of presenting his plaint on re-opening of court, as law gives such concession—Section 23 of Ordinance clearly stipulates "suspension", "temporary absence" of any Civil Judge—Held: In view of admitted position that Civil Judge who was on leave, had not authorised any officer to receive plaint in his absence, plaint could be presented on first day of re-opening of Court and High Court has correctly decided point of law-Petition dismissed. [Pp.l02,103,104&105]A,B&C PLJ 1991 Peshawar 65 approved PLD 1960 (WP) Lahore 757,1981 SCMR 159 and PLD 1978 Lahore 1049 rel. Mr.Fazal Elahi Siddiqi, Advocate, Supreme Court, instructed by Mr.Ejaz Muhammad Klian, AOR for Petitioners. Nemo for Respondent. Date of hearing: 19.10.1991. judgment Abdul Qadeer Chaudhry, J.-Leave to appeal has been sought against the judgment of the Peshawar High Court, dated 29.5.1991'. 2. The brief facts of the case are that the respondent brought a suit for pre­ emption on 8.5.1979 in respect of the disputed land against the petitioners. The suit was contested. It was dismissed by the trial Court on the ground of limitation. The appeal filed by the respondent was accepted by the Additional District Judge, annu and the suit was decreed in favour of the pre-emptor on 10.11.1982. The petitioners challenged the aforesaid order of the Additional District Judge in revision before the High Court which was accepted on 13.11.1984 and the case was remanded to the trial Court. The trial Court dismissed the suit on 6.10.1987. The appeal filed by the respondent was dismissed by the District Judge on 11.12.1988. The respondent challenged these orders in a revision petition before the High Court which was accepted by the impugned order. It was held that the period of limitation had expired during the closure of the Court and the suit was filed on the day when the Court re-opened. As such, the plaintiff was in his right to file his plaint on the re-opening of the court. 3. Learned counsel for the petitioners submitted that the plaint was presented on 8.5.1979 and the period of limitation expired on 7.5.1979 therefore the suit was barred by time. He submitted that the District Judge, Bannu and the Additional District Judge, Lakki Marwat and Senior Civil Judge, Bannu, were present in their courts therefore the plaint could be presented to any one of these officers. It may be pointed out that the Civil Judge, Lakki Marwat, was on leave on 7.5.1979 as such the plaint was presented on 8.5.1979. The learned counsel for the petitioners has referred to an application moved by Akhi Khan in the court of Additional District Judge that as the Civil Judge was on leave and he has not authorised any person to receive the plaint, therefore, an endorsement may be made and the plaint be sent to the court concerned for necessary action. He submitted that there is a practice that in case the Civil Judge who receives plaints is on leave, the plaint can be presented to the Additional District Judge and that would be proper presentation of the plaint. We do not consider that such practice, if any, debars a plaintiff to exercise his right of presenting his plaint on the re­ opening of the court as the law gives such concession. 4. The learned counsel has referred to Section 3 of the Civil Courts Ordinance, 1963, which provides that there shall be the following classes of Civil Courts, namely:-- (a) the Court of the District Judge; (6) the Court of the Additional District Judge; and (c) the Court of the Civil Judge. He, therefore, submitted thai the presentation of the plaint to any one of these Courts would be proper presentation. 5. Section 23 of the Civil Courts Ordinance provides as follows :-- "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". 6. The learned counsel for the petitioners submitted that Section 23 does not relate to the absence of any Civil Judge for a short period but it relates to such eventuality where perforce the functions of the Court could not be performed. This contention is devoid of force and against the clear language of Section 23. It clearly stipulates "suspension", "temporary absence" of any Civil Judge. The absence of Civil Judge even for a day would require the District Judge to empower any other Civil Judge to perform the duties of the Judge. Section 13 of the Ordinance relates to the places of sitting of Courts. Section 15 provides that "notwithstanding anything contained in the Code of Civil Procedure, every District Judge may by written order direct that any civil business cognizable by the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction". In the present case, the admitted position is that the learned Civil Judge who was on leave had not authorised any officer to receive the plaint in his absence. The learned District Judge, Bannu, has also not delegated such power to any other Judge. Under Order 4, Rule 1, C.P.C. every plaint shall be presented to the Court or such officer as it appoints in this behalf. The power to receive plaint can be delegated by a separate order. The Court in which a plaint has to be presented is generally the Court of lowest grade competent to try the matter (S.15, C.P.C.). The power to receive plaints can be delegated by a specified order. The presentation of a plaint to an authorised officer is the proper presentation. If no authorisation is made then the plaint can be presented on the first day of re­ opening of the Court. Section 23 comes into effect in the event of temporary absence of a Presiding Officer. Under Rule 7(c) of the High Court Rules and Orders (Chapter 1, part-B) the District Judge may make arrangements for reception of plaints and petitions by another officer of a Court when an officer is temporarily sent on leave. In the present case, no such arrangement was made. In Nazar Muhammad v. Murad AH (P.L.D. 1960 (W.P.) Lahore 757), it has been observed as hereunder :-- "Applying these tests to the facts of the present case one cannot but arrive at the conclusion that the Court of the Senior Civil Judge, Gujranwala , was closed on the 16th August, 1954, so far as the presentation of plaints in that Court was concerned. This is so because the presiding officer of the Court was on leave and thd plaint could not be presented to him. On the 16th of August, 1954, officials of the Court of the Senior Civil Judge, Gujranwala, were probably all present in the Court-room, or in a room attached to it, but as none of them had been authorised by the Senior Civil Judge, Gujranwala, to receive plaints on his behalf, their presence was entirely immaterial. What I have said above about the Court of the Senior Civil Judge, Gujranwala , applies with equal force to the Court of the District Judge, Gujranwala . It follows, therefore, that Section 4 of the Limitation Act comes to the aid of the plaintiff and because the Senior Civil Judge, Gujranwala, returned from leave on the 28th of August, 1954, I have no hesitation in holding that his Court remained closed from the 14th of August, 1954, till the 27th of August 1954 and a plaint, which should have been presented on the 14th of August, 1954, must be held to have been presented within time if it was presented on the 28th of August, 1954. That the plaint under consideration was placed before the Senior Civil Judge, Gujranwala, on the 28th of August, 1954, is clear from the fact that he passed an order thereon on that day and even if there was any defect in the p resentation of the plaint on account of the fact that it had been presented to the Duty Magistrate, Gujranwala, who could not, in law, receive it-a defect for which the plaintiff was in no way responsible - it was cured by reason of the fact that the plaint was placed before the Senior Civil Judge, Gujranwala, on the 28th of August, 1954". 7. In Rehmat All v. Noor Muhammad (1981 SCMR 159), it has been held that "plaint can be presented to Court or such officer as appointed by the court in such behalf. In this case, the Civil Judge had authorised his Ahlmad to receive plaints in his absence. It was held that the plaint was validly presented. 8. InKJiiida Bakhsh v. Muhammad Ismail (P.L.D. 1978 Lahore 1049), it has been held that "Section 23 of the Civil Court Ordinance will apply and a plaint could be presented to another officer appointed by the Court". 9. In the result, we are of the opinion that the learned High Court has correctly decided the point of law. This petition has no force. The same is dismissed and leave to appeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 105 PLJ 1992 SC 105 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and muhammad afzal lone, J Maulvi ABDUL QAYYUM-Appellant versus Syed ALI ASGHAR SHAH and 5 others-Respondents Civil Appeal No.791 of 1990, accepted on 26.5.1991 (Approved for reporting on 6.11.1991). [On appeal from judgment, dated 18.4.1990, of Peshawa High Court, in C.R.No.3 of 1989.] Limitation Act, 1908 (IX of 1908)-- —-Art.181 read with Civil Procedure Code, 1908, Section 48-Decree- • Execution of—Limitation for—Whether period of limitation would start from date of decision of first Appellate Court confirming decree of trial court or from date of decision of revision by High Court—Question of—It appears that in holding that period of limitation for execution of decree commenced from date of decision of Appellate Court, rule that decree of trial court merged into decree of Appellate Court, which alone can be executed, was not present to mind of learned Judge (of High Court)-iRule of merger also applies to decree passed in revision-Held: Article 181 of Act does not refer either to decree of Appellate Court or revisional court, but anchors commencement of limitation on accrual of right to apply, and such right legitimately arises when revision against decision of lower court is, one way or other, disposed of-Appeal accepted. [Pp.l06,107,108,109,110,lll&112]A,B,C,D,E,F&G 16 SWR 1,14 Morre's I.A. 465, PLD 1964 SC 520, 37 IA 70, PLD 1954 Lahore 490, AIR 1930 Bombay 225, ILR 1899 Madras 68, 59 LA. 283, PLD 1961 Dacca 312, AIR 1937 Madras 385 and AIR 1970 SC 1 rel. Mr^Abdul Hakeem Klian, Senior Advocate, Supreme Court, instructed by Mr.Manzoor Elahi, Ex-AOR for Appellant. Malik Fazal Hussain, Advocate, Supreme Court, instructed by Mr.Imtiaz M. Klian, AOR for Respondents. Date of hearing: 26.5.1991. judgment Muhammad Afzal Lone, J.~This appeal through leave to appeal, filed by a decree holder in a pre-emption suit, is directed against the High Court's judgment dated 18.4.1990, passed in revision, whereby his execution petition was dismissed as barred by time. 2. The facts are not. in controversy. The trial Court decreed the suit for possession of the land in dispute, in favour of the appellant on 27.4.1981. The respondents' first appeal against the judgment and decree of the trial Court was dismissed on 18.10.1981. Their revision before the High Court met the same fate. Consequently, the decree of the First Appellate Court was affirmed. The judgment and decree of the High Court are dated 18.11.1986. On 5.1.1987, the appellant moved an execution petition under Order, 21, Rule 11 CPC, which embodied the particulars of the decree of the trial Court, the First Appellate Court as well as of the High Court. The judgment-debtor raised the plea that the execution petition was barred by time. The Executing Court turned down the objection and found that the execution petition was well within time. Against the orders of the Executing Court, the respondents preferred an appeal, but the learned District Judge did not find any justification to interfere with the execution of the decree. Consequently, the appeal failed. The respondents then invoked the revisional jurisdiction of the High Court, their revision petition was accepted and the orders of the two Courts were set aside. The reasons which weighed with the High Court are: "....As no stay order was issued during the pendency of the revision petition but before the first appellate Court stay order was issued, therefore, the respondent-plaintiff was to file an application within a period of three years as provided under Article 181 of the Limitation Act from the date when the appeal of the petitioner-defendant was dismissed by the learned District Judge, Mansehra, on 19-10-1981. The record shows that the execution application was filed in the Court of the learned Civil Judge on 5-1-1987 which is beyond the period of limitation of 3 years and is time barred". 3. Leave to appeal was granted to examine "whether the period of limitation provided by Article 181 of the Limitation Act in the circumstances of the present case would start from 18-10-1981, when the appeal of the respondents confirming the decree of the trial Court was dismissed, or when the revision filed by the predecessor of the respondents against the same order dated 18-10-1981 before the High Court was dismissed with costs vide judgment dated 18-11-1986 and a decree sheet was also drawn accordingly". In other words, whether the application for execution moved on 7-1-1987 within two months of the decision of the revision was entertainable. 4. Article 181 is a residuary Article and is attracted only when no other Article of the Limitation Act is applicable. Article 182 having been repealed by the Law Reforms Ordinance, 1972, now there is no other Article governing the period of limitation for execution of a decree of the Civil Court, except Article 181. For the facility of reference, Article 181 is reproduced below: 1. 2. 3. Description Period of Time from which of the suit. Limitation period begins to run. 181-Application for Three When the right which no period of years. to apply limitation is provided accrues, elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908 Evidently, according to this Article, a petition for execution of the decree has to be made within three years of the date of the accrual of right to apply but when such right arises, this Article is silent. As is evident from the language of the Article it refers to section 48 of the Code of Civil Procedure; thus both Article 181 and section 48 shall have to be read together, although as laid down by this Court in Mahboob Khan Vs. Hassan KJian (PLD 1990, SC. 778) "the two provisions are independent and parallel provisions with different scopes and objects". Secion 48, however, prescribes the outer limit of time, after the expiry whereof fresh application for execution of the decree cannot be entertained. Under this section the date of the decree sought to be executed, is starting point of limitation. But .the question requiring determination in this case is, whether the period of limitation would start from the date of decree of the Appellate Court, or the one passed by the High Court in revision. 5. It may be recalled that, according to the High Court, the time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the reason which influenced the decision of the learned Single Judge in synchronizing the accrual of right to apply within the meaning of Article 181, with the date of the decree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stayed the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby, that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain its identity and was capable of execution. Quite advantageously, reference here, may be made to Order 41, rule 5 CPC, which provides that mere filing of an appeal does not operate as a stay of the decree appealed from. The Appellate Court is, however, empowered to order the stay of the execution of such decree. Seemingly, the object of this rule is that the decree holder is not deprived of the relief to which he has been found entitled by the Court, and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or sjich proceedings are pending but no stay order has been issued, such decree remains capable of execution, but when the Court of last instance passed the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified. 6. This rule finds support from the judgment of the Full Bench of the High Court of Bengal, rendered way-back in the year 1871 in Ram Chum Bysak and another Vs. Ltickhee Kant Bamick and others (16 SWR 1). In that case the decree of the Court of first instance was affirmed in appeal by the High Court. The period of limitation prescribed for execution of the decree of the Court of first instance was different from the one fixed for that of the Appellate Court. In case of execution of the decree of the Court of first instance, the execution petition was barred by time. The issue before the Full Bench was that out of the two decrees which was capable of execution. The Court observed: "....whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal was preferred, it is in either case the final decree in the cause, and as such, the only decree which is capable of being enforced by execution after it is once pronounced". This judgment fell for consideration before the Judicial Committee in Kristo Kinkur Roy and another Vs. Rajah Biirrodacaunt Roy and another (14 Morre's LA. 465) and the observations appearing therein support the said proposition. On an exhaustive review of the case law, including these judgments, Kaukaus J. in his lucid judgment, in FA. KJwn Vs. Government of Pakistan (P.L.D. 1964 SC. 520) held: "....once an appeal is filed the matter becomes sub-judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order ...................................................................... " In Lala Brij Narain Vs. Kunwar Tejbal Bikram Bahadur (37 IA 70) the Privy Council has taken the view that the trial Court ceases to have the jurisdiction to amend decree, when it has been affirmed by the Appellate Court. This would also strengthen the rule that after affirmation of. the decree of the trial Court, the decree in existence is only that of the Appellate Court. This view has generally been followed in the sub-continent. Reference in this connection may also be made to: (i) Saeed Ahmad Vs. Messrs Indo Enamel Works Limited, Lahore (P.L.D. ' 1954, Lahore 490); and (h) Harilal Dalsukhram Saheba Vs. Mulchand Asharam (A.I.R. 1930, Bombay 225). 6. During the course of hearing of this appeal,'our attention has been drawn to Joydeb Agarwala Vs. Baitulmal Karkhana Ltd., (PLD 1965 SC. 37). That appeal before this Court, arose out of a suit for specific performance of a contract for sale of land, which was decreed by the trial Court on 3-11-1951, first appeal against this decree was dismissed by the High Court on 6-2-1958. Subsequently, a part of the land was acquired by the Government and compensation assessed thereof. On 1st May, 1959, the decree holder applied to the trial Court for amendment of the decree, for the purposes of "getting a kabala in respect of the compensation money." The amendment was allowed by the trial Court and a direction given to the defendant to execute the kabala regarding award of money as compensation. The amendment was challenged by the defendant in appeal before the High Court, which was rejected as incompetent. The matter then came up before this Court, and the contention raised was, that the decree having been affirmed by the High Court, no jurisdiction is vested in the trial Court to amend the same. Cornelius, J (as he then was) expressed the view that: "No modification was made in the decree by the High Court, and the argument of merger is rendered of rfo weight by the consideration that in fact the High Court rejected the appeal". It appears to us, we may say and say with respect, that the rule in the case of Lala Brij Narain and F.A.Khan. was not intended to be modified. It may also be remarked that there are some exceptions to the rule of merger, for instance, there will be no merger on the rejection of the appeal under Order 41, rule 10 or dismissal in default under Order 41, rule 17 (see Balakanat Vs. Mst. Munni Dail- AIR 1914 PC. 65) or when appeal is withdrawn or abates. These instances are pointer to the situation when the appeal is not disposed of on merits. Further the merger is for a limited purpose of computation of period of limitation and execution of the decree. An other issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the revisional court modifying or affirming the ! decree of the lower Court furnishes a starting point of limitation under Article 7. The distinction between the remedy by way of appeal and revision is not unknown. The appeal is the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision is discretionary and the revision;4 Court has to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case may be, the decree of the lower Court is put in jeopardy. Indeed, the correction of error in the proceedings of the Court below, is common characteristic of both the remedies. The concept of acceptance of appeal is that the lower Court has failed to pass the decree which should have been passed. The same object is achieved when a revision from the decree of the lower Court is D accepted. Thus, in a way revisional jurisdiction partakes of appellate jurisdiction. A case on this point is the one decided by a Full Bench of Madras High Court in Chappan Vs. Moidin Kutti (ILR 1899, Madras 68) where Subramania J expressed the view that appellate jurisdiction includes revisional powers. Again in Nagendra Nalh Dcy and others Vs. Suresh Chandra Dcy and others (59 LA. 283), the Judicial Committee regarded an application for revision as an appeal in ordinary acceptance of the term. That was a matter arising out of an execution petition, which was opposed by the judgment-debtor, as barred by Article 182 of the Limitation Act. In this regard, the precise observations of their Lordships of the Judicial Committee are: "....There is no definition of appeal in the Code of Civil Procedure, 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 because it is irregular or incompetent". Similar was the opinion of a Division Bench of the erstwhile Dacca High Court in Mymensingh Co-operative Town Bank Ltd., Vs. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on the authority of some precedents from Calcutta High Court, in which it was laid down that under Article 182, the limit alien ran from the date of the order in revision, maintained that for the purposes of execution of a decrSe, the appeal included a revision. 8. Earlier the controversy, whether in an execution matler, for Ihe purposes of computation of period of limitation Article 182 (2) applied to revision petition as well or only to appeal was debated before a Full Bench of Madras High Court in P.P.P. Chidambara Nadar Vs. C.PA. Rama Nadar and others (AIR 1937, Madras 385) and the Court after referring to the Judicial Committee's opinion in Nagendra Nath Dey's case, did not find any essential difference between the remedy by way of appeal and by way of revision. The difference between the appeal and revision qua the rule of merger was also examined by the Supreme Court of India in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat (AIR 1970, SC. 1) and it was laid down: "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 Court 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. These judicial announcements leave no room for doubt that for the purpose of cxecuiion, the rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as executability of a final decree is concerned, docs it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the first time by the revisional Court, but regarded as incapable of execution of its decree is that of the affirmation of the decree of the the lower Court, and more so when Article 181, unlike Article 182, which has disappeared from the Statute Book, does not refer either to decree of the Appellate Court or revisional Court but anchors the commencement of period of limitation on the accrual of right to apply and such right legitimately arises when revision against the decision of the lower Court is, one way or other, disposed if. 10. It will be material to bear in mind, that a decree in a pre-emption suit is of a peculiar nature. Under Order 21, rule 14 CPC., the title of the property accrues to the decree holder on payment in the Court of purchase money together with costs, if any. It has not been controverted before us that the requirements of rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal. For all these reasons, the appeal is accepted, but as there is no reported judgment of this Court on the issue involved in this appeal, the parties are left to bear their own costs. (MBC) Appeal accepted. (Approved fro reporting)

PLJ 1992 SC 112 PLJ 1992 SC 112 [Appellate Jurisdiction] Present: dr. nasim hasan shah, ACJ, ajmal mian, muhammad afzal lone and saleem akhtar, JJ RAMZAN and 3 others-Appellants versus THE STATE-Respondent Criminal Appeal No. 27 of 1988, partly accepted on 7.10.1991. [On appeal from judgment of Lahore High Court, in Cr.A-No. 849 of 1978.] Criminal Procedure Code, 1898 (V of 1898)- —S.382-B-Imprisonment for life-Sentence of-Whether provisions of Section 382-B are applicability) life imprisonment case—Question of—Held: Benefit of Section 382-B of Cr.F.C can be extended to appellants in this case-Appeal accepted to extent of benefit of Section 382-B of Cr.P.C. [Pp.ll3&114]A, B&C PLJ 1991 SC 541 rel. PLD 1984 Lahore 461 over-ruled. Hafiz S.A. Rehman Advocate, Supreme Court, for Appellants. Nemo for Respondent. .Date of hearing: 15.9.1991. judgment Nasim Hasan Shan, ACJ.--The only question falling for determination in this appeal is a legal question nemely whether persons covicted under Section 302 PPC and sentenced to imprisonment for life can be allowed the benefit of Section' 382-B Cr.P.C. in the matter of computation of their sentence?. In the instant case, the learned Judge in the High Court expressed his inability to extend the benefit of Secion 382-B Cr.P.C. in view of the Full Bench decision of the Lahore High Court in Zulfiqar All Vs. Hie State (PLD 1984 Lahore 461). However, this Court has been extending this benefit to persons awarded the sentence of imprisonment for life in several cases without, however, making any reference to the decision of the Lahore High Court in Zulfiqar AH Vs. The State (PLD 1984 Lahore 461). Leave was, therefore, grantQd to consider the true interpretation of Section 382-B Cr.P.C. with a view to giving an authoritative pronouncement on the question whether persons convicted under Section 302 PPC and awarded sentence of imprisonment for life can be extended the benefit under Section 382-B Cr.P.C.? In the meanwhile, however, the same question came up for consideration before a Bench of this Court in the case of Qadir & another Vs. The State (Criminal Appeals Nos. 142 & 143 of 1987) (reported as PLJ 1991 SC 541) two of us were Members of that Bench (viz. Nasim Hasan Shah and Muhammad Afzal Lone, JJ.). In this case, it was held that the benefit was extendable under Section 382-B Cr.P.C. even in cases of life imprisonment. While arriving at this conclusion, it was, inter-alia, observed: "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 amendatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or 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 him up for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires 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, the benefit 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 Court went on to observe further-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 secion 382-B Cr.P.C. to a convict sentenced for imprisonment for life in its ordinary cirminal jurisdiction". We are inclined to adhere to this exposition of the law and, accordingly, hold that the benefit under Section 382-B Cr.P.C. can be extended to the appellants in this case. The result is that this appeal succeeds to the extent that the appellants shall be given the benefit of the provisions of Secion 382-B Cr.P.C. in the matter of computation of the sentence of life imprisonment passed against them. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 SC 114 PLJ 1992 SC 114 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND MUHAMMAD AFZAL LONE, J ATTA MUHAMMAD-Appellant versus Sahibzada MANZOOR AHMAD, deceased, represented by his legal heirs-­ Respondent Civil Appeal No. 188-R of 1990, decided on 7-5-1991 (Approved for reporting on 30.10.1991). [On appeal from judgment dated 24.4.1989, of Lahore High Court, Rawalpindi Bench, passed in C.R.No. 917 of 1975]. Shamilat Deh.- —Shamilat land-Possession of~Whether a co-sharer can retain possession of Shamilat beyond his share in khata-Question of-On question of retention of possession by a co-sharer over a parcel of land in joint khata, rule is that a cosharer cannot alienate or retain possession under garb of "hissadari" beyond his share in joint khata—Held: Similar is position regarding possession of a cosharer over Shamilat Deh— Both parties agreed to surrender possession of land in excess of their entitlement. [Pp.ll5&116] A PLD 1959 SC (Pak) 9 and 1989 SCMR 93 rel. Syed Muhammad Ayiib Bokhari, Advocate, Supreme Court, with Ch. Akhtar All, AOR for Appellant. Kit. Muhammad Yousaf Saraf, Advocate, Supreme Court with Mr. Ejaz M. KJian, AOR for Respondent. Date of hearing: 7.5.1991. judgment Muhammad Ai'zal Lone, J.-This is an appeal through leave to appeal by a defendant in a declaratory suit, whose revision from the judgment of the First Appellate Court was dismissed on 24-4-1989. 2. The suit between the parties relates to "Shamlat Deh" in village Toot, Tehsil Pindigheb, District Attock, in which they are co-sharers. The respondentplaintiff sought a declaration that he was in possession of land measuring 171 kanals, 17 marlas, bearing Khasra No. 3545/30 as a co-sharer, and his possession could not be disturbed till partitioning of the "Shamlat" land. He also assailed the validity of Mutation No. 2378, sanctioned on 26-5-1971, relating to tanaza kasht, whereby entry showing the respondent in possession was substituted by one in favour of the appellant. The trial Court dismissed the suit, as the respondent was found out of possession and all the co-sharers in the shamlat were not impleaded as a party. The First Appellate Court, however, took the view that the respondent sought relief only against the appellant, who got mutation sanctioned illegally, the suit, therefore, could proceed even in the absence of other co-sharers. The mutation was adjudged as illegal on the ground that the Collector merely allowed entry of mutation regarding tanaza kasht; the Revenue Officer before sanctioning the mutation had to enquire into the rights of the contesting parties, but he attested the same without giving the respondent any opportunity of being heard. The First Appellate Court futher reversed the trial Court's finding regarding respondent's possession. 3. In revision brought by the appellant against the dismissal of his first appeal, (he High Court affirmed the findings rendered by the learned Additional District Judge. On perusal of the documentary evidence, comprising copies of the Land Revenue record and the oral evidence examined by the parties, the learned Single Judge held that the land was in possession of the respondent as "khitd kaxlit". He also noticed that the mutation in question was sanctioned in the absence of the parties on the strength of the Collector's order dated 16-3-1971, which was not produced and, therefore, the reasons which weighed with the Collector and the material on which his order rested were not known. 4. Leave to appeal was granted inter alia to examine that "....according to the record of rights the owners in the Deh were owners in Shamilat in accordance with their other land holdmg-Hasab, Nasad-khewat, an owner could retain possession only in accordance with his share. The respondent claimed possession over a much bigger disputed area." 5. We have heard the learned Counsel for the parties. On the question of retention of possession by a co-sharer over a parcel of land in joint khata, as laid down by this Court in Muhammad Muzaffar KJian Vs. Muhammad Yusuf KJian (P.L.D. 1959 S.C. (Pak) 9), Rabnawaz and others Vs.AkbarAH and others (1989 SCMR., 93) and C.P. 747 of 1989, decided on 6-10-90, is (?) that a co-sharer cannot alienate or retain possession under the garb of "hissadari" beyond his share in the joint khata. Similar is the position regarding possession of a co-sharer over "Shamilat Deh". Faced with this situation Mr. S.M. Ayub, learned Counsel for the appellant, categorically stated at the Bar that the appellant shall not retain "Shamilat-Deh" more than his share therein and after Rabi crop of the current year shall surrender the possession of the land in excess of his entitlement. The same treatment shall be meted out to the respondent. If the parties fail to surrender the land beyond their entitlement, the Collector District Attock acting in aid of this Court, in pursuance of Article 190 of the Constitution, shall remove the encroachment/trespass over the excess area. The parties are left to bear their own costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 116 PLJ 1992 SC 116 [Appellate Jurisdiction] Present: muhammad afzal zullah, ci and muhammad rafiq tarar, J GHULAM RASUL-Petitioner versus MAHMOOD AHMAD and 42 others-Respondents Civil Petition for Leave to Appeal No. 67-L of 1991, dismissed on 30.7.1991 (Approved for reporting on 7.11.1991) [On appeal from judgment dated 24.11.1990, of Lahore High Court, passed in W.P.No. 4050 of 1990.] Consolidation— -—Consolidation of holdings-Sanctioned scheme of-Setting aside of on direction of Minister-Challenge to-Contcntion that there was no material before High Court to show that Additional Commissioner (Consolidation) was ever directed by Minister to pass any order one way or other-Very order of Additional Commissioner (Consolidation) contains a reference to direction issued by Minister-Held: High Court rightly held that proceedings taken by Additional Commissioner in pursuance of order of Minister were wholly void and not sustainable-Petition dismissed. [P.H7JA&B PLJ 1990 SC 503 rcl. Mr. Shahzad Jehangir, Senior Advocate, Supreme Court, instructed by Mr. Mahmood A. Qureshi, AOR for Petilioner. Respondents: Net represented. Date of hearing: 30.7.1991 judgment Muhammad Rafiq Tarar, J.-Leave to appeal has been sought from the order of a learned Single Judge of the Lahore High Court dated 24.11.1990 whereby the Writ Petition No. 4050/90 filed by the petitioner's side challenging the order dated 19.9.1989 passed by the Additional Commissioner (Consolidation) on review,and order dated 17.4.1990 of the Member Board of Revenue dismissing revision against the said order of the Additional Commissioner was allowed. 2. The brief facts are that consolidation scheme of village Fatowal Sulehrian was confirmed by the Consolidation Officer, Sialkot , on 28.9.1986. Only six out of 771 land owners filed appeals before the Collector (Consolidation). The appeals were still pending when respondent No. 1 made an application before the Minister for Consolidation for setting aside the whole scheme. The Minister directed the Additional Commissioner to review the scheme in pursuance whereof he set aside the scheme vide order dated 19.9.1989 referred to above. This order was challenged before the Member Board of Revenue by filing a revision petition which was dismissed on 17.4.1990. Relying on Ahmed Klian's case (PLJ 1990 Supreme Court 503) the learned Single Judge held that the Minister for conslidation had no jurisdiction whatsoever to interfere with the scheme sanctioned by the authorities under the Consolidation of Holdings Ordinance, 1960. We have heard the learned counsel for the petitioner. In the petition it has been stated that the Supreme Court authority cited by the learned Judge " had no application to the facts of the instant case, because there was no material before the learned High Court Judge to show that the Additional Commissioner (Consolidation) was ever directed by the Minister concerned to pass any order one way or the oilier". 3. The contention is devoid of force. The very order of the Additional Commissioner Consolidation contains a reference to the directions issued by the Minister for Consolidation. The learned Judge rightly held that the proceedings taken by the Additional Commissioner Consolidation in pursuance of the order of the Minister were wholly void and unsustainable. There is no substance in this petition and the same is dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 117 PLJ 1992 SC 117 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH CJ and ajmal mian, J FAHMIDA BEGUM and 7 others-Petitioners versus KHALID ROHEEL ALAM and 3 others-Respondents Civil Petition No. 349-L of 1991, decided on 21.7.1991. [On appeal from judgment dated 16.3.1991, of Lahore High Court, in W.P.No. 2042 of 1989] Ejectment— —Tenant—Ejectment of—Petition for leave to appeal against—Contention that main petitioner is widow with orphan children and if respondents' side allows some further time to make alternate arrangements, this petition would not be pressed-Offer was accepted by respondents' side-Held: Petition is disposed of on undertaking given by counsel for petitioners that they would vacate premises and hand over vacant possession to landlord side within one year's time-Held further: If premises are not vacated earlier, petitioners shall be ejected aft'er one year through a writ of possession directly issued without any further notice. [Pp.ll8&119]A,B,C,D&E Mr. Muhammad Ahmad Bani, Advocate, Supreme Court and 5. Abdul Aasim Jafc/i, AOR for Petitioners. VJ. Mushtaq Ahmad, AOR for respondents 1 & 2. Date of hearing: 21.7.1991. order Muhammad Afzal Zullah, CJ.--This is a petition for leave to appeal by the tenant side against the order of eviction from a property in an urban area. The respondents' ejectment petition having been allowed throughout and the pel it loners having failed even in the writ petition filed before the High Court, leave to appeal has been sought on various grounds. However, even before arguing the matter and pressing the petition, the learned counsel for the petitioners stated and argued that the main petitioner is a widow with orphan children and that they have no other livelihood except meagre earning from the property in dispute. If on account of this reason, he further staled, (lie respondents' side allows the petitioners some further time to remain in occupation and also sometime to vacate the premises and make alternate arrangement, this petition would not be pressed. The learned counsel for the respondents understandably accepted the offer without any hesitation as he knew that the offer has been made even without arguing the petition on merits. Such like cases have to be treated on different footings than those in which an evicted tenant tries to further prolong the agony of the landlord by further litigation. Thus the leaned counsel for the petitioners rightly earned a better position for the present petitioners as compared to the tenants in the aforementioned cases which are faught to the hilt and ultimately on failure, time is sought for vacating the premises. Wilh these considerations when the question, as to how much time would be just and proper arose, both the learned counsel rightly agreed on one year time. Accordingly, this petition is disposed of on the undertaking given by the learned counsel for the petitioners that they would vacate the premises and hand over the vacant possession to the landlord side without any objection and without the respondents going through the process of the execution proceedings. After one year from today if the premises are not vacated earlier, as above directed, the petitioners shall be ejected through a writ of possession directly issued without any further notice. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 119 PLJ 1992 SC 119 [Appellate Jurisdiction] Present: muhammad afzal zullam CJ and abdul shakurul salam, J. GHULAM HUSSAIN and another-Appellants versus PROVINCE OF PUNJAB and 2 others-Respondents Civil Appeal No. 401 of 1989, partly accepted on 28.11.1991. [On appeal from judgment dated 17.9.1985, of Lahore High Court, Multan Bench, in Civil Revision No. 530 of 1985.] Proprietary Rights— -—Proprietary rights-Grant of-Suit for-Dismissal of revision by High Court-­ Challenge lo~Leave was granted to resolve controversy about question whether or not allotment was made in favour,of appellants within target date- Careful scrutiny of original records leaves no doubt that allotment was made before target date-Held: High Court judgment is based on non-consideration and misconsideration of substantive evidence-Held further: Although appellants can be granted relief to a greater extent, yet suggestion of Additional A.G. is accepted and land in dispute is directed to be divided half and hald between contesting parties with proprietary rights to appellants of area to be retained by them. [Pp.l20&121]A,B,C&D PLJ 1990 SC 337 rel. Sycd Sardar Shah Bokhari, Advocate, Supreme Court, and Mr. Mahmood A. Qureshi, AOR for appellants. CH. M. Hussain Jahanian, Advoacte, Supreme Court, and S. Inayat Hussain, AOR for respondents 2 & 3. Mr. Farooq Bedar, Addl. A.G. and Ras Muhammad Yousaf KJian, AOR for Respondent No. 1. Date of hearing: 28.11.1991. judgment Muhammad Afzal Zullah, CJ.--This appeal through leave of the Court is directed against the dismissal by the High Court of appellant's Civil Revision. It has arisen out of their suit for declaration and permanent injunction relating to allotment of State land on lease with possible consequence of grant of proprietary rights. The trial Court, it seems, non-suited the appellants mainly on the points of jurisdiction and other legal questions but the High Court after having examined the merits, came to the conclusion that the allotment orders relied upon by the appellants were beyond the target date involved in the case. Learned counsel at the leave stage, showed us the photo copies of the disputed orders. "Firstly, although very short and not in any proper form; they do, prima-facie, convey atleast an intention to make allotment. Secondly, there are two dates found on the allotment forms. On one of the dates the orders seem to have been passed-one purports to be the date of tender and the other purports to be the date of proceedings. If the former is treated as the date of allotment also the appellants seem to have a good case for further examination; but, if the latter is treated as the date of allotment they would have, prima-facie, no case." After hearing the learned counsel we granted leave to appeal in the circumstances of this case to resolve the controversy regarding the question of allotment; whether made or not within target date in favour of the appellants. The Government having been directed to produce the relevant record in this case, the learned Additional Advocate-General is present with the record and he has also been heard. After careful scrutiny of the original records which were not before the High Court, we have no doubt that the allotment was in fact made in favour of the appellants on 30.5.1971, before the target date. The High Court proceeded on the assumption that there was no such allotment on that day. Thus on this ground alone this appeal merits to be allowed. In the record there is not only entry in the allotment register but also there is a separate allotment order dated 30.5.71 on a printed form wherein is also a direction for the delivery of possession to the appellants/allottees. Further-more, in the relevant file there is an order dated 14.7.1972, according to which the allotment was earlier made, as above stated, but there being some excess it was sought to be excluded. Thus the High Court judgment is'based on non-consideration and misconsideration of the substantive evidence which clearly shows that the allotment was made and possession ordered to be delivered to the appellants on 30.5.1971. The next question arises; whether, the case should be remanded to the High Court or decided by this Court. All the learned counsel agreed that it should be decided by this Court. The arguments were then addressed by all of them. The learned counsel for the respondents laid stress on the point that they being auction purchasers since 1963 it was not their fault that the land was resumed from them and given to the appellants under 15 years scheme. He also stressed that even if the allotment date is 30.5.1971 the grant of proprietary rights would be subject to the fulfilment of the conditions by the appellants. The learned counsel for the appellants on the contrary stressed that in so far as grant of proprietary rights is concerned the matter is between the appellants and the Government. The learned Additional Advocate-General adopted a balanced conciliary view; namely, that while the appellants are entitled to the proprietary rights, yet some consideration should be shown by the appellants to the respondents because the resumption of the area from them was subsequently set aside. He suggested that half of that part of the land which was allotted to the appellants and which originally formed part of the auction purchase by the respondents should be retained by the appellants and the remaining half should be returned to the respondents. Learned counsel for the appellants has agreed to this suggestion made by the learned Addl. Advocate-General. Learned counsel for the respondents stated that although it might be a fair arrangement to safeguard the rights of the parties, he not having been able to consult his clients, cannot make a positive statement. Although, technically in the light of the foregoing discussion the appellants can be granted relief to a greater extent but acting on the rule laid down in Muhammad Iqbal Versus Shamas-ud-D'in (PLJ 1990 S.C. 337) we accept the D suggestion made by the learned Addl: Advocate-General and allow this appeal in the following terms:- (a) That that area allotted to the appellants which originally formed part of the auction purchase by the respondents shall be divided half and half between the two contesting parties. (b) With regard to the entire area thus retained by the appellants proprietary rights shall be granted to them. (c) That the area to be surrendered by the appellants shall be at their choice. The decree shall, accordingly be modified. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 SC 121 PLJ 1992 SC 121 [Appellate Jurisdiction] Present: shafiur rahman, rustam S. sidhwa and muhammad afzal lone, MAZHAR ALI-Appellant versus FEDERATION OF PAKISTAN and 2 others-Respondents. Civil Appeal No. 574 of 1989, accepted on 16.12.1991. [On appeal from judgment of Punjab Service Tribunal, dated 11.1.1988, passed in Appeal No. 426/915 of 1986.] Compulsory Retirement.-- —Permanent employee of Punjab Government-Sent on deputation to Federal Government—Order of compulsory retirement passed by President of Pakistan-Challenge to-According to Rules 3.13 to 3.17 of Civil Services Rules (Punjab) Volume I and Fundamental Rules 13,14 and 14-A, lien of permanent civil servant cannot be terminated unless he is confirmed against some other post—Appellant was not confirmed by Federal Government on any post—His lien will be retained with Punjab Government and he will be deemed to be on deputation with Federal Government—Held: President was not competent authority to direct either compulsory retirement or termination of service of appellant-Appeal accepted. [P.125JA & B Sh. Manzur Ahmad, Advocate, Supreme Court, instructed by Mr. M. Aslam Chaudhry, AOR for Appellant. Mr. Aflab Iqbal Chaudhry, Deputy Attorney General, instructed by Rao Muhammad Yusuf Klian, AOR for Respondents. Date of hearing: 16.12.1991. JUDGMENT: Shafiur Rahman, J.—Leave to appeal was granted under Article 212 (3) of the Constitution to examine whether a civil servant of the Punjab Government can be so treated or dealt with as to be left with no lien on any post while being posted with the Federal Government. 2. The appellant started his career in the service of the Government of the Punjab as Assistant Engineer in the Irrigation Department after being selected by the Public Service Commission. He was promoted to the rank of the Executive Engineer in 1958 and to that of Superintending Engineer on 23rd of January, 1971. While .so posted, he was asked to report to the Finance Minister as is clear from the office note of Secretary, Irrigation and Power, dated 29.12.1991 in the following words:- "Mr. Vaqar Ahmad, Secretary Establishment, Government of Pakistan, rang me up on Sunday, the 26th, asking me to spare Mr. Mazhar All, SE immediately and he should be asked to report to the Finance Minister, Government of Pakistan, Dr. Mobashar Hassan. I have accordingly asked him to do that. I am told that he left today for Islamabad. Further details regarding his appointment with the Central Government and his terms and conditions of service while on deputation may please be asked from the Establishment Secretary, Government or Pakistan." The Cabinet Secretariat (Establishment Division), Government of Pakistan also issued a notification dated 30th December, 1971 to the following effect:- "On transfer from the Government of the Punjab, Mr. Mazhar Ali, Superintending Engineer, Irrigation, is appointed to officiate as Officer on Special Duty with the rank, status and pay of the Joint Secretary to the Government of Pakistan, in the Ministry of Finance, with immediate effect and until further orders." There was also a formal order issued by the Government of the Punjab, Irrigation and Power Department on 5.1.1972 in the following terms:- "The Governor of the Punjab is pleased to place the services of Mr. Mazhar Ali, Superintending Engineer, Irrigation and Power Department at the disposal of the Government of Pakistan, Ministry of Finance, from the date he relinquishes his charge in the Water Allocation & Rates Cell, Government of Punjab, Irrigation & Power Department. The terms and conditions of his deputation to the Government of Pakistan will be settled in due course." 3. While with the Federal Government as Joint Secretary, the appellant earned promotion as Additional Secretary. At one stage he was charge-sheeted. A departmental enquiry into his conduct while rendering service to the Federal Government was held and the President by an Order dated 1-10-1983 compulsorily retired him form service. The notification to this effect reads as hereunder:- "Consequcnt upon disciplinary action taken under Government Servants (Efficiency & Discipline) Rules, 1973, the President has been pleased to retire from service compulsorily Mr. Mazhar Ali (an officer of Secretariat Group in BPS-21), with immediate effect." 4. The appellant sought a review from the President but did not succeed. He then approached the Punjab Service Tribunal which considered his service appeal to be premature and directed him to seek further departmental relief. He thereafter represented to the Governor on 21-1-1986 and filed the appeal with the Punjab Service Tribunal on 31-5-1986. His case before the Tribunal was that he was a permanent employee of the Punjab Government and under the rules had his lien on a post in the Irrigation & Power Department of the Government of Punjab and the impugned.orders of his compulsory retirement could not be passed by the Federal Government while he was on deputation there. The Service Tribunal examined the case and without reference to any rule or law on the subject held as hereundcr:- "The order of the Irrigation & Power Department dated 5-11-1972 showing the appellant on deputation is directly in conflict with the notification dated 30-12-1971 issued by the Federal Government whereby the appointment of the appellant was made. The order of the Provincial Government is otherwise meaningless. It passes one's comprehension that what was the occasion to issue this order after more than 10 months of the appellant having joined Federal Government. We are, therefore, of the considered view that this notification as well as notification dated 16.7.1983 are of no legal consequences." The Tribunal also held the principle of estoppel fully applicable against the appellant and the operative part of the finding recorded by the Tribunal reads as hercunder:- "The principle of estoppel is fully applicable. The appellant now cannot be permitted to resile from his earlier position and take up altogether a new and inconsistent plea." The appeal was also held to be time-barred. It was, therefore, dismissed. 5. At the hearing before us, a notification of the Government of the Punjab , Irrigation and Power Department dated 25.11.1989 was produced which reads as hercunden- "In order to justly and fairly restore to Mr. Mazhar Ali, his due rights of salary, pensionary and other benefits as a permanent civil servant of Punjab Government, and in view of his meritorious services, the Governor of Punjab, after careful consideration and in exercise of his inherent discretionary powers and prerogative to remove hardship and difficulties, is pleased to order that:- (1) Notification No. Estt-I/PR-1/76 dated 1.3.1980 by Irrigation and Power Department; Punjab appointing Mr. Mazhar Ali (BPS-21) continues to be in force; and in consequence he is deemed to have been repatriated to his par.ent Irrigation & Power Department from 3.6.1978 in the same pay scale as he was enjoying in the Federal Government at the time of his repatriation. (2) He is allowed to retire on 23.4.1989 on reaching the age of superannuation. He is allowed pensionary and other benefits of continuous permanent service since 28.6.1952, as admissible." 6. In determining the question whether the appellant held a substantive appointment with the Government of the Punjab or not, the Service Tribunal completely ignored and lost sight of the comments of the Government of the Punjab which read as hercunder:- "6, 7, 8. No comments except that the appellant was a permanent employee of the Irrigation Department, Punjab. 9. The representation has not yet been disposed of as the question of termination or otherwise of his lien has not yet been finally decided. 10. No comments. A. Mr. Mazhar Ali joined the Punjab Irrigation Department on 28-6-1952 in Class-I and was confirmed against a substantive post. He was sent on deputation to the Federal Government in December 1971 and was shown as such in the various seniority lists of officers issued by the Punjab Irrigation & Power Department, the last such list being the Seniority List of Superintending Engineers issued on 16-7-1983 where his name appeared at S.No. 12. No orders suspending/terminating the lien of the officer were issued." The Federal Government also commented on his status as hereunder:- "25. (B) Denied. He had a dual capacity. He was an officiating civil servant of the Federal Government and notionally in Punjab Government." 7. The law applicable to such an admitted position on facts finds mention in the rules 3.13 to 3.17 of the Civil Services Rules (Punjab)--Volume I, and Fundamental Rules 13, 14 and 14-A. According to these, the lien of the permanent civil servants cannot be terminated, even with their consent. It can be terminated only when the civil servant is confirmed against some other permanent post. There is nothing on the record to suggest nor any indication or plea that the Federal Government had confirmed him on any post under the Federal Government. In the absence of such a material or evidence, his lien will be A retained with the Punjab Government and notwithstanding the non-specification of the terms and conditions of his deputation, he will be deemed to be on deputation with the Federal Government. For that reason, he would be excluded from the definition of Civil Servant under the Civil Servants Act of the Federal Government on the strength of Section 2 (1) (fa) of the Civil Servants Act. The President will not be competent authority to direct either his compulsory retirement or the termination of his service. The Provincial Government had made the amends as far as it could by the notification just reproduced above in para 5. It could not obviously set aside the order of the President. 8. This appeal is allowed. The orders of Tribunal and of compulsory retirement of the appellant by the Federal Government arc set aside as without jurisdiction. The question of limitation will not come in between because the Provincial Government all through treated him as its own employee and had dealt with him even during the pendency of the appeal in a beneficial and befitting manner. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 126 PLJ 1992 SC 126 [Appellate Jurisdiction] Present: muhammad afzal, zullah, CJ, saad saood jan and ajmal mian, FEROZE KHAN-Appellant versus FATEH KHAN and 2 others-Respondents Criminal Appeal No. 56 of 1987, dismissed on 17.7.1991 (Approved for reporting on 6.8.1991). [On appeal from judgment dated 1.10.1985, of Lahore High Court, Rawalpindi Bench, in Crl. Appeal No. 175 of 1982] Appeal against acquittal— —Murder case—Acquittal of accused by High Court—Challenge to—Contention that first set of accused having been acquitted on account of extension of benefit of doubt, remaining accused can be convicted on basis of testimony of same witnesses—Acquittal on extension of benefit of doubt does not necessarily mean that eye-witnesses had either not seen occurrence or that they had deliberately falsely implicated acquitted accused—Mere difference of opinion regarding appreciation of evidence is not a good ground for setting aside an acquittal-Held: No merit having been found in this appeal, same is dismissed. " [Pp. 127&128]A,B,C,D&E PLD 1959 SC 480, 1990 SCMR 1277 and PLD 1985 SC 11 ref. Raja Muhammad Anwar, Senior Advocate, Supreme Court, and Ch. Akhtar All, AOR for Appellant. Sh. Zamir Hussain, Advocate, Supreme Court, and Mr. Manzoor Elahi, Ex- AOR for Respondents 2 & 3. Date of hearing: 17.7.1991. judgment: Muhammad Afzal Zullah, C.J.--This appeal through leave of the Court is directed against a judgment of acquittal by the High Court in a murder case. The petition for leave to appeal was against the acquittal of Fateh Khan, Anwar Khan, Sher Khan; and, Lai Khan, Sher Zaman and Karam Elahi. The facts and point noted for the grant of leave to appeal are as under:- "All the aforementioned accused were tried for the murder of Arab Gul by inflicting on him soli and knife blows. "The trial Court accepted the ocular testimony of Feroze Khan and Muhammad Iqbal while convicting Fateh Khan, Anwar Khan and Sher Khan, but the High Court rejected their testimony and acquitted them. "From the examination of the evidence and the judgment, it appears that the High Court has, on its own assessment of the probabilities, discounted the presence of Feroze Khan and Muhammad Iqbal without going into any depth of their evidence for assessing the quality of their testimony. We are, therefore, of the view that the entire evidence requires re-appraisal so as to avoid any miscarriage of justice. "We would, accordingly, grant leave to appeal as against Fateh Khan, Anwar Khan and Sher Khan, but would dismiss it as against Sher Zaman, Karam Ellahi and Lai Khan in regard to whom, in the absence of any State appeal, we do not consider it worthwhile to examine their acquittal" Learned counsel for the appellant has reiterated the argument that Feroze Khan and Muhammad Iqbal could have been relied upon notwithstanding the fact that the acquittal of Sher Zaman, Karam Ellahi and Lai Khan has been affirmed even by this Court in refusing to grant leave to appeal. He argued that if the acquittal by the trial Court of three accused in this case is with the finding that the same eye witnesses having perjured themselves falsely implicated the acquitted accused, then it may not be possible to rely upon the same witnesses for seeking conviction of the remaining accused against whom leave to appeal has been granted. But. as further contended by him, the first mentioned set of accused was acquitted on account of extension of benefit of doubt, therefore, the remaining accused can not (?) be convicted on the basis of the testimony of the same .witnesses. The proposition seems to be correct. See (/) Slier Hassan vs. Hie State (PLD 1959 Supreme Court 480) and (//) Sadamzzaman vs. The State (1990 S.C.M.R. 1277). The acquittal on the extension of benefit of doubt does not necessarily mean that the eye witnesses had either not seen the occurrence or that they had deliberately falsely implicated the acquitted accused. It means that there are both the possibilities; namely, that they might have, told the truth or they might have not told the truth. On account of this doubt, while the accused becomes entitled to acquittal under the higher jurisprudential principles relatablc to the theory of extension of benefit of doubt, the witnesses cannot be condemned to have told lies. In such like cases, however, care is taken that for convicting the remaining accused, the witnesses are put to hardest test of scrutiny and depending upon the circumstances of each case attempt is made to see if their testimony is corroborated by independent circumstances. In this case we, with the help of the learned counsel for the appellant, have ourselves gone through the testimony of the eye witnesses as well as the view of the High Court regarding their reliability. After going through the same we have come to the conclusion that at best it could be a case of mere difference of opinion regarding appreciation of evidence but this alone is not a good ground for setting aside an acquittal as held by this Court in Ghulam SikandarVersusMamarazKlian (PLD 1985 S.C. 11). The learned counsel then contended that the mis-appreciation of evidence, when it leads to a difference of opinion in the Court of appeal and has also resulted in mis-carriage of justice, can be a basis for upsetting the order of acquittal. This proposition also in a way seems only partially correct. Miscarriage of justice is a relative consideration. Justice is the birth right of every citizen. The accused has also similar right to justice as the complainant side. Therefore, while balancing the facts in such like cases regarding miscarriage of justice it is very difficult to define the limits where the right of one ends and that of the other begins. The Courts often in such like difficult situations, have applied test of "impossibility" by asking question; whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place? We have applied this test to the appreciation of evidence in the present case and the prosecution has not succeeded in this test. The view held by the High Court about the witnesses was not impossible. Next the learned counsel contended that the High Court while refusing to rely on the testimony of the eye witnesses has also mentioned that it was not possible for it to believe them without corroboration. And because, as further contended by him, there is very strong corroboration in recovery of incriminating articles including the revolver of the deceased from one of the accused, this corroboration would be enough to fill the gap left on the prosecution side and the weakness (if found) in the testimony of the eye witnesses. It is correct that the nature of the recovery in this case, if it would have been relied upon, would have furnished very strong corroboration. But the evidence regarding this recovery was put to similar tests and criticism as the testimony of the eye witnesses. And the same criticism in this Court, while hearing an appeal against acquittal, would apply to the appreciation of evidence. We have not found it an iota better than the eye witnesses themselves. In the light of the foregoing discussion no merit having been found in this appeal the same is dismissed. The respondents/accused shall be released forthwith if not required in any other matter. (MBC) (Approved lor reporting) Appeal dismissed.

PLJ 1992 SC 128 PLJ 1992 SC 128 [Appellate Jurisdiction] Present: saad saood jan and rustam s.sidiiwa, JJ GHEE CORPORATION OF PAKISTAN and another-Appellants Versus Sli. ABDUL HAQ AND SONS LTD. and anothcr-Respondents Civil Appeal No. 271 of 1988, dismissed on 23.10.1991. [On appeal from judgment of Lahore High Court, dated 13.11.1979, in W.P.No. 1355 of 1975] Compensation,-- —Take over of Crescent Factory-Factory was on lease with respondent-All property of respondent-lessee lying therein was also taken over-High Court holding that compensation was payable to respondent in accordance with ordinary law of land-Challenge to-Schedule to Hydrogenated Vegetable Oil Industry (Control and Development) Act, 1973 does not cover basis on which compensation can be worked out in respect of claims of ordinary creditors like respondent-lessee arisin'g out of nationalization of establishment—Entitlement to compensation of third parties cannot be worked out on break-up value, net worth value or time value according to Schedule as urged on behalf of appellants-Held: Federal Government and/or appellants are liable to pay compensation to respondent for loss if any, and for all stocks, stores etc. assessable according to ordinary law, less any liabilities-Appeal dismissed. [Pp.l32&133]A&B Mr. M.S. Baqir, Advocate, Supreme Court, instructed by Syed Inayat Hussain, AOR for Appellants. Raja Muhammad Akram, Advocate, Supreme Court, instructed byAfr. Abul Aasim Jafari, AOR for Respondents. Date of hearing: 23.10.1991. judgment Rustam S. Sidhwa, J.--This is an appeal by the Ghee Corporation of Pakistan and another appellants against the judgment of a learned Single Judge of the Lahore High Court dated 13,11.1979 accepting the Writ Petition No. 1355 of 1975 filed by Sh. Abdul Haq and Sons Ltd, respondent No. 1. 2. The brief facts of the case are that by an agreement of lease dated 30.6.1973 ma"de between the Crescent Factory Ltd and Sh. Abdul Haq and Sons Ltd, the former Company leased the Vegetable Ghee Mills, New Unit, situate in Chichawatni, to the latter Company for a period of 11 months commencing from 1.7.1973 and ending on 31.5.1974. The rent was fixed at the rate of Rs. 1,15,000/- per quarter (namely three months). The lessee Company assumed full responsibility for payment of all taxes, levies and fees on its income, profits, production and operations. 3. The Hydrogenated Vegetable Oil Industry (Control and Development) Ordinance, XIX of 1973 was promulgated on 2.9.1973 by the Government of Pakistan with a view to regulate the operation and future development of the Hydrogenated Vegetable Oil Industry so as to maintain at reasonable prices supplies essential to the life of the community while safeguarding the interests of the small investors in the industry and to provide for matters connected therewith or incidental thereto. The said Ordinance was substituted by Act LXV of 1973 later bearing the same name. 4. Section 5 of this Ordinance empowered the Federal Government to take over the management of any establishment, to acquire the whole or a portion of the shares or the proprietary interests of such Company in such establishment. Section 6 empowered the Federal Government, after making an order under Section 5, to appoint a Managing Director in respect of such establishment. In the case of establishments where action has been taken under Section 6, the Federal Government was further empowered by Section 7 to bring into existence a Board of Management for such establishment or class of establishments. 5. The Government delegated its power under Section 5 to the Provincial Government and by a notification issued on 14.9.1973 the Crescent Factory Ltd, Old and New Units, Chichawatni, in relation to its vegetable ghee mills, was declared to have been taken over by the Government. This notification was published in the Punjab Gazette dated 19.9.1973 and this concern was mentioned at serial No. 10. Both the old and new units of the vegetable ghee mills at Chichawatni were the subject of the take over. Consequent upon the take over, the entire effects of the Crescent Factory Limited on the premises of the Mills alongwith all the property of the respondent lessee lying in the New Unit was also taken over. A Managing Director for the Crescent Factory Ltd. was appointed under the orders. 6. The respondent Company felt aggrieved by the action taken by the Government and filed a writ petition (W.P. 1009 of 1974) challenging the action by which the Mill was taken over as well as all other consequential actions affecting the interests, rights and properties of the respondent Company. The High Court called for a report on this petition and the authorities submitted that the respondent Company was a lessee and was entitled to be compensated. They undertook to finalise the compensation payable to the respondent Company after the audit was completed. In view of this statement, the respondent Company withdrew the writ petition on 9.7.1974. 7. During the negotiations that took place between the representatives of the appellants and the respondent Company regarding payment of compensation to the latter with regard to its various claims including that for goods, material, machinery and cash that belonged to it i.e. the lessee Company, and were lying in the taken over establishment when the same was nationalised, differences developed again. The respondent thereupon filed another writ petition (W.P. 1355 of 1975) challenging the right of the Government to take over the property belonging to the respondent lessee and pleaded in the alternative that they were entitled to compensation for claims and properties which belonged to them in accordance with ordinary law of the land and not as that provided by Section 14 read with the Schedule to the Hydrogenated Vegetable Oil Industry (Control and Development) Act, LXV of 1973 (hereinafter to be referred to as "the Act"). A learned Single Judge of the High Court accepted the writ petition on 13.11.1979. As regards the question whether the Government could take over the property of the respondent lessee, the learned Judge held that as in the earlier writ petition the status of the respondent Company as lessee had been decided, the said Company was now estopped from reopening the question again. As regards the question of compensation, the learned Single Judge held that the- same was payable in accordance with ordinary law of the land. 8. Being aggrieved by the above judgment the appellants petitioned this Co'jrt for leave to appeal, which leave was granted as in a similar petition C.P. 365/1982 leave had already been granted for consideration of the same question. 9. We have heard the arguments of the learned counsel for the appellants and the contesting respondent and have perused the record. The first question of dispute between the parties is as to the method of compensation. According to the learned counsel for the appellants, Section 14, read with the Schedule to the Act, deals with the matter. According to the learned counsel for the respondent, the said provisions of the law are not applicable to the respondent lessee, but are intended to govern compensation payable to the owners of the mills whose establishments have been acquired under Section 5 of the Act. On its behalf it is contended that the ordinary law prevails. The second point of dispute is as regards two loans. On behalf of the appellants it is urged that two loans/overdrafts standing against the mills, namely, one of Rs. 40,00,000/-obtained from the National Bank of Pakistan and the other of Rs. 30,00,000/-obtained from the United Bank, are liabilities of the lessee Company, which liabilities have to be taken over by the respondent lessee, but which it is refusing to accept. On behalf of the respondent lessee it is submitted that those two loans were actually taken by the Crescent Factory Ltd, i.e. the establishment which was nationalised, and they are therefore not liable to repay the said loans. 10. Under Section 5 (1) of the Act, the Federal Government could , by an order, take over the management of any establishment and as from the date of such order the previous management stood divested of such management. Under Section 2 (/) of the Act, the expression "establishment" meant any company, firm, concern, institution or enterprise the whole or any part of the undertaking of which pertained to the industry and included any related office, shop, factory, godown, yard, stocks and stores, wherever they were. In the present case, the Crescent Factory Ltd, which was a Company, was notified for take over under Section 5 (1) of the Act. Thus, the Government was entitled to take over the management of the Company, i.e. the whole or any part of the undertaking of which pertained to the ghee industry, including any related office, shop, factory, godown, yard, stocks and stores, wherever they were. So whatever stocks or goods were situate within the premises of the Company taken over, whether they belonged to the Company or to third parties, the management of the same was taken over by the Government. Again, under clause (a) of sub-section (1) of section 5 of the Act, no sooner the order under this section was issued, the previous management stood divested of such management. Under Section 2 (/') of the Act, the expression "previous management" in relation to an establishment meant the person, Board of Directors or other body or authority in whom or in which the management of the establishment vested immediately before the appointment of the Managing Director by the Government. Thus, the lessee Company stood divested of the management of the taken over undertaking. The full management therefore vested in the Government. 11. Apart from the take over of the management of the Crescent Factory Ltd, the acquisition of its proprietory rights was dealt with by clauses (b) and (c) of sub-section (1) of Section 5 of the Act. Since the nationalised establishment was a Company, clause (b) of sub-section (1) of Section 5 applied. Under this provision, Government could acquire the whole or a portion of the shares from all or any of the shareholders of such Company, and as from the date of such order the shares so acquired vested in the Federal Government. Under Section 14, where inter alia the Federal Government acquired a portion of the shares of the shareholders of any nationalised Company, it had to acquire the same within a period of 90 days on payment of such compensation as was to be determined by the Federal Government on the basis of the principles set out in the Schedule. In the instant case the nationalised Company was the Crescent Factory Ltd, New Unit, Chichawatni, whose undertaking pertained to the ghee industry. What was actually acquired was a little over 50% of the shares from all or some of the shareholders of the said Company. The Schedule to the Act starts with the words "Principles and the manner for payment of compensation in respect of the shares or proprietary interests of an establishment acquired by the Federal Government." The Schedule to the Act was alone applicable for the determination of the value of this partial shareholding which had been acquired. The Schedule to the Act emphatically does not cover the basis on which compensation can be worked out in respect of the claims which ordinary creditors, like the respondent lessee, may have had against the Government, arising out of the nationalisation of the establishment. 12. The claim of the respondent Company is like that of any ordinary creditor, to be determined in accordance with the ordinary law. In Pakistan Shipping Corporation v Rustam F. Cowasjee (1989 SCMR 1332), a partnership firm, owning and running a shipping line, was nationalised. Apart from inter alia claiming the net worth' value of their partnership business as compensation, as provided by the Schedule to the Pakistan Maritime Shipping (Regulation and Control) Act XVIII of 1974, the partners also claimed the advances made by them to their partnership firm over and above their alleged shares. Before the High Court Appellate Bench it was contended on behalf of the Federal Government that a creditor liable to be paid under Section 19 of the Act did not include a creditor who happened to be a partner. Since the definition of the word "creditor" was "any person" to whom a managed establishment owed any amount of money, the High Court held that the definition could not exclude a partner and it allowed the claim, holding (that) it would be thoroughly unjust to admit a debt and not pay the same. The Supreme Court affirmed this finding, though it disallowed the interest that had been granted on the loans. In the instant case the definition of the word "creditor" is the same and a lessee who is due (?) compensation, does not fall outside the definition and his claim is to be adjudged according to the ordinary law. Though under Section 5 (1) read with Section 2 (/) of the Act, the take over of the management of the establishment would include the take over of all stocks, stores, goods, machinery, etc., of all third parties as well, apart from that of the nationalised establishment, it is obvious that whilst working out the compensation payable to the nationalised establishment under Section 14 of the Act, read with the principles laid down in the Schedule therein, such of the stocks, stores, goods, machinery, etc., as did not legally belong to or had not been acquired or purchased by the nationalised establishment for valuable consideration before the take over, would not be treated as belonging to the nationalised establishment, but as belonging to the third parties, who had claims thereto, for which they would be entitled to compensation under the ordinary law as creditors. Their entitlement to compensation cannot be worked out on breakte up value, net worth value or time value, according to the Schedule, as urged on behalf of the appellants. As lessee, if the property and title in certain stocks, stores, goods, machinery, etc., remained with it, it was not that of the lessor Company. The Federal Government and/or the appellants are therefore liable to pay compensation to the respondent Company for loss, if any claimed, arising to it by the premature termination of its lease and for all its stocks, stores, raw materials, goods, machinery, etc., which belonged to it and which were on the premises and which were taken over by the Federal Government on the date of nationalisation, such compensation being assessable according to the ordinary law, less any liabilities under the terms of the lease or by operation of law or otherwise as were due and payable by the respondent Company to the nationalised establishment on the date of nationalisation, including any which arose later and related to the period of lease or became otherwise payable by it. This being a matter of accounting, we will leave it to the auditors, depending upon what claims were made and what were found legitimately due. 13. As regards the alleged liabilities of the respondent Company with regard to the two loans/overdrafts of Rs. 40,00,000/-and Rs. 30,00,OQO/-which are due and payable to the nationalised establishment, the said matter was not urged in arguments before the High Court nor dealt with by the learned Single Judge and we would not like to give any opinion in the matter, as this matter is basically one of accounts and will have to be sorted out by the auditors. 14. For the foregoing reasons, there is no merit in this appeal, which is dismissed with costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 134 PLJ 1992 SC 134 [Appellate Jurisdiction] Present: dr. nasim hasan shah, shafiur rahman, zaffar hussain mirza and ali hussain qazilbash, JJ QAUM BANGASH and others-Appellants versus QAUM TURI and others-Respondents Civil Appeal No. 3 of 1983, dismissed on 19.8.1991. [On appeal from judgment/order of Peshawar High Court, dated 9.1.1983, in W.P. 589 of 1980] Jurisdiction— —Unanimous recommendations of Council of Elders-Award confirmed by Political Agent-Revision Petition dismissed by Commissioner-Constitutional petition dismissed by High Court-Challenge to~Whether Peshawar High Court had jurisdiction to issue writ in respect of tribal areas—Question of— Kurram Agency comes within "Federally Administered Areas" and there was no enactment extending jurisdiction of Peshawar High Court to that area-­ Dispute related to land situated at Kurram, criminal offences took place in territorial area comprised therein and parties also resided within tribal area- Held:-Peshawar High Court did not have jurisdiction in matter-Appeal dismissed. [Pp.l37,138&139]A,B,C,D&E 1985 P.Cr.LJ. 1784, PLD 1987 Lahore 323 and PLD 1974 SC 109 rel. Mr. Akhundzada Bahrawar Saeed, Advocate, Supreme Court, and Mr. S. Safdar Hussain, AOR for Appellants. Mr. Sardar Akhtar All KJian, Advocate, Supreme Court and Ch. Akhtar All, AOR for Respondents. Date of hearing: 15.1.1991. judgment Zaffar Hussain Mirza, J.-^This appeal arises by leave from the judgment of a Division Bench of the Peshawar High Court, Peshawar, dated 9th January, 1983, dismissing the Constitutional petition filed by the appellants seeking the quashment of the order of Commissioner, Peshawar Division dated 28th September, 1980 and the order of Political Agent, Kurram dated 30th June, 1980. The impugned judgment comprises of two sentences without any reasons or narration of facts as under: "In view of the authority reported in PLD 1981 Peshawar 51 "Syed Shah Vs. Political Agent Bajaur Agency", this writ petition is dismissed. No order as to costs." The facts as disclosed in the petition before this Court may however be stated in brief as under: There was a dispute between the Bangashes of Bagzai, the appellants herein and the Turi Hamza Khel, Mastu Khel etc, the other tribes, the respondents herein, over an unmeasured shamilat area which resulted in a firing incident on 1st August, 1978 in which one Aziz All lost his life and 3 persons sustained injuries. A case was registered against both parties. Emanating from the first incident a chain of disputes took place in which violence was also used inter-se by the members of the two tribes on various dates between 1st August, 1978 to 15th December, 1979. As the disputes/offences arose out of the same cause on 25th December, 1979 the Political Agent, Kurram Agency, with the consent of the parties referred all the cases (both criminal and civil) to Council of Elders consisting of 4 members to enquire and give their recommendations in respect of issues framed by him. After the necessary enquiries the Council of Elders submitted their unanimous recommendations on all the issues referred to them vide their Award dated 4th May, 1980. The Political Agent vide his order dated 3rd June, 1980 confirmed the Award and passed an order on the basis thereof. Being aggrieved by the aforesaid order the appellants filed a revision application which was subsequently disposed of by the Commissioner F.C.R. (FR) Peshawar Division, Peshawar, who dismissed the same by his order dated 28th September, 1980. The appellants then filed Constitutional petition before the Peshawar High Court, Peshawar (Writ Petition No. 589 of 1980) challenging the orders of the Political Agent, Kurram Agency dated 30th June, 1980 and the Commissioner Peshawar Division dated 28th September, 1980, which was dismissed by the impugned judgment. Leave was granted in order to consider the contentions as under:-(i) that the jurisdiction of the High Court, extends to the tribal areas; (ii) that the High Court was in error in not hearing the appellants. (iii) that the Commissioner Peshawar had no jurisdiction to withdraw the revision from the file of Additional Commissioner before whom the revision was filed and to decide the same himself as he had no jurisdiction to hear and decide it vide notification dated 21st December, 1966 issued under Section 2(c) of the Frontier Crimes Regulation.It may be stated that the present appeal was heard alongwith several other appeals, including Civil Appeal No. 144 of 1981 (Malik Taj Muhammad vs. Bibi Jano), as a common Constitutional question regarding the exercise of writ jurisdiction of the High Courts in respect of the tribal areas arose for decision therein. The main arguments were addressed by the learned counsel in the aforesaid Civil Appeal No. 144 of 1981. In this appeal Mr. S. Akhundzada Bahrawar Saeed, learned counsel appearing for the appellants adopted the arguments of Mr. Sami Hayat who appeared for the appellant in Civil Appeal No. 144 of 1981. He further submitted that the Federally Administered Tribal Areas in which Kurram Agency is included, is a part of Pakistan and accordingly the Constitution is applicable to whole of Pakistan , so that the said tribal areas would also be subject to the jurisdiction of the Supreme Court and the High Courts. The Constitutional question considered in the said Civil Appeal No. 144 of 1981 was whether in the facts and circumstances of that case the jurisdiction of the Baluchistan High Court extended to the tribal areas where the disputed land was situated, namely, District Zhob of the Province of Baluchistan, which is incidentally included in the Provincially Administered Tribal Areas. In the said appeal which was decided on 8th August, 1991, Shafiur Rahman, J., who wrote the judgment for the Court, has traced the history of Constitutional provisions with regard to the extension of the jurisdiction of the Superior Courts in respect of the tribal areas from 1955 until 10th April, 1964. In this behalf, reference was made to Section 7 of the Establishment of West Pakistan Act, 1955, whereby the newly constituted High Court was conferred jurisdiction in respect of the entire Province of West Pakistan, including the tribal areas of the former Provinces of Baluchistan, the Punjab and the NWFP and certain States which were merged into the new Province of West Pakistan; the Establishment of West Pakistan (Amendment) Act, 1955 effecting amendment in sub-section (1) of Section 7 of the main Act, with the result that the jurisdiction of the High Court was excluded from the tribal areas, Presidential Order No. XI of 1961 the effect of which was to restore the jurisdiction of the High Court in the special areas and the 1962 Constitution which again took away the jurisdiction of the High Court in respect of the tribal areas. Reference was then made to the Constitution (First Amendment) Act, 1963 whereby clause (5) was added to Article 223 of the 1962 Constitution, which is in pan materia with the main enacting part of clause (7) of Article 247 of the Permanent Constitution of 1973. The effect of this amendment was that neither the Supreme Court nor a High Court could exercise any jurisdiction under the Constitution relating to tribal areas, unless the Central Legislature by law otherwise provides. With reference to Act II of 1964 called the Tribal Areas (Restoration of Jurisdiction) Act, 1964, which was enforced on 10th April, 1964 it was pointed out that the jurisdiction of the Superior Courts was restored in relation to tribal areas of the Quetta Division. It was in this background that this Court held in the said appeal that in 1960 when the jurisdiction of the Baluchistan High Court was invoked there was no Constitutional jurisdiction available to the said High Court in respect of the territories where the land in dispute in that case was situate. From the aforesaid Constitutional instruments to which reference has been made, it would appear that the Peshawar High Court with which we are presently concerned was denuded of jurisdiction under clause (5) of Article 223 of the 1962 Constitution as from 27th January, 1964. Act II of 1964 only restored the jurisdiction of the Supreme Court and the High Court of West Pakistan in regard to the tribal areas of Quetta Division, so that the said Court did not possess jurisdiction under the Constitution in relation to the tribal areas of Province of NWFP and the former States of Amb, Chitral, Dir and Swat. It appears that the next Constitutional instrument, in this behalf, to be noted is President's Order XXVIII of 1970 called the Supreme Court and the High Court (Extension of Jurisdiction to Tribal Areasi Order. 19T-. Article 1 whereof provided that the Supreme Court of Pakistan shaiJ have, in relation to tribal areas of Chitral, Dir, Kalam, Swat and Malikand protected area (all forming part of Provincially Administered Tribal Area), the same jurisdiction to hear and determine appeals from orders or sentences of the Peshawar High Court in criminal cases as it has in relation to the other areas of North West Frontier Province. Article 3 of the Order extended the jurisdiction of the Peshawar High Court in relation to the same tribal areas so a:; to confer appellate jurisdiction and the power to confirm death sentences passed by Court of Sessions as it has in relation to other areas of NWFP under the Criminal Procedure Code. The said P.O. No. 28 of 1970 was repealed and reenacted on 9th February, 1973 as Act No. XXVII of 1973 with the title Supreme Court and High Court (Extension of Jurisdiction to certain Tribal Areas) Act, 1973. Clause (7) of Article 261 of Interim Constitution of 1972 provided as under: "(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under this Constitution in relation to a Tribal Area, unless the Federal Legislature by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day." It would therefore be seen that the Peshawar High Court did jurisdiction over any of the Federally Administered Tribal Areas even alter the promulgation of P.O. No. XXVIII of 1970 or Act No. XVII of 1973. Kurram Agency comes within the "Federally Administered Tribal Areas" according to the definition of the term in Article 260 of Interim Constitution and Article 246 of 1973 Constitution jurisdiction with regard to which continued to be excluded by virtue of clause (7) of Article 261 and Article 247 of the two Constitutions respectively which are identical provisions. No other enactment was brought to our notice extending the jurisdiction of the Peshawar High Court to the area in question, namely, Kurram Agency forming part of the Federally Administered Tribal Area. Therefore, it appears that the Peshawar High Court did not have jurisdiction under the Constitution in relation to the Federally Administered Tribal Areas until 1980 when the Constitutional petition was instituted by the appellants in this case. This appears to be the position as found in Muhammad Afzal vs. Assistant Political Officer (1985 P.Cr.LJ. (Karachi) 1784) and Khalid Pervez vs. Federation of Islamic Republic (PLD 1987 Lahore 323). The next question to be considered is whether notwithstanding the fact that the disputes referred to the Council of Elders related to land and the occurrences resulting in death and injuries to certain persons took place at Kurram Agency, and the basic order accepting the Award of the Council of Elders was passed there, since the other order of the Commissioner, F.C.R. was passed at Peshawar in the settled area within the jurisdiction of the Peshawar High Court, the said High Court would have jurisdiction to entertain a Constitutional petition in respect of the case. This question also stands answered by the judgment in Civil Appeal No. 144 of 1981, already referred to. It was held in that case as under: "In this case, the subject matter of the dispute was immovable property and rights therein. These were located in the Tribal area. The authorities which dealt which the matter were empowered to deal with such matters as pertaining to tribal areas. In the circumstances, the substantial cause of action and the subject-matter of dispute would be located in the tribal area and not in the settled area merely because such an order was passed." In Abdul Rahim and others vs. Home Secretary, Government of West Pakistan and another (PLD 1974 S.C. 109), in somewhat similar circumstances, it was held that the expression "in relation to Tribal Area", which expression also occurs in clause (7) of Article 247 of the present Constitution, is not an expression of art with a defined meaning, but has a wide import and "postulate of a connection of one thing with another, a nexus". In a dispute with regard to land, it was held that the sites of the land and the residence of the two sets of claimants were decisive in the matter whether the matter related to tribal area. Also the fact that final order was passed by the Home Secretary at a place in the settled area, was found not to snap the relationship of the dispute with the tribal area. These principles are fully applicable to the present case in which the dispute related to land situated at Kurram, the criminal offences took place in the territorial area comprised therein and the parties also resided within the tribal area. Consequently on this score also the Peshawar High Court did not acquire jurisdiction in this matter. As regards the argument that Federally Administered Tribal Areas form part of Pakistan, therefore they would be subject to the jurisdiction of the Superior Courts, it is sufficient to state that under clause (7) of Article 247, the Constitution has expressly excluded the jurisdiction of these Courts in relation to the Tribal Area, unless the Parliament by law otherwise provides. As discussed above there is no Act of Parliament providing otherwise in respect of the Federally Administered Tribal Areas of NWFP and the Superior Courts did not exercise jurisdiction in such areas immediately before the commencing day of the Constitution. The contention is therefore devoid of merit. In the view that we have taken as regards the jurisdiction of the High Court, it is not necessary to decide the third contention noted in the Leave Granting Order. In the result this appeal fails and is accordingly dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 139 PLJ 1992 SC 139 [Appellate Jurisdiction] Present: ALI HUSSAIN QAZILBASH, JJ MUHAMMAD SIDDIQUE-Appellant versus Mst. AZIZ BEGUM and 4 others-Respondents Civil Appeals Nos. 132 of 1989 and 539 of 1990, decided on 18.8.1991. [On appeal from judgment dated 20.2..1989, of Lahore High Court, in R.S.A. No. 43 of 1985] (i) Estoppel-- —Principle of promissory estoppel-Whether rightly applied by High Court- Question of—Though disputed land was transferred in name of respondent but perusal of his application and affidavit shows that there existed certain arrangement between parties as to ownership of suit land, on basis whereof, appellant must have believed in good faith that he was entitled to suit land- Appellant occupied suit land and raised construction at his own cost- Respondent never objected to raising of construction verbally, through any written notice or through court of law—Held: Principle of equitable estoppel has rightly been applied by learned Single Judge and non-suited respondents for one who seeks equity must do equity-Impugned order upheld. [Pp.l45&146]C&D (ii) Mesne Profits and Improvements Act, 1855 (XI of 1855)-- —S. 2 read with Transfer of Property Act, 1882, Section 51—Transferee bonafide believing to be rightful owner and making improvements in property- -Compensation for-Claim of-Option to sell interest in property to occupant or to purchase interest of person in occupation-Under second part of Sections 2 and 51 of both Acts, option is given to owner but he is to purchase interest of person under threat of eviction-Owner is sole arbiter whether to sell his interest in property at hands of occupant or to purchase interest of latter-­ Held: In this case, trial as well as second appellate court have deprived owner of suit land to exercise such an option, by application of principle of promissory estoppel. [P.145JA&B KJi. Muhammad Habibullah, Senior Advocate, Supreme Court, and Mr. Muhammad Aslam Chaudhry, AOR for appellant (in CA. 132 of 1989) and for Respondent (in C.A. 539 of 1990). Mr. Bashir Ahmad Ansari, Senior Advocate, Supreme Court, and Ch. Akhtar Ali, AOR for Respondents (in C.A. 132 of 1989) and for Appellants (in CA. 539 of 1990). Date of hearing: 29.1.1991. judgment Ali Hussain Qazilbash, J.--Cross Civil Appeals bearing No. 132 of 1989 filed by Muhammad Siddique defendant/appellant and No. 539 of 1990 filed by Mst. Aziz Begum etc., successor-in-interest of Maj. Abdul Ghafoor plaintiffs/appellants arising from a judgment and decree of the Lahore High Court dated 20.2.1989 are being disposed of by this judgment. The facts in brief are that plot No. 17-A situate in Peoples Colony, Faisalabad measuring about 4 kanals was allotted to Maj. Abdul Ghafoor, predecessor-in-interest of the appellants in Civil Appeal No. 539/90 on 6.9.1953 (hereinafter called the respondents) and its possession was delivered to him on 14.1.1957. Late Major Abdul Ghafoor got a plan prepared for the construction of a bungalow by an approved architect on 6.11.1956 and the same was sanctioned on 27.2.1959. Thereafter the Urban Rehabilitation Department, Government of West Pakistan, Lahore executed the sale deed in favour of the said Major on 21.2.1966. Major Abdul Ghafoor deceased remained in government service and posted outside Faisalabad till the year 1962. He asked Muhammad Siddique, appellant in Civil Appeal No. 132/89 (hereinafter called the appellant) who was his close friend to raise construction on the plot according to the building plan for the deceased. It is alleged that the respondent used to make payments to the appellant for the purpose of construction of the house. The appellant after raising super­ structure started living in the house. Apprehending mischief at his hands, the respondent asked for the handing over of the possession of the house and on its refusal by the appellant a civil suit was filed by the respondent in 1967. It was followed by another suit with the permission of the Court on 22.1.1979 for a Malik Fazal Hussain, Advocate, Supreme Court, instructed by Mr.Imtiaz M. Klian, AOR for Respondents. Date of hearing: 26.5.1991. judgment Muhammad Afzal Lone, J.~This appeal through leave to appeal, filed by a decree holder in a pre-emption suit, is directed against the High Court's judgment dated 18.4.1990, passed in revision, whereby his execution petition was dismissed as barred by time. 2. The facts are not. in controversy. The trial Court decreed the suit for possession of the land in dispute, in favour of the appellant on 27.4.1981. The respondents' first appeal against the judgment and decree of the trial Court was dismissed on 18.10.1981. Their revision before the High Court met the same fate. Consequently, the decree of the First Appellate Court was affirmed. The judgment and decree of the High Court are dated 18.11.1986. On 5.1.1987, the appellant moved an execution petition under Order, 21, Rule 11 CPC, which embodied the particulars of the decree of the trial Court, the First Appellate Court as well as of the High Court. The judgment-debtor raised the plea that the execution petition was barred by time. The Executing Court turned down the objection and found that the execution petition was well within time. Against the orders of the Executing Court, the respondents preferred an appeal, but the learned District Judge did not find any justification to interfere with the execution of the decree. Consequently, the appeal failed. The respondents then invoked the revisional jurisdiction of the High Court, their revision petition was accepted and the orders of the two Courts were set aside. The reasons which weighed with the High Court are: "....As no stay order was issued during the pendency of the revision petition but before the first appellate Court stay order was issued, therefore, the respondent-plaintiff was to file an application within a period of three years as provided under Article 181 of the Limitation Act from the date when the appeal of the petitioner-defendant was dismissed by the learned District Judge, Mansehra, on 19-10-1981. The record shows that the execution application was filed in the Court of the learned Civil Judge on 5-1-1987 which is beyond the period of limitation of 3 years and is time barred". 3. Leave to appeal was granted to examine "whether the period of limitation provided by Article 181 of the Limitation Act in the circumstances of the present case would start from 18-10-1981, when the appeal of the respondents confirming the decree of the trial Court was dismissed, or when the revision filed by the predecessor of the respondents against the same order dated 18-10-1981 before the High Court was dismissed with costs vide judgment dated 18-11-1986 and a decree sheet was also drawn accordingly". In other words, whether the application for execution moved on 7-1-1987 within two months of the decision of the revision was entertainable. 4. Article 181 is a residuary Article and is attracted only when no other Article of the Limitation Act is applicable. Article 182 having been repealed by the Law Reforms Ordinance, 1972, now there is no other Article governing the period of limitation for execution of a decree of the Civil Court, except Article 181. For the facility of reference, Article 181 is reproduced below: 1. 2. 3. Description Period of Time from which of the suit. Limitation period begins to run. 181-Application for Three When the right which no period of years. to apply limitation is provided accrues, elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908 Evidently, according to this Article, a petition for execution of the decree has to be made within three years of the date of the accrual of right to apply but when such right arises, this Article is silent. As is evident from the language of the Article it refers to section 48 of the Code of Civil Procedure; thus both Article 181 and section 48 shall have to be read together, although as laid down by this Court in Mahboob Khan Vs. Hassan KJian (PLD 1990, SC. 778) "the two provisions are independent and parallel provisions with different scopes and objects". Secion 48, however, prescribes the outer limit of time, after the expiry whereof fresh application for execution of the decree cannot be entertained. Under this section the date of the decree sought to be executed, is starting point of limitation. But .the question requiring determination in this case is, whether the period of limitation would start from the date of decree of the Appellate Court, or the one passed by the High Court in revision. 5. It may be recalled that, according to the High Court, the time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the reason which influenced the decision of the learned Single Judge in synchronizing the accrual of right to apply within the meaning of Article 181, with the date of the decree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stayed the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby, that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain its identity and was capable of execution. Quite advantageously, reference here, may be made to Order 41, rule 5 CPC, which provides that mere filing of an appeal does not operate as a stay of the decree appealed from. The Appellate Court is, however, empowered to order the stay of the execution of such decree. Seemingly, the object of this rule is that the decree holder is not deprived of the relief to which he has been found entitled by the Court, and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or sjich proceedings are pending but no stay order has been issued, such decree remains capable of execution, but when the Court of last instance passed the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified. 6. This rule finds support from the judgment of the Full Bench of the High Court of Bengal, rendered way-back in the year 1871 in Ram Chum Bysak and another Vs. Ltickhee Kant Bamick and others (16 SWR 1). In that case the decree of the Court of first instance was affirmed in appeal by the High Court. The period of limitation prescribed for execution of the decree of the Court of first instance was different from the one fixed for that of the Appellate Court. In case of execution of the decree of the Court of first instance, the execution petition was barred by time. The issue before the Full Bench was that out of the two decrees which was capable of execution. The Court observed: "....whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal was preferred, it is in either case the final decree in the cause, and as such, the only decree which is capable of being enforced by execution after it is once pronounced". This judgment fell for consideration before the Judicial Committee in Kristo Kinkur Roy and another Vs. Rajah Biirrodacaunt Roy and another (14 Morre's LA. 465) and the observations appearing therein support the said proposition. On an exhaustive review of the case law, including these judgments, Kaukaus J. in his lucid judgment, in FA. KJwn Vs. Government of Pakistan (P.L.D. 1964 SC. 520) held: "....once an appeal is filed the matter becomes sub-judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order ...................................................................... " In Lala Brij Narain Vs. Kunwar Tejbal Bikram Bahadur (37 IA 70) the Privy Council has taken the view that the trial Court ceases to have the jurisdiction to amend decree, when it has been affirmed by the Appellate Court. This would also strengthen the rule that after affirmation of. the decree of the trial Court, the decree in existence is only that of the Appellate Court. This view has generally been followed in the sub-continent. Reference in this connection may also be made to: (i) Saeed Ahmad Vs. Messrs Indo Enamel Works Limited, Lahore (P.L.D. ' 1954, Lahore 490); and (h) Harilal Dalsukhram Saheba Vs. Mulchand Asharam (A.I.R. 1930, Bombay 225). 6. During the course of hearing of this appeal,'our attention has been drawn to Joydeb Agarwala Vs. Baitulmal Karkhana Ltd., (PLD 1965 SC. 37). That appeal before this Court, arose out of a suit for specific performance of a contract for sale of land, which was decreed by the trial Court on 3-11-1951, first appeal against this decree was dismissed by the High Court on 6-2-1958. Subsequently, a part of the land was acquired by the Government and compensation assessed thereof. On 1st May, 1959, the decree holder applied to the trial Court for amendment of the decree, for the purposes of "getting a kabala in respect of the compensation money." The amendment was allowed by the trial Court and a direction given to the defendant to execute the kabala regarding award of money as compensation. The amendment was challenged by the defendant in appeal before the High Court, which was rejected as incompetent. The matter then came up before this Court, and the contention raised was, that the decree having been affirmed by the High Court, no jurisdiction is vested in the trial Court to amend the same. Cornelius, J (as he then was) expressed the view that: "No modification was made in the decree by the High Court, and the argument of merger is rendered of rfo weight by the consideration that in fact the High Court rejected the appeal". It appears to us, we may say and say with respect, that the rule in the case of Lala Brij Narain and F.A.Khan. was not intended to be modified. It may also be remarked that there are some exceptions to the rule of merger, for instance, there will be no merger on the rejection of the appeal under Order 41, rule 10 or dismissal in default under Order 41, rule 17 (see Balakanat Vs. Mst. Munni Dail- AIR 1914 PC. 65) or when appeal is withdrawn or abates. These instances are pointer to the situation when the appeal is not disposed of on merits. Further the merger is for a limited purpose of computation of period of limitation and execution of the decree. An other issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the revisional court modifying or affirming the decree of the lower Court furnishes a starting point of limitation under Article 7. The distinction between the remedy by way of appeal and revision is not unknown. The appeal is the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision is discretionary and the revision;4 Court has to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case may be, the decree of the lower Court is put in jeopardy. Indeed, the correction of error in the proceedings of the Court below, is common characteristic of both the remedies. The concept of acceptance of appeal is that the lower Court has failed to pass the decree which should have been passed. The same object is achieved when a revision from the decree of the lower Court is accepted. Thus, in a way revisional jurisdiction partakes of appellate jurisdiction. A case on this point is the one decided by a Full Bench of Madras High Court in Chappan Vs. Moidin Kutti (ILR 1899, Madras 68) where Subramania J expressed the view that appellate jurisdiction includes revisional powers. Again in Nagendra Nalh Dcy and others Vs. Suresh Chandra Dcy and others (59 LA. 283), the Judicial Committee regarded an application for revision as an appeal in ordinary acceptance of the term. That was a matter arising out of an execution petition, which was opposed by the judgment-debtor, as barred by Article 182 of the Limitation Act. In this regard, the precise observations of their Lordships of the Judicial Committee are: "....There is no definition of appeal in the Code of Civil Procedure, 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 because it is irregular or incompetent". Similar was the opinion of a Division Bench of the erstwhile Dacca High Court in Mymensingh Co-operative Town Bank Ltd., Vs. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on the authority of some precedents from Calcutta High Court, in which it was laid down that under Article 182, the limit alien ran from the date of the order in revision, maintained that for the purposes of execution of a decrSe, the appeal included a revision. 8. Earlier the controversy, whether in an execution matler, for Ihe purposes of computation of period of limitation Article 182 (2) applied to revision petition as well or only to appeal was debated before a Full Bench of Madras High Court in P.P.P. Chidambara Nadar Vs. C.PA. Rama Nadar and others (AIR 1937, Madras 385) and the Court after referring to the Judicial Committee's opinion in Nagendra Nath Dey's case, did not find any essential difference between the remedy by way of appeal and by way of revision. The difference between the appeal and revision qua the rule of merger was also examined by the Supreme Court of India in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat (AIR 1970, SC. 1) and it was laid down: "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 Court 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. These judicial announcements leave no room for doubt that for the purpose of cxecuiion, the rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as executability of a final decree is concerned, docs it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the first time by the revisional Court, but regarded as incapable of execution of its decree is that of the affirmation of the decree of the the lower Court, and more so when Article 181, unlike Article 182, which has disappeared from the Statute Book, does not refer either to decree of the Appellate Court or revisional Court but anchors the commencement of period of limitation on the accrual of right to apply and such right legitimately arises when revision against the decision of the lower Court is, one way or other, disposed if. 10. It will be material to bear in mind, that a decree in a pre-emption suit is of a peculiar nature. Under Order 21, rule 14 CPC., the title of the property accrues to the decree holder on payment in the Court of purchase money together with costs, if any. It has not been controverted before us that the requirements of rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal. For all these reasons, the appeal is accepted, but as there is no reported judgment of this Court on the issue involved in this appeal, the parties are left to bear their own costs. (MBC) Appeal accepted. (Approved fro reporting)

PLJ 1992 SC 146 PLJ 1992 SC 146 [Appellate Jurisdiction] Present: sHafiur rai iman, rustam S. sidiiwa and MuilAMMAD AFZAL LONE, JJ FAR1D BUKHSH-Appellant versus SAEED AHMAD and 4 others-Respondents Criminal Appeal No. 116 of 1989, partly accepted on 18.12.1991. [On appeal from judgment of Lahore High Court, Multan Bench, dated 26.9.1987, passed in Criminal Appeal No. 757 of 1973] Criminal Procedure Code, 1898 (V of 1898)-- —-S. 544-A read with Pakistan Penal Code, 1860, Sections 326/149-Chopping off nose—Offence of—Conviction for—Enhancement of sentence/fme—Prayer for-No appeal has been filed against Ghulam Haider, main assailant who cut nose-In awarding fine and in compensating victim, courts have not kept in view requirement and amplitude of Section 544-A of Cr P.C—Cutting of nose is associated with disgrace and dishonour—Appeal accepted and fine raised to Rs. 10000/- each in case of respondents 1 and 2. [Pp.l48&149]A,B&C Mr. Asif Saeed KJian Khosa, Advocate, Supreme Court, instructed by Sh. Salahuddin, AOR for appellant Mr. Taj Muhammad, Advocate, Supreme Court, instructed by Mr. MA.. Qadii, AOR for respondents 1&2. Hafiz Ghulam Bari, Advocate, Supreme Court for State. Date of hearing: 18.12.1991. judgment Shafiur Rahman, J.--Leave to appeal was granted to the complainant to examine why the sentence, particularly of fine be not enhanced keeping in view the fact that the victim was School Teacher and his nose was completely chopped off. 2. The facts of the case and the motive for the occurrence are both narrated in the judgment of the High Court and are reproduced hereunder:- "Farid Bakhsh (PW-5) was a School Teacher. He was employed in a school in Baluchistan. He belonged to Mauza Hajipur within the limits of Police Station Dajal and had come on leave to his village. On 28.1.1972, at about 8.30 p.m., he was on his way to his house from the fields. When he passed near the house of Ghulam Rasool appellant, all the appellants emerged out of the house and attacked and overpowered him. Saeed Ahmad appellant caught him by his neck and Ghulam Qadir appellant caught him by his head. Ghulam Haider appellant took a razor out and cut off his nose. The remaining appellants gave him stick blows. He raised an alarm which attracted Rahim Bakhsh and Ramzan PWs, who witnessed the occurrence and also rescued him from the appellants. Farid Bakhsh PW had an invalid brother. Ghulam Haider appellant was interested in marrying his daughter Mst. Ghulam Zainab. Farid Bakhsh PW would not, however, allow this marriage to take place and it was to remove him out of their way that the appellants joined together in causing injuries to Farid Bakhsh PW." 3. The trial court found the respondents guilty of the offence under Section 326/149 PPC and sentenced them to five years R.I. and a fine of Rs. 1,000/- each and in default of payment of fine one year R.I. more. They were also convicted under Section 148 PPC, and sentenced to one year R.I. The sentences were to run concurrently. 4. The occurrence had taken place in 1972. The trial court had decided the case in 1973. The first appeal against conviction and sentence came to be heard in 1987. The learned Judge observed as hereunden- "So far as the remaining three appellants are concerned, I am in complete agreement with the learned trial Magistrate that the prosecution had proved its case beyond a reasonable doubt." and concluded as hereunder:- "I would maintain the conviction of Ghulam Haider, Saeed Ahmad and Ghulam Qadir appellants. It is not clear from evidence how Saeed Ahmad and Ghulam Qadir are related to Ghulam Haider appellant and why they joined him in the commission of this offence. Be that as it may, the role played by Saeed Ahmad and Ghulam Qadir appellants in the commission of the offence was a lesser role. They remained in jail for about a month during the trial. After conviction, they spent two years, five months and 17 days in jail before they were released on bail. I would, therefore, reduce their sentence of imprisonment to one already undergone; their sentence of fine and imprisonment in default of the payment thereof is maintained. There is no extenuating circumstance so far as Ghulam Haider appellant is concerned. His appeal is dismissed. 5. Mr. Asif Saeed Khan Khosa, Advocate, the learned counsel for the appellant has pressed this appeal by particular reference to Ground (d) of the Memorandum of Appeal, as hereunden- "The sentence already undergone by respondents No. 1 & 2 (about 2-1/2 years) was hardly commensurate with the gravity of the offence committed by them and the damage done to the petitioner. As a result of the offence committed by the respondents the nose of the petitioner was completely chopped off. The petitioner remained under medical treatment for over six months during which period he had to undergo seven serious surgical operations at Multan and Karachi besides suffering enormous material setbacks. At the time of the occurrence the petitioner was serving as a school teacher. The petitioner is now posted as Headmaster of Government High School, Hajipur, Tehsil Jampur, DistricjL. Rajanpur. The petitioner as well as all the convicts belong to Hajipur. The position of a Headmaster in a locality is that of respect and honour. But, unfortunately the chopped nose of the petitioner is not only a source of constant embarrassment to the petitioner but also an evervisible testimony to the criminality and cruelty of the respondents perpetrated upon the petitioner." 6. The learned counsel representing the respondents has contended that they are poor persons and financially not in a position to discharge any greater burden than that already imposed by the Courts. It has further been contended that the prosecution case was not believed in its entirety for two persons who were allegedly armed with sticks and caused injury by blunt weapons and have been acquitted. 7. We find that no appeal has been filed against Ghulam Haider, the main assailant who cut the nose. This appeal is directed against the two acquitted accused also but from the leave granting order it appears that enhancement in fine of only the convicted accused was to be examined and not the acquittal of the two respondents. 8. We also find that in awarding the fine and in compensating the victim, the Courts have not kept in view the requirement and the amplitude of Section 544-A of the Criminal Procedure Code. The motive for the crime afforded no justification either in religion or in present set up for resorting to such an act of which the three accused have been found guilty. The cutting of the nose is associated with disgrace and dishonour which in the case of the victim who is a School Teacher and is said to be a Headmaster now abiding and public (?). 9. In the circumstances, we accept the appeal set aside the amount of fine imposed by the courts and enhance it to Rs. 10,000/- each in case of Saeed Ahmad and Ghulam Qadir respondents No. 1 and 2, keeping the imprisonment in default to be same i.e., one year R.I. The entire amount of fine on recovery shall be paid as compensation to the victim. The two respondents are allowed a period of two months within which they are to pay the fine, failing which they shall be required to undergo the sentence awarded. The amount of fine being compensatory in nature shall be recoverable as arrears of land revenue under Section 544-A of the Criminal Procedure Code, if its recovery otherwise is not secured. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1992 SC 149 PLJ 1992 SC 149 [Appellate Jurisdiction] Present: dr. nasim hasan shah, abdul qadeer chaudhry and rustam S. SlDHWA, JJ MUHAMMAD YOUNAS KHAN-Appellant versus THE STATE-Respondent Criminal Appeal No. 68 of 1988, accepted on 13.1.1992. [On appeal from judgment of Lahore High Court, dated 12.10.1987, passed in M.R.No. 117 of 1985] (i) Criminal Trial-- —Murder-Offence of-Conviction for-Challenge to-According to eye­ witnesses, occurrence took place some time after sun-set—Half of stomach of deceased was full of churned food meaning thereby that he had had meals about 2/2\ hours before his death—Medical testimony points out occurrence having taken place 2/2^ hours after sun-set, which would be around 7-30/8.30 PM—Held: Medical evidence conflicts with ocular account as regards time of occurrence. [Pp.l52&153]B (ii) Criminal Trial- —Murder—Offence of—Conviction for—Challenge to—PW 7 admitted in crossexamination that he knew difference between pistol and revolver and that revolver did not eject an empty-In FIR both accused are stated to be armed with pistols but what was recovered from them, were revolvers-Probability that witnesses had identified appellant having fired at deceased because of light flashed by torch, cannot safely be accepted-Held: It is unsafe to rely on ocular testimony which appears to be highly contradictory and discrepant in material particulars and cannot be safely accepted to convict a person on capital charge-Held further. Revolver recovered from appellant and crime empty recovered from spot having been sent together to Laboratory, its incriminatory value is destroyed-Appellant acquitted. [Pp.l53&154]C,D,E&F (iii) Motive- -—Murder-Offence of-Conviction for-Challenge to-Even if motive as alleged, is believed, it appears that only PW-10 annoyed Jamshed Khan, minor son of appellant, on which wife of appellant had altercation with ladies in house of complainant-No men folk were involved in quarrel that took place between ladies-Motive at best is innocuous and does not appear to be one which would have prompted accused to launch murderous attack-Held: It appears that true motive has not been disclosed but only prosecution can suffer for this silence. [P.152]A Mr. Ijaz Hussein Batalvi, Senior Advocate, Supreme Court, instructed by Mian Ataur Rahman, AOR for Appellant. Mr. Muhammad Sharif Butt, Advocate, Supreme Court and Rao Muhammad Yousaf Klian, AOR for State. Mr. S.M. Tayyab, Advocate, Supreme Court for Complainant. Dates of hearing: 12 and 13.1.1992. judgment Rustam S. Sidhwa, J.—This is an appeal by Muhammad Younus Khan appellant against the judgment of a learned Division Bench of the Lahore High Court dated 12.10.1987 dismissing his appeal. 2. The brief facts of the case are that on 4.2.1984 there was a wrestling bout in which Jamshed Khan, minor son of Younus Khan accused, was knocked down by Anwar Khan, minor son of one Nazir. Talib Khan PW10, brother of the complainant and the deceased, who was present, ridiculed Jamshed Khan saying "Ja Pulra Terc Peo Ne Tanu Geo Gat Klilialaya Ae, Pher Dobara Tiar Ho". Jamshed Khan went home abusing Talib Khan WP10 and apprised his mother of the situation, upon which she went to the house of the complainant party and after having an altercation with the ladies, left the house abusing them. On the next day, i.e., 5.2.1984 at 6.45 p.m. Sarwar Khan complainant PW7 and his father Ghulam Rasul were present in their house, when Safdar Khan accused gave a call from outside their house that they should come out, whereupon they came out and saw Safdar Khan and Younus Khan accused, both armed with pistols, standing in the street. Both of them tried to catch hold of Sarwar Khan complainant PW7, but he started running and raising alarm. Safdar Khan accused fired at him, but his shot missed and the bullet struck the wall. Both the accused chased him. In the meantime Mushtaq Khan deceased, younger brother of the complainant, came out of the haveli on hearing his alarm. Safdar accused gave him a blow with the butt of the pistol on his right cheek and then took him into his hold, while Younus Khan accused fired at him, after flashing the light of a torch on him, hitting him on temporal region of the head, as a result of which he died at the spot. Besides Sarwar Khan complainant PW7, the occurrence was also seen by Ishaq Khan PW8 and Ghulam Rasul and Sakhi Khan (PWs not produced). After the occurrence, the accused persons ran away from the spot raising lalkara. 3. Leaving the dead body in the custody of Ghulam Rasool and Ishaq Khan PWS, Sarwar Khan complainant PW7 went to Police Station Narowal and reported the occurrence to Sardar Khan, Sub-Inspector, at 3.30 a.m. on 6.2.1984. 4. After recording the FIR Ex PC, Sardar Khan, SI PW12 reached the spot. He secured blood stained earth from the spot vide memo Ex PD. He took crime empty P4 into possession vide memo Ex PE. He prepared the injury statement Ex PH/1 and inquest report Ex PH of the deadbody and despatched it to the mortuary for post-mortem examination. 5. On 6.2.1984 at 12.30 p.m. Dr. Nazir Ahmad, M.O.. PW1 conducted the post-mortem examination on the dead body of Mushtaq Khan deceased and found a firearm wound 6/10 x 6/10 cm through the left ear on its middle auricle; with blackened edges, and a firearm wound of same size on the left side of head behind the left car. This latter injury was hold to be the result of the first injury going inwards through the skull bone into the brain. He also found an abrasion 2 x 1 cm on right lower eye-lid and an abrasion 5 x 3-1 2 cm on the right renal area on the racK. A bullet was recovered Irom the right side ol the skull cavity. There was churned food about halt lull present in the stomach. The uinary bladder was empty. The two firearm injuries uere held to be the result of one firearm shot. 6. On 10.2.1984 Younus Khan aeeuscd was arrested, while on 14.2.1984 Safdar Khan accused was arrested. 7. On 24.2.1984 Younus Khan accused led to the recovery of a .32 revolver P5 with two live cartridges P6/1-2 in its chamber, which were taken into possession by the police officer vide memo Ex PF. The said recovery was witnessed by Imdad Khan PW9, Sari'ra/ Khan PW12 and Mahngay Khan given up PW. 8. On 27.2.1984 Safdar Khan accused led to the recovery of revolver P7, which was taken into possession vide memo Ex PG. 9. The sealed parcels containing the crime empty P4 and revolver P5 were sent to the Forensic Science Laboratory on 28/29.2.1984, but were returned due to technical Haws in the docket. Ultimately the said two parcels were received in the Forensic Science Laboratory on 7.3.1984. 10. At the trial the prosecution produced Sarwar Khan PW7, Ishaq Khan PW8 and Talib Khan PW10 to prove the motive, Sarwar Khan PW7 and Ishaq Khan PW8 in proof of the ocular account, Dr. Nazir Ahmad in corroboration of the medical testimony and Imdad Khan PW9 and Sarfraz Khan SI, PW12 in support of the recoveries. 11. Both Muhammad Younus Khan and Safdar Khan accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. Younus Khan accused claimed that he had been falsely implicated due to party faction and suspicion, that the deceased had other enemies and that he had been killed sometime at midnight by unknown assailants. 12. The learned trial Judge convicted and sentenced both the accused under section 302/34 PPC and sentenced them to death. 13. In appeal, the learned Judges of the High Court acquitted Safdar Khan accused, but maintained the conviction and sentence of Younus Khan accused and dismissed his appeal. 14. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the record. The evidence as regards the motive is furnished by Sarwar Khan PW7, Ishaq Khan PW8 and Talib Khan PW10. Sarwar Khan PW7 was not present to witness the occurrence, but had heard of the same from his younger brother Talib Khan PW10. Ishaq Khan PW8 in his examination in chief had affirmed the motive, but in cross-examination broke down and admitted that he was neither a witness to the fight or what had transpired between the womenfolk, as he himself was not present there. The only witness therefore left to prove the motive is Talib Khan PW10. Even if the motive is to be believed, as stated in para 2 above, it appears that only Talib Khan PW10 annoyed Jamshcd Khan minor son of Younus Khan accused, which led to the wife of the said accused going to the house of the complainant party and having an altercation with the ladies there and leaving the house after abusing them. No menfolk appear to have been involved in the quarrel that took place between the ladies. The motive, therefore, at best is innocuous and does not appear to be one which would have prompted the two accused to launch a murderous attack first on Sarwar Khan PW7 and then failing to kill him, to turn their attention to Mushtaq Khan deceased. It appears that the true motive has not been disclosed. But then only the prosecution can suffer for this silence. 15. The ocular account in this case is furnished by Sarwar Khan PW7 and Ishaq Khan PW8. According to their version the occurrence took place on 5.2.1984 some time after Sun-set. Sarwar Khan gives the time as 6.45 p.m. whereas Ishaq Khan PW8 gives the time after Maghrib prayers. Half of the stomach of the deceased at the lime of post mortem examination was full of churned food. This would mean that the deceased had his last meals about 2/2/1-2 hours before his death. On the normal assumption that the deceased had taken his last meals just after sun-set which was at about 5.30 p.m., the food in his stomach should have remained undigested. The medical testimony rather points to the occurrence having taken place about 2 2-1/2 hours after sun-set, which would be around 7.30 - 8.30 p.m. The medical evidence therefore conflicts with the ocular account as regards the time of occurrence. Sarwar Khan PW7 and Younus Khan appellant both happen to be members of the police force and are expected to know the difference between a pistol and a revolver. Sarwar Khan PW7 admitted in crossexamination that he knew this difference and that a revolver did not eject an empty when it was fired.However, in his FIR Ex PC he referred to both the accused as being armed with pistols, whereas what was recovered from both of them were revolvers. Both the eye-witnesses claim that Younus Khan appellant had a torch with him and that before he fired at Mushtaq Khan deceased, he flashed the same at the deceased before firing and felling him. It is not stated by any of the witnesses that this torch was lit up and flashed earlier at any stage. There is also no evidence that there was any light or lamp burning near the place of occurrence or that there was strong moonlight. The probability that the said witnesses were able to identify Younus Khan appellant as having fired at the deceased because of the light flashed by the torch, cannot be safely accepted as at that stage the accused would not be visible because the light would be flashing from his direction. According to Sarwar Khan PW7, he was running, chased by the two accused who were behind him at a distance of about three and a half karams, when Younus Khan appellant fired a shot which hit Mushtaq Khan deceased. The possibility that he could not make out which of the two accused fired and hit Mushtaq Khan deceased cannot therefore be ruled out. So far as Ishaq Khan PW8 is concerned, according to his testimony just after Maghrib prayers he was present in his house taking his meals, when he heard the report of a fire shot. In crossexamination he admitted that the moment he came out of the door of his house, he heard the second shot and that he only heard two firearm reports. In this view of the matter, he could not have seen the occurrence. The learned Judges of the High Court clearly found that Safdar Khan accused had been falsely implicated by both the witnesses and that apart from the fact that he had no motive, the medical evidence also did not support the ocular testimony. In these circumstances, it is unsafe to rely on the ocular testimony, which appears to be highly contradictory and discrepant in material particulars and cannot be safely accepted to convict a person on a capital charge. We, therefore, cannot help but reject the ocular account. 16. So far as the recovery of revolver P5 is concerned at the instance of the appellant,»which matched with the crime empty P4 recovered from the spot, both the crime empty and the revolver were sent after both the recoveries were made to the office of the Forensic Science Laboratory, which destroys its incriminatory value. 17. The upshot of the above discussion is that neither motive, the ocular account, the medical evidence nor the recoveries, can be safely relied upon for supporting the conviction of the appellant. He, therefore, deserves to be acquitted. 18. In view of the above, this appeal is accepted and the conviction and sentence of Muhammad Younus Khan appellant is set aside. He shall be released forthwith, if not required in any other case. Fine and compensation, if any recovered from him, shall be refunded to him. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1992 SC 154 PLJ 1992 SC 154 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and wali muhammad khan, JJ. S.M. ZAFAR BABAR-Appellant versus PROVINCE OF PUNJAB and others-Respondents Civil Appeals Nos. 576 and 577 of 1988, accepted on 8.12.1991 (Approved for reporting on 19.1.1992). [On appeal from judgment and order dated 21.5.1981 of Service Tribunal, Lahore, in cases 31/503 and 382/505 of 1978] Regular Appointment-- —Adhoc Additional District and Sessions Judges—Appointment of— Notification of regular appointment with effect from 1.10.1978-Prayer for regular appointment with effect from date of their induction in service on 10.12.1974—Contention that having been appointed on recommendation of High Court, service of appellants from 1974 to 1978 was regular and Service Tribunal erred in law by not granting relief to them-Held: Service Tribunal has erred in law in not exercising jurisdiction vested in it—Held further: Service Tribunal had jurisdiction to dispose of appeals on merits instead of making recommendation to Government-Appeals accepted and cases remanded. • [P.156]A,B.&C PLD 1980 SC 22 and 1991 SCMR 2216 rel. Mr. Abid Hassan Minto, Senior Advocate, Supreme Court, and Mr. MA. Siddiqui, AOR for Appellant (in C.A. 576 of 1988). Mr. M. Nawaz Abbasi, A.A.G and Rao Muhammad Yousaf, AOR for Respondent No. 1 (in C.A. 576 of 1988). Sh. Masud Akhtar, AOR (absent) for Respondents Nos. 8,16 and 18 (in CA. 576 of 1988). Mr. M. Nawaz Abbasi, AA.G. with Mr. MA. Siddiqui, AOR for Appellant (in C A. 577 of 1988). Rao Muhammad Yousaf, AOR for Respondent No.l (in CA. 577 of 1988). Sh. Masud Akhtar, AOR (absent) for Respondents Nos 9,17,19 and 20 (in CA. 577 of 1988). memo for other Respondents. Date of hearing: 8.12.1991. judgment Abdul Qadeer Chaudhry, J.--These appeals by leave of the Court are directed against the judgment dated 21.5.1981 of the Punjab Service Tribunal. 2. Both the appellants are aggrieved against the same judgment of the Tribunal and have filed separate appeals. This judgment would dispose of both the appeals. 3. The facts, in brief, are that the Government of Punjab in relaxation of Rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 on 12.10.1974 appointed the appellants alongwith six others as Additional District and Sessions Judges on ad hoc basis for a period of six months. Their ad hoc appointments were revived by notifications dated 3.5.1975, 3.11.1975, 19.4.1976,1.10.1976 and 15.4.1977. On 10.9.1977 the Governor of Punjab approved the appointment of 13 ad hoc Additional District & Sessions Judges including the two appellants in relaxation of service rules. It was done on account of individual hardship case. It was also notified that the appointment on regular basis would take effect from 1.10.1978. The appellants being aggrieved against the decision of Government whereby they were not regularly appointed with effect from the date of their induction in service on 12.10.1974 approached the Service Tribunal for redressing their grievance. The Service Tribunal dismissed their appeals. In para 13 of the judgment, it was stated as follows:- "We cannot help observing that the treatment meted out to the appellants by the Government has caused great hardship to them as they have been deprived of four years of service but we cannot help them by giving them that they cannot get under the law". In para 14 of the judgment, it has been stated as follows:- "Before parting with this case and in view of our earlier observation that case of the appellants was a case of hardship, we therefore, recommend to Government/Governor to reconsider their prayer vis-a-vis the relief claimed by them before us". 4. Learned counsel for the appellants submitted that the appellants were appointed on the recommendation of the High Court on the regular basis. The appellants' service from October 1974 to 1978 being regular, the Service Tribunal has erred in law by not granting the relief to the appellants inspite of the observations made in Paras 13 and 14 of the judgment favourable to the appellants. Keeping in view all the facts and circumstances of the case, these appeals are to be allowed on the ground that the Service Tribunal has erred in law. It has not exercised the jurisdiction vested in it. It had the jurisdiction to dispose of the appeals on merits instead of making recommendation to the Government. This Court in M. Yamin Qureshi v. Islamic Republic of Pakistan (P.L.D. 1980 S.C. 22) has observed that "It goes without saying that it lies within the jurisdiction of the Tribunal and, indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant". This Court again reiterated the same legal principle in Shafiuddin, Deputy Director vs. Surat Khan Marri, D.R.I.O. (1991 S.C.M.R. 2216) as hereunder:- "Prima facie, the argument of the learned counsel appears to be attractive and to some extent also has the support of judgment of this Court in M. Yamin Qureshi V. Islamic Republic of Pakistan, PLD 1980 SC 22. It was observed therein that it is within the jurisdiction of the Tribunal and indeed "its obligation" to decide all questions of "law and fact". It was further held that as a legal proposition Tribunal has "wide powers under Section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against". A hope/expectation was also expressed in the said judgment that the Service Tribunal presided over generally by a serving or a retired Judge of the High Court "would be able to do full justice to the appellant". 5. We, therefore, without adverting to the merits of the case, consider it proper o remand the cases to the Tribunal for adjudication on merits in accordance with law. 6. The appeals are allowed and the cases are remanded to the Service Tribunal for decision. There will be no order as to costs. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 SC 156 PLJ 1992 SC 156 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and abdul qadeer chaudhry, J. HABIBUR RAHMAN-Petitioner Versus Mst. ZEENATUN NISA and others-Respondents Civil Petition No. 277 of 1991, dismissed on 12.12.1991 (Approved for reporting on 19.1.1992) [On appeal from judgment and order dated 23.11.1991, of Peshawar High Court, Circuit Bench, Abbottabad, in C.R. 71 of 1990] Temporary Injunction-- —Declaration and perpetual injunction-Suit far-Status quo order by Additional District Judge set aside and order of Civil Judge refusing to grant temporary injunction restored-Challenge to-Contention that vendees are constructing shops on disputed land which is joint property, as such interest of petitioner would be adversely affected-Trial Judge has taken care of his interest and specifically stated that defendants are raising construction at their own risk-Held: Result of suit would not effect interest of petitioners in view of direction made by trial court-Petition dismissed. [P.158JA Mr. Abdul Hakeem Kfian, Senior Advocate, Supreme Court, with Ch. Akhtar Ali, AOR for Petitioner. Nemo for Respondents. Date of hearing: 12.12.1991. judgment Abdul Qadeer Chaudhry, J.--The petitioner seeks leave to appeal against the order dated 5.11.1991 of the High Court. 2. The facts, in brief are, that the petitioner instituted a suit for declaration and perpetual injunction against the defendants that they should not undertake any type of construction on the disputed land as the sales are without the consent of the petitioner. An application for interim injunction was also made. The learned trial Judge refused to grant the interim injunction to the petitioner. However, it was observed that the defendants will be doing the construction work at their own risk and they shall not demand any compensation if the suit of the plaintiff is decreed against them. The petitioner challenged this order in appeal before the Additional District Judge who accepted the appeal and directed that status quo be maintained till the disposal of the appeal. This order was challenged by the defendants Nos. 2 to 7 in the High Court in a Revision Petition which was disposed of by the impugned judgment. 3. In para 6 of the High Court's judgment, it has been recorded as follows:-- "As the evidence has been concluded in the case as per statement of the learned counsel for the respondent and now judgment is to be passed by the learned trial Court and the construction of an area of one marlfi is now complete, therefore, in facts and circumstances of the case, the judgment dated 11.6.1990 of the learned Additional District Judge, Mansehra is set aside and the order dated 25.1.1990 of the learned Civil Judge 1st Class, Mansehra is restored and this petition is disposed of accordingly". 4. Learned counsel for the petitioner has submitted that the property is joint and the vendees are constructing shops on the disputed land as such the interest of the petitioner would be adversely affected. The trial Judge has taken care of the interest of the petitioner and specifically stated that the defendants are raising construction at their own risk. The order impugned in this petition is of temporary nature and the suit is still pending which is at the final stage. The result of the suit would not affect the interest of the petitioner in view of the direction made by the trial Court. The respondents are further directed that if they had constructed the shops they should deposit the rent of the shops in the trial Court and the trial Court after final disposal of the suit would also make such order in respect of the rent so deposited by the respondents. 5. The petition is dismissed and leave to appeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLD 1992 SC 158 PLD 1992 SC 158 [Appellate Jurisdiction] Present: muhammad afzal zullah. CJ, abdul qadeer chaudhry and wali muhammad khan, JJ Maj. (Reid.) SATTAR MUHAMMAD-Appellant versus N.W.F. PROVINCE THROUGH CHIEF SECRETARY and others-­ Respondents Civil Appeal No. 227 of 1989, dismissed on 11.12.1991 (Approved for reporting on 19.1.1992). [On appeal from judgment and order dated 25.1.1988, of Peshawar High Court, in W.P. No. 498 of 1986] Termination of Service— -—Cases of embezzlement of funds-Registration of-Te/mination of service- Challenge to—Contention that appellant has already reached age of superannuation and at most he could claim salary for five years after termination of his service-Appellant has stated that he did not work during this period and waited for decision-Held: High Court has dealt with case legally and properly and there is no violation of law involved for decision by Supreme Court—Appeal dismissed. [P.160JA Mr. Atiqur Rehman. Qazi, Advocate, Supreme Court, instructed by Mr. Manzoor Elahi, &-AOR for Appellant. Mr. M. Sardar KJian, Advocate General NWFP and Mr. MA.. Qayyum Mazhar, AOR (absent) for Respondents. Date of hearing: 11.12.1991. judgment Abdul Qadeer Chaudhry, J.--Leave to appeal was granted to the appellant in view of conflicting decisions on the same subject in Muhammad Faiq Khan Kliattak Vs. Tlie Managing Director/Chairman, Board of Directors, Agr: Dev. Authority, NWFP (Writ Petition No. 42 of 1981 decided on 8.12.1984 and judgment corrected on 21.5.1985) and Writ Petition .No. 210 of 1986 Saflullah Vs. 77ie Managing Director, Agr. Development Authority, NWFP, Peshawar (PLD 1989 Pesh. 124). The imugned judgment in this appeal is dated 25.1.1988. 2. The facts of the case are that cases of embezzlement of funds were registered against Major (Redt) Sattar Muhammad, Ex-Director, Agricultural Development Authority, on 2.6.1977, 24.10.1977, and 16.8.1977. He was tried by a Military Summary Court. He was convicted and awarded the sentence of fine of rupees one lac. The Deputy Martial Law Administrator set aside the conviction in one case and acquitted him. In another case, he was granted pardon. A direction was issued on behalf of the Deputy Martial Law Administrator that he shall be reinstated in service without affecting his seniority and shall also not be liable to any departmental action. He was reinstated in service in consequence of the said order. He applied to the deparmtent for grant of pay and allowances for the period he remained under suspension. However, his services were terminated on 2.9.1982 in pursuance of the directions given by the Governor of the Province/Martial Law Administrator. The appellant submitted an appeal to the Chief Martial Law Administrator. The appeal was dismissed by the C.M.L.A. He again filed an appeal on 30.3.1985 before the Governor requesting for reinstatement in service but without any response. His application dated 6.8.1986 was also dismissed by the Chief Martial Law Administrator. He challenged the order of termination of his services in a Constitution Petition. The High Court, however, dismissed the petition. ?>. Leave to appeal was granted in view of the two judgments of the Peshawar High Court wherein contrary view was taken by the same Court. 4. In Safiullah's case (PLD 1989 Pesh. 124), it was held that "the order of termination of services on the direction of Governor was in violation of terms and conditions of service. Even the subsequent approval by the Board would be of no legal effect. No notice was given to the petitioner and no inquiry was held. Similar view was taken in another case." But the present case is distinguishable as the High Court has not exercised its discretionary jurisdiction in favour of the appellant on the following grounds:- "(1) The termination of the services of the petitioner has been approved by the Board of Directors, which according to the petitioner's own case was competent to make such an order. This approval of the Board of Directors could at least be prospective in operation, if not retrospectively applicable. (2) The background of the facts that a conviction was recorded by a Military Court against the petitioner in a case of embezzlement of money cannot be kept by us out of consideration while sitting in our constitutional jurisdiction no matter the Deputy Martial Law Administrator pardoned the petitioner with respect to that offence. (3) No mala fide on the part of the authorities making the impugned order could be pointed out by the learned counsel for the petitioner, nor has any illegality come to our notice in this regard. (4) The discretionary relief to a person with this record cannot be granted by us while in this jurisdiction". 5. The above are the findings of facts. On the basis of element of corruption the High Court refused to grant discretionary relief to the appellant. 6. Learned counsel for the appellant has stated that the appellant has already reached the age of superannuation and therefore at the most he could claim salary for five years for this period. The appellant has stated that he has not worked during this period and waited for the decision. The High Court has dealt with the case legally and properly. No violation of law is involved for decision by this Court. The appeal is dismissed. No order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 160 PLJ 1992 SC 160 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and wali muhammad khan, JJ Mst. DILBAR JAN-Appellant Versus SOHRAB KHAN and 3 others-Respondents Civil Appeal No. 453 of 1989, accepted on 17.12.1991, (Approved for reporting on 11.1.1992). [On appeal from judgment/order dated 12.9.1989, of Peshawar High Court, passed in R.F.A. No. 20 of 1984] Approbation and Reprobation-- —Immovable property-Sale of--Challenge to--Contention that suit property having been p'urchased by respondent No. 4 in name of his minor sons (respondents 1 to 3), he could not sell same~On one hand, respondent No. 4 concedes that property was purchased by him with his own funds but in names of his minor sons, and on other, he pleads exclusive ownership of respondents 1 to 3 disclaiming ownership of himself~He cannot be allowed to approbate and reprobate-Appellant is an illiterate purdah nashin lady and she parted with valuable cash consideration for suit property—Held: Suit appears to be collusive between plaintiffs and their father for extracting extra money from her-Appeal accepted. [Pp.l62&163]A&B Mr. Bashir Ahmad Ansari, Advocate, Supreme Court and Malik Saeed Afzal, AOR for Appellant. Mr. Z. Mahfuz Klian, AOR for Respondents 1 to 3 Respondent No.4 Ex-parte. Date of hearing: 17.12.1991. judgment Wall Muhammad Khan, J.-Through the instant appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan 1973, the appellant Mst. Dilbar Jan has called in question the judgment and decree dated 12.9,1989 passed by a Division Bench of the Peshawar High Court in Regular First Appeal No. 20/1984, whereby the appeal filed by Sohrab Khan and others, respondents herein, against the judgment and decree dated 15.4.1984 passed by the Senior Civil Judge, Peshawar, dismissing their suit for declaration and permanent injunction, was accepted and the decree prayed for by them was passed in their favour against the appellant. The brief facts of the case are that Khadim Hussain, respondent No.4 herein and the father of plaintiffs/respondents 1 to 3, sold the suit property vide registered sale deed dated 14.6.1965 in favour of Mst. Dilbar Jan defendant/appellant. The plaintiffs/respondents 1 to 3 claimed the suit house to be their ownership having been purchased in their name by their father Khadim Hussain vide deeds dated 10.5.1954 and 17.1.1962, confirmed by the civil Court decree in suit No. 203/1, during their minority. They alleged that at the time of the sale vide registered deed dated 14.6.1968 they were major and they being owners, their father defendant No. 2 was not legally competent to sell the same in favour of the appellant and that the impugned sale is based on fraud and collusion and ineffective on their rights. They also asserted that they were in physical possession of the suit property and that their father never remained in possession thereof and also that he was residing elsewhere as their relations were strained. The suit was contested by the appellant and she in her written statement, besides raising certain technical objections denied the ownership of the plaintiffs/respondents 1 to 3 and claimed protection under Section 41 of the Transfer of Property Act being a bona fide purchaser in good faith for valuable consideration without knowledge or notice of the alleged rights of the plaintiffs. She averred that defendant No.2 had constructed the suit property and was hi possession of the same before entering into agreement to sell thereof with the appellant and later, on selling the same through the registered sale deed coupled with the delivery of possession and also attestation of mutation on the strength of the sale deed. According to her, the suit was collusive between the father and the sons in order to squeeze extra money from the appellant who was an aged illiterate Pardah Nashin lady. Necessary issues were framed, evidence led^ro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 15.4.1984, dismissed the suit of the plaintiffs/respondents 1 to 3. Not content with the same, they preferred Regular First Appeal before the Peshawar High Court which was accepted, the judgment and decree of the trial Court was set aside and the decree prayed for was passed in their favour against the appellant. Hence the instant appeal. We have heard Mr. Bashir Ahmad Ansari, Advocate for the appellant and Mr. Z. Mahfuz Khan, AOR for the plaintiffs/respondents 1 to 3. The learned counsel for the appellant contended that the suit property was originally purchased by Khadim Hussain in the name of his minor sons respondents 1 to 3 and the presumption can obviously be that he was the real owner and that the plaintiffs were Benamidars. However, the learned counsel for the plaintiffs/respondents 1 to 3 conceded that the property was purchased by Khadim Hussain in the names of respondents 1 to 3 during their minority but at the time of the sale by him in favour of the appellant the respondents 1 to 3 had attained majority and only they were competent to transfer the suit property to anybody they liked and that Khadim Hussain was not legally competent to enter into the agreement to sell or execute a regular registered sale deed in favour of the appellant. We are afraid, he cannot be allowed to approbate and reprobate. On the one hand he concedes that the property was purchased by Khadim Hussain with his own funds but in the names of his minor sons and on the other, pleads the exclusive ownership of respondents 1 to 3 disclaiming the ownership of Khadim Hussain. It is specifically alleged in the plaint that the property was constructed by Khadim Hussain and was rented out to tenants. It is not established on the record that the tenants, at any time, paid rents to the plaintiffs/respondents 1 to 3 nor it is borne out from the record that the tenants ever denied the title of Khadim Hussain and attorned to plaintiffs/respondents 1 to 3. The appellant is an illiterate Pardah Nashin lady and parted with valuable cash consideration for the suit property. The transfer was finalised through a registered sale deed of which the plaintiffs/respondents 1 to 3 are presumed to have the knowledge but curiously enough, they did not choose to challenge the same during long ten years. There appears to be force in the arguments of the learned counsel for the appellant that the suit is collusive between the plaintiffs and their father for extracting extra money from the appellant as during the intervening period the prices of immovable property situated in the area of Municipal Corporation Peshawar must have gone up manyfold. We are, therefore, clear in our mind that the transfer by Khadim Hussain in favour of the appellant was genuine, with the implied consent of the plaintiffs/respondents 1 to 3 and they are estopped to deny the title of the appellant. Consequently, the instant appeal is accepted, the judgment and decree of the High Court is set aside and that of the trial Court is restored with the result that the suit of the plaintiffs/respondents 1 to 3 stands dismissed. There is no order as | to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 163 PLJ 1992 SC 163 [Appellate Jurisdiction] Present: muhammad afzal zullah, a, abdul qadeer chaudhryand wali muhammad khan, JJ WATER AND POWER DEVELOPMENT AUTHORITY-Appellant versus MUHAMMAD AYUB-Respondent Civil Appeals Nos. 229 and 230 of 1989, decided on 19.1.1992. [On appeal from judgments dated 13 and 14.3.1988, of Federal Service Tribunal, Islamabad, in Appeal Nos. 166 (L) and 167 (L) of 1983.] Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978-- —-Rr. 4 (1) (a) (ii) and 5 (4) read with Fundamental Rules 53 and 54—WAPDA employees—Misconduct by—Punishment for—Whether forfeiture of pay during suspension period is legal-Question of-According to provision of Rule 4 (1) (a), if on account of any negligence or breach of any order, a loss is caused to WAPDA, then recovery may be made for such pecuniary loss-It is not case of appellant that any pecuniary loss has been caused to WAPDA—Held: In absence of any financial loss, Section 4 (1) (a) is not attracted--Held further: Appellant, for meagre amounts of Rs. 250/-and 300/-, has filed appeals at cost of public exchequer which is not only wastage of public money but also public time-Cost awarded to respondents. [Pp-165&166]A&B Mr. Asif Hussain Siddiqui, Advocate, Supreme Cotfrt, instructed by Mr. Manzoor Elahi, AOR for Appellant (in both appeals). Respondent: In person (in both appeals). Date, of hearing: 11.12.1991. judgment Abdul Qadeer Chaudhry, J.--This order will dispose of the two appeals as they are directed against the same judgment and common point of law is involved in both the petitions. The Respondent, Mohammad Ayub in Civil Appeal No. 229 and Respondent Nazir Ahmed in Civil Appeal No. 230 were found absent during office hours. They were proceeded under Rule 5 (4) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, (hereinafter referred to as the Rules). The appellant on 13-9-1982, imposed the following penalty against the Respondents under Rule 4.1 (a) (ii) of the rules:- 1. That balance of pay for the suspension period was forfeited and the intervening period was ordered to be treated as leave without pay (extra­ ordinary leave). 2. His annual increment was stopped with future effect. The Respondents then preferred appeals before the Federal Service Tribunal. The Tribunal, by means of the impugned judgment recorded the following findings:- "It is not disputed that the appellant did not discharge duties as mentioned in the show cause notice. His contention that he did not have the knowledge of the assignment of the duty as per duty chart is notbelievable. There is a report of the Line Superintendent dated 26.7.82 that the appellant and other linemen were detailed for duty on the Eid day and the appellant and two others had failed to discharge the duty as per assignment. His report was endorsed by the Executive Engineer and it was on these reports that the Superintending Engineer served the show cause notice on the appellant. There is nothing on the record to indicate that there was any malice behind the report made against the appellant. . We find that the charge of dereliction in the discharge of duty was established against the appellant and he was liable to disciplinary action. But we find that the punishment of forfeiture of the pay for the period of suspension falls outside the scope of Rule 4 of the WAPDA (E & D) Rules which enumerates the punishments to be awarded to the employees in certain circumstances and, therefore, that part of the punishment is liable to be set aside. As Regards the second part of the punishment, stoppage of one annual increment without future effect was appropriately awarded." According to the Tribunal, the punishment for forfeiture of the pay for the period of suspension falls outside the scope of Rule 4.1. During the suspension period an employee gets subsistence grant and some other allowances. In these cases also, the Respondents were getting such allowance during the period of their suspension. Learned Counsel for the appellant submitted that the past emoluments could be forfeited as punishment. Fundamental Rule-54 provides that "when a Government Servant who has been dismissed, removed or suspended, is re­ instated, the revising authority may grant to him for the period of absence from duty (a) if he is honourably acquitted, the full pay to which he had been entitled; if he had not been dismissed, removed or suspended and, by an order different separately recorded an allowance of which he was in receipt prior to his dismissal, removal or suspension; (b) if otherwise such proportion and such pay and allowances as the reusing or appellate authority may prescribe." Sub-rule (b) of FR-54, does not forbid the period under suspension being regarded as leave and it is open to the authority to prescribe as to the proportion of pay and the allowances to be paid, the leave salary which would be permissible if the Government Servant was on leave. ( Para 4 of Appendix 3 in Volume II of the Fundamental Rules & Supplementary Rules). Under FR-53, a subsistence allowance has to be paid to a Government Servant under suspension. The import of FR-54 (b) is that an authority may with­ hold part of allowance and pay of a Government Servant on his reinstatement. The question for consideration is whether the forfeiture of pay during the suspension period is legal under Rule 4.1 (a) (iv) of the Rules. According to the learned Counsel for the Appellant, this can be done under the above rules but in our opinion the construction made by the Tribunal is correct. According to this provision if on account of any negligence or breach of any order, a loss is caused to the WAPDA, then a recovery may be made for such pecuniary loss. It is not the case of the appellant that any pecuniary loss has been caused to WAPDA for the breach of order and dereliction of the duty. The Respondents were properly punished for their negligence. The Tribunal has also held that the punishment of withholding the annual increment is also legal. In the absence of any financial loss, the provision of Section 4.1 (a) is not attracted. However, as stated above, such an order can be passed under FR-54. The attention of the Tribunal was not drawn to this provision. Coming to the merits of the case, it is stated that in case of Muhammad Ayub, an amount of Rs. 250.00 (Rupees two hundred fifty & Paisa nil only) and" in case of Nazir Ahmed, Rs. 300.00 (Rupees three hundred & Paisa nil only) were forfeited. It is also an admitted feature that this order has been passed only against these two Respondents and there is no other identical case in \^hich such B punishment was awarded. The appellant, for two cases and this meagre amount, has filed appeals at the cost of public exchequer which is not only the wastage of public money but also the public time. The appellant entered into the litigation for such a small amount. The Respondents have appeared in person, to contest these appeals. Therefore, in order to do complete justice, we award Rs. 400.00 (Rupees four hundred & Paisa nil only) in lumpsum to Nazir Ahmed, Respondent, and Rs. 350.00 (Rupees three hundred fifty & paisa nil only) to Muhammad Ayub which includes the cost of two days' appearance by the Respondents. The appeals are disposed of in the above terms. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 166 PLJ 1992 SC 166 [Appellate Jurisdiction] Present: muhammad afzal zullah ci, abdul qadeer chaudhry and wali muhammad khan, JJ MUHAMMAD RIAZ and others-Appellants versus FEDERATION OF PAKISTAN, and others-Respondents Civil Appeal No. 477 of 1988, accepted on 8.12.1991. [On appeal from Judgment and order dated 3.11.1987, of Federal Service Tribunal, Islamabad, in Appeal No. 128 (R) of 1984.] Seniority-- —Trained Graduate Teachers--.-4d-/i0c appointment of-Regularisation from dates of their induction in service-Whether there is any prohibition in law hi regularising ad-hoc appointees from their original date of induction-Question of-Contention that appellants were appointed against existing vacancies, is disputed by respondents-Held: Service Tribunal is proper forum for resolving factual and legal controversies arising in a service matter-Case remanded to Service Tribunal. [Pp.l67&168]A3,C&D PLD 1980 SC 22 and 1991 SCMR 2216 rel. KJiawaja Muhammad Farooq, Advocate, Supreme Court, instructed by Mr. Manzoor Elahi, EX-AOR for Appellants. Ch. Ijaz Ahmad, Deputy Attorney General and Ch. Akhtar All, AOR for Respondents 1&2. Sardar Akhtar Ali Klian, Advocate, Supreme Court for Respondents 61 to 64, 65, 68 and 72. Nemo for other respondents. Date of hearing: 8.12.1991. judgment Abdul Qadeer Chaudhry, J.--This appeal by leave of the Court is directed against the judgment dated 3.11.1987 of the Service Tribunal. 2 The facts of the case as noted in the Leave Granting Order are as under:- The appellants were inducted in service as Trained Graduate Teachers in 1976-77, on ad hoc basis. The appointment was made ad hoc because there was a ban on regular appointment. In 1980, their appointments were regularised. In 1983, by an office order, the regularisation was given retrospective effect Unking it with the original date of induction on ad hoc basis. This adversely affected the seniority of respondent No.3. He after the normal channel of representation, filed an appeal before the Service Tribunal which was accepted by it. 3. Learned counsel has analysed the impugned judgment as follows:- (/) There are strong observations showing as if the regularisation itself in 1980 was illegal: (it) that retrospective effect could not at all have been given to the regularisation: (//;') that there were no vacancies available in 1976-77 or thereafter till 1983 permitting retrospective effect to the regularisation; (iv) and/or that competent authority had not approved the regularisation whether with retrospective or prospective effect. 4. Learned counsel has brought under challenge each one of the aforenoted aspects of the impugned judgment. He submitted that the appellants have been seriously prejudiced on the question of their seniority vis-a-vis all others who were appointed as Trained Graduate Teachers from 1976 to 1983. He has also seriously contested the observations of the Service Tribunal. 5. Leave to appeal was granted against respondents No. 1 and 2 only to consider inter alia "whether there is any prohibition in law in regularising ad hoc appointees with effect from their original date of induction subject, of course, to the existence of the vacancies and also satisfaction of other service conditions regarding merits etc. If not, whether, it would not be a case of general public importance to follow a uniform policy in such like cases leaving the discretion to the minimum so as to avoid clear injustice, favouritism or arbitrary decisions." 6. The learned counsel for the appellants submitted that the appellants were appointed against regular vacancies but there was a ban on the appointments, therefore, they were appointed on ad hoc basis. Learned counsel for the respondents, however, disputed this fact. The Service Tribunal has held as follows:- "The so-called regularisation could not be given a retrospective effect inter alia for the reason that no clear vacancies existed on the respective dates against which the respondents Nos. 3 to 14 could be appointed on regular basis". 7. Learned counsel for the appellants submitted that the appellants were appointed against existing vacancies. As a factual controversy has been raised, we therefore decline to enter into the realm of facts. The Service Tribunal is the proper forum for resolving the factual and legal controversies arising in a service matter. 8. However for the foregoing reasons, we accept this appeal and remand the case to the Service Tribunal to thoroughly examine and decide the issues framed by this Court. Reference may be made to M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 S.C. 22), and Shafiuddin, Deputy Directors V. Surat Khan Marri, D.R.I. O. (1991 S.C.M.R. 2216). 9. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 168 PLJ 1992 SC 168 [Appellate Jurisdiction] Present: shafiur rahman AND RUSTAM S. sidhwa, JJ IMAM BAKHSH and 4 others-Appellants versus DEPUTY COMMISSIONER, LAYYAH and 16 others-Respondents Civil Appeals Nos. 532 and 533 of 1990, accepted on 7.12.1991 [On appeal from judgment of Lahore High Court, dated 1.3.1989, passed in Writ Petition No.1560 of 1988] Constitution of Pakistan , 1973-- —Art.212--Patwaris~Selection for promotion as Kanungo—Challenge to~ Whether High Court's jurisdiction is barred under Article 212 of Constitution —Question of—Facts pleaded before High Court and decision given do not relate either to fitness or suitability of writ petitioners—Question directly in issue was specific rule making them eligible/ineligible for being considered for promotion or for excluding them from consideration for promotion—Held: Question squarely falls within exclusive jurisdiction of Service Tribunal-­ Appeal accepted and order of High Court set aside. [P.171JA&B PLJ 1990 SC 306, PLD 1988 SC 387 and PLD 1989 SC 508 rel. Mr. Hamid Klian, Advocate, Supreme Court, instructed by Mr. Ejaj Ahmad Khan, AOR for Appellants (in both appeals). Mr. Nazir Ahmad Qureshi, Advocate, Supreme Court, instructed by Ch. Mehdi KJian Mehtab, AOR for Respondents 4, 6, 8 and 13 (in CA. 533/90) and 4, 6,11 and 13 (in CA. 532/90). Mr. Riaz Anwar, Advocate, Supreme Court, instructed by Mr. Mahmood A. Qureshi, AOR for Respondents 3 and 14 (in CA. 532/90). Mr. Hamiduddin and Sh. Abdul Aziz, Advocates, Supreme Court, instructed by Mr. Mahmood A. Qureshi, AOR for Respondents 3, 14 to 20, 22 to 25 (in CA. 533/90). Nemo for other Respondents. Date of hearing: 7.12.1991. judgment Shaflur Rahman, J.--Leave to appeal was granted in these two appeals to examine, subject to limitation, whether the Lahore High Court had at all the jurisdiction in the matter in view of Article 212 of the Constitution read with Punjab Civil Servants Act and Punjab Service Tribunals Act. 2. The Deputy Commissioner, Sargodha , on the recommendation of District Selection/Promotion Committee held on 13.1.1986 and 11.8.1986 notified purely temporary and temporary ad-hoc appointments of Kanungos. Those adversely affected represented under Section 21(2) of the Punjab Civil Servants Act, 19 4 against these orders. All these representations were allowed by the Commissioner on 21.2.1986 holding as hereunder:- "In view of what has been discussed above it is advised that a joint list of all the patwaris functioning in the district be prepared and those having crossed the upper age barrier of 40 should be referred to the Director Land Records for a verdict in one way or the other as was done in the case of petitioner Safdar Ali son of Muhammad Sharif referred to above. Thereafter the District Selection/Promotion Committee should sit down and consider the cases of all the remaining candidates left out after scrutiny/advice of and by the Director Land Records Punjab. That would be a fair situation, a fair selection and a fair verdict. With these observations the impugned order is set-aside and the cases remanded to the learned D.C./District Collector, Sargodha for fresh decision in accordance with the guideline given above." On the same day another matter was disposed of in the same terms. 3. These Orders of the Commissioner were challenged in constitutional jurisdiction. The prayer made in the Writ Petition was as hereunder:- "It is, therefore, prayed that both the impugned orders of the Commissioner, Sargodha Division, Sargodha dated 21.12.1986 may graciously be declared as illegal, without lawful authority and ineffective against the rights of the petitioners and that the selection of the petitioners was made competently by the District Selection/Promotion Committee in accordance with law." 4. The High Court by its judgment dated 1.3.1989 accepted the constitution petition, concluding as hereunder:- "A person has a right to know as to why he has been excluded from selection. A mere observation that a group of named persons is selected while another set of persons is being rejected would be bad in law for vagueness and may smack of arbitrariness at times. In view of the position which has emerged, I have no hesitation in setting aside the impugned order of the Commissioner Sargodha Division as well as the two selections already made and to remit the case to the Deputy Commissioner/Collector who is the competent authority in the matter to hold fresh selection after faithfully observing the requirements of law, and hearing those of the parties who wish to be heard." 5. The appellants before us were not parties to these proceedings before the Commissioner. All the same, they were adversely affected when the decision of the High Court was sought to be given effect to. They approached this Court, within time from the date of their knowledge of this order but somewhat, late, as from the date of the Order of the High Court impugned by them. What happened subsequent to the decision of the High Court and before the departmental authorities and the Service Tribunal is a long story, but neither relevant nor necessary for the present adjudication. Considering that the appellants were not parties to the proceedings, that they are within time from the date of their ? knowledge and that the issue relates to the constitutional jurisdiction, the delay whatever is occurred, is condoned. 6. Mr. Hamid Khan, Advocate, the learned counsel for the appellants contended that the High Court failed to take note of the fact that there was a constitutional bar to the jurisdiction of the High Court in view of Article 212 of the Constitution. The controversy related neither to the fitness nor to the suitability of the writ petitioners for appointment/promotion to the post of Kanungo but one of rules of eligibility/ineligibility for being considered for such promotion. Such a question had of necessity to be resolved by the Service Tribunal and not by the High Court. He also contended that while adjudicating on merits, the High Court completely failed to take note of rule 4(b) (ii) of unrepealed The Punjab Kanungos Service Rules, 1945 and rule 11 of the West Pakistan Kanungo Service (Northern Zone) Rules, 1964. For the first proposition he relied on the decision of this Court in Aish Muhammad and 68 others versus Pakistan and 75 others (1985 S.C.M.R. 774), Government of Pakistan versus Muhammad Sadiq (1985 S.C.M.R. 699) and Iqan Ahmed Khurram versus Government of Pakistan and others (PLD 1980 S.C. 153). Finally, he contended that the departmental practice has uniformly applied age restriction on promotion of Patwaris. The importance of uniform, consistent departmental practice has been recognised in Nazir Ahmad versus Pakistan and 11 others (PLD 1970 S.C. 453). 7. Mr. Riaz Anwar Advocate, the learned counsel for one set of respondents has conceded that the issue being one of eligibility for being considered for promotion, rather than fitness or suitability for promotion, the Tribunal had the exclusive jurisdiction in the matter. 8. Mr. Hamiduddin, Advocate, the learned counsel for another set of respondents has pleaded for the protection of the impugned order both on merits as also on jurisdictional plane by reference to Mian Amanul Mulk versus N.- W.F.P. through Chief Secretary (PLD 1981 Peshawar 1) and Muttaqi Hussain Rizvi versus Province of Sind and another (PLD 1978 Karachi 703). 9. The facts pleaded before the High Court and the decision given do not relate either to fitness or suitability of the writ petitioners. The question directly in issue was the specific rule making them eligible/ineligible for being considered for promotion or for excluding them from consideration for promotion. This question squarely falls within the exclusive jurisdiction of the Service Tribunal as held by this Court in the cases Superintendent of Police, Headquarter, Lahore and 2 others versus Muhammad Latif (PLD1988 S.C. 387), Abdul Wahab Khan versus Government of the Punjab and 3 others (PLD 1989 S.C. 508) and Nek Muhammad Ropaal versus Government of the Punjab through Secretary to Cooperative Department and 2 others (PLJ 1990 S.C. 306). For the foregoing reasons, without going into the merits of the rule applicable, we accept both the appeals, set aside the judgment of the High Court as without jurisdiction and recall the writ. No order is made as to costs. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 SC 171 PLJ 1992 SC 171 [Appellate Jurisdiction] Present: abdul shakurul salam and rustam S. sidhwa, JJ NAQI HUSSAIN SHAH-Petitioner versus THE STATE-Respondent Criminal P.LA. No.438-L of 1991, accepted on 8.1.1992 [Against order of Lahore High Court, dated 27.11.1991, passed in Cr.M.No. 3100- B of 1991] Pre-arrest Bail- —Rape—Offence of—Bail—Prayer for—Submission that in two police investigations, petitioner was found innocent and it is a case of further inquiry- -Notice issued to State and meanwhile, petitioner admitted to interim prearrestbail. [P.172]A&B Ch. Muhammad Abdul Wahid, Senior Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for Petitioner. Respondent: Not Represented. Date of hearing: 8.1.1992. order Rustam S. Sidhwa, J.-This is a petition by Naqi Hussain Shah petitioner seeking leave to appeal against the order of a learned Single Judge of the Lahore High Court dated 27.11.1991 dismissing his petition for pre-arrest bail. 2. The petitioner is accused of committing rape with one Mst. Qayyum Akhtar complainant, a girl of about 18 years, on 4.12.1990, in respect of which an FIR was lodged on 10.12.1990. At an earlier stage the A.S.P. had sent up the case for cancellation. An earlier attempt by the petitioner to secure pre-arrest bail from the High Court was also unsuccessful. In the meantime, the Illaqa Magistrate cancelled the case. The petitioner was let out of the jail. Due to certain observations made by a learned Single Judge in. the earlier petition for pre-arrest bail, which was dismissed, challan was again filed in Court against the petitioner. The petitioner again moved for pre-arrest bail, which was again dismissed by a learned Single Judge on 27.11.1991. 3. On behalf of the petitioner it is submitted that in two police investigations he was found innocent and in these circumstances the case is one of further inquiry. 4. In view of the above, we issue notice to the State. Meanwhile, Naqi Hussain Shah petitioner is admitted to interim pre-arrest bail in the sum of Rupees Twenty thousand (Rs. 20,000/-) with one surety in the Uke amount to the satisfaction of the Assistant Commissioner, Faisalabad . Copy dasti. (MBC) (Approved for reporting) Bail allowed.

PLJ 1992 SC 173 PLJ 1992 SC 173 [Appellate Jurisdiction] Present: dr. nasim hasan shah, saad saood jan and abdul shakurul salam, JJ BASHIR AHMAD-Petitioner versus PIARA KHAN—Respondent Civil Review Petition No. 142/L of 1991, dismissed on 18.2.1992 [On appeal from judgment dated 20.11.1990 of Supreme Court of Pakistan, in C.A. 464 of 1988] Review- -—Supreme Court-Judgment of-Review of--Prayer for-In impugned judgment (reported as PLJ 1991 SC 457), it was held that tenant's superior right of pre­ emption under MLR 115 was available even after tenant purchased land under his tenancy—Contention that in another case (reported as 1992 Law Notes i SC) 511 Supreme Court having taken a different view, matter requires further consideration— In impugned judgment, court took cognizance of controversy and has dealt with it fully--Held: If another view is expressed in another case, it cannot be a ground for review—Held further: In fact petitioner is seeking a re­ hearing of case which cannot be allowed as it does not fall within scope of review proceedings. [Pp.l73&174]A,B&C PLJ 1991 SC 457 and 1992 Law Notes (S.C.) 51 discussed. Mr. Shamim Abbas Bokhari, Advocate, Supreme Court, instructed by Syed Abul Aasim Jafari, AOR for Petitioner. Mr. Riaz Anwar, Advocate, Supreme Court, instructed by Rana M.A. Qadri, AOR for Respondent. Date of hearing: 18.2.1992. order Nasim Hasan Shah, J.~In this case it was held in the impugned judgment! that the superior right granted under Section 25(3)(d) of Martial Law Regulation 115 to a tenant to resist a pre-emption suit was available even after the tenant purchased the land under his tenancy and had become its owner. The judgment is now reported as Piara KJian vs Bashir Ahmad (PLJ 1991 S.C. 457). In support of this review petition Mr. Shamim Abbas Bokhari has pointed out that another Bench of this Court in Malik Pir Bakhsh etc. vs Ali Muhammad (1992 Law Notes (S.C.) page 51) has taken a different view and he submits that the matter requires further consideration, if possible, before a larger Bench. We do not consider that such a plea is admissible in these proceedings. TJje Court , in this case, took cognizance of the controversy ,and has dealt with it fully. In case another view is expressed in another case, it cannot be a ground for review. In fact, the petitioner in this case is seeking a re-hearing of the case; such a prayer cannot be entertained in review jurisdiction and it does not fall within the scope of review proceedings. Dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 174 PLJ 1992 SC 174 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN AND RUSTAM S.SlDHWA, JJ BOARD OF INTERMEDIATE & SECONDARY EDUCATION, LAHORE, and another-Petitioners/Appellants Versus Mst. SALMA AFROZE-Respondent Civil Petitions for Leave to Appeal Nos. 976-L of 1991, 5-L and 6-L of 1992, converted into appeals and accepted on 2.3.1992. [On appeal from orders of Lahore High Court, dated 16.10.1991, 24.11.1991 and 27.11.1991, passed in W.P. Nos. 8153, 7049 and 6531 of 1991 respectively.] (i) Constitution of Pakistan, 1973-- —-Art. 185(3) read with Law Reforms Ordinance, 1972, Section 3-Intermediate examination-Papers of~Re-evaluation of answer books-Orders of-Challenge to-Preliminary objection that Intra Court Appeal being competent, petitions do not lie before Supreme Court-Under Law Reforms Ordinance, no Intra Court appeal lies against an interim order—Held: Subject matter of these petitions being by and large interim orders, petitions under Article 185(3) of Constitution by leave of Court, are competent [P.179]A&B (ii) Re-evaluation- —Intermediate examination-Papers of~Re-evaluation of answer books-­ Orders of~Challenge to~There was no ex-fade disclosure of criminality, irresponsibility or fraud and abuse of regulations in marking papers of respondents in these petitions—Perversity, abuse and criminality in evaluating papers should be particularised before Chairman as well as before Court and person/examiner accused of having indulged, should be impleaded as a party in Court and allowed to meet allegations-Held: If decision annulling earlier evaluation by examiner, is given, said examiner should stand disqualified for ever from handling answer books/papers of every examination conducted by Board-Held further: Re-evaluation done under interim orders of High Court, shall stand revoked and if respondents want to continue with writ petitions, they shall make fuller disclosure, implead examiners and raise appropriate oleas in matter-Petitions converted into appeals and accepted. [Pp.l82&183]C,D&E PLD 1969 SC 278 and PLD 1975 SC 331 ref. Ch. Ijaz Ahmad, Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for Petitioners (in all Petitions). Respondents: Not represented (in C.P. 976-L of 1991). Mr. S.M. Masud, Advocate, Supreme Court, instructed by Sh. Masud Akhtar, AOR for Respondent (in C.P. 5-L of 1992). Ch. Khalilur Rehtnan, Advocate, Supreme Court, instructed by SAbul Aasim Jafri, AOR for Respondent (in C.P. 6-L of 1992). Date of hearing: 16.2.1992. judgment Shafiur Rahman, J.--Two of three petitions, arise out of interim orders passed by the Lahore High Court, which have the effect of completely disposing of the matter in contro\ crsy. The third (C.P. 976-L/91) has come up against the final order but in fact it is fructification of an interim order. 2. In C.P.L.A.976-L/1991, Miss Salma Afroze appeared in Intermediate Examination (Annual 1990-91) under Roll No.2614 (Premedical Group) conducted by the Petitioners. She got 756 marks out of 1100, details as hereunden— "Subject Urdu A & B. English A & B. Islamic Education. Pakistan Studies. Physics. Chemistry. Biology. Total:- Marks Obtained 123 119 38 41 137 ' 154 144 756 Total 200 200 50 50 200 200 200 1100" 3. She was not satisfied with it and applied for rechecking of the script and deposited Rs.700/- as required, in the following manner:-- "(a) Rs.300/- on 11.7.91, for paper-B, Physics paper-A, English Paper-A, Biology. (b) Rs.400/- on 15.7.91 for Paper-B, English Paper-A, Chemistry Paper-A & B, Urdu." 4. The result card after rechecking was revised as hereunder:-- "Subject Paper Marks Obtained Out of Urdu. A&B 123 200 English. A&B 121 200 Islamic Education 38 50 Pakistan Studies. 41 50 Physics. A&B 152 200 Chemistry. A&B 156 200 Biology. A&B 144 200 Total:-- 775 1100" 5. She thereafter, expressed herself as hereunder:-- "That the petitioner is certain, confirmed in her opinion, without any shadow of doubt that if all the papers are properly re-examined and rechecked by the respondents, she will improve her position further enabling her meritorious performance in her academic career.", and invoked various grounds for seeking the following relief:-- "It is, therefore, most respectfully prayed that the Result (Annexure-B) of the Answer Books of all the subjects may be got evaluated in accordance with the Instructions of the Head Examiner/Paper Setters and in view of the provisions of the Board's Callendar as mentioned hereinabove." 6. On 16.10.1991, the High Court passed the following interim order in presence of the parties:-- "Learned counsel for the petitioner heavily relies upon an interim order dated 9.12.1991 passed by this Court in Zeeshan Majeed vs Board of Intermediate & Secondary Education (W.P.No.6347 of 1991). The referred petition was admitted to full hearing and interim relief was allowedto the petitioner in that case. Learned coimsel prays for similar relief as was allowed in the referred case. Learned counsel for the respondent Board has raised the same objections which were raised by him in the referred case. It is evident that interim relief was allowed to the petitioner in the referred writ petition and as such the petitioner is also entitled to the same relief. In the circumstances, this petition too shall be admitted to full hearing. In the meantime, papers of the petitioner shall be reevaluated by the Panel of examiners. This shall be done within next ten days without fail. For further proceedings, the matter is adjourned to be fixed for hearing along with the connected case." 7. The Board filed a Petition for leave to appeal and on its application this interim order was suspended on 2.12.1991 and the matter has come up for hearing on merits after notice to parties. 8. In C.P.LA.5-L/1992, Ahmad Jawad Qureshi is the student who appeared in the Intermediate Examination (Annual 1991) under Roll No.3529 (Pre-medical Group) and secured»760 marks out of 1100, the datails of which are hereunder:- "S.No. Name of Subject Marks Obtained Total Marks 1. English Paper 'A' 46 100 2. English Paper 'B' 59 100 3. Urdu Paper 'A' 65 100 4. Urdu Paper 'B' 71 100 5. Islamic Education 41 50 6. Pakistan Studies. 36 50 7. Chemistry Paper' A' 65 75 8. Chemistry Paper'B' 34 75 9. Chemistry Practical 37 50 10. Biology Paper 'A' 57 75 11. Biology Paper 'B' 54 75 12. Biology Practical 41 50 13. Physics Paper 'A' 61 75 14. Physics Paper 'B' 49 75 15. Physics Practical 44 50 Total:-- 760 1100" 9. He was not satisfied with the marks, deposited Rs. 300/-as fee for reexamination of the scripts of English Papers 'A' and 'B' and Chemistry Paper 'B'. Rechecking yielded no improvement. He thereupon invoked the constitutional jurisdiction of the High Court, attacked generally the system of marking and prayed as hereunder:- "It is, therefore, most respectfully prayed that the result (Annexure 'A') of the answer books of all the subjects may be got evaluated in accordance with the Instructions of the Head Examiner/Paper Setters and in view of the provisions of the Board's Calendar as mentioned above." On a similar application seeking interim order, the High Court, after hearing the parties, passed the following operative order on 24.11.1991:- "In the circumstances, the interim relief allowed to Zeeshan Majeed Awan in the above-referred case shall be extended to the petitioner Ahmad Jawad Qureshi as well. With this observation, this application stands disposed of." 10. A Petition for leave to appeal was filed against this order and the order was suspended by this Court on 14-1-1992. 11. In C.P.LA.No. 6-L/1992 Usman Nemat was the candidate who appeared in the Intermediate Examination (Annual 1991) under Roll No. 2428 Premedical Group and obtained 750 marks out of 1100, the details being as hereunder:- "S.No. Name of Subject Marks Obtained Total Marks 1. English Paper 'A' 33 100 2. English Paper 'B' 68 100 3. Urdu Paper 'A' 75 100 4. Urdu Paper 'B' 66 100 5. Islamic Education 44 50 6. Pakistan Studies. 40 50 7. Chemistry Paper'A' 62 75 8. Chemistry Paper'B' 44 75 9. Chemistry Practical 33 50 10. Biology Paper'A' 44 75 11. Biology Paper'B' 50 75 12. Biology Practical 39 50 13. Physics Paper'A' 55 75 14. Physics Paper'B' 59 75 15. Physics Practical 38 50 Total: 750 1100" 12. He applied only for rechecking of English Paper 'A'. No mistake was found on rechecking but he suspected undervaluation of script. He invoked the constitutional jurisdiction of High Court seeking the following relief: - "It is, therefore, respectfully prayed that the result (Annexure 'A') of the answer book of English Paper 'A' may be got evaluated in accordance with the instructions of the respondents and in view of the provisions of the Board's Calendar as mentioned above." On 15-09-1991, the High Court passed the following interim order in presence of the parties:- "In this view of the matter the interim relief already granted to Zeeshan Majid Awan shall also be extended to Usman Nemat petitioner. C.M.No. 1/1991 stands disposed of." 13. Pursuant to it revaluation was done, the marks of the respondent were increased by 21 and on its basis he got admission hi Pharmacy Class of Punjab University. The constitution petition in the High Court was disposed of in the following words on 27-11-1991:- "Learned counsel contends that the case of Usman Nemat, petitioner, was admitted on the authority of admission of the aforesaid petition. He says that the case in hand is certainly at par with the case of Zeeshan Majeed Awan, referred to above. Learned counsel contends that the admission form of the petitioner was entertained by the respondent-authority and he was accordingly granted admission in the college. No one appears on behalf of the respondent-Board to contest this case, although service was effected upon it. In the circumstances, I am of the view that the case of the petitioner is at par with that of the above-referred petitioner. Since final relief was granted in the above-referred case and as such, there is no justification not to give similar relief to the petitioner in the given circumstances. Even otherwise, none appeared to draw distinction in these two matters. In the circumstances, the writ petition is accepted as having been fructified by giving the petitioner same relief as was given to Zeeshan Majeed Awan in his case, referred to above. 14. When this petition for leave to appeal came up before this Court on 15-1-1992, no interim relief was granted. 15. Now all these three matters have come up for hearing after notice to all concerned. A preliminary objection has been raised that as an Intra Court Appeal was competent, these petitions do not lie before the Supreme Court. Under the Law Reforms Ordinance, 1972 (Ordinance No. JQI of 1972), there is no appeal competent against an interim order. It is by and large the interim orders which are the subject matter of these Petitions and they could be the subject matter of appeals by leave of the Court under Article 185 (3) of the Constitution wherein final order is not mentioned. 16. After hearing the learned counsel for the parties and going through the record what has surprised us most at the hearing is that the learned Judge in the High Court who handled the matter, referred to no statutory provision on the subject, nor he kept in view the law declared by this Court on the subject in the case of Chairman, Board of Intermediate & Secondary Education, Lahore and another versus All Mir (1984 S.C.M.R. 433). The law on the subject was laid down by this Court in the following words:- "There is no provision in this rule for re-evaluating an answer book. It appears that the Chairman had on an earlier occasion taken some action in relation to marking by a sub-examiner of answer-books of Spring Examination 1976 involving loss of answer-books and marking in more than one handwriting, which action when placed before the Board had been approved and by a resolution it had desired that "some thinking must be done about rectifying such injustices in individual cases". The matter was accordingly referred to a sub-committee and on the receipt of its report a resolution was passed on 31.8.1981 to the effect that where zero mark had been given by the examiner on a correct solution, the answer-book could be referred to a Review Committee and if that Committee came to the view that injustice had been done to the candidate, the matter would be placed by the Chairman before the Board for its decision. It is obvious that the respondent's case not being that he had been awarded zero mark against a correct solution in any question he could not invoke the resolution dated 31.8.1981. No other rule was cited conferring any right on a candidate to compel the Board to refer his . answer-book for re-evaluation." Even, the facts of the case Zeeshan Majeed Awan versus Board of Intermediate and Secondary Education, through its Chairman and another (Writ Petition No. 6347 of 1991) which was made an example for grant of interim relief were not looked into with that attention and particularity which was necessarily required for establishing the identity or similarity in the matter of grant of relief in these cases. 17. It is conceded by the learned counsel for the parties that the Calender of the Board of Intermediate & Secondary Education, Lahore 1986-Revised Edition, contains no such provision for re-evaluation of the answer books as was ordered by the High Court. In the absence of any statutory pro%'ision, we are left with the residual law laid down by this Court in the Chief Settlement Commissioner, Lahore versus Raja Muhammad Fazil Klian and others (PLD 1975 S.C. 331) where every authority, every Tribunal and every court has been authorised to undo fraud, perversity and a manifest-abuse of its authority affecting its jurisdiction. If there was criminal design or a fraud perpetuated on the candidates or a manifest case of victimisation by the examiners, then this principle of undoing the wrong was available both to the Board as well as to the Court provided the requisite procedure was adopted and the factual foundation was well established. In the case of Zeeshan Majeed Awan (Writ Petition No. 6347/1991), which was adopted as an example by the learned judge, the criminality and the perversity of the examiners in respect of each paper examined and marked was given in great detail, and if correct on facts, it was sufficient to put the onus on the examiner to explain his unjustified marking. For example, Zeeshan Majeed Awan, in his Writ Petition, had stated as hereunder:- "(0 URDU PAPER 'A' Marks Awarded 60/100. The very first question (question No. 5) is crossed by the Examiner and he awarded "ZERO" mark. The question is correctly attempted and is of a very high standard. This is a clear case of wilful victimisation and injustice. That according to Instructions of the Head Examiner/Paper Setter, that more credit should be given who uses literary language and writes in a stylish way. Further more throughout the Paper, the Examiner has under evaluated and deducted marks from each and every question attempted. The other instructions have also been ignored. The copy of the Question Urdu Paper 'A' isAnnexure 'B'. The copy of the Instructions isAnnexure B-l. («) URDU PAPER'S' Marks Awarded 69/100. In question No. 5 (b) all the idioms have been correctly explained but full credit has been refused. The examiner has given few marks instead of full credit as given below in violation of the Instructions of the Head Examiner/Paper Setter, which is as under:- 9/15 marks in Question No. 4. 10/15 marks in Question No. 3. 16/30 marks in Question No. 1. The copy of Question Urdu Paper 'B' isAnnexure 'C'. The copy of the Instructions is Annexiire C-l' (Hi) ENGLISH 'A' Marks Awarded 52/100 All the questions have been attempted in idiomatic and correct English according to the prescribed books, but the examiner awarded the following marks in an unjustly manner ignoring the style in writing and the matter content. 9/15 marks in Question No. 1. , 8/15 marks in Question No. 2. 8/15 marks in Question No. 3. 9/15 marks in Question No. 4. 9/20 marks in Question No. 5. 9/20 marks in Question No. 6. The Examiner ignored the Instructions of the Head Examiner/Paper Settler regarding the Proficiency of the language, ability to grasp the Text and critical approach while answering the question by the petitioner. The Examiner underlined the correct words, depicting mistake unjustly. The copy of the English Paper 'A' is Annex. 'D'. The copy of the Instructions is Annexure D-l'. • (iv) ENGLISH PAPER 'B'. Marks Awarded 60/100 (a) Question No. 4 (b) has been attempted correctly. Sentences have been constructed in an impressive and stylish English for the "PAIR OF WORDS". According to the Instructions, the petitioner should have been awarded 10/10 marks, whereas he has been awarded 2/10 marks. (b) In question 4 (a) which is also objective type and the petitioner has done no mistake at all, the Examiner has deducted one mark without justification and in violation of the Instructions. (c) Similarly the Examiner has under evaluated other questions and has awarded marks as under:- 8/15 marks in Question No. 1. 6/10 marks in Question No. 2. 5/10 marks in Question No. 3. 7/15 marks in Question No. 5 (b). 8/15 marks in Question No. 6. The examiner violated the Instructions of the Head Examiner/ Paper Setter maliciously. The copy of English Paper 'B' is Annexure 'E'. The copy of the Instructions in Annexure E-l/. (v) ISLAMIC EDUCA TION. Marks Awarded 40/50 Question No. 3 which is correctly attempted the petitioner has been given 10/12 marks instead of 12/12 marks in clear violation of the Instructions according to which full marks should have been granted. As regards the evaluation of other questions there too, the instructions have been violated. ,He had similarly made disclosures about the calculated perverse marking of [other papers as well. Such detail was altogether lacking in the cases of the respondents before us. There was no ex-fade disclosure of criminality, irresponsibility or fraud and abuse of regulations in marking the papers. The stages in which such a controversy has to be examined are that first the identity of the script or answer book is to be established by visual inspection of it by the candidate. He must own it. It must be his. Next the perversity, the abuse, the criminality in evaluating it should be particularized by complete disclosure before the Chairman as well as before the Court. The person/examiner accused of having indulged should be impleaded as a party in Court and allowed to meet the allegations. If the Court finds ex-fade that there is good ground made out for further inquiry in terms of Muhammad Fazil Khan's case (PLD 1975 S.C. 331), it should itself examine and in the next stage get the answer books examined after annulling the award of marks on grounds fully established. In Muhammad Fazil KJian's case this court has ruled that preponderance of judicial authority is in favour of conceding such a power (to suo motu recall or review an order obtained from it by fraud) to every authority, tribunal or Court on the general principle that fraud vitiates most solemn proceedings and no party should be allowed to take advantage of his fraud. In case such a decision is given, annulling the earlier evaluation by the Examiner, the said Examiner should stand disqualified for ever from handling the jjif-rr irwks. Papers of even examination conducted by the Board. It is . for the institutions which are dealing with the students and guarding the purity of examinations that the merit of the students should be protected and enhanced rather than thrown into jeopardy. The Board having not appealed in Zeeshaii's case should take appropriate steps against the examiners who indulged in such calculated perversity and criminality. 18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has laid down by this Court in Muhammad Sarwar versus the State (PLD 1969 S.C. 278) that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter. 19. We convert these petitions into appeals, accept them, and set aside the impugned orders of the High Court. The result shall be that the re-evaluation done under the interim orders of the High Court shall stand revoked and if the respondents want to continue the writ petitions, they shall make fuller disclosure, implead the Examiners and rake appropriate pleas in the matter and the High Court shall deal with it on their own merits. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 SC 184 PLJ 1992 SC 184 [Appellate Jurisdiction] Present: Shafiur Rahman, Muhammad Afzal Lone and Wali Muhammad Khan, JJ. MUKHTAR and 4 others-Appellants versus THE STATE-Respondents Criminal Appeal No. 240 of 1990, dismissed on 183.1992. [On appeal from judgment/order dated 23.1.1989, of Lahore High Court, passed in Cr. Appeal No. 50 of 1986.] (i) Alibi-- —Murder-Offence of--Conviction for--Challenge to—Contention that appellant No.5 had pleaded alibi and produced disinterested evidence in support thereof and that same was ignored without any plausible explanation- Held: Trial Court as well as appellate court have properly considered plea of alibi of appellant No.5 and rejected same for valid reasons which do not call for interference at this stage-Appeal dismissed, [P.188]C&D (ii) Criminal Trial- -—Murder-Offence of-Conviction for-Challenge to--PWs 11 and 12 had stamp of several injuries on their persons and as such their presence on spot cannot be doubted-Injuries were caused to them from close range and it being a daylight occurrence, they were in a position to identify assailants-­ Complainant party had bo serious enmity with anybody else who could have caused death of Abdul Aziz and injured PWs and their companions-­ Appellants had strong motive to harm complainant party--Held:In view of background of case, nature of injuries sustained by complainant party, and high-handedness and brutality with which crime was perpetrated, there is no room for doubt that appellants and their kith and kin did participate in tragedy and direct evidence supplied by injured PWs cannot be brushed aside. [Pp.l87&188JA&B Sardar Muhammad Latif Khosa, Advocate, Supreme Court, and S. Abul Aasim Jaferi, AOR for Appellants. Mian Attaur Rahman, Advocate, Supreme Court, and Rao Muhammad Yousuf Khan, AOR for State. Date of hearing: 13.1.1992. judgment Wali Muhammad Khan, J.~Mukhtar, Nawaz, Muhammad Afzal, Mumtaz alias Taja and Muhammad Aslam sons of Hassan Muhammad, residents of Chak maintained. The respondent did not file any appeal to challenge the exclusion of this area and the decree in favour of Faheem-ul-Islam of 3 kanals has assumed finality. However, the appellant has challenged the decree passed by the High Court whereby the decree with regard to ihe remaining land, measuring 3 kanals 10 Sq.Ft. has been maintained and contends that as the original agreement for sale was for 6 kanals 10 Sq.Ft. and the decree passed in favour of the respondent is only for 3 kanals 10 Sq.Ft. such a decree, which is inconsistent with the original agreement, and the remaining decree, cannot (be) specifically performed. We observe that this contention was not raised before the High Court where the decree of the trial Court was contested only on the ground that as the respondent had failed to make payment of the balance price within three months he had committed a breach of the agreement; hence the appellant had justifiably forfeited the earnest money and was also not bound to specifically enforce the contract. The High Court, after carefully examining all the circumstances, came to the conclusion that "on taking over all picture of the case and evidence brought on the record it cannot be "held that 3 months time was agreed to work as of the essence of the contract". No contention that the decree for specific performance with regard to the remaining 3 kanals 10 Sq.Ft. of the land could not be passed, if the sale in favour of Faheem-ul-Islam was considered to be valid as this would result in passing a decree which would be inconsistent with the original agreement and the remaining decree, was ever raised or argued before the High Court. Mr.Zaki-ud-Din Pal, learned counsel for the appellant, frankly concedes that this is so, but he submits that as the question is a pure question of law it can be raised before this Court even at this stage. It is true that a pure question of law which does not involve an inquiry into facts, even if it is raised for the first time, can be considered by this Court. But this concession is subject to the condition that leave to raise and argue such a point must be granted by this Court. In other words, even a pure question of law, which was not raised earlier, can be canvassed only by the leave of this Court. In the facts & circumstances of this case, when the appellant is resiling from his solemn word and not abiding by the agreement freely made by him with the 1M respondent, we think this is not a fit case in which we should grant leave to take up this fresh point, even though it is one of law, at this stage. No other question has been raised before us. This appeal, therefore, fails and is dismissed accordingly. But the parties are, in the circumstances, left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 191 PLJ 1992 SC 191 [Appellate Jurisdiction] Present: muhammad afzal zullah, C.J. and muhammad rafiq tarar, J. SHAFEY ALI--AppeUant versus ASRAR BEG and 2 others -Respondents Criminal Appeal No. 45 of 1988, dismissed on 15.1.1992. [On appeal from judgment dated 16.4.1985, of Lahore High Court, Multan Bench, in Crl. Appeal No. 243 of 1983/M.R. No. 4 of 1984.] Pakistan Penal Code, 1860 (XLV of 1860)-- -—S. 302 read with Section 304 Part II-Murder-Offence of-Conviction for- Conviction altered to Section 304 Part II by High Court-Challenge to-Both injuries which were attributed to respondent/convict, are on buttocks of deceased-Requisite knowledge/intention (to kill) cannot be attributed to assailant for bringing case within mischief of Section 302 PPC—It was perhaps on account of weapon having gone slightly deeper and in an awkward direction, which might not have at all been known or visualised by assailant, that death took place-Held: If this feature of details regarding injuries would have been present before Bench granting leave to appeal, it might not have been granted-Leave grant order withdrawn. [P193]A&B Raja Muhammad Anwar, Senior Advocate, Supreme Court, and Mr. Muhammad Aslam Chaudhiy, AOR for appellant. Mr. CM. Latif, Advocate, Supreme Court for State. Nemo for Respondents 1 and 2. Date of hearing: 15.1.1992. judgment Muhammad Afzal Zullah, CJ. This appeal through leave of the court has arisen out of the following facts and circumstances as recorded in the leave grant order: "This petition for leave to appeal has been filed by Shafey All complainantpetitioner against Asrar Beg and Islam Beg respondents in the following circumstances: Both Islam Beg and his son Asrar Beg respondents were tried for an offence under Section 302/34 PPC for the murder of Taruq Tanvir deceased nephew of the petitioner-complainant, and the trial court vide judgment dated 13th Fabruary 1983 convicted only Asrar Beg respondent under Section 302 PPC and sentenced him to death plus fine but acquitted Islam Beg respondent. On appeal by Asrar respondent the Lahore High Court Multan Bench vide its judgment dated 16th April 1985 partly accepted the appeal by altering the conviction of Asrar Beg respondent from one under Section 302 to that under Section 304 Part-II PPC and reducing his sentence from death to ten years RI plus fine of Rs. 10,000/-. Revision of the present petitioner against the acquittal of Islam Beg respondent was dismissed. The present petition is for enhancement of sentence of Asrar Beg respondent and against acquittal of Islam Beg respondent. "The occurrence took place on 27th November 1982 in Chak No. 67/10-R, Police Station Khanewal. Both the respondents were arrested on 4th December 1982. At the instance of Asrar Beg respondent was recovered blood-stained dagger but according to the report of the serologist the origin of the blood could not be determined. According to the medical evidence the deceased received two stab wounds on the right and left buttocks. The injuries had been caused with sharp-edged weapon. The left buttock injury was simple but the right buttock injury had damaged peritoneum and cut the right illiac vessels. This injury was sufficient to cause death in the ordinary course of nature. The motive for the crime was that the deceased had appeared as a witness against Islam Beg respondent, father of Asrar Beg respondent, in a case under Section 307 PPC and for this grudge he was assaulted and injured. According to the eye-witness account the respondent assaulted the deceased and grappled with him. In the process of grappling Islam Beg respondent exhorted his son Asrar Beg respondent to kill the deceased. Thereupon Asrar Beg respondent who was armed with a dagger gave two blows on the right and left buttocks of the deceased. The appellate Court altered the conviction and sentence of Asrar Beg respondent for the reason that he had acted under the influence of his father and that he had no intention to kill the deceased as he did not choose vital part of the body of his victim, but caused two blows on his non-vital parts. However in the course of the blows the illiac artery was cut, that he was not expected to have full knowledge that with such a deep injury his victim would die. "Learned counsel for the petitioner argued that the injury had not only cut the illiac vessel but had also damaged peritoneum which indicated the force with which it was given and that therefore there was no justification for altering the conviction and sentence of Asrar Beg respondent, ft was further submitted that Islam Beg respondent was directly connected with the motive and thereofre he should have also beert convicted and sentenced under section 302/34 PPC for having instigated his son to attack the deceased. "After hearing the learned counsel we grant leave in this case only in respect of Asrar Beg respondent, but the petition in respect of Islam Beg respondent is dismissed". Learned counsel for the appellant to be fair to the respondent/accused/convict who is un-represented has himself pointed out that while the view taken by this Court in Munawar Hussain vs. The State (1983 S.C.M.R. 1165) goes against the appellant, the view taken in Mukhtar Ahmad vs. Muhammad Ilyas (1986 S.C.M.R. 634) is, prima-facie, in his favour. Learned counsel for the appellant has tried to distinguish the case of Munawar Hussain by arguing that the injury in that case was though on the thigh but it was so located that the knowledge and intention regarding the femoral artery could not have at all been attributed to the accused and thus the conviction under section 304 Part-I PPC was possible in that case. As regarding the case of Mukhtar Ahmad which was held to be a case under Section 302 PPC, learned counsel pointed out that the relevant injuries were on the back of the thigh and so located as fatal the injury in the present case is also located. Therefore, according to him the present case also is one of murder under Section 302 PPC. As already pointed out in the leave grant order both the injuries on the deceased which were attributed to the respondent/convict are on his buttocks. It is correct that the lower part of the buttock is connected with the upper thigh and the upper part of the buttock is connected with the illiac region and depending upon the circumstances in each case (particularly the exact location of the injury) would have to be considered for determining the knowledge and/or intention of the assailant. In this case we having seen marking of the two injuries on the bottocks of the deceased, by the doctor in his report, are satisfied that the requisite knowledge/intention cannot be attributed to the assialnt for bringing the case within the mischief of Section 302 PPC. On the other hand a possibility cannot be excluded that the assailant intentionally avoided the vital parts of the body and selected such parts which are well known as not containing any vital artery. It was perhaps on account of the weapon having gone slightly deeper and in an awkward direction which might not have at all been known or visualised by the assailant, that the death took place. If this feature of details regarding the injuries would have been present before the Bench granting leave to appeal, it might not have been granted. Accordingly, we consider it a fit case for withdraw! of the leave grant order. This appeal thus, with the above order, fails and is disposed of. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 193 PLJ 1992 SC 193 [Appellate Jurisdiction] Present: muhammad afzal zullah, C.J. and wali muhammad khan, J. GHULAM SAMDANI-Appelant versus ABDUL HAMEED-Respondent Civil Appeal No. 180 of 1991, accepted on 11.2.1992 (approved for reporting on 10.3.1992) [On appeal from judgment/order of Lahore High Court, passed in FAO No. 47 of 1986.1 Relationship of Landlord and Tenant-- —Tenant-Ejectment of--Ejectment order set aside by High Court-Challenge to-Denial of relationship of landlord and tenant-Respondent disputed title of Mst. Zartaj Siddiqui, transferor of appellant and claimed to be tenant of Mst. Zainab Bibi-All heirs of Mst. Zainab Bibi have admitted tide of Mst. Zartaj Siddiqui and decree passed in her favour has attained finality-Respondent was liable to eviction on application of appellant who is successor-in-interest of Mst. Zartaj Siddiqui-Held: Relationship of landlord and tenant between appellant and respondent, is established and findings of High Court are not legally sustainable-Held Further: It is by now well settled that if a tenant denies relationship, he is liable to eviction straightaway-Appeal accepted and Rent Controller's order restored. [Pp.l96&197]A,B&C Ch. Mushtaq Ahmad Klian, Senior Advocate, Supreme Court, and S. Abul Aasim Jafri, AOR (absent) for Appellant. Ch. M. Aslam Chatha, AOR for Respondent. Date of hearing: 11.2.1992. judgment Wali Muhammad Khan, J:- Through the instant appeal Ghulam Samdani appellant has called in question the order dated 19.11.1990 passed by the Lahore High Court, whereby the appeal filed by Abdul Hameed respondent was accepted and order of ejectment passed against him by the Rent Controller vide his order dated 24.1.1985 in favour of the appellant, was dismissed. Leave was granted to consider the following points:- i) that since the respondent admitted the factum of being a tenant of Mst. Zainab Bibi and not in occupation of any other status, the High Court in view of the registered sale deeds in favour of the petitioner and his brother and the entries of revenue record in their favour, could not have set aside the findings of the learned Rent Controller on the question of relationship, particularly keeping in view that the decree on which title of Mst. Zartaj Siddiqui was founded, was not set aside though an application under Section (12(2) C.P.C. was filed; ii) that the respondent having admitted himself being the tenant of Mst. Zainab Bibi, who was grand-mother of Mst. Zartaj Siddiqui as per statement of her attorney at page 41 of the paper book, the respondent was estopped from denying the relationship of landlord and tenant as the petitioner and his brother purchased the suit property from sad Mst. Zartaj Siddiqui; iii) whether the present case was a fit case in which the High Court should have directed one of the parties to approach the civil court if there was any doubt as to the title. The facts of the case, briefly stated, are that the appelant and his brother Ghulam Subhani purchased the suit houses Nos. 1596, 1597 and 1598 within the boundaries mentioned in para-1 of the eviction petition from Mst. Zartaj Siddiqui vide registered sale deed dated 5.10.1982 and thus became the owners of the suit houses. Abdul Hameed respondent was occupying the same as tenant on behalf of Mst. Zartaj Siddiqui who had filed an eviction petition against him but later on withdrew from it on 7.6.1983. After the purchase of the suit houses, the appellant claimed to be the owner/landlord of the suit houses and the respondent a tenant under him on payment of Rs.50/- per month as rent. He accordingly filed an eviction petition against him on the ground of default in payment of rent from 5.10.1982, damage to the property and bona fide personal need. The defendant, (?) in his written reply, denied the relationship of landlord and tenant and consequently, challenged the jurisdiction of the Rent Controller to proceed with the eviction application. On facts, he denied the ownership of Mst. Zartaj Siddiqui and also the sale by her in favour of the appellant. He claimed tenancy under Mst. Zainab Bibi, since dead, at the rate of Rs.25/- per month and that on her death he had been depositing the rent regularly before the Rent Controller. The learned Rent Controller framed preliminary issue regarding the existence of relationship of landlord and tenant between the parties and after recording such evidence as the parties wished to produce before him, decided the issue in the affirmative and directed the respondent to hand over vacant possession of the houses to the appellant within one month, vide his order dated 24.1.1985. Abdul Hameed respondent preferred appeal before the High Court which was heard by a learned Single Judge, and he vide his order dated 19.11.1990, accepted the appeal and set aside the order of eviction passed against Abdul Hameed respondent herein. Hence the instant appeal through leave of the Court. We have heard Ch. Mushtaq Ahmad Khan, Senior Advocate, for the appellant, Ch. MAslam Chatha, AOR, for the respondent and have persued the record of the case. The learned counsel for the respondent strenuously argued that the relationship of landlord and tenant had not been established; that no notice regrding the transfer of the suit property in favour of the appellant had been given to him; that the earlier eviction petition by Mst. Zartaj Siddiqui, transferer of the property to the appellant, had been dismissed and consequently the appellant could not move the Rent Controlller for the same relief being the successor-in-interest of Mst. Zartaj Siddiqui; that the respondent was inducted as a tenant by Mst. Zainab Bibi and on her death he had been depositing the rent before the Rent Controller regularly as he was not certain about her heirs thus he could not be declared as defaulter; and finally, the default being not contumacious the Rent Controller was bound to give finding on the other issues as well. The learned counsel for the respondent on the other hand, submitted that the respondent had already moved an application under section 12(2) of Civil Procedure Code challenging the decree passed in favour of Mst. Zartaj Siddiqui on the ground of fraud and misrepresentation which is still pending disposal in the Court concerned and that so long as the same is not finally decided, the title being sub-judice, the appellant cannot claim better title than her and the respondent is not liable to eviction. Mst. Zainab Bibi, on whose behalf the respondent claimed to be in possession as tenant, was wife of Din Muhammad and Mst. Zartaj Siddiqui, predecessor-in-interest of the appellant, is admittedly their daughter. She instituted a suit for declaration of title to the suit house against the other heirs of Din Muhammad which was decreed vide judgment and decree dated 10.3.1980 by Civil Judge, Sialkot in suit No. 201 of 1980, on the basis of compromise. On the strength of the said decree necessary correction was made in the G.L.R. of the Cantonment. Mst. Zartaj Siddiqui, thereafter filed an eviction application on 25.4.1982 against Abdul Hameed respondent on the ground of default in payment of rent and personal heed. The respondent herein contested the same. During the pendancy of these proceedings Mst. Zartaj Siddiqui sold the suit house in favour of the appellant and his brother vide registered deed dated 5.10.1982 and in consequence the learned Controller, vide his order dated 7.6.1983 dismissed the eviction application holding that the property having been alienated, Mst. Zartaj Siddiqui was no longer interested in the prosecution of the petition. The registered sale deed in favour of the appellant was given effect to in the G.L.R. and the appellant and his brother were substituted for Mst. Zartaj Siddiqui on •28.6.1983 and intimation to this effect was given to them vide letter dated 2.8.1983 (copy at page 46 of the paper book), whereafter they started paying the taxes etc. Having become owners by purchase, the appellant moved fresh applcation for the eviction of the respondent on the ground of default in payment of rent, damage to property and personal need which was resisted and culminated in the passing of the impugned judgment of the High Court as discussed earlier. The respondent's case is that he is a tenant of Mst. Zainab bibi and that on her death he, had been depositing rent in the office of the Rent Controller. He has disputed the title to Mst. Zartaj Siddiqui transferer of the appellant. As narrated above, all the heirs of Mst. Zainab Bibi have admitted the title of Mst. Zartaj Siddiqui and the decree passed in her favour has attained finality as none of the other heirs who were defendants in Case No.201 of 1980 have challenged the same decree uptill now. The application filed by the respondent under Section 12(2) C.P.C. shall be considered on its own merits but prima-facie, as he is not claiming any title in the^suit house, the chances of its success do not appear to be bright. Anyhow Mst. Zartaj Siddiqui, besides the decree of exclusive ownership in her favour, is also the daughter and heir of Mst. Zainab Bibi and Din Muhammad, is by operation of law one of the landlords of the suit house and the respondent only a tenant under her and liable to eviction on the application of appellant who is the successor-in-interest of Mst. Zartaj Siddiqui being a transferee from her. The relationship of landlord and tenant is thus established between the appellant and the respondent and rightly held so by the Rent Controller vide his order dated 24.1.1985. The learned High Court omitted to consider that Mst. Zartaj Siddiqui, besides being armed with a decree of ownership, was also the heir of Mst. Zainab Bibi and was included in the category of landlord. No independent evidence was required of her to establish that the respondent was inducted by her as a tenant because the respondent, on his own showing, is in occupation of the suit house since the time of his father under Mst. Zainab Bibi. The findings of the learned High Court are therefore not legally sustainable. It is by now well settled that if a tenant denies the relationship of landlord and tenant, he is liable to eviction straight away without recording of evidence on the other allegations of default, damage to property and personal need bacause default in payment of rent is conceded by the tenant himself. In the case in hand, no doubt, the tenant/respondent alleges deposit of rent in Court but obviously there was no justification for him to resort to this device when he came to know of the decree in favour of Mst. Zartaj Siddiqui in the earlier proceedings and the transfer of ownership rights by her in favour of the appellant, whereafter he was bound to attorn to Mst. Zartaj Siddiqui and later on to the appellant and tender rent to them and in case of their denial to recieve the same, to pay it in the office of Rent Controller in their names. It is apparent from the death certificate placed at page 51 of the paper book that Msf.Zainab Bibi died on 30.10.1942 (?) and the plea of the respondent that he is a tenant in the suit house on her behalf, on the face of it, is mala fide to prolong his occupation of the suit house for indefinite period. The deposit of rent before the Rent Controller, in this case, cannot exonerate him from the liability of paying rent at the relevant time to Mst. Zarlaj Siddiqui and thereafter to the appellant alter its purchase vide registered deed dated 5.10.1982. Resultantly, we accept this appeal, set aside the impugned order of the High Court and restore that of the Rent Controller dated 24.1.1985 whereby the respondent was directed to hand over vacant possession of the suit house to the appellant within one month of the passing of his order. Since the period allowed by the Rent Controller has already expired, he is allowed two months time from today to surrender possession to the landlord/appellant, failing which he shall be evicted through due process of law. No order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 197 PLJ 1992 SC 197 [Ap0ellate Jurisdiction] Present: ABDUL QADEER CHAUDHRY AND MUHAMMAD RAFIQ TARAR, JJ. DEPUTY COLLECTOR, CENTRAL EXCISE AND LAND CUSTOMS, LAHORE and another-Appellants Versus TYREX PAKISTAN (LTD)-Respondent Civil Appeals No. 736 and 737 of 1990, dismissed on 10.2.1992 (approved for reporting on 10.3.1992). [On appeal from judgment dated 25.5.1987, of Lahore High Court, passed in Writ Petitions Nos. 2058 and 2897 of 1983.] Sales Tax Act, 1951 (III of 1951)-- —Ss. 3(i) and 2(15)-Retreading of tyres-Sales tax on—Imposition of—High Court declaring retreading of tyres not amenable to sales tax-Challenge to- Respondents retread tyres-They do no manufacture any specified goods~In order to constitute sale, there must be transfer of goods or property-In this case, respondents had returned same goods to its owner after charging for repair and work done by them-Held: There is no sale of goods to attract Sales Tax Act and sales tax is not leviable-Held further: View taken by High Court is correct. [Pp.l99&201]A&B I DTC 215,118 Colo 464, American Jurisprudence P160 Foot-note 58, AIR 1963 SC 791, AIR 1965 SC 1396, AIR 1988 SC 871 and PLD 1991 SC 992 ref. Ch Ejaz Ahmad, Deputy Attorney General and Ch. Akhtar Ali, AOR for appellants (in both appeals). Raja M. Akram, Senior Advocate, Supreme Court and Mr. Manzoor Elahi, Ex-AOR for respondents (in both appeals) Date of hearing: 10.2.1992. judgment Abdul Qadeer Chaudhary, J.:- These appeals by leave of the Court are directed against the judgment of the High Court dated 25.5.1987. 2. The facts of the case are that the respondents are engaged in the business of retreading of tyres. According to the respondents, they receive worn out tyres from the customers, repair, re-service and retread them and receive only reapir charges. The appellants called upon the respondents to pay the Sales Tax. The respondents made a representation to the Central Board of Ravenue. It was ordered by the Central Board of Revenue that the respondent-Company was exempt from payment of excise duty but the goods in question were chargeable to Sales Tax. The respondents challenged the action of the appellants in a Constitution Petition which was acceped and it was observed that the retreaded tyres are not mentioned in Section 3(i) of the Sales Tax (Act), therefore, they are not liable to excise duty. 3. The learned Deputy Attorney General submitted that the retreading of tyres is a process of manufacturing. As such, the respondents are manufactutrer of taxable goods. To understand the controversy, we may refer to the definition clause. 4. "Manufacturer or Producer" has been defined in Section 2(11) of the Sales Tax Act (hereinafter referred to as the Act) which reads as follows:— "2(11). "Manufacturer or Producer" means a person who engages, whether exclusively or not, in the production or manufacture of goods, and includes a printer, publisher, lithographer or engraver, or a person engaged in the ginning of cotton, and also any person (not being an employee) who manufacturers goods, whether or not the materials of which goods are manufactured are owned by him. The expression also includes (i) the assignee trustee in bankruptcy liquidator, executor, or curator or any manufacturer or producer and, generally, any person who continues the business of a manufacturer or producer or disposes of his assets in any fiduciary capacity; (ii) any person, firm or company which owns, holds, claims, or uses any patent, proprietary, sales or other right to goods being manufactured, whether by them, in their name, or for them on their behalf by others, whether such person, firm or company sells, distributes, consigns, or otherwise disposes of the goods or not". 5. A "manufacturer" is a person who engages in the manufacture of goods. Certain specified persons have also been included in the category of manufacturers. The respondents retread tyres. They do not manufacture any specified goods. The ordinary meaning of "manufacture" is a process of making of an article or material by application of physical labour or mechnical power. The respondents do not manufacture the goods but repair it. The definition of "manufacture" is to be read in conjunction with the definition of "sale" mentioned in S. 2(15) of the Act and it means "every transfer of the property in goods from one person to another in the course of trade or business". In order to constitute a "sale", there must be transfer of goods or property. In the present case, the respondents had returned the same goods to its owner after charging for the repair and the work done by them. There is no sale of goods so as to attract the Sales Tax Act. We may also refer to Section 3 of the Act which is the charging provision and Section 3(i)(a) contemplates that there should be levied and collected a tax on the value of goods produced or manufactured in Pakistan payable by the manufacturer or producer. The goods manufactured and sold are liable to Sales Tax. The definition is quite clear as the goods are not produced or anufactured by the respondents, the tax is not leviable. 6. The learned Deputy Attroney-General has referred to the definition of "Manufacture" contained in Section 2(f) of the Central Excises and Salt Act, which provides "manufacture includes any process incidental or ancillay to the completion of a manufactured product and any process of re-manufacture, remaking, reconditioning or repair and the processes of packing or re-packing such product". On the strength of this definition, he submitted that it applies to retreading or repair and retreading of tyre amounts to "manufacture", therefore, the case of the respondents is covered by this definition. The definition in Excises and Salt Act is no doubt exhaustive as it also applies to any process of repair. But this comprehensive definition does not burden the respondents with the liability for two reasons. One, according to the appellants themselves, the respondents are not liable to the excise duty, and second, the definition of "manufacture" has been specifically mentioned in the Act itself. 7. The combined effect of Section 2(11) and Section 3 of the Act is that the sale tax can be collected from the production of those goods which are produced or manufactured. The extended definition of Excises and Salt Act does not apply to the present case. The learned Deputy Attorney General has referred to Webster Dictionary where "retread" has been defined as "to put a new tread on a tyre, as a neumatic tyre retread, a tyre whose tread has been replaced, anything used again after repairs". Even according to Dictionary meaning "anything used again after repairs does not mean that the goods have been shaped into a new product. 8. The learned High Court has relied upon Tlie King vs. Boultbe Limited I DTC 215 wherein it was held that the defendant merely retreads a tyre there is never a sale and unless, there is a sale no sale tax is imposed". It was furhter held that "the sales tax was not intended to apply to the repair work carried out to an automobile tyre owned by the customer in order to prlong its life, the customer never having parted with the possession of the same." 9. In Corpus Juris Sccundum (Sec. 274 P.520 Vol. 84), it is stated that "Broadly speaking, however, "manufacture" means to work, as raw or partly wrought materials, into forms suitable for use, and ordinarily it is necessary that a company process raw material and produce therefrom a different product in order to be entitled to tax exemption as a manufacturer". 9-A. In Corpus Juris Secundum-55 at page 669, it is stated that " the word "manufacture" has been defined as the production of articles for use from raw or prepared materials by givining these materials new forms, qualities, properties, or combinations, whether by hand labour or by machinery". 10. In American Jurisprudence (at page 160), the terms "manufacturing" and "processing" imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed ........... a person engaged in the business of recapping and retreading automobile tyres is not the business of Manufacturing". 11. In Zook v. Perkins, 118 Colo 464, American Jurisprudence P. 160 Footnote 58 it is held that "the statute did not exempt the sale of camelback, cushion gun, rubber cement and cord used in recapping and retreading tyres since such a person is not engaged in the business of manufacturing any article but the repair of an old article". 12. In Union of India v. Delhi Cloth and General Mills (A.I.R. 1963 S.C. 791), it was held that "Excise duty is on the manufacture of goods and not on the sale. If form the raw materials, new substance has been brought into existence by the application of processes one or more of which are with the aid of power. Moreover, the definition of "goods" makes it clear that to become "goods" an article must be something which can ordinarily come to the market to be bought and sold". 13. Govt. ofA.P. v. Gunter Tobaccos (A.I.R. 1965 S.C. 13%). In this case, a customer gave to the Company raw tobacco for re-drying. It re-dried it in its factory, packed it in gunny water-proof paper and delivered it to the customer. It charged the customer at a consolidated rate for re-drying and for the packingmaterial supplied by it. It was held that "packing tobacco in water-proof material must be regarded as an integral part of the process of re-drying and not independent of that process". 14. Collector of Central Exsie, Bombay v. M/s. Kiran Spinning Mills (A.I.R. 1988 S.C. 871). In this case, the respondent purchased polyester fibre tow and cut it into short pieces. It was held that "Even by cutting, the respondents obtained man-made fibre. Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them". We may also refer to Asstt: Collector v. O.Straw&P.M. Ltd. (P.L.D. 1991 S.C. 992). 15. "Manufacture" generally connotes conversion of something and bringing into existence a new substance. By this process the character of a commodity is transformed into a new article. 16. The respondents are not engaged in the business of manufacture of new goods which attracts the charging provisions of the Act, as the duty is to be imposed on the manufacture of goods. For the aforesaid reasons, we are of the B opinion that the view taken by the High Court is correct. We, therefore, dismiss these appeals. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1992 SC 201 PLJ 1992 SC 201 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH CJ and wali muhammad khan, J FARMAN ALI-Appellant versus MUHAMMAD YOUSAF ALI and another-Respondents Civil Appeal No.99 of 1991, accepted on 22.2.1992 [On Appeal from judgment/order dated 15.7.1990, of Lahore High Court, passed in Civil Revision No. 2064 of 1986.] Restoration— —-Civil revision-Dismissal in default of~Restoration of-Prayer for-It is clear from affidavit of Rana Abdul Hamid (Advocate) and conduct of Mr. A.K. Dogar (Advocate) in his filing power of attorney earlier than date fixed that appellant had taken away brief from former and entrusted same to latter for conduct of his revision petition-Held: Admittedly appellant had no notice of date of hearing and he cannot be penalised for acts of office or his previous counsel-Appeal accepted and revision petition before High Court restored. [Pp-203&204]A&B PLJ 1981 SC 328,1970 SCMR 96, PLD 1990 Kar. 227,1980 CLC 466,1979 SCMR 309 and 1988 SCMR 263 ref. Mr. A.K. Dogar, Advocate, Supreme Court and S-Abul Aasim Jafri, AOR (absent) for Appellant. Mr. Muhammad Munir Peracha, Advocate, Supreme Court and S. Abid Nawaz, AOR (absent) for Respondents. Date of hearing: 22.2.1992. judgment Wall Muhammad Khan, J.-Through the instant appeal, by leave of the Court, Farman Ali appellant has called in question the order dated 15.7.1990 passed by the Lahore High Court, whereby his application for restoration of the revision petition filed by him which was dismissed for non-prosecution on 13.11.1988, was dismissed alongwith the application for condonation of delay. The leave granting order is as follows:- "The learned counsel for the petitioner relies on Mst. Sardaran Bibi and another versus Allahdino (PLD 1990 Karachi 227) and Alico Civil Engineers and Contractors, Lahore versus Syeda Mushtri Rafiq Ahmad and another (1980 CLC 466 Lahore) for avoidance of the impugned order. An authoritative pronouncement on the subject is called for. Leave to appeal is, therefore, granted. Security Rs. 5,000/00." The facts of the case, briefly stated, are that the appellant filed the suit for pre-emption against the respondents which was dismissed vide order dated 4.5.1986 and the appeal filed against it also met the same fate vide order dated 21.10.1986. The appellant filed revision petition on 26.10.1986 through Rana Abdul Hameed Khan, Advocate. Before the date fixed for hearing, the appellant took away brief from him and engaged Mr. A.K. Dogar, Advocate, who filed his power of attorney in the High Court on 18.8.1987 which was duly entered in the Diary at Sr.No.573, but neither the power of attorney was annexed with the file of the revision petition nor a note was given in the cause list that Mr.A.K. Dogar was a counsel for the appellant, with the result that the new counsel had no notice of the revision petition having been fixed for hearing on 13.11.1988 on which date Rana Abdul Hameed Khan, Advocate, on seeing his name appearing on the cause list, put in appearance in the Court and stated "no instructions". Consequently, the revision petition was dismissed for non-prosecution. The appellant, after sufficient length of time, came to know of the dismissal of the revision petition and informed his new counsel Mr. A.K. Dogar, who, after making himself sure about the dismissal from the office, instituted the petition for restoration of the revision petition alongwith an application for condonation of delay, a notice whereof was given to the opposite party and the learned High Court after hearing the learned counsel for the parties dismissed both the petitions vide order dated 15.7.1990, holding that the petitioner had not been able to make out sufficient cause either for restoration of the revision petition or for condonation of delay. Hence the instant appeal through leave of the Court. We have heard Mr. A.K. Dogar, Advocate, for the appellant, Mr. Muhammad Munir Peracha, Advocate, for the respondents and have perused the record of the case. The learned counsel for the appellant argued with vehemence that the dismissal of the revision petition was the result of negligence of the officer concerned of the High Court who failed to place his power of attorney on the judicial file of the revision petition and omitted to record his name in the cause list for the date fixed, as counsel for the appellant. According to him, Rana Abdul Hameed Khan, Advocate, put in appearance before the Court stating no instructions but the appellant had taken away brief from him already and according to his (Rana's) sworn affidavit he had informed the Court about this fact as well and, as such, law and equity demanded adjournment of the revision petition for another date with a notice to the appellant personally. He stressed that nobody is to suffer for acts of the Court. He placed reliance on Ch. Mehraj Din versus West Pakistan Province and 8 others (1970 SCMR 96), Lt. Col. Mirza Munawar Beg etc. vs. Mst. Hassan Bibi and others (P.L.J. 1981 Supreme Court 328), Mst. Sardaran Bibi and another vs. Allahdino (P.L.D. 1990 Karachi 227), Alico Civil Engineers and Contractors and another vs,Syeda Mushtri Rafiq Ahmad and another (1980 C.L.C. 466), Sh. Abdul Majid vs. Habib Ahmad (1979 S.C.M.R. 309), and Shaukat Hussain and others vs. Mst. Qaisarah Begum and others (1988 S.C.M.R. 263). The learned counsel for the respondent, on the other hand, conceded the factual assertion of the learned counsel for the appellant but submitted that Rana Abdul Hameed never informed the Court about the taking away of the brief from him as is apparent from the order of the Court and that in consequence, the Court had to dismiss the revision petition for non-prosecution. Be that as it may, without entering into the controversy whether the learned High Court could legally dismiss the revision petition for non-prosecution in the circumstances of the case or not, this much is clear from the affidavit of Rana Abdul Hameed and conduct of Mr. A.K.Dogar in his filing power of attorney earlier than the date fixed that the appellant had taken away the brief from the former and entrusted the same to the latter for the conduct of his ^ revision petition. Admittedly, the appellant had no notice of the date of hearing and if Rana Abdul Hameed did not inform the Court that the brief had been taken away from him by the appellant or the office did not perform its duty to place the power of attorney of Mr. A.K. Dogar on the judicial file and enter his name in the cause list, the appellant is not to be penalised for the same. We, accordingly, accept the appeal set aside the impugned order of the High Court and by condoning the delay, restore the revision petition dismissed for nonprosecution on 13.11.1988 and remand the same back to the High Court for decision on merits. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 204 PLJ 1992 SC 204 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH, CJ and wali muhammad khan, J FATIMA MOEEN-Appellant versus ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 22 others-­Respondents Civil Appeal No.170 of 1991, accepted on 23.2.1992 (approved for reporting on 19.3.1992). [On appeal from judgment/order dated 5.11.1990, of Lahore High Court, passed in Writ Petition No.6253 of 1990] Civil Procedure Code, 1908 (V of 1908)-- —O.VII R.ll-Plaint-Rejection of-Challenge to-Appellant was admittedly minor at time of original sale and was within her right to challenge same after attaining majority—Period of limitation for a declaratory suit is six years from accrual of cause of action—It is well settled that every subsequent invasion on rights affords fresh cause of action to plaintiff-Subsequent alienation in this case, took place within a period of six years-Appellant has also prayed for joint possession for which period of limitation is twelve years which commences from time when possession of defendants becomes adverse—These important factors could not be gone into without framing issues and production of evidence-Held: Trial Court was perfectly justified in declining to reject plaint summarily without proper evidence-Appeal accepted and trial court's order restored. [Pp.206&207]A&B Mr: Ahmad Hassan Klian, Advocate, Supreme Court and Mr. Mahmood A. Qureshi, AOR (absent) for appellant. Ch. M. Hassan, Advocate, Supreme Court and Cli. M. Aslam, AOR (absent) for Respondents 3-9,11-20, 22, and 23. Nemo for other Respondents. Date of hearing: 23.2.1992. judgment Wali Muhammad Khan, J.«Fatima Moeen appellant, through leave of the Court, has challenged therder dated 5.11.1990 of the Lahore High Court, whereby her Writ Petition No.6253 of 1990 against the order of the Additional District Judge dated 7.6.1990 accepting the Revision Petition against order dated 5.9.1988 passed by the Civil Judge refusing to reject the plaint, was dismissed. The facts of the case, briefly stated, are that during the minority of the appellant, her mother was appointed as guardian by the Guardian Judge, both, for her person and property. During her minority, Mst. Nadira Moeen, her guardian, alienated the suit property in favour of defendants 1 to 3/respondents 2 to 4, vide mutatioin No.302 sanctioned on 29.11.1973, who, in their turn, sold the same in favour of the other defendants through different deeds as described in the plaint. The appellant had gone abroad for higher studies and on her return in the year 1984, she came to know of the alienation of her landed property, therefore, she instituted the present suit for declaration that the original sale vide mutation No.302 was illegal, void ab inilio and ineffective on her rights on account of the transaction having been entered into without the prior permission of the Guardian Judge and was not for the benefit of the minor or for legal necessity. A prayer for joint possession was also made. The defendants contested the suit and in their written statement raised several pleas including the plea of limitation and rejection of the plaint under Order VII Rule 11 of the C.P.C. Subsequently, a separate application dated 4.4.1987 was submitted to the Court for rejection of the plaint under Order VII Rule 11 which was resisted by the appellant and the learned trial Court vide its order dated 5.9.1988 came to the conclusion that limitation being mixed question of law and facts, could only be decided after framing the issues in the case, allowing opportunity to the parties to produce their evidence thereon and thereafter adjudication on merits, including the plea of limitation and in consequence, holding the application as premature, dismissed it. The Revision Petition was filed against it to the District Judge which was accepted vide order dated 7.6.1990 and by setting aside the order of the trial Court, the plaint was rejected under Order Vll Rule 11 C.P.C. The appellant challenged the same through a constitutional petition but could not succeed and hence the instant appeal. We have heard Mr. Ahmad Hassan Khan, Advocate, for the appellant, Ch.M.Hassan, Advocate, lor the respondents and have perused the record of the case. The only question for determination before us is whether the provisions of Order VII Rule 11 CPC were attracted in the present case or not. It would therefore, be advantageous to reproduce the said rule for convenience sake:- "11. Rejection of plaint. The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (ft) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law." It is apparent from the perusal of the above provision of law that the Court can reject a plaint if fronvthe statement of facts narrated therein, it finds that the suit is barred by time. We accordingly, perused the contents of the plaint but could not find any statement of fact justifying the application of Order VII Rule 11 CPC. The appellant was admittedly minor at the time of the original sale and was within her right to challenge the same on any ground available to her under the law after attaining majority. The period of limitation provided for a suit for declaration is six years from the accrual of cause of action, but it is by now well settled that every subsequent invasion on the rights of plaintiff affords fresh cause of action for the institution of suit. The subsequent alienations enumerated in the plaint by the original transferee took place within a period of six years from the institution of the suit and as such the lower forums have to take this into consideration while determining the plea of limitation regarding the prayer of the appellant for declaration. Moreover, the appellant has also prayed for joint possession for which the period of limitation prescribed is twelve years which commences from the time when the possession of the defendants became adverse. Obviously these important factors could not be gone into by the lower forums summarily without framing of an issue and allowing parties to produce evidence thereon. Further, there is no written deed evidencing the original transfer and since, as held by this Court in several judgments, mutations by themselves do not create title, the lower forums have also to determine whther any prayer for cancellation of mutation was at all necessary. The determination of the age of the appellant is also necessary for the decision of the point of limitation. In the circumstances, we are convinced that the trial Judge was perfectly justified in declining to reject the plaint summarily without proper evidence and the learned District Judge legally erred in upsetting his order. The learned High Court, too, failed to enter deep into the legal controversy and dismissed the Writ Petition. Resultantly, we accept the instant appeal, set aside the orders of Addl: District Judge as well as of the High Court and restore that of the trial Court and remand the case back to him for decision according to law on the merits of the case including the plea of limitation. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 207 PLJ 1992 SC 207 [Shariat Appellate Jurisdiction] Present: muhammad rafiq tarar, pir muhammad karam shah and maulana muhammad taqi usmani, members ALLAH DAD-Petitioner versus MUKHTAR and another-Respondents Criminal P.LA.No.24(S) of 1991, dismissed on 4.3.1992 (approved for reporting on 26.3.1992) [On appeal from judgment of Federal Shariat Court, dated 20.3.1991, passed in Criminal Revision No.56/I of 1990.] (i) Acquittal-- —Zina-Offence of-Trial for-Acquittal of respondents-Challenge to- According to definition of "Zina" given in Section 4 of Hudood Ordinance, offence of zina cannot be made out against a man and woman unless they "wilfully" have sexual intercourse without being validly married to each other-­ Held: espondents were entitled to acquittal because they have contracted marriage in accordance with Shariah and they had good reasons to believe that they are husband and wife. [P.213JG PLJ 1988 SC 151 rel. (ii) Iddat- —Zina-Offence of-Trial for-Acquittal of respondents-Challenge to- Contention that respondents having contracted marriage before expiry of 90 days of Iddat period, marriage is invalid-Period of Iddat laid down by Holy Quran is not 90 days, but three periods of menstruation which do not necessarily extend to 90 days-According to Hanafi Jurists, minimum period of menstruation is 3 days and minimum period qf "Tuhr" is 15 days—In light of' these principles, period of Iddat may be 39 days wherein it is possible for a woman to have three menstruations with two intervening periods of purity-­Respondents married to each other after 79 days from date of divorce—Held: This period is sufficient for completion of period of Iddat as mentioned in Holy Quran-Held further: If respondents have contracted marriage after completion of Iddat in accordance with Shariah, their marriage cannot be held as invalid nor can their cohabitation be termed as "Z/na"~Petition dismissed. [P.214]H&J (iii) Muslim Family Laws Ordinance, 1961 (WP Ord. VIII of 1961)-- —S.7 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 4 and preamble~Zina--Offence of-Trial for-Acquittal of respondents—Challenge to—Both title and preamble of Hudood Ordinance disclose real intention of law-maker to bring it in conformity with Injunctions of Islam-Words "validly married" occurring in definition of "zina" in Section 4 of Hudood Ordinance, have not been defined in Ordinance, therefore, definition will be sought from Injunctions of Islam—Held: If a marriage is valid in Shariah, it shall be held valid for purpose of Ordinance even though it is not recognised as valid in any other law for time being in force—Held further: Section 7 of Family Laws Ordinance cannot effect validity of marriage contracted according to Shariah to extent of criminal liability under Hudood Ordinance. [Pp.212&213]C,D&E (iv) Muslim Family Laws Ordinance, 1961 (W.P. Ord. VIII of 1961)-- —S.7 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10(2)—Zina—Offence of—Trial for—Acquittal of respondents-­ Challenge to-Contention that no notice under Section 7 of Family Laws Ordinance having been given by petitioner, divorce was not effective and respondents were committing adultery-Question of notice of Talaq was decided by all courts below in favour of respondents who held that even in absence of such notice, talaq had become effective-Held: Impugned judgment being based on law laid down in a judgment of Karachi High Court, needs no interference by Supreme Court especially in a case of acquittal. [Pp.211&212]A&B PLJ 1988 Karachi 355 and PLJ 1988 FSC 63 rel. (v) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S.10(2) read with Muslim Family Laws Ordinance, 1961, Section 7-Zina- Offence of-Trial for-Acquittal of respondents-Challenge to-Notice to Chairman is not mandatory under Injunctions of Islam—If a woman, after obtaining divorce from her husband, contracts second marriage with a third person, it cannot be held as invalid marriage at least for purpose of Hudood Ordinance-Held: Respondents having contracted Nikali after petitioner had divorced respondent No.2 even though he had not given notice to Chairman, divorce became effective in Shariah and marriage contracted thereafter, is a valid marriage and cohabitation of respondents cannot be held asz//ia. [P.213]F Mr. M. Kowkab Iqbal, AOR for Petitioner. Mr. M. Aslam Uns, Advocate, Supreme Court, for State. Date of hearing: 4.3.1992. judgment Maulana Muhammad Taqi Usmani, Member.--The petitioner seeks leave to appeal against the acquittal of Mukhtar son of Sher Khan and Mst. Rashida Akhtar (the respondents) recorded by both the Courts below. 2. The facts of the case briefly stated are that the petitioner filed a private complaint on 13.11.1982 against the respondents under Sections 10/16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, (hereinafter referred to as the Ordinance) in the Court of Ilaqa Magistrate, alleging that respondent No.2 was his legally wedded wife and that three children were born out of their wed-lock. She was, however, under the influence of respondent No.l for quite some time and under this influence, she went away from the house of the petitioner in the company of Mukhtar (respondent No.l) and was put in Dar-ul- Aman. She filed a suit for dissolution of marriage against the petitioner in the Family Court on 22.12.1979, but this suit was withdrawan by her on 2.6.1981. Later on, Mukhtar took away the said wife of the petitioner to his own house. It was alleged by the petitioner in the aforesaid complaint that both the respondents were living there in adultery. 3. On the basis of this complaint, the respondents were tried under Section 10(2) of the Ordinance and Mukhtar was also tried under Section 16 of the Ordinance, where both of them have taken the plea that they have contracted marriage between them after the petitioner had divorced respondent No.2 on 17.5.1981. 4. As mentioned in the complaint, Mst. Rashida Akhtar (respondent No.2) had filed a suit for dissolution of marriage on 22.12.1979 but on 2.6.1981 the same was withdrawn on the ground that the petitioner had divorced her orally and then through a divorce deed on 17.5.1981. 5. The petitioner had also filed a suit for restitution of conjugal rights on 5.4.1982 and got an ex-parte decree against respondent No.2, which was set aside on appeal. Thereafter, Mst. Rashida Akhtar filed a revision application before the Federal Shariat Court for staying the proceedings of criminal case against her. The Federal Shariat Court by its judgment dated 11.10.1984 passed the following order:- "Both the learned counsel for the private parties agree that the criminal case under Revision be transferred to another Additional Sessions Judge of Rawalpindi to be nominated by the learned Sessions Judge, Rawalpindi, where after the respondent shall move an application in the light of the observation made by Shariat Appellate Bench of Supreme Court in Muhammad Azam vs. Muhammad Iqbal and others (PLD 1984 S.C. 95) for the transfer of the civil case to the same Additional District and Sessions Judge trying the criminal case who shall first decide the civil matter .Order accordingly " 6. In pursuance of the above order, the suit for restitution of conjugal rights filed by the petitioner was proceeded first. The learned Family Court held the divorce deed dated 17.5.1981 as valid and dismissed the petitioner's suit for the restitution of conjugal rights on 14.4.1986. The petitioner filed a civil miscellaneous application in the Lahore High Court under Section 14 of the Family Courts Act, 1964, which was dismissed for non-prosecution on 10.1.1989. It seems that the petitioner did not proceed further in this respect and the judgment of the Family Court dated 14.4.1986 attained finality. 7. After the decision of the family suits, the criminal proceedings were re­ started and the learned Additional Sessions Judge by his judgment dated 7.7.1990 acquitted both the respondents. The petitioner then filed a revision application in the Federal Shariat Court, which was dismissed on 20.3.1991. Now he has directed this petition for special leave to appeal against that judgment of the Federal Shariat Court. 8. The basic question in this case is, whether the petitioner had divorced Mst. Rashida Akhtar (respondent No.2) and whether the Nikah of Mst. Rashida Akhtar with Mukhtar (respondent No.l) was valid or not? The Criminal Courts below have held the marriage as valid and have acquitted the respondents from the charge of Zina levelled against them by the petitioner. 9. The learned counsel for the petitioner, Mr. M. Kowkab Iqbal, vehemently argued that the judgments of the Courts below validating the divorce deed, alleged to be written by the petitioner, are clearly illegal and violative of the provisions of the Muslim Family Laws Ordinance (hereinafter referred to as the Family Laws Ordinance). According to Section 7 of the Family Laws Ordinance, no divorce can be effective by merely pronouncing the words of Talaq by the husband, but it is a mandatory requirement under the Family Laws Ordinance that a notice of Talaq must be given to the Chairman of the Union Council and the divorce cannot be effective unless 90 days have passed after the Chairman of the Union Council receives the said notice of Talaq. The learned counsel referred to a number of judgments of this Court whereby it was held consistently that without such a notice to the Chairman of the Union Council, the divorce cannot be held as effective and if the notice of Talaq has not been served to the Chairman, it will be a legal presumption that the husband has revoked the divorce. He referred to the famous case ofSyedAli Nawaz Gardezi vs. Lt. Col. Muhammad Yusuf (PLD 1963 S.C. 51) which was subsequently affirmed by the case of Abdul Mannan vs. Safumn Nessa (1970 S.C.M.R. 845) and a number of other cases where the notice of Talaq under Section 7 of the Family Laws Ordinance has been held as mandatory, without which a divorce cannot be deemed to be effective. He has also submitted that the petitioner has never served any notice to the Chairman of the Union Council for Talaq, so even if it is proved that the petitioner had divorced Mst. Rasiiida Akhtar orally or through a divorce deed, the same cannot be held as legally effective divorce because the mandatory provisions of Section 7 of the Family Laws Ordinance have not been complied with. He added that the alleged Nikah between the respondents without the divorce having been effective in the eyes of law cannot be treated as a valid marriage and since both the respondents are still living as husband and wife, it amounts to the commission of Zina and the charge of Section 10(2) of the Ordinance has been proved against them, and their acquittal is illegal. 10. We have paid due attention to the arguments advanced by the learned counsel for the petitioner, which seem apparently to have weight, yet a deeper study of the relevant Law as has developed during last few years brings out a picture totally different from what appears from the perusal of Section 7 of the Family Laws Ordinance. The arguments of the learned counsel, when looked at in this perspective, stand refuted on a number of grounds. 11. Firstly, the question of the effectiveness of the divorce and the validity of the marriage between the respondents has been examined by the Family Court, the Sessions Court and the Federal Shariat Court. The decisions of all the three Courts are unanimous on the point that the respondents have contracted a valid marriage after the petitioner divorced Mst. Rashida Akhtar. The question of the notice of Talaq to the Chairman under Section 7 of the Family Laws Ordinance was also decided by all these Courts in favour of the respondents, and it was held that even in the absence of such a notice, the Talaq has became effective. Reliance, in this respect, was placed on Article 2-A of the Constitution, as interpreted in the case of Mirza Qamar Raza vs. Mst. Tahira Begiim and others (PLT1988 Kar. 355). Article 2-A, inserted in the Constitution vide P.O.No.XIV of 1985 and affirmed by the Eighth Amendment of the Constitution, reads as follows:- "•2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly." 12. The legal effects of Article 2-A have been thoroughly examined in the case of Qamar Raza referred to above, and it was held therein that since the contents of the Objectives Resolution have been made a substantive part of the Constitution, the Superior Courts can declare a law ultra vires the Constitution if it is found to be violative of the Injunctions of Islam. It was further held in the case of Qamar Raza that ineffectiveness of Talaq in the absence of a notice to the Chairman, as envisaged by Section 7 of the Family Laws Ordinance, is against the Injunctions of Islam. 13. This view of the Karachi High Court was also upheld and affirmed by the Federal Shariat Court in the case of Muhammad Sarwar and Mst. Shahida Parveen vs. Vie State (PLJ 1988 F.S.C. 63), and it was on the basis of these judgments that the learned trial Court in this case dispensed with the requirements of Section 7 of the Family Laws Ordinance. The impugned judgment of the Federal Shariat Court in this case has upheld the decision of the trial Court and placed its reliance again on the cases of Mirza Qamar Raza and Muhammad Sarwar referred to above. 14. We have gone through the well-considered judgment of the Karachi High Court in the case of Mirza Qamar Raza and have found that the judgment is based on very sound reasoning, and the impugned judgments based on the law laid down by it need no interference by this Court, especially in a case of acquittal like the one in hand. 15. Secondly, the word 'Zina' for which the petitioner wants the respondents to be punished, has been defined in Section 4 of the Ordinance in the following words:- "A man and a woman are said to commit 'zina' if they wilfully have sexual intercourse without being validly married to each other." The above definition clearly contemplates that the sexual intercourse in the case of a valid marriage cannot be deemed to be 'zina'. Now the question arises, what is a valid marriage? As the term of 'valid marriage' has not been defined in the Ordinance, the same shall be construed in the light of the Islamic Injunctions keeping in view the intention of the law-maker as emerges from the title and the Preamble of the Ordinance, which read as follows:- "An Ordinance to bring in conformity with the Injunctions of Islam the law relating to the offence of 'zina'. WHEREAS it is necessary to modify the existing law relating to Zina so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah;" 16. Both the title and the Preamble of the Ordinance have disclosed the real intention of the Law Maker who wants to 'modify' the Law as it existed so as to bring it "in conformity with the Injunctions of Islam". All the provisions of the Ordinance, therefore, should be read and interpreted in the light of this title and Preamble and not defined in the Ordinance itself, must be construed and interpreted in accordance with the 'Injunctions of Isalm as set out in the Holy Ouran and Sunnah'. The words 'validly married' occurring in the definition of 'zina' in Section 4 of the Ordinance have not been defined in the Ordinance. The definition, therefore, will be sought from the Injunctions of Islam because the Ordinance intends to bring the existing Law relating to Zina in conformity with them. 17. Moreover, Section 3 of the Ordinance has given the provisions of the Ordinance an overriding effect on "any other law for the time being in force". 18. The logical result of this scheme of the provisions of the Ordinance is that if there is a clash between an existing law and the Injunctions of Islam with regard to the validity of a marriage, the Injunctions of Islam shall prevail for the purpose of this Ordinance. Thus, if a marriage is valid in Shariah, it shall be held valid for the purpose of this Ordinance, even though it is not recognised as valid in any other law for the time being in force. 19. Therefore, even if it is assumed that Section 7 of the Family Laws Ordinance is a good law, the same cannot effect the validity of a marriage contracted according to Shariah at least to the extent of the criminal liability envisaged in the Ordinance. 20. It is now evident that a notice of Talaq to the Chairman is not mandatory under the Injunctions of Islam and any divorce pronounced or written by a husband cannot be ineffective or invalid in Shariah merely because its notice has not been given to the Chairman, therefore, if a woman after obtaining a divorce from her husband and after the necessary period of 'Iddat; contracts a marriage with a third person, their marriage cannot be held as invalid marriage, at least for the purpose of the Ordinance. In the instant case, the respondents have contracted Nikah after the petitioner had divorced Mst. Rashida Akhtar (respondent No. 2), so even though the petitioner had not given a notice to the Chairman, the divorce became effective in Shariah and the marriage contracted thereafter is a valid marriage, especially for the purpose of the Ordinance and the cohabitation of the respondents cannot be held as ':ina'. 21. There is still another reason for the acquittal of the respondents. According to the definition given in Section 4 of the Ordinance, the offence of 'zina' cannot be made out against a man and woman unless they 'wilfully' have sexual intercourse without being validly married to each other. The word 'wilfully' has been interpreted in an earlier judgment of this Court in the case of Mst. Bashiran and another vs. Muhammad Hnssain and another (PLJ 1988 S.C. 151), where it was held that if a man and a woman have good reasons to believe bona fide that they are husband and wife, the commission of intercourse under this belief cannot be held as 'wilful' commission of 'zina'. On this score also the respondents deserve acquittal because they have contracted marriage in accordance with Shariah and they had good reasons to believe that they are husband and wile. 22. The learned counsel has thereafter raised another point and submitted that even if it is conceded that Allah Dad had divorced Mst. Rashida Akhtar on 17.5.1981 as alleged by the respondents, even then the Nikah between the respondents cannot be held as valid because it was admittedly performed on 5.8.1981 when 90 days had not been passed after the alleged divorce. Here again the learned counsel referred to Section 7 of the Family Laws Ordinance where the period of 'Iddat' has been given as 90 days. As the alleged Nikah, according to the learned counsel, was performed during the period of 'Iddat' of Mst. Rashida Akhtar, the same cannot be a valid marriage even in the eyes of Shariah. This point was also raised before the trial Court but was rejected on the ground that Nikah during the 'Iddat' of the former husband is only an irregular Nikah and is not void, but we do not agree with this finding of the trial Court, because, firstly a marriage contracted during the period of 'Iddat' is not merely an irregular marriage, it has been termed by the Muslim Jurists as Batil (void) (See Ibn Abidin: Raddul-Muhtar, Volume 2 page 482), and secondly, because even if it is helld to be irregular, it is still an invalid marriage, for both the irregular (Fasid) and void (Batil) marriages fall hi the category of 'invalid marriage' (See Ibn Abidin Volume 2 page 835). 23. However, the point raised by the learned counsel does not still help him in this case. The real period of 'Iddat' according to the Holy Quran is mentioned in the Surah Al-Baqara: (2: 228): "And the divorced woman shall wait for three periods of menstruations". 24. According to this verse, the period of 'Iddat' laid down by the Holy Quran is not 90 days. It is rather three periods of menstruations which do not necessarily extend to 90 days. Accordingly to Hanafi Jurists, the minimum period of menstruation is 3 days and the minimum period of Tuhr' (period of purity) is 15 days (See Al-Fatawa Al-Alamgiria, Volume 1 at pages 36 & 37 Book I Chapter 6), 25. In the light of these principles, the minimum period of 'Iddat' may be 39 days because this is the period in which it is possible for a woman to have three menstruations with two intervening periods of purity. It is thus clear that .a marriage performed after 39 days from the divorce can be a valid marriage according to Shariah if the woman has passed through three periods of menstruations during this period. In the instant case, the respondents married to each other after 79 days from the date of divorce given by Allah Dad, the petitioner. This period is sufficient for the completion of the period of 'Iddat' as mentioned in the Holy Quran because it is quite possible that Mst. Rashida Akhtar had passed through three periods of menses within 79 days, and there is nothing on the record to show that she did not complete three menses during these days. There is no provision whatsoever in the Holy Quran or in the Sunnah of the Holy Prophet (Peace Be Upon Him) which declares 90, days as 'Iddat' except for thsoe women who either stopped menstruating due to old age, or did not start menstruating on account of their minority, only their 'Iddat' has been mentioned in the Holy Quran as three (lunar) months; (See Alquran 65:4). Therefore, for the reasons detailed in paras 14 to 24 of this judgment, if the respondents have contracted marriage after the completion of the period of 'Iddat' in accordance with Shariah, their marriage cannot be held as inavlid nor can their cohabitation be termed as 'zina'. Thus the order of acquittal of the respondents as recorded by the Additional Sessions Judge or the Federal Shariat Court is fully justified and no interference by this Court is called for. 26. In the light of what has been mentioned above, this petition is without force and is hereby dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 215 PLJ 1992 SC 215 [Appellate Jurisdiction] Present: muhammad AFZAL ZuLLAH, CJ and wali muhammad khan, j ABDUL GHAFOOR and 3 others-Petitioners versus THE STATE-Respondent Criminal Petition No. 40 of 1991, dismissed on 23.2.1992 (approved for reporting on 17.3.1992). [On appeal from judgment dated 28.5.1991, of Lahore High Court, Rawalpindi Bench, in Crl. Appeal No. 90 of 1989.] (i) Compromise— —Murder—Offence of—Conviction for—Challenge to—Applications for compromise and filling of proforma prescribed by Supreme Court should be taken more seriously by parties and learned Members of Bar-A note of warning is for parties concerned that any doubt with regard to free will of parties in entering into a compromise, shall have to be resolved against acceptance of compromise-Only that compromise would qualify for acceptance which is above even' blemish, mild or strong—Office has pointed out certain defects in purported compromise and learned counsel for petitioners had to agree that some defects being valid, there would be no scope at all for acceptance of compromise—Compromise rejected. [Pp.217&218]B,C&D (ii) Intention to kill-- —Murder-Offence of-Conviction for-Challenge to-Contention that there was no intention to kill as main enemy namely Ghulam Sarwar was not fired at again after he having suffered an injury, had fallen down-Held: Very fact that Ghulam Sarwar was fired at with a .12 bore gun, is sufficient indication of fact that there was no other intention except to kill adversary—Held further: Common intention also stands fully proved by conduct of accused/convicts in firing at their adversaries with lethel weapons like .12 bore guns-Petition dismissed. [P.217]A Kit. Muhammad Yusitf Saraf, Advocate, Supreme Court, and Mr. Ejaz Muhammad Klian, AOR for Petitioners. Mr. M. Ayub Bokhari, Advocate, Supreme Court, and Ch. Akhtar AH, AOR for Complainant.

Nemo for respondent. Date of hearing: 23.2.1992. order Muhammad Afzal Zullah, CJ--Leave to appeal has been sought in this criminal matter. It has arisen out of a case of murder wherein hurt of various kinds was also caused to the witnesses. The prosecution case as contained in the deposition of Ghulam Sarwar complainant is as follows:- "I reside at Dhoke Sumandar Khan of village Bolianwal which is at a distance of about one furlong from village Bolianwal towards East. I had contested election against Muhammad Ashraf accused in the previous local bodies elections and I had won. Muhammad Ashraf had been causing hindrances in our development works due to his grudge of his loosing election. On 4.5.1988 at about 5.00 p.m. I alongwith my nephew Anwaar Ahmad were coming back to our dhok after cutting wheat crop. When we reached near Garrage of Malik Mansab Khan we saw accused Muhammad Ashraf armed with .12 bore gun, Muhammad Taj also armed with .12 bore gun, Muhammad Afzal armed with .12 bore gun, Abdul Ghafoor armed with .12 bore gun, Wairs Khan armed with his spear, Abdul Khanan, Rehmat Khan and Muhammad Khan were also armed with spears. On seeing us they raised a Lalkara that they will not spare us. Muhammad Ashraf fired with his .12 bore gun hitting me on the right leg, Muhammad Taj also fired with .12 bore gun hitting Anwaar Ahmad my nephew on the right side of his mouth/face. Afzal accused also fired with his .12 bore gun hitting Anwaar Ahmad on the left leg. In the meanwhile, Faraq Sultan widow of Sher Ahmad who is my paternal cousin and Mst. Sardar Khanam my maternal aunt who is also my paternal cousin reached the spot. Faraq Sultan had come from her house whereas Sardar Khanam had come from her field or from some where else. Muhammad Taj accused fired at Mst. Faraq with his .12 bore gun hitting her on her face, nose and eyes. Abdul Ghafoor also fired with his gun hitting Mst. Faraq Sultan on chest belly and left thigh. Abdul Ghafoor again fired hitting Sardar Khanam on the right side of her head near the right ear, due to which she fell down. Due to hue and cry raised by us many people attracted the spot seeing them the accused ran away by firing in the air. After the occurrence we were taken to civil hospital Attock where Mst. Sardar Khanam succubmed to the injuries when she was being taken on structure. In the meanwhile police had reached in the hospital. I got recorded my statement Ex. PD which was read over to me by Ghulam Habib S.I. and I signed the same as token of its correctness. Afterwards I alongwith other injured were medically examined. They had murdered Sardar Khanam and injured us due to election rivalry". This version was supported by other ocular evidence including the deposition of the injured witnesses. The trial Court rejected the plea of bare denial by the petitioners and their co-accused. The trial ended in conviction of the four petitioners. The remaining accused were acquitted. On appeal in the High Court the sentence of death awarded to Abdul Ghafoor was reduced to life imprisonment as was awarded to the other convicts. The other sentences including the imprisonment and fine were also awarded.. Learned counsel after loosing the plea for acquittal of the accused on acceptance of a compromise, when arguing the case on merits, contended that notwithstanding the firing by the accused at the deceased and the witnesses it could not at all be assumed that there was an intention to kill. We are unable to accept this extra ordinary plea in a case like the present one. The only circumstance that he could press with some confidence was that in so far as the main enemy; namely, Ghulam Sarwar is concerned he was not fired at again after he having suffered an injury had fallen on the ground. Although this circumstance also is fully explained, the very fact that Ghulam Sarwar was fired at with a .12 bore gun as in this case is sufficient indication of the fact that there was no other intention except to kill the adversary. The fact that Ghulam Sarwar did not die is hardly an argument to help the petitioners. In such like cases sometime providential intervention in the form of body resistance and re-action frustrate the design and effort of the accused. Argument of learned counsel thus fails. Same consideration would be applicable to a subsidiary argument advanced by the learned counsel to the effect that there was no proof that all the accused/convicts acted in furtherance of common intention of all. That also stands fully proved by their conduct in firing at their adversaries with lethal weapons like .12 bore guns. Thus there is no force in this petition and the same is dismissed. Before closing this order it needs to be mentioned that the applications for compromise and the filling of the proforma prescribed by this Court should be taken more seriously by the parties and the learned Members of the Bar than what has been experienced so far. One after the other the Court has encountered most casual attention being paid to the requirements contained in the proforma. Obviously without satisfaction of the Court for which three stages have been prescribed no compromise can be accepted for it being acted upon: 1. Careful scrutiny by the office as a "first stage. It shall in such case" refuse to entertain any application for compromise in which the proforma is not meticulously and carefully studied and filled in with refarence to the peculiar circumstances of each case. 2. The second stage is the processing in Chamber by one of the learned Judges of the Court. This facility has been provided so as to save the time of the parties and the Court and if there are any short comings the same may be removed in Chamber hearing. It has also been laid down that the parties shall have to satisfy the learned Judge in Chamber with regard to the correctness of each entry in the proforma with reference to the facts and circumstances of the case and the law applicable thereto including the latest precedent law. And in token thereof the learned Judge would certify correctness of each column separately. The office has been directed not to put up a case in the Court for disposal on the basis of compromise unless the above conditions are satisfied. 3. Lastly in the Court only that compromise will be accepted and acted upon regarding which there is no doubt or dispute left any more. If it is a matter of contrivances through which a party has to be subjected to compromise, it will be no compromise at all. A note of caution and warning is for the parties concerned that any doubt with regard to the free will of the parties in entering into a compromise in cases like the present one shall have to be resolved against the acceptance of the compromise; because, it is not a question of the punishment of an accused as a result of the compromise that benefit of a doubt may be given to the accused. On the contrary it is an accused/convict who seeks the favour of the other party. And if he is unable to satisfy the other party on all questions relating to compromise (which becomes a contract) that it is free from blemish and doubt, it cannot be accepted. Similarly, if the Court has any doubt whatsoever that the compromise is tainted with pressure, coercion, undue influence, blackmail, extorsion or similar other infirmities, it shall have to be rejected without much of arguments or discussion. Because only that compromise would qualify for acceptance which is above every blemish, mild or strong In this case even the Court Associate and Research Assistant have pointed out certain defects discovered by them in the purported compromise submitted in the form of the application and the proforma. The objections are appended herewith as a Schedule to this judgment. Even if some and not all of the objections are valid, which after some discussion the learned counsell for the petitioners had to agree are valid, there would be no scope at all for acceptance of the compromise. Accordingly, we rejected the plea for acceptance of the compromise after a short summary preliminary hearing on this question and then the learned counsel argued the case on merits. Leave to appeal thus is refused. (MBC) (Approved for reporting) Petition dismissed SCHEDULE (Objection by Court Staff) The compromise suffers from following defects:- Column 5(a) Silver rate not mentioned. 5(b) If trie rate was not known how its price i.e. Rs. 1,80,000 for 30,630 grams of silver is mentioned. 6. Against this column the shares of minors is (?) not mentioned as required under section 309 (1) (a) and (b) PPC. Specially when they were mentioned against column No. 8. This column should not has (?) been filled as "XXXXXX". 7. No relationship of injured persons mentioned in column 7 at S.No. 7, 8 & 9 is shown with the victim. They are not mentioned in the certificate at page 91 as heirs of the victim. It is necessary to mention in the proforma whether they have waived their right of Qisas as injured persons or as heirs of the victim. It is also not mentioned whether they are entitled to Diyat, Arsh or Daman and under which provisions of law and what is the amount of diyat, Arsh or Damn, because it is necessary to mention in case of Arsh in column 7 (b) and in case of Damn in column 7 (c) the same is not mentioned in the said columns. It is mentioned in their affidavits that they have waived their right of Qisas but this fact has not been shown in the proforma. 8. Names of minors are given but it is not stated in the proforma that minor can not waive himself or through his guardian under Section 309 (a) & (b~) PPC. 8 (a) Not filled properly. 9. The Diyat amount not shown whether it is deposited in the account of minors. The share of Diyat of one of the real sister who has not waived her right of Qisas is not stated as it is necessary under Section 309 (2) PPC. The amount of Diyat to the extent of her share should have been stated in column 7 (a) of the proforma.

PLJ 1992 SC 219 PLJ 1992 SC 219 [Appellate Jurisdiction] Present: AJMAL MIAN, SAJJAD ALI SHAH AND SALEEM AKHTAR, JJ Haji MUHAMMAD SHAFI and others-Appellants versus WEALTH TAX OFFICER and others-Respondents Civil Appeal No.823-K of 1990, dismissed on 16.2.1992. [On appeal from judgment and order of High Court of Sindh, dated 3.11.1988, passed in C.P.No.D-364 of 1984.] (i) Wealth Tax Act, 1963 (XV of 1963)-- —S.3~Wealth Tax—Imposition of—Challenge to—Contention that appellant is required to pay Wealth Tax as well as tax under West Pakistan Urban Immovable Property Tax Act, which is case of double jeopardy-This expression is inappropriate as at best it can be a case of double taxation which cannot be treated as illegal unless double taxation is prohibited by law-Held: Imposition of both taxes does not amount to double taxation on same property as nature, object and purpose of both Acts issued by two different legislatures exercising powers within their constitutional authority, are different-Appeal dismissed. [Pp.225&226]C,D&E AIR 1970 SC 778 and AIR 1979 SC 321 rel. Corpus Juris Secondum, Vol.84 ref. (ii) Wealth Tax Act, 1963 (XV of 1963)-- —S.3-read with Constitution of Pakistan, 1973, Arts.141 & 142 and item 50 of Fourth Schedule-Wealth Tax-Imposition of~Challenge to~Contention that capital value of assets means gross value without deducting liabilities and as Section 3 of Act only speaks of net value of assets which means after excluding liabilities, same is not covered by item 50 of Fourth Schedule to Constitution- Act has provided a mechanism for imposing and calculating tax on capital assets-Section 3 denotes which part of capital value shall be taken into consideration for purpose of charging wealth tax-Held: In order to calculate tax, aggregate value of liabilities and debts are to be deducted from aggregate value of assets and excess so calculated has been termed as "net wealth" on which tax is calculated at specified rate. [Pp.222,224&225]A&B Mr.Nasim Ahmad Klian, Advocate, Supreme Court, and Mr. M.SIiabbir Ghaitiy, AOR for Appellants. Mr.Nasmllah Awan, Advocate, Supreme Court, and Mr, M.I. Qami, AOR for Respondents. Mr. Aziz A. Munshi, Attorney General for Pakistan , with Mr. Nizam Ahmad, Deputy Attorney General for Pakistan , on Court notice. Date of hearing: 16.2.1992. judgment Saleem Akhtar, J.-The appellants jointly own property bearing No.CL 5/11, Civil Lines, Saddar, Karachi , known as Shafi Chambers. It was subjected to wealth tax in their hands in the status of an Association of Persons as one unit. The demands raised for the assessment years 1979-80, 1980-81, 1981-82 ad 1982-83 have been paid but the demand for the charge year 1983-84 was partly paid and partly it was recovered by coercive proceedings leaving some balance due at the time when petition was filed in the High Court. The respondent filed a constitution petition in 1984 challenging the vires of Wealth Tax Act on the ground that it is ultravires the Constitution. And also on the plea that the tax has been imposed by the Federation under Wealth Tax Act as well as by the Province under the West Pakistan Urban Immovable Property Tax Act, 1958, on the same immovable property, which cannot be subjected to tax twice. By the impugned judgment the Constitution Petition was dismissed. Leave to appeal was granted to consider the following questions: "1. Whether Wealth Tax Act, 1963, is ultra vires of the Constitution. 2. Whether in view of the fact that the tax is imposed by the Federation under Wealth Tax Act, 1963, as well as by the Province under West Pakistan Urban Immovable Property Tax Act, 1958, on the same immovable property, this is the case of double jeopardy and, thus, illegal". 2. Mr.Nasim Ahmad Khan, the learned Advocate for the appellants, has contended that the Wealth Tax Act is beyond the legislative competency as under Item 50 of the Fourth Schedule of the Constitution called Federal Legislative List read with Articles 141 and 142 of the Constitution the tax can be levied on capital value of the assets whereas (under) Section 3 of the Wealth Tax Act, hereinafter referred to as 'the Act', the tax has been charged on the net value of the assets. Item 50 reads as follows:— "50 Taxes on the capital value of assets not including taxes on capital gains on immoveable property". Section 3 of the Wealth Tax Act which is the charging Section reads as follows:-- . "3. Charge of Wealth Tax: Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of July, 1963, as a tax (hereinafter referred to as wealth tax) in respect of the net wealth on the corresponding valuation date of every individual (Hindu undivided family, firm, association of persons or body of individuals, whether incorporated or not, and company) at the rate or rates specified in the Schedule. The term 'net wealth' has been defined by Section 2(m) and reads as follows:-- "2(/7!)--'net wealth' means the amount by which the aggregate value computed in accordance with the provisions of this Act of all assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under the Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than- (/) debts which under Section 6 are not to be taken into account; and (//') debts which are secured on, or which have been incurred in relation to, any asset in respect of which wealth tax is not payable under this Act: Explanation: For the purposes of this clause- (/) any property, other than agricultural land, owned by any minor child of the assessee shall be deemed to belong to the assessee; and (//') 'assessee' shall be the (parent) determined by the Wealth Tax Officer. (Hi) where the right, title or interest to or in any immovable property other than agricultural land vests in more than one person, such person shall, in respect of such property, be assessed as an association of persons and the value of such right, title or interest, shall not be included in the net wealth of an individual. Provided Wealth Tax is charged on such right, title or interest". In order to illustrate the meaning of the words 'net wealth' the learned counsel for the appellant referred to Sanaullah Woolen Mills Limited & another v. Monopoly Control Authority, PLD 1987 SC 202, where the meaning of the term 'value of assets' as defined in the Monopolies and Restrictive Trade Practices (Control & Prevention) Ordinance, 1970, has been held to be as follows:— "In this background 1 will dwel on the meaning of the term 'value of assets' appearing in the definition clause. The word 'means' has no other significance but that, that the word 'assets' has to be given its ordinary meaning and not to be understood as having any extended meaning which the word 'includes' conveys. The word 'asset' is generally used in collective plural and in commercial law it denotes the aggregate of available property, stock in trade, cash etc. belonging to a merchant or mercantile company. (Black's Law Dictionary Revised Fourth Edition, Page 151). It is also used to signify the means which a person or a bank or a corporation has as compared with his/its liabilities, that is, its identity is separate and is not inclusive of debts or liabilities but is only comparable to them. It is in this sense that the word 'assets' has been used to denote a 'complete whole' of the property. Any other meaning given to it will be against the verbal expression of the legislature, and would defeat the very purpose of the legislation". According to Mr.Nasim Ahmad Khan, (expression) 'capital value of asset' means gross value without deducting liabilities and as Section 3 of the Act only speaks of net value of assets which means after excluding the liabilities the same is not covered by item 50. The judgment quoted by the learned counsel for the appellant was in respect of a Statute in which value of asset had been defined. In any event if the said meaning is taken into consideration for the purposes of the argument advanced it will hardly improve the appellant's case. In the High Court as well as before us the learned counsel has entirely relied upon the judgment of the Supreme Court of India in union of India v. Harbhajan Singh Dhillon (1972) 83 ITR 582. The Supreme Court of India while declaring Wealth Tax Act ultravires ihc Constitution of India and referring to Entry No.86, List 1, which provided for taxes on capital value of the assets observed that there is a distinction between true net wealth and a tax which can be levied under Entry No.86 (which is partly similar to Entry No.50) and further that it was not incumbent on the appellant to provide for deduction of debts in ascertaining the capital value of the assets, as the entry is not strictly concerned with tax on net wealth nor it provides for deduction of debts and liabilities. It, also, observed that under Entry No.86 a tax is to be levied on the capital value of the assets of an individual and deduction of debts in order to determine the capital value of the assets of any individual or company is not permissible. 3. The learned Bench of the High Court of Sindh for valid reasons disagreed with the observations made in this judgment. The judgment of the Indian Supreme Court was thoroughly analysed and it was pointed out that the appeal to the Supreme Court arose from the judgment of the Punjab and Haryana High Court passed in a writ petition by which an amendment made by the Finance Act was challenged as the value of agricultural land which has been excluded from item 86 of List 1 of the Indian Constitution was subjected to wealth tax. Therefore, the entire case was to be dealt with reference to amendment made by the Finance Act and to that extent it was hit by the Constitution. The learned Judges in the impugned judgment first analysed the provisions of the Act and observed as follows:-- "Firstly we are unable to find any material difference between the concept of taxation under Section 3 of the Act and Entry No.50 of the Federal Legislative List of Constitution and on the above ground. The underlying object of aggregation of all the properties of an assessee for the purposes of levy of tax is common both in Section 3 of the Act as well as under Entry No.50 of the Federal Legislative List of the Constitution. The fact that the authorities while providing for determination of tax liability of an assessee under the Act, allowed deduction of all his outstanding liabilities from the aggregate value of his assets has no bearing on the character or nature of the tax. This feature of the Act only indicates a mechanism or method provided under the Act lor calculation of the tax liability of an assessee under it which certainly cannot affect or change the character or nature of the tax. There is no justification for the above reasons to hold that the tax levied under Section 3 of the Act on the 'net wealth' is in any manner different from the tax on the capital value of the assets as contemplated by Entry No.50 of the Federal Legislative List of Constitution. There are no words in Entry No.50 of the Federal Legislative List of Constitution which could be interpreted as placing any fetter on the power of legislature while providing for tax on the capital value of assets of a person, to allow deduction of liabilities outstanding against him from the value of the assets". Referring to the reasons which had compelled the Supreme Court of India to take a different view out of which only one reason was relevant for purposes of the case under consideration, the following observation was made:"However, we may examine here the first reason as it may be relevant on account of similarity of Entry No.86 of Indian Constitution with Entry No.50 of Federal Legislative List of our Constitution to the extent that both contemplate tax 'on capital value of the assets'. The above reasoning proceeds on the assumption that the parliament while legislating in respect of tax on capital value of assets is not obliged to provide for deduction of debts in ascertaining the capital value of assets. With utmost respect the above reasoning cannot lead to conclusion that the parliament while legislating in respect of Entry No.50 of Federal Legislative List of our Constitution could not allow deduction of debts in ascertaining the capital value of assets. On the contrary this shows that there are no such fetters on the powers of parliament while legislating in respect of tax on capital value of assets under Entry No.50 of Federal Legislative List of our Constitution. We are, therefore, unable to agree with the contention that because it was not incumbent on the parliament while legislating in respect of tax under Entry No.50 of Federal Legislative List of Constitution to provide for deduction of debts in ascertaining the capital value of assets and that they did allow such deductioh under the Act, therefore, the nature of tax levied under the Act should be held different from the concept of taxation under Entry No.50 of Federal Legislative List of the Constitution. The effect of allowing deduction of debts in ascertaining the value of assets under the Act has been dealt with at length earlier in this order by us and need not be repeated here again. Suffice it to say that the fact that the legislature had allowed deduction of debts under the Act in ascertaining the capital value of assets could in no way change the nature of tax which is contemplated under Entry No.50 of Federal Legislative List of Constitution". 4. We are in full agreement with the observation made by the learned Judges of the High Court. Item 50 of the Fourth Schedule provides for tax on capital value of the assets not including taxes on capital gain on immoveable property. Therefore, tax on capital value of assets can be levied which is not disputed at all. Wealth Tax is one of those taxes which intends to subject the assets to taxation. It is nobody's case that the Wealth Tax Act does not charge the assets. The Act has provided a mechanism for imposing and calculating the tax on capital assets. The provision for calculating such tax is provided by the Act. Section 3 denotes which part of the capital value shall be taken into consideration for the purpose of charging wealth tax. It is nobody's case that the net value of assets is not a part of the capital value. The capital value of the assets includes the net value of the assets. The definition of the net wealth under Section 2(m) clearly provides that first the aggregate value of all the assets belonging to the assessee has to be taken into consideration. This is the basis for charging the tax. Now, in order to calculate the tax the aggregate value of liabilities and debts are to be deducted from the aggregate value of assets and the excess so calculated has been termed as 'net wealth' on which tax is calculated at the specified rate. This process of calculating the tax does not exclude the capital value of assets from wealth tax charged under Section 3. 5. The next contention is that on the same property the appellant is required to pay tax twice namely wealth tax and tax under the West Pakistan Urban Immovable Property Tax Act. The learned counsel calls it a case of double jeopardy. This expression seems to be inappropriate. At best it can be a case of double taxation. Wealth Tax is a Federal Tax imposed under law whereas West Pakistan Urban property Tax is a provincial tax imposed on the rental value of the property and not on the value of assets of the assessee. Unless double taxation is prohibited by law it cannot be treated illegal. Reference can be made to M/s. Jain Bros and others v. Union of India & others, AIR 1970 SC 778 where it was observed as follows:-- "It is not disputed that there can be double taxation if the legislature has distinctly enaaed it. It is only when there are general words of taxation and they have to be interpreted they cannot be so interpreted as to tax the subject twice over to the same tax (vide Channel, J. in Stevens v. Ttie Durban-Rodde Poort Gold Mining C. Ltd. (1909) 5 Tax Cas 402. The Constitution does not contain any prohibition against double taxation even if it be assumed that such a taxation is involved in the case of a firm and its partners after the amendment of Section 23(5) by the Act of 1956. Nor is there any other enactment which interdicts such taxation any, double taxation is involved the legislature itself has in express words, sanctioned it. It is not open to anyone thereafter to involve the general principles that the subject cannot be taxed twice over". Reference can also be made to Arvinder Singh v. State of Punjab, AIR 1979 SC 321, where it was observed: "There is nothing in Article 265 of the Constitution from which one can spell out the Constitution vice called Double Taxation if on the same subject matter the legislature chose to levy tax twice over. There is no inherent invalidity in the physical adventure where other provisions exist." It is, thus, clear that unless there is any prohibition or restriction on the power of the legislature to impose a tax twice on the same subject matter, double taxation cannot be declared illegal or void though it may be oppressive and inequitable. Unless there is a clear law imposing tax twice merely by implication tax cannot be imposed twice over. There should be a clear and specific provision to that effect. In Corpus Juris Secundum, Volume 84, it has been stated: "Double taxation should not be permitted unless the legislature has authority to impose it. However, since the taxing power is exclusively a legislative function, as discussed supra and since, except as it is limited or restrained by constitutional provisions, it is absolute and unlimited, as considered supra 4, it is generally held that there is nothing, in the absence of any express or implied constitutional prohibition against double taxation, to prevent the imposition of more than one tax on property within the jurisdiction as the power to tax twice is so simple as the power to tax once. In such case whether or not there shall be double taxation is a matter within the discretion of the legislature". We are, therefore, of the view that imposition of both the taxes referred does not amount to double taxation on the same property as the nature, object and purpose of both the Acts are different, issued by two different legislatures exercising power within their constitutional authority. We, therefore, dismiss the appeal with no or^er as to cost. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 226 PLJ 1992 SC 226 [Appellate Jurisdiction] Present: MUAHMMAD afzal zullah, CJ, abdul shakurul salam and abdul qadeer chaudhry, JJ CRESCENT SUGAR MILLS AND DISTILLARY LTD-Appellant versus ASSISTANT COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS and others-Respondents Civil Appeal No. 218 of 1990, decided on 22.1.1992 (Approved for reporting on 16.2.1992) [On appeal from judgment and order of Lahore High Court, dated 22.4.1989, passed in W.P. No. 4802 of 1986] Additional Duty-- —Monthly instalments of Central Excise Duty-Failure to deposit-Show cause notice why additional duty be not recovered-Challenge to-Under Rule 5 (3) of Excise Duty on Production Capacity (Sugar) Rules, 1972, monthly instalment is to be paid by last date of each month and if not done so, manufacturer shall pay additional duty-No action under Section 37 (3) of Central Excise and Salt Act, 1944 has been taken in this case—Held: Additional duty has already been prescribed under Rule 5 (3) of Rules 1972 which is not penalty, and it does not need any adjudication as a penalty. [P.228JA&B Mr. Zaheer Ahmad Khan, Advocate, Supreme Court and Mr. Ejaz Ahmad Khan, AOR for Appellant. Ch. M. Farooq, Deputy Attorney General for Respondents. Date of hearing: 22.1.1992 / judgment Abdul Qadeer Chaudhry, J--This appeal by leave of the Court is directed against the judgment dated 22.4.1989 of the High Court. 2. The facts of the case are that the appellant failed to deposit the monthly instalments of Central Excise Duty on the basis of production capacity for the financial years 1972-73, 1973-74, 1974-75 and 1977-78. The Assistant Collector of Central Excise, Faisalabad , issued notice to the appellant on 30.11.1978 to show cause why additional excise duty should not be recovered from him under rule 10 of the Central Excise Rules, 1944. The appellant replied to the show cause notice. The Assistant Collector on 12.1.1979 dismissed the representation of the appellant holding that they were liable to pay the amount as additional excise duty under rule 5 (3) of the Production Capacity (Sugar) Rules, 1972. This order was maintained upto the Central Board of Revenue. His Constitution Petition was dismissed by the High Court by the impugned judgment. The High Court observed that the additional duty due or short paid was recoverable under rule 10 of the Central Excise Rules. 1944 and Section 33 is not applicable. The learned counsel for the appellant raised the same contention which has been properly dealt with by the High Court. The main thrust of the argument of the learned counsel is that the demand made by the respondent is a penalty and unless it is adjudicated upon by a competent authority authorised under Section 33 of the Act, no demand could be made from the appellant. This contention has no force. Rule 5 of the Excise Duty on Production Capacity (Sugar) Rules, 1972 provides as under:- "5. (1) The annual amount of duty leviable in accordance with rule 3 for a financial year shall be paid in twelve equal monthly instalments. (2) The proper officer shall deliver to the manufacturer a demand notice for the amount of duty due from the manufacturer under these rules, indicating both the total amount of duty for the financial year and the amount of the monthly instalment. (3) The monthly instalments shall be paid by the last day of each month. If the full instalment of duty is not paid by the due date, the manufacturer shall, without prejudice to any other action that may be taken under the Act or the Central Excise Rules, 1944, but subject to the provisions of subsection (3) of Section 37 of the Act, pay an additional duty of- (a) 1% of the duty due if the payment is delayed by a month or part thereof; (b) 2% of the duty due if the payment is delayed by more than a month but not more than two months; (c) 3% of the duty due if the payment is delayed by more than 2 months but not more than three months; (d) 4% of the duty due if the payment is delayed by more than three months but not more than 4 months; (e) 5% of the duty due if the payment is delayed by more than 4 months but not more than 5 months; (/) 6% of the duty due if the payment is delayed by more than 5 months but not more than 6 months; and (g) 10% of the duty due if the payment is delayed by more than 6 months." 3. Sub-rule (3) states that the monthly instalments shall be paid by the last day of each month, and if the full instalment is not paid the manufacturer shall pay the additional duty. This is a self executing provision. Liability has already been determined by the Rule. It clearly lays down that in case of default, an additional duty shall be paid. This is not a penalty. It is not to be adjudicated before a demand notice is issued. Sub-rule (3) further provides that besides the additional duty any other action may be taken subject to the provisions of sub­ section (3) of Section 37 of the Act. An action u/s 37 is independent of the additional duty. It is not the case of the appellant that any other action has been taken against him. Section 37 (3) of the Central Excises & Salt Act, 1944 reads as follows:- "37. Power of Central Board of Revenue to make rules (1) xxx xx xx (2) xxx xx xx (3) In making rules under this section, the Central Board of Revenue may provide that any person committing a breach of any rule shall, without prejudice to any other action that may be taken against him under this Act, be liable to a penalty not exceeding two thousand rupees or ten times the amount of duty involved whichever is greater and that any article in respect of which any such breach is committed shall be confiscated." 4. According to S. 37 (3) of the Act, a penalty can be imposed. But no action in the present case has been taken under the Act. The appellant is manufacturing the Sugar and is liable to the excise duty on production capacity. The additional duty has already been prescribed under rule 5 (3) therefore, it does not need any ladjudication as a penalty. Section 33 of the Act is, therefore, not applicable. 5. Learned Counsel for the appellant submitted that abatements claims of the appellant are pending disposal before the respondent No. 3, for a 'ong time, therefore, the additional duty could not be recovered. The claim of the appellant is not co-related with the additional duty claimed by the respondents in the present case. The learned counsel for the appellant has submitted that he had already deposited the additional duty but his case has not been disposed of by the respondents. The respondent No. 3 is directed to dispose of the claim of the appellant as early as possible. 6. The appeal is disposed of having no merits. There will be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 229 PLJ 1992 SC 229 [Appellate Jurisdiction] Present: SHAF1UR RAHMAN, ABDUL SRAKURUL SALAM A\D RUSTAM S. SlDHWA, JJ KHALILUR REHMAN KHAN and 5 others-Petitioners versus MUHAMMAD ALI MIRZA, S.S.P., MULTAN and another-Respondents Civil Petition No. 114 of 1991, dismissed on 4.2.1992. [On appeal from judgment of Federal Service Tribunal, Islamabad , dated 14.4.1991, passed in Appeal No. 341 (R) of 1990.] Seniority-- —Police Service of Pakistan-Seniority from date prior to encadrement-Grant of-Such seniority set aside by Service Tribunal-Challenge to~Neither budgeted posts were worked out nor availability of cadre posts in August, 1980 when petitioners were shown to have been inducted in seniority list-Held: Judgment given in Ghulam Ahmad vs. Federation of Pakistan and two others (reported as PLJ 1992 SC 237) explains position of promotees and their claim to seniority. [P.232]A&B PLJ 1992 SC 237 and PLD 1970 SC 203 rel. Mr. K.MA. Samdani, Advocate, Supreme Court, instructed by Ch. Akhtar Ali, AOR (absent) for Petitioners. Sh. Muhammad Akram, Advocate Supreme Court, instructed by Ch. Ghulam Dastgir, AOR (absent) for Respondent No. 1. Respondent No. 2: Not represented. Date of hearing: 4.2.1992. judgment Shafiur Rahman, J.--The petitioners seek leave to appeal under Article 212 (3) of the Constitution against the judgment of the Federal Service Tribunal dated 14.4.1991 whereby the assignment of seniority to them from a date prior to their encadrement in Police Service of Pakistan was held to be without justification in law and the notification giving effect to it, dated 21.2.1990, was set aside without prejudice to reprocessing of the encadrement of the respondents No.2 to 7 before the Service Tribunal (now petitioners) in the Police Service of Pakistan and consequential determination of their seniority. 2. The petitioners belong to a Group which has come to be known in the Punjab as Sergeants Group, which was dealt with by the Supreme Court of Pakistan in Khalilur Rehman Khan, D.S.P. and others versus Province of Punjab through Home Secretary, Punjab and others (PLJ 1985 S.C. 282). The Cabinet Secretariat, Establishment Division, Government of Pakistan, issued a notification dated 7th of October, 1987, the relevant portion extracted therefrom is reproduced hereunder:- "No. 10/4/87-E. 3 (Police). The competent authority has been pleased to approve, the appointment of the following Provincial Police Officers in the rank of Superintendent of Police to the Police Service of Pakistan in accordance with rule 7 of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 with e f fect from the dates mentioned against each:- S.No. Name Province Date of appointment xxxxxxxxx xxxx xxxx 6. Mr. Munir Ahmed Dar. Punjab 23-10-19§5 7. Mr. Zaka-ud-Din. Punjab 23-10-1985 8. Mr. Abdul Wassey. ( Punjab 23-10-1985 9. Mr. Khalil-ur-Rehman. ' Punjab 23-10-1985 10. Mr. Allah Bux. Punjab 23-10-1985 11. Mr. Raza Ahmed khan. Punjab 23-10-1985 12. Sardar Ghulam Mehdi. Punjab 23-10-1985 13. Mr. Muhammad Saleem Qureshi. Punjab 23-10-1985 xxxxxxx xxx xxxx" Then it was followed by another notification dated 21st February, 1990 which was to the following effect:- "No. 10-4/87-E. 3 (Police). Following officers belonging to the Punjab Police have been assigned seniority, after encadrement, in the Police Service of Pakistan with effect from 28th August, 1980:- 1. Mr, Mujjjr Ahmad Dar. 2. Mr. Zakaud-Din. 3. Mr. Abdul Wassey. 4. Mr. Khalil-ur-Rehman Khan. 5. Mr. Allah Bakhsh. 6. Mr. Raza Ahmad Khan." 3. The affected direct recruit preferred a departmental appeal and not succeeding came to the Tribunal challenging the same. The Tribunal examined at great length the basis for the subsequent notification and came to the conclusion chat it all started on an assumption that the quota for the Provincial Officers of the Police Department in the Police Service of Pakistan had to be worked out on the budgeted posts and proceeded accordingly. The budgeted posts include, as everyone knows, the cadre post, the temporary post continuing indefinitely and the casual post made available for short duration or for fixed period of time. The Tribunal came to the conclusion that this was not possible. The Service Tribunal d:d not quote the Chapter and verse of law in the judgment for coming to the conclusions whereby it set aside the subsequent notification impugned before it without prejudice to the exercise being undertaken afresh for determination of the seniority. This has aggrieved the beneficiaries of the notification, who now seek leave to appeal. 4. The chapter and verse of law which have not been quoted in the judgment of the Service Tribunal are Section 9 of the Civil Servants Act and the Policy Guidelines of 1970 for promotion, to be found at pages 225 to 227 of ESTA CODE 1989 edition (Annexure I to O.M.No. 1/16/69-D.II dated the 31 st December, 1970), where the expression "regular promotion" has been defined in the following words:- "The word regular implies: (a) that the promotions to higher grades were made in vacancies reserved for departmental promotion in accordance with the prescribed roster; (b) that the promotions to higher grades were made in accordance with the prescribed Recruitment Rules i.e. on the recommendation of the Departmental Promotion Committee or the Selection Board (and in consultation with the FPSC wHre such consultation was necessary under the Consultation Regulations) and with the approval of the authority competent to make these appointments; and (c) the promotions to higher grades were kept within the maximum quota prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the person or persons promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed." 5. The notification impugned before the Tribunal suffers from two defects. In the first place, the encadrement has not been ante-dated. What it says is as a result of encadrement their seniority is ante-dated. Secondly, the date of encadrement could not be subsequent to the seniority, as it happens to be, if we read two notifications together, nor could encadrement take place on the strength of budgeted posts. It had to take place against the strength of the cadre post. Neither budgeted posts were worked out nor the availability of the cadre posts in August, 1980, when these officers were shown to have been inducted in the seniority list. 6. We have recently given a judgment in Ghulam Ahmad versus Federation of Pakistan and 2 others (Civil Appeal No. 406 of 1989 decided on 3-2-1992) (reported as PLJ 1992 SC 237) and that explains the position of promotees and their claim to seniority and it has to be observed because this is the law of the land enshrined in Section 9 of the Civil Servants Act and has a precedent leading upto the judgment of this Court in Khushi Muhammad and 3 others versus TJie General Manager (Now Vice-Chairman) Pakistan Western Railway, Headquarters Office, Lahore and 27others (PLD 1970 S.C. 203) followed by Policy Guidelines and then Section 9 of the Civil Servants Act. 7. We find that there is no merit in this petition. Hence, leave to appeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 232 PLJ 1992 SC 232 [Appellate Jurisdiction] Present: muhammad afzal ZuLLAH, a, abdul shakurul salam and muhammad afzal lone, JJ JAM PARI-Appellant versus MUHAMMAD ABDULLAH-Respondent Civil Appeal No. 255 of 1988, dismissed on 7.1.1992 (approved for reporting on 6.2.1992) [On appeal from judgment dated 21.1.1981 of Lahore High Court, Bahawalpur Bench, passed in C.R.No. 12/BWP of 1974] Waiver-- —Pre-emption—Suit for—Whether respondent had waived his right of pre­ emption—Question of—High Court correctly analysed evidence and was not wrong in holding that findings of courts below regarding participation of respondent in transaction, was result of misreading of evidence-Mere omission to assert a right does not constitute waiver—Relinquishment of right is not to be inferred readily and there should be positive evidence that respondent intentionally wanted to forego his rights-Held: Appellant failed to prove waiver, first two courts misdirected themselves in returning a verdict in his favour and High Court justifiably decreed suit-Appeal dismissed. [Pp.235&237]A,B,C&D 7 P.R. 1912 rel. PLJ 1985 SC 12, PLJ 1990 SC 21 and PLJ 1984 SC 366, AIR 1937 Lahore 504 and Mr. Muhammad Ismail Qureshi, Senior Advocate, Supreme Court, instructed by Syed Abul Aasim Jafri, AOR for Appellant. Kh. Mushiaq Ahmad, AOR for Respondent. Date of hearing: 25.8.1991. judgment Muhammad Afzal Lone, J .-In this case on the move of the vendee in a pre­ emption suit, leave to appeal was granted "to examine, whether the concurrent findings of fact as to estoppel and waiver recorded by the two learned Courts below could and should have been set aside in exercise of the revisional jurisdiction of the High Court." „ 2, The plea of waiver, reflected by Issue No. 1, raised by the appellant in the written statement, is rested on the contention that the plaintiff-respondent actively participated in the sale transaction and thus by his acts and conduct relinquished his right of pre-emption. The learned trial Court referred to the admission made by Muhammad Yar PW. 2, as to the presence of the respondent when the transaction of sale took place and drew a presumption against him that he being the son of the vendee was present only to assist his father respecting the sale. It is in the statement of this witness that the respondent protested against the sale, but the learned trial Court brushed aside the same with the observation that this assertion did not find corroboration from the statement of the respondent and was not also suggested to the appellant's witness. The fact that despite knowledge of sale, the suit was brought by the respondent at the end of the period of limitation, also weighed with the Court. It was maintained that the conduct of the respondent was demonstrative of waiver of his right to pre-empt the sale. In view of these findings Issue No. 1 was answered against the respondent and his suit dismissed. In appeal filed by him, challenging the dismissal of the suit, the learned District Judge in upholding the trial Court's decision on the question of waiver, laid emphasis on the presence of the respondent at the time of the bargain, on the strength of testimony of Shamsuddin DW. 1, Ahmad Bux DW. 2 and Rahim Bakhsh DW4. The latter is the son and special attorney of the appellant. The learned Appellate Court discarded Muhammad Yar's statement to the effect that the respondent lived separate from his father. In this context, the respondent's stand in reply to a question put to him during cross-examination was that he lived with his father before a dispute arose between them over the sale, but his deposition was discredited by the learned First Appellate Court for the reason that he failed to state that in which house of the village he was living separately. 3. The unsuccessful pre-emptor then invoked the revisional jurisdiction of the High Court. After thorough examination of the evidence of the parties, the Court came to the conclusion that there was no evidence to show that the respondent actively participated in the transaction; and that his presence as a silent spectator, did not preclude him from filing the suit for enforcement of his right of pre-emption. The learned Single Judge relied upon Kidar Nath and others vs. Bhag Singh and others (AIR 1937 Lahore 504) and Baqri and others vs. Salehon and others (PLD 1972 SC. 133). His analysis of the evidence on record is to be found in para 3 of the impugned judgment, which in so far as relevant, is reproduced below: "The question whether the plaintiff had waived his right to bring the suit is primarily a question of fact which has apparently been decided against the plaintiff by both the Courts, and in the ordinary circumstances a revision would not lie. But the position in the instant case is different. Reliance was made on the statement of Shams-ud-Din (D.W. 1), Ahmad Bakhsh (D.W. 2) and Rahim Bakhsh (D.W. 4) and it was held that the appellant who had brought about the bargain obviously had the knowledge of the sale, and was thus debarred to file the suit. This finding, as is apparent from the record, was based on clear misreading of evidence. D.W. 2 Ahmad Bakhsh stated that the sale was made at the persuation of the plaintiff. Although Shams-ud-Din (D.W. 1) stated that the plaintiff-petitoner was present at the time of the bargain, but he categorically denied that he had taken any active part in the sale. He deposed that the sale was made by the vendor himself and nobody persuaded him to do so. Ahmad Bakhsh was most unreliable because he had been working as a tenant under the vendee, and was an interested witness. D.W. 4 Rahim Bakhsh being the son and attorney of the vendee could not be trusted. There was thus no cogent evidence showing that the plaintiff-pre-emptor had taken active part in the bargain". 4. It is well accepted that revisional jurisdiction is primarily meant for correction of errors in the orders made and proceedings conducted by the subordinate Courts, and a finding of fact is not open to revision unless it is shown to be not based on any evidence or suffering from nonreading or misreading of material evidence. In this connection, reference may be made to Haji Ilahi Bakhsh vs. Noor Muhammad and others (PLJ 1985, SC. 12) and Nasir Abbas vs. Manzoor Haider Shah (PLJ 1990 SC. 21). The finding on the question of waiver is a finding of fact. The High Court chose to interfere with the concurrent finding of the first two Courts on this point, on the ground that it was vitiated by misreading of evidence. We have examined the evidence on the record to adjudge the reasons given by the High Court in reversing the finding of fact. We find that while appearing as his own witness, the respondent categorically denied the suggestion that he got the land sold on account of his necessity. His this assertion finds sufficient support from the statement of Shams-ud-Din DW. 1 that Munshi Hamad AH vendor himself struck the bargain of sale and no-one was instrumental in sale of the land by him. The deposition of this witness falsifies the appellant's other evidence comprising the statement of his son and attorney namely Rahim Bakhsh and Ahmad Bux D.W. 1 that the respondent himself got the sale made by his father. It is clear to us, that the High Court analysed the evidence correctly and was not wrong in holding that the finding of the first two Courts regarding participation of the respondent in the transaction, was the result of misreading of evidence. It is correct that the respondent's presence at the time of bargain is borne out from the evidence of both the sides, but that by itself is not suggestive of his participation in the transaction, to denude him on the ground of waiver of his legal right to pre-empt the sale. Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the respondent's conduct clearly indicative of abandonment of his right he cannot be said to have deliberately foregone his such right. In Muhammad Bakhsh vs. Hassan Bakhsh and others (7 P.R. 1912) the presence of plaintiff at the time when the bargain was struck was not found enough to draw an inference of acquiescence in sale. In Baqri's case after exhaustive review of the case law, on the question of waiver, the principles summed up by this Court are: "(/) Right of pre-emption arises on sale of the property in question. This is the general law. (h) Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff, showing that he is not interested in the purchase of the property. This is consistent with the principle of foreclosure of right of pre-emption as envisaged in Section 19 of the said Act. (Hi) Mere participation in the auction for the sale of the property or failure to outbid the purchaser cannot be regarded as a waiver of the right of pre­ emption". Estoppel is the foundation of waiver and mere omission to assert a right does not constitute waiver. We do not think that upon the test laid down in Baqri's case, there is enough material on the file to warrant a conclusion that the respondent waived his right and was not interested to purchase the property. 5. On behalf of the appellant reliance was heavily placed on the following observations appearing in Naseer Ahmad vs. Arshad Ahmad (PLJ 1984 SC 366): "It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not comeyforward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question on a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one irevailing-at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the preemptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which in many cases (is) even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law". It is strenuously argued that the respondent is the son of the vendor, and both of them resided under the same roof and were in league with one another. According to the appellant's learned Counsel, the conduct of the respondent clearly smacKed of mala fide which fully called for dismissal of the suit on the ground of waiver. It is to be recalled that the respondent's explanation as to the abandonment of his residence with his father after differences had arisen between the two, was not accepted by the learned District Judge, for the reason that in his statement he failed to particularize his residence in the village elsewhere. It appears to us that the learned District Judge proceeded wholly on incorrect basis. He omitted to notice that it was in the course of cross-examination that in reply to a question put to him, the respondent spoke of his differences with his father. He was not cross-examined further regarding his residence and was not required to volunteer a statement disclosing the new place of his residence. In Naseer Ahmad's case before the High Court it was factually established that the land was offered to the pre-emptor by the vendor before its sale to the vendee-defendant but he refused to purchase it. The High Court followed the dictum laid down in Baqri's case and maintained that the evidence produced by the defendant proved a positive act of relinquishment of his right by the plaintiff. Before this Court, in that case, in order to assail the finding on the question of waiver it was argued that the right of pre-emption could accrue to the plaintiff only after the sale of the land by the vendor, and thus he could not be said to have waived it by his refusal to purchase the property before its actual sale to the defendant. This contention was, however, repelled as Baqri's case unequivocally provides that the right of pre­ emption can be waived even before the sale, by express refusal to purchase the property or by conduct reflecting clearly that the plaintiff was not interested in its purchase. It was in the course of that judgment that observations, commenting upon what usually happens in pre-emption cases, were recorded. We may say with respect that despite the generality of the expression, not the whole law, on the subject of waiver was intended to be enunciated thereby. As stated earlier, waiver being a question of fact has got to be decided on proof of such fact by the evidence in each case. Relinquishment of right is not to be inferred readily and there should be positive evidence to induce the court to hold that the respondent intentionally wanted to forego his rights. In Kidar Nath's case, waiver was sought to be proved by the evidence led by the vendee showing that the plaintiff actively negotiated the sale; that he sold bricks used for construction of a well in the land in dispute; and watched construction of the building therein without any demur. The Division Bench of the High Court, after the evidence, expressed the view that: To deprive a person of any legal right that he possesses, there must be clear and cogent evidence on the record justifying that course and the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforecement of his right". The quality of evidence before us is not different from the one which the learned Judges of the High Court had to deal with. For the foregoing reasons, we have no hesitation in holding that the appellant failed to prove waiver. The first two Courts misdirected themselves in returning a verdict in his favour and the High Court justifiably decreed the suit. We would, therefore, dismiss this appeal, but leave the parties to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 237 PLJ 1992 SC 237 Present: dr. nasim hasan shah, shafiur rahman and muhammad rafiq tarar, JJ GHULAM AHMAD-Appellant versus FEDERATION OF PAKISTAN, THROUGH SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others-Respondents Civil Appeal No,406 of 1989, dismissed on 3,2.1992. [On appeal from judgment/order of Federal Service Tribunal, dated 10.3.1985, passed in Appeal No.721(L) of 1982.] Seniority— —Officiating promotion of appellant-Seniority on basis of officiation-Claim of--Seniority being not a vested right, Section 9 of Civil Servants Act, 1973 alongwith General Principles of Seniority, will govern matter under consideration-Words "to officiate" used in para 121(l)(b) of ESTACODE mean to act or to discharge an office for or on behalf of some other person- Held: A promotion on strength of paragraph 121(l)(b) of Code did not entitle appellant to claim seniority in higher promoted grade-Appeal dismissed. [P.242]A,B&C PLD 1970 SC 203 rel. Ch. Mushtaq Masood, Advocate, Supreme Court, instructed by Sh. Masud Akhtar, AOR for Appellant. Ch. Ijaz Ahmad, Deputy Attorney General for Respondent No.l. Ch. M. Aslam Chattha, AOR for Respondent No.3. Respondent No.2: Ex-parte. Date of hearing: 22.1.1992. judgment Shafiur Rahman, J.—Leave to appeal was granted to examine whether the appellant's case before the Service Tribunal had not received that individualised attention which it deserved being distinguishable from those of his colleagues Kh. Mahmood Ahmad, Abdul Latif and Muhammad Yousuf. 2. The appellant joined service as a Clerk in the Railways Accounts Department in July, 1941. He passed the Subordinate Accounts Service Examination and was promoted as Assistant Accounts Officer on 10.5.1960/7.1.1%!. There existed a rule (Paragraph 121 of the Pakistan Government Railway Code for the Accounts Department, Part I - hereinafter referred to as the Code) which provided for officiating promotion of such Class II Officers to a Senior Class I post of Divisional Accountant ignoring the intermediary cadre of Grade-17 of Junior Accounts Officers. The appellant was granted proforma/officiating promotion from 1.11.1966 to 3.9.1968 and thereafter continued working on that post subsequently. When the seniority list of Grade-18 officers was published on llth of March, 1976, his name was omitted therefrom. He filed a representation and then an appeal with regard to such an omission and getting no redress from the Department preferred an appeal to the Tribunal. There were other colleagues of the appellant who had also been similarly promoted but their promotion was described at times ad hoc and they were denied the relief of being placed in Grade-18. The appellant distinguished his case by pointing out that his promotion was expressed to be regular, that it had taken place with the approval of the Public Service Commission and that the Rules made provision for such a promotion. Hence, he could not be excluded from the Grade-18 seniority list. The appellant retired from service on 4.10.1982 from the post of Deputy Chief Accounts Officer. 3. Mr, Mushtaq Masood, Advocate, the learned counsel for the appellant has advanced the case of the appellant by relying on Paragraph 121(l)(b) of the Code which made provision for such promotion and the regularisation of such promotion and the grant of proforma promotion from an earlier date. 4. Paragraphs 120 and 121 of the Code whose interpretation and application 5 required for determining the claim of the appellant are as hereunder:- "120. The Pakistan Railway Accounts Service. --Recruitment to the Pakistan Railway Accounts Service is made in the following manner:— (a) on the results of a competitive examination held in Pakistan; (b) by the promotion of specially qualified members of the Class II services and non-gazetted railway servants in the Accounts Department: and He I by transfer from another sen-ice. Of the total number of vacancies to be filled in any year 20 per cent is reserved for the promotion of Assistant Accounts Officers and specially qualified non-gazetted Railway servants. 121. Appointment, Promotion and Leave,--(1) Pakistan Railway Accounts Service— (a) Persons selected for appointment to the Pakistan Railway Accounts Service on the results of a competitive examination will be appointed as probationary Accounts Officers and will be required to undergo a practical training for a minimum period of two years as detailed in Appendix I. At the conclusion of the above period, probationary Accounts Officers who have passed the departmental examination prescribed by Financial Advisor (Communications) will be eligible for confirmation in the Department. Failure to pass the examination within a period of thr^e years after recruitment shall involve loss of appointment. But if the first examination is held within six months of a probationer's joining the service, it will not be taken into account and the period of three years will be extended to allow of one further chance. (ft) The post of Senior Accounts Officers will be filled by the promotion of Junior Accounts Officers. When no Junior Accounts Officer is available or can be made available without conflicting with the interests of the administration, an Assistant Accounts Officer may be appointed to officiate as a Senior Accounts Officer. (c) With a view to facilitating contact with officers of the superior service on leave all such officers should, before proceeding on leave, report to the Financial Advisor (Communications) through the General Manager of the Railway on which they are employed at that time, their addresses during leave. (2) Assistant Accounts OjQfjcer.-The posts of Assistant Accounts Officers will be filled by selection from non-gazetted Railway servants who have passed the examination prescribed in Appendix III or are exempted from passing that examination, provided that an employee mentioned in paragraph 131, who was less than 40 years of age on the 1st April, 1920 shall not be eligible for promotion to the grade of Assistant Accounts Officer unless he passes the said examination". 5. In order to establish that in terms of paragraph 121(l)(b) of the Code no Junior Accounts Officer was available at relevant time, reference has been made by the learned counsel to the written statement of the Department where this fact has been admitted. This rule, however, is not of avail to the appellant because what it provides for is only for officiating promotion. It makes no reservation for the category of subordinates like the appellant nor provides for confirmation against the post on which they are promoted. It only allowed them the opportunity to officiate and in this case the appellant and his colleagues have officiated with full pay of the post. Regular promotion under Section 9 of the Civil Servants Act could take place against the reserved quota alone. The reserved quota existed under Paragraph 120; for Junior Class I Officers in the grade of Assistant Accounts Officers and specially qualified non-ga/etted Railway servants to the extent of 20 per cent and 80 per cent for Junior Class I of the Railway Accounts Service. 6. A more intelligible and illustrative instance of this rule/paragraph, or i such a rule, appears to be that of District and Sessions Judges on the Judicial side g where at one stage, not more than l/3rd were to be recruited from the Bar, not c more than l/3rd to be transferred from the Central Services and not less than o l/3rd to be promoted from the subordinate Judicial Officers. On account of f delayed appointment from the Bar and on account of non-availability of Central Superior Service officers from the executive side, the subordinate Judicial Officers were officiating beyond l/3rd quota but beyond the quota, they were not entitled to count their officiation period as the service rendered in that Grade, nor for purposes of seniority, though they got the benefit of the pay and post otherwise. Similarly, in this case, the officiating charge could be given to the appellant but he could not be considered a part of the cadre. It is further clear from the fact that ultimately he was inducted in the Junior Class I Cadre of Assistant Accounts Officer and promoted against the reserved quota and such promotion against the quota happened to be at a date subsequent to the date when he was promoted in fact on officiating basis on 1,11.1966. 1. The law applicable to such a promotion was expressed in Khushi Muhammad and 3 others v. The General Manager (non Vice-Chairman) Pakistan Western Railway, Headquarters Office, Lahore & 27 others (PLD 1970 S.C. 203). In that case the following law was laid down:— "In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the latio of 50:50 between the direct recruits and the departmental promotees merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter oi their seniority in the grade after they enter it. There is no rule that confirmation in the grade is also to be made by rotation, that is to say. one direct recruit and one departmental pjomotee, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade". This judgment of the Supreme Court was delivered on 13th of February, 1970 and it was followed in December, 1970 by the General Pinciples of Seniority (ESTACODE 1983 Edition, page 154) providing as hereunder- "The seniority of departmental promotees to the higher grade shall count from the dale of their regular promotion to the higher grade. The word regular implies: (a) that the promotions to higher grades were made in vacancies reserved for departmental promotion in accordance with the prescribed roster;" 8. This was followed by the Civil Servants Act, 1973, Section 9 providing as hereunder— "9. Promotion.--(I) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a higher post for the time being served under ihe rules for departmental promotion in the service or cadre to which he belongs. (2) A post referred to in sub-section (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed-- (a) in the case of a selection post, on the basis of selection on merit; and (fe) in the case of a non-selection post, on the basis of seniority-cumfitness". 9. Seniority being not a vested right under the Civil Servant Act (Section 8), Section 9 of the Civil Servants Act will govern alongwith General Principles of Seniority, the matter under consideration. 10. The words "to officiate" used in para 121(l)(fe) of the Code mean to act or to discharge an office for or on behalf of some other person. Where a reservation or a quota for promotion existed, and as pointed out in para 120 of the Code it is not in public interest to fill that post from outside the prescribed quota, either on account of its non-availability of officers or otherwise, then an officiating arrangement from a residual source is made. As soon as compliance with the paragraph 120 of the Code is possible, the arrangement is brought to an end. In this case exactly that has happened. The appellant himself was subsequently placed in junior Class I for which reservation existed and was promoted through proper channel. His contention that at one stage the post of Assistant Accounts Officer was upgraded into Class £post, would not entitle him to claim absorption in a graded Class I service having its own cadre and Grade the induction into a service as a Class I Officer is one thing and to be a Class I post-holder is another. 11. We find that a promotion on the strength of paragraph 121(1)(&) of the Code did not entitle the appellant lo claim seniority in the higher promoted grade. He had to wait till in accordance with the reservation and the quota a vacancy became available for him in accordance with the provision made in para 120 of the Code. It happened subsequently. Therefore, the appellant could not claim induction in Grade-18 seniority list in 1976 notwithstanding his officiating promotion under paragraph 121(1 )(b) of the Code much earlier. His case like those of his colleagues, notwithstanding the use of the word "ad-hoc" or absence of it continues to be governed by para 120 and 121(l)(fc) of the Code and by no other provision, read with General Principles of Seniority and Section 9 of the Civil Servants Act. 12. The appeal is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 407 PLJ 1992 SC 407 [Appelalte Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, SAAD SAOOD JAN AND MUHAMMAD afzal lone, JJ PAKISTAN MEDICAL & DENTAL COUNCIL-Appellant versus Dr. RAZA MUHAMMAD KHAN»Respondent Civil Appeal No. 400 of 1990, accepted on 29.3.1992 (approved for reporting on 20.5.1992). [On appeal from judgment/order of Peshawar High Court, dated 10.12.1989, in Writ Petition No. 238 of 1981.] Medical Council Ordinance, 1962 (XXXII of 1962)-- —S. 16~Fellowship of American Medical Society-Recognition as additional qualification by High Court—Challenge to—Relevant authority to direct registration of additional medical qualification is Federal Government and appellant is merely a recommending body—Respondent did not implead Federal Government as party to writ petititon-Declaration granted by High Court has effect of over-riding considered opinion of persons who are most qualified in field to assess professional excellence on basis of which fellowship is awarded—Held: In absence of Federal Government, High Court ought not have issued declaration-Appeal accepted and writ issued by High Court withdrawn. [Pp.409&410]A&B Rao Muhammad YousafKlian, A.O.R. (absent) for Appellant. Mr. Jehanzeb Ruhim, Advocate, Supreme Court, instructed by Ch. AkhtarAli, A.O.R. for Respondent. Date of hearing: 29.3.1992. judgment Saad Saood Jan, J.-This is an appeal by special leave from the judgment and order dated 10.12.1989 of the Peshawar High Court whereby the Constitution petition of the respondent to seek recognition of'a qualification as additional medical qualification by the appellant was allowed. 2. The respondent is an Assistant Professor in Dermatology in the Khyber Medical College , Peshawar . He passed his M.B.B.S examination from the Punjab in 1966. He spent some time in Vienna and in 1973 he obtained a diploma in dermatology and venereology. In 1974, he was given the fellow-ship of the American Medical Society based in Austria . On his return to Pakistan he applied to the appellant which is a statutory body constituted under the Meical Council Ordinance, 1962, for recognition of the diploma and fellow-ship that he had obtained as additional medical qualifications. His application was considered by the appellant in its meeting of 5.3.1978. It decided to accept the diploma as equivalent to M.C.P.S (Dermatology). It however declined to recognise the fellow­ ship as an additional medical qualification. 3. The post of a professor in dermatology fell vacant. In respect to an advertisement issued by the Provincial Public Service Commission the respondent and one Dr. Durrani Kamil offered themselves as candidates. The Public Service Commisison selected the respondent on the ground that he possessed the additional qualification of the fellowship of the American Medical Society. Dr Durrani Kamil challenged the decision of the Public Service Commission in the Constitutional jurisdiction of the High Court, but, later withdrew his petition. Subsequently, he filed another Constitution petition in the nature of a quo wairanto. It was dismissed with the following observations:— "We should also like to place on record that F.A.M.S. is the qualification which is possessed by respondent No. 1 and this according to Commission and the Respondents, is an equivalent qualification, within the contemplation of the Advertisement and as such he was eligible." The judgment was was challenged by Dr Durrani Kamil through a petition for special leave to appeal in this Court but it was dismissed. 4. Subsequently, the respondent once again moved the appellant for the recognition of the fellowship as an additional medical qualification. On this occasion his application was supported by the Principal of his College. The appellant once again rejected the application of the respondent. Being dis-satisfied with the decision of the Council, the respondent filed a Constitution petition in the High Court. A Division Bench took the view that the fellowship in question was awarded only after a candidate had completed a full-time course extending over nearly two years, had written a thesis and had passed an examination. It was therefore not merely a membership of the Society but represented a certain piofessional excellence. In this view of the matter it accepted the Constitution petition and granted a declaration to the effect that the fellowship was the highest qualification awarded by the American Society of Vienna in dermatology after exhaustive study ;and training and that it was equivalant to M.R.C.P in England and M.D in Pakistan . From the judgment of the High Court the appellant has come in appeal to this Court. 5. As would be noticed the respondent was seeking registration of the fellowship of the American Medical Society as an additional medical qualification. The relevant provision of law regulating the registration of additional medical qualification is contained in Section 16 of the Medical Council Ordinance, 1962. It reads as follows: -- "16. Additional medical qualifications.--"The post-graduate medical qualification granted by medical institutions in or outside Pakistan which are included in the Third Schedule shall be recognized additional medical qualifications for the purposes of this Ordinance. (2) On the recommendation of the Council, the Central Government may, by notification in the Official Gazette, amend the Third Schedule so as to include therein any additional medical qualification in respect of which the Council is satisfied that it is of sufficient standing to warrant its being included therein. (3) Such notification may also direct that an entry shall be made in the last column of the Third Schedule against such additional medical qualification declaring that it shall be recognized additional medical qualification subject to any specified conditions and only when granted before or after a specified date." It will be noticed that the relevant authority to direct registration of additional medical qualification is the Federal Government and that the appellant is merely a recommending body. The respondent did not implead the Federal Government as a party to his Constitution petititon. In the absence of the Federal Government the High Court ougjit not have issued the declaration which it has done in this case. 6. Apart from that, in the exercise of its Constituional jurisdiction the High Court does not sit as a court of appeal over the decisions of statutory bodies. In this case the appellant Council consists of some very senior and respected members of the medical profession including the Principals of Medical Colleges. Quite a few of them have a first hand knowledge of the quality of excellence provided by the various medical institutions, both inside and outside the country. It is difficult to believe that while refusing to recommend recognition of the fellwoship of American Medical Society as an additional medical qualification the members of the appeallant Council were not aware r.f the academic and clinical attainments of those who were admitted thereto. The declaration granted by the High Court has the effect of over-riding the considered opinion of persons who are the most qualified in the field to assess the professional excellence on the basis of which the fellowship is awarded. The observation of the High Court in the earlier petitions preferred by Dr. Durrani Kamil have no relevance to the litigation between the appellant and the respondent for the reason that the appellant was not a party to those proceedings and as such its views were not before the court. Accordingly, we accept this appeal and withdraw the writ issued by the High Court. There will be no orders as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 410 PLJ 1992 SC 410 [Appellate Jurisdiction] Present: MUHAMMAD AFSAL LONE, MUHAMMAD RAFIQ TARAR AND WALI muhammad jchan, JJ. HABIBUR REHMAN alias REHMAN alias.RAJA BOTTAL-Appellant versus THE STATE-Respondent Criminal Appeal No. 285 of 1990, dismissed on 4.5.1992. [On Appeal from judgment/order dated 12.6.1990, of Lahore High Court, passed in Crl. Appeal No. 141 of 1990 and M.R. No. 155 of 1987.] Criminal Trial- —Murder-Offence of-Conviction for-Challenge to—PWs. 10 and 11 are admittedly sons of deceased but thei# presence at spot at time of occurrence, is natural-Statement of C.W. lends some support to Prosecution version and his evidence could not be termed as hearsay because anything said immediately after occurrence by people gathered is admissible as res-gestae-Abscondaace itself is no evidence of involvement but it provides sufficient corroboration of ocular account-Motive alleged by prosecution being trivial, has already been considered by High Court for reducing death penalty—Held: Trial Court had no alternative but to find appellant quilty of murder and High Court had no option but to concur with same-Appeal dismissed. [P.413JA Malik Rab Nawaz Noon, Advocate, Supreme Court, and Ch. Akhtar Alt, AOR for Appellant. Ch. M. Akram, Advocate for State. Sardar M. Ishaq JQian, Advocate, Supreme Court, and Mr. Ejaz M. Khari, AOR for Complainant. Date of hearing: 4.5.1992. judgment Wall Muhammad Khan, J,~Habib-ur-Rehman alias Rehman alias Raja Bottal, appellant herein, through leave of the Court, has called in question the order dated 12.6.1990 passed by the Lahore High Court, whereby his appeal against his conviction under Section 302 PPC for causing the death of Riaz The background of the case culminating in the instant tragedy is that deceased Riaz Ahmad alongwith his sons Shaheen Riaz Pw-10 and Shamim Riaz PW-11 were returning home after their day's work of construction of a street in Sharif Abad Satellite Town, Rawalpindi on 6.9.1986 at 5.30 p.m. and when they reached near their house at about 6.00 p.m. Habib-ur-Rehman appellant armed with 12 bore carbine and Fazal-ur-Rehman (acquitted accused) armed with a soti came out of their house raising lalkara that they would not spare the deceased and coming near them Habib-ur-Rehman fired with his carbine at the deceased hitting him on his left flank near the arm-pit as a result of which he fell down on the ground. Shaheen Riaz PW-10 wanted to catch hold of the appellant but Fazal-ur-Rehman acquitted accused gave him soti blows one of which fell on his head and the other, on his back. Habibur Rehman reloaded his carbine and fired at him which went amiss. Their noise attracted Muhammad Ismail and Muhammad Nawaz Pws to the scene of occurrence and the accused entered their house. The deceased was taken to the Holy Family Hospital and reaching there he succumbed to his injuries. Mehmood Akbar Kiyani Pw-6 stayed behind to guard the dead body and Shaheen Riaz left for the police station where he reported the occurrence to Muhammad Yousaf SI PW-15 who recorded the same vide F.I.R. Ex. PJ. He also prepared the injury sheet Ex. PM of Shaheen Riaz PW and sent him to the Holy Family Hospital through Mirbaz Constable for medical examination. He thereafter left for Holy Family Hospital where he prepared injury statement and inquest report Ex. PN and Ex.PO of the deceased and despatched the dead body for postmortem. He then visited the spot but due to darkness could not make proper inspection thereof. The next morning he collected blood-stained pieces of cement and pieces of concrete from the spot through the help of chisel vide memo Ex.PA. He took into possession blood­ stained clothes of the decesed produced to him by Muhammad Ramzan FC PW, a finger ring in a sealed phial vide memo Ex. PL. The accused were not traceable so non-bailable warrants of arrest were secured on 10.9.1986 from the Ilaqa Magistrate vide Ex.PP/1 and PP/2 and entrusted to Muhammad Ramzan and Mirbaz Constables for execution who returned them unserved with an endorsement. Site plan was prepared through Muhammad Akram Draftsman PW as well. The accused surrendered to the Ilaqa Magistrate on 22-9-1986 and the I.O. on receipt of information went there and effected their formal arrest. While in police custody Fazal-ur-Rehman led to the recovery of soti Ex.P. 1 from the baithak of his house which was taken into possession vide memo Ex. PB on 8.9.1986, on which date Habib-ur-Rehman accused also led to the recovery of 12 bore carbine Ex.P. 3, three live cartridges Ex.P4/l-3 and empty cartridge Ex.P. 5 from an iron box lying in the store of his house which were taken into possession vide memo Ex.PH. After the completion of the investigation the challan against both the accused was submitted to the Ilaqa Magistrate who in his turn sent up the accused before the Court of Sessions where after framing of the charge sheet, recording of the evidence and the statement of the accused including statement of Muhammad Ismail CW-I, the learned Additional Sessions Judge on the appraisal of the evidence produced in the case, vide his judgment dated 27.1987, found Habib-ur-Rehman appellant guilty of the murder of Riaz Ahmed deceased and sentenced him to death subject to confirmation of the High Court plus a fine of Rs. 20,000/- or in default 2 years R.I. The fine, on recovery, w^s, ordered to be paid as compensation to the heirs of the deceased under secnon 544-A Cr.P.C However it was ordered that if the death sentence of the appellant is converted into life imprisonment, he will enjoy the benefit of Section 382-B Cr.P.C. as well. Fazal-ur-Rehman accused was given the benefit of doubt and acquitted. The appeal filed against it was partially accepted. Hence the instant appeal through leave of the Court. We have heard Malik Rab Nawaz Noon, Advocate, for the appellant, Sardar M. Ishaq Khan, Advocate, for the complainant; Cbur^Muhammad Akram, Advocate, for the State; and have perused the record of the case with their valuable assitance. The learned counsel for the appellant submitted that Shaheen Riaz PW-10 and Shamim Riaz PW-11 being the sons of the deceased were interested witnesses and not worthy of credence; that the statement of Muhammad Nawaz PW-12 was discarded by both the lower Courts; that Muhammad Ismail mentioned in the FIR as eye-witness was given up by the prosecution as won over; that the recoveries made by the I.O. were considered as of no assistance to the prosectution; that the motive advanced was trivial and not proved according to law; that the version of Shaheen Riaz PW-10 having not been accepted by the two Courts below for his own injuries coufd not be relied upon regarding the part attributed by him to the appeallant for firing at the deceased; additionally, he laid great stress that the injuries on the person of Shaheen Riaz were self-inflicted or by a firendly hand in order to convince the Court about his presence at the spot and as such the prosecution case was false and concocted. The learned counsel for the complainant and the State, on the other hand, submitted that the I.O. found Shaheen Riaz injured while he visited the police station for lodging the report as is apparent from the injury sheet prepared at that very moment; that both the parties were neighbours and, were not inimical to each other except the earlier quarrel; and that the abscondence of the accused from 6.9.1986 to 22.9.1986 was sufficient corroboration of the prosecution version. From the overall reading of the evidence on record, we are fully convinced that the occurrence took place in the manner alleged by the prosecution. Shaheen Riaz PW-10 and Shamim Riaz PW-11 admittedly are the sons of the deceased but their presence at the spot at the time of occurrence, close to their house, is natural. The sKunp of injuries on the person of Shaheen Riaz PW-10 further lend sipport to his presence at the scene of occurrence. Though the trial Court extended the benefit of doubt to Fazal-ur-Rehman to whom these injuries were attributed by Shaheen Riaz PW but the learned High Court, though did not interfere with the order of acquittal of the co-accused, believed in his presence on the spot. Muhammad Ismail mentioned in the FIR was abandoned as having been won over but he was examined as C.W. by the trial Court and his statement lends some support to the prosecution version inasmuch as, according to him, when he reached the place of occurrence, people present at the spot told him that Riaz Ahmad was murdered by Habib-ur-Rehman accused present in the Court, which could not be termed as hearsay because anything said immediately after the occurrence by the people gathered is admissible as res gestae. This witness has proved the motive by stating "on 5.9.1986 at about 6.00p.m. I came to a Bakery which is adjacent to the house of Riaz Ahmad to fetch certain articles and I learnt from the Mohallahdan that Riaz Ahmad deceased of this case and Habib-ur- Rehman accused had an altercation with each other over the dispute of obstruction of flow of water in the drain and it was further told to me that the obstruction was removed as the result of altercation." Abscondence by itself is no evidence, of involvement of the absconder in the occurrence but the same provides sufficient corroboration of the ocular account. The absence of the appellant from 6.9.1986 to 22.9.1986 has not been satisfactorily explained by him. The recovery of soti and the carbine was not considered as corroboration by the Courts below not because that they were not recovered at the instance of the accused but they could not be linked as weapons of qffence on account of non-presence of blood on the soti and non-recovery of empties from the spot to match them with the carbine. The earlier quarrel, as it was urged as motive for the present occurrence, was accompanied by kicks and fist blows and it depended on the mind of the appellant to resent it or not. The appellant has not advanced any serious motive for false charge and the motive alleged by the prosecution being trivial has already been considered by the High Court for reducing the death penalty. In view of the overwhelming evidence in the case the learned trial Court had no alternative but to find the appellant responsible for the murder of the deceased and the High Court had no option but to concur with it regarding his conviction. Resultantly, there is no merit in the instant appeal and the same is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 414 PLJ 1992 SC 414 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, MUHAMMAD AFZAL LONE AND WALI muhammd khan, JJ. STATE-Petitioner versus BASHIR AHMAD alias BASHIRA and another-Respondents Criminal Petitions No. 25 and 26 of 1991, decided on 13.4.1992. [On appeal from judgment, dated 4.3.1989, of Lahore High Court, Rawalpindi Bench, in Crl. Appeal No. 66 of 1984.] (i) Appeal against Acquittal— —Dacoity with murder-Offence of-Acquittal of respondents-Challenge to-­Certain principles relating to identification of un-known accused persons, prima facie it appears, were not kept in view while acquitting respondents- Two of five accused were not only identified in court but also said identification was found to have material support from other circumstances- Held: Corroboration and credibility gained by witnesses regarding two of accused, could or could not be treated as sufficient certificates of credibility of witnesses, needs to be examined-Leave also granted in Criminal Petition No. 26 of 1991 and non-bailable warrants ordered to be issued to respondents. [P.417JB (ii) Lesser Sentence- —Dacoity with murder-Offence of-Conviction but lesser sentence awarded- Enhancement of sentence-Prayer for-Held: Case is fit, amongst other grounds, to grant leave to appeal inter-alia, for examination of justification for lesser sentence awarded to two convicts in this case-Criminal Petition No. 25 of 1991 for enhancement of sentence allowed. [P.417]A Mr. Muhammad Nawaz Abbasi, Asst. A.G., Punjab and Ch. AkhtarAli, AOR for Petitioner (in both Petitions). Nemo for Respondents (in both Petitions). Date of hearing: 13.4.1992. judgment Muhammad Afzal Zullah, CJ,--This order be read in continuation of order for grant of leave to appeal in Criminal Appeal No. 114 of 1990. The order reads as follows:— "In this case of gruesome dacoity in which a murder took place leave to appeal is sought by one of the two accused ultimately convicted and sentenced to life imprisonment. The petitioner, one of the two convicts whose appeal has been dismissed by the High Court, has challenged his conviction and sentence". The prosecution case as summarized in the memorandum submitted with the petition for leave to appeal is as follows:-- 'The prosecution version as disclosed in the statement of Muhammad Ajmal Khan complainant (PW-15) which was recorded by Raja Abdul Aziz S.I. the then S.H.O. PS City, Attock (PW-18) is that on the night between 2nd and 3rd March, 1981 the complainant alongwith his wife Mst. Shamshad Ajmal and children were asleep in a room of his house. In the adjoining room his sister Mst. Mehar Taj Bibi (PW-17) and Mst. Haleema Bibi were sleeping. In the 3rd room his father Shams Khan (PW-16), his brother Niaz Muhammad (deceased) and his cousin Muhammad Amin were asleep. At about 12.30 mid-night, his sister Mehar Taj Bibi (PW-17) woke up to ease herself and she came to his room for going to the latrine as there was no other passage for her to go there. The electric bulb in the courtyard of the house was on. When Mst. Mehar Taj Bibi (PW-17) opened the door of his room she saw about ten persons in the courtyard. She tried to bolt the door from inside but she could not shut the planks of the door, and all the persons came inside the room. MsL Mehar Taj Bibi (PW-17) put on the light of the room. In the electric light the complainant saw that one of the persons was holding a pistol in his hand, and the other a shot gun and the rest were holding lathis and iron-bars. All the dacoits threatened them to hand over the belongings including ornaments, cash and other articles to them otherwise they would kill them. The complainant caught hold of one of the dacoits from his legs, grappled with him whereupon the dacoits started beating him with lathis and iron-bars. The complainant started raising noise and the dacoit called his companion for help whereupon all of them started beating him with their respective weapons and also gave him injuries with fist and kick blows. The dacoits brought the complainant in his room. In the meantime his mother Mst. Haleema Bibi, wife Mst. Shamshad Ajmal, sister Mst. Mehar Taj Bibi, brother Niaz Muhammad (deceased) father Shams Khan and cousin Muhammad Amin came to his rescue. The dacoit who was holding gun fired on the head of Shams Khan (PW16) and the remaining dacoits started beating him with lathis and iron-bars. Niaz Muhammad (deceased) attempted to save the complainant and his father whereupon the dacoit who wasarmed with revolver fired at him which hit him on his left flank. Niaz Muhammad fell down and the dacoits started belabouring him with lathis and iron bars. One of the dacoits gave an iron blow to the sister of the complainant on her head. Mst. Shamshad Ajmal and Mst. Haleema Bibi remained silent out of threats of the dacoits. They forcibly removed the golden bangles of his wife from her arm and ear rings from Mst. Mehar Taj Bibi. They also took away Rs. 4,000/- form the purse and also the licensed gun of Shams Khan (PW-16), licensed revolver of the complainant, two tape recorders, one transister, seiko wrist watch and purse containing identity card of the complainant, driving licence, two attache-cases containing house-hold wearing and also other articles. It has further been stated by the complainant that the dacoits had not muffled their faces. He and other PWs identified them in the electric light. The complainant also stated that the dacoit who was holding pistol was of tall stature, strong built, wheatish colour of about 30/35 years. The other dacoit who was holding the gun was of wheatish colour, wearing shirt and shalwar of almond colour and was about 20/21 years. Three of them were of 30/35 years of age while the rest were about 19 to 22 years'. "After hearing the learned counsel for the petitioner; firstly, on the question of limitation as this petition is barred by 26 days; and secondly, on merits we feel that while the question of the guilt of the convict/petitioner might also require examination, it would be necessary to exmaine the case, vis-a-vis, two additional aspects thereof. One, whether there was enough justification for awarding lesser penalty under Section 396 PPC, to the petitioner and his co-convict; and secondly, whether, there was enough justification for acquitting the majority of-the accused persons. Accordingly, while keeping the question of limitation open and while granting leave to appeal to the petitioner, we consider necessary to direct the State to fjJe leave to appeal petition/s regarding the sentence awarded to the petitioner and his co-convict- as also regarding acquittal of the majority of the accused persons, in accordance with law. The question of delay in filing these additional petitions would be examined on the submission of application for condonation of delay. Today two time barred Criminal Petitions No. 25 aand 26 of 1991 have been pressed for acceptance by the learned Assistant Advocate-General on various grounds urged therein. The State has filed these petitions in pursuance of the observations made in the afore quoted order for grant of leave to appeal to one of the co-accused of the accused/respondents in the criminal petitions. The appeal of the said accused; namely, Bashir Ahmad is also before us for hearing. The leave grant order was passed in March, 1990. In July 1990 the A.O.R. for Bashir Ahmad filed an application stating therein that the appellant was not interested in the prosecution of his appeal. It appears that Bashir Ahmad must have been advised to seek withdrawal of his appeal and then he gave the instructions to his A.O.R. as noted above - obviously to save certain consequences which might ensue on account of the then possibility of the State filing criminal petitions as already noted. Today the two criminal petitions came up for hearing in the first instance. The objection raised by the learned counsel for the accused/respondents therein regarding limitation was over ruled on the basis of the principles applicable to administration of criminal justice. See Qazi Salahuddin versus The State (PLD 1986 Supreme Court 548). After hearing both the learned counsel on merits we consider it fit amongst other grounds urged in these petitions to grant leave to appeal therein, inter-alia, for the exmaination of the justification for lesser sentence awarded to the two convicts in this case. Accordingly, Cr. Petition No. 25 of 1991 for enhancement of the sentence is allowed. The respondents therein shall not be released from jail even if they have served the sentence earlier awarded to them. It may be mentioned that Muhammad Ali respondent's appeal is not before us. If he has not challenged his conviction and sentence, he will be at liberty to file a petition for leave to appeal now. We have orally indicated to the learned counsel for the respondents that the delay, in the circumstances of this case, would be condoned in-that case also if Muhammad Ali files a petition for leave to appeal. Regarding the petition for leave to appeal against acquittal of three respondents in Cr. Petition No. 26 of 1991, suffices it to observe that certain principles relating to the identification of unknown accused persons prima-facie it seems were not kept in view when acquitting the respondents. Two of the five accused (5 others out of 10, it is stated, are still absconding) were not only identified in Court but also the said identification was found to have material support from other circumstances. Thus the eye-witnesses' credibility got confirmed in so far as the two convicted accused are concerned. Once this B happened, the witnesses gained added credibility. That being so, their identification in Court of the other three accused regarding whom there were no independent supporting circumstances, it needs to be examined, could or could not be allowed any credit on account -of lack of technical corroboration of the eye witnesses. In other words the corroboration and credibility gained by the witnesses regarding two of the accused persons regarding the same occurrence, it needs to be examined, could or could not be treated as sufficient certification of the credibility of the witnesses concerned. Other points regarding identification would also come up for examination. Leave to appeal, accordingly, is also granted against the acquitted accused in Cr. Petition No. 26 of 1991. Non-bailable warrants shall issue against the said respondents for appearance in this Court. On the announcement of the orders granting leave to appeal in Cr. Petition No. 25 and 26 of 1991, as was expected, learned counsel for the appellant in Criminal Appeal No. 114 of 1991 withdrew the application for withdrawal of the appeal earlier noted. This oral request was allowed. The application for withdrawal of the appeal of Bashir Ahmad stands rejected. The said appeal shall be deemed to be pending for hearing with the other two appeals arising out of Criminal Petitions No. 25 and 26 of 1991. (MBC) ' (Approved for reporting) Leave granted.

PLJ 1992 SC 418 [Appellate Jurisdiction] PLJ 1992 SC 418 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, muhammad afzal lone and wali muhammad khan, JJ MUHAMMAD AFZAL-Appellant versus THE STATE-Respondent Crminal Appeal No! 165 of 1991, partly accepted on 13.4.1992 (approved for reporting on 12.5.1992) [On appeal from judgment dated 14.2.1987, of Lahore High Court, Multan Bench, in Crl. Appeal No. 151 of 1984.] Pakistan Penal Code, 1860 (XLVof 1860)- —-S. 302 read with Section 304 Part I and Exception 4 to Section 300-Murder-- Offence of--Conviction for-Challenge to-Appellant was admitted in hospital for injuries immediatley after occurrence-Injury on his head was bleeding-It is very rare and highly improbable to inflict such wound with friendly hand-Time gap between occurrence and appellant's admission in hospital is so short that none of these injuries could have been manipulated—Held: On account of suddenness, lack of premeditation and other circumstances, case fell under Exception 4 to Section 300 PPC and offence committed by appellant was under Section 304 Part I PPC-Appeal partly allowed and conviction altered from under Section 302 to that under Section 304 Part I PPC. [Pp.419&420]A,B,C,D&E Mr. M.S. Mehboob, Advocate, Supreme Court for Appellant. CH. M. Akram, Advocate, Supreme Court for State. Date of hearing: 13.4.1992. judgment Muhammad Afzal Zullah, C J.--Leave to appeal was granted in this appeal through jail in a murder case wherein the appellant was found guilty under Section 302 PPC and awarded sentence of life imprisonment as well as fine of Rs. 2.000/-. Leave was granted for the examination as under:-- "In view of the fact that motive lay more with the complainant party than with the accused, that their encounter was more by chance than by design, that the accused convict had also incised injuries, the evidence requires reappraisal in order to reasonably exclude the possibility of accused/convict acting in exercise of his right of defence of his person, or in a sudden fight without taking undue advantage or acting in a cruel manner". The learned counsel for the appellant has drawn our attention to those parts of the judgment of the High Court wherein it was observed that the injuries on the person of the accused were either self-sustained or self-suffered. One of the main reasons which influenced such findings by the High Court was that the doctor had not excluded the possibility of the injuries on the accused being so self-suffered. Learned counsel for the appellant, however, brought to our notice the equally strong opinion of the doctor that the said injuries could as well have been caused by an adversary. The controversial injuries on the person of the accused were described by the doctor as follows:- 1. Incised wound 5 cm x 1 cm x bone deep on the left side of the skull 10 cm from left ear and 12 cm from left eye-brow. The wound was bleeding. 2. An incised wound starting from dorsum of left hand at the base of thumb passing acrsoss the space between thumb and index figer. It was 9 cm x 3 cm depth not probed. It was bleeding". It may also be noted that the appellant was admitted in the hospital for these injuries almost immediately after the occurrence 1 . The fact that he was subsequently released from the hospital will not make any difference in so far as the initial conduct is concerned. The said conduct of getting admitted hi the hospital which had somewhat been commented upon by the High Court in fact seems to be for the reason that injury No.l being a bleeding wound on the head must have put everybody on caution regarding its implications. It was 5 cm long wound with 1 cm width and the same being bone deep, its width must have exposed the skull under-neath the cut scalp. The dcotor's opinion that it ultimately turned out to be a simple hurt will not make any difference in so far as its initial visual impact is concerned. The mere fact that the doctor gave a theoretical opinion that the injuries could be self-suffered or self-sustained will not take away the importance of the location of injury No.l nor the impression it might have created on the person who suffered or those around him, immediately after the occurrence. Otherwise too it is very rare and highly improbable that such a wound would be inflicted on the head on account of an exercise, whether through friendly hand or self-infliction. It was though not impossible but highly improbable. The timelB gap between the occurrence and the admission hi the hospital is so short that none of these injuries could have been manipulated. It is for all these reasons that the [trial Court took a more realistic and practical view of this matter. While dealing I with this aspect the said Court observed as follows:- "The extreme penalty of death has not been imposed because as concluded above, the deceased and the accused came across by chance and over a little affair exchanged abuses and the accused assaulted the deceased and might be the deceased also used some weapon to defend him and injured the accused". The possibility visualised as in the above reproduced part of the trial Court judgment is not only reasonable but the supposition is highly probable. As held by both the Courts on the question of suddenness and lack of premeditation and other circumstances, the case fell within Exception-4 to Section 300 PPC. Accordingly, the offence committed by the appellant was under Section 304 Part I PPC. The argument of the learned counsel that a possibility that the deceased might have caused the first injury to the accused cannot be excluded and, DJ therefore, the appellant should be allowed the benefit of private defence, in view of the explanation to Exception-4 to Section 300 PPC, is untenable. In such like cases who gives the provocation or starts the assault becomes insignificant. In the light of the foregoing discussion this appeal is partly allowed. The conviction of the appellant is altered from one under Section 302 to 304 Part I E PPC and the sentence is reduced to 10 years R.I. Tlie fine instead is increased to Rs.85,000/-. It will be paid as compensation to the heirs of the deceased. If it is not realised, the appellant shall suffer further R.I. for 6^ years. (MBC) (Approved for reporting) Conviction altered.

PLJ 1992 SC 420 PLJ 1992 SC 420 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, shafiur rahman and saleem akhtar, JJ A. HABIB AHMAD-Appellant Versus M.K.G. SCOTT CHRISTIAN and 5 others-Respondents Civil Appeal Nos.24-K'and 25-K of 1989, accepted on 19.11.1991 (approved for reporting on 29.3.1992). [On appeal from judgment dated 21.9.1988, of High Court of Sindh, Karachi , in C.P. Nos.D-726 and D-804 of 1988.] (i) Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984)-- — S.2(d) read with Section 4(6)-Complaint for offences under Sections 403, 406, 409/149 PPC-Whether offences were scheduled offences-Question of-If Special Court would have been allowed by High Court, without interrupting normal course of case, to proceed with it, there was no bar to respondents to have invoked power under Section 4(6) of Ordinance, to seek same remedy from trial Court as was sought from High Court-Allegation made against accused undoubtedly involved business of bank more directly than by invoking aid from expression "in respect of or "in connection with"-Held: There is no alternative but to hold that offences alleged in this case against accused, were scheduled offences. [Pp.427,428&429]A,B&C (ii) Stay of Criminal Proceedings­ '—Complaint for offences under Sections 403, 406, 409/149 PPC-Civil suit with same subject matter-Pendency of-Whether criminal proceedings should be stayed till decision of civil suit-Question of-It came to light during hearing of appeals that civil suit dealing with same subject matter is still pending- Learned counsel could say nothing to oppose procedure that in accordance with ordinary rule laid down by Supreme Court, proceedings in criminal Court would remain stayed till decision of civil suit-Held: Accused-respondents shall be tried by Special CourtfiBanks) for offences under Banks (Special Courts) Ordinance, 1984 but proceedings before that Court shall remain stayed till decision of civil matter. [P.429]D&E 1982 SCMR 988 followed Mr. Klialid Anwar, Advocate, Supreme Court, Mr. Abdul Mujeeb Pirzada, Advocate, Supreme Court, and Mr. Naraindas C. Motiani, AOR for Appellant. MrAzlzullah Shaikh, Senior Advocate, Supreme Court, and Mr. AA. Dastgir AOR for Respondent No.l. Mr. Abdul Hafeez Memon, Advocate, Supreme Court for Respondent No.2. Mr. Ali Ahmad Fazed, Senior Advocate, Supreme Court for Respondents 3— Mr. M.I. Memon, AOR for Respondents 2-5. Respondent No.6: Ex-pane. Date of hearing: 19.11.1991. judgment Muhammad Afzal Zullah, CJ.-These two appeals through leave of the Court have arisen in the following circumstances noted in the leave grant order: Both these petitions (appeals) are directed against the common judgment of Sindh High Court dated 21.9.1988, whereby the order of the Presiding Officer, Special Court of Sindh (Banks) Karachi, respondent-6 herein, dated 2.6.1988, taking cognizance of the offences under Sections 403, 406, 409/149 PPC on a direct complaint filed by petitioner (appellant) against respondents 1 to 5 herein was quashed. The facts stated and the allegations made by petitioner (appellant) in the direct complaint against respondents briefly stated are as under: 'Petitioner (appellant) is a Director of the Boots Company (Pakistan) Limited, hereinafter referred to as 'Company', and maintains two accounts with Hongkong and Shanghai Banking Corporation, Shaheen Complex, M.R. Kayani Road, Karachi (hereinafter referred to as 'Bank'). For the purpose of availing of an over-draft facility, he pledged 2.98,600 shares of the Company with the Bank. On 28.1.1987, he received two letters from the Bank asking him to adjust the outstanding dues within ten days failing which the Bank would 'be constrained to start selling of the securities pledged'. According to petitioner (appellant) he went to see Bank's representative on the following day and explained certain temporary difficulties faced by him and the Bank considered his request for 30 days' extension sympathetically in view of the extensive dealings with him in the past, and agreed to take no action for the time being. He again went to the Bank on 31.1.1987 and made an offer that he was willing to authorise the Bank to collect dividend on the shares provided time for adjustment of the outstanding dues was extended. The Bank accpeted his offer and he signed a letter of authority in this behalf which was prepared by the Bank. On or about 6.5.1987 the Company announced 30% dividend on the shares and petitioner's (appellant's) letter of authorization was forwarded for collection of the dividends by the Bank. According to petitioner (appellant) however, he was greatly surprised to know on 18.5.1987 that the Manager of the Bank, respondent-1, had secretly and surreptitiously sold his shares at the rate of Rs.55 per share to respondents 3 and 4, who are stock-exchange brokers, as against his purchase price of Rs.130 per share and Rs.92 per share on 6.5.1987; thus resulting in the wrongful loss of Rs.11,048,200/- and a further loss of 30% dividend. 'On receipt of the complaint, respondent-6 registered the case and issued bailable warrants in the sum of Rs.10,000 against each of respondents 1 to 5. It was against this order that petitioner (appellant) filed the Constitution Petition which was allowed by the impugned judgment. 'In support of the petitions, (appeals) it was urged in the High Court that the proceedings before the Special Court were wholly without jurisdiction as the subject-matter of the complaint is not a scheduled offence as defined by Section 2(d) of Offences in respect of Banks (Special Courts) Ordinance No.IX of 1984. It was further submitted that since the proceedings before the Special Court are without jurisdiction it was not obligatory to seek relief under the provisions of Sections 249-A or 265-K of the Code of Criminal Procedure. 'On the other hand, it was urged on behalf of the petitioner (appellant) that since by sale of the shares at lower price on account of manipulation and conspiracy on the part of the Bank Manager, the stock-exchange broker and the purchasers, the respondents 1 to 5, the Bank has suffered loss insomuch as it could not recover its full dues from the sale proceeds and also to recover further amount in the form of dividends, the offence squarely falls within the ambit of a scheduled offence as defined by Section 2(d) of the Ordinance. It was also pointed out that the first plea raised in support of the Constitution Petition could very well be urged before the trial Court by alternative remedy provided by Section 249-A of the Code and the Constitution Petition was therefore not competent. It was further pointed out that it was also open to the respondents 1 to 5 to request the trial Court to resort to course of action under Section 4(6) of the Ordinance to consider if the alleged offences, if any, fall within the definition of scheduled offences and take action accordingly. 'Learned Judges of the Division Bench who heard the Constitution Petition referred to the Provisions of Section 2(d) of the Ordinance which read as follows: '2(d). "Scheduled Offence" means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank". 'Learned Judges rightly observed that since the offences mentioned in the direct complaint find place in the First Schedule of the Ordinance, the only question that requires consideration is whether an offence in respect of or in connection with the business of Bank was disclosed from the direct complaint filed by the petitioner (appellant). With regard to this question, learned Judges observed-as under: (/) "We find that the complainant has not uttered a single word about the alleged loss to the bank. (//) On the contrary he has deposed that the loss has been caused to him (hi) It is an admitted position that the bank has not come forward with the allegation that its Manager has caused any loss to it in the aforesaid transaction of sales of pledged shares. On the contrary the bank has filed the suit against respondent No.2 for the recovery of the balance • (iv) loan amount on the assumption that.the aforesaid sale of the pledged share was normal. In this regard.it may also be pointed out that even respondent No.2 has claimed the damages for the (v) alleged loss against the bank and not from its Manager. If we were to read the definition of a scheduled offence given in Section 2(d) of the Ordinance with the other provisions of the Ordinance, particularly, sub­ section (4) of Section 6 which provides "where a Special Court (v/) passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation (vh) for the loss caused to it by the offence, it becomes evident that the object of the Ordinance is two-fold, firstly to punish accused persons who are guilty of a scheduled offence and secondly (yiii) to compensate the bank for the loss suffered by it on account of the commission of the offence by providing the payment of compensation. The object does not seem to be to provide any relief to an (ix) individual who may be aggrieved by an action of a bank employee. In the instant case, the respondent No.2 has filed the direct complaint not for the purpose that the bank should get the balance amount () of its dues but to get the alleged accused punished as pointed out hereinabove. We are, therefore, inclined to hold that the alleged offences in the instant cases do not fall within the ambit of Section 2(d) as scheduled offences. In this view of the matter the Special Court has no jurisdiction in the instant cases". 'Having held above, learned Judges further held that it will not be just and proper to direct the (xi) accused to approach the Special Court under Section 249-A of the Code or under any other provisions, and for these reasons they quashed the impugned order of respondent-6, and allowed the petition. 'Mr. Khalid Anwar, learned counsel appearing in support of the petitions submits that the learned Judges of the High Court have erred in placing a very narrow interpretation of Section 2(d) by limiting it only to cases in which loss is caused to a bank. He urged that the mischief of this Section is equally attracted if by the commission of a scheduled offence, loss is caused to a customer of the bank, for, it amounts to an offence committed in connection with the business of the bank. In this behalf, learned counsel submits that advancement of loans against security of shares is a legitimate business of a bank and, therefore, surreptitious sales of the security affect the business of a bank and as such attracts the mischief of Section 2(d). 'Learned counsel further submits that the learned Judges have erred in law by holding that the combined effect of Section 2(d) and Section 4(6) is to compensate the bank for the loss caused to it by the offence and it does not provide any relief to the individual who may be aggrieved by an action of the bank employee. Learned counsel submits that a scheduled offence committed by an employee during the course of the employment of the bank and to defraud the account-holder as well as the bank with the result that the bank cannot get the money/due amounts to an offence in the meaning of Section 2(d) of the Ordinance. 'Learned counsel further urged that the learned Judges in the High Court were wrongly impressed by the fact that the bank has not come forward with the allegation that its Manager has caused any loss to it in the transactions in question. He pointed out that in this foreign bank, respondent-1 was the sole Incharge, and he being the main accused in the fraudulent transaction would not come forward and involve himself. 'Learned counsel further argued that the learned Judges have also erred in relying upon the wording of the preamble of the Ordinance when reference to it was totally un-necessary in view of the clear language of the sections of the Ordinance in question. 'Learned counsel also contended that the learned Judges in the High Court were not justified in exercising Constitutional jurisdiction at a premature stage of the case, when just a process under the law was issued by respondent-6 after taking a legitimate view of the contents of the complaint filed by the petitioner (appellant). In this connection, learned counsel also argued that since alternative remedies under Section 249-A and 265-K were available to respondents 1 to 5, resort to the Constitutional remedy by them was totally precluded. He also highlighted this argument by referring to provisions of sub-section (6) of Section 4 of the Ordinance, which according to him, were not considered by the High Court at all. These submissions, amongst others, deserved consideration'. The High Court noted the following main points for consideration advanced by the learned counsel for the parties. Appellant's side. (/') That since by depositing the shares at a lower price on account of manipulation and the conspiracy on the part of the Bank Manager, the stock broker and the purchasers, the bank has suffered loss in as much as it could not recover its full dues from the sale proceeds but still the above sum of Rs.70,97,535 is claimed to be due, the offence falls within the ambit of a scheduled offence as defined in Section 2(d) of the Ordinance. (h) That since under sub-section (8) of Section 5 of the Ordinance the Special Court in all matters with respect to which no procedure has been prescribed by the Ordinance is to follow the procedure prescribed by the Criminal Procedure Code for the trial of case by Magistrate, a party can file an application under Section 249-A Cr.P.C. before it, and, therefore, they have adequate alternate remedy and thus the above writ petitions were not competent. (in) That under Section 4(6) of the Ordinance the Special Court if in the course of a trial forms an opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence and, therefore, in the instant case the Special Court even during the trial can examine the question whether the alleged offences or any of them fall within the definition of scheduled offence". Respondents' side. (/) That the proceedings before the Special Court in the instant cases are without jurisdiction as the subject-matter of the complaint is not a scheduled offence as defined by Section 2(d) of the Ordinance. (//) That since the proceedings before the Special Court are without jurisdiction the petitioners are not obliged to file 249-A Cr.P.C. or 265-K Cr.P.C. application before the Special Court". In addition to the afore stated two points from the respondents' side, all those points which have already been noticed as having prevailed with the High Court would also be presumed to have been advanced from that side. Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is; whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special or inherent jurisdiction - the Writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well known case of Ghulam Muhammad v. Muzammal Klian (PLD 1967 Supreme Court 317) and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honourably acquitted by a competent Court". On the other hand if the evidence against the accused discloses a prima-facie case then "justice clearly requires that the trial should proceed according to law". It was also held that the inherrent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by Section 561-A Cr.P.C., it was held "can, certainly, not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute". Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under Section 561-A Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law. The afore stated view and principle was reiterated by the Supreme Cout in other cases as well, which came before it through the jurisdiction of the High Court other than Section 561-A Cr.P.C. They included revisional and Writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others (PLJ 1981 S.C. 895) and Abdul Aleem v. Special Judge (Customs), Lahore (1982 S.C.M.R. 73). The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A Criminal Revision filed by him having been dismissed he sought relief for quashment of the criminal case through a Writ Petition and the same had to be dismissed mainly on the ground that the High Court would not "in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law". This Court refused to grant leave to appeal. It was observed as follows:-- "We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not only salutary but also in accord with the principles laid down by this Court in Gliulam Muhammad v. Muzammal KJian and 4 others (PLD 1967 S.C. 317), although the case dealt with therein " In a very recent case which had arisen out of the same law relating to offence in respect of Banks (Special Courts) this Court again emphasized same principle. See Muhammad Aslam v. Tlie State (1991 S.C.M.R. 600 Para 26). All the points which have been noted above are such which the Special Court (Banks) could have decided and if it would have decided them the subject-matter involved herein fell within its jurisdiction. This decision by itself would not have been without jurisdiction because if such decision is wrong it does not mean that it is necessarily without jurisdiction. In this particular case there is an additional support for this view; namely, that Section 4(6) of the Ordinance (No.IX of 1984) provided that in the course of the trial before the Special Court if it is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offence, if any, as a Scheduled offence. Therefore, if the Special Court would have been allowed by the High Court, without interrupting the normal course of the case, the proceed with it, there was no bar to the respondents to have invoked the power under Subsection (6) of Section 4 to seek the same remedy from the trial Court as was sought from the High Court. The difference would have been only this that in that eventuality it would have taken few weeks or at the most few months; while in the present situation where the normal course has been deflected by the High Court the time that has already been consumed is about 4 years. Such like inherent and consequential elements in the interference by the High Court, as has been demonstrated in this very case, instead of advancing the course of justice sometimes prove counter productive. It is often said that if a Court has no jurisdiction it is better for the High Court to interfere in its extra-ordinary jurisdiction to provide swift and efficacious remedy. Experience has shown and it has now been recorded as opinion in a large . number of cases, that in practice even if it was so few decades ago, it is no more so in the present circumstances. See a very recent judgment of this Court on this very issue. Messrs English Boot Shoes Ltd. v. Collector, Central Excise and Land Customs (Civil Appeal No.344-K of 1986, decided on 24.12.1991). On this legal point alone, therefore, these appeals must succeed. But the matter would not end here. The case has taken a different complexion. It is not appropriate now to end the matter by the afore-rendered decision. In the impugned judgment in addition to the expression of views by the High Court on facts and merits of the case, (it) has also held that the offence alleged in this case is not a scheduled offence. Arguments were also addressed before us on this question, hence we proceed to decide it so as to save the parties from further delay and expense. The definition of Scheduled offence as contained hi Section 2(d) of the Ordinance does include a rider to be to the offences which are mentioned in the schedule and which undoubtedly are alleged in this case. The rider is that those offences should have been alleged to have been committed "in respect or in connection with the business of a bank". It needs to be emphasized that the expression "business of a bank" used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words "business" and the "bank". These are "in respect of or "in connection with". The scrutiny of the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word "Business" as separate from the word "Bank". Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors dealings as well as dealings in trading and other enterprises are their business. There is no need to dilate upon the scope of the expressions "in respect of and "in connection with" any further. In the light of what has been stated about the definition, in this case the allegation made against the accused undoubtedly involved the business of the bank more directly than by invoking aid from the expression "in respect of or "in • connection with". With respect, the approach of the High Court te find loss, compensation and other similar elements' connected with the complainant, accused or the bank, would amount to reading much more in the definition itself than is justified either by the language used therein or even by the intendment underlying the same. The intention being that all conceivable situations, linked with the business of the bank, would make the offences mentioned in the schedule as scheduled offences. Thus to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences. | There are other questions in this case which the High Court undoubtedly has decided but we would refrain from making any comment thereon as according to our findings the interference by the High Court in its Writ jurisdiction not being justified the case has yet to be tried by the Special Court . Not only this it has been stated that the subject-matter of this dispute is pending adjudication before a Civil Court as well. We would, therefore, observe that except for the decision on the questions of the jurisdiction of the High Court under Article 199 of the Constitution and the jurisdiction of the Special Court regarding Scheduled Offences none of the other findings and observations shall influence the course of trial of the cases before the Civil and Criminal Courts. There is yet another point to be dealt with. During the hearing of these appeals, it came to light, as above, that the civil suit dealing with the same subject matter is still pending. We asked the learnd counsel for the appellants to address arguments on the point; whether, in accordance with the ordinary rule laid down by this Court that in such like situation the proceedings in the criminal Court would remain stayed till the decision of the Civil Court, should not be followed, he had not much to say to oppose this procedure. See the case of Abdul Haleem v. Tlie State (1982 SCMR 988) wherein this rule was also followed, In the light of the foregoing discussion we allow these appeals, set aside the impugned judgments and direct that the accused/respondents shall be tried by the Special Court (Banks) for offences under the Banks (Special Courts) Ordinance IX of 1984. It is further directed that the proceedings before the said Court shall remain stayed till the decision of the civil matter, the information regarding which decision, would be laid before the criminal Court by the parties concerned including the appellants. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1992 SC 429 PLJ 1992 SC 429 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, abdul qadeer chaudhry and wali muhammad khan, JJ GHULAM SARWAR-Appellant versus CHAIRMAN, CENTRAL BOARD OF REVENUE, and another-Respondents Civil Appeal No.213 of 1988, decided on 12.1.1992, (approved for reporting on 2.2.1992). [On appeal from judgment, dated 23.10.1985, of Federal Service Tribunal, in Appeal No.41/R of 1985.] Misconduct- —Government servant-Removal from service of--Challenge to-It was not necessary to associate appellant in first inquiry as a complainant, falsely accusing his superiors-It was open to authority concerned either to adopt shorter procedure or detailed inquiry procedure against appellant-There is intrinsic evidence in his own writings and complaints against his superiors wherein he sat in judgment over alleged acts of his superiors and tried to convict them in absentia-It has rightly been treated as an act of indiscipline-­ Held: So far as finding of guilty is concerned, there is no reason to interfere with impugned judgment, but so far as charge of corruption is concerned, there was no clear material before Tribunal to reach this conclusion—Finding of guilty upheld but punishment substituted by compulsory retirement. [Pp.431&432]A,B,C,D&E Mr. M.S. Siddique, Advocate, Supreme Court, and Mr. Manzoor Ilahi, Ex- AOR for Appellant. Ch. Ijaz Ahmad, Deputy Attorney General, and Mr. Ejaz Muhammad Klwn, AOR for Respondents. Date of hearing: 9.12.1991. judgment Muhammad Afzal Zullah, CJ,~This appeal through leave of the Court is directed against the judgment of the Federal Service Tribunal; whereby, an order of removal from serivce passed against the appellant on ground of misconduct was upheld. The appellant had levelled serious charges against his superiors. An enquiry was held in that case in which the appellant could be treated as 3. complainant and as a result thereof the accused/respondents therein were exonerated. This led to a punitive action against the appellant in having levelled such charges against his superiors which were not substantiated. It was also treated as a case of indiscipline on the part of the appellant and lastly some allegations of corruption were also noticed against him. As a result of all this he was removed from service. His appeal before the Service Tribunal havirfg failed leave to appeal was grtmted to examine the validity of the order of removal. Learned counsel for the appellant has contended that the inquiry conducted against other persons was not an inquiry againt the appellant; 'therefore, the results of the other inquiry could not be used against him. In this very context he advanced a multiple argument that the appellant had not been associated in the earlier inquiry so as to afford him opportunity of proving the case against whom he had made the complaint. The Tribunal while disposing of the appeal and keeping in view similar circumstances as above observed as follows:-- "The learned counsel for the State and also the departmental representative contended that detection of cases by the Customs Officer is a matter of routine duty by all officials of respondent department. The case so detected in the past cannot be cited as a defence against the irregularities of the future. In this particular case the appellant had made general complaint against M/s Allied Cosmetics for evasion of excise duty. Since there was no specific case giving details of evasion of excise duty, the competent authority had considered it appropriate to investigate the matter. If, however, a specific complaint was made against the Assistant Collector Incharge. the competent authority would have certainly detailed an officer senior to him to look into the matter. However, as a result of this enquiry the facts were proved otherwise. It was found that the appellant was in fact the one who was coercing the firm to get bigger share as monthly payment from the firm. It was also brought out by the Enquiry Officer that the Inspector Mr. Naqvi was performing his duties to the satisfaction of his superiors. He only happened to be the hurdle in the way of the appellant in his coercive methods against the firm. "The learned counsel for the State referred to Rule 5(1) (iii) (a) - show cause notice procedure - dispensing with enquiry and contending that in this case there was no requirement of holding enquiry because there was sufficient proof against the appellant to adopt the procedure under Rule 6 of Government Servants (E&D) Rules, 1973. The explanation given by the appellant hi reply to the show cause notice was not substantiated by facts". In so far as the above observations of the Tribunal are concerned they do indicate that second inquiry (against the earlier set of accused) in the present case was not necessary. It would have amounted to double jeopardy though the earlier accused could have been examined against the present appellant in support of the proposition that he had falsely accused them. We also do not agree with the learned counsel that in the first inquiry iUwas an absolute necessity to associate the appellant as a complainant. He had no such right. Of course in the second case against him it was open to the authority concerned either to adopt the shorter procedure or detailed inquiry procedure. The selection of one or the other, in the circumstances like those of the present case would not call for interference by this Court. Apart from the debatable question as to whether the appellant himself was found guilty of corruption and thus his removal partly is based on this charge; there is intrinsic evidence in his own writings and complaints against his superiors wherein in addition to making complaint he in emotional upsurge sat in judgment over the alleged acts of his superiors and tried to convict them and that also in absentia. It could and rightly has been treated as an act of indicipline. If a charitable view could be taken it was that the appellant although permitted to complain even against his superiors, was absolutely insolent besides being tactless. Thus in so far as the finding of guilty is concerned there is no reason for this Court to interfere with the impugned judgment in this behalf. There is no other question of law of public importance which could be the basis for interference. However, on the question of the charge of corruption which the Tribunal assumed had also been established against the appellant, there was no clear material before the Tribunal to reach this conclusion and in a way it amounted to going beyond what the departmental authorities had found against the appellant. The observation in para-5 of the impugned judgment that there was finding against the appellant that he had coerced the firm in question to get bigger share as monthly payment, was without any supporting material because the learned Deputy Attorney-General despite having been afforded fair opportunity of producing any such finding, has failed to do so. We, therefore, while upholding the finding of guilty on other charges, hold that the charge of corruption in para 2 of the charge-sheet should not have weighed with the Tribunal. As a result of the afore rendered finding it becomes necessary to remand the case to the Tribunal to examine the effect of the exclusion of one basis for the finding of guilty which related to corruption. Both the learned counsel agreed that if such a situation arises, this Court instead of remanding the case may make proper modification in the punishment. Thus we consider it a fit case in which the punishment of compulsory retirement could have met the ends of justice. Accordingly, while partly allowing this appeal we order the substitution of the punishment to compulsory retirement as agreed. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1992 SC 436 PLJ 1992 SC 436 [Appellate Jurisdiction] Present: saad saood jan and abdul shakurul salam, JJ ABAD ALI~Petitioner versus THE STATE-Respondent Cr. P.S.L.A. No. 349/L of 1991, dismissed on 16.2.1992. [From Judgment/Order of Lahore High Court, dated 10.8.1991, passed in Crl. Appeal No. 620 and M.R. 146 of 1989.] Criminal Trial- —Murder-Oftence of-Conviction for--Challenge to-Prosecution case rested mainly on ocular account provided by P.W. 9 and P.W. 10-Trial Court as well as High Court found their testimony to be substantially true-According to postmortem report, deceased had received 5 incised wounds on his body and fatal wound was attributed to petitioner-It was petitioner who first attacked deceased--Out of two accused, he alone had motive to kill deceased—Held: Courts below have not erred in awarding capital punishment to petitioner-­ Leave refused. [P 437]A,B&C KJi. Sultan Ahmad, Senior Advocate, Supreme Court, instructed by Mr. S. AbulAasim Jaferi, AOR for Petitioner. Respondent: Not represented. Date of hearing: 16.2.1992. order Saad Saood Jan, J.~The petitioner alongwith one other was convicted by the Additional Sessions Judge at Faisalabad of an offence under Section 302 read with Section 34, Pakistan Penal Code, and was sentenced to death. On appeal and reference the High Court confirmed the sentence of death. He now seeks leave to appeal from this Court. The occurrence allegedly took place on 2.11.1987 at 8-30 a.m. at the bus-stop in Thikriwala. Muhammad Aslam, deceased, had come there on a bus. As he was alighting from the bus the petitioner together with the co-accused attacked him with chhuris. The deceased died at the spot. The occurrence was witnessed by his brotha Muhammad Akram and some others. Muhammad Akram went to Police Station, Thikriwala, which was one square away and lodged the F.I.R. at 8.45 A.M. According to the prosecution the relations between the deceased and the petitioner were extremely strained on account of theft of water by the petitioner and due to the pendency of another case against the petitioner in a criminal Court in which the deceased was a witness for the prosecution. These strained relations were stated to be the motive for the occurrence. abad ali v. the state (Saad Saood Jan, f) SC437 1992 The case of the prosecution against the petitioner rested mainly on the ocular account provided by Muhammad Akram (PW-9) and Bashir Ahmad (PW- 10). The trial Court as well as the High Court found their testimony to be substantially true and accordingly convicted the petitioner of an offence under Section 302 read with Section 34 for causing the death of the deceased. Learned counsel for the petitioner has not challenged the conviction of the petitioner for the offence under Section 302. He has, however, contended that this JB was not a fit case where the sentence of death should have been imposed upon the petitioner;. After going through the record we are unable to find any merit in this contention. According to the post-mortem report the deceased had received 5 incised wounds on his body; only one of these was fatal. It was attributed to the petitioner. Apart from that, it was the petitioner who first attacked the deceased. Further, out of the two convicts he alone had the motive to kill the deceased. In the circumstances, we do not think that the Courts below erred in awarding him the capital punishment. Leave is refused. (MBC) (Approved for reporting) Leave refused.

PLJ 1992 SC 437 PLJ 1992 SC 437 [Appellate Jurisdiction] Present: shafiur rahman, abdul shakurul salam and rustam S. sidhwa, JJ ABDUL HAMID-Appellant versus MUHAMMAD MAALIK alias MIKKI and another-Respondents Criminal Appeal No.42 of 1989, dismissed on 19.2.1992. [On appeal from judgment of Lahore High Court, dated 4.12.1985, passed in Criminal Appeal No.343 of 1984.] Appeal against Acquittal- —-Abduction and murder-Offence under Sections 302 and 364 PPC--Acquittal of accused under Section 302 but conviction under Section 364 PPC--High Court acquitted accused under Section 364 PPC also--Appeal against-There is no evidence to show that accused-respondent, by force, compelled or by any deceitful means induced deceased to leave his house-In fact, Second Lt. Adil Naveed requested deceased to accompany them to settle dispute between deceased and accused-respondent-There is nothing to show that deceased was abducted with intention to murder him—Fact that accused-respondent brought deceased to Mayo Hospital in an injured condition, is not established as Doctor and Parchi Clerk could not identify him as person who had brought deceased and given name and address of accused-respondent--Held: Findings of High Court are neither arbitrary nor fanciful-Appeal dismissed. [Pp.443&444]A,B,C&D Kit. Muhammad Sharif, Advocate, Supreme Court, instructed by Rana Maqbool Ahmad Qadii, AOR for Appellant. Mr. Salim Ahmad Malik and Mi: DM. Awan, Advocates, Supreme Court, for Respondent No.l Mr. Muhammad Sharif Butt, Advocate, Supreme Court, instructed by Rao Muhammad Yoitsuf KJian, AOR for State. Date of hearing: 4.2.1992. judgment Rustam S. Sidhwa, J.-This is an appeal by Sh. Abdul Hamid appellant against the judgment of a learned Single Judge of the Lahore High Court dated 4.12.1985 challenging the acquittal of Muhammad Malik alias Mikki respondent in respect of an offence under Section 364 PPC. 2. The initial occurrence of the abduction of Rizwan Hameed deceased of this case is alleged to have taken place on 17.6.1983 at about 1.30 p.m. at 6-Park Lane, Tample Road, Mozang, Lahore, quite close to the said police station, and the'occurrence relating to his murder is alleged to have taken place on the night between 17/18.6.1983 at an unknown place, which was reported at Police Station Mozang in the morning at 6.05 a.m. of 18.6.1983 by Irfan Hameed (not produced), the brother of the deceased, who found the injured dying in the Casualty Medical Ward of the Mayo Hospital, the same night. 3. The case for the prosecution as contained in FIR Ex.PK lodged at the instance of Irfan Hameed, the elder brother of the deceased is as under:- "I live with my parents in 6-Park Lane , Tample Road , Mozang, Lahore . Rizwan Hameed, aged about 20/21 years,, is my younger brother, who is a student of the third year in the Engineering University . He' had been earlier studying in Saint Anthony's High School alongwith Adil Naveed, now a Second Leutinent, resident of Islamia Park and Malik Muhammad Maalik alias Mikki son of Malik Yazdani resident of Shahdara so being friendly towards Rizwan Hameed since his childhood used to visit our house. However, Rizwan Hameed had strained relations with Muhammad Maalik alias Mikki for the last about 4/5 months and during this interval Muhammad Maalik had come to our house to inquire about Rizwan Hameed who had refused to see him. Yesterday at about 1.30 in the day, afore-mentioned Muhammad Maalik alias. Mikki alongwith Adil Naveed, second Leutinent, his brother Aqil, who are also known to me alongwith two unknown came in front of our house in a reddish brown Toyota car and then Adil Naveed, through our servant Baba Taj Din, called out Rizwan Hameed. On seeing Muhammad Maalik in the car, Rizwan refused to accompany them and so there was an altercation in a loud voice, which attracted me and my younger brother Imran Hameed and then Adil Naveed pacified Rizwan and persuaded him that he would get a reconciliation and a compromise effected between them, so Rizwan agreed to accompany them, since he did not return uptil late night, so we felt suspicious and searched for. him even to the houses of who had accdriipanied him. Being dis-satisfied in the search then suspecting any accident we started searching Rizwan Hameed in the hospitals and as such reached Casualty Ward of the Mayo Hospital , at about 10.30 p.m. and found Rizwan Hameed admitted there with injuries on the death bed there. I was still preparing for giving the blood when Rizwan Hameed died of the. injuries. The aforementioned persons had abducted my brother and so had committed his murder under a design. There was fire­arm injury on the back of Rizwan Hemeed who has died of the same. I informed my heirs regarding the occurrence and now have come to make

a report". 4. Prior to the lodgement of the above FIR, on 17.6.1983 at 10.00 p.m. Rizwan Hameed deceased had been brought to Mayo Hospital by Muhammad Maalik accused, where he was medically examined by Dr. Tanvir Ahmad, Casualty Medical Officer, PW5 who found a fire-arm wound 6 cm x 4 cm with tattooing present on the back of the right upper part of the chest. The injury was by a fire­ arm freshly caused. He advised X-ray and referred the case to the Emergency Ward/North Surgical Ward. He sent information to Police Station Shahdara regarding the arrival of the injured person. Niaz Ahmad PW18 at that time was working as Parchi Clerk in the Mayo Hospital . He made the entry of Rizwan Hameed in the Patient Register at serial No.33126 the same day at 10.00 p.m. He also informed Police Station Shahdara of the arrival of the injured at 12.00 midnight by telephonic message. 5. Mukhtar Hussain ASI PW17, of Police Station Shahdara, on receipt of the information from his Police Station about the injured Rizwan Hameed, proceeded to Mayo Hospital , where he reached at 01.15 a.m. on 18.6.1983. He contacted Niaz Ahmad, Parchi Clerk, PW18 to explain the reason for his delay in intimating about the arrival of Rizwan Hameed, to which he was informed that as Rizwan Hameed had informed him that he had received injuries accidentally, so he did not desire' police proceedings, but after he had died, he had sent the message. Sh. Abdul Hameed PW11 and Mst. Rehana Hameed PW10, the father and mother of the deceased, who were present, refused to give any statement to him. Since the case related to Police Station Mozang, he awaited the arrival of Sardar Ali Inspector PW16 from the said Police Station, who, after reaching the hospital, recorded the FIR Ex.PK of Irfan Hameed (not produced) as stated above. 6. Sardar AH Inspector PW16, after preparing the necessary papers, sent the dead body of Rizwan Hameed for post mortem examination. Thereafter, he proceeded to the house of the complainant and prepared sit«,nlan Ex.PN. 7. Dr. Muhammad Farooq Akmal PW7 conducted the post mortem examination on the dead body of Rizwan Hameed deceased on 18.6.1983 at 11.10 a.m. and found a fire-arm entry wound 6 cm x 4 cm on the back of the upper part of right chest, with tatooing and contused/ragged edges. The three ribs were fractured and the right lung and pleura were injured. The injury was fatal and anti-mortem. 8. On 19.6.1983 Sardar Ali Inspector PW16 reached the house of Muhammad Maalik accused situate in Shahdara Town, where his father Malik Yazdani produced before him his licence PI of his gun, which he took into possession vide memo. Ex.PA. He also took into possession licenced gun P5, bandolier P6 containing 6 live cartridges P7/1-6 and a crime empty P8, vide memo. Ex PD. He also took into possession a blood stained carpet vide memo. Ex PE, a blood stained pillow-case P10 and a blood stained bed-sheet Pll vide memo Ex PF and a pair of shoes P12/1-2 allegedly belonging to the deceased vide memo. Ex PG. All these recoveries were witnessed by Zakaullah F.C. PW3 and Sardar Ali Inspector PW16. . 9. On 22.6.1983 Muhammad Nazir, a servant of the accused, who had accompanied the accused and the deceased to the hospital, produced his own blood stained shalwar P13 and blood stained shirt P14, which were taken into possession vide memo. Ex PH. The recoveries were also witnessed by Zakaullah F.C. PW3 T Mukhtar Hussain ASI PW and Sardar Ali Inspector PW16. 10. Sardar Ali Inspector PW16 arrested Muhammad Maalik accused on 22.6.1983. 11. After completing the investigation, the challan against the accused was sent up. 12. The accused was charge sheeted under Sections 302 and 364 PPC, who denied the^ailegations. 13. At the trial, the prosecution produced Mst. Rehana Hameed PW10, Abdul Hameed PW11, Taj Din PW12 and Irnran Hameed PW13 to prove that on 17.6.1983 at about 1.30 p.m. Lt. Adil Naveed, his brother Aqil, accused Muhammad Maalik and two unknown persons had come to their house in a car and had taken away Rizwan Hameed deceased, so as to effect some compromise between him and the accused, whereafter the whereabouts of the deceased were not known, till they started making inquiries and reached the Mayo Hospital at 10.00 p.m. where they found that he had been admitted there and had already died; Niaz Ahmad Parchi CIcrK PW18, Dr. Tanvir Ahmad PW5 and Mukhtar Hussain ASI PW17 to show thai on 17.6.1983 at 10.00 p.m. Muhammad Maalik accused had brought Rizwan Hameed to the hospital in an injured condition, which fact was noted by these witnesses in the Patient Register, the medico-legal report and Roznamcha Report No.43 Ex PK at Police Station Shahdara; Zakaullah F.C. PW3, Mukhtar Hussain ASI PW17 and Sardar Ali Inspector, PW16 to prove the recovery of the accused's father's licenced gun P5 with empty and live cattridges and blood stained pillow-case, bed-sheet, carpet and a pair of shoes of the deceased, as also the blood stained clothes of Muhammad Nazir, employee of the accused, who had accompanied the accused and the deceased to the hospital; Dr. Tanvir Ahmad PW5 and Dr. Muhammad Farooq Akmal PW7 in corroboration of the medical testimony; and the reports of Chemical Examiner and Serologist to show that the blood found on the items recovered from the house of the accused was of the same group as found on the clothes of .the deceased. 14. At the trial the accused denied each and every accusation that was levelled against him, including the recoveries alleged to have been effected from his father's house and claimed innocence and pleaded that the witnesses had deposed against him due to suspicion and misunderstanding. He did not lead any evidence in defence. 15. The trial Judge acquitted Muhammad Maalik accused under Section 302 PPC, but convicted and sentenced him under Section 364 PPC. 16. Being aggrieved by the above conviction and sentence, Muhammad Maalik accused preferred an appeal in the High Court, which was accepted. (A) With regard to the case against the accused under Section 302 PPC, the learned Single Judge held that there was no direct evidence of the murder of the deceased by the accused. Regarding various items of circumstantial evidence he held as follows:- (/') With regard to the evidence of last seen, the learned Judge held that Rizwan Hameed deceased had been taken away from his house at 1.30 p.m., from the statements of the two doctors it appeared that the deceased had received injuries some time between 7.00 to 10.00 p.m., that the prosecution had not disclosed what had happened to the deceased between this interval of 5 to 9 hours and that therefore the accused could not be put to the burden of explaining any presumption against him that he alone had committed the crime in instance. (//) Regarding the recovery of the blood stained carpet, pillow-case and bedsheet from the house of the father of I he accused, the learned Single Judge held that as other members of the family of the accused also resided in the house, itcould not be stated that the recoveries were made from the exclusive possession of the accused and that the evidence failed to exclude the hypothesis that the accused was innocent. (//'/) With regard to the recovery of the alleged pair of shoes of the deceased, the learned Judge held that the same was of no consequence because the prosecution did not care to get it identified either by Rehana Hameed PW10, Abdul Hameed PW11, Taj Din PW12 or Imran Hameed PW13, the mother, father, servant and brother respectively of the accused. (/v) With regard to the entry in the medico-legal report of Dr. Tanvir Ahmad PW5 and evidence of Niaz Ahmad, Parchi Clerk PW18 which disclosed that the accused had brought the deceased in an injured condition to the Mayo Hospital on 17.6.19^3 ^gbout 10.00 p.m., the learned Judge held that the same was of no consequence, as both the said witnesses had failed to identify the accused in Court as the same Muhammad Maalik son of Malik Yazdani whose name had been entered in the medico-legal report and in the Patient Register. The learned Judge held that even assuming that the accused had so brought the deceased to the hospital, he would not have done so unless the occurrence was accidental. For all these reasons, the learned Judge held that neither there was any direct evidence as regards the murder of the deceased by the accused nor the circumstances relied upon by the prosecution excluded the hypothesis of his innocence and that as such no exception could be taken to his acquittal under Section 302 PPC. (B) With regard to the accused's case under Section 364 PPC, the learned Single Judge held as follows:— (/) By virtue of the ingredients contained in Section 362 PPC relating to the definition of abduction, the accused could not be stated to have induced the deceased in any manner to accompany him from his house in the car in question, as there was no evidence that he had ever spoken or asked the deceased to accompany him, whereas the inducement had actually come from Second Lt. Adil Naveed. (//) That Second Lt. Adil Naveed who had allegedly induced the deceased to accompany him in the car with the accused and had so succeeded and was the principal accused was not prosecuted and that in his absence Muhammad Maalik accused could not be convicted for either sharing common intention/object or being the abettor or conspirator or being otherwise vicariously liable. (/V7) In view of the ingredients of Section 364 PPC, there was no evidence that the deceased at the time of his abduction had been so abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered because the possibility of the deceased having been taken away from his house innocently could not be excluded and something having intervened from the time he was taken to the time he met his death had not been explained In these circumstances, the learned Single Judge granted the benefit of doubt to the accused. 17. Being aggrieved by the above acquittal, Sh. Abdul Hameed complainant petitioned this Court for leave to appeal, which leave was granted to consider the total evidence. 18. We have heard the argum5Tits of the learned counsel for the appellant, the convict/respondents and the State and have perused the record. 19. On being questioned as to whether the learned counsel for the appellant would like to press the case regarding culpability under Section 302 or 364 PPC, the learned counsel for the appellant submits that he would press the case under Section 364 PPC. 20. In respect of the same the learned counsel has again referred to the same items of evidence referred to by the learned Single Judge in para 16B above, which need not be repeated. 21. As regards the evidence of Mst. Rehana Hameed PW10, Abdul Hameed PW11, Taj Din PW12 and Imran Hameed PW13, there is nothing which shows that the accused/respondent even talked to Rizwan Hameed deceased or verbally asked or beckoned him to go with him in his car. In fact Second Lt. Adil Nayeed requested the deceased to accompany them in order that some dispute between him and the accused/respondent could be settled. There is therefore no evidence to show that the accused respondent by force compelled or by any deceitful means induced the deceased to leave his house. 22. Further, nothing appears from their evidence to show that at the time when Second Lt. Adil Naveed induced the deceased to accompany them in their car that it was done in order that he would be murdered or may be so disposed of as to be put in danger of being murdered. The evidence shows that the deceased and the accused respondent had been fast friends from their schooldays, that 4-5 months prior to the occurrence their relations were not good as the accused/respondent used to waste the time of the deceased whenever he visited him, which the deceased did not like, that the deceased did not like to meet him as the accused/respondent had assumed a vagabond behaviour, that at one time the two had quarrelled in the deceased's house when the accused/respondent had hurled chairs and tables at the deceased, which the deceased had warded off successfully, that the cause of this rumpus was that the accused/respondent wanted the deceased to accompany him, which the deceased did not like and had refused, and that finally Mrs. Rehana Hameed PW10, the mother of the deceased, had ticked of the accused/respondent and had told him to leave the house and not to come again. These incidents, even if all accepted, do not lead to the unequivocal inference that the accused/respondent was so inimically inclined to the deceased that he would have looked for an opportunity to kill him. There is no direct proof or evidence as would show that the accused/respondent was motivated by some impelling fact, that he intended to murder the deceased or was so disposed as to put him in danger of being murdered. The prosecution has to show such unimpeachable facts and circumstances which would leave a reasonable man of ordinary prudence to the irresistible conclusion that the object or the purpose of the alleged abduction was that the victim would be murdered or with the object that murder would be the likely result. The circumstances brought on the record do not lead to any such irresistible conclusion? 23. The fact that there was a time lag of 5-8 hours between the time when the deceased was taken from his house to the approximate time when he was allegedly done to death, shows that it was not so short as would raise the presumption that the accused/respondent alone would have committed the offence and the burden of showing that it was not so can be placed on his shoulders. The margin of time being fairly large, no such presumption can be raised against the accused/respondent, nor can he be asked to displace the same. 24. The fact that the accused/respondent brought the deceased to the Mayo Hospital in an injured condition at 10.00 p.m. on 17.6.1983, does not stand .clearly established as both Dr. Tanvir Ahmad PW5 and Niaz Ahmad, Parchi Clerk, PW18 could not identify the accused/respondent in the dock as the person who had given his name as Muhammad Maalik son of Malik Yazdani, which name they had entered in the medico-legal report and Patient Register respectively. The view of the learned Single Judge that had the accused/respondent committed the crime, he would not have reported his name to the hospital authorities when getting the deceased admitted there, or that assuming he had, the possibility that it was not culpable murder but accidental, cannot be totally excluded, considering that Niaz Ahmad Parchi Clerk, PW18 also stated that the deceased had informed him that he had received injuries accidentally and so did not desire police proceedings, as a result of which he had not sent the message to the police station till he had died. 25. The ultimate finding of the learned Single Judge therefore that the accused/respondent was not liable under Section 364 PPC appears to be based on a proper appraisal of the evidence on the record and the law on the subject. The observation of the learned counsel for the respondent that unless all the grounds on which the High Court has purported to acquit the accused are not supportable from the evidence on the record, this Court should be reluctant to interfere even though upon the same evidence it may be tempted to come to a different conclusion, cannot be ignored. We cannot avoid the view that the findings of the learned Single Judge are neither arbitrary nor fanciful. Taking all the circumstances into consideration, we see no ground for interference. 26. There being no merit in this appeal, the same is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 445 PLJ 1992 SC 445 [Appellate Jurisdiction] Present: SHAFiUR rahman, abdul qadeer chaudhry and ajmal mian, JJ Sardar ABDUR RAUF KHAN and others-Petitioners versus . : ' LAND ACQUISITION COLLECTOR, ABBOTTABAD and another- Resporidents Civil Review Petition Nos. 119, 122, 123,124,125,126,127,128,129,130,134,135, 136, 137, 138, 139, 140. 141, 142 and 151 of 1991, dismissed on 24.3.1992. [For review of judgmet dated 13.7.1991, passed by Supreme Court, in Civil Appeal. No. 1-P of 1990 and other connected Civil Appeals.] (i) Condonation of Deluy-- —Supreme Court-Judgment of-Review of-Prayer for-Whether delay could be condoned without formal application for condonation of delay-Question of--Question of limitation was raised for first time during arguments-- Generally a request for condonation of delay is to be made through an application, but in a fit case. Supreme Court can condone delay even on oral request and there is no such prohibition in rule (2) of Order XII of Supreme Court Rules, 1980--In any case, question of condonation of delay was a matter of discretion—Held: Exercise of discretion cannot be reviewed through a review petition-Review petition dismissed. [Pp.447,448&450]B,C,D,&E (ii) Review-- —Supreme Court—Judgment of—Review of—Prayer for—Whether court could treat petitions for leave to appeal as appeals-Question of--Held: It is well settled proposition of law that Supreme Court has discretion to treat a petition for leave to appeal as an appeal under clause (2) of Article 185 of Constitution. [P447]A Mr. Abdul Hakeem Klwn, Senior Advocate, Supreme Court, instructed by Mr. Ejaz Muhammad Khan, AOR for Petitioner (in C.R.P. Nos. 119 and 122 to 130 of 1991). Mr. S. Safdar Hussain, Advocate, Supreme Court, instructed by Mr. Ejaz Muhammad Klian, AOR for Petitioners (in C.R.P. Nos. 134 to 142 of 1991). Mr. S. Asghar All Shah Sabzwari, Advocate, Supreme Court, instructed by Ch. Akhtar All, AOR for Petitioners (in C.R.P. No. 151 of 1991). Ch. Ijaz Ahmad, Deputy Attorney General, and Malik Hainid Saeed, Addl. Advocate General, NWFP, for Respondents (in all Review Petitions). Date of hearing: 24.3.1992. judgment Ajmal Mian, J.-By this common judgment we intend to dispose of the above 19 Review Petitions. 2. By the above Review Petitions, review is sought of the judgment dated 13.7.1991 passed by this Court in Civil Appeal No. 1-P of 1990 and other connected Civil Appeals. The above Review Petitions were admitted to consider the question, whether a petition for leave to appeal under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as 'the Constitution', was not competent when an appeal under clause (2) of the above Article was competent. 3. The facts giving rise to the above Review Petitions are, that Civil Appeals Nos. 1-P and 3-P to•8-P/1990,' 4 to 11 of 1990, 27/1990, 46 to 48/1990, 724 to 727/1990, 235-P/1990 arid 236-P/199Q, were filed by the owners of the land whose land was acquired, hereinafter referred to as 'the owners of the land', whereas, Civil Appeals Nos. 115-P to 149-P/1990 were filed by the Government of N.W.F.P., hereinafter referred to as 'the Provincial Government'. Most of the owners of the land filed aforesaid Civil Appeals directly under clause (2) of Article 185 of the Constitution but some of the owners of the land and the Provincial Government filed their appeals with the leave of this Court. When the above appeals came up for hearing before this Court, it was urged inter alia by Mr. Abdul Hakeem Khan, learned counsel for some of the owners of the land in the aforementioned appeals, that the Provincial Government's appeals were time barred. In support of the above submission, it was contended that the Provincial Government should have filed direct appeals within 30 days under clause (2) of Article 185 of the Constitution, instead of filing petitions for leave to appeal. It has been observed in the judgment, of which review has been sought, that "it seems that Civil Appeals Nos. 1-P, 4-P to 9-P, 11-P and 27-P of 1990 filed by some of the land owners are also barred by time by 2 to 15 days. Whereas, the N.W.F.P. Government appeals, if they are to be treated as direct appeals, are time barred by about 33 days, but if the same are to be treated as appeals with the leave of the Court, the same are within time". This court condoned the delay for the following reasons, referred to in para 6 of the above judgment: " Para 6 ...................................................................................................... Since we are going to examine the judgments in connection with the appeals which are within time filed by the land owners, we are inclined to condone the delay in filing of the aforesaid Civil Appeals Nos. 1-P, 4-P to 9-P, 11-P and 27-P of 1990 with a view to avoid conflicting judgments. As regards the appeals filed by the Government of N.W.F.P., we are inclined to condone the delay, if any, in filing of the above appeals as we have condoned the delay in the aforesaid Civil Appeals of the land owners." However, after condoning the above delay in filing of ihe above appeals, it has also been held that "if a parly loses his right to file a direct appeal because of the limitation, he may invoke Clause (3) of Article 184 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits". 4. In support of the above Review Petitions, Mr. Abdul Hakeem Khan, learned counsel for some of the petitioners, has vehemently urged that as direct appeals under clause (2) of Article 185 of the Constitution were competent, the petitions for leave to appeal, filed by the Provincial Government, were mis­ conceived and. therefore, its above appeals should have been dismissed. To reinforce his above submission, he has relied upon a judgment of this Court in the case of Iftikhar Hitssain and others vs. Pakistan through Secretaiy, Ministry of Defence, Rawaalpindi and others (1991 SCMR 2193), in which it has been held that the High Court could not have converted the appeals into revisions as the Order against which the revision was said to be competent, was an appealable order. Reliance was placed on the earlier judgments of this Court in the case of S Azizul Hasan and another vs. Malik Glutlam Muhammad (1971 SCMR 123) and the case of Muhammad Ibrahim and another v. Group Captain Salehuddin and others (1987 SCMR 218). 5. The above cases have no relevancy to the point in issue. The question involved in the present Review Petitions is, as to whether this Court could treat petitions for leave to appeal as appeals. In this regard reference may be made to the case ofHaji Muhammad Nawaz v. Hussain Shah (1990 SCMR 1621), in which, instead of filing a direct appeal under clause (2) of Article 185 of the Constitution, A a petition for leave to appeal was filed but this Court treated the same as an appeal and has condoned the delay. Mr. Abdul Hakeem Khan is unable to cite any judgment of this Court in which a contrary view might have been taken. It is a well settled proposition of law that this Court has the discretion to treat a petition for leave to appeal as an appeal under clause (2) of Article 185 of the Constitution. 6. Then it was contended by Mr. Abdul Hakeem Khan that neither any application for condonation of the delay was made nor any case for condonation JB of the delay was made out and, therefore, it is a fit case for review of the judgment on the above point. 7. It is true that there was no formal application for condonation of the delay but this is to be viewed with the factum that it was first time during the arguments that the above question of limitation was raised. However, it was not correct to urge that no ground for condonation of delay was made out. This Court, C while condoning the delay, has given reasons, the relevant portion of which is reproduced hereinabove. The question of condonation of delay has also been touched upon in para 8 of the judgment in question, wherein reliance has been placed on the case of Commissioner of Income Tax, Rawalpindi vs. Lyallpur Cold Storage, Lahore Road, Lyallpur and others (PLD 1987 SC 436). 8. We may observe that generally a request for condonation of delay in respect of limitation period is to be made formlly through an application but in a fit case, this Court can condone the delay even on the basis of oral request. There is no such prohibition contained in rule (2) of Order XII of the Pakistan Supreme Court Rules, 1980, hereinafter referred to as 'the Rules', relied upon by Mr. Abdul Hakeem Khan. Since the question of limitation was raised in the midst of the arguments, it was considered just and proper to condone the delay without insisting upon a formal application. In any case, the question of condonation of delay pertaining to limitation period was a matter of discretion. The exercise of the above discretion cannot be reviewed through a review petition. We asked Mr Abdul Hakeem Khan to cite any case law in which a Court might have recalled the order of condonation of delay of the period of limitation in exericse of review jurisdiction, which he failed to cite. In our view, the question of condonation cf delay in respect of limitation period cannot be subject-matter of review. 9. Adverting to the question, whether this Court can entertain a petition for leave under caluse (3) of Article 185 of the Constitution even in a case in which a direct appeal is competent under clause (2) of the above Article, it may be pertinent to refer to Article 58 of the late Constitution of the Islamic Republic of Paksitan, 1962, hereinafter referred to as 'the late Constitution', which reads as follows:-- "58. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment, order or sentence of a High Court shall lie as of right ,vhcre:— (a) the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution; (b) the High Court had sentenced a person to death or to transportation for life, or (c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal." A plain reading of the above Article indicates that under clause (3) thereof an appeal with the leave of this Court was provided against a judgment, decree, order or sentence of a High Court in a case to which clause (2) thereof was not applicable. 10. In this regard, it may be pertinent to refer to the case of Syed Masumul Hassan and another v. Shaikh Muhammad Omer (PLD 1965 SC 466) and the case of Malik Gluilam Hussain vs. Haji Muhammad Hayat (PLD 1971 SC 573). In the above first case the petitioners, instead of filing a Letters Patent Appeal before the High Court, filed a petition for leave to appeal. This court granted the above»petition for leave to appeal instead of dismissing the same on the ground of non-maintainability. The relevant portion of the Order reads as follows:-- "After hearing Mr. Ehsan-ul-Haq in support of the petition, we announced grant of leave. It was not brought to our notice at the time that the judgment in question being one delivered by a learned Single Judge of the High Court in second appeal, a further appeal within the High Court was competent, under the Letters Patent, if a certificate had been obtained from the learned Single Judge. The practke of this Court is to entertain petitions for special leave only against final judgments and orders of the High Court, that is such as are delivered or made in a case seeking the final remedy available in that Court. In view of the fact that counsel has been heard, and an order granting leave has been announced, we treat this as a special case, and proceed to state briefly the grounds for leave. But we wish to make it clear that the case is not to be regarded as a precedent." The same view was reiterated in the above second case in the following terms:- "Thus it will be noticed that though the practice of this Court is to entertain petitions for special leave only against the final judgments and orders of the High Court, this Court in some cases, has entertained petitions for special leave to appeal without asking the party to seek his remedy by way of Letters Patent Appeal. In my opinion, under Article 58(3) of the defunct Constitution of Pakistan, an appeal lies 'to the Supreme Court from any judgment of a High Court if the Supreme Court grants leave to appeal. There is no bar to entertain a petition for special leave from the judgment of a Single Judge of the High Court in a case where a Letters Patent Appeal lies. This Court, however, has made it a practice that it will not entertain a petition for special leave to appeal in a case where the party has not sought the remedy of Letters Patent Appeal available in the High Court. Ordinarily, therefore, this Court, should not have entertained petition for special leave to appeal. But since leave has been granted to the appellant and the appeal is pending before this Court for more than three years, I consider .that it will not be in the interest of justice to dismiss this appeal merely on the ground that Letters Patent remedy is available to the appellant in the High Court. I would, therefore, hold that the appeal is quite competent and overrule the preliminary objection." 11. No doubt that the present is distinguishable from the above two cases inasmuch as in the case in hand a direct appeal under caluse (2) of Article 185 of the Constitution was competent whereas, in the above Reports a direct appeal under clause (2) of Article 58 of the late Constitution was not competent. 12. Since in the judgemnt, of which review is sought, the petitions for leave to appeal were treated as appeals and the delay pertaining to limitation period was condoned, it was not necessary to have pressed into service the reason that a petition for leave to appeal would be competent under clause (3) of Article, 185 of the Constitution, even in a case where a party could file a direct appeal under clause (2) thereof. 13. As the judgment, of which review is sought, is sustainable for the aforesaid first reason, in our view, it would be appropriate to examine the question, whether a petition for leave to appeal will be competent under clause (3) of Article 185 of the Constitution even in a case where a party loses his right of appeal under clause (2) thereof, in an appropriate case, and not in this case. The above Review Petitions are, therefore, dismissed. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1992 SC 450 PLJ 1992 SC 450 [Appellate Jurisdiction] Present: muhammad AFZAL zullah CJ and wali muhammad khan, J MUHAMMAD MUMTAZ-Appellant versus MUHAMMAD SHAFI and 4 others-Respondents Civil Appeal No. 83 of 1991, accepted on 16.6.1992 [On appeal from judgment and order dated 27.6.1989/7.8.1990, of Lahore High Court, passed in C.R. No. 675-D of 1985]. Punjab Pre-emption Act, 1913 (I of 1913)-- —-S. 28-A read with NWFP Pre-emption Act, 1950, Section 29-Pre-emption-- Suit for~Pre-emptor failing to deposit decretal amount--Rival pre-emptor's suit decreed by appellate court but set aside by High Court-Challenge to- Principle that plaintiff must prove a superior right of pre-emption at time of sale and retain it till passing of decree, is subject to provisions of Section 28-A of Punjab Pre : emption Act and Section 29 of NWFP Pre-emption Act-Unless parties have indefeasible right of pre-emption under Pre-emption Law, they cannot claim any benefit from any transaction which in itself is subject to right of pre-emption of others-Held: High Court having ignored important statutory provision of section 28-A of Punjab Pre-emption Act, its judgment is not sustainable and is liable to be set aside-Appeal accepted. [Pp.455&456]A&B PLJ 1985 SC 380 rd. Mr. Muhammad Anwar Sipra, Advocate Supreme Court and Cli. Melidi Klian Mehta, AOR for appellant. Sardar Muhammad Asla/n, Advocate, Supreme Court, and Mr. Imtiaz M. Klian, AOR for respondents 1 to 3 & 5. Date of heaiing: 12.2.1992. JUDGMENT Wall Muhammad Klian, J.--Muhammad Mumtaz plaintiff/ appellant, through leave of the Court, challenges the judgment of the Lahore High Court dated 27.6.1989/7.8.1990 whereby his revision petition against the judgment of the appellate Court dated 13.3.1985, was dismissed. Leave granting order is as follows:- "Leave to appeal is granted to examine whether the High Court has ignored the implication of Section 28-A of the Punjab Pre-emption Act." The facts of the case are that Muhammad Shafi, Ghulam Shabbir, Ghulam Hassan and Atta Muhammad respondents 1 to 3 and 5 purchased land measuring 102 kanals 9 marlas vide registered sale deed dated 9.8.1980 for a sum of Rs. 56,000/- from Lai Khan vendor which gave rise to two pre-emption suits, one by Muhammad Mumtaz appellant and the other by Sanwal respondent No.4 herein. The suits were consolidated and after framing consolidated issues in the case and recording of evidence thereon, the learned trial judge came to the conclusion that Sanwal rival pre-emptor has superior right of pre-emption qua the vendees as well as the appellant on the ground of his being collateral of vendor Lai Khan and passed a decree for possession through pre-emption in his favour vide judgment and decree dated 18.2.1984 in lieu of Rs. 63,246/- inclusive of Rs. 7,246/-, compensation for the construction made over the suit property after its purchase by the vendees with a direction to deposit the sale consideration before 18.3.1984 failing which his suit shall stand dismissed. As regards the right of pre-emption of Muhammad Mumtaz appellant and the vendees/respondents, it was held that the appellant was owner in the estate and vested with superior right of pre-emption on that score qua the defendants/vendees though defendants Muhammad Shafi, Ghulam Shabbir and Ghulam Hassan were also owners in the estate but had sunk with Atta Muhammad defendant/vendee as he lacked the said qualification. However, the learned trial Court, perhaps through inadvertance, did not specifically mention in the judgment and decree that in case of failure by Sanwal pre-empter to deposit the pre-emption money the suit of Muhammad Mumtaz appellant shall stand decreed. Sanwal respondent herein did not deposit the sale consideration before time allowed in the decree and withdrew Zar-e-Punjam already deposited, resulting in the dismissal of his suit. Muhammad Mumtaz appellant preferred appeal before the -Additional District Judge and the vendees/respondents for obvious reasons did not feel the necessity of filing of appeal as 'the decree passed against them had already become ineffective on account of the conduct of Sanwal pre-empter. The learned appellate Court vide judgment and decree dated 13.3.1985 supplied the omission of the trial Court and decreed the suit of appellant and directed him to deposit Rs.63,246/-. The vendees/respondents feeling aggrieved therefrom preferred revision petition before the High Court which was accepted and by setting aside the judgment of the appellate Court, the suit of the plaintiff/appellant was dismissed holding that Atta Muhammad defendant/vendee having become owner through purchase after the transaction in question but before the suit, had acquired ownership in the village and in consequence all the vendees/defendents had equal right of pre­emption on the date of suit. Hence the instant appeal through leave of the Court. As stated above there was triangular fight between the appellent, Sanwal rival pre-emptor, and Muhammad Shafi etc. vendees in which Sanwal emerged successful as he had superior right of pre-emption being collateral of the vendor, against the vendees as well as the rival pre-emptor and got the decree but lost it on account of his failure to deposit the pre-emption money. The controversy before the appellate Court, therefore, was between Muhammad. Mumtaz appellant and Muhammad Shafi etc. vendees with regard to the superior right of pre-emption. The trial Judge has held that the appellant as well as the vendees/defendants other than Atta Muhammad were owners in the estate and had a right of pre-emption On that account but as Atta Muhammad did not possess the same right at the time of the sale his co-vendees also lost their right on the principle of sinker as recognised by the Punjab Pre-emption law, but did not grant him any relief as the suit of the Sanwal rival pre-emptor was decreed. The appellate Court concurred with him and granted decree to the appellant. However, the High Court did not see eye to eye with the reasoning of both the Courts below and relying on the provision of Section 21-A of the Pre-emption Act as well as under the settled principles of the pre-emption law that the pre-emptor must have superior right of pre-emption oh the date of sale, the date of the suit and the datejaf .decree, observed that all the vendees/defendants were owners in the estate on the date of the suit and the appellant having failed to establish the superior right of pre-emption on the date of the suit, had no right to the decree claimed by him. As is apparent from the leave granting order the High Court has not referred to Section 28-A of the Act ibid and this Court has to consider the effect of said provision of law on the acquisition of right of ownership by Atta Muhammad defendant/vendee after the impugned sale transaction. The provisions of Punjab Pre-emption Act which are relevant for the controversy in hand are Section 21, 21-A and 28-A thereof and the same are reproduced below:- Section 21Suit for pre-emption. Any person entitled to a right of pre­emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right. Section 21-A. Any impro\'ement, otherwise than through inheritance or succession, made in.the status of a vendee-defedant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit. Section 28-A. Postponement of decision of pre-empiion suits in certain cases.(I) If in any suit for pre-emption any person bases a claim or a plea on a right of pre-emption derived from the ownership of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of right of pre-emption with respect.to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption has expired and the suits for pre-emption :(if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable.property is lost by the enforcement of a right of pre-emption, the Court shall dis-allow the claim or plea based upon the right of pre-emption derived therefrom. According to Section 21 any person entitled to the right of pre-emption under Section 15 of the Act can bring a suit for enforcement of his right of pre­ emption. Before the inclusion of Section 21-A by Punjab Act I of 1944 vendee/defendant could improve his status before the decree thereby non-suiting the pre-emptor. However, through the insertion of Section 21-A any improvement otherwise than through inheritance or succession, made by the vendee/defendant after the institution of suit for pre-emption shall not affect the right of preemptor/plaintiff in such suit. Through this amendment the defendant/vendee, except through inheritance or succession, could not legally affect pre-emptors superior right of pre-emption on account of improvement in their status after the institution of the suit but impliedly his right to improve status before the institution of the suit remained intact. It is in this context that.the learned High Court has accepted his ownership in the estate on the date of the suit and there can be no cavil with this proposition if the acquisition of ownership made by Atta Muhammad had remained intact till the date of the decree and not lost by him permanently. Section 28-A is a statutory provision which ordains that the Court trying pre­ emption suit shall postpone the decision thereof if any party to the suit bases his claim on the right of pre-emption .which itself is subject to the right of pre­ emption of others so long as the period of limitation for the filing of such suit is not expired or the suit if and when filed has not been finally decided. Sub-section (2) thereof is very important and according to it if such right is lost in the suit filed by the prospective pre-emptor the Court shall dis-allow the claim or plea based upon the right of pre-emption derived therefrom. This provision of law is mandatory and is to be followed in letter and spirit. According to it if the party to the pre-emption suit loses the right through enforcement of the right of pre­ emption, the Court shall dis-allow such claim or plea. In the instant case though Atta Muhammad became owner in the estate after the sale but before the institution of the suit, lost that right through pre-emption decree dated 20.2.1983 vide Ex. PS before the decree by the trial Court and reverted to the status of being stranger in the estate and could not help his co-vendees from being sunk with him under the principle of sinker. Nevertheless, the learned counsel for the respondents cited the judgments of the Lahore High Court in the case Ghulam Muhammad and another Vs Bagga and others (P.L.D. 1962 (W.P.) Lahore 693), Abdul Majid Vs. Tora Baz Klian (P.L.D. 1975 Lahore 592) and the judgment of this Court in case Patch Muhammad Vs. Rajan Klian and another (P.L.D. 1981 S.C. 347). No doubt, all these cases deal with the provisions of Section 21-A and 28-A of the Punjab Pre-emption Act but they are of no help to the respondents in non-suiting the pre-emptor/ appellant. In the case of Ghulam Muhammad it was observed that a vendee/ defendant is by implication permitted by Section 21-A of the Punjab Pre-emption Act to improve his status after the sale but before the institution of suit for pre-emption but it is not permissible for the pre-emptor to improve his status before the institution of the suit and that the relevant date for determining the status of a pre-emptor is the date of sale on which he seeks pre­emption and any improvement of status after the date of sale is of no avail to him. In the said case the pre-emptor wanted to derive benefit from Section 21-A which was not allowed to him. The case of Abdul Majid is also to the same effect wherein it was held that a pre-emptor cannot defeat vendee by improving his status alter the sale although a vendee could defeat pre-emptor by improvement after the sale and before the institution of the suit. In the case of Fateh Muhammad loo, this Court concurred with the observation made by the Lahore High Court in the above cited two cases and held that Section 21-A was available to the defendant/ vendee and not to the plaintiff/ pre-emptor and the claim of the plaintiff/ pre-emptor based on the improvement of status after the sale acquired under the provisions of Martial Law Regulation 115 was dis-allowed to him. In these cases the provision of sub-section(2) of Section 28-A was not in issue at all and therefore there is no finding that in cases where in spite of the loss of the right of pre-emption through enforcement of the exercise of the right of pre­ emption by the prospective pre-emptor, the vendee/ defendant can still defeat the claim of the plaintiff and by-pass the mandatory provision of sub-section (2) of Section 28-A. The provisions of Section 28-A of the Punjab Pre-emption Act and Section 29 of the NWFP Pre-emption Act, both of which deal with the same matter and the language of the two provisions is also identical, came up for consideration before this Court in case Mawas Klian Vs. Sitbedar Meher Dill (P.L.J. 1985 SC 380) and tracing the history of the amendment of Section 28- A in the Punjab Pre-emption Act as a result of conflicting decisions in the case of Nadir All Shah Vs. Wall (5 I.L.R. 486) and Kchar Singh Vs. Mahinan Singh (1908 P.R. 140) their Lordships of the Supreme Court, seized of the matter, came to the following conclusion:- " The result of this amendment in the Pre-emption Law was that a preemptor pre-empting a sale must have an indefeasible right of pre­ emption under the Pre-emption Law and-a defendant pleading protection for the sale must have an indefeasible right under the Pre-emption Law. If the pre-emptor claims a superior right of pre-emption on the basis of a purchase which itself is or likely to be subjected to a pre-emption claim then his claim itself would not be decided unless the claim against him is adjudicated upon and upheld or rejected. Similarly, if a vendee bases his claim on a transaction which itself is liable to be defeated by the exercise of a right of pre-emption then unless such a right or claim becomes indefeasible under the Pre-emption Law he cannot be allowed to set up a claim on its basis. To achieve this object in judicial proceeding, Section 28-A of the Pre-emption Law was inserted and was also incorporated as Section 29 of the NWFP Pre-emption Act. It is an instance of express departure from the general principles of Section 10, C.P.C. with regard to the stay of the suit subsequently instituted and is confined to pre-emption claim and pleas raised in defence against it." The same judgment was followed in a recent consolidated judgment in Civil Appeals Nos. 185-P and 186-P of 1990 decided on 28.4.1992 though in a different context but in a pre-emption matter, in which the vendee claimed co-sharership in the khata on account of purchase for the purpose of constructing a house for his own occupation. The vendee has also purchased other property in the same khata and the pre-emptor having a right of pre-emption in that case, pre-empted both the transactions one of which was stayed and the other proceeded with in which extending the benefit of Section 5(c) to the vendee, the suit ended in dismissal. The second suit was resisted by the vendee on account his having retained the area purchased by him for construction of house and thereby having become cosharer in the khala. After analysing the judgment in Mawas Khan's case and several others, in the light of provision of Section 29 of the NWFP Pre-emption Act, Civil Apleal No. 185-P/90 was allowed and by setting aside the judgment of the High Court whereby the vendee/ defendant had been conceded the status of co- sharer on the basis of purchase by him in the khata for the purpose of construction of a house, restored that of the trial Court granting pre-emption decree. The aforementioned principle was also adopted in dismissing Civil Appeals Nos. 80-P, 81-P and 82-P of 1990 by this Court decided on 15.3.1992. Undeniably, the plaintiff must prove a superior right of pre-emption, at the time of the sale and must retain it till the passing of the decree. This principle is subject to the provisions of Section 2S-A of the Punjab Pre-emption Act and Section 29 of the NWFP Pre-emption Act. If the plaintiff bases his claim on a right which itself is subject to a right of pre-emption, the pre-emption suit shall have to be stayed till the expiry of period of limitation, and till the final decision of the pre-emption suit, if any, filed against the said acquisition of right by the plaintiff/ pre-emptor. The vendee/ defendant is also entitled to defeat the right of pre-emption of the plaintiff by acquiring the same status but before the institution of the suit of pre-emption against him. This device, no doubt, will equate his right of pre-emption with that of the pre-emptor but since this right might be subject to right of pre-emption of others, he will not be entitled to derive any benefit therefrom till the period of limitation for suit for pre-emption against the said transaction expires and if a suit is filed, till the decision thereof. In case he ultimately loses that right, the Court shall disallow his claim of right of pre­ emption based upon the subsequent acquisition before the suit, as he no longer retained the right of pre-emption to defeat the right of pre-emptor. In other words, unless the parties have indefeasible right of pre-emption under the Pre­ emption Law they cannot claim any benefit from any transaction which in itself is subject to the right of pre-emption of others. In view of what has been stated above, the learned High Court ignored the important statutory provision contained in Section 28-A of the Punjab Pre­ emption Act particularly sub-section (2) thereof and the impugned judgment passed by it being unsustainable is liable to be set aside. Resultantly, the instant appeal is accepted, the judgment of the High Court is set aside and that of the appellate Court is restored with the result that the case of the plaintiff/ appellant stands decreed on payment of Rs. 63,246/. There is no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 456 PLJ 1992 SC 456 [Appellate Jurisdiction] Present: dr. nasim hasan shah, shafiur rahman and muhammad rafiq tarar, JJ Capt. (Reid.) ABDUL QAYYUM-Petitioner versus MUHAMMAD 1QBAL KHOKHAR and 4 others-Respondents Civil Review Petition No. 106 of 1990, decided on 22.1.1992. [For review of judgment dated 2.10.1990, passed by Supreme Court, in C.A. No. 530 of 1980.] Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.- —-R. 8 read with Punjab Civil Servants Act, 1974, Sections 23 and 8-A-- Goyernment 'servant-Relaxation of rules for-Whether Governor could exercise powers under Section 23 of Act to relax Rule 8 in a manner to affect seniority of other civil servants-Question of--Power under Section 23 of Act is not to be exercised so as to infringe, impair or curtail any of statutory rights of beneficiary himself-Like all authorities, Governor, in exercise of residual remedial power, is as much to be guided and bound by law as anyone else except that his bounty and generosity has been made limitless-Held: Governor can grant as much benefit as he wants and considers just and fair, but not at cost of others. (Per Shafiur Rahman, J). [Pp.457,458&459]A&B PLJ 1991 SC 69 and 1982 SCMR 978 distinguished. Syed Sharifudddin Pirzada, Senior Advocate, with Mr. D.M. Awan, Advocate, Supreme Court, instructed by Ch. Fazal-i-Hussain, AOR for Petitioner. Mr. K.MA. Samdani, Advocate Supreme Court, with Mr. Saleem Saigal, Advocate, Supreme Court, instructed by Mr. Ejaz Ahmad Klian, AOR for Respondents 1 to 4. Date of hearing: 19.1.1992. order A review of our judgment in Civil Appeal No.530/1980 (Muhammad Iqbal Kliokhar and 3 others versus the Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others -PLD 1991 S.C. 35) is sought on three grounds. Firstly, it is contended that there was no continuity in maintaining seniority in service as vested right after the dicision in Bashir Ahmad KJtan versus Maltmud All Klian Chowdhury and others (PLD 1960 S.C.195) as the Constitution of 1962 eroded or abolished it. Secondly jt is contended that the Governor's residual power under Section 23 of the Punjab Civil Servents Act, 1974 extends to passing a just and equitable order and the only limitation on this power is that it should not adversely affect the guaranteed statutory rights of the beneficiary himself. There is no restraint, express or implied, whereby such an order cannot adversely affect guaranteed rights of persons other than the beneficiary. Tliirdly, it is contended that the decision rendered is contrary to the established view of the Supreme Court expressed in Ch.Kabir Ahmad, etc. versus Government of the Punjab etc (1982 S.C.M.R. 978) and Wajahat Hussain, Assistant Director, Social Welfare,Lahore and 7 others versus Province of the Pwijab,through Secretaty,Social Welfare & Zakat, Lahore and 81 others (PLJ 1991 S.C. 69). 2. The appeal under consideration had come to this Court by leave under Article 212(3) of the Constitution. The question of law of public importance required to be answered was as to whether the Governor could exercise his powers under Section -23 of the Punjab Civil Servants Act in a manner to relax Rule 8 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 so as to affect the seniority of a number of other civil servants. 3. The undisputed position of law with respect t"o seniority in service dealt with in the case of Bashir Ahmad Klian (PLD 1960 S.C. 195) finds mention in the following words:— ".... every officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and a discipline within the service." The Supreme Court held in Works-Co-operative Housing Society and another versus Tlie Karachi Development Authority (PLD 1969 S.C. 430) that a judgment of the Supreme Court, a right declared thereudner, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will. 4. In the Constitution of 1962, on two points relevant to the case, a clear intent was expressed. The first was that only with regard to specified matters the constitutional jurisdiction could be invoked by a civ?l servant. The second was that rules could be so framed as to determine even adversely the terms and conditions of service except those in respect of age superannuation and remuneration. Nothing was expressly said about the seniority. It, however, followed that the seniority could be touched upon adversely by the rules and that the matters concerning seniority could not be brought before the High Court ia the constitutional jurisdiction. 5. When the Civil Servants Acts came to be framed in 1973/1974, it was with full awareness of the legal and constitutional position that in respect of Federal Government, the North-West Frontier Province, the Baluchistan Province, and the Sindh Province, it was expressly provided by the legislature that seniority shall not be a vested right and nobody would be entitled to claim a particular place in seniority list. The Punjab Civil Servants Act contained no express will of the legislature to that effect. The intention clearly was to respect and to abide by the declaration of law made by the Supreme Court with regard to seniority, to maintain order and discipline in serivce as dictated by public interest. On that view of the matter and legislative intent being so clear, it was held that in the Punjab unlike the other Provinces and the Federation, seniority continued to be vested right in its pristine form as prior to 1962 though eroded in form from 1962 to 1973. 6. As regards the residual remedial power of the Governor contained in Section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair or curtail any of the stautory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise or residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and consideres just and fair but not at the cost of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of redressal, of providing a relief and not of impairing statutory rights of anyone. 7. The decisions referred to by the learned counsel have been re-examined by us. In the case of Wajahat Hmsain (PLJ 1991 S.C. 69), the question was not of adversely affecting the right of others but of merging of different services into one and giving effect to transfer provision of Civil Servants Act on such merger. In the other case referred to also there was no question of power exercised by the Governor to relax the rules so as to adversely affect others and impair the vested rights of others. 8. No merit is found and the review petition is dismissed. Nasim Hasan Shah, J.--I am recording a short note of my own. I agree; but would like to add that the order of the Governor of the Punjab made in relaxation of rule 8 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules. 1974. and issued on ISth July. 1979 is a just and equitable order passed to redress the hardship suffered by the petitioner for being retained compulsorily, upto 1975 in the Frontier Works Organisation of the Pakistan army in order to render service in a project of the highest national importance namely Kara Koram Highway Project, during which period younger and less experienced persons were able to join the Government of the Punjab in the Communication & Works Department. But, as rightly pointed out by my learned brother S.Rehman., the residual power conferred on the Governor under Section 22 of the Punjab Civil Servants Act 1974, extends only to passing a just & equitable order which may benefit the aggrieved civil servant to alleviate his hardshi»>ut that such an order cannot impair any of the statutory rights vesting in other civil servants. Thus, in the Punjab where seniority continues to be a vested right, the seniority position of other civil servants cannot be affected while undoing the hardship of another civil servant inasmuch as Section 22 confers a power of redressal which does not extend to impairing the statutory rights of others. But it needs to be observed that redressal in the Punjab in this sphere too is possible of suitable cases but in another way. Under a new provision introduced in the Punjab Civil Servants Act, 1974 namely Section 8-A the competent authority has been empowered to grant out of turn promotion to a civil servant exhibiting extraordinary ability in discharge of his duties. Considering that presently the contest ranging between the parties is in essence who should be considered for promotion to the post of Superintending Engineer earlier than the other, the petitioner can, if indeed by reason of his longer experience, intellectual ralibre and greater ability has exhibited extraordinary capabilties in the performance of his duties, be promoted first to the rank of Superintending Engineer notwithstanding his lower position in the seniority list. However, so far as the four private respondents in this case are concerned their case will not be affected by these observations. I would dispose of this review petition with these observations. Muhammad'Rafiq Tarar, J.--I agree. (MBC) (Approved for reporting) Orders accordingly

PLJ 1992 SC 460 PLJ 1992 SC 460 [Appellate jurisdiction] Present: abdul shakurul salam and muhammad afzal lone, JJ FEDERATION OF PAKISTAN , THROUGH SECRETARY FINANCE, and 4 others-Appellants versus M/s IBRAHIM TEXTILE MILLS LTD.-Respondent Civil Appeals No. 114 to 129 and 216 of 1990, dismissed on 10.5.1992. [On appeal'from judgment and order dated 20.12.1988 of Lahore High Court, passed in W.P. Nos. 4396, 4411, 5289, 5290, 5797, 5796, 5997, 5798, 5995, 5996, 5795, 5998, 5999, 6001 and 6077 of 1988.] Customs Act, 1969 (IV of 1969)-- —S. 32 (2) & (3)--Customs duty-Short recovery of~Notice to deposit shortlevied duty-Action declared by High Court as without lawful authority- Challenge to-All are equal before law whether citizen or State; after lapse of period prescribed for recovery of money, recovery is not enforceable through courts; and while construing a financial statute, its terms are strictly to be followed, are cardinal principles of law-Section 32(3) provides that for recovery notice shall be served "within six months"-In these appeals, there was no default of respondents—Where notices under Section 32 were issued after prescribed period of time, resultant action was annulled-Held: Judgment under appeal is well based on facts and reasons and calls for no interference- Appeals dismissed. [Pp.462&463]A 1983 CLC 1736,1984 CLC 490 and 1990 CLC 868 rel. Ch. Muhammad Farooq, Deputy Attorney General, instructed by Mr. Muhammad Aslam Chatha, AOR for Appellants (in all appeals) Mr. Ashlar Ausaf AH, Advocate, Supreme Court, instructed by Sh. Salahuddin, AOR for Respondents (in all cases except CA. 21£ of 1990). Respondent in person (in CA. 216 of Date of hearing: 1.12.1991. judgment Abdul Shakur ul Salam, J.--This order will dispose of Civil Appeals No. 114 of 1990 to 129 of 1990 and 260 of 1990 as these arise in similar circumstances. 1. Relevant facts are that the Government introduced Finance Bill 1987 on 4.6.1987. In pursuance thereof, the Central Board of Revenue issued a memorandum on the same day reducing rate of duty on man-made (synthetic) fibre from Rs. 20/- per kilogram to Rs. 14/- per kilogram. The respondents paid duties at the reduced rate which were accepted by the Custom Authorities. However, the proposal for reduced duty was withdrawn by the Government on 12.6.1987 and the Bill was accordingly passed as the Finance Ordinance, 1987 and notified on 30.6.1987. On 2.8.1988, the Assistant Collector Customs Valuation, Karachi issued show cause notices u/s 32(2) of the Customs Act, 1969 to the respondents as to why they should not pay the short-levied duties. Replies were filed by the respondents denying the applicability of Section 32(2) of the Customs Act. The«\ssistant Collector Customs Valuation, Karachi, held that as the reduced rate was withdrawn on 12.6.1987, there was no reduced rate between 4.6.1987 to 12.6.1987 and the respondents were aware of the fact that differential amount was due to the Customs, which they did not discharge deliberately and intentionally, thus Section 32(2) of the Customs Act stood rightly invoked for demanding the said amount. He directed the respondents to deposit the shortlevied customs duties within fifteen days from the dates of issue of the orders and threatened that action would be taken under Section 202 of the Customs Act. He endorsed copies of his orders to the Customs Authorities at Lahore to detain all the future consignments of the respondents in order to recover the short levied amounts under Section 202(1) of the Customs Act, 1969. The respondents filed Constitutional Petitions in the Lahore High Court in which it was held that the duties paid were in accordance with the reduced rates announced by the Government at the time of the budgetary proposals and in consequence of which Central Board of Revenue had also issued instructions. Both the Custom authorities and the respondents acted accordingly and were without default. Since the reduced rates were not accepted by the National Assembly and were not enacted in law, the applicable provision was Section 32(3) of the Customs Act which provided for recovery of any short-levied duty if that had come about because of any inadvertance, error or mis-construction, on issuance of a notice within six months. Since notices issued to the respondents were outside the prescribed period, resultant action was without lawful authority. The petitions were accepted vide order dated 20.12.1988. 2. In support of the appeals the learned Deputy Attorney General submitted that since the proposal for reduced rates was withdrawn the respondents were liable to pay the duty on the earlier rates as enacted, therefore, notices under Section 32(2) of the Customs Act, 1969 for short-levied duties were in order. When his attention was drawn to the language of the provision which entails that the statements were untrue, when made, or there was collusion and that there was no such allegation at all; on the other hand, both Customs authorities and the respondents were acting in pursuance of the Instructions of the Board of Revenue, the learned Deputy Attorney General did not press the point and proceeded on the basis of the finding by the learned Judge of the High Court thai the case did not fall under Section 32(2) but under Section 32(3) to contend firstly that Section 32(3) does not provide any penalty for non-issuance of notice within six months. The provision is therefore only directory and notices issued subsequently would still be valid. He relied on "Niaz Muhammad Klian vs. Mian Fa-al Raqib" (PLD 1974 S.C. 134). He secondly submitted that since it is indisputable that under the law the respondents were liable to pay duty at the rate of Rs. 20/- per kilwgram and they had paid at Rs. 14/- per kilogram, discretion should not have been exercised in their favour. He relied on "Nawab Syed Raunc.q Ali etc. vs. Chief Settlement Commissioner and others" (PLD 1973 S.C. 236), "Tlie Chief Settlement Commissioner, Lahore vs. Raja Mohammad Fa~.il Klian and others" (PLD 1975 S.C. 331) and "Federation of Pakistan & others vs. Haji Muhammad Suifullah Khun and others" (PLD 1989 S.C. 166). 3. Learned counsel for the respondents has referred to a recent decision of this Court by three learned Judges in Civil Appeal No. 699 of 1984 decided on 16.4.1990 wherein notices issued lor recovery of short-levied custom duties after the prescribed period were held to be without lawful authority. He also referred to three decisions of the Karachi High Court reported in "Messrs Quid Cap House vs. Collector of Customs and two others" (19S3 CLC 1736). "Yakoob Timber Mart Vs. Collector, Customs Karachi and r..o o'Jiers' \1SS4 CLC 490) and "Pakistan International Airlines Corporation Vs. Central Boa"d of Revenue, Islamabad and 2 others" (1990 CLC 868) for the same proposition that notices issu'ed by Custom authorities after the prescribed period of time were held to be illegal. 4. Due consideration was given as to whether the respondents should not pay the short-levied duty and whether the State should suffer in public finance. But the cardinal principle of law is that all are equal before law, whether citizen or Slate Secondly if a law prescribes period of time for recovery of money, after its lapse recovery is not enforceable through Courts. Thirdly, while construing a financial statute, its terms are strictly to be followed. Keeping in view these principles, for short-levied duties on account "of inadvertance, error or mis­ construction", Section 32(3) of the Customs Act 1909 provides that for recovery nolice shall be served 'within six months'. 11" that is not done, like a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery becomes unenforceable. Therefore, the provision is not merely directory as contended by the learned Deputy Attorney General. As regards his contention that discretionary relief should not have been granted to the respondents by the High Court, il needs be said that discretion is not desire of the Judge bul regulated by law. Discretion comes into play to choose one of the two or more alternatives, all of which are lawful. It is not proper exercise of discretion to refuse relief to a party to which it is entitled under law. The precedent cases quoted by the learned Deputy Attorney General have this element in common that there is some blemish attached to the applicant seeking discretionary relief. In the appeals in hand, there was no default of the respondents. In circumstances where notices u/s 32 of the Customs Act, 1969 were issued after the prescribed period of time, resultant action was annulled in the cases quoted by the learned counsel for the respondents. There is no good ground to differently treat the respondents. The judgment under appeal is well based on facts and reasons. It is supported by the precedents and to the same effect is the latest judgment of this Court. It calls for 'no interference. The appeals are. therefore, dismissed but as these involved interpretation of statutory pro',isions parties are left to bear their own costs. (MBC) (Approved for reporting) Appeals dismissed.

PLJ 1992 SC 463 PLJ 1992 SC 463 [Appellate Jurisdiction] Present: AJMAL MlAN AND RUSTAM S.SlDHWA, JJ SHAHBAZ-Petitioner Versus THE STATE-Respondent Cr.P.S.L.A. No.l78/L of 1992, dismissed on 16.6.1992 (approved for reporting on 27.6.1992) [From order dated 20.5.1992, passed by Lahore High Court, in Cr.Misc. Nos.7&8 of 1991] Criminal Procedure Code. 1898 (V of 1898)-- —S.426(l-A)(c)-Sentences including sentence for life imprisonment- Suspension of-Prayer for-Refusal of--Challenge to-High Court had declined to release petitioner on bail under clause (c) of sub-section 1-A of Section 426 for reason that petitioner alongwith co-accused was convicted for murdering two boys and afterwards their father was also murdered during pendency of present case—Held: It seems that there are counter murder cases beween parlies and therefore, it was not a fit case for pressing into service clause (c) of sub-section 1-A of Section 426 of Cr.P.C-Leave refused. [P.46SJA Sardar Muhammad Latif Klian Kiiosa, Advocate, Supreme Court, for Petitioner. Respondent: Not represented. Date of hearing: 16.6.1992. order Ajmal Mian, J.--(l) This is a petition for leave to appeal against the order dated 20.5.1992 passed by a Division Bench of the Lahore High Court in Criminal Misc. Nos.7 & 8 of 1992 filed by the petitioner seeking suspension of the sentences including life imprisonment awarded by the learned Punjab Special Court for Speedy Trial No.l under the judgment dated 18.1.1989 under Section 426 (1-A) of Cr.P.C. during the pendency of the appeal before the Lahore High Court, declining the same on the ground that the petitioner's earlier two applications were rejected by the High Court through orders dated 2.2.1991 and 13.3.1991. The petitioner has, therefore, filed the present petition for leave to appeal. (2) In .support of the above petition, Sardar Muhammad Latif Khan Khosa, learned ASC appearing for the petitioner has vehemently contended that the learned Judges of the Division Bench were not justified to decline the petitioner's above applications as he has been in Jail for nearly four years after the filing of his appeal in the High Court and, therefore, the petitoner was entitled to seek suspension of the sentences by virtue of clause (c) of sub section 1-A of Section 426 Cr.P.C. In order to appreciate the above contention, it may be pertinent to reproduce above sub section (1-A) with its above clause (c) of Section 426 and sub secton (1) of Section 497 with its 3rd and 4th provisos of Cr.P.C. which read as follows: Section 426 Cr.P.C. (1-A) "An appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced:--(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his convicton." Section 497 Cr.P.C. 497.(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: Provided that ................... Provided that ................... Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail:-- (0) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose,'trial for such offence has not concluded; or (b) who, being accused of any offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this sub­ section shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal," (3) A perusal of the above sub section (1-A) with its clause (c) indicates that an appellate court is required to release convicted person on bail if he has been awarded imprisonment for life or imprisonment exceeding seven years and his appeal has not been decided within a period of two years of his conviction unless, the appellate court for the reasons to be recorded directs otherwise. It may further be observed that sub section (1) of Section 497 Cr.P.C. and its 3rd & 4 th provisos deal with a case, in which trial has not commenced and/or has not been completed. It empowers the Court to release any person accused of any nonbailable offence if he is arrested or detained without warrant or who appears or is brought before it, but it further provides that such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. However, 3rd proviso to the above sub section (1) of Section 497 lays down that the Court shall except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf release such person, if he is charged with an offence punishable with death and his trial has not been concluded within a period of two years during which the accused remained continuously under detention. It may further be pointed out that 4th proviso places an embargo upon the above 3 rd proviso by providing that the 3rd proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal. (4) There seems to be a marked distinction between sub section (1-A) of Section 426 Cr.P.C. and sub section (1) of Section 497 with its above provisos inasumuch as under the former the appellate court for the reasons to be recorded can decline to suspend sentence or release a convict on bail even upon the expiry of above two years period and the reasons which are to be recorded are not specified therein, whereas under the latter provision, the benefit of the 3rd proviso can only be denied if the accused falls within the categories specified in proviso 4, i.e. he is a previous convict or in the opinion of the Court he is a hardened, desperate or dangerous criminal. In other words, under the former provision, the Court has more discretion in the matter as compared to the latter provision. The reason for providing as such appears to be obvious, namely, sub section (1) of Section 497 Cr.P.C. is to be pressed into service before a trial is concluded and it is not certain at that stage whether the trial will culminate in conviction, whereas sub section (1-A) of Section 426 Cr.P.C. is to be invoked after a competent court of law after trial records conviction on the basis of evidence, therefore, the Court has been empowered to decline to suspend the sentence or grant bail for any reason which it may consider just and proper. However, such a reason should have nexus with the paramount object to avert commission of any further offence by the cpnvict. (5) In the present case, the High Court in its earlier order dated 2nd February 1991 had declined to release the petitioner on bail under clause (c) of sub section (1-A) of Section 426 Cr.P.C. for the reason that the petitioner alongwith his four co-accused was convicted for murdering Akbar Ali aged 14 years and Qasim aged 15/16 years and after the commission of the above murder their father Muhammad Din was also murdered during the pendency of the present case. It seems there are counter murder case's between the parties and therefore we are inclined to agree with the High Court that it was not a fit case for pressing into service clause (c) of sub section (1-A) of Section 426 Cr.P.C. The impugned order does not suffer from any infirmity and therefore leave is refused. Rustani S. Sidhwa, J.--I agree with the final order proposed by my learned brother Ajmal Mian, J., but would like to add a few words. 2. Section 426 (1-A) Cr.P.C. grants to the appellate Court the power to release a convicted person on bail whose appeal has not been decided within varying periods of his conviction as stated in clauses (a) to (c) thereof, unless for reasons to be recorded in writing it considers otherwise. It is therefore clear that notwithstanding the lapse of the period of time stated in clauses (a) to (c), the appellate Court has discretion to refuse to suspend the sentence, for, reasons to be recorded in writing. This Court in Manzoor Hussain v. State (1982 SCMR 357) has held that where the High Court in its discretionary jurisdiction has not thought it fit to suspend the sentence, no justification exists to interfere with such discretion, particularly where it has been properly exercised. This rule has been consistently followed, such as in Abdur Rashid v. State (1988 SCMR 149). In Abdur Razzaq v. State (1983 SCMR 234), this Court commented that inordinate delay did not create any right to the suspension of the sentence under Section 426 (1-A) Cr.P.C., for if this argument were accepted, it would imply automatic release on bail of convicts in all cases, which, in any case, was not the intention of the law. 3. In the instant case the learned Judges of the High Court have given reasons for refusing to suspend the sentence and since there have been cross cases on either side, I also would not like to interfere with the discretion exercised by the learned Judges of the High Court. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1992 SC 467 PLJ 1992 SC 467 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, AJMAL MIAN AND RUST AM S. SlDHWA, S3 INAMUR REHMAN GILLANl-Petitioner versus JALAL DIN and another-Respondents Civil Petition No.29/L of 1992, accepted on 26.6.1992 [On appeal from judgment dated 15.12.1991, of Lahore High Court, passed in C.R. No. 122 of 1983.] Restoration-- —Civil revision-Dismissal for non-prosecution of—Restoration of--Prayer for- A written request was presented by petitioner to learned Judge of High Court that his counsel was to appear before Supreme Court at Rawalpindi on same day—Such a request can be refused if it lacks bonafldes or is made to obstruct course of justice-Court could have, after refusing request for adjournment, proceeded to decide revision petition on merits rather than disposing it of on ground of non-prosecution-Held: Dismissal of cases for non-prosecution should normally be exception and not rule-Petition converted into appeal and appeal accepted. [Pp.468&469]A&B Syed Riazul Hassan Gillani, Advocate, Supreme Court, instructed by Mr. S. Inayat Httssain, AOR for Petitioner. Respondents: Not represented. Date of hearing: 22.6.1992. order Nasim Hasan Shah, J.-This is a petition for leave to appeal against the order dated 15.12.1991 passed by a learned .Single Judge of the Lahore High Court refusing to restore the revision petition fried by the petitioner which was dismissed by him for non-prosecution. The relevant facts are that a civil revision (bearing No. 122 of 1983) filed by the petitioner before the Lahore High Court was fixed for hearing at Lahore on 10.11.1991. The petitioner's counsel, it appears, had to appear before the Supreme Court at Rawalpindi on the same date. Accordingly, when the civil revision in question came up for hearing on 10.11.1991 the petitioner appeared himself in the absence of the counsel and submitted to the learned Court a written request of the counsel to adjourn the case, on the ground that he was appearing before the Supreme Court at Rawalpindi. The learned Judge, however, was not pleased to accept this request and while so doing observed that the petition had been presented by the clerk of the learned counsel which was not proper and furthermore that the learned counsel should have made alternative arrangements for his representation before the High Court, if he himself was busy before the Supreme Court on the date of hearing. Accordingly, the civil revision was dismissed for non-prosecution vide order dated 17.11.1991. A petition for restoration of the revision was thereupon moved by the learned counsel before the learned High Court wherein he explained that the request for adjournment was presented not by his clerk but by the petitioner himself and as regards the question of making alternative arrangements for appearing before the High Court at Lahore on 10.11.1991 this was not possible because the case before the Supreme Court was earlier fixed at Karachi and then was suddenly transferred for hearing to Rawalpindi and the information about the hearing of the case by the Supreme Court at Rawalpindi was received only on 7.11.1991. However, these explanations were not considered sufficient to justify the absence of the learned counsel on 10.11.1991 before the High Court and the application for restoration moved by him was again dismissed vide order dated 15.12.1991. Hence this petition for leave to appeal. When this case came up for hearing before this Court on 16.6.1992, a notice was issued to the respondents for today (22.6.1992) as, prima-facie, the order of dismissal of the revision petition appeared to be improper in law in the circumstances of the case noted above. However, today (22.6.1992) when the case was taken up for hearing, no one appeared on behalf of the respondents; hence we have heard the learned counsel for the petitioner alone. After hearing the learned counsel for the petitioner, the petition was converted into an appeal and, in our opinion, the appeal merits to be accepted. We observe that the learned counsel for the petitioner notified the Court through, a written request which was presented to the learned Judge by the petitioner himself that his learned counsel was to appear before the Supreme Court on the same day at Rawalpindi . In deference to the principle of comity, which is necessary to be observed by the members of the Superior Judiciary, respect had to be shown towards a request for adjournment on the ground of the counsel being before a Superior Court at the same time. It is only where such a request lacks in bona-fldes or is made to obstruct the course of justice, such as where the counsel or party has already availed of numerous adjournments or the case is an old one and its diposai should not further be delayed, or some similar proper ground is found to exist, can such a request be refused. In this case, the petitioner had himself appeared before the Court and if the Court considered that this was not a proper case in which adjournment could be allowed, as the decision of the case was being unnecessarily delayed, the Court could have, after refusing the request of the learned counsel, proceeded to decide the revision petition on merits, rather than dispose of the case on the ground of non-prosecution. This could be done as the petitioner was before him. Normally, Courts should try to adjudicate the matters placed before them on merits and deviate from this course only if they find that the process of the Court is being abused. The dismissal of cases for non-prosecution should normally be the exception and not the rule. Unfortunately, the learned Judge appears to consider otherwise, an impression which is clearly erroneous. The upshot is that this appeal is allowed. The orders of the High Court passed on 17.11.1991 and 15.12.1991 are set aside. The matter will now be re- B heard by the High Court, after due notice to the petitioner and disposed of on merits. Since no one has appeared on behalf of the respondents there shall be no order as to costs. (MBC) Appeal accepted. (Approved for reporting)

PLJ 1992 SC 469 PLJ 1992 SC 469 [Appellate Jurisdiction] Present: muhammad AFZAL lone and wali muhammad khan, JJ BAHADUR KHAN-Appellant Versus MUHAMMAD YOUSAF and another-Respondents Civil Appeal No. 160 of 1991, accepted on 24.5.1992. (approved for reporting on 2.7.1992) (On appeal from judgment dated 29.9.1990, of Lahore High Court, Bahawalpur Bench, passed in R A. No. 17/BWP of 1990]. Punjab Pre-emption Act, 1991, (IX of 1991)-- -—S.34 read with Civil Procedure Code, 1908, Section 2(2)~Pre-emption~Suit for-Ex-pai-te decree passed in before 31.7.1986, target date-Whether further proceedings would lie under old Act or new Act—Question of—Decree in favour of pre-emptor, though ex-parte, was passed on 18.7.1985~There can be no difference between a decree passed after contest and a decree passed exparte as both are decrees as defined in Section 2(2) of C.P.C.~HeId: After setting aside ex-parte decree, subsequent trial shall be goverened by Punjab Pre-emption Act, 1913 as if it had not been repealed-Appeal accepted and case remanded. [Pp.471&472] A,B&C PLJ 1986 SC 576, PLJ 1988 SC 224 and 1992 SCMR 445 ref. Mr. Muhammad Siddique Kamyana, Advocate, Supreme Court instructed by Ch. Melidi Klian Mehiab, AOR (absent) for Appellant. Mr. ImtiazM. Klian, AOR for Respondent No. 2. Nemo for respondent No. 1 Date of hearing: 24.5.1992 judgment Wall Muhammad Khan, J.--This appeal through leave to appeal has arisen out of a pre-emption suit brought by the appellant against the respondents on 21.8.1983, wherein an ex-pane decree was passed against them on 18.7.1985. Respondent No. 2 did not agitate against this decree, rather withdrew his share of the sale price deposited in the Court by the decree-holder. Respondent No. 1, however, moved an application for setting aside the ex-pane decree, which was allowed and the decree set aside. Accordingly, he filed a written statement and contested the suit; while it was at the evidence stage he filed an application under Order VII, rule 11 CPC, and sought the rejection of the nlaint on the basis of the law laid down by this Court in Government of NWFP, through Secretary, Law Department vs. Malik Said Kamal Shah (PLJ 1986, SC 576) and Sardar Alt and others vs. Muhammad AH and others (PLJ 1988 SC 224). The learned Civil Judge took the view that, as the appellant did not assert the three "Talabs" in the plaint required by the Islamic Jurisprudence, the suit could not proceed and dismissed the same. In appeal the learned District Judge declined to interfere with this dismissal. The appellant then invoked the revisional jurisdiction of the High Court, but the learned Single Judge maintained that, according to the law laid down by this Court, the Punjab Pre-emption Act, 1913, had become unworkable as a whole, the suit was no longer sustainable. Thus, by a short judgment dated 19.6.1990 he dismissed the revision. The appellant's move for review of this order also failed. The leave granting order is to the following effccu "Learned counsel for the petitioner has submitted that the judgment in Mst. Aziz Begiun 's case has neither reversed nor modified the rule laid down by this Court in Sardar All's case (PLJ 1988 SC 224) that a plaintiff who has obtained a decree for pre-emption in the trial Court before 31.7.1986 which decree has been set-aside by the Appellate Court can, while pressing his further appeal before higher forum, defend the decree granted in his favour before 31st July, 1986 and seek its restoration on the basis of the pre-existing law." The learned counsel for the appellant cited the latest authority of this Court in case Rozi Klian vs. Karim Shah (1992 SCMR 445) and submitted that the pre­emption cases in which decree for possession has been passed prior to 1.8.1986, further proceedings relating thereto shall be governed and decided under the provisions of the old Act and the provisions of the new Act could not be attracted. This judgment, no doubt, was delivered in cases relating to the Province of NWFP and were decided under the since repealed NWFP Pre-emption Act, 1950 substituted by North-West Frontier Province Pre-emption Act (X of 1987), as there had been some confusion with regard to the interpretation of Section 35 of the new Act qua its application in the light of the judgment in Said Kamal Shah's case and after analysing and interpreting the wording of Section 35 in the light of principles laid down in Said Kamal Shah's case in obedience to which a new Act was promulgated, it was held as under:- "In the light of the foregoing, the effect of the provisions of Section 35 of the new Islamic Law of Pre-emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i.e. 1.8.1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28.4.1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre­ emption) had already been passed and an appeal against it was pending (whch is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.W.F.P. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act." The Punjab Pre-emption Act, 1913 (Act I of 1913) was also repealed through Punjab Pre-emption Act, 1991 (Act IX of 1991) on 6.4.1991 and it would be profitable to reproduce Section 34 thereof which is, more or less, identical to Section 35 of the new NWFP Pre-emption Act, 1987. "34. Repeal of Act I of 1913.--(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed. (2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986 further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof." On the touch-stone of reasoning advanced in Rozi Khan's case, the decrees passed in favour of pre-emptors before 1.8.1986 are protected from the effect of Said Kamal Shah's case and all the further proceedings in connection therewith are to be governed and decided under the provisions of the old Act (Act I of 1913).In the instant case, decree in favour of the pre-emptor, though ex-pane, was passed on 18.7.1985 and as such the further proceedings for the setting aside thereof and. the subsequent trial after its setting aside shall be governed by the Punjab Pre-emption Act of 1913 as if it had not been repealed. The learned counsel for the respondents argued that the decree passed on 18.7.1985 was ex-parte and not equated with the decree passed in favour of the pre-emptor after contest by the vendee/defendants. We are afraid, the submission is not legally entertainable. There can be no difference between a decree passed after contest and a decree passed ex-parte as both are decrees as defined in subsection (2) of Section 2 of C.P.C. and are executable. Jn view of what has been stated above, we accept the appeal and set aside the C1 judgments of the lower forums and remand the case back to the trial Court for | decision according to law. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 472 PLJ 1992 SC 472 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ and wali muhammad khan, J Haji JAMROZ KHAN-Petitioner Versus WAZIR MUHAMMAD and 16 others-Respondents Civil Petitions Nos.l35-P and 157-P of 1991, dismissed on 18.5.1992 (approved for reporting on 8.7.1992). [On appeal from judgment/order dated 18.12.1990, of Peshawar High Court, passed in W.P.Nos.377 of 1990 and 363 of 1989.] NWFP Tenancy Act, 1950 (XXV of 1950)- —S.56 read with para 25(7) of M.L.R. 115-Revision before Additional Commissioner-Acceptance of--Second revision before Board of Revenue- Whether competent-Question of—It is consistent view of Supreme Court that Board of Revenue possesses power of revision to satisfy itself as to correctness, legality or propriety of judgments/orders passed by subordinate revenue Courts/revenue officers under Section 56 of NWFP Tenancy Act as well as para 25(7) of M.L.R. 115--Obviously, question of law being involved, High Court, in normal course might have accepted writ petition and remitted case back to Board of Revenue for decision on merits—In view of concurrent finding of trial Court and lower appellate Court, petitioner is tenant and defaulter and Commissioner was not convinced about any illegality, misreading or non-reading of evidence by Courts below—Held: Board of Revenue is only competent to exercise revisional powers with regard to judgment of Commissioner, but Supreme Court is not bound to grant leave against each and every order unless it is satisfied that manifest injustice has occasioned- Both petitions dismissed. [Pp.478,479&480]A,B,C&D PLD 1983 Pehsawar 1, Set aside by 1985 SCMR 770, PLD 1984 SC 227 and 1991 SCMR 689 discussed. PLD 1982 SC 413, PLD 1991 SC 691, PLD 1991 SC 811 and PLD 1989 SC 166 rel. Mr. Z. Mahfltz Klian, A.O.R. for Petitioner (in C.P. 135-P of 1991). Respondents: Not represented (in C.P. 135-P of 1991). Mr. Abdul Samad Klian, A.O.R. for Petitioners (in C.P. 157 of 1991). Respondents: Not represented (in C.P. 157 of 1991). Date of hearing: 18.5.1992. judgment Wall Muhammad Khan, J.—Haji Faqir Muhammad predecessor-in-interest of Wazir Muhammad and others, respondents 1 to 13 herein, sued Haji Jamroz Khan, petitioner herein, for recovery of arrears of rent at the rate of half batai in respect of land measuring 154 kanals 7 marlas comprised in various khasra numbers in the estate of Sarki Kashran, Tehsil and District Charsadda for the crop Kharif, 1983 to Kharif, 1985 and also for his ejectment from the suit land in the Court of Assistant Collector, respondent No.17 herein. The petitioner contested the suit and in his written statement, inter alia, alleged co-ownership in the suit land on the basis of purchase of land measuring 11 kanals 6 marlas vide mutation No.1238 attested on 17.5.1984 and No.1239 attested on 18.6.1984. He admitted his possession on the other part of the land but as lessee on payment of cash rent and asserted that the lease money for the suit crop Kharif, 1983 to Rabi, 1984 was paid by him to the deceased/plaintiff through the receipts and deposited the lease money for Kharif, 1984 to Rabi, 1985 in the Treasury under Section 16 of the Tenancy Act as the plaintiff was reluctant to receive the same. It was additionally averred that a sum of Rs.3081/- was already outstanding against the plaintiff which was paid to him as advance money vide agreement deed dated 18.2.1980. Necessary issues in the case were framed, evidence led pro and contra thereon recorded, and the learned trial Court vide judgment dated 29.6.1988 passed a decree for Rs.22997/50 in favour of the plaintiff against the defendant as arrears of rent and also for his ejectment from the suit land on payment of Rs,2,15,826/- as compensation for improvements. It was also ordered that the cash rent deposited in the Government Treasury shall be adjusted in the decretal amount. The petitioner's appeal before the Collector was accepted vide. judgment dated 22.2.1989 and the case was remanded to the trial Court for. determining whether he was a defaulter or not in view of the deposit already made by him in the Treasury. The respondents preferred revision petition before the Additional Commissioner, who vide his judgment dated 6.7.1989 accepted the same and by setting aside the judgment of the appellate Court restored that of the trial Court with the only modification that the defendant/petitioner was entitled to half of the improvement as the trees grown on land was not his exclusive property but the landlord had also a share in it. The petitioner filed a revision petition before the Board of Revenue which was returned on 2.S. 1989 on the ground that second revision was not competent. Having exhausted his remedies before the hierarchy of revenue forums, the petitioner invoked the constitutional jursidiction of the High Court through writ petition No.363 of 1989 which was heard by a Division Bench of the Peshawar High Court and dismissed vide judgment dated 18.12.1990 holding that the rule laid down in case Fazal Rehman and 12 others v. Board of Revenue, NWFP and 76 others (PLD 1983 Peshawar 1) was applicable to the facts and circumstances of the case and that no second revision was competent before the Board of Revenue. The learned Judges did take notice of the judgment of this Court in the case of Haji Samad Klian v. Klialid Klian (1985 S.C.M.R. 770) but observed that the same was not applicable. Both the parties feel aggrieved from the aforementioned judgment of the High Court and they have filed separate Petitions for Leave to Appeal No.l35-P/91 by defendant/petitioner Haji Jamroz Khan and No.l57-P/91 by Wazir Muhammad and others successors-in-interest of Faqir Muhammad dcceased/palintiff, and both of them are being disposed of through this single judgment. We have heard Mr. Z. Mahfuz Khan, Advocate for defendant/petitioner Haji Jamroz Khan; Mr. Abdul Samad Khan, Advocate for Wazir Muhammad Khan and others, successors-in-interest of Faqir Muhammad deceased/plaintiff; and have perused the record of the case with their assistance. Henceforth Haji Jamroz Khan would be referred to as defendant/petitioner and Wazir Muhammad etc. as plaintiff/respondent. The learned counsel for the defendant/petitioner strenuously argued that in view of the judgment of this Court a second revision was competent and that the learned Member, Board of Revenue legally erred in declining to entertain the revision petition filed by the defendant/petitioner before him and thereby refused to execise jurisdiction vested in him by the law. He stressed with vehemence that the learned Judges of the High Court wrongly interpreted the judgment of this Court in Haji Samad Klian v. Klialid KJian (1985 S.C.M.R. 770). This being a legal question requires determination at the outset before embarking upon the factual controversy between the parties. Prior to the judgment delivered by the Peshawar High Court in Writ Petitions Nos.197/81; 616/77; 553/77; and 89/77 (P.L.D. 1983 Peshawar 1) the Board of Revenue used to entertain the revision petitions under the NWFP Tenancy Act against the judgments of subordinate Courts for satisfying itself with regard to the correctness, legality and propriety of the judgments and orders passed by them. For the first time, the question arose before the High Court in the writ petitions quoted above, that once the Commissioner had exercised the rcvisional jurisdiction conferred upon him under Section 56, the Board of Revenue would not be competent to exercise the same powers already exercised by the Commissioner. The Peshawar High Court, on consideration of the relevant provisions of the tenancy law, came to the conclusion that a second revision before the Board of Revenue is not competent, thereby practically divesting the Board of Revenue of all powers vested in it, in its revisional/supervisional jurisdiction over its subordinate Courts/officers. This judgment was challenged before this Court and a learned Bench comprising of three Hon'ble Judges accepted the appeal, set aside the orders passed by the High Court declaring the orders of Board of Revenue as valid and restored them. This judgment is reported as 1985 S.C.M.R. 770 and is titled Haji Samad Khan v. KJia/id KJian. The learned Judges of the Peshawar High Court seized of the controversy in case Fazal Rehman v. Board of Revenue NWFP (P.L.D. 1983 Peshawar 1) in their judgment mainly relied on the wording of Section 56 of the NWFP Tenancy Act, 1950 without adverting to the relevant provision of the Martial Law Regulation 115 whereby protection from eviction had been conferred on the tenants and also the rules framed thereunder and came to the conclusion that cither the Commissioner or the Board of Revenue is empowered to exercise rcvisional jurisdiction over the orders of their subordinate Courts/officers and once the power is exercised by the Commissioner, the Board of Revenue ipso facto is divested of the same powers. As stated above this very judgment was challenged before this Court in Haji Samad Khan's case. Since the High Court had not referred to the provisions of Martial Law Regulation 115, placing restrictions on the eviction of tenants, except under certain circumstances, its overriding effect on the other laws and the provision of sub-para (7) of para 25 of the Regulation ibid, the Supreme Court dealt with the legal question in its proper perspective in the light oi the tenancy laws coupled with the Martial Law Regulation 115 and finally concluded as follows:-- "This plea, however, cannot be accepted. Para 3 of Martial Law Regulation 115, as already noted, has overriding effect and, therefore, notwithstanding the provisions of the ejectment rules, reproduced above, a revision before the Board of Revenue would still be competent under sub-para(7) of para 25 of the aforesaid Martial Law Regulation. In a recent case LUCAS alias LUCI and others v. S.M. Nasim, Member (Revenue) Board of Revenue Punjab, Lahore and another P.L.D. 1984 S.C. 227 this Court has also considered this question and, inter alia, observed:- It is not necessary to examine the reasoning of the learned Judge because even if it be assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para.25 is prohibited or not provided or the rule is silent in others. A learned Single Judge of the Lahore High Court, while reiterating his view held in the case of Khuda Bakhsh, also held, with regard to the ejectment of a tenant under para.25 of Land Reforms Regulation, 1972, thai the Board of Revenue has no jurisdiction to entertaain a revision petition against the order passed by a Commissioner which was held to be final by virtue of Rule 7(4) of 77 Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977. It is not necessary to examine the reasoning of the learned Judge because even if it be assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para.25 is prohibited or not provided or the rule is silent in that behalf, the provisions in subpara.^) of para.25 make it amply clear that the Board of Revenue can "at any time of its own motion or otherwise call for the records of any case or proceedings, "under this paragraph" which is pending or in which a Collector or Commissioner has passed an order, for purpose of satisfying itself regarding correctness, legality or propriety of such proceeding or order. Thus, while upholding the view expressed in the cases of Kluida Bakhsh and Mst. Slieher Ban! to the extent that a prior decree for recovery of rent is not essential for filing'a suit/o/' ejectment of a tenant on ground of his being a defaulter in payment of rent, we, with respect, have not been able to accept the view expressed in the case of "Mst. Sheher Bani" that the Board of Revenue has no revisional jurisdiction in these matters". This Court in a later judgment delivered in case Faiz Ahmad v. Muhammad Sharif KJian (1991 S.C.M.R 689) once again analysed various provisions of the NWFP Tenancy Act, Martial Law: Regulation 115, and the Board of Revenue Act, 1957 vis-a-vis power of Board of Revenue to entertain revisions against the judgments/orders of the subordinate revenue Courts/revenue officers, while hearing appeal against the judgment of the Peshawar High Court, Circuit Bench Abbottabad dated 20.11.1983 in writ petition No.1/79, and gave a conclusive finding in this respect which is contained in para.No.7 of the judgment and is reproduced below for ready reference:-- "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 reexamination 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 revisiona! 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 subsection (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 staled 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." Thus it is the consistent view of this Court that the Board of Revenue possesses power of revision to satisfy itself as to the correctness, legality or propriety of the judgments/orders passed by the subordinate revenue Courts/revenue officers under Section 56 of the NYVFP Tenancy Act as well as sub-para (7) of para 25 of the Martial Law Regulation 115, the provision whereof overrides the provision of any other law if there is a conflict between the two. The reasonings advanced in the judgment of the Peshawar High Court in the case reported as PLD 1983 Peshawar 1, were repelled one by one in the aforementioned judgments of this Court and there should be no doubt about the power of revision of Board of Revenue any longer. Obviously, the question of law being involved, the High Court in the normal course might have accepted the writ petition and remitted the case back to the Board for decision on merits of the revision petition filed before it. However, the learned High Court did not deal with factual aspect of the case, probably because no arguments were addressed before it on the merits of the case. As is apparent from the history of the case discussed in the introductory part of the judgment, the respondents are the owners of the suit land and the petitioner tenant under them, which fact has been accepted by the trial Court as well as by the appellate Court and (they) have concurrenily held that the defendant/petitioner is-a defaulter. The learned Commissioner in the exercise of his revisionai power under Section 56 of the N\VFP Tenancy Act v, a; r.ot convinced about any illegality committed by the two Courts be low or about any mis-reading or non-reading of evidence by them in arriving at their conclusion about the facts of the case and, in consequence, refused to exercise his revisionai powers to set aside the judgments impugned before him. The Board of Revenue in view of the discussion made above, is only competent to exercise revisionai power with regard to the judgment of the Commissioner and the learned counsel for the petitioner could not pin point any illegality committed by the learned Commissioner so as to persuade us to put the parties to further agony, mental torture and unnecessary exepenses of a fresh trial from the stage of Board of Revenue. This Court is not bound to grant leave against each and every order simply because it finds that any illegality or jurisdictional error has been committed by the lower Court unless it is additionally satisfied that such order has occasioned manifest injustice to either of the parties. In this respect the judgment of this Court in the case of Begiim Shams-un-Nisa vs. Said Akbar Abbasi (P.L.D. 1982 Supreme Court 413); Muhammad Baran vs. Member (Settlement and Rehabilitation,. Board of Revenue. Punjab (PLD 1991 Supreme Court 691); Sadullah Jan vs. Additional Sccreta/y, Home and Tribal Affairs, NWFP, Peshawar (PLD 1991 S.C. 811); and Federation of Pakistan vs. Haji Muhammad Saifullali KJian (PLD 1989 S.C. 166) can be referred to with advantage. We questioned the learned counsel for the petitioner as to whether the remand of the case to the Board of Revenue can be of any substantial benefit to the petitioner, he submitted that the learned Commissioner had deprived the petitioner of half of the improvement assessed by the local Commissioner and that the Board of Revenue might disagree with him. We have already dealt with this question in a recent judgment in Civil Petition for Leave to Appeal No. 2-P of 1992 titled Hakim Klian vs. Additional Commissioner, decided on 11.5.1992, and did not differ with the finding of the learned Commissioner that the landlord had a share in the trees growing on the land under tenancy and that the tenant on ejectment is entitled to half of such improvements and, in consequence, refused leave to appeal. The decision of the learned Commissioner apparently is in accord with the prevailing custom of the area and does not suffer from any legal infirmity to call for interference in the revisional jurisdiction of the Board of Revenue, particularly in the presence of the verdict of this Court in the case cited above. The remand, no doubt, would help the petitioner in the prolongation of his possession over the suit land and enjoyment of the usufruct thereof for a long time against the wishes of the landlord and in violation of the tenancy laws and rules as ejectment decree has already been passed against him, (but) will not be of any material gain to him so far as his claim tor compensation of improvements is concerned. On the contrary it will cause manifest injustice to the landlord/respondent. Consequently, we are not inclined to remand the case to the Board of Revenue. For the foregoing reasons, we refuse leave to appeal and dismiss both the petitions with the result that the impugned order of the High Court dismissing the writ peititons filed before them stands dismissed but on different grounds as enumerated above. Copy of this judgment may be sent to the Senior Member, Board of Revenue, NWFP, Peshawar for future guidance. (MBC) (Approved for reporting) Both Petitions dismissed.

PLJ 1992 SC 480 PLJ 1992 SC 480 [Appellate Jurisdiction] Present: shafiur rahman and abdul shakurul salam, JJ GHULAM ABBAS-Petitioner versus MEMBER, BOARD OF REVENUE, PUNJAB , and 5 others-Respondents Civil Petition Nos.l067/L and 1068/L of 1991, converted into appeals and appeals accepted on 27.5.1992. • [On appeal from judgment dated 16.10.1991, of Lahore High Court, Multan Bench, passed in W.P.Nos.2229 of 1990 and 765 of 1991.] Lambardar-- Lambardar —Appointment of—Challenge to--Against appointment of petitioner as Lambardar by Collector in 1981, respondent Nos. 5 and 6 filed appeals which were dismissed by Commissioner whose order was not challenged any further by them—They accepted order (of Commissioner) and went out of arena—Member, Board of Revenue was quite right in confining controversy to contestants and appointing petitioner as Lambardar--Held: There was no justification to interfere with order of Member Board of Revenue—Appeal accepted and order of Member, Board of Revenue restored. [Pp.483]A Mian Bashir Zafai; Advocate, Superme Court , instructed by Mr. Tanvir Ahmad, AOR for Petitioner (in both petitions). Mr. Muhammad Ashraf Wahla, Advocate, Supreme Court, instructed by Mr. MalimoodA. Qureshi, AOR for Respondent No.4 (in C.P.1067 of 1991). Respondent Nos.l to 3 and 6 not represented (in C.P.1067 of 1991). Mr. Hassan Ahmad K)wn Kanwar, Advocate, Supreme Court, instructed by Cli, Melidi Klwn Mehtab, AOR for Respondent No.5 (in both petitions). Respondent Nos. 1 to 4 and 6 not represented (in C.P. 1068 of 1991). Date of hearing: 27.5.1992. judgment Abdul Shakur-ul-Salam, J.--This order will dispose of C.P. No.l067/L of 1991 and C.P. No.l068/L of 1991 as these challenge the same order of a learned Judge of the Lahore High Court dated 16.10.1991. 1. Relevant facts are that on the death of Mumtaz Ahmad Khan Awan,. Lambardar of Chak No.281/EB, Tehsil Burewala, District Vehari on 22.6.1979 the post fell vacant. Numerous persons applied for the post. The learned Collector Vehari vide order dated 27.7.1981 appointed Ghulam Abbas petitioner as a permanent Lamberdar. Against this order five appeals were filed by Nazar Muhammad, Muhammad Fazil, Muhammad Ashraf, Allah Ditta and Sakhi Ditta. All the appeals were dismissed by the learned Commissioner, Multan Division vide order dated 28.2.1982. Allah Ditta and Muhammad Fazil filed separate revision petitions before the Board of Revenue, Punjab, Lahore . Revision petition of Allah Ditta was dismissed in limine by a learned Member, Board of Revenue vide order dated 13.6.1982. However, his review application and revision petition of Muhammad Fazil were accepted by another learned Member, Board of Revenue vide order dated 22.5.1984 whereby the case was remanded back to the Collector for fresh decision on merits. This order was challenged by Ghulam Abbas petitioner through Constitution Petition No.761 of 1984 which was disposed of with the following observations: "In this view of the matter while upholding the order of the learned Member, Board of Revenue, Punjab dated 22.5.1984 passed on the revision of Muhammad Fazil, respondent No.3 as regard remand of the case, which I would not like to interfere with being not a final order, I direct that the learned District Collector, Vehari shall decide the controversy of appointment of Lamberdar of Chak No.281/EB Burewala in accordance with law, and while doing so take into consideration all the requirements of Rule 17 of the West Pakistan Land Revenue Rules which have to be read conjunctively to arrive at a decision regarding suitability/appointment of a Lamberdar. The learned District Collector shall adjudicate upon the matter afresh in accordance with law and after affording an opportunity of hearing to the parties concerned". This is vide order dated 12.2.1985. In remand proceeding, the learned Collector, Vehari appointed Muhammad Ashraf respondent No.5 as a Lamberdar. Ghulam <Vbbas petitioner, Muhammad Maroof respondent No.4 and Muhammad Fazil respondent No.6 filed separate appeals. The learned Commissioner, Multan accepted the appeal of Muhammad Maroof respondent No.4 and appointed him as a Lamberdar vide order dated 27.7.1987. Ghulam Abbas petitioner, Muhammad Ashraf respondent No.5 and Muhammad Fazil respondent No.6 filed separate revision petitions before the Board of Revenue Punjab. A learned Member, Board of Revenue accepted the revision petition of the petitioner Ghulam Abbas and appointed him as a permanent Lamberdar and rejected the revision petitions of Muhammad Ashraf and Muhammad Fazil respondents No.5 and 6 respectively. This is vide order dated 24.7.1990. This was challenged by Muhammad Maroof and Muhammad Ashraf respondents No.4 and 5 respectively through separate Writ Petitions No.2229 of 1990 and 765 of 1991 in the Lahore High Court. It was contended on their behalf that the learned Member, Board of Revenue fell in error in confining the dispute between the petitioner Ghulam Abbas and Fazil respondent No.6 as if the order of the High Court dated 12.2.1985 had limited the controversy amongst them because the High Court had upheld the order passed by the learned Member, Board of Revenue dated 22.5.1984 which had remanded the case for fresh decision and so also had done the High Court when it remanded the case to the District Collector for fresh decision in accordance with law. The contention prevailed with the learned Judge of the High Court. The order of the Member of Board of Revenue dated 24.7.1990 by which the petitioner was appointed as Lamberdar was set-aside and the revision petitions of Muhammad Maroof and Muhammad Ashraf respondents No.4 and 5 respectively were directed to be decided afresh in accordance with law. This is vide order dated 16.10.1991. The petitioner sought leave to appeal. 2. Learned counsel for the petitioner contended that against the order of appointment of the petitioner by Collector dated 27.7.1981, Muhammad Fazil and Muhammad Ashraf respondents No.6 and 5 respectively filed appeals before the Commissioner which were dismissed on 28.2.1982. They did not file any revision petition beffjre the Board of Revenue nor were they party to the order of the Member, Board of Revenue dated 22.5.1984 challenged in the High Court. Consequently, they were rightly excluded from consideration by the learned Member, Board of Revenue. The case of Muhammad Fazil respondent No.6 was considered by the learned Member, Board of Revenue who did not find him fit for appointment, resulting in the appointment of the petitioner as a Lamberdar by the learned Member, Board of Revenue vide order dated 24.7.1990. This order was not liable to be interfered with on the Writ Petitions of Muhammad Maroof and Muhammad Ashraf respondents No.4 and 5. Learned counsel relied on "Ghulain Rasool v. Settlement Commissioner" (1980 S.C.M.R. 921) and a decision in Civil Petition No.889 of 1980 "Muhammad All v. Additional Settlement Commissioner & two others" decided on 18.11.1987. 3. Learned counsel for the respondents has contended that since the order of remand passed by the Member, Board of Revenue dated 22.5.1984 was earlier upheld and case remanded to the Collector by the learned Judge of the High Court vide order dated 12.2.1985, it was open to the Collector to consider the case of all the respondents and the learned Member, Board of Revenue fell in error in not considering the case of the respondents No.4 and 5. 5. After hearing the learned counsel for the parties and perusing the record with their assistance it is crystal clear that against the appointment of the pctilioYier as a Lamberdar by the Collector vide order dated 27.7.1981, the] respondent Nos.5 and 6 filed appeals which were dismissed by the learned ! Commissioner vide order dated 28.2,1982. Respondents No.5 and 6 did not| challenge the order any further. In other words, they accepted the order and went out of the arena. Consequently the revisional order of the learned Member, | Board of Revenue dated 22.5.1984 remanding the case which was upheld by the j learned Judge of the High Court vide order dated 12.2.1985 would not confer any right on the respondents No. 5 and 6 to re-enter the ring after their exit by the j order of the Commissioner dated 28,2.1982 against which they had not protested, j Therefore, the learned Member, Board of Revenue was quite right in confining the controversy to the contestants and appointing the petitioner as a Lamberdar vide his order dated 24.7.1990. It may be recapitulated that the petitioner was appointed Lamberdar in the first instance by the Collector vide order dated 27.7.1981. After the vicissitude of prolonged litigation he has finally been appointed as a Lamberdar by the learned Member, Board of Revenue vide order dated 24.7.1990. In the circumstances we do not think that there was sufficient justification to interfere in the order of the learned Member, Board of Revenue. Therefore, we convert these petitions into appeals and allow the same settingaside the impugned order of the learned High Court and restoring that of the learned Member, Board of Revenue dated 24.7.1990. (MBC) Approved for reporting) Appeals accepted.

PLJ 1992 SC 483 PLJ 1992 SC 483 [Appellate Jurisdiction] Present: dr. nasim hasan siiam, saad saood jan and ajmal m«an, JJ Haji MUHAMMAD IBRAHIM and 3 others-Petitioners versus Mst. SURRAYIA-UN-NISA and 9 others-Respondents Civil Petition No.l021-L of 1991, converted into appeal and accepted on 1.7.1992. [On appeal from judgment dated 23.10.1991, of Lahore High Court, passed in S.A.O. No.100 of 1991.] Punjab Urban Rent Restriction (Amendment) Ordinance, 1990 (XIII of 1990)-- —-S.15(6)(7)&(8)-Tenant of non-residential building-Ejectment of--Right of second appeal-Whether available-Question of-If right of appeal is taken away during pendency of proceedings, parties could rightly feel aggrieved because a decision which was still subject to appeal, would become fmal--If right of appeal is added during pendency of proceedings, parties would feel that they have gained an additional right-Amending Ordinance XIII of 1990 came into force on 6.6.1990 when proceedings in this case were pending before Rent Controller-Held: No right then enjoyed by parties was affected when right of second appeal was conferred on parties through Ordinance of 1990— Held further: Mere fact that this right was conferred after institution of ejectment petition, did not affect situation-Petition converted into appeal and accepted. [Pp.488,489&490]A,B,C,D&E PLJ 1991 Lahore 241 over-ruled. 1905 Appeal Cases 369, PLD 1966 SC 472 and PLJ 1981 SC 878 ref. Mr. S.M. Masud, Advocate, Supreme Court, instructed by Sh. Masud Akhtar, AOR for Petitioners. Mr. M. Habibur Rehman, Advocate, Supreme Court, instructed by Mr. M~A. Qureshi, AOR for Respondents. Date of hearing: 1.7.1992. order Nasim Hasan Shah, J.-This petition is directed against the ordec dated 23.10.1991 passed in S.A.O. No.100 of 1991, whereby the second appeal filed by the petitioner herein was dismissed as not maintainable. The facts which form the background to these proceedings are that the respondents, Mst. Surrayia-un-Nisa and 9 others (hereinafter called as the landlords) submitted an ejectment application on 1.6.1989 before the Rent Controller against the petitioners (hereinafter referred to as the tenants) seeking their eviction from Shop No.2, situate in P/164, Rail bazar, Faisalabad. The Rent Controller, after contest, found that the issues on the points that the tenant had committed default inpayment of rent and caused damage to the demised property were established and, accordingly, were liable to ejectment which he, therefore, ordered vide order dated 6.4.1991. The tenants, aggrieved by this order of the Rent Controller, submitted an appeal before the District Judge on 5.5.1991 but failed and their appeal was dismissed by order dated 4.7.1991 of the Additional District Judge acting as appellate authority. A second appeal was, therefore, filed in the High Court by the petitioners on 20.7.1991. This appeal has been dismissed by the order of a learned Single Judge of the High Court, now impugned, on the ground that the second appeal was not maintainable. This view is questioned before us. Appeals in ejectment cases were dealt with by Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. The said Section 15 (as substituted by Punjab Ordinance IX of 1979) restricted the right of the tenant only to one appeal. The relevant provisions under the Ordinance were as under:-- 15.Appeal.~(l) Any party aggrieved by an order of the controller finally disposing of an application made under this Ordinance may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated: (1) (2) (3) (4) (5) (6) .................................. (7) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise. (8) The provisions of sub-sections (7) shall apply to every application under the Ordinance irrespective of whether it was filed before or after the commencement of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 (IX of 1979) and all appeals filed in the High Court from the orders of the District Judge or the Additional District Judge passed after the said commencement, shall stand abated; Provided that this provision shall not be deemed io invalidate the judgments already delivered by the High Court in any such appeals. Thus under the provisions of sub-section (7) of Section 15, quoted above, the order of the Controller subject to the result of the appeal before the District Judge was to be final and was not liable to be questioned in the High Court by an appeal or otherwise. On 6.6.1990, however, a modification was brought about in this position by the promulgation of Ordinance XIII of 1990 [Punjab Urban Rent Restriction (Amendment) Ordinance, 1990J whereby the Punjab Rent Restriction Ordinance, 1959 was further amended and the right of a second appeal, to the High Court was conferred on tenants of "non-residential buildings". This change was effected by substituting the existing provisions of sub-sections (6), (7) & (8) of Ordinance IX of 1979 with the following new provisions:-- "(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. Explanation.~-An appeal under this sub-section shall be heard and determined as an appeal from an appellate order under Section 100 of the Code of Civil Procedure, 1908 and the provisions of Part VI of the First Schedule to the said Code relating to appeals, shall, with such modifications as the context may require, apply to such proceedings. (7) Unless it dismisses the appeal in li/nine, the appellate authority or the High Court, as the case may be, 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. (8) An order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance, shall not be called in question in any Court of law by a suit or otherwise, except as provided under this Ordinance" (Underlining is ours)' This Ordinance was continued in force by Ordinance XXXI of 1990 and Ordinance VIII of 1991 and by an Act of the legislature namely Punjab Urban Rent Restriction (Amendment) Act, 1991 (Act III of 1991). Reverting to the instant case, we note that the ejectment application was filed on 11.6.1989. On this date undoubtedly there was no right of second appeal before the High Court conferred on tenants of shops and that this right was conferred on them much later namely, on 6.6.1990 (by Ordinance XIII of 1990). The High Court, therefore, took the view that second appeal was not maintainable as the ejectment petition was filed long before the right of second appeal was conferred by the Punjab Urban Rent Restriction (Amendment) Ordinance, 1990. In coming to this conclusion, the learned Judge relied on his earlier judgment in Sh. Muhammad Sadiq & another v. LA. Klwn (PLJ 1991 Lahore 241) wherein he had discussed this question in detail. The learned Judge in the aforesaid judgment noted that a right of appeal is not a natural or inherent right attached to the Us but must be expressly conferred by the statutule or the rules having force of law. Moreover, it is a substantive right and not a matter of mere procedure. Accordingly, a right of appeal if available at the time of commencement of a Us cannot be taken away except by express language and, therefore, even if the law providing for an appeal is repealed after the commencement of a cause, the right to file the appeal survives the repeal. On a parity of reasoning, if no right of appeal is available at the time of the commencement of Us any change in law made subsequently providing for an appeal cannot be made applicable to pending matters because the right of appeal not being a matter of procedure but a substantive right and the institution of a 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 career of the suit, which rights cannot be taken away except (by) a subsequent enactment which so provides, expressly or by necessary intendment and not otherwise. Reliance in this behalf was placed on the well-known judgment of the Privy Council in Colonial Sugar Refining Company Limited, v. living (1905 Appeal Cases 369) and the judgments of this Court in Sutlej Cotton Mills Limitied v. Industrial Court (PLD 1966 S.C. 472) and Pakistan International Airlines Coiporation v. Messrs Pak. Saaf Dry Cleaners (PLJ 1981 S.C. 878). Mr. S. M. Masud, learned counsel for the petitioners, however, drew our attention to a judgment of another learned Single Judge of the same High Court wherein a view contrary to the view expressed in this judgment has been taken. (This judgment was delivered in S.A.O. No.42 of 1991 decided on 14.10.1991). In this case, the question falling for consideration was the same namely whether a right of second appeal which was conferred in the course of pending proceedings can be availed of by the parties or whether this right can be availed of only by the parties to proceedings which commenced after the enforcement of Ordinance XIII of 1990? The learned Single Judge in this case drew a distinction between the situation where a right of appeal or a right of further appeal which was hitherto non-existing or was earlier taken away is conferred or restored in the course of pending proceedings. The learned Judge considered that a distinction should be drawn between the case where the right of appeal is taken away and the case where a right of appeal or a further right of appeal is conferred because interference with the right of parties, in the two cases, is of a different nature. He pointed out that the right of appeal is a positive and substantive right which accrues at the time of filing of suit or the commencement of Us, but the absence of a right of appeal cannot be called a right at all. The prohibition of appeal by law existing at the time of the institution of the suit or of Us does not amount to a substantive or existing right accruing to the parties. It is a mere negation of such right. If the law chooses to give or confer such a right during the pendency of the case, there is no principle of law which prevents it from doing so and no rule of finality is interfered with. The above principle was expounded in the Full Bench Judgment of the Oudh Chief Court in Dabi Prasad v. Phundan Lai (AIR 1942 Oudh 291). And further light (was) thrown thereon by Beaumont CJ. in Goviitdram v. Commissioner of Income Tax (AIR 1943 Bown 122). Herein the leading judgment of the Privy Council in Colonial Sugar Mills case (1905 Appeal Cases 369) was distinguished in these words:-- "The Privy Council held that a man filing a suit is entitled to say "I have a right to carry my grievance to the highest tribunal, that is a substantive right, not lightly to be taken away, and they held that it was not taken away by the statute in that case". But this situation was different when the right of appeal is conferred after the date of the institution of Us because interference with the right of the party is of a different nature in the two cases. If the right of second appeal is taken away while the first appeal was pending, both the parties can feel aggrieved, for here the grievance is far graver than they wou?H have if the second appeal was added during the pendency of the first appeal. In fact, in this eventuality they would not feel a sense of grievance at all. In the first case, when the right of appeal is taken away during the pendency of the proceedings the parties could rightly feel aggrieved as a decision which they considered was still subject to appeal would now become final and they would have a feeling that they had lost a right, while in the second case they would feel that they had gained an additional right. Both parties would normally have such feelings in the matter, so long as the litigation was pending. But the position would be quite different if under the law as it stood when the decision of the first appellate Court was given the parties had no reason, at that time to expect that the matter could be carried further and a second appeal was added after that decision. The unsuccessful party in such an eventuality gains and the successful party looses a right by the change in the law if it is held that a second appeal lies, even in such a case. In other words so long as the matter is pending the addition of a second appeal is unobjectionable. This view appears to be correct as the proposition that institution 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 career 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, is not negatived by adopting this view. Indeed the aforesaid proposition does not exclude the addition of the remedy of the second appeal, if the litigation is pending before the first appellate Court or any Court subordinate to it, when the second appeal is added. The judgment of the Privy Council in the case of Delhi Cloth and General Mills Co. Ltd. (AIR 1927 Privy Council 242) also does not negative this view. In this case by an amendment made in the Income Tax Act 1922 on 1.4.1926, the right of appeal was allowed to the Privy Council from a judgment of the High Court delivered on a reference made to it under Section 66 of the Income Tax Act in cases where the High Court certified it to be a fit one for appeal to the Privy Council. Their Lordships after reconfirming the principles laid down in the Colonial Sugar Co. 's case (observed) that-- "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have rstrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute 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 retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights". went on to "Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect". (Underlining is ours)' On the contrary, they found "a clear suggestion in the amending provision that it did not apply to judgments delivered by the High Court before the 1st of April, 1926" becuase according to the amending provision the right of appeal was available to only such judgments which had been pronounced by two Judges of the High Court and this condition was fulfilled only when Section 66-A itself came into operation i.e. with effect from 1.4.1926. In the instant case, the situation is the opposite. There was no final order of the first appellate authority when the Amending Ordinance XIII of 1990 came into force on 6.6.1990. In fact, the proceedings on that date were pending before the Rent Controller. The Delhi Cloth and General Mills case (AIR 1927 Privy Council 242) clearly shows that the Privy Council dealt with an order actually made befoi£ right of appeal was given and they held that in the absence of the clear words, the statute should not be construed as giving right of appeal against the order which had become final. In the case being dealt with here the matter was still pending before the Rent Controller and both parties had the right of an appeal against the order (to be passed by the Rent Controller) before the appellate authority (District Judge) and, therefore, no right then enjoyed by the parties was affected when the right of second appeal was conferred on the parties through Ordinance XIII of 1990. The mere fact that this right was conferred after the institution of the ejectment petition did not affect the situation, as explained above. We, therefore, hold that the contrary view taken by the learned Judge in the High Court in the case of Sh. Muhammad Sadiq and another v. I A.. KJian (PLJ 1991 Lahore 241) is not correct. Since the impugned order herein is based on the said erroneous view, the impugned order is indeed infirm and cannot be sustained. The learned counsel for the respondents, who was present before us and was also fully heard, could not persuade us to agree with the view expressed by the learned Judge in the High Court. This petition, therefore, is converted into an appeal and allowed. The impugned order of the High Court dated 23.10.1991 passed in this case is set-aside and the case remanded to the High Court for disposal of the second appeal on merits at an early date. No costs. (MBC) -(Approved for reporting) Appeal accepted.

PLJ 1992 SC 490 PLJ 1992 SC 490 [Appellate Jurisdiction] Present: dr. nasim hasan shah, saad saood jan and ajmal mian, JJ MUHAMMAD RAFIQ-Petitioner versus 5/i. MUHAMMAD GULZAR, and another-Respondents Civil Petition No. 878/L of 1991, converted into appeal and accepted on 1.7.1992. [On appeal from judgment dated 15.9.1991, of Lahore High Court, in S_A.O No. 107 of 1991.] Punjab Rent Restriction (Amendment) Ordinance, 1990 (XIII of 1990)- —-S. 15 (6), (7) & (S)--Tenant of non-residential building-Ejectment of-Right of second appeal-Whether available-Question of-Same question has been decided by rder of even date in another Civil Petition (reported as PLJ 1992 SC 483) wherein it has been held that right of second appeal is available in cases 'pending before promulgation of Ordinance XIII of 1990 where first appellate court had not passed a final order before 6.6.1990 and if any such order had been passed, 30 days had not elapsed since passing of such order and coming into force of Ordinance XIII of 1990-Held: View taken by High Court that second appeal was not maintainable in this case, is not sustainable-­ Petition converted into appeal and accepted. [Pp.491&492]A,B&C PLJ 1992 SC 483 rel. SyedFarooq Hassan Naqvi, Advocate, Supreme Court (absent) and Mr. M~A. Qureshi, AOR for Petitioner. Respondent No. 1 in person. Respondent No. 2 not presented. Date of hearing: 1.7.1992. order Nasim Hasan Shah, J--The relevant facts are that respondent No. 1 filed an ejectment petition against respondent No. 2 seeking his ejectment from Shop No. 28, Sheikh Cloth Market, Rail Bazar, Faisalabad . The ejectment of the petitioner was sought on the ground that respondent No. 2 had failed to pay rent from April, 1988 and that he had sublet the disputed shop to the petitioner. On the pleading of the parties, the following issues were framed:- (1) Whether the respondents have become defaulters from April 1988? OPP Whether the respondent No. 1 has sublet the property to respondent No. 2? OPP (2) Whether the petitioner required the shop in question for personal use in good faith? OPP (3) What is the exact rate per month? OPP After parties had led evidence in support of their respective stands and the matter argued before him, the Rent Controller decided Issues Nos. 1 to 3 against the landlord; but as regards Issue No. 4 the rent was fixed at Rs. 100/- per month. In view of the findings on Issues Nos. 1 to 3 the petition was dismissed by the Rent Controller vide order dated 27.2.1990. However, on the landlord's appeal, the learned appellate Court (Additional District Judge) reversed the finding on Issue No. 1 (default) and on Issue No. 3 (personal need) though the finding with regard to Issue No. 2 (re-subletting) was maintained. It was found that Muhammad Rafiq (petitioner herein) was in occupation of the shop at the time of ejectment petition and Muhammad Nawaz (respondent No. 2 in whose favour the premises were supposed to have been sublet) was out of possession and his application under Section 9 of the Specific Relief Act for obtaining possession was dismissed by the learned Court. Therefore, the learned Additional District Judge while allowing the appeal did not consider it necessary to pass any order of ejectment against Muhammad Nawaz (respondent No. 2) as he was already out of possession. In the result, Muhammad Kafiq (Petitioner herein) was ordered to be ejected vide the appellate order passed on 31.7.1991. Feeling aggrieved, Muhammad Rafiq, filed a second appeal before the High Court. This, however, was dismissed by a learned single Judge of the High Court on the ground that the right of second appeal was not available to him; on the view that the right of second appeal was not available in cases where the ejectment petition was instituted prior to the coming into force of the amending Ordinance XIII of 1990 (viz. 6.6.1990), by which the right of second appeal was conferred on tenants of non-residential buildings. The present petition for leave to appeal has been heard by us alongwith Civil Petition No. 1021-L of 1991 (Haji Muhammad Ibrahim etc. vs. Mst. Surrayia-un- Nisa etc. reported as PLJ 1992 SC 483) wherein the same question was involved. By our order of even date we have held in the aforesaid case that the right of second appeal is available in cases pending before the promulgation of Ordinance XIII of 1990 i.e. before 6.6.1990 and where the first appellate Court had not passed a final order (before the said date) and, if any such order had been passed, 30 days had not elapsed since the passing of the said order and the coming into force of Ordinance XIII of 1990. Accordingly, the view taken by the High Court that the second appeal was not maintainable in this case is not sustainable. This petition is, accordingly, converted into an appeal and allowed. The order passed by the High Court dated 15.9.1991 is set-aside and the case remanded to the High Court for disposal of the second appeal, on merits. No costs (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 492 PLJ 1992 SC 492 [Appellate Jurisdiction] Present: muhamad afzal zullah, CJ, muhammad afzal lone and wali muhammad khan, JJ MUHAMMAD SALEEM-Appellant Versus THE STATE-Respondent Criminal Appeal No. 6 of 1991, dismissed on 12.4.1992 (approved for reporting on 24.5.1992). [On appeal from judgment and order dated 25.9.1990, of Lahore High Court, Multan Bench, passed in Cr. A.No. 26 of 1988 and M.R. No. 53 of 1988.] Criminal Trial- —Murder-Offence of~Conviction for-Cha!!enge to—Trial court as well as High Court, on proper appraisal of evidence of two eye-witnesses, have believed their presence at time of occurrence-This being a decision on facts, is not open to challenge before Supreme Court-Held: There is no illegality in conclusions arrived at by lower two forums-Held further. Motive being shrouded in mystry, benefit of lesser sentence was granted to appellant and that was all he could expect from High Court-Appeal dismissed. [P.494]A Mr. Nasir Saeed Shaikh, Advocate, Supreme Court, for Appellant. Mr. M.Nawaz Abbasi, AA.G. for State. Date of hearing: 12.4.1992. judgment Wali Muhammad Khan, J-Muhammad Saleem convict/appellant, through leave of the Court on jail petition, had called in question his conviction under Section 302 PPC and sentence of life imprisonment and a fine of Rs. 5000/- or in default one year R.I., for having committed the murder of Jalal Din, his step uncle, passed by the Lahore High Court vide order dated 25.9.1990. The leave granting order is as follows:-- The enmity between the parties was found established by the High Court. It was of such a nature that the petitioner had to sell his land and leave the village to settle elsewhere. Further, the High Court held "the evidence as to motive is doubtful and the prosecution having made an effort to set it up failed to substantiate it and, therefore, it must suffer". The trial court found the revcovery evidence discrepant but believed it. The High Court did not reject it but at the same time did not rely on its corroborative value and proceeded to consider the case to be one of those exceptional cases where in spite of such enmity and the witnesses being interested no need for further corroboration existed. Such a view of the law requires examination for which it is a fit case for grant of leave to appeal." The facts of the case, briefly stated, are that on 7.11.1986 at 6.00 a.m. Abdul Sattar complainant PW-10 was proceeding towards his cotton field to ease himself while the deceased Jalal Din and the appellant Muhammad Saleem were going ahead of him at some distance. Farzand Ali PW-11 and Rehmat Ali (given up) also came there to wash their hands in the water channel. The accused and the deceased turned towards the Dera of the deceased and after covering some distance they started altercating with each other followed by exchange of abuses. The appellant brought out 12 bore pistol from his dubb and fired at the deceased hitting him on his chest as a result whereof he fell down on the ground and expired. The complainant tried to apprehend him but they could not do so on account of threatening by the appellant with dire consequences and he made good his escape. The motive alleged is that the appellant wanted the deceased to alienate his property in his favour, he being issueless to which the deceased was not agreeable and instead was bent upon gifting the same in favour of his daughter. After the usual investigation, challan against the appellant was submitted to the Ilaqa Magistrate who in his turn sent up the accused for trial before the Court of Sessions where, after the framing of necessary charge sheet, recording of prosecution evidence and recording of the statement of the accused/appellant under Section 342 Cr.P.C. he was found guilty of the offence of murder and sentenced to death and fine of Rs. 5000/- or in default one year R.I. vide judgment of the learned Additional Sessions Judge dated 17.1.1988. However, on appeal the conviction of the appellant under Section 302 PPC was maintained but sentence of death was altered to life imprisonment, as according to the High Court, the motive was shrouded in mystry. Hence the instant appeal. We have heard Mr. Nasir Saeed Shaikh, Advocate for the appellant, Mr. M. Nawaz Abbasi, Assistant Advocate-General, for the State, and have perused the record of the case. The learned counsel for the appellant reiterated the grounds contained in the leave granting order and submitted that the prosecution witnesses being inimical to the appellant, had falsely implicated him for the murder of his step uncle and that they being interested witnesses, their deposition without corroboration could not form the sole basis for the conviction of the appellant. It is admitted by Abdul Sattar complainant PW-10 in his statement in Court that his distant cousin Faryad was murdered for which Muhammad Saleem appellant, his brother Islam and one Gulzar were charged but acquitted by the Court. Farzand All PW-11 is his brother and thus both of them were apparently inimical to the appellant but at the same time they could not be termed as friendly to Jalal Din deceased who was admittedly the step uncle of the appellant and was prosecuting the earlier criminal case on behalf of the appellant. These PWs have stuck to their version from the stage of F.I.R. till the conclusion of the trial. Had they falsely implicated the appellant for the murder of Jalal Din, his own step uncle, his heirs which included his daughters, widow and sister would have made hue and cry and would have been able to influence the investigating agency to exonerate the appellant of the charge. They could even enter into compromise with him in the instant proceeding if they were satisfied about the innocence of the appellant. No doubt, it is the rule of criminal jurisprudence that depending upon facts of a case, interested witnesses might not be believed unless materially corroborated from other facts and circumstances of the case which appear to be lacking in this case as the recovery of the crime empties from the spot and the positive report of the ballistic expert according to which the empties were fired from the 12 bore pistol recovered at the instance of the accused, was not accepted by the lower Court as a measure of abundant caution, but the learned High Court relying on the judgment of this Court in Niaz vs. Tlie State (P.L.D. 1960 S.C. 387) came to the conclusion that the evidence of interested witnesses can be believed if they ring true. The trial Court as well as the High Court on proper appraisal of the evidence of these two witnesses have believed their presence at the time of the occurrence and this being a decision on facts is not open to challenge before this Court as we do not find any illegality in the conclusions arrived at by the lower two forums. No doubt, the motive alleged could not be established affirmatively but that by itself cannot cast any aspersion on the veracity of the PWs who were strangers to the family of the appellant and of the deceased and were not expected to know about the actual motive. The motive being shrouded in mystry, the benefit of lesser sentence provided under the law was granted to the appellant and that was all he could expect from the High Court. Resultantly, there is no merit in the instant appeal and the same is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1992 SC 495 PLJ 1992 SC 495 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, muhammad afzal lone and wali muhammad khan, JJ MUHAMMAD YOUNAS-Appellant Versus THE STATE-Respondent Criminal Appeal No. 124 of 1990, accepted on 15.4.1992 (approved for reporting on 27.5.1992). [On appeal from judgment and order dated 5.11.1988, of Lahore High Court, Rawalpindi Bench, passed in Cr. A. No. 39 of 1985 and M. R. No. 108 of 1985.] Self Defence- —Murder-Offence of--Conviction for--Challenge to--there are two versions of occurrence, one alleged by prosecution and other advanced by appellant raising plea of self-defence-It is well established that in such a case, both versions have to be kept in juxtaposition and one favourable to defence is to be preferred-Occurrence admittedly took place in front of house of accused where complainant party had no business to be there-Prosecution failed to produce any independent witness in support of their version—Prosecution witnesses suppressed material fact of appellant having received grievous injuries during course of said transaction-Held: Having been attacked by complainant party as well resulting in grievous hurt to him, appellant was fully entitled to benefit of self defence entitling him to acquittal-Appeal accepted. [Pp.498,499&500]A,B&C 1987 SCMR 1043, PLD 1985 SC 25 and 1988 SCMR 662 ref. Ch. Muhammad Akram, Advocate, Supreme Court for Appellant. Mr. M. Nawaz Abbasi, Asst. A.G. for State. Date of hearing: 15.4.1992. judgment Wali Muhammad Khan, J.-Muhammad Younas appellant has, through leave of the Court, called in question the order dated 5.11.1988 passed by the Lahore High Court, Rawalpindi Bench, whereby his appeal against his conviction under. Section 302/307 PPC was partially accepted to the extent of reducing his death sentence to life imprisonment. The leave granting order is as follows:- "Admittedly, the petitioner had more than one injury on his person and one of which was grievous. These injuries have not been explained by the prosecution. In the circumstances, I think the whole case requires reexamination in order to consider whether the .petitioner has been properly convicted for an offence under Section 302/307 PPC. I would, therefore, grant leave to appeal in this case." The prosecution story, as disclosed in the F.I.R. as well as statements of the prosecution witnesses, namely, Muhammad Idrees Pw-10, Muhammad Bashir PW-11 and Sher Bahadur PW-12, is that on 6.6.1983 at about 2.30 or 3.00 p.m. Muhammad Idrees complainant/PW-10 was going to his shop from his house and when he reached in front of the shop of the accused/appellant and his co-accused Muhammad Sharif, Abdul Qayyum (since acquitted) stood up and Muhammad Sharif accused (since dead) shouted that he would not go alive on which Muhammad Younas accused/appellant fired with a revolver hitting him on right upper arm followed by another shot which hit him on his left shoulder. Sher Ahmad deceased, who was President of Padlars' Association, was attracted to the scene of occurrence and he entreated the accused not be kill him and tried to rescue him when Muhammad Younas appellant also fired at him with his revolver hitting him on the left side of his abdomen. Muhammad Bashir PW-11 also arrived there and shouted as to why his maternal uncle was murdered on which Muhammad Sharif accused gave dang blow to him hitting him on his mouth. Sher Bahadur PW-12 also witnessed the occurrence. The accused thereafter went to their houses and the deceased and the injured were removed to the Civil Hospital where on the arrival of police, the complainant Muhammad Idrees PW-10 reported the matter which was recorded vide Ex. PC on the basis of which a case under Section 302/307 PPC was duly registered vide F.I.R. Exh. PC/1. Muhammad Sadiq S.I. PW-15 after recording of the report Ex.PC of the complainant prepared the injury sheet Ex.PL and inquest report Ex.PL/1 of the deceased and sent the dead body to the mortuary for postmortem examination. He also prepared injury sheet of Muhammad Idrees PW and referred him for medical examination. After necessary investigation in the hospital, he went to the spot and secured blood-stained earth from two places, the place where Sher Ahmad deceased had been done to death and the place where Muhammad Idrees PW-10 was injured and sealed into a parcel. He also took into possession three empties Ex.P-9, P-10 and P-ll vide memo Ex.PF and made it into a sealed parcel. He prepared the site plan and examined the witnesses. On 19.6.1983, he arrested accused Muhammad Sharif, Abdul Qayyum and Muhammad Younas while Muhammad Ashraf accused was arrested on 22.6.1983. On 29.6.1983 Muhammad Younas accused/appellant while in police custody led to the recovery of revolver Ex.P-12 the weapon of offence from his residential house which was lying in a box. The same was also sealed into a parcel and taken into possession vide memo Ex.PH. The arm being un-licenced, a case under Section 13/20/65 Arms Ordinance was also registered against the appellant. Muhmmad Younas accused/appellant was injured and the I.O. applied to the doctor for explaining his injuries. On the completion of investigation, challgn against the accused was submitted to the Ilaqa Magistrate who in his turn, sent up the a<x u^ed for trial before the Court of Sessions. The learned Additional Sessions Judge, Rawalpindi framed necessary charge sheet against the accused, recorded the prosecution evidence, recorded the statement of accused under Section 342 Cr.P.C. and on the appraisal of the evidence on record the learned trial Court, vide its judgment dated 16.7.1985, found Muhammad Younas accused/appellant guilty of murder of Sher Ahmad deceased, convicted him u/s 302/307 PPC and sentenced him to death plus fine of Rs. 3000/-. He was also convicted and sentenced u/s 307 PPC for causing the injuries to Muhammad Idrees PW-10. However, Muhammad Sharif accused had died during the pendency of the trial, accused Muhammad Ashraf and Abdul Qayyum are the real brothers of Muhammad Younas accused/appellant and as per the report of Muhammad Sadiq S.I. PW-15 they were innocent. The report of the Investigating Officer coupled with the fact that no overt act was attributed to them, Muhammad Ashraf and Abdul Qayyum were extended the benefit of doubt 'and acquitted. The appeal filed by the convict/appellant and the murder reference were disposed of by the impugned judgment whereby the murder reference was not confirmed and by accepting the appeal of th~ appellant the death sentence was commuted to life imprisonment. Hence the instant appeal. We have heard Ch. Muhammad Akram, Advocate for the appellant, Mr. M. Nawaz Abbasi, Assistant Advocate-General, for the State and have perused the record of the case with their valuable assistance. The question for consideration as per leave granting order is that the appellant had more than one injury on his person one of which being grievous and having not been explained by the prosecution, whether the appellant was properly convicted for an offence under Section 302/307 PPC or not. As such it is only to be considered v/hether the accused/appellant acted in self-defence or exceeded in the exercise of v hat right in view of the facts and circumstances of the case. Dr. Mehmood Khan ?W-9 found an oval wound of firearm entry 1 cm X 0.5 cm on left side front of chest lower most part, 12 cm from and below left nipple at 7-0 clock position and 14 cm above umblicus at 1-0 clock position with burning of edges of wound and skin around it caused by bullet. He also examined Muhammad Idrees complainant PW-10 and found circular wound of entry U.5 cm on the back of left upper arm, 5 cm above the posterior edge of left exilla and 6 cm below the left shoulder with burning of edges of skin around the wound. The accused/appellant was also examined by him while injured and he found right upper lateral incisor tooth broken about 2/3 and lacerated wound on inner side of upper lip corresponding to broken tooth with contused swelling of upper lip, abraded contusion on right knee joint, abrasion on left elbow, and abrasion on back lower part of right side caused by blunt means. After keeping injury No. 1 under observation the same was declared grievous. The prosecution did not explain the injuries on the person of Muhammad Younas appellant cither in the F.l.R. or in their statements before the Court and presumably for this reason the trial Court did not put a definite question to the appellant to explain the injury on his person. However, replying to question No. 10 as to why the PWs have deposed against him, he explained that the complainant party had caused him the injuries on his person and they were the aggressor and that he acted in the exercise of right of self-defence and under sudden provocation on seeing his father having been made naked by the complainant party in open bazzar on his refusal to pay Ghunda Tax to them. He appeared (as) his own witness on oath under Section 340(2) Cr.P.C. and subjected himself to lengthy cross-examination by the prosecution. He stated that on the day and time of occurrence he and his father were present in their house busy taking meals when a child walked in and informed his father that he is wanted outside whereupon his father went out while he continued taking his meal. When he came out in bazzar he found a crowd and noticed that Bashir Ahmad, Sher Ahmad (deceased) and Muhammad Idrees PWs had thrown his father on the ground and had taken of his clothes. He tried to cover his father with aromal on which Sher Ahmad deceased inflicted soli blow to him which hit him on his knee. They were sh-mting people not to intervene otherwise they will face dire consequences. According to him, Bashir Ahmad PW took out a pistol from his dubb and wanted to fire at him whereupon he gave a fist blow on his hand due to which the pistol r ell down on the ground from his hand and that he picked up the pistol. However, he did not specifically admit having fired at the complainant party. The learned trial Court did consider the plea of self-defence raised by the appellant but declined to give him its benefit on the ground that he failed to produce his father in defence, that he remained absconder from the date of occurrence till 19.6.1983, and that he got himself mediclly examined though, on the following day, but through private sources and not through the police. The learned High Court, however, favourably considered it but only for the reduction of capital punishment. It is admitted in the High Court judgment that the occurrence took place in front of the shop and house of the accused where the complainant party had no apparent business and this circumstance alone convinced the High Court to conclude that the occurrence had not happened in the manner alleged by the prosecution. .It was also mentioned in the impugned judgment that according to the site plan, the complainant party could go through a different route leading to their houses and the selecting of the path in question was to annoy the appellant. It was further conceded that the conduct of Sher Ahmad deceased was not above board because he might have joined hands with the complainant party. The co-accused of the appellant though they were given specific roles as well, were found innocent and acquitted of the charges. The overall reasoning and conclusions of the lower two forums lead to the conclusion that they were not definite about the origin of the incident. There are two versions of the occurrence one alleged by the prosecution and the other advanced by the appellant raising the plea of self-defence. It is by now well established that in a situation like the one in hand, both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gets some support from the admitted facts and circumstances of the case and appeals to common sense, ft was held by this Court in case KlialidJavcd vs Anwar Wan (1987 SCMR 1043) a- follows:-- "In view of the abov. findings of the learned High Court Judges, we may add that it is the prosecution case that the deceased was chased by the three accused and he ultimately, when cornered, used his Danda against Gustasab. The possibility, therefore, cannot be excluded that Ejaz Mehmood deceased who had a Danda with him, used it against Gustasab when he found him near the scene of occurrence and on Gustasab's cries for help, the accused/respondent Anwar Khan came out and fired at the deceased. In such a case Anwar Khan, accused would be entitled to the right of private defence of the person of Gustasab acquitted/accused, and such plea can be gathered from the facts of the case." In the case of Mashal Kiian vs. Vie Stale (P.L.D. 1985 S.C. 25) it was observed by this Court that in a state of panic when the right of self-defence is being exercised, the action on the part of the person cannot be measured in golden scales and that this principle had been reiterated by this Court on numerous occasions. In the case of Muhammad Ramzan vs. Vic State (1988 S.C.M.R. 662) the appellant in the said case was sentenced under Section 304, Part-Il PPC which had been reduced to Section 325 PPC by the High Court, this Court opined that he genuinely felt apprehensive regarding the safety of his person and gave a fist blow to the deceased in that case in self-defence and therefore his conviction even under Section 325 PPC was not justified and extending him benefit of right of private defence acquitted him. In the case in hand the occurrence admittedly took place in front of the house of the accused where the complainant party had no business to be there as held by the High Court in the impugned judgment. This by itself corroborates the version of the appellant that it was they who initiated the occurrence by calling his father from his house. The prosecution had failed to produce any independent witness in support of their version though according to them the occurrence took place in the bazzar where many pedlars and shopkeepers were present at the time I of the occurrence. The prosecution witnesses suppressed material fact of the accused/appellant having received grievous injuries during the course of the said transaction which was proved from the statement of Dr. Mehmood Khan PW-9 coupled with the statement of the appellant on oath that he received his injuries at the hands of the complainant party. The deposition of the appellant on oath that he came out of the house after his father and saw him lying naked on the ground surrounded by the complainant party and crowd, though belated, creates reasonable apprehension in ones mind that the complainant party had come there to disgrace him either for refusing to pay Ghunda Tax as alleged by the appellant or for any other hidden cause. The acquittal of the co-accused negates their presence at the spot and the appellant having seen his father in that stale was obviously to get gravely and suddenly provoked to the extent of losing of self-control. In such a situation and having been attacked by the complainant party as well resulting in grievous hurt to him, he was fully entitled to the benefit of provisions of self-defence entitling him to acquittal. For the reasons stated above, we are convinced that the accused acted in self-defence and the defence of his father. We allow him the said benefit and by accepting the appeal acquit him of the charge. He shall be released forthwith if not required in any other case. (MBC) (Approved for reporting) Appeal accepted

PLJ 1992 SC 500 PLJ 1992 SC 500 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, SALEEM AKHTAR AND WALI muhammad khan, JJ MUHAMMAD NAEEM alias NAEEMA- -Appellant versus THE STATE-Respondent Criminal Appeal No. 207 of 1991, decjded on 18.3.1992 (approved for reporting on 23^5.1992). [On appeal from judgment and order of Lahore Hihg Court , Dated 9.6.1991, passed in Crl. Misc. No. 977/M of 1991.] Un-licensed Arms-- —-Un-licensed Klashnikov-Recovery of-Conviction for-Challenge to- Contention that Ordinance amending Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975 had lapsed and was not in force on date of recovery of Klashnikov from appellant, therefore, Special Court had no jurisdiction to try case—Amending Ordinance was promulgated on 7.11.1988 and same having not been placed before Assembly, stood repealed on 6.3.1989-However, vide Ordinance X of 1989, promulgated on 3.9.1989, lapsed Ordinance was re-promulgated but this Ordinance also lapsed on 2.1.1990 but was followed by Ordinance I of 1990 before expiry of which, Act V of 1990 was passed on 16.2;1990 whereby amendment to Schedule was made permanent part of Schedule retrospectively from 7.11.1988-Held: There cannot be slightest doubt that Special Court had now jurisdiction to try offence with which appellant was charged-Sentence reduced. [Pp.502&503]A,B,C&D Mr. Ghiilam Mahmood Qitreslii, Advocate, Supreme Court, and Mr. Mahmood A. Qitreslii, AOR for Appellant. Mr. M. Nawaz Abbasi, Asstt. A.G. Punjab for State. Date of hearing: 18.3.1992. judgment Wali Muhammad Khan, J.--The appellant, through leave of the Court, has called in question the order of the Lahore High Court dated 9.6.1991. whereby his appeal gainst his conviction and sentence by the Judge Special Court (Suppression of Terrorist Activities, Gujranwala Division, Gujranwala ), was dismissed. Leave granting order is to the following effect:-- "After hearing the learned counsel, we consider it fit and proper to examine the case of the petitioner on merits on re-appraisal of the evidence so as to see whether the conviction is justified on merits or not." The allegation against the accused/appellant is that he led the police to his residential house wherefrom Klashinkov Ex.P.l was recovered on 19.5.1989 at about 8.30 p.m. for which he could not produce any license. Challan against him was put in the Special Court which framed charge sheet against him to which he did not plead guilty and claimed trial. The appellant put in appearance before the learned trial Court on 13.5.1990 but thereafter absented himself and did not appear in spite of warrants of arrest issued against him and proclamation under Section 87 Cr.P.C. duly published in three daily newspapers. On his failure to attend the proceedings a counsel to defend him was appointed and he was tried in absentia. On the appraisal of the evidence produced by the prosecution, the learned Special Court, vide its order dated 22.8.1990, found him guilty for possessing an unlicensed KJashinkov Ex. P.I and by convicting him under Section 13/20 of the Arms Ordinance, sentenced him to five years R.I. and a fine of Rs. 10.000/- or in default further one year R.I. The Klashinkov Ex.P.l was confiscated to the Slate. The appellant after arrest filed appeal before the Lahore High Court alongwith an application lor condonation of delay. However, the learned High Court was not satisfied with the explanation offered for the belated submission of appeal and by dismissing the application for condonation of delay, dismissed the appeal vide order dated 9.6.1991. Hence the instant appeal through leave of the Court. We have heard Mr. Ghulam Mahmood Qureshi, Advocate, for the appellant, Mr. M. Nawaz Abbasi, Assistant Advocate-General, Punjab , for the State, and have perused the record of the case. The learned counsel for the appellant, as usual, submitted that the recovery was not witnessed by independent witnesses of the locality and that provisions of Section 103 Cr.P.C. had not been complied with. He also submitted that the occurrence took place on 19.5.1989 on which date Ordinance XX of 1988 promulgated on 7.11.1988 whereby the schedule appended to the Suppression of Terrorist Activities (Special Courts) Act, 1975 had been amended to include "a light or heavy automatic or semi-automatic weapon such as Klashinkov, a G-III rifle or any other type of assault rifle" had lapsed under Article 89 of the Constitution on account of its having not been placed before the Parliament and in consequence emphasised that the Special Court trying the appellant had no jurisdiction and the impugned order is thus unsustainable. The learned counsel for the State, on the other hand, submitted that the official witnesses produced in the case had no personal grudge against the appellant so as to implicate him falsely in the present case and that in the peculiar circumstances of the case in hand the provisions of Section 103 Cr.P.C. were not attracted. He cited Ordinance X of 1989, Ordinance I of 1990 and Act V of 1990, and submitted that the Special Court constituted under the Suppression of Terrorist Activities had the jurisdiction in the matter and the impugned order passed by it did not suffer from anyjurisdictional error. We have considered the arguments of the learned counsel for the parties. It is now well settled that police officials are as good witnesses as any other citizen and unless any mala fide is established against them, their deposition cannot be brushed aside simply on the bald allegation that they belong to the police department responsible for maintaining law and order. The main thrust of the arguments of the learned counsel for the State was that the provisions of Section 103 Cr.P.C. were not attracted because the recovery was made during the course of investigation of a criminal case which led to the recovery of Klashinkov Ex.P.l. To properly appreciate the plea of jurisdiction raised by the learned counsel for the appellant, it would be advisable to reproduce the relevant law conferring jurisdiction on the Special Court . The Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter to be referred as 'the Act') was promulgated on 1st February, 1975, whereby Special Courts were constituted for the trial of offences enumerated in the schedule appended to it. The sub-clause (c) of the schedule is relevant for the decision of the conlrovcry in issue and the original text of which is quoted bclow:- "(c) any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Anns Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely, Sections 8, 9 and 10, if committed in respect of a cannon, grenade,, bomb or rocket." Through amending Ordinance XX of 1988 the words "or a light or heavy automatic or semi-automatic weapon such as Klashinkov, a G-11I rifle or any other type of assault ride" were added to clause (c) after the word 'rocket'. This amending Ordinance was promulgated on 7.11.1988 and had to be placed before the Parliament within four months under Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973 and since it was not placed before the legislature the same stood repealed on 6.3.1989 whereafter the Special Court ceased to have jurisdiction as a Special Court to try offences under the Arms Ordinance regarding the possession of Klashinkov etc. as per the amendment made through the afore-mentioned amending Ordinance. However, vide Ordinance X of 1989 promulgated on 3.9.1989 the lapsed Ordinance was re-promulgated and according to section 4 thereof again "rocket, or a light or heavy automatic or semi-automatic weapon such as Klashinkov or any other type of assault rilfe" was substituted with a further specific addition that the same shall be deemed to have been so substituted on 7.11.1988. This Ordinance was also not placed before the Assembly and resultantly lapsed on 2.1.1990. This was followed by another amending Ordinance (Ordinance I of 1990) dated 17.3.1990 through which the wording of earlier lapsed Ordinance was incorporated in the schedule of Terrorist Act ibid. However, before the expiry of four months Act V of 1990 was passed on 16.2.1990 whereby the earlier addition through amendment was made permanent part of the schedule appended to the Terrorist Act ibid and the amendment was deemed to be substituted on the second day of November, 1988. The above resume of amendments made in the Act of 1975 makes it abundantly clear that the Special Court was invested with the powers to try offences under the Arms Ordinance in respect of Klashinkov with effect from 7.11.1988. No doubt, on the date of recovery of Klashinkov Ex.P.l from the possession of the accused/appellant the amending Ordinance had lapsed but through the subsequent amending Ordinance the lapsed provisions were reintroduced with effect from 7.11.1988 and through the last Act with effect from 2.11.1988. Needless to emphasise that the Act ibid is a procedural law and legally operate (?) restrospectively but in view of the clear provision contained in the subsequent amending Ordinances and the Act V of 1990 whereby the amendments were deemed to be restrospective, there cnnot be the slightest doubt that the Special Court had now jurisdiction to try the offence with which the accused/appellant was charged and its order convicting him is prefectly within jurisdiction. The accused/appellant was tried under Section 13 read with Section 20 of the West Pakistan Arms Ordinance, 1965. Section 13 provides punishment for the possession of unlicensed arms while Section 20 empowers the Court to confiscate recovered arms and ammunition. In view of the peculiar circumstances of the case, we are inclined to reduce the sentence of imprisonment from 5 years to 3 years. The sentence of fine imposed upon the accused/appellant is set aside. (MBC) (Approved for reporting) Sentence reduced.

PLJ 1992 SC 503 PLJ 1992 SC 503 [Appellate Jurisdiction] Present: MUHAMMAD Al ; /AL ZULLAH CM, ABDLI. QADEER CllAUDHRY AND wai.i muhammad khan, JJ Mian NASEEB JAN and another-Appellants versus MOAMBAR and 3 others-Respondents Civil Appeal No.75-P of 1990, accepted on 16.2.1992 (approved for reporting on 24.5.1992). [On appeal from judgment dated 21.3.1989, of Peshawar High Court, in W.P. No.203 of 1986.] Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (II of 1975)-- —-Ss.10 & 11 read with Civil Procedure Code, 1908, Section HP- Commissioner-Powers of--Whether Commissioner has only those powers which are exercised by Deputy Commissioner-Question of--It was wrongly assumed in impugned judgment that by joint reading of Regulation and C.P.C,, Commissioner had only those powers which were exercisable by Court of Deputy Commissioner under Regulation-Section 107(2) of C.P.C. does not limit powers of an appeal Court to only those exercisable by trial Court—Held: Commissioner will have power to do what Deputy Commissioner could do under all of provisions of Section 107 C.P.C. in addition to general and particular powers of appeal conferred by Section 11 of Regulation-Appeal accepted. [Pp.509&510]A,B,C,&D PLD 1990 Peshawar 1,1991 SCMR 1893 and 1991 SCMR 1294 re/ Mr. Abdul Samad Klian, AOR for Appellants. • Mr. Abdul Aziz Kundi, Advocate, Supreme Court, and Mr. Abdul Hamid Qureshi, AOR (absent) for Respondent No.l. Nemo for other Respondents. Date of hearing: 16.2.1992. judgment Muhammad At'zal Zullah, CJ.-This appeal through leave of the Court raises a legal question regarding the acceptance or otherwise of an appeal on facts/merits by a Commissioner under Section 11 of PATA Regulation II of 1975. The order for grant of leave to appeal reads as follows:- "Leave to appeal has been sought by the petititioners against the judgment of the Peshawar High Court dated 21.3.19^9; whereby, writ petition filed by the respondent No.l against the order of the respondents No.2 and 3 was accepted. "The plaintiffs/petitioners filed a suit against Moamber respondent No.l before the Court of Addl. Deputy Commissioner Swat respondent No.4, exercising the powers of Deputy Commissioner under the PATA Civil Procedure (Special Provisions)Regulation, 1975, for possession of a house and recovery of ornaments, arms etc., left by Sahibzada Gul Nabi, their predecessor. The learned Addl. Deputy Commissioner referred the case to a Jirga appointed under Section 5 of PATA Regulation, consisting of Tchsildar revenue as its Chairman and 4 others Members of the Jirga, with the consent of the parties vide his order dated 25.3.78.The learned Addl. Deputy Commissioner on the award of the Chairman and majority of the Jirga Members rejected the suit of the plaintiffs/petitioners. Their appeal before the Addl. Commissioner was" accepted and who vide his order dated 20.8.1984 decreed the suit of the plaintiff/petitioners. Revision petition of the defendant/respondent No.l.before the Addl. Secretary Home, Govt. of NWFP was dismissed on 21.4.86 and his subsequent writ petition before the High Court was allowed vide impugned judgment dated 21.3.1989 and the case was remanded to the Addl. Commissioner with direction to decide the appeal afresh after determining whether there was any illegality or procedural defect ift the proceedings before the Jirga (and not on merit of the case). "After hearing the learned counsel in support of this petition we have come to the conclusion that the question involved in this petition is that of interpretation of sub-section (2) of Section 11 of PATA Regulation II, 1975 which clearly provides that the Commissioner on appeal can confirm, modify, alter or set aside any decision, order or decree of the lower forum after giving notice to the other party. In our opinion this point needs thorough examination of this Court". (Underlining is ours). Learned counsel for the appellants has referred to a recent full Bench decision of the Peshawar High Court; namely, Ghulam Jaafar Vs. Mst.Zaibun Nisa and 5 others (PLD 1990 Peshawar 1). It needs to be stated that in various judgments noticed in the full Bench case the learned Judges of the Peshawar High Court had diferred with each other jeji the question; whether, the Commissioner would exercise no more than the 'power which is conferred on the Deputy Commissioner under Section 10. In other words there are judgments both in support as also against the proposition advanced by the learned counsel for the appellants. In this case, Sections 10,11 and 12 of the Regulation read as follows:- Section 10 Action upon the report of the Tribunal. (1) The finding of the Tribunal on a matter or issue referred to it under Section 4 shall be given in accordance with law, or the custom or usage having the force of law, and shall be submitted to the Deputy Commissioner in the form of a report containing reasons for such finding. (2) Upon receipt of a report of the Tribunal, the Deputy Commissioner may, if the report does not give a finding on any matter or issue referred to the Tribunal or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the matter or issue to the Tribunal or refer the matter or issue to a second Tribunal constituted in accordance with Section 5. (3) Where the finding of the Tribunal on the matter or issue referred to it is unanimous or by a majority of its members and the Deputy Commissioner does not proceed under sub-section (2), he shall decide the dispute and pass a decree in accordance with such finding. Section 11. Appeal.-(l) Any party aggrieved by any decision given, decree passed or order made, by the Deputy Commissioner under Regulation may, within sixty days of such decision, decree or order, prefer an appeal to the Commissioner. Explanation.- The provisions of Section 5 and Section 12 of the Limitation Act, 1908 (Act IX of 1908), shall apply to an appeal made under this Regulation. (2) The Commissioner shall not confirm, modify, alter or set aside any decision, decree or order appealed against, except after giving the parties an opportunity of being heard. (3) The Commissioner may, in deciding an appeal under sub-section (1), exercise all or any of the powers, conferred on an appellate Court by the Code of Civil Procedure, 1908 (Act V of 1908). (4) Subject to the provisions of this Regulation, the decision of the Commissioner on an appeal under this section shall be final. Section 12. Revision.-() Government may, within ninety days of any order passed by the Commissioner on an appeal, either of its own motion or on the application of any party to a dispute, call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, decree or order given, passed or made under this Regulation, or as to the regularity of any proceedings thereunder and may, when calling for such record, direct that the execution of the decree or order in question be suspended pending the examination of the record: Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Commissioner unless it is of 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. (2) Government may, after examining any record called for under sub­ section (1) and giving the parties an opportunity of being heard, pass such orders as it may think fit." There are atleast three provisions in these three sections which highlight peculiar aspects of the jurisdiction exercised at each one of the three stages; namely, the trial, the appeal and the revision. Sub-section (3) of Section 10 binds the Deputy Commissioner that unless he acts under sub-section (2), while deciding the dispute he shall have to pass a decree in accordance with the findings of the Tribunal. Thus although this question is not directly before us it seems that the Deputy Commissioner is bound by the findings of the Tribunal. Instead of repeating similar provision in Section 11 the legislature thought it fit to include therein provisions which are to the contrary effect. One, that subject to the provisions of the Regulation including those relating to revision the decision of the Commissioner on an appeal under Section 11 shall be final. Sub-section (2) contains not only pith and substance of the general appeal power including that of reversal of a decree or order, it emphasizes also the wider aspect of Section 11 by imposing only one condition on the appellate power of the Commissioner. It is that he shall pot confirm, modify, alter or set aside the decision, decree or order as the case may be without affording an opportunity of hearing to the parties. In sub­ section (1) also this wideness of the ordinary power of an appellate forum is preserved by the use of the word "appeal" without any conditions or limitations. It will have to be read and interpreted in an ordinary sense, so as to convey the connotation of appeal; namely, that the appellate forum can modify, set aside, confirm or alter the decision, decree or order under appeal. But as noted above the significent omission of a provision like sub-section (3) of Section 10 in the peculiar set of these three provisions makes it amply clear that the appellate forum has the normal powers of appeal having the scope to confirm, modify, alter or set aside any decree, decision or order. When coming to Section 12 the limitation like sub-section (3) of Section 10 is again introduced in the proviso to sub-section (1) of Section 12 but in different way. If Section 10(3) binds the Deputy Commissioner by the findings of fact rendered by the Tribunal (whether affirmative or negative) the revisional authority is bound conditionally by such findings only if they are accepted also by the Commissioner. This also supports the view that the Commissioner has option either to accept the findings of fact by the Tribunal or not to accept them. The revisional authority is as above, bound by the Commissioner's affirmation on facts, not otherwise. Therefore, if the Commissioner sets aside the findings of fact contained in a decree or decision, the higher forum; that is, the revisional authority will be competent to interfere on facts also. Thus the proviso lays down a conditional bar to the setting aside of concurrent findings of facts - reached by the Tribunal and confirmed by the Commissioner. This view of the combined reading/interpretation of Sections 10,11 and 12, was also adopted by this Court in an order of refusal to grant leave to appeal. See Said Rehman Vs. Mst. Bacha Haram and 3 others (1991 S.C.M'.R. 1294 ). In another case Mirwas Khan Vs. Addl. Secretary (1991 SCMR 1893), this Court declined to interfere with Peshawar rT I<ih Court judgment, wherein the findings of fact by the Commissioner in appeal under Section 11 of the Regulation, were restored in its Writ jurisdiction, by setting aside a revisional order under Section 12. The learned Judges have also relied, in this case, on Section 107 C.P.C. by virtue of the option to do so, allowed by Section 11(3) of the Regulation applicable in this case. They were pleased to note and observe as follows:- "His other contention was that under sub-section (3) of Section 11 of the Regulation the Commissioner could exercise all or any of the powers conferred on the appellate court by the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and that under sub-section (2) of Section 107 of the Code the appellate court has the same powers and can perform as nearly as may be the same duties as are conferred and imposed by the Code on court of original jurisdiction. The learned counsel for the petitioner had actually urged that although under sub­ section (2) of Section 11 of the Regulation the Commissioner could confirm, modify, alter or set aside any decisio'n, decree or order appealed against but under the provisions of sub-section (3) thereof he could exercise as appellate court, only those powers which were exercisable by the court of the Deputy Commissioner under the Regulation". This contention was upheld as follows: - "Since under Section 11 of the Regulation the Commissioner can exercise the same powers as are conferred on the Deputy Commissioner, and although under sub-section (2) of Section 11 of the Regulation the former could confirm, modify, alter or set aside any decision, decree or order appealed against yet such power would be subject to the limitation as is envisaged for the Deputy Commissioner under sub-section (3) of Section 10 of the Regulation. In arriving at this conclusion we keep in mind that the Regulation is a special law made for special areas where special conditions exist and the unanimous or majority finding of the Jirga has been given due protection in sub-section (3) of Section 10 of the Regulation and that protection shall equally apply in the case of appeal filed before the Commissioner under Section 11 of the Regulation. "We, therefore, find ourselves in agreement with the contention of the learned counsel for the petitioner and the learned Advocate- General and hold that the power of the Commissioner to decide an appeal filed under Section 11 of the Regulation will be subject to the condition as laid down in sub-section (3) of Section 10 of the Regulation. The Commissioner shall not have the power to discard the unanimous or majority finding of the Jirga when deciding an appeal unless he is of the opinion that there is any defect in the proceedings as laid down in sub­ section (2). of Section 10 of the Regulation in which case he may remand the matte or issue to the Deputy Commissioner directing him to adopt any course of action laid down in sub-section (2) of Section 10 of the Regulation when any such remand order is made". To the similar effect is the reasoning in the Full Bench decision noticed earlier. With respect to the learned counsel who argued this case in the High Court, while explaining the induction of Section 107 C.P.C. by virtue of Section 11(3) of the Regulation, he wrongly thought or at least it was so assumed in the impugned judgment, that by this joint reading of the Regulation land C.P.C. the Commissioner had "only those powers which were exercisable by the Court of the Deputy Commissioner under the Regulation". Section 107 C.P.C. reads as follows:-- "107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— "(a) to determine a case finally; "(ft) to remand a case; "(c) to frame issues and refer them for trial; "(d) to take additional evidence or to require such evidence to be taken. "(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdiction in respect of suits instituted therein'. Sub-Section (2) of Section 107 does not limit the powers of an appeal Court to only those which are exercisable by the trial Court. They are rather in addition to powers and duties of an appeal Court. They may or may not be exercised. One or more other options might be found enough, depending upon case to case. Not only this, Section 107(2) C.P.C. refers to those powers and duties which »re conferred and imposed by the C.P.C. on the trial Courts, regarding suits instituted therein. When the Commissioner by virtue of Section 11(3) of the Regulation would choose to exercise the powers under Section 107(2) C.P.C. they will not be confined only to what the Deputy Commissioner can exercise under Section 10(2) or (3) of the Regulation. Though these provisions have no direct relevance to the powers and duties of the trial Courts under the C.P.C.; the Commissioner will nevertheless have the power to do what the Deputy Commissioner could do under all of the provisions of Section 107 C.P.C.; in addition to general and particular powers of appeal conferred by Section 11 of the Regulation. Another general feature of the special law in this case, as has been relied upon in the impugned judgment, relates to the area and the people, it is made applicable to. The reference undoubtedly is relevant but to the extent it is permissible by the language of the law and the essential intention underlying the same. Overstretching the same, from case to case, may become counter productive for the very special purposes the law was enacted. One of them being that the area and people may gradually be afforded similar protective legal covers as are available in other areas of Pakistan . As for example, in the field of political and administrative rights and privileges apart, even in a cognate field of ordinary criminal law and procedures, the legislature, with the obvious purpose as aforesaid, enacted a parallel provision to Section 10 herein; namely, Section 11 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation No.I of 1975; on the same day as Civil Procedure Regulation, involved herein. Thereunder even the Deputy Commissioner was, clearly given, similar powers which as held already, are exercisable by Commissioner (the appellate forum) in this matter. Thus the wisdom of the legislature, when followed and respected, the same shall be the conclusion. In the light of the foregoing discussion, with respect, we do not agree with those judgments of the High Court, which as in the impugned judgment, confined the powers of the appeal forum to those under Section 10 only. On the other hand we are of the view that they, as discussed above, are much wider both as regards the facts and the law. Consequently, this appeal is allowed. The impugned judgment is set aside and the case is remanded to the High Court for decision/disposal of Writ Petition on points of facts and merits, if any, other than those dealt herein. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1992 SC 510 PLJ 1992 SC 510 [Appellate Jurisdiction] Present: shafiur rahman, rustam S. sidhwa and wali muhammad khan, JJ SAIFUL MALOOK-Appellant versus THE STATE-Respondent Criminal Appeal No.30-P of 1990 (also Crl. Petitions Nos.51-P and 53-P of 1990) decided on 20.5.1992 (approved for reporting on 24.5.1992). [On appeal from judgment/order dated 14.5.1990, of Peshawar High Court, D.I.Khan Bench, passed in Crl. Appeal No.3/D of 1989 and Crl. R.No.3 of 1989.] Criminal Trial- —Murder-Offence of~Conviction for~Challenge to-Presence of complainant and Guldar Ali PW at time of occurrence is natural—I.O. recovered two card boards of .12 bore gun from spot--Very fact that accused were shown to be armed with gun and .12 bore pistol in F.I.R. by complainant, establishes his presence at spot as his version was corroborated from recovery of two card boards and extraction of pellets from dead body »l deceased-There was a strong motive for murder of deceased—Abscondence of accused was an additional strong piece of corroboration of evidence-Held: There is no reason to differ with trial Court and appellate Court so far as conviction under Section 302 PPC is concerned-Held further: Trial Court rightly observed that two persons (father and son) have been charged but only one shot having hit deceased, death penalty was not called for-Death sentence altered to life imprisonment. [Pp.513&514]A,B&C Mr. S. Aklitar Munir, Advocate, Supreme Court, and Mr. Jan Muhammad KJiaii, AOR for Appellant (in Cr.A. No.30-P of 1990 and for Petitioner in Cr.P.No.51-P of 1990). Mian Shakirullah Jan, AOR for Petitioner (in Cr.P. No.53-P of 1990). Mr. M. Azam KJian, Addl. A.G., NWFP for State. Date of hearing: 29.3.1992. judgment Wali Muhammad Khan, J.-Saiful Malook and his son Rasta Baz Khan convict/appellant/petitioner have, through Criminal Appeal No.30-P/90 and Criminal Petition for Leave to Appeal No.51-P/90, called in question the judgment dated 14.5.1990 passed by the Peshawar High Court (Circuit Bench DJ.Khan), whereby their appeal against their conviction passed by the Additional Sessions Judge, Bannu vide order dated 30.1.1989, was dismissed and on the acceptance of Revision Petition filed by the complainant Israr Ali PW-4 the sentence of life imprisonment imposed upon Saiful Malook appellant was converted into death sentence. Israr Ali complainant PW-4 has filed Criminal Petition for Leave to Appeal No.53-P/90 whereby leave has been sought for enhancement of sentence imposed upon accused/petitioner Rasta Baz Khan. This single judgment will dispose of appeal and both the petitions together. The facts of the case, in nutshell, are that on 25.7.1985 at 2100 hours the complainant Israr Ali PW-4 alongwith his father Guldar Ali PW (since dead) and his brother Nazar Ali deceased, after offering their Khuftan prayers in the nearby mosque were sitting in the Chouk (open space) and were talking to each other, when Saiful Malook appellant duly armed with a topak and his son Rasta Baz Khan petitioner armed with a 12 bore pistol came there and the former fired at the deceased as a result of which he was hit and fell down on the ground followed by Rasta Baz Khan petitioner firing a shot with his pistol at the deceased but the PWs could not be certain whether it proved effective or not and thereafter both the accused decamped. The deceased, then injured, was taken to the District HO Hospital, Bannu while the complainant went to the police station to lodge a report. The scene of occurrence had sufficient light on account of the electric bulb fixed on the nearby wall. Asghar Ali SHO who was present in the police station registered the case at the instance of Israr Ali complainant and thereafter went to the spot for investigation of the case. Before the arrival of the complainant he had come to know that the occurrrence had taken place and the injured had been removed to the hospital, therefore he had already deputed Jan Muhammad ASI for doing the needful at the hospital, who on reaching the hospital prepared the injury sheet Ex.PC and inquest report Ex.PD of the deceased. On the arrival of the SHO on the spot, Jan Muhammad also joined him in the investigation and in his presence electric bulb of 100 Watt fixed in the veranda of the mosque and another bulb of 200-W fixed on the back side of the house of complainant were lit which were taken into possession vide memo Ex.PE, witnessed by Jan Muhammad ASI. Two card boards Ex.P3 were also recovered from the spot vide recovery memo PF in the presence of the said witness. Both the accused were not available in their houses and warrants of arrest under Section 204 Cr.P.C. Ex.PJ/1 and PJ1/1 and proclamations Ex.PJl/2 and PJ1/3 were issued against them and served through Taj Ali PW-2 and in spite whereof when the accused/appellant/petitioner did not surrender to face trial, proceedings under Section 512 Cr.P.C. were initiated against them in which the statement of Guldar Ali PW was recorded and on account of his natural death before the commencement of the trial, the same was relied upon by the trial Court in support of the prosecution. The accused/appellant Saiful Malook was arrested on 9.6.1987 and Rasta Baz Khan accused/petitioner on 4.9.1986. After their arrest and necessary investigation in the case challan against them was submitted in the Court of Ilaqa Magistrate who, in his turn, sent them up for trial before the Court of Sessions. The learned Additional Sessions Judge framed necessary charge sheet against them, recorded the prosecution evidence in the case, recorded the statement of the accused under Section 342 Cr.P.C. and on the appraisal thereof found both the accused/appellant/petitioner guilty for the murder of Nazar Ali deceased in furtherance of their common intention and by convicting them under Section 302/34 PPC sentenced both of them to life imprisonment and fine of Rs.10,000/- or in default further 3 years R.I. each. The fine, on recovery, was to be paid to the heirs of the deceased. The appeal filed by them and the revision filed by the complainant Israr Ali were disposed of through the impugned order. We have heard Mr. S. Akhtar Munir, Advocate, for the appellant and petitioner; Mian Shakirullah Jan, Advocate-on-Record, for the complainant; Mr. M. Azam Khan, Additional Advocate-General, NWFP, for the State; and have perused the: record of the case. The learned counsel for the appellant/petitioner argued with vehemence that the occurrence took place at Khuftan time when the identification of the appellant/petitioner was not possible; that there was enmity between the parties and the witnesses being interested could not be relied upon in the absence of any strong independent corroboration; that the recovery of bulbs from the spot is doubtful as no independent witness of the locality has been produced in support of the same; that no blood was found at the spot which creates doubts about the venue of occurrence; that the medical evidence did not support the prosecution case inasmuch as the doctor found charring marks on the person of the deceased whereas the distances of the deceased and the assailants shown in the site plan at the time of firing are beyond charring range; and finally, that the injuries on the person of the deceased are the result of only one shot fired from a gun and there being no corroboration of recovery of more card boards, bullets etc from the spot, the participation of one of the accused is not free from doubt. The learned counsel for the complainant arid the Additional Advocate- General, on the other hand, controverted these submissions and submitted that the parties are related to each other; that the accused/appellant/petitioner are directly charged in the F.I.R. which was lodged without any loss of time; that the recovery of card boards from the spot and the two bulbs still lit on the places wherefrom they were taken into possession by I.O. immediately on his arrival on the spot are sufficient corroboration of the eye-witness account and finally, the absconsion of the accused for sufficient long time go a long way to point to the guilt of the accused. The venue of occurrence is close to the house of the complainant and is also near the house of the accused and mosque. It was the month of July and it is customary in villages that people after offering their Khuftan prayers sit in the open spaces, commonly known as 'hujras' during the summer, therefore, the presence of Israr Ali complainant and Guldar Ali PW at the time of occurrence is natural. The I.O. found bulbs of 100-W Ex.Pl lit on the verandah of mosque and 200-W on the back side of the house of the complainant Ex.P2 when he visited the spot soon after the occurrence. He recovered two card boards of 12 bore gun from the spot on the following morning. The doctor extracted 5 pellets from the body of the deceased and sent them through Barkatullah FC in a sealed phial Ex.P5 which were produced to the I.O. and taken into possession. The very fact that the two accused were shown to be armed with gun and 12 bore pistol in the F.I.R. by Israr Ali PW establishes his presence at the spot as his version was corroborated from the recovery of two card boards from the spot and the extraction of pellets from the dead body of the deceased by Dr. Abdur Rashid Khan PW-6. The strong motive for the accused/appellant/petitioner to do away with the life of the deceased is that a case under Section 307 PPC was pending trial between the parties in which Guldar Ali PW (since dead), Nazar A1J deceased and Zafar Ali brother of the deceased were charged for causing injuries to Saiful Malook appellant and one Sher Zaman. Besides, the abscondance of the accused for sufficient long time was an additional strong piece of corroboration of evidence. Taking all the circumstances into consideration the learned trial Court as well the appellate Court held the accused/appellant/petitioner guilty for the murder of the deceased and there is no reason to differ with them so far as the conviction of the appellant and.petitioner under Section 302 PPC is concerned. As regards the sentence, the trial Court awarded life imprisonment to both the accused on the ground that there was only one fire shot injury on the person of the deceased whereas two persons were charged. Hence the capital punishment of death was not called for and a lenient view was taken. The learned High Court, on the other hand, enhanced the punishment of Saiful Malook appellant from life imprisonment to death mainly on the ground that the shot of Saiful Malook had hit the deceased while about the shot fired by Rasta Baz Khan the witnesses were not sure whether it had proved effective or not. Both the accused have been attributed the role of firing at the deceased and both of them were alleged to be in possession of fire-arms from which only cartridges containing pellets can be fired. Israr All PW is positive that the shot fired by Saiful Malook proved effective but, strangely enough, he has not been able to notice whether the shot fired by Rasta Baz Khan petitioner hit the deceased or not, though both of them are alleged to have fired in his presence and, more or less, from the same distance. In his statement in Court he deposed that Rasta Baz Khan petitioner fired at the deceased when he was lying on the ground and in such a situation the possibility that the shot may have proved effective particularly in the presence of charring marks on the person of the deceased cannot be ruled out. We are, therefore, inclined to subscribe to the view of the trial Court that two persons (father and son) have been charged but only one shot having hit the deceased the death penally was not called for. We therefore, partially accept Appeal No.30-P/90 filed by Saiful Malook and alter his sentence from death to life imprisonment and maintain the other sentences imposed upon him. We do not find any substance in the Criminal Petition No.51-P/90 filed by Rasta Baz Khan against his conviction and sentence and Criminal Petition No.53-P/90 filed by Israr AH complainant for enhancement of sentence of Rasta Baz Khan and dismiss both the petitions. (MBC) (Approved for reporting) Sentence altered.

PLJ 1992 SC 514 PLJ 1992 SC 514 [Appellate Jurisdiction] : .MUHAMMAD AFZAL ZULLAH, CJ, Dr. NASIM HASAN SHAH, SHAFIUR rahman, saad saood jan, naimuddin, abdul shakurul salam, abdul qadeer chaudhry, Kliawaja AHMAD TARIQ RAHIM-Petititioner versus FEDERATION OF PAKISTAN , and another-Respondents Civil Petiliton No. 628 of 1990, dismissed on 4.11.1991 (approved for reporting on 6.8.1992). [On appeal from judgment of Lahore High Court, dated 14.10.1990, passed in W.P. Nos. 6228, 6257 and 5849 of 1991, and 351 and 379 ( Peshawar ) of 1990 (reported as PLJ 1991 Lahore 1(FB).] (i) Alternate Remedy- —National Assembly-Dissolution of--Challenge to--Whether any alternative remedy was available to President before dissolving Assembly-Question of~ All alternative constitutional powers are exercisable by President only on advice of Prime Minister and not in his discretion-Held: There are no alternate remedies available to President but these alternate remedies are available to Prime Minister (Majority view). [Pp.528&529]A (ii) Constitution of Pakistan , 1973- —Art.. 58(2).(b) read with Article 91(8)-National Assembly-Dissolution of~ Challenge to-Although under amended Article 91(8), any person can be appointed as a Prime Minister when Assembly stands dissolved, but to appoint Leader of Opposition as a Prime Minister in circumstances would show that whole Assembly was not at .fault, so entire body could not be dissolved-Held: For dis-satisfaction with Leader of House, to dissolve whole House and to appoint Leader of Opposition as Prime Minister, will not inspire impartiality, pre-requisite of high office of President—Held further: Adivce being taken not from constitutional authority, i.e. Prime Minister, but from authorities or persons not authorised by constitution to tender advice, or President acting on his own, he fell in error in exercising power of dissolution of National Assembly which did not vest in him nor was available in circumstances. (Per A.S. Salam, J). [Pp.547&548]O,P&Q (iii) Constitution of Pakistan , 1973- —- Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-A President vested with powers to govern, unless made a dictator, cannot run affairs of State even with ultimate threat of dissolving National Assembly—If same Assembly is re-elected with a bang, it would be enrbaTassing for President and if Assembly takes into its head to impeach him, it would be aweful situation- This risk could only be taken by late President who was also Chief of Army Stall and could re-impose Martial Law-This is not possible for a civilian President-Held: Power under Article 58(2)(b) pertained to late President and it need not be stretched any further to make confusion worse confounded-­ Held further: Historical perspective, vicissitude of constitutional developments and Constitution do not permit President to dissolve Nalional Assembly. (Per. A.S. Salam, J). [Pp.544&545]K (iv) Constitution of Pakistan , 1973-- —-Art. 58(2)(b) read with Article 2-A-National Assembly-Dissolution of- Challenge to-Article 2-A clearly lays down that power and authority shall be exercised through chosen representatives, not through an individual however high, may be President—President is not chosen by people—He is elected by members of Assemblies-In amended form, provision of Aritcle 58(2)(b) is that "in exercise of his functions, President shall act in accordance with advice of Cabinet or Prime Minister"-While interpreting Article 58(2)(b), factual background is not to be lost sight of~General Ziaul Haq wanted to become President, to retain base of his power, i.e. command of Army, and also authority to dissolve National Assembly according to his discretion which was granted to him through amendment of Constitution—Held: These powers were personal for (late) President and perished with his sad demise. (Per A.S. Salam,J). [Pp.542,543&544]G,H&J (v) Constitution of Paksitan, 1973- —Art. 58 (2)(b)-National Assembly-Dissolution of-Challenge to- Constitution is to be obeyed-Same National Assembly and Provincial Assemblies were good when, not long ago, they elected President but how they beocrae bad so soon?~Creature condemning creator does not sound well-­ Held: Notwithstanding dissatisfaction of President with functioning of Prime Minister or Parliament, reasons for dissolving National Assembly were not good enough under Constitution and principles previously laid down by Supreme Court-Held further No order unseating re-elected members and restoring dissolved Assembly can be passed. (Per A.S. Salam, J). [P.549]R&S (vi) Constitution of Pakistan , 1973-- -—Art. 58{2)(b)-National Assembly-Dissolution of-Challenge to-Contention that horse trading, corruption, nepotism and not summoning of Council of Common Interests or Finance Commission, all have been taking place in past and even after dissolution of National Assembly, hence these factors could not be made grounds for impugned action-Held: Such an argument may be attractive to gallery but it cannot prevail because once evil is identified, remedial and corrective measures within Constitutional framework must follow. (Majority view). [P.531JD (vii) Constitution of Paksitan, 1973- —Art. 58(2)(b)~National Assembly-Dissolution of-Challenge to-Contention that National Assembly being directly elected by people of Pakistan, should not be at mercy of an indirectly elected constitutional functionary howsoever high-Held: This argument may be theoretically sound and plausible, but express words of Constitution make provision for it. (Majority view). (Pp.529&53l]B&C introduction to the Study of Law of Constitution (12th Edition) at page 433, byA.V. Dicey, and "Tlie Prime Minister of India , Powers and Functions'', at pages 48 to 50, by Dr. (Mrs.) Sarla Malik, ref. (viii) Constitution of Paksitan, 1973- —-Art. 58(2)(b)--National Assembly-Dissolution of--Challenge to--Defection of elected members has many vices-An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character-Fact that there had been defections and defectors were quite often rewarded with posts and prizes, has not been seriously disputed-Persistent requests were made by Provinces for making Council of Common Interests and National Finance Commission as functional with a view to sort out disputes over claims and policy matters, but inspite of intercession of President, no heed was paid and thereby existence and sustenance of Federation was jeopardized-Petition dismissed. (Majority view). [Pp.536&537]E&F (ix) Constitution of Pakistan , 1973- —An. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Demeaning status of Senate and Judiciary—Ground of—It is not first time that those at helm of power have demeaned status of Parliament or Superior Judiciary or its members—Institutions they seek to malign, do not fall by their utterances though they suffer in reputation and status—Held: Such actions and remarks do not justify dissolution of legislature. (Per Rustam S. Sidhwa, J). [Pp.573&574]AJ (x) Constitution of Pakistan , 1973- —Art. 58(2)(b)--National Assembly-Dissolution of-Challenge to-Dispute about peoples programme—Ground of—Federal Government felt justified in appropriating funds itself under Item 25 of Concurrent Legislative List while Provinces insisted that they may be permitted to appropriate them keeping in view spirit of Article 97 of Constitution-Aggrieved party could have moved Supreme Court-Held: This matter did not give President a valid basis to dissolve Assembly. (Per Rustam S. Sidhwa, J). [P.574]AK (xi) Constitution of Pakistan , 1973-- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to—Failure to call meetings of Council of Common Interests and National Finance Coimmission-Ground of--Extreme polarisation and political confrontation between both parties, could not totally relieve coalition Government from complying with provisions of Constitution-Held: This matter did constitute proper ground which President could have taken into consideration while forming opinion and it had nexus with breakdown of constitutional machinery. (Per Rustam S. Sidhwa, J). [P P .568&570JAE&AF (xli) Constitution of Pakistan , 1973- —Art. 58(2)(b)--National Assembly-Dissolution of-Challenge, to-Failure to discharge substantive legislative functions-Ground of-Out of fifty Ordinances and Bills presented before National Assembly, only fifteen could be passed by Parliament and almost all, except Finance legislation, were amendment Acts- In view of ingrained polarised atmosphere, there appeared little hope for any change-Held: It was a basic situation leading to breakdown of Constitutional machinery and one having a direct nexus with Article 58(2)(b) of Constitution. (Per Rustam S. Sidhwa, J). [Pp.563&564]W,X&Y (xiii) Constitution of Pakistan , 1973- —Art. 58(2)(b)--National Assembly-Dissolution of--Challenge to--Failure to perform legislative functions-Ground of--AJlegation that Government of Peoples Party was not able to discharge substantial legislative functions except adoptation of finance bill, is vague ii^ nature-It was not shown that any contravention was made of Constitutional provision which requires that a particular minimum number of bills and laws is to be passed within stipulated time by National Assembly which it failed to do-Held: This ground in itself is insufficient to dissolve National Assembly. (Per Sajjad Ali Shah, J). [P.584JAO (xiv) Constitution of Pakistan , 1973-- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Held: Grounds of corruption and- nepotism in Federal Government; misuse for political ends of statutory corporations, authorities and banks; and undermining Civil Services of Pakistan, not only independently but collectively also are not sufficient to justify dissolution of Assemblies. (Per Sajjad Ali Shah, J). [P.589JAP (xv) Constitution of Pakistan , 1973-- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Horse trading, corruption, inducement, nepotism etc.—Ground of—By defection, a member basically violates very spirit of teachings and requirements of Islam and can only be treated as a negation of spirit of Constitution which he is bound to preserve and protect-Horse trading is a highly pernicious, immoral and un-ethical act which must be openly condemned-In view of open confrontation between Coalition Government and Combined Opposition, both attempted to dislodge each other and contributed to defection and horse trading-No Parliamentary, practice permits defection or horse-trading-Held: This ground can reasonably be treated as reflective of serious functional dislocation of a coalition government and would justify opinion formed by President for dissolution of Assembly. (Per Rustam S. Sidhwa, J). [Pp.564,566&567]Z/iA,AB&AC (xvi) Constitution of Pakistan , 1973-- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Horsetrading—Ground of—At time of dissolution order, no action could be taken against members who crossed floor, under law which was in force then-Held: It cannot be made a ground for dissolution of National Assembly-Held further: If horse-trading was not caught within mischief of law before dissolution order was passed- and was considered morally wrong, then judicial notice can be taken to effect that same horse-trading continues now but is being officially ignored. (Per Sajjad Ali Shah, J). [P.584JAN (xviij Constitution of Pakistan, 1973-- —-Art. 58(2)(b)-National Assembly-Dissolution of~Challenge to-If one or more grounds were not well founded, whether order could be struck down as a whole or could be sustained on remaining grounds-Question of~Rule with regard to detention matters cannot be applied to strike down whole order of President on ground that one or more of grounds which were considered by him when forming his opinion, were not well founded or non-existent while remaining grounds, any of which could have been a good reason for dissolution, were not individually or collectively good reasons on which he could have formed his opinion. Held: It would amount to substituting opinion of court for that of President, which cannot be permitted. (Per Rustam S, Sidhwa,J). IP P .562&563]U&V (xviii) Constitution of Pakistan , 1973— —Art. 58.(2)(b)—National Assembly—Dissolution of-Challenge to—Interference in Services—Ground of—Services have over years been subjected to manifold illegal interference by administration itself either acting under legislative will or extra-legal interference from elected representatives, but no breakdown of Constitutional machinery has occurred placing any ruling Government vulnerable to dismissal—Held: Interference with Services cannot be justified and must be unequivocally condemned, but it cannot be permitted to justify dissolution of legislature. (Per Rustam S. SidhwaJ). [P.573JAH (xix) Constitution of Pakistan , 1973- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-In 1988 elections, Pakistan Peoples Party appeared as single largest party and made coalition Government and had its Governments in Sindh and N.W.F. Province- -There was open political confrontation and polarisation and it could not get working support from Combined Opposition-Its ability to legislate became highly impaired and it was not able to allow Council of Common Interests and National Finance Commission to discharge their functions-Both sides continued horse-trading unabated so as to grab each other's members—All these facts clearly showed that partial dislocation of Constitutional machinery had set in and breakdown wasimminentwhich justified President in taking step to call upon electorate to re-elect National Assembly to remove stalemate- Held: Judgment of Lahore High Court is not open to interference—Petititon dismissed. (Per Rustam S. Sidhwa, J). [Pp.574,575&576]AL&AM (xx) Constitution of Pakistan , 1973— -—Art. 58(2)(b)--National Assembly-Dissolution of--Challenge to--IJ.I also indulged in horse-trading or luring away members of National Assembly, but this aspect was ignored-Government of I.J.I. in Punjab created practical difficulties for Federal Government, but this aspect was not considered-After dissolution of National Assembly, Leader of Opposition, who had lost election in Sindh, was appointed as Care-taker Prime Minister-Mr. Nawaz Sharif of I.J.I. was allowed to continue as Care-taker Chief Minister of Punjab, while in Baluchistan, son-in-law of Akbar Bugti and in Sindh Jam Sadiq Ali, a dissident member of PPP were appointed Care-taker Chief Ministers—No references were filed against Ministers or representatives of any other political party except PPP—Held: Impugned order of dissolution inherently suffers from mafaftdes-tteld further: Object behind order of dissolution was not only that Government of that time be toppled but also to tarnish image of PPP in eyes of people so that it should be routed in election and not return to power again. (Per Sajjad Ali Shah, J). [P.590JAQ&AR (xxi) Constitution of Pakistan , 1973- —Art. 58 (2)(b)-National Assembly-Dissolution of-Challenge to- Misappropriation of Secret Service Funds-Ground of-Presidential References have also been filed against certain members of Parliament for misappropriation of Secret Service Funds—Held: This matter did not give President a firm basis to form opinion regarding breakdown of Constitutional machinery. (Per Rustam. S. Sidhwa.J). [P.568JAD (xxii) Constitution of Paksitan, 1973- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-National Assembly can only be dissolved when President and Cabinet acting together, fail to carry on government of federation in accordance with Constitution- President has not said that he had failed to carry on government of federation in accordance with provisions of Constitution—There was no breakdown of Constitution-If there were defaults or defects, violation of law, these were matters to be attended to by President and his Cabinet-Held: President cannot throw bucket, dissolve National Assembly and call Nation in 20 months' time to go back to polls. (Per A.S. Salam, J). [Pp.546&547]M (xxiii) Constitution of Paksitan, 1973- —Art. 58(2)(b) read with Art. 112 (2)(b)-NationaI Assembly-Dissolution of- Challenge to—Non-compliance of general law, failure to hold or call meetings under provisions of general law, misuse of authority or resources of Federation or of Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order, or resultant effects arising from such situations such as climate of uncertainty, sense of insecurity created at different levels of administration, rejection by people of some actions of party in power, creation of some threats to law and order, and weakening of judicial process, would not normally provide, grounds for action under Articles 58(2)(b) or 112 (2)(b) of Constitution. (Per Rustam. S. Sidhwa , J. [Pp.561&562]T (xxiv) Constitution of Pakistan , 1973- —Art. 58(2)(b)--National Assembly-Dissolution of-Challenge to-Order of dissolution passed by President is not sustainable under provisions of Constitution-Held: Verdict of people in elections should have been accepted and government with slight majority which had to function with inherent set­ backs and limitations, should have been allowed to complete its tenure with corrective and remedial measures taken appropriately according to provisions of Constitution and law-Held further Relief of restoration of National Assembly cannot be granted because after dissolution of Assembly, election took place with full participation of political parties including Ms. Benazir Bhutto who is now leader of opposition in present parliamentary set-up-Leave refused. (Per Sajjad Ali Shan, J). [pp.590&591]AS&AT PLJ1989SC170re/. (xxv) Constitution of Pakistan , 1973- —Art. 58(2)(b) read with Article 46 and 48(2)-National Assembly-Dissolution of--Challenge to-Reading two articles together "Government of Federation" is to be carried on by President with aid and advice of Cabinet headed by Prime Minister~If "government of federation" is not being carried on in accordance with Constitution, fault is that of President and Cabinet-If there are differences between President and Cabinet, Constitution provides mechanism for their solution-Held: If all efforts of President fail, he should think that he may be wrong than that all representatives of people are wrong. (Per A.S. Salam.J). [P.546JL (xxvi) Constitution of Pakistan , 1973- —-Art. 58(2)(b)-National Assembly-Dissolution of--Challenge to-Sindh situation—Ground of~It is not case of Federal Government that Army or other para-military forces were utilized on a rigged or partisan basis or that Sindh Government was using its machinery in a partisan manner to let off law breakers belonging to its political partners or clamping down on those belonging to its opponents-Held: Sindh situation did not give any valid basis to President to form an opinion to dissolve National Assembly. (Per Rustam S. Sidhwa, J). (P.572JAG (xxvii) Constitution of Pakistan , 1973- —Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-When National Assembly was dissolved on 6th August, 1990, Provincial Assemblies of two Provinces were dissolved allegedly with approval of President while in other two Provinces, Assemblies were dissolved by Governors on advice of Chisf Minister of respective province—Held: Fact that all Assemblies were simultaneously dissolved, shows that Constitution was being taken as if it provided a unitary form of Government which obviously it did not do 9Per A.S.Salam, J). [P.547JN Raja Muhammad Anwar, Senior Advocate, Supreme Court, S. Iftikliar Gilani and Mr. Sharif Hussain Bokhari, Advocates, instructed by Mr. SalimA. Malik AOR for Petitioner. Mr. Aziz A. Munshtl Attorney General for Paksitan, S. Sharifiiddin Pirzada, Senior Advocate, Supreme Court, Ch. Ejaz Ahmad, Deputy Attorney General, Mr. Nizam Ahmad, Deputy Attonery General, Mr. M. Akram Shaikh, Advocate, Supreme Court, instructed by Ch. Fazle Hussain, AOR for Respondents. Dates of hearing: 2, 3 and 4.11.1991 judgment Shafiur Rahman, J.-By a short Order dated 4th of November, 1991 the Civil Petition for Leave to Appeal against the judgment of the High Court dated 14.10.1990 was dismissed for reasons to be recorded later on. Hereunder are the facts of the case and the reasons for dismissal of the Petition and refusal of the leave to appeal:-- The President of Pakistan by an Order under Article 58(2)(b) of the Constitution on 6th August, 1990 dissolved the National Assembly in exercise of his discretion as, according to him, a situation had arisen hi which the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate had become necessary. The formal Order which was Gazetted is reproduced hereunder in extenso:— "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:-- («) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and Us 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 wilhin 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 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. (ii) The National Finance Commission under Article 160 has never been ailled 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. (iii) 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. (iv) The Senate, svhich 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 (o 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 Sindh against internal disturbances and to ensure that the Government of the 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. ((•) The Government of the Federation has violated the provisions of the Constitution and the law in that:-- (i) T t hc Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence. (ii) 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. (iii) 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." This Order of the President of Pakistan was challenged amongst others by the Petitioner Khawaja Ahmad Tariq Rahim who was, earlier to the impugned Order, a Federal Minister of Parliamentary Affairs in the Government of Pakistan. The grounds taken up in the Writ Petition were, generalities apart, the following:-- (1) The words "discretion" and "opinon" used in sub-Article (2) of Article 58 of the Constitution were meant to satisfy an objective test and not a subjective test; (2) The High Court in the case of Muhammad Sharif versus Federation of Pakistan (PLD 1988 Lahore 725) and Supreme Court in the case of Federation of Pakistan versus Muhammad Saifullah Khan (PLJ 1989 Supreme Court 170) had not only held that this discretion and opinion formation had to satisfy the objective test but also proceeded to hold that there must be a complete break down of the constitutional machinery, (3) The discretion exercised by the President in passing the impugned order was arbitrary, unjust, capricious and mala-flde and against the spirit of the Constitution and democratic system; (4) The matters which were subjudice in courts in one form or the other e.g., failure to summon a meeting of the Council of Common Interests, and the case of Mr. Ihsanul Haq Piracha could not be made the basis for the impugned action; (5) The grounds taken up were factually incorrect and insufficient for the action taken. A larger Bench of the Lahore High Court, heard this Constitution Petition and others instituted, on transfer to it, on the same subject. After affording full hearing to the parties, a short order was passed by the High Court on 14.10.1990. The operative part of it, so far as relatable to the impugned order, was as hereunder:-- "After having considered the arguments of the learned counsel for the parties and perusal of the material placed by them on the record, we find that the President was justified in forming 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 was necessary. This opinion could validly and reasonably be formed from, amongst others, the following acts of commission and omission of the Federal Government:— (i) No substantial legislative work had been and could be carried on by the Government in the National Assembly inter alia for the reason that the Government had virtually no representation in the Senate. During its twenty months' tenure, out of fifty Ordinances/bills presented before the National Assembly only fifteen could be passed by the Parliament while the remaining thirty five were not processed and allowed to lapse. (ii) The Federal Government miserably failed to perform its obligation under Article 148(3) of the Constitution to protect the Privince of Sindh against internal disturbances which continued unabated and assumed serious proportions beyond the control of the Provincial Government. Despite repeated advice of the President, clear view expressed by the Governer of Sindh and opinion of the then Attorney General, resort to the provisions of Article 245 of the Constitution was not made resulting in colossal loss of life and property thereby endangering the integrity and solidarity of Pakistan. (iii) The Constitution envisages Pakistan as an Islamic Federal Republic, wherein the Federal Government and the Federating Units have well defined powers and sphere of operation. A mechanism is in­ built in the Constitution to resolve disputes between the federation and its units and between the units inter se. Inaction on the part of the Federation in resolving such disputes may endanger the federal structure of the Stale itself. In this regard one of the important institutions is the Council of Common Interests constituted under Atricle 153 of the Constitution. It formulates and regulates policies in relation to matters in Part-II of the Federal Legislative List and entry 34 (Electricity) in the Concurrent List (refere Article 154), supervises and controls the related institutions and is also required to determine the rates at which net profits are to be calculated in terms of Article 161. The documents on record reveal that the Federal Government despite repeated demands by three out of four federating units and unanimous resolution of the Senate, failed to call a meeting of the Council of Common Interests resulting in polarisation and confrontation between the Federation and two federating units which eventually obliged them to file a suit against the Federation in the Supreme Court of Pakistan. (iv) The formation of the National Finance Commission, another important institution, required to be set up under Article 160 of the Constitution for distribution of revenues between the Federation and the Provinces was unnecessarily delayed with the result that not a single meeting could be convened thereby depriving the federating units to have redress of their grievances. (v) The provincial autonomy guaranteed by the Constitution was eroded by launching People's Works Programme in a manner contrary to Article 97 of the Constitution without any legislative backing. (vi) Article 14 of the Constitution guarantees that the dignity of man and, subject to law, the privacy of home shall be inviolable. This fundamental right was flagrantly violated and disragarded by tapping the telephones of highly respected persons, including dignitaries like the Chairman of the Senate and Speaker of National Assembly. Even the members of the Government party were not spared, petitioner being one of those whose telephones were tapped. (vii) Important Constitutional organs of the State like the Senate and Superior Judiciary were publically ridiculed and brought into disrespect. Even the legal existence and validity of the Senate was disputed by the Federal Government. (viii) Misuse by the Federal Government of Secret Service Funds running into crorcs of rupees and unauthorized use of aircrafts belonging to PAF and PIA for transportation of MNAs at the lime of No Confidence Motion. (ix) Wholesale and indiscriminate appointments in the Civil Services of Pakistan and the Services under the Statutory Corporations in violation of law. The controversy arising in this appeal is substantially narrowed down by the fact that both the parties are agreed that the law laid down by this Court in Federation of Pakistan vs. Haji Muhammad Saifullah KJtan (PLJ 1989 S.C. 170) should be applied, as none challenges or questions its soundness or applicability. The petitioner wants to avail of two principles of law laid down therein. The first is the justiciability of such an order on the yardstick of an objective criteria. The second is the exact objective criteria required for sustaining such an order of dissolution. For the first principle reliance has been placed on the following observations in Haji Muhammad Saifitllali's case (PLD 1989 S.C. 166) at page 212 of the report:- 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 expressions "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 test 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." For the second principle the reliance has been placed on the following two observations contained in the same judgment:— (i) "Thus the intention of the law-makers, as evidenced from their speeches and the terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution." (ii) The Expression "cannot be carried on" sandwiched as it is between "Federal Government" and "in accordance with the provisions of the Constitution", requires 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 no concern itself with the pace of the progress, the shade of the quality or the degree of ihe 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." According to the learned counsel for the Petitioner if the law so laid down is applied to the facts of the case under consideration then the impugned Order cannot stand because there was no breakdown of the constitutional machinery, no impasse or stalemate to paralyse the functioning of a constitutional Government in the country. Additionally, the learned counsel contended that even if such a situation existed, there were alternative powers for the President to which resort could be had. In this connection he has referred to Article 233 - Proclamation of Emergency; Article 184(1) - Resort to original jurisdiction of Supreme Court in any dispute between any two or more Governments; Section 131-A of the Criminal Procedure Code - Power to use military force for public security and maintenance of law and order. According to him, without availing of any of these alternatives, direct resort to such an extreme measure cannot be constitutionally justified. The learned Attorney General has, on the other hand, attempted to demonstrate the factual correctness of the grounds invoked for dissolving the National Assembly, its nexus with the power conferred on the President, and the imminence and gravity of situation prompting the exercise of such a power by him. Mr. Sharifuddin Pirzada, Senior Advocate, appearing for the Federal Government Has presented before us the historical perspective in which the expressions "situation has arisen" and "Government cannot be carried on in accordance with the Constitution" came to be used so as to give a specific meaning and connotation to them. He has referred to exercise of similar power of dissolution of elected assemblies in India , Australia and the restraint exercised by the Courts in testing meticulously the factual correctness of the grounds made the basis for such an action. He has also pointed out that an identical challenge to the impugned order of dissolution did not succeed in High Court of Sindh in KJtulid Malik and others versus Federation of Pakistan and others (PLJ 1991 Karachi 1(FB)). The judgment has become final as no appeal was preferred against it. It would operate as res judicata on the strength of decision given by this Court in Pir Baksh represented by his legal heirs and others versus Tlie Chairman, Allotment Committee and others (PLJ 1987 S.C. 181). There are three general arguments advanced by the learned counsel for petitioner which need attention at this stage before taking up the specifics. The first was that there were available to the President other alternative constitutional remedies before resorting to this or such a drastic step. In advancing this argument a misconception with regard to the constitutional powers enjoyed by (he President in his discretion and by the Prime Minister has been exhibited. All the alternative powers referred to arc cxercisable by the President only on the advice of the Prime Minister and not in his discretion. It is not for the President to seek advice of the Prime Minister and to obtain one. Nor is it open to the courts to examine what advice, if any, was given and how it was received. None of the powers, be it under Article 186(1), or Article 233(1) or Article 184(1) of the Constitution or even section 131-A of the Criminal Procedure Code is exercisable by the President in his discretion. So there are no alternative remedies available to the President but these alternative remedies are available to the Prime Minister. The second argument addressed was that the National Assembly is the only instrumentality of State directly elected by the people of Pakistan . Such an elected body should not be at the mercy of an indirectly elected constitutional functionary howsoever high. This or such an argument may be theoretically sound and . plausible. However, the express words of the Constitution make provision for it. Ours is not the only country where the power is so reserved. The legal and moral basis for reserving or reposing such a power and the occasional exercise of it have been illustratively described by A.V. Dicey in his book "Introduction to the Study of the Law of the Constitution" (12th Edition) at page 433 as hereunder:-- "This looks at first sight like saying that in certain cases the prerogative can be so used as to set at naught the will of the nation. But in reality it is far otherwise. The discretionary power of the Crown occasionally may be, and according to constitutional precedents sometimes 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. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation. This is the doctrine established by the celeberated contests of 1784 and of 1834. In each instance the King dismissed a Ministry which commanded the confidence of the House of Commons. In each case there was an appeal to the country by means of a dissolution. In 1784 the appeal resulted in a decisive verdict in favour of Pitt and his colleagues, who had been brought into office by the King against the will of the House of Commons. In 1834 the appeal led to a verdict equally decisive against Peel and Wellington , who also had been called to office by the Crown against the wishes of the House. The essential point to notice is that these contests each in effect admit the principle that it is the verdict of the political sovereign which ultimately determines the right or (what in politics is much the same thing) the power of a Cabinet to retain office, namely, the nation. Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was constitutional [See Emden, The People and the Constitution (2nd ed., 1956) pp.194-196,197--201.--ED]. To a certain extent the dispute is verbal, and depends upon the meaning of the word "constitutional". If we mean by it "legal", no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament. If we mean "usual", no one can deny that each monarch took a very unusual step in dismissing a Ministry which commanded a majority in the House of Commons. If by "constitutional" we mean "in conformity with the fundamental principles of the constitution", we must without hesitation pronounce the conduct of Geogee the Third constitutional, i.e. in conformity with the principles of the constitution as they are now understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief. No modern constitutionalist will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore, on the modern theory of the constitution, was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in 1784 the King's conduct was not in reality an innovation, though a salutary one, on the then prevailing doctrine". A more recent version of the same is found in the book 'The Prime Minister of India: Powers and Functions" by Dr. (Mrs.) Sarla Malik at pages 48 to 50 in the following words;-- "The Prime Minister can also be dismissed if he stays in office by misusing his powers, and in very exceptional circumstances, if his stay in office is nol considered in the national interest by the President. In such circumstances, the President can dismiss him even if he commands a majority in the Lok Sabha. This course of action was adopted by Sir John Kerr, ihe Governor-General in Australi'a in November 1975. Even in Germany under the Weimar Republic President Hindenburg dismissed the Chancellor of the Reich, Brunning, in May 1932, though he was in command of a majority in the Reich, and his term was still to run for two more years For instance, after the dismissal of the Labour Ministry, headed by Gough Whitlam, and the appointment of the Liberal Ministry, headed by Malcolm Fraser, by Sir John Kerr, the then Governor-General of Australia in November 1975, fresh elections were held in December 1975, after dissolving the Senate and the House of Representatives. Fraser's Liberal Party Coalition got a majority in both Houses of Parliament. This shows that the assessment of the political situation by the Governor-General was correct and his action was upheld by the electorate. On the other hand, if the assessment made by the Governor- General had proved wrong, and the electorate had again voted to power the Labour Party of Goughwhitlam, the position of the Governor- General would have been really difficult. It will not be out of place to mention here that Dharma Vira, who had dismissed United Front Ministry, headed by Ajoy Mukherjee, had to leave West Bengal when the United Front was voted back to power in 1968. Similarly, Marsha! Macmohan in France had to resign in 1877 for dismissing the Ministry, which came back to power........ The power of dismissing the Prime Minister may be viewed in the perspective that if the Council of Ministers is bent upon subverting the constitution, the President has certain reserve powers, and is obliged'by his oath to exercise them". The specific power, the jurisdictional requirement all being provided in our! Constitution, it is not necessary to either go back deep into history or to infer air' residual but necessary power of the President in the matter. The third general argument, contained more in writing than addressed orally could be summed up as that the horse trading of elected representatives, corruption and nepotism, violations of individual constitutional provisions e.g., not summoning Council of Common Interests or Finance Commission, all have been taking place in the past and even after the dissolution of the National Assembly. Hence, these factors could not be made the grounds for the impugned action. Such an argument may be attractive to the gallery but it cannot prevail because once the evil is identified, remedial and corrective measures within the constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to the best of their ability must react. They cannot and must not remain silent spectators. The power invoked by the President is enshrined in Article 58(2)(fe) of the Constiution, the relevant portion of w^iich reads as hereunder:-- "58(1) ...................................................................................................... , (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assemby in his discretion where, in his opinion- (a) ................. ...- ................ • ....... - ... - (b) a situation has arisen in which the Government of tbe Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". Article 48 of the Constitution provides for the manner of exercise of various constitutional functions by the President. The portion relevant to the question under discussion is as hereunder:-- "48. President to act on advice, etc,~(l) 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 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 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 discretion,-- (a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly, and (b) appoint a care-taker Cabinet. (6) (7) ......................................... In the Third Schedule of the Constitution are contained the Oaths prescribed for the President, the Prime Minister, the Ministers and the Members of the National Assembly. A feature common to all the oaths is the duty to "preserve, protect and defend the Constitution of the Islamic Republic of Pakistan". Coming now to the specifics, the jurisdictional requirement for an action under Article 58(2)(b) of the Constitution is 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". Section 45 of the Government of India Act, 1935 contained this expression hi the following words:-- "45.(1) If at any time the Governor-General is satisfied that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of this Act, he may by Proclamation:- (a) declare that his functions shall to such extent as may be specified in the Proclamation be exercised by him in his discretion; (b) assume to himself all or any of the powers vested in or exercisable by any Federal body or authority. This provision was commented upon by the authors of "the Constitutional Law of India & England ", i.e. J.N. Varma and M.M. Gharekhan, as hereunder:-- "Break-down of the Constitution 569. When this act was on the anvil, Parliament expressed the opinion that the safe running of the Government of India must be sufficiently ensured. A situation might arise in which the working of the Constitution as laid down by the Act was either impracticable or impossible. It is with a view to meet such a situation that Section 45 has been enacted. The wording of this provision, it must be remarked, is both unique and unusual. There is no precedent for it either in England or the Federal Dominions or the United States of America ; and the use of the term 'Constitutional Machinery' is altogether novel to Constitutional Law ................... The section which can be described as a 'break-down section', makes a detailed provision with a view not to turn the Federation into something like permanent dictatorship. Parliament will have a very close control of the situation. From the point of view of the Indian States also it was thought highly desirable that the exercise of these emergency powers did not become permanent. This section, it will therefore be seen, was enacted after keeping many constitutional and emergent points in view. First of all, a view was kept in mind that Parliament should keep a check on any renewal. Secondly, it was necessary not to jeopardise the position of the States; thirdly, the assumption of all the powers by the Governor-General should not be permanent; fourthly, the other Federal Organs which would not otherwise be affected by the break-down of the constitution, should be allowed to function; fifthly, the Federal Court should not be allowed to be affected by the suspension of the constitution." In a note appearing in Seervai-Basu's Commentary on the Constitution of India Sixth Edition Volume 'O' (1989-Silver Jubilee Edition) at page 17 following remarks with regard to scope and meaning of this expression are made:-- "This is the sense in which the Joint Parliamentary Committee on Indian Constitutional Reform (1933-34), Vol.1, para.109, explained the proposed provision in Section 93 in the Government of India Act, 1935, where similar power to assume sole responsibility for the administration of the Province had been conferred on the Governor, in case of a breakdown of the machinery of the Provincial Government, in whole or in part. See also the earlier Report of the Simon Commission, Vol.II (para.65), where the two expressions 'break-down of the constitutional system' and 'the Government of a province cannot be carried out in accordance with the provisions of the Statute' were used as referring to the same situation, and as instances of such situation were mentioned-- 'complete inability to form or maintain in office any Ministry enjoying support from the Legislature's wide-spread refusal to work the normal constitution of the province, or general adoption of a policy which aimed at bringing Government to a standstill'. While introducing Draft Art.278 (now Art.356), Dr. Ambedkar explained that he was introducing a provision 'analogous to Section 93 of the Government of India Act, 1935', to meet a 'break-down of the constitutional machinery' (IX C.A.D., 132-33,177)". This expression received a fuller attention by the framers of the Indian Constitution who confined it to the provincial sphere only (Article 356 of the Indian Constitution):- (/<) Even if one seeks to exclude the marginal note of Art.356 and confine the interpretation to the words (failure to carry on the Government of the State) 'in accordance with the provisions of the Constitution' it would not refer to the failure to comply with particular provisions of the Constitution, but the failure to maintain the 'form of the Constitution', which, in relation to the Provincial part of the Constitution, meant the form of 'responsible Government', as Krishnaswami Ayyar explained. (//'/') The foregoing narrow interpretation would also follow from the premises explained by the framers of the Constitution themselves that Art.356 (draft Art.278) was a corollary or adjunct to the duty of the Union under Art.355) (draft Art.277A) and that Art.355 had been drafted on the model of Art.IV(4) of the Constitution of the U.S.A., which enjoined the United States to guarantee to every State in the Union "a republican form of Government". Broadly speaking, that expression has been understood to mean "a form that, as distinguished from aristocracy, monarchy, or direct democracy, rests on the consent of the people and operates through representative institutions". If that be so, neither the provisions in Art.IV(4) of the American Constitution nor Art.355 of the Indian Constitution (can be used to subvert the normal system of Government in a State on the plea of violation) of particular provisions of the Constitution, short of break-down of the constitutional machinery or form of representative and responsible Government". This much for the background of the constitutional power, its scope and meaning in the past and in the contemporary decisions outside Pakistan . In Haji Muhammad Saifiillah KJian's case (PLJ 1989 S.C. 170) our constitutional provision has received full attention and its meaning and scope authoritatively explained and determined. It is an extreme power to be exercised where there is an actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe a particular provision of the Constitution. There may be occasion for the exercise of this power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra-constitutional. The very first ground disclosed in the dissolution order is the utility and efficacy of the National Assembly as a representative institution being defeated by- (/) internal dissensions and frictions; (//') persistent and scandalous horsetrading; (hi) corrupt practices, inducement; (/v) failure to discharge substantive legislative business; and (v) National Assembly having lost the confidence of the people. The objection of the petitioner to this ground is two fold. Firstly, that the express words of the Constitution talk of Government and not of National Assembly. For that reason an entirely extraneous consideration has been kept in view. Secondly, factually all that has been mentioned as a fact is not correct. The word "Government" has not been defined in the Constitution. Black's Law Dictionary defines it as "the whole class or body of office holders or functionaries considered in the aggregate upon whom devolves, the executive, judicial, legislature and administrative business of the State". While interpreting President's Order I of 1970, the Lahore High Court in Master KJmsrow Amir Ktian Niazi v. Province of Punjab and 2 others (PLJ 1975 Lahore 147) held as hereunder:-- "It may also be observed in this connection that under clause (b) of subsection (1) of Section 20 of the President's Order No.l of 1970 the President can by order make suitable provisions for "the Government and administration of the Islamabad Capital Territory ". The President's Order 12 of 1971 has, inter alia, been made in pursuance of the provisions of clause (b) of subsection (1) of Section 20 of President's Order I of 1970. The term "Government" used in the above mentioned provisions includes the exercise of legislative functions. This becomes all the more clear because the term "Government" has been employed in addition to and apart from the term "administration", in the above provision. As explained by the Supreme Court in Iftikharuddin v. Muhammad Sarfraz (PLD 1961 S.C. 585), the word "Government" includes in its ordinary connotation, legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. There is nothing in the President's Order I of 1970 which indicates any contrary intention". There is no reason why the word "Government" used in Article 58(2) of the Constitution be given a restricted or a different meaning. The preamble to our Constitution prescribes that "the State shall exercise, its powers and authority through the chosen representatives of the people". Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign, to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the Political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the constitution of an Islamic State. The normative moorings of the Constitution prescribe that "soverignty 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" and the State is enjoined to "exercise its powers and authority through the chosen representatives of the people". An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He . cannot on the mandated constitutional prescription participate in the exercise of State power and Authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but "mockery of the democratic constitutional process". The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the fact that the defectors were quite often rewarded with posts and prizes. As regards the second ground, we find sufficient correspondence on record lo indicate that presistent requests were made by the Provinces for making functional the constitutional institutions like Council of Common Interests, National Finance Commission with a view to sort out disputes over claims and policy matters concerning the Federation and the Federating Units as such. Inspite of the intercession of the President, no heed was paid, constitutional obligations were not discharged thereby jeopardizing the very existence and .sustenance of the Federation. It is true that some of the grounds like (c), (e)(ii) and (e)(iii) may not have been independently sufficient to warrant such an action. They can, however, be invoked, referred to and made use of alongwith grounds more relevant like (a) and (b) which by themselves are sufficient to justify the action taken. Hence, there is no case on merits for grant of leave to appeal which is hereby refused. Abdul Shakur-ui-Salam, J.--At the conclusion of the hearing the petition was dismissed by a short order dated 4.11.1991, detailed reasons to be given later. I have had the privilege and learnt a lot from the analytical exhaustive treatment by my learned brother Mr. Justice Shafiur Rehman of the questions involved in the petition. In view of the gravity and potentiality of the constitutional interpretation involved in the case I take it as my duty to express my views as I see the vicissitudes through which the country has passed in the constitutional journey, where it stands and how various courses are likely to lead to. 2. It is distressing that a country in the process of whose creation mothers were murdered, sisters enslaved, girls mutilated, boys butchered, whole families slaughtered and millions made to leave their hearths and homes should find itself that inspite of having been given birth under a Parliamentary Statute, Indian Independence Act 1947, with a working constitutional framework provided under the Government of India Act 1935, based on federal principle and parliamentary form of Government, individuals one after another come to take the reins of the affairs of the State for long periods of time without having any mandate from the people of the country. To understand this morass it would be appropriate to look back as Arnold J. Toynbee did in his Study of History to examine the place of existing civilizations with reference to the past civilizations-their growth, disintegration -and the impact they made on the present. It pains me to see how a beautiful country sitting on the shoulders of the sub-continent of India at the foot of Himalaya in the East of green landscape intercepted by rivers and exhuberant people to improve their lot and in the West vast plains irrigated by canals, mighty Indus and mountaineous regions full of minerals with robust people to proceed with confidence to advance to prosperity, has been cut into hajf and its people left frustrated, bewildered, not knowing what might strike them tomorrow. 3. The reason lies perhaps in the flurry and flush of the Independence . It was forgotten that the two principles permeating the creation of the country were federal structure of State and parliamentary form of Government. Principles became victim of passions of people who came to carry on the day-to-day administration of the State. May be Meredith in his Love's Grovees was right; "Passions spin the plotWe are betrayed by what is within". 4. State having been created, for its governance basic legal documents being there, its policies and laws were to be implemented. For this civil servants were employed, to look after the borders military personnel. They performed a clossal task of establishing the machinery of the Government, looking after the citizens and absorbing millions of refugees. But for them it would not have been possible to organize the life of the people of the country. They are entitled to our tribute. I respect them. But what follows is from the deepest and sincerest sentiments that we understand the basic melee so that we can attend to it and all survive. Country's existence is essential to serve or rule. Some of those who reached the lop or occupied key positions out-stripped the bounds of service, succumbed to the temptation to rule, notwithstanding that they were not so endowed as they had sought security of service in early life and were trained to obey and serve. To rule a free people is very different from ruling one's subordinates. 5. On the advent of Pakistan , Quaid-e-Azam Muhammad Ali Jinnah became the Governor General and his right hand man Mr. Liaqat Afi Khan the Prime Minister. After the sad demise of the Quaid. his lieutenant from East Pakistan Kh. Nazim-ud-Din became the Governor General. The Prime Minister was assassinated. The assassin was killed at the spot. A high official of the Police was said to be an instrument of the intrigue. Nothing was done to find out the truth: As in a parliamentary system, the surviving lieutenant of the Quaid-e-Azam, Kh. Nazim-ud-Din stepped down from the ceremonial office of the Governor General and took over the reins of the affairs of the State in his hand as a Prime Minister. He was a noble man. As in a Greek tragedy he did something which turned out to be his undoing. He nominated a man from Account Service Mr. Ghulam Muhammad to be the Governor General. It was understood that the country having attained Independence , it will be governed by the Parliament through the Prime Minister and his Cabinet and the Governor General will be a figure head. The assumption turned out sour. The Governor General who all his life had been adjusting accounts displayed his expertise in managing the men of the establishment. He dissolved the Constituent Assembly functioning as Federal Legislature as well and dismissed the Prime Minister and the Cabinet. Though he himself was paralysed yet inflicted a fatal blow to the nascent constitutional system of the State. Nature has its own ways. Nemises is not far away. The Governor General made his exit but none was told where he was laid under the dust. Major General Sikandar Mirza, Defence Secretary managed to get into the saddle. A new Assembly was elected. It framed the first Constitution of the Islamic Republic of Pakistan in 1956. The Governor General took Oath under it as President to uphold and defend the Constitution. But in two years' time he abrogated the Constitution and handed over the country to the Commander-in-Chief to be put under Martial Law. Though he had hoped to continue to govern when he said to others: go, while the going is good, but little realized that two swords do not sit well in a scabbard. The irony is that he was the first to go as the Commander-in- Chief General Muhammad Ayub Khan whisked him away. He left the country and was buried in alien land. The General assumed the mantle of Presidency and got conferred title of Field Marshal. He promulgated a Constitution, with an odious distinction, that it carried his own name in the preamble, known as Constitution of Pakistan, 1962. Not knowing the ethos of the struggle he thought the genius of the people which was his own by training and habit, that the form of Government of the country should be Presidential. Of course, he did not realize that a Presidential form of Government is a democratic one and rather difficult to run, as the President has only executive authority, no control over Parliament or Congress and can neither manipulate nor dismiss it for ire or non-cooperation. Budget is to be passed by the Parliament and if it does not do or obstructs, the President would be helpless. But the Field Marshal provided in his Constitution that he would have all the executive powers as well as full control over the Parliament, even of its dismissal. The net-result was a dictatorial system. The people had the jibe that like the light-house of a town, Faisalabad all roads lead to the Presidency. However, life has its own limitations. When he fell ill and could carry no more instead of passing the powers under his own Constitution to the Speaker of the National Assembly he asked the Commander-in-Chief General Muhammad Yahya Khan to perform his constitutional duty, who did it by abrogating the Constitution and dismissing the Assemblies and all, put the country under Martial Law. He held elections for new National Assembly but was not prepared to part with power. Eastern wing rebelled. He tried to suppress. The neighbouring country intervened. The Military Commander of the area surrendered. East Pakistan was lost in blood and tears. He was forced by the circumstances to hand over power to the leader of the members of the National Assembly from the Western wing Mr. Zulfiqar Ali Bhutto. The latter first promulgated an Interim Constitution and then got passed with the consent of all the political forces represented in the National Assembly the Constitution of the Islamic Republic of Pakistan, 1973. Having had bitter experience of the past, the Governor General or President dissolving the Parliament, conventions of the parliamentary form of Government were incorporated in the Constitution. It was clearly laid down that the country shall be governed by Parliament through the Prime Minister and the Cabinet. They shall be responsible all the time to the National Assembly and ultimately to the nation. The second principle in the Constitution is that the country shall be a Federation consisting of four Provinces. As a symbol of their unity there shall be a President. The Constitution was in operation for four years only when in 1977 the Chief of the Army Staff who was chosen by the Prime Minister purportedly for loyally to his person, took over the country, put the Constitution in abeyance, dismissed the Government, dissolved the assemblies and imposed Martial Law, himself becoming Chief Martial Law Administrator and little later as President of the country. He hanged the person who had put him in the position. What a life! He ruled the country till 1985 when he got elected people without political affiliations to form a National Assembly. He nominated Mr. Muhammad Khan Junejo as a Prime Minister. He promulgated President's Order No.14 of 1985 Revival of the Constitution of 1973 Order, 1985, making extensive amendments in the Constitution including the power to dissolve the National Assembly and retaining the power to appoint a dale lor lifting of the Martial Law. The new National Assembly realizing that it is better to have the Constitution revived and Martial Law lifted agreed to adopt the amendments made by the Chief Martial Law Administrator/President managing at the same time to soften the rigors of the President's powers as far as possible, hoping that the sword of democles shall not strike soon. But they were disappointed when they were packed and the Assembly dissolved in exercise of the amended powers, in the year 1988. He fixed a date for elections of the new Assemblies. But he could not see them through. He died in an air crash with 29 senior military Officers, a General and the Ambassador of the United States leaving the nation stunned. His successor under the Constitution, Chairman of the Senate Mr. Ghulam Ishaq Khan, took over as the acting President. He held the elections on schedule. The leader of the political party having the majority though not absolute in the National Assembly, Ms. Benazir Bhutto was nominated as Prime Minister. She formed the Government and obtained vote of confidence from the Assembly. It may be noted at this stage that though the action of the late President dismissing the Assemblies was found to be unconstitutional yet the then Assemblies were not restored for the reasons recorded in "Federation of Pakistan v. Haji Saifiillah" (PLJ 1989 SC 170). The members of the newly elected National and Provincial Assemblies elected the acting President as the President. After twenty months, on 6th August, 1990 the President dissolved the National Assembly, and the Governors the Provincial Assemblies c . It is the order of the President in dissolving the National Assembly which is in question. It reads as follows; 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 discord, confrontation and deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter (/) 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. (//) 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 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 Sindh 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:-- (/) 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. (///) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 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)(f>) 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". 6. The power exercised by the President is with reference to Article 58(2)(ft) of the Constitution. In order to understand its efficacy and scope, it is necessary to take note of some of the provisions of the Constitution. It was in the preamble and now in Article 2A of the Constitution that "the State shall exercise its powers through representatives of the people". This clearly laid down that power and authority shall be exercised through the chosen 'representatives', not through an individual, however high, may be the President. Then, these chosen representatives have to be of 'the people'. The President is not chosen by the people. He is elected by the members of the Assemblies. He has no direct contact nor the people choose him. Secondly, according to Holy Quran (Al Amran, Para 4 Ayat 109) the Prophet Muhammad (Peace be upon him) was ordained to consult. Which Muslim ruler can claim more authority-not to consult? The Constitution of Pakistan has mandated in Article 45, "that in exercise of his functions, the President shall act in accordance with the advice of the Prime Minister and such advice shall be binding on him". In the amended form, about which something will be said later, the provision is that "In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or Prime Minister". Provided that the President may require that 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". 7. When one is required to act in accordance with the advice of another he acts at his peril if he goes against the advice. If the advice of the authorized person is not taken, like that of a doctor by a patient the latter is likely to suffer. Thirdly the power exercised under the amended Article 58(2)(ft) came into existence alongwith amended Article 41(7) of the Constitution when the Chief Martial Law Administrator/the President had already provided in Presidential Order No.14 of 1985 that he shall appoint a date for lifting of the Martial Law. The amendments. _ had to be made by the National Assembly as which assembly or parliament would H have the Martial Law rather than not submit to some amendments? Therefore, while interpreting Article 58(2)(b) this factual background is not to be lost sight of and it is not to be interpreted in a manner that it invests power in the President more than the King or Queen of England possessed even when sun did not set over one or other part of their dominions or territories, nor more than what the President of the most powerful nation in the world possesses. King or Queen of England has not dissolved the Parliament for more than a century without the advice of the Prime Minister. Nor the President of the United States can dissolve the Congress. 8. More importantly it may be noted that the relevant amendments made are unique in nature. For the first time in constitutional history of any country, I think, it was so stated that a named person will be President for such a period. Article 41(7) inserted in the Constitution is to the following effect: "Notwithstanding anything contained in this Article or Article 43 or any other Article of the Constitution or any other law, General Muhammad Ziaul Haq, in consequence of the result of the referendum held on the nineteenth day of December, 1984 shall become President of Pakistan on the day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned alter the election to the Houses of Majlis-e- Shoora (Parliament) and shall hold office for a term of five years from that date, and Article 44 and other provisions of the Constitution shall apply accordingly". 9. This provision is notwithstanding Article 43 which lays down that "the President shall not hold any other office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services". The President wanted to retain the Office of the Chief of the Army Staff which was the main plank of his authority^ so the provision. After the General had become President he was to hold office for a term of five years and "other provisions of the Constitution shall apply accordingly". The other provision most vitally connected with the power structure of ruling was the authority to dissolve the National Assembly. It was laid down in the amended Article 58(2) that the President may also dissolve the National Assembly in his discretion where, in his opinion— (a) (b) a situation has arisen in which Government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to electorate is necessary". 10. Reading the three Articles together it was obvious that the General wanted to become President, retain the base of his power the Command of the Army and also the authority to dissolve the National Assembly according to his discretion. Being the Chief Martial Law Administrator and conditioning the lifting of Martial Law on the amendments to be made by the National Assembly it was but wise of the members of the National Assembly to oblige and get the country out of the clutches of the Martial Law. But the beneficiary of the powers little realized that there is a Being beyond human specie who does not take kindly to arrogation.of authority. The General with his companions died in an air crash. ^j& \J ^' Ob ^ilol Powers acquired or conferred perished in a twinkle. There is no doubt that the power to dissolve the National Assembly was desired by the late President and it was granted to him. Article 41(7) makes it clear that it is the General Muhammad Ziaul Haq who becomes President and provisions of the Constitution are to apply 'accordingly. Reality and the letter of law both point to the c6nclusion that the powers were personal for the President. These perished with his sad demise. Sophistory will not suffice to say that power to dissolve the National Assembly devolved on his successor. Intention and actions had combined together for the late President. There is no doubt about it. If the Divine Will did not permit the late President to complete his mission or tenure, nobody can step into his shoes and put on his mentle. So the relevant amendments lapsed with the life of the late President. No interpretation would be true contrary to the intention and actions of the participants of the amendments. Nor that is advisable as that would strike at the root of the parliamentary system of Government established under the Constitution after much trial and error and loss of half of the couniry. 11. Clarity of vision is essential. Confusion in thought is fatal. Presidential system was tried under the Field Marshal, resulting in the end of humiliating defeat and loss of half of the country. Past experience had shown that the President and the Prime Minister did not co-exist long constitutionally. A President vested with powers to govern, unless made a di'iator, cannot run the affairs of this State as in a Presidential system he will have no control over the legislature, Parliament or Congress and it is unrealistic to think that the Parliament having control over the purse, will always oblige the 'President by passing the budget. Even with the ultimate threat of dissolving the National Assembly, the President cannot or could not run the affairs of the country without sending the house home. How can he do so, if he would have no democles sword to wield? None-these, if the parliamentary system under the Constitution is not acceptable it may be given up but it is not rignt or fair to interpret it in a manner | that its spirit is swept away under the carpet and the President is asked to hold election within ninety days after dissolving the National Assembly. Nobody can ensure the result of election. If the same Assembly is re-elected with a bang, how embarassing for him it would be and if the Assembly lakes into its head to impeach, how aweful the situation would be? Such an hazardous course is not chalked for the President. The risk could be taken by the late Preside a who held office of the Chief of the Army Staff and if the elections were to go r.¥ry he could re-impose Martial Law. This is not possible for a civilian President under the Constitution. Therefore, I am dearly of the view that power under Article 58(2)(&) pertained to the late President and it need not be stretched any further to make the confusion worse confounded. In conclusion, I would say that historical perspective, vicissitudes of constitutional developments and the Constitution as it is does not permit the President to dissolve the National Assembly. 12. Assuming that the authority of the late President to dissolve the National Assembly devolved on his successor-in-Office, then Article 58(2) may be referred to. It lays down--"Notwithstanding anything contained in clause (2) of the Article 48, the President may also dissolve the National Assembly in his discretion 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 an appeal to the electorate is necessary". 13. Two points may be noted. Firstly it is the 'Government of the Federation', and secondly that it "cannot be carried on in accordance with the provisions of the Constitution", when the President may dissolve the National Assembly. Now, concentrating on the first point it is the 'Government of the Federation' which cannot be carried on. How the Government of the Federation is carried on, Article 90 provides the answer. It is that- (/) The executive authority of the federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution". Article 91 lays down. "(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions.... (5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly". Reading the two Articles together the 'Government of the Federation' is to be carried on by the President with the aid and advice of the Cabinet headed by the Prime Minister. If 'the Government of the Federation' is not being carried on in accordance with the Constitution the fault is that of the President and the Cabinet. Why should the National Assembly be dissolved? If there are differences between the President and the Cabinet, the Constitution provides mechanism for their solution. The President may call upon the Prime Minister to perform his/her duties under Article 46. He may ask the Prime Minister if he thinks that the latter has lost confidence of the National Assembly to seek vote of confidence. He may address the two House of Parliament and ask the members to see that the Prime Minister acts in accordance with the Constitution. If all his efforts fail, he should think that he may be wrong, than that all the representatives of the people are wrong. 14. The second point is that the Government of the Federation "cannot be carried on in accordance with the Constitution". If the President is to act on the aid and advice of the Cabinet as required by the Constitution, there will be no non-carrying of the Government of the Federation in accordance with the provisions of the Constitution. It is only when President and the Cabinet acting together fail to carry on the Government of the Federation in accordance with the Constitution that the National Assembly can be dissolved. President has not said that he had failed to carry on the Government of the Federation in accordance with t,he provisions of the Constitution. So it cannot be said that the Government of the Federation could not be carried on in accordance with the provisions of the Constitution. It may also be rioted that it is only when the Government of the Federation "cannot be 'carried on in accordance with the provisions of the Constitution "iliat the National Assembly can be dissolved". Words to be taken note of are "cannot be carried on", not that the Government is being carried on not efficiently or without any fault. Which Government in the world is being carried on without default? And one has not to forget that the Government had come into being after a long spell of Martial Law and it is a developing country. Problems and difficulties are going to be there. Ideal is difficult to achieve and it always goes ahead. Further, the provision is that the Government of the Federation cannot be carried on" in accordance with the Constitution". Where was the break down of the Constitution? The provision may come into play only when the Constitutional machinery has completely broken down. Where had it broken down or come to stand still? All constitutional authorities were there and functioning, Presidency, National Legislature, Governors, Provincial Assemblies, Courts etc. If there were defaults or defects, violation of law, these were matters to be attended to by the President and his Cabinet. They had to work in unison. The President cannot throw the bucket and dissolve the National Assembly and call I he nation in twenty months' time to go back to polls. Elections cost money and turmoil. Poor country can hardly afford the luxury with no prospectus of any improvement. Exercise of authority or power demands careful, cool assessment with foresight. 15. It may be recollected that when on the 6th of August, 1990 the President dissolved the National Assembly, in the two Provinces in which the majority party in the National Assembly had the majority in the Provincial Assemblies, these two were dissolved allegedly with the approval of the President by the respective Governors, and the other two assemblies on the advice of the Chief Minister by the respective Governors. The point to be taken note of is that it is the Federation of Pakistan comprising of lour federating units. In a federal form of Government, the Federal institutions on the one hand and institutions in the federating units on the other function in their own spheres under the Constitution. It does not follow that if the Federal Government is not being carried on in accordance with the Constitution, the Provincial Governments are also not being carried on in accordance with the Constitution. The fact that all the assemblies were simultaneously dissolved shows that the Constitution was being taken as if it provided a unitary form of Government which obviously it did not do. 16. Another point to be taken note is that the Leader of the Opposition had moved a motion of no-confidence against the Prime Minister. The motion was defeated. Few days earlier than the dissolution, the Leader of the Opposition indicated that another no-confidence motion would be moved. Notwithstanding, the National Assembly was dissolved. Although under amended Article 91(8) of the Constitution, any person -can be appointed as a Prime Minister when the Assembly stands dissolved. But to appoint the Leader of the Opposition as a O Prime Minister in the circumstances would show that whole Assembly was not at no (?) fault, so no (?) why dissolve the entire body. Discretion to appoint anybody as a Prime Minister during the dissolution of the Assembly may be bald or not expressly circumscribed. But it does not mean that for dis-satisfaction with the Leader of the House, the whole House is dissolved and the Leader of the Opposition is appointed Prime Minister. It will not inspire impartiality, pVerequisite of the high office of the President. 17. Exercise of high Constitutional authority is not undertaken as one would wish it or for dis-satisfaction. One has to be aware what William Blake said; The strongest poison ever known Came from Caesar's laurel Crown". Present passes. Constitution basic law should survive lest striking at its root hollows the foundation crumbling the edifice of the State. Therefore, constitutional authority is to be exercised not with reference to the present affairs of the State but how it is going to effect the affairs of the Stale in future. Similar is the duty of those who interpret the Constitution. Marshall's judgment in "Marbwy\ v. Radison", 5 U.S.(1 Crauch) 137 (1803) determined the course of history in subjecting the Executive authority to judicial review leading the United States to run on democratic lines. Therefore, I am clear of the view that the advice being taken not from the Constitutional authority, the Prime Minister but from authorities or persons not authorized by the Constitution to tender advice to the President if so taken, or acting on his own, the President fell in error in exercising the power of dissolution of the National Assembly which did not vest in him nor was available in the circumstances. 18. Learned counsel for the petitioner urged arguments at length in support of his petition. The learned Attorney-General in his usual suave style justified the order of dissolution. It was a privilege to hear Syed Sharifuddin Prizada trace the history of the provision from Simon Commission Report. He pointed out that the phrase "the Government cannot be carried on" in accordance with the Constitution was first used in the said Report. When on the basis of the Report, Government of India Act 1935 was being debated in the House of Lords in England, extended meanings were assigned to the phrase. But it was made clear on behalf of the Government moving the bill that the phrase comes into play only when the constitutional machinery of the Government totally breaks down, not when the constitutional authorities carrying on the Government are functioning, though not as good as one would wish. The phrase survived and was used or abused until the Constitution of 1973 when it was dropped because of bitter struggle of the authorities using it on the one hand and the people on the other. When the Chief Martial Law Administrator wanted it to be inserted hi the Constitution before he would lift Martial Law, it was resurrected. But it lapsed with the moving figure for whom it was intended, as seen above. Even if it survived the makers, its contours were defined by this Court in the case of 'Federation of Pakistan v. Muhammad Saifullalt KJian' (PLD 1989 S.C.166). My learned brother Mr. Justice Nasim Hasan Shah at page 190 of the report took it to mean that "the machinery of the Government of the Federation had come to a standstill or such a break-down had occurred therein which was preventing the orderly functioning of the Constitution". My learned brother Mr. Justice Shafi-ur- Rehman defined it at pages 212--213 as follows: "The expression "cannot be carried on" sandwitched as it 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 performance or the quantum of the achievement. It concerns itself with the break-down of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution. The historical perspective in which such provision found a place in our Constitution re-enforces this interpretation". 19. Specious arguments to distinguish or diminish the vitality of the explicit exact language may over shadow its meaning but it cannot suffuse its soul. Sophistary is always available but truth survives inspite of hemlock. Reasons advanced are many, may be weighty. But reasons alone are not enough. The arch angel gave reasons for not prostrating before Adam. He was made of fire, Adam of clay. The latter-shall shed blood. Nobody ever said that the reasons were not correct. Yet the archangel was expelled from heaven. Why? He disobeyed the Command. The Constitution is to 'be obeyed. Not the Institutions provided dismantled by invocation of one provision or the other. Therefore, I am clear of; the view that notwithstanding the dissatisfaction of the President with the functioning of the Prime Minister or the Parliament the reasons for dissolving the National Assembly were not good enough under the Constitution, principles previously laid down by the highest Court in the land. It was perhaps lost sight of that if the National and Provincial Assemblies were so bad as to be dissolved, it were these very Assemblies who had not long ago elected the President. Were they good then and had become bad so soon? Creature condemning the creator/s does not sound well. 20. Having held that there was no power or authority to dissolve the National Assembly, the next question is whether the National Assembly be restored. It may be noted that when the first ever Assembly was dissolved, its Speaker Maulvi Tamizuddin Khan had challenged the order. When the previous Assembly was dissolved, its restoration was dis-allowed by me in the High Court (PLD 1988 Lab. 725) inter alia on the ground that neither the Speaker nor the Leader of the House had challenged the order. Rather they were ready and participating in the ensuing election. Notwithstanding that this time too neither the Speaker of the Assembly, nor the Leader of the House or the Leader of the Opposition had challenged the dissolution. All participated in the forthcoming elections. Leading members of the National Assembly have been re-elected. Leader of the House has become the Leader of the Opposition, no less an eminent position. The Leader of the Opposition can still point out the right course of action. If it is really right, not following it would lead the Government astray to be replaced in course of time. Relief of restoration cannot also be allowed for the additional reason that the gentlemen elected to the new-National Assembly have not been impleaded as a party to these proceedings. It is elementary principle of law that no adverse order can be passed against anybody without hearing him. Therefore, no order unsteading them can be passed restoring the dissolved Assembly. For these reasons the petition is dismissed. Rustain S. Sidhwa, J.-This is a petition by Kh. Ahmad Tariq Rahim petitioner seeking leave to appeal against the judgment of a Special Bench of the Lahore High Court dated 14.10.1990 dismissing his writ petition filed to challenge the order of the President of Pakistan dated 6.8.1990 dissolving the National Assembly of Pakistan. I have read the leading judgment of my learned brother Shafiur Rahman J., but since there arc various matters which he has not touched in his judgment and there are others where our perceptions differ, it is necessary to express myself separately, which I do so herewith. 2. Raja Muhammad Anwar, Senior Advocate, has argued the case on behalf of the petitioner. He has drawn support from the writ petition and the documents annexed therewith, as also the replication and documents attached therewith. Mr. Aziz A. Munshi, attorney General for Pakistan, has argued the case on behalf of the Federal Government. He has copiously referred to the written statement filed on behalf of the Government, as apart from a mass of documents filed by the Government in support of its case, including the affidavits of senior officers of Government. Mr. Sharifuddin Pirzada, Senior Advocate, has also argued the case on behalf of the Government and has referred to earlier legislation dealing with the provisions relating to the breakdown of Constitutional machinery. For the great pains taken by all the learned counsel in this case, I am indeed indebted. 3. In order to understand the controversy, it is necessary to understand the nature of our Constitution. The Pakistan Constitution framed in 1973, as amended upto the date of the dissolution of the Assemblies, is basically Federal in character, partaking of the British Parliamentary system, with the executive having the primary responsibility for the formation of the Government policy and its implementation through the process of law, subject to its retaining the confidence of the legislature. The executive has to act subject to the control of the legislature. Under Article 41, the President is the Head of the State and represents the unity of the Republic. Under Article 90, the executive authority of the Federation is vested in the President and is exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, without prejudice to the right of the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President. Under Article 97, the executive authority of the Federation extends to all matters with respect to which the Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Under Article 98, the Majlis-e-Shoora (Parliament), on the recommendation of the Federal Government, can by law confer functions upon officers or authorities subordinate to the Federal Government. Under Article 91, there is a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. Under Article 48(1), the President in the exercise of his functions, has to act in accordance with the advice of the Cabinet or the Prime Minister; without prejudice to his right under Article 48(2), to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. The President is thus a fairly strong constitutional head of the executive, with the real power vesting in the Cabinet and the Prime Minister. Similar position obtains in the Provinces, with the Governor as the head of the executive. Under Article 130, there is a Cabinet of Ministers in each of the Provinces, with the Chief Minister as its head, to aid and advise the Governor in the exercise of his functions. The Cabinet is therefore the guardian knot which binds the legislature to the executive both in the Federation and in the Provinces. The Cabinet enjoying majority support in the legislature, controls both the legislative and executive functions. Where they are agreed on fundamentals and represent the collective will of the nation, they conirol policy in all its forms. All these provisions, bring out clearly the Federal character of the Constitution, based on the Parliamentary system. 4. Even where the National or a Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolves the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general election to the said Assembly and also to appoint a care taker Cabinet. The word "and" between paras (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general election and the appointment of the care-taker Cabinet arc co-extensive with the dissolution of the National Assembly. Where the Governor dissolves the Provincial Assembly, he is mandalorily bound under Article 105(3) to appoint, in his discretion, but with the previous approval of the President, a caretaker Cabinet. Under Article 224(2), when the National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articles 48(5) (b) and 224(2) both read together, clearly show that the general elections must be held within ninety days of the dissolution of the National or Provincial Assembly and the date which is to be fixed must be such which brings about the election within this stated period. In Federation of Pakistan v. Muhammad Saifullah Klian (PLJ 1989 S.C. 170), where the date fixed for the election exceeded by over fifty days the period prescribed, this Court by majority view treated the delay as excusable, though Shafiur Rahman J, treated the same as inexcusable and unwarranted. 5. Under Article 48(5)(b), where the President dissolves the National Assembly, he has mandatorily to appoint, in his discretion, a caretaker Cabinet. Under Article 105(3), where the Governor dissolves a Provincial Assembly, he has mandatorily to appoint, in his discretion, but with the previous approval of the President, a caretaker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or any other person can be appointed as Chief Minister or other Minister during such period. Articles 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor with the aid and advice of interim caretaker Cabinets, for without such Cabinets their actions would be unconstitutional. The appointment of the Prime Minister from amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a caretaker Cabinet can only be presided over by them and a Cabinet is not legally complete without them The care taker Cabinet cannot be presided over by the President or the Governor. The constitutional oaths which the Ministers make before assuming office also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. The object of the caretaker Cabinet is to fill a temporary void, so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery or funds are channelled in favour of any political party. Perhaps its most important duty is to ensure free, fair and impartial elections, the said function being inherent in the very purpose for which it is constituted. All these provisions cumulatively show that no sooner the Federal or the Provincial Assembly is dissolved, that caretaker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at its head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is engrained in the Parliamentary system. In Federation of Pakistan v. Muhammad Saifullah Klian (supra), where a caretaker Cabinet at the Federal level Was installed, without a Prime Minister, this Court took seirous notice of the omission and held that the Constitutional provisions clearly showed that the office of the Prime Minister was necessary at all limes for running the affairs of the country and that he should have been appointed to head the caretaker Cabinet. Shafiur Rahman J, treated the omission as altering the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government, which omission he felt the Courts should neither countenance nor condone. 6. Whpre the caretaker Cabinet is not to be composed totally from the old Ministers but a new or mixed set has to be appointed, from out of the elected members, it is of the utmost importance that they are totally neutral persons possessing the highest integrity so that the elections can be held in an atmosphere of impartiality and the same'are not influenced in any way in favour of any political party. The appoint ent of members of the caretaker Cabinet is strictly in the discretion of the President or the Governor under Article 48(5) or Article 105(3), which is not within the scope of judicial review, but the appointment of members known for their open hostility to the last party in power, or those likely to subvert the election, would border on breach of impartiality and severely injure the democratic process. Impeccable impartiality demands that the President and Governor remain free from all political colour and affiliation and that the elections held are free and fair as can even throw up the dismissed party in power. Both the President and Governor are heavily burdened with onerous duties and their chambers are no bed of roses. They perform their duties not for the glory of the office, but for the honour and dignity of the State. 7. Turning back to the Constitution, it cannot be denied that by changes which were inter alia effected in Articles 46, 48, 50, 56, 58, 70, 75, 90 and 91 of the original 1973 Constitution by the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (Eighth Amendment) Act, XVIII of 1985, certain rights and powers hitherto not with the President were vested in him. Some of these have been listed by me in para 7 of my judgment in Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah.725 at 768). In keeping with the desire of the then President "to share powers" with the Parliament, the said amendments were accepted by the then Parliament; both the President and the Parliament sharing the united view that the Federal and Parliamentary character of the Constitution would be preserved, including the Parliamentary conventions surrounding them. It is true that the elected representatives then had no choice but to accept the lifting of martial law and the restoration of democracy on whatever favourable terms were offered or could be extracted, the President however secured for himself some inherent and some very effective powers which could remain dormant, but which he could effectively use when required. In short, he created a "power base" in favour of his office, not previously provided by the 1973 Constitution, thus obliterating his position as a figure or titular head and replacing it as one almost effective, if not equal in power as the Prime Minister. 8. A few words may be stated about the position of the President. The President, as the Head of the State, represents the unity of the Republic. He is thus placed above the party. He is the benign moderator and the symbol of the impartial dignity of the State. He is entitled to certain communications and information, which is the duty of the Prime Minister to furnish, with power to submit for the consideration of the Cabinet any matter on which a decision may have been taken but which has not been considered by the Cabinet. He can call upon the Cabinet to reconsider any advice tendered or consider such advice. He has power to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, with entitlement to decide whether he is so empowered. He has power to refer any matter of national importance to a referendum. He has power to send messages to either House for their consideration. He has the right to address both Houses assembled together at the commencement of each session of Parliament. He has the power to dissolve the National Assembly if, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. He has the power inter alia to appoint the Chairman of the Joint Chiefs of Staff Committee and the three Chiefs of the Army Staff, Navai Staff and Air Force Staff. He is at the apex, as the executive authority of the Federation, which is vested in him, is exercised by him directly or through officers subordinate to him. He is to be aided and advised in the exercise of his functions by the Cabinet of Ministers, with the Prime Minister at its head. In the exercise of his functions, he has to act in accordance with the advice of the Cabinet or the Prime Minister; except in cases where he is obliged to act in his discretion. The President is therefore no less powerful than the Prime Minister. 9. The basic character of the Constitution is now a mix It is not Presidential; it was never meant to be. It is not totally Parliamentary, as it was intended. 10. This amalgam of powers can be viewed from two angles. One view—The President, by virtue of a host of Articles, can interfere by advice and recommend change and correction. The President has effective power to make himself felt and secure attention and compliance of his views. His invisible presence is no less effective than his presence. The power is thus divided between the President and the Prime Minister. It is the case of two competing holders of power at the apex. The President thus has effective power greater than the freedom to act on the three rights of the Crown which King George V. once expressed he had and of which Begehot spoke, namely, "The right to be consulted, the right to encourage and the right to warn". The President's intercession can thus be treated as impeding the functioning of anything in the nature of a purely Parliamentary Cabinet form of Government. The other view--The President can be treated as the repository of a complementary power, so very much needed to neutralize discord, preserve unity and restrain the political will from breaking its conventional frontiers. An experienced and wise President, having served as a member of Parliament for a number of years, could provided the much needed guidance and direction as a benign moderator and democratic ombudsman. Where a break down of Parliamentary discipline, ethics and morality have set in, such a President could perhaps be the last bulwark between chaos and utter disaster. Like two jets in a carburettor, the President and the Prime Minister have to synchronise their working, to provide smooth functioning of the democratic process. Where both live by the book and rule of law, they cannot provide any scope for discord, and there should be none, for no two honest persons can differ over that which is inherently true and correct. It is only when the Constitution or the rule of law is flouted, that disagreement can set in and where the system totally fails, disagreements and disharmony become symbols of political hatred and discord. An enlightened Parliament alone will have to answer the question whether the present system is inherently defective or intrinsically sound and can be allowed to work. 11. One may now turn to the office of the President in the context of the party that puts him into power. A President may be appointed by the major political party in power holding majority votes in the two Houses and the 2nd Edition, VolJIFat page 1778, mentions that these provisions, as would appear from the debate that took place in the House of Lords, were enacted to prevent internal subversion, because one section of the Congress Party had declared its intention to enter the Legislatures only in order to wreck them from within, since they fell far short of the Party's demand for full self Government. In the debate on the Bill, the Marquess of Lothian desired to add the following words to para (1) of Section 45-"or the subversion of the institutions set up by this Act", so as to arm the Governor General with powers to intervene in the event of any attempt being made to subvert the principles of responsible Government and substitute for them some form of party dictatorship. However, the proposed amendment was withdrawn on Ue assurance of Marquess of Zetland that the Governor General would be able to deal with such a matter under Section 45. Sections 45 and 93 appeared in separate Chapters in the 1935 Act headed "Provisions in case of failure of Constitutional Machinery". The said two sections were omitted after Pakistan came into being in 1947. Later constitutional documents of 1956, 1962, 1972 and 1973 did not incorporate provisions to deal with failure of constitutional machinery as provided in the 1935 Act. It was not till the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (8th Amendment) Act, XVIII of 1985, were passed that such provisions found their way in the 1973 Constitution. The present Articles 58(2)(b) and 112(2)(b)> which in some measure reproduce the language of Sections 45 and 93 of the old Government of India Act, 1935, enable both the Federation and the Provinces to deal with cases of failure of Constitutional machinery and to thereby ensure that their respective Governments are carried on in accordance with the provisions of the Constitution. 13. Para (b) of clause (2) of Article 58 and para (b) of clause (2) of Article 112 of the Constitution basically cover cases of failure of Constitutional machinery. Though the headings of these Articles do not refer to this fact, but these clauses cover this subject. This is apparent when one reads the heading to Article 234, which reads: "Power to issue Proclamation in case of failure of Constitutional machinery in a Province". This section deals with the Province not being able to carry on its Government in accordance with the provisions of the Constitution. The ultimate object of Articles 58(2)(b) and 112(2)(b) is to restore representative Government at the Federal or Provincial level. Article 112(2)(5) is not intended to cover cases dealing with external or internal aggression, for which Article 232 exists. 14. Articles 58(2)(fo) and 112(2)(&) refer to situations which have arisen in which the Government cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The word "cannot" presupposes a Constitutional inability in the nature of a breakdown or dislocation. The word "Constitution" obviously means the Constitution of the Islamic Republic of Pakistan and not the other laws of Pakistan. The words "and an appeal to the electorate is necessary" highlight the breakdown to be of such a magnitude that an appeal to the electorate is perhaps the only remedy to the situation. Taking the case at the strictest level, one would imagine that these provisions become applicable when a breakdown has actually occurred or is on the very brink of happening and that the level of requirement is beyond the test of imminence and that the transgression is of such a magnitude that nothing short of an appeal to the electorate is necessary. Should the provisions be considered strictly as to even exclude the imminence of danger from its parameters or exclude circumscribed safeguards which can be considered or provided to preclude arbitrariness in their application! Successive Governments which run by the book, have respect for law and order and are free from corruption, would invariably set a trend so that these provisions could be strictly construed. However, if successive Governments do not carry on their functions in accordance with the provisions of the Constitution, have little respect for the rule of law and are immersed in corruption, they would invariably set a trend requiring the rigidity to be scaled down whilst interpreting these provisions. Again, if too stringent tests are applied, then the situation of 1977 may repeat itself with the President holding out for a total collapse and the Martial Law stepping in for failure on his part to control imminent breakdown. I would not however like to go down on the record as jutifying an interpretation which varies with every change in the tone of our political progress or experience. The wordings of the two provisions are sufficient to admit of a flexible approach either way and, without being dogmatic in interpreting these provisions, the facts of the case, in the background of the overall situation and political climate then prevailing and the reasons leading to the breakdown, would, all taken together, determine what the correct approach should be. 15. Articles 58(2)(b) and 112(2)(fc) are oppressive provisions. M.H. Beg CJ., whilst interpreting a similar provision of the Indian Constitution (Article 356) in the State of Rajasthan's case (AIR 1977 S.C. 1361 at para 40), held the same to be both preventive and curative. The same position obtains for these two provisions in our Constitution. Preventive, so as to prevent failure of Constitutional machinery taking place by nipping in the bud a breakdown that is imminent. Curative, so as to mend the ill effects of a breakdown that has occurred. The provision can be applied by the Federation if a Province was to refuse to carry out the directions of the Federation given in exercise of suchpowers conferred on the Federation by the Constitution. Since there exist a large number of matters on which the Federation is competent to give directions, one would imagine that in all cases this provision could be applied to meet such situations. The words "cannot be carried on in accordance with the provisions of the Constitution" could also cover non-compliance of almost every provision of the Constitution. But in applying these provisions, one must not forget our own retarded legislative experience, which has operated in a field where discipline has been loose, the rule of law somewhat lax and accountability sketchy and non-existent. To apply these provisions in a sweeping manner would be creating Constitutional autocracy and retarding the somewhat slow development of the democratic process which has begUM and which has to be 'nursed through its formative years. One cannot overlook the fact that the electorate is still besmirched in illiteracy and ignorance and the elected representatives have yet to find their class. Half of the life of this country has been under Martial Law and the other half has been under a Presidential system and a variety of Parliamentary systems of Government under an assortment of Constitutional documents, with questionable dismissals of Governments for political gain and power, subversion of the Constitution and rigged and politically influenced elections being in some general measure the miserable lot of this nascent country. To apply sophisticated British standards, whilst appraising our Constitution, would be to do injustice to an infant system which yet has not passed through its teething troubles. In England, both the electorate and the elected representatives operate at highly educated and intelligent levels of awarences and consciousness to the political process. The Indians, through sustained experience, are finding their levels. To apply all the best of sophisticated standards that one can find in text books to understand the working of different provisions of our Constitution, would be to create doubts and difficulty in the minds of those who have to run the system and are not highly experienced. With this background, one would have to act carefully when appraising a case under Article 58 (2)(b), which relates to the dissolution of a National Assembly, and a case under Article 112(2)(fe), which deals with the dissolution of a Provincial Assembly. In respect of the latter, the range is somewhat large, as it incorporates the failure of a Provincial Government to carry out directions issued by the Federal Government in the exercise of its powers under the Constitution, where the Court may find difficulty in finding grounds to limit its sweeping range, but barring such a case under Article 112(2)(fc) specifically relating to the failure of a Provincial Government in carrying out the directions of the Federal Government, these provisions, i.e. Articles 58 (2)(&) and 112(2)(b), in keeping with the spirit of balance and restraint, would have to be construed in their circumscribed sense to cover only cases of failure or breakdown of Constitutional machinery, or else it would lead to Constitutional dictatorship. To hold that because a particular provision of the Constituion was not complied with, the National Assembly could be dissolved under Article 58(2)(£>) of the Constitution, would amount to an abuse of power. Unless such a violation independently was so grave that a Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground. 16. The main question that arises is when it can be said that a situation has arisen in which the Government of the Federation or a Province cannot be carried on in accordance with the provisions of the Constitution. In Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah. 725 at 777), I had the opportunity to examine this matter in respect of the dissolution of the National Assembly, where I stated inter alia:-- The expression "Government of the Federation" is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub-clauses (a) and (b) of clause (2) are juxtaposed together and therefore sub-clause (b) has to be read in harmony with the intention behind sub-clause (a), in short whether a political issue has arisen demanding the ascertainment of the will of the ^people as regards the continuance of the National Assembly. Thus, where the National Assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuous support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and no alternative Government can be formed". In that case I was dealing with the case of a majority party having undisputed majority seats and voting strength, which was firmly in the saddle, running its affairs smoothly and carrying on the functions of the Government with confidence. The situations, visualised above relating to failure of Constitutional machinery were therefore given in the context of that case. However, when the said case travelled to the Supreme Court, this Court, by majority view in the Federation of Pakistan v. Muhammad Saifitllah KJwn (PLJ 1989 S.C. 170), held that unless it could be shown that the machinery of the Government had broken down completely, its authority eroded and the Government could not be carried on in accordance with the provisions of the Constitution, dissolution could not be ordered. At another place it held that unless the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which prevented the orderly functioning of the Constitution, dissolution could not be ordered. With respect, I would submit that the test laid down is too strict and rigid. It forgets that the provision is also preventive. One does not have to wait till the whole machinery of the Government collapses or comes to a standstill or so serious a breakdown occurs which prevents the orderly functioning of the Government, before ordering a dissolution. What is required is that the breakdown is imminent, as partial dislocation has begun, .or the breakdown has actually taken place and as a last resort interference is required to ultimately restore representative Government. Each case should therefore be left to be dealt with on its own merit. There could be many situations which could lead to or where there is an actual failure of Constitutional machinery, such as where the party in power having tenuous support from its members, is not able to carry on the functions of the Government effectively, or a deliberate deadlock created by a party or a group of parties or deadlock arising from an indecisive electoral verdict has constantly impaired or made the smooth running of the Government practically impossible, or where no party in the legislature is in a position to form a Government, or the party in power is guilty of or attempting internal subversion, or where a Government is being continuously conducted in utter disregard of the Constitution, or there is a mass uprising or civil disturbance or complete breakdown of law and order due to public opinion being against the party in power at the Federal or Provincial level. Apart from assuming such situations can arise, it would not be proper to lay down any parameters or tests to determine under what circumstances this Court would accept a given case as one falling in the category of breakdown of Constitutional machinery, other than deal with each case on its own merits as and when it comes up, on the basis of material placed before the Court to show what facts were before the President or the Governor when he formed the opinion and whether the same had a proper nexus with the requirements of the Constitutional provision. 17. Whilst stating with some diffidence the types of situations where the power can be exercised, it mut be stated that this power is meant to be used by the President impartially and objectively and only as a last resort to restore some balance and order in the Govenment, within the compass of established Parliamentary practice, and not in a way as may give the impression that it is to displace a political party in power or to rob the Federation or the Provinces of their autonomy to rule within the respective spheres allowed to them by the Constitution. The exercise of various powers under the Constitution does not guarantee that they will be exercised correctly, or that the elected representatives at the Federal or the Provincial level will perform their functions free from all human or legal errors and defects. All Government actions are not free from catastrophic errors of judgment or dismal failures of action. The functional ability of a ruling party to govern does not merely fail if some provision of the Constitution is violated or not performed or ill-performed. With political strategy and choices, in a house divided between many political parties, being mauled or mutilated by conflicting interests, it may not be possible to take even simple decisions. 1.8. In the Federation of Pakistan v. Muhammad Saifullah KJwn (PLJ 1989 S.C. 170) this Court happened to consider the following grounds given by the President in his order justifying the dissolution of the National Assembly, namely; 1. that the objects and purposes for which the National Assembly had been ulecled had not been fulfilled; 2. that law and order in the country had broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss to property; 3. that the life, property, honour and security of the citizens of Pakistan had been rendered totally unsafe; and 4. that the integrity and ideology of Pakistan had been seriously endangered; all of which it found as having no nexus with the breakdown of the Constitutional machinery or as justifying the dissolution of the National Assembly. 19. The total material presented to the Court showing the difficulty of the party in power having tenuous support from its members, is not being able to carry on the functions of the government with confidence and responsibility, the deliberate deadlock created by a party or group of parties or deadlock arising from an indecisive electoral verdict or some other situation constantly impairing or making the smooth running of the Government practically impossible, or no party in the legislature being in a position to from the Government, internal subversion attributable to the party in power, the continuous running of the Government in utter disregard of the Constitution, the total rejection by the people of the party in power exemplified by continuous mass processions, strikes and unrest on a national or provincial scale, are basically situations which have a nexus with the failure of the Constitutional machinery. Other stray, or a number of, violations of the Constitution unless by themselves so grave that a Court could come to no other conclusion but that they alone directly led to the breakdown of the functional working of the Government, would not constitute valid grounds. However, where one of the basic situations constituting breakdown of Constitutional machinery, as stated above, is present, violations of the Constitution, where they have contributed to or been the cause of the breakdown, could be treated as valid supportive factors to the decision. Non-compliance of general law, failure to hold or call meetings under the provisions of the general law, misuse of the authority or resources of the Federation or of the Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order; or the resultant effects arising from such situations, such as the climate of uncertainty if any created thereby, the sense of insecurity created at different levels of administration, the rejection by the people of some actions of the party in power, creation of some threats to law and order, the weakening of the judicial process, would not normally provide grounds for action under Articles 58(2)(b) or 112(2)(b) of the Constitution, though they may, with other factors, provide to the Court the total picture showing some of the other matters that attended the breakdown, or to show the resultant effects arising therefrom. This Court cannot sit in appeal over a dissolution order or substitute its findings for the opinion of the President, but a dividing line would have to be kept in mind between certain basic situations which can be treated as leading to the breakdown of the Constitutional machinery and as having nexus with the provisions of the two Articles of the Constitution that provide for dissolution, strong Constitutional violations which the Courts may hold as directly leading to the breakdown of the functional working of the Government and other peripheral Constitutional violations which contribute to or may be the cause of the breakdown and can be used as supportive factors where basic situations exist. This is apart from the question of quantum or sufficiency of the material, over which this Court has no concern. 20. Before dealing with the merits of the case it is necessary to decide a preliminary objection raised by the learned counsel for the petitioner, namely whether if one or more of the grounds which were the basis of the opinion of the President were not well founded, the order could be struck down as a whole, or could be sustained on the remaining grounds. In this connection the learned counsel has referred to the observations of the learned Chief Justice in the case of Khawaja Muhammad Sharif \ Federation of Pakistan (PLD 1988 Lah 725), which he submits were approved by the Supreme Court of Pakistan in Haji Saifullah Khan's case (PLJ 1989 S.C. 170), apart from other cases on the same subject such as Keshave Talpade v Emperor (AIR 1943 F.C. 1), Government of West Pakistan v Haider Bux Jatoi (PLD 1968 S.C. 210) and some others. So far as where Khawaja Muhammad ShariPs case (supra) is concerned, the view of the learned Chief Justice was not shared by the other Judges and this Court in Haji Saifullah Khan's case (supra) also did no support the said view. Regarding the view stated in Keshtive Talpade's case, Haider Bux Jatoi's case and some others, the same were in respect of detention matters where it is possible to form the opinion that in case one or more of the grounds which are the basis of the opinion are non-existent or not well founded, the whole order can be struck down, as it is not possible to assess how much of the faulty or non-existent gtrounds have played in the formation of the opinion. However, Mr. Justice Muhammad Munir, the then Chief Justice of the Lahore High Court, in Rafiq Ahmad v Crown (PLD 1951 Lah .17), while dealing with a habe'as corpus petition, doubted the authenlicity of the above view. The Indian Supreme Court in a number of cases, more particularly Suran Singh v State of Punjab (AIR 1976 S.C. 232), has also departed from the view taken in Keshave Talpade's case. The opinion formed by the President under Article 58(2)(b) is under a Constitutional provision. The rule with regard to detention matters cannot be applied to such a case to strike down the whole order of the President on the ground that one or more of the grounds which were considered by him when forming his opinion were not well founded or non­existent, while the remaining grounds, any of which could have been a good reason for the dissolution, were not individually or collectively good reasons on which he could have formed his opinion. It would amount to substituting the opinion of the Court for that of the President, which cannot be premitted. I would, therefore, hold that this preliminary objection has no merit and deserves to be rejected. 21. I would now first turn to the main ground given by the President for the dissolution of the National Assembly, namely, that the utility and efficacy of the National Assembly had been defeated by internal dissension and frictions and by failure to discharge substantive legislative functions, other than the adoption of j the Finance, Bill, and further that the National Assembly had lost the confidence j of the people. The learned Judges of the High Court came to the conclusion from [ the material brought on the record that the National Assembly had failed to carry f out any substantial legislative work, that during its twenty months' tenure, out of about fifty Bills and Ordinances, only fifteen could be passed by the Parliament and that cases, some of which were very important, like the Shariah Bill, could not 1 be processed and were allowed to lapse. The learned Judges also found that since the majority of the members of the Senate were members of the Combined Opposition, this prevented the Coalition Government to carry on legislative business, which fact had also been echoed by the then Attorney General in his press statement. The learned Judges also observed that the Pakistan Peoples Party had only two memBers in the Senate, that in the National Assembly the said Parly did not have a comfortable majority, that the Coalition Government had retained a hostile attitude against the Senate and that political confrontation with two of the federating units had made it practically impossible for it to carry out any legislative business, 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. 22. On behalf of Khawaja Tariq Rahim petititoner it is submitted that there were no internal dissensions and frictions within the Assembly, that dissent and healthy friction is a part of democracy, that no House could be dissolved on that account and if there was any friction, it was caused by the Combined Opposition Parties who were out to dislodge the Coalition Government at ail costs, whose members were benefited after the dissolution by being made Ministers in the caretaker Cabinets at the Centre and in the Provinces. It is further submitted that during the twenty months' rule of the Coalition Government, fifteen Acts were passed, including the Finance Acts, and that therefore substantive legislation was done. It is also contended that Parliament passed more laws in one year than in the three years of General Ziau! Haq's regime. The learned Attorney Genera! supports the findings of the High Court. He has referred to documentation fled by the Federal Government in support of his case. 23. The view formed by the learned Judges of the High Court is not without I substance. Oul of fifty Ordinances and Bills presented before the National Assembly, only fifteen could be passed by the Parliament. It appears that amongst fifteen- Acts that were passed during the Coalition regime, almost all were amendment Acts, whilst the finance legislation not having to be sent to the Senate under Article 73(1), directly came to the President for his assent. Irrespective of the question as to which of the two parties took up a hostile attitude against the other, the fact remains that open political confrontation and polarisation between the members of the Coalition Party and the Combined Opposition, which was manifest in the proceedings of both the National Assembly and the Senate, was such that it incapacitated the Coalition Government's ability to perform its primary function of legislation. Though the Pakistan Peoples Party was the single largest party at the Centre, it did not have an overall majority in the National Assembly. The Pakistan Peoples Party had its Governments in Sindh and North West Frontier Province, but not in the Punjab and Baluchistan. The confrontation between the Federal Government, on the one hand, and the two Provincial Governments of the Punjab and Baluchistan, on the other, continued unabated. The Senate was almost totally with the Combined Opposition. It remained and acted under strong political compulsions. It appears that on 6.12.1989, the President, whilst addressing the joint session of the Parliament, highlighted the problems and performance of the Parliament and the Government. In view of the ingrained polarised atmosphere, there appeared little hope for any change. Functional dislocation of the Constitutional machinery had set in. It was a basic situation leading to the breakdown of the Constitutional machinery and one having a direct nexus with Article 58(2) (b). If the President desired to take action to restore a healthier Government, by placing the matter in the hands of the electorate, so that they, as the Political Sovereign, could choose their elected representatives once again to constitute a stabler Government, the action was neither illegal nor unconstitutional. 24. This then brings into focus certain connected circumstances which are stated to have caused the breakdown, as is referred to by the President, namely, horse trading to win over members of the Assemblies and corruption, inducement, nepotism and measures taken to prevent defection and/or to win over members from the other side, in contravention of Constitution and law, which had assumed prominence. The learned Judges of the High Court found from the material on the record that these malpractices were prepetrated to win over the members of the Assemblies by inducement, that those that defected were ostensibly rewarded, that this exercise gave rise to corruption, horse trading and misuse of public funds running into crores of rupees and this posed a serious threat to the public interest and to the Coalition Government and that the national institutions began to crumble. The learned Judges also held that to foil the move of the Combined Opposition, the Coalition Government transported its members of the National Assembly to Swat, and that they were made hostage and not allowed to contact any other member of the Assembly, that they were brought to the House when the no confidence motion to be tabled against the Prime Minister was put to vote and that by this device the members were prevented to freely exercise their right of vote and the ruling party succeeded in frustrating the no confidence motion. The learned Judges also came to the conclusion that some of the members of the National Assembly, who were instrumental in the defeat of the no confidence motion against the Prime Minister, were immediatley thereafter rewarded by being appointed Ministers or Ministers of State and that some of these persons were earlier actually signatories to the no confidence motion. They also found that huge amounts from the Secret Serivce Fund had been disbursed to various Ministers during the days of the no confidence motion and during the days when the election of the Prime Minister of Azad Kashmir was held. 25. On behalf of the petitioner it is submitted that defection and winning over the members is a part of the normal democratic process, that those members who feel that the party with which they are aligned has deviated from its platform or has materially changed its programme, have the freedom to leave, that members of the opposite party are wooed to join their party on the basis of a better programme being offered by them in the national interest, that the Coalition Party did no more than permit such members as were willing to join them to do so, that it victimised none nor bribed any to join their fold, that the Secret Service Fund was not used to bribe members to join them, but for genuine national purposes, and that if there was any horse trading it was the present governemnt in power which had and is still indulging it flagrantly and has thereby won over its members. It is submitted that there was no misuse of money from Secret Service Fund, particularly in view of the affidavits furnished by the former Prime Minister, Ms. Benazir Bhutto, and her Adviser, Major General (Rtd.) Nasirullah Babar and others and the explanation offered by Major General (Rtd) Nasirullah Babar in the Chamber was sufficient to dispel all doubts. The learned Attorney General relies upon documents filed by the Federation in support of its case, more particularly about disbursement of Secret Service Fund and relies upon the findings recorded by the High Court. 26. Coming to the question of defection and horse trading, the position is not so easy as one would imagine. Defection means the change of party allegiance or loyalty by a legislator, i.e. leaving one political party and joining another. Where defections are few, they retain their character, as such; where they are large and en-bloc, they assume the character of a "split", i.e. a break of the party into two, the smaller being called "the splinter group" or by other catchy names. In view of the Parliamentary form of Government enshrined in the Pakistan Constitution, which is founded on a party system, it is essential that the right of dissent, as much as the freedom of speech, is preserved and protected for the stability and smooth functioning of the system, the right of freedom of speech of a member of Parliament is preserved and guaranteed by Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by Parliament, and of a Member of Provincial Assembly by Article 127 read with Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by the Provincial Assembly. In common with an ordinary citizen, a legislator has the right of freedom of speech and expression under Article 19, subject to the reasonable restrictions stated therein. The ordinary citizen cannot exercise the said right in the legislature, as it is forbidden to him by the rules of the legislature, whereas the legislator, by being elected thereto, acquires the right to enter it and to exercise the said right in the performance and discharge of his duties. The fundamental right of speech and expression of a legislator under Articles 66(1) and 127 is of no less a quality and effect as that of an ordinary citizen under Article 19; in fact it is specially tailored for his need and is qualitative and equally effective, if not greater. The freedom of speech entitles the legislator to vote according to his conscience and to express his views freely and openly on all important matters, other 1 than those on which there is a Constitutional bar. Any regimentation of or restriction on the exercise of this right by a Code of Conduct or law, would interfere with the performance of his duty, if not render him soulless and conscienceless. Where a legislator comes on a party ticket, he has a commitment to both his party and his electorate to abide by the policies articulated by his party and to also support that party. Between his duty to support the party and its policies, on the one hand, and to act rightly in the best interest of his electorate according to his conviction, on the other, he may be forced by the weight of conscience to oppose or not to vote on a measure, or to totally leave his party and join another. Upto what limit defection remains acceptable or assimilable with permissible political behaviour, or when it becomes unacceptable, is not easy to define. An independent candidate usually comes with no political programme, other than a claim to act rightly on all matters in the best interest of the nation and his constituency. A party candidate is restricted to his party's programme. But programme and policies keep changing with grouping. Thus, the independent member may not seriously face a charge of defection if he were to ally himself with a party, but the member coming on a party ticket would most assuredly find himself in breach of trust with his voters. And whilst all forms of defection must be abhorred as violative of the Islamic spirit that binds a man to his word, such transgression on the part of a legislator must be all the more looked down upon as a serious breach of the authority reposed in him by Allah to represent his a constituency on the basis of the sacred trust reposed by them in him. By defection he basically violates the very spirit of the teaching and requirements of Islam, under which he is ordained to act, and such an act can only be treated as a negation of the very spirit of the Constitution, which he is bound to preserve and protect. But one thing is certain, that when defection is used by a legislator to bargain for something outside his pure moral desire to change loyalty for another political party, "trading" sets in, and when he dictates onerous terms as a consideration for his defection, such as a heavy price, a high office or some handsome reward, it becomes "horse-trading" or "conscience vending", a highly pernicious, immoral and unethical act, which for the same reasons must be openly condemned. 27. Defections have become some form of standard practice and behaviour A3 among legislators. But this evil old practice has prevailed since democratic institutions were established in this country and since it has served the interests of the parties in power, no serious steps have ever been taken to eradicate it. Whilst any form of unethical defection or "horse-trading" requires to be condemned and I would say that there should be a Constitutional amendment to ban the same, but, in the absence of such a ban, the power to deal with defection or "horse-trading" should be left with Parliament itself, as it deals with violation of Parliamentary practice and etiquette and breach of behaviour on the part of its members, and if there is a law in that behalf, the matter should be left with the bodies designed for that purpose. By a side wind, these somewhat pernicious, though fraternal, departures from ethical behaviour and conduct, should not be permitted to destroy the fate of all the members of a legislative body, for the mistake of a few. Parliamentary practices need to be strengthened; rather than the legislatures be crucified for the mistake of a few Judases. 28. But then the question again arises, whether this pernicious evil has contributed to the failure of the Constitutional machinery. As stated ealier, the Coalition Government was somewhat peculiarly placed in view of the open confrontation existing between itself and the Combined Opposition and attempts made by both to dislodge each other contributed to defection and "horse-trading" on an uninterrupted scale with each side trying to grab members of the other and offering Ministerial or other posts and rewards in the Centre or in the Provinces to some of the defectees. The grant of high offices, such as of Ministers, Ministers of State, etc., to members of the Opposition camp showed that they were for reward. No Parliamentary practice permits defection or "horse-trading". The evil |AC is manifest where tenuous coalitions are in the seat of power. To maintain power, defections from the opposition parties are sought against high rewards and offer of Ministerships. Likewise, the same practice is adopted by the opposition to break the ruling coalition. The adoption of this evil practice only lays bare the position of a coalition party that its functional ability to rule, through the numerical strength of its members, is vulnerable, and that if the opponents were to succeed by the same practice, they would be out of power. This ground can reasonably by treated as reflective of serious functional dislocation of a coalition governemnt, and since this is a basic situation for which an assembly can be dissolved, as slated in para 19 above, this ground I would treat as justifying the opinion which the President did come by to justify dissolution. 29. As regards the abduction of the members, it appears no objections were filed by the abducted members for violation of their privileges before the Privileges Committee, nor any action was filed with the Courts. If they wanted to oblige the Leader of the House to be protected from being abducted by or coerced into joining the Opposition, their action cannot be considered as giving rise to any cause of action in favour of the other. 30. the material placed on the record shows that excessive amounts were withdrawan from Secret Service Fund at about the time the no confidence motion as moved against the Prime Minister and the election to the Legislative Assembly of the Azad Jammu and Kashmir Government was to be held. Disbursements from Secret Service Fund are matters of high confidence, to be kept secret and not to be made public. To open up any chapter thereof in Court proceedings is fraught with the gravest danger to the State. Action for misuse or defalcation of such funds should be before a Committee specially constituted by Parliament for this purpose, or before a Tribunal constituted for this specific purpose by law, whose proceedings are held in the strictest secrecy. The Prime Minister or any Minister utilising such fund is bound by his or her oath of secrecy not to divulge the nature of its use or appropriation. If the uses were disclosed, it could lead to disaster; and whether they were true or false, how could they be verified. It is stated that the certificates of the Prime Minister that they had been spent on good causes in the best interest of the Government, was all that was required. In this view of the matter, to call for an open disclosure in Court would be a serious departure from correct practice, one against the public interest and that which this Court should not approve. For this Court in Constitutional proceedings relating to a dissolution matter to inquire into this matter, would be derogatory to the honour of the Parliament and almost interfering in their internal working. It is also claimed that the misuse of such high amounts near the period of the no confidence motion and the election to the Azad Jammu and Kashmir Legislative Assembly, lead to the strong inference that they were wholly or in a material measure used to win over opposition members to their fold or to hold on to their defecting members. It is also urged that certain Presidential References have also been filed against certain members of Parliament for misappropriation of such Secret Service Funds. Since I do not consider that this is a matter which should be an open subject for Courts and this matter is sub judice beforfe Special Courts set up to try such cases and references relating to misappropriation of Secret Service Funds is only confined to not more than half a dozen parliamentarians, I do not think this matter was one which led or contributed to or was the cause of the breakdown. I would therefore hold that this matter did not give the President a firm basis to form an opinion regarding the breakdown of Constitutional mechinery. 31.1 now turn to two other reasons given by the President for the dissolution of the National Assembly, namely, that the Council of Common Interests had not been allowed to discharge its Constitutional functions and to exercise its powers despite the persistent demands of the Provinces and that the National Finance Commission had never been called to meet and allowed to function, thus blocking important Constitutional bodies from performing their functions. In this respect the learned Judges of the High Court found, on the basis of the material placed on the record, that it appeared that the Federal Government, despite repeated demands by three out of the four federating units and the unanimous resolution of the Senate, had failed to call the meeting of the Council, that the correspondence exchanged between the Chief Ministers, the Prime Minister and the President indicated that there were several subjects which required resolution by the Council, that the failure to call the Council's meeting put off the settlement of the major disputes, that the reason for not calling the Council's meeting was that in case any of the issues remained unresolved in the Council, the matter would have had to be referred to the joint session of the Parliament, that since the Federal Government lacked majority there it might have faced humiliation, that the stalemate resulted in polarisation and confrontation, that the Provinces of the Punjab and Baluchistan having no way out had to institute suits against the Federal Government in the Supreme Court calling for the Council's meeting and that though the President had expressed his concern over the confrontation and political deadlock and had advised the Prime Minister to redress the grievances of the Governments of the federating units, the same was not done. The learned Judges also found on the basis of the material on the record, that the National Finance Commission was formed after a great delay on 25.7.1990, i.e. a day before the last day of its formation under the Constitution, which delay had resulted in not a single meeting of the Commission being convened throughout the tenure of the Federal Government, that the accords which could have resulted from its meetings stood aborted and that the non-summoning of the said Commission gave rise to political confrontation between the Federation and the Provincial Governments, which endangered the solidarity of the country, 32. In this respect the learned counsel for the petitioner submits that the meeting of the Council of Common Interests could not be called due to political reasons, as it would only have further exacerbated political polarisation and that the Prime Minister had replied to the President to state that the meeting would be called and convened at some opportune time. It is further submitted that since a remedy lay with the Provinces to have their disputes resolved by the Supreme Court under the Constitution and two of the Provinces had so moved the Supreme Court, which also made the matter sub judice, the question of the President having to dissolve the Assembly for the non-convening of the meeting of the Council did not'arise. As regards the National Finance Commission, it is submitted that though it had been constituted in the past in 1974, 1979 and 1985, it had only once met and given iits award in 1975,which was also on an adhoc interim basis. It is submitted that in the past when no meetings of the said Commission were held, even though the Federal Government was strongly in the saddle, no breakdown of the Constitutional machinery had occurred and how it could be said that the same now had led to any breakdown. It is further submitted that the Commission was constituted in May, 1990, and when the meeting was to be convened, the Assembly was dissolved. It is asserted that in July, 1989, a summary of the names was put up for appointment, but delay occurred due to differences over the names, but in any case it was constituted on 27.5,1990, but before it could hold a meeting, the National Assembly was dissolved. The learned Attorney General supports the findings of the High Court with the material filed by it with its written statement. 33. The failure on tee part of Government to allow the Council of Common Interests to function and exercise its powers, or failure on its part to allow the National Finance Commission to function, would lay it open to the charge of not fulfilling its Constitutional duties, as provided in the Constitution. These are two institutional bodies created by the Constitution and like the three great organs of the State i.e. the Legislature, the Executive and the Judiciary, require to be specifically preserved, protected and kept functional. The duty of every government therefore to preserve, protect and maintain its Constitutional institutions healthy and functional, must he treated as its highest priority. Whether by keeping the Council or the Commission non-functional, a breakdown of the Constitutional machinery can be said to arise, or it could lead to such a situation, would depend upon the facts of each case. A Government having a strong majority may be able to sort out all disputed matters itself, without allowing the Council or Commission of function, or even in the face of disputes may not allow the Council or Commission to function and get away with it. In such a case, heaven would not fall and the Constitutional machinery would not breakdown. A goverment not having a strong majority may feel helpless in convening a meeting of such a Council or Commission to function, lest it may exacerbate an otherwise difficult situation, or create more disharmony, or weaken its own political position, in which case - as a matter of political strategy - it could leave the Province to move'the Supreme Court, where it could join issue to resolve the matter and prevent disharmony or its own defeat. In fact the Provnces should have swiftly moved the Supreme Court to get judgment under Article 184(2), rather than waste their time with the Federation when they knew nothing useful was expected to come out of their parleys. In the instant case, being on a somewhat weak wicket, the Coalition Government did not allow the Council of Common Interests to fucntion and also dragged its feet in constituting the Commission. The aggrieved Provinces could have moved the Supreme Court swiftly, but they also dragged their feet to take political advantage of the polarised confrontation. It is an unfortunate case of both the opposing parties being in pan. delicto. However, two of the Provinces moved the Supreme Court but somewhat late. Nevertheless, the extreme polarisation and political confrontation existing between both the parlies on almost every issue, could not totally relieve the Coalition Government from complying with the provisions of the Constitution. In this background, I would hold that there were strong compulsions on the Coalition Government to call the meetings. The failure of the Coalition Government therefore to allow the Council of Common Interests to discharge its functions and exercise its powers and to call a meeting of the National Finance Commission, created extreme bitterness and political deadlock between the Federation and the Provinces, contributing to a breakdown in the functional working of the Federal Government. In these circumstances, I would hold that the said matters did constitute proper grounds which the President could have taken into consideration when forming his opinion and that they had a nexus with the breakdown of the Constitutional machinery. 34.1 may now deal with the Sindh situation. The learned Judges of the High Court, on the basis of the material on the record, found that the Sindh Government did not take adequate measures to secure law and order in Sindh, as a result of which dacoities, murders and kidnappings for ransom continued unabated, that the matter had gone outside the control of the Sindh Government; that the Pucca Qila operation had virtually destroyed the law and order situation in Sindh, that under Article 148 of the Constitution the Federal Government was under a legal obligation lo protect that Province from internal disturbances, that both the President and the Attorney General had advised the Federal Government that the Army be given power under Article 245 of the Constitution to deal effectively with the situation, that the President in his letter dated 28.5.1990 addressed lo the Prime Minister had also expressed serious concern over the massacres in Karachi and Hyderabad on 27.5.1990 and involvement of the Provincial Administration therein, that the Federal Government dragged its feet and failed to give powers to the armed forced to combat the law and order situation and thus failed to perform its Constitutional duty to protect the population of Sindh from internal disturbances and breakdown of law and order. The learned Judges also found that since the threat to law and order was so grave and Provincial machinery was not able to cope with the matter, it had become imperative for the Federal Government to have intervened to preserve the integrity and solidarity of the country and that its failure was culpable. 35. On behalf of the petitioner it is submitted that every conceivable step was taken by the Sindh Government, where the Paksitan Peoples Party was in power, to maintain law and order, that even the Army and other para-military forces had been deployed in this respect, that bunkers were set up, patrolling was resorted to and aurfew in local areas was imposed to assist the Army in their activities, that the Sindh Government desired to secure the assistance of the armed forces for the maintenance of law and order by desiring to renew the Ordinance promulgating Section 131-A in the Code of Criminal Procedure - the earlier Central Ordinance, XV of 1988, promulgating that section having lapsed - but the President would not pass the same, but wanted enforcement of Article 245 and that since the said Article envisaged setting up of Military Courts by the Army, whose orders would have been outside the pale of judicial review, it did not permit the Army taking over under the said Article, but it utilised the Army and para-military forces for maintenance of law and order. It is urged that the breakdown of law and order in a Province being a provincial subject did not invite action under Article 58(2)(b) and application of this provision to such like cases had not been accepted by the High Court earlier in Kliawaja Muhammad Sharif s case (PLD 1988 Lah 725) or by the Supreme Court in Haji Saifullah's case (PLJ 1989 S.C. 170). It is also stated that even now the Sindh situtalion is graver than before, that the Army has not been deployed under Article 245 and the Governemnt has not been dissolved on that account. The learned Attorney General has referred to the various documents on the record to support the findings of the High Court, which findings also constitute his arguments. 36. The question here is not that the Army was not called. It is the case of the Federal Government that it should have been called under Article 245 of the Constitution and given a totally free hand to deal with the matter. It is the case of the deposed government that it did not want to invite the setting up of Martial Law Courts once again, after their last eight years presence, which had brought great misery to the country, and therefore their services and that of other para­ military forces were utilised to render such assistance as was required to maintain law and order outside the scope of that Article, so that all Court proceedings could be subject to judicial review. It is not the case of the Federal Government that the Army or other para-military forces were utilised on a rigged or partisan basis or that the Sindh Government was using its machinery in a partisan manner to let off law breakers belonging to its political partners or clamping down on those belonging to its opponents. In the absence of such material, to hold that the Army should have been called under Article 245 of the Constitution, would be a debatable issue. In these circumstances, I do not think that the Sindh situation gave to the President any valid basis to form an opinion to dissolve the National Assembly. 37. It is further urged that the Senate and the Superior Judiciary were insulted and their status demeaned, that plots of land were allotted to members of the National Assembly to secure their loyalties, that Air Force planes were used for political purposes, that corruption, favouritism and nepotism were rampant, that telephones were tapped in violation of the fundamental rights of the members of Parliament, that public funds were being misused and loans were being disbursed flagrantly by way of'favours, that persons were being inducted into the Services and otherwise favoured in violation of statutory rules and regulations and established practices and that the Peoples Programme was being administered contrary to Constitutional requirement, ail of which constituted good grounds on which the President could have formed a valid opinion that there was a breakdown of the Constitutional machinery. 38. So far as allotment of plots, tapping of telephones, the use of Air Force and civil aviation planes for political purposes, general corruption, favouritism and nepotism, misuse of public funds and disbursement of loans by way of favouritism are concerned, all these are perennial problems that have continuously faced the Federal and Provincial Governments in both this country and in India. Though none can be justified and all deserve to be severely condemned, they cannot be permitted to justify dissolution of legislatures, for otherwise it would be conferring on the President and the Governors sweeping powers, almost creating some form of Constitutional autocracy. These matters deserve to be dealt with by Parliament and the Provincial Assemblies themselves, through Ethics Committees, specially constituted to prevent and weed out these malapractices. Further, they can be dealt with and rectified by law, appropriately framed in that behalf and by public opinion; more so by self-imposed discipline, awareness to the rule of law and the will to abide by and maintain and support ethical practices. 39. The Federal and Provincial Services are Constitutionally protected and recognised. Like the other Constitutional institutions and bodies, the great bureacracy, i.e., the Services, have an institutional status. All Constitutional institutions and bodies require to be specifically preserved, protected and functionally maintained for good government and integrity of the State. But the Services have over the years been subjected to manifold illegal interference by the administration itself, either acting under legislative will or extra-legal interference from the elected representatives. In short, it has been corrupted and violated by a section of those it has sought to serve or who are directly responsible for its preservation and protection, and whlist this process has continued over the years, no breakdown of the Constitutional machinery has occurred placing any ruling Government vulnerable to dismissal. The answer to such rampage and pillage is with the Services itself, which should collectively take a stand against this rot aiicl compel the Government through lawful and legal channels to refrain from illegally interfering with their legal structure and working , other than through legal means. Recourse to the Services Tribunals can be availed in this respect to seek redress. They should move the Government to arm the Services Tribunals with effective power so that they can issue interim orders to check such illegal interferences and power to effectively secure execution and compliance of their orders. Recourse to Article 184(3) of the Constitution can also be availed. Larger groups can move the legal mchinery by filing representative petitions. Article 184(3.) permits the Supreme Court in a proper case to look into the matter within the compass of "Public interest litigation". Thus, whilst emphatically asserting that all forms of extra-legal interference with the Services cannot be justified and must be unequivocally condemned, I would hold that they cannot be permitted to justify dissolution of legislatures and the remedy to this matter lies elsewhere. 40. As regards demeaning the status of the Senate and the Superior Judiciary or the integrity of its members, the position is no different. It is not the first time that those at the helm of power have demeaned the status of Parliament or the Superior Judiciary or its members. Irresponsible uncalled-for actions or remarks only betray lack of caution. They only show that those that are expected to operate at superior levels of grace, sometimes fail to exhibit balance and restraint so very much needed of them in respect of certain sensitive matters and subjects. The institutions they seek to malign do not fall by their utterances, though they suffer in reputation and status. It only goes to the credit of the Senate and the Superior Judiciary that they ignored the matter in keeping with their dignity and grace. Again, such actions and remarks do not justify the dissolution of the legislatures. The remedy is with the voters whether to support or avoid such a candidate.lies in the field of ihe electorate, must be reserved to them. Such power must not be usurped by others. 41. The Peoples Programme is again one on which the Federal Government and the Provinces had some dispute. The Federal Government felt justified in appropriating the funds itself, in view of Item 25 of the Concurrent Legislative List, whilst the Provinces insisted that they be permitted to appropriate them, in keeping with the spirit of Article 97 of the Constitution. Any aggrieved party could have moved the Supreme Court. In either case, it would be appropriation of funds by the Federal Government under Item 25 of the Concurrent Legislative List without legislative approval, or appropriation of funds in violation of Article 97, and since this violation did give the aggrieved Province the right to move the Supreme Court under Article 184(1), this matter also did not give the President a valid basis to dissolve the Assembly. Where the Constitution provides an appropriate remedy, one would expect the aggrieved party to avail the same, rather than pursue the discord and cause a breakdown of the Constitutional machinery. 42. From the above, it would appear that after the 1988 elections, the Pakistan Peoples Party appeared as the single largest party at the Centre, that it did not have an overall majority in the National Assembly, that it formed a Coalition Government and secured a majority in the National Assembly but had little support in the Senate, that it had its Governments in Sindh and North West Frontier Provinces, but not in the Punjab and Baluchistan, that open political confrontation and polarisation beset it from the very beginning and continued unabated, that it could not get working support from the Combined Opposition and therefore could not carry the opposition with it, that in this climate of stalemate its ability to legislate became highly impaired and it was not inter alia able to legislate freely or to allow the Council of Common Interests and the National Finance Commission to discharge its functions and exercise its powers, thus further exacerbating an otherwise difficult situation, that both sides continued "horse-trading" unabated so as to grab each other's members to defeat the other, but it cannot be stated with certainty which person was offered what monetary reward, though-high parliamentary offices, etc., were offered to some of the defectees, which constituted high rewards, and that all these facts clearly showed that partial dislocation of the Constitutional machinery had set in and breakdown was imminent, which justified the President in taking the step, which he did, to call upon the electorate to re-elect the National Assembly to remove the stalemate.The fact that the President took into consideration other matters which had no direct nexus with the breakdown or were peripheral, but which were placed before him and may have prompted him to form his opinion, does not vitiate the Order passed. At best they gave him further strength to form the opinion that the Federal Government could not be carried on in accordance with the Constitution, which otherwise he could also have formed on the material above stated, which had nexus with the requirements of the Constitution. 43. Before conclusion, a few matters call for consideration, which I would like to touch. First: The running of any Parliamentary system of Cabinet Government calls for some sophistication. The elected representatives are required to be dedicated persons, having moral consciousness, legal awareness, commitment to democracy, and an abidng faith to run the Government in accordance with the Constitution and the law. They should be above greed or lust for power, and refrain from violating democratic norms and constitutional provisions. And above all, there should be an elite force of mature parliamentarians, rich in experience, holding the higher position, to set the pace and provide guidance to others, including those that constitute the second line of succession. Second: Without accountability at all levels, no headway can be made and any system of Government would meet failure. Till we have sorted this out, no success can be achieved with a Parliamentary system of Government. The setting up of a Parliamentary Ombudsman or Ethics Committee to Ensure Parliamentary Accountability, to watch and control the personal actions of and exercise of official and Constitutional functions by the elected representatives and take action against them , where necessary, by secret ballot, would set the pace for clean politics and orderly parliamentary working. Selective accountability is a negation of democracy, as it can only lead to further political polarisation and revenge and impair the democratic process. Tliird: The provisions regrding the constitution of the Senate require examination. A Coalition Government having a fair majority in the National Assembly and a poor representation in the Senate, would be beset with problems from the very beginning, making it almost impossible to run the Government. The Senate, being composed of members elected earlier, would not represent totally the will of the electorate, as expressed in the last election bringing in the members of the National Assembly. In short, the will of the people would be subservient to a body having an earlier mandate. What should be done to remedy this situation, is for the elected repcresentatives to consider. Fourth: The maximum time provided by the Constitution for holding the general elections after the dissolution of the National Assembly has been announced is nienty days. This does not provide sufficient time for the Superior Courts through two tiers lo give a decision on the validity or otherwise of the dissolution order, should a writ petition be filed to challenge it. Invariably the general election will have taken place before the case has commenced or been finally decided, making the pfoceeidngs academic, if not an exercise in futility. Whether this time should be sufficiently enlarged to enable the High Court and then the Supreme Court to examine the case, whether the time for holding the general election should be allowed to be calculated from the date the final order has been passed, or whether the Supreme Court alone should be invested with the duty to decide such cases within the time presently provided, requires examination. AND FIFTH AND LAST. What concerns ourselves must be last served. In view of the Constitutional background of this country, interspersed as it is with abrogations, suspensions, abeyances and amendments made to our Constitution by individuals who have had no Constitutional authority to do so, which successive Parliaments have ratified under political manoeuvring and compulsion, the public looks up to this Court to put every provision of the Constitution in its proper place, to hold that an aberration is an aberration, to set aside all amendments made or ratified by Parliament under the rule or pressure of military dictators and to bring back the Constitution to its original prestine glory as it stood before such violations to its body context took place at the hands of such persons. It is almost assumed that this Court is about the only effective body left to strike down all such amendments. The argument sounds attractive, but it must not be forgotten that appeals against various judgments of the High Court upholding the Eighth Amendment are still pending befroe us and whilst reserving the right of this Court to express itself at the proper moment, one cannot help but observe that a Government duly elected by the people is in the saddle now and the legislature, operating in its reserved field, has the means and the ability to strike down all such amendments it considers as violating the Parliamentary character of the Constitution and can strike down all such amendments it considers unauthorised or appropriate for removal. 44. This petition was argued extensively at length for three days duing which important Constitutional and legal questions arising out of the impugned judgment were thrashed out in great detail, at the conclusion of which, the decision of the Full Court refusing leave was announced in open Court. Speaking for myself, I have not been able to forgive myself for being caught off guard, for I should have asked for the conversion of this petition into appeal and its dismissal, as such. 1 mention this, as questions of great national importance touching the interpretation of the Constitution having been argued and the same having been dealt with by a number of members of this Court, we leave bahind no decisive judgment, but one dismissing the petition in limine and more confusion to confound everyone. 45. For the foregoing reasons, the judgment of the Lahore High Court is not open to interference and I agree that no case for leave is made out and this petition be dismissed. Sajjad Ali Shah, J,-Vide short order passed on 4.11.1991, leave to appeal was refused and in the result petition was dismissed, to which I had agreed mainly for the reason that National Assembly of Pakistan dissolved by the order of President of Pakistan passed on 6th August, 1990, under Article 58(2)(b) of the Cosntitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution) could not be restored for reasons to be stated later. In substance I was and am of the view that order of dissolution of National Assembly passed by the President of Pakistan and mentioned above is bereft of legal justification and is not sustainable under the provisions of the Constitution and law. I have had the privilege and advantage of reading well considered and elaborate draft judgments of my learned brothers Shafiur Rahman and Abdul Shakurul Salam, JJ. which are in conflict with each other on the question of validity of order of dissolution. With utmost respect I say that I am unable to subscribe to the view taken by my learned brother Shafiur Rahman, J. I agree with the line of reasoning and main conclusions drawn by my learned brother Abdul Shakurul Salam, J. except observation that Article 58(2)(b) pertained to late President and need not be stretched further. However, on irresistable implulse, I give reasons, in support of the conclusions, in my own matter-of-factly way. 2. Our Constitution, in letter and spirit, contemplates and provides for parliamentary form of governemnt. In this context, for the purpose of present controversy, two Articles are important and relevant to be spotlighted. Article 48 requires that President shall act in accordance with the advice of the Cabinet or the Prime Minister. Clause (2) of this Article makes it clear that notwithstanding anything contained in Clause i.li as stated above, the President shall act in his discretion in respect of an\ matter in respect of which he is empowered by the Constitution to do so. Another Article is 58 and under clause (1) thereof, the President is empowered to dissolve the National Assembly if so advised by the Prime Minister. Under clause (2), the President is empowered to dissolve National Assembly, in his discretion, notwithstanding anything contained in clause (2) of Article 48, if he is of opinion as under:-- (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 Coqstitution 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. 3. Acting under Article 58(2) (b) of the Constitution, on 6th August, 1990 the President of Pakistan, by an order which was duly gazetted, dissolved the National Assembly and the first paragraph of the said order is reproduced as under:-- "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. 4. In the order of the President, after paragraph reproduced above, grounds have been enumerated on which action was taken and those grounds would be taken up one by one in this judgment subsequently at an appropriate place with comment and discussion thereupon. For the time being I restrict myself to the discussion of legal aspect of the matter. Some question with regard to the powers of the President to dissolve National Assembly in the light of Articles 58 and 48 of the Constitution came up for detailed examination in the case of Federation of Pakistan .and others v. Haji Muhammad Saifullah Klian and others reported in PLJ 1989 SC 170 and was decided by Full Bench comprising 12 judges. Relevant paragraphs from the report are reporduced as under:-- "Thus the intention of the law-makers, as evidenced from their speeches and the terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution. True enough, it is within the discretion of the President to determine whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of the Constitutional provision. "According to his discretion", as explained, relying on Maxwell, in M. Abdul Majid v. Tlie West Pakistan Province and two others (PLD 1956 Lah. 615). means: "According to the rules of reason and justice, not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be and for substantial reasons and it must be exercised within the limits to which an honest man competent in the discharge of his office ought to confine himself i.e. within the limits and for the objects intended by the Legislature". The discretion conferred by Article 58(2)(fo) of the Constitution on the President cannot, therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one in the sense that it is circumscribed by th^ object <&f the law that confers it. "It must further be noted that the reading of the provisions of Articles 48(2) and 58(2) shows that 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)(/>) has arisen which necessitates the grave step of dissolving the National Assembly". 5. Quote reproduced above has been culled out from the leading judgment authored by Dr. Nasim Hasan Shah, J. which clearly shows and lays down scope and authority of the powers of the President in respect of dissolution of Assembly. There is no dispute or doubt about the fact that Constitution does empower the President to dissolve the Assembly but before doing so he has to form the opinion, objectively that a situation has arisen of the kind envisaged in Article 58 (2)(b), necessitating and justifying taking of grave step of dissolving of National Assembly. On the same point, while analysing language of Article 58(2)(b) of the Constitution, where mention is made of "a situation has arisen " Shafiur Rahman, J. writing his separate note at page 212 of the report, has made a very pertinent and enlightening observation which is reproduced as under:- "The expression 'cannot be carried on" sandwiched as it 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." 6. In the light of legal position with regard to powers of the President enshrined in the Constitution in connection with dissolution of the National Assembly as enunciated in the case of Saifullah Khan, supra, I proceed to examine the grounds relied upon for dissolution of National Assembly with material purporting to be in support thereof but before so doing I would like to mention a few factors which are quint-essential 1'or objective assessment. 7. Firstly, that history of our Constitution making does not make happy reading and is indicative of double mindedness between Parliament form of government and Presidential form of government. After partition of the sub­ continent in 1947, for the first time Constitution was produced in 1956 allowing Parliamentary form of government, which was abrogated in 1958 when Martial Law was declared by General Ayub Khan, who was Commander-in-Chief of Pakistan Army. He abhorred parliamentary form of government as according to him people were not then ready for fulfledged democarcy so he invented a system of basic democracy to suit the genius of the people at grass-root level and that political system envisaged Presidential system in which on the basis of adult franchise people elected electoral college of basic democrats who in turn elected members of the Assemblies and the President. President Ayub Khan also gave the country Constitution enacted by him in the year 1962 permitting presidential form of government. 8. In 1969, there was political turmoil, people came out in the streets and President Ayub Khan instead of handing over powers to he Speaker as contemplated in the Constitution given by him called upon General Yahya Khan, Commander-in-Chief of Pakistan Army to perform his constitutional role, who abrogated the Constitution, imposed Martial Law, broke-up One Unit (Province of West Pakistan) and restored original four provinces of Punjab, Sindh, Frontier and Baluchistan and held general elections in the country on the basis of adult franchise. In the result of the elections Awami Party of Mujeebur Rahman secured majority in East Pakistan and Pakistan Peoples Party in West Pakistan. There was political unrest in East Pakistan and in that connection military action was taken which culminated in war between India and Pakistan. Ultimately East Pakistan declared independence and became Bengladesh. In West Pakistan Peoples Party came in power and in 1972 gave to the country interim Constitution followed by permanent Constitution in 1973 with maximum emphasis on parliamentary form of government to such an extent that a provision was inserted in the Constitution to provide that every order passed by the President on the advice of the Prime Minister would be effective and valid only when it was counter-signed by the Prime Minister once again. Constitution of 1973 at the centre provided for bicameral legislature of National Assembly and Senate, while members of the National Assembly were to be elected directly by the people, members of the Senate were to be elected indirectly on proportional representation basis by electoral college of members of the Provincial Assembly. Constitution provided for dissolution of National Assembly but no such provision exists for dissolution of Senate. 9. On 5th July 1977 General Muhammad Ziaul Haq, Chief of Army Staff imposed Martial Law and held in abeyance Constitution. He did not abrogate the Constitution may be for the reason that it was passed with the consensus of all the political parties which were elected and represented in the National Assembly and controvertial question of provincial autonomy had been finally decided and incorporated in the Constitution. His action of toppling civilian government and imposition of Martial Law was challenged in the Supreme Court in the case of Beguni Nusrat Bhutto vs. Chief of'Army Staff (PLD 1977 Supreme Court 657) and was gjven cover of validation on the basis of doctrine of necessity subjecting all the laws and orders passed by Martial Law regime to judicial review. He was allowed to continue till holding of general elections as promised by him in his speech to the nation after seizure of power. He avoided holding general elections. 10. Supreme Court of Pakistan had allowed General Ziaul Haq to amend the Constitution and he held the post of President and C.M.L.A. exercising powers of the Prime Minister and the President. He held elections of local bodies on nonparty basis and also elections in 1985 On non-party basis of Provincial Assemblies and National Assembly. Since political parties were banned or de-activised individuals contested the elections and in the National Assembly subsequently Mr. Muhammad Khan Junejo was nominated by the President as Prime Minister. It would be pertinent to mention here that President Ziaul Haq was not happy about excessive powers of the Prime Minister in the Constitution and had expressed himself strongly against it on several occasions. Elected representatives in the Assemblies insisted for removal of Martial Law and in the process bargain was struck which manifested itself in the shape of 8th amendment which was made in the Constitution. This amendment validated Martial Law orders and regulations and tilted in favour of giving more powers to the President than Prime Minister resulting into a situation in which now President, who is not directly elected, is competent to dissolve the National Assembly and dismiss the government of the Prime Minister who is directly elected by the people. 11. I would not like to make any further comment with regard to 8 th amendment vis-a-vis Parliamentary form of government for the reason that the matter is sub-judice and appeal in this respect is pending in the Supreme Court awaiting final disposal. History of our Constitution stated above is to be kept in view while making objective assessment of the grounds and material in support thereof on the basis ol which order of dissolution had been passed. In the case of Federation of Pakistan vs Saifitllali Kltan referred in the above paragraphs of the judgment, Supreme Court had gone deep into the question of debates in the National Assembly and speeches made by the Prime Minister and the Law Minister in order to ascertain the intention of the legislators on the amendment made in Article 58(2)(b) of the Constitution, to come to the conclusion, as it did, to the effect that discretion conferred by Article 58(2) (b) of the Constitution, on the President cannot, therefore, be regarded to be an absolute one but is to be deemed to be qualified one, in the sense that it is circumscribed by the object of law that confers it. If the action is violative of the Constitution then superior Courts have inherent duty to ascertain and enforce the provisions of the Constitution. (See also Fazlul Quader Chowdlvy and others v. Muhammad Abdul Haque (PLD 1963 SC 486 at page 504). 12. Another factor to be considered is that now a days there is a general trend which encourages superior Courts in the advanced countries of the world to indulge in judicial activism in order to do effective justice liberally. Our Constitution under Article 187 permits Supreme Court of Pakistan to do complete justice. In the light of factors mentioned above, considering also history of our Constitution making as mentioned above, I now turn to the grounds mentioned in support of order of dissolution. ' 13. In the dissolution order mentioned above five main grounds are mentioned as (a), (b), (c), (d) and (e). Ground (a) is reproduced as under:- "(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." 14. In the Lahore High Court after dissolution order was challenged in the constitutional petition filed by Khawaja Tariq Rahim, respondent No.l Federation of Pakistan, filed written statement in which stand was taken that President had applied his mind and had given reasons, adequacy or sufficiency of which is not justiciable. In support of ground (a) as reproduced above, it was mentioned that there was continuous change of loyalties and horse-trading among members of National Assembly in violation of law. It was so done by the Federal Government of that time by offering bribes granting pecuniary benefits and bestowing offices of Government on members elected on I.J.I, tickets and independents. It was mentioned that in October and November, 1989, no-confidence motion was moved against the then Prime Minister, which did not succeed on account of tactics of the Government mentioned above. Specific allegation was made that 86 members of the National Assembly were transported to Sawat and other places in Northern areas, hence were prevented from exercising their right of vote in the no-confidence motion. C-130 aircarfts of Pakistan Air Force and also Aircrafts of Pakistan International Airlines were used for that purpose in violation of rules. Loyalties of three MNAs namely, Mr. Ghulam Muhammad Manika, Mr. Makhdoom Anwar Alam and Rai Shabbir were purchased and they were made Ministers and abstained from voting against the Prime Minister. 15. Horse-trading is a term popularly used in respect of crossing of floor by the member of the Assembly,- who changes his loyalty and switches over to the other party. There is specific and categorical allegation of horse-trading in ground (a) ofj dissolution order alongwith other allegations, which are all held collectively to be against Constitution and the law resulting into loss of confidence of the people in the National Assembly. So far legal aspect of allegation of horse-trading is concerned, it can be said that Political Parties Act was framed in 1962 and its Section 8(2) contemplated disqualification for a member of Assembly for the unexpired period of his term, who contested and succeeded on a ticket of political party and then withdrew from it, leaving it open to contest again. Upon advent and promulgation of Martial Law in 1977 and thereafter, Section 8 of Political Parties Act was amended repeatedly to enlarge the scope of disqualification to rope in and adversely affect as many as possible elected members of a political party from which power was seized. Vide Act No.XXII of 1985 dated 24.12.1985, sub-section (B) was inserted in Section 8 providing for disqualification on the ground of defection which is reproduced as under:-- "8-B Disqualification on ground of defection etc.- (1) If a member of a House.-- (a) having been elected as such as a candidate or nominee of a political party, or (b) having been elected as such otherwise than a candidate or nominee of a political party and having become a member of a political party after such election; defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member unless he has been re-elected at a bye-election held after his disqualification. (2) If any question arises whether a member of a House has become disqualified under sub-section (1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the Election Commission. (3) An appeal against a decision of the Election Commission under sub­ section (2) shall lie to the Supreme Court, within thirty days of the decision". 16. It is very clear from the perusal of the provision reproduced above that firstly the member would be disqualified only when he defects or withdraws himself from the political party of which he is a member and secondly, question is to be referred by the leader of parliamentary party to the Election Commission and thirdly, the question is to be decided by Election Commission and against its decision an appeal lies in the Supreme Court. In view of legal position enunciated above, members who crossed the floor, did not come within the mischief of violation for the reason that they continued remaining members of their political parties and did not defect or withdraw from their parties, hence no action could be taken against them for violation of any provisions of Political Parties Act. On 6.8.1990 dissolution order was passed and on 22.10.1990, Political Parties (Amendment) Ordinance X of 1990, was promulgated by which Section 8-B was amended to provide that a member of a House shall be deemed to defect a political party if he votes or abstains from voting contrary to any direction issued by the disciplinary committee of the Parliamentary Party to which he belongs. It further provides that political party also includes an alliance or combination of two or more parties which participate in an election under a common symbol. This amending Ordinance became extinct because it was not converted into Act of Parliament. 17. Now when at the time when dissolution order was passed, no action could be taken against the members, who crossed the floor and voted or not voted against the interest of their own party under the law which was in force then it could not be made a ground for dissolution of National Assembly. If horse-trading was not caught within the mischief of law before dissolution order was passed and was considered morally wrong, then judicial notice can be taken to the effect that same horse-trading continues now but is being officially ignored. 18. Main grievance spot-lighted in ground (a) in support of order of dissolution is horse-trading which has been dealt with in view of provisions of relevant law on the subject. Other allegations are co-related with the main allegation of horse-trading and are to the effect that indulgence was made for political gain and in furtherance of personal interest, corrupt practices and inducement were made use of, which have been held to be in contravention of Constitution and lav. In this respect, stand is taken on behalf of the petitioner before us that action should have been taken in respect of lapses mentioned above, if they were in contravention of law instead of dissolving National Assembly on that ground. Similarly, allegation that Government of Peoples Party was not able to discharge substantial legislative functions except adoption of finance bill, is vague in nature and that ground in itself is insufficient to dissolve National Assembly as it was not shown that any contravention was made of constitutional provision which requires that a particular minimum number of bills and laws is to be passed within stipulated time by the National Assembly which it failed to do. In the absence of such mandatory provision in the Constitution about disposal of legislative work, if that Government survived for 22 months, it could have survived for the remainder of the term unless shown that dissolution was justifiable and is for reasons, which are covered by the requirements laid down in Haji Saifullah KJian's case and the constitutional machinery had failed and the Government was unable to run. Charges of misuse of funds as mentioned in the written statement by the deposed Prime Minister, for purposes prohibited, could be looked into if so allowed under law for which steps according to law, could have been taken for taking appropriate action instead of dissolving the National Assembly. I see considerable moral force in the contention raised on behalf of the petitioner that allegations made in ground (a) in the order of dissolution did not justify presumption that National Assembly had lost confidence of the people because if it was so, then a leader of opposition in the same National Assembly should not have been appointed as care-taker Prime Minister. 19. In ground (b) of the dissolution order are mentioned the facts, briefly stated, that Federal Government of that time had wilfully undermined constitutional arrangements and usurped the authority of the provinces by not calling in session institutions like Council of Common Interests and National Finance Commission and ridiculing constitutional role played by Senate. 20. Before adverting to ground (b) of dissolution order and questions contained therein as mentioned above, it would be pertinent to sketch here very briefly political scenario, in which Pakistan Peoples Party came into power. General elections were held in 1988 and Pakistan Peoples Party, in National Assembly secured 93 seats and won a simple majority. Likewise, Pakistan Peoples Party won and formed Government in the Province of Sindh and a coalition Government in the province' of Sarhad. Pakistan People's Party lost in the provinces of Punjab and Baluchistan, in which Governments were formed by Messrs Muhammad Nawaz Sharif of I.J.I. and Nawab Muhammad Akbar Khan Bugti respectively, who did not see eye to eye with Federal Government of Pakistan Peoples Party. Mr. Ghulam Ishaq Khan was a Minister in the Martial Law Government of late General Muhammad Ziaul Haq since its very inception and was Chairman, Senate, at the time when General Muhammad Ziaul Haq as President of Pakistan, died in an unfortunate accident of air-crash. As required under the Constitution, Mr. Ghulam Ishaq Khan took over as Acting President of Pakistan and subsequently was elected to that post by the electoral college composed of both Houses of Parliament and Provincial Assemblies with full support of Pakistan Peoples Party in the National Assembly as well as in other forums. There is no dispute about the fact that Pakistan Peoples Party had formed Governments at the Centre and in two Provinces in the face of inherent set-backs and handicaps. At the Centre. Pakistan Peoples Party had a very simple majority with 93 seats in National Assembly. There was tough opposition from I.J.I. which was composed of several political parties which had made electoral alliance. When the Government was formed, Pakistan Peoples Party had in National Assembly 93 seats and I.J.I. 54 with 40 independents and remaining seats with other parties. This gave temptation for horse-trading and tug of war. In Sindh Assembly though Pakistan Peoples Party had comfortable majority but had formed the Government with support of MQM. In the Province of Sarhad, Peoples Party secured 20 seats and formed Government in -coalition with other Parties, when I.J.I. had 28 members. 21. Federation of Pakistan is covered in the Constitution in Part III containing Articles 41 to 49. This chapter highlights powers and tenure of offices of twp high parsonages namely, President and Prime Minister. It is, therefore, clear that Federation of Pakistan is composed of both the President and Prime Minister and their powers and duties are also separately specified. Article 46 provides that it is the duty of the Prime Minister to communicate to the President all decisions of the Cabinet relating to the administration of the affairs of the Federation and proposals for legislation and also to make available to the President any such information as stated above as the President may call for. President can send back decision of Prime Minister or a Minister to the Cabinet if such decision is not considered by the Cabinet. Article 48 provides that the President shall act on the advice of the Cabinet or the Prime Minister. From what is stated above, it appears that Prime Minister is head of the executive and the President is head of the State and both together have constitutional roles to play as mentioned therein. President also has power under Article 58 of the Constitution to dissolve the National Assembly as incorporated therein by 8th amendment. 22. Ground (fc) in the order of dissolution mentions the fact that Government of Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions (Council of Common Interests and National Finance Commission). Article 153 of the Constitution envisages appointment by the President of a Council of Common Interests, consisting of Chief Ministers of Provinces and equal number of members from the Federal Government to be nomihated by the Prime Minister from time to time. This Council is responsible to the Parliament and shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and in entry 34 (Electricity) in the Concurrent Legislative List. Decision of the Council is to be expressed in terms of opinion of majority and Parliament in joint sitting, by resolution, can issue directions through the Federal Government to the Council. If the Federal Government or Provincial Government is dissatisfied with the decision of the Council, it may refer the mater in a joint sitting whose decision in this behalf shall be final. 23. Charge against the Government of Federation is that it has not allowed the Council to discharge its constitutional functions despite persistent demands of the Provinces. In this context, reference to letter of President No.27 of 1989 addressed to the Prime Minister on the subject of Council of Common Interests would be useful. This letter is dated 18th June, 1989. The President had written this letter to the Prime Minister after receipt of copies of two letters from Chief Ministers of Punjab and Baluchistan highlighting imperative necessity of convening a meeting of the Council of Common Interests in order to discuss the issues which remained deadlocked. In the said letter, reference is made to a Senate resolution passed unanimously in support of calling the meeting of the Council. In the record of the High Court, there is a file containing documents produced by bpth parties in support of their contentions. In that file there is a letter from Prime Minister to President dated 2nd August, 1989. This letter appears to be a reply from Prime Minister to the President of his letter mentioned above on the subject of calling the meeting of the Council. It appears from the letter that meeting of the National Economic Council took place on 23.5.1989 and the following two paragraphs from the said letter are reproduced as under:-- "11. The allegation about the "dead-lock" is not correct. The meeting of the National Economic Council took place in a very congenial atmosphere and it was only towards the concluding stage that some reservations were expressed by the two Chief Ministers. These were duly noted for consideration. The assertion by the Chief Ministers for convening a meeting of the Council of Common Interests on the SC. 587 1992 Kliawaja AHMAD TARIQ RAHIM v. FED. OF PAKISTAN (Sajjad AH Shall, T) allegation that there was a "dead-lock" in the National Economic Council presumes that the Council is an appellate or supervisory body designed to oversee the National Economic Council. This assumption of the Chief Ministers is not correct as the Council is not an appellate or supervisory body to which recourse could be made to challenge decisions of the National Economic Council. 12 ..................................... 13 ..................................... 14. As far as the constitutional position is concerned, the meeting of the Council of Common Interests cannot discuss the issues which, according to the Chief Ministers' letters, remained "dead-locked" in the National Economic Council or to discuss the other myriad issues except electrification through WAPDA, raised by the Chief Minister Baluchistan in his letter. Furthermore, Senate Resolution, inspite of all the respect it deserves, cannot be made a constitutional basis for calling the meeting of the Council of Common Interests. It would imply setting erroneous precedents and unnecessarily involving Federal matters and province-­federation relationship". 24. It appears from the perusal of documents and letters produced on this subject that insistence on reference of the dead-locked issues in the Council to the joint sitting of Parliament was for the reason that in Senate Government of Peoples Party at the centre had no majority or substantial support as this forum was already in existence when Peoples Party was inducted into "power with simple majority in National Assembly and negligible support in Senate, which was predominated by I.J.I. 25. Article 160 of the Constitution envisages constitution of National Finance Commission consisting of Minister of Finance of the Federal Government and such Ministers of the Provincial Governments and such other persons as may be appointed by the President after consultation with Governors of the Provinces. Stand taken by Mr. Raja Anwar, counsel for the petitioner is that Government of Pakistan Peoples Party could not be held responsible for the delay alleged. This Commission was set up in 1974 and gave interim award in 1975 with which Provinces were satisfied. This Commission was reconvened on 25.7.1985 during the Government of Mr. Muhammad Khan Junejo, but since there was no objection to the interim award by any Province, hence there was no need of calling the session. 26. In ground (b) of the order of dissolution, last item (/v) is that Senate, which is representative of Federating Units under Article 59 and is an integral part of Parliament had been ridiculed. Although in the ground it is not stated specifically as to who is ridiculing Senate but Ms. Benazir Bhutto has filed affidavit in the High Court during the hearing of constitutional petition in which she has denied the charge by saying that she did not make remarks in respect of